Supreme Court & the case of the SSM cake

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  • PigwidgeonPigwidgeon Shipmate
    I just received an email from the New York Times:
    "The Supreme Court sided with a Colorado baker, voting 7 to 2 in a closely watched case pitting gay rights against claims of religious freedom." I'm not including the link since it's probably behind a pay wall, but I'm sure all of the news sites will have it within minutes.
    :rage: :rage: :rage: :rage: :rage:



  • HedgehogHedgehog Shipmate
    Not sure if this link will work, but if it does it should take you to a PDF of the actual decision.
  • LeRocLeRoc Shipmate
    7 to 2 is not what I expected.
  • CrœsosCrœsos Shipmate
    Here is a link to a local (to the bakery) news account.
    The Supreme Court ruled Monday that a Lakewood baker who refused to make a wedding cake for a same-sex couple because of religious beliefs did not violate Colorado's anti-discrimination law.

    But the court is not deciding the big issue in the case, whether a business can invoke religious objections to refuse service to gay and lesbian people.

    The justices' limited ruling turned on what the court described as anti-religious bias on the Colorado Civil Rights Commission when it ruled against baker Jack Phillips.

    I have not read the full opinion, but was not surprised when I scrolled down and found that the opinion of the court was written by Anthony Kennedy. Despite having a reputation of being fairly friendly to gay rights, this kind of nit-picking to avoid ruling on larger issues is a common characteristic of his jurisprudence.
  • CrœsosCrœsos Shipmate
    From Kennedy's opinion:
    The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decision maker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.

    The outcome of cases like this in other circumstances must await further elaboration in the courts, 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.

    So Kennedy (and six other justices) ruled based on what they saw as deficiencies in the actions of the Colorado Civil Rights Commission rather than any wider principle.
  • Gorusch and Alito were clear in their opinion that they distinguish between a "gay wedding cake" and a "straight wedding cake". Kagan was clear that she doesn't. I haven't read RBG's dissent yet, but I don't expect to be surprised by it - she's pretty predictable at cutting through the technical details and arguing the heart of the matter.
  • I just scanned Ginsberg's dissent. And the gist of the argument seems to be IMHO,

    The ruling: The Colorado Civil Rights Commission was mean to the Baker, and so demonstrated anti-religious bias, thus their bias tainted their decision, therefore the decision should be reversed.

    Dissent: A few off the cuff remarks should not overturn a decision without ruling on the substance of the issue.

  • Gee DGee D Shipmate
    Presumably this was one of the grounds of appeal and the court heard argument on it from both sides. Nothing exceptional in that finding even though it disposed of the appeal on a ground different to those many had thought would be the basis of decision.
  • MarsupialMarsupial Shipmate
    It's a strange decision though -- it looks like the majority was so unhappy with the procedural fairness issues that they decided to rule finally in his favour without even considering the substantive legal issue.
  • Nick TamenNick Tamen Shipmate
    Not strange at all. It’s a basic rule that the federal courts generally and the Supreme Court specifically will not decide a constitutional issue unless they have to. Cases are decided on procedural grounds without the substantive constitutional issues being addressed all the time.
  • MarsupialMarsupial Shipmate
    Yes but I am boggling a bit about how they managed to dodge the substantive issue in this case. I'm not remotely an expert in US administrative law, but I've read quite a few SCOTUS decisions over the years and generally speaking they don't leave me scratching my head like this one does.
  • Gee DGee D Shipmate
    Because the answer reached by the base tribunal was badly flawed by lacking procedural fairness is why the majority found it unnecessary to go to the substantive legal issue.
  • Golden KeyGolden Key Shipmate
    And I think sometimes the Supremes do it as a delaying tactic, hoping the opinions of society or the other justices will change.
  • mr cheesymr cheesy Shipmate
    In fairness, it does make some kind of sense. If the case has been fairly and properly dealt with, then the only issue left to consider is the substantive issue. But if that would have wider repercussions, you don't really want to be deciding that on a case that even smells like there was some proceedural error further down the courts.

