Category : Supreme Court

Masterpiece Cakeshop Analysis (II): Douglas Laycock and Thomas Berg–Scotus Decision not as narrow as may first appear

The Supreme Court has announced a powerful ideal. Even when a law has no explicit exceptions, hostile enforcement is unconstitutional. Single-issue agencies that enforce state civil-rights laws must approach claims to religious exemptions with tolerance and respect. And this is apparently an absolute rule; the court does not consider whether hostility might be justified by some state interest, compelling or otherwise.

But a requirement of tolerance and respect, or even the avoidance of hostility, is difficult to enforce. The opponents of religious exemptions will now start doing the sorts of things done by many other government officials resisting constitutional mandates. They will seek doctrinal and rhetorical manipulations to cloak their hostility to the constitutional right, and their unequal treatment of objectors they agree with and objectors they don’t.

Those manipulations began in the state’s briefs and in the concurring and dissenting opinions. Kagan and Breyer said that the state’s discrimination could easily have been justified with a different explanation: The protected bakers would not have sold an anti-gay cake to anybody, but Phillips would sell wedding cakes to opposite-sex couples.

As Justice Neil Gorsuch explained, this reaches the preordained result by manipulating the level of generality. An “anti-gay” cake is distinguished only by what it displays on the outer surface. So the category is not cakes, or wedding cakes, but cakes with particular messages. If a same-sex couple wants a cake with two grooms, two brides, a rainbow, or any other indication of approval of same-sex marriage, that is a cake that Phillips would not sell to anybody. If they want a cake that could just as appropriately be used for an opposite-sex wedding, then at the surface, Kagan’s rationalization holds — but it is still a rationalization. Everyone would still know what is really going on: The commission agrees with the protected bakers and disagrees with Jack Phillips.

Masterpiece states an important ideal. But the Supreme Court has not been good over the years at identifying government bias or hostility that is the least bit shrouded. In a case without smoking-gun expressions of hostility, objectors will need evidence of inconsistent treatment of tester cases.

Read it all.

Posted in * Economics, Politics, --Civil Unions & Partnerships, America/U.S.A., Anthropology, Consumer/consumer spending, Economy, Ethics / Moral Theology, Law & Legal Issues, Religion & Culture, Sexuality, Supreme Court, Theology

Masterpiece Cakeshop Analysis (I): Amy Howe–Opinion analysis: Court rules (narrowly) for baker in same-sex-wedding-cake case [Updated]

…the critical question of when and how Phillips’ right to exercise his religion can be limited had to be determined, Kennedy emphasized, in a proceeding that was not tainted by hostility to religion. Here, Kennedy observed, the “neutral and respectful consideration to which Phillips was entitled was compromised” by comments by members of the Colorado Civil Rights Commission. At one hearing, Kennedy stressed, commissioners repeatedly “endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.” And at a later meeting, Kennedy pointed out, one commissioner “even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.” “This sentiment,” Kennedy admonished, “is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.” Moreover, Kennedy added, the commission’s treatment of Phillips’ religious objections was at odds with its rulings in the cases of bakers who refused to create cakes “with images that conveyed disapproval of same-sex marriage.”

Here, Kennedy wrote, Phillips “was entitled to a neutral decisionmaker 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.” Because he did not have such a proceeding, the court concluded, the commission’s order – which, among other things, required Phillips to sell same-sex couples wedding cakes or anything else that he would sell to opposite-sex couples and mandated remedial training and compliance reports – “must be set aside.”

But the majority left open the possibility that a future case could come out differently, particularly if the decisionmaker in the case considered religious objections neutrally and fairly. Other cases, the majority emphasized, “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.”

Read it all.

Posted in * Economics, Politics, --Civil Unions & Partnerships, Anthropology, Economy, Ethics / Moral Theology, Law & Legal Issues, Religion & Culture, Sexuality, Supreme Court

Ryan Anderson–Supreme Court Upholds Baker’s Right to Disagree With Same-Sex Marriage in Marketplace

…as Justice Neil Gorsuch notes (in a concurring opinion joined by Justice Samuel Alito), either all four bakers violated the Colorado anti-discrimination law, or none did. Gorsuch writes:

[T]here’s no indication the bakers actually intended to refuse service because of a customer’s protected characteristic. We know this because all of the bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else).

As I argue in the Georgetown Journal of Law and Public Policy, “Disagreement is not always discrimination.” And this is true when it comes to disagreements about same-sex marriage.

