Tag Archives: Supreme Court

Highlights from day one of the Masterpiece Cakeshop Supreme Court case

Kristen Waggoner of Alliance Defending Freedom argued Jack Phillips’ case before the Supreme Court. (Photo: Jeff Malet/The Heritage Foundation) Kristen Waggoner of Alliance Defending Freedom argued Jack Phillips’ case before the Supreme Court. (Photo: Jeff Malet/The Heritage Foundation)

I thought it might be worth reading about the first day of arguments in the Masterpiece Cakeshop case. Not only can we find out what is likely to happen, but we’ll also learn how the ADF lawyer Kristen Waggoner is making her defense.

The Daily Signal reports:

The Supreme Court heard oral arguments on Tuesday in a closely watched case dealing with free speech, religious liberty, and same-sex marriage.

Specifically, the justices considered whether the state of Colorado can force Jack Phillips, a Christian baker, to create a custom cake for a same-sex wedding against his deeply held religious beliefs.

Attorneys for Phillips clearly explained that he seeks to exercise his freedom only to speak messages that he agrees with, while still welcoming all customers into his store. The First Amendment’s free speech and religious liberty clauses protect his freedoms to do just that.

In a lengthy and charged oral argument, the nine justices wrestled with how Americans who hold different views on marriage in our post-Obergefell society can continue to live with each other in mutual respect.

Here is the key that might predict the outcome, from the Supreme Court’s swing vote:

In one of the most charged exchanges of the day, Justice Anthony M. Kennedy questioned Colorado Solicitor General Frederick Yarger about whether a member of the Colorado Civil Rights Commission who compared Phillips to a racist and a Nazi demonstrated anti-religious bias—and that, if he did so, whether the judgment against Masterpiece should stand.

More:

After disavowing the commissioner’s comments, Yarger argued that the ruling should still stand. But Kennedy returned to the issue again, telling Yarger that “tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

Kennedy also pointed out there were other cake shops that would have accommodated Charlie Craig and David Mullins, the same-sex couple who requested a cake for their wedding.

In a similar line of questioning, Justice Samuel Alito pointed out that the state of Colorado had failed to demonstrate mutual tolerance when it only protected the freedom of cake artists who landed on one side of the gay marriage debate—namely, the state’s side.

When three religious customers went to cake artists to request cakes that were critical of same-sex marriage, those cake artists declined—yet Colorado did not apply its anti-discrimination statute to punish the artists. But when Phillips declined to create a cake to celebrate a same-sex marriage, Colorado imposed a three-pronged penalty that drove him out of the wedding cake business, causing him to lose 40 percent of his business.

[…]In the exchange with Alito, the Colorado solicitor general said that cake artists could not discriminate on the basis of identity, but could discriminate on the basis of messages. Gorsuch later responded, saying that’s exactly what Phillips has argued.

It was also made clear that Phillips was not discriminating against identity, but just refusing to agree with the state’s position on same-sex marriage.

During the oral arguments, the court appeared to recognize what is patently obvious from the facts. Phillips welcomes all people into his store, encourages them to buy off-the-shelf items, and will make custom-designed cakes for them provided they don’t ask for items that violate his beliefs.

He has served gays for the 24 years his store has been in operation and welcomes their business to this day. He does not discriminate against anybody because of their identity.

So comparisons to shopkeepers in the Jim Crow South who sought to keep the races “separate but equal” are a smear that divert attention from the real issue: Phillips simply disagrees with the state on the issue of marriage.

More:

Finally, the oral arguments revealed the scope of how far the state of Colorado is willing to go to impose its views of marriage on citizens. In one line of questioning from Roberts, Colorado admitted that it would force Catholic Legal Services to provide a same-sex couple with legal services related to their wedding even if it violates Catholic teachings on marriage.

And in questioning from Alito, the ACLU answered that the state could force a Christian college whose creed opposes same-sex marriage to perform a same-sex wedding in its chapel.

I was listening to the latest Ben Shapiro podcast, and in the last 10 minutes, he talked about the case. He pointed out that at the time when Phillips refused to participate in a same-sex marriage, same-sex marriage was not even legal in Colorado. Nevertheless, Colorado went after him. Hard. I think they secular left is going to lose this case – it’s just too much fascism. Too much intolerance.

You can read more about Kristen Waggoner here. She’s also arguing the Arlen’s Flowers v. the State of Washington case. A great lady. A real hero.

