Skip to comments.In Masterpiece, the Supreme Court Grapples With a Problem of Its Own Making
Posted on 12/07/2017 6:57:50 AM PST by Kaslin
At Tuesday’s oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission—which will decide whether baker Jack Phillips can be forced by the state to design and create a cake celebrating a same sex wedding—it became apparent quite early on that the Court was grappling not merely with Jack’s case, but with a number of potential conflicts between religious freedom and same-sex marriage on its hands.
Recognizing that the issues Jack faces in this case are sure to arise again, the justices struggled with where to draw the line for a constitutional rule which will protect First Amendment rights in light of the legal regime which the Court itself imposed on the country just two years ago in Obergefell v. Hodges.
If Jack is engaged in protected artistic expression under the First Amendment, the justices wondered at argument, who else might be? Is the florist, wedding invitation designer, makeup artist, hairstylist, dessert artist, or chef? These individuals need First Amendment protection too now due to the threat of Obergefell. Yet if they are found to not be engaged in expression and granted First Amendment protection, they are all at risk of being forced to lend their creative talents to same-sex wedding ceremonies. The Court must now deal with having to protect all of them—and more—in light of its decision in Obergefell.
This wasn’t an unforeseen problem. As the Court considered Obergefell, many warned of potential religious freedom problems. Developments over the last several years have borne out that prediction, with scores of conflicts involving businesses, public servants, employees, non-profit organizations, schools, and even churches. The Court has much more than just Jack Phillips on its hands.
The significant scope of the religious freedom issues implicated by Jack’s case only became more apparent as the argument wore on.
This scope includes religious freedom in the professions. Chief Justice Roberts led the questioning of the attorney for the state of Colorado by asking if, under his legal theory, a group of Catholic lawyers offering pro-bono legal services could be forced to take cases supporting same-sex couples. The lawyer representing Colorado replied that they could.
This also includes religious freedom for schools and universities. When Justice Alito asked David Cole of the ACLU, which also argued against Jack in this case, whether “Colorado can compel a religious college . . . whose creed opposes same-sex marriage to provide married student housing for a married same-sex couple or allow a same-sex wedding to be performed in the college chapel,” after a bit of hemming and hawing, Cole admitted that the state could force this on the college. This is the precise threat that former Solicitor General Donald Verrilli hinted at during oral argument several years ago in Obergefell.
Yet the religious freedom “promise” of Obergefell—that “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here”—must be honored here, or fail everywhere else. Unfortunately, the ACLU and Colorado seem intent at chipping away at it. When Chief Justice Roberts raised this passage from Obergefell during argument, the ACLU moved the goalposts, claiming this passage was just about pure speech, not actions like Jack’s in this case.
May the Court now dig in and refuse to move the goalposts. The freedom of many depends on it.
That is the crux of the problem.
The law should never be made from the bench.
Homosexual acts should have never been legalized. Had the Court behaved lawfully in the matter of Lawrence we might not have the Poofters and Gaystapo running amuck now.
When your objective is expanding social engineering, reason and the law have to take a back seat.
Let's see... Constitutional rights versus politically-motivated protected class. Which wins?
The Court doesn’t actually have that power. It is not delegated to them and they have since FDR’s time lawlessly usurped this powers for which amendments are only lawful.
It’s bad luck this hit the SC while Kennedy is still there.
Obergefell was, at the end of the day, nothing more than the court using it’s power to redefine a word. It cracked me up at the time. Actually it still does. I fiddle as Rome burns.
>> conflicts between religious freedom and same-sex marriage on its hands
1. Freedom and liberty are the foundation of our republic. Those should be the top priorities.
2. Same-sex “marriage” is a figment of the liberal imagination. For THOUSANDS of years, people knew what the word “marriage” meant. When the court starts redefining not only laws, but the definition of words that used to have a well-understood meaning, they create chaos, confusion, and the breakdown of society.
All those on the court who were STUPID enough to vote in favor of same-sex “marriage” should be removed from the bench for total incompetence. Even a 5-year-old would have more common sense than that.
The priority was social engineering. Religious freedom, important as it is, isn’t even the biggest issue here. The biggest issue is that the court is compelling someone to work for another person against his will. Forced work = slavery.
This case illustrates the problems with the Court creating “rights” through the process of Substantive Due Process.
