At the Supreme Court, a Limited Victory for Religious Freedom

In a much-anticipated ruling, the Supreme Court decided that Colorado’s civil-rights commission violated the constitutional rights of Jack Phillips by fining him for declining to bake a cake for a same-sex wedding. Seven justices agreed on this point, but the majority narrowly circumscribed its decision, which turned in part on the manifest anti-Christian bigotry expressed by members of the Colorado commission—thus making clear that the court might hold differently in related cases. Robert P. George explains:

Has the court discovered a constitutional right of business owners and service providers to discriminate on religious grounds against homosexuals or people in same-sex relationships? No. Not a single member of the court drew any such conclusion. Nor did it resolve the bigger question that this case raised: what does the Constitution require when such prohibitions on discrimination conflict with business owners’ religiously informed dictates of conscience?

This much, however, is clear: business owners and others have no obligation under the Constitution, nor can one be imposed by statute, to confine their religion to the private domain. On the contrary, they have the constitutional right to proclaim and to act on their religious beliefs in the public domain, including in the domain of commerce. If you are a Christian (or Jewish, or Muslim, or Hindu) business owner, you may run your business according to your religious principles, subject to legal regulations that are neutral (that is, not rooted in antipathy to your religious beliefs or those of your fellow citizens) and general in their applicability (that is, they apply to everyone equally).

But much remains unresolved. . . . Would the fining of Phillips have been acceptable based purely on a judgment that his refusal to cater same-sex celebrations constituted discrimination based on sexual orientation, and not on the basis of antipathy to Phillips’s beliefs? In a concurring opinion, Justice Elena Kagan, joined by Justice Stephen Breyer, seems to suppose so. If she’s right, the message to state officials could be taken to be: “Look, guys, of course, you can punish the Christian baker. But just remember not to state your own moral or religious reasons or reveal your antipathy to the target business owner’s moral or religious reasons on the record.”

Justice Neil Gorsuch, in a concurrence joined by Justice Samuel Alito, challenged the Kagan reading of the ruling, noting that the commission had demonstrated its unconstitutional lack of neutrality not merely by the improvident words of some of its members but, even more decisively, by ruling in other cases in favor of bakers who refused to bake cakes for religious people who requested them specifically as statements of opposition to homosexual conduct or same-sex partnerships. If Phillips were guilty of discrimination based on sexual orientation, then surely these bakers were no less guilty of discrimination based on religion—another type of discrimination expressly forbidden by the Colorado law.

It is only a matter of time, concludes George, before the court will be forced to make a decision on some of these outstanding questions.

Read more at New York Times

More about: Freedom of Religion, Freedom of Speech, Politics & Current Affairs, Supreme Court, U.S. Constitution

 

What a Strategic Victory in Gaza Can and Can’t Achieve

On Tuesday, the Israeli defense minister Yoav Gallant met in Washington with Secretary of State Antony Blinken and Secretary of Defense Lloyd Austin. Gallant says that he told the former that only “a decisive victory will bring this war to an end.” Shay Shabtai tries to outline what exactly this would entail, arguing that the IDF can and must attain a “strategic” victory, as opposed to merely a tactical or operational one. Yet even after a such a victory Israelis can’t expect to start beating their rifles into plowshares:

Strategic victory is the removal of the enemy’s ability to pose a military threat in the operational arena for many years to come. . . . This means the Israeli military will continue to fight guerrilla and terrorist operatives in the Strip alongside extensive activity by a local civilian government with an effective police force and international and regional economic and civil backing. This should lead in the coming years to the stabilization of the Gaza Strip without Hamas control over it.

In such a scenario, it will be possible to ensure relative quiet for a decade or more. However, it will not be possible to ensure quiet beyond that, since the absence of a fundamental change in the situation on the ground is likely to lead to a long-term erosion of security quiet and the re-creation of challenges to Israel. This is what happened in the West Bank after a decade of relative quiet, and in relatively stable Iraq after the withdrawal of the United States at the end of 2011.

Read more at BESA Center

More about: Gaza War 2023, Hamas, IDF