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“The Antithesis Of Religious Liberty”: Why The GOP Has The First Amendment Upside Down

One entertaining aspect of recent dramatic Supreme Court rulings was learning that the court’s high-minded intellectuals can be just as thin skinned and spiteful as everybody else. Apparently, Justice Antonin Scalia was a law-school whiz kid about 50 years and 50,000 cocktails ago, and finds it hard to accept that lesser minds are not obliged to agree with him.

For his part, Chief Justice John Roberts turned political prognosticator in his dissent to Obergefell v. Hodges, the decision legitimizing gay marriage. “Stealing this issue from the people,” he wrote, “will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”

Granted, if all you had to go by was the sky-is-falling rhetoric of Republican presidential candidates and their theological allies, you might think that Roberts had a point. But he doesn’t, partly because the Supreme Court ruling won’t bring about dramatic social change at all. It merely affirms social changes that have already happened.

But hold that thought, because political handicappers at the New York Times argue that same-sex unions could be the best thing that ever happened to the GOP. Not because millions of outraged religious conservatives will stampede to the ballot boxes, but because… well, here’s the headline: “As Left Wins Culture Battles, GOP Gains Opportunity to Pivot for 2016.”

Former Bush speechwriter David Frum believes that the gay marriage fight is over. “Every once in a while,” he told reporter Jonathan Martin, “we bring down the curtain on the politics of a prior era. The stage is now cleared for the next generation of issues. And Republicans can say, ‘Whether you’re gay, black, or a recent migrant to our country, we are going to welcome you as a fully cherished member of our coalition.’”

Sure, Republicans could say that. If Republicans were in the habit of dealing with reality, that is. Frum, a Canadian Jew who became a U.S. citizen in 2007, may be forgiven a bit of wishful thinking. Ever since getting pushed out of the American Enterprise Institute for saying Republicans were foolish not to negotiate with the White House on Obamacare, he’s been trying to persuade Republicans to act more like British Tories.

But that’s not how today’s GOP rolls. On the party’s evangelical right, former Arkansas governor Mike Huckabee was breathing smoke and fire. A Baptist preacher, Huckabee indulged in a bit of ecclesiastical word play, denying that the Supreme Court could do “something only the Supreme Being can do — redefine marriage.” He denounced the ruling as a “blow to religious liberty, which is the heart of the First Amendment,” and vowed to defy it.

In this, Huckabee echoed Rev. Ronnie Floyd, president of the Southern Baptist Convention, who even before the Supreme Court ruling had vowed that “as a minister of the Gospel, I will not officiate over any same-sex unions or same-sex marriage ceremonies. I completely refuse.”

Isn’t that brave of him?

However, do you really suppose it’s possible that Floyd, Huckabee, and the rest of the hyperventilating GOP candidates fail to understand that all churches have an absolute First Amendment right to their own beliefs and practices? They’re bravely refusing to perform ceremonies that nothing in this nor any imaginable Supreme Court decision would require of them.

If your church refuses to sanctify same-sex marriages (as mine certainly does), that’s its unquestioned right. For that matter, the Catholic Church also refuses to marry previously divorced couples, or even admit them to communion — an absurdity to me, but not a political issue.

Nothing in the Supreme Court ruling changes those things. It’s about marriage as a secular legal institution: two Americans entering into a contract with each other. Period.

That’s why Bloomberg View‘s Jonathan Bernstein is right and Justice Roberts is wrong about same-sex marriage causing long-lasting social resentment. Marriage, he writes, is “a done deal,” and the issue will soon be relegated to “history books alongside questions of whether women should vote or alcohol should be prohibited.”

Loving v. Virginia, the 1967 decision invalidating miscegenation laws, was accepted almost immediately. Bernstein points out that in states such as Massachusetts and Iowa, where same-sex unions have been legal for years, they’re no longer controversial.

Because it’s really none of your business, is it, who loves whom? And it has zero effect on you personally. So grow up and get over it.

In time, as Bernstein says, most people will.

In the near term, however, millions of aggrieved GOP voters appear to have gotten the First Amendment upside down. They won’t easily be dissuaded. Feeling besieged by the mainstream culture, they’re encouraged by the Huckabees, Cruzes, and Santorums of the world to believe that they’re being persecuted because they can’t make everybody else march to their drumbeat.

