Category: Religion

The Cake Baking case

The Cake Baking case

This week’s segment of Cline on the Constitution.

 

“We Reserve the Right to Refuse Service to Anyone.”

 

When Americans think of Civil Rights, they often think of the Constitution.  That is okay.  But it is inaccurate.

 

Our most fundamental rights are enshrined in the Constitution and Bill of Rights.  There is, however, a distinction between the Bill of Rights and Civil Rights legislation. The Protections contained in the Bill of Rights are directed against Government Action. Civil Rights laws, on the other hand, regulate Private Conduct.  For example, being denied access to a government building may violate the Bill of Rights.  Being denied accommodations at a privately owned inn or restaurant involves Civil Rights law not the Constitution.

 

Civil Rights laws are not part of the Constitution.  They are laws which, like other laws, are passed by the Congress and State Legislatures or, increasingly, local government entities such as city councils or school boards. And as such, unlike the Bill of Rights they can be changed by the same governmental body that passed the law in the first place.

 

When in conflict with the United States Constitution, Civil Rights laws are invalid.  The reason being because the United States Constitution has a Supremacy clause.  It is the Supreme Law of the land. No federal, state or local ordinance, even if it is in the nature of Civil Rights legislation, may violate the United States Constitution nor a citizen’s rights enshrined in our Bill of Rights.

 

The primary Federal Civil Rights Laws were passed by Congress in 1964.  The authority to pass the laws is based upon the Constitutional grant to Congress of the power to regulate Interstate Commerce.

 

What this means is that if it can be rationally argued that conduct by a private business “affects” Interstate Commerce then Civil Rights laws that regulate the conduct is constitutional.

 

Two examples may help clarify. We all remember that during the civil rights movement, one of the tactics used to end segregation in transportation was to have teams of Black people ride buses throughout the South.   State enforced public-accommodations laws restricting where Blacks were allowed to ride in buses were thereby challenged.  Because the private business of busing could be directly shown to “affect” interstate commerce even if the bus never crossed state lines the Civil Rights legislation prohibiting the discrimination by private bus companies was constitutional. On the other hand, attempts by States to regulate gun possession by enforcing gun free zones near schools could not be justified as “affecting” interstate commerce and were struck down by the Supreme Court as violative of the Second Amendment.

 

Besides the Federal Civil Rights laws, there is a whole other layer of Civil Rights laws which have grown up over the last several decades.  The first level is at the State level.  Though some of the States have long histories of acting to prohibit discrimination, their laws were generally limited to discrimination based on “race, color or previous condition of servitude.”

 

Modernly, there are not only State Civil Rights laws, there are County Civil Rights laws and even City Civil Rights laws.  Almost all are directed toward outlawing discrimination by private businesses against groups of persons.

 

And the list of groups has expanded over the last several decades.

 

Among others, modern civil rights laws address discrimination as applied to race, gender, creed, ethnic origins, religious minorities, sexual orientation, marital status, ancestry, disability, illegitimacy and the newest category, gender identity.

 

The list expands or contracts depending on the jurisdiction.

 

And the frontier is being pushed even further.  California’s legislature is in the process of passing a new Civil Rights law requiring half of all corporate board of directors of private business be women. Of course, if they can require such a quota for women, how long will it be before other groups demand equal representation on corporations doing business in the State?

 

What makes for interesting juxtapositions of this tome of Civil Rights legislation at the state and local level is the Constitution of the United States. Actions to enforce civil rights laws, be it by court or commission, is Government Action and, therefore, if the enforcement action impinges on an individual’s rights under the Bill of Rights, the matter is brought full circle.  The question is joined.  Does the Civil Rights law violate the Constitution?

 

This is where a man by the name of Jack Phillips found himself.  Mr. Phillips owns and operates a bakery. He is a devout Christian.  He operates his business according to Christian principles even if it means forgoing income.  He is closed on Sundays, he pays his employees higher than minimum wage, he gives them loans of money in time of need, he refuses to bake cakes containing alcohol, he refuses to bake cakes with racist or homophobic messages or cakes criticizing God and refuses to bake cakes celebrating Halloween even though Halloween is one of the most lucrative seasons for bakeries.

