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Monday, June 26, 2017

Today the Supreme Court lit the fuse on a bomb Neil Gorsuch built four years ago tomorrow.

Today, after listing the case on its review calendar nineteen times without making a decision, the Supreme Court agreed to hear a case about whether people who provide wedding services to the public can ignore anti-discrimination law when potential customers are gay or lesbian.

Jack Phillips, who runs a bakery in the Denver suburbs, kicked off the case when he kicked out a gay couple wanting to order a cake for their ceremony. A state administrative agency found he violated state nondiscrimination law.

Waldo considered the Masterpiece Cakeshop on its merits when it was just an administrative ruling in July 2014. There weren't any martyrs whipping the issues into a lucrative frenzy back then; nationwide marriage equality was still eleven months away.

It makes interesting reading. We were all focused, then, on the recently-issued Hobby Lobby case in the US Supreme Court, which held invalid Obamacare's contraception provisions for employee insurance, on grounds corporations are people, too, and can have religious views.

That raised the question whether laws like the federal and state religious freedom restoration acts had just been turned from a shield into a sword with which Christianists could nullify any law or court ruling they pleased, because Bible.

Masterpiece Cakeshop, whose case the Court will hear next fall after today's ruling, is a Colorado case. The Court's Hobby Lobby decision three years ago upheld a Tenth Circuit Court of Appeals ruling in which a then-little-known judge called Neil Gorsuch wrote a concurring opinion. As NPR noted during his confirmation hearing in March 2017,

One of his most controversial opinions involved Hobby Lobby, a chain of craft stores that employs 13,000 full-time employees, most of them women. The company challenged the federal law requiring for-profit corporations to provide health insurance plans that cover birth control.

Gorsuch and a majority of the 10th Circuit Court of Appeals ruled the corporation had a religious right not to provide birth control coverage. A sharply divided U.S. Supreme Court would later agree, ruling for the first time that certain for-profit corporations have protected religious rights.

What makes this case particularly interesting is a concurring opinion that Gorsuch wrote about the corporate owners' rights.

"All of us face the problem of complicity," he wrote. "All must answer ... to what degree we are willing to be involved in the wrongdoing of others." Here, he noted, the owners believe that for their company providing insurance that includes coverage for birth control drugs or devices "violates their faith."

In many ways, he continued, "this case is a tale of two statutes." One, the Affordable Care Act, compels the owners to provide such inclusive health coverage. The other, the Religious Freedom Restoration Act, "says they need not." And the "tie-breaker," Gorsuch said, is the religious protection law because it is a "super-statute" that trumps others, except in special circumstances.

Gorsuch critics disagree with his assessment.

"To what extent do people with religious beliefs have to follow the law if they believe it violates their conscience? What is the outer limit of that?" asks Caroline Fredrickson of the liberal American Constitution Society. "I think that's a potentially very frightening direction for the law to go."

Indeed, there are a variety of such legal clashes working their way up to the Supreme Court right now. One case pending before the court tests whether a bakery can refuse to make a cake for a same-sex wedding.

Melissa Hart, director of the University of Colorado's Byron R. White Center for the Study of American Constitutional Law, knows and respects Gorsuch, who also teaches at the school in Boulder. Still, she understands the wariness about his views on religious freedom.

"I think it's reasonable for people to look at Hobby Lobby and, for those who support marriage equality, to be concerned," she says.

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