There are limits against anti-faith animus but clarification is for another day






Final word?


This issue isn’t going away, and we’ll see if LGBT progressives double down on their intransigence against those with traditional religious views.

34 Comments for “There are limits against anti-faith animus but clarification is for another day”

  1. posted by Tom Scharbach on

    The decision, written by Justice Kennedy, is very narrow, limited to the particulars of this instance, does not affect cases already decided (e.g. Elaine’s Photography), and is unlikely to affect future cases going forward.

    Justice Kennedy found that comments made during the Colorado hearing indicated that some members of the Commission exhibited hostility to religion and that the government did not disavow those comments. Based on those facts, he wrote that Masterpiece Cakeshop did not get the netural hearing that is required in deciding public accommodations cases when a religious objection is raised (emphasis mine):

    On these facts, the Court must draw the inference that Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires.

    While the issues here are difficult to resolve, it must be concluded that the State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. The official expressions of hostility to religion in some of the commissioners’ comments — comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order — were inconsistent with what the Free Exercise Clause requires. The Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same.

    The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.

    The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

    The decision reiterates the principle that government, in deciding matters like this, must be a neutral forum. Justice Kennedy found that the neutral forum was tainted in this instance.

    Justice Kennedy goes to some length to reaffirmed the Court’s longstanding rule that states can prevent the harms of discrimination in the marketplace, including against gays and lesbians, and hints that a neutral decision by the Commission would most likely have been upheld.

    The reasoning of Justice Kennedy’s decision, which is specific to the facts of this case, and the reasoning of the concurrences, is a strong indication that this decision does not portend the future. I am confident that future decisions, decided on the merits rather than on the process, will have a different outcome.

    Reply
  2. posted by Tom Scharbach on

    On a side note, it looks like the administration’s much-touted gay ambassador has already put his foot in it. What’s it been, two weeks?

    Reply
  3. posted by JohnInCA on

    The decision is disgusting, is what it is. They’ve been dodging these cases since Elane Photography, denying cert on multiple cases, and then when they finally do accept cert, they fucking PUNT?

    And what’s the message supposed to be here? You can discriminate as long as you can get a judge to make a “biased” comment during your hearing? “Get a rise out of a judge, get a free pass on unlawful discrimination”? Interesting legal theory Mr. Kennedy.

    Either affirm that “because God” isn’t good enough to override non-discrimination laws, or kill them dead, but this kind of punting is unacceptable.

    Reply
    • posted by Jorge on

      And what’s the message supposed to be here? You can discriminate as long as you can get a judge to make a “biased” comment during your hearing? “Get a rise out of a judge, get a free pass on unlawful discrimination”? Interesting legal theory Mr. Kennedy.

      And yet that’s exactly how cases do get overturned on appeal. Let a jury hear a tainted comment by a judge, or even an attorney asking, “When did you beat your wife?” and the verdict shall be eliminated. Justice is blind.

      Reply
      • posted by JohnInCA on

        And in case you haven’t noticed, the SCOTUS has a long history of ignoring such technical details when they want to rule on the merits.

        Kennedy made a choice to ignore the merits and rule on a technicality. The fact that they dragged it out for so long just to punt should be offensive to everyone regardless of how you wanted it to turn out.

        Reply
  4. posted by Tom Scharbach on

    … force independent creative services providers to craft messages celebrating interracial marriage despite their sincerely held traditional religious beliefs …

    Reply
  5. posted by Jorge on

    The reasoning of Justice Kennedy’s decision, which is specific to the facts of this case, and the reasoning of the concurrences, is a strong indication that this decision does not portend the future. I am confident that future decisions, decided on the merits rather than on the process, will have a different outcome.

    I think the silence by Roberts is the stronger predictor.

    “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two different ways: by describing it as despicable, and by also characterizing it as merely rhetorical–something insubstantial and even insincere. The commissioner even went so far as to compare Philips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law”

    I feel like the neighbors upstairs when Evander Holyfield was beating Mike Tyson’s ass. I could not be happier with this decision. There are few things I want to see punched in the teeth more than the open, vapid hostility to religion we saw from that Commission, and it does not bother me in the least that the future could go in either direction. It shows that the excesses of liberalism can be eliminated without creating a conservative terror state.

