Archive for the ‘SCOTUS’ Tag

It’s Not Freedom if You Can’t Exercise It, Pt 3   Leave a comment

“When the government fails to act neutrally toward the free exercise of religion, it tends to run into trouble.” Neil Gorsuch, Supreme Court justice

Gorsuch wrote a concuring opinion in Masterpiece Cakeshop v Colorado Civil Rights Commission and Justice Alito joined him.

Image result for image of wedding cakeGorsuch stated that the decision hinged on the hostility of the Commission toward Phillips’ beliefs and on their failure to show that their “restriction on religion both serve(s) a compelling interest and (is) narrowly tailored” (Church of Lukumi Babalu Aye v Hialeah (1993)).

The Colorado Civil Rights Commission failed to “act neutrally toward Jack Phillips’ religious faith.” It allowed three other bakers to refuse a customer’s request that would have required them to violate their secular commitments, “yet it denied the same accommodations to Mr. Phillips when he refused a customer’s request that would have required him to violate his religious beliefs.” The Commission’s reasoning was the Phillips’ religious beliefs are “offensive”, in its judgement.

Gorsuch admits that he wrote this opinion mainly to address his two colleagues trying to suggest that the Commission could have acted neutrally toward Phillips’ faith when it treated him differently from the other bakers in a way consistent with the First Amendment.

“Respectfully, I do not see how we might rescue the Commission from its error.”

Mr. Jack argued that the cakes he requested reflected his religious beliefs and so the bakers could not refuse to make them just because they disagreed with his beliefs. The Commission ruled that the bakers didn’t refuse on the basis of his religious faith, but because his message was “offensive” to their own moral convictions.

How is that different from what Jack Phillips did when he refused to bake a wedding cake for a same-sex wedding? Phillips too offered to make other baked goods, including cakes, celebrating other occasions, but he would not design a wedding cake for a same-sex wedding regardless of the sexual orientation of the customer. He subsequently refused the request from the mother of one of the partners. The undisputed factual record shows that Phillips would not make a cake celebrating a same-sex marriage for a heterosexual customer and that he was no unwilling to sell other products to a homosexual customer.

“In both cases, the effect on the customer was the same: bikers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases, the bakers refused service intending only to honor a personal conviction. … 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. … all bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as anyone else).”

Gorsuch notes that Colorado law allows that “businesses are entitled to reject orders for any number of reasons, including because they deem a particular product requested by a customer to be “offensive”.  The Commission ignored that and judged Mr. Phillips’ intentions in denying service were “inextricably tied to the sexual orientation of the parties involved” and essentially “irrational.” But, somehow, the intentions of bakers in the Jack case were not “inextricably linked”.  The Commission presumed Mr. Phillips habored an intent to discriminate against a protected class in light of the foreseeable effects of his conduct, but it didn’t presume the same intention toward the bakers’ conduct in the Jack’s case.

“The Commission cannot have it both ways. [It] cannot slide up and down the mens rea scale, picking a mental status standard that suit its tastes depending on its sympathies. Either actual proof of intent to discriminate on the basis of membership in a protected class is required … or it is sufficient to “presume” such intent from the knowing failure to serve someone in a protected class.”

But no, the Commission appeared instead to condemn Mr. Phillips for “expressing just the kind of “irrational” or “offensive” message that the bakers in the Jack’s case refused to endorse.  You can agree with the Commission and consider Mr. Phillips’ beliefs to be irrational or offensive, or consider that he has misinterpreted the teachings of his faith. The Supreme Court has ruled same-sex marriage is a matter of constitutional right and various states have enacted laws that preclude discrimination on the basis of sextual orientation, but those bureaucratic judgments do not survive strict scrutiny under the First Amendment.

“In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise. … Just as it it is the proudest boast of our free exercise of jurisprudence that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive (Matal v Tam (2017); United States v Schwimmer (1929).”

Gorsuch goes on to say the Commission has tried to maneuver around its failure by claiming Jack asked for a cake with text while Craig and Mullins (the plaintives) sought a decorated cake and then has insisted that the Phillips’ case involved a wedding cake like any other, suggesting there’s no substantive difference between a wedding cake celebrating a heterosexual wedding versus a homosexual one. It’s all a means to deny the neutrality Jack Phillips was due under the law.

