Justice Anthony Kennedy

SCOTUS debates heat up on death penalty, religious liberty: What word is missing here?

SCOTUS debates heat up on death penalty, religious liberty: What word is missing here?

To cut to the chase: I have just returned from a long eye exam (things are OK) and focusing on a computer screen is not going to be easy for several hours.

So let’s make this a quick post. OK?

What we have here is your basic Washington Post law-and-politics story, one running under the headline: “Last-minute execution decisions expose wide and bitter rift at Supreme Court.”

The death penalty is, of course, a hot-button issue linked to debates involving religion and morality, as well as political and legal realities. Here is the opening of this report:

The Supreme Court meets in private to decide last-minute pleas from death-row inmates to stop their executions, and what happens behind the maroon velvet curtains often stays behind the maroon velvet curtains.

But that changed Monday, with justices issuing a flurry of explanations and recriminations on cases decided weeks ago. The writings named names and exposed a bitter rift among members of the court on one of the most emotional and irreversible decisions they make.

Decisions on last-minute stays usually come with only a minimum of reasoning. But three justices issued a set-the-record-straight opinion that took aim at one of Justice Stephen G. Breyer’s dissents from a month ago. Breyer had said that the court’s conservatives deviated from “basic principles of fairness” in refusing to take more time to consider the plea of an Alabama murderer, Christopher Lee Price, who had asked to be executed by inhaling nitrogen gas rather than risk a “botched” lethal injection.

“There is nothing of substance to these assertions,” wrote Justice Clarence Thomas, joined by Justices Samuel A. Alito Jr. and Neil M. Gorsuch. They said that Breyer’s reasoning, which was joined by the court’s three other liberals, “does not withstand even minimal legal scrutiny.”

Now, since my eyes are under the weather, let’s let GetReligion readers look through this story through a media-criticism lens.

This story contains a lot of religion, since the court cases here involve Buddhist and Muslim prisoners and their First Amendment rights. Think religious liberty issues, without the “scare quotes.”

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Friday Five: Capital Gazette journalists, SCOTUS news, an unsung hero's passing and more

Friday Five: Capital Gazette journalists, SCOTUS news, an unsung hero's passing and more

"I’m just undone by what happened at the Capital Gazette," said my friend Carla Hinton, religion editor at The Oklahoman. "These are strange and heartbreaking times we are living in. Praying for my fellow journalists and their families."

"It's especially traumatic because so many of us started our careers at newspapers like the Capital Gazette," responded my friend Steve Lackmeyer, a longtime business reporter at The Oklahoman. "We know these people, we know these newsrooms..."

Amen and amen.

No, the senseless slaying of journalists isn't any more tragic than the mass shootings — at schools, churches and other businesses — that keep making headlines in America.

But for those of us in this profession, the Capital Gazette tragedy hits especially close to home.

Want to understand the heart and passion that make many journalists tick? Read this Twitter thread by Nyssa Kruse, an intern at the Hartford Courant.

Now, let's dive into the Friday Five:

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After Kennedy retirement, you'll find thousands of the nation's happiest people in ... Wichita, Kan.

After Kennedy retirement, you'll find thousands of the nation's happiest people in ... Wichita, Kan.

After Justice Anthony Kennedy's retirement announcement Thursday, CNN political analyst Jeffrey Toobin tweeted that abortion will be illegal in 20 states in 18 months.

The Twitter post, expressing the worst fears of abortion-rights supporters, quickly went viral.

But if there is weeping and gnashing of teeth — on the pro-choice side — over the future of Roe v. Wade, the mood is something entirely different among thousands of pro-life advocates gathering in Wichita, Kan., this weekend.

Coincidentally, the National Right to Life committee's three-day national convention started this morning — the day after the Kennedy news shook the nation's political and legal landscape.

This post mainly serves as a public service announcement that regional newspapers — including the Kansas City Star and the Wichita Eagle — are following the convention and have produced some excellent coverage already. 

Today's in-depth preview of the convention by the Star mixes crucial details and relevant context both on the National Right to Life Committee and red-state Kansas itself:

For the first time in its 50-year history, the nation’s largest anti-abortion organization is holding its annual convention in Kansas, a state seen by many in the movement as a model for passing tough abortion restrictions.

The National Right to Life Committee, which has affiliates in every state and more than 3,000 chapters across the country, will open its convention Thursday morning at the Sheraton Overland Park with 90 minutes of speeches by Gov. Jeff Colyer and others.

