Critics of Indiana’s Religious Freedom Law Are Trying To Have Their Cake and Eat it, Too

Wedding_cake_with_pillar_supports,_2009Below is my Sunday column in the Washington Post on Indiana’s Religious Freedom Restoration Act (RFRA). Within minutes of the signing of Indiana’s Religious Freedom Restoration Act (RFRA), a chorus of condemnation arose across the country that threw Indiana Governor Mike Pence and his colleagues back on their heels. The response was understandable, though somewhat belated. After all, both Presidents Bill Clinton and Barack Obama supported similar language that is found not only in federal law but the laws of 19 other states. While broader than most of these laws, the premise of the Indiana law was the same: citizens could raise religious beliefs as a defense to governmental obligations or prohibitions.

For those of us who have been warning for years about the collision of anti-discrimination laws and religious beliefs, the current controversy was a welcomed opportunity to have this long-avoided debate. Yet, we are still not having that debate. Instead, there is a collective agreement that discrimination is wrong without addressing the difficult questions of where to draw the line between the ban on discrimination and the right to free speech and free exercise. That includes the question of why only religious speech should be protected in such conflicts, as noted in the column. Yet, there is a reluctance of acknowledge good faith concerns among religious people in fear of being viewed as bigoted.

There has been a great deal of heated rhetoric in this discussion that avoids many of the more difficult questions. For example there is the common criticism that these bakers cannot assert their religious beliefs when it is really their business that is being required to take certain actions. However, last year, the Supreme Court in Burwell v. Hobby Lobby Stores, Inc. expressly found that such businesses do have religious rights (as they do speech rights, as recognized in Citizens United v. Federal Election Commission). In 2014, the Court ruled that “no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.” Likewise, despite arguments that the federal RFRA is narrower because it references only conflicts with the government (and not other private parties in the Indiana law), some courts have ruled that it can be used in civil litigation.

As expected, the response of some commentators was to condemn even raising these question of free speech by saying that it saying that it equates gay couples to the KKK or Nazi sympathizers. Even when admitting that they do not have an answer for the free speech question, the attack is on the raising of such questions. There are legitimate concerns over allowing businesses to refuse to prepare products deemed offensive due to symbols or language, but we cannot really address these issues if people are denounced for just raising the conflicts and discussing conflicts. It results in a circular position that we can discuss the question of the protection of offensive speech but not if the question is offensive to discuss. This is an unfortunate trend where difficult questions are avoided by attacking those raising them as presumptive racists or homophobes etc for even raising different types of speech or views. It is a rather odd position to be placed in given my writings for decades supporting gay rights and same sex marriage. More importantly, when discussing the limits of free speech, one necessarily discusses the broad spectrum of free speech examples, including offensive speech. There is not an effort to equate gay marriage symbols or language with anti-Semitimic symbols or language. Obviously, as a supporter of same-sex marriage, I reject that notion. However, the point is that some people hold opposing views from my own. Some of those views I find deeply offensive. If we want to discuss the growing limitations on speech, we need to explore the spectrum of different forms of speech. That is what CNN did in the interview when raising the “KKK cake.” CNN was not saying that such a view is equally valid on the merits. It is ridiculous to say that, by discussing what different people consider offensive, we are saying that all of those views are valid or correct. It is not enough to say that such people are simply wrong or there is clearly a difference in the “real” offensiveness of the messages. Indeed, in some ways, such critics are answering the question by saying that some views are simply not viable because they are wrong. That is saying that society will draw the line on what speech can be the basis for refusing services and what cannot be such a basis.

The column below raises the question of line drawing and states that I would prefer an absolute rule requiring all services. However, I could not support such a rule if we are going to strip protection from “wrong” views while allowing others to refuse on the ground that other symbols or language are clearly offensive. One variation on the “No Cake For You” approach below was suggested by a colleague who said that we could allow bakers and others to refuse any offensive language — religious or non-religious — unless the government could show that the baker would have sold the cake but for the status of the prospective buyer (e.g., gay or straight, Jewish or not, etc.). Thus, as long as the basis of the refusal was the actual language or symbols, it would be protected as an expressive act.

