Contributor Post Created with Sketch. Let Them Bake Cake

 

Masterpiece Cakeshop owner Jack Phillips.
In its 2015 decision in Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, the Colorado Court of Appeals unanimously ruled in favor of the Colorado Civil Rights Commission, which sanctioned Jack Phillips, a devout Christian and the owner of Masterpiece Cakeshop, for violating the Colorado Antidiscrimination Laws (CADA). His offense: refusing for sincere religious reasons to prepare a custom-made wedding cake for Charlie Craig and David Mullins, a gay couple. His insistence that he enjoyed the First Amendment protections of freedom of religion and speech were roundly rebuffed—as were similar claims in the 2013 New Mexico decision in Elane Photography, LLC v. Willock and the 2017 Washington decision in State of Washington v. Arlene’s Florists, Inc. The Commission then ordered Phillips “to take remedial measures, including comprehensive staff training and alteration to the company’s policies to ensure compliance with CADA.”

So Phillips had to submit to the state’s regulations if he wished to remain in business. But why this compulsory re-education program? Phillips does not insist that Colorado limit marriage solely to unions between one man and one woman. He only resists providing them services that go against his religious conscience. He routinely supplies his gay and lesbian customers with off-the-rack items for use in same-sex marriages. And he has courteously directed his gay and lesbian customers to other establishments that supply services for same-sex weddings. Phillips thus tolerates and accommodates the practices of others with which he does not agree. But the Colorado Commission decidedly does neither.

Now, the case is before the Supreme Court—and I have coauthored a brief with lawyers Sean Gates and David Shaneyfelt on behalf of a group of law and economics scholars who have urged the Court to vindicate Phillips’s claim for freedom of religion and speech. Why? Because we dislike government bullies, whose pretentions to superior wisdom lead them to coerce ordinary citizens to bend to their will. They have forgotten or repressed the words of Justice Robert Jackson in the famous flag salute case of Barnette v. West Virginia, decided in 1943 in the middle of World War II. Barnette held, without differentiation, that the constitutional protection of freedom of religion and speech blocked West Virginia from forcing the children of Jehovah’s Witnesses to recite the Pledge of Allegiance in order to remain in the public schools. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.” Certainly, the petty dictates that the Colorado Commission directed toward Jack Phillips is not one such exception.

In our brief, we asked this simple question: When does it make sense to impose an obligation of universal service? The time-honored answer, as I have urged elsewhere, is in the case of common carriers and public utilities, which are not in a position to refuse service because they are the only supplier of standardized, impersonal, but essential services such as rail transportation, electricity, power, and communication, without which participation in ordinary life is exceedingly difficult. Historically, these services were supplied most cheaply by a single provider, which therefore had the correlative duty to serve all customers on what are known as FRAND standards—fair, reasonable, and nondiscriminatory terms.

The necessary corollary is that duties of service should never be compelled in a well-organized competitive market, an issue that lies at the heart of the Masterpiece dispute. We are far removed from the days of Jim Crow when the unified exercise of state power and private violence blocked the entry of new firms to serve black citizens who were systematically deprived of rights to vote or to participate in public affairs. We are long past the days when local governments could covertly, and without effective judicial review, deny power and electricity to any firm that chose to integrate its workforce. Our brief pointed out the thriving market supplying services for same-sex marriages both in states that prohibit discrimination on grounds of sexual orientation and those that do not. A website called gayweddings.com lists 67 bakeries, many within easy walking distance of Masterpiece Cakeshop in Lakewood, Colorado, that service same-sex couples.

So the relevant trade-offs are clear. On the one side, allowing competitive markets to operate without Colorado’s antidiscrimination laws asks Craig and Mullins to go down the street to buy the wedding cake of their choice. But imposing CADA forces Phillips into a Hobson’s choice: either abandon your religious convictions or abandon your livelihood, leaving your own loyal customers in a lurch. Why this massive remedy for a minor harm? Surely it is not for dignitary reasons—given the humiliation and hostility often heaped on bakers like Jack Phillips, who are today’s “discrete and insular minorities.” Worse still, why should any legal system invite gay couples to refer fundamentalist Christian merchants to CADA by requesting a custom wedding cake, before moving on to the baker of their choice?

