Within the US Supreme Court UU This week for the oral arguments of Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, I could not help but look at Judge Neil Gorsuch and imagine what things would be like if Merrick Garland were sitting right in that chair.
Republicans did not steal that seat, rejecting a vote on President Obama's candidate for most of his senior year in office and allowing Donald Trump to place Neil Gorsuch, an ideologue on the issue of "religious freedom." , on the court, we would not be in this dangerous situation.
That is to say, we would not be worried again about a judge Anthony Kennedy hesitant, this time on the question of whether a business open to the public can prevent the service of gays, lesbians, bisexuals or transgender people based on the religious beliefs of the business owners.
Many people were surprised that the Supreme Court had even dealt with the case of Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colorado, who refused, on religious grounds, alleging a violation of First Amendment rights , to make a cake for the gay couple, Dave Mullins and Charlie Craig, who came to buy a wedding cake. Other similar cases in states with laws prohibiting discrimination against LGBT persons in public housing had been rejected by the higher court for review after the lower courts ruled against the companies.
But there we were, with Gorsuch on the court and with Judge John Roberts apparently in tune with Gorsuch and the Conservatives. This is despite the fact that some legal experts, when analyzing their previous decisions, noted that Roberts has been open to the regulation of discourse when dealing with civil rights laws. But that did not seem to be the case yesterday of his interrogation. And Kennedy, as many have pointed out, seemed to express sympathy – and harshness – on both sides.
Justice Kennedy has been the leader of the court in the equality of homosexuals, writing decisions in emblematic cases that violate the laws of sodomy, ruling the Defense of The Law of Marriage is unconstitutional, and of course the sentence of equality Obergfell's marriage in 2015.
David Cole, of the United States Civil Liberties Union, who represented gay couples and received harsh questions about religious freedom from conservative judges, told me later about the procedures that he thought the arguments in general went well.
Well, that's how it goes on the Supreme Court, you're peppered with questions, "he said of the conservative judges who pressed him." But I think the argument made it clear that the argument that the bakery was moving forward-that United States was advancing [via Donald Trump’s solicitor general] – that companies that have services that could be characterized as expressive obtain an exemption from the anti-discrimination law, was unsustainable. "
But many progressive legal observers are concerned – some much more – and the general consensus among journalists covering legal issues is that it will depend on Kennedy and that he, according to his own story, could sympathize with the baker. he forgets that in another gay rights decision, Boy Scouts of America v. Dale, Kennedy joined the majority in a 2000 decision that Boy Scouts could ban gay scouts and scoutmasters on First Amendment lands.
] But nobody knows what will happen in this case, deciphering the opinions of judges' questions is like reading the tea leaves, especially when one or more are equally hard and understanding with both parties. Even if they want to favor the baker, they can not do it without opening the door to discrimination against many other groups, or they will find a way.
But again, the fact that we are here is precarious. In my 2015 book, It has not ended I wrote everything about what I called "blindness of victory", a phenomenon in which minorities who are discriminated against are seduced by great triumphs, like the Obergefell sentence, and they think they have achieved total equality in society. Blindness to victory, I argued, outperformed many LGBTQ people, who let their guard down or dismissed some anti-LGBTQ actions, without realizing that the anti-equality forces were organizing themselves fiercely, and that the reaction would be intense and could reverse the rights LGBTQ while we are celebrating or not paying attention.
The blindness of victory often prevents us from seeing how weak our victories are … "
My argument was filled with many" what ifs "that many of us, including myself – was not likely to happen. We had achieved a lot with President Obama and it would probably continue, but what if a Republican extremist candidate were elected president? What would happen if the composition of the Supreme Court changed and we did not succeed? – substitutes who were sympathetic to LGBTQ rights. happened with respect to Scalia, and could easily happen with Kennedy, who can retire at any time, and that would mark a devastating change for the court.)
Blindness for victory often prevents us from seeing how weak our victories are and how all minorities should continue to fight for their rights because political winds can change very quickly.
The election and presidency of Donald T rump took us a lot out of that, they got energized and committed to fight. This week in the Supreme Court, no matter how the case is ultimately decided, it should serve to do the same.