It’s irrational to argue that a cake with words conveys a message, but a cake without words does not. Wedding cakes are symbolic baked goods, signifying approval of a “specific system, idea (or) institution.” (West Virinia Bd of Ed v Barnette (1943). “That was precisely the approval Mr. Phillips intended to withhold in keeping with his religious faith.” In denying Mr. Phillips that choice while affording the bakers in Mr. Jack’s case the same choice, the Commission displayed a gross lack of neutrality. Gorsuch insists that the only reasonable course of action is both bakers to be treated the same. To some, all wedding cakes may appear indistinguishable, but to Mr. Phillips, that is not the case — his faith teaches him otherwise “and his religious beliefs are entitled to no less respectful treatment than the [other] bakers’ secular beliefs.”

Gorsuch further relies on the case of Smith, a Jehovah’s Witness who worked in a steel mill, accepting that the sheet steel he worked on might be used in munitions, but objecting to working directly on tanks. “The Court didn’t try to suggest that making steel is just making steel [or] that to offend his religion the steel needed to be of a particular kind or shape. Instead it recognized that Mr. Thomas alone was entitled to define the nature of his religious commitments … not a bureaucrat or judge ….”

Gorsuch confirmed that it is not appropriate for the US Supreme Court to tell Mr. Phillips that a wedding cake is just like any other without regard to the religious significance his faith may attach to it than it is for the Court to suggest that “for all persons sacramental break is just bread and a kippah is just a cap.”

That leaves only one way forward. The SCOTUS will reverse the judgment and hold the Commission’s order set aside. The Commission ought to think about this and use the SCOTUS reasoning in future cases to offer neutral reasons for their rulemaking. Gorsuch also stated that Phillips is entitled to judgment for the past six years facing unlawful civil charges.

Ouch! The State of Colorado may get hit in their pocketbook. And that might be what is necessary to make it clear that government cannot do these sorts of things to law-abiding citizens they happen to disagree with.

Part 4

It’s Not Freedom if You Can’t Exercise It, Pt. 2   Leave a comment

I like to believe that nothing really shocks me anymore, but that Elena Kagan concurred with the majority in the Masterpiece Cake case surprises me. I’m even somewhat surprised that Justice Breyer joined in her concurrence.


“It is a general rule that (religious and philosophical) objects do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law” … unless state actors show hostility toward religious views, which the Colorado Civil Rights Commission did.

Image result for masterpiece cakeshopKagan noted the came of William Jack, who sought cakes with images that conveyed dispproval of same-sex marriage, along with religious text. Bakers refused to make them and their refusal was upheld by the Colorado Civil Rights Commission. In the case of Jack Phillips the Commission deemed his beliefs to be offensive, but a “principled rationale for the difference in treatment cannot be based on the government’s own assessment of offensiveness.”

Kagan found that the proper basis for distinguishing the cases was obvious. “The Colorado Anti-Discrimination Act (CADA) makes it unlawful for a place of public accommodation to deny ‘the full and equal enjoyment’ of goods and services to individuals based on certain characteristics, including sexual orientation and creed.” The three bakers in the Jack case would not have made a cake denigrating gay people no matter who requested it. Mr. Jack was not signaled out. Phillips did refuse the bake the cake for the gay couple because of their sexual orientation. Kagan reasoned that a plain reading of the Colorado law would have allowed the Commission to rule against Phillips on that basis, but they didn’t avail themselves of that option.

Okay, Kagan is a statist who is fine with using government to force people to violate their beliefs so long as government doesn’t show its underwear in the process.

Justice Gorsuch has a different view and we’ll get to that in a moment.

Offensive is in the eye of the beholder and forcing someone to compromise their religious beliefs curtails their freedom of conscience. Why is that somehow something we think is a good idea?

Under this argument, you could arrive that the idea that a black hip hop cover artist is required to sing Slim Shady songs for a bunch of skinheads unless the government fails to correctly cite its own law requiring that. Is the proper citing of the law somehow magic? Does it turn that which is sin into something that doesn’t mar the soul of the participant?


Because freedom of conscience is probably the most fundamental right we have. It is the right to be us and to have the fruits of our creativity to reflect what we want them to reflect and not what others demand we respect. And it’s not freedom if you’re afraid to exercise it.

Part 3

It’s Not Freedom If You Can’t Exercise It, Pt 1   Leave a comment

I’m a writer. Well, if you read this blog, you know that. I write a lot of non-fiction and I’ve published several novels. Writing is what I do.

I don’t write “Christian” books, but I am a Christian who writes. My faith works its way into my writing whether I mean it to or not because my faith is a part of me on a deep fundamental level. It doesn’t just dictate my surface actions on Sundays, but all of my actions, even the unthinking nouns and conjunctions.

From the moment I heard about Jack Phillips, I understood what he was going through. He was asked by a gay couple to make a custom wedding cake. Phillips explained that he would gladly make them cupcakes or cookies, but his faith teaches him that marriage is between a man and a woman and he could not participate in their wedding by making a cake that celebrated what the Bible teaches is sin.

