Is SCOTUS Putting Self-Preservation Ahead of Ruling for the Far Right?

Some recent actions by the U.S. Supreme Court must be disturbing to the ugly underbelly of the Republican Party that thought the appointment of Neil Gorsuch and Brett Kavanaugh to the Court assured them of victory on a number of issues not popular with the larger public.  Some have viewed the Court's actions as a way to preserve its popular respect and legitimacy even if some of the issues will likely come back before it in the future. How the Court rules on the Trump/Pence regime effort to add a citizenship question to the 2020 census - which is designed to cause an under count of non-citizens in mostly blue states - will be telling as to whether self-preservation remains the Courts guiding hallmark.  A column in the Washington Post looks at recent rulings that in the wake of the Virginia redistricting decision against Virginia Republicans have avoided hot button issues and punted them back to the lower courts.  Here are column excerpts:

The justices of the Supreme Court know how to keep out of trouble. That’s the takeaway from the order the court issued on Monday, sending back to the lower court a new case about another baker who wouldn’t bake a wedding cake.

The case, Klein v. Oregon Bureau of Labor and Industries, was a near-exact replica of last year’s Masterpiece Cakeshop case. Like the owner of that Colorado bakery, the husband and wife owners of Sweetcakes by Melissa in Gresham, Ore., claimed that their religion prohibited them from designing and baking a cake to be used in celebrating a same-sex marriage. To do so, the owners explained in their petition to the Supreme Court, would amount to “complicity in sin.” In fact, they said, the very reason they baked wedding cakes was to “celebrate weddings between one man and one woman.”

Like Colorado, Oregon has a public accommodations law that bars business from discriminating on the basis of sexual orientation. Acting on the complaint of a lesbian couple, the official in charge of enforcing that law imposed a $135,000 fine to be paid to the couple as “compensatory damages for emotional, mental and physical suffering.” The Oregon Court of Appeals upheld the order, and the Oregon Supreme Court refused to hear the appeal.

On Monday, instead of adding the case to their docket, the justices vacated the lower-court decision and told the Oregon Court of Appeals to reconsider the case “in light of” last June’s Masterpiece Cakeshop decision. Objectively, that disposition makes little sense. The Supreme Court didn’t actually decide the constitutional issues in Masterpiece Cakeshop. . . . The decision was, in other words, a punt. It has no “light” to shed on the Oregon dispute.

I think that what finally prevailed was an institutional instinct for self-preservation. Why re-enter this battle at this moment? Cases granted this spring will be argued in the fall, to be decided next spring with the political season at its height and the court itself under a bright election-year spotlight. The court already has plenty to do next term, with three cases granted on whether federal law protects gay and transgender people against discrimination on the job. The conflict between private conscience and public duty is age-old. The court has time to resolve it in future cases. In fact, another such case will soon be on the way to the Supreme Court. This month, the Washington State Supreme Court reinstated a ruling against a flower shop owner who, because of her “relationship with Jesus Christ,” told a gay couple, longtime customers, that she could not design a flower arrangement for their wedding. The justices had vacated that ruling and sent the case back to the state court last summer for reconsideration in light of Masterpiece Cakeshop. The state court, deeming Masterpiece Cakeshop irrelevant, reissued its original opinion almost word for word.

What I discern as the Supreme Court’s instinct for self-preservation was also on display last month in an abortion case from Indiana. The state was appealing a ruling that invalidated its law banning abortions for reasons of the race, sex or disability of the fetus, a law enacted in deliberate and flagrant violation of existing abortion precedents. The state’s appeal, Box v. Planned Parenthood of Indiana and Kentucky, went to conference an astonishing 15 times over five months. Ultimately, the court denied the appeal, noting in an unsigned opinion that because the United States Court of Appeals for the Seventh Circuit is the only court to have considered such a law, “we follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”

On a court deeply divided on the subject of abortion, that disposition was unanimous. . . . If I read that message correctly, we can expect the same outcome when the states that are now busy banning abortion appeal to the Supreme Court from the lower-court rulings that will inevitably strike down the new laws. (But to be precise, my prediction holds only until Election Day 2020, when the justices will be free from whatever constraint they now feel about taking a step likely to incite a public backlash against the Republican Party.)

These reflections on the court’s instinct for self-preservation lead me to a final question: What to do about the census case? As the world knows, the deeply contested question of the validity of the Trump administration’s plan to ask about citizenship has become even more fraught with revelations from the computer files of a recently deceased Republican redistricting specialist, Thomas Hofeller. The documents appear to validate the conclusion reached by Federal District Judge Jesse Furman, whose ruling against the Trump administration is before the justices, that the administration’s purported good-government reason for adding the citizenship question was a pretext. The real reason, the documents indicate, was to provide a statistical basis for entrenching Republican power by disregarding noncitizens in the population counts for future redistricting.

Those plaintiffs, represented by the American Civil Liberties Union, have now asked the justices for a “limited remand” that would send the case back to the District Court “to allow exploration of where the truth lies.”

But there is another option, suggested by the plaintiffs in a final footnote to their latest brief: Just dismiss the appeal. The procedure is known as a DIG: “dismissed as improvidently granted.” The justices use it once or twice a term, usually when a case turns out, on further reflection, not to be what they thought it was when they granted it.
For the time being, it’s a reminder that the court knows how to get itself out of a tight spot when it needs to. A DIG requires no explanation. Its effect is to wipe the Supreme Court slate clean, as if the appeal had never even reached the court. A DIG here would leave Judge Furman’s opinion in place and would enable the professionals in the Census Bureau, who strongly objected to adding the citizenship question, free to go about their business counting us — all of us. If I’m right about these recent signals that the court knows how to save itself, now is the time.

The out come of the census case will be telling and clearly signal whether the Court puts its own legitimacy ahead of all else. 