    That it’s Mr. Gay Rights Justice Kennedy himself who wrote it is a delicious irony.

    But in truth, I am most in agreement with Gorsuch’s powerful concurrence, which among many other things points out that the baker technically refused to sell a gay wedding cake to a heterosexual person. Lawyers are annoying.

    “To be sure, the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there’s no indication the bakers actually intended to refuse service because of a customer’s protected characteristic. . . . The distinction between intended and knowingly accepted effects is familiar in life and law….

    Thomas’s opinion, as usual, is very interesting and says a lot of things others leave out. “Although the cake is eventually eaten, that is not its primary purpose.”

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  6. posted by Lori Heine on

    I believe that the bakers are misguided. But calling them Nazis or whatever isn’t likely to change many hearts and minds.

    Those who are not people of faith are not likely to care about engaging in that endeavor. I refuse to be lumped together with them. But in order to avoid that, I need to stand up against them.

    The enemy of my enemy is not necessarily my friend.

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  7. posted by Tom Scharbach on

    That it’s Mr. Gay Rights Justice Kennedy himself who wrote it is a delicious irony.

    Why? The “neutral forum” principle is well established and uncontrovertible. Justice Kennedy used the opinion to shore up the “equal dignity” principle espoused in Romer, Lawrence, Windsor and Obergefell, which wasn’t so much ironic as fortuitous.

    But it is also unfortunate. By the time “clean” cases reach the Court, it is almost certain that both Justice Kennedy and Justice Ginsburg will be dead or retired, replaced by Justices in the mold of Alito, Gorsuch and Thomas. The Court as then constituted is likely to be hostile to the “equal dignity” principles espoused by Justice Kennedy, to say the least.

    So I’m not hopeful about future decisions, aware as I am that the only Republican-appointed Justices who have voted for “equal means equal” were libertarian-minded Justices — Justices Kennedy, O’Connor and Souter. Justice Kennedy is the last of that line on the Court for the foreseeable future, and this opinion is probably his swan song on “equal dignity”.

    Accordingly, I think that the best course for gays/lesbians going forward will be to increase our efforts on the political front, working to make enough progress on that front to make it unthinkable for the Court to significantly roll back Romer, Lawrence, Windsor and Obergefell.

    [I]t does not bother me in the least that the future could go in either direction.

    It bothers me. Absolutely none of the legal/constitutional questions surrounding this controversy were answered by Justice Kennedy’s decision, which JohninCA describes as a “punt”. So the future could go in lots of different directions, and given the likelihood that the Court will be dominated by conservative activists going forward, few of those directions are portend well.

    A few of the unanswered questions that will drive the different directions:

    Unanswered Question 1: Will the Court lessen and/or remove the “substantial burden” standard drawn by Sherbert/Yoder/Employment Division in the case of public accommodations laws, and if so, how will that affect other laws? I think that it will be very difficult if not impossible for the Court to define a dual-standard for religious exemption, “substantial burden” applicable to for laws in general but a lesser/lower standard for public accommodations laws. So whatever the Court does will spill over into laws in general.

    Unanswered Question 2: Will the Court yet again change the standard for state laws burdening religious exercise? You will recall that Sherbert established the “compelling government interest” and “least restrictive means” test for federal laws creating a “substantial burden” on religious exercise, that Yoder extended that standard to state laws, and that Employment Division rolled back that extension, returning to the “rational basis” standard for state-level laws. Literally hundreds of cases have held that public accommodations laws meet the “rational basis” test, and it is hard to see how the Court can ignore that. So I think that the Court will have to effectively reverse Employment Division in order to decide in favor of religious objectors doing business with the public, and return to the Sherbert/Yoder standard for state-level laws. As is the case with the “burden” requirement, whatever the Court does will spill over to laws in general.

    Unanswered Question 3: Will the Court attempt to limit the decision to same-sex marriage, and if so, how will it do so? It seems to me that it will be almost impossible for the Court to decide that religious objections to same-sex marriage are favored over religious objections to inter-racial marriage, inter-religious marriages, inter-denominational marriages, remarriages after divorce, and so on. While I don’t think that the initial decision will address the issue, I do think that the courts will almost immediately have to deal with cases are brought by religious objectors to other forms of marriage, and eventually one of those cases will make its way to the Court. I can’t think of any basis on which the Court could limit religious objection to same-sex marriage alone without favoring one religious belief over others.

