Friday, June 8, 2018

A closer look at SCOTUS’s gay cake decision


Ed. Providing far more than a simple re-hash of the Masterpiece Cake Shop decision, Author Ed Straker discusses the judicial activism of Justice Anthony Kennedy which saddled the American people with “homosexual rights” never dreamed of in the Constitution. 

In his 2017, Obergefell decision, Justice Kennedy manufactured the dangerous and Anti-Constitution standard of "Reasoned Judgement." According to Kennedy, a judge may--indeed SHOULD--institute a new, Fundamental Right "whenever their 'reasoned judgement' suggests that it is appropriate to do so."


Consider the effect of this unprecedented grab for judicial power on liberal, activist judges across the nation! This self-infatuated class already display contempt for the Constitution and the laws of the land; and now they are provided the means of arguing that their extra-Constituional perversions are fundamentally sound, deriving their authority from the Supreme Court itself!


The following article appeared in the American Thinker on June 6th


The Supreme Court decided 7-2 that cake-maker Jack Phillips apparently did not have to make a cake for a homosexual ceremony.  I say "apparently" because the court's reasoning was convoluted.  Instead of saying outright that custom cake-makers don't have an obligation to produce custom made cakes for homosexual cermonies, the court simply said the local human rights commission didn't consider his right to follow his religious belief when he refused to make a wedding cake for a same-sex couple.
Jack Phillips

By a 7-2 vote, the court said Jack Phillips, the Colorado baker, was treated with hostility and bias by a state commission that concluded his actions violated a state anti-discrimination law.

"The commission's hostility [to Phillips and his religious beliefs] was inconsistent with the First Amendment's guarantee that our laws be applied in a manner that is neutral toward religion," [Justice] Kennedy wrote.  "Phillips was entitled to a neutral decision-maker who would give full and fair consideration to his religious objection."

So the Court decided for Phillips without giving a broader ruling.

"The outcome of other cases like this in other circumstances must await further elaboration in the courts," said Kennedy, who has authored most of the court's most significant gay rights cases.

This may seem puzzling until you consider the composition of the court.  In the seven-member majority were four of the court's conservatives, Clarence Thomas, Samuel A. Alito, Jr.; Neil M. Gorsuch; and Chief Justice John G. Roberts, Jr.  Also joining the decision were two hard-left justices, Stephen G. Breyer and Elena Kagan.  The opinion was written by Justice Kennedy.

It's unlikely whether Justices Breyer and Kagan, who are doctrinaire leftists, would have agreed to a broader ruling.  Even so, they wouldn't have been needed if Justice Kennedy had been inclined to give a broader opinion.

Justice Kennedy created the "right" of two men or two women to "marry" out of thin air several years ago, and now he is making up the law as he goes along.  He has not yet decided how far this newly created right goes, and since he is unmoored by the framework of the Constitution, he is choosing, for now, to decide these disputes on a case-by-case basis.  This is what happens when you abandon an established body of law and operate based on feelings.  Not only do you throw out consistency, but you make it hard to apply the law consistently because there is no consistent law to apply.
Then why did you manufacture homosexual marriage law, Justice K?

So there will continue to be huge clusters of litigation about people who are coerced into participating in same-sex ceremonies.  Perhaps people who design wedding cakes will not be forced into participating, although that is not entirely clear from this opinion.  Probably people who provide goods for weddings, such as flowers or tables or tablecloths, will be required to do so.

What about businesspeople who have to participate in weddings, such as caterers, photographers, and musicians?  The First Amendment has been held to protect freedom of association, but with freedom of association must also logically come freedom from association.  It is one thing to sell the fish that are eaten at a gay ceremony, but it's another to actually have to go to the ceremony to fry it.

Homosexuals have been free to pursue relationships with each other for a long time.  What has changed is that everyone else has been forced to accept it and now at times even participate in it.  I saw an amazing opinion piece in the New York Times yesterday from a gay rights advocate who suggested amending the Constitution to protect gay rights.  That would have been a much better course for the country, whether it succeeded or not, than what the Supreme Court did: informally amending the Constitution on its own and playing by ear, with the whirlwind of lawsuits created by its irresponsibility.

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