Phillips didn’t discriminate based on sexual orientation when he refused to design and bake a cake for a same-sex wedding. He didn’t take his customer’s sexual orientation into consideration at all. He declined to use his artistic abili­ties to create a custom cake to celebrate a same-sex wedding because he objected to same-sex marriage, based on the common Christian belief that such partnerships (along with many other relationships—sexual and not, dyadic and larger, same-sex and opposite-sex) aren’t marital.

Nowhere need Phillips’ reasoning have even referred to the partners’ sexual orientation, much less any ideas or attitudes about gay people as a class (good or bad, explicit or not).

It wasn’t his customer’s identity that motivated Phillips at all. It is even clearer that Phillips’ reason for refusing to bake the wedding cake was not the invidious discrimination of avoiding contact with others on equal terms. As Phillips said to the same-sex couple, “I’ll make you birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.” He sought only to avoid complicity in what he considered one distortion of marriage among oth­ers—as shown by his refusal to create divorce cakes as well.

Read it all.

Posted in --Civil Unions & Partnerships, America/U.S.A., Consumer/consumer spending, Economy, Ethics / Moral Theology, Law & Legal Issues, Marriage & Family, Religion & Culture, Sexuality, Supreme Court

(ABC) How a same-sex wedding cake controversy made it all the way to the Supreme Court

Aided by the Alliance Defending Freedom, a Christian advocacy organization, Phillips petitioned the Supreme Court to take his case, saying the state of Colorado violated his First Amendment rights of freedom of religion and expression.

“What we’re asking the Court to look at is creative professionals, should they be forced to violate the First Amendment, our deeply-held religious beliefs, to create art that violates those beliefs. Which is more important?” he said before the court’s decision. “What I do, I paint on cakes. I sculpt cakes. It’s clearly art. It’s clearly protected.”

Phillips said he couldn’t just create a generic wedding cake available to any customer.

“That would be side-stepping the issue. That’s still the government forcing me to create cakes for ceremonies that go against my faith,” Phillips said.

Mullins said he felt the issue was about whether he and Craig were treated differently based on sexual orientation.

“This isn’t about a cake,” Mullins said. “It’s about the right of the people to receive equal service at a place of business that anyone else would.”

Read (or watch) it all and see how balanced you think it is.

Posted in America/U.S.A., Ethics / Moral Theology, Law & Legal Issues, Marriage & Family, Politics in General, Religion & Culture, Sexuality, Supreme Court

(PD) Gerard Bradley–The city of Philadelphia’s recent decision about Catholic Social Services: Learning to Live with Same-Sex Marriage?

The everyday challenge of Obergefell is whether those of us who hold the “decent and honorable religious” conviction that it is impossible for two persons of the same sex to marry will be accorded the legal and social space we need in order to live in accord with our convictions. The question at hand is whether we will instead be forced to contradict our convictions in word and deed, day in and day out. Chief Justice Roberts wrote in Obergefell:

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples.

Just so.

Catholic Social Services vs. the City of Philadelphia

Last week (on May 16), Catholic Social Services and several foster care parents sued the city of Philadelphia to settle one of those “hard questions.” CSS was recently ranked by the city as the second best of the twenty-eight agencies with which it contracts for foster care placement and support. Its record of finding homes for difficult-to-place children is unsurpassed. On March 15 of this year the city announced that it was nonetheless suspending referrals to CSS. Because the city monopolizes these referrals, its decision was tantamount to closing down CSS’s foster care operation.

The hanging offense? Even though CSS avers in its complaint (prepared by lawyers from the Becket Fund, the great religious liberty firm) that it has never received a complaint from a same-sex couple, it does adhere to Church teaching about marriage. The complaint makes clear enough that CSS would conscientiously refuse to do the work prescribed by law to certify a same-sex “married” couple as foster parents. CSS would, however, refer them to other agencies that would.

Philadelphia is trying to drive these “decent and honorable” people from the field. The mayor is quoted in the CSS complaint as declaring that “we cannot use taxpayer dollars to fund organizations that discriminate against” people in same-sex marriages. “It’s just not right.” The city council professed to be shocked—shocked!—to discover that some contracting agencies have policies, rooted in religious beliefs, that prohibit placement of children with “LGBTQ people.” But the Catholic Church’s position on marriage is no secret. The CSS complaint even points out that the “City has been aware of Catholic Social Services’ religious beliefs for years.” For example, the city waived repeatedly for CSS the obligation of city contractors to provide benefits to same-sex spouses of employees.

Read it all.

