Right-wing media are misinforming about a recent Supreme Court injunction that allows the non-profit charity Little Sisters of the Poor to continue its objection to the Affordable Care Act's (ACA) contraception mandate, as they appeal a lower court opinion that rejected their legal challenge.
In its January 24 order, the Court pointed out that the ruling "should not be construed as an expression of the Court's views on the merits." In other words, the nuns haven't won their lawsuit -- the Court has not issued an opinion regarding whether or not their First Amendment rights have been violated. Interestingly, although the order stipulated that the nuns would no longer have "to use the [original] form prescribed by the Government," in order to register their objection, they still must "inform the Secretary of Health and Human Services in writing that they ... have religious objections to providing coverage for contraceptive services."
But this preservation of the status quo hasn't stopped right-wing media from framing the case as a big win for Little Sisters. In a January 27 segment on Fox's Special Report, host Bret Baier "chalk[ed] one up for David against Goliath." National Review Online at least acknowledged the meaning of the Court's order, but still crowed about the nuns' "big procedural victory." In a recent editorial, The Wall Street Journal went further, not only calling the case a "victory" for Little Sisters, but also a "rebuke to the Obama Administration's bullying conception of religious liberty":
[T]he permanent stay pending appeal, issued late Friday by the full Supreme Court with no recorded dissent, was rarer still -- and a rebuke to the Obama Administration's bullying conception of religious liberty.
The Little Sisters sued because they believe the form they must sign to supposedly exempt themselves from the mandate instructs others to provide contraceptives and abortifacients in their name, and thus violates their faith and the First Amendment. Nearly all of the lower courts that are adjudicating the 91 lawsuits challenging the rule gave religious organizations a reprieve, but the Tenth Circuit Court of Appeals did not for the Little Sisters.
The Justice Department also argued that this order of Catholic nuns who run a Colorado nursing home and hospice should be forced to comply. You might call it a war on religiously devout women.
2013 was an epic year of right-wing media misinforming the public on the health care debate, particularly on women's health issues. Ignoring women's health experts, conservative media spent this year stoking fears about everything from birth control to maternity care, ignoring science, distorting state and federal regulations, and demonizing women's health care options in the process. These are the top six scare tactics from 2013.
Conservative media outlets have repeatedly asserted that the Employment Non-Discrimination Act (ENDA) - federal legislation that would ban employment discrimination against LGBT workers - discriminates against Christian businesses, but a new report from PolitiFact has rated that claim "False."
On December 16, PolitiFact evaluated a fundraising email from the Traditional Values Coalition (TVC) which claimed that ENDA would unfairly punish Christian businesses. PolitiFact rated TVC's claim "false," noting that ENDA includes religious exemptions that are actually more generous than those contained in other federal non-discrimination laws.
PolitiFact also noted that non-religious businesses operated by religious individuals have to comply with the law regardless of the business owner's faith (emphasis added):
Under Title VII [of the Civil Rights Act of 1964], and therefore under ENDA, religious organizations, which need not be church-run, would be exempt. Additionally, all businesses with fewer than 15 employees are exempt, whether they're religious or not.
Nelson Tebbe, a professor at Brooklyn Law School who specializes in religious liberty, said ENDA's religious exemption exceeds Title VII's.
"It's broader because the religious exemption in Title VII only allows religious organizations to discriminate [against LGBT individuals] on the basis of religion," he said. But it doesn't allow religious groups to discriminate based on factors like an employee's gender or race.
So by permitting religious organizations to discriminate on the basis of sexual orientation and gender identity, ENDA allows them more flexibility than Title VII.
The bill's religious exemption indicates that churches, church-run initiatives and other religious businesses need not comply by employing people of all sexualities and gender identities. And there's no special negative treatment for Christians.
Businesses of any religion could qualify for the exemption. Individuals of any faith who oppose sexuality would have to abide by the law, so no religion is singled out.
We rate this claim False.
The myth that ENDA would discriminate against Christian businesses has been widely debunked, but that hasn't stopped the lie from gaining prominence among right-wing media outlets.
A senior attorney for Alliance Defending Freedom (ADF), a far-right legal organization beloved by Fox News personalities, cheered India's Supreme Court for reinstating that country's ban on gay sex, calling the decision a model for the United States. ADF's support for the decision came a week after Fox host Bill O'Reilly praised the group on-air.