The Republicans’ problem is that to most Americans, that’s the antithesis of religious liberty, and a surefire political loser.

 

By: Gene Lyons, The National Memo, July 1, 2015

July 2, 2015 Posted by | 1st Amendment, GOP, Religious Liberty | , , , , , , | Leave a comment

“Stochastic Terrorism”: Did The Four Dissenting Justices In Gay Marriage Case Just Suggest Treason?

In controversial cases, is the role of jurist to inflame controversy, or quell it?

In Loving v. Virginia, the 1967 case which found race-based marriage bans unconstitutional, Chief Justice Earl Warren built a 9-0 consensus—just as he’d done years earlier in Brown vs. Board of Education. He knew that a country divided by race ought to be united, if possible, by a Supreme Court mindful of fundamental values—even if the Court was, as the constitution requires, overturning the will of the majority.

The four dissents in the landmark case on same-sex marriage, Obergefell v. Hodges, one by each of the conservative justices on today’s Supreme Court, take a very different view. With invective and hyperbole, they pour fuel on the fire of the controversy over same-sex marriage. Rather than merely state their views and disagreements, they use heated language to accuse the five-person majority of imperialism, a “putsch,” and worse.

Thus, the unprecedented calls of elected officials for open revolt against the Supreme Court—a shocking display of treason—are now accompanied by calls from within the Court itself that Obergefell is illegitimate, and the Supreme Court itself no longer worthy of full respect.

Ironically, in alleging a new low for the Court, these four justices have brought one into being. Justice Scalia has, as usual, grabbed the spotlight with juvenile taunting usually reserved for the playground. But in fact, all four opinions are shocking.

Chief Justice Roberts (joined by Scalia and Thomas) makes a solid, and unsurprising, substantive case. There is, after all, no explicit right to marriage (for gays or anyone else) in the Constitution; it is, rather, a fundamental right inferred into the Fourteenth Amendment’s guarantees of due process and equal protection. Thus, one might expect a judicial conservative like Roberts to be suspicious of expanding it, particularly when doing so runs against the expressed will of a majority of state legislatures.

But the way he chose to cast his argument ill befits his status as chief justice. “The majority’s decision is an act of will, not legal judgment,” he writes. That is absurd: the court’s decision runs thirty pages, full of all the legal judgments, precedents, and statements of principle one would expect.

But that’s just the beginning. Across four pages, Chief Justice Roberts analogizes Obergefell to the Lochner v. New York decision, one of the most notoriously wrongheaded in Supreme Court history. Lochner means nothing to most people, but to anyone who’s finished the first year of law school, it’s a swear word.

He’s still not done. The Chief Justice of the United States then states (quoting a concurring opinion by Justice Kennedy) that “the legitimacy of this Court ultimately rests ‘upon the respect accorded to its judgments.’ That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change.”

In other words, the majority is arrogant, unrestrained, and thus not to be respected. It has an “extravagant conception of judicial supremacy.” “Those who founded our country would not recognize the majority’s conception of the judicial role.” And “The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it.”

Why not just tell the Religious Right to buy pitchforks and blowtorches? Chief Justice Roberts’ ironic opinion is immoderate in alleging immoderacy, extreme in alleging extremism.

Justice Scalia came next. And he begins thus: “I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.”

It seems inevitable that rhetoric like this will stir the next Confederate flag-waving zealot to an act of, if not domestic terrorism, at least outrageous revolt. How could it be otherwise? And yet this, too, was only the first line.

The next line is, at best, disingenuous: “The substance of today’s decree is not of immense personal importance to me.” As if. This from the man who, 12 years ago, wrote in his Lawrence v. Texas dissent that the Court “has largely signed on to the so-called homosexual agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

Is that what the LGBT equality movement is about? Throughout Justice Scalia’s hysterical writing in LGBT-related cases, he has doggedly maintained that their subjects are merely “homosexual conduct” and “homosexual sodomy.” That there are, in fact, gay and lesbian people is not part of Justice Scalia’s worldview, as he has shown time and time again. There is only homosexual conduct.

And yet he says, like a “no homo” jock in a locker room, “Hey, I don’t care if you’re gay.”