Faux Christian Jack Phillips Again Proves He's A Bigot

Likely emboldened by the Supreme Court's refusal to squarely address the issue of whether claimed or feigned religious belief allows ones to be exempt from non-discrimination laws and public accommodation laws - and encouraged by the hate group, Alliance Defending Freedom ("ADF") - Jack Phillips, the owner of the infamous Masterpiece Cakeshop is back in federal court.  This time he is suing the State of Colorado and defending his refusal to create a cake to celebrate a milestone in the life of a sexual minority.   Let's be blunt.  Phillips is a self-centered bigot who sadly now feels he has a platform from which to encourage similar modern day Pharisees to insult and reject those they don't like. Meanwhile, his legal counsel at ADF won't be happy until homosexuality is re-criminalized.  Anything and anyone who challenges the Christofascists' Bronze Age myth based beliefs must be attacked and crushed. A piece in Politico looks at the new round of bigotry and pretense of martyrdom on display from Phillips.   Here are highlights:

Difficult decisions can be deferred, but not ultimately avoided. So it is that Jack Phillips, the owner of the famous Masterpiece Cakeshop is back in federal court, again defending his refusal to create a cake to celebrate a milestone in the life of a sexual minority.

This time, it’s a birthday cake celebrating a gender transition he’s declining to bake, and it’s not clear how the courts will balance the parties’ competing interests. That’s because of the Supreme Court’s dithering on the issue earlier this summer.

Just two months ago, the Supreme Court confounded expectations on all sides with its side-stepping decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. It looked like the case had nicely teed up the question of how to accommodate two competing interests. On the one side stood a gay couple that wanted to buy a wedding cake from a business that had an obligation under Colorado state law not to discriminate against them on the basis of sexual orientation. On the other stood the owner of the cake shop, Jack Phillips, who claimed that requiring him to create a cake in celebration of a same-sex wedding would violate his constitutionally protected rights of religion and free expression. How would the court resolve these competing claims?

It didn’t. . . . . The case didn’t even provide useful guidance for another case that was then before the court. A florist had refused to create an arrangement for the gay wedding of a couple she’d known for years, citing her religious belief. After sitting on the case for many months, the court finally decided not to hear it, vacated the judgment in favor of the couple, and directed the lower courts to resolve the matter in accordance with its Masterpiece Cakeshop decision. But that is no help at all, unless the case is also found to have involved anti-religious animus.

Now comes Masterpiece Cakeshop v. Elenis. Phillips, represented by the Alliance Defending Freedom, a Christian [hate] group that represents clients in lawsuits that involve challenges to religious freedom, contests a finding by Aubrey Elenis, the director of the Colorado Civil Rights Division, that there is “sufficient evidence” to support a claim of discrimination in the case.

Sardina revealed that she wanted the cake to have a pink interior and a blue exterior. Then she added that the colors were to celebrate her coming out as transgender on her birthday, some years earlier. At that point, Debi Phillips (Jack’s wife, and the co-owner of the cake shop) declined to create the cake because of the Phillipses’ belief that gender was biological, and immutable.

If that’s all there is to the case, it’s not hard: Sardina should win under the Colorado anti-discrimination law, which protects customers in certain enumerated classes—including sexual orientation and transgender status—from the denial of service in places of public accommodation (like a bakery). . . . . If she had told Debi Phillips that she wanted the blue/pink cake for a gender-reveal party, as a clever way of announcing that she was going to deliver boy/girl twins, we can safely assume the request would have been honored. The complaint admits that the “problem” with the cake is its association with a message the owners don’t agree with. But a pink/blue cake, without more, doesn’t send a “message” about gender transition.

It would be a different story if Sardina had also requested that Jack Phillips write “Happy Gender Transition Day!” because the government can’t compel a business owner to engage in speech he finds objectionable. But the simple act of creating a blue-pink cake doesn’t send any message at all—unless that message is that Phillips refuses to create a given cake for one class of people (those hosting gender-reveal parties) but not for others.

In short, Phillips’ refusal here is the very essence of discrimination, and the court should have no part of endorsing it. In the Masterpiece Cakeshop case, there was a lively exchange in concurring opinions between Justices Neil Gorsuch and Elena Kagan about this very question—whether Phillips’s right to freedom of expression would allow him to refuse to create a cake he knew would be used for a gay wedding, even if that cake were identical to a cake he might make for a “traditional” wedding.

Kagan’s position is that a business owner can’t refuse to bake a cake for one customer, but not another. That doesn’t mean Phillips would have to create a cake reading “I love gay marriage!”, but, as she noted, in the case before the court the couple “requested a wedding cake that Phillips would have made for an opposite-sex couple.” She properly rejected Gorsuch’s view that the controversial confection would have been “a cake celebrating same-sex marriage” because of its significance to the couple and Phillips alike. As Kagan noted: “It was simply a wedding cake – one … suitable for use at [all] weddings.” That’s the only interpretation of the law that can keep it from collapsing into a free-for-all, in which the mere invocation of free expression is enough to defeat any claim of discrimination.

If a business owner can refuse to serve one customer the exact same product that he’d willingly sell another based on an objection to the use to which the product would be put, we might just as well admit that anti-discrimination laws are toothless.

That doesn’t mean Sardina will win the case if it does get to the Supreme Court, though. With Kennedy out of the picture—and Brett Kavanaugh his likely replacement—the conservative justices will be more apt to grant review of close cases, knowing they have the five votes they need to roll back the court’s more progressive decisions.

[I]t’s easy to forget that the discrimination laws are in place for a reason, and that the same logic that would allow religious objectors to deny service to the LGBT community would also permit turning away a couple that wanted to celebrate an interracial wedding.

Personally, I wish decent people would simple boycott Phillips' bakery and allow it to wither away or limp along with only a bigoted Christofascist client base.  I'd prefer to have no cake than have one baked by a foul, self-centered, grandstanding bigot.

Anti-Gay Bigot Sarah Sanders Booted From Restaurant

One thing about the Christofascists and evangelical Christians is that they can dish out bigotry and discrimination toward others yet they typically take great offense if they receive treatment like what they give to others.  Indeed, they act as if they are being persecuted.  They believe that public accommodation laws are a one way street that apply to everyone but themselves. Cite real or feigned religious belief and voila, one is exempt from the law.  Last week, Sarah Huckabee Sanders, White House press secretary and daughter of homophobe extraordinaire Mike Huckabee deliciously found herself on the receiving end of what she believes is fine for gays: a restaurant, Red Hen, in Lexington, Virginia, refused to serve her and she was forced to leave.  Make no mistake, Sanders is a liar - she lies daily during press briefings - and a hypocrite.  A piece in Vox looks at Sanders receiving what she advocates is fine for others.  Here are excerpts:

I feel for Sarah Huckabee Sanders. I’d be miffed, too, if I sat down with a group of friends to a spread of cheeses at a charming farm-to-table restaurant only to be asked to leave by the owner. 

