SCOTUS Finale

It’s that time of year, when we take a look at the just-ended Supreme Court session. I don’t really know if this session has been busier than usual. It may not be more momentous than the Dobbs ruling in 2022. But there does seem to be too much to handle. I’ll take a non-lawyer’s look at just a few. And I’ll share some of the “stack of stuff” I read or listened to.

We can’t—and shouldn’t—expect Court rulings to solve all our government issues. But it’s good when justice prevails. Although this year it’s a mixed bag, I think the country is in better shape after the 2023-2024 session than it was before.

Supreme Court building, image from Epoch Times

 

Presidential Immunity

Trump v. United States (23-939)   

This case seems to have generated the most talk this week. I agree it’s a big deal, and in general I think it’s a good ruling. This will affect possibly all of the cases against President Trump, including some of the concluded ones. For the 34 felony “convictions” on a dispute over how to classify a blackmail payment (the Stormy Daniels “hush money” case), sentencing has been postponed until September, giving the judge time to come up with a way to claim this was somehow a private action. And there is the weakness—instead of delineating more clearly a difference.

The case was never about “absolute immunity,” which could mean a president could, you know, target his political opponent, maybe with lawfare, raids on his home, or, God forbid, assassination. The president never had immunity from those things—or anything else for which he could be impeached. That is clear now.

The case is worth reading, for the details. Especially read Justice Thomas’s concurrence. He takes the extra step of pointing out that, if there is ever to be a case against a former president, at the very least it ought to be prosecuted by someone granted authority to do so. We can hope Judge Cannon, who is set to rule on whether Jack Smith can prosecute related to the Mar-a-Lago raid of documents will take note.

Here are some of the commentaries:

·       “Judicial Watch Statement on Supreme Court’s Immunity Ruling” 

Today’s commonsense Supreme Court immunity ruling is a victory for former President Trump, the U.S. Constitution, and the rule of law. The Biden administration’s political decision to try to put Trump in jail for simply being president was unsurprisingly rejected by the Supreme Court.

Make no mistake, the Supreme Court is imposing a virtually insurmountable burden on Jack Smith in his vicious pursuit of Trump over the election and document disputes. The unprecedented charges against Trump were frivolous to begin with and, after today’s decision, should be shut down completely by the Justice Department.—Tom Fitton

·       “Trump revels in political wins while Biden campaign reels from debate” Jill Colvin, Associated Press, July 3, 2024 

Trump’s run began last week during the first debate, when Biden delivered a performance so dismal that he has spent the days since fending off calls from alarmed Democrats to step aside to save the party from losses up and down the ballot.

On Monday, the U.S. Supreme Court ruled that former presidents have broad immunity from prosecution, limiting the indictment against Trump for his efforts to overturn his 2020 election loss to Biden. It’s all but certain he won’t face trial before Election Day.

And on Tuesday, the judge in Trump’s New York criminal hush money trial postponed his sentencing to weigh the impact of the Supreme Court decision.

·       “Justices rule Trump has some immunity from prosecution” Amy Howe, SCOTUSblog, July 1, 2024    

·        “SCOTUS Didn’t Just Upend Jack Smith’s Plans for Pre-Election Trump Trial, They May Have Ended His Entire Prosecution”  Katelynn Richarson, The Daily Caller 7-3-2024       

·       “Judge delays Trump’s hush money sentencing until at least September after high court immunity ruling” Jake Offenhartz and Jennifer, Associated Press, July 2, 2024      

This next is a response to the above piece, by Ashe in America, Badlands Media Brief, Substack, which comes by email, July 3, 2024. I’ve highlighted a couple of points:

Our Take: The process is the punishment. It’s become a common saying in our current moment, explicitly calling out the weaponization of power against political opposition — by people continuously screeching about fascism.

Monday’s immunity decision was explosive, and it’s notably led to the fascists showing their true colors. Calls for Biden to unilaterally expand the Supreme Court are ubiquitous, as are demands that he channel his worst impulses and finish 45 by whatever means necessary.

MAGA has been so dehumanized in our society, that such overtly un-American demands are met with applause rather than condemnation.

It’s clear that, for the uniparty, the only way to fight Trump and MAGA’s theoretical future fascism is with actual fascism right now. Without a hint of irony. Yet, despite the hysteria, and for the first time I can remember, it seems the system is working.

The Executive, the Legislative, and the Judiciary are all in focus at their intersections, checking and balancing the execution of power against the Constitution’s guardrails.

