(Credit: AP)

Late in the day Friday, the Heritage Foundation announced that Jason Richwine, the co-author of their widely criticized immigration report, was no longer employed by the conservative think tank. Shortly after the immigration report was released, the Washington Post’s Dylan Matthews reported that Richwine’s PhD dissertation claimed that “new Hispanic immigrants will have low-IQ children and grandchildren.”

Heritage’s decision to hire Richwine was not a momentary lapse in judgement that was quickly rectified. To the contrary, Richwine was employed by the Heritage foundation for more than three years before reports of his quasi-eugenic views forced him to leave. As it turns out, this is not an isolated incident. Although evidence has not yet emerged suggesting that Richwine’s racist views are common among Heritage employees, here are seven examples of radical, offensive or just downright weird beliefs held by current Heritage staffers:

• Children of undocumented immigrants should be allowed to starve. When news of Richwine’s racist dissertation broke, Heritage initially attempted to rehabilitate its immigration report by claiming that Richwine’s co-author, Heritage Senior Research Fellow Robert Rector, took the lead in designing the study’s methodology and Richwine merely “provided quantitative support to lead author Robert Rector.” Rector, however, is hardly a picture of moderation. Among other things, Rector co-authored a 2012 report arguing that we should “prohibit food stamp payments to illegal immigrant families.” Notably, because all nearly all children born in the United States are automatically U.S. citizens under the Fourteenth Amendment, one impact of Rector’s proposal would be starving American children in order to spite their parents.
• Gay people and sexually active unmarried women should be banned from teaching. In 2010, Heritage President Jim DeMint told a rally at a South Carolina church that “if someone is openly homosexual, they shouldn’t be teaching in the classroom and he holds the same position on an unmarried woman who’s sleeping with her boyfriend — she shouldn’t be in the classroom.”
• The Voting Rights Act is a “racial entitlement.” Defending Justice Scalia’s statement that a key provision of the Voting Rights Act of 1965 is a “perpetuation of racial entitlement,” Heritage Senior Legal Fellow Hans von Spakovsky endorses Scalia’s view and writes that “the only thing certain about talking honestly about the current benefits and burdens of Section 5 (or voting against its renewal) is the very type of venomous attacks and false claims of racism and Jim Crow to which Scalia has been subjected.” Spakovsky’s disregard for the Voting Rights Act is not surprising, as he is one of the nation’s top proponents of voter suppression laws. Indeed, a panel of Virginia judges recently refused to reappoint Spakovsky to an election board in Fairfax, Virginia in the wake of allegations that he used his seat on the board to crusade against voting rights.
• Todd Akin can save America from an “economic abyss.” At a time when former Rep. Todd Akin (R-MO) found himself friendless due to his “legitimate rape” comment, DeMint tried to throw Akin a lifeline in his Senate race against Sen. Claire McCaskill (D-MO). In a joint statement with former Sen. Rick Santorum (R-PA), DeMint said that they “support Todd Akin and hope freedom-loving Americans in Missouri and around the country will join us so we can save our country from fiscal collapse.” As a bonus, Heritage published a column by Akin in 2011 where the former congressman claimed that “the constitutionality of much entitlement spending is debatable.”
• Poor people aren’t really poor if they own refrigerators. In 2011, Rector and Heritage Policy Analyst Rachel Sheffield published a report arguing that “Congress should reorient the massive welfare state to promote self-sufficient prosperity rather than expanded dependence” in part because most impoverished households own appliances and do not send their kids to bed hungry. Among the report’s claims are that nearly all poor people have “kitchens equipped with an oven, stove, and refrigerator,” that “[n]early three-fourths have a car or truck” and that “70 percent have a VCR.” Of course, as Matt Yglesias points out, many of the common household amenities Rector and Sheffield dismiss as luxuries are actually signs of thrift — “[b]uying food at the grocery store and saving it thanks to the miracles of modern refrigeration is sound household budgeting.” Similarly, poor people in parts of the country without adequate public transportation would find it very difficult to hold a job if they did not have a car or truck. As Melissa Boteach and Donna Cooper explain, a particularly well-equipped poor household could sell all of their household appliances and electronics and still only wind up with two and a half months rent.
• Accused terrorists shouldn’t have legal representation and their lawyers should be punished. According to at least one former Bush Administration official, the “vast majority” of the 742 original Guantanamo Bay detainees were innocent of terrorism, which only emphasizes the importance of providing these detainees with due process and adequate legal representation. Yet, in a 2007 radio interview, then-Deputy Assistant Secretary of Defense Charles “Cully” Stimson made a thinly veiled attempt to punish lawyers who represent Gitmo detainees by encouraging their law firms’ corporate clients to drop them. Stimson listed the names of over a dozen firms with attorneys representing detainees, and then said “I think, quite honestly, when corporate C.E.O.’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.’s are going to make those law firms choose between representing terrorists or representing reputable firms.” Within a month, Stimson resigned from the Bush Administration (he also apologized for his comments and claimed they did not reflect his “core beliefs”). Yet, while Stimson’s comments were too disgraceful for him to remain in Bush’s Defense Department, they were not too disgraceful for the Heritage Foundation. Stimson is now a Senior Legal Fellow at Heritage.
• A J.J. Abrams TV show should guide America’s defense policy. The plot of J.J. Abrams’ show “Revolution” focuses around a new weapon technology that disables electronic devices and returns the world to the pre-industrial era. Most TV viewers understand that this show is science fiction. Heritage thinks it is a warning about the future. According to Heritage, the future world depicted in this show, “is not as unlikely as it might appear.” Heritage national security Research Fellow Baker Spring warns that America’s enemies could detonate “a nuclear weapon at a high altitude over the earth” triggering an “electromagnetic pulse” (EMP) that would disable American technology. Another Heritage paper calls for a “National EMP Awareness Day.” In reality, of course, the idea of an EMP attack belongs in science fiction. Among other things, if someone who wished us harm possessed both a nuclear warhead and the technology required to detonate such a weapon in US airspace, there are plenty of other much more destructive things they could do — such as setting off the nuke in the middle of Manhattan.