To bolster our case, our brief took issue with an influential 2013 study of the Michigan Department of Civil Rights that concluded that the antidiscrimination laws promoted economic growth by assuring all people that they will be served regardless of their sexual orientation. But that study misfires on multiple grounds. First, it does not explain how a minuscule fraction of refusals to serve could ever have any discernible effect on overall economic activity. In contrast, driving some merchants out of the market altogether might do more harm by creating a hostile business climate. Second, Colorado’s current antidiscrimination laws do not convert all bakers into public utilities who are subject to the FRAND standard. Under CADA, they can still refuse to do business with any Trump supporters or with opponents of same-sex marriage—but they are prohibited from refusing services on the grounds of sexual orientation, whether or not in connection with same-sex marriage. It is simply erroneous to insist that functioning markets require each and every firm to service each and every customer. Redundancy of firms allows parties to make superior matches based on idiosyncratic preferences.

Nonetheless, a group of behavioral economics scholars has signed onto a brief that challenges our theoretical and empirical claims. They insist that the new insights of behavioral economics refute the teachings of neoclassical economics. In their words, neoclassical economics falsely assumes “purely, rational, mathematical decision making,” which uses modes of analysis that “are often incomplete or artificially constrained and not reflective of the complexity of real-world situations.” But neoclassical economics does not make such assumptions. Quite the opposite, it embraces private decision-making in competitive markets precisely because it recognizes tastes are generally heterogeneous, foresight is often limited, and individual abilities to calculate and choose are generally imperfect. Given these impediments, minority or disfavored individuals can take advantage of market redundancy to do business with the subset of firms most favorably disposed to them. Thus, those firms that better serve various markets will survive while their less able rivals will fall to the wayside.

In this environment, moreover, the prospect of open entry—never mentioned in the behavioral economics brief—will encourage a sufficient number of merchants to target underserved sections of the market. The behavioral economics brief shows an ideological blindness when it assumes that the rigid totalitarianism of Jim Crow has its analogue today in the hostile social response to gay and lesbian weddings by, of all people, Jack Phillips. That outsized claim inexcusably ignores and trivializes the lynchings, lootings, and humiliations that turned the old South into a police state.

In our brief, we noted that a consumer “need only turn on his or her computer to gain full access to a rich array of services from willing merchants actively seeking their business”—and we list in a footnote many such sites. As a mark of true intellectual manipulation, though, the behavioral economics brief falsely reworks our argument to accuse us of “acknowledging that same-sex couples still find themselves resorting to lists of ‘gay-friendly’ businesses to avoid homophobic reactions from business owners, harassment, or worse.” How perverse! The full range of specialized religious and social websites on countless issues are not formed in response to the bigotry of others but for the simple reason that voluntary groups have the specialized knowledge and expertise to better serve their clientele. Let us hope that the Supreme Court will use Masterpiece Cakeshop to put an end to the deeply totalitarian applications of state antidiscrimination law on matters of sexual orientation.

© 2017 by the Board of Trustees of Leland Stanford Junior University

There are 31 comments.

Become a member to join the conversation. Or sign in if you're already a member.
  1. Bryan G. Stephens Thatcher
    Bryan G. Stephens Joined in the first year of Ricochet Ricochet Charter Member

    Compelled action is what the Left is all about.

    • #1
    • November 27, 2017, at 4:42 PM PST
    • 9 likes
  2. Phil Turmel Coolidge

    And policing thought crime.

    • #2
    • November 27, 2017, at 4:58 PM PST
    • 6 likes
  3. Hammer, The Member

    Richard Epstein: Under CADA, they can still refuse to do business with any Trump supporters or with opponents of same-sex marriage

    This is what is amazing to me. It should be open and shut for the Supreme Court. As it should have been for all lower courts… and wasn’t. And it won’t.

    • #3
    • November 27, 2017, at 7:42 PM PST
    • 4 likes
  4. Joseph Eagar Member
    Joseph Eagar Joined in the first year of Ricochet Ricochet Charter Member

    I’ve never understood the rationale for these petty acts of bullying. I’m bisexual, and there are probably gay bakeries that would refuse service if I came in with a women, in much the same way as if I walked into the door of a Christian bakery with a man.

    People on the left talk as if this is a major precedent-setting civil rights issue. We’re talking about compulsory private service. That is a much bigger violation of civil rights than the indignity of giving a snobbish upper-class couple a status panic attack. What’s really going on is that the government is punishing perceived immoral behavior–bigotry–not enforcing civil rights.