Better, and more importantly, this is all being viewed prominently in the context of the 2024 election—the will of the People.

This is how it’s supposed to work.

The boomerangs are coming around now, and the Constitutionally prescribed processes for restoring the public will absolutely be the punishment for the enemies of liberty.

Think I’m exaggerating? Judge Merchan just vacated [postponed until September, not vacated] President Trump’s sentencing.

Never stop fighting.

We’re winning. — Ashe in America

 

·       Another response from Ashe in America, Badlands Media Brief, Substack, July 2, 2024  (response to an Axios piece), in this one about Sotomayor dissent; again I’ve highlighted a main point:

From Sotomayor, if the President “uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

Take a Xanax, Sonia.

Notably, the court affirmed that there is no immunity for unofficial acts. So, for example, crimes committed while running the country illegally behind the mask of a demented, geriatric puppet would not result in prosecutorial immunity for a former president.

Robert Gouveia breaks down the Immunity decision,
screenshot from here

 

·       “How the Supreme Court Decision on Presidential Immunity Could Impact Trump Cases” Catherine Yang, Epoch Times, July 1, 2024 

·       “Trump throws a Clarence Thomas-sized wrench into Mar-a-Lago case after Supreme Court immunity ruling” Alex Woodward, The Independent, July 5, 2024 

·       “Jack Smith in DANGER after SCOTUS Immunity Decision” Robert Gouveia law vlog, July 3, 2024  

·       “Trump Sentencing DELAYED after IMMUNITY Threatens Case" Robert Gouveia law vlog, July 3, 2024 

 

J6 Defendants Accused of Document Interference, Cases Dismissed

Fischer v. United States (23-5572)   

This one relates to the use, in hundreds of J6 cases, a law invented/legislated during the Enron era to make it a crime to ruin documentary evidence, which would prevent an investigation or prosecution—a government procedure. It was stretched beyond the point of elasticity to apply to protesters at the capitol, claiming they were disrupting a government procedure. It has never been used in this way, or for anything that isn’t destroying or hiding documents. And now the Court has made it clear that it cannot be so used.

Most J6 prisoners/defendants have multiple charges, so this ruling only sets them free if this is their only charge. Still, it is a step in the right direction in these cases, and it exposes the tenuous grounds used to prosecute peaceful protesters, which most of the defendants were.

·       “SCOTUS DISMISSES Key J6 Charge in 6-3 Decision” Robert Gouveia law vlog, June 29, 2024. 

 

Chevron Deference Removed

Loper Bright Enterprises v. Raimondo (22-451)  

This one may turn out to be the most consequential ruling of the SCOTUS 2023-2024 session. It has been looming on the horizon since the appointment of Justice Gorsuch. It severely curtails (but doesn’t yet fully eliminate) the power of the administrative state. Here are a few words from Gorsuch’s concurrence:

“Today, the Court places a tombstone on Chevron no one can miss. In doing so, the Court returns judges to interpretive rules that have guided federal courts since the Nation’s Founding.”—Justice Neil Gorsuch

 

Tom Woods’ daily newsletter, Monday, July 1, 2024, quotes Spike Cohen, giving a good overview of the case and background:

A family fishing company, Loper Bright Enterprises, was being driven out of business, because they couldn't afford the $700 per day they were being charged by the National Marine Fisheries Service to monitor their company.

The thing is, federal law doesn't authorize NMFS to charge businesses for this. They just decided to start doing it in 2013.

Why did they think they could away with just charging people without any legal authorization?

Because in 1984, in the Chevron decision, the Supreme Court decided that regulatory agencies were the "experts" in their field, and the courts should just defer to their "interpretation" of the law.

So for the past 40 years, federal agencies have been able to "interpret" laws to mean whatever they want, and the courts had to just go with it.

It was called Chevron Deference, and it put bureaucrats in charge of the country.

It's how the OHSA was able to decide that everyone who worked for a large company had to get the jab, or be fired.

No law gave them that authority, they just made it up.

It's how the ATF was able to decide a piece of plastic was a "machine gun."

It's how the NCRS was able to decide that a small puddle was a “protected wetlands."

It's how out-of-control agencies have been able to create rules out of thin air, and force you to comply, and the courts had to simply defer to them, because they were the "experts."

Imagine if your local police could just arrest you, for any reason, and no judge or jury was allowed to determine if you'd actually committed a crime or not. Just off to jail you go.