    Better to make sure that the proceedural issues are all buttoned up and then only make the difficult decision as and when you really have to.
  • Gee DGee D Shipmate
    Exactly. Another consequence of a badly flawed procedure is that an appellate court cannot have confidence on any findings of fact.
  • MarsupialMarsupial Shipmate
    But he gets an outright win out of this, and not just a new hearing? Normally in my world the remedy for a finding of bias is a new hearing before a different decision maker. (Which I suppose could be a problem in this case if the entire decision-making body is implicated in the original decision.)
  • EnochEnoch Shipmate
    Marsupial, I think their system is different from anything you or I are accustomed to.
  • MarsupialMarsupial Shipmate
    Probably.
  • CrœsosCrœsos Shipmate
    Nick Tamen wrote: »
    Not strange at all. It’s a basic rule that the federal courts generally and the Supreme Court specifically will not decide a constitutional issue unless they have to.

    Not exactly. The Supreme Court will not decide a constitutional issue unless they want to, which is a different proposition entirely.
    Golden Key wrote: »
    And I think sometimes the Supremes do it as a delaying tactic, hoping the opinions of society or the other justices will change.

    I think we're in this situation. The Colorado Civil Rights Commission was not particularly flawed or biased in its process. The more liberal justices are probably hoping that attitudes change enough that explicit discrimination by sexual orientation becomes as unpopular as explicit discrimination by race, meaning such cases would not make it to the Supreme Court level. The more conservative justices are probably hoping for one more Trump appointment to the high court so they can make religious belief an explicitly recognized exemption from generally applicable laws.
  • Nick TamenNick Tamen Shipmate
    Crœsos wrote: »
    Nick Tamen wrote: »
    Not strange at all. It’s a basic rule that the federal courts generally and the Supreme Court specifically will not decide a constitutional issue unless they have to.

    Not exactly. The Supreme Court will not decide a constitutional issue unless they want to, which is a different proposition entirely.
    Fair enough, though I'd say it's somewhere in between. The rule that a federal court will not reach a constitutional question unless it has to is indeed well established. The practice that the Supreme Court will ignore that rule when it wants to is also pretty well established.

  • CrœsosCrœsos Shipmate
    Nick Tamen wrote: »
    Fair enough, though I'd say it's somewhere in between. The rule that a federal court will not reach a constitutional question unless it has to is indeed well established. The practice that the Supreme Court will ignore that rule when it wants to is also pretty well established.

    That rule applies to lower courts. The Supreme Court, as the head of its own branch of government, largely gets to set its own rules, can arbitrarily decide which cases it wants to hear and which it doesn't, and can use whatever grounds a majority of sitting justices want to in making their opinions.

    Take, for example, the case of Loving v. Virginia. That case could also have been decided on narrow, statutory grounds finding a deficiency in the specific Virginia statute against mixed race marriages. Indeed, footnote 11 of Justice Warren's opinion highlights exactly such a deficiency. And yet despite having the option of ruling narrowly and only overturning Virginia's anti-miscegenation law specifically, the court ruled on broader grounds that anti-miscegenation laws in general are contrary to the American Constitution.
  • Nick TamenNick Tamen Shipmate
    edited June 7
    Again, fair enough, though I think we’re pretty much saying the same thing different ways.
  • MarsupialMarsupial Shipmate
    So would you say this was the majority simply not having to reach the wider issue, or twisting itself in knots because it didn't want to reach the issue?

    Effectively giving the appellant a substantive win on a procedural issue just looks wrong from my perspective north of the border, but is this actually a reasonable result on US principles?

  • CrœsosCrœsos Shipmate
    Marsupial wrote: »
    So would you say this was the majority simply not having to reach the wider issue, or twisting itself in knots because it didn't want to reach the issue?

    The latter. Kennedy's opinion argues that religious objections are not a valid reason to get an exemption from a generally applicable law but that "hostility" towards religious belief vacates the state's ability to enforce its laws. The knot that Kennedy (and the others who joined his opinion) tied himself in is that if someone has a religious objection to a law then that law is, by definition, "hostile" to that person's religion. Colorado's civil rights law is hostile towards those whose religion teaches that Thou Shalt Not Sell Tiered Cakes to Queers while being non-hostile to those whose religion does not have such a teaching. Kennedy's attempts to square this circle are unconvincing.
  • Gee DGee D Shipmate
    Crœsos wrote: »
    Nick Tamen wrote: »
    Fair enough, though I'd say it's somewhere in between. The rule that a federal court will not reach a constitutional question unless it has to is indeed well established. The practice that the Supreme Court will ignore that rule when it wants to is also pretty well established.

