Joseph Hartman, Adjunct Assistant Professor at Georgetown University, and specializing in constitutional law, discussed the crucially important cases to be considered by the Supreme Court for its 2017/2018 term at a presentation hosted by the Faith and Law forum on Capitol Hill on Nov. 17.
Hartman quoted Associate Justice Ruth Bader Ginsburg as saying that the coming term will, indeed, be “momentous.” Hartman noted that the Supreme Court only hears about one percent of the cases appealed to it. He focused particularly on the cases of Masterpiece Cakeshop v. the Colorado Civil Rights Commission, on California’s new law requiring pro-life crisis pregnancy centers to advertise the availability of abortions, and also on trends observable in the opinions of Associate Justices Anthony Kennedy and Neil Gorsuch.
Hartman observed that Gorsuch is clearly an originalist and a textualist, believing that court rulings should be based on the original intent of the Constitution and the text of duly enacted laws, not on the judge’s understanding of what true justice is. He is “an active questioner,” asking many questions of litigants in court. Gorsuch wrote a concurring opinion while on the U.S. Tenth Circuit on the Hobby Lobby case, noting the Religious Freedom Restoration Act (RFRA) was intended to protect unpopular, as well as popular, religious beliefs. He also objected to the footnote in the Trinity Lutheran Church v. Comer decision issued earlier this year, which restricted the scope of the decision to church playgrounds. Gorsuch held instead that the free exercise clause of the First Amendment covers religious use (the right to act for religious reasons) as well as religious status (the right to hold a religious affiliation). He is also unfavorable to the “Chevron doctrine,” which holds that courts should defer to the interpretations of law made by administrative agencies, thus greatly empowering the federal bureaucracy.
Hartman said that Justice Kennedy seems to be informed above all by his understanding of what “liberty” should mean. He is a strong advocate of free speech, and has been decisive in the court’s decisions on homosexuality, of which he is the author. Hartman believes that Kennedy sees the enactment of homosexual liberation in constitutional law as his legacy. He also believes that Kennedy’s decisions are aimed at “merging” the “equal protection” and “liberty” aspects of the Bill of Rights. He speculated that at 81 years old, Kennedy “may have been waiting” for a case like Masterpiece Cakeshop.
The first pending case that Hartman reviewed is National Institute of Family and Life Advocates v. Becerra, in which California law is requiring pro-life pregnancy centers to supply people seeking their services information on the availability of abortion. The legislative history of the law California enacted to require this attacks the pregnancy centers as intended to “hinder” the ability of women to be accurately informed concerning abortion, of discouraging women from abortions, and misinforming and confusing women with the information they provide. The law also requires crisis pregnancy centers to post a notice saying they are not licensed medical facilities. Litigants in the case claim that this is compelled speech, and this writer would observe that in view of the legislative history, it would be hard to see the state as enacting a neutral law.
In the Masterpiece Cakeshop case, Hartman noted that compelled speech is again at issue, as Jack Phillips, the proprietor, was willing to sell a homosexual couple any product off the shelf but not to design a cake to be used in their wedding. Unlike the NIFLA case noted above, in which the court is considering only a free speech claim, the Supreme Court has agreed to hear the free exercise claim of Masterpiece Cakeshop, i.e., that it should not be required to act against religious principle. The hearing and ruling of the Colorado Civil Rights Commission was particularly harsh, with religious freedom cited as a justification for slavery and the holocaust in the course of the hearing, and remedial training and quarterly reports to be filed with the state concerning the business’ accommodation of homosexual behavior. Hartman noted that “this is a case that people have been expecting” because “you are pitting at the highest level free speech and free exercise against nondiscrimination.” Hartman predicted that if Kennedy accepts that Phillips’ artistic work is covered by free speech doctrine, then Phillips will win. If the requested cake is considered merely merchandise the store offered, he will lose.
In a third case, Evans v. Georgia Regional Hospital, which has yet to be accepted by the Supreme Court, the issue whether or not the sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 includes sexual orientation. Congress has not changed the law to include sexual orientation, and courts until recently ruled that unless Congress should act, Title VII only prohibits discrimination against biological men or biological women, not categories of sexual orientation. The Obama administration interpreted Title VII to include sexual orientation in 2015, but the Trump administration has “backed away.” Hartman noted that the Seventh Circuit Court of Appeals has recently ruled that the sex discrimination prohibited by Title VII includes sexual orientation in a ruling which was not appealed, giving the Supreme Court no opportunity to rule. Two other federal circuits have, however, “declined” to interpret Title VII to include sexual orientation. With this division of opinion in the lower courts, he said it is reasonable to expect the Supreme Court to accept a case concerning Title VII and sexual orientation.
A question after the presentation concerned the consequences for the Christian community should Masterpiece Cakeshop lose. Hartman said that this would depend on whether the ruling is broadly or narrowly written. The same-sex marriage decision was written broadly, while the Trinity Lutheran case included a footnote narrowing its scope. A broad ruling against conscientious objection to homosexuality would be catastrophic – it could for example call into question church tax exemptions. But it would be disastrous generally for religious freedom where homosexuality is involved. Churches are, however, somewhat protected by the ministerial exception to antidiscrimination law and policy, declared by the Supreme Court to be a constitutional right in the Hosanna Tabor case in 2012.
Another question concerned public relations firms’ choice of the causes they advance. Hartman said that they should be safe from having to support causes they don’t believe in, regardless of the how the Masterpiece Cakeshop case is decided.
Another question concerned a possible decision by the Supreme Court to interpret Title VII of the Civil Rights Act to include sexual orientation. Hartman agreed with the questioner that such a decision would render redundant the proposed Equality Act, advanced by homosexual activists to make homosexuality a protected status in federal law. An enormous loss of religious liberty would thus result by court decision, rather than legislative action.
This writer has considered in recent articles the consequences of the possible loss of the Masterpiece Cakeshop case and the need for Christian endurance in that case without complying with sinful requirements. Possible judicial imposition of a national sexual orientation and gender identity (SOGI) law after years of resisting it legislatively will be galling, as would requiring pro-life advocacy organizations to advertise against their own cause. Will the court rule in favor of religious commitment and conscience, which was so central to the American founding and the spirit of traditional America? This writer believes there is a reasonable chance that it will, but if it does not, Christians and Christian organizations must resolve to be true to what they should always know, that their ultimate commitment is not to the American nation or its ideals, but to God, and his requirement not to comply with sin, regardless of the penalty.