“Locked Doors And Shuttered Windows”: About Those Judges Joining Roy Moore In His Rebel Yell
Nobody familiar with Alabama Supreme Court Chief Justice Roy Moore was the least bit surprised by his defiance of both federal district court and U.S. Supreme Court directives that Alabama begin licensing same-sex marriages. The man’s made an entire career out of such gestures, based not only on early nineteenth-century notions of state’s rights and even older (yet evergreen) theocratic principles.
But it might be more surprising that a majority of probate judges in Alabama are at least temporarily going along with Moore’s rebel yell, either refusing to license applicants for same-sex marriages or even closing their doors yesterday, per a report from WaPo’s Sandhya Somashekhar:
On the day that same-sex unions became legal in Alabama, local officials in dozens of counties on Monday defied a federal judge’s decision and refused to issue marriage licenses to gay couples, casting the state into judicial chaos.
Gay couples were able to get licenses in about a dozen places, including Birmingham, Huntsville and a few other counties where probate judges complied with the judge’s decision. The U.S. Supreme Court ruled early Monday that it would deny Alabama’s request to put the marriages on hold.
But in the majority of counties, officials said they would refuse to license same-sex marriages or stop providing licenses altogether, confronting couples — gay and heterosexual — with locked doors and shuttered windows.
What’s up with these probate judges? Are their law school professors hanging their heads in shame at this rather blatant defiance of the Supremacy Clause?
Well, that’s hard to say because Alabama does not require probate judges to have any sort of legal education (that’s true in my home state of Georgia as well). It’s also one of thirteen states where probate judges are elected in partisan primaries and general elections. I cannot find a current breakdown of the partisan composition of Alabama’s probate judiciary, but given the overall political complexion of the state it’s a good bet a majority are Republicans. With the state’s Republican governor and most famous Republican jurist calling for defiance of the feds (though Gov. Robert Bentley has made it clear he won’t punish any judge that differs with him on this), what would you guess they’d do? Yeah, that’s what I thought, too.
By: Ed Kilgore, Contributing Writer, Political Animal, The Washington Monthly, February 10, 2015
“Using Faith To Discriminate”: Religious Freedom Gives Me The Constitutional Right To Violate Your Constitutional Rights. Right?
Conservatives just love the Constitution. Or at least they say they do. The thing is, they don’t seem to have any idea how it works. At least that’s a more charitable explanation than saying they don’t care how the Constitution works and merely use it as a fig leaf while they undermine the rights it guarantees. And I’m a charitable kind of guy, so I won’t say that.
When the Supreme Court recognizes that marriage equality is a constitutionally guaranteed right, one part of the battle will be over. But conservatives have already begun to fight on another front, namely how to implement (or not) that right. Republican state legislators in Texas, Oklahoma, Utah, and both Carolinas (South Carolina was first!) have this year proposed various bills that would give government officials who perform civil marriage ceremonies and/or issue marriage licenses and other related documents the ability to refuse same-sex couples if it would violate a “sincerely held religious belief.”
Additionally, Oklahoma State Rep. Todd Russ proposed to take civil officials out of the marriage business altogether and force prospective couples to be married by “an ordained or authorized preacher or minister of the Gospel, priest or other ecclesiastical dignitary of any denomination who has been duly ordained or authorized by the church to which he or she belongs to preach the Gospel, or a rabbi.” Not a Christian or a Jew? Out of luck, apparently, although Rep. Russ says anyone else who wants to get married can “fil[e] an affidavit of common law marriage with the court clerk.” Small problem: the state of Oklahoma doesn’t recognize common law marriages, although courts have recognized some on a case-by-case basis. I’m sure Hindu and atheist couples will be just fine with that.
Even if they were adopted, such laws almost certainly would be struck down as unconstitutional. Nevertheless, they are instructive because of what they say about the conservative concept of religious freedom. John J. Kallam is a Baptist minister in North Carolina. He also served for 12 years as a magistrate judge in Rockingham County, in which capacity he officiated at numerous civil marriage ceremonies. Last October he quit after he was told he could not “opt out” of performing same-sex marriages.
