DOMA, Proposition 8 Decisions and What Makes Our Nation Great

— by Rabbi Steve Gutow, president of the Jewish Council for Public Affairs

Yesterday’s Supreme Court decisions on the Defense of Marriage Act and California’s Proposition 8 were met with celebration by many who have supported the right of people of the same sex to marry. Others have felt that such rights should not be afforded because of earnestly held religious beliefs. There are differing opinions as to how Jews should respond to this issue, although there is consensus that Judaism teaches respect for others and that we abhor discrimination against individuals.

More after the jump.
We live in a democratic society, in which we are all free to express our opinions about social issues and to advocate vigorously for those opinions. That is part of what makes our nation great. We have a system of laws that protects our rights to speech, religion — and to petition our government to redress grievances as the plaintiffs in the marriage cases did today. No one group and no religion has the right to dictate its beliefs to the entire body politic. In the end, our democratic process determines matters such as this, and that process has spoken. Many in our community are celebrating this decision. Others do not join in that celebration. Together, we must continue in honest dialogue, learning from one another, and striving for what is best for our community and our nation.

Supreme Court Strikes Down Part Of Voting Rights Act


These areas with historic patterns of disenfranchisement had been required to obtain pre-approval of certain changes to their voting laws. (Google map by the Washington Post.)

The White House released today the following statement by President Barack Obama on the Supreme Court Ruling on Shelby County v. Holder:

I am deeply disappointed with the Supreme Court’s decision today. For nearly 50 years, the Voting Rights Act — enacted and repeatedly renewed by wide bipartisan majorities in Congress — has helped secure the right to vote for millions of Americans. Today’s decision invalidating one of its core provisions upsets decades of well-established practices that help make sure voting is fair, especially in places where voting discrimination has been historically prevalent.

As a nation, we have made a great deal of progress toward guaranteeing every American the right to vote. But, as the Supreme Court recognized, voting discrimination still exists. And while today’s decision is a setback, it doesn’t represent the end of our efforts to end voting discrimination. I am calling on Congress to pass legislation to ensure every American has equal access to the polls. My Administration will continue to do everything in its power to ensure a fair and equal voting process.

Reaction from the Jewish Council for Public Affairs follows the jump.


Martin Luther King, Jr., Rabbi Maurice Eisendrath and Rabbi Abraham Joshua Heschel marching in Montgomery, Alabama in 1965 at the conclusion of the famous march for voting rights from Selma to Montgomery.

JCPA President Rabbi Steve Gutow:

The fundamental premise of our democracy is that every citizen can cast a meaningful vote and together those votes will create a republic that is representative of the people. Today’s ruling is distressing because it makes it more difficult to ensure the integrity of our voting systems. The Voting Rights Act is one of the most effective civil rights laws in our nation’s history and is still needed. There are great disparities in how Americans vote. Long waiting times, identification requirements, and widely varying registration and voting technologies all affect the way Americans experience their right to vote and tend to have an onerous and disproportionate affect on minority populations. Preservation of the VRA remains essential to our national progress toward a more perfect union. Unfortunately, the decision handed down today undermines the Federal government’s best tool to ensure this progress. We are up to the challenge implicit in this ruling. Congress needs to act to remove the obstacles to the ballot so that no American is denied the right to vote.

JCPA Chair Larry Gold:

Equal participation for all is at the heart of our work as an agency and part of the American Jewish community’s legacy. Our gains have been won through hard work and dedication, and that same spirit will continue to carry us in the work that lies ahead. A federal role in ensuring a fully participatory democracy is still necessary and a strong VRA remains a vital interest. The JCPA has a long history of advocating for voting rights. Today we recommit ourselves to the principles of the VRA we first advocated for decades ago. We find the same resolve today to work with Congress and the President to repair the Voting Rights Act that we had in the 1960’s when we worked with Congress and Presidents Kennedy and Johnson on this very bill. We stand committed to ensuring all American citizens a meaningful vote and the systems are in place to root out discrimination from our political process.

