Fox News is blasting Attorney General Eric Holder for allegedly telling state attorneys general that they don't have to enforce their states' gay marriage bans. In reality, Holder merely instructed the attorneys general that they don't have to defend such bans in court if they deem the laws unconstitutional.
It's unclear if Fox is misreading or simply willfully distorting what Holder actually said, but either way, the network is wrong.
Addressing the National Association of Attorneys General on February 25, Holder stated that if state attorneys general conclude that their gay marriage bans violate core constitutional principles like equal protection under the law, they're not obligated to defend those bans in court. Holder also explicitly stated that attorneys general shouldn't base such decisions on "policy or political disagreements" and should stick to legal analysis of the bans' constitutionality.
Holder's guidance doesn't mean that marriage equality bans won't be enforced while they're still in effect. However, an attorney general does have the option of refusing to defend laws that he or she believes won't survive judicial scrutiny. In such circumstances, other parties may then intervene to defend a law on the state's behalf. That's precisely what's currently happening in the court battle over Kentucky's same-sex marriage ban.
This isn't Fox News' first baseless attack on Holder when it comes to the defense of anti-gay marriage laws. It was only three years ago that Megyn Kelly asserted Holder had decided not to enforce the federal Defense of Marriage Act (DOMA) after the Obama administration dropped its defense of the law in court. But the administration kept enforcing DOMA as the law of the land until the Supreme Court struck down its core provision last summer.
Three years later, it appears that Fox remains unable - or unwilling - to get its facts right.
During a Fox News segment discussing the release of the Clinton presidency documents, conservative talk radio host Dana Loesch accused Hillary Clinton of strategically using her concussion to avoid testifying on Benghazi while instead vacationing in the Dominican Republic. But the State Department confirmed that neither of the Clintons traveled to the Dominican Republic in December 2012.
Thousands of documents from the Clinton White House were released on February 28, leading to a media frenzy that was mocked by Fox host Shepard Smith. Fox News Sunday anchor Chris Wallace also stated that "there's really no there there," predicting that unless something really incriminating appears, the papers will soon be forgotten.
Discussing the Clinton papers on Fox News' The Kelly File, guest host Shannon Bream implied that Hillary Clinton herself strategically cultivated rumors about her own health for her benefit. Loesch seized the opportunity to push the Benghazi hoax, accusing Clinton of taking a vacation to the Dominican Republic while using her concussion to avoid testifying before Congress about the Benghazi attack:
LOESCH: I campaigned for the Clintons when I was in college and I used to be a registered Democrat and I saw some of how the machine worked. And there are few women in politics that are as slick as Hillary Clinton. I may disagree with her on everything, but on this, she is very strategic. And so I keep going back as when they were getting ready to have the hearings on Benghazi, she had a concussion, but then she wasn't able to testify. And then a couple of days later she flew to the Dominican Republic and attended an event for Oscar de La Renta. So, could be strategic minor changes to get some empathy, we'll see.
"This is America!" With that call to jingoism, Fox News legal correspondent Shannon Bream gave voice to a disconcerting push to grant private businesses the right to discriminate.
Bream's moment of candor came after her guest, Bernie Goldberg, cogently explained that business owners operating on Main Street don't get to pick and choose whom they serve and whom they refuse to serve. Bream jumped in:
Why not? Why not? I mean, this is America. We all have freedoms. I mean, why would you want to do business with somebody, no matter what your personal issue was that they had with you, why would you want to force them to do business with you? Why not just go down the street and say, "I'm going to spend my money to somebody who supports me and is kind to me and wants to help me and provide these services for me."
"Corporations are people, my friend," Mitt Romney quipped on the campaign trail in 2012. Increasingly, loud voices on the right are agitating to make sure that corporations and private businesses are seen as religious people who can always discriminate against employees and customers based on their religious beliefs.
Sometime in the next four months, the Supreme Court is expected to issue a ruling determining in part whether corporations can deny their employees benefits based on religious liberty protections.
At issue is a provision in the Affordable Care Act requiring for-profit businesses that offer health insurance to include coverage for contraceptive care. Religious groups, rallying behind the owners of the Hobby Lobby chain of craft stores, challenged that provision, arguing that it violated the right of Christian business owners to practice their religion.
In part this is the logical outcome of the push on the right to be more permissive of discrimination in the private sector, which Bream eloquently laid out by shouting "America" and "freedom."
In 2010, Rand Paul came under fire for saying that he objected to laws that prohibited businesses from discriminating. "I think it's bad business to exclude anybody from your restaurant," he said, "but, at the same time, I do believe in private ownership." Paul expressed general support for the Civil Rights Act of 1964, but lamented the fact that it extended to private businesses, a core piece of the legislation. The market, Paul argued, would take care of businesses that chose to discriminate.
