{"id":71868,"date":"2018-06-04T16:05:42","date_gmt":"2018-06-04T20:05:42","guid":{"rendered":"http:\/\/kendallharmon.net\/?p=71868"},"modified":"2018-06-04T18:16:51","modified_gmt":"2018-06-04T22:16:51","slug":"nr-david-french-in-masterpiece-cakeshop-justice-kennedy-strikes-a-blow-for-the-dignity-of-the-faithful","status":"publish","type":"post","link":"https:\/\/kendallharmon.net\/?p=71868","title":{"rendered":"(NR) David French–In Masterpiece Cakeshop, Justice Kennedy Strikes a Blow for the Dignity of the Faithful"},"content":{"rendered":"

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\u00a0obvious <\/em>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\u2019s speculation. The case wasn\u2019t decided on that basis.<\/p>\n

Instead, the Court focused on Phillips\u2019s second claim, holding (by a 7\u20132 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\u2019s claim that \u201cfreedom of religion\u201d has been used to \u201cjustify all kinds of discrimination throughout history,\u201d including slavery and the Holocaust. The commissioner called Phillips\u2019s religious-freedom claim \u201cone of the most despicable pieces of rhetoric that people can use.\u201d<\/p>\n

Kennedy\u2019s response was devastating:<\/p>\n

To describe a man\u2019s faith as \u201cone of the most despicable pieces of rhetoric that people can use\u201d is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical \u2014 something insubstantial and even insincere. . . . This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado\u2019s antidiscrimination law \u2014 a law that protects discrimination on the basis of religion as well as sexual orientation.<\/p><\/blockquote>\n

Kennedy could have stopped his opinion right there. As he notes, there was no objection to those comments from other commissioners, and they weren\u2019t disavowed at any time during the proceedings. One of the actual adjudicators of the case was expressing outright hostility to Phillips\u2019s religious expression, a situation different from and more egregious than lawmakers\u2019 expressing hostility to religious faith when passing legislation.<\/p>\n

Had Kennedy stopped his opinion at that point, Phillips\u2019s 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\u2019s lap. But Kennedy didn\u2019t 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 \u201coffensive\u201d religious exercise, even when it occurs in a commercial context….<\/p>\n

Read it all<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

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\u00a0obvious expressive content, the greater the constitutional protection. In…<\/span><\/p>\n

Read more ›<\/a><\/div>\n

<\/p>\n","protected":false},"author":794,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[209,149,168,114,108,146],"tags":[],"class_list":["post-71868","post","type-post","status-publish","format-standard","hentry","category-americau-s-a","category-economy","category-ethics-moral-theology","category-law-legal-issues","category-religion-culture","category-supreme-court"],"_links":{"self":[{"href":"https:\/\/kendallharmon.net\/index.php?rest_route=\/wp\/v2\/posts\/71868","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/kendallharmon.net\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/kendallharmon.net\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/kendallharmon.net\/index.php?rest_route=\/wp\/v2\/users\/794"}],"replies":[{"embeddable":true,"href":"https:\/\/kendallharmon.net\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=71868"}],"version-history":[{"count":2,"href":"https:\/\/kendallharmon.net\/index.php?rest_route=\/wp\/v2\/posts\/71868\/revisions"}],"predecessor-version":[{"id":71870,"href":"https:\/\/kendallharmon.net\/index.php?rest_route=\/wp\/v2\/posts\/71868\/revisions\/71870"}],"wp:attachment":[{"href":"https:\/\/kendallharmon.net\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=71868"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/kendallharmon.net\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=71868"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/kendallharmon.net\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=71868"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}