PA Supreme Court Accepts Second Legislative Redistricting Plan


Current PA congressional districts by party

— by Kenneth Myers, Esq.

Pennsylvania has become a state with a significant majority of voters registered as Democratic. Yet, our Congressional delegation, state Senate and state House of Representatives are all at least 60% Republican. A substantial part of the explanation to this is an adroit political redistricting: “packing” (squeezing the opposition’s votes into a few districts) and “cracking” (splitting pockets of opposition voters into separate districts where they cannot form a majority) to preserve the dominant party.

More after the jump.
The federal Constitution requires legislative districts to be rebalanced at least every 10 years in order to achieve population equality (“one man, one vote”). The Pennsylvania Constitution requires that legislative districts be compact and contiguous, and avoid splitting county and municipal boundaries to the extent possible. But in actual fact, our legislative districts split hundreds of counties and municipalities. “Problem” counties, such as the recently-turned-Democratic Montgomery County, are split many times in all directions to dilute their voting power.

In 2011, during the legislative redistricting process, concerned citizen Amanda Holt prepared a redistricting plan with minimum splits on her computer and submitted it to the Legislative Reapportionment Commission (LRC). The LRC largely ignored Holt, coming up with its own highly political redistricting maps. Holt and others took the matter to the Pennsylvania Supreme Court, pointing out that her plan split seven fewer counties, 81 fewer municipalities, and 184 fewer wards than the LRC plan. Although the six sitting members of the court were divided equally between Republicans and Democrats, Chief Justice Castille voted with the Democrats to reject the LRC plan.

The revised plan proposed by the LRC in June 2012 reduced the number of splits, but not to the level of the Holt plan: The LRC plan had 221 splits of municipalities in state House of Representatives districts, compared to 86 in the Holt plan. The LRC plan has 37 splits of municipalities in state Senate districts, compared to 17 in the Holt plan. Holt and a number of other citizens appealed again to the Pennsylvania Supreme Court.

Last week, that court unanimously upheld the revised LRC plan. In a lengthy opinion, the court stated its continued support for the goals of the state constitution, that voting districts be compact, contiguous and conformal to municipal boundaries, but concluded that other considerations such as population equality, historical district lines and even political gain, could be considered by the LRC as well in reaching its conclusion.

Jeff Albert Esq., who litigated against the LRC’s 2001 redistricting plan on behalf of Upper Dublin Township, commented:

In the last four pages of its fifty-eight page decision, the court basically concluded that the constitutional requirement, of avoiding division of political subdivisions to the maximum extent possible, could be modified by political considerations, such as retaining incumbents, so long as the scheme conformed with looser standards of ‘one-man, one-vote’ than had previously been accepted in Pennsylvania, and its divisions of political subdivisions gave better heed to subdivision boundaries than schemes approved in prior years.

JSPAN Joins Briefs In U.S. Supreme Court Same-Sex Marriage Cases

— by Lynn Zeitlin, JSPAN Past President

There are two cases before the United States Supreme Court involving same-sex marriage. We are pleased to announce that JSPAN has joined the two amici briefs for which the ADL was the lead amicus.

One brief was filed in support of Edith Windsor, who challenged the constitutionality of Section 3 of the federal Defense of Marriage Act (“DOMA”), after being denied treatment as a surviving spouse under federal estate tax and other laws despite having been legally married in Canada. Section 3 of DOMA amends the United States Code to define “marriage’ and “spouse” for federal laws, rules and regulations as follows: “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or wife.”

