Meet A Law Professor Conservatives Turn To On Marriage, Immigration And The SCOTUS Blockade
Among the right-wing figures encouraging Republican senators to block any nominee President Obama might make to the U.S. Supreme Court last week was law professor John Eastman, who right-wing radio host Hugh Hewitt calls “perhaps the most revered center-right specialist in America.” If that’s true, it may be because Eastman puts himself out there on so many issues that rile today’s far-right. He chairs the anti-gay National Organization for Marriage and he is also one of the leading voices in opposition to birthright citizenship. His advocacy pretty much covers the right wing’s public policy wish list.
On Hewitt’s radio show on February 15, Eastman called Scalia’s death a “devastating loss” not only for Scalia’s family “but also for our understanding of the appropriate role of the court in constitutional adjudication.” Eastman agreed with Hewitt’s assertion that it is “well within” Republican senators’ constitutional authority “not to give a hearing or a vote to President Obama’s nominee,” saying that Republicans “ought to oppose with every bit of their power” the kind of nominee he would expect from President Obama, someone who he believes will “try and nail the lid in the coffin on advancing his radical transformative agenda.”
Eastman said Scalia’s death will put the role of the high court at the center of the presidential campaign, declaring that “there is a fundamental difference” between the political parties on a central question: “Do we live in an autocratic, unelected regime run by nine black robed individuals, or are we the people the ultimate sovereigns in this country?”
That’s the kind of rhetoric that warms the hearts of far-right leaders like Sharron Angle, the Tea Party activist who lost a challenge to Nevada Sen. Harry Reid in 2010 and whose is encouraging an effort by a couple of state legislators to draft her for a 2016 Senate bid. “The U.S. Senate should absolutely put a hold on any nomination this President sends to the hill,” Angle said last week. “We have to stop the damage to the Constitution now!” Angle went even further, declaring that Eastman would make the “perfect” Supreme Court justice.
If he ever did make it onto the court, Eastman would manage the remarkable feat of being to the right of the late Justice Scalia. Like Chief Justice John Roberts, Scalia opposed the Supreme Court’s infamous 1905 Lochner decision, which ushered in an era in which the court routinely rejected economic regulations, like a state limiting the hours employees could be required to work, and exhibited hostility to union activity. On Hewitt’s show, Eastman recalled Scalia turning a speaking invitation into a forum on Lochner, on which Scalia disagreed with Eastman, who is part of a pro-Lochner movement in right-wing legal circles. Eastman also takes a fringe position, one held on the current Supreme Court only by Justice Clarence Thomas, that the First Amendment’s ban on the establishment of religion cannot be properly applied to the states.
Eastman is a professor at Chapman University’s Fowler School of Law in California and is the founding director of Center for Constitutional Jurisprudence, affiliated with the conservative Claremont Institute. He stepped down as dean of the law school to run for California attorney general in 2010. National right-wing leaders, including Ed Meese, Ed Whelan, Bill Bennett, Michele Bachmann and others backed his bid, but he failed to win the nomination. Eastman, who clerked for Supreme Court Justice Clarence Thomas and 4th Circuit Appeals Court Judge Michael Luttig, worked at the U.S. Commission on Civil Rights during the Reagan administration. In 1990 he was the GOP nominee for Congress from the 34th District in California.
A few highlights (or lowlights) from Eastman’s activism and rhetoric:
Role of the Courts
Eastman, who chairs the National Organization for Marriage, appeared at a July 2015 Senate hearing convened by Ted Cruz after the Supreme Court’s marriage equality ruling, which Cruz called “the very definition of tyranny.”
Eastman agreed with Cruz’s call for Supreme Court justices to be subjected to judicial retention elections and term limits, and added his own proposals to keep the court in check. He said a simple majority of states should be allowed to override “egregiously wrong” Supreme Court decisions, and that Congress should be able to veto Supreme Court rulings by a two-thirds majority in both houses. He also suggested that Congress should impeach judges whose rulings it considers unconstitutional. And he interpreted Scalia’s dissent in the marriage case to be “an invitation to executive officials throughout the land to refuse to give their ‘aid’ to the ‘efficacy of the’ Court’s judgment in the case.”
I truly hope this Committee will give serious thought to these proposals, advancing them with your approval, first to the full Senate, then to the other House, and then ultimately to the people for consideration and hopefully ratification. But I encourage you to do that soon, as I sense in the land a strong feeling that our fellow citizens are about out of patience with the “long train of abuses and usurpations” that have emanated from an unchecked judiciary. They have demonstrated for a very long time now that they, in the words of the Declaration of Independence, have been “more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms [of government] to which they are accustomed.” We should not expect that the patience of our fellow citizens will last forever. Let us now, therefore, in good faith, advance solid proposals to restore and expand checks and balances on the judiciary before that patience runs out.
