Conservative Supreme Court Justice Antonin Scalia is again raising conservative media talking points in court, advancing the debunked idea that the definition of marriage has remained unchanged for a "millennia."
On April 28, the Supreme Court heard oral arguments in Obergefell v. Hodges, a case that will determine whether state bans on same-sex marriage are unconstitutional. During arguments, the conservative justices, including Scalia, expressed concern about "redefining" the institution of marriage to include gay couples. In one exchange with Mary Bonauto, the lawyer representing the same-sex plaintiffs, Scalia wondered if it was appropriate for the court to "decide it for this society" since marriage has applied only to heterosexual couples "for millennia."
The idea that the definition of marriage has had a fixed tradition or definition "for millennia" is untrue, although right-wing media have pushed that notion in varying forms for years -- and Scalia's propensity for embracing right-wing talking points is well-known. In 2012, he repeated the idea that if the Affordable Care Act was upheld, the federal government might be allowed to force Americans to buy broccoli -- an argument borrowed from Rush Limbaugh's talk show. Earlier this year, Scalia claimed that if the court struck down the availability of health care subsidies, Congress would move quickly to fix the problem -- apparently convinced by right-wing media's false claims that Senate Republicans had a viable back-up plan if the court hobbled the Affordable Care Act. When the Supreme Court struck down Arizona's notorious anti-immigrant racial profiling law in 2012, Scalia dispensed with legal arguments to instead attack the unrelated deferred action program for DREAMers and scaremonger that the "state's citizens feel themselves under siege by large numbers of illegal immigrants." Professor Jeffrey Rosen of George Washington University said Scalia's commentary in that case "sound[ed] more like a conservative blogger or Fox News pundit than a justice."
National Review Online is calling on the Supreme Court to uphold states' rights to ban same-sex marriage because, in its view, recognizing marriage equality would redefine the institution to favor lesser "emotional unions" and adopted children over married procreation.
On April 28, the Supreme Court heard oral arguments in Obergefell v. Hodges, a case that could finally allow same-sex couples to marry in every state or, at minimum, require states that ban same-sex marriage to recognize the legality of same-sex marriages performed legally elsewhere. During arguments, Mary Bonauto, the lawyer representing the same-sex couples challenging state marriage bans, asserted that such bans "contravene the basic constitutional commitment to equal dignity" and that "the abiding purpose of the 14th Amendment is to preclude relegating classes of persons to second-tier status."
Several justices were receptive to Bonauto's argument, including conservative Justice Anthony Kennedy, who is widely expected to cast the deciding vote in the case.
But NRO is less convinced. In an April 28 editorial, the editors called on the justices to "refrain from taking [the] reckless step" of recognizing that the fundamental right to marry should be extended to gay couples. The editorial also rejected the idea that gay couples who can't get married are routinely denied the same dignity that "traditional" married couples enjoy, and argued that the "older view" of marriage -- which prioritizes "the type of sexual behavior that often gives rise to children" -- is "rationally superior to the newer one":
An older view of marriage has steadily been losing ground to a newer one, and that process began long before the debate over same-sex couples. On the older understanding, society and, to a lesser extent, the government needed to shape sexual behavior -- specifically, the type of sexual behavior that often gives rise to children -- to promote the well-being of those children. On the newer understanding, marriage is primarily an emotional union of adults with an incidental connection to procreation and children.
We think the older view is not only unbigoted, but rationally superior to the newer one. Supporters of the older view have often said that it offers a sure ground for resisting polygamy while the newer one does not. But perhaps the more telling point is that the newer view does not offer any strong rationale for having a social institution of marriage in the first place, let alone a government-backed one.
Fox News' Special Report cherry-picked Justice Antonin Scalia's religious freedom concerns from the Supreme Court's oral arguments on constitutional protections for same-sex marriage to question whether clergy may "be required to conduct same-sex marriages." But this selective reporting ignores the fact that Scalia's line of questioning was immediately debunked by his fellow justices as well as the pro-marriage equality lawyer.