“I felt, and still feel, that that is stepping on my right of religious freedom,” said Kallam. He brought up the matter of a Sikh soldier in the U.S. Army who successfully argued that religious freedom gave him the right to wear a turban and grow a beard, as mandated by his faith. Kallam asked why he should not have the freedom to act on the basis of his faith as well.
Let’s take Kallam’s argument seriously for a moment, in order to demonstrate why it is wrong to conflate these two examples as being equally deserving of legal protection under the framework of religious freedom. First, the Sikh-American soldier’s turban and beard are an act of expression that affects only himself, whereas a North Carolina magistrate judge refusing to perform a marriage directly affects other people, specifically by denying them a right that, as of last October 10, they possessed as citizens of that state. The soldier’s turban and beard do not violate anyone else’s rights, therefore they merit protection.
Religious freedom means that Kallam has every right to believe that marriage ought to be restricted to a man and a woman, or, for all I care, three men and a baby (whatever happened to Steve Guttenberg, anyway?). But Kallam cannot act on those beliefs–especially not as an officer of the state–if doing so would deny others their constitutional rights.
And this rejection of the clear distinction between expressing one’s faith and acting on it to discriminate against others is at the heart of the conservative concept of religious freedom. Last October, Gordon Klingenschmitt celebrated John Kallam for having stood up to “tyranny.” Klingenschmidt, by the way, also expressed the belief that LGBT activists “want you to disobey God so that you go to hell with them,” and added that the judges who declared bans against same sex marriage to be unconstitutional are “demonic judges who are imposing the devil’s law upon the people.”
Who is Gordon Klingenschmitt? A few weeks after making those statements on his “Pray in Jesus Name” television program, he won election and became a brand-new Republican state representative in Colorado. It’s a struggle between freedom and tyranny, folks.
In addition to pushing laws that would allow government officials to discriminate in the name of religious freedom, conservatives are also pushing laws that would allow private businesses to do the same thing, mostly in response to bakers, florists, and photographers who refused to provide services to customers putting on a same-sex marriage. According to Jim Campbell of the Alliance Defending Freedom, this is about “religious liberty.” He added, “we believe the Constitution protects the right of all citizens including business owners to live in a way consistent with their faith.” (Judges in Colorado, New Mexico, and Washington have already ruled against business owners in such cases. The business owner in the New Mexico case appealed to the Supreme Court, which declined to intervene.)
Along lines similar to Campbell and Kallam, South Carolina Republican State Sen. Lee Bright argued that laws allowing this kind of discrimination are not only right but constitutional because “we have similar language for folks that work in health care that don’t want to participate in abortions” due to their religious beliefs. At first glance, this might seem a potent argument. However, it’s little more than sleight of hand. Medical professionals are not allowed to say: “I perform abortions, but only for heterosexuals.” That would be discrimination, and that’s exactly what florists, bakers, and county magistrates would be doing if they provided their services to some, but not others.
Here’s the one I’d like to run by conservatives who talk about religious freedom in these terms: Think about someone whose religious beliefs state that women must not work outside the home. Now imagine that person having authority over hiring decisions at his job. Do his religious beliefs allow him to discriminate against a female candidate for a position? Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of both religion and sex. I’d like to see a conservative argue that religious freedom gives the man in this scenario the right to reject, out of hand, all women candidates seeking employment.
This is not about religious freedom. All Americans are guaranteed the right to their religious beliefs, the right to worship (or not) any deity they choose in the manner in which they choose. That is a bedrock principle of this country and progressives would fight tooth and nail to preserve it, should it ever be endangered. The thing is, it’s not in danger, other than from conservatives themselves, from people like Bryan Fischer, who last September said that all immigrants should be forced to convert to Christianity. Fischer remains connected to the American Family Association, an organization closely allied to the Republican National Committee.
It’s real simple. Conservatives think religious freedom gives them the right to discriminate on the basis of their religious beliefs. They’re wrong, because, to paraphrase Zechariah Chafee, their right to practice their religion ends where my nose begins.
