Search Results for ‘"masterpiece cakeshop"’

Michael McConnell on the Masterpiece Cakeshop case

The Stanford law professor has penned “Dressmakers, Bakers, and the Equality of Rights” for the forthcoming volume “Religious Freedom, LGBT Rights, and the Prospects for Common Ground” (William N. Eskridge, Jr. and Robin Fretwell Wilson, eds. 2018). [SSRN, Volokh] Abstract:

Using recent examples involving dressmakers refusing to create designs for the First Lady at the Trump inauguration, this paper explains why Masterpiece Cakeshop should be decided in favor the baker who refuses to create a wedding cake for a same-sex wedding ceremony, and why this should be understanding as an equality of rights, rather than prioritizing free speech over nondiscrimination.

Earlier on Masterpiece Cakeshop here.

Obergefell overturned?

My opinion piece in Monday’s Wall Street Journal offers eight reasons why, no matter who is the next justice, the Supreme Court will not overturn Obergefell v. Hodges, its 2015 same-sex marriage decision.

2. In deciding whether to respect stare decisis and follow a precedent deemed wrongly decided, justices apply standards that can appear wobbly and uncertain. But whatever else is on their minds, they always claim to take seriously the practical dangers of upending a decision on which many people have relied.

Few legal strokes would be as disruptive, yet fully avoidable, as trying to unscramble the Obergefell omelet. Large numbers of marriages would be legally nullified in a moment, imperiling everyday rights of inheritance, custody, pensions, tax status and much more. These effects would hit on day one because an earlier generation of social conservatives managed to write bans on same-sex marriage and equivalents into many state constitutions. Those bans would prevent elected officials from finding legal half-measures to avert massive dislocation for innocent persons.

The piece is paywalled, but Jonathan Adler has a write-up briefly summarizing some of its other points. I’ve discussed Pavan v. Smith here and Masterpiece Cakeshop here.

Supreme Court roundup

Supreme Court upholds travel ban

The Supreme Court yesterday in a 5-4 decision upheld the Trump administration’s travel ban, citing the relevant statute’s extreme deference toward executive branch national security determinations on the entry of persons, as well as the Court’s own historic deference toward executive branch discretion in this area.

The four liberal justices dissented, but did not agree on reasoning. Breyer and Kagan went for a low-key, minimalist fix — keep the injunction in place while ordering additional factfinding about implementation — that might have begun as an effort to craft a narrow decision conservatives would join. Only two Justices, Sotomayor and Ginsburg, went along with the arguments that persuaded the Ninth Circuit judges below.

Both dissents, however, stressed the significance of improper animus / discrimination against religious belief, the same issue championed by the Court’s conservatives in Masterpiece Cakeshop earlier this month.

Legal buffs may be interested in Thomas’s concurrence in which he pronounces universal injunctions “legally and historically dubious.”

Finally, and of interest to all Americans, the Court through its majority opinion officially repudiated Korematsu v. U.S. (1944), the decision in which it once upheld forced wartime internment of Japanese-Americans. Korematsu had never been officially repudiated until today.

The podcast above with Caleb Brown and Ilya Shapiro is at this link. Earlier here and here. Other views: Eugene Volokh, Ilya Somin. More: Roger Pilon.

Supreme Court roundup

A Cato-centric list:

Wedding cake cut five ways

I’ve got a piece up at the Weekly Standard on yesterday’s Masterpiece Cakeshop decision, on which a Supreme Court uniting 7-2 on result — but split five ways as to particulars — found the Colorado Civil Rights Commission to have operated unfairly, thus managing to dodge a substantive decision about the limits of forced expression. “Next time you run this process, skip the religious animus” is not the same as proclaiming a First Amendment right for the baker to turn down the wedding, though it may convey a significant message for the future in its own right.

More commentary: Ilya Shapiro (“the real action is foreshadowed by the concurring opinions”), Eugene Volokh (“will have little effect on other such same-sex wedding service provider cases, especially when government commissioners realize they shouldn’t say more about religion than is necessary”), John Corvino (opinion could put a brake on “rushing to dismiss our opponents as ‘despicable'”), David French (Kennedy’s emphasis on comparing the case with cake inquiries that offend other bakers bodes well for religious service providers), and Richard Epstein (“the worst kind of judicial minimalism”; what does the not-yet-legality of gay marriage at the time have to do with anything? and can Colorado reopen the case?), and earlier here. And you can listen to my guest appearance yesterday on the popular Clarence Mitchell IV (C4) show on Baltimore’s WBAL.