I happen to believe that food establishments should offer their goods to anyone willing to pay for them. Sanders does not. She thinks it’s OK, for example, for a business to hang a sign in their window saying they won’t serve gay couples. This is why, on one level, her very public dig at the owner of the Red Hen, which set off a torrent of hate tweets and threats her way, is ridiculous. It’s hypocrisy.

On another level, restaurant-gate is an example of the Trump administration’s unique commitment to courting divisiveness. Donald Trump doesn’t even pretend to speak to or for all Americans. Rhetorically, there hasn’t been a more disrespectful administration in 150 years. But when Sanders wants dinner, the White House is all for mutual respect. Either way, the base laps it up.

This disregard for all kinds of people has had real consequences in their lives including for gays, transgender people, migrant children, victims of domestic violence or police brutality — and the list goes on. When Sanders, or any Trump official, tweets indignantly about a slight, it’s just added insult.

The irony of restaurant-gate is that Sanders supports the owner of Masterpiece Cakeshop, Jack Phillips, who refused to bake a wedding cake for a same-sex couple in Colorado. The owner of the Red Hen, Stephanie Wilkinson, told the Washington Post one reason she asked Sanders to leave was because of Sanders’ stances on gay rights. The staff includes several gay workers. The staff was also deeply upset about Sanders’ defense of Trump’s family separation policy, she said.

“I would have done the same thing again,” Wilkinson told the Post. “We just felt there are moments in time when people need to live their convictions. This appeared to be one.”

When the high court heard oral arguments in December, Sanders went as far as to say it would be fine for a business to hang up a sign announcing it denies services to gay people.

Sanders sees a constitutional right under the First Amendment to chose who to serve and not serve in a business. But on Friday, she made no mention of this context. She made no attempt to distinguish the two. Instead, she took an opportunity to fan divisions between the White House’s base and everyone else.

Sanders has backed Trump through all of this, defending his comments, his counter-attacks and his policies. Maybe she was disappointed about dinner on Friday. Maybe she really did feel wronged. But her decision to take to Twitter and spark a divisive feud between Trump supporters and liberals feels familiar. It’s almost like she wants to have her cake and eat it, too.

I view most evangelical Christians and the Christofascists as far worse than the Pharisees so frequently condemned in the New Testament. If they want to refuse to serve gays for being sinners, the rest of us should be able to treat them the same way. They are an abomination and cancer on America. 

Reflections on the Wrongly Decided Masterpiece Cakeshop Ruling

While Christofascists and parasitic "professional Christians" are heralding the U.S. Supreme Court ruling in Masterpiece Cakeshop as a huge victory, the case is no such thing and was very narrowly decided - and in my view, wrongly decided at that. The anti-gay baker should have been handed a full blown defeat.  The Court's sole basis for reversing the ruling of the Colorado Civil Rights Commission came down to finding that the Commission had exhibited "hostility to religion." The sad truth is that religion receives far, far more deference than it deserves in America.  Rather than being a positive good, religion - especially evangelical Christianity - sows hatred of others and exhibits rank hypocrisy and dishonesty virtually on a daily basis. Evangelical support of Donald Trump, an individual who is the antithesis of what evangelicals - the least educated of any religious group - claim to believe underscores the reality that their beliefs are selective and used as weapons against others. Under the First Amendment, people a free to believe the earth is flat, but that doesn't mean their belief is worthy of respect or deference by the rest of society. Moreover, religious belief is a choice and not an immutable characteristic like race, national origin, age, or sexual orientation. A column in the Washington Post looks at the limited nature of the Masterpiece Cakeshop ruling which does not afford Christofascists the victory they claim they won.  Here are column excerpts:

In law, as in less civil arenas of conflict, you can lose a battle but win the war. That’s what happened in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case pitting a Christian baker against a gay couple who sought to buy a wedding cake on the same terms as any other customers.

The court ruled Monday in favor of the baker, but on the exceedingly narrow ground that the state civil rights commission’s consideration was biased by hostility toward religion. Importantly, the court declined to adopt the baker’s principal argument — and the only argument made by the Trump administration — that “expressive” businesses that object to gay and lesbian weddings have a First Amendment right to discriminate. On the contrary, the court reaffirmed our main point: that there is no general First Amendment exception to laws protecting LGBT customers from discrimination. When bakery owner Jack Phillips learned that they were going to use the cake to celebrate their wedding, he turned them away, claiming that his religion barred him from making a cake for a same-sex couple, even though he routinely made such cakes for opposite-sex couples.

The ACLU filed a complaint on behalf of the couple, claiming that Phillips’ actions violated Colorado’s public accommodations law, which forbids businesses that serve the public from denying service on the basis of race, sex, sexual orientation and the like. The Colorado Civil Rights Commission, and next the Colorado Court of Appeals, ruled in our favor.

In the Supreme Court, the baker won, but not on the ground he principally advanced. His main argument was that where a business offers expressive products, the First Amendment prohibition on “compelled speech” bars the government from requiring the business to provide that product when it objects to doing so. The Trump administration backed that argument, . . . . [that] the First Amendment bars states from requiring them to provide them to gay and lesbian customers on the same terms as heterosexual customers.

Justice Anthony M. Kennedy, writing the majority opinion, could not have been more clear in rejecting the argument that there is a First Amendment right to discriminate. He wrote that “it is a general rule that [religious and philosophical] objections do not allow business owners . . . to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

Kennedy acknowledged that a minister (who is not, of course, a business open to the public) could not be compelled to perform a same-sex wedding if his religious scruples prohibited it, but warned that “if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.”

