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On Independence Day, appreciate those ... courts


July 4, 2018

When we celebrate Independence Day, we typically aren’t thinking about judges.

Courts aren’t always something we Americans appreciate.

Criminal and civil courts, of course, represent the long arm of the law, not always to the benefit of ourselves or those we know.

Appellate courts, the ones that rule on the finer points of legality for laws passed or enforcement actions taken, or sometimes on the lawfulness of how things went in lower courts, are a little different animal. But they still sometimes hand down rulings that fly in the face of what we may think is right.

But with another Fourth of July upon us, following a flurry of big-time court rulings over the past couple of weeks, perhaps this might be a good time to reflect on the benefit of the judicial branch of our government in our lives.

This Fourth of July is coming on the heels of several appellate court decisions that have probed some very thorny aspects of guarantees of freedom we’ve enjoyed, at least in recent history.

One is cases involving clashes between personal rights – in all of these, gay rights – and freedom of religion or artistic expression. We’ll get back to those in a moment.

Another landmark decision is one in which the U.S. Supreme Court ruled that public employees who disagree with union political stances or otherwise disagreed with the union, yet benefitted from collective bargaining, do not have to pay union dues. The court, in a very narrow 5-4 decision, said it was unconstitutional to require workers to give financial support to public policy positions they oppose.

This one touches home across the nation, even here in Sweet Home, where such unions represent school and civic employees.

Still another, handed down by the Oregon state Supreme Court, essentially destroyed, at least for the time being, an effort to put a measure on the ballot that would ban assault weapons and high-capacity magazines. The court ruled that the proposed initiative contained vague and possibly misleading language in the description that would have been presented to voters. It sent the measure back to the state Attorney General’s office for a rewrite, which would take too long for backers to be able to gather the signatures required to get the measure on the November ballot.

Appellate courts are important in determining which social trends and which governmental policies fly and which don’t under the Constitution.

Courts can provide a point of stability in an increasingly volatile political world. They can also, with one decision, radically change the course of history. Roe v. Wade is only one of many examples.

They can make judgments that may change the moral fabric of our nation – affirming or denying social realities in our world.

Courts do not always march in lock-step with society, or at least with the society reflected in much of the media, although they are not immune to popular views.

The reason so much care – and political maneuvering – goes into the selection of appellate court justices, both state and federal, is because appointments are for life unless they are subject to electoral challenge.

The wisdom of the Founding Fathers is evident in that our judicial branch of government can represents kind of a wild card in politics, beholden to no one. Justices don’t have to worry about making their constituents happy, so they don’t lick their fingers and stick them in the breeze to determine which way it is blowing.

Not only did both the Oregon and U.S. Supreme Courts frustrate progressive causes with decisions handed down in the last week, the plot thickened when Justice Anthony Kennedy, the true swing vote on the U.S. Supreme Court, announced he was retiring – sparking a predictable political firestorm.

There are some big issues out there, and it will be interesting – and controversial – as President Trump and his allies proceed with the appointment of a new justice.

The “wedding cake cases” mentioned earlier are one of those issues.

Most of us are likely familiar with the saga of the Gresham bakers who were heavily fined and essentially put out of business because they refused to create a wedding cake for a lesbian couple, citing their religious persuasion that marriage should be solely between a man and a woman.

Though then-state Labor Commissioner Brad Avakian focused on accusations of discrimination in ordering the couple who owned the bakery to pay $135,000 –  a decision upheld by a state appellate court and, two weeks ago, by the Oregon Supreme Court in turning down a request to hear the case, constitutional questions have not been resolved.

Can the government force you to say something you don’t want to say and that violates your conscience?

That is a looming question – and the real issue that should be decided by the courts in the Oregon case as well as in Washington, Colorado and California, where very similar cases have surfaced.

Certainly, there is serious tension here. On one hand, discrimination is an evil that has blotted American history, but on the other, should an artist – which is what these cake decorators and florists essentially are – be forced by government edict to engage in expression that violates their conscience?

Unfortunately, the U.S. Supreme Court didn’t address this question directly in the Colorado bakery case, in which it ruled in favor of the baker – in May, but the Court then followed that up by sending a similar case (involving a Washington florist who wouldn’t do wedding flowers for a longtime customer’s gay wedding and was fined for that) back to the state appellate courts for review in light of its decision in the Colorado case.

The Supreme Court needs to take the bull by the horns and address this clash of competing interests. The judge in the California case saw this clearly, ruling that the baker, who he said was an artist, should not be compelled by the government to create against her conscience.

Freedom of belief and speech sometimes presents uncomfortable conflicts, as is demonstrated by a long line of U.S. Supreme Court cases that established our rights of free expression. Many involved groups that ran contrary to mainline thought and practice, sometimes annoyingly so, but courts in the last century have established their right to express themselves as long as they aren’t creating outright disorder.

As a lawyer for the Gresham bakers put it, “The First Amendment is not designed to protect only popular speech. The true test of whether we actually believe in the promise of the First Amendment is speech we find socially controversial.”

So now the question remains, should the government be able to force you to say or create something you don’t want to?

Living in a democracy can be uncomfortable. But think what life would be like if the government were allowed to dictate what we say or do, which is essentially what is happening in that Gresham case.

That’s one reason the American Revolution and the Declaration of Independence happened. We need to remember that.

Happy Fourth!


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