    Unanswered Question 4: Will the Court attempt to limit the decision to marriage alone, or will the Court define a broader principle protecting religious objection to other matters covered by public accommodations laws, such as housing and employment? What of religious objection to selling your house to a gay/lesbian couple? What of a religious objection to renting apartments to unmarried couples living together? Unless the Court can find a way to limit religious exemption to public accommodations laws to same-sex marriage, or marriage more generally, cases challenging other aspects of public accommodations laws, seeking to expand the Court’s decision beyond religious objection to marriage will quickly follow and have to be decided.

    Unanswered Question 5: What are “creative/expressive services” and how will the Court define the boundaries of “creative/expressive services”? This question goes to the heart of the “forced expression” argument, and while Justice Kennedy touched this issue in his discussion of the two Colorado cake cases, one involving an actual message and the other not, but he only touched on the issue. The Court is going to have to define both what are “creative/expressive services” and the boundaries of “creative/expressive services” in any future decision. How will it do so? It isn’t an easy question (as the various ways in which individual Justices touched on the issue), and there isn’t an easy answer, despite the glib surface-skating by proponents of protecting “creative/expressive services”.

    Unanswered Question 6: To what extent are “forced expression” and “religious objection” intertwined? Are the two inseparable in this context, in the sense that both conditions need to be met? Or are the two independent grounds, intermingled in the cases coming forward only because the objectors are religious objectors? The Court is going to have to address this, sooner or later, as cases come forward. When a case comes forward based on “forced expression” involving an non-religious provider of “creative/expressive services”, then the question will be “If the essence of the matter is “forced expression”, why limit exemption to religious objection?” When a case comes forward absent a claim of “forced expression” (as in the case of a wedding venue rental) the question will be “If the essence of the matter is “religious objection”, why limit exemption to “forced expression”?” I think it almost inevitable that the Court will be faced with these issues going forward.

    Jorge, you and I come from different places. You’ve made clear that you agree with the late Justice Scalia in Lawrence and stand opposed to Obergefell. You should be thrilled that Justice Kennedy was unable to use Masterpiece Cakeshop to write his final decision upholding equal treatment under the law for gays and lesbians. Had Justice Kennedy had a “clean” case, I have no doubt at all that he would have done so.

    Reply
    • posted by JohnInCA on

      By the time “clean” cases reach the Court […]

      You mean 2014, when the court denied cert in Elane Photography? And how about any of the other cases that happened before Phillips?

      Call me cynical, but I don’t think they’re looking for a “clean” case. They’re variously either hoping that if they ignore the cases they’ll go away (Kennedy is obviously in this camp) or hoping for a “dirty” case they can use to undercut LGBT rights (like this one).

      As to your “Unanswered Question 3”, may I point out that the opinion got very offended at daring to compare homophobic religious motivations to racist religious motivations? While typically the courts try to avoid identifying which religious beliefs are “real” enough, that seems out the window in this case.

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      • posted by Jorge on

        I mostly agree.

        The Supreme Court, I read, does not get to decide every single constitutional issue. Courts around the country are deciding antidiscrimination cases, and not even Mike Pence pulling Trump’s strings will replace the federal judges fast enough to change that.

        Reply
    • posted by Jorge on

      Why?

      I think too many people celebrate Justice Kennedy for what pleases their ears rather than the principles he has written about.

      But it is also unfortunate. By the time “clean” cases reach the Court, it is almost certain that both Justice Kennedy and Justice Ginsburg will be dead or retired, replaced by Justices in the mold of Alito, Gorsuch and Thomas. The Court as then constituted is likely to be hostile to the “equal dignity” principles espoused by Justice Kennedy, to say the least.

      I don’t agree with you. I have Justice Roberts pegged as a swing vote. Or at the very least, a bit of a muffler. Justice Kagan might be a bit of a blurred edge as well. This will make for a future of narrow rather than sweeping decisions that uphold the importance of meeting the needs and interests of all parties with precision and faithfulness. Even if I’m wrong, I’d much rather have a conservative than a liberal Supreme Court.