That's what Chevron Deference was.

It was not only blatantly unconstitutional; it caused immeasurable harm to everyone.

Tom Woods adds this bonus info:

Harvard's Laurence Tribe feels sorry not for Americans who have been endlessly harassed by these semi-lawless agencies, but for his legal buddies who were trained to operate in this environment: "The ones I feel sorry for are my administrative law colleagues who built their courses and careers around the intricacies of Chevron deference."

That this kind of people will have to find something else to do is a wonderful bonus, not something to deplore!

So I said to Tribe on Twitter: "I already support the decision; you don't have to keep selling it to me!"

Woods ends with this happy outlook:

Whenever something like this happens, when a wicked but seemingly irreversible feature of American life is suddenly overturned, it should lift our spirits: things we assume are forever may not be so forever after all.

 

·       “Supreme Court strikes down Chevron, curtailing power of federal agencies” Amy Howe, SCOTUSblog, June 28, 2024. 

·       “Supreme Court overturns Chevron decision, curtailing federal agencies' power in major shift” Melissa Quinn, CBS News, June 28, 2024. 

·        Burning Bright on Badlands Media Brief, Substack, responds to the above CBS piece on this ruling, noting that it ends a really bad week for the bad guys. They had that terrible debate on Thursday. That same day they learned, from the Securities and Exchange Commission (SEC) v. Jarkesy decision, that defendants accused of fraud by the SEC have a right to a jury trial—gasp! Just as guaranteed in the Constitution! How can that be? And then the week ends with the Chevron Deference ruling. Here’s the CBS News comment from the piece by Melissa Quinn, followed by Burning Bright’s response:

"The Supreme Court on Friday overturned a landmark 40-year-old decision that gave federal agencies broad regulatory power, upending their authority to issue regulations unless Congress has spoken clearly."

Essentially, while the Collective Mind was sleeping, we were absolutely kicking a— on the Actual layers of the Info War, with the administrative state getting neutered to close out the week.—Burning Bright

Supreme Court illustration from Epoch Times

 

Censorship Allowed

Murthy v. Missouri 

This is a ruling we feel bad about, and may seriously regret down the road. It is a bit of a kicking-the can-down-the-road type of ruling. It concerns censorship by tech companies—which are getting the benefits of being common carriers, but are additionally treated as private companies that can decide what speech can show up on their platforms. There is some sympathy for such platforms, which feel like they are held accountable (but are not actually) for hate speech or bullying, or libel—in other words speech that could be handled through other legal means between the speaker and the victim. These tech companies broadly stretched that sympathy into full-on censorship. They continue to censor—sometimes without the speaker knowing they’re being censored, and almost always without knowing why. This was most apparent during COVID; you still see their stupid messages show up beneath posts that even tangentially oppose the elites' narrative. There’s a recent ad for a Hillsdale College online course about the Great Reset, in which they detail public statements and information about the WEF; Facebook deems it necessary to warn us that Hillsdale is lying to us about a secret conspiracy theory. Ridiculous!

The case is about government censorship, but it fails to recognize the pressure on (or tacit agreement with) private companies to carry out the censorship for them.

Tech companies used censorship to great effect during the 2020 election. During litigation they have been slightly less hesitant to outright censor. This ruling gives them carte blanche to knock out whatever speech they don’t like during this year’s election. 

·      “No Remedy for Censorship: The Perils of Murthy” Philip Hamburger, Real Clear Politics, July 2, 2024. 

Murthy is probably the worst speech decision in American history. In the face of the most sweeping censorship in American history, the decision fails to recognize either the realities of the censorship or the constitutional barriers to it. In practical terms, the decision invites continuing federal censorship on social media platforms. It thereby nearly guarantees that yet another election cycle will be compromised by government censorship and condemns a hitherto free society to the specter of mental servitude. 

·       “Supreme Court Punts on Florida and Texas Social Media Laws, Sends Cases Back to Lower Courts” Matthew Vadum, Epoch Times, July 1, 2024.  

·       “Rigged AGAIN? Biden's Censorship ALLOWED in 2024 after SCOTUS Ruling” Robert Gouveia law vlog, June 27, 2024.  

·       “Missouri v. Biden - SCOTUS Plays Pontius Pilate: NO STANDING on 1st Amendment Violations?” Viva Frei law vlog, June 26, 2024. 

