The Gristle

A Supreme Shifting

Wednesday, June 27, 2018

A SUPREME SHIFTING: Elections have consequences; and a matter considered settled in Washington must now receive additional review.

The Supreme Court of the United States this week returned the 2017 case of Arlene’s Flowers back to their state counterpart in Washington. In its Feb. 16, 2017 decision, the Washington State Supreme Court unanimously upheld a lower court decision that a florist had clearly violated the state’s nondiscrimination law by refusing to provide floral arrangements to a gay couple because of the owner’s personal beliefs.

A deeply divided U.S. Supreme Court had earlier this month come to a more ambivalent conclusion in their Masterpiece Cakeshop ruling, an analogous case in which a baker in Colorado had refused service to a gay couple on religious grounds. Justices found the baker had a right to do so, but their decision was deemed a “narrow” one, specific to this single instance, and in which justices declined to frame overarching considerations.

As Justice Anthony Kennedy, the author of some of the court’s most important gay-rights rulings, outlined in the majority opinion, the case involved a collision between two important principles. On the one hand, society has recognized that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” and their rights are protected by the Constitution. On the other hand, “the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

In short, where do the rights of a private business to refuse service end; and where do class protections against state-sanctioned religious bigotry begin? Justices declined to tackle those questions.

SCOTUS dodged the larger, lasting considerations, perhaps out of a humble awareness that American society is quickly—very quickly—becoming at ease with same-sex marriage; and the violent hatred of the union by religious groups is being swept into the moldy dustbin of history. Why make durable law around a resistance growing quickly irrelevant?

Washington’s jurisprudence is clearer. Under state law, a business need not provide a particular service, but if it chooses to do so for couples of the opposite sex, it must provide that service equally to same-sex couples.

Washington is one of 20 states that provide clear protections against discrimination in employment, housing and public accommodations on the basis of both sexual orientation and gender identity.

As is common when cases involving similar issues as a recent ruling are pending before the court, the U.S. Supreme Court formally vacates the lower court ruling and sends the case back to the lower court for a second look. The lower court then reevaluates the case in light of the new ruling, and determines whether that new ruling impacts the case.

“We expected this procedural step,” Washington’s Attorney General Bob Ferguson said. “The Washington State Supreme Court now has the job of determining whether the U.S. Supreme Court ruling affects this case. I am confident they will come to the same conclusion they did in their previous, unanimous ruling upholding the civil rights of same-sex couples in our state.”

“The Supreme Court has simply asked the lower court to take another look at this case in light of their recent decision in Masterpiece, but they did not indicate there was anything wrong with the ruling,” agreed Sarah Warbelow, legal director of the Human Rights Campaign, the nation’s largest lesbian, gay, bisexual, transgender and queer civil rights organization. “In Masterpiece, the Supreme Court found that the state of Colorado’s enforcement of its civil rights law was flawed due to perceived bias in the process, however, there is no indication that there were flaws in the application of civil rights law in Arlene’s Flowers. We view this decision as encouraging news that justice will prevail and the Washington State Supreme Court will again uphold the state’s nondiscrimination laws ensuring LGBTQ people cannot be turned away from a business open to the public.”

The U.S. Supreme Court’s decision on Masterpiece and other recent rulings (including this week’s uphold of the Trump administration’s third attempt at a bigotry-laced travel ban based on specious national security concerns) is a cautionary illustration of the knife edge upon which the high court rests, with no opinion in firm majority and fluid allegiances of opinion among justices. But clearly the potential is fatally proximate for President Donald Trump to upend the detente of slim majorities with lifetime appointments to the high court. The consequences of those appointments would long, long outlast his presidency.

The Gristle has noted the searing pace of lifetime appointments at all levels of the federal court by the Trump administration—a court-packing that has outstripped in ferocity that of any previous president in this past century. Federal courts hold the power to slow, check or overturn any number of political or legislative achievements, particularly in eras of partisan gridlock and administrative paralysis. Of course, none hold more power than the Supreme Court, which can in a very brief period weld in place our civil and social discourse for a century.

A decision by the Court that money is speech and corporations are people has transformed the political and economic landscape of the United States in fewer than 20 years. A decision by the Court to ignore one clause and section of the Constitution to favor another has triggered the explosion of guns and attendant gun violence in roughly the same period. In one week, this week, in other rulings SCOTUS has with the slimmest of majorities upheld racial gerrymandering and set back women’s reproductive freedoms.

The remedy to the pace of judicial overreach by the president lies in the confirmation of these appointments by the U.S. Senate, which itself stands on the knife-edge of falling to the opposition (and, in our system of government, the braking) party this fall.

Elections have consequences. Midterms matter.

Past Columns
The Divisions Between Us

November 14, 2018

The Map is the Territory

November 7, 2018

Climate Kids

October 31, 2018

What The Market Won’t Bear

October 24, 2018

As Above, So Below

October 17, 2018

As Below, So Above

October 10, 2018

A Civil Disagreement

October 3, 2018

Zombie Pipeline

September 26, 2018

Too Little, Too Late

September 19, 2018

Open Secret Disclosed

September 12, 2018

Consent of the Governed

September 5, 2018

Let the People Decide

August 29, 2018

3-in-1 Oil

August 22, 2018

A Deeper Dive

August 15, 2018

Blue Wave Stalls Offshore

August 8, 2018

Mountains of Our Efforts

August 1, 2018


July 25, 2018

Trust Is Reciprocal

July 18, 2018

Pressure in the Bottle

July 11, 2018

Sharing the Pain

July 4, 2018

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