More after the jump.
The brief JSPAN signed makes the argument that Section 3 of DOMA violates not only the Fifth Amendment’s guarantee of Equal Protection but also the Establishment Clause of the First Amendment. The brief points out that numerous religious denominations recognize marriages between two men and two women and points out that the Establishment Clause prohibits laws that favor a particular religious view over others and does not have a secular purpose as its primary purpose or effect. The brief argues that DOMA had only a religious purpose that flies in the face of longstanding Establishment Clause principles and is therefore unconstitutional. The Fifth Amendment argument is grounded in the absence of any legitimate governmental purpose in enacting DOMA so that the only motivation for its passage was moral disapproval of gay and lesbian people, which has never been a sufficient rationale for justifying a law that discriminates, citing Justice O’Connor’s concurrence in the Lawrence v. Texas case that overturned a Texas law criminalizing gay sex practices.

The second brief joined by JSPAN is in the case out of California popularly known as the Prop 8 case. In May 2008, the California Supreme Court ruled that the California law barring same-sex couples from marrying violated the state’s constitution. In November that same year, Proposition 8 was passed by voters; it defined marriage as between one man and one woman. The brief makes the same point as the Windsor brief, pointing out that the Court no longer relies on religious or moral disapproval as a legitimate basis for any law. Thus, the brief argues, laws that discriminate against historically disadvantaged minorities have been rejected by the courts as societal support for discrimination.

More Court Ethics, Less Clarence Thomas

–by Bruce Ticker

Clarence Thomas’s close relationship with a wealthy conservative activist points up why the Supreme Court’s appointment process must be reconsidered.

‘There’s no difference between a white snake and a black snake. They’ll both bite’

– the late Justice Thurgood Marshall, 1991

U.S. Supreme Court Justice Clarence Thomas’s shameless, in-your-face, violation of judicial ethics cries out for a better way to choose justices and keep them accountable.

Literally, he is above the law that spells out ethics rules for federal judges who serve on the lower courts, but he should have known better than to get so cozy with Harlan Crow, a major donor to conservative causes and real-estate magnate from Dallas.

When he announced his retirement in 1991, the legendary Supreme Court Justice Thurgood Marshall accurately predicted that President Bush (the elder one) might replace him with another African-American nominee who would betray the primary aspirations of the black community. I even recall observing Marshall on television he offered this prediction during his retirement announcement.

More after the jump.
After Marshall called his then-generic successor a “black snake” then, Thomas’s subsequent tenure openly mocked Marshall’s lifelong struggle to advocate for the concerns of the black community, not to mention concerns that affect all Americans.

Thomas is the product of a system that protects Supreme Court justices from any reasonable accountability and was selected through a literally undemocratic process.

To be clear, Thomas and his eight colleagues on the Supreme Court are not bound by the code of conduct for federal judges on grounds that a panel of judges who rank below the justices is charged with enforcing said code.

Maybe that’s why Thomas felt free to flout the code’s provision requiring that judges “should not personally participate” in raising funds for charitable initiatives. Authors of the code were concerned that contributors might feel pressured to donate or entitled to favored treatment by the judge, and judges are not supposed to be aware of who contributes to projects which honor them.

The New York Times’s Mike McIntire chronicled a series of instances which has or might have compromised Thomas’s performance on the court.

Thomas violated the code for federal judges by seeking Crow’s help in financing the multi-million-dollar purchase and restoration of a former seafood cannery in Pin Point, Ga., where his mother was employed. Thomas has made it a pet project to establish a museum about the culture and history of Pin Point.

According to the Times, this venture began a few years before when Thomas encountered Algernon Varn, whose grandfather operated the cannery, during a visit to Pin Point, the justice’s birthplace near Savannah. Thomas asked about plans for the property and Varn said he wanted to preserve it. The justice then informed Varn of a friend he would “put you in touch with.” That friend is Crow, who consented to provide financial support.

Deborah L. Rhode, a Stanford University law professor, told the Times that Thomas “should not be directly involved in fund-raising activities, no matter how worthy they are whether he’s being centrally honored by the museum.”

At Common Cause, attorney Arn Pearson said, “The code of conduct is quite clear that judges are not supposed to be soliciting money for their pet projects or charities, period. If any other federal judge was doing that, he could face disciplinary action.”