As I say in the column, I continue to struggle with drawing this line. None of the options are particularly satisfying. However, I do think that we have to have a real dialogue on this issue free of low-grade efforts to those on the other side as bigoted for wanting to discuss the range of free speech conflicts. The point is that, when dealing with the question of the right to refuse to create offensive symbols or language, one must address the fact that there are a wide array of such conflicts that can arise among different religious, cultural, or political groups. One does not have to agree with their speech to raise the question of their right to engage in such speech. Indeed, the first amendment is designed to protect unpopular speech. We do not need it to protect popular speech. Some may ultimately decided that no business can refuse any message under the “Let Them Eat Cake” approach despite rulings like Hobby Lobby and Citizens United. However, the first step is to have the debate, preferably free of personal attacks or attempts to silence those who would raise the speech of other unpopular or offensive groups.

After all the heated rhetoric over Indiana’s controversial religious freedom law, this rights debate could ultimately come down to a cake war. Just as diners were at the epicenter of the fight over racial desegregation, bakeries have become a flashpoint today.

Conservatives in Indiana and elsewhere have objected to bakers (and florists and photographers) being “forced by the government to participate in a homosexual wedding.” While those conservatives have been rightly ridiculed for failing to explain how the Indiana law as originally formulated would not license bigotry, critics can be equally chastised for failing to explain where to draw the line between religious freedom and discrimination. Asked on CNN this week whether a Jewish baker should have to make a cake for a KKK couple, Sarah Warbelow, legal director of the Human Rights Campaign, insisted that “there’s a huge difference between having to write something objectionable on a cake and being asked to provide a cake for a same sex couple.”

Of course, for some religious bakers, a cake with language or an image celebrating same-sex marriage is objectionable. In other words, critics may be trying to have their cake and eat it, too.

Consider two cases that both happen to involve bakeries in or near Denver, Colo. In July 2012, David Mullins and Charlie Craig visited Masterpiece Cakeshop to order a wedding cake. Owner Jack Phillips said that, due to his Christian beliefs, he could not provide a cake for the celebration of a same-sex marriage. Colorado’s Civil Rights Commission ultimately ruled that the bakery broke the state’s anti-discrimination laws.

Now, the flip side. In March 2014, Christian customer Bill Jack asked Azucar Bakery to prepare two cakes in the shape of Bibles — with an X over the image of two men holding hands. Owner Marjorie Silva said she would make the cakes but refused to include what she found to be an offensive message. Jack filed a religious discrimination claim that’s now pending with the state’s civil rights division.

Two sets of cakes. Two different sentiments viewed as offensive. Can we compel the baker in one case and permit the other to refuse? And should the right to refuse be limited to religious objections? There are an array of messages that offend non-religious persons or violate non-religious values. Glibly saying that you cannot discriminate ignores legitimate questions of forced speech and forced participation.

I’ve struggled with the tension between anti-discrimination laws and free speech/free exercise for years, and I see three basic approaches to resolving it:

Let them eat cake. As one option, we could maintain a strict neutrality rule that requires businesses to serve all customers, even when they find customers or their requests (whether involving cakes or flowers or photographs) to be offensive. If you choose to go into a particular business, you lose the ability to withhold services based on the content of messages or the specific attributes of an event. That would mean a bakery couldn’t refuse to inscribe an anti-gay message on a cake — or a birthday message to someone named Adolf Hitler Campbell (which a New Jersey ShopRite said no to a few years ago). Under this approach, a cake would be viewed as a form of speech of the customer, not the baker.

No cake for you. The second possibility is an absolute discretionary rule that allows businesses to decline services or products when they substantially burden religious values. This could lead to a significant rollback of this country’s progress since desegregation. Even the sponsors of the Indiana law have indicated that they do not want such a broad rule.

Speech-free cake. A third option would be to allow a limited exception for expressive services or products. Under this approach, a bakery could not refuse to sell basic cakes to anyone but it could refuse to customize cakes with objectionable symbols or words. A florist could not refuse to supply standard flower arrangements from a pre-set menu but could object to designing and styling, say, the venue of a same-sex event. Likewise, photographers — whose work is inherently expressive, as they select particular moments to capture, frame compositions and create a product tailored to specific clients — could claim an expressive exception in declining to work at events they find offensive.