 

Viva Frei (left) and Robert Barnes walk through multiple cases and other news,
screenshot from here. Note: there's a disinformation warning attached by YouTube,
which will continue to be allowed because of the failure in the Missouri ruling.

Extras

Here are a few extras that either cover multiple cases, or cases beyond what I’ve covered here: 

·       “Ep. 217: Biden Debate Debacle; SCOTUS Jan. 6;SCOTUS Chevron; Trump AND MORE!” Viva Frei & Robert Barnes, June 30, 2024.  

·       “Key Takeaways from Supreme Court Rulings That Curb Executive Power” Sam Dorman, Epoch Times, June 28, 2024.  

·       “Supreme Court Rejects Challenge to Power of Federal Agency to Set Workplace Rules” Tom Ozimek, Epoch Times, July 3, 2024. 

Ordinary Meaning

Supreme Court building in Washington, DC
I took this photo during our trip there in 2015.

It’s June, the season for Supreme Court rulings, because their annual term ends June 30^th. I’m writing today about the Bostock v. Clayton County case. But this morning another ruling came out—another bad ruling.

We’re supposed to have 5 of the 9 justices who form their opinions based strictly on the law as written, since they were appointed by Republican presidents. Apparently that isn’t so. Which shows why there is danger in allowing the Supreme Court to have so much power.

The Constitution is pretty clear. Article III refers to the Judicial Branch. Section 1 covers judicial service—who can serve, under what conditions. Section 2 covers which types of cases are handled by the federal judiciary. Section 3 describes treason against the United States and how that will be handled.

That covers the entirety of Article III. It doesn’t say that the court gets to determine whether there are hidden meanings, or penumbras of meaning, in the Constitution. It doesn’t say it’s up to the courts to determine when life begins. It doesn’t say it’s up to the courts to change the definition of marriage from what it’s been for several thousand years. It doesn’t say the courts have the right to rewrite a badly written law to make it better, or better able to accomplish a desired outcome.

Surprisingly, it doesn’t even say it is up to the Supreme Court to determine whether a law is constitutional. That didn’t become a thing until Marbury v. Madison, in 1803.

In fact Thomas Jefferson said this:

[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not... would make the judiciary a despotic branch.... [T]he germ of dissolution of our federal government is... the federal Judiciary... working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.… They are construing our Constitution from a co-ordination of a general and special government to a general and supreme one alone.

In Federalist 78 Alexander Hamilton describes the judicial branch as the weakest of the three branches, because it has "no influence over either the sword or the purse…. It may truly be said to have neither FORCE nor WILL, but merely judgment."

And yet here we are, with these nine unelected persons wearing black robes deciding things that affect our daily lives.

Today’s bad ruling, in short, said that, while there is full agreement that Obama’s executive order concerning DACA (refusing to enforce the law when it comes to a class of individuals the president wanted to favor) was illegal, and there is full agreement that President Trump has the power to rescind that illegal executive order, the Supreme Court is nevertheless ruling that the Trump administration didn’t fully explain their reasoning, or perhaps with the right tone, so the Court is ordering the President to start over and do it the way the Court says—in the meantime letting the illegal executive order stand. Justice Roberts joined the anti-constitutionalists on the Court in that ruling.

Justice Neil Gorsuch wrote the opinion
for Bostock v. Clayton County, GA
image from Wikipedia

The one we’re talking about today, Bostock v. Clayton County, Georgia, concerns the "ordinary meaning" of Title VII, written in 1964, concerning categories of discrimination in employment. The 6-3 Court opinion was written by “textualist” Gorsuch. What a disappointment! 

There are three cases included in the decision, all related to long-time employees being fired for being either homosexual or transgender.

That they were fired at least in part for these reasons is not in dispute. And I am not going to spend much time on the desirability of the outcome of the case; there are multiple states where laws have been written disallowing firing based on these reasons.

The question is, simply, what does Title VII say? As Justice Gorsuch, writing for the majority, says in the opening of his opinion:

This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations.

With this in mind, our task is clear. We must determine the ordinary public meaning of Title VII’s command that it is “unlawful… for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin[i].” To do so, we orient ourselves to the time of the statute’s adoption, here 1964, and begin by examining the key statutory terms in turn before assessing their impact on the cases at hand and then confirming our work against this Court’s precedents.

