August 5: The Pro-Choice Religious Liberty Argument
Always on the lookout for a new wrinkle on ancient battles, I drew attention to a recent legal development at New York:
Though the constitutional law of “religious liberty” is a murky field, we are all accustomed to hearing anguished claims from conservative Christians that laws requiring them to provide or pay for reproductive-health services or treat LGBTQ employees and customers equally are an unacceptable violation of their beliefs. Now that the Supreme Court has struck down the federal right to an abortion, it’s clearer than ever that the Christian right and its Republican allies are aiming to construct a system where they are free to live their values as they wish, regardless of the impact on others.
But as a new lawsuit in Florida shows, what’s good for the conservative goose may also be good for the progressive gander. A group of religious officials are arguing in state court that the new anti-abortion law enacted this year by Florida Republicans violates their right to religious expression. The Washington Post reports:
“Seven Florida clergy members — two Christians, three Jews, one Unitarian Universalist and a Buddhist … argue in separate lawsuits filed Monday that their ability to live and practice their religious faith is being violated by the state’s new, post-Roe abortion law. The law, which is one of the strictest in the country, making no exceptions for rape or incest, was signed in April by Gov. Ron DeSantis (R), in a Pentecostal church alongside antiabortion lawmakers such as the House speaker, who called life ‘a gift from God.’”
The plaintiffs in these suits most definitely want to rebut the idea that forced birth is the only authentically “religious” perspective on abortion services. After all, as United Church of Christ minister Laurie Hafner explains, the anti-abortion cause has little biblical sanction:
“Jesus says nothing about abortion. He talks about loving your neighbor and living abundantly and fully. He says: ‘I come that you might have full life.’ Does that mean for a 10-year-old to bear the child of her molester? That you cut your life short because you aren’t able to rid your body of a fetus?”
The legal theory in the lawsuits focuses specifically on the counseling of pregnant people and their families that clergy engage in routinely, and that under the new Florida law may be treated as the illegal aiding and abetting of criminal acts. Hafner’s suit alleges that this violates both federal and state constitutional rights, along with Florida’s version of the Religious Freedom Restoration Act (a 1993 federal “religious liberty” law):
“The dramatic change in abortion rights in Florida has caused confusion and fear among clergy and pregnant girls and women particularly in light of the criminal penalties attached. Given her general duties and work as a Pastor, Plaintiff intends to engage in counseling regarding abortion beyond the narrow limits of HB 5 and, therefore, risks incarceration and financial penalties.”
It’s unclear how this argument will fare in the courts. Conservative judges may stipulate that anti-abortion laws impinge on religious-liberty rights that are nonetheless outweighed by the state’s “compelling interest” in fetal life. But at least, for once, the judiciary and the public will have to come to grips with the fact that many millions of pro-choice religious Americans passionately oppose what is happening to our country in the name of “life.” During the run-up to this week’s resounding “no” vote on a constitutional amendment removing any hint of abortion rights in the state’s constitution, a Presbyterian Church in Kansas displayed a sign that read, “Jesus trusted women. So do we.” This was likely an allusion to the “Trust Women” motto of the famous Kansas abortion provider Dr. George Tiller, who in 2009 was assassinated in the foyer of the church in which he was serving as an usher. His legacy lives on in houses of worship and now in the courts.
Here’s another idea for reversing SCOTUS’ ruling on Citizens United v. FEC;
A diarist named Smintheus posted on unbossed.com a very quick and simply remedy for this power-grab by corporations;
Congress should prohibit any corporation from engaging in this new political spending if it has any non-American shareholders, or owners. Because after all, foreigners have no 1st amendment protections.
This brilliant idea was picked up by PLS who posted the diary “How to hoist the SCOTUS on their own petards!!!” on Daily Kos. This stroke of genius not only undoes SCOTUS’ treasonous decision, it seriously weakens the hold corporations CURRENTLY have over our democracy.
This is AN EXCELLENT way to punish SCOTUS and the Republicans for attempting a coup of our government on behalf of corporations.
Here is the statute upon which the tactic succeeds;
U.S. Code § 441e. Contributions and donations by foreign nationals
(a) Prohibition
It shall be unlawful for—
(1) a foreign national, directly or indirectly, to make—
(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election;
(B) a contribution or donation to a committee of a political party; or
(C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 434 (f)(3) of this title); or
(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.
