Texas Same Sex Marriage Ban Struck Down

Two of the Texas plaintiffs

 UPDATED: Here's the language the Court uses to demolish the usual proffered justifications for anti-gay discrimination:

Defendants in this case have identified two bases or purposes for Section 32: (1) to increase the likelihood that a mother and a father will be in charge of childrearing; and (2) to encourage stable family environments for responsible procreation. These bases fail rational basis review as explained below.

(1) Childrearing

There is no doubt that the welfare of children is a legitimate state interest; however, limiting marriage to opposite-sex couples fails to further this interest. Instead, Section 32 causes needless stigmatization and humiliation for children being raised by the loving same-sex couples being targeted. See Bostic, 2014 WL 561978, at * 18. "Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners." Perry, 704 F. Supp. 2d at 967. Homosexual couples are as capable as other couples of raising well-adjusted children. See id. at 980 ("Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted"); Varnum v. Brien, 763 N.W.2d 862, 899 (Iowa 2009) ("Plaintiffs presented an abundance of evidence and research, confirmed by our independent research, supporting the proposition that the interests of children are served equally by same-sex parents and opposite-sex parents.")  Defendants have not provided any evidentiary support for their assertion that denying marriage to same-sex couples positively affects child rearing.

[T]his Court finds that far from encouraging a stable environment for child rearing, Section 32 denies children of same-sex parents the protections and stability they would enjoy if their parents could marry.

Furthermore, Defendants' proffered reason fails rational basis because Defendants have failed to establish how recognizing a same-sex marriage can influence, if at all, whether heterosexual couples will marry, or how other individuals will raise their families.

(2) Procreation

The procreation argument raised by Defendants also fails. The notion that same-sex marriage will encourage responsible procreation assumes that heterosexual marriage is "naturally procreative." However, procreation is not and has never been a qualification for marriage.  . . . . This procreation rationale threatens the legitimacy of marriages involving post-menopausal women, infertile individuals, and individuals who choose to refrain from procreating. See Bishop, 2014 WL 116013, at *30. These individuals who cannot or will not procreate are allowed to marry under Texas' current laws.

Therefore, Section 32 makes "no sense in light of how [it] treat[s] other groups similarly situated in relevant respects," and consequently, "encouraging stable environments for procreating" does not provide a rational basis for Section 32.

ORIGINAL POST: The dominoes continue to fall as today a federal court in Texas ruled that the Texas gay marriage ban is unconstitutional.  Expect plenty of shrieking and flying spittle from Christofascists circles which must be smarting as it is from all of the blow back against Arizona's Christofascist backed "turn the gays away" bill sitting on Gov. Jan Brewer's desk.  In the ruling, the Court found that there was no rational basis to support Texas' intentionally discriminatory ban,  Here are highlights from Huffington Post followed by the text of the Court's 48 page opinion (I will have further commentary once I read the opinion in full this evening):

U.S. District Judge Orlando Garcia ruled Wednesday that Texas' ban on same-sex marriage is unconstitutional, the Houston Chronicle and the Dallas Morning News report.

Garcia issued a preliminary injunction on the state's ban, citing Supreme Court precedent. However, Garcia issued a stay on his order, meaning the ban will remain in effect pending appeal.

“Today’s court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the U.S. Constitution and Supreme Court precedent,” Garcia wrote in the order. “Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our U.S. Constitution.”

Texas Gay Marriage Ruling

U. S. Attorney General Backs State Attorney Generals Who Refuse to Defend Marriage Bans

Not to beat the issue to death, but ethical state attorneys general are correct to refuse to defend anti-gay marriage bans that they deem to be unconstitutional under the United States Constitution.  Which is why U.S. Attorney General Eric Holder has come out to back the state attorneys general, including Virginia Attorney General Mark Herring, who have made the decision not to defend anti-gay animus motivated state same sex marriage bans.  It is those who defends such unconstitutional laws and amendments - just as past Virginia attorney generals defended Jim Crow laws and bans on interracial marriage - who are on the wrong side of the law and on the wrong side of history.  Here are excerpts from a piece in the New York Times on Holder's pronouncement:

Attorney General Eric H. Holder Jr. on Monday injected the Obama administration into the emotional and politicized debate over the future of state same-sex marriage bans, declaring in an interview that state attorneys general are not obligated to defend laws that they believe are discriminatory.

Mr. Holder was careful not to encourage his state counterparts to disavow their own laws, but said that officials who have carefully studied bans on gay marriage could refuse to defend them.  Six state attorneys general — all Democrats — have refused to defend bans on same-sex marriage, prompting criticism from Republicans who say they have a duty to stand behind their state laws, even if they do not agree with them.

It is highly unusual for the United States attorney general to advise his state counterparts on how and when to refuse to defend state laws. But Mr. Holder said when laws touch on core constitutional issues like equal protection, an attorney general should apply the highest level of scrutiny before reaching a decision on whether to defend it. He said the decision should never be political or based on policy objections.

“Engaging in that process and making that determination is something that’s appropriate for an attorney general to do,” Mr. Holder said.  As an example, Mr. Holder cited the landmark Brown v. Board of Education case, which forced public school integration in 1954.  “If I were attorney general in Kansas in 1953, I would not have defended a Kansas statute that put in place separate-but-equal facilities,” Mr. Holder said.

The nation’s first black attorney general, Mr. Holder has said he views today’s gay-rights campaigns as a continuation of the civil rights movement that won rights for black Americans in the 1950s and ’60s. He has called gay rights one of “the defining civil rights challenges of our time.”

Mr. Holder is scheduled to address the National Association of Attorneys General at a conference on Tuesday, but reports of his comments drew immediate criticism from the president of the bipartisan group.

“It really isn’t his job to give us advice on defending our constitutions any more than it’s our role to give him advice on how to do his job,” said Attorney General J. B. Van Hollen of Wisconsin, a Republican. “We are the ultimate defenders of our state constitutions.”

[I]n Nevada, Oregon, Pennsylvania and Virginia, state attorneys general have refused to defend bans on same-sex marriage. Attorneys general in California and Illinois similarly refused to defend bans that were later overturned.

“The answers to these questions are crystal clear,” said Gary Buseck, legal director of Gay and Lesbian Advocates and Defenders. “Attorneys general can’t close their eyes to something that’s blatantly unconstitutional. They’re not supposed to defend the laws at all costs.”

