Jury’s Anti-Gay Prejudice Must Not Send a Man to His Death

“Our law punishes people for what they do, not who they are.” Chief Justice John Roberts articulated this core constitutional principle last year in Buck v. Davis, a case that reversed the death sentence of an African-American man because a psychologist told the jury that he was more dangerous because he was black.

Just as the judiciary has a responsibility to address when racial prejudices poison jury deliberations, it must also act when challenged with the prospect of anti-gay bias in a capital murder trial.

Next month, the Supreme Court is being asked to accept a case in which Charles Rhines, a gay man in South Dakota convicted of murder in 1993, received the death penalty after deliberations included statements such as “If he’s gay we’d be sending him where he wants to go if we voted for [life in prison].”

Before being selected, the jurors were asked if they had any anti-gay prejudices that would prevent them from deciding Mr. Rhines’s case fairly. They said they could be impartial, but this turned out to be false.

During Mr. Rhines’s trial, the jurors heard that he had sexual relationships with other men, and later sent a note to the judge during their deliberations, showing that their decision-making was impacted by Mr. Rhines’s sexual orientation.

The note asked whether Mr. Rhines would be able to “mix with the general inmate population;” “create a group of followers or admirers;” “brag about his crime to other inmates, especially new and/or young men jailed for lesser crimes;” whether he would be “jailed alone or … have a cellmate;” or “marry or have conjugal visits.” Eight hours after the judge refused to answer these questions or address the anti-gay bias they revealed, the jury sentenced Mr. Rhines to death.

New evidence strengthens the claim that Mr. Rhines’s sentence was improperly swayed by anti-gay prejudice, clearly violating his Sixth and Fourteenth Amendment rights against bias and to due process respectively. In a signed statement, one juror explained that the jury “knew that he was a homosexual and thought that he shouldn’t be able to spend his life with men in prison.” A second juror remembered another juror saying, “If he’s gay we’d be sending him where he wants to go if we voted for [life in prison]. A third juror was clear that “[t]here was lots of discussion of homosexuality. There was a lot of disgust.”

Prejudice based on sexual orientation is long-standing and deeply rooted in American life, as is prejudice based on race. Given our country’s history, it is imperative that we continue to work to eliminate discrimination of all kinds from our criminal justice system.

In the Supreme Court’s 2017 decision addressing racial bias in Peña-Rodriguez v. Colorado, Justice Anthony Kennedy explained that this result “ensure[d] that our legal system remains capable of coming ever closer to the promise of equal treatment under the law.”

In this case, a juror’s desire to prevent Mr. Rhines from having sex with other men cannot stand as a deciding factor for sentencing him to death.

Mr. Rhines must be punished for his crime, and the Supreme Court now has an opportunity to review his sentence with clear eyes.

*Lorenc is the Executive Vice President of the Foundation for Economic Education (FEE.org). He chairs the boards of directors of America’s Future Foundation and the Coalition to Reduce Spending.

Voting Rights And Wrongs: How To End Gerrymandering (Part 2)

*This piece was originally posted on Crooks & Liars.

Before the end of June, and possibly within the next week, the Supreme Court will announce its decision in the partisan-gerrymandering case of Whitford v. Gill. Whitford is Wisconsin’s starkly Republican contribution to the ongoing national battle over the principle that, as Justice Ginsburg has said for the Court, “...voters should choose their representatives, not the other way around.”

(Note: All of the papers in Whitford - from the original complaint to the briefs of the parties and all the intervenors - can be found here, at the site of the Campaign Legal Center, which provides members of the plaintiffs’ legal team.)

Representatives Choose Their Voters in Wisconsin

The primary facts of Whitford, drawn from the Complaint, present a textbook case of representatives choosing their voters:

First, the Current Plan was not the result of an ordinary political process, where a bill is formulated through a give-and-take between political adversaries and subject to open debate. Instead, it was drawn up in secret by the Legislature’s Republican leadership, without consultation with Democratic leaders or rank-and-file members of either party, with the purpose and intent of altering what was already a favorable map to maximize the Republican Party’s partisan advantage. Then the proposal was rammed through the Assembly, without any opportunity for real debate.

Second, the Current Plan is also an outlier by another measure of partisan symmetry—partisan bias. Partisan bias is the difference in the share of seats that each party would win if they tied statewide, each receiving 50% of the vote. In 2012, there was a 13% bias in favor of Republicans; in a tied election, Republicans would have won 63% of the Assembly seats, with Democrats winning only 37%. In 2014, there was a 12% bias in favor of Republicans.

