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      The future of US elections hinges on an outlandish case before the supreme court | Moira Donegan

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      The future of US elections hinges on an outlandish case before the supreme courtMoira DoneganThe ‘independent state legislature’ theory has rarely been put forward, and then only by blatant partisans acting in bad faith Going into the oral arguments for Moore v Harper on Wednesday, it was easy to forget just how radical and strange it was that the US supreme court was hearing the case in the first place.Moore v Harper is a challenge by North Carolina’s Republican-controlled state legislature to a decision by the state’s Democratic-controlled supreme court, which threw out what the court called an excessively gerrymandered congressional district map that the legislature put forward, saying the map violated a state constitutional law guaranteeing free elections. Unhappy, the legislature adopted what used to be a fringe theory: that state courts don’t have much jurisdiction over election matters at all.The US supreme court is poised to strike another blow against gay rights | Moira DoneganRead moreThis used to be the kind of claim that a different supreme court would never dignify by granting certiorari. The “independent state legislature” theory has been put forward only a handful of times over the past hundred years, and even then, only by blatant partisans acting in transparent bad faith.But “blatant partisans acting in transparent bad faith” is now a decent description of the supreme court, so the meritless case is being heard this term. And the North Carolina legislature’s gambit even has a shot of succeeding. When oral arguments began on Wednesday morning, the theory advanced by the legislature had garnered public expressions of support by four of the nine sitting justices – Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas. As happens so frequently with this court, a theory that was once confined to the radical rightwing fringe has been ushered into doctrinal legitimacy by judges eager to secure conservative outcomes.The independent state legislature theory posits that, when it comes to determining how to conduct federal elections, state legislatures have virtually no limits on their authority and no other government bodies that can check them. State constitutions can’t limit how legislatures order elections, according to this theory, and neither can state courts.It’s an odd conception of state legislatures, picturing their power over elections as special and different, not subject to the ordinary checks and balances of executive actions and judicial review. Under it, all state constitutional provisions that protect voting rights, ensure equal protection of the law and guarantee due process would be moot, as far as elections go; legislatures would not be bound by them.And it’s a vision of state legislative authority in elections that the supreme court has rejected as recently as 2015: in Arizona State Legislature v Arizona Independent Redistricting Commission, the court ruled that voters could use a ballot initiative to create an independent commission to draw new congressional districts. The North Carolina legislature, meanwhile, has itself asked the state supreme court to weigh in on certain election administration questions, making their own claim that that court has no authority on such issues seem odd. If it were adopted by the federal supreme court, the independent state legislature theory would call a mulligan on all of this, disposing of the regular relationship between state legislatures and state courts along with about 100 years’ worth of precedent.The most terrifying case of all is about to be heard by the US supreme court | Steven DonzigerRead moreApplied to appointing electors every four years for the presidential election, this was the theory that backed the election subversion plot cooked up by Trump adviser and disgraced law professor John Eastman: it was the theory that if a state legislature didn’t like the electors dictated to them by the voters of their states, they could simply advance another slate of electors instead.The case before the supreme court now applies the theory to federal congressional elections. It posits that if a state legislature wants to draw a dramatically gerrymandered congressional map – the kind that dilutes the value of votes, erodes the competitiveness of elections and forecloses the ability of the people to express their will through the political process – then it can. State legislators have to abide by the rule of law, according to the theory – except for when they’re determining the rules by which they get to remain in power.Moore v Harper has come to be seen as an existential threat to functioning democracy in America, in no small part because, in the hands of insurrectionists like Eastman, the tenets of the independent state legislature theory have already become fodder for an attempted coup. But it seems that what might decide the fate of the theory is not its threat to the integrity of implementation but practical matters of applicability.At oral arguments on Wednesday, the liberal justices hammered lawyers for North Carolina’s legislature about the unaccountable extra-constitutionality of the scheme. Even the arch-conservative Samuel Alito seemed less than enthused, though there’s no doubt he will support the theory when it’s time to issue opinions. But as in most cases this court hears, those votes were never really in play: Alito will vote for whatever seems favorable to the Republican party; Gorsuch seemed downright excited about the theory at oral arguments; and Thomas’s wife, Ginni Thomas, lobbied for the theory in the aftermath of the 2020 election.Meanwhile, Chief Justice Roberts has been publicly skeptical of the theory, and didn’t give much indication at oral argument that he had changed his mind. Brett Kavanaugh, ever eager to grasp at some semblance of moderation and respectability that might make the public forget that there are multiple credible accusations of sexual assault against him, seems eager to split the baby; he’s indicated in the past that he would prefer a smaller nullification of state judicial review than what the North Carolina legislature is asking for. Theirs are not the votes that matter, in the end. The vote that matters is Amy Coney Barrett’s.The January 6 committee has its sights on Ginni Thomas. She should be worried | Kimberly WehleRead moreAnd so it was exceptionally good news for the country that the Trump appointee appeared skeptical of the petitioner’s argument on Wednesday. The theory, it was pointed out, would create chaos in the federal courts, delegating huge numbers of murky elections disputes to the federal judiciary as state courts are stripped of jurisdiction. The North Carolina legislature’s attorneys tried to make an obscure distinction between “substantive” elections questions, which state courts would not be able to rule on, and “procedural” questions, which they would; Barrett wasn’t buying it, correctly pointing out that that very distinction was likely to be disputed.The theory would create different rules for state and federal elections, fomenting chaos that would enable those with the worst motives to serve their own interests, instead of the country’s. Hopefully, that prospect won’t appeal to Barrett. But the chaos was always precisely the point.
      Moira Donegan is a Guardian US columnist
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      US supreme court hears case that could radically reshape elections

