In the last couple of weeks there have been several decisions handed down by the Supreme Court that have captured the attention of the American public more than most cases. And with that attention has come a lot of angst, misunderstanding and misleading information about the decisions. I'd like to take a little time and look at two of them and explain the Constitutional aspects of each one while taking the political spin out of them. We'll explore what the cases were actually about, at their most basic level, and just as importantly, what they were not about.
The first case is the Masterpiece Cake case (Masterpice Cakeshop v Colorado Civil Rights Commission). For those of you who need a refresher, Colorado baker Jack Phillips was sued by the Colorado Civil Rights Commission for refusing to bake a custom wedding cake for a same-sex wedding. He said that by creating a custom work of art, he is an active participant in an action that conflicts with his religious beliefs. He, in fact, offered the couple anything in the shop that was already made and non-specific to a same-sex wedding, but refused the custom work. The Colorado Civil Rights Commission, in response to the couple's complaint, sued Phillips for violating the state's non-discrimination law. Phillips lost and, to make a long story short (this is a blog, after all, not an academic paper), appealed all the way to the Supreme Court.
The justices found, in a frankly surprisingly strong 7-2 decision, that the CCRC did the actual violating of civil rights as pertains to Phillips and his religious beliefs. The Court cited numerous instances of the Commission being openly hostile to religion and a history of inconsistent application of the Colorado law.
So, aside from the State of Colorado essentially singling out Phillips for prosecution, what other factors and Constitutional issues were at play here? At the heart of the matter is the concept of compelled speech. As explained to me, compelled speech is a form of censorship, but the inverse of how we usually think of it. We usually associate censorship with a government action telling us that we must not say something. Compelled speech, on the other hand, is the government saying we must do or say something, which is frankly much more pernicious. The other base issue at hand is the separation of status from behavior. Let's take these one at a time.
In the case of compelled speech, the government is telling you that you must do or say something, even if it conflicts with your most deeply-held beliefs. In this case, Phillips has a deep conviction that marriage is between a man and a woman (one each), and anything else is a violation of God's plan for humankind. Now, you may disagree with that position, but you can't say that his belief - and his faith - is not sincere. Nor can the government. Phillips had a record of refusing work based on his beliefs, including refusing to make Halloween confections or divorce party cakes, so he was able to demonstrate a consistent history of this kind of belief (even though it should not have been necessary to do so, in a perfect Constitutional world). He was also able to demonstrate a history of serving anyone who came into his shop with anything on the shelves. He never discriminated against anyone based on who they were - which brings us to the next point.
If Phillips had told the couple he doesn't serve gay people (or black people or Muslims or whoever), he would've - quite properly - lost in a landslide, because he would have discriminated on that basis of status. In other words, he refuses someone based simply on who they are. None of us likes that, do we? But his refusal was based on a specific behavior - in this case, a same-sex wedding - that was in serious conflict with his religious beliefs. Remember, he offered the couple anything else in the store, just not a piece of custom artistic work with his name in it, so to speak, that would imply an endorsement of the behavior he found wrong. Now, people can argue that there should be nothing wrong with a same-sex wedding, and indeed, same-sex weddings are legally permitted in all states, but that isn't really the point. The point, ultimately, is: do you want the government deciding which of your sincerely held beliefs is kosher (religious belief joke there...) and which is not? You see the danger.
But what about same-sex marriage? Hasn't the Court legitimized bigotry and homophobia and random discrimination, as so many headlines claimed? No, not in the least. Not a single statute or Supreme Court precedent was invalidated or even in any way modified by this decision, not even the Colorado law in question. The point was that the Colorado commission mis-applied their own law, not that the law was somehow bad.
So, bottom line from this case: First of all, it was not about gay marriage (interestingly, soon-to-retire Justice Kennedy authored the opinion both in this case and in the Obergefell case, which essentially legalized same-sex marriage, so clearly Kennedy was not about to overrule himself!). That was only a tangential issue. Second: understand the difference between status and behavior. And third, understand the legal concept of compelled speech and the problem it creates in a free society, which includes the freedom to have differing opinions without being prosecuted.
The second case is the recent decision regarding the Trump Administration's ban on travelers from certain countries (Trump v Hawaii). Popularly known as the "Muslim Travel Ban", the case was decided not on the basis of religion or religious discrimination. So, what was the fundamental issue?
The Court's majority ruled narrowly in favor of the Administration, but not on the basis of the policy being good or wise. The issue was this: does the President have the Constitutional and statutory authority to ban, well, basically anyone from entering the country? The Court says, yes, the President does. And that was basically it. The Court's majority made no comment on the wisdom or appropriateness of the ban, because that is a political question, not a judicial one, and the Court is hesitant to make political commentary, leaving that to the political branches of government. So, despite the headlines saying that the "Muslim ban" was upheld, and despite Trump's own tweets about the Trump travel ban being upheld, it really wasn't about upholding the ban or not, but simply whether or not he president may do such a thing, regardless of whether or not it's a good idea.
As a matter of fact, and the Court's majority acknowledges this, it really wasn't a "Muslim ban", anyway, even though most of the countries covered in it (though not all) are Muslim-majority countries. The travel ban covered only just over ten percent of the world's Muslim population, despite President Trump's rhetoric from a year or two ago about Muslims. This rhetoric was what the dissenters in the case used to vote against the Administration, but that's not really the Constitutional crux of the issue. That's a political issue, which again, the Court tends to try not to involve itself in. The reason for the ban (and I have an interest in this, being in the airline business), is that the countries in question don't practice an acceptable level of ID verification for passengers, thereby creating an unacceptable security issue for US aviation security standards. Notably, since the first version of the ban, which was successfully challenged, a couple countries have improved their processes and have been removed from the list, but now we're getting further from the Constitutional issue, so I'll stop there.
So, the overall point of this entry is to encourage people to carefully read and evaluate exactly what the Supreme Court is saying when it rules on an issue, and just as importantly, what it is not ruling on. In this age of instant analysis by all manner of social media-based, self-proclaimed experts and the 24-hour TV news cycle, it's too easy to be swayed by breathless headlines (no matter which side of the issue you may be on). Take the time to understand the reasoning before you leap to conclusions. Not to say the Supreme Court is infallible. Not by a long shot. We all remember notoriously bad decisions, like Plessey v Ferguson, Dred Scott, Korematsu, Kelo and others. And certainly, there have been plenty of decisions in the past in which I really didn't like the outcome, but had to admit, upon sober reflection, that the decision, in terms of the Constitution, was correct. And really, that's all I ask.
Thanks for reading. Discuss...
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