There are more details available about the Wisconsin legislature’s contracting out its districting process to avoid scrutiny, input, and participation from Wisconsin Democrats and the general public. They can be found at paragraphs 31-43 of the Complaint and at pages 4-10 of the plaintiffs’ opening Brief to the Court.

Plaintiffs' Civil-Rights Injuries from "Cracking and Packing"

The plaintiffs’ theory of the constitutional injury they have suffered is two-fold. First, they contend,

The Current Plan is a partisan gerrymander so extreme that it violates Plaintiffs’ Fourteenth Amendment right to equal protection of the laws. The Current Plan intentionally and severely packs and cracks Democratic voters, thus disproportionately wasting their votes, even though a neutral map could have been drawn instead. Accordingly, Wisconsin’s Act 43 deprives plaintiffs of their civil rights under color of state law in violation of 42 U.S.C. §§ 1983 and 1988.

Second, they argue that,

Plaintiffs and other Democratic voters in the state of Wisconsin have a First Amendment right to freely associate with each other without discrimination by the State based on that association; to participate in the political process and vote in favor of Democratic candidates without discrimination by the State because of the way they vote; and to express their political views without discrimination by the State because of the expression of those views or the content of their expression.

Wisconsin Act 43 violates the First and Fourteenth Amendments because it intentionally uses voters’ partisan affiliation to affect the weight of their votes. By taking the actions described above, the drafters of the Current Plan deliberately discriminated against plaintiffs and other Democratic voters because they are Democrats and have voted for and will vote for Democratic candidates and because of the positions they have expressed and will take on public affairs — that is, because of their views and the content of their expression.

By excessively and unreasonably cracking and packing groups of Democratic voters to intentionally weaken their voting power, the State of Wisconsin discriminated against Democratic voters, including the plaintiffs, on the basis of their voting choices, their political views, and the content of their expression.

Notwithstanding the relentless opacity and extreme partisanship of the Wisconsin Republicans’ districting process and result, it is uncertain whether the Court will declare that Wisconsin’s partisan gerrymandering is unconstitutional and, in the same judicial breath, deliver specific directions for correction.

The Court has held that partisan gerrymandering is “justiciable”: a subject where the Constitution permits federal court courts to adjudicate disputes. A majority of the current nine Justices view partisan gerrymandering as justiciable, but perhaps only a bare majority of five of them.

Will the Court Rule that Partisan Gerrymandering is Unconstitutional?

However, as noted here and many other places, the Court has never held any specific instance of partisan gerrymandering to be itself unconstitutional without other constitutional defects, such as discrimination against voters of color. And, in early 2018, the Court summarily and uninformatively stayed a lower-court order requiring North Carolina to redraw its district boundaries to cure partisan gerrymandering, meaning its gerrymandered district boundaries likely will remain in effect through the 2018 elections.

That said, in a 2015 case affirming Arizona voters’ power to create a redistricting commission separate from the state legislature, a majority of the Court reminded its audiences that the Constitution’s framers were concerned about the possibility of partisan gerrymandering:

The dominant purpose of the Elections Clause [of the U.S. Constitution], the historical record bears out, was to empower Congress to override state election rules, not to restrict the way States enact legislation...The Clause was also intended to act as a safeguard against manipulation of electoral rules by politicians and factions in the States to entrench themselves or place their interests over those of the electorate. As Madison urged, without the Elections Clause, “[w]henever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed.” ...The problem Madison identified has hardly lessened over time. (Emphasis added.)

The majority in that case included Justice Anthony Kennedy, who is still on the Court. As discussed below, he figures significantly in the Court’s current consideration of Whitford.

If earlier gerrymandering decisions are predictors of the Whitford decision, we literally might learn the individual views on gerrymandering of each of the Justices on the Court. In the Court’s last major partisan gerrymandering decision in 2006, League of United Latin American Citizens v. Perry (“LULAC”), the Court issued six overlapping and diverging opinions, joined by various coalitions of Justices, chiefly focusing on how Texas’s districting affected voters of color. This time, they might splinter again into different factions over the issues in the case.

The membership of the Court has changed since LULAC: Justices Stevens, Souter, and Scalia have been replaced by Justices Kagan, Sotomayor and Gorsuch. It’s facile, but generally accurate, to describe these changes as, “two liberals and one conservative replaced by two liberals and one conservative.”