Marriage and LGBT Equality
Given his position at the National Organization for Marriage, which he has chaired since 2011, it is not surprising that Eastman’s rhetoric in opposition to marriage equality has been consistently hostile. When he took the position, he told the conservative National Catholic Register, “Evil will be with us always, and it requires constant vigilance to defeat.”
At the 2012 Conservative Political Action Conference, Eastman attacked the Ninth Circuit decision overturning California’s Proposition 8 and warned that legalizing marriage for same-sex couple would hurt children and have “catastrophic consequences for civil society.” He said marriage equality “would destroy the institution that has been the bedrock of civil society since time immemorial.”
At the June 2014 March for Marriage in Washington, organized by NOM, Eastman said that Justice Scalia’s dissent from the court’s 2013 decision overturning the federal Defense of Marriage Act was “a call to arms.” “Let the justices know that we will not tolerate them redefining marriage!” he said. “The good of society and the wellbeing of our children depend on it!”
In 2014, after the Supreme Court refused to hear an appeal of a federal court ruling that made legalized marriage for same-sex couples in North Carolina, Eastman told North Carolina legislative leaders to defend the state’s marriage ban anyway — even though Attorney General Roy Cooper had said it would be a waste of taxpayer money. The Charlotte Observer later reported that the Claremont Institute, where Eastman serves as the director for the Center for Constitutional Jurisprudence, had billed North Carolina $78,200 for its work defending the law, a price that it said included a “public interest” discount.
In an April 2015 podcast for the Constitution Center following oral argument in Obergefell, Eastman said it was “perfectly legitimate” to limit marriage to opposite-sex couples due to their “unique procreative ability.” He denounced the Supreme Court’s 2015 marriage equality ruling as “not only wrong, but illegitimate,” going so far as to encourage anti-equality groups in Alabama to resist the decision.
In 2015, commenting immediately after the Supreme Court’s marriage equality ruling for a Federalist Society podcast, Eastman called it “surreal beyond belief” to believe the people who ratified the 14th Amendment would believe that it mandated “the redefinition of a core social institution that is both religiously and biologically grounded.”
Eastman has praised Rowan County, Kentucky, clerk Kim Davis, who tried to stop her county office from issuing marriage licenses to same-sex couples after the Supreme Court’s ruling, saying “She confronted what I call a Thomas More moment, and she’s demonstrated her saintliness in how she’s responded to this.”
Outside of marriage equality, Eastman has said that a ruling by the Equal Employment Opportunity Commission’s decision to treat discrimination on the basis of sexual orientation as a form of sex discrimination was an example of the “utter lawlessness” of the way “these agendas are being pushed through.” Last July Eastman said that some gay rights activists “in their candid moments … have admitted that they want to destroy the church, and they want to destroy the family…”
A few months ago, Eastman reacted to Hillary Clinton’s address to the Human Rights Campaign in a radio interview in which he denounced the LGBT equality movement as “fascist” and claimed that it was promoting pedophilia:
This is not about anti-discrimination laws any more. This is about forcing people to bend the knee to an agenda to say things that are inherently immoral are in fact normal and moral … It’s a very fascist movement that forces a viewpoint on other people that disagree ... We’re finding challenges to age of consent rules because a good portion of this movement seeks to remove age of consent so they can have sex with teenage boys.
He claimed that the LGBT movement’s actual goal was not to achieve the right to marry but to destroy the institution of marriage, because the family is a bulwark against unlimited and omnipotent government.
Support for Uganda’s Anti-Homosexuality Act
In 2015, Eastman gave a speech at the Family Research Council defending Uganda’s notorious Anti-Homosexuality Act and saying he hoped the law — rejected by the country’s Supreme Court over a procedural issue — would come back “in short order.”
He cited as justification for the law President Mouseveni’s claims that “western groups” were trying to use the schools to recruit children into homosexuality. Eastman said that the law’s provision for lifetime in prison was only for “aggravated homosexuality,” which he defined as “homosexual acts” by someone with HIV/AIDS or “homosexual acts with minors.” In reality, the law’s definition of “aggravated homosexuality” also included serial offenders. As he noted, the law included prison terms for someone who “counsels” a person into homosexuality, a provision that seemingly did not bother Eastman. The law would even have imposed a prison term of up to seven years for attempting “to commit the offence of homosexuality.” Eastman denounced American opposition to the bill as “cultural imperialism.”
Eastman also joined Family Watch International’s Sharon Slater as a speaker at a “National Family Conference” in Nairobi in 2015; the conference was sponsored by Kenya Christian Professionals Forum, a group that not only supports the country’s law criminalizing homosexual sexual activity, but fought to prevent LGBT groups from even being allowed to legally register as advocacy organizations.