 

Two men asked him to prepare a wedding cake in celebration of their marriage.  He declined.  He offered to prepare and sell them any other baked goods they desired, including birthday cakes, but to create the cake celebrating a marriage of a same sex couple violated his religious beliefs that marriage is a sacred union between one man and one woman. To create such a cake celebrating the opposite of what he believed, he argued, violated his First Amendment rights, both as to the First Amendment guarantee of the Free Exercise of one’s religion and Freedom of Expression.

 

His argument brought to the fore, two rights that are superior to any state or local civil rights ordinance: Freedom of Religion and Free Speech.

 

The State of Colorado made short shrift of the Mr. Phillip’s religious beliefs and ruled he violated the couple’s rights by not baking the cake. One commissioner went so far as to equate Mr. Phillips refusal to bake a cake to debunked justifications for slavery and the holocaust. He said, “and to me it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others.”

 

The Colorado commission’s reprehensible treatment of Phillips gave Justice Kennedy a gift.

 

Justice Kennedy is the author of the most important gay rights cases of the era, including the Obergefell case banning restrictions on Gay Marriage.

 

And on his way off the court, he needed to find a way to uphold Phillips without endangering the progress in jurisprudence regarding gay rights he had led the way in engendering.

 

In a 7-2 decision written by Kennedy, the court found for Mr. Phillips.  However, as I said in my last blog entry, they essentially punted. They didn’t find that Mr. Phillips rights were violated by requiring he bake the cake or be fined.

 

Rather, in his majority opinion Kennedy found that the Colorado commission’s treatment of Phillips demonstrated an “unconstitutional hostility to his religious beliefs.”  He went on to fashion some new rules, which may or may not survive the test of time.  But he did not address the Free Exercise or Freedom of Speech issues.  He essentially kicked the can on those issues down the road to be decided by a future Supreme Court.

 

As to the Free Exercise clause, the court is walking a tight rope of their own making.  On the one hand, they fear that if they allow people to assert their religious beliefs in denying service to identifiable groups it would undermine all civil rights laws that seek to govern private conduct. A return to the back of the bus as it were. On the other hand, does government get to make the decisions on what is a valid religious belief and tell citizens they are not free to exercise their religion as they choose? The Constitution explicitly says No.

 

What is most interesting about the case and what has not received a lot of public discussion, but which was very much on the minds of many of the Justices as reflected in the concurring opinions penned by Alito, Gorsuch, and Thomas is what I believe is a major freedom of expression issue and what the court will have to address in the near future. And that is “Compelled Speech.”  It has import in many areas.  From college campuses enforcing speech codes as if they were “re-education camps” to the large internet companies policing points of view.

 

As applied to the Baker, the court acknowledged that Mr. Phillips considered the cakes he made as works of art.  As such they were “expressive conduct” which is protected under the First Amendment.

 

Additionally, as I outlined in my last blog, requiring speech approved by the government is just as violative of the first amendment as restricting protected speech.

 

For example, the court referenced a previous case in which the Court struck down an ordinance requiring the organizers of a Saint Patrick’s Day parade to include a unit celebrating gays and bisexuals.

 

The court explained that they rejected the notion that governments can mandate thoughts and statements acceptable to some groups or indeed all people, as the “antithesis of free speech.” As one of the concurring opinions stated, “One important manifestation of the principle of free speech is that one who chooses to speak may decide what NOT to say and tailor the content of his message as he sees fit.”

 

Colorado attempted to justify requiring the creation of the cake as compelling Phillip’s speech to prevent him from “denigrating the dignity” of same sex couples, “asserting their inferiority” and subjecting them to “humiliation, frustration, and embarrassment.”

 

One justice wrote, “These justifications are completely foreign to our free-speech jurisprudence.” He went on to say, “States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.” And further, “it is not the role of the State or its officials to prescribe what shall be offensive.”

 

The Justice hit the nail on the head when he quoted an earlier case, “If the only reason a public-accommodations law regulates speech is “to produce a society free of biases against protected groups, that purpose is decidedly fatal to the law’s constitutionality, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression.”