    • #4
    • November 27, 2017, at 11:30 PM PST
    • 6 likes
  5. Bryan G. Stephens Thatcher
    Bryan G. Stephens Joined in the first year of Ricochet Ricochet Charter Member

    Joseph Eagar (View Comment):
    I’ve never understood the rationale for these petty acts of bullying. I’m bisexual, and there are probably gay bakeries that would refuse service if I came in with a women, in much the same way as if I walked into the door of a Christian bakery with a man.

    People on the left talk as if this is a major precedent-setting civil rights issue. We’re talking about compulsory private service. That is a much bigger violation of civil rights than the indignity of giving a snobbish upper-class couple a status panic attack. What’s really going on is that the government is punishing perceived immoral behavior–bigotry–not enforcing civil rights.

    Just as opponents of SSM said would happen. And they were called bigots for it. Sometimes by people on the right.

    • #5
    • November 28, 2017, at 5:22 AM PST
    • 5 likes
  6. Robert McReynolds Inactive

    Bryan G. Stephens (View Comment):

    Joseph Eagar (View Comment):
    I’ve never understood the rationale for these petty acts of bullying. I’m bisexual, and there are probably gay bakeries that would refuse service if I came in with a women, in much the same way as if I walked into the door of a Christian bakery with a man.

    People on the left talk as if this is a major precedent-setting civil rights issue. We’re talking about compulsory private service. That is a much bigger violation of civil rights than the indignity of giving a snobbish upper-class couple a status panic attack. What’s really going on is that the government is punishing perceived immoral behavior–bigotry–not enforcing civil rights.

    Just as opponents of SSM said would happen. And they were called bigots for it. Sometimes by people on the right.

    This is exactly right. I can still recall some folks on here–won’t name names–saying that none of this would possibly happen here because of our First Amendment protections. Well look who was right here. Homosexual marriage was not about equality. It was about getting even through force of “law.”

    • #6
    • November 28, 2017, at 6:03 AM PST
    • 2 likes
  7. Robert McReynolds Inactive

    What I hope happens is that the courts do the right thing (they won’t) and if they don’t, that the Christians involved continue to disobey and practice civil disobedience. The good people of this country–the majority of whom don’t want Christians persecuted by the state–should be subjected to headlines reading “Christian Jailed for Refusing to Accept Homosexuality.”

    • #7
    • November 28, 2017, at 6:05 AM PST
    • 3 likes
  8. Tom Meyer, Common Citizen Contributor

    Bryan G. Stephens (View Comment):

    Joseph Eagar (View Comment):
    I’ve never understood the rationale for these petty acts of bullying. I’m bisexual, and there are probably gay bakeries that would refuse service if I came in with a women, in much the same way as if I walked into the door of a Christian bakery with a man. […]

    Just as opponents of SSM said would happen.

    … as did SSM proponents on the Right.

    The question wasn’t whether leftist activists would do this — of course they would (and have) — but whether all of us would fight them together on that point.

    We are and we will. The Left is abridging the religious liberty and freedom of association rights of these business owners, full stop.

    • #8
    • November 28, 2017, at 8:45 AM PST
    • 3 likes
  9. Tom Meyer, Common Citizen Contributor

    Robert McReynolds (View Comment):
    What I hope happens is that the courts do the right thing (they won’t) and if they don’t, that the Christians involved continue to disobey and practice civil disobedience. The good people of this country–the majority of whom don’t want Christians persecuted by the state–should be subjected to headlines reading “Christian Jailed for Refusing to Accept Homosexuality.”

    Quibble: An accurate headline would read “Christian Jailed for Refusing to Participate in Homosexual Wedding.”

    • #9
    • November 28, 2017, at 8:46 AM PST
    • 4 likes
  10. James Golden Inactive

    Hammer, The (View Comment):

    Richard Epstein: Under CADA, they can still refuse to do business with any Trump supporters or with opponents of same-sex marriage

    This is what is amazing to me. It should be open and shut for the Supreme Court. As it should have been for all lower courts… and wasn’t. And it won’t.

