On my New Year’s Day BreakPoint, I said that among the most important stories to watch this year is the ongoing conflict between religious freedom and LGBT rights. I quoted Chai Feldblum, a former Georgetown Law School professor and a member of the Equal Employment Opportunity Commission, who said years ago she couldn’t think of a single instance in which gay rights shouldn’t take precedence over religious freedom.
Well, not all legal scholars suffer from such a lack of imagination. Even some progressive ones. Writing at Slate, a publication both liberal and pro-LGBT, Eric Segall of Georgia State University urged Colorado to cease its persecution of Masterpiece Cake Shop owner Jack Phillips.
Segall’s commentary was in response to a federal court’s refusal to dismiss a lawsuit for damages filed against the Civil Rights Commission by the Alliance Defending Freedom.
To be clear, Segall thinks Phillips should’ve baked the cake. In fact, he called Jack’s refusal “intolerance” and “bigotry.”
Even so, he concluded that “Colorado should announce that vendors cannot be forced under state law to create expressive items and that custom wedding and birthday cakes are such items.”
Why? It certainly wasn’t out of any sympathy for Phillips or his legal claims. It was because, as Segall wrote, “… the state will lose [Phillips’ case] if it reaches the United States Supreme Court again.” This, in turn, “will make matters much worse for gays, lesbians, and other minorities.”
I’ve no idea what Segall means by “other minorities.” I don’t know of any “expressive item” denied to someone on account of their race or ethnicity for religious reasons. But what’s really important in this article is why Segall thinks Colorado will lose.
In last year’s Masterpiece Cake Shop decision, Segall writes, “Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch made it clear they wanted to rule for Phillips on the merits.” Now that Justice Kennedy has been replaced by Brett Kavanaugh, Segall thinks that Phillips merits now has four votes.
And, Segall continues, Chief Justice Roberts would make it five votes. Remember, his dissent in Obergefell“ was arguably the angriest of his career.”
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Source: Christian Headlines