On April 28, the court heard landmark arguments in Obergefell v. Hodges, a case that will decide whether the U.S. Constitution forbids states from banning same-sex marriages, or at least requires them to recognize same-sex marriages performed in states where it's legal.
During the April 28 edition of Fox News' Special Report, anchor Bret Baier highlighted a dubious line of questioning between Scalia and Mary Bonauto, the lawyer representing the same-sex couples, that suggested a ruling in favor of same-sex marriage would require clergy with religious objections to perform those ceremonies. Baier reiterated Scalia's question to The Weekly Standard's Stephen Hayes, who agreed and argued that a ruling in favor of marriage equality would leave religious liberties vulnerable:
BAIER: There's one more thing. If states license ministers to conduct marriages, would those ministers -- if it is constitutional -- then be required to conduct same-sex marriages?
HAYES: Right, and then you go to the religious liberty argument. I mean, this is one area where I think conservatives are shifting their focus now, in a sense almost conceding that the gay marriage debate for all intents and purposes in the political realm is over, but can they sort of protect those religious liberties that, you know, certainly I would argue that the founders intended.
Bill O'Reilly has called on Supreme Court Justices Ruth Bader Ginsburg and Elena Kagan to recuse themselves from the upcoming marriage equality cases -- even though neither justice has confirmed how they will rule. But in 2006, the Fox News host took the opposite position when it came to Justice Antonin Scalia, despite the fact that O'Reilly admitted a speech the conservative justice gave on a pending case made it "obvious" how he would vote.
On the April 21 edition of The O'Reilly Factor, O'Reilly complained that, because Justices Ginsburg and Kagan had officiated four same-sex marriages, "these ladies have to recuse themselves." Even though neither justice has spoken specifically on the merits of the same-sex marriage cases -- a situation that could trigger a need for a recusal -- O'Reilly nevertheless claimed that they were "not impartial" due to their participation in same-sex wedding ceremonies, and that their refusal to step down "is what unlimited power looks like." The following night O'Reilly doubled down at the end of his show, and described the logic of a viewer who agreed with him as "impeccable," declaring the liberal justices' acts a "blatant conflict of interest."
But O'Reilly felt quite differently about the standards of recusal in 2006, when he claimed that only the "nutty left" wanted Scalia to recuse himself in Hamdan v. Rumseld, a case brought by a Guantánamo Bay prisoner who argued that his detention after 9/11 violated his rights under military and international law.
With the Senate poised to finally vote on Loretta Lynch, President Obama's widely praised pick to replace Eric Holder as attorney general of the United States, National Review Online is repeating tired and debunked excuses as it calls on Senate Republicans to "defeat" her nomination.
After waiting far longer than almost every other attorney general nominee in history, Senate Republicans will finally bring up Lynch's confirmation for a vote on April 23. Although there are no legitimate problems with the highly-qualified Lynch herself, her confirmation was still held up for months by the GOP as they blocked an up-or-down vote, even when it was apparent she could be confirmed. This obstruction -- fueled in part by right-wing media smears -- continued interminably despite the fact that Senate Majority Leader Mitch McConnell (R-KY) promised in November that Lynch would "receive fair consideration by the Senate."
Senate Republicans, as well as right-wing media, have struggled mightily to find a substantive reason to oppose Lynch's nomination. After a few false starts, they finally settled on the fact that Lynch -- along with hundreds of legal experts as well as the Justice Department's Office of Legal Counsel -- believes that the president's executive actions on immigration are "reasonable," and has publicly said so.
NRO in particular has been vocal -- and inaccurate -- in its disdain for Lynch, and its latest editorial is more of the same. In an April 22 post, the editors complained that Lynch was no different than the "wildly partisan" Holder, and that "Republicans should vote her down" because it "would be a forceful rebuke to the president." The editorial went on to falsely claim that the president's immigration actions were illegal because they "offer positive benefits" to undocumented immigrants:
But there is little indication that Ms. Lynch would be much better -- and, at a minimum, the top law-enforcement officer should be committed to the law. Yet during her confirmation hearings before the Senate Judiciary Committee, Ms. Lynch endorsed the president's lawless November executive amnesty, and indicated that she had no concerns about the precedent it sets for future abuses of power by this or other presidents.