The other Justices who participated in the LULAC decision remain on the Court: Chief Justice Roberts, Alito, and Thomas, who appear to be hostile to federal litigation over partisan-gerrymandering, and Justices Ginsburg and Breyer, who believe complaints about partisan gerrymandering may be adjudicated by the federal courts.

And Justice Kennedy is still on the Court.

Will Kennedy Be The Swing Vote?

For better and worse, the lineup card of the Court matters. A significant feature of the Whitford case is how plaintiffs' evidence and arguments aim to win the support of Justice Kennedy, the Court’s current and frequent swing-voter.

Kennedy wrote the partially-prevailing opinion in the LULAC case, which was joined by four other Justices (Stevens, Souter, Ginsburg, and Breyer). These five Justices concluded that partisan gerrymandering was justiciable and could be unconstitutional, but they didn’t find it in LULAC. More significantly, as noted here, Justice Kennedy believed that the Court did not have before it a straightforward and robust metric for finding partisan gerrymandering and assessing its intensity for constitutional analysis.

The Whitford case appears to give the Court (and, perhaps, Justice Kennedy) one such metric: the “efficiency gap,” developed by a political scientist and a law professor who also serves as one of the plaintiffs’ attorneys in Whitford. Per the Complaint, plaintiffs offer the efficiency gap as a measure of partisan gerrymandering to meet Kennedy’s concerns

The basic attributes of the efficiency gap metric are straightforward. (Note: When reading the example below, keep in mind that the example simplifies its arithmetic and results to whole numbers by assuming that only 50% of the votes are needed to win. As the authors note, when the arithmetic assumption is changed to 50% +1 vote, the results add a decimal place but no major changes ensue. These decimal points shrink further when the large numbers of votes in real elections are used as inputs for the metric.)

Take a state with 10 districts of 100 voters each, in which Party A wins 55 percent of the statewide vote (that is, 550 votes). Assume also that Party A wins 70 votes in districts 1–3, 54 votes in districts 4–8, and 35 votes in districts 9–10, and that the remaining votes are won by Party B. Then Party A wastes 20 votes in districts 1–3, 4 votes in districts 4–8, and 35 votes in districts 9–10. Similarly, Party B wastes 30 votes in districts 1– 3, 46 votes in districts 4–8, and 15 votes in districts 9–10. In sum, Party A wastes 150 votes and Party B wastes 350 votes.14 The difference between the parties’ wasted votes is 200, which when divided by 1,000 total votes produces an efficiency gap of 20 percent. Algebraically, this means that Party A wins 20 percent (or 2) more seats than it would have had the parties wasted equal numbers of votes.

Among other tests of its statistical validity, the authors of the efficiency-gap metric ran it on datasets for numerous election results since 1972 and ascertained that it accurately reflects the generally small partisan lean present in most districting plans since 1972, but also captures the increasing drift toward partisan gerrymandering since 2012, especially in Red states.

There is much more about the efficiency gap here (its original presentation in a law review article) and here (a review by its authors of methodological criticisms and their comparison of the gap metric to other gerrymandering metrics). It’s noteworthy that the creators of this metric think the efficiency gap is the best extant tool in analyzing gerrymandering data, but they also acknowledge the value in using other available metrics for testing for gerrymandering, because their results generally complement and confirm each other.

History Is A Dark Predictor

Notwithstanding the simplicity, clarity, and utility of the efficiency-gap metric, and the availability of other statistical tools that can assess the severity and durability of partisan gerrymandering, it’s advisable for proponents of voter-rights to prepare for a worst-case scenario in Whitford.

Several of the Court’s recent decisions on the rights of individual voters vis-a-vis the state and corporations don’t bode well for a decision prohibiting partisan gerrymandering. The Court has allowed states to make it harder for citizens to register and vote and has permitted a tidal wave of dark money in politics.

This tendency is evident in the Court decision in Shelby v. Holder on the Voting Rights Act (essentially eliminating pre-clearance by the U.S. Department of Justice for legislative districting plans in states that had a long history of racial discrimination at the ballot box); in decisions allowing states to enact Voter ID laws (such as Crawford v. Marion County Elections Board), even in the near total absence of provable vote-fraud; and its Citizens United decision.

On the other hand, the Court declined to intervene when the Pennsylvania Supreme Court, on state-law grounds, replaced the gerrymandered Congressional districting map created by the Republican-controlled legislature with a more balanced map.