Why, then, did the baker win? The court  . . . cited a commissioner who said that “it is one of the most despicable piece of rhetoric that people can use to — to use their religion to hurt others.” It cited another commissioner saying that Phillips can believe “what he wants to believe,” but cannot act on that belief “if he decides to do business in the state.” 

That aspect of the ruling is wrong. “Despicable” was an unfortunate choice of words, but the commissioner’s statement that one cannot invoke religion to harm others is actually black-letter constitutional law, as is the notion that one cannot invoke religion to avoid complying with a general rule requiring businesses not to discriminate.

But what’s critical is that this reasoning is a one-time ruling for this case only. The court made clear that states are free to require businesses, including bakers, to serve gay and lesbian customers equally, including in the provision of wedding cakes. In fact, Charlie Craig and David Mullins could go right back into Masterpiece Cakeshop today and request a cake to celebrate their wedding anniversary — and if Jack Phillips refused them, he would have no First Amendment right to turn them away.

Sadly, Christofascists are now bellowing that religion deserves deference when that is NOT what the court ruled. Their behavior is not surprising given that over the course of the 25+ years that I have tracked Christian "family values" organizations, they are among the most dishonest groups one can find (outside of perhaps the Trump White House)and the only safe assumption is that, if their lips are moving, odds are strong that they are lying.  So much for "Christian" values. 

Undermining Same Sex Marriage Harms Children

One thing that has been on open display is the fact that harming children is perfectly fine with the Trump/Pence regime and its white evangelical Christian supporters - at least so long as the children impacted are non-white or live in same-sex couples headed house.  The border separation of children from the parents is sadly reminiscent of the slave traders and auctioneers who thought nothing of tearing apart African families forceably captured and transported to America.  It is all part and parcel of the dehumanization of those who are labeled as "other" due to skin color, religious belief, and/or sexual orientation - the true original sin of those who claim to honor the Gospel, yet forget its dictates the moment they walk out the church door.   Yesterday's Masterpiece Cakeshop ruling will only serve to accelerate attacks on same sex couples and their families by the "godly folk,"   In the context of the Christofascist efforts to undermine same sex marriage, a piece in USA Today looks at the harm this is doing to children - not that the Christofascists seem to care.  Here are article highlights: 

A Supreme Court ruling sanctioning same-sex marriage in 2015 was hailed as a milestone moment that would see discrimination crumble and equality triumph for LGBT couples — and for their children.

But in the past three years, those parents and kids have faced a brewing backlash that threatens everything from health benefits to a couple’s ability to adopt.

Two states — Kansas and Oklahoma — passed legislation in recent weeks that allows state-licensed child welfare agencies to cite religious beliefs for not placing children in LGBT homes, a troubling trend for LGBT advocates.

“We have to acknowledge that marriage equality was a huge victory for security and stability” for LGBT families, said Naomi Goldberg, policy director for the Movement Advancement Project (MAP), which released a report Monday documenting ways the 2015 ruling is being undercut and the consequences for kids. “But the landscape remains uncertain. Families have to think about ways they may or may not be recognized: when they travel, go to the doctor, go to a restaurant.”

[M]ore than two-thirds of Americans now back same-sex marriage — the highest level Gallup has recorded in the more than 20 years it has been surveying Americans on the issue.

In many families and communities, support for LGBT families flourishes, but “the gap is with legislators,” she said.

The report by MAP, a think tank that researches and analyzes laws with LGBT implications, and co-authored by the Family Equality Council, which has been working with LGBT-headed families for nearly 40 years, cites a refusal to recognize LGBT families by some government officials, state legislators and even courts.

The result puts children in peril on many levels, the report says: If a parent-child relationship is not legally cemented, children could be denied health insurance or a parent may not be able to make medical decisions.

Birth certificates to divorcesEfforts to undermine the 2015 ruling have played out across the nation in the past three years.• Arkansas was among several states that initially refused to place two married same-sex parents on a birth certificate until ordered to do so by the Supreme Court in 2017.• In Mississippi, a lower court refused to award parental rights in a divorce case to the non-biological mother of a 7-year-old boy conceived using an anonymous sperm donor. Eventually, the state Supreme Court affirmed the mother’s rights.• In Texas, Houston is fighting for rights for its gay workers after the state Supreme Court overturned a lower court’s decision favoring benefits for legal spouses of city employees, which could include same-sex spouses. The state Supreme Court action is alarming, Goldberg said, because it suggests the court didn’t think the landmark 2015 decision legalizing same-sex marriage also extended to employment benefits.  

Religious exemptionsSupporters of religious exemptions —  laws that let people, churches, non-profits and sometimes businesses cite religious beliefs as a reason to not comply with a law — say exemptions are an American right, dating to the Revolution. The laws "teach us how to live in a pluralistic society that recognizes we don’t all believe the same thing," said Bruce Hausknecht, judicial analyst at Focus on the Family, a Christian conservative [hate group] organization that opposes same-sex marriage. But exemption laws loom large over the daily lives of LGBT families, according to the MAP report. Currently, 21 states have some type of religious exemption laws on the books.  . . . . Only 19 states and the District of Columbia have protections from discrimination in public accommodations — meaning that in most places in the country, LGBT parents and kids can be refused service or booted from a business by someone who cites a religious belief. A 2018 proposed federal rule by the Health and Human Services Department that would let health care providers decide what procedures to perform and what patients to treat based on their religious beliefs adds more firepower.  “What we are seeing really privileges doctors’ religious beliefs over a patient’s best interest,” Goldberg said, noting that if an LGBT person lives in a rural area with only one or two doctors the individual could not have access to health care at all. 

Indeed, there are a number of reported cases where doctors have refused to provide care to the children of same sex couples.  The Hippocratic oath loses out to Bible thumping. As noted, in rural areas with few alternatives available, this phenomenon can become life threatening. In my view, religion remains one of the great evils in the world. 

Supreme Court Wrongly Hands Victory to Christian Extremist

Jack Phillips - the face of bigotry and hate hiding behind the smoke screen of "religious freedom".