We get agreement with that from Justice Kavanaugh, with the additional rationale for this practice:

Judges adhere to ordinary meaning for two main reasons: rule of law and democratic accountability. A society governed by the rule of law must have laws that are known and understandable to the citizenry. And judicial adherence to ordinary meaning facilitates the democratic accountability of America’s elected representatives for the laws they enact. Citizens and legislators must be able to ascertain the law by reading the words of the statute. Both the rule of law and democratic accountability badly suffer when a court adopts a hidden or obscure interpretation of the law, and not its ordinary meaning.

So we think at least all the “conservative” justices understand the process. Did the ordinary public meaning, in 1964, of discrimination because of an individual’s sex mean the same thing as discrimination because of a person’s sexual orientation or sexual identity? Since the answer to that is clearly no, and is still no today, as Gorsuch himself admits, and as is pointed out with masterful clarity in the dissents by Justices Alito, and Kavanaugh’s, you expect certain things.

You expect the Court to say, since the law was not written to include these additional concepts, and since Congress has had ample opportunities to change the law or to show that it was interpreting it differently from the ordinary public meaning when written, it is not in the power of the Court to change the clear meaning, regardless of personally desired outcomes.

Instead, we get a tortured invention of what the text “says.”

Justice Gorsuch says,

By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.

Let’s set aside the transgender portion for a moment. Gorsuch is saying an employer is only against the man’s attraction to men because he is a man, because you’re fine with a woman being attracted to men—so the difference is their sex.

Protesters on this case October 8, 2019
image from Wikipedia

Both Justices Alito (with Justice Thomas joining in his dissent) and Kavanaugh show the short-sightedness of that assumption.

Justice Alito does it graphically, strikethroughs included:

In an effort to prove its point, the Court carefully includes in its example just two employees, a homosexual man and a heterosexual woman, but suppose we add two more individuals, a woman who is attracted to women and a man who is attracted to women. (A large employer will likely have applicants and employees who fall into all four categories, and a small employer can potentially have all four as well.) We now have the four exemplars listed below, with the discharged employees crossed out:

Man attracted to men

Woman attracted to men

Woman attracted to women

Man attracted to women

The discharged employees have one thing in common. It is not biological sex, attraction to men, or attraction to women. It is attraction to members of their own sex—in a word, sexual orientation. And that, we can infer, is the employer’s real motive.

Justice Kavanaugh illustrates with a hypothetical:

Consider the employer who has four employees but must fire two of them for financial reasons. Suppose the four employees are a straight man, a straight woman, a gay man, and a lesbian. The employer with animosity against women (animosity based on sex) will fire the two women. The employer with animosity against gays (animosity based on sexual orientation) will fire the gay man and the lesbian. Those are two distinct harms caused by two distinct biases that have two different outcomes. To treat one as a form of the other—as the majority opinion does—misapprehends common language, human psychology, and real life.

Justice Gorsuch claims that it is impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, so sexual orientation is contained within the idea of “on the basis of sex.” The dissenting justices quickly and easily point out the fallacy.

Justice Alito writes:

If “sex” in Title VII means biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender.

And,

Something that is not sex discrimination cannot be converted into sex discrimination by slapping on that label. So the Court cannot prove its point simply by labeling the employer’s objection as “attract[ion] to men.” Rather, the Court needs to show that its label is the correct one.

Justice Alito calls the Court’s decision arrogant, because it claims that apparently everyone else since 1964 was too stupid to see the “ordinary public meaning” written right there in the law.

Justice Alito attacks the stupidity charge with a verbal eyeroll:

The Court seemingly has the same opinion about our colleagues on the Courts of Appeals, because until 2017, every single Court of Appeals to consider the question interpreted Title VII’s prohibition against sex discrimination to mean discrimination on the basis of biological sex[ii]. And for good measure, the Court’s conclusion that Title VII unambiguously reaches discrimination on the basis of sexual orientation and gender identity necessarily means that the EEOC failed to see the obvious for the first 48 years after Title VII became law[iii]. Day in and day out, the Commission enforced Title VII but did not grasp what discrimination “because of… sex” unambiguously means[iv].

Justice Kavanaugh puts numbers to it:

Because judges interpret the law as written, not as they might wish it were written, the first 10 U. S. Courts of Appeals to consider whether Title VII prohibits sexual orientation discrimination all said no. Some 30 federal judges considered the question. All 30 judges said no, based on the text of the statute. 30 out of 30.

In the face of that kind of clarity, the Court ought to be able to read the law as written and rule as written—and leave any desired changes to the Legislative Branch to accomplish.