(b) “Foreign national” defined
As used in this section, the term “foreign national” means—
(1) a foreign principal, as such term is defined by section 611 (b) of title 22, except that the term “foreign national” shall not include any individual who is a citizen of the United States; or
(2) an individual who is not a citizen of the United States or a national of the United States (as defined in section 1101 (a)(22) of title 8) and who is not lawfully admitted for permanent residence, as defined by section 1101 (a)(20) of title 8.
Here is the above mentioned section 434 (f)(3)
3) Electioneering communication
For purposes of this subsection—
(A) In general
(i) The term “electioneering communication” means any broadcast, cable, or satellite communication which—
(I) refers to a clearly identified candidate for Federal office;
(II) is made within—
(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or
(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and
(III) in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate.
(ii) If clause (i) is held to be constitutionally insufficient by final judicial decision to support the regulation provided herein, then the term “electioneering communication” means any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate. Nothing in this subparagraph shall be construed to affect the interpretation or application of section 100.22(b) of title 11, Code of Federal Regulations.
– end of code description –
Piecing together the most salient parts of the above statute, we have the following;
“It shall be unlawful for a foreign national, directly or indirectly, to make a contribution in connection with a Federal, State, or local election, or expenditure for an electioneering communication. The term “electioneering communication” means any broadcast, cable, or satellite communication which refers to a clearly identified candidate for Federal office, is made within 60 days before a general, special, or 30 days before a primary or preference election.”
The limiting phrase in this law is “which refers to a clearly identified candidate for Federal office.” Because the Citizens United v. FEC ruling refers to non-identified candidate communications, what Congress needs to do is extend this statute to include ANY elections-related communications. An example of why this extension seems very reasonable would be in order to prevent a foreigner from an oil producing country from bombarding U.S. television shows with ads that claim “Global warming is just a hoax; keep buying our oil.”
Smintheus’ solution seems very promising. We should explore it a bit further, and if it proves solid, quickly take action on it.
With their ruling in favor of Citizens United v. FEC, the Conservative members of the Supreme Court have committed treason far more dangerous and egregious than their having stolen the 2000 election for Bush. This time they have gone too far by handing our democracy to corporations. The way to remedy this treason is simple and straightforward.
The first step is for Congress to end or fix the filibuster rule so that Republican and Blue Dog Senators can no longer usurp majority rule in the Senate, and prevent the second step.
The second step is for Congress to create two new Supreme Court seats, increasing the total number of justices from nine to eleven. FDR failed in this in the 1930s because he tried to create SIX new justices, and because he was not facing as great an assault on our democracy as we are now. The American People would support Congress’s appointing these two new justices in order to preserve our democracy.
The third and final step is for someone to challenge the new ruling in the courts and have the suit move its way up to the Supreme Court. I’m not sure if that can happen before the Citizens United v. FEC decision allows corporations to hijack the 2010 election. If so, such a delay is not an acceptable option.
Until Citizens United v. FEC is overturned, Obama and the Democratic Congress have a course of action. According to the Constitution, the President is not bound by Supreme Court decisions. There is a famous instance when the Supreme Court rendered a decision and a president said something to the effect that; “Well, you’ve made your decision. Now try to enforce it.” I think it was FDR, but I’m not sure on that.
SCOTUS’ handing our democracy to corporations with this decision can and will, if we let it stand, defeat any and every major progressive initiative after the 2010 elections. If this decision stands, we risk losing both our Senate and House majorities.
We need to put aside every other initiative right now and concentrate our power on defeating this decision by advocating for Congress to end the filibuster, create two new SCOTUS seats, and then have the new SCOTUS reverse the decision. We need to alert the public about this assault on our democracy so that they will fully back Congress’s decision to end the filibuster in order to create the two new seats.
We cannot do everything at once. If we try to assume a business-as-usual approach and continue to work on many other initiative while also working on this one, we risk failing. That is not an option we can afford.
WE NEED TO TABLE ALL OTHER INITIATIVES UNTIL WE GET THIS JOB DONE.
The vast majority of blog posts on all of the Liberal/Progressive sites for the next several weeks should be about getting this done. We should organize our efforts so that some blogs are focusing on some parts of this, and other blogs are focusing on others. We need to organize and fight like our democracy depended on it, because it does.