A bad day for equal rights at the U.S. Supreme Court | Arkansas Blog

Tuesday, December 5, 2017

A bad day for equal rights at the U.S. Supreme Court

Posted By on Tue, Dec 5, 2017 at 12:21 PM

click to enlarge OUTSIDE COURT: Demostrators gathered for arguments in case of cake baker who doesn't want to serve his cake at a gay wedding.
  • OUTSIDE COURT: Demostrators gathered for arguments in case of cake baker who doesn't want to serve his cake at a gay wedding.
Think Progress, a progressive website, didn't like the way questioning went at the U.S. Supreme Court on the question of whether a cake baker can refuse to make a cake for the wedding of a same-sex couple.

The cake baker's lawyer is aiming for a 1st Amendment free expression protection for the baker. And, by Think Progress' account, the lawyer didn't do so well handling questions from liberal judges. What about a hairstyle? Makeup? Flowers?

But Justice Anthony Kennedy, an important swing vote, seemed riled by a suggestion that religion couldn't be used as a ground for discrimination (a bedrock principle now in Arkansas pro-discrimination law.)

“Tolerance is essential in a free society,” Kennedy lectured Yarger. The state, Kennedy continued, has not been particularly tolerant towards [the baker] Mr. Phillips. “There are other shops,” Kennedy concluded, suggesting that same-sex couples should be forced to go door to door to other bakeries until they find one willing to serve them.

Kennedy appears to be floating two entirely separate rationales for a decision in favor of Mr. Phillips here.

One could potentially be quite narrow, invalidating this particular ruling due to poorly worded statements by one or two state commissioners, but leaving intact Colorado and other states’ ability to enforce their civil rights laws so long as their watch their tongues.

The other rationale, meanwhile, could be extraordinarily sweeping — the equivalent of telling a black person in the Jim Crow South that it was fine if the Woolworth’s lunch counter won’t serve them, so long as there “are other shops” up the road that will sell African Americans lunch.

The arguments follow by a day the court's refusal to intervene for now in a Texas Supreme Court decision ordering a trial of a case in which anti-gay advocates are attempting to prevent the city Houston from giving spousal benefits to those in same-sex marriages.

The court Monday, however, did find some religious discrimination it would tolerate — the Trump administration's immigration ban on several Muslim countries.

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