One advantage to having the Legislature do their own work is that, theoretically, they have the opportunity to debate, to explore different viewpoints on an issue, and to address possible consequences of any legislation. Justice Alito points out several effects this Court does not address, and offers comments for each. Here is his list:

·         “[B]athrooms, locker rooms, [and other things] of [that] kind.”

·         Women’s sports.

·         Housing.

·         Employment by religious organizations.

·         Healthcare.

·         Freedom of speech.

·         Constitutional claims.

One of my key concerns is religious freedom. Justice Alito says this about the employment by religious organizations question:

This problem is perhaps most acute when it comes to the employment of teachers. A school’s standards for its faculty “communicate a particular way of life to its students,” and a “violation by the faculty of those precepts” may undermine the school’s “moral teaching[v].” Thus, if a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment. Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment.

I find Justice Gorsuch’s assertion that “An individual’s homosexuality or transgender status is not relevant to employment decisions” offensive. Who are these justices that they get to decide what is or is not relevant to an employer’s decision?

Particularly in a religious school setting the relevance is obvious. But it is also relevant for a religious person who is an employer and may not want a person involved in a particular behavior to represent his business. Suppose such an employer does not employ persons who engage in sex outside of marriage, but today’s Court rules that he must employ such persons if they engage in homosexual sex. Why should the Court have the power to dismiss the relevance of sin to an employer in his hiring practices? At what point do they have the power to decide that honesty is irrelevant, or theft, simply because these are moral considerations?

Consider the transgender case involved in the decision. A family-owned funeral home company fired a biologically male employee who informed them that, after returning from an upcoming vacation time, he would be living and working full-time as a woman. Is that relevant to the employer? To some it might not be, especially if the employee is good at computer coding or at some technical job that doesn’t involve interfacing with the public. But a funeral home is a particular type of business. It deals with people at a sensitive and emotional time. It offers care and comfort. The owner of such a business might sense that forcing discomfort on their clients would go against their purpose and the image they are trying to present. But Justice Gorsuch seems to know, offhand, that the employee’s transgender status is irrelevant to the funeral home’s hiring decisions.

While it may not always be the case, the appearance of many transgender individuals is jarring, confusing, and discomforting. What might bother the business owner is not that a biological male is doing something a biological female could do without a problem, as the Court’s opinion asserts; it is that the biological male will still be a biological male (as sex is defined in the statute) but will be forcing the employer—as well as its sensitive clients—to treat that biological male as the sex that he is not. A biological female dressing as a female is not asking anything discomfiting of either employer or client.

Here we face one of the underlying issues of Title VII in the first place, something libertarians have pointed out all along: A person’s business is their property, and they are entitled to do what they want with that property, including whom they hire and whom they serve. Title VII overrides their natural right.

What if this law had never been enacted? I don’t know. I want to think that we could trust the American people to make choices that would not encourage a business to continue engaging in actual bigoted activities. Society was moving naturally in that direction in most areas, and pressure would have been felt, I think, in those Southern Democrat areas that continued racist practices, for example. Such pressure could have brought about the wanted changes—organically and thoroughly in a way that coercion cannot.

But I could be wrong. I did not live where Jim Crow laws existed. I’ve often been shocked to read of things that were thought normal or acceptable by otherwise decent Americans in those places. Maybe something actually needed to be done by legislation. But the cost of doing it by the coercion of law is something we’re seeing now: no trust that people’s hearts have changed.

Doing the statutory change enacted by the Court in this case is not going to engender better feelings. It is likely to do the opposite—which is what happens any time the government—or any of its branches— steps beyond its proper role.

Look especially to religious freedom. Justice Kennedy tried to say, “That’s not going to happen,” when he ruled as he did in Obergefell. But since that ruling there has been an all-out legal assault on religious people and organizations that don’t fall in line.

Bad Supreme Court rulings have great power to harm Americans. And the remedy would be so simple: justices should read the ordinary meaning of the law.

---

[i] I am including the citations as written: §2000e–2(a)(1).

[ii] See Part III–C, infra.

[iii] The EEOC first held that “discrimination against a transgender individual because that person is transgender” violates Title VII in 2012 in Macy v. Holder, 2012 WL 1435995, *11 (Apr. 20, 2012), though it earlier advanced that position in an amicus brief in Federal District Court in 2011, ibid., n. 16. It did not hold that discrimination on the basis of sexual orientation violated Title VII until 2015. See Baldwin v. Foxx, 2015 WL 4397641 (July 15, 2015).