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      US supreme court hears case that could radically reshape electionsCase brought by North Carolina would give partisan state legislatures near total control over elections with no role for courts The US supreme court heard arguments on Wednesday in Moore v Harper, one of this term’s highest profile and most contentious cases which has the potential to fundamentally reshape elections for Congress and the presidency.The justices appeared to be starkly divided along predictable ideological lines as they mulled over the power of state courts to strike down congressional districts drawn by state legislatures because they violate state constitutions.The most terrifying case of all is about to be heard by the US supreme court | Steven DonzigerRead moreRepublicans from North Carolina who brought the case argue that a provision of the US constitution known as the elections clause gives state lawmakers virtually total control over the “times, places and manner” of congressional elections, including redistricting, and cuts state courts out of the process.The Republicans are advancing a concept called the “independent state legislature theory”, never before adopted by the supreme court but cited approvingly by four conservative justices.The direction of questioning at Wednesday’s hearing suggested thatthree of those conservative justices – Samuel Alito, Neil Gorsuch and Clarence Thomas – were open to the idea of adopting the theory, despite decades of precedent from their own court dismissing it. They seemed to have the slightly more tentative backing of Brett Kavanaugh, who was part of the legal team in 2000 that assisted George W Bush through Bush v Gore, the case that in modern times put the independent state legislature theory on the map.On the other side of the argument, the three liberal-leaning justices were profoundly critical of the notion that state legislatures should be given free rein to control federal elections virtually unrestrained by state constitutions and judicial review from state courts. Questions from John Roberts suggested he might be seeking a more narrowly-drawn compromise position.Which left all eyes on Amy Coney Barrett, the third of Donald Trump’s three appointees. Potentially, she might find herself casting the decisive vote.Though it gives little clue as to which side of the fence Barrett will be standing on when the ruling comes down, she did ask several probing questions of the lawyer representing North Carolina’s Republicans. She said that those pushing for state legislatures to be freed up from oversight had a “problem” defining their terms, and she questioned whether the theory had any bearing in legal text.For their part, the liberal justices – Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor – robustly argued that incorporating the theory into constitutional law would be a threat to democracy. Elena Kagan cited three recent supreme court rulings that all counter the theory.Kagan made an impassioned speech about the potential impact of siding with North Carolina’s Republicans. “Think about consequences, because this is a theory with big consequences … This is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country, at exactly the time when they are needed most.”She warned that a broad ruling could unleash state legislatures to carry out extreme forms of gerrymandering, tear up voter protections and even certify election results according to their own political interests.Moore v Harper came about after the North Carolina state supreme court struck down districts drawn by Republicans who control the legislature because they heavily favored Republicans in the highly competitive state. The court-drawn map used in last month’s elections for Congress produced a 7-7 split between Democrats and Republicans.North Carolina is among six states in recent years in which state courts have ruled that overly partisan redistricting for Congress violated their state constitutions. The others are Florida, Maryland, New York, Ohio and Pennsylvania.State courts have become the only legal forum for challenging partisan congressional maps since the supreme court ruled in 2019 that those lawsuits cannot be brought in federal court.In North Carolina, Republican lawmakers will not have to wait for the court’s decision to produce a new congressional map that is expected to have more Republican districts.Even as Democrats won half the state’s 14 congressional seats, Republicans seized control of the state supreme court. Two newly elected Republican justices give them a 5-2 edge that makes it more likely than not that the court would uphold a map with more Republican districts.One of the striking features about Wednesday’s legal debate was how the usual ideological positions of the two sides were turned on their heads. The conservative justices, who have often invoked states’ rights in previous rulings – not least in last year’s seminal decision to overturn abortion rights – sounded at times to be almost anti-federalist.After the US solicitor general, Elizabeth Prelogar, accused the petitioners of making an “atextual, ahistorical, and destabilizing interpretation of the elections clause”, Thomas intervened. “I must say, it seems a bit ironic that you’re on the other side of the federalism issue,” he said, apparently unaware of the irony of his own position.By contrast, lawyers speaking against the state legislature theory turned on several occasions to the historical record of the founding fathers as well as close textual analysis of the constitution – tactics normally associated with the rightwing supermajority. “Over 233 years, this court has never second-guessed a state court interpretation of its own constitution in any context,” said Neal Katyal, a lawyer representing Common Cause, an ethics-in-government group which is opposing what it claims is an attempted Republican power grab in North Carolina.TopicsUS supreme courtLaw (US)US voting rightsUS politicsnewsReuse this content More