While Paul was excoriated for his remarks, they were embraced on the right. Fox Business host John Stossel bragged that he would "go further" than Paul, calling for a partial repeal of the Civil Rights Act and give businesses the right to discriminate:
Because private businesses ought to get to discriminate. And I won't ever go to a place that's racist, and I will tell everybody else not to and I'll speak against them. But it should be their right to be racist.
That hypothesis, that private businesses should have the right to discriminate and be punished by the marketplace, has played out in recent days in the debate over an anti-gay bill in Arizona that would have made it easier for businesses to discriminate against gay customers.
That fight came after months of Fox News pushing anecdotes about Christian business owners under siege by laws the kept them from forcing their religious views onto employees and customers.
"Jan Brewer, the governor of Arizona, vetoed religious freedom," Rush Limbaugh opined on his radio show. "And, naturally, Democrats and their media allies are cheering. Even some Republicans are praising Arizona. Meanwhile, our founding fathers more than likely are spinning in their graves at about 400 rpm."
The night Brewer vetoed the bill, Ilya Shapiro, a senior fellow at the libertarian Cato Institute, argued in support of the right for businesses to discriminate on MSNBC's All In: "But in terms of private businesses doing it on their own, I think they should have the freedom and individuals should have the freedom to associate how they want."
It's a point Rand Paul and John Stossel were making in 2010. It's a point that opponents of the Civil Rights Act have been making for 50 years. And it's a chilling reality that it's once again a prominent aspect of public debate.
From the February 27 edition of Fox News' The Kelly File:
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Right-wing media mischaracterized a recent Supreme Court case as evidence of executive overreach on the part of the Environmental Protection Agency (EPA), even though the challenged agency action was one where the EPA specifically declined to act as aggressively as the law allowed.
On February 24, the Supreme Court heard oral arguments in Utility Air Regulatory Group v. EPA, a case that could hinder the EPA's ability to regulate harmful greenhouse gases if polluting industry interests have their way. Right-wing media outlets like Fox News and The Wall Street Journal were quick to portray the case as an overextension of the EPA's regulatory authority. The WSJ editorial board -- whose disdain for clean air is well-documented -- accused the agency in a recent editorial of "crowbarring carbon into what it admits is an unworkable regulatory framework."
More recently, in a February 24 segment on Fox's Special Report with Bret Baier, legal reporter Shannon Bream framed the legal issue as "whether the agency had the right to literally rewrite" the Clean Air Act:
Fox News has spent the last several months championing anti-gay business owners who refuse to serve gay customers - depicting efforts to prevent discrimination as threats to religious liberty. Now, with several states debating bills that would legalize homophobic discrimination in business and employment, Fox News is now defending the extreme, anti-gay segregation policies it helped to create.
The push to legalize anti-gay discrimination first came to public attention on February 12, when the Kansas House of Representatives passed a bill authorizing individuals and businesses to refuse any services "related to, or related to the celebration of" any union - effectively allowing blanket protection for the denial of services to gay couples. After a storm of negative publicity, the State Senate has shelved the bill.
Similar bills have recently died in Idaho, South Dakota, and Tennessee, but the Arizona legislature has sent its own license to discriminate measure to Republican Gov. Jan Brewer's desk.
The wave of anti-gay segregation measures is the culmination of a concerted right-wing strategy, bolstered by Fox News, to cast anti-gay discrimination as an integral part of religious freedom.
Long before the public outcry over Kansas' license to discriminate bill, Fox threw its weight behind businesses whose owners refuse, ostensibly on religious grounds, to serve gay and lesbian couples - precisely the form of discrimination that conservative state legislators have sought to legalize.
As part of Fox's continued conflation of homophobia and Christianity, the network has repeatedly defended discrimination by anti-gay business owners as an essential part of religious liberty.
On December 10, Fox & Friends hosted Colorado baker Jack Phillips and his extremist Alliance Defending Freedom-affiliated attorney to discuss a court ruling that Phillips had violated the state's anti-discrimination law by refusing to serve a same-sex couple. The segment featured a graphic proclaiming "The Death Of Free Enterprise," while co-host Elisabeth Hasselbeck asked Phillips why he thought he shouldn't have to discard his "personal religious beliefs just to make a buck."
Even though President Obama has signed fewer executive orders than many of his predecessors from both political parties, Fox News has dedicated a significant amount of air time to suddenly questioning long-established presidential powers.
On February 18, Fox legal analyst Shannon Bream dedicated an entire segment to Obama's supposed lawlessness in his rollout of the Affordable Care Act (ACA) on Special Report with Bret Baier, highlighting the "Stop This Overreaching Presidency" or "STOP" resolution, an effort by congressional Republicans to "institute legal action to require the President to comply with the law." Experts more familiar with federal litigation and the U.S. Constitution have noted, however, that these sorts of lawsuits can only be filed in real cases or controversies where a plaintiff has actually suffered a legally cognizable harm. As explained by the Legal Information Institute of the Cornell University Law School:
Legal actions cannot be brought simply on the ground that an individual or group is displeased with a government action or law. Federal courts only have constitutional authority to resolve actual disputes (see Case or Controversy). Only those with enough direct stake in an action or law have "standing" to challenge it. A decision that a party does not have sufficient stake to sue will commonly be put in terms of the party's lacking "standing".