[iv] See Part III–C, infra.

[v] McConnell, Academic Freedom in Religious Colleges and Universities, 53 Law & Contemp. Prob. 303, 322 (1990).

Sincerely Held Religious Belief

[N]o bureaucratic judgment condemning a sincerely held religious belief as “irrational” or “offensive” will ever survive strict scrutiny under the First Amendment. In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise.

—Justice Neil Gorsuch

As if I didn’t write a long enough post on Monday about the Masterpiece Cakeshop ruling, I thought I’d add some more.

On Monday we dealt mostly with Kennedy’s majority opinion. But there were actually four concurring opinions: Kennedy’s (joined by all but Ginsburg and Sotomayor), Kagan (joined by Breyer), Gorsuch (joined by Alito), and Thomas (joined by Gorsuch). Plus, of course, there was the dissenting opinion.

Justices ruling on Masterpiece Cakeshop v. Colorado Civil Rights Commission,
image from SCOTUSblog

There’s something of an argument going on between Justice Kagan and Justice Gorsuch. The SCOTUS world isn’t like much of anything else we have. These two differing people don’t sit in a room and discuss or debate one another. They ask different questions during oral arguments, which reveals something of what they’re thinking. But it isn’t until the written opinions that you see them challenging the opinions of others.

Justice Kagan agrees that the Colorado Civil Rights Commission was wrong in their anti-religious approach to the baker. But their tone, and approach, is pretty much all she finds wrong.

There’s a comparison in this case with the Jack case—a man who requested a cake with an anti-same-sex marriage message written on it, including a Bible verse, and was turned away by three bakers, in which case the CCRC ruled that the bakers did not have to create a cake with a message against their beliefs. Kagan says the difference is that they would not have made such a cake for any customer. But she claims Phillips, the owner of Masterpiece Cakeshop, does make wedding cakes for anyone but same-sex customers.

Justice Kagan writes,

The different outcomes in the Jack cases and the Phillips case could thus have been justified by a plain reading and neutral application of Colorado law—untainted by any bias against a religious belief.

There’s a long footnote comment at that point (I’ve left out the citations):

image from Amazon.com

JUSTICE GORSUCH disagrees. In his view, the Jack cases and the Phillips case must be treated the same because the bakers in all those cases “would not sell the requested cakes to anyone.” That description perfectly fits the Jack cases—and explains why the bakers there did not engage in unlawful discrimination. But it is a surprising characterization of the Phillips case, given that Phillips routinely sells wedding cakes to opposite-sex couples. JUSTICE GORSUCH can make the claim only because he does not think a “wedding cake” is the relevant product. As JUSTICE GORSUCH sees it, the product that Phillips refused to sell here—and would refuse to sell to anyone—was a “cake celebrating same-sex marriage.” But that is wrong. The cake requested was not a special “cake celebrating same-sex marriage.” It was simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike.

Let me clarify here, to help out Justice Kagan. A marriage—and the ceremony and celebration surrounding it, called a wedding—is a particular thing. It has been that particular thing for thousands of years. The particular thing that is defined as marriage is a contract between a man and a woman indicating that their union is permanent, includes the human reproductive behavior that can lead to offspring, and in most cultures is exclusive. They make the contract before the community—by way of church and law most usually—thereby allowing the community to expect from them the social benefits that marriage provides.

A ruling by five justices, legalizing same-sex marriage by fiat, does not change the definition of actual marriage; it cannot. The power to do so was never granted to those judges by the people, nor by their law, the Constitution. Nor could a majority of people voting to make it so among a particular people change the definition of what marriage actually is.

Add to that the belief that the original definition of marriage was ordained by God, and to the believer the very attempt to change it becomes immoral.

As Justice Thomas says in his concurring opinion:

Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids.

To clarify further, it is not homophobic, bigoted, or otherwise evil to believe in the real meaning of marriage. There is nothing inherently anti-homosexual about that. Homosexuals have always been allowed to marry a person of the opposite sex, who is not married to someone else, who is not a close relative—just like heterosexuals. It’s just that they are now expecting all cultures the world over to throw out real marriage and redefine it as something akin to “in a current sexual relationship with a person of my choosing.” And then they choose someone to whom they cannot, by definition, marry.