If you’re looking for a great book to read on what comes after same-sex marriage and how to discuss and debate it, read Ryan T. Anderon’s “Truth Overruled: The Future of Marriage and Religious Liberty“. It’s the best book for laymen on the subject. Really helps you to know how to talk about this issue. I had to do it a week ago with one of my atheist co-workers who asked ME out to lunch to talk more about his spiritual journey. If you don’t read, you can’t defend.

If there’s one thing that Trump is doing right, it’s nominating originalist judges

Trump picks a strict constructionist for Supreme Court vacancy

Well, so far Trump’s done many things right and many things wrong. Although I think more of the right things are actions (cleaning up regulations, energy development, etc. ) and the wrong things are just horribly damaging tweets. The best actions surely include his habit of nominating judges who will interpret the law as written, instead of pushing a political agenda.

Far-left ABC News reports on the most important judicial pick – Supreme Court Justice Neil Gorsuch.

Excerpt:

More than 2,000 conservatives in tuxedos and gowns recently filled Union Station’s main hall for a steak dinner and the chance to cheer the man who saved the Supreme Court from liberal control.

Justice Neil Gorsuch didn’t disappoint them, just as he hasn’t in his first seven months on the Supreme Court.

“Tonight I can report that a person can be both a publicly committed originalist and textualist and be confirmed to the Supreme Court,” Gorsuch said to sustained applause from members of the Federalist Society…

[…]The 50-year-old justice has been almost exactly what conservatives hoped for and liberals dreaded when he joined the court in April. He has consistently, even aggressively, lined up with the court’s most conservative justices. He has even split with Chief Justice John Roberts, viewed by some as insufficiently conservative because of his two opinions upholding President Barack Obama’s health law.

The article notes that liberal legal groups are very unhappy with Gorsuch’s constant focus on what the Constitution says. They don’t like him asking lawyers questions about the Constitution.

More:

Leonard Leo, the Federalist Society executive vice president who has advised Trump on judicial picks, also took issue with Gorsuch’s critics when he introduced the justice at the dinner. “They mischaracterize candor and a demand for rigorous analysis as polarizing,” Leo said.

Gorsuch and Leo embraced on the podium, in front of an adoring crowd of like-minded lawyers, judges and academics. The Federalist Society, which counted Scalia among its earliest backers, has helped Trump identify candidates for federal judgeships and has members in legal jobs across his administration.

Gorsuch made no apologies either for the substance of his questions and writing, or his style. He talked at length about the importance of seeking out the meaning of the Constitution and laws as they were understood when they written.

“Originalism has regained its place at the table of constitutional interpretation, and textualism in the reading of statutes has triumphed. And neither one is going anywhere on my watch,” Gorsuch said.

He went on to note that “some pundits have expressed bewilderment” about the questions he asks in court.

“But while I have you here tonight, I thought I might just settle the matter once and for all by taking a poll. … Should I just keep on asking about the text and original meaning of the Constitution?” he asked.

The response was predictably and overwhelmingly in favor.

Before Gorsuch was nominated and confirmed, I liked Justice Clarence Thomas best. He was the most faithful to the original meaning of the Constitution – better than Scalia.

Gorsuch and Thomas stick to the original meaning of the Constitution

Now that Gorsuch is on the bench, he’s been tracking with Thomas. According to this article from Law 360, he votes with Thomas 94% of the time. Much higher than any of the centrist and liberal judges. The liberal writer of the Law 360 article is predictably horrified that Gorsuch is so good on religious liberty in particular:

As the most controversial rulings came down near the end of the term, however, Justice Gorsuch splintered off from most of his conservative colleagues and exclusively joined Justice Thomas in five separate opinions.

On Monday, for instance, Justice Gorsuch and Justice Thomas supported each other’s concurrences in the major religious freedom case, Trinity Lutheran v. Comer. The pair joined Chief Justice Roberts’ majority opinion holding that a Missouri playground-funding program closed to religious groups was unconstitutional, but they criticized the court for limiting the scope of its ruling.

In Trinity Lutheran, the court found that a widely available public program that discriminates on the basis of religious status violates the free exercise clause of the First Amendment. The court refused to say, however, whether a program that withholds public funds from groups that would use that money for religious purposes similarly violates the free exercise clause.

In doing so, Justice Roberts made an unworkable distinction, Justice Gorsuch said. “I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use),” he said. “It is free exercise either way.”

