Still haven't read the opinion yet, but the Court ruled against the gay couple and the State of Colorado in forcing the baker to make the gay wedding cake. Link.
I read the opinion. It was too narrow as far as the holding. Kagan’s concurring opinion was extremely and surprisingly weak and poorly argued. Even Ginsburg’s dissent had stronger arguments, and I completely disagreed with it. Gorsuch’s concurring opinion completely destroyed Kagan’s concurring opinion in my opinion. Anyway, it is very important and I hope Trump gets the opportunity to appoint at least two more justices like Gorsuch. The court’s decision left the door open for this case to be re-litigated. Also, I am kind of bothered at how much Kennedy seems open to deciding cases on his perception of “society’s general opinions” rather than just interpreting what he thinks the Constitution says. That thought process is why the Supreme Court is currently broken. Ayetollah Kennedy needs to retire yesterday. Regardless of what side he comes down on, Kennedy is the weak link of justice right now. Finally, I cannot believe how bad and dumb that Colorado Commision prosecuting the baker was. Apparently commissioners compared baking a cake to slavery and the holocaust. That is why it was 7-2. I am glad I do not live in that state where those fools have power. Give me the fools in our state with power over those fools any day!
If I were them, I would be embarrassed how often their ledes/headlines match exactly in wording. It's almost like they got the same memo from the same places saying the word of the day is "narrow." Which, of course, they did. I think the best one ever was them saying W "lacked gravitas." Remember that? There was a LexisNexis search result floating around at the time showing a count of 70+ uses of "lack gravitas" by separate news entities. What are the odds such an uncommon word would show up that often on the same day?
A non-lawyer who confuses the terms "narrow" and "close" is making a reasonable and innocent mistake. But a lawyer who does so is being intentionally and blatantly disingenuous. Whether a case is "close" depends on the number of votes joining the majority. Whether a case is "narrow" depends on how broad a swathe of situations the opinion covers. There are many cases where the Court issues a very narrow but unanimous ruling (in fact, this describes most SCOTUS opinions), and others where the Court splits 5-4 on a sweeping ruling (e.g. Obergfell). I predicted that the Masterpiece ruling would be broad and not close: I was right that the decision would not be close. In fact, I pretty much nailed how each Justice would vote. I know many of you will still cling to the notion that Breyer and Kagan are reactionary liberals, but that simply isn't the case. But I was wrong that the decision would be broad. The Court did not hold that a commercial establishment is entitled to withhold customized services on religious grounds -- that would have been a broad, conservative ruling. Instead, the Court held that a state cannot be inconsistent in whether it is going to require a commercial establishment to provide customized services. The Court faulted the Colorado Civil Rights Commission for applying different rules to gay-marriage advocates and gay-marriage opponents. That is a very narrow ruling, and leaves the broader issue open to be resolved in future cases.
It would have saved a lot of time and litigation to resolve it with a broad ruling now, even if it was 5-4.
Narrow has to do with the ruling and not the margin. It looks like the ruling they took didn't say "bakers can do whatever they want." It took issue with the incredibly harsh and biased language that was on display in the judicial rulings, which made it clear that the law was not being applied in a way that was respectful of the baker's religious beliefs.
You have to wonder if the baker would allowed a “decorator” supplied by the gay couple to finish decorating the cake, even in his own shop. My guess is yes. So, if that was the case, why were these Nazi commissioners suing instead of finding a reasonable solution? I guess that is why they lost.
Yeah, I'm sure that was just a coincidence just like the headlines of the last Israeli-Palestine conflict were.
I don't think one vote on a case that arguably didn't even reach the substantive merits is enough to say they aren't reactionary liberals on social issues. (On business and criminal issues, I agree that they aren't reactionary liberals.) Let's see them vote to uphold an abortion restriction - even a pretty moderate one. Let's see them rule in favor of a baker when the legal merits are actually under consideration. The final section of the concurring opinion says, "Colorado can treat a baker who discriminates based on sexual orientation differently from a baker who does not discriminate on that or any other prohibited ground. But only, as the Court rightly says, if the State’s decisions are not infected by religious hostility or bias. I accordingly concur." That's legal verbiage for "you can't act like an *******," but what's going to happen when a similar case arises in which the state isn't as obnoxious in how it approaches the case but reaches the same result? My guess is that Breyer and Kagan will swing back to the social Left as they have on just about every case on which they've voted.
I've pretty much hated "Ayatollah Kennedy" since law school. His opinions are junk. Basically, he does everything in his power to avoid making a decision, and when he's forced to make a decision, he does everything he can to leave loopholes and invite more litigation. Yes, I'll take that over the kneejerk, God-haters on the Left side of the bench, because he'll sometimes stumble into doing the right thing, but just in terms of doing the job of "judging," Kennedy is terrible. This opinion is such an example, even if I liked the result. They clearly believed that their comments would never be subject to meaningful review, so they were honest about what they believed and let their contempt show. And you are correct. That's why they lost. Kennedy, Breyer, and Kagan didn't rule against them because they were wrong. They ruled against them because they were dicks. I don't like dicks either, but "don't be a dick" isn't a legal principle. And like I asked in my other post, what happens when this same case comes up and the state court judges aren't stupid enough to act like dicks? What happens when they pretend that they respect the baker's religions beliefs and give them lip service? After all, that's not hard to do. It's pretty easy to load up an opinion with a bunch of flowery rhetoric about how important freedom of religion is, blah, blah, blah, and then insert one paragraph explaining why the interests of the gay couple trump all that. We know what Kagan and Breyer will do with that. They made that clear. But what will the Ayatollah do with that?
