Equal rights, fair elections, and the court


This past June, the Supreme Court’s conservative majority made a huge mark: It ended the constitutional right to abortion, restricted the states’ ability to enforce gun safety laws, narrowed the federal government’s authority to slow climate change, and blurred the line between the separation of church and state. The same majority may now extend its influence to equal rights and fair elections as a result of arguments heard this month.

The first case is similar to one the court heard four years ago. In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the issue was whether Jack Phillips, the owner of a bakery, violated the Colorado antidiscrimination law when he declined to bake a custom wedding cake for a same-sex couple. Instead of reaching the merits of the dispute, the majority ruled in the baker’s favor because the Colorado Civil Rights Commission was hostile to Phillips’ religious beliefs.

A ruling would have required the court to decide whether 14th Amendment equal rights or First Amendment free speech rights predominate.

Now, Creative LLC v. Elenis, another case involving Colorado, may do so. It involves website designs concerning weddings. The owner of the site, a devout Christian named Lorie Smith, wants to post an announcement that she will only design websites for weddings of one man and one woman, and not for same-sex couples.

Such an announcement violates Colorado public accommodations law, forbidding businesses open to the public from discriminating based on race, religion, or sex, and in this case LGBTQ people. Smith says she would happily design websites for LGBTQ folks for anything other than a wedding, but that subject forces her to engage in compelled speech. She would be required to say something that violates her religious convictions.

Colorado, in turn, holds that the law is generally applicable to all businesses open to the public, and doesn’t specifically target Smith’s operation. Besides, “Colorado’s antidiscrimination law exempts a broader class of religious organizations than most states,” including churches, synagogues, and mosques, but not businesses open to the public.

The six conservative justices have consistently indicated greater sympathy for religious expression. Justices Clarence Thomas and Samuel Alito have even argued that they would like to see the end of same-sex marriage as a constitutional right. During oral argument on Dec. 5, the conservative justices were highly sympathetic to Smith’s position. They will decide the issue by next June.

The second issue, heard two days later, involves a challenge to the novel “independent state legislature” theory, which gives state legislators power to create rules for federal elections. The case involves a North Carolina gerrymandered, partisan congressional map that the state supreme court overturned. While Democrats and Republicans are nearly equally divided in the state, the imbalanced map carved out 10 Republican and 4 Democratic districts. Once the state supreme court required a reconfiguration, the new districts were evenly split between Republicans and Democrats.

The theory goes beyond congressional districting to include presidential elections. The Constitution’s Elections Clause in Article I reads, “Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the Congress” (emphasis added). Also implicated is Article II, the Electors Clause, which declares that states shall appoint presidential electors for the Electoral College “in such Manner as the legislature thereof may direct(emphasis added).

Electors in presidential elections are members of political parties who have endorsed the candidate their party has nominated to be president. In most states, if a candidate wins the popular vote, all electoral votes dedicated to the winning candidate are duly chosen. In the past, when elections disputes arose, state supreme courts resolved them to ensure compliance with state constitutions. Now, in Moore v. Harper, North Carolina state legislators contend that they have all power over federal elections, including redistricting, and the judicial and executive branches have none.

After the 2020 presidential election, some state legislators tried, and failed, to appoint electors of their own liking, not those of the winning candidate. Seven states, including Pennsylvania and Wisconsin, sent bogus electors to Washington, D.C., on Dec. 14, 2020, when the votes were counted. Even though Joe Biden won the popular vote in their states, these fake electors argued that their state legislatures could overturn the will of the people and elect Donald Trump instead.

The Brennan Center for Justice at New York University School of Law has concluded that the state legislature theory will be used to overturn elections and “give state legislatures wide authority to gerrymander electoral maps and pass voter suppression laws.” This process would undermine the democratic process and the rule of law.

Four conservative justices have previously expressed support of the “independent state legislature” theory by carving out a small role for state supreme courts. The court will issue a decision by June.


Jack Fruchtman, who lives in Aquinnah, wrote “American Constitutional History,” now in its second edition.