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      The US supreme court is poised to strike another blow against gay rights | Moira Donegan

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      The US supreme court is poised to strike another blow against gay rightsMoira DoneganThe court is hearing a case that could allow the kind of naked discrimination that the gay rights and civil rights movements fought so hard to end It’s not clear what, exactly, Lorie Smith’s problem is. The Colorado woman aspires to be a web designer; apparently, she’s also upset that gay people can get married. Smith is an evangelical Christian who says that her faith makes her object to same-sex marriage.This wouldn’t be anyone’s problem, except that Smith lives in a state with a robust civil rights law, one that forbids business owners who make their services available to the public from discriminating. But Smith really wants to discriminate: she hopes to be able to turn away gay clients from her as-yet-hypothetical wedding website business; she wants to put a banner at the top of her business homepage proclaiming her unwillingness to design websites for gay weddings. The law would forbid this if she ever went into business, so she’s suing.As of now, none of this has actually come up. At the time Smith filed her lawsuit, demanding an exemption to her state’s law, she didn’t even have a business with which to discriminate. The law has never been enforced against her; she’s never had the opportunity to discriminate that she so craves. It’s not clear, in other words, that she really has standing to sue – she’s never been forced to provide services to gay people, so, in legal parlance, there’s no “injury” to speak of. But Smith is an angry conservative, and she’s found some very well-funded lawyers from the Alliance Defending Freedom, a huge rightwing legal organization that has embarked on a nationwide campaign of lawsuits to erode civil rights protections for gay people.The result is 303 Creative v Elenis, a case in which Smith argues that her religious convictions mean that she shouldn’t have to comply with a generally applicable civil rights law, and should be granted license to discriminate by her state. The US supreme court heard oral arguments on Monday, and the 6-3 conservative majority is certain to hand Smith a victory allowing her to deny service to clients based on sexual orientation.A decision from the court is expected next summer. The question, as happens so often with this rabidly conservative court, is not who is going to win. That question was probably answered the moment the court agreed to hear the case, to the point that briefings and oral arguments in hot-button culture and identity cases like 303 Creative have been rendered largely moot.The question, instead, is how far the court will go: how much the justices will unravel the anti-discrimination laws that govern public accommodations – that is, the laws that say that businesses which serve the public cannot deny service to people based on their identity – and how much discrimination, humiliation and bigotry in public life they will unleash upon gay Americans. The question is whether the speech that Smith can deploy in any other form of her life – any belief that she already has every right to broadcast online, or in her church, or in writing, or by holding a sign up in the street – is also an opinion she is entitled to enforce through the conduct of her business.If the 303 Creative case sounds familiar, that’s because it’s more or less a rerun. In 2018, the supreme court heard Masterpiece Cakeshop v Colorado Civil Rights Commission, another case by a business owner challenging the same state law, this time a baker who didn’t want to make a gay couple’s wedding cake. In that case, the court punted, ruling that lower tribunals had mishandled the case, but not making a decision on the merits about whether an individual businessperson’s opinions trumped civil rights law. But the court looked very different in 2018: that punting opinion was written by Anthony Kennedy, who retired soon thereafter and was replaced by his protege, the beer enthusiast Brett Kavanaugh. Since then the court has lurched even further to the right, and has shown a willingness to indulge even the most far-fetched claims of Christian religious litigants.But it’s worth considering what the court did not do when it agreed to hear 303 Creative: it did not grant certiorari on Smith’s claim that her religious freedom was violated by the anti-discrimination law. This is unusual, for this court: since the Trump justices joined the court, turning it from what was already a quite conservative institution into a maximalist, revanchist one with a culture-war axe to grind, the court has expanded free-exercise-of-religion rights quite rapidly – at least, so long as those free-exercise rights are being exercised by conservative Christians.The court has even specifically used the constitution’s free-exercise clause to imply an entitlement to discriminate against homosexuals: in last summer’s Fulton v Philadelphia, the justices ruled that municipal agencies handling the welfare of children in need were obliged to work with a religiously affiliated adoption agency, even though that agency discriminated against gay couples in violation of city civil rights law.But in 303 Creative the court is only considering Smith’s wish to discriminate as a free speech issue. This opens a new avenue for challenges to civil rights law, and will provide an opportunity for rightwing lawyers to begin unraveling the laws regarding non-discrimination in public accommodations in the wake of the civil rights movement, like pulling on a loose thread to unravel a sweater.Though Smith wants to discriminate only against gay couples, and other exemptions to civil rights law are likely to focus on allowing open bigotry against LGBTQ+ people to be expressed in commercial life, there is no limiting principle that means that only gay people will be targeted. After all, if a website designer is allowed to decline to make a gay wedding website, what stops her from making the same claim to refuse an interracial wedding, or an interfaith one? Is she allowed to decline to make sites for birth announcements of children born to gay couples, or via IVF?I keep thinking of the sign that Smith wants to put at the top of her future business’s webpage, the one that says she won’t make websites for gay weddings. It’s essentially an advertisement of her belief in gay people’s inferiority, an effort to exclude them not just from her own goodwill, but from commercial life. How different is such a sign, really, from those that advertised whites-only lunch counters, or the signs that the late Justice Ruth Bader Ginsburg recalled seeing in the windows of shops when she went on family road trips as a child: “No dogs and no Jews”.It has become vogue, in rightwing legal arguments against civil rights law, to speak of the “indignity” imposed on anti-gay business owners who are forced to comply with anti-discrimination law. It’s a shame that the court doesn’t seem poised to consider the indignity of facing discrimination itself.
      Moira Donegan is a Guardian US columnist
      TopicsUS politicsOpinionUS supreme courtReligionLaw (US)LGBTQ+ rightscommentReuse this content More