Once again, just getting started. “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” That is outrageous rhetoric and an outrageous sentiment. The decision is not a “decree.” The Court is not a “Ruler”—it is an Article III interpreter of the Constitution, at its most important when it protects minorities against the will of the majority. Even demeaning Supreme Court justices as “lawyers” is a sign of disrespect.

Other statements are similar. “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.” “What really astounds is the hubris reflected in today’s judicial Putsch.” And, “With each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”

Others have already quoted Justice Scalia’s rhetoric—“jiggery-pokery” and the rest—at length, so I won’t spend much time with it here. Because in fact, his jurisprudence is far more shocking. Watch this:

When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification.

I have quoted this passage at length so there is no misunderstanding. What Justice Scalia is saying here is that if it was “universal and uncontroversial” in 1868, it’s obviously okay now. That principle, of course, would allow states to ban interracial marriages, including that of Justice Thomas. It would allow states to bring back the doctrine that a woman surrenders all her rights to her husband upon marriage. It is shocking.

To be sure, it is also of a piece with Justice Scalia’s “originalism” and is not, as such, novel. But its strict application here places Justice Scalia in a bizarre twilight-zone of 19th century values.

Likewise, Justice Thomas’s description of “the dangerous fiction of treating the Due Process Clause as a font of substantive rights.” That “fiction” has protected rights to contraception, to abortion, and to all kinds of intimate family matters. Justice Thomas’s reactionary jurisprudence would erase half a century of gains in the area of civil rights.

And likewise Justice Alito’s talking-point dictum that the opinion will be “used to vilify Americans who are unwilling to assent to the new orthodoxy.” This, of course, is a commonplace on the Religious Right—but its appearance in a Supreme Court opinion is nonetheless shocking.

But it is Justice Alito’s parting jab which resonates the most.  Obergefell, he writes, evidences “the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.”  This from someone who joined an opinion overturning fifty years of due process jurisprudence, and another arguing a return to 1868’s family values.

“All Americans,” he concludes, “should worry about what the majority’s claim of power portends.”  Claim of power—as if the Constitution does not empower the Court to do exactly what it has done: use reasoning and interpretation to defend constitutional rights against laws that would abridge them.

These are, as the saying goes, fighting words, and more importantly, they are words that will inspire others to fight.  They are what some call “stochastic terrorism,” the broadcasting of a message so incendiary as to inspire some “lone wolf” to violence—if not actual violence, then precisely the kinds of anti-democratic, anti-American defiance we have already seen among some politicians.

Were the targets of such acts only gays and lesbians, it would be bad enough.  But these four dissents have encouraged disrespect of the Supreme Court itself.  Agree or disagree with the Court’s method of interpreting the Constitution, they are acts of vandalism against one of the foundations of our democracy.

 

By: Jay Michaelson, The Daily Beast, June 27, 2015

June 30, 2015 Posted by | 14th Amendment, Marriage Equality, U. S. Supreme Court | , , , , , , , , | 1 Comment

“It Isn’t Rhetorical Or Hypothetical Anymore”: North Carolina’s Magistrates Now Can Legally Ignore Marriage Laws

Sometimes, in the course of writing columns about “religious freedom” laws like the one Gov. Mike Pence tried to pass in Indiana, I’ve mused about what would have happened if such laws had been in effect in 1967, back when the Supreme Court decided Loving v. Virginia. It was in Loving—decided 48 years ago today—that the court ruled it unconstitutional for states to prevent mixed-race marriages. I asked my question rhetorically, hypothetically, to try to highlight the absurdity of states where same-sex marriage is the law also passing laws to permit certain citizens to flout that law.

In North Carolina, it isn’t rhetorical or hypothetical anymore.

On Thursday, the state’s general assembly overrode an earlier gubernatorial veto of Senate Bill 2, meaning that civil magistrates can now refuse to perform not only same-sex marriages if they say that doing so violates their religious beliefs, but any union of which they disapprove on religious grounds.

The vote happened first thing in the morning. “They gaveled us right to order, and they didn’t allow any time for debate,” says assembly member Mary Price “Pricey” Harrison, Democrat of Greensboro. In North Carolina, an override is achieved with three-fifths of present and voting members. SB2 had originally passed the assembly by 67-43, which is 61 percent. Thursday’s vote was 69-4, or 62.7 percent. Harrison told me that some Republicans who might have voted against the bill weren’t present, and that a few members were off at their children’s high-school graduations.

