The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

A Narrow Victory for Liberty

Posted on | June 4, 2018 | 1 Comment

 

First, the news:

The U.S. Supreme Court on Monday handed a victory on narrow grounds to a Colorado Christian baker who refused for religious reasons to make a wedding cake for a gay couple, stopping short of setting a major precedent allowing people to claim exemptions from anti-discrimination laws based on religious beliefs.
The justices, in a 7-2 decision, said the Colorado Civil Rights Commission showed an impermissible hostility toward religion when it found that baker Jack Phillips violated the state’s anti-discrimination law by rebuffing gay couple David Mullins and Charlie Craig in 2012. The state law bars businesses from refusing service based on race, sex, marital status or sexual orientation.
The ruling concluded that the commission violated Phillips’ religious rights under the U.S. Constitution’s First Amendment. . . .
Two of the court’s four liberals, Stephen Breyer and Elena Kagan, joined the five conservative justices in the ruling authored by Justice Anthony Kennedy, who also was the author of the landmark 2015 decision legalizing gay marriage nationwide.

Before getting to the commentary, let me interrupt to say that (a) the “landmark 2015 decision” was wrong — see Justice Scalia’s dissent in Obergefell — and also (b) the description of the decision as “legalizing gay marriage” is misleading. What the court majority did was, in essence, to abolish the political existence, in contravention of the 10th Amendment, of the 31 states that had passed constitutional amendments defining marriage in those states. Under the doctrine of Obergefell, the states are reduced to mere administrative jurisdictions of a centralized national authority. But I digress . . .

Paula Bolyard at PJMedia:

While the decision is a victory for Phillips, it didn’t settle the question of whether others similarly situated would have the right to refuse to bake a wedding cake or participate in other expressive arts in violation of their conscience. The court merely said that Phillips was treated unfairly by the Commission. . . .
In other words, not a lot has changed with this decision, except to get Jack Phillips out from under the thumb of the Colorado Civil Rights Commission, which received a sharp knuckle-rapping from the justices. Far from being a monumental religious liberty decision, the narrow scope of the case means that larger issues will perhaps be left for a future Supreme Court to decide.

(Hat-tip: Stephen Green at Instapundit.)

My friend and podcasting partner John Hoge offers commentary on this “narrow” victory, which we may liken to the Battle of Antietam. The bloodiest single day in American military history was a stalemate. McClellan’s Union army lost more than 2,000 men killed and nearly 10,000 wounded, but failed to “destroy the Rebel army,” as Lincoln had urged in his telegram before the battle. The Confederates had more than 1,500 men killed and nearly 8,000 wounded, but still held their position when the battle was over, and remained in line the whole next day, welcoming McClellan to renew the assault, which he declined to do. General Lee’s army retreated south of the Potomac without further injury. While the Confederate invasion of the North was turned back, the South was still unbeaten and, if anything, the invincible reputation of Lee’s army was enhanced. The war went on another two-and-half years.

Of course, this analogy is relevant to the issue of state’s rights, which is central to the Colorado dispute and “gay rights” generally. If states do not have the right to self-governance, so that the people through their state legislatures cannot write laws about marriage, how is it that states can empower a Civil Rights Commission which could trample the religious liberty of a Christian bakery owner like Jack Phillips?

It is the centralization of authority in Washington, and especially the Supreme Court’s effort to arrogate to itself the power to dictate law to the states in clear contradiction of the Constitution, that produced this conflict, as it has produced so many others in our history. Our nation’s Founding Fathers never intended the federal government to have the kind of power it now claims, nor could they have imagined that anyone would ever interpret the Constitution this way. More than 150 years after that bloodbath at Antietam, we are still fighting over the same issues, and this “narrow victory” for liberty portends a long struggle ahead.

UPDATE: David French writes:

Since the rise of the gay-marriage movement, it has become fashionable to decry dissenters as haters and bigots, to attempt to write them out of polite society. . . . Politicians thunder against Christian bigots. Media organizations put the words “religious liberty” in scare quotes, as if the expression of deeply held religious beliefs is a mere pretext, used to conceal darker motivations. And ideologues in state agencies give full vent to their rage, mocking faithful Christians as if they stand in the shoes of slavers and murderers.
Today, the Supreme Court said, “enough.” Today the Court breathed a bit of life back into religous-liberty jurisprudence.

French says this ruling is less “narrow” than some have claimed. And I know that some of my readers despise French as a #NeverTrump type, but on the subject of First Amendment rights, he is perfectly sound.



 

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