Frankly, none of these options is entirely satisfying, and all three would lead to tough cases on the margins. For instance, the uniformity and clarity of the “let them eat cake” approach is appealing. Yet it’s hard to imagine compelling Jewish bakers to make Nazi cakes or African American bakers to make KKK cakes. On the other hand, if we allow for expressive exceptions, we’ll have to determine whether or not a funeral director, say, is engaged in an expressive act.

If we are unwilling to impose an absolute rule of service regardless of content, then we need to be honest about our reservations and look more closely at how to allow people to opt out of certain expressive services. If people can decline offensive services, we need to focus our attention on defining those services that are inherently expressive and those that are not. We need to discuss not the central issue of discrimination but those cases on the margins that deal with legitimate speech. As Benjamin Franklin noted, “a great empire, like a great cake, is most easily diminished at the edges.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.

561 thoughts on “Critics of Indiana’s Religious Freedom Law Are Trying To Have Their Cake and Eat it, Too”

  1. HP,

    Let me conclude this foray into the mystic’s realm by reprinting this excerpt from another thread. Despite your perpetual efforts to evade and obfuscate, the issue of the corrupted American thesis of Freedom and Free Enterprise without governmental interference, in contrast to and prevailing over dictatorship, remains.

    The Preamble, Constitution and Bill of Rights establish the right to personal freedom and free enterprise. Government is limited to security and infrastructure in the American thesis and in the Preamble.

    The phrase, the “blessings of liberty to ourselves and our posterity,” eliminates and precludes governmental enjoyment or manipulation of those “blessings of liberty.” Societal actions, dynamics and resolutions, such as the “economic” issue of “labor rates” that was slavery, are to occur “voluntarily” in and by “ourselves” as private citizens in private industry in the private sector. As and example, the voluntary will of people around the world could have boycotted “planters” into insolvency, were that will actually there. While there is no accurate polling data, Lincoln forced the violent overthrow of the American governance by constitution.

    The Preamble clearly differentiates governmental authority and private authority or “ourselves and our posterity.” It was understood by all, including the Founders that people had to live with themselves, their own positive or negative characteristics and the consequences of freedom, while obeying basic laws against theft and violence.

    The votes by Scotland, the USSR, West Virginia, Pakistan and Bangladesh prove the Confederacy had an inherent, natural right to secede as governments had the right to make slavery illegal. Lincoln had no authority to suspend Habeas Corpus, confiscate private property, conduct internecine warfare, etc. Lincoln was a criminal dictator. Didn’t the very “elected” Hitler turn out to have been a criminal dictator? Your “Classic liberalism,” along with an infinite number of acts of egotism as literary indulgences, is an arbitrary academic exercise in futility and nonsense. It’s the Constitution that matters.

    From Lincoln to Roosevelt and Obama, the executive branch has irrefutably conducted dictatorial “overreach,” voiding and nullifying the Preamble, Constitution and Bill of Rights. Nothing less than the SCOTUS told Lincoln that he was a criminal engaged in “high crimes and misdemeanors.” Justice Taney’s words to Lincoln were that Article I of the Constitution “…has not the slightest reference to the executive branch…”

    It is long past time for the most severe checks and balances. It is long past time for an American “reset button.” Understanding that America was established as a restricted-vote republic, as China is today, it is long past time for a strict re-implementation of the essential and binding Preamble, Constitution and Bill of Rights (suspending and nullifying subsequent unconstitutional wartime “Lincoln Amendments”). An article covering the most illuminating of an ongoing cascade of violations and nullifications of the American founding documents is provided for your edification below.

    LINCOLN’S ABUSE OF POWER DURING THE AMERICAN CIVIL WAR

    By Brian Pulito

    “During his terms as president, he suspended the Writ of Habeas Corpus, and upheld the Declaration of Independence above the Constitution.

    …during the initial year of the American Civil War, Lincoln used his power and removed that right, first in Baltimore, New York, and eventually the entire union. He authorized military officers to suspend the writ before he made an official proclamation. Joshua Kleinfeld, an author who has researched this issue, wrote that “when Lincoln suspended the Writ of Habeas Corpus, he clothed himself with more power then any individual had possessed in America before, or since.