By: Ian Reifowitz, The Blog, The Huffington Post, February 2, 2015
“Church And State”: Mike Huckabee’s Christian Sharia Law
Mike Huckabee is known as a former governor, an author, a onetime Fox News host, and as a possible contender for the 2016 Republican presidential nomination. And now we have a new way to describe Huckabee: Christian Wahhabist.
For those unaware, Wahhabism is a sect of Islam, primarily practiced in Saudi Arabia, which follows a very conservative interpretation of the faith. Wahhabis demand that their religious principles be imposed as the law of their country. And Huckabee, in an interview that aired Sunday on CNN, made it clear that on certain social issues, he too believes that his religious beliefs should be the basis for the laws of the state.
But before we get to that issue, let me start with the reason Huckabee’s interview came to my attention. Huckabee stated that his continued opposition to same-sex marriage is based on the Bible, and that he can’t “evolve” on the issue “unless I get a new version of the scriptures.” He then added that it would be comparable to “asking a Muslim to serve up something that is offensive to him or to have dogs in his backyard.”
Being a Muslim who has offered many times before to be people’s “Muslim friend,” and to answer their questions the best I could about the faith, Huckabee’s dog comment immediately caused some friends to reach out on social media. “Are Muslims religiously prohibited from owning dogs?” they asked.
The simple answer: no. Nowhere in the Quran does such a prohibition appear. However, there are mentions of dogs in the Hadith, which are the sayings and teachings of the Prophet Muhammad. Many Muslims view the Hadith as second only to the Koran in terms of being authoritative. But it should be noted that not all Muslims follow the Hadith and there are questions about the veracity of some of its passages.
In any event, there are passages in the Hadith that suggest dogs are “unclean”—but scholars note that was meant literally because it referred to dogs in the desert some 1,400 years ago. Consequently, some Muslims avoid dogs. But other passages of the Hadith say that Muslims can own working dogs, such as for hunting, farming, etc. And yet another passage notes that the Prophet Muhammad stated that God had forgiven a prostitute of her sins after she offered water to a dog in need of drink on a hot summer day. So, clearly, dogs are described in different ways in Islamic texts.
Bottom line: Many Muslims I know, including my own family, own dogs as pets. There was even a “Good Muslims Love Dogs” day in Canada few years back to counter bigots who urged people to taunt Muslims with dogs.
And regarding Huckabee’s remark that Muslims should not be required to serve food they find objectionable, my father was a cook and prepared pork for people daily. This was not a problem. In fact, there would only be a problem if the pork jumped off the plate and jammed itself into his mouth.
So Huckabee was wrong, but it’s not a big deal because he was clearly not trying to demonize Muslims as dog haters. But what is a big deal is his ludicrous argument that Muslims being asked to serve pork is the same as his desire to impose laws that bar gay Americans from getting married because it violates his religious beliefs.
Marriage, as our courts have found many times in the past, is a “fundamental right.” And there’s absolutely no comparison between that important right and the serving or not serving of pork.
Huckabee then gave us another baffling comment during his CNN interview. While complaining about courts striking laws that banned gay marriage, he stated, that “we don’t change laws because some people in a black robe just decide” an issue.
Well, actually, that’s exactly what we do. Our nation’s Founding Fathers set up our system of government so that we have a separation of powers and the judicial branch would interpret the law. And if a law were found to be unconstitutional by the courts, it would be struck down. This is all pretty basic stuff.
Still not done, Huckabee then defended the prohibition on gay marriage in certain states by noting that sometimes 70 or 80 “percent of the state’s population have affirmed natural law marriage.” Translation: If a majority of people support discrimination, then the court should defer to the will of the people.
Well, in 1967, when the U.S. Supreme Court struck down state laws that made it a crime to enter into an interracial marriage in the seminal case of Loving v. Virginia, 73 percent of Americans supported such laws. In fact, it wasn’t until the mid-1990s that a majority of Americans finally approved of interracial marriage. So, if we followed Huckabee’s logic to its end point, then interracial married couples, like President Obama’s parents, should have been criminally prosecuted through the 1990s.