For someone who made a covenant to a spouse and is living that out decade after decade, to be told my covenant is now transformed into nothing more than an announcement of who I’m currently choosing to hook up with—that is utterly disrespectful. Yet you’re not getting gay-hate parades. You’re not getting gay persecutions. You’re getting quiet business owners who simply want to go about their businesses while living their religions—and they’re being persecuted and prosecuted for it.

In the end, we know the meek will inherit the earth. In the meantime, if we’re truth seekers, we should seek justice for not just one baker, but for all the other marriage-honoring people who are being persecuted.

So, back to this case. Justice Gorsuch is correct: a “cake celebrating same-sex marriage” is not the same as a “wedding cake.” They have the same ingredients, but not the same intent.

The same-sex couple would have been free to purchase a generic wedding cake, already produced by the baker (or, rather, whatever was available on the day they wanted it), and they could take it and use it for whatever purpose they chose, without ever burdening the baker with knowledge or responsibility for how the confection would be used.

But that is not what they asked. They asked for a custom designed and produced cake for their same-sex “wedding” celebration. Phillips told them he does not design and create cakes for such an event. He was asked by the mother of one of the couple, and he would not sell such a service to her either, even though she was heterosexual. It wasn’t about the sexual orientation of the customers—whom he was willing to serve with any of his other products. It was about his unwillingness to use his God-given talents to celebrate an event that, in his view, is not a real wedding, and further is offensive to God.

Kagan’s view can only be correct if a same-sex “marriage” is self-evidently exactly equal to an actual marriage. At the time of the dispute, not even the state of Colorado saw it that way.

During the oral arguments during Obergefell, Justice Kennedy was fully aware of the danger to religious people, who would not change their beliefs simply because a ruling made a legal path open to a certain group of people. And he seemed to at least give lip service to the importance of protecting religious liberty.

And to be fair, the Court has ruled unanimously several times in recent years to protect religious liberty. It’s just that there’s always this rather arbitrary “unless the government has a compelling interest” threat hanging overhead. In this case, fortunately, we still have 7 of the 9 justices willing to recognize the need to support religious freedom, although the reasons of at least 3 of them feel rather tentative, more like “don’t be overtly anti-religious.”

In the absence of Justice Scalia, I’m happy that we have yet another justice who is not just clear, but enjoyable to read. There’s this section of Justice Gorsuch’s concurring opinion in which he uses a Goldilocks metaphor in referring to the changing standards used by the Colorado Commission:

Goldilocks, image from here

At its most general level, the cake at issue in Mr. Phillips’s case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; understanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right. The problem is, the Commission didn’t play with the level of generality in Mr. Jack’s case in this way. It didn’t declare, for example, that because the cakes Mr. Jack requested were just cakes about weddings generally, and all such cakes were the same, the bakers had to produce them. Instead, the Commission accepted the bakers’ view that the specific cakes Mr. Jack requested conveyed a message offensive to their convictions and allowed them to refuse service. Having done that there, it must do the same here.

Any other conclusion would invite civil authorities to gerrymander their inquiries based on the parties they prefer. Why calibrate the level of generality in Mr. Phillips’s case at “wedding cakes” exactly—and not at, say, “cakes” more generally or “cakes that convey a message regarding same-sex marriage” more specifically? If “cakes” were the relevant level of generality, the Commission would have to order the bakers to make Mr. Jack’s requested cakes just as it ordered Mr. Phillips to make the requested cake in his case. Conversely, if “cakes that convey a message regarding same-sex marriage” were the relevant level of generality, the Commission would have to respect Mr. Phillips’s refusal to make the requested cake just as it respected the bakers’ refusal to make the cakes Mr. Jack requested. In short, when the same level of generality is applied to both cases, it is no surprise that the bakers have to be treated the same. Only by adjusting the dials just right—fine-tuning the level of generality up or down for each case based solely on the identity of the parties and the substance of their views—can you engineer the Commission’s outcome, handing a win to Mr. Jack’s bakers but delivering a loss to Mr. Phillips. Such results-driven reasoning is improper.

Justice Thomas ends his concurring opinion with a reminder that he told us so:

In Obergefell, I warned that the Court’s decision would “inevitabl[y]… come into conflict” with religious liberty, “as individuals… are confronted with demands to participate in and endorse civil marriages between same-sex couples.” This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy” [Alito]. If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.

The battle is being waged. I hope the meekly religious can hang on until it’s time to inherit the earth.