    The plot thickens:

  • Thomas was the lone dissenter in 2006 when the Project on Fair Representation challenged federal voting rights laws. The project is sponsored by the American Enterprise Institute, and Crow is an AEI trustee.
  • In 2001, AEI presented Thomas with a bust of Abraham Lincoln valued at $15,000 and praised his judicial performance at an awards gala. The suit was litigated – pro bono – by a former clerk for Thomas.

    Such a cozy circle.

  • MSNBC TV host Rachel Maddow – expanding on the Times piece – listed eight cases in which Thomas voted in favor of positions taken by organizations tied to Crow.
  • According to the Times, Crow has hosted Thomas aboard his 161-foot yacht and his private jet, at his California retreat and at his 105-acre summer estate in the Adirondacks.
  • Crow also reportedly contributed $500,000 to the founding of Liberty Central, a tea party-affiliated group launched by Virginia Thomas, wife of the justice.

Justices Anthony M. Kennedy and Stephen G. Breyer testified before Congress in April 2011 that they follow the code of conduct. Is that good enough?

More than 100 law professors urged Congress last February 2011 to impose the ethics code on Supreme Court justices. Legislation to address this concern was introduced.

Deeper systemic issues fuel the potential for abuse. Two clauses in the Constitution align to allow the possibility for justices to be appointed by a minority of voters.

Because a president is not subject to the popular vote, s/he can be elected by a minority. A majority of senators must confirm judicial nominees, but such a majority vote does not necessarily represent the majority of the people because each state – no matter how low their population — is represented by the same number of senators. A justice can be confirmed by senators representing the 26 least populous states.

President Bush did not win the popular election in 2000, but he won the majority in 2004 before nominating Roberts and Justice Samuel A. Alito Jr. President Clinton never won a majority in either election because of third-party candidates; he nominated Breyer and Justice Ruth Bader Ginsburg.

The framers of the Constitution invited trouble by creating lifetime tenure for the justices’ positions. Of course, this provision should preclude the justices from ruling on cases in which they might later have ties to some of the parties involved.

The framers might have expected that only honorable people would reach such a lofty position after struggling through law school, practicing law for many years and earning the trust of the president and the majority of the Senate.

Thomas would hardly be the first to blow this theory apart. Justice Abe Fortas resigned in 1969 because he accepted money from a convicted financier while on the court. Justice James Clark McReynolds – a racist, sexist and anti-Semite – snubbed Justice Louis Brandeis, the first Jew to join the court.

Besides, plenty of judges retire while still in their professional prime and use their past connections to return to the practice of law or find other jobs.

The system must be reconsidered. The American people, through our political leaders, must ensure that only the best people are elevated to the court and keep them honest.

Bruce S. Ticker blogs at www.constitutioncon.blogspot.com.

Supreme Court Deals Blow to Campaign Finance Reform Agenda

Rabbi Saperstein: “The Union for Reform Judaism will continue to support the federal government, states, and localities in exploring new and innovative ways to ensure the viability of public financing programs.”

In response to the Supreme Court’s 5-4 decision in the consolidated cases Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett and McComish v. Bennett, Rabbi David Saperstein, Director of the Religious Action Center of Reform Judaism, issued the following statement:

In a 5-4 decision issued on Monday, the Supreme Court invalidated the matching fund provisions of Arizona’s public campaign financing system. These provisions provide additional resources to publicly financed candidates when their opponents or independent groups spend in excess of their initial public subsidy. In so doing, matching funds ensure that publicly financed candidates have the resources to mount effective challenges.

