“No Gays Allowed”
Sign now reads “We reserve the right to refuse service to anyone who would violate our rights of freedom of speech & freedom of religion.” Tenn. Storefront, USA, June 7, 2018
It is predictable that there will be more such signs. I’m sure that Ginsberg and Sotomayor had this discussion with Breyer and Kagan – at least I hope they did. And if you’re a lawyer or a court watcher and you read this and you say such a conversation would be inappropriate, you have forgotten the history of the court and its true role in our country.
I was told on Facebook the other day that it was “ridiculous” to suggest that this decision was very revealing about the justices, and that I was disregarding the narrowness and temporary nature of the Majestic decision.
I was talking about Kagan and Breyer in particular. To me, as much as anything else, this decision is an explicit example of how the Supreme Court should not be stacked with only appellate lawyers and judges.
The Supreme Court should also have politicians, mayors, and -God forbid – defense lawyers, all of whom actually understand a little bit about what people who do not have, e.g., savings accounts, go through in our society. This was the case with Earl Warren, who had been the governor of California. He brought us Brown v. Bd. of Education (1954).
He understood that the Court exists to protect the Constitution’s ability to mete out equal justice under law. It is not there to find self-satisfaction, self-preservation, nor even as venue for the pursuit of arcane legal strategies that may be finely drawn on paper in the abstract, but are about to fall victim to the vicissitudes of life span of justices or unexpected political disasters. Ultimately, it is about justice for people, not accurately deciding how many angels fit on a particular pin; justice delayed is justice denied.
Part of that responsibility is to consider fully the immediate and long-term societal implications of decisions, i.e., not to merely come to intellectually impressive slices of jurisprudence – even well-meaning ones. Justice Stevens understood this. I’m not sure the present day Court fully does.
This is where life-experience comes into play. The Court has never been so socially narrow in terms of professional background. We are about to experience the consequences.
Justice Frank Murphy, a former Mayor of Detroit and Governor of Michigan, is an unsung civil rights and civil liberties hero who was the sole justice on the right side of Korematsu and an early integrationist.
And yet…
The decision is that government can’t implement a facially-neutral anti-discrimination law where the government actors specifically admit to targeting religious individuals who disagree because they are religios individuals who disagree. That is pretty much exactly what the Colorado commission did.
So, the decision was cited, yesterday, in Arizona, to uphold a similar non-discrimination law in similar circumstances, except that those charged with establishing, implementing, and enforcing the law did not announce that their goal was to go after religious people and their BS beliefs. It doesn’t seeem like the votes are there on this Court to abolish all civil rights law on “free exercise” grounds.
The other interesting thing is that it seems pretty clear that when a government official (like, say, the President of the United States) bluntly admits that a “facially neutral” law is actually intended to target people on the basis of their religion, this Court considers those statements to be conclusive.
Sounds like the legal issue is that LGBT persons are not a protected class the way, say, racial minorities are. Procedurally that should be an easy fix, but politically right now I’m not sure.