    Lincoln contended that he removed the Writ in order to ensure victory and preserve the union. In fact he preserved more power for himself and removed a great deal from the United States legislative and judicial branches. The first proclamation to remove the Writ of Habeas Corpus was made in September of 1862. Not only did this proclamation, which had no scheduled end, remove the writ, it also established Marshall law. It gave full power to close down “hostile, anti war newspapers,” and to arrest individuals for protesting the war.

    Lincoln removed a great deal of power from the legislative branch with this proclamation. He was not empowered under the Constitution to make such a declaration. In fact, that right belonged to Congress alone. Roger Taney, Supreme Court Chief Justice, contended that Article I of the Constitution declares: “a state of rebellion is the only time when Congress could declare the writ removed.” He also believed: “This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive branch..”

  2. I would give these self-proclaimed, but fake, Christians the benefit of the doubt if they refused to serve every abomination in the Bible.

    These six things the LORD hates, Yes, seven are an abomination to Him: A proud look, A lying tongue . . . A false witness who speaks lies . . . And one who sows discord among brethren.

    If they refuse to serve anyone who peddles the lie, that the sin of Sodom, only documented once in the Bible (Ezekiel 16:49 – “Now this was the sin of your sister Sodom: She and her daughters were arrogant, overfed and unconcerned; they did not help the poor and needy.”) is anything other than what it says the sin of Sodom is in the Bible (a false witness & a lying tongue & sowing discord among brethren); then I would give them benefit of the doubt.

    If they refuse to serve anyone who peddles the lie that unless the self-proclaimed, but fake, Christians are allowed to persecute others, they themselves are being persecuted (a false witness & a lying tongue & sowing discord among brethren); then I would give them benefit of the doubt.

    If they refused to serve anyone who peddles the canard that being gay is a lifestyle choice (a false witness & a lying tongue & sowing discord among brethren); then I would give them benefit of the doubt.

    If they refused to serve anyone who peddles the canard that “Evolution is just a theory” (a false witness & a lying tongue & sowing discord among brethren); then I would give them benefit of the doubt.

    If they refused to serve anyone who peddles the canards (a false witness & a lying tongue) that Ayn Rand/Reagan/Thatcher Trickle Down/Supply Side Satanomics pays for itself and/or that it does not murder the middle class; then I would give them benefit of the doubt.

    If they refused to serve anyone who peddles the canard of alleged American Exceptionalism (a proud look & a false witness & a lying tongue); then I would give them benefit of the doubt.

    If they refused to serve anyone who tries to disingenuously obfuscate the fact that Conservatism is as much an ideology as hijacking passenger jets and crashing them into office towers is an ideology (a false witness & a lying tongue & sowing discord among brethren); then I would give them benefit of the doubt.

    The list of those engaging in the real lifestyle choice of being real abominations goes on and on

    Either they discriminate against all abominations, or they have to serve everyone.

  3. annie
    Max, you know who visited Putin and perhaps influenced his anti gay stance? Pastor Scott Lively, of Kill the Gays of Uganda fame.
    = = =
    LOL… check this out.
    Siri is not allowed to talk or recognize anything gay. And becomes incensed at type of questions and begins to reply insulting retorts… The Britt does pose an excellent question, though.

    “In Soviet Russia Siri questions you”

    1. I was right on Amanda Knox and Rome. I was also correct on what Jesus said. Guess who tried to poison the well again today? Ad hominem attack at 10:47 pm.

    2. Wade Williams

      Because Paul C. Schulte was a History Teacher and I find Wikipedia suspect at times I did some research

      On February 19, 1942, Roosevelt signed Executive Order 9066, which forced all Japanese-Americans, regardless of loyalty or citizenship, to evacuate the West Coast. No comparable order applied to Hawaii, one-third of whose population was Japanese-American, or to Americans of German and Italian ancestry. Ten internment camps were established in California, Idaho, Utah, Arizona, Wyoming, Colorado, and Arkansas, eventually holding 120,000 persons. Many were forced to sell their property at a severe loss before departure.

      http://www.history.com/topics/world-war-ii/japanese-american-relocation

      So, I was wrong. and there was an exaggeration there by Movies I guess. But I knew it was a gross civil rights violation just like many that are going on now.

