Month: August 2018

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

 

Cline on the Constitution-Danger of One Person Rule

Cline on the Constitution-Danger of One Person Rule

This Week’s segment of Cline on the Constitution.

 

The Danger of One Person Rule

 

Justice Brett Kavanaugh’s nomination is currently being navigated through the shark infested waters of the United States Senate populated with man eaters hungry to attack, chew up and dismember someone who, by all accounts, is a good and honorable family man with impeccable legal credentials.

 

As usual the “Chicken Little” corps on the left predict the end of civilization as we know it should he be confirmed. That isn’t true.  However, can we expect an impact an on direction of the court?  Sure.  And it is prudent to consider how it may affect the direction of the Court, but without all the folderol.

 

As I contemplate potential changes in the jurisprudence of the Supreme Court, I begin with of the warnings deceased Justice Antonin Scalia gave about how modernly the Supreme Court and the entire federal judiciary is moving the country away from democratic rule. Although it can be seen in rulings and orders of Federal Judges across the country, the Supreme Court’s just competed term provides the most visible example.

 

It is plain from reviewing the cases that the Supreme Court is severely split along ideological lines. It’s may be the worse it been since the Great Depression.  This isn’t the fault of either Justice Kavanaugh nor President Trump.  It has existed for some time. And though historians might disagree, most lawyers with any sense of political realities know why.  It is the result of the Federal Judiciary throwing off the bonds of traditional judicial restraint.

 

I will in future blogs analyze each of the major cases decided in the last term, but I first wanted to take an Eagle’s eye view especially in light of the unbridled rage and hate speech directed at the latest nominee to the Supreme Court.

 

In the just completed term there were 19 split decisions by the United States Supreme Court.  In each case the vote was divided 5 to 4.  These cases involved momentous blockbuster issues. Cases on Immigration, National Security, Voting Rights, Gay Rights, Religious Freedom, Compelled Speech, Abortion, Union Shops, Cell Phone Privacy, and Taxation of Internet Companies like Amazon were all decided 5 to 4. Pause here a moment and consider if the vote is 5 to 4, then the vote of one person decided each of these issues for the rest of us, all 350 million, give or take.  Not a representative Congress, not a nationally elected President. Rather, one person. And an unelected one at that.

 

Of those 19 cases, Justice Kennedy whom Justice Kavanaugh will be replacing was a deciding vote or in the majority in all 19.

 

To be fair, some of the majorities in the 5-4 decisions had surprising alliances.  Justice Gorsuch, the newest justice and one who is identified with the conservative wing of the Court joined his more liberal colleagues to strike down a deportation order because the law written by Congress was unconstitutionally overbroad.  Similarly, Chief Justice Roberts joined the liberal wing while liberal Justice Ginsberg voted with the conservative wing in rewriting the state taxation powers over internet companies like Imperial Amazon.  But those few exceptions aside, by in large, the conservative/liberal split was maintained throughout the term.

 

The number of 5-4 decisions on the important issues of the time, is an indicator that there may something wrong with our democracy.  If the vote of the most learned of our men and women of the law is so evenly split, then the law is not crystal clear.  However, because the Court has set itself up as Regal arbiter, the great issues are decided by one person’s vote.

 

The legal media like to call it a “swing vote.” And that one vote by one person decides who wins and who loses on issues which once were debated in the Congress and the state legislatures.  Instead, we wait on court decisions like an athletic event that has gone down to the wire. And upon announcement cheers or moans go across the land depending on whether your team won or lost.

 

The problem is that democracies are not supposed to be run like this.  One-person rule is anathema to democracy.  It matters little that the swing person may rotate among the same nine persons rather like the presidency of the local rotary club. It’s the wrong institution to attend.

 

Established Constitutional principles of Judicial Restraint compel the Supreme Court to defer certain issues to the political branches, the democratically elected Congress and President. We may soon see the results of the Court’s moving away from this basic principle.

 

First Congress is damaged. We no longer ever have reason to cheer the success of Congress, our elected representatives facing difficult issues, taking testimony from expert witnesses, respecting and considering the regional implications of a law, debating vigorously and then formulating a policy to be applied in all future instances and having processes in place to modify the policy even as its being implemented. And the Congress is damaged in other ways.  It is a basic political axiom that if you can maneuver a hot political issue over to someone else to take the heat, you do so.  And knowing the Supreme Court is all too willing to intervene, Congress has gotten use to abdicating their responsibility.  It is exceedingly easy to attack persons, even good people like Justice Kavanaugh.  It is hard work to actually propose, work with the other party, and pass legislation to address policy issues.

 

And the Presidency is undermined.  We have little time to judge and improve the Executive Branch’s actions.  Even though the expertise might be with the Administration and the framers of the Constitution intended a President to be able to take swift action, modernly every move, every change, a President makes is immediately challenged in federal courts and a lone arrogant federal judge somewhere will most likely issue injunctions and orders on how the policy is to be implemented or prevent it from being implemented at all. And again, the ultimate arbiter the body we seem to have granted the power of pre-approval, is that “One Supreme Court” of nine persons, all educated the same way at the same Eastern schools who can’t even agree among themselves.

 

The process has been further corrupted by calls for lightening quick decisions. The unwise and historically novel approach of the Court requiring pre-approval of all acts of the other two co-equal branches of government has perverted the system of appeals. Briefing schedules are expedited. We do not insist on the time to develop and explore the legal rules, precedents and implications of decisions. There is no time to review numerous amicus briefs from interested groups nor to hear well prepared, skilled oral advocacy.  Now we demand our legal decisions, like everything else happen in the blink of a news cycle. It’s not a good way to apply Constitutional Law and it’s not a good way to run a large powerful country.

 

Have we devolved to one-person rule?  Is that why there is so much animosity against someone of Justice Kavanaugh’s character and credentials?  Is it because we know we are now ruled as Justice Scalia says by a majority of nine persons?  And is it because that person, whether a Supreme Court justice or a federal judge on the lowest rung of the judicial ladder, is an unelected, unaccountable individual with little or no expertise in the subject area and who is poorly equipped to address the complexity of most issues?

 

There is a real danger here. And it is more than a gradual weakening of our democratic institutions.

 

A dangerous consequence may occur in the not too distant future.  The other branches may say No and defy the orders of the Judiciary. Then what?    The Court has no police force, no military, no control of the purse strings. The judiciary under the Constitution has only the power of persuasion. And that was done by the framers intentionally.

 

If the Court continues to fail to adhere to principles of Judicial Restraint which earlier Supreme Courts wisely and prudently followed; if they continue to undermine and supersede the other democratically elected branches of government, the Congress and the President, they may find themselves in a confrontation.  And if on that particular issue they don’t have overwhelming support from the entire public they will surely lose.

 

And if they lose just one Constitutional confrontation of that sort, we all lose for all time.

 

For other postings of Cline on the Constitution visit philcline.com