Sadly, too many Republican attorneys general prefer to violate their duty of candor and honest to the courts and instead pander to the religious extremists and hate groups of the GOP base.  It is they, not the six attorneys general who have refused to defend marriage bans, who are ethically and in my view morally challenged. 

 

Time Magazine Cover Captures Tea Party Goal

While the United States Constitution contemplates that the civil and religious rights of minorities are to be protected from the tyranny of the majority, in the general course of governance the idea was that majority consensus would be controlling, both in terms of election decisions and in terms on Congressional action.  This latter concept is what the Republican Party/Tea Party is seeking to destroy.  The cover of Time Magazine, above, sums it up well.   Daily Kos elaborates further:

Yes, this image perfectly encapsulates the current government shutdown, in which a fringe band of GOP representatives in the House have effectively held the federal government hostage (with the help of the GOP's spineless leadership).

However, this image also perfectly encapsulates, unintentionally, the extent to which our elected officials truly represent America's citizenry today. For as mainstream pundits yap about which monuments might close, the wealth gap between those who have, and those who have not, is larger than it's ever been.

New Yorkers with two jobs are increasingly becoming homeless. Metropolises are becoming income distribution wastelands. Things are getting worse for so many.

And today, a small collection of lawmakers is focused on shutting down the government, rather than ensure it functions for those who need it most.  The majority is not ruling. In so many ways.

Very well said.  And very disturbing.

California Supreme Court Again Rejects Prop. 8 Proponents' Arguments

The supporters of Proposition 8 continue to try to derail the striking down of their hate and animus based agenda.  Their latest attempt sought to claim that a U.S. District Court could not strike down a state wide constitutional amendment.  Like all of these hate merchants' other arguments, the California Supreme Court threw out their claims.  Should they continue to file frivolous petitions and lawsuits, one can only hope that the courts will start imposing sanctions on both the Prop 8 proponents and more importantly, their legal counsel.  The Los Angeles Times looks at this latest defeat.  Here are highlights:

The California Supreme Court refused Wednesday to revive Proposition 8, ending the last remaining legal challenge to same-sex marriage in the state.

Meeting in closed session, the state high court rejected arguments  by ProtectMarriage, Proposition 8’s sponsors, that only an appellate court could overturn a statewide law.

A federal judge in San Francisco declared Proposition 8 unconstitutional in 2010, and state officials refused to appeal. ProtectMarriage did appeal, but the U.S. Supreme Court ruled in June that initiative sponsors have no right to defend their measures in federal court. The decision left in place the ruling by retired Chief U.S. District Judge Vaughn R. Walker.

In its challenge before the state’s highest court,  ProtectMarriage argued that a single judge lacked the authority to overturn a state constitutional amendment.  The group also contended that Walker’s injunction applied to two counties at most and that state officials had overstepped their authority by ordering county clerks throughout California to issue same-sex marriage licenses.

State officials countered that the challenge was a veiled attempt to persuade a state court to interfere with a federal judge’s order in violation of the U.S. Constitution.

Same-sex couples began marrying in California in late June after a federal appeals court lifted a hold on Walker’s injunction. ProtectMarriage went back to the U.S. Supreme Court the following day, arguing the appeals court acted prematurely because the high court’s decision was not even final. The Supreme Court refused to intervene.

Then the group went to the state Supreme Court, asking the justices to halt the marriages immediately while considering the legal arguments. The seven-member court unanimously rejected the request for a “stay” or hold.

Let's be clear.  The Christofascists do not give a damn about the U.S. Constitution and the religious freedom rights of others.  Instead,  they seek to subvert the Constitution and impose a theocracy on America based on their sick, hate and fear based version of Christianity.  They remain a clear and present danger and need to be treated as a threat accordingly.

Cuccinelli Signs Insane Book for Kool-Aid Drinking Crowd

It is frightening at times just how insane some among the Virginia populous seem to be.  How else to explain an adoring crowd of reality and modernity denying Kool-Aid drinkers enthusiastically gathering around the certifiably insane Ken "Kookinelli" Cuccinelli as he signed copies of his anti-government screed that in truth describes the denial of liberty rather than its protection.  Fredericksburg.com looks at the scary display of insanity.  Here are highlights:

Virginia’s Attorney General and Republican gubernatorial candidate Ken Cuccinelli signed about 100 copies of his new book for customers at the Barnes & Noble in Central Park Friday night.

“The Last Line of Defense: The New Fight for American Liberty,” which was released on Tuesday, “explores the numerous courtroom battles fought against the Obama administration,” according to Cuccinelli’s publicist. 

The book claims that the federal health care law, the Environmental Protection Agency, the Federal Communications Commission and other agencies have violated the Constitution by exercising unparalleled control over Americans.

That message struck a chord with Rob Clark of Stafford, who arrived at Barnes & Noble almost two hours before the event started.  “We need to get back, as a nation, to the basics,” Clark said. “We’re not as strong of a country as we once were.”

The book-signing drew a crowd of Cuccinelli followers from the Fredericksburg area, as well as many from Richmond and from Northern Virginia. Leading up to the attorney general’s arrival, the crowd buzzed about his upcoming campaign for governor of Virginia. 

“There’s a great turnout here. It goes to show the momentum the attorney general has going into the race,” said Virginia Republican Sen. Bryce Reeves, who represents Orange and Fredericksburg, as well as parts of Culpeper, Louisa, Spotsylvania and Albemarle counties.

Cuccinelli’s book has also gotten plenty of attention from Democrats in Richmond, who are hoping the Republican’s candid opinions will hurt his election chances. Several of them even staged a dramatic reading of parts of it Tuesday in a Capitol Square office building.

Of course, for Kookinelli and his followers "getting back to basics" translates to increased special rights for Christofascists, the stigmatizing of LGBT Virginians, treating women as chattel to be controlled by angry white males, disenfranchising blacks and minorities and an utter disregard for the U. S. Constitution and U. S. Supreme Court rulings.

SpecialDOMA Amicus Brief: Supreme Court Lacks Jurisdiction; GOP House Members Lack Standing

In previous posts this blog has looked at the issue of "standing" - i.e., who is a proper party in interest to take an appeal of lower court rulings - as well as the Supreme Court's engagement of Harvard Law professor Vicki C. Jackson to brief the issue of standing in both the Proposition 8 appeal and in the DOMA appeal brought by the GOP members of the House of Representatives.  The issue of standing is important in both cases since, if the appellants lack standing, the U. S. Supreme Court could side step both cases and leave the lower court rulings striking down Prop 8 and DOMA in place.  The result of this would be that (i) Prop 8 is dead and gay marriage is legal once again in California and arguable in the other states in the 9th Circuit, and in the DOMA appeal centering on Edie Windsor (pictured at left) brought by the House GOP, the result would be that DOMA is unconstitutional in the 1st and 2nd Circuits.   