Split Decision?

In short, a closely divided Court apparently is pulled in different directions on voters’ rights and powers, and, specifically, on partisan gerrymandering.

A majority of the Court, therefore, might conclude again that partisan gerrymandering is justiciable, but also find the highly gerrymandered Wisconsin districting plan is constitutionally tolerable. If that happens, proponents of voting rights probably will have to rely only on the kindness of state legislatures that broaden voting rights by enacting, for example, automatic voter registration, or on state supreme courts that, by court-imposed plan, limit partisan gerrymandering.

On the same side of the ledger is a second frustrating two-pronged possibility: the Court declares partisan gerrymandering as practiced in Wisconsin to be unconstitutional, but it cannot agree on a remedy. Or, the Court intentionally leaves construction of the remedy to the lower courts and the same Wisconsin public officials who gerrymandered their state in the first place.

Whitford might end well for opponents of partisan gerrymandering, but it’s unwise to count on that happening. There are too many ways the Court might leave Wisconsin’s legislative boundaries intact for the foreseeable future.

Partisan gerrymandering will more likely end only when voters elect legislative majorities that resist the siren-song of incumbency and enact laws that prohibit unconstitutional impairment of our right to vote.

Justice Kennedy Slices Cake Narrowly in Masterpiece Cake; but Justice Ginsburg is not Biting

Just in time for June nuptials, the U.S. Supreme Court on Monday, June 4, 2018 issued the long-awaited decision in Masterpiece Cakeshop Ltd v. Colorado Civil Rights Commission. Justice Anthony Kennedy authored the 7-2 opinion, which reversed the finding of discrimination against baker Jack Phillips made by the Colorado Civil Rights Commission and the Colorado Court of Appeals. In a fractured and narrowly tailored 58-page decision, the court decided the case not on freedom of speech-what-is-art grounds, but on the free exercise clause of the First Amendment.  What stands out about the decision is how unsatisfying it is. It’s not the full meal expected after the December 5, 2017 oral argument when the justices sought to distinguish off-the-shelf cake from made-to-order confections, or the artistic merits of a made-at-the-table Mexican mole dish from that of any creation from any chef.  The decision is merely an amuse-bouche (those bite-sized hors-d'oeuvres) that does not rank as even an appetizer.

Kennedy’s narrow slicing in the Masterpiece Cake case is a win for the Colorado baker on procedural due process grounds but leaves to another day the question of what to do when the rights of religion and inclusion and fair treatment collide.

Kennedy reasoned that the Colorado Civil Rights Commission had treated baker Jack Phillips unfairly, by acting similarly to the municipal authority in the (well known to first year con law students) Florida animal slaughtering case, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540-42 (1993).  There a Miami-adjacent city implemented a zoning law to deprive a religious minority of their use of animals, while permitting other religions and hunters, in the same township, to make free “use” of dead animal parts. Kennedy, while not finding that the Colorado Commission had passed anti-discrimination laws to target Christian-believing bakers, held that the Commission in implementing its anti-discrimination law showed “animus” to the baker’s belief.  Since [as Kennedy read the record below - - in a way disputed by others] one commissioner “went so far as to compare [the baker’s] invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust”  and no other commissioners disavowed those comments, and no one from Colorado  “expressed any concern with their content” and since the comments were not disavowed in Colorado’s briefs, the court concluded that there was doubt, of such a degree, “on the fairness and impartiality of the Commission’s adjudication.”

This, Kennedy reasoned, when coupled with the fact that the Colorado Commission permitted other bakers, to refuse on at least three occasions, “to discriminate” and to not make cakes with anti-gay messages, a different standard was applied to Phillips.  The behavior by Colorado “violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.” The free exercise clause obliged the commission to be above even “subtle departures from neutrality” on matters of religion.

Kennedy was the empathetic baker to Phillips’ “dilemma.”  In 2012, when Phillips, declined to make the Colorado couple’s cake, gay marriage was illegal in Colorado and Colorado permitted “other storekeepers some latitude to decline to create specific messages.”