To be honest, Huckabee’s Wahhabist tendencies are nothing new. When he last ran for president in 2008, he argued that we “should amend the Constitution so it’s in God’s standards.”
What would be the reaction if a Muslim candidate for president (or even dog catcher for that matter) argued that we should amend our Constitution to agree with the Quran? The right wing in this country would explode. It would be all the Breitbart.coms of the world would talk about. But many of those same right-wing people who fabricate the claim that Muslims in America want to impose Islamic law have no problem when a Christian politician tells us point blank he wants to impose what is, in essence, Christian Sharia law.
The good news: Our First Amendment prohibits the establishment of any religion in our country, be it Christianity or Islam or anything else. That doesn’t mean people like Huckabee—just like Wahhabists in Saudi Arabia—won’t continue to advocate for their religious beliefs to be the law of the land. But in the United States at least, our laws must be based on public policy considerations and the Constitution, not passages of religious text.
And thank God for that.
By: Dean Obeidallah, The Daily Beast, February 1, 2015
“Jurisdiction-Stripping”: Roy “Ten Commandments” Moore Is Back With His Constitution-Defying Tricks
Roy Moore, Chief Justice of the Alabama Supreme Court, best known for his flouting of the Establishment Clause for refusing, in 2003, to remove a 2.6 ton Ten Commandments monument from the Supreme Court building, is now questioning the jurisdiction of federal courts to decide the constitutionality of same-sex marriage bans.
After Moore was removed from the bench in that same year, he ran for governor several times and flirted with running for president. He won reelection to the Alabama high court in 2012.
Writing to Alabama Governor Robert Bentley today, Moore complains that last week’s federal court ruling striking down Alabama’s ban on same-sex marriage “has raised serious, legitimate concerns about the propriety of federal court jurisdiction over the Alabama Sanctity of Marriage Amendment.” In the letter, Moore warns that local clerks who issue marriage licenses to same-sex couples will be “in defiance of the laws and Constitution of Alabama.”
Moore is attempting to argue for jurisdiction-stripping, a maneuver to deprive a federal court (despite what is required in the Constitution itself) of the ability to decide questions of federal Constitutional law. Moore, of course, cannot do this unilaterally; like his Ten Commandments stunt, he would be in defiance of the federal Constitution with his antics. All his efforts, and all his appeals to religion, can’t change the simple fact that under the Constitution, federal courts, not state courts, decide matters of federal constitutional law.
But Moore believes the Bible trumps the Constitution (or at least his version of the Bible). As Julie Ingersoll has observed, “Moore’s underlying philosophy of law is that only God and the Bible can be the source of moral authority.”
This wouldn’t be the first time that Moore has attempted (utterly unsuccessfully, I might add) to shut down a federal court’s constitutionally-granted jurisdiction and authority over constitutional matters, as I noted in 2011:
After Moore was stripped of his judgeship for defying a federal court order to remove his monument, [his lawyer, Herb] Titus drafted the Constitution Restoration Act, which would have deprived federal courts of jurisdiction in cases challenging a government entity’s or official’s “acknowledgment of God as the sovereign source of law, liberty, or government.” The bill, which did not pass, nonetheless had nine Senate co-sponsors and 50 House co-sponsors; including House Majority Leader Eric Cantor, Bobby Jindal, now the governor of Louisiana, Nathan Deal, now the governor of Georgia, and Mike Pence, a conservative hero who’s now running for governor of Indiana.
Moore argues in his letter to Bentley today that “The laws of this state have always recognized the Biblical admonition stated by our Lord,” citing Mark 10:6-9 (“But from the beginning of creation God made them male and female. . . What therefore God hath joined together let not man put asunder.”)
When others, like Mike Huckabee, speak loosely of the Supreme Court lacking the authority to decide whether same-sex marriage bans violate the Constitution, it stems from the ideology of Moore and his ilk: that despite what the Constitution says, the Bible comes first. Something tells me, though, Moore’s new stunt won’t fare much better than his last.