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      Biden rebukes Trump for saying constitution should be ‘terminated’

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      Biden rebukes Trump for saying constitution should be ‘terminated’Former president must be ‘universally condemned’ for comments, says White House The Biden White House rebuked Donald Trump after the former president said the US constitution should be “terminated” over his lie that the 2020 election was stolen.DeSantis and Pence lead Republican wave – of presidential campaign booksRead moreAndrew Bates, a White House spokesperson, said: “Attacking the constitution and all it stands for is anathema to the soul of our nation and should be universally condemned.”Bates called the constitution a “sacrosanct document”, saying: “You cannot only love America when you win.”Trump lost to Joe Biden in 2020, by more than 7m votes and by 306-232 in the electoral college, a result he called a landslide when it was in his favour in 2016, against Hillary Clinton.Trump continues to claim that Biden won key states through electoral fraud, a lie that fuelled the deadly attack on the US Capitol by his supporters on 6 January 2021. Nine deaths have been linked to the riot, including suicides among law enforcement. More than 950 people have been charged. This week, two members of the far-right Oath Keepers militia were convicted of seditious conspiracy. Other members of far-right, pro-Trump groups face similar charges.Trump was banned from Facebook and Twitter after the Capitol attack. He has not yet returned to the latter, despite its new owner, Elon Musk, saying he is free to do so. On Saturday, Trump used his own social media platform, Truth Social, to say of the 2020 election: “A massive fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the constitution.”Trump also said an “unprecedented fraud requires an unprecedented cure”.He was writing after Musk claimed he would show that Twitter was guilty of “free speech suppression” by releasing evidence of how the platform responded to requests from campaigns in the 2020 election.Trump is the only declared candidate for the Republican presidential nomination in 2024 but he has faced increased criticism from Republicans and Republican-supporting media since midterm elections in which many of his endorsed candidates were defeated, including election deniers running for governor and key elections roles in battleground states. Republicans took the House, but only by a narrow majority, and failed to retake the Senate.On Saturday, Trump also criticised the Senate minority leader, Mitch McConnell, and “all of the weak Republicans who couldn’t get the presidential election of 2020 approved and out of the way fast enough”. Even after the Capitol riot, 147 Republicans in Congress objected to results in key states.Senior Republicans have recently criticised Trump over his decision to have dinner at his home in Florida with Nick Fuentes, a known white supremacist and antisemite. But though the Florida governor, Ron DeSantis, has surged in polls regarding possible 2024 contenders, few in the party have broken decisively with Trump and those who have have largely been forced out.On Saturday, Brian Schatz, a Democratic US senator from Hawaii, pointed to such hard political reality, saying: “Trump just called for the suspension of the constitution and it is the final straw for zero Republicans, especially the ones who call themselves ‘constitutional conservatives’.”One such conservative is Kevin McCarthy, the Republican leader battling to become House speaker. Not long before Trump said the constitution should be terminated, McCarthy said that when his party took control in January, it would demonstrate its constitutionalist bona fides by reading “every single word” of the hallowed document on the floor of the House.On Sunday, Hakeem Jeffries, the newly elected Democratic leader in the House, told ABC’s This Week Trump had made “a strange statement, but the Republicans are going to have to work out their issues with the former president and decide whether they’re going to break from him and return to some semblance of reasonableness or continue to lean in to the extremism, not just of Trump, but of Trumpism”.