SCOTUS 2018 by David Klein & Morgan Marietta

Author:David Klein & Morgan Marietta
Language: eng
Format: epub
ISBN: 9783030112554
Publisher: Springer International Publishing

The majority of Justices agreed that this statement illustrates bias because it called faith “despicable” and implied that the belief was insincere. However, one could also read the commissioner’s comment as drawing attention to how religious beliefs have been used to justify a broad range of policies—ranging from slavery to bans on interracial sex and marriage to bans on same-sex intimacy—that would now be understood as grounded in animus.29 Can the observation of well-evidenced historical pattern be an indication of undue prejudice against a religious believer?

By focusing on the alleged procedural breakdown at the CCRC review, Kennedy avoided the substantive issue at stake. He did not (and perhaps could not) offer the balancing required. Perhaps this is because dignity does not easily admit of a metric that can provide such balancing. If everyone has an inherent dignity, then no one’s dignity can be said to be more valued without fundamentally denying a principle of equality.30 Kennedy reached for a process critique perhaps because his dignity jurisprudence has hit a substantive dead end. He ended the decision were he began it, by noting that eventually the Court will have to balance the issues to which Kennedy proved unwilling or unable: “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”31 Put differently, everyone has dignity and so the case could not be resolved by resorting to the idea of equal dignity. In this sense, Masterpiece seems to reveal the dead end of dignity when applied to rights in commerce .

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