By: Sarah Posner, Religion Dispatches, January 27, 2015
“A Bomb In The Middle Of The Presidential Campaign”: How Gay Marriage Could Cause The GOP Major Headaches In 2016
After yesterday’s dramatic ruling from the Supreme Court effectively legalizing same-sex marriage in 11 more states (that now makes 30, plus DC), you would have thought conservatives would be expressing their outrage to anyone who would listen. But their reaction was remarkably muted. “None of the top House GOP leaders (Speaker John Boehner or Majority Leader Kevin McCarthy) issued statements. Ditto the RNC,” reported NBC News. “And most strikingly, we didn’t hear a peep about the Supreme Court’s (non)-decision on the 2014 campaign trail, including in the red-state battlegrounds.” The only one who issued a thundering denunciation was Ted Cruz.
Even though the GOP’s discomfort with this issue has been evident for a while, with the unofficial start of the 2016 presidential campaign just a month away (after the midterm elections are done), the issue of marriage equality is going to become positively excruciating for them. Many people saw the Court’s denial of cert in the five cases they confronted yesterday as a prelude to the case they’ll eventually take, the one that will probably strike down all the state bans on same-sex marriage and make marriage equality the law of the land. That could happen in the Court’s current term, which runs from now until next summer. But it’s even more likely that it would come in their next term, the one going between October 2015 and the summer of 2016. If that happened, it would land like a bomb in the middle of the presidential campaign.
In a certain way, the GOP’s current dilemma is reminiscent of where Democratic presidential candidates were during the 2004 race, when the marriage issue burst into national attention after the Massachusetts Supreme Court declared in November 2003 that the state had to allow gay people to marry. Most of the candidates were unsure of what their position was or should be, trapped between the primary and general electorates. Howard Dean had been considered by many a wild-eyed liberal in no small part because as governor of Vermont he had signed a civil unions bill, even though he opposed full marriage rights. Before long, most of the Democrats running settled on that as their position too — civil unions yes, marriage no (the exceptions were Dennis Kucinich, Al Sharpton, and Carol Moseley Braun, all of whom supported marriage equality). None of them seemed to want to talk about it, and they were pulled one way by the general electorate, and another by the principle involved, and a party base that was moving to the left.
There’s a different quandary for today’s Republican presidential contenders. You have a general electorate supporting change, and a Republican base committed to the rapidly eroding status quo. And consider that the first three Republican contests are in Iowa, relatively moderate New Hampshire, and extremely conservative South Carolina, which happens to be one of the states affected by yesterday’s ruling. Ed Kilgore suggests that Iowa in particular is going to pose a challenge:
But the Iowa problem is real for Republicans: it became, because of a relatively early state judicial ruling allowing same-sex marriage, Ground Zero for conservative resistance to marriage equality. As recently as two years ago, I attended an Iowa political event, along with four or five former (and possibly future) presidential candidates, that was heavily focused on removing the judges responsible. I don’t think the majordomo of that event, Bob Vander Plaats (often called a “kingmaker” thanks to his timely support for the last two Iowa Caucus winners), is about to cave anytime soon. And so long as there is an opportunist or two in the presidential field who’s frantic for right-wing support (I’m looking at you, Bobby Jindal!), the odds of this issue being “off the table” in Iowa are very low.
Ed’s last point is critical. If all the candidates had a tacit agreement not to make too much of it, the issue might not be that big a deal. But all it takes is one who won’t go along to force all the other candidates to talk about it. And we already know that Ted Cruz, who will be bidding to be the choice of social conservatives, isn’t going to let it go.
Now put that in the context of the long-running conflict within the GOP between the Tea Party base and the more practical-minded establishment. When the party bigwigs are saying, “We really need to talk about something else,” the base is going to conclude that they are once again being betrayed by a bunch of elite Washington Republicans who are perfectly happy consorting with the sodomites who inhabit their metropolis of depravity.
Which, to a certain degree, is true. Many of those elite Washington Republicans may still write columns in support of “traditional marriage,” but they also regularly interact with gay people. They’ll come around before long, which will only make the base angrier.
The 2016 Republican primary was already shaping up to be a hugely entertaining bloodbath. This only makes it more exciting.
By: Paul Waldman, Contributing Editor, The American Prospect, October 7, 2014
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