Immigration as Invasion
Eastman has also become one of the most visible advocates for eliminating the 14th Amendment’s protection of birthright citizenship. Actually, Eastman believes there’s no need to change the Constitution or law in order to deny citizenship to children born in the U.S. to undocumented immigrants, just a court decision to correct what he thinks is an erroneous interpretation of the 14th Amendment.
In December 2014, Eastman testified at a Senate Judiciary Committee hearing on President Obama’s executive actions on immigration, which he said violated the Constitution. Eastman rejects the idea that the administration’s actions reflect an exercise of prosecutorial discretion. Obama, he said, “has taken it upon himself to drastically re-write our immigration policy, the terms of which, by constitutional design, are expressly set by the Congress.”
Eastman has been at this for a long time. He testified before a House subcommittee in 2005 in favor of reconsidering birthright citizenship in the wake of 9/11, and he published a paper for the Heritage Foundation in 2006 urging Congress to assert its authority and make clear that children born to people who are not in the country legally are not considered citizens.
In a 2006 Federalist Society exchange, he said:
Our current non-enforcement policy has fostered "outlaw" communities of non-citizens amongst our midst, who not only work illegally, but who are bankrupting our social services systems and who, tragically, are preyed upon by trans-border thugs well aware that their victims will not report crimes for fear of deportation. This is no way to treat fellow human beings. Why should we expect that the new spate of amnesty proposals, whether denominated "guest worker" plans or something else, will not also continue the incentive for illegal immigration that the 1986 Act provided?
In that same Federalist Society Q&A, he noted that the Constitution requires the president to protect the country against invasion, adding, “We have been invaded by more than 10 million people, and it is the president's duty, not just right, to defend against that invasion.” He also challenged the notion of dual citizenship, calling it “self-contradictory” and saying “it has no place in our existing law.”
In 2011, he co-authored an article for a Federalist Society publication defending Arizona’s infamous anti-immigrant bill SB 1070, writing that “Arizona was well within its rights to adopt SB 1070. Indeed, given the border lawlessness that Arizonans are facing, it is not a stretch to argue that the Arizona government may well have been duty-bound to take some such action.”
Eastman is critical of more than a half century’s jurisprudence on church-state issues. He says that under the modern view of church-state separation “we completely destroy the foundation for our entire constitutional system.” He has argued that a state taxing people to support an official church, as some states did early in the nation’s history, was not all that coercive and, as we noted earlier, he believes it is wrong to interpret the 14th Amendment as applying the Establishment Clause of the First Amendment to the states.
Eastman champions an expansive reading of the Religious Freedom Restoration Act in line with the Supreme Court’s Hobby Lobby ruling and backs the passage of additional state RFRAs and religious exemptions. He has joined Religious Right leaders in portraying Rowan County, Kentucky, clerk Kim Davis as a heroine for refusing to marry same-sex couples.
Eastman, not surprisingly, supports right-wing attacks on unions. In a July 2015 blog post, Eastman argued that it is “time to drive a stake through the heart of mandatory dues.” Eastman noted that Justice Samuel Alito, writing in an earlier decision, essentially invited the kind of lawsuit that the Court has agreed to hear this term in the Friedrichs case, which conservatives hope the Supreme Court will use to dramatically weaken the power of public employee unions.
Constitutional Limits on Spending
Eastman has also argued that the country’s view of the Constitution’s Spending Clause has been wrong ever since the Supreme Court’s 1936 decision in United States v. Butler. He believes Congress does not have the constitutional authority to make appropriations for “internal improvements,” citing, among other things, President James Buchanan’s veto of a bill that would have granted public lands to states for the establishment of agricultural colleges.
In 2014 he joined the advisory council of the Compact for America, a group whose goal is to have the states propose and ratify a balanced budget amendment to the U.S. Constitution through an “Article V” convention. Under the proposal, Congress could only increase the debt limit with the approval of a majority of the state legislatures; any new sales or income taxes would require two-thirds approval of both houses of Congress.
At a Federalist Society debate, Eastman referred to Roe v. Wade as one of the Supreme Court’s “grievous mistakes” — like its affirmation of the Affordable Care Act’s constitutionality — to which he would not give deference. At a Federalist Society panel from 2014 on the ACA’s contraception mandate, he argued that there is basically no distinction between individuals and the corporate structure when it comes to freedom of conscience, a view adopted by the Court majority in Hobby Lobby, which has opened a door to corporations claiming exemptions from generally applicable laws based on the religious beliefs of company owners, such as complying with the requirement that insurance provided for employees include coverage for contraception.
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