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.
Fox News' Special Report promoted "GOP alternatives" proposed by Republican presidential hopefuls that would supposedly replace the Affordable Care Act if the Supreme Court strikes down the law's health insurance tax credits. But Fox's flagship program glossed over the fact that the GOP alternatives would not repair the damage and leave millions of Americans without health care coverage.
On March 4, the U.S. Supreme Court heard the opening arguments of the King v. Burwell case. The case involves whether the language of a subclause in the ACA, "Exchanges established by the State," could prevent the IRS from providing tax credits to consumers who purchased insurance over the federal exchange.
During the March 11 edition of Special Report, Fox senior political correspondent Mike Emanuel highlighted "alternatives" proposed by GOP presidential contenders. The proposals ranged from former Florida Gov. Jeb Bush's plan to shift health care choice back states, to Texas Sen. Ted Cruz's plan to repeal ACA:
But none of the plans promoted by Fox proposed a way to help the millions of Americans left without a way to purchase affordable health insurance. As US News & World Report's Robert Schlesinger writes, the GOP "has yet to produce a plan encompassing the latter half of their 'repeal-and-replace' mantra."
Nevertheless, despite the lack of a solution for this potential human and economic disaster, right-wing media continue to baselessly pretend there is a fallback plan in the event this attack on the ACA is successful.
A RAND Corporation study released in February found that, if the Court rules against the federal exchanges, 8 million people would lose their coverage, and unsubsidized health insurance premiums would increase by 47 percent.
Conservative media outlets hyped a misleading Breitbart report on an "Islamic Tribunal using Sharia law" in Texas to fear monger that the tribunals could supersede federal law. But the tribunals are completely voluntary and do not override federal law.
Five years after the Supreme Court opened the floodgates of campaign spending with its Citizens United decision, top newspapers in the three states with the most expensive judicial campaigns, Ohio, Alabama, and Texas, have largely failed to connect Citizens United with major changes in these races. The influx of money into state judicial elections following the decision has accelerated negative advertisements and campaign financing that may influence judges' decisions.
From the January 18 edition of Fox Broadcasting Co.'s Fox News Sunday:
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This January marks the fifth anniversary of Citizens United v. FEC, the 2010 Supreme Court case that expanded the idea of "corporate personhood" by ruling that the First Amendment protects a corporation's right to make unlimited expenditures in support of political candidates as a form of speech. Network news coverage of its legal impact, however, has largely ignored how the Supreme Court continues to aggressively expand the decision.
This expansion of corporate rights has wide-ranging consequences, even outside of the context of campaign finance deregulation. The court's decision in Burwell v. Hobby Lobby, for example, seemed to embrace the idea that corporations are capable of morally objecting to contraception coverage, co-opting yet another constitutional right -- that of religion -- that had previously been reserved for people, not businesses.
In terms of election law, the conservative justices further dismantled campaign finance restrictions in 2014's McCutcheon v. FEC, which struck down aggregate campaign donation limits and allowed wealthy donors to contribute money to a virtually unlimited number of candidates and political parties. The court will hear yet another campaign finance case on January 20 called Williams-Yulee v. the Florida Bar, which could strike down a Florida rule that prohibits judicial candidates from directly soliciting money from donors -- a rule that was put in place in response to a serious corruption scandal that resulted in the resignations of four Florida Supreme Court justices.
Yet despite the cascade of decisions from conservative justices intent on dismantling campaign finance regulations and rewriting corporate rights -- and the majority of Americans who support a constitutional amendment that would overturn Citizens United -- the media have largely underreported this story.
Here are four graphics that illustrate this failure.
On January 20, the day before the five-year anniversary of Citizens United, the Supreme Court will hear yet another case that could roll back campaign finance restrictions, this time for judicial elections. Here is a media guide to some of the legal briefs filed by experts in that case, Williams-Yulee v. the Florida Bar, which warn that allowing judges to solicit campaign donations directly is a recipe for disaster.
The National Rifle Association's news show Cam & Company hosted an attorney to attack as "frivolous" and "irresponsible" a lawsuit filed against NRA corporate donor Bushmaster for making the gun used in the Sandy Hook Elementary School massacre.
On December 13, several Newtown families sued Bushmaster under a "negligent entrustment" theory for the gun manufacturer's role in putting an assault weapon into the hands of a gunman who killed 20 children and six educators at Sandy Hook Elementary School on December 14, 2012. The lawsuit also named Bushmaster's parent company, Remington Arms Company, as well as the seller and the distributor of the gun.
Steve Halbrook, an attorney who writes about the Second Amendment and other gun issues, joined Cam & Company on December 16 to repeatedly suggest that the lawsuit was "frivolous," call for the complaint to be dismissed, and argue that Bushmaster may be entitled to compensation for attorney's fees. Halbrook is also the author of a book that advances the ahistorical claim that gun restrictions were responsible for Hitler's rise to power and served as counsel for the NRA in the landmark Supreme Court case McDonald v. Chicago.)
During his appearance, Halbrook said that the plaintiffs -- who are family members of teachers and children who were killed at Newtown, as well as one survivor of the attack -- and their lawyers were "extremely irresponsible" to file the lawsuit.
Radio host and Fox News personality Sean Hannity applauded and seemingly claimed credit for a federal judge's district court ruling in Pennsylvania that found President Obama's executive action deferring deportation for millions of undocumented family members of U.S. citizens or lawfully permanent residents to be unconstitutional.
The Washington Post's Volokh Conspiracy blog reported that Judge Arthur Schwab, appointed to the federal bench by President George W. Bush, "declared aspects of President Obama's executive actions on immigration policy unconstitutional," in a first of its kind opinion that is already being criticized for reaching beyond its scope to decide a constitutional question not before it.
Upon hearing Schwab's opinion, Sean Hannity wasted no time claiming partial credit for the decision. On the December 16 edition of The Sean Hannity Show, he said of the ruling, "I gotta tell you something, it almost could've been written by me, because he makes the very arguments that I had been making the entire time."
Hannity's guest, Jamie Dupree, agreed that the ruling "echoes a lot of the arguments that Republicans have been making about these actions over the last few weeks."
In fact, the Republican arguments, promoted incessantly by figures like Rush Limbaugh and Hannity, have been rejected as baseless by most legal experts across the political spectrum and President Obama's recent actions have ample precedent in the past executive actions of former presidents like Ronald Reagan and George H.W. Bush.
From the November 18 edition of Fox News' The O'Reilly Factor:
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Fox News host Mike Huckabee advised Republicans to "grow a spine" and oppose marriage equality, blasting court rulings overturning same-sex marriage bans as "the betrayal of our Constitution."
During an October 7 interview with the anti-gay American Family Association's radio program, Huckabee said that he's "utterly exasperation with Republicans ... who have abdicated on this issue," and warned that he might leave the Republican Party and become an independent if the GOP stops fighting marriage equality. The former governor of Arkansas is reportedly considering a run for president in 2016.
Huckabee reiterated his criticism in the opening monologue of his October 11 Fox News show. Huckabee denounced the court decisions that led to same-sex marriage becoming legal in several more states, emphasizing that judges overruled "the collective votes of the people themselves" in a "betrayal of our Constitution." He concluded that he is "utterly disgusted" with Republican governors and other officials that complied with the court orders overturning same-sex marriage bans, arguing that they should "[g]row a spine, show a modicum of knowledge about the way we govern ourselves, and lead, follow, or get the heck out of the way."
From the October 12 edition of Fox Broadcasting Co.'s Fox News Sunday:
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