      Accordingly, I think that the best course for gays/lesbians going forward will be to increase our efforts on the political front, working to make enough progress on that front to make it unthinkable for the Court to significantly roll back Romer, Lawrence, Windsor and Obergefell.

      Haven’t we already done enough damage on that front already? It’s because of too much “success” that we had those bigoted commissioners in Colorado drag Mr. baker through years of government-ordered defamation in the first place. And then there’s the previous administration’s iron-fisted approach toward transgender rights. Poor President Obama. The minute he got out of office we all came to realize that everything his cell phone and pen could imagine can be erased with bleach. Painful as that is, it’s better to get that kind of correction done with sooner than later.

      Absolutely none of the legal/constitutional questions surrounding this controversy were answered by Justice Kennedy’s decision, which JohninCA describes as a “punt”.

      I see it as a necessary defense against the encroachment on people’s constitutional freedoms. Sometimes it is all that is necessary to say, “No, we’re still doing this the right way.”

      Given your examples, it seems to me that you make much of the legal terrain, which is largely invisible to me, while I am concerned with coordinates, direction, and speed–this that obviously are affected by the terrain.

      I can’t think of any basis on which the Court could limit religious objection to same-sex marriage alone without favoring one religious belief over others.

      If you allow people to stop at wedding cakes, but make cookies and brownies for same sex couples instead, what is the correlary for race and sex? It may technically exist, but it won’t come up very often.

      Anti-discrimination laws are not purely about equality, for we allow many forms of discrimination that are not very fair (politics, appearance, wealth, etc.). They are largely about recognizing, correcting and stopping grave social wrongs. What is really in play here is whether there can be a limit to the social wrong, where religion becomes more important. If we can find a place to say, “This separation makes them… unequal.” This is where reasonable people will disagree, including on the other protected categories. I believe that in the limited category of religious-based objections, it is most likely that expanding the line to other protected classes will prove benign.

      Unless the Court can find a way to limit religious exemption to public accommodations laws to same-sex marriage, or marriage more generally, cases challenging other aspects of public accommodations laws, seeking to expand the Court’s decision beyond religious objection to marriage will quickly follow and have to be decided.

      “Don’t you believe it.” If and when that happens, I will call it Scalia’s revenge.

      You’ve made clear that you agree with the late Justice Scalia in Lawrence…

      I don’t know why you keep saying that, but it is not true. I agree with Justice Stevens’s opinion in Bowers. There is a tremendous difference between the right to live in a marital relationship whether society approves it or no without fear of assault or imprisonment, and a right to “compel” society and government to give official sanction to that union through a glorified piece of paper and favorable tax benefits.

      Reply
    • posted by Tom Scharbach on

      Tom: You’ve made clear that you agree with the late Justice Scalia in Lawrence …

      Jorge: I don’t know why you keep saying that, but it is not true.

      Justice Scalia’s dissent in Lawrence articulates the right of the majority to determine what is moral and what is not, and “moral approbation” of the majority as a constitutional basis for enacting laws. You have stated both positions frequently and, unless I am mistaken, defended that position. You may have qualms about selective enforcement of such laws (the basis of Justice Steven’s dissent in Bowers), but your position and Justice Scalia’s align. That’s why I keep saying it.

      But, in light of your clarification, I’ll restate: “You’ve made it clear that you agree with the “moral approbation as the basis for law” reasoning of the late Justice Scalia’s dissent in Lawrence.

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      • posted by Jorge on

        As I understand it, the basis of Stevens’s dissent in Bowers wasn’t about selective enforcement (that was O’Connor’s concurrence in Lawrence) but about the proposition that 1) A fundamental right 2) cannot be permitted to be denied to any one person based on the premise or defense that it is only denied selectively.

        (Oowww! My head! Now I know I got that right.)

        The first consideration is mandatory.

        That the definition of a fundamental right happens to be something that divides “liberal” and “conservative” Justices does not mean that just because I agree with conservative Justices that moral approbation is an appropriate basis for law, I agree with conservative Justices on every single dispute on what is and is not a fundamental right.

