Today, the Supreme Court issued its highly anticipated ruling in Masterpiece Cakeshop, the case in which a Colorado baker, Jack Phillips, refused to create a cake for a gay couple’s wedding. The Court held, 7-2, that the Colorado Civil Rights Commission violated Phillips’ First Amendment right to free exercise of religion. Notwithstanding the wailing on the left side of the aisle that this ruling opens the door for all manner of discrimination against sexual orientation, it’s quite narrow in scope and is likely to, in effect, give them exactly what they want: forced speech and forced violation of belief.
Phillips is a devout Christian who owns a bakery. He honestly believes that “God’s intention for marriage from the beginning of history is that it is and should be the union of one man and one woman.” In 2012, a gay couple asked Phillips to create a cake for their wedding and Phillips refused, explaining that he does not make cakes for same-sex weddings. The couple filed a complaint with the Colorado Civil Rights Division under the Colorado Anti-Discrimination Act, which prohibits discrimination on the basis of sexual orientation, among other things, in places of public accommodation. The Division found probable cause that Phillips violated CADA and referred the case to the Civil Rights Commission, which ultimately confirmed an administrative law judge’s determination that Phillips violated CADA. After the Colorado Court of Appeals affirmed and the Colorado Supreme Court declined review, Phillips filed a cert petition, claiming that the Commission violated his rights under the Free Speech and Free Exercise Clauses of the First Amendment. The Supreme Court concluded that the Commission did violate Phillips’ Free Exercise rights, but it did so based solely on how the Commission handled the case, not based on a broader ruling that a baker like Phillips has a right to refuse service that violates his beliefs. Specifically, the Court found that the Commission failed to apply CADA in a neutral and respectful manner, and provided good evidence of this failure. For example, one commissioner said: Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others. As Justice Kennedy, writing for the majority, argued: 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 distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The Court further described the Commission’s opposite handling of another series of cases, in which it concluded that bakers who refused to bake cakes that conveyed disapproval of same-sex marriage were acting lawfully. All of this, according to the majority, demonstrated that the Commission acted with hostility toward Phillips’ religious beliefs and therefore violated his Free Exercise rights. What the Court did not do, however, was address the broader Free Speech and Free Exercise questions, such as whether a baker has First Amendment rights to refuse this service, period. In fact, the majority at least suggested he might not have that right: Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections 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. … And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons. By basing the decision exclusively on how the Commission specifically applied the law to Phillips, the Court sidestepped even a narrower, but very important, question of whether a baker has a right to control his artistic expression (through cake baking) under the First Amendment (as Justices Gorsuch and Thomas addressed in concurrence). The Reagan Battalion asked a good question on Twitter:
The answer is “yes.” There is no question that the Supreme Court has a long-standing, and usually good, practice of avoiding answering broader questions when there is a narrower ground to make the decision, as there was here. The problem with this narrower ground, though, is it provides virtually no guidance to the citizen that matters here: the baker, the guy making the decision of whether to bake the cake. You can see the dilemma in Kennedy’s hedging, which is, as usual, couched in language of feelings (“serious stigma”) rather than clear, understandable Constitutional principles. Imagine you are a Christian baker, following this decision, and you’re faced with the decision of whether to create a cake for a gay wedding. Does this ruling give you any guidance as to what is allowed and what is not allowed? No, it doesn’t. The outcome depends entirely on how a state commission might handle your case in the event you say no, and on how a court might view that handling. While the state commission might have a clear idea of what to do from now on (e.g., not make discriminatory comments), the baker does not. Instead, the baker still faces the dilemma of deciding whether to violate his beliefs by creating the cake or to refuse and face potential ruin. In practice, this ruling is likely to have a chilling effect on what is, in my opinion, clearly a free speech problem, as well as a free exercise problem, effectively giving the Left what it’s complaining it has been denied. You may disagree with Phillips, as I do, but it is no small matter to force him and others like him to speak when he does not wish to do so, even if you object to his reasons or think he’s a terrible person for holding his beliefs.
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Donald Trump is at it again.