‘It’s on the tape’: Bob Woodward on Donald Trump’s ‘criminal behavior’Read moreTrump and Trumpism are becoming more and more of a headache for McCarthy, Senate Republican leader Mitch McConnell and other senior Republicans.On Saturday, Mehdi Hasan, who hosts a show on the TV channel MSNBC, tweeted: “Do you support Donald Trump’s demand to ‘terminate’ the constitution? Doesn’t his demand disqualify him for running for the presidency? Two questions that every single Republican member of the House and Senate needs to be asked, again and again, in the coming days.”Hasan also pointed to Trump’s dinner at his Florida resort, Mar-a-Lago, with Nick Fuentes, saying that in just two weeks the former president had “said or done things that would be lifelong scandals for other politicians … he truly knows how to flood the zone”. Trump critics on the political right did condemn the remark.John Bolton, George W Bush’s UN ambassador who became Trump’s third national security adviser, said: “No American conservative can agree with Donald Trump’s call to suspend the constitution because of the results of the 2020 election. And all real conservatives must oppose his 2024 campaign for president.”TopicsDonald TrumpJoe BidenUS politicsUS elections 2020US elections 2024RepublicansDemocratsnewsReuse this content More

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      in US Politics

      Senate Democrats to reportedly push banking reforms for cannabis industry

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      Senate Democrats to reportedly push banking reforms for cannabis industryJustice department is scrutinizing measures’ implications on law enforcement investigations and prosecutions Democrats in the Senate will push to liberalize banking access to the cannabis industry during the lame duck session, it was reported on Saturday, in moves being watched closely by the Department of Justice which is concerned that reforms could ‘complicate’ the industry’s legal status.New York issues first 36 dispensary licenses for recreational marijuanaRead moreA justice department memo, obtained earlier this week by Punchbowl News, outlines how implementation of a bill to reform the banking rules for cannabis companies “could significantly complicate law enforcement investigations and prosecutions”, though it also notes that the department believes that subject to minor changes “it can effectively implement the legislation”.The legislation, titled the Secure and Fair Enforcement Banking Act, would provide a “safe harbor” for regulated banks to work with cannabis firms in states where it’s legal. While that would not legalize cannabis at a federal level, it would release the industry from a key limitation to its growth.The passage of the bill through the Senate has become a priority for Senate majority leader Chuck Schumer ahead of the new session in January, Axios reported on Saturday.In July, the New York democratic senator, along with Senators Cory Booker of New Jersey and Oregon’s Ron Wyden introduced the Cannabis Administration and Opportunity Act that would decriminalize cannabis at the federal level.The bill’s sponsors argued that the cannabis industry, which employs nearly 430,000 workers and generated over $25bn in sales last year, “presents a significant opportunity for entrepreneurship and economic empowerment”. By 2025, the bill said, “it is estimated that the cannabis industry could exceed $45bn in annual sales”.It said that nearly all Americans live in a state with some form of legal cannabis, including 19 states that have legalized adult-use cannabis – reaching over 40% of Americans – and that 91% of adult Americans believe that cannabis should be legal for either adult or medical use.“The ‘war on drugs’ has failed, and it’s time for lawmakers in Washington to respect the rights of states that have chosen to legalize cannabis,” they argued. Despite bi-partisan support, the bill stalled.Legalization of the industry’s access to the banking system is an incremental work-around to federal prohibition, which came into effect across the US a century ago.Most of the changes suggested by the justice department revolve around language relating to “cannabis-related legitimate businesses” that it said “could create an immunity shield around activities of cannabis businesses that involve other illicit drugs or activities”.Other potential complications in the wording could complicate enforcement of anti- money laundering efforts, the DoJ said. TopicsUS newsUS politicsCannabisBiden administrationLaw (US)Reuse this content More