Posted in --Civil Unions & Partnerships, Anthropology, City Government, Ethics / Moral Theology, Law & Legal Issues, Marriage & Family, Politics in General, Religion & Culture, Roman Catholic, Sexuality, Supreme Court, Urban/City Life and Issues

Christianity Today Asks Several Religious Liberty Experts to Weigh in on the Implications of Yesterdays Masterpiece Cakeshop Supreme Court Decision

Eric Rassbach, vice president and senior counsel at religious liberty firm Becket:

Becket urged the court to decide the case on the basis of the free exercise clause, and that is what the court did. And because of that, this case has broad implications for other religious liberty conflicts, involving not just wedding vendors, but many other religious people too.

The decision breaks new doctrinal ground in a couple of places … For example, Justice Kennedy adopts the two-Justice part of Lukumi and turns it into newly binding precedent in this passage: “Factors relevant to the assessment of governmental neutrality include ‘the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.”

What this means as a practical matter is that in a variety of situations it will matter much more what the legislators, adjudicators, and government officials say about the religious beliefs and practices in question, and much less what those same officials think about whether those religious beliefs and practices offend someone. The court used a fairly broad definition of what constitutes hostility toward religion, so referring to “hateful beliefs” could get an anti-discrimination law invalidated. And saying that someone was offended will be no justification for a law.

Read it all.

Posted in --Civil Unions & Partnerships, America/U.S.A., Anthropology, Consumer/consumer spending, Economy, Ethics / Moral Theology, Law & Legal Issues, Religion & Culture, Supreme Court

(Local Paper) Churches nationwide eye pivotal moment this week in SC Episcopal dispute

For years, top legal minds have asked the U.S. Supreme Court to settle property fights between big national churches and breakaway congregations.

For years, they have been turned away before ever reaching the court’s marble steps.

Whether a South Carolina case becomes the one that finally lands in the high court is a question that soon will be answered. The case could make history and carry implications for disputes that have divided other religious denominations throughout the country.

Read it all.

Posted in * Anglican - Episcopal, * South Carolina, Law & Legal Issues, Religion & Culture, Supreme Court, TEC Conflicts: South Carolina

(NR) David French–In Masterpiece Cakeshop, Justice Kennedy Strikes a Blow for the Dignity of the Faithful

The Court essentially punted on the question, noting that it raised complex and difficult issues. To the extent that the dicta provides any guidance going forward, it seems that the greater the obvious expressive content, the greater the constitutional protection. In other words, a cake that contains words or symbols might enjoy greater protection than a cake with no obvious expressive meaning. But that’s speculation. The case wasn’t decided on that basis.

Instead, the Court focused on Phillips’s second claim, holding (by a 7–2 margin) that Colorado violated his right to free exercise of religion when it held him in violation of state public-accommodation law. Justice Kennedy focused on two critical aspects of the case to support his ruling. He first condemned anti-religious comments made by state commissioners during the hearings before the Colorado Civil Rights Commission. He especially singled out a commissioner’s claim that “freedom of religion” has been used to “justify all kinds of discrimination throughout history,” including slavery and the Holocaust. The commissioner called Phillips’s religious-freedom claim “one of the most despicable pieces of rhetoric that people can use.”

Kennedy’s response was devastating:

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical — something insubstantial and even insincere. . . . This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation.

Kennedy could have stopped his opinion right there. As he notes, there was no objection to those comments from other commissioners, and they weren’t disavowed at any time during the proceedings. One of the actual adjudicators of the case was expressing outright hostility to Phillips’s religious expression, a situation different from and more egregious than lawmakers’ expressing hostility to religious faith when passing legislation.

Had Kennedy stopped his opinion at that point, Phillips’s victory would have been important, but profoundly limited. The obvious response would be for the commissioners to reconsider the case, cleanse their rhetoric of outright hostility, deliver the same result on a cleaner record, and put the more difficult free-speech claim right back in the Court’s lap. But Kennedy didn’t stop. He found a separate ground for concluding that Colorado was motivated by anti-religious animus, and that separate ground will make it difficult for states to take aim at “offensive” religious exercise, even when it occurs in a commercial context….

Read it all.

Posted in America/U.S.A., Economy, Ethics / Moral Theology, Law & Legal Issues, Religion & Culture, Supreme Court

(CT) Christian Baker Masterpiece Cakeshop Wins at Supreme Court

The high court ruled that state penalties levied against Jack Phillips, the Colorado business owner at the center of Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, violated his First Amendment rights to free exercise of religion since the regulations were not applied neutrally.

While the court clearly came down in Phillips’s favor, Anthony Kennedy acknowledged in the court’s opinion that similar cases (like those that have come up involving photographers and florists, as well as pizza shops and a range of other businesses) may be adjudicated differently.

