Spooky! Is Amendment 62 a Zombie Amendment?

Robin Marty

Although Halloween is still a few weeks away, one Colorado columnist is on the lookout for zombie amendments like the Personhood Bill.

Spooky!  It’s not even quite autumn, but one Colorado columnist is warning the citizens of the state of “zombie amendments” on the 2010 ballot, including Amendment 62.  And frankly, his definition is spot on.

Morgan Liddick writes in the Summit Daily News:

Amendment 62 is a back-from-the-dead rehash of the “personhood amendment” of 2008. And while I have real qualms about abortion, legally defining a fetus as a “person” may not be the best way to approach this problem. Consider: if this amendment becomes law, will a miscarriage in the second trimester of pregnancy be investigated as a death under mysterious circumstances? What if the mother-to-be had been seen with a beer in her hand? Would the provider be an accessory to an act of negligent homicide? Remember, we’re discussing the death of a “person,” here. Cooler heads need to prevail on this.

Well, I guess that does sort of make the fertilized eggs into some sort of living undead. But there’s no word yet on if they feed on brains.

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Analysis Law and Policy

In Marriage Equality Cases, Conservatives Argue Discrimination Is a First Amendment Right

Jessica Mason Pieklo

Anticipating a loss this summer before the Roberts Court in the marriage equality cases, conservatives are now leaning on the precedent set by Hobby Lobby and McCullen v. Coakley.

As the U.S. Supreme Court prepares to weigh marriage equality, a series of amicus briefs filed by religious and conservative organizations lays out the latest iteration of right-wing legal and political opposition to advancing equality. While these strategies still have plenty of old-fashioned bigotry and anti-LGBT pseudo-science at their core, conservatives have largely shifted away from claims that same-sex marriage is a slippery-slope toward pedophilia and bestiality. Instead, through briefs filed by right-wing organizations such as Judicial Watch, the Liberty Institute, the Foundation for Moral Law, the Family Research Council, Thomas More Society, and others, conservatives opposing marriage equality have advanced two different but related themes. The first is that a ruling in favor of same-sex couples would be the result of a runaway federal judiciary abusing “the will of the people” in those states that have passed anti-marriage equality laws. The second is that a ruling that requires states to recognize same-sex marriages would render the First Amendment meaningless.

These themes emerged in the Court’s two high-profile reproductive rights decisions last year, Hobby Lobby and McCullen v. Coakleyand conservatives took notice. In Hobby Lobby, the Roberts Court exploded open the Religious Freedom Restoration Act (RFRA), a federal law designed to protect individuals from regulatory overreach. The Court expanded the RFRA to protect corporations from laws their owners decide they have a religious objection to complying with, such as not discriminating on the basis of gender in their employee health insurance plans. Meanwhile, in McCullen, the Roberts Court upended abortion patients’ and providers’ right to be left alone in order to protect the rights of “sidewalk counselors” to “whisper quietly” to folks outside clinics.

The outcome in both cases depended on the Roberts Court transforming decades of religious liberties jurisprudence, which clearly established that personal religious liberty interests end the minute they harm third parties, in order to create a legal doctrine through which conservative Christian ideology serves as a legal shield against civil rights laws. A key rhetorical component of both decisions was the ability of the Roberts Court to center its analysis on the aggrieved conservative Christian plaintiffs, using that perspective as the default setting for religious liberty claims. The conservatives on the Roberts Court didn’t just privilege the religious interests of corporate business owners like the Green Family in Hobby Lobby; they erased the interests of employees in the guise of protecting “the people” from the overreach of the Obama administration.

The legal briefings in opposition to marriage equality deliberately build on this transformation, again shifting the focus to wronged Christians as the people in danger of rights encroachment. “Unfortunately, in their zeal to advance and affirm same-sex marriage, many state actors have ignored or violated the very free speech principles that facilitated free and open dialogue on this once-settled question,” the Liberty Institute brief opens. Those imperiled free speech and open dialogue principles, it continues, include the ability of “Christian ministers, teachers, and leaders” to “preach and speak aloud their millennia-old and sincerely held religious view that marriage is the sacred ‘one flesh’ union of one man and one woman;” the First Amendment right to engage in so-called gay reparative therapy; and dissent against “Government speech codes” that conservatives claim “enforce a superficial and false conformity of belief.”

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The likelihood of those arguments swaying a majority of justices on the Roberts Court to rule against marriage equality later this summer is, I think, slim. Every signal the Court has sent on the marriage equality cases since its ruling last summer striking down the federal definition of marriage as between one man and one woman in the Defense of Marriage Act suggests marriage equality advocates will win in June. That’s good news.

But if those arguments are unlikely to sway even the majority of justices on the Roberts Court to rule that states have the power to ban same-sex marriages, what’s the point of raising them?

First of all, they also allow religious conservatives to do what they do best—claim persecution in order to support their anti-civil rights agenda. “Politically powerful advocates of same-sex marriage would likely use this Court’s decision as a weapon to marginalize persons of faith who will continue to adhere to their millennia-old definition of marriage as the sacred union of one man and one woman,” writes the Liberty Institute. “That in turn would lead to countless additional violations of the Free Speech Clause,” it warns.