I used to provide wedding photography as a ministry. If you couldn’t afford it or it involved hiking up a middling-sized Alaska mountain, I was up for it. People usually just reimbursed me for the film, processing, and printing. I stopped not long after I did a friend’s rock-climbing birthday. My friend is a lesbian and I had no problem celebrating her birthday. But she showed those photos to another lesbian we worked with and that woman asked me if I’d do her wedding. Fortunately, the wedding was in Hawaii so I could plead the cost. When I asked a lawyer about it, he said “You’re playing with fire. The day will come when someone is going to require you to violate your beliefs … do it for free … and take you to court if you refuse.” I let it be known that I was too busy with my writing to do photography for anyone not an official member of my church. True, but not so much that I wouldn’t have found the time for someone who needed it.

It is impossible to take pictures at a wedding or bake the cake and not be seen by others as approving that wedding. And whether you like it or not, the Bible is clear that homosexual activity is not something Christians can participate in. 1 Corinthians tells us to “Flee sexual immorality”, not put a nice set of clothes and attend a celebration to sanctify it.

Related imageThe jury is still out. Photography might be considered a passive recording of the event rather than an artistic expression. When I heard Phillips argument before the Supreme Court, I thought seriously about what would I do if someone came along and forced me to write something I truly knew would violate my beliefs.

Because I am both a non-fiction and fictional writer, I am somewhat like Jack Phllips. Sometimes I’m creating generic content for the masses and sometimes I creating a highly artistic enterprise. I would never say gay people can’t or shouldn’t buy my books. I suspect gay people have read my newspaper and magazine articles and blog posts. But what if one of my lesbian acquaintances came to me and wanted to hire me to write a narrative for her wedding? About 30 years ago, I actually did that for a couple who asked me to. I haven’t done it since, but I haven’t advertised that I would do that sort of thing. So, what would I do?

I wouldn’t decline the Christian couple who asked. I might not decline the non-Christian couple, although they might not like what I write. I would be very circumspect about doing that sort of service for a Christian couple where one or more of them were divorced from a prior spouse. It would depend on the circumstances. I would deny a Christian marrying a non-Christian because I think that is a Scriptural example of sexual immorality. And, I would decline a homosexual couple for the same reason. I should go see if my legal insurance is paid up. I just might need it.

The Supreme Court of the United States ruled this week that the Colorado Human Rights Commission discriminating against Jack Phillips because it was blatantly hostile to his faith, considered it be “despicable” and “merely rhetorical and [sic] insincere”, comparing the invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. Such a sentiment “is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of … a law that protects discrimination on the basis of religion as well as sexual orientation.”  Because no subsequent attempt was made to disavow those statements, Justice Kennedy concluded that “the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commissioner’s adjudication of Phillips’ case.”

Kennedy also noted that the Civil Rights Division had considered the refusal of other bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text and “found that the baker acted lawfully in refusing service.” The treatment of the conscience-based refusals in these other three cases with the Commission’s treatment of Phillips’ object was built on a presupposition that any message on the wedding cake would be attributed to the customers rather than the baker, but the Division never actually addressed that issue in its findings. One of the salient points for the Colorado Commission was that the bakeries were willing to sell other items to the customers, but then they dismissed as irrelevant Phillips’ willingness to sell “birthday cakes, shower cakes, cookies and brownies” to gay and lesbian couples. The Commission had treated the other bakers’ conscience-based objects as legitimate, but treated his as illegitimate, thus judging the validity of his religious beliefs themselves … deeming his beliefs to be offensive.

“The Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs. The Constitution ‘commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures'” (citing Church of Lukumi Babalu Aye).

Kennedy, writing the majority opinion found the Commission’s hostility to Phillips’ beliefs “inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.”

The SCOTUS left open the door for “cases of other circumstances” to further elaborate these arguments in the courts, reminding those future courts 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.”

Contrary to popular media depiction, this was not a “narrow” decision. When fewer than a third of the justices dissented from the majority opening, it isn’t a narrow decision. 7 to 2 is practically a repudiation … especially when you consider that Elena Kagan — not exactly a conservative or constructionist juror — concurred with the majority.


More on that in my next post

Part 2

When the SCOTUS Oversteps Its Bounds   Leave a comment

Ruth Bader Ginsberg has never impressed me as a Supreme Court Justice. I think her job has something to do with a familiarity with the US Constitution, but since she usually references international law in her opinions, I think she may not being doing the actual job of a Supreme Court justice. I suspect she has never read the Constitution … not of the United States, anyway.