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    • posted by Tom Scharbach on

      I have Justice Roberts pegged as a swing vote.

      Chief Justices Roberts will be a swing vote only if the other Justices on the Court are split 4-4 with Roberts in the middle. If both Kennedy and Ginsburg are replaced by Justices hostile to Justice Kennedy’s “equal dignity” reasoning, the split will be 3-5, and Robert’s “swing” vote won’t swing.

      In any event, I’m not sure why you consider Chief Justice Roberts a “swing” vote on “equal dignity”. Roberts dissented from Justice Kennedy’s “equal dignity” opinion in both Windsor and Obergefell, the two cases that came before the Court during his tenure. Roberts has not voted for the principle of “equal means equal” in any case involving gay/lesbian rights. So I don’t have any idea why you think he’d start swinging once Justices Ginsburg and Kennedy are dead or retired. With Justice Roberts swinging, the anti-equality majority on the Court is most likely to become a solid 6-3. That’s why I’m pessimistic about the Court going forward.

      Tom: Accordingly, I think that the best course for gays/lesbians going forward will be to increase our efforts on the political front, working to make enough progress on that front to make it unthinkable for the Court to significantly roll back Romer, Lawrence, Windsor and Obergefell.

      Haven’t we already done enough damage on that front already?

      From your perspective, sure.

      We’ve moved public opinion support for same-sex marriage from one third to two thirds in a remarkably short period of time. Effectively that means that it is now unthinkable for the Court to reverse the decision in Obergefel outright, but we need to turn our political attention to the next phase of attack, now ongoing, which is to find ways to treat same-sex marriages differentially — denying equal benefits, denying adoption rights, targeted discrimination laws, and so on.

      As the Christio-Republicans lurch forward in those efforts, actually enacting laws, the laws will be challenged in court, and our job is to build a similar strong majority opposing laws that treat same-sex marriages differentially.

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      • posted by Jorge on

        In any event, I’m not sure why you consider Chief Justice Roberts a “swing” vote on “equal dignity”.

        I recall a couple of answers Justice Roberts gave in his confirmation hearing about abortion superprecedents and calling balls and strikes. Good enough for you?

        At the risk of sounding like a stock Republican, the chances of Justice Roberts creating expansive new law are about zero. Answering new questions about law that’s already on the table? That he’ll do. Expanding the strike zone? You know he does that from the Obamacare decision.

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      • posted by Tom Scharbach on

        Tom: In any event, I’m not sure why you consider Chief Justice Roberts a “swing” vote on “equal dignity”.

        Jorge: I recall a couple of answers Justice Roberts gave in his confirmation hearing about abortion superprecedents and calling balls and strikes. Good enough for you?

        The fact that Roberts considers himself an legal umpire doesn’t address the question of whether or not he’ll be a swing vote. Kennedy is the swing vote on a quite a number of issues because the Court divides 4-4 on those issues, so Kennedy’s vote decides the case.

        That’s not going to happen to Roberts after Kennedy and Ginsburg are replaced by conservative-to-originalist judges like Gorsuch and Alito. The court will then have a solid five vote conservative bloc, and whether Roberts joins the conservative bloc (making it 6-3) or not (making it 5-4) won’t decide the case.

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  8. posted by David Bauler on

    Trump administration refuses to acknowledge gay pride month….again….

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    • posted by Tom Scharbach on

      Just as well that we don’t have to listen to the President read an insincere statement in his robot voice while his administration undercuts equality right, left and center. It would just add insult to injury.

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    • posted by Josh on

      Like those who sue Christian bakers, florists and photographers, you seem to have a great need to have others validate your sexual orientation and tell you it’s OK.

      Reply
  9. posted by Tom Scharbach on

    As to your “Unanswered Question 3”, may I point out that the opinion got very offended at daring to compare homophobic religious motivations to racist religious motivations?

    Well, here we go.

    If the Court grants a religious exemption permitting discrimination against gays and lesbians then cases seeking a religious exemption permitting discrimination against blacks will soon follow. It is as inevitable as farts following Boston Baked Beans.

    The Court is going to have to deal with the issue. The trick for the conservatives on the Court will be to articulate a reason why the one is permitted and the other not. That’s going to be tough to do.