  1. Of course the Colorado Civil Rights Commission is hostile to religious beliefs. They put forward these unique cases to harass and make new law. Let the same sex or alphabet people choose a cake maker who is happy to make their cake. But no! they want to push their agenda into every aspect of life. Should the baker be forced to make a polyamorous cake?

    • I seriously doubt that Ms. Smith would actually “happily” design a hard core gay porno site, or a sex toy shop that caters to the LGBTQ community.

      It is my opinion that the discrimination that she is attempting to legitimize is in the same vein as the restaurant owners who refused to serve people of color just a few decades ago. They could have gone to other restaurants after all.

      And Rosa Parks could have certainly moved to the back of the bus, like a good girl, but no, she wanted to push her agenda into every aspect of life.
      And look at what happened– Today black people live in the same ritzy penthouse complexes as white people. They eat in the same ritzy restaurants as white people, and sit wherever they want on the bus. And most people don’t care at all.
      Should the bus driver be forced to let a gay person on the bus ?

      • For many years now, every liberal pleader in America has made the following argument: ‘’Yeah, but what if we were black?’’ This is supposed to be a weapon, capable of attacking “discrimination” against any group: atheists, women, gays, immigrants, illegal immigrants, the disabled, Muslims — basically anyone except a fully abled white male born in this country. Yes you do have to let girls try out for the Chicago Bears. OK, fine, we’ll hire more blind lifeguards. Of course, Mo Abdullah is welcome to be president of our campus Hassidim group. Making two gay guys who are married to one another feel “unwelcome, objectionable, unacceptable or undesirable” is supposed to be the equivalent of separate water fountains for black people. A good rule of thumb is that any claim of discrimination that requires a comparison to black people is sophistry.

        • andy– if you want to look at a few examples of sophristic state laws, you need not go back more than a year or two in your very own home state.
          It is illegal for teachers in Florida to have any kind of discussion about the realities of slavery and the treatment of “blacks” (as you like to call them), before or after emancipation up to the present day, that may make some privileged white kid feel “uncomfortable” .
          And be extra careful not to say “gay” if you are a teacher, or FSM forbid, let a kid read one of the books “cancelled” by those who love freedom (for themselves).
          One thing I have learned from reading comments on Fox “news” is that complex ideas can be often be reduced to simple formulas that are easily understandable. An example :
          States rights = state sanctioned discrimination

        • andy– not being able to get a cake decorated or a website for your wedding from a business that is licensed and open to the public because of who you are is actually the equivalent of seperate water fountains.
          Should a devout Muslim who owns a restaurant or a bakery or a website service be able to refuse service to any woman who refuses to wear a Hijab in their establishment ? Or require the Hijab in any photo of a woman on the website ?
          We have to be careful of the unintended consequences of these rulings by “activist judges” .

          • No, let me make it easy for you. Any commercial business must serve everyone and everyone regardless of race or ethnicity or sex. What they are not required to do is bake a cake that has a configuration on it hostile to that service providers religion. My cakes are for sale to anyone but if you make me design it to show to dogs copulating—I wont do that. Get it?

          • A baker who objects to creating a copulating-dog cake (there’s a sentence I never thought I’d type…) would presumably refuse to make such an item for anyone and everyone.

            That’s not discrimination. It’s a service that simply isn’t offered across the board. It’s not on the menu.

            Wedding cakes for same-sex couples differ from the above example. Not every cake has a name or one of those little figurine thingies on it. In fact, most that I’ve seen do not. Visually and materially, the configuration of a cake for a gay marriage is often identical to those ordered by straight customers, and we know bakers are happy to fulfill requests from the latter.

            Say a man and a woman order one with three tiers and blue roses. No personalization that would indicate the gender of the parties involved. They get what they want, no problem.

            Two men walk in right after them and also request a three-tiered cake with blue roses. It, too, is not gender-specific, but they openly discuss its purpose—their plans to wed—and the baker refuses them service because he doesn’t want to support said union.