The attorneys for Judicial Watch warn of dire “constitutional conflicts” that will inevitably lead to polygamy and intra-family marriage should the Roberts Court rule in favor of marriage equality. “If Petitioners’ reasoning is followed through to its logical and legal conclusion, what legal foundation do the Respondent States, or the United States for that matter, have for denying more than two willing participants to enter into a marriage relationship?” asks Judicial Watch. “If changing culture can be the basis for undoing centuries of legal and moral tradition as to gender, why can it not also be the basis for undoing centuries of legal and moral tradition in terms of the number of people married? Or even siblings?” And the amicus brief from the Concerned Women for America explains, somewhat confusingly, that a ruling in favor of marriage equality both subverts the “will of the people” in states that have banned same-sex marriage and would support the “politically powerful homosexuals and their allies.”

In addition, these are arguments specifically constructed to exploit what conservatives see as political and legal momentum on the inflated issue of attacks on religious liberty.

A win in June for marriage equality is one step toward eradicating sex and gender discrimination. But it is just a step. It’s still perfectly legal in most states, after all, to discriminate against LGBT individuals.

At the same time, there are also currently 17 states considering passing or expanding their own versions of the Religious Freedom Restoration Act, the federal statute that spawned a thousand contraception benefit lawsuits. States like Indiana and Arkansas have received a lot of attention recently for their RFRA efforts, in part because those laws granted explicit permission for business owners to discriminate against customers based on their sexual orientation, under the guise of protecting religious expression.

This explosion at the state level of mini-RFRAs is in direct response to conservatives’ anticipated loss at the Supreme Court this summer in the marriage equality cases. They are designed to push the issue of just how far the law is willing to go to enshrine anti-LGBT discrimination in the name of religious liberties, all the way up to the Roberts Court. So the briefs before the judges now are simply priming the well for the battle that lays ahead. In practical terms, they’re a way of gently introducing the legal arguments against equality to the Court while politicians like Sen. Ted Cruz (R-TX) and Mike Huckabee work on ginning up public support. Like we saw in the months leading up to the Hobby Lobby arguments, and like we’re witnessing all over again in the nonprofit challenges to the birth control benefit, they are part of a coordinated campaign of legal briefings and political talking points designed to sway the public while simultaneously building the support of a conservative majority of justices.

So as we head into oral arguments in the marriage equality cases, and as we await the Roberts Court decision later this summer, let’s remember that conservatives always play the long game. While progressives celebrate an anticipated win for equality in June, religious advocacy organizations will be busy drafting and filing their next round of legal challenges to that win, and to other equality advancements. Thankfully their amicus briefings in the marriage equality cases have given us a preview and time to prep our response.

Commentary Law and Policy

Tennessee’s Amendment 1 Is A ‘Personhood’ Referendum—for Pregnant Women

Farah Diaz-Tello & Cherisse Scott

Amendment 1's proponents claim that it "neutralizes" the law on abortion; in reality, the measure would rob pregnant women of the full protections of Tennessee's constitution.

Read more of our articles on the Tennessee ballot initiative here.

Tennessee voters will soon be asked to vote on Amendment 1, which will remove explicit protections of the right to privacy from the state constitution for some residents. Although the ballot initiative’s proponents claim that it will “neutralize” the law on abortion, in reality, the measure would establish that all pregnant women are not entitled to the full protections of Tennessee’s constitution.

Amendment 1 is, at least in part, a response to a 2000 Tennessee Supreme Court decision, which declared that the state constitution provides a greater protection of the right to privacy than the U.S. Constitution, and that this right extends to decisions about pregnancy. The proposed amendment is designed to limit the effects of this decision. It would read:

Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.

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Again, Amendment 1’s supporters claim that it makes the Tennessee constitution “neutral on abortion.” However, the measure specifically targets pregnant women as a class of people whose medical, health, and family decisions may be subject to the will of the legislature.

Despite the fact that women’s rates of death related to pregnancy have risen throughout the United States in recent years, this amendment could make it possible to prohibit all women from having abortions, even those who needed them to stay alive. This includes women who become pregnant and experience severe health conditions such as heart disease, blood pressure conditions such as eclampsia, or cancer. Amendment 1 would put women and their families at risk, taking from them the state constitutional protections all other Tennesseans have.

The amendment would also reinforce recent legislative action that singled out pregnant women for unprecedented surveillance, control, and punishment. Last spring, Rep. Terri Lynn Weaver (R-Lancaster) introduced SB 1391, a bill that turned the state’s fetal assault law into one that would permit the state to arrest pregnant women. A mere year and a half after the original legislation had been clarified to leave no doubt that its purpose was to protect, not punish, pregnant women, Rep. Weaver stood before the Tennessee House of Representatives and asked why pregnant women should be “above the law.” Why, she reasoned, shouldn’t women be criminally investigated if their babies are born unhealthy? After all, she argued, the state can punish people who attack pregnant women and cause them to miscarry.

This reasoning led Tennessee to become the only state in the nation to pass a law making it possible to jail new mothers based on the outcomes of their pregnancies. By passing this legislation, the general assembly has undermined public health, invited prosecutors into the doctor-patient relationship, and created a brand-new crime of “illegal use of a narcotic drug” that only exists for pregnant women.

Both Amendment 1 and the pregnancy criminalization law use the claim that pregnant women shouldn’t be afforded “extra” rights as an excuse to make sure that they actually have fewer rights than other Tennesseans. The text of Amendment 1 may refer specifically to abortion, but the intent could not be clearer: It is to ensure that “nothing in [Tennessee’s] constitution secures or protects” the lives and health of pregnant women.