Today, professor Jackson filed her amicus brief in the DOMA appeal and, not surprisingly, found (a) that the Supreme Court lacked jurisdiction given the posture of the case and (b) the the House GOP lacked standing to defend a rulint in which the executive branch has acquiesced.  In short, if the justices on the Supreme Court desire to duck making a ruling, Prof. Jackson has given them a road map of how to do so.  Should the Court take this avenue, the good news is that Barack Obama will likely have the opportunity to appoint new liberal justices before the next gay marriage and/or DOMA appeal to the U. S. Supreme Court.  The other irony would be that the GOP House members just squander $3 million in legal fees for absolutely nothing.  The bad news is that many of us will definitively remain second class citizens for the near future.   Here are details from SCOTUS Blog:

The Supreme Court does not have the power to rule on the case the Justices have agreed to review on the constitutionality of the federal Defense of Marriage Act of 1996, a Harvard law professor argued in a brief filed Thursday evening. The professor, Vicki C. Jackson, also argued against letting the Republican members of the House of Representatives’ leadership defend DOMA’s validity, saying they do not speak for Congress, or even for the House.

If the Court accepts this advice, it probably would miss its chance to rule during the current Term on DOMA’s Section 3, which defines marriage for all federal purposes as the union of one man and one woman. It has been challenged by same-sex couples who are legally married, as they seek the federal benefits at issue. There is not time, in the remaining months of the Term (unless the Court would really rush things), for review of another DOMA case, even though others are pending.

The Court on December 7 agreed to review the constitutionality of Section 3 in the case of United States v. Windsor (docket 12-307). At the same time, however, it added questions about its authority to do so and then invited Professor Jackson to argue two points: One, whether the Obama administration can appeal a case that it won in a lower court (it believes DOMA is unconstitutional, and the lower court ruled that way). And, two, whether the House’s three GOP leaders could satisfy the Constitution’s Article III requirement that they have a legal right to be DOMA’s defenders in court.

The question about the administration’s stance is one of judicial power: if the Court lacks that basic power to decide, it cannot resolve the constitutional question in response to the government’s appeal. The question about the House GOP is one of “standing,” in a constitutional sense, to appeal: if those legislators cannot show they had real legal interests at stake, they could not be in court.

While the Court has also agreed to review the constitutionality of California’s “Proposition 8,” a statewide ban on same-sex marriage, the Court also raised a question of whether it could rule on that case. It posed the question of whether the sponsors of the “Proposition 8″ ballot measure had “standing” to appeal, under Article III. (That will be debated between those proponents and the two same-sex couples who successfully challenged that measure in lower courts. That was not within the assignment the Court gave to Professor Jackson, which was limited to the DOMA case.)

If it turns out that the California proponents are found to lack the right to pursue their appeal, that case, too, could be ended without a ruling by the Justices on the validity of that state’s marriage ban.

If the GOP House members are found to lack standing, they ought to be required to reimburse the wasted $3 million.  A plain reading of Article III of the Constitution  clearly suggests the the GOP House members never had the right to appeal the 1st and 2nd Circuit DOMA rulings.

Obama’s Second Inaugural Speech: A Call to Equality, Unity and Compassion

Set out below is the full text of Barack Obama's Inaugural Address that was delivered today.  The speech is in some ways an idealistic reminder of the founding principles of America: that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness.   In addition, it is a call for all Americans to, among other things (i) recognize the founding principles of this nation and corollary need to continue the work to deliver full equality to all Americans, (ii) come together and work as a unified nation to move the nation forward in the face of changing circumstances and an increasingly competitive  global economy, and (iii) exhibit compassion and support to the poor, the sick and needy and the elderly.  One might even say that, without so stating, Obama in some ways called on Americans to make good on the Gospel message as well as the promises of the United States Constitution.  The speech also contains a challenge of sotrs to the Republican Party: put the interests of the nation ahead of partisanship.

From an LGBT perspective, the speech was ground breaking because for the first time in America's history providing full legal equality to LGBT Americans was named as a critical goal and a part of delivering the promise of equality to Americans.  Save and except for perhaps the call for LGBT equality, most of Obama's call should be acceptable to every American who purports to be a believing Christian.  Thus, the irony as we move into the next four years of Obama's second term will be that it will be the political party of those who most loudly proclaim themselves as "godly Christians" that will do all in its power to thwart the goals enunciated in Obama's speech today.  Here is the Inaugural speech in its entirety via the New York Times (emphasis mine):

MR. OBAMA: Vice President Biden, Mr. Chief Justice, Members of the United States Congress, distinguished guests, and fellow citizens:

Each time we gather to inaugurate a president, we bear witness to the enduring strength of our Constitution. We affirm the promise of our democracy. We recall that what binds this nation together is not the colors of our skin or the tenets of our faith or the origins of our names. What makes us exceptional – what makes us American – is our allegiance to an idea, articulated in a declaration made more than two centuries ago:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness.”

Today we continue a never-ending journey, to bridge the meaning of those words with the realities of our time. For history tells us that while these truths may be self-evident, they have never been self-executing; that while freedom is a gift from God, it must be secured by His people here on Earth. The patriots of 1776 did not fight to replace the tyranny of a king with the privileges of a few or the rule of a mob. They gave to us a Republic, a government of, and by, and for the people, entrusting each generation to keep safe our founding creed.

For more than two hundred years, we have.

Through blood drawn by lash and blood drawn by sword, we learned that no union founded on the principles of liberty and equality could survive half-slave and half-free. We made ourselves anew, and vowed to move forward together.

Together, we determined that a modern economy requires railroads and highways to speed travel and commerce; schools and colleges to train our workers.

Together, we discovered that a free market only thrives when there are rules to ensure competition and fair play.

Together, we resolved that a great nation must care for the vulnerable, and protect its people from life’s worst hazards and misfortune.

Through it all, we have never relinquished our skepticism of central authority, nor have we succumbed to the fiction that all society’s ills can be cured through government alone. Our celebration of initiative and enterprise; our insistence on hard work and personal responsibility, these are constants in our character.