Later today, a Tennessee House subcommittee is scheduled to consider a bill that would take away university police departments unless those institutions permit religious student organizations to engage in anti-gay discrimination. The bill arises from a conflict between Vanderbilt University and anti-gay lawmakers led by state Rep. Mark Pody (R), who object to Vanderbilt’s policy which requires student organizations to accept “all comers” if they wish to be subsidized by the school.

Last week, however, Tennessee Attorney General Robert Cooper (D) threw cold water on Pody’s efforts with an official opinion explaining that the bill is unconstitutional, at least as-applied to private universities such as Vanderbilt. As Cooper’s opinion explains, private universities generally have a right to decide which student organizations they wish to be associated with, and that includes the right to take a stand against discrimination:

It is well established that the State may not condition continued receipt of a valuable state benefit (here, the exercise of the State’s police power to commission and maintain a police force) on a private institution’s compliance with an unconstitutional condition. . . .

As previously discussed SB1241 impacts a private university’s First Amendment right of free association and distinguishes between those universities that organize their student groups in conformity with SB1241 and those that do not. This classification thus impacts a fundamental right – a private university’s First Amendment right to free association – and would be reviewed under the strict scrutiny standard. The General Assembly has an interest in how the State delegates its police power to a private university. Even if that interest is compelling, the General Assembly cannot assert that interest through an unrelated requirement that a private university abandon its right of free association.

Cooper also concludes that Pody’s anti-gay law would be constitutional as-applied to public universities, because Tennessee is allowed to decide that it does want to associate itself and its universities with anti-gay discrimination. This conclusion, however, is likely not correct. Just as the federal government cannot discriminate against gay couples when it doles out marriage benefits — that’s why the Defense of Marriage Act is unconstitutional — a state government also cannot form official groups that engage in anti-gay discrimination. Thus, to the extent that a student group at a Tennessee university is an arm of the state itself, such as group is not permitted to engage in anti-gay discrimination.

Since taking office, President Obama has quadrupled the number of openly gay judges on the federal bench — although this is as much a testament to America’s long legacy of discrimination as it is to Obama’s commitment to diversity. Prior to Obama’s presidency, there was one openly gay judge with a lifetime appointment to the federal bench. Today, there are four.

