A “Narrow” Victory for the First Amendment


Pundits are referring to the Supreme Court’s reversal of Colorado Civil Rights Commission ruling punishing a baker for his refusal to bake a wedding cake for a gay couple as “narrow.” Well, the justice’s relied on the fact that the Commission was clearly biased against and hostile to the baker’s religious beliefs in ruling that such hostility ran afoul of the First Amendment’s free exercise clause. Every justice noted that states may protect homosexuals from discrimination in the marketplace, but the 7-2 majority ruled that that other persons’ sincere religious beliefs must be given due regard as well. Call that “narrow” if you wish, but it’s still a win for the First Amendment.

Because the record below was unclear on the baker’s free speech claims, the Court’s majority opinion didn’t address them in its decision. The justices didn’t need to in order to rule on the case. However, Justice Thomas did address that issue in his concurring opinion. He noted that public accommodation laws govern acts of discrimination, and that when they attempt to regulate speech, they run up against the full force of the First Amendment’s free speech clause. Boy Scouts of America v. Dale, 530 U. S. 640, 657–659 (2000). Justice Thomas noted that the Colorado Court of Appeals finding that the baker’s refusal to speak (i.e., create the wedding cake as Civil Rights Commission had ordered) amounted to illegal conduct was clearly wrong:

Even after describing his conduct this way, the Court of Appeals concluded that Phillips’ conduct was not expres­sive and was not protected speech. It reasoned that an outside observer would think that Phillips was merely complying with Colorado’s public-accommodations law, not expressing a message, and that Phillips could post a dis­claimer to that effect. This reasoning flouts bedrock prin­ciples of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak.

Today was a good day for the First Amendment.

UPDATE—

Democrats Should Support a Scalia-like Court Nominee


So argues John Kass in a Chicago Tribune post. His general thesis is that if the Democrats are afraid of what President Trump might do, they should want a strict-constructionist/rule-of-law judge on the Supreme Court to help keep executive power in check.

And so, if you’re truly worried about Trump’s overreach, you’ll demand an originalist on the Supreme Court.

Read the whole thing.

Who to Vote Against?


I don’t see anyone to vote for among the nominees for President this year (even among the minor parties). Of course, being in Maryland, my vote doesn’t really count. The state is so heavily Democrat that if the election were close enough for my vote against Hillary to matter, the national election will be a 48- or 49-state blowout. In that case, Maryland’s electoral votes wouldn’t matter, so pushing the state one way or the other won’t really swing the election.

Those of you living in the swing states will have to do the choosing this year. One of the likely differences between the candidates is how they will handle Supreme Court appointments. Reason has collected a series of comments worth reading. FWIW, I tend to agree with Glenn Reynolds’ analysis.

The future of the Supreme Court under Hillary is clearly dreadful: appointees would be to the left of Ruth Bader Ginsburg and probably corrupt to boot. Under Trump it’s unclear: His list of potential appointees actually looked pretty good, but with Trump you never know what he’ll actually do. So I’d say it’s a choice between certainly awful, and possibly awful.

Read the whole thing.

Team Kimberlin Post of the Day


The Gentle Reader who has been following The Saga of The Dread Pirate Performer Pro-Se Kimberlin for several years should remember that TDPK lost the first LOLsuti he filed against me. That was the Kimberlin v. Walker, et al. nuisance LOLsuit. I was one of the et al. First, he lost five of his claims at summary judgment. Those were claims about which there were no disagreement concerning the facts, and we won as a matter of law. Then, he lost on his defamation and false light invasion of privacy claims at trial. He could not show that anything Aaron Walker, Stacy McCain, Ali Akbar, or I had said or written about him were false.

popcorn4bkBelieve it or not, the case isn’t fully dead yet.

TDPK appealed his loss to the Maryland Court of Special Appeals, and a three-judge panel of that court affirmed the Circuit Court’s findings. He asked for an rehearing by the entire court, and that was denied. He petitioned the Maryland Court of Appeals (the State’s highest court) for a writ of certiorari, and that was denied. He has now announced in a filing he made with the Fourth Circuit Court of Appeals that he will file a certiorari petition with the Supreme Court.

Everything is proceeding as I have foreseen.

I’m Not Making This Up, You Know


Brett Kimberlin is suing Senators McConnell and Grassley because … oh, you have to read this to believe it—

And for bonus LULZ, the case has been assigned to Judge Hazel.

UPDATE—Note that Kimberlin is using the same address in this lawsuit that he has always used but where he could not be served with a summons in Hoge v. Kimberlin, et al.