  4. HP,

    Here’s another bit of amusement:

    Wikipedia –
    “Citizenship in the United States, being a citizen, is a status that entails specific rights, duties and benefits. Citizenship is understood as a “right to have rights” since it serves as a foundation for a bundle of subsequent rights, such as the right to live and work in the United States and to receive federal assistance.[2]

    There are two primary sources of citizenship: birthright citizenship, in which a person is presumed to be a citizen provided that he is born within the territorial limits of the United States, or other circumstances existing at the time of their birth (for example, citizenship of a parent)[3] and naturalization, a process in which an immigrant applies for citizenship and is accepted. These two pathways to citizenship are specified in the Citizenship Clause of the Constitution’s 1868 Fourteenth Amendment which reads:

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

    —from the Fourteenth Amendment.”

    ***

    Notice how liberal collectivists have insinuated “and to receive federal assistance” into this Wikipedia definition and into American governance.
    Why do you think the phrase, “and to receive federal assistance,” wasn’t in the founding documents in 1789? It is absolutely ludicrous for America to have been turned into a welfare state when it was the exact opposite by founding documents.

    To flesh out the American thesis and American Law, one can observe what type of life existed as a result of the Law. The result of American Law in 1789 was slavery and absolutely NO welfare, food stamps, Medicaid, social services, affirmative action, forced busing, minority rights or homosexual weddings.

    Why don’t you tell me what the law is. The SCOTUS knows Obamacare is unconstitutional but they decide for it as corrupt justices. Liberal collectivists have reinstated a “King” or monarch to rule as a dictator with “civil rights” and dictated/mandated homosexual wedding cakes. The judicial branch, believing it may eschew objectivity and “legislate from the bench,” has been corrupted into irrelevance as the “law” takes its orders from the DNC. “Justice” Ginsburg disparaged the American founding documents to foreigners in a foreign country which is an unacceptable act of treason on the part of a Justice of the Supreme Court. Lincoln conducted his “reign of terror” as a tyrannical religious zealot using military force, extreme coercion and duress, all without a quorum and for the benefit of parties entirely without standing. Is that your idea of legal and constitutional? Sounds a little arbitrary to me.

    I researched this Wikipedia “citizenship” definition to demonstrate that American Presidents were “natural born citizens” for 220 years until subversives recently, illegally and arbitrarily changed the requirement from “natural born citizen” to simply “citizen” in order to unconstitutionally ensconce Obama in the office.

    Understanding that attorneys learn about law and legal phrases in separate teaching institutions and use that law and those phrases in documents and courtrooms thousands of days and miles distant, the Law of Nations (“born in the country of parents who are citizens”) was used as a source and reference for the phrase “natural born citizen” by the Framers of the Constitution, by order referred to in the Washington/Jay letter, that placed a “strong check” against “foreign allegiances” of the commander-in-chief by raising the requirement for the presidency from “citizen” to “natural born citizen.” The Washington/Jay letter raised the requirement from 1 citizen-parent to 2 citizen-parents – the highest form of citizenship for the highest office. As it turns out, Washington/Jay had uncanny foresight which appears to have revealed to them Obama’s “foreign allegiances” which included his father’s realm, that of a foreign-citizen radical anti-colonialist who was likely “neutralized” in the last of many “auto accidents.” By the way, the Founders spoke the French of Vattel’s “Law of Nations” and kept many copies by their side as they wrote the NEW American Law, which was different and distinct from British Common Law as George Mason said, “the common law of England is not the law of the United States.”

    Just because un-American forces were successful in nullifying the Constitution, doesn’t make it American or otherwise correct. Just because radical liberal collectivists can rant and rave all day long about inanities such as “civil rights,” as if the rights of citizens can somehow be differentiated, doesn’t mean anyone should listen to them. Radicals have taken over the government and imposed unconstitutional artifices to temporarily accommodate “special interest” groups. Given the constitutional 18th Amendment one day, then the unconstitutional 18th Amendment the next, Ben Franklin might have said, “…a liberal/collectivist/communist government, if you can keep it.” He didn’t. He said “…a republic, if you can keep it.” Of course, it was a restricted-vote republic at that time. What happened to the legal vote restrictions of the era?

    If everyone can do anything they want, why did the Founders write the Preamble, Constitution and Bill of Rights? That seems unusual if the Founders didn’t intend for Americans to strictly adhere to and implement all of their words. They should have said that they weren’t going to write anything because everybody can do whatever they want. That’s what’s happened, huh?

