The Supreme Court

Yesterday’s 6 to 3 decision by the Supreme Court supporting Title VII LGBT protections surprised liberals, who assumed conservatives would vote as an ideological block against it. (In fact, it is the liberal block that has voted as an ideological block over the past few years; the five conservatives are much more likely to be independent and occasionally join the liberals). But it shouldn’t have surprised anyone. The conservatives tend to be textualists (ruling on what the law actually says instead of what they think might possibly have been in the mind of the legislators when they wrote the law), and the law’s text was unambiguous, as Justice Gorsuch made brilliantly clear in the first five lines of his opinion. And in fact the three dissents (Alito joined by Thomas, and Kavanaugh in a separate dissent) didn’t question the outcome, just the propriety of unelected judges making the ruling instead of elected representatives (though I don’t find their argument persuasive, since the text was so clear). Kavanaugh in fact went out of his way in his dissent to celebrate the substance of the ruling.

The next step will be interesting. It is always interesting when the Court has to deal with rights in conflict. The next step is to decide how this ruling applies to people who have religious objections to its consequences. On the one hand we are a country founded on the principle of religious freedom. On the other hand, if the Court gives too much weight to this than anyone can avoid any federal law by claiming a religious objection to it. Does the court want to allow sharia law to apply for Muslims (stoning adulterers, killing apostates, as commanded in the Qua’ran)?  Does the court want to allow multiple wives, as commanded by some Mormon sects? If I am a Quaker and opposed to war can I legally refuse to pay the portion of my taxes that supports the military? It is a very, very difficult issue, and it will be fascinating to see how the Court handles it.

When this issue has come up before, as in the Colorado Masterpiece Cake case, the Court has ruled on very narrow grounds to support the religious objection. And I see why - asking an artist to make a creation that offends his religious beliefs seems like a serious intrusion of government power.  Could the government also force a religious artist to make a scatological depiction of Jesus on the same basis? Well, the Court sidestepped the essential issue by making a very narrow ruling. Now they may be forced to face the whole issue. It will be interesting, and however they rule will no doubt outrage one side or the other of the culture wars.