Columns » Ernest Dumas

Silly acts, good law

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It was unavoidable that the struggle by sexual minorities to gain the equal treatment that the Constitution promises them would devolve into silliness and that the majestic courts of the land would have to get their dignity sullied in order to resolve the issues.

There was the grave question of which bathroom transgender people should be forced by law to use, which even Donald Trump thought was silly. Let them use the one they feel comfortable using, he said. Case solved, pretty much.

Last week, Governor Hutchinson, who has a fairly low threshold for nonsense, had to step in to order a dithering Health Department, backed by a dithering attorney general and a few Republican legislators, to treat parents, including same-sex parents, the same in issuing birth certificates, just as the U.S. Supreme Court said the Constitution required.

Lesbian parents could not get the state to put their names on the birth certificate, while opposite-sex couples, as always, put their names on the birth certificate of a child born of a surrogate. A lawsuit went up to the state Supreme Court, which sent it back to the trial judge, Tim Fox, to settle. Attorney General Leslie Rutledge was battling to keep the couples at bay. Judge Fox finally gave the Health Department a deadline to adopt a rule that settled the issue and until it did so to stop issuing birth certificates at all. The Health Department posted a notice that day halting the issuance of birth certificates.

Hutchinson took a few moments that morning to scribble an order to the department resolving the matter. Treat them the same, he ordered. Governing sometimes is easy.

The U.S. Supreme Court is finding it exceedingly hard, or maybe it is just the court's governing member, Anthony Kennedy, who must decide whether the owner of the Masterpiece Cakeshop, who opposes same-sex marriage, had to obey a Colorado state law that says businesses cannot discriminate against customers based on race, sexual identity, religion or whatever. His lawyers maintain that the First Amendment protection of religious freedom gives him the right to refuse to serve them.

The justices heard arguments and debated it squeamishly two weeks ago. Kennedy, Ronald Reagan's old confederate, probably will write the opinion, because he has taken the unpopular role of writing the order in all of the gay-rights cases going back to Lawrence v. Texas, which struck down state sodomy laws in 2003 (a year after the Arkansas Supreme Court did so). Kennedy has broken ranks with the court's Republican majority a few times, notably on the equal-protection cases. He is under pressure not to abandon the court's originalists again on the cake issue. The originalists, formerly led by Antonin Scalia, are now led by his successor, Neil Gorsuch.

Originalism is the doctrine that searches for plausible-sounding ways to hold that the Constitution does not mean what it says.

It was baffling to most people why a gay couple wanted a guy who abhorred them because they wanted to get married to bake a cake for them. As the conservative columnist David Brooks wondered, why give him their business in the first place? Just be nice and find an agreeable baker.

But they were hurt, as you might understand, and wanted it made clear for others that equality under the law was manifest, even for a silly cake.

So we have another test of Justice Oliver Wendell Holmes' theory that great cases produce bad law or its corollary, that silly cases make good law.

On its basic level, Masterpiece Cakeshop is the latest in an ancient line of disputes over using religion and spiritual texts as a pretext for exercising individual prejudices. The same book of Leviticus that says you should kill men who sleep together also instructs you never to violate God's laws against eating pork, shellfish, catfish, salmon or tuna — or apparently to sell them.

Favorable biblical references to slavery and segregation and unfavorable ones to antithetical religions were once claimed as First Amendment grounds to discriminate. Now there is an Internet war among clerics over whether the Bible forbids same-sex marriage when it makes two references to matrimony as matching a man and a woman. That must mean it forbids all other marriages.

But wait, what about all those favorable biblical references to having many wives and concubines, not just one?

Back in 1968, the Supreme Court held that a South Carolina barbecue joint could not refuse to serve black customers on religious grounds (he claimed the Civil Rights Act of 1964 "contravenes the will of God"). "Patently frivolous," the court said of his claim.

So the cakeshop owner says baking is a form of art and that his First Amendment right to express only ideas that match his sacred beliefs exceeds a couple's right to be treated equally. Is poor Anthony Kennedy up to writing again that this is patently frivolous?

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