    Agreed. It should be a one-paragraph 9-0 per curiam reversal. And yet all of the Supreme Court pundits are saying it will be a 5-4 decision that will come down to Kennedy. That is terrifying if true. I hope that so-called “liberal” justices will stand up to this tyranny and disprove those of us that think they are just partisan hacks.

    The government should never be able to force someone to work, no matter what. It’s as simple as that. Indeed, were not it not for the fact that the baker presumably gets paid for being forced to bake a cake he doesn’t want to make, the government’s actions amount to slavery. And I’m not so sure it isn’t slavery even if the baker does get paid.

    • #10
    • November 28, 2017, at 9:33 AM PST
    • 3 likes
  11. James Golden Inactive

    Bryan G. Stephens (View Comment):

    Joseph Eagar (View Comment):
    I’ve never understood the rationale for these petty acts of bullying. I’m bisexual, and there are probably gay bakeries that would refuse service if I came in with a women, in much the same way as if I walked into the door of a Christian bakery with a man.

    People on the left talk as if this is a major precedent-setting civil rights issue. We’re talking about compulsory private service. That is a much bigger violation of civil rights than the indignity of giving a snobbish upper-class couple a status panic attack. What’s really going on is that the government is punishing perceived immoral behavior–bigotry–not enforcing civil rights.

    Just as opponents of SSM said would happen. And they were called bigots for it. Sometimes by people on the right.

    I wasn’t here for the “SSM wars,” but I believe that people should be able to get married if they want to get married, and should be able to decide not to bake a cake if they don’t want to. These seem like basic principles on which everyone should be able to agree. And yet my belief in liberty is shared by very few it seems.

    • #11
    • November 28, 2017, at 9:38 AM PST
    • 1 like
  12. Tom Meyer, Common Citizen Contributor

    James Golden (View Comment): I wasn’t here for the “SSM wars,” but I believe that people should be able to get married if they want to get married, and should be able to decide not to bake a cake if they don’t want to. These seem like basic principles on which everyone should be able to agree. And yet my belief in liberty is shared by very few it seems.

    Which relationships the government recognizes as marriages and whether or not it can compel people to bake cakes/take photographs/arrange flowers against their will strike me as very different kinds of questions.

    On the former, I think good people can disagree. On the latter, I think the answer should be clearly “no, the government can’t do that.”

    • #12
    • November 28, 2017, at 10:09 AM PST
    • 3 likes
  13. Penfold Member

    Does the word “taxes” bring up any sticky issues here? We’re compelled to pay them at the barrel of a gun. Don’t get me wrong. I pay mine. But we’ve all heard of folks who say they don’t because they don’t like something taxes are used for. (war, foreign aid, UN, abortions)

    • #13
    • November 28, 2017, at 10:28 AM PST
    • Like
  14. John Park Member

    In law school, we learn that when a contractor abandons a job, we don’t bring him back to finish it. He’d just do a lousy job, so we seek money damages.

    Jack Phillips’ case is a two-step of bad compulsion: the mandarins in Colorado demand that he enter into a contract, then they demand that he perform it. First year law students know better than that.

    • #14
    • November 28, 2017, at 11:40 AM PST
    • 2 likes
  15. John Park Member

    Double post, sorry!

    • #15
    • November 28, 2017, at 11:41 AM PST
    • Like
  16. Joseph Eagar Member
    Joseph Eagar Joined in the first year of Ricochet Ricochet Charter Member

    Tom Meyer, Common Citizen (View Comment):

    Bryan G. Stephens (View Comment):

    Joseph Eagar (View Comment):
    I’ve never understood the rationale for these petty acts of bullying. I’m bisexual, and there are probably gay bakeries that would refuse service if I came in with a women, in much the same way as if I walked into the door of a Christian bakery with a man. […]

    Just as opponents of SSM said would happen.

    … as did SSM proponents on the Right.

    The question wasn’t whether leftist activists would do this — of course they would (and have) — but whether all of us would fight them together on that point.

    I’m not sure our problem is the left, though, seems to me the real enablers are center-right-to-just-left-of-center Democratic elites, who are going along with this madness.

    • #16
    • November 28, 2017, at 3:29 PM PST
    • 1 like
  17. Bryan G. Stephens Thatcher
    Bryan G. Stephens Joined in the first year of Ricochet Ricochet Charter Member

    There were people on the right who said this fear was unfounded. Period.