Here’s the background. The state started out with a broad religious-freedom restoration bill of the sort becoming law in more conservative states. There was an outcry; after some wrangling, legislators settled on this bill, limited to magistrates. So this is a “compromise” bill. Remember that North Carolina’s legislature and its governor, Pat McCrory, are about as right-wing as any in the country—all those “Moral Monday” protests have come in response to radical actions the governor and legislature have taken on education, voting rights, the environment, and other matters.

So when legislators walked away from the broader religious-freedom act, they settled on SB2. Some compromise. “The legislation is in some ways even worse than Indiana’s,” Christopher Sgro, the executive director of Equality North Carolina, told me. “These are taxpayer-funded government employees.”

The law is really aimed at same-sexers, but of course legislators knew that they couldn’t single gay people out by name or category, because that would have been too obviously discriminatory. The only way to get around this was to write it more broadly, so the law says: “Every magistrate has the right to recuse from performing all lawful marriages under this Chapter based on sincerely held religious objection.”

Read that again. Recuse from “lawful marriages.” In other words, disobey the law. So, magistrates who still think the races shouldn’t mix can now take that brave stand with the weight of the law behind them. What about a Southern Baptist marrying a Jew? OK, it’s probably a stretch to think anyone would object to that. But what about a Southern Baptist marrying a Muslim? A Muslim marrying an atheist? A citizen marrying a non-citizen in what appears to the magistrate to be mostly a matter of helping the noncitizen gain permanent resident status? As a practical matter, experts think recusals will likely be limited to same-sex marriages, not that that makes this any better, but we’re about to find out what’s theoretical and what’s not.

This is shocking stuff. It’s pretty much at the level of George Wallace defying integration, albeit without the pulse-quickening, schoolhouse-door histrionics. Except this is arguably more extreme because here, North Carolina isn’t defying Washington, but itself. The state passed a ban on same-sex marriage back in 1996 and amended the state constitution in 2011 to emphasize the point. But then, a mostly religious coalition of North Carolinians brought suit, and last year a federal judge seated in North Carolina ruled the state’s ban unconstitutional. The governor, extremist though he is, knew enough law not to fight it, and indeed knew enough law to veto the magistrates’ bill when it came before him.

But now the legislature has spoken, or re-spoken, and overridden him. “It’s unconstitutional, and we all know it’s unconstitutional, and a court is going to throw it out,” Pricey Harrison told me. “It’s a heck of a way to run a legislature.”

The point needs making: Laws like this magistrates’ law and those Pence-style religious-freedom laws have turned the original intention of the federal Religious Freedom Restoration Act of 1993 completely on its head. That law was meant to protect the religious rights of minorities. It emanated from a lawsuit brought by two Native American men who took peyote, they claimed, as a religious rite. The Supreme Court backed them, and then President Clinton signed the RFRA. Protecting minorities from the tyranny of the majority has a long history in this country, back to the famous Federalist No. 10, and in fact the concept goes back to ancient Greece. But now, the majority (or near-majority, depending on which poll you believe) in North Carolina that opposes same-sex marriage can bully the minority.

Now, imagine if these religious-conscience laws had existed in 1967. How long would it have taken for interracial marriage to become the accepted norm in the South? As it happens, we have a partial answer to this question in the form of a story that emanates, again, from North Carolina. In 1976, Carol Ann and Thomas Person, she white and he black, walked into their local courthouse to get their marriage license. As she recently told the story in a column in the Raleigh News & Observer, the magistrate said no. A second magistrate on duty said the same thing, and one of them “took out a Bible and began to lecture us about their religious views and why Thomas and I should not be together.” This was nearly a full decade after Loving.

A court ruled against those two magistrates, and the Persons were soon married. Presumably, a court will toss this magistrates’ law, too. But who’ll be denied a license in the meantime? And what constitutes religious freedom, and what is simply bigotry?

 

By: Michael Tomasky, The Daily Beast, June 12, 2015

June 15, 2015 Posted by | Bigotry, Discrimination, Marriage Equality, North Carolina | , , , , , | 2 Comments

   

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