    Somebody like Hitler would have been just like Prohibition, “constitutional” and “legal” for a period of time, right?

    You never know, Americans might take back their country, one of these days.

    1. Thomas

      Classical liberalism is a political ideology that values the freedom of individuals — including the freedom of religion, speech, press, assembly, and markets — as well as limited government. It developed in 18th-century Europe and drew on the economic writings of Adam Smith and the growing notion of social progress. And Franklin, and Madison, and Hamilton and Jefferson and everyone who signed the Constitution and the Declaration of Independence.

      But you are not talking about Independence are you Thomas? You are talking about the rights of an elect few and the rest can get the hell out of your way. They are not worthy material to be citizens in your eyes.

      Hence comments like this >>>>>>>>>>>>” Lincoln conducted his “reign of terror” as a tyrannical religious zealot using military force, extreme coercion and duress, all without a quorum and for the benefit of parties entirely without standing. Is that your idea of legal and constitutional? Sounds a little arbitrary to me. “<<<<<<<<<<<<>>>>>>>>>>>>>
      So, before that, we had Silly Willy who at least could talk down enough to the people that they understood what he was talking about and he would listen to Gingrich. Too bad he gave the shop away to China but that was inevitable I suppose as we have a Neomercantilistic Economy now like it or not.

      Take back our Government? You need to come down off your zone or whatever it is and look around and see what is. There is more than one type of person in the world and you can’t make the other one go away because you don’t approve or don’t like them.

  5. Max, you know who visited Putin and perhaps influenced his anti gay stance? Pastor Scott Lively, of Kill the Gays of Uganda fame.

  6. Annie
    Russia has Clinton’s announcement video as a limited “adult” only view…
    … Because she features a gay couple. I’m sure there are some Conservatives that would agree with Putin. They should visit him sometime, permanently.

    1. Max-1 – thanks for the info. I stand corrected. You will notice the small number of Japanese interned there. However, I am glad for the information. 🙂

  7. Tamara Scott: Muslim & Wiccan Statehouse Prayers Show Need For Christianity In Schools

  8. Happy Pappies, let’s use this example. Pakistan, Bangladesh, the USSR and Scotland all availed themselves of the right to secession. Understanding that united states inherently may disunite, Lincoln acted unconstitutionally as a tyrant and dictator to preclude legal secession by the Confederacy, to pursue an illegal war and to confiscate property, not employing “eminent domain.” These are examples of the controversion of the American thesis and founding documents.

    HP said,

    “Ninth Amendment cannot enumerate the powers. That is the Paradox – You see with that Civil rights amendment in there you can’t Balkanize Religions meaning you can’t refuse to serve some one and keep them from their pursuit of happiness because it is the same thing as race. This is race color or creed. So what is wrong that you are unable to comprehend the letter of the law?”

    The SCOTUS would have ruled that unconstitutional but for it’s ideology and party affiliation; just like Obamacare.

    Question: Did Americans commit any of these or this type of “violation” from 1789 to 1863 or thereabouts? Why was it constitutional then?

    Is this an illustrative example: America interred Japanese during World War II. Did that happen, HP? Was that constitutional then? Is it constitutional now. America existed under the same Preamble, Constitution and Bill of Rights, if I’m not wrong. Who determined that was right or wrong?

    The point is that someone, some entity has overturned the America that was established by the Founders. There must be something wrong about that, ya think?

    It’s as Ben Bernanke said, “the Constitution has been evolved.” The only problem is that constitutes treason, Ben.

    You, like Ben, believe you can “evolve” the Constitution.

    Isn’t that precisely what James Madison was afraid of? Evolvers like you. Wasn’t Madison afraid of destroying the American thesis and Constitution by amendment and “modification?” Lincoln “amended” a lot. Was Lincoln a “destroyer” according to Madison?

    Hillary presented a “reset” button to Russia. I would present a reset button to you and your liberal, collectivist ilk.

    There’s a lesson in the 18th Amendment or Prohibition. It was overturned and the amendment repealed. “Constitutional” and “unconstitutional” status seems to change with the wind. Who was right and who was wrong on the 18th? How was one right and the other wrong? Arbitrary modifications are illegal and unconstitutional, but not according to you. To you, the founding documents say, “do whatever you like.” To the judicial branch the Constitution says, “legislate from the bench.” Does it say that or not, HP?