            Is it discrimination in this case? When the actual product and effort required to make both is 100% identical? When it’s on the menu?

            Of course.

            A more honest discussion would be about whether discrimination is ever justifiable when stacked up against religious freedoms. But to continually state that it’s not discriminatory to do something that meets the very definition is illogical. Among other things.

            I occasionally watch videos from The Daily Wire. Something I’ve heard Ben Shapiro say more than once—and he says this outright, in the haughtiest voice—is that marriage between hetero couples is “superior” to other marriages. This is his personal take. He is not just speaking on behalf of God or any text.

            He then wraps up his remarks—which include several blatant insults that I’ve omitted—with, “Is it discriminatory for me to say those things?”, the tonal implication being that it isn’t.

            Yes. Yes, it is. To the letter.

            People can’t have it both ways. If they’d like to float this variety of discrimination as viable, at least wear the appropriate label.

            Practically speaking, I’d indeed go to another baker if I required a cake that someone didn’t want to make for me. Mostly because I would never eat something prepared by a guy with an ax to grind, which is what he’d have if I pressed the issue. No, thanks.

            But that’s irrelevant. The principle remains at stake—if we allow workers to pick and choose in this manner over a luxury item, how long until they’re refusing services for necessary goods on the same grounds? What if someone doesn’t want to deliver heating oil to a same-sex couple because they “don’t support the lifestyle being lived under that roof”?

            One might say that heating oil doesn’t directly reference an event that some find objectionable. But then, neither do the blue & white cakes in my example. They’re exactly the same until a baker attributes meaning to them.

          • Andy– neither the baker nor the website designer has claimed that the refused clients requested anything that could be sexually explicit, whether it be dogs., cats, or people. If you read the story about the baker, they never even got to discuss the design of the cake. In both cases a couple was refused service based entirely on the merchants biases and were discriminated against. Simple easy peasy facts… Don’t add things that aren’t there to bolster your point.
            Katie Lane articulates the point very well.

  2. Another great article by Jack, followed by a predictably ( fill in mad lib adjective here ___________ ) comment by our favorite CON servative.

  3. I’ve decided to delete a comment that was on here and would ask two of our frequent commenters to stick to what it is they have to say about a topic and not supposing what the other might think.

    • Ms Katie Lane makes a good post. Thoughtful deliberative and logical. But I would go one step further. If the Gay couple asked not for figurines but for a cake that said ”support gay marriage”. Refusal to bake that cake is not discrimination in my view but a hostility and antagonism by the gay couple for the bakers religious beliefs. They know exactly what they are doing and have a provocative agenda very similar to the Colorado case in which baker Phillips won the argument. He is turning the customer away not because he is gay but because making that cake is against his religious beliefs. If the gay customer asked for a regular vanilla cake, he would not be turned away but if he were then that is real discrimination and should not occur.

  4. I know you claim to be an erudite individual however, many years ago in order to form a union the states agreed to only to give up certain rights and also agreed to limit the power of the federal govt! Mr Fruchtman , this was done purposely because their was great fear and quite frankly was the rationale because of previous government aka the Brits! In fact a revolution occurred because of the very thing that you seem to support!
    Please note fortunately this “ Supreme Court “ you make reference to is hopefully returning the rights that many in your camp seem to believe and forget that this is not a democracy and was never in intended or designed as such! It surprises me that a man of your “ distinction” fails to recognize this fact! We are a “Republic” , the intent was to in fact be just that! Your advocacy appears to deny this fact! Facts matter, spend more educating Americans esp These readers of the real facts BTW… Merry Christmas & Happy Hanukkah! We are a Judeo Christian Nation! Don’t forget that, let’s start behaving as such and respect the tenets as such! Most important is the sanctity of life, follow the current thinking on that front! Life is very precious, that is not religious per se, it is humanity, it is the reason we worry so much about earth, climate change etc, because it is save life in “ all forms”, albeit exclusively for we who have survived the 36 weeks but the many many who struggle to become part of this world also! Thanks in advance for publishing this message!

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