//  6/6/18  //  Quick Reactions

I've just published an op-ed in The Guardian pushing back on claims that Masterpiece Cakeshop undermines Justice Kennedy's legacy of protecting LGBT rights. Here's how it opens:

Legacies are fickle things. Until 10:15am on June 5, 2018, Justice Anthony Kennedy was widely celebrated in the LGBTQ community as a judicial hero. The author of Romer v. Evans (1996), Lawrence v Texas (2003), Windsor v United States (2013), and Obergefell v Hodges (2015), Kennedy had played a singular role in advancing the cause of equal dignity for gay and lesbian Americans. A few hours after he issued Obergefell, which guaranteed same-sex couples the right to marry, The Onion cheerfully published a not-entirely-satirical piece announcing that Kennedy had ruled in favor of “the most out-of-control, bonkers gay pride parade that anyone could possibly imagine.”

But what has he done for us lately? Nothing good, according to my social media feed, which informs me that Kennedy has “torched,” “trashed,” and “wrecked” his legacy of protecting LGBTQ rights. Supposedly he did so in Masterpiece Cakeshop v Colorado Civil Rights Commission, which upheld a baker’s claim that he could not be required to create a wedding cake for a same-sex couple.

I’m not enthusiastic about the holding in Masterpiece Cakeshop. Indeed, I helped write a brief on behalf of church-state scholars advocating the opposite outcome, and there is some language in the opinion that offers cause for concern. But reactions of fury and despair are misplaced. Kennedy wrote a narrow opinion that served more to recognize and frame an important conflict than to resolve the hardest questions. Moreover, there are three features of Kennedy’s opinion that should be celebrated by progressives and members of the LGBTQ community.

Read the full op-ed here!


Versus Trump: Blurring Public and Private Conduct

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On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

Charlie Gerstein

Civil Rights Corps

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The Nineteenth Amendment helped cement the idea that the right to vote is a fundamental right inherent in citizenship

The Real Problem with Seila

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Seila Law LLC v. Consumer Financial Protection Bureau that tenure protection for the Director of the Consumer Financial Protection Bureau is unconstitutional. The decision’s reasoning may be more important—and worrisome—than the holding itself.

Zachary Price

U.C. Hastings College of the Law