Justice Gorsuch’s desire for an expanded free exercise clause would likely come as a crushing blow to liberal groups and other advocates of church-state separation.

That’s the most important issue to me – my religious liberty. My right to live an authentic Christian life without being bullied by secular leftists in the government. I want people on the Supreme Court to defend my right to behave like a Christian in public.

The conservative Daily Signal had an article up describing even more good news about new judicial nominations.

Excerpt:

On Friday, President Donald Trump announced the addition of five individuals to his outstanding list of potential candidates for a future Supreme Court vacancy.

As was the case with the lists Trump put out during his presidential campaign, these new additions to the list are conservative men and women who are committed to interpreting the Constitution according to its original public meaning.

While there are currently no vacancies on the Supreme Court, rumors abound that Justice Anthony Kennedy may retire in the near future.

Whatever mess Trump makes with his Tweets, you have to love this judicial nominees. We would never have gotten nominees like this with Hillary Clinton. And what’s even better is that Trump will be making more judicial nominations in the next 12 months than Obama did in his entire 8 years in office, according to the radically leftist Washington Post. (H/T Curby)

Excerpt:

 Conservatives have a new court-packing plan, and in the spirit of the holiday, it’s a turducken of a scheme: a regulatory rollback hidden inside a civil rights reversal stuffed into a Trumpification of the courts. If conservatives get their way, President Trump will add twice as many lifetime members to the federal judiciary in the next 12 months (650) as Barack Obama named in eight years (325). American law will never be the same. 

That’s good news for liberty, bad news for big government coercion.

Trump picks a scholarly originalist to replace Scalia on the Supreme Court

Trump picks a strict constructionist for Supreme Court vacancy
Trump picks a strict constructionist (originalist) for Supreme Court vacancy

There were three main candidates: Pryor had the most conservative record and a few red flags, Hardiman was the “stealth” candidate, and Gorsuch was the scholarly originalist.

Tump picked the scholarly originalist.

The Federalist explains:

Tonight, President Trump rewarded social conservatives and delivered on his campaign promise by nominating Neil Gorsuch, a Circuit Judge of the United States Court of Appeals for the 10th Circuit, to the United States Supreme Court.

[…]Gorsuch, 49, was appointed to the 10th Circuit in 2006 by George W. Bush. His nomination generated little controversy, and he was confirmed with a voice vote by the U.S. Senate. A graduate of Columbia, Harvard Law, and Oxford, he is praised for his eloquent legal prose, intellectual gifts, and is heralded by conservatives for his textualist and orginalist interpretations of the Constitution. It is no surprise that his appointment fills the vacuum left by Justice Antonin Scalia’s death.

Gorsuch has garnered significant praise from Robert P. George, the McCormick Professor of Jurisprudence at Princeton University and arguably the nation’s most influential social conservative intellectual. On Facebook, George issued the following praise for Gorsuch: “He would be a superb Supreme Court justice. He is intellectually extremely gifted and is deeply committed to the (actual) Constitution and the rule of law. He will not manufacture ‘rights’ or read things into the Constitution that aren’t there or read things out of the Constitution that are.” In social conservative circles, a Robert George endorsement is sufficient alone to merit support for Gorsuch.

This I really like – he’s a Protestant like me:

A member of the Anglican communion (who would become the only Protestant on the Supreme Court), Gorsuch studied under eminent legal philosopher, natural lawyer, and ethicist John Finnis at Oxford. Anyone familiar with Finnis’ work will understand the resounding alignment his work has with social conservative pillars, particularly around issues of human dignity and sexual ethics.

The only Protestant on the bench, in a majority Protestant country. It’s about time!

I’m not sure how to align SCOTUSBlog, but I think of them as center-left. Here’s what they think of the nominee:

With perhaps one notable area of disagreement, Judge Gorsuch’s prominent decisions bear the comparison out. For one thing, the great compliment that Gorsuch’s legal writing is in a class with Scalia’s is deserved: Gorsuch’s opinions are exceptionally clear and routinely entertaining; he is an unusual pleasure to read, and it is always plain exactly what he thinks and why. Like Scalia, Gorsuch also seems to have a set of judicial/ideological commitments apart from his personal policy preferences that drive his decision-making. He is an ardent textualist (like Scalia); he believes criminal laws should be clear and interpreted in favor of defendants even if that hurts government prosecutions (like Scalia); he is skeptical of efforts to purge religious expression from public spaces (like Scalia); he is highly dubious of legislative history (like Scalia); and he is less than enamored of the dormant commerce clause (like Scalia).