On December 11, India's Supreme Court restored a colonial-era law banning "carnal intercourse against the order of nature." The ruling overturned a 2009 ruling by the Delhi High Court finding the law unconstitutional. Under the 1861 statute, gay sex is punishable by a fine and up to 10 years in prison.
Benjamin Bull, executive director of ADF Global, gave a December 12 interview with the news service of the anti-gay hate group the American Family Association and applauded the decision. Bull contrasted the Indian ruling with the U.S. Supreme Court's 2003 Lawrence v. Texas ruling overturning anti-sodomy laws:
"When given the same choice the Supreme Court of the United States had in Lawrence vs. Texas, the Indian Court did the right thing," says Bull, which was choose to "protect society at large rather than give in to a vocal minority of homosexual advocates."
The net effect is to protect the integrity of the family and by extension to protect traditional marriage.
In the Texas case, the state's high court struck down sodomy laws in a 6-3 decision that affected similar laws in other states.
The Texas case "laid the groundwork for the invalidation of traditional marriage by a number of courts subsequent to that," the attorney explains.
The Indian Supreme Court saw what had happened there "and was wise enough not to want to go down that road."
"America needs to take note that a country of 1.2 billion people has rejected the road towards same-sex marriage, and understood that these kinds of bad decisions in the long run will harm society," he adds.
The language of the Indian statute is identical to that found in many other current and former colonies of the British Empire, including Belize. In that country, ADF has supplied lawyers to defend the criminalization of gay sex.
Undisturbed by the group's rabidly anti-LGBT positions, Fox News has long maintained a cozy relationship with ADF. In an interview on his December 2 show, Bill O'Reilly effusively thanked ADF senior vice president Doug Napier for his group's efforts to combat the manufactured "War on Christmas." "God bless you, each and every one," O'Reilly gushed. Before O'Reilly's sycophantic interview, Fox News contributor Erick Erickson solicited donations for the group. Meanwhile, Fox reporters Shannon Bream, Megyn Kelly, and Elisabeth Hasselbeck have hosted ADF lawyers for one-sided interviews on the imagined dangers of anti-discrimination laws protecting LGBT people.
With the ADF giving its full-throated backing to the Indian court ruling and urging the U.S. to "take note" of the development, the organization has again demonstrated that its claims of "defending freedom" are little more than an Orwellian fraud. The question is whether Fox will continue to play along; and based on its track record, it seems the answer is yes.
Alliance Defending Freedom (ADF) is a Scottsdale, AZ-based legal group committed to rolling back the rights of women and LGBT people on the grounds of "religious liberty." The organization has played a leading role in combatting marriage equality and non-discrimination policies in the U.S. while working internationally to criminalize homosexuality. Despite its rabid anti-LGBT extremism, ADF receives reliably friendly treatment from Fox News.
Established as the Alliance Defense Fund in 1994, ADF's founders include such religious right leaders as Focus on the Family's James C. Dobson and Campus Crusade for Christ's Bill Bright. According to ADF's website, the organization changed its name to Alliance Defending Freedom in 2012 to highlight its "enduring mission to gain justice for those whose faith has been unconstitutionally denied in the areas of religious liberty, the sanctity of life, and marriage and family."
Headed by President, CEO, and General Counsel Alan Sears, staffed by more than 40 attorneys, and boasting an annual budget in excess of $30 million, ADF bills itself as "a servant ministry building an alliance to keep the door open for the spread of the Gospel by transforming the legal system." As part of its effort to remake the American legal system along quasi-theocratic lines, ADF has:
ADF's relentless legal campaign against LGBT equality led the Southern Poverty Law Center (SPLC) to describe the organization as "virulently anti-gay." SPLC proved instrumental in exposing an aspect of ADF's work that the organization chooses not to tout on its website - its international work to criminalize homosexuality.
Fox News repeatedly conflated the emergency contraceptive Plan B (also known as the morning-after pill) with abortion while covering two Supreme Court cases brought by companies that object to the Affordable Care Act's (ACA) birth control coverage benefits. However, experts agree that the morning-after pill is not abortion -- it prevents pregnancy but cannot stop pregnancy after fertilization takes place.
Fox News correspondent Shannon Bream misleadingly claimed that filling the vacancies on the second-most important court in the country was less pressing than filling seats in so-called "judicial emergency" jurisdictions, while ignoring how Senate Republicans have contributed to those emergencies.