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  10. posted by MR Bill on

    Tom, many of the opponents of Same Sex Marriage aren’t even pretending to support race based Public Accomodation:
    “From the earliest days of marriage equality litigation, opponents argued in court that equal marriage rights for same-sex couples would harm three constituencies: society at large, the individuals involved in same-sex unions, and children raised in these households. The argument that same-sex marriage posed a threat to social order rested on the notion that same-sex married couples would weaken one of the most important social tools for transmitting community values and promoting public good, thereby deinstitutionalizing marriage and stripping it of all intrinsic worth. The claim that same-sex relationships were damaging to the individuals depended on the commonly held belief that same-sex relationships are by their very nature purely sexual, and consecrating them with marriage rights would give individuals free reign to indulge in their base instincts and worst appetites. The proposition that same-sex unions were harmful to children raised the specter that these children would be ostracized by the outside world for belonging to a homosexual household and would be pressured inside the home to develop putatively homosexual interests and behaviors, resulting in all manner of calamities, including, among other things, mental illness, criminal behavior, substance abuse, promiscuity, depression, and suicide.

    If these arguments seemed tiresome in their repetitiveness, it was in part because in court after court the same cadre of lawyers and organizations filed the very same briefs. But their appalling familiarity was also due to their ancient provenance: They had first been rehearsed at the end of the Civil War, when the taboo of sex between black men and white women could no longer be effectively policed by the institution of slavery, and had been rehashed over generations until the United States Supreme Court finally put an end to them in Loving v. Virginia. So, beginning with one of the early marriage cases in California Supreme Court, through the Iowa litigation, and subsequent federal cases, a number of amicus briefs—most prominently from the Civil Rights Clinic at Howard University School of law—showed in exhausting detail that the very same arguments that were raised against interracial sex, marriage, and parenting, had been dug up, dusted off, and were now being revived against same-sex marriage.

    Indeed, so clear were the parallels that in many instances, anti-marriage equality briefs relied on the very same biblical verses, the very same sexualized images, and virtually the very same eugenics theories as had first been used in anti-miscegenation cases. But perhaps no brief made the point more succinctly than the one the California NAACP filed in 2007, in which they simply cut and pasted virtually verbatim the words of the majority and dissenting opinions in Perez v. Sharp, the 1948 California case that preceded Loving by nearly two decades in outlawing a ban against interracial marriage. The only change the brief made was to replace words and phrases such as “race,” “different races,” “ancestry,” and “intermarriage” with “same-sex,” “gender,” and “sexual orientation.”

    So it didn’t come as a surprise that in Masterpiece Cakeshop, opponents of equal public accommodation rights for same-sex couples returned to the same racist well from which they drew throughout the course of marriage equality litigation. Others have pointed out—and correctly so—that the basic logic of affording equal public accommodation seemed indistinguishable from two Supreme Court decisions—Heart of Atlanta Motel v. United States and Katzenbach v. McClung—in which the Court upheld the constitutionality of Title II of the Civil Rights Act of 1964 by rejecting claims that private owners of hotels, restaurants, and other places of public accommodation had a constitutional right to deny service to black patrons. But the freedom of religion and free speech origins of the arguments on behalf of the owner of Masterpiece Cakeshop go much further back than the challenges to the Civil Rights of 1964; those arguments were first articulated against passage of the Civil Rights Act of 1875 less than ten years after the Civil War ended.“ http://www.slate.com/blogs/outward/2017/12/13/masterpiece_cakeshop_revives_arguments_to_justify_racial_apartheid.html

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  11. posted by Tom Scharbach on

    Tom, many of the opponents of Same Sex Marriage aren’t even pretending to support race based Public Accomodation.

    That’s true, Bill, although most of them seem to doing whatever they can to keep that on the downlow because they know damn well that the country is not going to tolerate overt, explicit racial discrimination anymore. Racial discrimination is a cultural third rail, and everybody knows it.

    The silence of proponents of religious exemption with respect to same-sex marriage when the issue of religious exemption with respect to interracial marriage is raised is positively deafening. The two are legally locked at the hip but proponents of religious exemption with respect to same-sex marriage do not and will not address the issue. You can read every word that Walter Olson and/or Stephen, for example, have written about religious exemption with respect to same-sex marriage and you will not find any mention of religious exemption with respect to interracial marriage.