Labor law roundup

  • “I’m lovin’ it: McDonald’s settles joint employer case with NLRB” [Jon Hyman] Will NLRB junk its joint employer doctrine once and for all? [Scott Shackford, Reason, in December] String of welcome NLRB rulings on other topics in late 2017 [Sharon Block, On Labor, who should not be held responsible for my evaluation of the decisions as welcome] More: Connor Wolf, Inside Sources;
  • Union opt-out window at U.S. Dept. of Education will be open more than one 48-hour period per year [Frederick Hess and Grant Addison, AEI] Spot the logical flaw: claim that Janus and Masterpiece Cakeshop cases could combine to create new First Amendment right for public school teachers to strike [Andrew Strom, On Labor]
  • Eighth Circuit: federal labor law doesn’t protect workers against firing over IWW flyer-posting campaign falsely claiming restaurant’s food is unsafe IWW black cat[Daniel Pasternak, Employment Law Worldview; earlier here and here on Jimmy John’s/MikLin dispute]
  • Mark Pulliam remembers a giant of labor law, Prof. Sylvester Petro [Misrule of Law]
  • In Britain, Royal Mail cooperates with some of its union locals after they vote not to deliver Mr. Murdoch’s Sun paper to homes [Adam Withnall, Independent]
  • One libertarian economist’s view of right to work laws [David R. Henderson] Municipal home rule ventures into labor regulation can work both ways: “Local Right-to-Work Case Has National Implications” [Connor Wolf, Inside Sources on Lincolnshire, Ill. RTW ordinance before Seventh Circuit]

Free speech roundup

  • “Lucha Underground Wrestling Sends Legal Threat To Journalists For Publishing ‘Spoilers'” [Tim Geigner, TechDirt]
  • Watch what you say about lawyers: politically active Baton Rouge trial lawyer threatens political blog The Hayride over critical coverage [The Hayride, Robert Davis/Louisiana Record]
  • Update: Stanford’s Mark Jacobson drops defamation lawsuit against other scientists [Jonathan Adler, earlier]
  • Update: federal judge tells town of Sibley, Iowa to stop threatening resident who runs website complaining about way town smells [ACLU of Iowa, earlier]
  • Recent topics in FIRE “So To Speak” podcast series include Great Firewall of China, interview with former Evergreen State professor Bret Weinstein, Masterpiece Cakeshop case at SCOTUS, Is there a campus free speech crisis?
  • “Spanish Hate/Anti-Terrorism Speech Laws Doing Little But Locking Up Comedians, Artists, And Dissidents” [Tim Cushing, TechDirt; a recent Scottish case]

December 13 roundup

  • Cakes and coercion: “Endorse the state’s right to coerce speech or conscience and you have ceded a principle that can so easily come back to haunt you.” [Andrew Sullivan, New York mag] “The legal course has some advantages. You can use state power, ultimately the barrel of a gun, to compel people to do what you think is right.” [David Brooks] Yes, courts have often found a constitutional right to discriminate, so scratch that Masterpiece Cakeshop talking point [Eugene Volokh]
  • Fugitive Kentucky lawyer and disability-fraud king Eric Conn arrested in Honduras [Bill Chappell/NPR, earlier here and here]
  • As White House belatedly consults, heeds seasoned counsel, lawsuits against travel ban begin running out of steam [Ilya Shapiro, The Hill]
  • Cheers for restoring schools’ discretion to serve 1 percent chocolate milk, USDA, and next bring back whole milk [Stephanie Ebbs and Erin Dooley/ABC News, earlier]
  • Court hears oral argument on sports betting and state commandeering case Christie v. NCAA [Ilya Shapiro/Cato, Jacob Sullum, earlier]
  • At recent federal court showdown with Waymo, things went from bad to worse for Uber’s lawyers [Cyrus Farivar, ArsTechnica]

High Court debates wedding cakes and forced expression

“On the Left, some pine for a hard-line opinion that claims of religious liberty or free speech can never, ever provide an excuse for discrimination. But it’s not just the Alitos and Clarence Thomases who would oppose that outcome. All four liberal justices yesterday gave indications that even if they would not draw the line on compelled speech *here*, they would draw it *somewhere*.” My take on yesterday’s oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission is up at the New York Daily News.

The principles of free contract and association and the wrongness of compelled expression and participation will endure whether or not SCOTUS sees its way clear to recognizing them in this case. Earlier; Roger Pilon (“If there is intolerance here, it is from those who would force a man to choose between his religious beliefs and his livelihood”); Ilya Shapiro; Cato’s brief; Erica Goldberg. And I’m quoted in Brandon Ambrosino’s Washington Post coverage of the case (“the lasting influence is not primarily which side wins, but where to draw the line between what is and is not expression”) and by Chris Johnson in the Washington Blade (““Neither side [on the Court] wants to inflict a culture war on the country; they’re trying to work out something without culture war.”)