Tuesday, April 11, 2017

Could Masterpiece Cakeshop be an Early Test of Gorsuch?

Hopefully the answer to that question is “no.”

At Friday's conference the Supreme Court once again punted on Masterpiece Cakeshop v. Colorado Civil Rights Commission. This was the ninth time that the case was considered for certiorari (whether or not the Court chooses to hear the case). The case has been distributed, yet again, for the Thursday, April 13 conference.

The most likely explanation is that the Court has denied cert and one or more of the justices is authoring a dissent. After all, in 2014 the Court declined to hear a nearly identical case in Elane Photography v. Willock. Furthermore, there is applicable precedent in Employment Division v. Smith where Scalia, writing for the majority, concluded that there are no religious exemptions to otherwise valid laws.

The Court will hear the case if four of the justices vote to do so. The nightmare scenario is that this has been a 5-3 split and, somehow, the minority has been delaying matters until Scalia's replacement is seated. The case has now been distributed nine times since Trump was elected.

If the Court does now grant cert to this case it can reasonably be assumed that it is due to the arrival of Gorsuch. If that is the case it means that Gorsuch has not done what he promised he would to which is to respect precedent. If that is the case then we are royally screwed. It could mean that no nondiscrimination law is safe.

We might know more next Monday. Meanwhile my Trumpsomnia will continue unabated. I am also seething with anger that some gay people actually voted for Trump. And the mere thought of “Bernie or bust” threatens to embed pieces of an exploded cranium into my walls.

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