That the legal argument for the president's amnesty is weak is understating it. Unlike the previous amnesties he cites as precedent, the president's Deferred Action for Parental Accountability, or DAPA, is not responding to a particular crisis but is simply the enactment by fiat of his own political wishes. Furthermore, unlike those previous amnesties, the president's offers positive benefits (e.g., work permits) to millions of Americans in the country illegally. Even the administration admits that the order must be executed on a "case-by-case basis," but the number of affected individuals -- somewhere around 5 million -- shows it is simply a new dispensation for an entire class of immigrants. And, of course, for years the president himself maintained that such a sweeping act would be outside his constitutional authority. Ms. Lynch apparently is bothered by none of this.
In the lead up to next week's landmark Supreme Court hearings on the constitutionality of marriage equality, Fox News' Bill O'Reilly is amplifying a fringe -- and absurd -- right-wing campaign calling on Justices Ruth Bader Ginsburg and Elana Kagan to recuse themselves because they have officiated same-sex marriages. But these actions, along with Ginsburg's comments noting the American public is rapidly turning against anti-LGBT discrimination, are not grounds for legitimate recusal.
In January, the American Family Association (AFA) -- a notorious anti-gay hate group -- announced a campaign titled, "Kagan and Ginsburg: Recuse Yourselves!" In a statement, the AFA, best known for its infamous anti-gay spokesman Bryan Fischer, called on the justices to recuse themselves ahead of next week's oral arguments before the Supreme Court on same-sex marriage. The group argued that Kagan and Ginsburg "should recuse themselves from making any same-sex marriage decisions because they have both conducted same-sex marriage ceremonies."
On April 20, Fox legal correspondent Shannon Bream twice reported on "public calls, petition drives, and appeals directly to Justices Ginsburg and Kagan to recuse themselves from hearing next week's case on same-sex marriage." During Fox News' Special Report, Bream pointed to the justices' past history officiating same-sex weddings and a February 2015 interview during which Ginsburg said that it "would not take a large adjustment" for Americans to get used to nationwide marriage equality. On April 21, Fox News' Bill O'Reilly picked up the argument in his "Is It Legal" segment on The O'Reilly Factor, declaring "these ladies have to recuse themselves," because "[t]he Supreme Court is supposed to be an incorruptible institution, but reports say Judge Ruth Bader Ginsburg has herself performed three gay marriages, and Justice Elena Kagan, one":
Recent news reports on Republican presidential candidates' current support for pre-viability bans on abortion after 20 weeks have failed to mention that such bans are clearly unconstitutional, and have been repeatedly struck down as such by the courts.
It's no secret that the likely candidates for the Republican 2016 presidential nomination are extremely anti-choice. Sen. Rand Paul (R-KY) was recently in the news for his sponsorship of "personhood" bills that would legally define life at conception, rendering abortion and some forms of birth control the criminal equivalent of murder -- perhaps even without exceptions for rape or incest. With less attention, Paul's potential primary opponents have also staked out far-right positions on American women's access to abortion, and recent reporting indicates their consensus position is coalescing around pre-viability 20-week abortion bans. In addition to Paul, former Florida Governor Jeb Bush, New Jersey Governor Chris Christie, Sen. Ted Cruz (R-TX), and Sen. Marco Rubio (R-FL) are all reportedly on board with these bans, despite the fact they flout decades of Supreme Court precedent protecting the constitutional right to abortion.
In reporting on these candidates' current lockstep for bans on abortion, however, mainstream media outlets are neglecting to mention that these 20-week measures are blatantly unconstitutional -- despite the fact that some of these same candidates repeatedly emphasize their fidelity to the "rule of law" and the U.S. Constitution.
In a recent article about Wisconsin Gov. Scott Walker (R), who has yet to officially announce his candidacy, The New York Times noted that Walker's newfound support for a 20-week abortion ban was a "shift in emphasis and tone," but never discussed the constitutional flaw in such bans. USA Today, The Boston Globe, and The Los Angeles Times omitted the same fact in their political coverage of Walker's position on reproductive rights, with the LA Times choosing to describe a 20-week ban in terms of a "sharper-edged tone" rather than the unconstitutional measure it is.