    Take, for example, the case of Loving v. Virginia. That case could also have been decided on narrow, statutory grounds finding a deficiency in the specific Virginia statute against mixed race marriages. Indeed, footnote 11 of Justice Warren's opinion highlights exactly such a deficiency. And yet despite having the option of ruling narrowly and only overturning Virginia's anti-miscegenation law specifically, the court ruled on broader grounds that anti-miscegenation laws in general are contrary to the American Constitution.

    But the major difference and that which makes your point difficult for me to understand, is that in the present case there was an attack on the quasi-judicial process at the beginning.
    AFAIK, there was none in Loving

  • Golden KeyGolden Key Shipmate
    mr cheesy wrote: »
    Better to make sure that the procedural issues are all buttoned up and then only make the difficult decision as and when you really have to.

    ...if only all the Supremes had kept that in mind during Bush v. Gore. At that point, it was NOT their job to judge who won a presidential election. They should've turned it down, until all the ballot problems were figured out, and all the lower-level courts (and possibly Congress) ruled on everything pertinent to them.

    Whole lotta things might/would have been different.
  • EnochEnoch Shipmate
    Am I right that in the US, if evidence is shown to have been obtained illegally, that tarnishes the entire prosecution, and the person charged is entitled to get off?

    If that is US law, then is it constitutionally unreasonable that it should equally follow that if executive action fouls up completely, the recipient of it should be released from its jeopardy?
  • CrœsosCrœsos Shipmate
    Enoch wrote: »
    Am I right that in the US, if evidence is shown to have been obtained illegally, that tarnishes the entire prosecution, and the person charged is entitled to get off?

    No, though given pop culture portrayals of the American justice system your confusion is understandable. Any evidence obtained illegally (e.g. during a warrantless search of a home) is excluded from trial. Additionally any evidence whose subsequent discover is dependent on illegally obtained evidence (e.g. the lease for a storage unit is discovered during the warrantless search of a home) is also excluded, but only if it was unlikely the later evidence would have been discovered anyway without the aid of the prior illegally obtained evidence. This can cause a prosecution to collapse if enough evidence is ruled inadmissible, but it does not necessarily do so. This exclusion of "the fruit of the poisonous tree" is meant to curb abuses by police forces, primarily to keep them from conducting warrantless searches.

    A corollary of this is that if police are executing what they believe to be a valid warrant that is later determined to be deficient in some way the evidence is usually still admissible. This only applies if the deficiency in the warrant isn't the result of deliberate misbehavior to get a warrant on fraudulent grounds (e.g. police invent a fake informant whose tip forms the justification for the warrant).
  • Amanda B ReckondwythAmanda B Reckondwyth Mystery Worship Editor
  • Gee DGee D Shipmate
    Crœsos wrote: »
    Enoch wrote: »
    Am I right that in the US, if evidence is shown to have been obtained illegally, that tarnishes the entire prosecution, and the person charged is entitled to get off?

    No, though given pop culture portrayals of the American justice system your confusion is understandable. Any evidence obtained illegally (e.g. during a warrantless search of a home) is excluded from trial.

    Much as it is here. The evidence acts of the various states and territories - uniform since 1995 - make inadmissible evidence obtained illegally (s.138). While the section applies equally to civil and criminal proceedings, its main use is of course in criminal cases. The courts do have a power to admit such evidence if the judge considers that admission outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. Various examples are set out in the section, but they are clearly non-exhaustive.
  • MarsupialMarsupial Shipmate
    For what it's worth, in Canada evidence obtained illegally by the state is excluded if its admission would "bring the administration of justice into disrepute". Explaining what that means in practice is a long story, but overall there's a good chance that evidence will be excluded if the breach is more than technical and its impact was more than trivial. This can also apply to "fruits if the poisoned tree".