The President has gotten pardon-happy this week, and in true Trumperor fashion (h/t @BoonaticRex), he’s doing it in the most self-serving, patronage-heavy means possible. That, of course, should be no surprise as it is entirely in line with Trump’s actions as President and his basic philosophy of the Presidency as a fiefdom created largely for the personal benefit of the occupant. Trump has, thus far, issued five pardons, ranging from the indefensibly terrible (Joe Arpaio) to the egregiously overdue (Jack Johnson). Most recently, he pardoned raving lunatic Dinesh D’Souza for a crime that D’Souza never disputed and a sentence that D’Souza described as “fair”. After that, he immediately began floating the idea of pardoning people like Martha Stewart and Rod Blagojevich. As has been noted elsewhere, the pardons are transparently self-serving, pandering, and vengeful. The problem with this spate of pardons, though, isn’t with the substance of the pardons (which are, Arpaio aside, no worse than “inoffensive”), but with a pattern much more archetypal of Trump and his presidency. The decision-making process and underlying rationale for the pardons suggests, once again, that there is little underlying ideology other than that of self-interest. D’Souza gets a pardon as a straight favor to an ardent supporter and favorite of the right wing base. He was also conveniently prosecuted by Preet Bharara, subject of a high-profile Trump firing last year. Martha Stewart is up for a pardon, not because she was convicted of an absurd crime (lying while not under oath), but because she was prosecuted by James Comey, one of Trump’s current favorite whipping boys. Same goes from Blago, prosecuted by Comey team-member Patrick Fitzgerald. Trump has taken the 1960s credo that “the political is personal” to a level far beyond that of any President in recent history. While Bill Clinton has rightfully absorbed two decades of criticism for selling a pardon to Marc Rich, Trump has dramatically raised the bar on selling access and soliciting favors while in office. Just this week, he took a sudden interest in saving ZTE Corp, a Chinese telecom equipment maker that was largely driven out of business by US Regulators because of its repeated violations of sanctions against North Korea and Iran. Given the President’s very public feelings about North Korea and Iran, one might think that he took a particularly dim view of a company that agreed to pay a $1.2 billion fine as a result of violations of sanctions. He didn’t, though, and it is probably not coincidental that the Chinese Government (largest shareholder and controller of 5 of 9 board seats at ZTE) awarded Ivanka Trump several trademarks she had been seeking. Probably also not coincidental that the Chinese government arranged for $1 billion in funding (half directly and half through state-owned banks) to an Indonesian resort development that will license the Trump name. You can add these to the LONG list of naked conflicts of interest benefitting President Trump and his family either entirely or partially as a result of the selling of access or influence. Or, in the case of hosting government events at his hotels and over-charging the Secret Service rent at his properties, spending public money to fatten his own pockets. None of this is new behavior. During the campaign, Trump promised to divest his vast businesses should he be elected, and then proceeded to simply place them into a revocable trust for his benefit (for the uninitiated, a revocable trust places a barrier between the beneficiary and the trust’s assets that is about as thick as parchment paper). Within a week of being elected, Trump openly asked the President of Argentina to do a favor for him in the development of a Buenos Aires office tower. In other words, this isn’t a character flaw that grew. This was his basic strategy to profit from office from long before he even took the office. To Trump’s increasingly apologetic defenders, none of this matters. Sure, they’d like him to be a less atrocious human being, but not enough that they would consider voting for someone else. His failings can always be justified through embarrassing relativism – sure, he took a bribe to have the Commerce Department reverse course on ZTE, but what about Clinton’s Uranium One deal, huh? Never mind that Trump largely owes his Presidency to the obvious moral failings of Secretary Clinton, his supporters will happily use her as a moral justification when it is convenient. Those same failings can also be excused because it is just so much gosh darn fun to watch liberals freak out about Trump. Who cares if Trump is putting his family’s personal interests ahead of those of taxpayers and citizens, I just love that he does it to Pwn The Libz, amirite? Or, somewhat more rationally, his abhorrent personal behaviors can be excused in exchange for his very real policy victories. He may cheat on his wives and his business partners, enrich himself from the public treasury and sexually abuse women, but we can look past that if he is willing to cull the regulatory state, cut taxes and appoint solid judges. To the last point, I can attach at least a little bit of intellectual sympathy. We can’t always get what we want in the world, and taking the bad with the good is a necessary part of being an adult. While somewhat overblown and countered by some really inane ideas (like hardline immigration, wealth-destroying tariffs, reckless spending and unmoored foreign policy), there are very tangible policy achievements of Trump’s administration. Also this week, alongside his influence selling, Trump signed an amendment to Dodd-Frank that streamlined the regulatory burden on smaller banks and freed these smaller, nimbler actors to compete aggressively with the country’s largest banks. Despite the ranting of Democrats, it is a good law that reverses some of the legislation that made 2008’s Too Big to Fail Banks so much bigger than they were 10 years ago. Continually justifying this sort of Presidency, however, is a fool’s errand. Ultimately, the character of our leaders matters, and it matters in ways that Trump’s supporters are unwilling to acknowledge. We don’t need to go too far back into history to find another personally flawed President whose moral failings were excused by his supporters because he was such an effective promoter of their shared ideas (much more effective, I would argue, than Trump.) Bill Clinton was a serial sexual predator, proven liar, and generally detestable individual who also happens to be one of the most skilled politicians of the last 50 years. And leftists, including a regrettably large number of feminists, excused his lecherous behavior at every turn presumably because he advanced their policy ideals. Now, twenty-five years later, America is just beginning to reckon with the legacy of those decisions. The enabling of Clinton’s behavior ushered in an entire generation of predatory behavior by powerful men who too often felt like they could buy their way out of their crimes by aligning with the right causes and making the right donations. The damage done to women – the very people whose interests often justified Clinton’s absolution – has been almost incalculable. Without Bill Clinton, it is much less likely that there is a Harvey Weinstein. This, I fear, is what justification of Trump will ultimately lead to. His worst behaviors – graft, corruption, nepotism, petty vengeance – won’t suddenly become unacceptable again after he is gone. And the ramifications or normalizing those behaviors, while they will most acutely be felt by those who sold out their principles in support of Trump (looking at you, Evangelicals), will haunt us all. Just like predators like Harvey Weinstein blossomed in the cover created by Bill Clinton’s excuses, we are bringing upon ourselves a generation of lying, cheating, morally repugnant institutional leaders that will cause immeasurable damage. It is entirely too easy to ignore the failings of people that often agree with you. It is convenient and expedient to dismiss ethical and moral deficiencies in our leaders that don’t seem to impact us directly. The ends, it seems, often justify the means. But human history has taught us that character matters, and the acceptance of bad characters will hurt us much more than their seemingly beneficial actions can help us. |
MisfitsJust a gaggle of people from all over who have similar interests and loud opinions mixed with a dose of humor. We met on Twitter. Archives
January 2024
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