The trend culminated in an April 17 Politico article that called 20-week abortion bans the "new litmus test" for all Republican candidates. While Politico detailed how anti-choice groups are lobbying Republicans to "make 20-week abortion ban[s] a centerpiece of their campaigns," the article never once noted that those bans are unconstitutional.
In its analysis of an unprecedented change to how the chief justice of the Wisconsin Supreme Court is selected, The Wall Street Journal ignored the significant financial contributions a right-wing group made in support of the move, which would strengthen conservative control of the court before it examines possible illegal campaign coordination between that same group and Wisconsin Gov. Scott Walker (R). Instead, the editorial board focused on the fact that the current chief justice has a lawyer who is on the board of directors of a judicial election reform group founded by George Soros.
On April 7, voters in Wisconsin approved a constitutional amendment that changed how the state supreme court picks its chief justice. For the past 126 years, the longest serving justice on the bench was automatically selected to act as chief justice. After passage of the new amendment, which was supported by Republican lawmakers in the state and boosted by hundreds of thousands of dollars in independent spending from conservative groups, the court itself will now elect which justice they want to serve as chief.
The conservative majority of the court is expected to replace current Chief Justice Shirley Abrahamson, a liberal, with one of their own.
But in an April 9 editorial, the Journal failed to mention the conservative support for the amendment and the influence outside spending had on the outcome of the vote, and instead attacked Abrahamson for filing a lawsuit challenging the constitutionality of the new amendment. The editorial went on to add that her "lawyer is Robert Peck, a member of the board of directors of George Soros's Justice at Stake. The group wants to end state judicial elections and replace them with nominating commissions that allow state bar associations to hand-pick judges."
As media outlets across the political spectrum continue to assess the implications of Sen. Rand Paul's (R-KY) contentious behavior toward reporters, much of the analysis does not explore what irritated the presidential candidate in two recent interviews -- the observation that support for unconditional abortion bans and fetal "personhood" laws cannot be reconciled with support for exceptions for victims of rape or incest.
Almost immediately after announcing his candidacy, Paul's condescending behavior toward female reporters was widely criticized as sexist, when he "simplistically and condescendingly" refused to acknowledge his reversal on foreign policy toward Iran to Today Show host Savannah Guthrie -- a position that even the conservative National Review's Rich Lowry labeled a "flip-flop." Subsequent coverage of Paul's Today interview focused on his rudeness toward Guthrie, and even when outlets also noted he "bristled" and "ducked questions" in other interviews about his inconsistent record on exceptions to abortion bans, the extent of that contradiction was unexplored.
The questions about his support for abortion ban exceptions originated in an interview with the Associated Press on the same day as his Today interview, when Paul "dodg[ed] a central question about abortion: What exceptions, if any, should be made if the procedure were to be banned?" Paul's refusal to answer whether or not his broad support for abortion bans includes an accommodation for rape, incest, or the health of the mother continued on CNN's The Situation Room. In one exchange, Wolf Blitzer directly asked whether Paul supported an exception for victims of rape and incest. In response, Paul claimed that "there will be extenuating circumstances, and I've supported legislation both with exceptions and without exceptions":
Right-wing media have falsely suggested that the civil rights protections in Indiana's "religious freedom" bill force business owners to endorse messages that they share serious ideological disagreements with. But a recently-decided discrimination case in Colorado debunked this argument, differentiating between discrimination on the basis of ideology and discrimination on the basis of membership in a protected class.
On April 2, Indiana Gov. Mike Pence (R) signed an anti-discrimination amendment to his state's controversial Religious Freedom Restoration Act (RFRA) after facing widespread criticism due to the law's potential to authorize anti-LGBT discrimination. To address that danger, the amended law explicitly prohibits individuals and business owners from invoking RFRA to deny services on the basis of sexual orientation or gender identity.