Kennedy, who authored the landmark gay rights decisions of Windsor and Obergefell (upholding right of gays to marry), did not “back-track” on the legal right of gays to marry.   Rather, on the first page of the decision he teed up the dueling “difficult questions” about both reconciling a government’s aim “to protect the rights and dignity” of gay people who face discrimination in access to “goods and services” and permitting all people “to exercise fundamental freedoms” of the First and Fourteenth Amendments. Kennedy did not reach the question of what to do when those rights conflict and left, for another day and another “future controversy” on “facts similar to these.”  The behavior of the Colorado authorities did not exhibit the necessary “religious neutrality,” and that alone violated the baker’s free exercise of religion

The narrowness of the opinion explains how Justices Stephen Breyer and Elena Kagan signed on to become the seven-member majority. At oral argument, it was Breyer who cautioned the parties about his concern with crafting a ruling which would not “undermine every civil rights law since [the beginning of time],” “including everybody who has been discriminated against in very basic things of life, food, design of furniture, home and buildings.”

No such rule was suggested by the Masterpiece opinion. Invalidated as of Monday, and as to Phillips alone, is the Colorado commission’s underlying order which required him to do three things: (i) to sell the same wares to all-comers (straight and gay); (ii) to educate the bakery staff about Colorado’s antidiscrimination law and (iii) to keep track of, and report to the commission for two years, the number of customers who were refused service. And no wedding service provider other than a member of the clergy was specifically exempted from “neutrally applied and generally applicable” antidiscrimination laws. For “if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services and public accommodations.”

Kagan, joined by Breyer, wrote a concurrence in which she, with particularity, addressed the narrow procedural underpinnings of the ruling. She focused on the failure of the Colorado commission to be a neutral arbiter and the state could have better explained why it treated other bakers declining to make cakes differently from Phillips. Different outcomes as to the group of bakers “could” have been justified without a proceeding “infected with religious hostility or bias.”

Justices Clarence Thomas and Neil Gorsuch each wrote concurring opinions. Thomas thought the court should have addressed the baker’s free speech claim and that wedding cakes communicate a celebration of a marriage and that Phillips conduct was expressive. Thomas noted that he had warned in Obergefell that that decision would result in this day, where “religious liberty” would need to be vindicated. Gorsuch joined with part of Thomas’ 14-page opinion, Gorsuch took another 12 pages (in which Samuel Alito joined) to point out “the wrinkle” and limitations of the majority’s characterization of the baker’s plight and the commission’s failure.

And while Gorsuch characterized Phillips as someone who has “conclusively proven a First Amendment violation” in which for “almost six years” the baker faced “unlawful civil charges,” the dissenters, Justices Ruth Bader Ginsburg joined by Justice Sonia Sotomayor, did not see a lack of neutrality in the commission’s decision in distinguishing Phillips refusal with the refusal of other Colorado bakers to bake cakes for the man who ultimately filed an amici brief in the case by the name of “William Jack.” (News accounts identify Mr. Jack as a self-avowed Christian, mysteriously financed, who visited multiple Colorado bakeries after the Masterpiece Cake initial administrative ruling, insisting that the bakeries make him bible cakes with the words like “God hates sin” and “Homosexuality is detestable.” Jack then filed actions against the bakeries with the commission for varying reactions to the requests which included declinations and that of one baker who agreed to make the cake and give him an icing bag to decorate the cakes himself.)

Ginsburg’s dissent intimates that the majority was set up and being played by forces in the religious right. Specifically, Ginsburg notes that three months after the Colorado administrative law judge issued a ruling (one of the multiple levels of review by the Colorado authorities on the matter’s way up to the Colorado Court of Appeals) William Jack made his visits to other Colorado bakeries. Ginsburg said that the commission found no probable cause in support of William Jack’s claim of unequal treatment. As the commission noted, the Masterpiece gay couple requested no message on their cake and asked for a cake that was indistinguishable from any other cake that Phillips would have sold to others. Ginsburg argued that the cake-making requests “with which the Court aligns are hardly comparable” as all the bakers approached by Jack would have sold him any baked goods they would have sold anyone else.” She explained that Phillips’ refusal of the gay couple was “for no reason other than their sexual orientation [to deny them] a cake of the kind he regularly sold to others.” Ginsburg stressed that the majority’s emphasis on other baked goods Phillips sold to gay people was not relevant to the issue presented. Specifically, “that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple.”

And as for the sentiments expressed by “one or two commissioners,” whatever one might think of the statements (in their “historical context” as providing examples of discrimination), such comments should “not be taken to overcome Phillips refusal” to sell the cake to the couple. Unlike the majority, Ginsburg referenced the “several layers of independent decision-making” referring to the review by the administrative law judge after an extensive hearing, the review by the Colorado commission, and the judicial review provided by the Colorado courts, including the Court of Appeals that reviewed the case de novo. Ginsburg noted that “the Commission was but one” of these multiples avenues of review.