But we have always understood that when times change, so must we; that fidelity to our founding principles requires new responses to new challenges; that preserving our individual freedoms ultimately requires collective action. For the American people can no more meet the demands of today’s world by acting alone than American soldiers could have met the forces of fascism or communism with muskets and militias. No single person can train all the math and science teachers we’ll need to equip our children for the future, or build the roads and networks and research labs that will bring new jobs and businesses to our shores. Now, more than ever, we must do these things together, as one nation, and one people.

This generation of Americans has been tested by crises that steeled our resolve and proved our resilience. A decade of war is now ending. An economic recovery has begun. America’s possibilities are limitless, for we possess all the qualities that this world without boundaries demands: youth and drive; diversity and openness; an endless capacity for risk and a gift for reinvention. My fellow Americans, we are made for this moment, and we will seize it – so long as we seize it together.

For we, the people, understand that our country cannot succeed when a shrinking few do very well and a growing many barely make it. We believe that America’s prosperity must rest upon the broad shoulders of a rising middle class. We know that America thrives when every person can find independence and pride in their work; when the wages of honest labor liberate families from the brink of hardship. We are true to our creed when a little girl born into the bleakest poverty knows that she has the same chance to succeed as anybody else, because she is an American, she is free, and she is equal, not just in the eyes of God but also in our own.

We understand that outworn programs are inadequate to the needs of our time. We must harness new ideas and technology to remake our government, revamp our tax code, reform our schools, and empower our citizens with the skills they need to work harder, learn more, reach higher. But while the means will change, our purpose endures: a nation that rewards the effort and determination of every single American. That is what this moment requires. That is what will give real meaning to our creed.

We, the people, still believe that every citizen deserves a basic measure of security and dignity. We must make the hard choices to reduce the cost of health care and the size of our deficit. But we reject the belief that America must choose between caring for the generation that built this country and investing in the generation that will build its future. For we remember the lessons of our past, when twilight years were spent in poverty, and parents of a child with a disability had nowhere to turn. We do not believe that in this country, freedom is reserved for the lucky, or happiness for the few. We recognize that no matter how responsibly we live our lives, any one of us, at any time, may face a job loss, or a sudden illness, or a home swept away in a terrible storm. The commitments we make to each other – through Medicare, and Medicaid, and Social Security – these things do not sap our initiative; they strengthen us. They do not make us a nation of takers; they free us to take the risks that make this country great.

We, the people, still believe that our obligations as Americans are not just to ourselves, but to all posterity. We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations. Some may still deny the overwhelming judgment of science, but none can avoid the devastating impact of raging fires, and crippling drought, and more powerful storms. The path towards sustainable energy sources will be long and sometimes difficult. But Americacannot resist this transition; we must lead it. We cannot cede to other nations the technology that will power new jobs and new industries – we must claim its promise. That’s how we will maintain our economic vitality and our national treasure – our forests and waterways; our croplands and snowcapped peaks. That is how we will preserve our planet, commanded to our care by God. That’s what will lend meaning to the creed our fathers once declared.

We, the people, still believe that enduring security and lasting peace do not require perpetual war. Our brave men and women in uniform, tempered by the flames of battle, are unmatched in skill and courage. Our citizens, seared by the memory of those we have lost, know too well the price that is paid for liberty. The knowledge of their sacrifice will keep us forever vigilant against those who would do us harm. But we are also heirs to those who won the peace and not just the war, who turned sworn enemies into the surest of friends, and we must carry those lessons into this time as well.

We will defend our people and uphold our values through strength of arms and rule of law. We will show the courage to try and resolve our differences with other nations peacefully – not because we are naïve about the dangers we face, but because engagement can more durably lift suspicion and fear. America will remain the anchor of strong alliances in every corner of the globe; and we will renew those institutions that extend our capacity to manage crisis abroad, for no one has a greater stake in a peaceful world than its most powerful nation. We will support democracy from Asia to Africa; from the Americasto the Middle East, because our interests and our conscience compel us to act on behalf of those who long for freedom. And we must be a source of hope to the poor, the sick, the marginalized, the victims of prejudice – not out of mere charity, but because peace in our time requires the constant advance of those principles that our common creed describes: tolerance and opportunity; human dignity and justice.

We, the people, declare today that the most evident of truths – that all of us are created equal– is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.

It is now our generation’s task to carry on what those pioneers began. For our journey is not complete until our wives, our mothers, and daughters can earn a living equal to their efforts. Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well. Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote. Our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity; until bright young students and engineers are enlisted in our workforce rather than expelled from our country. Our journey is not complete until all our children, from the streets of Detroitto the hills of Appalachia to the quiet lanes of Newtown, know that they are cared for, and cherished, and always safe from harm.

That is our generation’s task – to make these words, these rights, these values– of Life, and Liberty, and the Pursuit of Happiness – real for every American. Being true to our founding documents does not require us to agree on every contour of life; it does not mean we all define liberty in exactly the same way, or follow the same precise path to happiness. Progress does not compel us to settle centuries-long debates about the role of government for all time – but it does require us to act in our time.

For now decisions are upon us, and we cannot afford delay. We cannot mistake absolutism for principle, or substitute spectacle for politics, or treat name-calling as reasoned debate. We must act, we must act knowing that our work will be imperfect. We must act, knowing that today’s victories will be only partial, and that it will be up to those who stand here in four years, and forty years, and four hundred years hence to advance the timeless spirit once conferred to us in a spare Philadelphia hall.

My fellow Americans, the oath I have sworn before you today, like the one recited by others who serve in this Capitol, was an oath to God and country, not party or faction– and we must faithfully execute that pledge during the duration of our service. But the words I spoke today are not so different from the oath that is taken each time a soldier signs up for duty, or an immigrant realizes her dream. My oath is not so different from the pledge we all make to the flag that waves above and that fills our hearts with pride.

They are the words of citizens, and they represent our greatest hope.

You and I, as citizens, have the power to set this country’s course.

You and I, as citizens, have the obligation to shape the debates of our time – not only with the votes we cast, but with the voices we lift in defense of our most ancient values and enduring ideals.

Let each of us now embrace, with solemn duty and awesome joy, what is our lasting birthright. With common effort and common purpose, with passion and dedication, let us answer the call of history, and carry into an uncertain future that precious light of freedom.

Thank you, God Bless you, and may He forever bless these United States of America.