    When pushed hard enough to make silence impossible, comparison of the fight for/against same-sex marriage with the fight for/against interracial marriage provokes loud anger and denial. If racial discrimination is a cultural third rail, then so is any suggestion that opponents of same-sex marriage are singing from the same hymnal as opponents of interracial marriage.

    And yet the two issues are legally so similar the Court will have to deal with the issue of religious exemption with respect to interracial marriage if and when the Court grants any sort of religious exemption with respect to same-sex marriage. The issue cannot be avoided from a constitutional standpoint.

    Thanks for the long quote from the Slate article. I followed the link and read the article, and others might want to do so as well.

    I’ve focused, as you know, on the similarities between the African-American struggle for equality and our struggle for equal treatment under the law. The Slate article cast a bright light on the other side of the coin — the similarities of the arguments made by the opposition to same-sex marriage and interracial marriage. Looking at that side of the coin illuminates the side of the coin I’ve been looking at over the years.

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    • posted by JohnInCA on

      The issue cannot be avoided from a constitutional standpoint.

      And yet, Kennedy just avoided it by claiming that pointing it out was sufficient to demonstrate “bias” and “animus”.

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      • posted by Tom Scharbach on

        The constitutional issues won’t be reached until the Court decides a case on the merits. Just about everyone is frustrated with the decision, but that doesn’t change the fact that the constitutional issues remain and will have to be addressed when the merits are decided.

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        • posted by JohnInCA on

          The constitutional issues won’t be reached until the Court decides a case on the merits.
          And as they just proved, they’re very comfortable not doing that.

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    • posted by Tom Scharbach on

      Tom: The constitutional issues won’t be reached until the Court decides a case on the merits.

      John: And as they just proved, they’re very comfortable not doing that.

      You have no idea why the Court did/could not put together a majority on the merits. Nor do I. You have no idea whether or not the various Justices are “very comfortable” with that result or not. Nor do I.

      Masterpiece has been an odd duck from the beginning.

      The case set a near record for the number of conferences — 19 — before cert was granted. Normally, the Court goes no more than two or three before making a cert decision.

      The oral arguments were notable because of the concern about the “neutral forum” issue by a number of Justices, including Kennedy, Breyer and Kagan.

      The decision took six months from oral arguments to opinion, which suggests that the case created a high level of internal negotiation/argument about the case.

      And the opinion itself is odd. The “neutral forum” issue could have been disposed of in a short opinion.

      Instead we got a long opinion and several concurrences/dissents containing a lot of dicta (judicial opinion not directly related to the decision), suggesting that the various Justices found it necessary to set the stage for a future decision on the merits.

      I suppose we can speculate all we want, but when it gets down to it, we don’t know what internal considerations shaped the opinion. The Court holds its internal processes close to the chest, and all the speculation and spin going on right now has about as much substance as Trump’s tweets.

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      • posted by JohnInCA on

        When someone ducks a question for years and years, finally teases that they’ll answer it, only to duck it again, it’s not speculation to say that they don’t want to answer the question, it’s observation.

        Reply
    • posted by Tom Scharbach on

      When someone ducks a question for years and years, finally teases that they’ll answer it, only to duck it again, it’s not speculation to say that they don’t want to answer the question, it’s observation.

      You seem determined to be angry with the Court and with Justice Kennedy in particular. But nothing in the history of this case, however astutely observed, suggests a tease. Instead, the history of the case suggests that something went wrong between cert and opinion.

      When the Court grants cert it does so with the expectation that the case will be heard and decided on its merits, the merits being the question(s) presented for review.

      In this case, the question presented for review was “Whether applying Colorado’s public-accommodation law to compel artists to create expression that violates their sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.” If the Court had taken the case in order to add yet another case to the pile of neutral forum decisions already in place, the question would have been framed differently.

      For that reason, I don’t think that the Court granted cert as a tease, bait-and-switch, or however you want to put it. I think that the Court granted cert in good faith expecting that it would decide the question presented, and, for one reason or another, could not form a majority on anything other than the neutral forum issue.

      I’m looking ahead to the cert decision on Arlene’s Flowers, which should come down in the next week or two.