    That said, a finding of procedural unfairness by an administrative tribunal will generally only entitle the appellant to a new hearing. So a finding of executive illegality in an administrative context doesn't necessarily mean that whoever was complaining about the state action ultimately gets the result they were seeking. I would be surprised if there were a connection between the American exclusionary rule for criminal evidence and their administrative law procedure either, but I don't know...
  • ClimacusClimacus Shipmate
    Some not very good poll results from a newsletter I get:
    Refusal of Service Based On Sexuality

    A new poll found that more Americans said that it should be perfectly acceptable for “the owners of wedding-based businesses, such as caterers, florists, and bakers” to refuse to serve segments of the population like same-sex couples based on their religious beliefs. Last year, 41 percent agreed and this year 46 percent do. In 2017, 67 percent of Republicans said vendors should be able to refuse service to gays and lesbians, and today 73 percent said as much.

    Alex Vandermaas-Peeler, Daniel Cox, Maxine Najle and Molly Fisch-Friedman, Public Religion Research Institute
    https://www.prri.org/research/wedding-cakes-same-sex-lgbt-marriage/
  • mousethiefmousethief Shipmate
    We're going backwards.
  • lilbuddhalilbuddha Shipmate
    mousethief wrote: »
    We're going backwards.
    Direct result of the ascension of the Orange one.
  • mousethiefmousethief Shipmate
    lilbuddha wrote: »
    mousethief wrote: »
    We're going backwards.
    Direct result of the ascension of the Orange one.
    Other way around.
  • lilbuddhalilbuddha Shipmate
    edited August 9
    mousethief wrote: »
    lilbuddha wrote: »
    mousethief wrote: »
    We're going backwards.
    Direct result of the ascension of the Orange one.
    Other way around.
    Well, maybe. But the outward intolerance is at least partly a result of him speaking the way he does and still getting elected. He has emboldened people to act out.

  • mousethiefmousethief Shipmate
    lilbuddha wrote: »
    He has emboldened people to act out.
    This part, definitely.
  • CrœsosCrœsos Shipmate
    So Jack Phillips of Masterpiece Cakeshop is back in court, and the news, this time for refusing to sell a birthday cake to a transgender woman.

    The basic facts are pretty straightforward. Autumn Scardina ordered a birthday cake from Masterpiece Cakeshop by phone, specifying a pink cake with blue icing. This order was initially accepted but then rejected when Ms. Scardina mentioned that in addition to it being her birthday it was also the seventh anniversary of her coming out as transgender. Naturally Ms. Scardina filed a complaint [PDF] with the Colorado Civil Rights Division, the same body that held Phillips to have illegally discriminated against a gay couple in the previous wedding cake suit. Naturally they once again found Mr. Phillips had illegally discriminated. Just as naturally Mr. Phillips has filed a civil suit [PDF] alleging the Colorado Civil Rights Division is out to get him.

    The argument Mr. Phillips seems to be advancing (through his attorneys) is that regardless of whatever anti-discrimination laws Colorado may have on its books the Colorado Civil Rights Division is biased against him, as demonstrated by the previous case, so there is no body that can legitimately enforce such laws against him.
  • Gee DGee D Shipmate
    Not exactly a novel argument, but one which I've never heard of being successful. I was wondering if the original SSM case had gone back for hearing before a differently constituted bench.
  • MarsupialMarsupial Shipmate
    No, as I read the decision, they seem to have given him an outright win on that one. I'm not sure there is actually a "differently constituted bench" to return it to, short of waiting for people to retire.

    I see the original complaint was filed before the Supreme Court decision on the wedding cake case came down, presumably on the optimistic assumption the first case would give them a precedent to expand on. In retrospect, maybe not such a great idea.
  • Not on cakes, but wanting to fire people based on their orientation or gender identity:
    Louisiana is one of 16 states asking the Supreme Court to limit LGBT protections.

    A brief filed Friday asks the court to rule that it is legal to fire someone for their sexual orientation or gender identity without violating federal workplace discrimination laws. They argue the ban on sex discrimination in the civil rights act doesn't extend to the LGBT community.
    I know we have people down here who would like it, but 16 states. My mind boggles. And heart weeps.