Holy Terror: Lies the Christian Right Tells to Deny Gay Equality

Mel White has a new book out that looks at the tactics and agenda of the Christianists against LGBT citizens.  It is chilling in many respects, not the least of which is that the "godly Christian" crowd believes that deliberately lying is perfectly fine so long as the lies accomplish the goal of keeping LGBT Americans inferior and treated as less than full citizens.  Part of White's premise is that dialogue with anti-gay leaders is a waste of time since they are either "true believers" who believe the cherry picked biblical arguments against gays or because they are using the anti-gay crowd to line their own pockets or to trick simpletons into voting against their own economic interests.   Either way, it is important for members of the LGBT community and our allies to recognize the clear and present danger that Christianists represent to LGBT rights and lives.   Here are highlights from an interview of White by Religion Dispatches:

White spoke recently with Religion Dispatches about the release of his newest book, Holy Terror: Lies the Christian Right Tells Us to Deny Gay Equality, and the ongoing battle between the religious right and the LGBT community.

Candace Chellew-Hodge: You start your book with a litany of religious right characters who have either laid the groundwork for the battle against LGBT rights, or who are still warriors in this ongoing battle.  .  .  .  .   but why did this ever become a war?
Mel White: It really was a conscious declaration of war for various reasons, including fundraising, on a community for whom it caused this great suffering and death. Even the religious right will not admit that its rhetoric leads to all kinds of horrors. It really was launching a war and this is the way they were going to fight it and they’re fighting it that way now, so let’s look at it again and see what we ought to do.

I really believe that terrorism gets its way through violence or threats of violence. Here the Southern Baptists gathered recently to say that homosexuality is a sickness, that our relationships are sinful and we have 16 million Americans under the influence of that crowd and nobody confronts it.

You outline a secret summit in 1994 at the Glen Eyrie conference center in Colorado Springs, Colorado where 55 fundamentalist Christians gathered to discuss the consequences of the “militant homosexual agenda.” What happened there?
I compare it to the Nazis creating a solution for the Jews. These guys literally crafted a solution to the homosexual problem. The record of that conference, which was very secretive, wasn’t even released to the press. Somebody recorded it and it ended up at Tufts University library and a couple of lesbians found it there.

So we uncovered this radical piece of history where leaders from the Christian Right from all over the country gathered to decide the plan against gays and lesbians and that plan is still in place.  That plan was simply to release misinformation to create fear and then raise money to mobilize volunteers and create a backlash among the American people that would keep LGBT people from getting rights and protections.

At the heart of it, though, isn’t it really about protecting their wealth and raising money on the back of the LGBT community?
Behind the Koch brothers and the WalMart folks and the Chic-fil-A’s—these guys who are funding the religious right, that’s their goal—to protect their money from being too generous with the poor.

We laughed at these guys until suddenly in 2006, bam, they win. And they could win again. We thought with the election of Obama they were gone, the religious right had been defeated—but now they’re back in full force as the Tea Party.

They don’t use bombs and bullets to enforce their views, but they use this fear of God. They threaten that God will send people to hell—what’s more violent than that? They have violence on their side, too. It’s the fear of God’s violence, so God does the dirty work.

Earlier this year, the Southern Baptist Convention passed a resolution saying gay rights are not civil rights and within that resolution they say they don’t want any gay bashing or violence to come to LGBT people. Do they really not understand that passing these types of resolutions is gay bashing?
The trouble is I don’t think a lot of our people get it. They think religion has a right to believe what they want to believe and we don’t have any right to change religious opinions. But, I say, c’mon folks, this is the source of the violence and we’d better face it.

So, what’s the solution? How do we fight them and still keep our religion?
There’s only one solution, and that’s to come out. Until people know us for who we are they will be against us. But, once they know who we are and they know enough of us, then they’ll simply turn against the Karl Roves of this country and say, “This is bullshit.” That’s happening, but we’re just hoping it happens fast enough.

[F]orget the debates and dialogues. Fundamentalists don’t listen to dialogues. As I say in the book, “To play along with this game of studying, debating, and discussing if we are worthy of our civil rights is to help postpone justice and support the structures of religion-based bigotry.”

 The troubling truth is that the Christianists are cruel and vicious enemies - and not just to gays.  All too often these same self-congratulatory monsters hate blacks and other minorities with almost equal passion.  They are an enemy that needs to be recognized and treated as such.  Their lies and hypocrisy and greed when relevant needs to be exposed,  They are a blight on America and a clear and present danger to the promises of the Constitution for all citizens.

Congressional Republicans Continue to Seek to Persecute Gays in the Military

As the first anniversary of the repeal of the religious based discrimination known as Don't Ask, Don't Tell approaches, Congressional Republicans continue their efforts to give license to anti-gay bigotry within the military and to single out LGBT servicemembers for restrictions on use of military facilities.  In a letter to Congressional Democrats, the ACLU is urging Democrats to have a spine and kill these anti-gay measures.  The sad truth is that the Republican Party and its standard bearers, Mitt Romney and Paul Ryan, openly seek to grant special rights to hate and bigotry filled far right Christians to the detriment of other citizens.  Actions that I would argue are in direct conflict with the U. S. Constitution which prohibits special rights for any one religious group.  Note that one of the authors of the measures is the virulently anti-woman Todd Akin.  Here are portions of the ACLU's letter via BuzzFeed:  

Using Religion to Discriminate Against Lesbian and Gay Service Members

First, in what remains of the 112th Congress, one of the most important requests of Senate Democrats is to ensure that two anti-gay provisions included in the House-passed FY 2013 National Defense Authorization Act (NDAA) (H.R. 4310) are not included in the final version of this legislation that will be sent to President Obama for his signature later this year. These two provisions – Sections 536 and 537 respectively – would undermine the repeal of “Don’t Ask, Don’t Tell” and compromise open service for lesbian, gay, and bisexual service members.

Section 536, which is based on the so-called “Military Religious Freedom Protection Act” (H.R. 3828) and was offered as an amendment during markup in the House Armed Services Committee by Rep. Todd Akin (RMO), could function as a dangerous license to use religion as a cover for discrimination against lesbian, gay, and bisexual service members, by stating that the beliefs of members of the Armed Forces “concerning the appropriate and inappropriate expression of human sexuality” must be accommodated and shall not be the “basis for any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.” This language – a solution in search of a problem – could encourage the creation of personal, social, and institutional barriers which would make the military a hostile environment for the very people who only recently won a measure of equality. It would also make it very difficult for commanders to remove such barriers when they do arise.

