June 5

The Salt Lake Tribune on the Supreme Court ruling for a Colorado baker who wouldn’t make a wedding cake for a same-sex couple:

Bad cases make bad law. Nobody does — or should — know that better than the nine justices of the United States Supreme Court.

So it is not such a bad thing that in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission — aka the gay wedding cake case — the court endeavored not to make a law at all.

Anyone who thinks the case was decided in favor of those who want the law to protect discrimination against LGBT people stands to be sadly disappointed.

People of faith have been given a chance, if they are wise and open enough to take it, to reverse the growing disillusionment with religion by finding a way to accommodate respect for same-sex couples within their values. If they can’t, then no number of ambiguous or even supportive Supreme Court rulings will hold back the judgment of history and further weaken the influence of organized religion.

In order to build a substantial 7-2 majority, the ruling from Justice Anthony Kennedy went out of its way to stick to the narrowest question of the case. The decision focused on the very particular matter of whether the defendant in the case, the Colorado state body charged with finding and sanctioning illegal acts of discrimination, had entered into its deliberations with a suitably open mind.

Kennedy’s ruling was largely based on comments from members of the commission that seemed to prejudice the proceedings, entering into the case with a presupposition that certain religious beliefs and motivations were invalid.

The court was having none of that. The baker, Kennedy properly wrote, was entitled to have his case considered by an unbiased body that saw its role as weighing competing interests.

But the ruling was also clear that the right of same-sex couples to be held equal before the law was not to be compromised.

Legally, the loser in this case was not the baker, and not the same-sex couple refused service when they tried to order a custom wedding cake. The loser was an arm of government that, in the view of the court, had not observed proper due process in building its ruling.

The larger question of whether there is ever any valid reason — religious or otherwise — for a public accommodation to refuse service to any customer has been left to another day.


June 5

Los Angeles Times on President Donald Trump asserting he has the right to pardon himself:

Donald Trump once said during the 2016 presidential campaign that he could stand in the middle of Fifth Avenue and shoot someone, and still not lose any voters. And who knows? He may have been right.

Now that he’s president, could he also be protected from prosecution for pulling the trigger? Trump seems to believe so. That’s the essence of his assertion that he has the absolute right to pardon himself.

Of course the context of his tweet was not a New York shooting but the ongoing special investigation into alleged Russian interference in the election. But the claim would seem to be no more or less valid for one presidential action than any other. If federal prosecutions are merely extensions of the president’s executive power, and if he could pardon himself as readily as he could pardon Joe Arpaio or Dinesh D’Souza, then it’s hard to see how he could be held to answer for breaking any federal law. Prosecute me, Trump seems to be saying, and I will just pardon myself and we’ll move on. So why bother prosecuting me in the first place?

In this view the president is like kings and emperors of ages past. By definition, he cannot violate the law. It’s not that he is above the law. As president, the argument goes, he is the law.

That notion is foreign and unpardonable — a structurally monarchical presidency constrained by nothing but the president himself. White House Press Secretary Sarah Huckabee Sanders’ later statement that “no one is above the law” offers little comfort, given that the president apparently believes that he is.

Trump is correct when he says that there are some legal scholars who back his assertion that the president can pardon himself. It is a claim not yet vetted in the courts because there has never before been a president willing to push the question very far. Richard Nixon fired his prosecutor but ultimately resigned because he knew he faced impeachment, not because of impending criminal prosecution. President Gerald Ford did pardon Nixon and shielded him from criminal accountability for his actions, but by then Nixon was out of the White House, no longer a danger to the nation or a threat to the rule of law or the checks and balances of government.

So perhaps impeachment, replete with the trappings of legal procedure but at heart a political action, is the proper check on the otherwise unfettered power of a president over how, or even whether, the law is enforced? But then there is no check at all on any president who is sufficiently popular that he can, say, shoot someone on Fifth Avenue without fear from Congress, because it’s not in the political interests of the GOP majority to stand up to him. That would make us a nation of men (and women) and not of laws. And that’s not what we are.