    • #17
    • November 28, 2017, at 3:44 PM PST
    • Like
  18. Tom Meyer, Common Citizen Contributor

    Bryan G. Stephens (View Comment):
    There were people on the right who said this fear was unfounded.

    Well, they were clearly wrong and — depending on when they said so — were also naive.

    Regardless, many people on the Right who favored SSM said that they would fight for religious liberty and freedom of association. Richard Epstein’s brief is a good example of that promise being (rightly, at several levels) fulfilled.

    • #18
    • November 28, 2017, at 7:10 PM PST
    • 1 like
  19. Bryan G. Stephens Thatcher
    Bryan G. Stephens Joined in the first year of Ricochet Ricochet Charter Member

    Tom Meyer, Common Citizen (View Comment):

    Bryan G. Stephens (View Comment):
    There were people on the right who said this fear was unfounded.

    Well, they were clearly wrong and — depending on when they said so — were also naive.

    Regardless, many people on the Right who favored SSM said that they would fight for religious liberty and freedom of association. Richard Epstein’s brief is a good example of that promise being (rightly, at several levels) fulfilled.

    I’d call it willfull blindness, not being naive. It is not like there was no precident.

    • #19
    • November 29, 2017, at 3:44 AM PST
    • 1 like
  20. Leslie Watkins Member
    Leslie Watkins Joined in the first year of Ricochet Ricochet Charter Member

    My problem with Phillips’s case is moral, not legal. Clearly he should not be forced by the state to go out of business for his personal beliefs. But his particular view on gay weddings blinds him to the reality that numerous of his heterosexual customers likely practice equally immoral sex acts yet are shielded from his passive-aggressive condemnation by virtue of the institution into which they are automatically granted entry and are progressively destroying not only by their own moral failings, but also divorce. No gay wedding cakes, says the commercial baker. I say, cheap grace.

    • #20
    • November 29, 2017, at 8:06 AM PST
    • 2 likes
  21. Bryan G. Stephens Thatcher
    Bryan G. Stephens Joined in the first year of Ricochet Ricochet Charter Member

    Leslie Watkins (View Comment):
    My problem with Phillips’s case is moral, not legal. Clearly he should not be forced by the state to go out of business for his personal beliefs. But his particular view on gay weddings blinds him to the reality that numerous of his heterosexual customers likely practice equally immoral sex acts yet are shielded from his passive-aggressive condemnation by virtue of the institution into which they are automatically granted entry and are progressively destroying not only by their own moral failings, but also divorce. No gay wedding cakes, says the commercial baker. I say, cheap grace.

    There is nothing cheep about going out of work because of taking a stand. Even without the state, it take courage to take this stand.

    Further, the immoral acts of his heterosexual customers are not advertised. How is he to know if someone is cheating on a spouse? If he wanted to only cater to women who were virgins, that would be as much his right, but the fact he does not in no way cheapens his moral stance in the other area, no does the fact that he himself is in no way perfect.

    • #21
    • November 29, 2017, at 9:11 AM PST
    • 5 likes
  22. James Golden Inactive

    Leslie Watkins (View Comment):
    My problem with Phillips’s case is moral, not legal. Clearly he should not be forced by the state to go out of business for his personal beliefs. But his particular view on gay weddings blinds him to the reality that numerous of his heterosexual customers likely practice equally immoral sex acts yet are shielded from his passive-aggressive condemnation by virtue of the institution into which they are automatically granted entry and are progressively destroying not only by their own moral failings, but also divorce. No gay wedding cakes, says the commercial baker. I say, cheap grace.

    I understand you are not commenting on the legal aspect, but that is really all this case is really about — the legal aspect. What you say is irrelevant from a legal perspective. It doesn’t matter if the baker is right, wrong, foolish, wise, or anything else in refusing to bake the cake. He simply should not be forced to bake a cake he doesn’t want to bake. Whether that is for moral reasons, because he doesn’t like the design proposed by his customers, hates the two people who are trying to hire him, or any other reason simply does not matter.

    On the moral side: This is why free markets are so great. If what he is doing is wrong, people will stop asking him to make cakes for them and he will go out of business. There is no reason for the government to get involved.