All four of these out judges, however, are district judges — the lowest ranking federal judges. To date, no openly gay lawyer has served as a federal appellate judge or as a Supreme Court justice. In his first term, President Obama nominated openly gay attorney Edward DuMont to serve on the United States Court of Appeals for the Federal Circuit, but DuMont eventually withdrew his nomination after 18 months of “one or more members of the [Senate Judiciary] Committee minority” obstructing his confirmation.

Yesterday, the President announced he would take another shot at placing an openly gay judge on this same court, nominating Department of Justice attorney Todd Hughes to fill a seat on the Federal Circuit.

It is certainly good news that the President wants to welcome an openly gay judge into the federal appellate bench, but it should be noted that the Federal Circuit is a specialty court that deals primarily with patents. Obama deserves praise for showing a greater commitment to diversity on the bench than any of his predecessors, but there are also many talented gay attorneys (or even some Obama-appointed district judges) who would make excellent court of appeals judges on courts of general jurisdiction.

In any event, the paucity of gay judges in this country gives the lie to a claim conservative superlawyer Paul Clement made to the Supreme Court in his brief defending the unconstitutional Defense of Marriage Act. Clement wrote that gay people should not have equal rights because they are too powerful.

The Montana Supreme Court

Yesterday, a sharply divided Montana Supreme Court turned aside a lawsuit by several same-sex couples “complaining that they are unable to obtain protections and benefits that are available to similarly situated different-sex couples who marry under State law.” Although this is a setback for gay rights, it is not clear that this setback will be permanent. Rather than challenge a particular provision of law, the plaintiffs in this lawsuit “seek a general declaration of their rights and seek orders enjoining the State to provide them a ‘legal status and statutory structure’ that protects their rights.” In essence, yesterday’s order tells the plaintiffs to be more specific in explaining just how their rights have been violated — and which specific statutes have violated them — and then come back an try again.

Three of the court’s seven justices dissented, in opinions indicating that they would extend equal benefits to gay couples right now, rather than wait for another round of litigation. One justice, Justice Jim Rice, wrote a separate concurring opinion indicating that he rejects extending equal rights to gay couples outright. So, with three votes on record in support of gay rights and only one opposed, the plaintiffs appear to be in a strong position if their case reaches these same justices again.

The most significant impact of yesterday’s order, however, is that it ensures that this issue will not reach the same panel of seven justices again. Justice James Nelson will retire from the bench this month. And his 119 page dissenting opinion leaves no doubt that he is the court’s staunchest supporter of equality:

There are many who believe that gays and lesbians are second-class citizens; that they are morally inferior; that they are objects worthy of societal scorn, derision, and hatred; that they may be reviled and demonized on the floor of the Legislature with impunity; that they may be discriminated against by local governments; that they may be bullied in their schools and workplaces; and that they are not entitled to the same rights accorded to heterosexuals. Such views parallel those held by many—even the United States Supreme Court—regarding racial minorities and women a century ago. . . . We legitimize those similar, pernicious views about gays and lesbians when, as the Court does today, we abrogate our solemn obligation to declare and uphold the constitutional rights of all Montanans—especially those among us who have been subjected to majoritarian and state-imposed hatred and discrimination.

My abiding belief is that no person—no human being—in our society should be reviled, demonized, and discriminated against for being gay, lesbian, or bisexual, any more than they should be treated in that fashion for being Native American, Presbyterian, female, disabled, poor, or Irish. No person should be the object of state-sanctioned bigotry simply for being born homosexual or for choosing to love another person of the same sex. No person should be made to suffer the deprivation of their civil rights and liberties because of the religious beliefs and doctrines of others—doctrines that are now constitutionalized in the Marriage Amendment and enforced by Montana’s government. And no person should be stripped of her or his inviolable human dignity based on sexual orientation. Ever!

Although Nelson deeply regrets the court’s decision to put this question off until another day, he ends his opinion on a hopeful note: “the taboo will die because the scare tactics, propaganda, and misinformation of those who would hang on to the maledictions and stereotypes have proven to be so patently false, malicious, and absurd. Most decent people just hate being lied to. Indeed, a not-too-distant generation of Montanans will consign today’s decision, the Marriage Amendment, and the underlying intolerance to the dustbin of history and to the status of a meaningless, shameful, artifact.”