    What would be the case if people with the same mindset as the Founders were elected? What if the SCOTUS assured that the literal words of the founding documents were implemented, rather than the mystical mental meanderings of bleeding-heart liberal collectivists bent on dictatorship, redistribution and control of the means of production? Oops, we’d have a truly constitutional America.

    1. Thomas

      So Thomas, you think Lincoln was wrong and are going to use a tired argument regarding the Emancipation Proclamation when he started the Race Color or Creed arguments because no one seems to understand the First Amendment, including you, to this day. It is very plain spoken. It is you that is not.

      Amendment I

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

      Okay then —- That is pretty clear Thomas.

      What on earth is there to legislate?

      Enumeration was to not take one of the Amendments above the others. That was how the Powers were Separated. This is a simple question of Ethics which is something that you cannot seem to grasp.

      You really are assuming a lot about my personal belief system Thomas, but lots of people here do that. Not just about me, but JT also. You should go back and read my posts rather than make absurd allegations about my personal beliefs.

      I am against Obamacare. That is what brought me to to the Blog. I am one of the few people on here that understands what is going on with the Mandate and how it is not just a penalty but a tax that was put on to line 61 sneakily and especially effects middle income people and has been raised on the refunds for 2015 on small businesses so they will recieve less on the Health care part of their refund. I think it’s 7% but it might be more. I am not looking it up now. The bottom line is this is just another way to tac the American Public in the name of “health insurance” because the doctors are receiving less from Medicare.

      Because of my sense of ethics and the fact I came from a Military family and you happened to bring it up, I fought with my Father, a veteran who was stationed on Saipan and made sure to tell you he was never in combat. He fixed the planes and swam every morning in the Ocean and hated the Japanese.

      I told him it was wrong to interre the Japanese citizens in Hawaii. Not because I had a teacher that told me so, but because I had a highly developed mind that could reason at the age of 15. They were loyal citizens I would say and he would say they were dirty Japs. I said, “How can you say that, they were human beings?” “How could that President Truman destroy their Island with an Atomic Bomb? They were melted all over the place Daddy?”

      We were not told how to think in the 60s. We were handed books like Animal Farm, Hiroshima, Lord of the Flies, 1984, Fahrenheit 451 and The Fountainhead……When I was 15 that is because I was in Honors English.

      I kept after him…. Finally, one day, he put his head in his hands and cried, “Leslie, he said, I was swimming around the mountain and climbed out and a mother and her baby had jumped rather than be captured or shot.”

      So, you see, everyone is human and my dads agnosticism wasn’t all that strong.

      The Constitution is Framed by James Madison in an esoteric way really 9th amendment which is the number you use to divide to find all square roots or the base of everything keeps the amendments enumerated and the powers exasperated and that is the square root of 9 (3) – I do not believe in creative accidents.

      As far as Bernanke goes, he is just another Greenspan. Greenspan destroyed the country and if Volker would have been left in we would have been a lot better off. I most certainly am not a Progressively Fiscal Person.

      In fact, I consider myself to be Classically Liberal and I think the rest of you have lost your way.

      1. happypappies – there were no Japanese on Hawaii who were interred. The only Japanese interred were on the West Coast of the United States and the group to be interred had a set line drawn on the map. West of that line you were interrred, East you were not. So, part of the Japanese in Arizona were interred and part were not.

        1. I thought there where. That’s what I learned in History in the 1960s and 1970s idk and they showed us movies and everything that were very dramatic….. I was all wrapped up in this you know? I really am wrapped up in our history and the Ethics of our Constitution.

  9. Good post, Prof. Turley.

    This difficulty would be none at all in a land of decency and respect. Decency and respect would cause some printers, photographers, seamsters, and bakers to admit that they really suffer no particular loss of religious freedom by providing their services to same sex couples. Decency and respect would cause some same sex couples to admit that the religious sentiments of other printers, photographers, seamsters, and bakers are no less important to them than is the SS couple’s desire to have a beautiful wedding to the couple.

    But, of course, it asks to much of the indecent and disrespectful on both sides to be decent and respectful.

    Still, I value your contribution.

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