As a lawyer and law teacher we struggle to identify the often underlying logic of seemingly contradictory decisions. The basic idea is an assumption that somehow or other we are all engaged in a search for truth and justice. But sometimes that whole enterprise collapses. This is one of those moments.
In Masterpiece Bake Shop A baker who didn't want to bake a cake for a gay men's wedding was found to be the victim of religious bias because of a few unexceptional remarks about religion and bigotry "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.”"
In Abbott v. Perez the Texas gerrymandering case Justice Alito wrote that good faith of legislators must be presumed. The net effect is that it is effectively impossible to prove legislative bias - which in Texas is plain for all to see.
In Trump v. Hawaii aliens from six predominantly Muslim countries were barred from entry on grounds of a need to vet them as to the threat of terrorism. To defer in the customary fashion to the President's fulsome power over foeign affairs the court had to see no evil. But the evil was Trumpeted by the candidate from the first moment of his campaign and his explicit calls to ban Muslims from entry. And it has not abated. In the last week he has said that immigrants must not be allowed to"infest" and "invade" our country. - gwc
In Masterpiece Bake Shop A baker who didn't want to bake a cake for a gay men's wedding was found to be the victim of religious bias because of a few unexceptional remarks about religion and bigotry "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.”"
In Abbott v. Perez the Texas gerrymandering case Justice Alito wrote that good faith of legislators must be presumed. The net effect is that it is effectively impossible to prove legislative bias - which in Texas is plain for all to see.
In Trump v. Hawaii aliens from six predominantly Muslim countries were barred from entry on grounds of a need to vet them as to the threat of terrorism. To defer in the customary fashion to the President's fulsome power over foeign affairs the court had to see no evil. But the evil was Trumpeted by the candidate from the first moment of his campaign and his explicit calls to ban Muslims from entry. And it has not abated. In the last week he has said that immigrants must not be allowed to"infest" and "invade" our country. - gwc
How many law review articles will be written contrasting the Court's hypersensitivity to the (implausible) possibility of religious bias in Masterpiece (which couldn't possibly have affected the decision), with its indifference to obvious bias in Abbott and Hawaii?— Marty Lederman (@marty_lederman) June 26, 2018
No comments:
Post a Comment