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Supreme Court & the case of the SSM cake
Barnabas62
Shipmate, Host Emeritus
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"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.
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.
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.
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.
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.
Not exactly. The Supreme Court will not decide a constitutional issue unless they want to, which is a different proposition entirely.
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.
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.
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?
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.
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
...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.
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?
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).
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.
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...
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.
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.
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.
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.
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.
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.
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.
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.
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.