Cakes, Guns, and willful animus

Matthew Hoy
By Matthew Hoy on August 15, 2018

If I asked a liberal Colorado baker to make a pro-Second Amendment cake in the shape of a gun, could they refuse my business based upon their conscience?

I bring this up not because it's happened, but because what's happened this week in Colorado brings to mind a lot of what is happening in our courts and less-accountable government agencies. Just two months after a favorable ruling from the Supreme Court in the Masterpiece Cakeshop case citing the Colorado Civil Rights Commission's (CCRC) egregious anti-religious and willful animus in going after owner Jack Phillips, the civil rights commission is at it again.

The state commission moved against Phillips after a lawyer asked him to design and bake a custom cake celebrating a gender transition, pink on the inside and blue on the outside.

Phillips, who calls himself a cake artist, said the requested cake’s message would violate his religious beliefs.

“The state is doubling down on its hostility against my beliefs, even though that’s what the Supreme Court said they couldn’t do,” Phillips said in a prepared statement released by his lawyers. “It seems I’m the only person in the state of Colorado who can’t live out my beliefs.”

The religious liberty group Alliance Defending Freedom, which has represented Phillips since he turned down a gay couple’s order six years ago for a cake celebrating their marriage, also represents him in a federal lawsuit filed late Tuesday to challenge the latest state action against him.

Cakes, Guns, and willful animus

If it seems as though the CCRC is out to get Jack Phillips, it's probably because it is. It also appears as though the Supreme Court's mealy mouthed 7-2 ruling that turned on the CCRC's willful animus as opposed to Phillips' First Amendment rights of freedom of speech and religion did little to dissuade his foes in government.

This is reminiscent of lots of recent Second Amendment judicial rulings at the appellate level that have purposefully ignored the key holdings of the seminal Heller case. There's the Ninth Circuit's en banc ruling in Peruta that found there was no 2nd Amendment right to concealed carry a handgun, but purposefully ignored the word "bear" altogether.

The Fourth Circuit, covering Maryland and other mid-Atlantic states, likewise upheld a Maryland law that banned most AR-15-pattern rifles under the "logic" that guns that look like they're military weapons aren't protected by the 2nd Amendment.

A couple of points on this ruling.

  1. At the time the 2nd Amendment was ratified, all weapons were miltary-style weapons. The muskets that 2nd Amendment foes like to point to as being protected by the constitution were the height of military technology at the time.
  2. The Heller ruling directed lower courts that weapons in "common use" were to be afforded the highest 2nd Amendment protection. The AR-15-pattern rifle is the most common rifle owned in America today.

The Supreme Court has neglected to reiterate its holdings in Heller against increasingly obnoxious and lawless lower courts who are twisting the obvious, plain meaning of the Supreme Court's rulings and the text of the 2nd Amendment itself. Hopefully with Brett Kavanaugh replacing squish Anthony Kennedy, the lower courts can be reined in.

The bright side?

The good news is that Senate Republicans have been confirming Trump's judicial nominees to the federal courts in record numbers. There is a potential light at the end of the tunnel that isn't an oncoming train. We might have a judiciary that considers laws as they are written and not according to an evolving standard that just so happens to line up with the policy preferences of a particular judge or judges.

While I think Trump's various tariff wars are hurting the economy and his tweeting is counterproductive at best, I've come to a point where I'm willing to accept some economic and political turmoil over the short term (4-8 years) in return for a conservative, non-activist judiciary for the next two-plus decades.


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August 2018



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