Section 537 would prohibit Defense Department facilities from being used for private marriage or “marriage-like” ceremonies for same-sex couples, even where state law permits such marriages. This provision ignores the fact that these facilities are already available for use by service members for a range of religious functions and ceremonies, including weddings, funerals, baptisms, confirmations, and other events. To deny them to gay and lesbian service members – even in those states where same-sex couples enjoy the freedom to marry – based on nothing more than the sexual orientation of those wishing to make use of the facilities is discriminatory.

The ACLU continues the pressure and also urges Democrats to push passage of legislation that would bar the open anti-gay discrimination allowed under the laws of far too many states, including Virginia. Here's the on point language:

Moving LGBT Equality Under the Law Forward – SNDA, ENDA and Respect for
Marriage

The ACLU has been a longtime champion of three affirmative pieces of legislation – the Student Non-Discrimination Act (S. 555), the Employment Non-Discrimination Act (S. 811), and the Respect for Marriage Act (S. 598) – which would, if enacted, represent tremendous strides forward for LGBT equality under the law. All are long overdue and we would like to see continued movement on each of these measures in the near future.

The Student Non-Discrimination Act (SNDA) . . . . would have a profound impact in improving the lives of LGBT students in the U.S. by ensuring that discrimination and harassment of students on the basis of their sexual orientation or gender identity has no place in our nation’s public elementary and secondary schools.

[T]he Employment Non-Discrimination Act (ENDA) . . . . by prohibiting employment discrimination based on sexual orientation and gender identity in most American workplaces, the legislation will allow American workers who stand side-by-side at the workplace and contribute with equal measure in their jobs to also stand on the same equal footing under the law.

It is far past time that special rights for Christianists and a pass on their incessant anti-gay hate and bigotry cease to be legally sanctioned under the nation's laws.  Until this happens, America's claim that it guarantees religious freedom for all remains a lie and a farce.

How Marriage Inequality Fans Bullying and Homophobia

I have long argued that the far right and the Christofascists in particular eagerly support laws that discriminate against LGBT citizens because such laws allow them to point to the laws as proof that their religious based hate and bigotry is mainstream and correct.  Hence the Christianist struggle against the repeal of Don't Ask, Don't Tell and opposition by "godly Christians" to every law that would ban anti-gay discrimination in the work place, in housing and accommodations, etc.   The more the laws discriminate against gays, the happier the Christofascists will be.  This same phenomenon carries over into the struggle for same sex marriage.  While the National Organization for Marriage ("NOM") disingenuously claims it is trying to "protect marriage" the fact that NOM and its allies are increasingly pushing the "ex-gay" myth and the fraudulent work of Paul Cameron, the more clear it becomes that the agenda is something else far beyond "protecting marriage."  It's about fanning homophobia and setting an atmosphere where anti-gay bullying is seen as perfectly proper.  After all, if the law deems gays as inferior, then bullies can feel justified in their abuse of LGBT individuals.  A piece in Huffington Post looks at how this legalized discrimination creates support for rampant homophobia and the deadly bullying that goes hand in hand with it.  Here are some highlights which seem equally applicable in America:

On May 17 we marked the International Day Against Homophobia (IDAHO). It reminded me of the president of Ireland's recent address, speaking at a youth conference in March. President Higgins spoke of the "appalling, destructive reality of homophobia."

President Higgins went on to state, "The idea that any young person could be driven, not just to lower self-esteem, exclusion, isolation, loneliness, but self-destruction itself, is an appalling blight on a society." His words are chilling. His words are true. The president was deservedly commended for his condemnation of the harsh actuality we face as a society. But we're missing something.

Bullying comes about through a lack of empathy inside, displayed outwardly as intolerance. Anti-gay bullying and the denial of marriage equality are not mutually exclusive in that sense. People are bullied because they're perceived as different. We blame the bully, possibly the parents. We want to hold someone accountable. But we need to look at the wider picture. We need to consider the fact that the law treats citizens differently. The law perceives some of us differently. The bullies aren't blind. Whose lead are they following?

The Constitution of Ireland sets out our bill of rights. Article 40.1 makes a guarantee that "[a]ll citizens shall, as human persons, be held equal before the law." And therein lies the problem. The problem is the fact that where the issue of marriage equality is concerned, the emphasis is placed on our gender, on our sexual orientation, whereas marriage laws should be about us as human beings, as "human persons," in line with Article 40.1.

The law doesn't embrace who they are, not fully. Article 40.1 becomes conditionally operational and is precluded from being relied upon in certain circumstances. The family provision, Article 41, goes one step further and even operates to deny a right: the right of marriage. What message is this sending down the line? It's a very strong message. It comes from on high. It comes from the top. It comes from the very document our heroes of history fought to establish, for Ireland, for the people, for all of us.

We're a progressive country. We pride ourselves on embracing all types of people. Why, then, do we stop short of embracing all types of families? How can we teach these youngsters to accept themselves when we know they're going to grow up without full acceptance from society, from the law? The mainstream, and indeed the law, is not reflecting equality. It's not reflecting reality. It's excluding certain people, and it is having a damaging effect.

As I said, the enemies of the LGBT community understand the importance of the law treating us differently.  It sends a strong message in support of bigotry and discrimination.  All based ultimately on religion.  Something all of us are supposed to be able to practice as we wish.  Until anti-gay laws are eliminated and marriage equality is allowed nationwide, the promise of the First Amendment of the U.S. Constitution remains a farce and America is a fraud when it claims to champion freedom of religion.  It doesn't.  It champions a fear and hated based version of Christianity.

GOP Birthers Attack Marcus Rubio

The totally untethered from reality GOP base never seems to cease to surprise in terms of their never ending conspiracy theory like agenda that cannot tolerate anyone who isn't a white evangelical Christian. The latest target of the unceasing paranoia of the far right is Florida Senator Marcus Rubio who is now being attacked by the birther crowd. Candidly, I cannot help but wonder what kind of tainted water these folks are drinking could it be water contaminated by oil extraction fracking operations? World Net Daily, a/k/a Wing Nut Daily, has a piece that attacks Rubio for not being a "real American." Here are some highlights:

Although the name of Florida Sen. Marco Rubio is mentioned more than any other as a potential GOP vice presidential candidate, a document found in the National Archives raises questions about whether the popular U.S. senator is actually qualified constitutionally to serve as president or vice president.