“There’s a lot of enthusiasm and optimism in the pro-life base right now,” said National Right to Life President Carol Tobias. “We are seeing a lot of young people getting involved. We have a president who is issuing great pro-life orders and actions. And he’s appointing judges to the courts that we believe will strictly interpret the Constitution and not make it up as they go along.”

And yes, the Star notes the significance of Kennedy's retirement:

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Is the open U.S. Supreme Court seat a religion story? Do we even need to ask that?

Is the open U.S. Supreme Court seat a religion story? Do we even need to ask that?

If you live in Washington, D.C., or have sojourned there in the past, then you know that a high percentage of folks in the Beltway chattering classes wake up every morning with a dose of Mike Allen.

This was true in his "Playbook" days at The Politico and it's true now that he has moved on to create the Axios website, which is must-reading in this troubled Donald Trump era.

So if you want to know what DC folks are thinking about -- after King Anthony Kennedy announced his retirement from the U.S. Supreme Court -- then it's logical to do a quick scan of Allen's punchy offerings today in the "Axios AM" digital newsletter (click here to see it in a browser). At this here weblog, that means looking for religion-beat hooks. It doesn't take a lot of effort to find them. For example:

Behind the scenes: Trump doesn’t personally care that much about some of the social issues, such as LGBT rights, energizing the Republican base over the Supreme Court.

But Trump knows how much his base cares about the court. He believes that releasing his list of potential court picks during the campaign was a masterstroke, and helped him win.

What part of the GOP base is Allen talking about? That's obvious. However, journalists covering this angle really need to see if many cultural conservatives are all that interested in rolling back gay-rights victories at the high court.

Most of the people I know understand that this ship has sailed, in post-Christian American culture, and they are primarily interested in seeing a strong court decision defending some kind of conscientious objection status and/or a clear rejection of government compelled speech and artistic expression. In other words, they would like to see an old-school liberal ruling on First Amendment grounds.

As I have said here many times, I know very, very few religious conservatives who wanted to vote for Trump. However, I heard lots of people say something like this: I don't know what Donald Trump is going to do. But I do know what Hillary Rodham Clinton is going to do. I'm going to have to take a risk. They were talking about SCOTUS and the First Amendment.

Back to Allen:

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After the Cakeshop decision: Celebrations, cynicism and sobering insights from pros

After the Cakeshop decision: Celebrations, cynicism and sobering insights from pros

So I was at the gym last week (old people with arthritis do things like that) and I fell into a conversation with another old-timer about the 7-2 U.S. Supreme Court ruling in Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commission (.pdf here). She wanted to know what I thought of the decision.

These kinds of conversations happen all the time here in Oak Ridge, Tenn., in part because my column has run for three decades in the nearby Knoxville News Sentinel, a newsroom that played a key role in the birth of "On Religion." I'm that religion guy.

Anyway, I said that it appeared America's one true king -- Justice Anthony Kennedy -- couldn't decide how to settle this clash between the First Amendment and LGBTQ rights, two issues at the heart of his high-court legacy. So he punted and wrote a narrow opinion, focusing on the anti-religious bias exhibited by Colorado officials. Who knows what will happen next?

I didn't take notes, but this Oak Ridger replied: "Well, I just don't think that guy could refuse to do business with a gay couple like that."

I asked if she knew that baker Jack Phillips offered to sell them anything in his store for their wedding, including cookies, brownies or basic wedding cakes. What he said he couldn't do -- because of his traditional Christian beliefs -- was make one of his special, handcrafted designer cakes that included themes and details linked to their same-sex union rite.

Well, I don't think it's right for him to single out gays like that, said the woman.

Actually, I noted, Phillips has turned down lots of jobs because of his evangelical beliefs, including making Halloween cakes, cakes containing alcohol, risqué bachelor-party cakes, atheist event cakes and, yes, cakes with slogans attacking gay people. He doesn't reject classes of people, but he does reject delivering specific messages he believes are linked to religion.

This Oak Ridger was silent for a moment, then said: "Well, I haven't heard any of that on CNN."

Maybe I should have told that story in this week's "Crossroads" podcast (click here to tune that in), because it's a perfect example of how simplistic press coverage has helped shape -- "twist" might be the right word -- grassroots discussions of religious-liberty issues.

Ever since the ruling was handed down, there has been an amazing barrage of opinions from activists on both sides.

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After the Cakeshop case: Justice Kennedy cites need for First Amendment guidelines -- then punts

After the Cakeshop case: Justice Kennedy cites need for First Amendment guidelines -- then punts

It's the question that journalists have to be asking right now, along with the legal pros on both sides of future First Amendment clashes between sexual liberty and religious liberty. 

Now what?

