Douglas Whaley. Law professor, gay rights advocate, atheist, heart transplant recipient, actor, director, novelist, playwright, bridge player, husband, father, cat owner, storyteller. Much humor and, since the writer is a teacher, advice on many topics.
The Supreme Court Did Not Rule That a Baker May Discriminate Against Gays
recent decision, Masterpiece
Cakeshop v. Colorado Civil Rights Commission, which I’ve
written about before when it first reached the United States Supreme Court (see
Related Posts below) pits a Colorado gay couple seeking a wedding cake against
a religious baker who refused to make it for them because he believes the bible
only allows men and women to marry.The
couple pursued him through the Colorado legal system and ended up with a
Colorado Court of Appeals decision in their favor, holding that the baker
violated a state statute forbidding discrimination on the basis (among other
things) of sexual orientation.An appeal
was taken to the United States Supreme Court, where the Justices would have to
draw some sort of line between the First Amendment right to religion freedom
and the right of the states to forbid discrimination on various grounds (race,
religion, sex, etc.).
my prior post I admitted that this is a hard question because if the Court were
to come down in favor of the gay couple it would be ordering the baker to
choose between doing something truly against his religious conviction or close
his shop.There are legitimate arguments
on both sides, but almost impossible to find one that draws a line fair to
everyone.Further complicating things is
that the Court has four liberals (Ginsberg, Breyer, Kagan, and Sotomayer), four
conservatives (Roberts, Alito, Thomas, and Gorsuch), and Anthony Kennedy, ever
in the middle and therefore the most powerful judge on the planet.Kennedy was also the author of the majority
opinion in the Obergefell case establishing
a constitutional right for gays to marry, just one of a number of opinions in
favor of gay rights he has written throughout his long tenure on the Court.
the end the Court ducked the issue entirely and held for the baker by saying
that the lower Colorado proceedings were unconstitutionally tainted by an
announced distaste for religion, thus violating the First Amendment.That Amendment, Kennedy’s opinion states,
forbids discrimination against religion (which of course is true), and the
Colorado decisions were wrong in not giving the baker’s religious views serious
couple of things about this:
1.The baker might still lose if the gay couple
renews the Colorado process and this time the Colorado system gives due
consideration to the baker’s religious arguments but then finds that they do
not outweigh the gays’ right to a wedding cake.
2.The current Supreme Court opinion does not in
any way answer the central question: does a sincere religious belief that gays
should not marry justify the baker’s refusal to bake a cake for their
wedding?That won’t be resolved until
another case raising that issue reaches the Court.
3.If Kennedy retires at the end of this month
(the Court’s term runs from October through June), Trump will appoint his
replacement and then there will be five conservatives to write the next majority
opinion, and four liberals dissenting on the losing side.But if Kennedy hangs on past the November
elections and Democrats take over the Senate, then Trump could not get a
conservative Justice approved and he would have to nominate a moderate (someone
close to Kennedy).
4.The decision was 7-2, with two of the
liberals (Breyer and Kagan) joining the four conservatives and Kennedy, and two
of the liberals (Ginsberg and Sotomayer) dissenting.This is because (I would guess) that
otherwise Kennedy would have joined the four conservatives whole hog, and gays
would henceforth be trumped by religious objections to their existence.After this decision that question is still up
in the air, for which I, for one, am grateful.
the Court next takes up this same issue (and there are cases in the judicial
pipeline) what is the likely result?Well, alas, that depends on who is on the Court.If it remains the same personnel then, as
usual, it would be up to Kennedy.He
waffled in this case, being sympathetic to the argument that it is cruel to
make a religious man bake and decorate a cake that conflicts with his deeply
held personal beliefs, but then adding:
decision in favor of the baker would have to be sufficiently constrained, lest
all purveyors of goods and services who object to gay marriages for moral and religious
reasons in effect be allowed to put up signs saying “no goods or services will
be sold if they will be used for gay marriages,” something that would impose a
serious stigma on gay persons.
that’s right, Anthony! Remember that and
cling to it. The Court has long held
that a religious conviction does not permit, for example, a white supremacist
who reads the bible as condemning blacks to act upon that belief when conducting a business.Why should the rules be different if the
bible condemns (as it does, see below) gays?May a
Muslim discriminate against a Jew when serving the latter a sandwich in a restaurant?No.Then why is this even an issue with gays?Hmm.Well, society has historically discriminated against gays and only very
recently has this viewpoint shifted so that a majority does not.Perhaps in 2018 gays are still not worthy of
the same protection as other minorities.
perhaps they are.It all depends on the
makeup of the Court when next it must choose between a sincere religious belief
and the right of gays to be treated like everybody else.
Since I graduated from law school in 1968 I've always had some sort of legal practice which varied from extensive in the early years, to these days when I'm retired and mostly just doing consulting work for a hefty fee.In this period I've written a lot of letters threatening legal action on behalf of my client (or, on the rare occasion, myself—see Related Posts below).In the classroom I've passed on my advice on how to create an effective letter, and now I offer it to you, blog reader.
A letter threatening legal action almost always discombobulates a recipient who is not him/herself routinely involved in legal actions.I tell my law students that in their coming practices they will often receive such letters (or nowadays even emails), and they will calmly evaluate what to do about them depending on the legal issues involved and the wisdom of litigating them.But the non-legal recipient of such a letter is in a very differen…
Having a dispute with a creditor? One way to win it (and fast) is to send that creditor a "payment in full" check [hereafter "PIFC"] and end it things in your favor. How does this bit of legal magic work? Read on.
It's always been the law that if you and I have an existing contract, either one of us can propose a modification to that contract, and if we both agree, the contract changes accordingly. There are technical names for this. Say, for instance, that I owe you an undisputed amount of $500. I send you an email and ask if you would take my horse Dobbins is settlement of the debt, and you reply in the affirmative. My offer of something different than what was originally owed (the horse for the money) is called the offer of an "accord." Your agreement to take Dobbins is the "satisfaction." Thus an "accord and satisfaction" in our law is nothing more than a fancy name for a modification agreement. I no longer owe you $500; I owe…
For the last few years I have been crossing the country giving lectures on what I now call the "Golden Rule of Mortgage Foreclosures," which is that such foreclosures cannot proceed without production of the original promissory note signed at the closing. A symposium at Western State University Law School last year at which I gave the keynote address turned into a law review article on point, and that law review article is reprinted below in full. The correct citation for the printed version is 39 W. St. U. L. Rev. 313 (2012). As subsequent developments occur I will add them in red to the original article below. Any corrections or suggestions may be sent to me at email@example.com.
Mortgage Foreclosures, Promissory
Notes, and the Uniform Commercial Code By Douglas J. Whaley*
Introduction As is true
of many things in life the Uniform Commercial Code’s statutes concerning the