He’s like Scalia, and that’s what we want, (although Clarence Thomas is my favorite Supreme Court Justice).

Here’s Gorsuch’s view of legislating from the bench, in an article he wrote for National Review in 2005:

This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In the legislative arena, especially when the country is closely divided, compromises tend to be the rule the day. But when judges rule this or that policy unconstitutional, there’s little room for compromise: One side must win, the other must lose. In constitutional litigation, too, experiments and pilot programs–real-world laboratories in which ideas can be assessed on the results they produce–are not possible. Ideas are tested only in the abstract world of legal briefs and lawyers arguments. As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.

He doesn’t like judicial activism, he wants legislators to legislate. It’s about time we got a judge who believes in interpreting the Constitution instead of legislating from the bench. All we had for the last eight years was affirmative action picks who legislated from the bench, instead abiding by the plain meaning of the laws.

National Review also reports that religious liberty is an area of strength for him:

In two high-profile religious-liberty cases, Gorsuch voted to hold that the Obama administration had violated the Religious Freedom Restoration Act by refusing to exempt religious employers from a requirement to cover contraceptives in their insurance plans. In neither case, though, will it be easy for opponents to portray his decisions as evidence of social-conservative zealotry.

He concurred in a decision freeing the Hobby Lobby chain from the contraceptive mandate. Its evangelical owners considered some of the contraceptives they were forced to cover to be abortifacients, and objected to them for that reason. A narrow 5-4 majority of the Supreme Court affirmed that decision. Gorsuch joined a dissent arguing that the Little Sisters of the Poor, a group of Catholic nuns, had shown that the Obama administration’s fines for noncompliance with the mandate amounted to a substantial burden on the exercise of their faith — one of the preconditions for getting protection under the Religious Freedom Restoration Act. The Supreme Court unanimously vacated the decision from which Gorsuch had dissented.

Gorsuch’s solicitude for religious liberty has not been confined to cases involving abortion, contraception, or conservative Christians. In the less well-known Yellowbear v. Lampert, Gorsuch ruled that the Religious Land Use and Institutionalized Persons Act meant that a Native American prisoner had to have access to his prison’s sweat lodge.

Religious liberty is my core value – the thing I care the most about. It’s important to me that the nominee have a record on the issue I care about the most.

I think that next time we get a SCOTUS nominee, if we get 60 or more Republican senators in the Senate after the 2018 mid-terms, we’ll get the very conservative Pryor. Which would basically make Trump’s presidency great for conservatives. It’s very important to get these picks right. This was the right pick for 52 Republican senators in the Senate, and Pryor is the right pick when we have 60 Republican senators in the Senate. So get ready for 2018.

UPDATE: Ben Shapiro says that Pryor has some red flags, and that Gorsuch was the best pick. He calls it a home run, and even wore the red MAGA hat on his podcast, for being wrong. So Trump chose the best person.

ADF offers advice on SCOTUS marriage redefinition ruling

States with non-discrimination laws
States with non-discrimination laws

(Source: ACLU)

Erik Stanley of the Alliance Defending Freedom offers advice to churches on how to respond to the Supreme Court’s decision to redefine marriage to remove the gender requirement.

He says:

[…][T]he greatest threat for churches lies in the application of the Court’s decision to believers who live in jurisdictions covered by so-called “non-discrimination” laws and ordinances. Everywhere that marriage has been redefined in the last several years has seen an awakening of non-discrimination laws that prohibit discrimination in employment, housing, or places of public accommodation on the basis of sexual orientation or gender identity. These laws are peppered throughout the states and local governments and are a linchpin of the sexual revolution’s broader legal and political strategy: to establish non-discrimination laws at all levels throughout the country and to to “ensure that religion is not used as an excuse to discriminate.”

In coming days, the threat from these non-discrimination laws will materialize in numerous ways as same-sex couples marry. But there are proactive steps your church can take to protect itself.

I put the map from the ACLU above. I think that’s what he is talking about when he says non-discrimination states. Keep in mind that the ACLU supported redefining marriage, and opposes religious liberty.

Erik’s article covers 3 areas:

  1. Church’s statement of faith
  2. Pastors officiating same-sex marriage ceremonies
  3. Church’s facility usage policy

Part 3) was the most interesting to me:

3. Churches should ensure their facilities usage policies are revised to allow only uses consistent with the church’s religious beliefs.