 

I foresee many other instances where the Bill of Rights is going to come into conflict with the increasingly aggressive use of State and local ordinances to say nothing of school rules designed to stifle unwelcome opinions by requiring a rote declaration of allegiance to principles dictated by those in authority.

 

Ultimately, such laws harm rather help the cause of gay rights as well as other civil rights by oppressing those who may disagree with what we believe.

 

Stay tuned.

 

But about those signs “reserving the right to refuse service to anyone.”?

 

Forget it.

 

For other articles on the Constitution as well as writings by Phil Cline, visit philcline.com

 

 

 

 

 

 

 

 

 

Speech Issues on Abortion

Speech Issues on Abortion

This week’s segment of Cline on the Constitution continues the review of major cases decided by the Supreme Court in the last term.

 

The court issued opinions on two cases involving Freedom of Speech and Association.

 

In one case the Court affirmed an important principle regarding Free Speech.  In the other they punted.

 

As to the first case, California’s steady drift toward becoming a complete “Nanny State” resulted in a law directly targeting, appropriately enough, anti-abortion pregnancy Centers.

 

In National Institute etc. v Becerra, operators of Pro-Life clinics challenged a State Law requiring that they post information on how to get no cost state funded abortions. The law compelled these clinics to speak against, indeed advertise, the very thing they abhor. It is rather Kafkaesque to, by force of law, require people to advertise for a state funded procedure that is anathema to their core beliefs on religion, health and morality.

 

And that is aside from the fact we were given yet another law, which assumes a free people, are inept and incompetent. In a state like California where obtaining an abortion is literally free on demand, and the State puts out endless reams of materials about to how and where to get an abortion, the “ninny nannies” in the legislature and Governor’s mansion harbor the inchoate suspicion that a woman who wants one might not be able to figure it out how to get one.

 

The second case is the infamous “Masterpiece Cakeshop” case which presented the issue whether the Court would be willing to uphold a governmental decision that someone’s religious beliefs and practices must be cast aside in service to an ever-increasing alphabet of offended persons who can’t be expected to walk across the street to another merchant to buy a damn wedding cake.  The case centers on the intersection of both Freedom of Religion and Freedom of Speech.  I will have more to say about this case next week.

 

Now, back to the California abortion advertiser case.  In an attempt to uphold the law the Ninth Circuit Court of Appeals, those legendary masters of legal legerdemain, attempted to invent a new category of speech. They called it “professional speech.”  This new category would give federal courts the means to ignore the usual requirements that “content based” laws that target speech based upon content have to pass strict scrutiny tests.  It would mean government would be free to regulate such speech as they see fit, ban the speech or, like in this case, even require it.

 

The Supreme Court rightly told them there was no such thing as “Professional Speech” and ruled they couldn’t do that.

 

Justice Clarence Thomas wrote the majority opinion, but it was Justice Kennedy who succinctly stated the trenchant issue.

 

“This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.”

 

“For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions.”

 

“This compels individuals to contradict their most deeply held beliefs, grounded in basic philosophical, ethical, or religious precepts . . . “

 

The minority opinion written by Justice Stephen Breyer worried that the majority’s opinion might lead to challenges of “informed consent” rules and regulations.  For example, by endangering laws requiring medical professionals to give enough information that the person consenting to a procedure is doing so with full knowledge of the risks and benefits.  That, however, is more of a civil liability avoidance procedure than a constitutional principle.

 

The basic Free Speech principle is that if government cannot restrict a person’s freedom of speech, can they require a people to say something they disagree with simply because the government has decided it might be necessary to protect someone it assumes lacks the intelligence or responsibility to get out and get what they want themselves.

 

The opinion rightly points out that if government determines that a message needs to get to out and they have a rational basis for doing so, then, they have a number of way of disseminating the information, including advertising, themselves.  What they can’t do, is required others to communicate that message for them.

 

Lastly, one can be supportive of the landmark Casey case that recognizes a woman’s right to choose to a terminate a pregnancy under certain circumstances without the government unfairly burdening that choice yet be concerned when the government passes laws as it did here.  When it becomes so involved in advocacy of a position that it violates constitutional principles put in place to protect one’s freedom to follow sincerely held beliefs, government has gone where they may not go.