As SCOTUSblog wrote in summary, the decision still allows for the government to bar discrimination against same-sex couples, “so long as the law is applied neutrally and without hostility to religion. But whether the very same law could sometimes violate free speech rights is still totally open.”

Today’s decision still has religious freedom advocates celebrating.

“No one should be forced to violate their faith in order to earn a living, and Jack, who I’ve met and consider a friend, just wants to be free to live out his faith in his chosen profession,” stated Jim Daly, president of Focus on the Family in Colorado Springs, who was “delighted” at the ruling and its implications for religious freedom.

Read it all.

Posted in America/U.S.A., Anthropology, Economy, Ethics / Moral Theology, Law & Legal Issues, Religion & Culture, Religious Freedom / Persecution, Supreme Court

South Carolina Bishop Mark Lawrence Calls for Day of Prayer and Fasting on June 7, 2018

From there:

Dear Friends in Christ,
“At the set time which I appoint I will judge with equity.
 When the earth and all its people quake, it is I who hold its pillars firm.”
Psalm 7:2-3

On Tuesday of this week, we learned that the United States Supreme Court has scheduled a conference for Thursday, June 7, 2018 to consider our Petition for a Writ of Certiorari.  This conference will determine if they will hear our case during the next term. Though this is welcome news, only a small fraction of Petitions is granted each year by the Court.

Therefore, as your bishop, I am requesting that along with your congregational prayers, you will also include this matter in your personal and daily prayers.  I also ask that many of you, and particularly those with gifts of intercession, join me in setting aside the Thursday, of June 7th as a Day of Prayer and Fasting for the Court and for the Church.  

You will find below a general prayer to which you may add your petitions as God, the Holy Spirit, might lead you.  We are also providing a link to a list of the Justices of the Supreme Court, whom you may want to pray for individually.

Almighty God, Judge and Redeemer of the world, send upon all courts of justice, and especially the Supreme Court of the United States and its justices, a spirit of wisdom, understanding, and discernment; grant that they may rightly and impartially interpret and administer the law; through him who shall come to be our Judge, your Son our Savior Jesus Christ.  Amen.

Faithfully yours in Christ,

–(The Right Reverend) Mark J. Lawrence is 14th Bishop of the Diocese of South Carolina

Posted in * Anglican - Episcopal, * South Carolina, Law & Legal Issues, Religion & Culture, Spirituality/Prayer, Supreme Court

The South Carolina Case of the Historic Diocese and the Nearly brand New TEC Diocese gets a Date for SCOTUS Conference

From there:

Friends,

Good news! Today the United States Supreme Court announced that our Petition for Certiorari has been distributed for Conference on Thursday, June 7.

As anticipated, the Eden Prairie case (which involves the same legal issues as our own case) has also been docketed for Conference that day.

Both cases raise the question of how courts interpret the Jones v. Wolf (1979) decision and its guidance on “neutral principles of law”. In Conference, the Justices will be discussing if these are cases they wish to review to resolve the conflicting interpretations.

The consequence is that we could hear as early as Monday, June 11th what the Court’s decision is regarding our Petition for Certiorari. If granted, our case would then be heard some time in the next session of the court, which begins this fall.

Please encourage your congregation to keep the Court’s deliberations that day in their prayers.

Blessings,

(The Rev. Canon) Jim Lewis

Posted in * Anglican - Episcopal, * South Carolina, Church History, Law & Legal Issues, Religion & Culture, Supreme Court

A S Haley–The South Carolina Case of the Historic Diocese and the Nearly brand New TEC Diocese Goes to SCOTUS Conference

In their (non-linkable) respondents’ brief, ECSC and ECUSA took a gamble by resting their main opposition upon just a single ground: that the Court lacked jurisdiction to review the case because the five divided justices of the South Carolina Supreme Court had decided the case below on independent state-law grounds, and did not rest their decision on any interpretation of federal law. (SCOTUS reviews only issues of federal law that are decided by either the state or federal courts.)

As the Diocese’s reply brief points out, this claim is far from accurate. Two of the justices below (Pleicones and Hearn) were clear that they viewed the 1979 decision of the U.S. Supreme Court in Jones v. Wolf as requiring them to give effect to the trust on church property imposed by the Dennis Canon, even if the documentation of that trust failed to pass muster under South Carolina law. In other words, Justices Pleicones and Hearn held that the First Amendment trumped state trust law — and that was obviously a federal ground of decision.