She concluded her dissent an expression of puzzlement with the majority’s reliance on only one case as precedent, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993). In Lukumi, a Florida city council made a law specifically to deprive a group of religious rights, and as Ginsburg noted, this case is “far removed” from those facts.

The decision in Masterpiece Cake resolves little except for the circumstances of the Colorado baker, who may now take the “next step” in a successful challenge to his state’s anti-discrimination laws.  This can include seeking legal fees from the state of Colorado as a “prevailing party” to the litigation. Such a request for legal fees is underway in California’s own cake case.  In Northern California’s Kern County, a California superior court judge this year exempted, on First Amendment grounds, a religiously minded baker’s refusal to make a wedding reception cake for a same-sex couple), the baker is now seeking from the state of California over $400,000 in legal fees as a “prevailing party” for having to defend against an administrative action. See, Department of Fair Employment and Housing v. Cathy’s Creation, Inc. dba Tastries, BCV-17-102855.

But the Colorado baker, Jack Phillips’ lawyers, Alliance Defending Freedom will be ready, for the next-as-yet-unidentified-case to which Justice Kennedy refers. Alliance well knows that there is no vetting process for one who claims to possess sincerely-held religious beliefs. The group’s fundraising material, which has in the past warned that the group will take action against those with an “anti-Christian agenda” or who advocate “homosexual behavior,” advertises that Alliance will take on cases in which believers have not been “able to freely live out their faith” in any aspect of society. Alliance provides free legal assistance to believers and, has media coaching available to get its “champions of liberty” ready for their close-ups.

One of Alliance’s representatives in 2014 likened Alliance’s support of those who refuse to serve gays to that of Rosa Parks refusing to take the back seat on the bus. Now that Masterpiece is decided, we will wait and see how long it takes for the next case to materialize, and whether Alliance’s “vision” of our nation will become a reality.

by Julie A. Werner-Simon, was a federal prosecutor, 1986-2015 and can be reached at jawsmedia.la@gmail.com

Misunderstanding Religion in Masterpiece

Many of us expected the Baker, Jack Phillips, to defeat the Same-Sex Couple, Charlie Craig and Dave Mullins, in the Supreme Court of the United States. The Baker refused to bake a marriage cake for the Couple because of his religious opposition to same-sex marriage. I thought it would be a Kennedy, 5-4 opinion, on free speech grounds. Instead, the Court, in an opinion by Kennedy, unfortunately ruled 7-2 in the Baker’s favor on free exercise of religion grounds.

The free exercise decision was surprising because the Free Exercise Clause requires everyone to obey neutral laws of general applicability. The sexual orientation anti-discrimination laws are neutral laws of general applicability. Both the Colorado Civil Rights Commission and the Colorado Court of Appeals so ruled. Nonetheless, Justice Kennedy wrote that the Commission had displayed religious hostility in its enforcement of those laws, and that the “neutral and respectful consideration to which Phillips was entitled was compromised.”

Justice Kennedy’s evidence of the Commission’s “clear and impermissible hostility toward the [Baker’s] sincere religious beliefs” did not display any hostility toward religion. Instead, his reasoning is consistent with the Court’s trend to be too positive toward religion, as it was when it ruled against women’s rights in Hosanna-Tabor and Hobby Lobby. In a first Commission meeting, Kennedy wrote,

One commissioner suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the state.” A few moments later, the commissioner restated the same position: “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.”

That statement is not hostile to religion. It simply displays a commissioner commenting on the actual state of free exercise law, which is supposed to mean that everyone must obey it despite personal preferences. Instead, according to Justice Kennedy,

Standing alone, these statements are susceptible of different interpretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views. On the other hand, they might be seen as inappropriate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely.

Thus Justice Kennedy gave a surprisingly anti-religious interpretation of what could have been a statement of the law. Then, in a second meeting, Kennedy describes a commissioner who said:

“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

That statement is sad but true. We have an Establishment Clause because the Founders recognized the harms that religions did to individuals in the past, and would do in the present and the future if allowed to. This statement honestly expresses the concern that underlies the Religion Clauses, which are not supposed to express an uncritical approach toward religion. Nonetheless, according to Kennedy’s interpretation of that statement,

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.

