SCOTUS – National News Roundup

This week felt slow at its start, but it started churning out stories hard and fast by the time the weekend wrapped. I’m going to cover most of this week’s stories today, but there are a couple we’ll have to punt to next week–it’s that kind of cycle, apparently.

Standard standing reminders still apply: I may be well into my seventh year of journalism, but I summarize news within my areas of expertise. NNR summaries often contain some detailed analysis that’s outside my expertise–I’m a lawyer, not a strike!–but all offroad adventures are marked with an asterisk. And, of course, for the things that are within my lane, I’m offering context that shouldn’t be considered legal advice. Okay, I think that’s about it for the disclaimers. Onward to the news!

Cleanup in Aisle 45:

After a blessed week off, we’re back to Election Rejection news about January 6 and Cool Ranch Mussolini crimes. Here’s what has happened:

Sedition Stories (again). By far, the biggest January 6 story is that a jury found four Proud Boys guilty of 31 counts of seditious conspiracy. This marks the second alt-right group convicted, as several Oathkeepers were convicted of similar charges in two separate proceedings in March. These four defendants are potentially facing up to twenty years in prison, though the sentencing will be handled separately later this month. Meanwhile, in Cool Ranch Mussolini news, eight Georgia Republicans have flipped on him in the election interference case against him down there. And just today, the jury on the E. Jean Carroll civil trial found him liable for $5M to her for sexual assault and defamation.

The main news stories on the Biden Rebuilding front this week are FDA and CDC updates. Here’s what I have for you:

FDA and PHE. This week marks the official end of the public health emergency, both nationally per the Biden administration and globally per the WHO. This has a number of implications, most of which involve protections, flexibilities, or coverage ending. That said, we’re getting a temporary extension for virtual prescriptions for controlled substances, because 38,000 people asked to continue it–and I’m pretty happy about this, because I was one of them. Meanwhile, the FDA is considering making hormonal medications commonly used as contraceptives over-the-counter, which will likely be a significant support for the reproductive health landscape if it happens. And in other FDA news, they approved the first vaccine for respiratory syncytial virus (RSV), which has been in development for decades.

Your New Normal:

Extremely Normal SCOTUS and Senate News (again again). I swear some week we’ll stop having new stories about how corrupt Clarence Thomas is, but this week is apparently not that week. The first story this time was that Mein Kampf devotee Harlan Crow is apparently paying for Thomas’s kid’s private school–which, as I’m sure you don’t need me to tell you, is not normal. Then the Washington Post broke another story which is frankly much worse, and I can’t believe we’re not talking more about it. Apparently, conservative lobbyist Leonard Leo, in 2012, laundered $25K to Ginni Thomas through a nonprofit he consults for called the Judicial Education Project. He did this by having Kellyanne Conway bill the Judicial Education Project $25K for “Supplement for Constitution Polling and Opinion Consulting,” sending the resulting $25K directly to Ginni Thomas, and instructing Kellyanne Conway to make sure the documentation had “No mention of Ginni, of course.” The Judicial Education Project then promptly appeared in front of SCOTUS for Shelby County v. Holder, an important voting rights case which appears to be the basis of the payment. Clarence Thomas voted in favor of the Judicial Education Project’s position and wrote a concurrence, resulting in the loss of voting rights for millions of people. In case you are wondering whether a nonprofit literally called the Judicial Education Project is supposed to give thousands of dollars directly to the household of a Supreme Court justice they are intending to influence on an upcoming landmark court case… uh, no, no they are not.
WGA Strike Begins. The Writers Guild of America began striking last week, concerned about increasing job cuts, consistent low pay, and encroaching AI use in writing rooms. It’s not clear how this will impact Hollywood, but the last time the WGA went on strike in 2007, it lasted 100 solid days before reaching resolution. It’s helpful to know that the WGA is not asking for a boycott of streaming services, but rather is seeking support of strike funds such as the Entertainment Community Fund.

The Bad:

This Week’s Avoidable Deaths. We lost a lot of people to preventable violence this week. In New York, a white passenger fatally choked fellow rider Jordan Neely on the subway when Neely began yelling and pacing. As I type this, no one has been charged in Neely’s death even though it has been ruled a homicide by medical examination. We also had several gun homicides in Texas. At the top of the week, the man in Cleveland Texas who fatally shot five neighbors was picked up by police along with accomplices. Meanwhile, a few days later, a white supremacist opened fire in a Dallas area mall, resulting in eight deaths and seven injuries. And in Atlanta, there was a mass shooting at Northside Medical Midtown, resulting in one death and four injuries as well as an eight-hour manhunt to find the shooter. I feel it is necessary to note that all of these stories are senseless and traumatizing tragedies that could have been prevented by more responsible gun laws and better behavioral health crisis response.

The Good:

Recent Health Resilience. In addition to the FDA news above, this week they approved the first vaccine for respiratory syncytial virus (RSV). This vaccine has been in development for decades, and it’s a really big deal that it’s approved!

So that’s what I have for you this week, and I’m sorry, there are no news refunds. For making it through, you deserve this cauliflower snack time and a more functional government. I’ll be back next week with more restructured and improved news, and I hope you will be back as well–but in the meantime, feel free to ping the National News Roundup ask box, which is there for your constructive comments. Send me questions! Send me feedback! Send me more hours in the day!

