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“The Supreme Court’s Ruling Be Damned”: Ted Cruz Isn’t Taking The Marriage Ruling Well

At an event over the weekend, Rep. Steve King (R-Iowa) was asked about last week’s Supreme Court rulings on the Affordable Care Act and marriage equality. The right-wing Iowan, not surprisingly, wasn’t pleased, calling the court decisions “the heaviest one-two punch delivered against the Constitution and the American people that we’ve ever seen in the history of this country.”

Of course, Steve King is expected to say things like this. When presidential candidates go over the top in the same way, it’s a little more alarming. MSNBC’s Benjy Sarlin reported:

Sen. Ted Cruz (R-Tex.) went so far as to call for a constitutional convention to overturn the court’s decision while campaigning in Iowa, according to CNN. In an interview with Sean Hannity he called the back-to-back rulings on health care and gay marriage “some of the darkest 24 hours in our nation’s history.”

Hannity, incidentally, found Cruz’s rhetoric quite compelling, responding, “I couldn’t say it more eloquently.”

For what it’s worth, it’s not hard to think of some genuinely tragic 24-hour periods in American history. The Lincoln assassination comes to mind. So does the time British troops burned the White House. There were days during the Civil War in which tens of thousands of Americans died on the battlefield. Just in the last century, we witnessed the JFK assassination, Pearl Harbor, and a corrupt president resign in disgrace.

For the Republican presidential hopeful, learning that Americans will have health benefits and loving couples will get married belongs on the same list.

To be sure, while much of the country will probably find that odd, it’s equally important to appreciate what Cruz intends to do with his outrage.

On the Affordable Care Act, the Texas senator will, naturally, continue to push a pointless repeal crusade. On marriage rights, Cruz intends to “focus on defending religious liberty by protecting those who act on their conscience and appointing judges who understand the limits placed on them by the Constitution.”

But it’s the Republican’s plans for the high court itself that stand out. The Huffington Post reported:

To challenge that “judicial activism,” Cruz said he is proposing a constitutional amendment to require Supreme Court justices to face retention elections every eight years. […]

Under Cruz’s proposed amendment, justices would have to be approved by a majority of American voters as well as by the majority of voters in least half of the states. If they failed to reach the required approval rating, they would be removed from office and barred from serving on the Supreme Court in the future.

Soon after, the senator said he “absolutely” believes county clerks in Texas should freely refuse marriage licenses to couples who wish to marry, the Supreme Court’s ruling be damned.

As ridiculous as Cruz’s posturing seems, it’s important to remember the broader context: national GOP candidates have a built-in incentive to be as hysterical as possible right now, in the hopes of currying favor with the party’s base. Mild, reasoned disappointment with the court doesn’t impress far-right activists; unrestrained, hair-on-fire apoplexy does.

Ted Cruz appears to understand this dynamic all too well.

 

By: Steve Benen, The Maddow Blog, June 29, 2015

June 30, 2015 Posted by | Marriage Equality, SCOTUS, Ted Cruz | , , , , , , , | 3 Comments

“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

“The G.O.P. Opts Out Of Equality”: Conscience Is Never Just Personal When The Occasion Is A Fraught Debate Over Public Morality

On May 28th, North Carolina Governor Pat McCrory vetoed Senate Bill Two, which proposed allowing public officials to temporarily stop performing weddings based on “any sincerely held religious objection.” In other words, if a public official were confronted by a gay couple who wished to marry, he could refuse to perform the ceremony. McCrory’s veto put the Republican governor at odds with a Tea Party legislature, which immediately promised to override it. On June 1st, the state senate voted to override, and, this morning, the house of delegates did, too, making it legal for North Carolina magistrates to turn away gay couples.

The Bartleby-like public official who “would prefer not to” marry same-sex couples would not have been asked to just one year ago. In 2012, North Carolina adopted a constitutional amendment banning same-sex marriage, in line with thirty other states where a majority at one point opposed it. Then, in June, 2013, the Supreme Court struck down the Defense of Marriage Act, and federal courts turned decisively in favor of gay marriage. In October, 2014, a federal judge ruled North Carolina’s marriage amendment unconstitutional, and same-sex ceremonies began. That month alone, court decisions also lifted same-sex-marriage bans in thirteen other states—Alaska, Arizona, Colorado, Idaho, Indiana, Nevada, New Jersey, Oklahoma, Utah, Virginia, West Virginia, Wisconsin, and Wyoming—more than twice the number of states where same-sex marriage was legal in 2010.