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      US Senate passes bill protecting same-sex marriage

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      US Senate passes bill protecting same-sex marriageHouse must now pass legislation as Democrats hurry to get it Biden to sign into law before Republicans take over the chamber The US Senate has passed the Respect for Marriage Act, legislation to protect same-sex unions that Democrats are hurrying to get to Joe Biden to be signed into law before Republicans take over the House next year.‘No rings, no guests’: supreme court fears spur LGBTQ ‘shotgun’ weddingsRead moreThe House must now pass the bill, a step the majority leader, Steny Hoyer, said could come as soon as Tuesday 6 December. Nearly 50 House Republicans supported the measure earlier this year. In the Senate, support from 12 Republicans was enough to override the filibuster and advance the bill to Tuesday’s majority vote, which ended 61-36.Although the Respect for Marriage Act would not codify Obergefell v Hodges, the 2015 supreme court decision which made same-sex marriage legal nationwide, it would require states to recognise all marriages that were legal when performed, including in other states. Interracial marriages would also be protected, with states required to recognise legal marriage regardless of “sex, race, ethnicity, or national origin”.Same-sex marriage has been thought under threat since June, when the conservative-dominated supreme court struck down the right to abortion. Then, the hardline justice Clarence Thomas wrote that other privacy-based rights, including same-sex marriage, could be reconsidered next.Public support for same-sex marriage is at an all-time high of around 70% but according to the Movement Advancement Project, an LGBTQ+ advocacy group, if the supreme court did overturn the right, at least 29 states would be able to enforce bans.Before the vote on Tuesday, the US transportation secretary, Pete Buttigieg, wrote on Twitter: “Strange feeling, to see something as basic and as personal as the durability of your marriage come up for debate on the Senate floor.“But I am hopeful that they will act to protect millions of families, including ours, and appreciate all that has gone into preparing this important legislation to move forward.”After the vote, Sheldon Whitehouse, a Democratic senator from Rhode Island, said the Respect for Marriage Act would “place the right to marry out of this activist supreme court’s reach. We affirm what the American people already understand: every person deserves the freedom to marry the one they love.”James Esseks, director of the LGBTQ & HIV Rights Project at the American Civil Liberties Union, pointed to the need for more work.In a statement, he said: “For the last seven years, LGBTQ+ families across the country have been able to build their lives around their right to marriage equality. The Respect for Marriage Act will go a long way to ensure an increasingly radical supreme court does not threaten this right, but LGBTQ+ rights are already under attack nationwide.“Transgender people especially have had their safety, dignity, and healthcare threatened by lawmakers across the country, including by members of this Congress. While we welcome the historic vote on this measure, members of Congress must also fight like trans lives depend on their efforts because trans lives do.”In his opinion in the abortion case, Thomas did not mention interracial marriage. The justice, who is Black, is married to the conservative activist Ginni Thomas, who is white.The Republican leader in the Senate, Mitch McConnell, is white. His wife, the former transportation secretary Elaine Chao, is Asian American. McConnell has voted against the Respect for Marriage act.On Tuesday, Biden, who as vice-president famously came out in support of same-sex marriage before his boss, Barack Obama, said: “For millions of Americans, this legislation will safeguard the rights and protections to which LGBTQ+ and interracial couples and their children are entitled.“It will also ensure that, for generations to follow, LGBTQ+ youth will grow up knowing that they too can lead full, happy lives and build families of their own.”Biden thanked senators for their “bipartisan achievement” and said he “look[ed] forward to welcoming them at the White House after the House passes this legislation and sends it to my desk, where I will promptly and proudly sign it into law”.On Monday, before a test vote, the Democratic Senate leader, Chuck Schumer of New York, also praised Republicans who backed the measure, saying: “A decade ago, it would have strained all of our imaginations to envision both sides talking about protecting the rights of same-sex married couples.”Republicans argued for amendments they say won the support of religious groups that nonetheless oppose same-sex marriage, among them the Church of Jesus Christ of Latter-day Saints.“They see this as a step forward for religious freedom,” Thom Tillis of South Carolina told the Associated Press.Tammy Baldwin of Wisconsin, a Democrat and the first openly gay senator, told the AP the way some Republicans came round on the issue reminded her “of the arc of the LBGTQ+ movement to begin with, in the early days when people weren’t out and people knew gay people by myths and stereotypes”.With growing acceptance of LGBTQ+ rights, Baldwin said, “slowly laws have followed. It is history.”Associated Press contributed reportingTopicsSame-sex marriage (US)LGBTQ+ rightsUS politicsUS CongressUS SenateDemocratsRepublicansnewsReuse this content More