In a November 25 segment on Special Report with Bret Baier, Bream suggested that, because the D.C. Circuit is not classified as a "judicial emergency," there is no reason to quickly confirm President Obama's highly-qualified nominees to that bench, such as Georgetown Law Professor Cornelia "Nina" Pillard:
BREAM: Critics say there is no reason for the president to insist these nominees, including Pillard, be approved as quickly as possible. Across the country there are four federal appellate courts so lacking in judges that there are, quote, "judicial emergencies." And this court, the D.C. Circuit, it's not one of them.
But the body that determines these "judicial emergencies," the U.S. Judicial Conference, has recommended that the D.C. Circuit retain its 11-judge complement, a capacity the current GOP filibusters are preventing.
In response to Senate Democrats invoking the so-called "nuclear option," right-wing media advanced a number of myths not only about filibuster reform, but about the qualifications of President Obama's nominees who have languished in the confirmation process. What right-wing media have ignored is that Democrats used the "nuclear option" only after unprecedented GOP obstruction prevented Obama's judicial and executive nominees from receiving an up-or-down vote.
Absurd smears against a highly-qualified judicial nominee for her support of family planning, sex equality, and conservative attempts to dismantle gender stereotypes made the jump from right-wing blogs to the Fox News Channel.
On November 25, Fox News' Shannon Bream correctly reported that the former Connecticut attorney general, among a wide collection of bipartisan legal experts, supports the nomination of the eminently qualified Georgetown Law Professor Cornelia "Nina" Pillard to the U.S. Court of Appeals for the D.C Circuit. Unfortunately, Bream proceeded to repeat right-wing media myths accusing Pillard of "radical feminis[m]" and hosted National Review Online contributor Carrie Severino to recycle the smears. From America's Newsroom, with co-host Martha MacCallum:
MACCULLUM: What are the critics saying that are opposed to her?
BREAM: Well they say she is way out of the mainstream and she deserves a lot of scrutiny. Here's a bit of what she has said when writing about abortion issue. Here's a quote from one of her articles: "Anti-abortion laws and other restraints on reproductive freedom not only enforce woman's incubation of unwanted pregnancies, but also prescribe a 'vision of the woman's role' as mother and caretaker of children in a way that is at odds with equal protection." Here's Carrie Severino of the Judicial Crisis Network.
SEVERINO: Nina Pillard is probably the most extreme judge that has been nominated for this court and possibly for any court in the country. She has a very radical track record as a law professor, really seems to view everything from a radical feminist perspective, down to thinking that abstinence education violates the Equal Protection Clause and feeling like women are being objectified as breeders in the country.
BREAM: She has used that word referring to women as breeders if they are forced to carry pregnancies that they don't want to have. But at this point it looks like there is no blocking her, it is likely she will take a seat on that very important court.
Since Pillard was nominated, she has been subjected to sexist, retrograde, and false accusations that her views on reproductive rights are not in the mainstream. In fact, they are based on decades-old constitutional law, including a decision written by arch-conservative former Chief Justice William Rehnquist.
For example, the quote that Bream yanked out of context from a 2007 academic article in which Pillard noted that "antiabortion laws and other restraints on reproductive freedom not only enforce women's incubation of unwanted pregnancies, but also prescribe a "vision of the woman's role" as mother and caretaker of children in a way that is at odds with equal protection[,]" is an explicit reference to the fact that justices on the Supreme Court have already incorporated equal protection principles into their reproductive rights precedent. Unmentioned by Bream, the quote was part of a discussion of the 1992 decision of Planned Parenthood of Southeastern Pennsylvania v. Casey, which reaffirmed the constitutionality of Roe v. Wade.
The notion that damaging gender stereotypes can be at the core of restrictions on reproductive rights is also based on long-standing constitutional precedent.
Fox News' Shannon Bream and Megyn Kelly continued the network's general defense of anti-gay discrimination in separate reports on a New Mexico Supreme Court ruling concerning a photographer who was sued after refusing to photograph a same-sex commitment ceremony. Bream omitted critical context from the court's decision while Kelly pondered its slippery-slope implications, tactics in keeping with Fox's history of inaccurate and offensive reporting on the case.
In August, the New Mexico Supreme Court ruled unanimously that Elane Huguenin -- owner of Elane Photography -- violated New Mexico's anti-discrimination law when she refused to photograph the commitment ceremony of a same-sex couple. Huguenin filed an appeal of the decision to the U.S. Supreme Court last week.