      The Court (for obvious reasons) held off a decision on cert while Masterpiece was being decided.

      Now that Masterpiece is in the books, we’ll see whether the Court will make another go at a merits decision next Term by granting cert, or let Arlene’s Flowers go the way of Elaine’s Photography by denying cert.

      Reply
      • posted by JohnInCA on

        “Determined to be angry” suggests that my anger is a decision and not a visceral gut reaction, organically sprouted when I read about this bullshit decision. It implies a more cold-hearted calculation of how best to persuasively argue my point, rather then an unwelcome regurgitation of bile and froth upon witnessing this injustice.

        In short, yes, I am angry about this decision. But casting it as a decision is not appropriate or honest.

        As for the flowers case, they could have fairly rolled ’em together if they’d wanted. Flowers was presented to them more then early enough, and the lawyers requested such a roll-up. For them to deny the roll-up, but then grant cert, suggests that not only do they now see something distinct between the cases, but that that they also saw something distinct between them previously.

        So if they grant cert, that kind of undermines your argument that Masterpiece was accepted in good faith.

        Reply
  12. posted by Tom Scharbach on

    Meanwhile, by ducking a broad, one-size-fits-all constitutional holding, the court effectively requires both sides, in Colorado and elsewhere, to go home and try to work out policy accommodations at the state and local levels.

    Why? It isn’t as if the Supreme Court doesn’t have another case on hand that needs to be dealt with before the end of this Term.

    Arlene’s Flowers is awaiting a cert decision from the Court. The Court has three choices: (1) The Court can grant cert, in which case the Court will hear the case next Term. (2) The Court can deny cert, in which case (like Elaine’s Photography) the State of Washington Supreme Court’s ruling will stand. (3) The Court can remand the case to the Washington Supreme Court for reconsideration in light of Masterpiece.

    The third choice doesn’t seem likely, given that the only holding in Masterpiece was that the Colorado Civil Rights Commission did not provide a neutral forum. It seems unlikely that the Washington Supreme Court could do much considering on that score, since, as far as I know, the neutral forum question isn’t an issue in Arlene’s Flowers. So the Court is most likely to either grant cert or deny cert.

    We’ll know soon enough.

    Reply
    • posted by Tom Scharbach on

      For those of you interested, the various filings in Arlene’s Flowers are listed on ScotusBlog.

      The cert petition was distributed to conference on last December, obviously put on hold pending Masterpiece, and was next listed for conference yesterday, June 7.

      We may have a cert decision on Monday. We’ll see. Or we may not. There are a few more conference dates left in this Term, which ends at the end of the month, and the Court could put a cert decision over until the next Term.

      The questions presented are:

      1. Whether the creation and sale of custom floral arrangements to celebrate a wedding ceremony is artistic expression, and if so, whether compelling their creation violates the Free Speech Clause.

      2. Whether the compelled creation and sale of custom floral arrangements to celebrate a wedding and attendance of that wedding against one’s religious beliefs violates the Free Exercise Clause.

      As far as I know, this is a “clean” case, so if the Court takes it up, we’ll get a decision on the merits.

      Reply
  13. posted by David Bauler on

    1. I cannot claim — despite my wishes — to read the United States Supreme Court’s ‘tea leaves’. But I suspect that the decision was probably the only majority decision that they could come up with, then.

    If the court moves further to the right, then the decision will probably be a gay-only religious exemption.

    Reply
    • posted by David Bauler on

      Justice Kennedy may have wanted to make a generalized exemption, so that anyone with a religious exemption (small business, non essential services) would be exempt from applicable public accommodations laws. But, the votes were not their.

      To give another example, let us suppose that — David Bauler — was a Supreme Court justice and the issue was something else, such as ballot access rules for Independent/minor party candidates.

      Now I might argue that these rules are too harsh and set up all sorts of First and 14th Amendment problems, But, most justices generally dislike politics outside of the two main parties and would not accept my arguments. So, what do I do?

      Well, I can write a minority opinion that will probably never become a majority opinion, or I can try and find some common ground opinion that addresses some of the problems, but also leaves a lot to be unsolved….unsolved until the court changes or society changes.

      Reply

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