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      US courts ruling in favor of justice department turns legal tide on Trump

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      US courts ruling in favor of justice department turns legal tide on TrumpThe ex-president’s supporters will no longer be able to avoid testifying before grand juries in Washington DC and Georgia A spate of major court rulings rejecting claims of executive privilege and other arguments by Donald Trump and his top allies are boosting investigations by the US justice department (DoJ) and a special Georgia grand jury into whether the former US president broke laws as he sought to overturn the 2020 election results.Justice department asks Pence to testify in Trump investigationRead moreFormer prosecutors say the upshot of these court rulings is that key Trump backers and ex-administration lawyers – such as ex-chief of staff Mark Meadows and legal adviser John Eastman – can no longer stave off testifying before grand juries in DC and Georgia. They are wanted for questioning about their knowledge of – or active roles in – Trump’s crusade to stop Joe Biden from taking office by leveling false charges of fraud.Due to a number of court decisions, Meadows, Eastman, Senator Lindsey Graham and others must testify before a special Georgia grand jury working with the Fulton county district attorney focused on the intense drive by Trump and top loyalists to pressure the Georgia secretary of state and other officials to thwart Biden’s victory there.Similarly, court rulings have meant that top Trump lawyers such as former White House counsel Pat Cipollone, who opposed Trump’s zealous drive to overturn the 2020 election, had to testify without invoking executive privilege before a DC grand jury investigating Trump’s efforts to block Congress from certifying Biden’s election victory.On another legal front, some high level courts have ruled adversely for Trump regarding the hundreds of classified documents he took to his Florida resort Mar-a-Lago when he left office, thus helping an inquiry into whether he broke laws by holding onto papers that should have been sent to the National Archives.“Trump’s multipronged efforts to keep former advisers from testifying or providing documents to federal and state grand juries, as well as the January 6 committee, has met with repeated failure as judge after judge has rejected his legal arguments,” ex-justice department prosecutor Michael Zeldin told the Guardian. “Obtaining this testimony is a critical step, perhaps the last step, before state and federal prosecutors determine whether the former president should be indicted … It allows prosecutors for the first time to question these witnesses about their direct conversations with the former president.”Other ex-justice lawyers agree that Trump’s legal plight has now grown due to the key court rulings.“Favorable rulings by judges on issues like executive privilege and the crime-fraud exception to the attorney-client privilege bode well for agencies investigating Trump,” said Barbara McQuade, a former US attorney for eastern Michigan. “Legal challenges may create delay, but on the merits, with rare exception, judges are consistently ruling against him.”Although Trump has been irked by the spate of court rulings against him and his allies, experts point out that they have included decisions from typically conservative courts, as well as ones with more liberal leanings.Former federal prosecutor Dennis Aftergut, for instance, said that: “Just last month, the 11th circuit court of appeals, one of the country’s most conservative federal courts, delivered key rulings in both the Fulton county and DoJ Trump investigations.”Specifically, the court in separate rulings gave a green light to “DoJ criminal lawyers to review the seized, classified documents that Trump took to Mar-a-Lago, reversing renegade district court judge Aileen Cannon’s freeze-in-place order”, Aftergut said.In the other ruling, the court held that Graham “couldn’t hide behind the constitution’s ‘speech and debate’ clause to avoid testifying before the Atlanta grand jury”, Aftergut noted.“The speech and debate clause,” he pointed out, “only affords immunities from testifying about matters relating to congressional speeches and duties. That dog didn’t hunt here.”Soon after these rulings, the supreme court left both orders in place. “It’s enough to make an old prosecutor with stubborn faith in the courts proud,” Aftergut said.Separately, federal court judge David Carter, who issued a scathing decision earlier this year that implicated Trump and Eastman in a conspiracy to overturn the 2020 election, last month ruled that Eastman had to turn over 33 documents to the House January 6 panel including a number that the judge ruled were exempt from attorney-client privilege because they involved a crime or an attempted crime.Ex-justice lawyers say that a number of the recent court rulings should prove helpful to the special counsel Jack Smith, who attorney general Merrick Garland recently tapped to oversee both DoJ’s investigation into Trump’s retention of sensitive documents post presidency and the inquiry into his efforts to stop Biden from taking office.True to form, Trump didn’t waste any time attacking the new special counsel.“I have been going through this for six years – for six years I have been going through this, and I am not going to go through it any more,” Trump told Fox News Digital in an interview the same day Smith was appointed. “And I hope the Republicans have the courage to fight this.” More