Even Chief Justice Beatty, who declined to articulate his reasoning, held that the Dennis Canon was sufficient to create a trust under South Carolina law so long as the individual parishes “acceded” in some way to that Canon. Since, as Justice Kittredge pointed out in dissent, any argument that a trust under South Carolina law could rest upon such a dim showing of assent was “laughable”, it is only fair to conclude that Chief Justice Beatty reached his result by relying upon the same (federal-law) reading of Jones v. Wolf that drove Justices Hearn and Pleicones.

In sum, the South Carolina case presents as good a reason as ever will arise for SCOTUS to grant review, in order to end the confusion over the meaning of Jones that divides some nineteen different state and federal courts below. (Those decisions are reviewed and discussed at pp. 21-29 of the Diocese’s petition.)

Read it all.

Posted in * Anglican - Episcopal, * South Carolina, Law & Legal Issues, Parish Ministry, Religion & Culture, Supreme Court

Diocese of South Carolina Canon Jim Lewis’ letter about Yesterday’s Supreme Court Filing

From there:

Dear Friends,

Today, the Diocese of South Carolina filed a Reply Brief with the U.S. Supreme Courtin response to last week’s Brief in Opposition by TEC.  The Reply succinctly addresses each of TEC’s legal objections to our Petition for Certiorari by the Court and reinforces the appropriateness of their granting review.

The Reply demonstrates that:

1. The State Court ruling does NOT rely strictly upon state law and precedent.
2. Four of the five justices in their opinions demonstrate their reliance upon the “hybrid” approach to neutral principles of law to reach their conclusion.
3. The TEC brief actually affirms the split in the lower courts on this issue, further reinforcing the need for the U.S. Supreme Court to grant our Petition.

The conclusive statement from the Argument is an apt summary.  “Respondents’ remaining arguments against certiorari all lack merit.  Four decades after Jones, the time has come for this Court to bring order out of chaos and resolve the meaning of  the “neutral principles” approach to church property disputes.”

This filing represents the final step before our case will be scheduled for Conference by the Court.  We anticipate that will come in the next several weeks, with a decision on our Petition soon thereafter.

As we now move to the conclusion of this critical process, I would encourage the intentional prayers of you and your parish for a timely conference, a favorable review and the opportunity to argue our case before the court in full.  And continue to pray God’s grace for our legal counsel, in the midst of the many demands of this litigation, to argue effectively in the defense of this Diocese and its congregations.

Easter blessings,

(The Rev.) Jim Lewis is Canon to the Ordinary, Diocese of South Carolina

Posted in * Anglican - Episcopal, * South Carolina, America/U.S.A., Church History, History, Law & Legal Issues, Religion & Culture, Supreme Court

(Local Paper front page) South Carolina unlikely to legalize sports betting, despite U.S. Supreme Court ruling

A short stack of South Carolina legislators is pushing to allow sports betting in the Palmetto State following a U.S. Supreme Court decision Monday that overturned a federal ban.

But the odds are long.

The ruling by the nation’s high court leaves states to decide whether people can legally bet on football, basketball and other sports. Under the 1992 federal law it struck, Nevada was the only place where people could bet on results of a single game.

About three dozen states could offer sports betting within five years — from California to Iowa to Delaware. At least five states including New Jersey, Mississippi and West Virginia have passed laws awaiting the high court’s ruling.

But don’t bet on those including South Carolina, where even church raffles weren’t legal until 2015.

Read it all.

Posted in * South Carolina, America/U.S.A., Ethics / Moral Theology, Gambling, Law & Legal Issues, Sports, State Government, Supreme Court

(NPR) Supreme Court Rules States Are Free To Legalize Sports Betting

The Supreme Court’s court decision reversing that outcome will make it easier to open the door to sports betting.

But the status quo struck down by the Supreme Court looks almost quaint in light of increased pressure to legalize sports betting across the board.

The American Gaming Association estimates that illegal sports betting has grown to $150-billion-a-year market. And cash-starved states are salivating at the thought of raising billions from legalizing and licensing that activity, not to mention taxing the proceeds.

New Jersey, home to at least a half dozen shuttered Atlantic City casinos, is a state where Republicans and Democrats since 2011 have been trying to overturn the federal ban or somehow get around it.

After oral arguments in December, then-Gov. Chris Christie, R-N.J., said on the Supreme Court steps, “If we’re successful here, we can have bets being taken in New Jersey within two weeks of a decision by the court. We’re like boy scouts; we’re prepared.”

Read it all.

Posted in * Economics, Politics, America/U.S.A., Anthropology, Ethics / Moral Theology, Gambling, Law & Legal Issues, Sports, State Government, Supreme Court, Theology