Right-wing media were quick to criticize Pence, arguing that the amendment "gutted" the state's RFRA and claiming that the revision would "force" the devout to violate their religious beliefs by holding them accountable to generally applicable civil rights protections. A number of conservative media outlets like The Wall Street Journal took this argument further, falsely claiming that forcing religious business owners to abide by anti-discrimination laws would also "compel" them to serve customers with "politically unacceptable thoughts":
For that matter, should a Native American printer be legally compelled to make posters with an Indian mascot that he finds offensive, or an environmentalist contractor to work a shift at a coal-fired power plant? Fining or otherwise coercing any small number of private citizens -- who aren't doing anyone real harm but entertain politically unacceptable thoughts -- is thuggish stuff.
But a recent "religious discrimination" case from Colorado illustrates how this hypothetical betrays a fundamental inability to understand that the RFRA debate was over discrimination against gay people, not gay "thoughts."
After spending over a week denying that Indiana's "religious freedom" law could be used for anti-gay discrimination, Fox News is now contradicting itself by arguing that the law has been "gutted" by new language that prohibits business owners from using it to discriminate.
On March 26, Indiana Gov. Mike Pence (R) signed the state's Religious Freedom Restoration Act (RFRA) into law. The measure initially provided a legal defense for those who refused to serve gay customers on religious grounds and sparked a widespread and bipartisan backlash across the country. Criticism of the measure eventually forced Pence and Indiana Republicans to agree to change the law. On April 2, Indiana's RFRA was amended to prohibit its use for individuals and business owners who discriminate on the basis of sexual orientation or gender identity.
Fox News did not respond happily to the change.
On the April 3 edition of Fox & Friends, hosts Elisabeth Hasselbeck, Brian Kilmeade, and Tucker Carlson dedicated two segments to criticizing the law's amendment, decrying the lack of "moral courage" on the part of Pence and claiming the bill had been "gutted" by adding anti-discrimination protections for LGBT people. Carlson stated that he couldn't "make any sense of [the amendment] at all, it seems like the law has been completely gutted. It says specifically you can't use this law in court as a defense against denying service on the basis of your religious faith. So like, what's the point of the law in the first place?"
Right-wing media are continuing to defend Indiana's newly-enacted Religious Freedom Restoration Act (RFRA) and dismissing concerns that the law could provide cover for religious individuals or business owners intent on discriminating against LGBT customers. In fact, RFRA has been used as a defense against discrimination claims in the past, New Mexico's version was used against a gay couple just recently, and supporters of these expanded forms of RFRA have explicitly pointed to anti-gay sentiment as their intent.
Since the passage of Indiana's RFRA, right-wing media have erroneously claimed that criticism of the law is overblown, because it does nothing more than mirror the federal version of RFRA and RFRAs in other states. But Indiana's law is more expansive than other versions because it provides a legal defense to both private individuals and for-profit businesses in lawsuits even where the government is not a party, and unlike several other states who have passed RFRAs, Indiana lacks a statewide law that protects LGBT residents from discrimination.
Conservative media figures like National Review's Rich Lowry have also argued that Indiana's RFRA will not be used as a license to discriminate against LGBT customers because if RFRA laws "were the enablers of discrimination they are portrayed as, much of the country would already have sunk into a dystopian pit of hatred." Right-wing radio host Hugh Hewitt also downplayed the potential legal ramifications of Indiana's law, claiming on his show that the federal version of RFRA has "been the law in the District of Columbia for 22 years [and] I do not know of a single incident" of the law being used to discriminate against gay people. He did not address the fact that it is the newer state versions that have sparked the current outrage.
On the March 31 edition of Fox News' Fox & Friends, co-host Steve Doocy made a similar argument in an attempt to pretend fears of the law's discriminatory effects were baseless, claiming that Indiana's RFRA is not "anti-gay" because it has "never not once" been used as a legal defense by religious business owners accused of anti-LGBT discrimination:
Editorial boards in states with Republican senators are condemning their representatives for refusing to allow an up-or-down vote on Loretta Lynch, President Obama's highly-qualified pick to become the next U.S. Attorney General, despite bipartisan support for her nomination.
