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A Tale Of Two Cases — Both Misunderstood

June 18, 2018 Frontpage No Comments

By MIKE MANNO

Two cases popped up on my radar this week, both engendered strong passion, and the results of each are being misunderstood by those writing the news. One involves Iowa’s new Heartbeat Legislation and the other a Colorado baker by the name of Jack Phillips.
Turning homeward first: On May 4 Iowa Gov. Kim Reynolds signed into law Senate File 359, which is the most restrictive abortion law in the nation. The new law restricts abortions after a fetal heartbeat is detected, which is sometime around the sixth week of pregnancy. There are exceptions, such as conditions which endanger the mother’s life, rape which is reported within forty-five days, incest which is reported within one hundred and forty days, and fetal abnormality.
As soon as the bill was signed into law the American Civil Liberties Union filed suit on behalf of Planned Parenthood, an abortionist, and an independent abortion clinic in Iowa City. The state attorney general, Tom Miller, declined to defend the law so the state obtained the services of The Thomas More Society which agreed to defend the law pro bono. The lead lawyer for Thomas More is Martin Cannon, an Iowa lawyer affiliated with Thomas More’s Omaha office.
Martin, an experienced pro-life litigator, has successfully defended over 40 cases revolving around Leroy Carhart’s late-term abortion clinic facility in Omaha and additional cases relating to clinics there. He also effectively presented the case against webcam abortions before the Iowa Board of Medicine.
A hearing on Planned Parenthood’s motion for a pre-enforcement injunction was scheduled for June 6, but due to the shortness of time between Thomas More’s entry into the case and the hearing, Martin realized that he had insufficient time to prepare a case and thus chose to agree to a temporary injunction until the case can be heard in full.
Of course, the media reported that the district court judge “granted” an injunction as if the court had heard evidence and made a preliminary ruling based on facts found during the hearing. That reporting misled the public.
The decision to agree to the injunction was tactical; it meant that no findings of fact were made by the court which could be used against the law in later proceedings. In short, the decision to agree meant that when the case is finally heard the state can proceed without any adverse legal inferences that may have come from a premature hearing for which the law’s defenders were not able to adequately prepare.
“We want to have this argument once, we want to have it right, and we want to win it,” Martin said. “It is anticipated that Planned Parenthood will be unable to prevail and achieve a successful result in its challenge to the new law, which is meritless, nor to prove that any irreparable harm would result if the statute were enforced.”
A case getting much wider press comes from the U.S. Supreme Court, Masterpiece Cakeshop v. Colorado Civil Rights Commission. It involved the Colorado baker, Jack Phillips, who refused to bake a wedding cake for the celebration of a same-sex marriage that took place out of state, due to Colorado’s ban on same-sex marriage at the time. The court, in a 7-2 decision, held for the baker and his religious convictions.
The tenor of the reporting was that the baker won a “narrow” victory. The “narrowness” comes from the fact that the court based its opinion exclusively on the free exercise clause of the First Amendment, not the free speech clause, and the court failed to make a full-scale embrace of the baker’s religious liberty defense, only taking pains to point out that the baker was not given a “respectful” hearing on that defense by the civil rights commission.
The basic facts of the case are fairly well known. Two men entered the bakery and asked for a wedding cake to be used in the celebration of their recent nuptials. Phillips refused on religious grounds, although he did offer other services to them. They subsequently filed a complaint with the state civil rights commission which, when all was said and done, found that the baker had violated the state’s public accommodation law which prohibited discrimination against certain categories of persons, including homosexuals. Appeals through the state courts failed and the baker, with the help of the Alliance Defending Freedom, took his case to the U.S. Supreme Court.
The baker’s argument was that he had not discriminated over a prohibited factor, but that he refused to assist or cooperate with an event for which he held strong religious beliefs. He would serve anyone, but drew the line against participating in a ceremony which he held to be immoral.
Interestingly, at about the same time another individual, William Jack, was trying to purchase cakes from three other bakeries which he wanted decorated with anti-same-sex marriage messages. The other bakeries refused and Jack filed complaints about them with the same civil rights commission.
The commission dismissed the other complaints despite Jack’s claim that the cakes he sought reflected his Christian religious beliefs and the bakers could not refuse just because they disagreed with him. But the commission and the state court found that the other bakeries did not discriminate against him on the basis of creed, they simply refused his request because of the “offensive” nature of the “anti-gay marriage” message.
So what was the difference? That went to the heart of the case. If three bakers were allowed to decline cakes with an “anti-gay marriage” message, why was Phillips found to have violated the law for doing the same thing?
In large measure it was because Phillips’ beliefs were belittled and met with hostility by those whose legal positions gave them the authority to make the determination as to whether a violation had been committed or not. The court cited statements made by the commissioners during their deliberations, such as the view that religious beliefs cannot legitimately be carried on in the public square, implying that religious beliefs and persons are less than fully welcome in the business community.
One commissioner was quoted as saying 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.”
Another commissioner stated, “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 can list hundreds of situations where freedom of religion has been used to justify discrimination.”
These statements, which were never challenged by other commissioners, violated “[t]he neutral and respectful consideration to which Phillips was entitled….The Civil Rights Commission’s treatment of his case has some elements of clear and impermissible hostility towards sincere religious beliefs that motivated his objection.”
Giving some deference to religious freedom, the court found: “To Phillips, creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs.”
“[T]he record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phillips’ religious beliefs. The Commission gave ‘every appearance,’ of adjudicating Phillips’ religious objection based on a negative normative ‘evaluation of the particular justification’ for his objection and the religious grounds for it.
“It hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate. On these facts, the Court must draw the inference that Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires.”
So it concluded, “When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to those, the commission’s actions here violated the Free Exercise Clause; and its order must be set aside.”
In my book, that is not “narrow,” even if the court did not state that religious freedom was an absolute defense for similarly situated individuals; it could have been stronger, but it does set the binding precedent that religious claims are to be given honest, neutral consideration and not just batted aside as if they are simply made up to facilitate an impermissible argument.
One other important thing from the case: The justices did acknowledge there was a distinction between discriminating against a person for his status and refusing to take part in a ceremony promoting what a faithful person finds to be evil.
And that may be the most overlooked part of the case.
You can contact Mike at DeaconMike@q.com.

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