The Petition for Naturalization on behalf of Mario Rubio, the senator’s Cuban father, has been retrieved from the National Archives and posted online by the PixelPatriot website, confirming that Marco Rubio was about four years old when his parents became U.S. citizens. Specifically, Mario Rubio was naturalized as an American citizen in 1975, based on the Sept. 9, 1975, date on the petition; Marco Rubio was born in 1971.

The question is whether Rubio is a “natural born citizen” – constitutionally required of all presidents – a unique citizenship status defined by the Founding Fathers, according to many legal experts, as being the offspring of two citizens of the country. Of course, the same question has dogged Barack Obama since before the 2008 election and continues to this day.

Joseph Farah, founder and CEO of WND.com, also has argued that the definition of “natural born citizen” excludes Rubio. “Rubio is, quite simply, not a ‘natural born citizen’ by the accepted legal, English-language standard as it has been known throughout American history. He was born in Florida to two non-U.S. citizen parents,” he wrote.

“I know this is not a popular notion among Republicans, just as it wasn’t among Democrats when challenges were made to Obama. However, the Constitution should always trump political expediency.

One can only assume that excess quantities of Kool-Aid has been imbibed by these folks,but that sums up far too many members of today's Republican Party.

Exposing the Real Republican Party

The reactions to Rick Santorum's denunciation of the long recognized constitutional law concept of the separation between church and state noted continue to roll in. As noted in a post earlier today, Santorum and today's GOP are in many ways unrecognizable when compared to the GOP of yesteryear. Fifty years ago my late father was an active Republican in New York State and he would horrified to see what has become of the GOP. I myself was on the city committee for the Virginia Beach Republican Party for eight years (I was even the incorporator for the Virginia Beach GOP) and was precinct captain in a GOP bastion in Virginia Beach. And I am just as horrified as my late father would be to hear Rick Santorum attacking the principle of the separation of church and state. Unfortunately, Santourm, a/k/a Frothy Mix, is the face of what it means to be a Republican in 2012. Andrew Sullivan summed up the situation in a post earlier today. Here are some excerpts that demonstrate the clear and present danger the far right Christianists pose to the nation:

What's fascinating to me about Santorum's outburst yesterday was not its content, but its candor. In fact, one of Santorum's advantages in this race, especially against Romney, is that we can see exactly where he stands. There can be no absolute separation of church and state, let alone a desire to keep it so; and in their necessary interactions, the church must always prevail, or it is a violation of the First Amendment, and an attack on religious freedom. The church's teachings are also, according to theoconservatism, integral to the founding of the United States. . . . America is a special nation because of this unique founding on the Judeo-Christian God. It must therefore always be guided by God's will, and that will is self-evident to anyone, Catholic or Protestant, atheist or Mormon, Jew or Muslim, from natural law.

Hence the notion that America could countenance abortion or same-sex marriage is anathema to Santorum and to theoconservatism. It can only be explained as the work of Satan, so alien is it to the principles of Judeo-Christian America. Hence the resort to constitutional amendments to ban both: total resolutions of these issues for ever must reflect what theocons believe was in the Founders' hearts and minds.

It is a radical theocratically - based attack on modern liberal democracy; and on modernity as a whole. It would conserve nothing. . . . .It is at its essence a neo-Francoite version of America, an America that was not the pinnacle of Enlightenment thought, but an America designed to destroy what the theocons regard as the catastrophe of the Enlightenment.

This [Kennedy's speech] is an explicit public denial that this country is a Christian nation. It is a reaffirmation that "the Government of the United States of America is not, in any sense, founded on the Christian religion." The most important feature of today's GOP - and the fundamental reason I have long abandoned it - stands foursquare against that idea. Moreover, in its fusion of explicit religion and explicit politics, it is itself, in my view, an attack on America - and the possibility of a civil republic. Its religious absolutism is the core underpinning of this country's polarization - because when religion becomes politics, negotiation and compromise become impossible. Bring God into it, and a political conversation must become a culture war.

For Santorum, as for Ratzinger, if your conscience says one thing, and the Pope says another, you obey the Pope, not your conscience. And for the Christianists, if your conscience or intelligence says one thing, and the Bible says another, you obey the Bible, not your conscience, and certainly not your intelligence. Because beneath Christianism is a deep fear of the human mind . . . .

This is Santorum's fear-laden vision. Which is why he is not a man of questioning, sincere faith and should not be flattered as such. He is a man of the kind of fear that leads to fundamentalist faith, a faith without doubt and in complete subservience to external authority. There is a reason he doesn't want many kids to go to college. I mean: when we already know the truth, why bother to keep seeking it? And if we already know the truth, why are we not enforcing it as a matter of law in a country founded on Christian principles? It is not religious oppression if it is "the way things are supposed to be", by natural law. In fact, a neutral public square, in his mind, is itself religious oppression.

I am relieved he is at least candid. For now we can see in plain view the religious fanaticism that has destroyed one of the major parties in this country, a destruction that is perilous for any workable politics. It must be defeated - and not by electing a plastic liar and panderer like Romney. But by nominating Santorum and defeating him by such a margin that this theo-political Frankenstein, which threatens both genuine faith and civil politics, is dispatched once and for all.

Andrew makes several points I have made as well in many posts on this blog. The only thing he fails to address sufficiently, in my opinion, is the culpability of the GOP elites who for years courted and pandered to the Christianist zealots and hate mongers with no plan as to how to keep the maniacs from taking over the party.

The Increasing Extremism of the GOP

There are some who claim I overstate the situation of the Christianist take over of the Republican Party. At times, if anything, I think I understate the problem. As the Texas Tribune is reporting, polls in Texas show Rick Santorum - the true Christofascist of the GOP nominee field - holding a huge lead over all other contenders. And frighteningly, a similar phenomenon probably holds true across the evangelical South where far right religious dogma trumps science, knowledge and any respect for the constitutional rights of other citizens. I continue to believe that far right Christians pose a clear and present danger to constitutional government in this nation and a clear threat to minority rights. One need only look at what's happening to Virginia for a first hand example. Here are some article highlights:

Former Sen. Rick Santorum of Pennsylvania has a commanding lead among Republican presidential candidates in Texas, according to a new University of Texas/Texas Tribune poll.