Could not agree more. In all the reporting on this case, I never was made aware (thanks media) about how over the top the State of Colorado has been. Let’s hope he retires before then and we never find out.
I hope so, and I have a theory on why he's holding off. It's not as strong as my Magic Johnson theory, but I think it's a possibility. It wouldn't surprise me if he's waiting for the 2018 election before leaving. if he leaves now, Trump will appoint a Gorsuch, and there will be a real shift in the court's balance. However, if Democrats take control of the Senate, Trump will have to appoint somebody with no backbone and no ability to read - in other words somebody like him.
Yeah this definitely is not a win for religious freedom. It's a win for the SCOTUS ducking an issue and basically explaining to progressives how they can win next time. The one solace is that so many progressive activists are incapable of being civil, it's possible that they'll continue to use inflammatory language.
What the activists do isn't at issue. It's what the state court judges do. It's one thing for some hack with the Human Rights Campaign or Rachel Maddow to compare Christians to Holocaust advocates. As stupid and brainless as that is, they have the right to do that. It's quite another for judges who are charged with following the law to do that. Most will know better than to do that.
That was actually my point - the activist judges most likely to come down on this are still going to use this language. Should they know better? Yes. But something about sitting up there on that stage with a hammer in hand seems to make some judges believe they can pretty much say what's on their mind. So when a judge has an emotional investment in the ruling, my suspicion is that many of them will still want to lecture.
I have noticed a trend recently where judges keep speaking their mind in inappropriate ways... but this may fall back on the electorate.
That's fair enough. It is just one case, and it was resolved on narrow, almost procedural grounds. I should clarify/correct my use of the term "reactionary". What I should say more precisely is "knee jerk". I'm referring to justices who vote for a position because it achieves a liberal/conservative result, not because it is right. Sotomayor and Ginsburg are knee-jerk liberals, and Alito and Thomas are knee-jerk conservatives. I have little respect for any of them. In contrast, the other five justices certainly have their philosophical viewpoints, but they aren't knee jerks. They are open to reason, and fairly often vote for the "other side" when logic so requires. All that the five more-centrist justices agreed on in Masterpiece was (a) that there were competing interests to be weighed and (b) that the CCRC didn't properly recognize those competing interests. As you point out, none of the justices commented on how they would weigh the competing interests, and it is possible that some or all of them will be very skewed. But I suspect that the ultimate result will be more balanced than you suggest. Only time will tell. Regardless, my original point stands that there is a genuine contrast between Sotomayor/Ginsburg and Breyer/Kagan. The former will always vote for the liberal position, but the latter will not. Note that I've been talking about the five justices who aren't knee-jerks. This assumes that the early returns on Gorsuch pan out. So far, he has been closer to Roberts than Alito or Thomas. He is decidedly conservative, but seems to be open to reason.
I don't claim that the Democrats on the Court are clones in every sense. They're four different people. However, what I'm saying is that their differences are more about style than substance, which is why I think it's inaccurate to use terms like "centrist" to describe Breyer and Kagan or to lump them in with Kennedy. When an underlying issue involving the culture wars is reached, they're voting reliably to the Left just as Ginsburg and Sotomayor do. Kennedy actually is a centrist (which I don't consider a good or admirable thing because a judge's rulings shouldn't have anything to do with his politics). He actually breaks with the conservatives on the underlying merits (not just on procedure or laughably narrow points that have no bearing on the underlying merits). If an abortion restriction goes too far (in his opinion), he'll vote with the Left. If something is too tough on the gays or whatever group he fetishises at a given moment, he'll strike it down. I don't see Breyer or Kagan doing the same thing in reverse.
That's good. I dislike "religious freedom" in a similar way to my dislike of "social justice". How about just freedom and justice, without qualifiers? One's religion should neither grant freedoms nor restrict them. Did they address the issue of artistry? That seemed to me to me the most logically relevant (which I realize is often vastly different from the most legally relevant) part of the matter. I can't order a painter to commission a painting for me and then claim discrimination if that painter doesn't wish to do it. Saying "bake me a cake" shouldn't be any different.
The problem is that the First Amendment guarantees the free exercise of religion and bars the government from "establishing" a religion, which is supposed to greatly restrict the government's power to force people to violate their religious beliefs. That protects both the religious and the non-religious. In the same way the government can't force the Christian to cater the gay wedding, it also can't force the agnostic or atheist child to say a prayer at school. (Side note - I reject the entire doctrine that applies the First Amendment to the states, so in Deezestan (the hypothetical nation in which I am benevolent dictator), the State of Colorado would win, because there would be no federal jurisdiction to review the matter. It would be decided entirely under state law.) They did not address the artistry issue. They pretty much kept the issue so narrow that the ruling will have little or no bearing beyond the case at hand. The Court provided virtually no guidance at all on what the law is or what lower courts should be doing with these cases.
Maybe the court was hoping that people can sort these things out without going to an Orwellian government board.