Following this rout, conservatives have moved rapidly from enforcing a unified public morality based on traditional marriage to speaking the language of pluralism as they seek exemptions from the rising legal norm of marriage equality. Their model has been the Religious Freedom Restoration Act (R.F.R.A.), of 1993, which exempts believers from federal laws that “substantially burden” their religious exercise, except where the regulation is the least burdensome way to fulfill a “compelling governmental interest.”

The R.F.R.A.—which was intended to protect neglected religious minorities, such as Native American worshippers who had recently lost public-sector jobs in Oregon because of their ritual use of peyote—was the basis of last year’s Supreme Court decision in Burwell v. Hobby Lobby, which held that certain business owners can refuse to offer insurance coverage for contraception based on their religious objections. The Indiana Religious Freedom Restoration Act, which was signed into law this March, is a model for the state-level expansion of religious exemptions, applying its protections to all corporations and making religious belief a defense in private legal actions, such as anti-discrimination suits. A similar bill passed in Arkansas later that month.

Supporters describe the state R.F.R.A.s and other religious accommodation laws as acknowledging the “increasing religious pluralism in American culture,” and protecting “religious liberties and the freedom to live out religious convictions,” as Russell Moore, the president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, put it in March. These exemptions, for the individuals, public officials, and business owners who wish to say, “I would prefer not to,” have become the new front in the culture war, the redoubt of attitudes that were recently in the majority. Invoking tolerance to defend intolerance is ironic at best, but at a moment when disapproval of gay marriage looks ever more like plain bigotry, it is better to say not, “I disapprove of you,” but rather, “This is who I am.”

The Bartleby strategy has taken center stage in conservative resistance to a wide range of liberal policies. In 2012, the Supreme Court nearly overruled the Affordable Care Act’s requirement that individuals buy insurance. Five justices voted to protect the consumer’s freedom to opt out of a market, such as the health-insurance market, warning that, if Congress could require this purchase, it could also command people to buy health-club memberships, American cars, or broccoli. (The insurance requirement survived through a sleight of hand, as Chief Justice John Roberts, who agreed with the rest of the Bartleby argument, found a hook for the law in Congress’s constitutional power to impose taxes.) In 2014, the Court held that certain members of public-sector unions could opt out of paying their union dues, which fund organizing and advocacy. Writing for the majority, Justice Samuel Alito argued that mandatory dues impinge on the First Amendment’s rights of free expression and voluntary association, and hinted that dues requirements in general might be found unconstitutional in the future.

As conservatives press these claims for personal exemptions, they have also been highly solicitous of states that would prefer not to accept new federal standards. The Supreme Court did real damage to the Affordable Care Act when, as part of its 2012 ruling, it found that states could not be penalized for refusing to expand Medicaid, which was an essential part of the A.C.A.’s path to near-universal coverage. As a result, twenty-one states have not signed on to the Medicaid expansion, and nearly four million low-income Americans have not obtained health insurance that the federal government intended them to have.

Similarly, Senate Majority Leader Mitch McConnell is urging state governments to disobey the Obama Administration’s order to develop climate-change regulations. McConnell has some support for his argument that the Clean Air Act does not stretch far enough to require these regulations, and there is sure to be litigation on the issue. But his call for a coordinated strategy of passive resistance in the meantime is extraordinary. The more opt-outs any climate policy includes, the more likely it is to fall apart in a wave of free-riding, as everyone decides to let someone else make the sacrifice, leaving no one to make the sacrifice at all.

Of course, a state refusing to make law is different from an individual refusing to bake a wedding cake for a gay couple. Medicaid policy and pollution regulation directly affect millions of people and billions of dollars of economic activity. The argument for conscience-based individual exemptions is that they concern the exempted individual most of all. The problem with this argument is that an individual’s conscience is never just a personal matter when, as in the case of the Hobby Lobby decision, it bears on the terms of employment. Then the person denied contraceptive benefits, or who is looking for a new job where she can get those benefits, is also part of the picture. Economic life is deeply interdependent, and involves conflicting interests and unequal power. This is why, from the New Deal until very recently, the Supreme Court did not permit many opt-outs from economic regulation. The new raft of conscience claims is creating unprotected spaces within an already precarious economy.

A second problem with individual opt-outs is just as basic. Conscience is never just personal when the occasion is a fraught debate over public morality. Once public laws banning same-sex marriage are gone, authorizing supposedly private discrimination against same-sex couples continues the cultural fight by other means. In hindsight, no one doubts that allowing business owners to discriminate against black people during the Civil Rights era would have denied them full equality and hampered desegregation. (Arguably, the continued tolerance of discrimination by private clubs also undermines desegregation, though club membership is less essential to daily life than shopping.) Similarly, allowing private discrimination against gay couples is not an exemption from a new rule of full equality; it is a compromise that allows inequality to persist. Proposals to let magistrates withhold marriage licenses have the same problems, with the added insult that the discrimination is effectively coming from the state. If officials can decide not to implement laws they dislike, then equality under the law—for gay couples, at least —is just a slogan.