The Central Conference of American Rabbis resolved in 2003 to support state-level adoption of full public financing programs such as Arizona’s because such policy “reduces the inherent conflicts of interest that arise when the campaigns of public servants are privately financed.” The Union for Reform Judaism has supported public financing since 1984. Because of the Reform Movement’s longstanding support for public financing as a key means to eliminate the corrupting influence of money from our political system, the Union for Reform Judaism submitted an amicus curiae brief defending Arizona’s program. While Monday’s decision is deeply disappointing, the effort to make democracy more responsive to the will of all the people, not just the wealthy and powerful, goes on.
The Bennett decision is the first campaign finance case on which the Supreme Court rendered judgment since Citizen United v. FEC (2010). In that case, the Supreme Court overturned 63 years of precedent establishing the right of government to prohibit corporations from spending unlimited amounts of money to influence the outcome of elections. The decision rendered by the majority in the Bennett cases is equally troubling and we agree with Justice Kagan’s forceful dissent, read from the bench, sharply challenging Monday’s decision.

Even so, the majority still recognized the right of states and the federal government to use public financing to combat political corruption, even if it prescribed unreasonably restrictive parameters governing the composition of such programs. The Union for Reform Judaism will continue to support the federal government, states, and localities in exploring new and innovative ways to ensure the viability of public financing programs.

Scalia, no class act(ion) for justice

Maybe Associate Justice Stephen G. Breyer was thinking of two or more of his Supreme Court colleagues when he wrote, “Only a lunatic or a fanatic sues for $30.”

The associate justice regarded by court critics as leading court fanatic, Antonin Scalia, wrote the majority opinion on Wednesday, April 27, 2011, depriving ordinary consumers of another avenue to contest possible injustice. Scalia’s opinion was supported by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

Breyer’s disdainful retort was part of his dissent that was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. It was the usual 5-4 line-up for a contentious issue.

The court ruled that businesses may use standard-form contracts to prohibit consumers who claim fraud from joining together in a single arbitration, according to The New York Times.

More after the jump.
Vanderbilt University Law Professor Brian T. Fitzpatrick explained, “The decision basically lets companies escape class actions, so long as they do so by means of arbitration agreements…It’s one of the most important and favorable cases for businesses in a very long time.”

Vincent and Liza Concepcion of California filed the lawsuit against ATT&T Mobility seeking class-action treatment after objecting to a $30 fee for what was said to be a free cellphone, the Times reported.

AT&T responded by relying on the contract requiring the couple to settle disputes through arbitration and prohibited them from joining with others to seek class-action treatment, whether in arbitration or in traditional litigation in court.

The company argued that the case could neither move forward in court nor as a class action in any forum, but lower federal courts would not enforce the arbitration agreement and permitted the case to proceed. The courts followed a 2005 California Supreme Court decision that prohibited class waivers as unconscionable, according to the Times.

Scalia wrote in the majority opinion that the lower courts did not properly apply the Federal Arbitration Act which overrides some state court rulings against arbitration. The California Supreme Court’s ruling prohibited class waivers in all standard-form contracts, whether applicable to arbitrations or court proceedings, as unconscionable if they gave rise to claims that the companies issuing them had set out “to deliberately cheat large numbers of consumers out of individually small amounts of money,” the Times reported.

Scalia wrote, “Requiring the availability of class wide arbitration interferes with fundamental attributes of arbitration.”

Breyer stated, “Where does the majority get its contrary idea – that individual, rather than class, arbitration is a fundamental attribute of arbitration?

He pointed out that class arbitrations are more efficient and, primarily important, minor frauds such as that claimed by the California couple will not be resolved.

He wrote, “What rational lawyer would have signed on to represent the Conceptions in litigation for the possibility of fees stemming from a $30.22 claim?” Quoting from another case, he added, “Only a lunatic or a fanatic sues for $30.”

Vulnerable people in this society have limited avenues to obtain justice. Wealthy people sometime file lawsuits over the most petty affronts. Attorneys turn down claims from people if they cannot see a cost-effective case in it or they cannot afford the legal fees.

Scalia and other conservatives embrace the “original intent” of the framers of the Constitution. Was it their “original intent” to leave ordinary people without legal recourse?