While the majority ruled in Masterpiece Cakeshop on a narrow basis for Christian extremists Jack Phillips - and, in my view, court manufactured finding that the Colorado Civil Rights Commission’s ruling against Phillips had been "infected by religious animus" - virulently anti-gay Christofascists are nonetheless celebrating the ruling as a wide ranging victory.  Individuals like Family Research Council ("FRC") president Tony Perkins, a man with a well documented ties to white supremacists groups, who parades around as a "godly Christian" while fleecing the bigoted and gullible, a crowing about the "victory" and no doubt looking for the next hand picked plaintiff to continue the assault on LGBT rights.  The irony, of course, is that the Court found the Civil Rights Commission's supposed "religious animus" to be improper, yet Phillips' religious based anti-gay animus was given a pass.   The even large issue is who else will now be subject to targeting by white Christofascists?  Non-Christians? Interracial couples?  Muslims?   A piece in the New York Times looks at this wrong-headed ruling The full opinion is here).  Here are article excerpts:

The Supreme Court on Monday ruled in favor of a Colorado baker who had refused to create a wedding cake for a gay couple. The court’s decision was narrow, and it left open the larger question of whether a business can discriminate against gay men and lesbians based on rights protected by the First Amendment.

The court passed on an opportunity to either bolster the right to same-sex marriage or explain how far the government can go in regulating businesses run on religious principles. Instead, Justice Anthony M. Kennedy’s majority opinion turned on the argument that the Colorado Civil Rights Commission, which originally ruled against the baker, had been shown to be hostile to religion because of the remarks of one of its members.

At the same time, Justice Kennedy strongly reaffirmed protections for gay rights. “The outcome of cases like this in other circumstances must await further elaboration in the courts,” he wrote, “all in the context of recognizing 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.”

On the one hand, Justice Kennedy has written every major Supreme Court decision protecting gay men and lesbians. On the other, he is the court’s most ardent defender of free speech.  On Monday, Justice Kennedy chose a third path, one that seemed to apply only to the case before the court.

Writing for the majority in the 7-to-2 decision, he said the Civil Rights Commission’s ruling against the baker, Jack Phillips, had been infected by religious animus. He cited what he said were “inappropriate and dismissive comments” from one commissioner in saying that the panel had acted inappropriately and that its decision should be overturned.

“The neutral and respectful consideration to which Phillips was entitled was compromised here,” Justice Kennedy wrote. “The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”

That passage echoed his plea for tolerance in his majority opinion in 2015 in Obergefell v. Hodges, which recognized a constitutional right to same-sex marriage. In that decision, he called for “an open and searching debate” between those who opposed same-sex marriage on religious grounds and those who considered such unions “proper or indeed essential.”

The breadth of the court’s majority was a testament to the narrowness of the decision’s reasoning. Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer, Samuel A. Alito Jr., Elena Kagan and Neil M. Gorsuch joined Justice Kennedy’s majority opinion. Justice Clarence Thomas voted with the majority but would have adopted broader reasons.

Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, dissented.

Some gay rights groups took a darker view of the decision. “The court today has offered dangerous encouragement to those who would deny civil rights to L.G.B.T. people,” said Rachel B. Tiven, the chief executive of Lambda Legal. “We will fiercely resist the coming effort that will seek to turn this ruling into a broad license to discriminate.”

Rest assured, a broader attack on LGBT rights will be coming. The ultimate irony is that when one looks at non-discrimination and public accommodation laws, all of the protected categories - age, race, sexual orientation, national origin, age,  - are things that one cannot control.  Only one category - religion - is something that is changeable and relies on a conscious decision - an option, if you will - to embrace a particular dogma and form of ignorance and/or bigotry.  If anything should be forced to yield to immutable characteristics, it should be religious belief which all to often is based on myths and legends.   

Longing for the Freedom Not to Hide Oneself

Over the weekend at the Equality Virginia Commonwealth Dinner at one point in the evening one of the speakers reminded the audience that for some in attendance from rural, backwater areas merely being able to walk into a large ball room full of LGBT individuals was an usual experience  given that in their home areas many such individuals must remain in hiding or be very circumspect in who they allow to know their "secret."  Living in the closet is exhausting not to mention soul killing.  Yet even for those of us who are "out" many occasions occur regularly where in a split second one must decide whether it is safe to be authentic or better to allow others to assume that you are part of the straight world.  A world where no one has to worry about hiding the gender of their spouse and who they really are in a most basic way.  A column in the Washington Post picks up on this theme as the LGBT community waits to learn if the United States Supreme Court will find a right to religious based bigotry and discrimination towards others or uphold long standing public accommodation laws.  Here are column excerpts:

Charlie Craig, one of the men that Masterpiece Cakeshop, a Colorado bakery, turned away because they are gay, said something about shopping for a wedding cake that stuck with me: “That day,” he said, “I really let my guard down.”

I knew exactly what Craig meant. Not just because he’s my client but because I keep my guard up most days, too — just like nearly every LGBT person I know.

Craig grew up in Wyoming and went to college in Laramie, the town where Matthew Shepard, a gay man, lived when he was killed. I grew up in a progressive New York City neighborhood. Those two places were worlds apart, yet Craig and I had something in common. I was 8 when I realized I was attracted to women. I didn’t have the vocabulary yet to name those feelings. What I did have was a sharp, painful sense that my feelings were wrong and had to be hidden.

I couldn’t have imagined that by 2015, the Supreme Court would rule that same-sex couples have the same freedom to marry as everyone else or that I’d be an LGBT rights lawyer. Those advances were simply unthinkable. But some things haven’t changed: While I’m out as a professional, in my day-to-day life it often remains possible — and feels safer — to stay hidden.

My spouse and I sometimes commute together. Do we kiss goodbye on a crowded subway car, risking a negative comment — or worse? Or do we wave goodbye as if we are just friends who happened to run into each other on the way?

Is it really necessary to correct all of these people, I wonder? If I don’t, what will my children think of my casually erasing our family? And each time I let faulty assumptions slide, am I making them more likely the next time?

These calculations — weighing the risk of censure or even violence against the personal and political costs of invisibility — happen in a split second. But they exact a toll — a mental burden that can’t be quantified.