In the eyes of Special Report's Bret Baier, the central issue for the Court to consider in the case is "whether you must check your religious values at the door when you open a business," as he stated on the November 12 program. He then aired a package regarding the case by correspondent Shannon Bream, who did not explain the constitutional basis for the court's ruling, but instead cited only the concurring opinion's general reference to "the legal rights" of the same-sex couple.
The segment heavily featured the Huguenins' attorney, Alliance Defending Freedom (ADF) senior counsel Jordan Lorence. Lorence accused the court of dictating that "once you agree to enter the workplace, the marketplace, you surrender all your constitutional rights."
Despite Fox's suggestion otherwise, this case does not concern religious freedom. The court held that because Elane Photography chooses to offer services to the public, it is engaged in commercial conduct that can be regulated by the state, and so it must comply with the state's Human Rights Act. Just as these businesses may not discriminate based on race or gender, it is likewise a violation to discriminate based on sexual orientation:
We conclude that a commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the antidiscrimination provisions of the NMHRA and must serve same-sex couples on the same basis that it serves opposite-sex couples. Therefore, when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races.
The purpose of the NMHRA is to ensure that businesses offering services to the general public do not discriminate against protected classes of people, and the United States Supreme Court has made it clear that the First Amendment permits such regulation by state. Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable anti-discrimination laws.
Fox News lent credence to True the Vote's fearmongering over Obamacare and voter registration during the network's 2013 election night coverage, never acknowledging the extremist nature of the tea party group.
When signing up for health insurance on the HealthCare.gov exchanges created by the Affordable Care Act (ACA), customers are prompted with the option to register to vote. This is due to the 1993 National Voter Registration Act, which requires state agencies engaged in public assistance to offer voter registration services, including the state and federally-run exchanges.
According to True the Vote (TTV), an activist tea party group which describes itself as an election watchdog organization, the registration option will "corrupt" voter rolls and lead to "bogus voter registrations." As evidence, the group links to a report from Demos, a liberal think tank, detailing how many Americans could potentially register to vote because of the ACA. True the Vote's theory is that health care navigators like Planned Parenthood -- organizations that assist people in exploring their insurance options in the exchanges -- will use the registration information "in political activities."
A November 5 Special Report package treated True the Vote's conspiracy theory as a damning revelation. Host Bret Baier introduced the segment by saying, "The president's plan is not just about making sure everyone has insurance. There is also a not-so-subtle political objective."
Fox correspondent Shannon Bream then profiled True the Vote's concerns, featuring TTV president Catherine Engelbrecht's claims that "the implications of this are mind-blowing."
BREAM: Pursuant to the National Voter Registration Act, state agencies that provide public assistance are also required to give applicants the opportunity to register to vote. A number of states believe that includes the health care exchanges. ... The Demos document also stresses that navigators be trained to walk applicants through the voter registration process, but it's the navigators critics are worried about, saying groups with partisan agendas like Planned Parenthood shouldn't be handling voter information. True the Vote, which calls itself a citizen-led organization aimed at restoring integrity to the U.S. election system, says it's been unable to get any answers about how the voter registrations are being transmitted or verified. And worries about the potential for confusion.
What Fox never admits is that True the Vote is a discredited organization with a partisan agenda.
Fox News continues to falsely accuse the Employment Non-Discrimination Act (ENDA) of threatening religious liberty, asserting that the bill's broad religious exemptions simply won't be enforced by the Obama administration.
During the November 4 edition of Fox News' Special Report with Brett Baier, correspondent and pro-discrimination champion Shannon Bream discussed concerns about ENDA - which would bar employment discrimination on the basis of sexual orientation and gender identity - suggesting that the law might be used to punish religious employers:
BREAM: The stated goal of this legislation is to make sure that there's no discrimination in the workplace based on sexual orientation or gender identity. Now, both people who oppose and support the bill say they support that, that everybody should be treated with dignity in the workplace. Their fear is that this is going to get tricky for religious employers. Drafters of the bill say, 'Well, there are religious exemptions built in.' But as you can imagine, there are plenty of skeptics who say, 'Well, look how it's working out with the [Health and Human Services] HHS contraception mandate.' So they have worries.
In a report on the renewed judicial nominations struggle over three vacant seats on the D.C. Circuit Court of Appeals, Fox News' Shannon Bream incorrectly reported that the court was balanced evenly and that past Democratic opposition to highly controversial Republican judicial nominees is equivalent to the blanket obstructionism President Obama's nominees are currently facing.