But, that’s not what I’m writing about today. Lately, Ginsberg has been offering her opinion on Donald Trump. First she threatened to quit the Supreme Court if he won the general election.

Bye, bye, Ruthie, you won’t be missed. Please don’t damage my gate on your way out … in other words, get out of its way. I suspect most Americans (as opposed to people who live here to try and change society to that of somewhere else) feel the same way I do. Could we trade her in and get Scalia back? No, I don’t wish the Obama administration had killed her instead of Scalia … often. I try to listen to my better angels. It’s just really hard with this particular woman because she is the epitome of progressive activism at its most abusive.

But, hey, you know she won’t actually quit if Trump becomes President, anymore than Stephen Baldwin moved to Canada after Obama’s reelection. Words are wind and she’s a gas bag.

But, now she’s apparently decided to offer her opinion more specifically.

Trump has now demanded that she resign. That wouldn’t really mean much to me except that Trump is having one of those “broke clock right twice a day” moments.

It is extremely inappropriate for the “non-political” arm of the division of power structure to insinuate itself into the partisan political process. It rips off the illusion of neutrality. Maybe that’s a good thing. The Supreme Court has ceased to be neutral and we all ought to realize that. That still doesn’t mean we shouldn’t discipline justices who engage in it.

Here in Alaska, judges are appointed and they can serve for life, but three years after their appointment and every 10 years thereafter their names are placed on the election ballot for retention. I vote 99% to not retain judges because I observe that most judges wield their power in dictatorial ways and that increases with their length of time in office. My 1% contrarian vote is for the judge who actually appears to be a good judge. My fellow voters vote to retain 95% of the time, so we the voters have released only two judges since statehood, although some communities have voted not to retain magistrates.

I believe the Supreme Court should be under the same system. The Constitution does not proscribe lifetime appointments of Supreme Court justices. The document was silent on the topic and lifetime appointment is simply a tradition that evolved because the SCOTUS was supposed to be the non-political arm of the federal government. We didn’t want them subject to wholesale replacement with every president and we wanted to protect them from the political process so they could cool our passions when needed.

The SCOTUS ceased to perform that roll decades ago, but Ginsburg is a glorious example of just how corrupt and inappropriate that body has become. So which presidential candidate is more likely to do something sweeping to fix the Supreme Court?

Hillary won’t because Ginsburg is obviously a supporter and Hillary wants as many progressive activists on the Court as she can get.

Trump would try to fire Ginsburg, discover that he doesn’t have that power and then lobby Congress to do so … and then it would be over because Trump is much more interested in the economy and foreign trade than he is in the Supreme Court. He considers them an afterthought.

Johnson … Johnson might actually do something. Because he doesn’t owe his career to Capitol Hill entrenchment, he has every reason to think outside of the elitist box and to shake up some traditions favoring the elites. Start with firing Ginsburg for being inappropriate, then ask Congress for 1/3 of the justices to be placed on the ballot every four years and any new appointee to be on the next ballot. Probably, most will be retained, but the egregious ones — the ones at the center of outrageous controversies (like Ginsburg) will be shown the door. And that will be to the health of the country.

Reforming the SCOTUS   Leave a comment

Since the death of Antonin Scalia (who I  increasingly suspect was murdered for the purposes of protecting Obama’s unconstitutional legacy), this post becomes more important. I wrote it a couple of years ago and there are things I would change now.

  • Increase the number of justices on the court to somewhere between 15-25. That dilutes the political leanings of anyone justice to a margin of error.
  • No president may nominate more than one justice per term, so if one dies and the president has already had his one nomination that term, the nomination should come from the Senate or the state legislatures
  • When justices die in office, their replacement may only serve until the end of the deceased justice’s term. The president may either name the replacement or the one nomination allowed that term, but not both.


Mark Levin’s Liberty Amendments suggested a constitutional amendment to introduce term limits for US Supreme Court justices. Is that a good idea?

Northwestern University School of Law professor James Lingren debated Columbia Law School professor Thomas W. Merrill on this subject on March 11.

Lindgren advocated for a proposed constitutional amendment limiting justices to 18-year-terms with each term expiring in odd years, giving presidents two nominees for each 4-year executive term. He argued that term limits would help return the Supreme Court to its historic norm of shorter terms and bring it in line with other judicial entities in the United States.

“Except for the state of Rhode Island, no other western jurisdiction has life tenure for high court justices,” Lindgren said. “Term limits would help usher out judges with mental decrepitude and loss of stamina, eliminate strategic retirement for political reasons, reduce animosity in confirmation, and return to traditional…

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Posted April 19, 2016 by aurorawatcherak in Uncategorized

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