The ability to stay out of sight can mean the ability to stay safe, and many in our community don’t have a choice about whether to be out. That’s partly why LGBT people, particularly transgender women of color, experience disproportionate rates of violence and murder. Juxtaposed against this gruesome reality, life in my Brooklyn enclave feels fortunate indeed.

We stay hidden because when we don’t — or can’t — we know there may be consequences, ranging from a disapproving look to being denied service, fired from a job, followed, harassed or even arrested.

Planning a wedding is one of those times we can’t hide who we are. Craig said that, before being turned away, it didn’t even occur to him to disclose that he and David Mullins were a same-sex couple.  This is part of what I think about as we wait for the Supreme Court to decide whether Masterpiece Cakeshop has a constitutional right to hang a sign in its storefront essentially saying, “Your kind not served here.”

Laws against discrimination can’t protect us from violence, but they can protect us from going about our daily lives in fear of being turned away from stores, banks and hotels simply because of who we are. I hope Craig will know that freedom.

I sincerely hope that the Court will uphold common sense public accommodation laws and not grant a special right to those who would use claimed religious belief to discriminate against and mistreat others. 

LGBT Community Fearful as SCOTUS Hears Christofascist "Religious Freedom" Claims

Christofascist Jack Phillips argues that he is above the non-discrimination laws.

Today the Supreme Court of the United States heard oral arguments in the Masterpiece Cakeshop case and reports of the arguments left many in the LGBT community with a sense of foreboding and fear that five of the Justices might buy into the disingenuous arguments of Jack Phillips, a Christofascist bigot, which could unleash a gutting of the nation's civil rights laws and public accommodation laws. My views may offend some, but I view religion and religious belief as one of the most toxic and deadly forces on the planet.  Millennia of history has shown millions murdered or  persecuted in the name of religion.  Even now, the horrific crimes being committed by Islamic extremists underscores the reason why religious belief should never override the rule of law.   Should the Court buy the insidious arguments of Phillips and his counsel (provided by a certified hate group) gays will be but the first to see their legal protections gutted as a consequence.  A piece in the Washington Post looks at today's oral arguments.  Note, this is the first time the U.S. Department of Justicve has ever filed briefs supporting discrimination.  Here are excerpts:

The Supreme Court seemed closely divided Tuesday over whether the First Amendment protects a Colorado baker from creating a wedding cake for a same-sex couple, with Justice Anthony M. Kennedy likely to cast the deciding vote.

Kennedy, who wrote the court’s 5 to 4 decision in 2015 saying gay couples have a constitutional right to marry, speculated about what might happen if a decision in baker Jack C. Phillips’s favor prompted requests for bakers across the country to refuse to make cakes for same-sex couples. Would the federal government feel vindicated? Kennedy asked.

On the flip side, just moments later, Kennedy sharply questioned Colorado Solicitor General Frederick R. Yarger. The justice seemed offended by a comment made during the deliberations of the Colorado Civil Rights Commission when one commissioner said: “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.”

The rest of the court seemed to line up as expected. Liberal justices worried that an exception for Phillips would gut public accommodations laws that require businesses to serve the public without discriminating because of race, gender, religion and, in the case of Colorado and more than 20 other states, sexual orientation.

The court’s conservatives were concerned with what Justice Samuel A. Alito Jr. said was a “disturbing record” from the Colorado Civil Rights Commission and the Colorado Court of Appeals, which ruled against Phillips.David D. Cole, legal director for the American Civil Liberties Union, which represents the couple, Charlie Craig and David Mullins, acknowledged there were complicated issues, but they did not apply to Phillips’s decision that he would not create a cake for the couple.  “All he knew was that they were gay,” Cole said.

Several of the liberal justices questioned what other types of business owners would be exempt if the court made an exception for Phillips.

The Trump administration filed a brief on behalf of Phillips; supporters of the couple said it was the first time the government has argued for an exemption to an anti-discrimination law.U.S. Solicitor General Noel J. Francisco, representing the Trump administration, told the court Tuesday that the exemption should apply only to a narrow category of business owners who should not be forced to create or contribute to an event they disagree with on the basis of their religious beliefs. . . . When asked where to draw the line, he said the justices should ask whether the creation is “predominantly expressive” in its purpose and whether customers are paying a premium for it.

Phillips contends that dual guarantees in the First Amendment — for free speech and for the free exercise of religion — protect him against Colorado’s public accommodations law, which requires businesses to serve customers equally regardless of “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”

Scattered across the country, florists, bakers, photographers and others have claimed that being forced to offer their wedding services to same-sex couples violates their rights. Courts have routinely turned down the business owners — as the Colorado Court of Appeals did in the Phillips, saying that state anti-discrimination laws require businesses that are open to the public to treat all potential customers equally.

[T]he Colorado Civil Rights Commission. . . . .  ruled against Phillips, and the appeals court upheld the decision.

“Masterpiece remains free to continue espousing its religious beliefs, including its opposition to same-sex marriage,” Judge Daniel M. Taubman wrote. “However, if it wishes to operate as a public accommodation and conduct business within the State of Colorado, [the law] prohibits it from picking and choosing customers based on their sexual orientation.”

Every decent American - which sadly seemingly excludes evangelical Christians who support Phillips and want to be free to discriminate against others - should hope and pray that the Court rules against Jack Phillips. 