It is hard to believe that expressing the accurate role of religion in history and society became firm evidence of a free exercise violation. Kennedy thinks the situation became even worse because the legal record shows no objection from other commissioners to these statements, the state-court decisions did not mention them, and the Commission never disavowed them.

Justice Ginsburg’s dissent, which was joined only by Justice Sotomayor, concluded that statements made by only one or two members of four decisionmaking groups did not justify reversal of the Court of Appeals’ decision. Moreover, the two Justices “see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins.” The dissent also noted that the majority did not identify what “prejudice infected” the decisionmakers. The dissenters should have been more critical of the majority’s negative treatment of the commissioners’ statements.

On the Supreme Court, religion triumphed over the antidiscrimination laws in employment law (Hosanna-Tabor), when the Court accepted a ministerial exception that dismisses many employment discrimination cases before the facts are heard. Religion also defeated contraception (Hobby Lobby), when the Court exempted businesses from enforcing the Affordable Care Act. Now LGBTQ rights have lost to religion, because a majority of the Court thinks religion is almost always good and that its critics foolishly violate the Constitution. The Court should instead listen to the voices of women, LGBTQs, the disabled, the aged, the pregnant, victims of tort and contract harm, and the underpaid. It might give them a more even understanding of religion.

What's at Stake

The thought of Donald Trump getting to pick one more Supreme Court justice is truly chilling. Neil Gorsuch replacing Antonin Scalia was an enormous lost opportunity, but it kept the Court’s ideological balance the same as it had been with Scalia on the Court. Trump replacing Ruth Bader Ginsburg or Anthony Kennedy or Stephen Breyer would create the most conservative Court since the mid-1930s and a conservative majority that could remain on the Court for years to come.

Since 1960, 78 years old is the average age at which a Supreme Court justice has left the bench. Today, there are three justices older than that. Justice Ginsburg turned 85 on March 15. Justice Kennedy will turn 82 on July 23 and Justice Breyer will have his 80th birthday on August 15. I have no doubt that Justices Ginsburg and Breyer will remain on the Court until the end of the Trump presidency if their health allows them to do so. But there are rumors that Justice Kennedy might retire at the end of this term.

President Trump replacing Justice Kennedy with a conservative in the mold of Justice Gorsuch would push the Court far to the right. Political scientists have developed the concept of the “median justice” as a way for assessing the ideology of the Court. From the late 1930s until 1971, the Court had a majority of the justices appointed by Democratic presidents. This changed when President Richard Nixon made four appointments to the Court between 1969 and 1971.

From his confirmation in 1971 until his retirement in 1987, Lewis Powell was the median justice on the Court. To be sure, he was part of the pushing the Court further to the right, but he also was in the majority in Roe v. Wade and a key vote to permit affirmative action in Regents of the University of California v. Bakke. The intense fight over the nomination of Judge Robert Bork was a result of the widespread perception of Powell being the “swing justice.”

After Powell’s resignation, Justice Sandra Day O’Connor became the median justice on the Court. She was more conservative then Powell on many issues and overall the Rehnquist Court was more conservative than the Burger Court that preceded it.

Since Justice O’Connor’s retirement in 2006, Justice Kennedy has been the median justice. It truly has been the Kennedy Court. Last year, Justice Kennedy was in the majority in 97% of all of the decisions; the year before, he was in the majority in 98% of the cases. Justice Kennedy is more conservative than Justice O’Connor in many area, such as the constitutionality of campaign finance regulation (Citizens United v. Federal Election Commission overruled an opinion co-authored by Justice O’Connor), the separation of church and state, and remedies for racial discrimination.

If Justice Kennedy (or Justice Ginsburg or Justice Breyer) is replaced by President Trump, Chief Justice John Roberts will become the median justice. Roberts is significantly further to the right than Kennedy in many areas. There are so many crucial areas where Kennedy was in the majority in 5-4 decisions and Roberts in dissent. These include:

Reproductive freedom: For example, Kennedy was the fifth vote to strike down the Texas law restricting access to abortion in Whole Women’s Health v. Hellerstedt (2016). Roberts dissented and never has voted to strike down any restriction on abortion.

Gay and lesbian rights: Kennedy has authored every Supreme Court decision in history advancing rights for gays and lesbians. Roberts wrote an angry dissent in Obergefell v. Hodges vehemently objecting to constitutional protection for marriage equality for gays and lesbians.