Fox News contributor Dennis Kucinich was included in the segment and floated "impeachment" as an alternative.
It might be difficult to find "an individual or business owner who could point to concrete damage he has or will suffer because of the president's unilateral changes to the health care law," as Bream suggests, because the changes to the law have served to ease implementation of the ACA. Those in search of the requisite legal standing to challenge the extension of deadlines run into the problem that this phased-in enforcement of the law is to benefit companies and consumers, not to "damage" them. Conservative Senator (and former Supreme Court clerk) Mike Lee explained this to The Weekly Standard: "It's not immediately apparent to me who it is that would have standing to show that they would be injured by this ... The people directly affected by the employer mandate are employers. But I would imagine that the administration would argue, if sued on this by an employer ... 'You can't show you've been injured by this. We're letting you off the hook.'"
Fox News continued to push the false narrative that the Obama administration politicized early intelligence assessments about the Benghazi attack by purporting to provide "new data points" which are contradicted by the findings of a bipartisan Senate Select Committee on Intelligence report released in January.
On February 13, Shannon Bream introduced a report from Fox national security correspondent Catherine Herridge by saying, "Tonight, two new data points in the Benghazi timeline [are] raising new questions about whether early intelligence was indeed politicized." Herridge began her report by claiming CIA leadership had been informed twice that the anti-Islam video "played no role" in the Benghazi attack, before former UN Ambassador Susan Rice appeared on the Sunday news shows and provided information about the attack based on talking points that represented the best assessment of the intelligence community at the time.
But nowhere in the segment is there evidence that anyone was told that the anti-Islam video had no role in inspiring the Benghazi attack. Instead, Herridge presents evidence and quotes from Republican lawmakers that there was no demonstration that took place before the attack -- which is not the same thing.
The very Benghazi report Herridge cites in her appearance contradicts her claim that the video "played no role." The Senate Select Committee on Intelligence's findings and recommendations in the report included the following:
Some intelligence suggests the attacks were likely put together in short order, following that day's violent protests in Cairo against an inflammatory video, suggesting that these and other terrorist groups could conduct similar terrorist attacks with little advance warning.
That finding from the Senate committee report lines up with the talking points drafted in the aftermath of the attack, which said that the attack was "spontaneously inspired by the protests at the U.S. Embassy in Cairo" -- protests that were a response to the anti-Islam video.
Considering that Fox's "new data points" do not actually provide any new information, the charges of intelligence politicization fall flat. The New York Times had a journalist who arrived at the Benghazi diplomatic facility as it was being attacked, and learned about the anger at the video from some of the attacks there.
The Benghazi report cited by Herridge also found that "there were no efforts by the White House or any other Executive Branch entities to "cover-up" facts or make alterations for political purposes" -- a fact that she chose to left out.
From the February 12 edition of Fox News' Special Report with Bret Baier:
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A day after civil rights organizations asked right-wing media to curb their misinformation and racially charged rhetoric, Fox News rejoined other conservative outlets in the smear campaign against Debo Adegbile, senior counsel to the Senate Judiciary Committee and President Obama's highly-regarded pick to head the Department of Justice's Civil Rights Division.
In a January 31 report posted to FoxNews.com, legal correspondent Shannon Bream contributed to a post that cited mysterious "critics" of Adegbile's supposed "outside the mainstream" approach to the law. The report did not mention that the criminal defense work he did to overturn an unconstitutional death sentence on appeal has been commended by the American Bar Association, members of the U.S. Supreme Court Bar, and the National Organization of Black Law Enforcement Executives (NOBLE). From FoxNews.com:
Adegbile has been described by critics as "radical," "dangerous" and "outside the mainstream."
Obama nominated Adegbile to head the Justice Department's Civil Rights Division.
However, he is now facing increased criticism for his role in getting convicted cop-killer Mumia Abu-Jamal's death sentence overturned during his time as a practicing attorney with the NAACP Legal Defense and Educational Fund.
Abu-Jamal was convicted in 1981 of killing Philadelphia police officer Daniel Faulkner.
Maureen Faulkner says she's "outraged" by Obama's decision to nominate Adegbile to the post.
Maureen Faulkner isn't the only one casting doubt on the nomination.
The Fraternal Order of Police recently sent a letter to Obama opposing Adgebile's possible appointment.
"This nomination can be interpreted in only one way: it is a thumb in the eye of our nation's law enforcement officers," Chuck Canterbury, president of the police group, wrote in a letter addressed to Obama.
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.