The Masterpiece Cakeshop Faux Debate

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By Richard A. Nixon

There is much prediction these days concerning how the Supreme Court will rule in the Masterpiece Cakeshop v. Colorado Civil Rights Commission. This case pits the competing rights of gays to have equal treatment extended to them and the rights of religious observers to follow the dictates of their conscience.

The main issue, stated otherwise, is whether the state can compel religious observers to violate their consciences by infusing their creative, expressive talents with practices they find objectionable. In this case, gay marriage.

Of course this dilemma was actually created by the Supreme Court itself. More specifically, Justice Kennedy, writing for the liberal majority of 5. In Obergefell v. Hodges Justice Kennedy did the impossible; he actually found the right to same-sex marriage residing within the U.S. Constitution !

Where is it ? Why it’s in the 14th Amendment Due Process Clause. This clause states: no state shall deprive any person of life, liberty or property without due process of law. Still don’t see it ?

Justice Kennedy, amazingly, found it in the word “liberty” of said due process clause. In rather convoluted argument, not included herein, Justice Kennedy concocted, through legerdemain, the theory that “liberty” of the 14th amendment due process clause includes and therefore grants the right to same-sex marriage.

This presents two problems: does anyone seriously argue that the Founding Fathers intended that one individual, in this case an unelected Supreme Court Justice, should decide such an issue applicable to more than 300 million residents of this country ? Does this comport with the intent to found a representative democracy, i.e., a republic? This appears to approach an oligarchy or rule by a few. The Founding Fathers would be appalled.

As Justice Roberts stated in dissent, ” It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” He concluded by stating: “If you are among the many Americans-of whatever sexual orientation- who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

As the late Justice Scalia stated in Obergefell, “The five justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusett’s permitting of same-sex marriage in 2003.”

He went on to state ” They have discovered in the Fourteenth Amendment a “fundamental right” overlooked to every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds- minds like Thomas Cooley, John Marshall Harlan, Oliver Wendall Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cordozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly-could not.”

And further, he states, “They are certain that the people ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted in every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.”

Scalia concludes by stating, “With each decision of ours that takes from the People a question properly left to them-with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this court-we move one step closer to being reminded of our impotence.”

Justice Thomas states, in dissent, ” In the American Legal Tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.”

Hence, the Masterpiece case presents a fictitious “fundamental right”, i.e., the right to same sex marriage in tension with a legitimate constitutional right which actually exists within the text of the Constitution, i.e.,the right to the free exercise of religion. The resolution of this faux debate should be easily effected as the baker, Mr. Phillips prevails. This should be followed by the impeachment of Justice Kennedy.

Richard A. Nixon,Esq., Author of America -An Illusion of Freedom

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