Inside the U.S. Supreme Court this week for the oral arguments for Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission I couldn’t help but look at Justice Neil Gorsuch and imagine how things would be if Merrick Garland were rightly sitting in that chair.
Had Republicans not stolen that seat, refusing a vote on President Obama’s nominee for almost the entirety of his last year in office and allowing Donald Trump to put Neil Gorsuch ― an ideologue on the issue of “religious liberty” ― on the court, we would not be in this dangerous predicament.
That is, we’d not be once again worried about a wavering Justice Anthony Kennedy, this time about the issue of whether or not a business open to the public can bar service to gay, lesbian, bisexual or transgender people based on the business owners’ religious beliefs.
It was stunning to many people that the Supreme Court even took up the case of Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colorado, who refused, on religious grounds ― claiming a violation of First Amendment rights ― to make a cake for a gay couple, Dave Mullins and Charlie Craig, who came in to buy a wedding cake. Other similar cases in states with laws barring discrimination against LGBT people in public accommodations had been rejected for review by the high court after lower courts ruled against the businesses.
But there we were, with Gorsuch on the court and with Chief Justice John Roberts seeming to be squarely with Gorsuch and the conservatives. This, even though some legal scholars, looking at his prior decisions, noted Roberts might be open to regulating speech when it comes to civil rights law. But that didn’t seem to be the case yesterday from his questioning. And Kennedy, as many have pointed out, appeared to express sympathy ― and harshness ― for both sides.
Kennedy has been the court’s leader on gay equality, writing the decisions in landmark cases striking down sodomy laws, ruling the Defense of Marriage Act unconstitutional, and of course the Obergfell marriage equality ruling in 2015.
David Cole of the American Civil Liberties Union, who represented the gay couples and was hit with hard questions about religious liberty from the conservative justices, told me after the proceedings that he thought the arguments largely went well.
“Well, that’s how it goes in the Supreme Court, you’re peppered with questions,” he said of the conservatives justices who pressed him. “But I think the [plaintiffs] made clear that the argument the bakery was advancing ― that the United States was advancing [via Donald Trump’s solicitor general] ― that businesses that have services that could be characterized as expressive get an exemption from anti-discrimination law, was untenable.”
But many progressive legal observers are concerned ― some very much so ― and the general consensus among journalists who cover legal issues is that it will come down to Kennedy, and that he, by his own history, could side with the baker. It’s often forgotten that on another gay rights decision, Boy Scouts of America v. Dale, Kennedy joined the majority in a 2000 ruling that the Boy Scouts could ban gay scouts and scoutmasters on First Amendment grounds.
No one, however, knows what’s going to happen in this case. Deciphering opinions from the justices’ questions is like reading tea leaves, especially when one or more appear equally hard on and sympathetic to both sides. Some of the conservatives may find that even if they want to favor the baker, they can’t do so without opening the door to discrimination against many other groups. Or they’ll find a way. We’ll know in a few months.
But again, the fact that we are even here is precarious. In my 2015 book, It’s Not Over, I wrote all about what I’d termed “victory blindness,” a phenomenon in which minorities who are discriminated against become seduced by big wins ― like the Obergefell ruling ― and think they’ve achieved full equality in society. Victory blindness, I argued, overcame many LGBTQ people, who let their guards down or dismissed some anti-LGBTQ actions, not realizing that the anti-equality forces were organizing fiercely, and that the backlash would be intense and could roll back LGBTQ rights while we’re celebrating or not paying attention.
“Victory blindness often prevents us from seeing how tenuous our wins are..."”
My argument was filled with a lot of “what ifs” that many of us ― including me ― thought were unlikely to happen. Yes, we’d achieved much under President Obama and it would likely continue, but what if an extremist GOP candidate were elected president? What if the make up of the Supreme Court changed and we didn’t get replacements that were sympathetic to LGBTQ rights? (That happened with regard to Scalia, and it could easily happen with Kennedy, who may retire at any time, and which would mark a devastating shift for the court.)
Victory blindness often prevents us from seeing how tenuous our wins are and how all minorities must continue to fight for their rights because the political winds can shift very quickly.
Donald Trump’s election and presidency did a lot to shake us from it, forcing us to become energized and to vow to fight. This week at the Supreme Court, no matter how the case eventually is decided, should serve to do the same.
Follow Michelangelo Signorile on Twitter: www.twitter.com/msignorile