 

For other writings and articles by Phil Cline, visit philcline.com

 

Religious Tests Under the Constitution

Religious Tests Under the Constitution

Religious Tests Under the Constitution

 

California Senator, Dianne Feinstein, abetted by Senate Colleagues recently demeaned the Catholic faith of a nominee to the Seventh Circuit Court of Appeal.

 

The nominee, Amy Barrett, is a professor of law from Norte Dame. She has impeccable legal, intellectual and educational credentials and once clerked for Supreme Court Justice Antonin Scalia. At her confirmation hearing, she was subjected to an aggressive line of questioning concerning her religious beliefs as a practicing Catholic. In one particularly offensive exchange, Senator Feinstein scolded her and said, “When you read your speeches the conclusion one draws is that the dogma lives loudly within you.”

 

U.S. Bishops condemned the comments as “anti-Catholic bigotry” that reveal “a thinly veiled anti-Christian bias.” The President of Norte Dame, John Jenkins, said it was “chilling” to hear from a United States Senator that one’s religion might disqualify them from service as a federal judge.

 

Senator Feinstein’s motivation in examining a nominee’s religious views is no secret. She wants to know if the nominee agrees with the religious teachings of her church regarding the morality of abortion or homosexual activity. She wants to know if the candidate would uphold or overturn Roe v Wade (abortion) or Lawrence v. Texas (gay sexual activity) because of her religious beliefs. And if the nominee does not answer by expressly rejecting such religious teaching she risks having her nomination voted down and being denied the public office she seeks.

 

This is not the first instance in our modern history that the faith of individuals wishing to serve in public office has been attacked by Senators.

 

At one time not so long ago the questioning of judicial nominees by Chuck Schumer, Dick Durbin and others, became so egregious that a public information campaign was launched under the title “Catholics need not apply!” In reaction a coterie of Catholic Senators, led by Pat Leahy, proposed a Senate rule prohibiting inquiry into a person’s religious beliefs. The rule failed to come to a vote. Even, John Roberts, our current Chief Justice, at his confirmation hearing, was aggressively examined under oath about his Catholic faith. And only recently, Socialist Senator Bernie Sanders attacked Russell Vought, a nominee to the post of budget deputy director over his Christian faith.

 

Does such questioning of a nominee’s religious beliefs violate the Constitution?

 

Article VI, Clause 3 states, inter-alia, “. . . . all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to Support this Constitution, but no religious Test shall be required as a Qualification to any Office, or public Trust under the United States.”

 

While Senators may question any nominee on any subject outside the committee room, it is different when the person is placed under oath before being questioned. Placing them under oath moves the examination of their religious beliefs into the realm of a religious test which the Constitution forbids.

 

The founders were very familiar with religious oaths and tests. Oaths confirming or rejecting selected religious views were required of anyone seeking public office in merry old England as well as in many of the states at the time the Constitution was written. Those tests were used to protect state favored churches. For example in England an act of Parliament passed in 1672 required all persons who wished to hold public office to take an oath concerning the sacrament that effectively precluded Catholics from serving. Many of the States in pre-revolutionary America had similar provisions. For example the state of New York required an oath disavowing allegiance to a foreign prince, to wit, the Pope.

 

And Oaths meant something to the founders. To be bound by an oath was a solemn undertaking. The promise to keep one’s word had real meaning. To break a covenant either with God or the State was a serious breach of morality.

 

The inclusion of the “no religious test” phrase in the same sentence in Article VI as the requirement of an oath or affirmation to support or defend the constitution is significant. Because the phrases are separated by the conjunction “but” means that the “no religious test” clause is an exception to the oath to defend and support the constitution. It means government may not require an oath concerning religious beliefs as a condition of taking a public office or judgeship. And placing someone under oath and attempting to force them into making a choice of rejecting the teachings of their church or forfeiting the opportunity to take a public office or judgeship is a religious test and violates Article VI of the U.S. Constitution.