    • #22
    • November 29, 2017, at 9:50 AM PST
    • 5 likes
  23. Joseph Eagar Member
    Joseph Eagar Joined in the first year of Ricochet Ricochet Charter Member

    Bryan G. Stephens (View Comment):

    Tom Meyer, Common Citizen (View Comment):

    Bryan G. Stephens (View Comment):
    There were people on the right who said this fear was unfounded.

    Well, they were clearly wrong and — depending on when they said so — were also naive.

    Regardless, many people on the Right who favored SSM said that they would fight for religious liberty and freedom of association. Richard Epstein’s brief is a good example of that promise being (rightly, at several levels) fulfilled.

    I’d call it willfull blindness, not being naive. It is not like there was no precident.

    This is why I opposed Obergfeld, and still do. This isn’t abortion. There was a real chance that SSM could be done democratically, and going through that process would have given us significant religious liberty protections.

    I just don’t see the court system ad a legitimate place to hash this stuff out.

    • #23
    • November 29, 2017, at 2:05 PM PST
    • 8 likes
  24. Clifford A. Brown Contributor

    James Golden (View Comment):

    Hammer, The (View Comment):

    Richard Epstein: Under CADA, they can still refuse to do business with any Trump supporters or with opponents of same-sex marriage

    This is what is amazing to me. It should be open and shut for the Supreme Court. As it should have been for all lower courts… and wasn’t. And it won’t.

    Agreed. It should be a one-paragraph 9-0 per curiam reversal. And yet all of the Supreme Court pundits are saying it will be a 5-4 decision that will come down to Kennedy. That is terrifying if true. I hope that so-called “liberal” justices will stand up to this tyranny and disprove those of us that think they are just partisan hacks.

    I fear Kennedy stayed this term to complete his secular supremacist project of effectively outlawing biblical Christianity by reading the sexual identity rights he “discovered” back through the 14th Amendment to gut the 1st Amendment like the white supremacists on the Court did to the 14th Amendment in the late 1800s. His opinion in a nutshell: “Every knee shall bow and every tongue confess that Jesus Christ is not Lord.”

    • #24
    • November 29, 2017, at 11:46 PM PST
    • Like
  25. Clifford A. Brown Contributor

    Leslie Watkins (View Comment):
    My problem with Phillips’s case is moral, not legal. Clearly he should not be forced by the state to go out of business for his personal beliefs. But his particular view on gay weddings blinds him to the reality that numerous of his heterosexual customers likely practice equally immoral sex acts yet are shielded from his passive-aggressive condemnation by virtue of the institution into which they are automatically granted entry and are progressively destroying not only by their own moral failings, but also divorce. No gay wedding cakes, says the commercial baker. I say, cheap grace.

    As you know, the reason same sex couples demand cakes of Christian bakers is to compel affirmation of their status and rejection of Christian morality. You would have to show that Christian bakers chose to bake cakes celebrating unmarried couples shacking up or a cheating relationship. I am highly confident there are no such instances.

    • #25
    • November 30, 2017, at 12:16 AM PST
    • 1 like
  26. Tom Meyer, Common Citizen Contributor

    CliffordBrown (View Comment):

    I fear Kennedy stayed this term to complete his secular supremacist project of effectively outlawing biblical Christianity by reading the sexual identity rights he “discovered” back through the 14th Amendment to gut the 1st Amendment like the white supremacists on the Court did to the 14th Amendment in the late 1800s. His opinion in a nutshell: “Every knee shall bow and every tongue confess that Jesus Christ is not Lord.”

    You know, I’m not at all a fan of Kennedy’s jurisprudence, but that’s a bit much.

    • #26
    • November 30, 2017, at 8:44 AM PST
    • 2 likes
  27. Jerry Giordano (Arizona Patrio… Member

    Tom Meyer, Common Citizen (View Comment):

    CliffordBrown (View Comment):

    I fear Kennedy stayed this term to complete his secular supremacist project of effectively outlawing biblical Christianity by reading the sexual identity rights he “discovered” back through the 14th Amendment to gut the 1st Amendment like the white supremacists on the Court did to the 14th Amendment in the late 1800s. His opinion in a nutshell: “Every knee shall bow and every tongue confess that Jesus Christ is not Lord.”

    You know, I’m not at all a fan of Kennedy’s jurisprudence, but that’s a bit much.