Santorum would get the votes of 45 percent of the respondents if the election were held today, according to the survey. The other three candidates in the GOP race — former U.S. House Speaker Newt Gingrich, former Massachusetts Gov. Mitt Romney and U.S. Rep. Ron Paul of Texas — are clustered well behind. Gingrich got 18 percent, Romney received 16 percent and Paul garnered 14 percent.

"The GOP primary electorate has been and remains very conservative," Henson said. "The second thing is that Republican Party identification is still the name of the game in Texas. If you're the guy with 'R' next to your name and you're running against Barack Obama in a general election, you have a pretty significant advantage."

Santorum is the only Republican in the race who received more favorable grades than unfavorable grades from voters.

"Three or four months ago, I thought Republican voters were just looking around, that they didn't just dislike Romney, but that they thought there might be a better option. I don't know that you can think that anymore," Shaw said. "I think it's pretty clear that they're not just looking around in a way that would allow them to ultimately come back and settle with Romney. They seem to have looked at him and rejected him. They will not settle for the guy."

The GOP establishment created a Frankenstein monster that is now on the loose and there may be no way to kill it other than crushing electoral defeats. And if that doesn't happen, this country is headed down the toilet.

The Right's Attack on the Constitution and Representative Government

Increasingly, the Republican Party and those in its Christianist/Tea Party base seem to support representative government and the U. S. Constitution only when they suit their purposes. Here in Virginia, the Republican Party of Virginia is pressing forward with an extremist agenda that is clearly opposed by most Virginians. But that's apparently fine and good with the extremists and they argue that the people voted them into office. But when elected bodies approve measures that conflict with the hate and prejudices of the far right and their puppets in the GOP, then suddenly legislative action is not enough. No, instead they want a referendum and an opportunity to stir up the haters and bigots so as to try to reverse legislative and judicial action. While doing this, of course, they claim that they are the true protectors of the Constitution even as their actions flout the framework drawn up by the Founding Fathers. Andrew Sullivan has commentary on this hypocrisy and effort to undermine the U. S. Constitution and representative government. Here are highlights:

As the GOP moves relentlessly off the far right cliff, the country is edging relentlessly toward accepting the humanity of gay couples and our marriages and relationships. But Chris Christie's veto - after New Jersey's legislature backed equality - and Maryland's upcoming referendum - after its legislature and governor passed a marriage equality law - form a sad last ditch.

To give some perspective, when we first started this push for marriage equality twenty three years ago or so . . . the opposition was adamant about one thing: the courts had nothing whatever to do with ensuring minority rights, if that minority were gay. . . . . I thought that public education and state legislative debate was the right way forward. If in the end, the courts reacted to a shift in public opinion, and we won the constitutional and legal arguments, great. But I thought state legislatures were the main way to go.

So we did. And guess what? They moved the goalposts on us. When we actually began to win in state legislatures, such as California (twice!), or New Hampshire, or now Maryland and New Jersey and Washington State, that process became suddenly unacceptable - and undemocratic! - as well. Even on an issue many hold to be a core civil right, we were told the courts were irrelevant and now that the legislatures were irrelevant. This was particularly odd coming from conservatives who at one point in time were strong believers in restraints on majority tyranny.

The polls are now increasingly on our side. But the way in which a tiny 2- 3 percent minority seeking basic civil equality has been forced now to be subject to state referendums, even after winning legislative victories, strikes me as revealing. It's basically an attack on representative government, a resort to the forms of decision-making which maximize the potential for anonymous bigotry and minimize the importance of representative government, a core achievement of Anglo-American democracy, that can help enhance reason of the accountable against the sometimes raw prejudice of the majority.

[Christie's veto] was an act of cowardice and unfairness and a misguided disregard for representative democracy. How many other duly enacted laws must now be sent to the referendum process for final judgment. Why have a legislature at all? And this from the party that claims to defend the Constitution.

Does the Constitution Already Require Same Sex Marriage?

I have long argued that the United States Constitution requires same sex marriage under the equal protection clause of the 14th Amendment and/or the First Amendment freedom of religion mandate. Others are obviously thinking along the same lines: David Mixner shared this graphic his niece made on Facebook. The reasoning is 100% on target.

Gingrich: 'Activist Judges' Should Be Arrested

The batshitery that Newt Gingrich is willing to vent in his non-stop effort to utterly prostitute himself to the Christianist elements who would overthrow the U.S. Constitution if possible seems to know no limits. In Gingrich's latest episode of diarrhea of the mouth, Gingrich has espoused the desire to arrest "activist judges." Of course, Gingrich and his puppeteers from the Kool-Aid drinking set would take it upon themselves to define "activist." Personally, if Gingrich wants to arrest activist judges, he can start the process with Supreme Court justices Clarence Thomas and Antonin Scalia who are trashing the U. S. Constitution in an effort to enshrine their personal religious beliefs and bigotries into the law. The only good news is that even as Gingrich becomes more of a tawdry whore, his poll numbers have been dropping. Here are highlights from ABC News on Gingrich's desire to undermine the federal judiciary:

Presidential candidate and former House Speaker Newt Gingrich suggested today that he would have the Capitol Police or U.S. Marshals arrest activist judges, citing an incident in which a sitting federal judge ordered students not use the word "benediction" in their high school graduation.

Gingrich, who currently leads the polls in the field vying for the Republican nomination, made the suggestion in response to a hypothetical scenario posed on CBS's "Face the Nation."

"If you had to, or you'd instruct the Justice Department to send a U.S. Marshall," he said. "Let's take the case of Judge Biery. I think he should be asked to explain a position that radical."

U.S. District Judge Fred Biery received harsh scrutiny from many in June for a ruling barring religious speech during the high school graduation ceremony at Medina Valley Independent School District in Texas. The ruling was quickly overturned by a federal appeals court, but Gingrich used the incident to launch a greater assault on what he said is a judiciary out of touch with mainstream values.

Gingrich also cited "The Federalist Papers" today to make his case for weakening the judicial branch.

"The constitution promises a balance of the judicial branch, executive branch and legislative branch," he said. "'The Federalist Papers' say specifically the weakest of the three branches is the judiciary. [Thomas] Jefferson abolishes 18 out of 35 federal judges."

Judges do not have the power to write new laws but are often criticized for overturning old laws or enacting new policy when lawsuits are successfully argued in court.

But in contrast to his hard-line position on judicial activism, Gingrich said he does not believe that all illegal immigrants should be arrested en mass. "I do not believe the American people are going to send police out to round up folks who have been here 25 years," Gingrich said.