I’ve seen a lot of people confused about what the Masterpiece Cakeshop decision means, and it’s fair that it’s confusing to people — the Court ruled for the bakery, except they really didn’t, except it does actually create some problems for same-sex couples. I’m doing a drive-by analysis to try to clear things up, and will incorporate notes from the remaining two concurrences and the dissent once I’m able. (But as you can imagine, between this and the Jane Doe case this was a busy day at work, so Today is Not That Day!) If you’re super short on time, here’s the tl; dr version: It doesn’t create license to discriminate, but that doesn’t mean there are no consequences for LGBTA people after today’s ruling.

Main holding:

“When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. . . . [T]he Commission’s actions here violated the Free Exercise Clause, and its order must be set aside.” (taken from page 3 of the opinion, for those playing the home game)

So what does that actually mean?

It means the the Colorado Civil Rights Commission done messed up by being openly contemptuous of religion.

Okay, why?

Because the Free Exercise Clause and Establishment Clause of the Constitution collectively say that the state can’t be openly for or against any particular religion. So the Commission took it a step too far when one of its members invoked the Holocaust and slavery to say that “one of the most despicable pieces of rhetoric that people [like the cake guy] can use [is] to use their religion to hurt others.” (quote from page 14)

So it didn’t say that people can discriminate against LGBT folks by saying it’s their religion?

The court tried to punt that entire question by doing things that made it hard to use this case for anything else. They hung their hat on some stuff that definitely can’t be used again:

They stressed that Obergefell (the case that legalized same-sex marriage throughout the country) hadn’t happened yet, and said that this gave the cake shop a reasonable expectation of the legality of their actions that obviously wouldn’t exist moving forward. (p. 11)
They focused almost exclusively on what the Commission did, rather than what the cake shop owner did, which means that it’s harder for future business owners to say that the opinion applies to them. (pages 13–18)
They literally said in the opinion that this was what they were doing: “Any 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 serious stigma on gay persons.” (emphasis mine)(p. 12)
And just in case that was misconstrued: “The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws.” (emphasis mine)(p. 3)
And just in case that was misconstrued: “While . . . religious and philosophical rights are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” (p. 10)

So this can’t be used to hurt LGBTA people further down the pike?

Unfortunately, I don’t think that’s true either. Though the court was, for the most part, pretty good about narrowing the scope of what they were saying, as I noted above they touched upon equal access for protected classes (and that part is good). But then the court focused on what they described as the Commission’s “disparity in treatment” between offensive-because-discriminatory products (i.e. cakes that demean gay people), which they generally permitted owners to refuse, and offensive-because-of-religion products (i.e. a wedding cake for a gay couple), which the Commission did not permit this owner to refuse. They conclude that the discrepancy signals an “official disapproval” of the guy’s religious beliefs, and therefore hostility towards him. (pages 15, 16–17)

I personally think this is not only legally wrong, but dangerously legally wrong, because Equal Protection analysis is only supposed to apply to protected classes. LGBTA people are likely a protected class under the line of precedent started by Romer v. Evans and continued by Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges. But people who want to get to discriminate against them definitely aren’t, at least not on the basis of that desire to discriminate. So it was actually appropriate for the Commission to distinguish between the rights of people who are a protected class — i.e. same-sex couples — and the right of a person who wants to practice religion, because Christians, as a majority population, aren’t a protected class. Although I do agree with the Court that comparing the cake situation to the Holocaust was perhaps a bit much under the Free Exercise clause, so it’s less that it was decided wrong and more that the court left a hole big enough for malicious people to drive a truck through.

The way this opinion was written, specifically regarding the “disparate treatment” idea, opens up the door for harassing litigation brought by anti-gay groups with too much money and time on their hands. (Lambda Legal wasted no time in noting this, which I appreciate.) So malicious actors now can force courts to hear cases implicitly or explicitly arguing that they are being discriminated against if equal protection analysis is properly applied. Which is decidedly Not Awesome.

Is what you just said the same as what Justice Kagan said in her concurrence?

Effectively, yes — or at least, she said that the Commission properly distinguished between the gay-people-are-bad cakes analysis and the wedding cake analysis. Her logic was slightly different — she said that the bakers would refuse to sell a bigoted cake to anybody, and the Masterpiece Cakeshop guy specifically refused to sell a wedding cake, which he would sell to a straight couple, to a same-sex couple. So the discrimination was on the basis of the product in the first instance, which is allowed under public accommodations law, and the discrimination was on the basis of the consumer in the second instance, which isn’t allowed. And as part of that analysis, Kagan noted that “a vendor cannot escape a public accommodations law because he religion disapproves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait” (emphasis mine)(page 4). But since it was in a concurrence, that part isn’t controlling legal precedent; the part that says the opposite in the majority opinion is.

So where does this leave us?

Vigilant and awaiting more nonsense litigation, but with intact legal rights at the moment, I think is the honest answer. It’s not a great decision, and I wish the Supreme Court hadn’t heard the Masterpiece Cakeshop case at all, but the ACLU is correct that it’s also not a license to discriminate. All told, this could have been much, much worse — but that doesn’t mean it was harmless.

Tag: SCOTUS

Year 7, Week 16 (April 30–May 6)