The Right Wing Christian Plan to Gut the Civil Rights Laws

On December 5, 2017, the United States Supreme Court will hear oral arguments in the case of  Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, one of the Christofascists most audacious efforts to undermine the nation's state and federal civil rights  laws. Aiding in the effort is Alliance Defending Freedom, a certified hate group, which is now a leading group of "Christian" lawyers litigating cases that aim to grant special rights to discriminate to right wing extremist Christians.  While members of the LGBT community are the initial targets of the Christofascist effort to discriminate, the precedent would open the flood gates for other forms of discrimination as long as "religious belief" could be claimed as a justification.  Two pieces look at this Christofascist effort and its potentially insidious consequences.  Both put forth explanations of why it is crucial that the Court rules against the plaintiff in the case who sees himself above the law.  First, these highlights from The Nation which also looks at how Republicans are prostituting themselves to these "godly folk":

On a sunny morning in September, Representative Vicky Hartzler, a Missouri Republican, held a press conference with four of her congressional colleagues to announce their support for Jack Phillips, a Colorado baker. The conservative Christian and “cake artist” had been found in violation of Colorado’s anti-discrimination law when he refused to bake a wedding cake for a same-sex couple. Phillips is now the plaintiff in one of the most closely watched cases on the Supreme Court’s docket this term, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

Hartzler had just spent a good part of her summer pressing for a ban on transgender people in the military because she believes they constitute a “domestic threat.” She was one of 86 Republican lawmakers who had just signed onto an amicus brief supporting Phillips’s novel claim that baking and decorating a wedding cake is constitutionally protected artistic expression. Phillips has also argued that he should not be required to deploy his creative talents on behalf of a same-sex couple, because doing so would violate his religious beliefs.

Nearby, Phillips stood quietly with his attorney, Kristen Waggoner of Alliance Defending Freedom (ADF), which has mushroomed over the past few years into a Christian-right powerhouse. Founded 24 years ago because, as its longtime president Alan Sears once put it, “the homosexual agenda threatens religious freedom,”. . . . ADF has positioned itself at the very center of the efforts to curtail LGBTQ rights under the guise of religious freedom.

The preparation of the congressional amicus brief was led by Ted Cruz, the Texas senator and former GOP presidential contender; Senator Mike Lee, a Utah Republican once rumored to be under consideration by Donald Trump for a Supreme Court seat; and Representative Mike Johnson, a freshman Republican from Louisiana and a rising conservative star.

The involvement of Cruz, Lee, Johnson, and other congressional leaders is just one mark of ADF’s remarkable ascent. . . . . Noel Francisco, Trump’s solicitor general, is an ADF-allied attorney, and Attorney General Jeff Sessions consulted with ADF when drafting Department of Justice guidance on religious-freedom issues. At the state level, at least 18 ADF-affiliated lawyers now work in 10 attorney-general offices; all of them were appointed or elected in the past five years. And in just one year, Trump has nominated at least four federal judges who have ties to ADF—Amy Coney Barrett, recently confirmed to the Seventh Circuit; Kyle Duncan, nominated to the Fifth Circuit; and Jeff Mateer and Michael Joseph Juneau, both nominated to district courts.

At the core of Masterpiece Cakeshop is a radically revisionist idea: that laws protecting the civil rights of historically marginalized groups can violate the free-speech rights of the people who refuse to serve them.

An ADF victory on either claim in Masterpiece Cakeshop, which will be argued before the Supreme Court on December 5, could not only create new precedent but also erode advances in LGBTQ rights, ushering in enduring consequences for LGBTQ people and other protected classes. “We know the possible hurtful effects from the endless examples of how same-sex couples and LGBT individuals have been refused service or turned away in the cases that we’ve litigated,” said Jenny Pizer, law and policy director at Lambda Legal, a national LGBTQ-rights organization.

Pizer said that discrimination occurs in a multitude of public accommodations, including medical, legal, lodging, retail, even access to schools. In its Masterpiece Cakeshop amicus brief, Lambda documented more than 1,000 incidents of LGBTQ people being refused service.

If the Supreme Court were to accept ADF’s religious-infringement claim, Pizer said, “the vulnerability to arbitrary rejection” experienced by LGBTQ people would be present at “any moment during the day when we go through our daily lives—we work, we have to buy food, we have to live somewhere, we have to be able to access medical care, we have to be able to ride transportation services.” And if the Court were to accept ADF’s free-speech claim, Pizer continued, any vendor could simply claim that his or her work is “part of my living my faith, and my faith says I must not make this for you because if I make this for you, I am accepting you, and there’s something about you to which I object on religious grounds.” A ruling supporting either argument would leave “such an enormous hole in the civil-rights laws, there’s really nothing left.”

Note the pernicious way in which ADF is infiltrating the legal system, including federal court appointments made by Donald trump who promised the moon to Christofascists back in June, 2016.  A column in the New York Times likewise looks at the dangerous and disingenuous arguments being made by Christofascists in Masterpiece Cakeshop.  Here are column excerpts:

At first glance, the Masterpiece Cakeshop case — for which the United States Supreme Court will hear arguments on Dec. 5 — looks easy. In 2012 Charlie Craig and David Mullins attempted to buy a wedding cake at Masterpiece Cakeshop in Lakewood, Colo. The owner, an evangelical Christian named Jack Phillips, refused to sell them one. The Colorado Civil Rights Commission found Phillips liable for sexual-orientation discrimination, which is prohibited by the state’s public accommodations law. State courts have upheld the commission’s decision.

The reason the nation’s high court is giving the case a second glance is Phillips’s First Amendment claim that he was not, in fact, discriminating on the basis of sexual orientation, but on the basis of a particular message: endorsement of same-sex marriage.

Put aside the plausible objection that treating cakes as speech — especially cakes without writing, as in the Masterpiece case — abuses the First Amendment. And put aside the even more plausible objection that whatever “speech” is involved is clearly that of the customers, not of the baker: As law professors Dale Carpenter and Eugene Volokh explain in a Masterpiece brief, “No one looks at a wedding cake and reflects, ‘the baker has blessed this union.’ ”

Finally, put aside the objection that “It’s just cake!” That could be said to any of the parties in these disputes, and it doesn’t alter the deeper rationale for anti-discrimination laws, which are about ensuring equal access in the public sphere — not just for cakes, flowers, and frills, but for a wide range of vital goods and services.

Phillips’s objection was about to whom it was sold; a user-based objection. The gay couple never even had the opportunity to discuss designs with Phillips, because the baker made it immediately clear that he would not sell them any wedding cake at all. Indeed, Masterpiece once even refused a cupcake order to lesbians upon learning that they were for the couple’s commitment ceremony.

Business owners generally have wide discretion over what they do and do not sell . . . . By contrast, business owners generally do not have discretion over how their products are later used: A kosher bakery may not refuse to sell bread to non-Jews, who might use it for ham-and-cheese sandwiches.