Appearing on Special Report with Bret Baier, Bream advanced the right-wing myth that filling the vacancies on the D.C. Circuit would "tip the balance" ideologically and is unnecessary, given its "lighter" caseload. From the October 29 edition of Special Report:
BREAM: The problem is this is the D.C. Circuit Court. And what's important about it is it is the key appeals court for looking at federal regulations and federal agencies, things like the EPA, the IRS. So it's something that looks at administrative action that goes around Congress. So it is a real check on administrative power. Now, this is the court that looked at the NLRB recess appointments, those appointments that the president made to the National Labor Relations Board, and found them unconstitutional. So it's very important. It's balanced right now evenly between judges who were appointed by Republican presidents and Democratic presidents, so adding even one new nominee of the president to this court is going to tip the balance. By the way, four of the current Supreme Court justices served on this court. It's very important.
BRET BAIER: But Democrats rightly point out there are a lot of empty seats so why shouldn't they be filled?
BREAM: Yeah, there are three vacancies. The President has tapped three different lawyers to fill those seats, including one who is currently a judge in a lower court. And basically, there were vacancies back when President George W. Bush was fighting to fill these seats as well. Back then Democrats said the court doesn't have enough of a workload to justify filling all of these seats. It's what Republicans are saying now and they add the workload has gotten even lighter in the last eight years. One of the judges currently sitting on the bench said this, quote, "if any more judges are added now, there won't be enough work to go around." That's from one of the current folks who's on this court.
Bream's report on Republican obstruction of Obama's judicial nominees parrots repeatedly debunked right-wing talking points. Bream is correct that the D.C. Circuit Court is a significant part of the federal court system -- it is considered second only to the Supreme Court in terms of its impact on federal law. It is strange, then, that she would uncritically report on Republican efforts to prevent the court from operating at full capacity. Moreover, her characterization of Democratic opposition to George W. Bush's D.C. Circuit nominees is demonstrably false -- that opposition did not result in the elimination of any seats, and ultimately four of Bush's nominees were confirmed. And unlike Bush's judicial picks, President Obama's nominees have faced unprecedented obstruction from Senate Republicans.
Fox is accusing the Environmental Protection Agency of a "power grab" for proposing a rule to clarify the jurisdiction of the Clean Water Act. In fact, the new classification is based on sound science and intended to address years' worth of confusion surrounding the proper protection of the nation's waterways.
Newly-proposed guidelines would allow "greater consistency, certainty, and predictability nationwide by providing clarity in determining where the Clean Water Act (CWA) applies," per the EPA, specifically by incorporating recent research on the extent to which small streams and wetlands connect to larger bodies of water downstream. That research, which is under review by the EPA's Science Advisory Board, found that small streams, even those that only flow at certain times, "are connected to and have important effects on downstream waters," and that wetlands are similarly integrated, making them subject to CWA protection.
That is, unless you ask Fox News and Fox Business. This week, the networks have adopted the complaints of GOP lawmakers to claim that the EPA is only using the study to justify a "power grab." Lou Dobbs claimed on his show that the clarified jurisdiction represented "unprecedented control over private property" -- "maybe" extending to "mud puddles." And Fox News legal analyst Andrew Napolitano baselessly asserted on Fox & Friends that the study is "bogus" -- merely a rationalization to "regulate all bodies of water" and "control more behavior."
Despite these claims, the new EPA study did not provide the basis for regulating "all bodies of water" (or "mud puddles"). It found that the EPA and U.S. Army Corps of Engineers could evaluate small streams on a case-by-case basis to determine their impact downstream. The rule is necessary because the parameters of the CWA are currently quite muddled, as even conservative critics and industry lawyers have noted in the past. This process is in keeping with the March 2013 decision in Decker v. Northwest Environmental Defense Center, which re-affirmed nearly unanimously that federal agencies are granted a wide berth in interpretations of their own rules.
Fox News attacked efforts to restrict school bullying by describing them as attempts to limit conservative free speech and misrepresenting a study on the effectiveness of certain anti-bullying programs.
During the October 20 edition of America's News HQ, Fox's resident pro-discrimination crusader Shannon Bream invited Fox News contributor David Webb and radio host Mark Levine to discuss whether efforts to combat school bullying "suppress" conservative students' right to free speech: