CAKE DAY AND IT’S NOT EVEN MY BIRTHDAY | Is Masterpiece Easy As Pie? Justices Don’t Seem To Think So | Travel Ban Gets A Win, Sports Betting Headed For Same Result
December 5, 2017
NOT EVEN MY BIRTHDAY
|Today, the justices hear arguments in the much-anticipated cake case: Masterpiece Cakeshop v. Colorado Civil Rights Commission. At issue is whether the First Amendment protects a Colorado baker from not having to make a cake for a same-sex couple. Several justices on the bench questioned what other types of business owners would be exempt if the high court made an exception for the baker from Colorado’s anti-discrimination law. The baker’s attorney distinguished between the baker’s highly-stylized, sculpted creations and the services provided by other professions that she said were “not speech.” But JUSTICE ELENA KAGAN returned in kind — “Some people might say that about cakes.” Robert Barnes and Ann E. Marimow with The Washington Post report.
HAVE YOUR CAKE
|Richard Wolf with USA Today notes the justices appeared deeply divided over today’s First Amendment case. He reports that as the man in the middle of it all, JUSTICE ANTHONY KENNEDY seemed to argue for both sides. Kennedy suggested that the baker’s refusal to make the cake could be seen as “an affront to the gay community.” But he also accused Colorado officials of exhibiting a “hostility to religion.” He also added, “Tolerance is essential in a free society.”
AND EAT IT TOO
|Everything we know about the Masterpiece case begs one, not-so-simple question: “How do you draw the line?” That’s exactly what JUSTICE ELENA KAGAN asked during arguments. David Savage with the Los Angeles Times reports now that all is said and done, justices appeared to not see how the high court could set a legal rule that would allow some businesses, but not others, to refuse to serve all customers.
TAKE A CHANCE ON ME
|Justices yesterday seemed ready to legalize sports betting, hearing the state of New Jersey’s claim that states are free to control their own laws—including in the area of gambling—unless Congress has adopted a federal regulatory policy to prohibit it. JUSTICE ANTHONY KENNEDY noted during the hearing, “So the citizens of the state of New Jersey are bound to obey a law that the state doesn’t want but that the federal government compels the state to have.” He said that would seem to violate the constitutional prohibition on what is called “commandeering.”
BACKING THE BAN
|The Supreme Court yesterday allowed the third version of DONALD TRUMP’S travel ban to go into effect while legal challenges against it continue to move through the courts. JUSTICES RUTH BADER GINSBURG and SONIA SOTOMAYOR said they would have denied the request to allow the ban to go into effect.
IS IT TOO SOON TO DO THIS YET, CUZ I KNOW THAT IT'S DELICATE
|From “See you in court!” to the Supreme Court, Jaweed Kaleem with the Los Angeles Times takes stock of who’s up and who’s down in the race to implement DONALD TRUMP’S travel ban. He writes, “It’s a battle in which each side has claimed major wins. Judges have used Trump’s tweets, campaign statements and verbal outbursts to knock down the ban, ruling repeatedly that it discriminates against Muslims and violates immigration law.” But Trump was the big winner with yesterday’s SCOTUS ruling, and for now, most nationals of Syria, Libya, Iran, Yemen, Chad and North Korea will not be allowed into the United States. The Supreme Court is still widely expected to conduct a full legal review of the ban, though that has not yet been scheduled.
TOP-ED
|NBA Commissioner, Adam Silver, opines in The New York Times that the Supreme Court should allow betting on professional sports. For more than two decades, the NBA has opposed the expansion of legal sports betting. However, this op-ed signals a changing of the tides. Silver writes, “The laws on sports betting should be changed. Congress should adopt a federal framework that allows states to authorize betting on professional sports, subject to strict regulatory requirements and technological safeguards.” He also adds, “Let me be clear: Any new approach must ensure the integrity of the game. One of my most important responsibilities as commissioner of the NBA is to protect the integrity of professional basketball and preserve public confidence in the league and our sport. I oppose any course of action that would compromise these objectives. But I believe that sports betting should be brought out of the underground and into the sunlight where it can be appropriately monitored and regulated.”
CAKING
|Need more cake case coverage (or alliteration, for that matter)? Read the argument re-cap from The Wall Street Journal, providing a play-by-play of this morning’s hearing and some final thoughts from Supreme Court reporter, Jess Bravin.
OTHER NEWS
How A Supreme Court Decision For Masterpiece Cakeshop Would Harm Religious Minorities
Slate“Jack Phillips is right about one thing: religious liberty is a bedrock American principle. However, if the Supreme Court truly wants to protect that principle it should uphold, not weaken, civil rights laws. Liberty and equality are mutually reinforcing values, and both are weakened when they are placed at odds.”
Chris Christie's Big Gamble
Slate“But if you’re a progressive eager to stick it to the federal government at this political moment, be careful. A ruling against New Jersey would imperil state experimentation—which, right now, means shielding sanctuary cities and marijuana programs from federal oppression. (The feds can still punish undocumented immigrants and marijuana users, but it can’t make states do it for them.) Under the next administration, however, liberals may wish to use federal power to regulate red states, only to be thwarted by the anti-commandeering doctrine. Democrats would do well not to bet the house on states’ rights.”
The Colorado Cake Case Is As Easy As Pie
The New York Times“Mr. Phillips is free to express his dissent from Colorado’s equal-service rule, as he has done. He has communicated his views about marriage for same-sex couples far and wide, appearing on national television and in the pages of this newspaper. That’s exactly what the First Amendment protects. But when he opens a business that holds itself out as open to the public, he can’t use those beliefs to discriminate in violation of state law.”
Déjà Vu "No Cake For You"
Harvard Law Review Blog“In the context of LGBTQ protections, the courts, the commercial sector, and the country are entirely capable of operating under generally applicable neutral laws while ensuring due respect to the personal religious views of individuals. Antidiscrimination laws, bolstered by the Supreme Court’s rulings, have undergirded the extraordinary advancements that this country can make. But the continued advancement of equality is not inevitable. The Supreme Court can and should preserve the critical protections of public accommodations laws, which shield us all, while also duly guarding individual religious liberty.”