Affirmative action: Kennedy wrote the opinion in Fisher v. University of Texas, Austin (2016) upholding the University of Texas’ affirmative action program. Roberts is a staunch foe of all forms of race conscious remedies as he forcefully expressed in his opinion in Parents Involved in Community Schools v. Seattle School Dist. No. 1.

Limits on criminal punishments: Kennedy wrote the majority opinions for the Court declaring the death penalty unconstitutional for crimes committed by juveniles (Roper v. Simmons (2005) and for crimes other than homicide (Kennedy v. Louisiana (2008), and holding unconstitutional sentences of life without parole for non-homicide crimes committed by juveniles (Florida v. Graham (2010)). Kennedy was in the majority in the 5-4 decision that held that there cannot be mandatory sentences of life without parole for homicides committed by juveniles (Miller v. Alabama (2012)). Roberts dissented in all of these cases that were decided after he joined the Court in 2005.

These are just some of the areas where a move from Kennedy as the median justice to Roberts will push the Court much further to the right. There is thus every reason to fear the possibility of another Trump appointment to the Court. If it happens, it will be imperative to fight as hard as we can to try and defeat another staunch conservative being confirmed. There are plenty of moderate Republicans for President Trump to choose from. This is about the future of the Court – and all of our rights – for years, and maybe decades, to come.

The Attack on Title X - Free to Do What?

What does liberty mean? To some it means freedom from government interference in private life. To others it means having the ability to make choices of all kinds, and the resources to make those choices real.

Over the past few decades, the Supreme Court has attempted to define liberty in cases involving the right to have and raise children; engage in intimate, consensual sexual activity; marry; be free from bodily violations; make decisions about medical treatment; and access abortion and contraception. While the Court’s record has not been perfect—in particular when liberty depends on having resources—running through its jurisprudence is a core principle that has become stronger over time: people are allowed to make choices about all kinds of profound matters, and shaming or impeding their choices is contrary to being free. The Trump Administration’s assault on Title X is just the latest attempt to replace that tradition with something that should have long been put to bed.

Title X is the nation’s only dedicated family planning safety net program. It serves more than 4 million low-income, uninsured, LGBT, rural, and young people across the country and provides vital family planning and preventive care, such as birth control, cancer screenings, and testing for sexually transmitted infections.

The changes to Title X that the Trump Administration proposed last week target the very premise of family planning, which is that people need access to full, accurate, non-biased medical information to help them prevent pregnancy or to get pregnant when they choose. Yet, among other things, the proposed rule would allow some grant recipients to offer only a single method of birth control, which can include “natural” methods that involve tracking menstrual cycles but do not prevent pregnancy in any other way than abstaining from sex.

Beyond family planning, the proposed rule meddles with health care that is not even part of the program. Title X does not provide funding for abortion. For decades, this exclusion has been properly construed to mean that a Title X recipient must maintain full financial separation between its Title X services and any abortion services it provides. This bright-line rule has ensured that no Title X money is spent on abortions.

Nonetheless, the new rule would require any recipient of Title X funding that also provides abortions to additionally maintain separate physical facilities, along with separate staff, health and accounting records, and websites and phone numbers. These new requirements are not required by the statute and would present a costly, and perhaps impossible enterprise.

On top of that, the new rule would rescind the requirement that all providers offer pregnant patients “non-directive” counseling about prenatal care, infant care, adoption, and abortion. It replaces this requirement with a statement that Title X recipients cannot “provide, promote, refer for, support, or present abortion as a method of family planning.”

Specifically, the rule would prohibit Title X recipients from referring patients for abortion, unless the patient states that they’ve already decided to have an abortion and directly asks for a referral. But even then, the provider is required to obfuscate by giving that patient a list of health providers, “some, but not all of which also provide abortion, in addition to comprehensive prenatal care,” without specifying which providers perform abortions. Even this bizarre, stigmatizing version of patient care is discretionary: providers who oppose abortion can provide a list that only includes prenatal care providers.

Because of this change, women seeking abortion may find themselves calling anti-abortion “pregnancy centers.” These fake health centers urge women to come in and discuss abortion, but then tell them that abortion is risk-laden and shame them toward carrying their pregnancies to term.

All of which brings us back to the meaning of liberty. A government program that pushes people toward a life-changing outcome they do not want, or have not freely chosen, is the opposite of liberty. And if liberty means having choices, and the resources to make them real—a robust vision that is difficult to achieve—the proposed changes undermine a successful model that has helped millions of people determine their own futures.