Tuesday, June 5, 2018

Analysis of the Supreme's "Bake me a cake, hater" ruling

I am not a lawyer, but Rick is and sent this interesting analysis (published with his permission):

Analysts are idiots.  I keep reading how it was a "very narrow win" for those touting religious liberties.  I read the opinion.  Plus the three separate concurrences and the dissent.  Let me tell you what is really going on. 
The majority opinion was written by Kennedy, who not coincidently was the Justice that Gorsuch clerked for and also is the one that had the swing vote in the case recognizing gay marriage.  Bear in mind that the case on appeal about the baker was an appeal of a decision written by Gorsuch while sitting as a circuit court of appeals judge.  In that opinion, the freedom of religion rights were most definitely NOT recognized in a narrow manner. The supremes voted 7-2 to uphold the lower court decision.  
Had Gorsuch merely joined in Kennedy's opinion then there would have been five justices agreeing with the narrow view of the case.  Alito and Thomas wrote their own concurrences that in essence agreed with the reasoning Gorsuch used when in the lower court.  So why did Gorsuch not join the majority but instead write a concurrence?  Simple, had he joined with Kennedy, then there would have been 5 votes--a majority. That would have created binding precedent. By concurring, he left only 4 justices agreeing to the majority opinion.  Therefore it is NOT binding precedent.  Gorsuch made sure that the decision could be written his way the next time it comes up--AFTER Trump appoints another justice of course.
The one thing that I would add to this inside baseball take is that Gorsuch may have inside information on whether one of the other justices (Kennedy?) might retire at the end of this session.  In which case, Rick's last paragraph snaps into sharp focus.

1 comment:

Glen Filthie said...

I am not a legal beagle either BP. And I feel for the Supremes, this is not a decision I would want on my plate.

I am opposed to gays and gay marriage. You can make a viable argument about having to respect their rights; but the flaw in that is that - as a group, they refuse to respect the rights of others. They’ve waged lawfare against Christians, political opponents, public decency and morals and ethics. As a group they are selfish, irresponsible degenerates. Sure, there are the exceptions - but they are the exceptions.

If nothing else this is a much needed warning shot at the queers. They’re picking fights with people that just want to be left alone. One way or another that has to stop. There’s any number of businesses that will happily cater to queers; and I would think that if we legally have the right to freedom of association, we must have the right to disassociation too. That will probably be the next point of conflict in the culture war.

I have a daughter that’s queer, and if there was anything beautiful or wonderful about those people and their alternate sexual lifestyle - I would have found it.