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      Justice department asks Pence to testify in Trump investigation

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      Justice department asks Pence to testify in Trump investigationEx-vice-president considering the request, according to sources, but said last week he would not testify to the January 6 panel The US Department of Justice has asked Mike Pence to testify in its investigation of Donald Trump’s election subversion and the former vice-president was considering the request, sources with knowledge of the situation have told the Guardian.So Help Me God review: Mike Pence’s tortured bid for Republican relevanceRead moreLast week, Pence said he would not testify to the House January 6 committee, telling CBS: “Congress has no right to my testimony on separation of powers under the constitution of the United States. And I believe it will establish a terrible precedent for the Congress to summon a vice-president of the United States to speak about deliberations that took place at the White House.”Pence also said the committee, made up of seven Democrats and two Republicans, was too partisan. The chair and vice-chair of the panel, Bennie Thompson and Liz Cheney, rejected that charge.The New York Times first reported the news of the approach to Pence and said he recognised that the Department of Justice investigation could not be dismissed.The newspaper said the request to Pence was made before the attorney general, Merrick Garland, announced last Friday the appointment of a special counsel to oversee the justice department investigation.Garland said the appointment of the career prosecutor Jack Smith would not slow the investigation of Trump’s attempt to stay in power despite losing the 2020 election to Joe Biden, culminating in the deadly Capitol attack on 6 January 2021.Smith will also oversee the investigation of Trump’s retention of White House records.Trump has tried to stop other senior aides testifying to the Department of Justice, claiming executive privilege. Many aides have been served with subpoenas.Pence and the Department of Justice did not immediately comment on the Times report.On Sunday, Pence was asked if he thought Trump committed a crime in connection with the events of January 6, when some Trump supporters who attacked the Capitol chanted “Hang Mike Pence”.Pence told NBC: “I don’t know if it is criminal to listen to bad advice from lawyers.”Eyeing his own presidential run in 2024, Pence must pursue a balancing act as he seeks to distance himself from Trump while appealing to Republican voters.In that spirit he has published a memoir, So Help Me God, which deals in detail with his version of events during his time at Trump’s side. The book includes an extensive account of Pence’s role in and views of Trump’s attempts to stay in office.Pence ultimately refused to block certification of electoral college results, a process over which he presided. Trump, he writes, said he was “too honest” to take part in a plot based on claims of widespread electoral fraud. But Pence also says Republicans were right to lodge objections to results in key states, as it “meant we would have a substantive debate”.Either way, it seems Trump would have reason to fear testimony to the Department of Justice by his former vice-president. In his book and in interviews to promote it, Pence has made clear he blames Trump for the Capitol riot.Earlier this month, Pence told ABC Trump’s words and actions “angered me”.“But I turned to my daughter who was standing nearby. And I said, ‘It doesn’t take courage to break the law. It takes courage to uphold the law.’ The president’s words were reckless. It’s clear he decided to be part of the problem.”TopicsMike PenceDonald TrumpLaw (US)US Capitol attacknewsReuse this content More