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Legal things, cakeshop edition
Jun. 6th, 2018 11:30 amtl;dr Masterpiece Cakeshop is somewhat bad, but not a disaster. Essentially, SCOTUS dodged the bullet. There's also an important silver lining here.
As soon as I saw that the ruling came down 7-2 I knew they'd dodged. The Court is divided and one of Roberts' consistent tactics to get more consensus is to narrow the scope of rulings to things a larger majority can agree on. I'm certain that if this had been framed as a gay rights or free speech issue, it would have come out 5-4 or maybe even 3-2-2-2 with nobody able to get a majority.
Headlines - at least from the non-rightwing/non-religious media - have consistently used the word "narrow" which is great headline fodder but doesn't tell you a lot. I will say that I haven't read the full opinions yet, but the summary and knowledgeable commentary is in agreement. See for example http://www.scotusblog.com/2018/06/opinion-analysis-court-rules-narrowly-for-baker-in-same-sex-wedding-cake-case/#more-270956 - SCOTUSblog is absolutely the best source for most things about the Supreme Court.
The Court majority held that the Colorado administrative agency did not treat the baker (Phillips) fairly. It stated that commissioners' statements showed that they were hostile to Phillips and to his religious beliefs. Given that evidence, it's easy to argue that he did not get a fair hearing; the ruling compels the public agency to rule on this matter in a way that is neutral with respect to religion.
That in itself is actually not a bad thing. Generally, we'd like public agencies to make rulings in a religion-neutral fashion. The ruling does NOT say that religious beliefs overpower equal accommodation laws and most importantly it is completely silent on the First Amendment issues. Those issues were raised later in an attempt to strengthen the appeal and I'm glad the Court didn't rule on them. There's a lot of nasty detail in that swamp.
The ruling also seems to make clear that the Court doesn't want to weigh in on whether religious exemptions beat public accommodations. I suspect the case will end up back at SCOTUS on those grounds and I'm not optimistic. Ever since the Court tossed out RFRA (https://en.wikipedia.org/wiki/Religious_Freedom_Restoration_Act) they've been walking that back. Hobby Lobby being the most egregious example, but there are others. Probably the worst part of this is that the ruling is going to embolden state-level challenges. As I remarked on Twitter, we dodged a huge bullet when SCOTUS not only overturned the national DOMA, it invalidated all the state-level DOMA-alikes. There are many state-level RFRA laws now and it's going to be an ugly slog to overcome them.
So where's the silver lining? It's in the fact that Kennedy's analysis relies on the speech of the Colorado commissioners. If a public official expresses hostility toward a group, that verbal animus can - SCOTUS has now reminded us - be used as evidence that the group is not receiving fair treatment. There are still cases regarding government policy such as the travel ban where plaintiffs are arguing that DJT's statements are relevant. And so long as DJT continues to blow his verbal wad all over the Internets, it's open season for smart lawyers.
As soon as I saw that the ruling came down 7-2 I knew they'd dodged. The Court is divided and one of Roberts' consistent tactics to get more consensus is to narrow the scope of rulings to things a larger majority can agree on. I'm certain that if this had been framed as a gay rights or free speech issue, it would have come out 5-4 or maybe even 3-2-2-2 with nobody able to get a majority.
Headlines - at least from the non-rightwing/non-religious media - have consistently used the word "narrow" which is great headline fodder but doesn't tell you a lot. I will say that I haven't read the full opinions yet, but the summary and knowledgeable commentary is in agreement. See for example http://www.scotusblog.com/2018/06/opinion-analysis-court-rules-narrowly-for-baker-in-same-sex-wedding-cake-case/#more-270956 - SCOTUSblog is absolutely the best source for most things about the Supreme Court.
The Court majority held that the Colorado administrative agency did not treat the baker (Phillips) fairly. It stated that commissioners' statements showed that they were hostile to Phillips and to his religious beliefs. Given that evidence, it's easy to argue that he did not get a fair hearing; the ruling compels the public agency to rule on this matter in a way that is neutral with respect to religion.
That in itself is actually not a bad thing. Generally, we'd like public agencies to make rulings in a religion-neutral fashion. The ruling does NOT say that religious beliefs overpower equal accommodation laws and most importantly it is completely silent on the First Amendment issues. Those issues were raised later in an attempt to strengthen the appeal and I'm glad the Court didn't rule on them. There's a lot of nasty detail in that swamp.
The ruling also seems to make clear that the Court doesn't want to weigh in on whether religious exemptions beat public accommodations. I suspect the case will end up back at SCOTUS on those grounds and I'm not optimistic. Ever since the Court tossed out RFRA (https://en.wikipedia.org/wiki/Religious_Freedom_Restoration_Act) they've been walking that back. Hobby Lobby being the most egregious example, but there are others. Probably the worst part of this is that the ruling is going to embolden state-level challenges. As I remarked on Twitter, we dodged a huge bullet when SCOTUS not only overturned the national DOMA, it invalidated all the state-level DOMA-alikes. There are many state-level RFRA laws now and it's going to be an ugly slog to overcome them.
So where's the silver lining? It's in the fact that Kennedy's analysis relies on the speech of the Colorado commissioners. If a public official expresses hostility toward a group, that verbal animus can - SCOTUS has now reminded us - be used as evidence that the group is not receiving fair treatment. There are still cases regarding government policy such as the travel ban where plaintiffs are arguing that DJT's statements are relevant. And so long as DJT continues to blow his verbal wad all over the Internets, it's open season for smart lawyers.
