Favorite

Silly acts, good law 

It was unavoidable that the struggle by sexual minorities to gain the equal treatment that the Constitution promises them would devolve into silliness and that the majestic courts of the land would have to get their dignity sullied in order to resolve the issues.

There was the grave question of which bathroom transgender people should be forced by law to use, which even Donald Trump thought was silly. Let them use the one they feel comfortable using, he said. Case solved, pretty much.

Last week, Governor Hutchinson, who has a fairly low threshold for nonsense, had to step in to order a dithering Health Department, backed by a dithering attorney general and a few Republican legislators, to treat parents, including same-sex parents, the same in issuing birth certificates, just as the U.S. Supreme Court said the Constitution required.

Lesbian parents could not get the state to put their names on the birth certificate, while opposite-sex couples, as always, put their names on the birth certificate of a child born of a surrogate. A lawsuit went up to the state Supreme Court, which sent it back to the trial judge, Tim Fox, to settle. Attorney General Leslie Rutledge was battling to keep the couples at bay. Judge Fox finally gave the Health Department a deadline to adopt a rule that settled the issue and until it did so to stop issuing birth certificates at all. The Health Department posted a notice that day halting the issuance of birth certificates.

Hutchinson took a few moments that morning to scribble an order to the department resolving the matter. Treat them the same, he ordered. Governing sometimes is easy.

The U.S. Supreme Court is finding it exceedingly hard, or maybe it is just the court's governing member, Anthony Kennedy, who must decide whether the owner of the Masterpiece Cakeshop, who opposes same-sex marriage, had to obey a Colorado state law that says businesses cannot discriminate against customers based on race, sexual identity, religion or whatever. His lawyers maintain that the First Amendment protection of religious freedom gives him the right to refuse to serve them.

The justices heard arguments and debated it squeamishly two weeks ago. Kennedy, Ronald Reagan's old confederate, probably will write the opinion, because he has taken the unpopular role of writing the order in all of the gay-rights cases going back to Lawrence v. Texas, which struck down state sodomy laws in 2003 (a year after the Arkansas Supreme Court did so). Kennedy has broken ranks with the court's Republican majority a few times, notably on the equal-protection cases. He is under pressure not to abandon the court's originalists again on the cake issue. The originalists, formerly led by Antonin Scalia, are now led by his successor, Neil Gorsuch.

Originalism is the doctrine that searches for plausible-sounding ways to hold that the Constitution does not mean what it says.

It was baffling to most people why a gay couple wanted a guy who abhorred them because they wanted to get married to bake a cake for them. As the conservative columnist David Brooks wondered, why give him their business in the first place? Just be nice and find an agreeable baker.

But they were hurt, as you might understand, and wanted it made clear for others that equality under the law was manifest, even for a silly cake.

So we have another test of Justice Oliver Wendell Holmes' theory that great cases produce bad law or its corollary, that silly cases make good law.

On its basic level, Masterpiece Cakeshop is the latest in an ancient line of disputes over using religion and spiritual texts as a pretext for exercising individual prejudices. The same book of Leviticus that says you should kill men who sleep together also instructs you never to violate God's laws against eating pork, shellfish, catfish, salmon or tuna — or apparently to sell them.

Favorable biblical references to slavery and segregation and unfavorable ones to antithetical religions were once claimed as First Amendment grounds to discriminate. Now there is an Internet war among clerics over whether the Bible forbids same-sex marriage when it makes two references to matrimony as matching a man and a woman. That must mean it forbids all other marriages.

But wait, what about all those favorable biblical references to having many wives and concubines, not just one?

Back in 1968, the Supreme Court held that a South Carolina barbecue joint could not refuse to serve black customers on religious grounds (he claimed the Civil Rights Act of 1964 "contravenes the will of God"). "Patently frivolous," the court said of his claim.

So the cakeshop owner says baking is a form of art and that his First Amendment right to express only ideas that match his sacred beliefs exceeds a couple's right to be treated equally. Is poor Anthony Kennedy up to writing again that this is patently frivolous?

Favorite

Comments

Subscribe to this thread:

Add a comment

More by Ernest Dumas

  • Attacked

    Courtney Goodson won her race to stay on the state Supreme Court last week with something to spare, in spite of the unprecedented sludge of dark-money ads that tried to persuade people that she was an execrable wench who was capable of almost anything.
    • Nov 15, 2018
  • The legacy of the 1992 'Save the River Parks' campaign

    If not for an unlikely assortment of activists, lawyers and a poultry magnate, a highway in Riverdale would have prevented the Big Dam Bridge from being built.
    • Oct 18, 2018
  • Such good news

    Health care has moved to the top of people's concerns this election year even as the "good" news keeps coming. The question is, how much more good news can people stand?
    • Oct 18, 2018
  • More »

Readers also liked…

  • Along the civil rights trail

    A convergence of events in recent days signaled again how far we have come and how far we have yet to go in civil rights.
    • Jan 18, 2018
  • The Oval outhouse

    One thing all Americans finally can agree upon is that public discourse has coarsened irretrievably in the era of Donald Trump and largely at his instance.
    • Jan 18, 2018
  • Shrugging off sulfides

    The Arkansas Democrat-Gazette reported a shocker on its front page Sunday. The rotten-egg odor from the Koch brothers' sprawling paper plant at Crossett is still making people sick, but the state's pollution control agency is unaware of the problem.
    • Mar 29, 2018

Latest in Ernest Dumas

  • Attacked

    Courtney Goodson won her race to stay on the state Supreme Court last week with something to spare, in spite of the unprecedented sludge of dark-money ads that tried to persuade people that she was an execrable wench who was capable of almost anything.
    • Nov 15, 2018
  • Such good news

    Health care has moved to the top of people's concerns this election year even as the "good" news keeps coming. The question is, how much more good news can people stand?
    • Oct 18, 2018
  • No courage

    Political courage — doing what needs to be done even if it is not wildly popular — is a vanishing commodity.
    • Oct 11, 2018
  • More »

Most Viewed

  • On to 2020

    I'll add my two cents to the chorus of advice for Democrats in 2020: Do not limit your imagination by falling back on candidates who have previously appeared on the ballot.
 

© 2018 Arkansas Times | 201 East Markham, Suite 200, Little Rock, AR 72201
Powered by Foundation