    I got to this article from a newsletter subscription which states:
    Louisiana joins Nebraska, Alabama, Arkansas, Kansas, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wyoming, Kentucky, Maine, and Mississippi in seeking to make it legal to fire gay people.

    But there is hope:
    An LSU poll found 76 percent of Louisianans think gay, lesbian and bisexual people should have protections from workplace discrimination.
  • @Climacus -- I'm not sure your link is linking to what you want it to.

    I had trouble tracking this down on the web -- it looks alarming on its face, but exactly how alarming is difficult to say without a bit more context.
  • CrœsosCrœsos Shipmate
    edited September 4
    Marsupial wrote: »
    @Climacus -- I'm not sure your link is linking to what you want it to.

    I think it's this story from a Louisiana news station.

    There seems to be a confrontation between the governor and the attorney-general about this case. Apparently Governor Edwards didn't know this brief had been filed until the media asked him about it.
  • Thanks Crœsos, and sorry Marsupial -- I don't know what happened. Clearly can't copy and paste.

    I mean no disrespect here, honestly (we have problems enough of our own), but the US is a country of contradictions... I suppose we all are really. But 16 states thinking of such legislation. I was truly shocked. Crœsos' extra detail on the Governor somewhat comforts and somewhat shocks.
  • Thanks Croesus. Apparently Google was not my friend.

    For a long time legal protections for transgender people existed only under the rubric of "sex", something that Canadian legislators have gradually been fixing by adding "gender identity and gender expression" as explicitly prohibited grounds under federal and provincial human rights codes. This strikes me as the better approach -- in the abstract, reading "sex" to include sexual orientation strikes me as a bit of a stretch -- but it's not hard to see why the courts have done what they have done.
  • Though curiously, I think assimilating gender identity to sex is arguably much less of a stretch, and it appears that was actually what was at issue here...
  • EnochEnoch Shipmate
    Crœsos wrote: »
    ... The basic facts are pretty straightforward. Autumn Scardina ordered a birthday cake from Masterpiece Cakeshop by phone, specifying a pink cake with blue icing. This order was initially accepted but then rejected when Ms. Scardina mentioned that in addition to it being her birthday it was also the seventh anniversary of her coming out as transgender. Naturally Ms. Scardina filed a complaint [PDF] with the Colorado Civil Rights Division, the same body that held Phillips to have illegally discriminated against a gay couple in the previous wedding cake suit. Naturally they once again found Mr. Phillips had illegally discriminated. Just as naturally Mr. Phillips has filed a civil suit [PDF] alleging the Colorado Civil Rights Division is out to get him. ...
    It's difficult to dispel the suspicion that in those circumstance, choosing Mr Phillips as person with whom to place one's order, is either coat-trailing or being drawn by the attractive whiff of compo gently simmering on the stove.
  • CrœsosCrœsos Shipmate
    Enoch wrote: »
    It's difficult to dispel the suspicion that in those circumstance, choosing Mr Phillips as person with whom to place one's order, is either coat-trailing or being drawn by the attractive whiff of compo gently simmering on the stove.

    Possible, but legally irrelevant. Activists have been using similar tactics to "provoke" discrimination since the days of lunch counter sit-ins. What matters in these cases is whether the actions of the establishment refusing service are contrary to law, which is very much the case here.
  • EnochEnoch Shipmate
    Crœsos wrote: »
    ... Possible, but legally irrelevant. Activists have been using similar tactics to "provoke" discrimination since the days of lunch counter sit-ins. What matters in these cases is whether the actions of the establishment refusing service are contrary to law, which is very much the case here.
    Legally perhaps. But in the reality which the law is supposed to be attempting to render into form, you're not being discriminated against, and have no moral or ethical right to complain, if you deliberately set out to provoke somebody into discriminating against you.

    And by any standards, deliberately setting someone up so as to give yourself a compensation claim against them is an immoral act. It's no different from deliberately braking in front of another car so as to get it to run into you.
  • People who pull in front of other drivers and slam on the brakes do so in such a way as the other driver cannot stop in time; it is a physical impossibility. It is not a physical impossibility for a nasty piece of shit baker to discriminate against trans people. It is an ethical/moral choice. Apples and bowling balls here.
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