In the wake of the Supreme Court ruling, some churches may be approached by same-sex couples seeking to be married in the church facility. Churches should not feel as if they have to close their doors to the community just to prevent wedding ceremonies with which they disagree. Churches must continue to be a welcoming presence in the community and can do so through updating or revising their facility usage policy. The key point is to tie usage of the church’s facility to the statement of faith and religious beliefs of the church. And then to make clear that uses inconsistent with those religious beliefs will not be allowed. Alliance Defending Freedom has a sample facilities usage policy available in our Protecting Your Ministry manual.

So you update your statement of faith, and then tie usage of the the facility to that statement of faith. Simple.

I took a quick look at the booklet, and it also talked about tying employment within the church and church membership to the statement of faith.

Denny Burk summarizes those:

2. Religious Employment Criteria

Your church can best avail itself of the First Amendment’s protection in employee disputes if you create and faithfully enforce religious employment criteria for every employee. That requires churches to do at least two things: (1) require all employees and volunteers to sign a statement affirming the church’s statement of faith and standards of conduct, and (2) create written job descriptions for every employee and volunteer position.

4. Formal Membership Policy

If your church does not have a membership policy, you need to change that. Biblically, this should already be a priority for your church. You need to specify what the requirements for membership are, how one joins, how one resigns, and the procedures for church discipline. If all of this isn’t spelled out up front, your church could be exposed (see ADF guide pp. 17-18).

So what to make of this? Well, the ADF is an organization that I admire and trust. I cannot abide Christians who do not want to understand the details of what is happening with religious liberty in their country. The ADF has first class lawyers from the top law schools, and they defend religious liberty at every level of our justice system, up to and including the Supreme Court. If you want to help your church protect itself from prosecution, then you must point them to the ADF booklet linked above.

And this is especially true if you are in one of those states in the map above. In looking over the map, I noticed that much of the trouble we have been having with Christian businesses getting sued are in states that have these laws… Oregon, Washington, New Mexico, New York, and so on. Pay attention to that map and make decisions about where to live accordingly.

Supreme Court vacates lower court ruling against religious liberty

Barack Obama speaking to Planned Parenthood
Barack Obama speaking to Planned Parenthood

Life News explained what was at stake in the “Little Sisters of the Poor” case decided yesterday by the Supreme Court:

The Little Sisters of the Poor are asking the nation’s highest court to ensure they do not have to comply with Obamacare’s abortion mandate. The mandate compels religious groups to pay for birth control and drugs that may cause abortions.

Without relief, the Little Sisters would face millions of dollars in IRS fines because they cannot comply with the government’s mandate that they give their employees free access to contraception, sterilization, and abortion-inducing drugs.

Religious liberty champion David French writes about the decision in National Review.

Excerpt:

First, the Supreme Court vacated the lower court ruling holding that the Little Sisters had to facilitate access to contraceptives and denied that the mandate substantially burdened their religion. Speaking as a person who’s argued a few cases in courts of appeal — when the court vacates the ruling you’re challenging, that’s a win.

Second, the Supreme Court provided a roadmap for an excellent resolution to the case…

[…]the Court suggested an accommodation that was far more respectful of the Little Sisters’ religious liberty than the challenged Obamacare regulations, and the government will now have extreme difficulty credibly arguing in lower courts that the Supreme Court’s own suggested compromise should be set aside.

Third, this ruling was unanimous. That means the DOJ should be far from confident that it can simply wait out the new presidential election and pursue its original claims with the same hope for success — especially if it spent the intervening years rejecting a compromise that it already seemed to accept.

Fourth, we can’t forget the context. This the second time a unanimous Supreme Court has turned back the Obama administration’s regulatory efforts to restrict religious freedom (Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC was the first), and it represents yet another setback for the administration’s contraception/abortifacient mandate. The Obama administration has pushed hard against religious liberty — on occasion too hard even for the Supreme Court’s more liberal justices.

The case will now go back to the lower courts again, but SCOTUS was clear on what they expect the ruling to be – a compromise that protects religious liberty and achieves the administration’s goal of providing contraception and abortifacient drugs. Unfortunately, that’s what a Democrat administration thinks is a priority.

It’s not a complete victory, but an 8-0 decision should be solid until Trump or Hillary packs the court with pro-abortion liberals. I expect either candidate will do that, since both candidates are “very pro-choice”, and both favor partial-birth abortion.