In his defense, Phillips has pointed out that he refuses to sell Halloween cakes or demon-themed cakes; he analogizes these refusals to his unwillingness to sell gay wedding cakes. In other words, he maintains that his turning away the gay couple was about what was requested, not who was requesting it.

The problem with this retort is that “gay wedding cakes” are not a thing. Same-sex couples order their cakes from the same catalogs as everyone else, with the same options for size, shape, icing, filling, and so on. Although Phillips’s cakes are undeniably quite artistic, he did not reject a particular design option, such as a topper with two grooms — in which case, his First Amendment argument would be more compelling. Instead, he flatly told Craig and Mullins that he would not sell them a wedding cake.

We’ve seen Jack Phillips’s First Amendment argument before. Back in 1964, when Maurice Bessinger of Piggie Park BBQ fought public accommodations laws that required him to serve black customers equally, he invoked his rights to freedom of speech and freedom of religion. Bessinger noted that he was happy to sell black customers takeout food; he simply did not want to be complicit in what he saw as the evil of integrated dining. The Supreme Court unanimously rejected this argument.

[T]he underlying principle from Piggie Park holds in the case at hand: Freedom of speech and freedom of religion do not exempt business owners from public accommodations laws, which require them to serve customers equally. The Court should uphold the commission’s decision and rule against Phillips.

Will Chief Justice Roberts Vote to Allow Businesses to Discriminate Against Gays?

Being gay in America leaves one constantly targeted for discrimination or worse by Christofascists and/or denied protections afforded to other citizens.  Here in Virginia LGBT employees have zero protections currently from being summarily fired simply because business owners or superiors are anti-gay bigots.  Most people are shocked when they hear there are neither state or federal non-discrimination protections and I regularly get calls from those who have been fired and have to tell them that unless their employer is a large company with internal protections, they are simply out of luck.  Even state employees have no protections other than a gubernatorial Executive Order which can disappear with the election of a new governor.  Now, the U.S. Supreme Court has accepted a case that could well determine if businesses can refuse services to LGBT couples (and by extension individuals) based on "religious belief."  If allowed, it would put in place something equivalent to the "whites only" signs of the Jim Crow era.   If one of the "liberal" justices should retire and Der Trumpenführer (or a President Pence) appoints another anti-gay bigot, the swing vote on the Court will be Chief Justice John Roberts.   Newly appointed Justice Gorsuch has already tipped his hand and shown that to him, religious belief trumps all else and that such discrimination would be perfectly allowable.  A piece in the Washington Post looks at what Roberts might or might not do in the pending case.  Here are excerpts:

A Supreme Court mystery: Has Chief Justice John G. Roberts Jr. embraced the court’s same-sex marriage decision that he so passionately protested two years ago?

The “does-he-doesn’t-he” question is prompted by a case that the court decided without oral arguments at the end of the recently completed term. The justices ruled in favor of same-sex couples, but did so in a way that has turned those who closely follow the court’s actions into a debating society.

And the answer could be important for more than curiosity’s sake. The court has accepted for its next term a case dealing with whether business owners must provide services for same-sex unions even if they are religiously opposed, and the nation’s courts are filling with cases about how far the 2015 same-sex marriage ruling extends.

Usually, there is no question about where the justices stand. One of the Supreme Court’s boasts about its transparency is that justices put their names on their work, joining the reasoning of a majority or dissenting opinion or writing their own.

“Except sometimes they don’t,” said Joshua Matz, a former clerk to Justice Anthony M. Kennedy and proprietor of the legal blog Take Care.

And one of the times they don’t is when issuing a “per curiam” decision, an unsigned opinion that is filed on behalf of the court. In Pavan v. Smith , the court summarily overruled a decision of the Arkansas Supreme Court and agreed with same-sex married couples who said the state treated them differently than heterosexual married couples when issuing birth certificates. The state automatically listed spouses of mothers on birth certificates when the spouse was a man, but not when she was a woman.

The per curiam decision said that Arkansas’s justices had failed to properly apply the court’s landmark decision that same-sex couples have a constitutional right to marry, Obergefell v. Hodges.

“Differential treatment infringes Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that the states have linked to marriage,’ ” the unsigned opinion said.

The court’s three most conservative justices objected. Justices Clarence Thomas and Samuel A. Alito Jr. joined a dissent written by Justice Neil M. Gorsuch, which said the court should have accepted the case for full briefing and argument because the outcome wasn’t nearly as clear-cut as the majority claimed.

Noticeably absent from the dissent was Roberts, who was on the losing side in Obergefell. He issued a strongly worded dissent and underlined his opposition by reading a summary of it from the bench — the first and only time he has taken such a step in more than a decade on the court.  Same-sex couples are justified in celebrating their newly found right, he said, but he added tartly that “the Constitution has nothing to do with it.”

But if Roberts wasn’t with the named dissenters in the recent Arkansas case, does that mean he was with the unnamed majority?

Constitutional scholar Erwin Chemerinsky said during a recent panel discussion at the University of California at Irvine Law School that the answer was yes and the vote should be seen as 6 to 3.

Law professor Leah Litman said she wasn’t sure Chemerinsky could make such a claim. But another panelist, Alex Kozinski, the celebrated and conservative longtime judge on the U.S. Court of Appeals for the 9th Circuit, was definitive: Yes, Roberts was in the majority.

Will Baude, a University of Chicago law professor and former Roberts clerk who has closely studied the per curiam decisions, rulings on emergency filings and stay requests that collectively have been referred to as the court’s “shadow docket,” is skeptical of Kozinski’s pronouncement.

Because the five members of the Obergefell majority — Kennedy and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — remain, Roberts certainly knows there is no way of dislodging Obergefell as precedent, and perhaps he thought it covered the Arkansas case, whether he liked it or not.

But it doesn’t dictate what a judge might do in the next case, he said, if circumstances — for instance, the court’s membership — change.

Republicans and Der Trumpenführer have promised Christofascists that they will overturn Obergefell, or gut it, to "protect religious liberty" and by default grant special rights to Christian extremists.  This is what "friends" who voted for Trump gave to their friends and neighbors.  Feigning ignorance should no allow them forgiveness.