The Bartleby position appeals to touchstone liberal values: personal conscience, diversity, tolerance, and autonomy. On their face, these values seem to promise there are no hard conflicts: there is room for everyone’s conscience, everyone’s outlook, and tolerance enough for each person’s freedom. The new generation of opt-outs show that this is a misconception: there is conflict over what these values mean, and there is never enough room for all their meanings. The politics of tolerance, diversity, and autonomy are distributive politics, with winners and losers.

From Thoreau’s night in jail protesting slavery and the Mexican-American War to the Greensboro lunch-counter sit-ins, sitting still and not doing as you are told has been among the most potent of political tactics, though its effects are often complex and long delayed. As in much else, initiative in this tradition of creative refusal belongs to the political right today. There is no paradox in conservatives using liberal values and tactics to their ends. By the same token, there should be no liberal embarrassment in resisting. There is no incoherence here, but there is disagreement too sharp for tolerance alone to resolve it.

 

By: Jedediah Purdy, The New Yorker, June 11, 2015

June 13, 2015 Posted by | GOP, Marriage Equality, North Carolina | , , , , , , , , | Leave a comment

“The Country Is Leaving Them Behind”: How GOP Candidates Feed The Social Conservative Narrative Of Oppression

If you want to get a sense of what social conservatives are thinking and feeling, there are few better ways than watching how Republican candidates seek their votes. Call it empathizing or pandering, but the candidates know it isn’t enough to say “I agree with you on the issues” — you have to demonstrate that you feel what they feel and look at the world the same way they do. That’s true to a degree of any constituency group, but it may be particularly important with voters who feel as besieged as social conservatives do today.

Which is why many of the GOP presidential candidates are repeating a narrative of victimhood and oppression that has become common on the religious right. It says that the forces of secularism — cruel, immoral, and on the march — are consolidating their gains and preparing to make it all but illegal to be a Christian.

“There are consequences when you don’t genuflect to the latest secular dogmas,” said Jeb Bush in a speech at Jerry Falwell’s Liberty University. The left, says Bobby Jindal, wants to “essentially outlaw firmly held religious beliefs that they do not agree with.” Not only will opposing same-sex marriage get you branded a hater, says Marco Rubio, “what’s the next step after that? After they’re done going after individuals, the next step is to argue that the teachings of mainstream Christianity, the catechism of the Catholic Church, is hate speech. That’s a real and present danger.” “We are moving rapidly toward the criminalization of Christianity,” says Mike Huckabee.

It may sound ridiculous to assert that this majority-Christian country with a stronger tradition of religious freedom than any other country on Earth is about to start rounding up Christians and putting them in jail for their beliefs. But to many on the religious right, that doesn’t seem like such a remote possibility.

It’s partly because, in a very real sense, the country is leaving them behind. The rapid change in public opinion and laws on gay rights is the most vivid current reminder, but it’s part of a process that has been going on for decades. The truth is that American society has been drifting away from the “traditional” values to which they hold for some time now, whether it’s on things like corporal punishment, women working outside the home, or the infusion of Christian practices into government-sponsored activities (like prayer in schools). That’s not to mention the discomfort they feel upon seeing a celebrity undergoing a sex change hailed for her courage and splashed across the covers of glamorous magazines.

And Christians themselves are shrinking as a proportion of the population. According to recent data from the Pew Research Center, in 2014 Christians made up 70.6 percent of the American population, down 8 points from just seven years before. Meanwhile, the population of the “unaffiliated” — atheists, agnostics, and people who don’t identify with any religion in particular — has grown to 23 percent of the public. Most strikingly, only 56 percent of millennials identify as Christian, while 35 percent are unaffiliated, suggesting that the trend will continue.

So it’s perfectly understandable for social conservatives to feel like they’re living in a society that no longer shares their values, because they are. I might say, “Welcome to the world everybody else lives in” — if you’re a Jew or a Muslim, you aren’t going to complain that unless the department store puts up a banner acknowledging your particular holiday that you’re suffering under the bootheel of oppression.

Nevertheless, many conservative Christians have constructed out of these developments an uplifting story for themselves, where their supposed persecution gives them nobility and heroism. They can now tell themselves that just by doing what they’ve been doing — having lots of kids, staying chaste until marriage, or just going to church — they’re courageous revolutionaries, underdogs fighting the odds on behalf of their principles and God’s desires. When they oppose gay marriage, they aren’t the equivalent of George Wallace barring the schoolhouse door, they’re the equivalent of the Soviet refusenik in 1975 or the American patriot in 1775.