The Wall Street Journal editorial board is flip-flopping on its acquiescence to President Obama's highly-qualified and noncontroversial nominee for attorney general, and is also calling for Republican senators to go even farther and extend their obstruction of Loretta Lynch to "all of his appellate nominees until he stops abusing his power."
Right-wing media have struggled to find a substantive reason to object to Lynch, an experienced United States attorney who has received bipartisan acclaim for prosecuting terror suspects, human traffickers, and police brutality cases. Lacking any legitimate complaints about Lynch's widely praised record, conservative media figures like National Review's Rich Lowry have instead complained that Lynch, unsurprisingly, agrees with the president on key legal issues. On the March 22 edition of NBC's Meet The Press, Lowry doubled down on this absurd new standard, and insisted that until the president nominates an AG that thinks he broke the law, "so be it -- it's nothing against her personally, I don't care if she's Eliot Ness, the Senate can't do this."
In contrast, the editorial board of the Journal originally recognized the noncontroversial nature of Lynch's nomination, and concluded last November that "Republicans have enough high priorities in the next Congress that the bar should be high for challenging non-judicial nominees who seem to be qualified and honest." But in a March 22 editorial, the Journal switched gears and joined the campaign to prevent a vote not only for Lynch, but for all future circuit court nominees as well:
These columns believe that Presidents deserve their cabinet nominees in nearly all cases, but Mr. Obama's governance presents Congress with a larger Madisonian dilemma.James Madison designed a constitutional system of checks and balances to prevent executive or legislative tyranny. This works best when Presidents and Congresses assert their legal powers but step back from constitutional excesses that lead to judicial intervention or political crises.
The Lynch hold signals that the GOP Senate should consider using its advice and consent power more aggressively -- as a constitutional response to Mr. Obama's unconstitutional abuse of his executive authority. In her confirmation hearings Ms. Lynch defended Mr. Obama's executive order on immigration, which is a fair reason to vote against her, though Mr. McConnell and other Republicans should explicitly repudiate the false racial charge on the Senate floor.
The more fruitful area for resistance may be on Mr. Obama's appellate-court nominees, as Curt Levey recently argued on these pages. Simply refuse to confirm all of his appellate nominees until he stops abusing his power. This would be proportionate political justice after Messrs. Obama and Reid broke Senate rules to pack the D.C. Circuit Court of Appeals last year.
National Review editor Rich Lowry is painting Loretta Lynch, President Obama's nominee to be the next attorney general, as a controversial pick who should "never be confirmed," because she has suggested that the president's executive actions on immigration are lawful. Not only is Lowry's analysis of the legality of the actions contradicted by experts, his erroneous description of such prosecutorial discretion as "executive action" has been debunked, and presidents generally do not nominate chief enforcement officers who promise to go after their sponsor.
Right-wing media have been hard-pressed to find a legitimate reason to oppose Lynch's nomination, instead relying on specious attacks and, in one instance, going after the wrong Loretta Lynch. Lowry's March 18 op-ed for Politico was likewise devoid of any substantive critiques of Lynch's legal positions or her qualifications. Still, Lowry argued that Senate Republicans should "never" confirm Lynch because she believes -- as is the wide consensus among legal and immigration experts -- that the president's executive actions on immigration, a modified Deferred Action for Childhood Arrivals (DACA) and a new Deferred Action for Parental Accountability (DAPA), are lawful.
As all the Republicans opposing her nomination make plain, the issue is her belief that President Barack Obama's executive amnesty is lawful.
This isn't a mere matter of policy or personal preference. It implicates her view of the constitutional order that she will be sworn to uphold. Whether she thinks the executive branch can in effect write laws on its own is a threshold question. Her answer in the affirmative should be disqualifying, no matter how impressive her career has otherwise been, or how historic her confirmation would be.
On the merits, when should Republicans bring her up for a vote -- now delayed because Democrats are filibustering a sex-trafficking bill? Never. When should they confirm her? Never.
The Senate shouldn't confirm any attorney general nominee, from whatever party, of whatever race, ethnicity or gender identification, who believes the president can rewrite the nation's laws at will.