    Well, maybe just a little bit. Kennedy has a lot to answer for. Had he been a reliable conservative vote, Roe v. Wade would have been overturned in 1992, and much of the entire string of homosexuality cases from Romer to Lawrence to Windsor to Obergefell would have come out the other way. Kennedy authored the majority opinion in all of the homosexuality cases. If Kennedy and O’Connor had both been reliably conservative, all of these outcomes would have been different.

    On the homosexuality issue, I suspect that Kennedy’s actions had consequences well beyond SCOTUS jurisprudence. The Romer and Lawrence decisions, in particular, gave a great deal of rhetorical support to the pro-homosexuality side.

    • #27
    • December 1, 2017, at 1:23 PM PST
    • Like
  28. Tom Meyer, Common Citizen Contributor

    Arizona Patriot (View Comment):
    Well, maybe just a little bit. Kennedy has a lot to answer for. Had he been a reliable conservative vote, Roe v. Wade would have been overturned in 1992, and much of the entire string of homosexuality cases from Romer to Lawrence to Windsor to Obergefell would have come out the other way. Kennedy authored the majority opinion in all of the homosexuality cases. If Kennedy and O’Connor had both been reliably conservative, all of these outcomes would have been different.

    No disagreement there; as I said, I’m not a fan of Kennedy’s jurisprudence.

    That said, do you think that his career can be summarized as a “secular supremacist project of effectively outlawing biblical Christianity.”

    • #28
    • December 2, 2017, at 4:24 AM PST
    • 1 like
  29. Clifford A. Brown Contributor

    Tom Meyer, Common Citizen (View Comment):

    Arizona Patriot (View Comment):
    Well, maybe just a little bit. Kennedy has a lot to answer for. Had he been a reliable conservative vote, Roe v. Wade would have been overturned in 1992, and much of the entire string of homosexuality cases from Romer to Lawrence to Windsor to Obergefell would have come out the other way. Kennedy authored the majority opinion in all of the homosexuality cases. If Kennedy and O’Connor had both been reliably conservative, all of these outcomes would have been different.

    No disagreement there; as I said, I’m not a fan of Kennedy’s jurisprudence.

    That said, do you think that his career can be summarized as a “secular supremacist project of effectively outlawing biblical Christianity.”

    Time will tell. How would you summarize Taney’s career?

    • #29
    • December 2, 2017, at 4:36 PM PST
    • Like
  30. Jerry Giordano (Arizona Patrio… Member

    Clifford A. Brown (View Comment):

    Tom Meyer, Common Citizen (View Comment):

    Arizona Patriot (View Comment):
    Well, maybe just a little bit. Kennedy has a lot to answer for. Had he been a reliable conservative vote, Roe v. Wade would have been overturned in 1992, and much of the entire string of homosexuality cases from Romer to Lawrence to Windsor to Obergefell would have come out the other way. Kennedy authored the majority opinion in all of the homosexuality cases. If Kennedy and O’Connor had both been reliably conservative, all of these outcomes would have been different.

    No disagreement there; as I said, I’m not a fan of Kennedy’s jurisprudence.

    That said, do you think that his career can be summarized as a “secular supremacist project of effectively outlawing biblical Christianity.”

    Time will tell. How would you summarize Taney’s career?

    I’ll try to answer both questions, Tom’s first.

    Can Kennedy’s career be summarized as a “secular supremacist project of effectively outlawing biblical Christianity”? It’s a bit hyperbolic, but I think that this fairly summarizes the most significant impact of his career. The abortion and homosexuality agendas are contrary to biblical Christianity, and it seems to me that Kennedy’s most lasting impact is being on the wrong side of these. He was also on the wrong side of CLS v. Martinez, an important case about religious freedom and freedom of expression, though he has been generally good on those issues. He’s been among the best on federalism, and is good on affirmative action/reverse discrimination.

    How would I summarize Taney’s career? I remember essentially nothing about Taney except that he was Chief Justice and he authored the Dred Scott decision. The Dred Scott decision was dreadful.

    The two questions may tie together. The only thing for which we remember Taney is his most notable and awful error. I suspect that the same will ultimately prove true of Kennedy. Or perhaps I should say that I am enough of an optimist to hope that Kennedy’s major errors will eventually be recognized as such.

    • #30
    • December 6, 2017, at 8:59 AM PST
    • 2 likes

Comments are closed because this post is more than six months old. Please write a new post if you would like to continue this conversation.