Liberals may dismiss this kind of rhetoric, but it’s mostly sincere, and it will likely become louder as social progress continues in the direction it’s going. It’ll be particularly interesting to see what the candidates say if the Supreme Court rules that gay people have a constitutional right to marry, as it may well do in a matter of weeks.

 

By: Paul Waldman, Senior Writer, The American Prospect; Contributing Writer, The Week, June 4, 2015

June 5, 2015 Posted by | GOP Presidential Candidates, Religious Right, Social Conservativism | , , , , , , , | 2 Comments

“If You’re Scratching Your Head, You’re Not Alone”: Rubio Is Confused About Christianity, Marriage Equality, And The Constitution

Marco Rubio went on television with the Christian Broadcasting Network’s David Brody and suggested that Christianity is on the verge of being labeled “hate speech.”

If you’re scratching your head, you’re not alone.

Rubio’s rambling statement botched a simple understanding of constitutional law and free speech rights. Not to mention reality.

According to CBN’s transcript:

“If you think about it, we are at the water’s edge of the argument that mainstream Christian teaching is hate speech,” Rubio told CBN News. “Because today we’ve reached the point in our society where if you do not support same-sex marriage you are labeled a homophobe and a hater.”

“So what’s the next step after that?” he asked.

“After they are done going after individuals, the next step is to argue that the teachings of mainstream Christianity, the catechism of the Catholic Church is hate speech and there’s a real and present danger,” he warned.

Rubio appeared to be referring to the legal concept of “clear and present danger,” which the Supreme Court developed in the early 20th century, attempting to articulate the circumstances under which the government can proscribe political speech. Through the early 20th century the Court applied it in situations in which a person’s speech was deemed to be a threat to national security, sustaining a war effort, or to the stability of the government. But in the later part of the century, the Court abandoned it.

The Court last appeared to address this idea in 1969, in Brandenburg v. Ohio. In that case, it reversed the conviction of Clarence Brandenburg, a Ku Klux Klan leader, under an Ohio statute that criminalized “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” for a speech in which he said, “if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.” The Ohio law, the Court held, violated Brandenburg’s free speech rights.

Although the Court’s opinion does not use the term “clear and present danger” and explicitly reject it, in his concurrence, Justice William O. Douglas noted his skepticism that it could be squared with the First Amendment at all. “Though I doubt if the ‘clear and present danger’ test is congenial to the First Amendment in time of a declared war,” he wrote, “I am certain it is not reconcilable with the First Amendment in days of peace.”

Returning to Rubio’s statement, he is vague about who is labeling Catholic teaching “hate speech.” Does he mean the government? Does he mean people on the internet? Under the First Amendment, the government cannot stop citizens from engaging in speech, even if a listener finds it hateful. If by “they” he means American citizens, the simple answer is “they” have a constitutionally protected right to criticize the Catholic church; the church also has a constitutionally protected right to its doctrine.

But if Rubio is suggesting that “they” are the government, I can’t begin to wrap my mind around the scenario he is suggesting. Is he suggesting the government will deem a church’s teaching “hate speech?” There’s no basis or precedent that would remotely suggest that the government could regulate religious speech (whether “mainstream Christian teaching” or other religious teaching) at all, much less deeming it “hate speech.” The Free Exercise Clause protects religious practice and religious speech. Under the Free Speech Clause, the government cannot proscribe “hate speech” or even define it. Under the Establishment Clause, the government cannot endorse (or renounce) a particular religion.

You can say gay people are intrinsically disordered. Or you can say they don’t have a constitutional right to get married. They can say you’re a homophobe. The government can’t stop any of you.

But Rubio blurs the issue by suggesting that a nebulous “they” will first “go[] after individuals,” after which there is a slippery slope to arguing that “the catechism of the Catholic Church is hate speech.” Although CBN transcribed his next words as “and there’s a real and present danger,” if you watch the video, he says, “and that’s a real and present danger.” Suggesting, therefore, not that he believes “they” will argue that Catholic teaching is a “real and present danger” (whatever that is) but that the nebulous “they” present a “real and present danger” to Christianity.

Rubio’s statement is simply a confused muddle of fear-mongering and constitutional misconception. Neither of which is very presidential.

 

By: Sarah Posner, Religion Dispatches, May 28, 2015

June 1, 2015 Posted by | Christianity, Marco Rubio, U. S. Constitution | , , , , , , , | 4 Comments

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