1. The discovery of new rights is inherently subjective (this problem was noted by Justice Iredell as early as Calder v. Bull in 1797).
2. In creating “rights,” the Court is inherently making a policy judgment supporting those rights, and in so doing becomes a political and not judicial body. As we’ve seen since Roe v Wade led to the character assassination of Robert Bork, membership in the political court has become a political issue.
3. It denies the public the ability for political input in the policy decision, which very much rubs the public the wrong way.
4. It creates a labyrinth of “rights” that will inherently cause them to come into conflict with each other, as they do here. When that happens, the state, acting through its judiciary, becomes the arbiter of those rights. One of them must lose, and when it does, it is no longer a right but a license, like a fishing license, to be granted and revoked as the state sees fit.
To me the best characterization is the difference between Roe v. Wade and the 19th Amendment (women’s suffrage). The women’s suffrage movement was consistently opposed for a number of years, but after 32 states had given women voting rights, the nation was ready for a Constitutional Amendment. It was proposed, debated and adopted through the political process. It has not been a subject of serious debate since.
Roe v. Wade on the other hand was created out of thin air and forced upon the public without benefit of their input, and remains controversial 40 years after the ruling.
This is (another) problem caused by government pretending something to be true that isn’t. In this case, pretending that homosexuality is normal.
Other examples where governments pretending that have caused horrendous problems:
-pretended that black people aren’t people.
-pretended that Jewish people aren’t people.
-pretending that pre-born people aren’t people.
HEY GOVERNMENT, STOP PRETENDING!!!
I could not have said it any better.
>> the state, acting through its judiciary, becomes the arbiter of those rights. One of them must lose, and when it does, it is no longer a right but a license, like a fishing license, to be granted and revoked as the state sees fit.
Excellent analysis. Bears repeating. People need to understand this.
Thanks for your post.
The situation "of their own doing" here that is most applicable is the legal standard whereby governments can compel any individual engaged in any business activity to serve clients/customers against his well. The whole idea of a "public accommodation" is nothing more than a legal fiction that gives the state the authority to exercise power that it should never have in a free society.
If a baker doesn't want to make a cake for someone, then he has every right to tell that person to "'eff off" for any reason whatsoever.
The question is, if someone offers me a job am I obliged to take it as long as they offer pay me?
If I choose not to take the job for whatever reason then can I be sued and told that I must take the job by force of law?
This goes far beyond religious freedom and artistic creativity and runs right into who owns me.
If the SCOTUS decides that the government can force me to work for someone then it is time to cut the ties that bind period.
They are violating one of the most basic natural rights of man.
I think that the court will “split the baby” and give both sides something to claim victory about. But in the process they rein in the “super rights” no granted to gays, and point out that there is a Bill of Rights that trumps gay rights.
The first part of the questions indicate to me that they are going to have a really hard time drawing a line, which is their preference so they won't have to wallow in the muck. They'll probably find one somewhere, but it is clear to me that whatever they decide is going to be an unholy mess.
One of the exchanges that I thought was really interesting, that I've seen little reportage on, is the questions regarding the bias of the commission that brought the charges. Two separate commissioners (out of 7) were singled out for their biased comments by the justices.
Then there was this:
JUSTICE ALITO: One thing that's disturbing about the record here, in addition to the statement made, the statement that Justice Kennedy read, which was not disavowed at the time by any other member of the Commission, is what appears to be a practice of discriminatory treatment based on viewpoint.
The -- the Commission had before it the example of three complaints filed by an individual whose creed includes the traditional Judeo-Christian opposition to same-sex marriage, and he requested cakes that expressed that point of view, and those -- there were bakers who said no, we won't do that because it is offensive.
And the Commission said: That's okay. It's okay for a baker who supports same-sex marriage to refuse to create a cake with a message that is opposed to same-sex marriage. But when the tables are turned and you have the baker who opposes same-sex marriage, that baker may be compelled to create a cake that expresses approval of same-sex marriage.
JUSTICE KENNEDY: Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it's mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs.
MR. YARGER: And, Your Honor, I -
JUSTICE KENNEDY: And -- because accommodation is, quite possible, we assume there were other shops that -- other good bakery shops that were available.
I found Kennedy's questioning on this interesting. He's basically calling out their hypocrisy.