To be blunt, was the 7-2 U.S. Supreme Court ruling in Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commission (.pdf) a signal (a) to religious believers of all stripes that it's open season, in terms of rejecting LGBTQ customers or (b) to blue-zip-code politicians that they are free to stomp on the First Amendment rights of traditional religious believers, only while using cool, calm legal logic rather than the heated prose used in Colorado?

As always, the key lines to parse were written by Justice Anthony Kennedy. Here is the essential material, as quoted by USA Today:

Kennedy acknowledged that business owners generally cannot deny equal access to goods and services under a neutral public accommodations law. Otherwise, he said, "a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws."

"The outcome of cases like this in other circumstances must await further elaboration in the courts," Kennedy said. "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."

It's interesting that Baptist Press, when focusing on the same bottom line, made a strong effort to note the degree to which Kennedy once again affirmed LGBTQ rights:

"Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth," Kennedy said. "For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression."

He wrote, "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."

So reporters, what phrases jump out at you, as you look to the future of this story?

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Masterpiece Cakeshop waiting game: Are the bakers of all 'offensive' cakes created equal?

Masterpiece Cakeshop waiting game: Are the bakers of all 'offensive' cakes created equal?

It probably comes as no surprise that this week's "Crossroads" podcast (click here to tune that in) focused on key ingredients in the Masterpiece Cakeshop debates at the U.S. Supreme Court.

This is one case in which it really helps to spend time reading the transcript (click here for the .pdf). I loved Julia Duin's description of these court arguments, earlier this week, as, "a knife fight between 10 participants (nine justices and the hapless attorney before them)." Host Todd Wilken added that, in this setting, the action took place in a kind of polite, legalistic slow motion.

Hint: It's interesting to scan the document looking for key words and phrases. For example, try "tolerance." And if you search for "doctrine" you will find all kinds of references -- but in this case the word refers to doctrines established by the high court. That's rather chilling.

My pre-game post focused on several issues that I thought would be crucial in media coverage. For example, tt appears the justices accepted that baker Jack Phillips was, in fact, being asked to create one of his unique, artistically designed cakes, with content linked to a same-sex wedding -- as opposed to an all-purpose wedding cake (which he offered the couple).

What about the cases in which the Colorado Civil Rights Commission ruled that liberal bakers did not have to produce products that violated their beliefs? I truly expected journalists to include some information about the court's discussions of that. Many did not.

So what happened on that issue? First, before we look at one interesting chunk of the transcript, please allow me to flash back to a parable that I created in 2015 to illustrate this question. Here it is again:

... Let's say that there is a businessman ... who runs a catering company. He is an openly gay Episcopalian and, at the heart of his faith (and the faith articulated by his church) is a sincere belief that homosexuality is a gift of God and a natural part of God's good creation. This business owner has long served a wide variety of clients, including a nearby Pentecostal church that is predominantly African-American.
Then, one day, the leaders of this church ask him to cater a major event -- the upcoming regional conference of the Parents and Friends of Ex-Gays & Gays. He declines, saying this would violate everything he stands for as a liberal Christian.

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Masterpiece Cakeshop day: Did justices ask what this wedding cake was supposed to look like?

Masterpiece Cakeshop day: Did justices ask what this wedding cake was supposed to look like?

It's a wedding day, sort of, at the U.S. Supreme Court, with legions of activists and journalists (and folks who are both) lining up to hear oral arguments in the much-discussed case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

One of the main challenges facing journalists is this: How should they frame the issues in this First Amendment case? In other words, is this a religious liberty (no "scare quotes," please) case about a religious minority, an artistic expression case or, as the title implies, a case that is essentially about civil rights?

Based on what I have been reading, the legal team for bakery owner Jack Phillips is planning -- preaching to Justice Anthony Kennedy, of course -- to focus on issues of artistic expression, as much or more than on religious liberty.

With that in mind, readers will want to pay attention to two specific issues in mainstream news coverage of the oral arguments at the high court.

First, does the coverage mention that Colorado officials have, on three occasions, declined to force pro-gay bakers to provide Christian or conservative customers with cakes containing creative content that would violate liberal political and religious beliefs on sex and marriage. In other words, Colorado recognized the First Amendment rights of those cake artists.

Second, will the justices strive to find out precisely what kind of cake Charlie Craig and Dave Mullins were seeking when they sought the services of a baker famous for his custom-designed and intricate cake creations.

Why ask that second question? Consider this crucial passage in the National Public Radio advance story about this case, which ran online under this headline: "A Supreme Court Clash Between Artistry And The Rights Of Gay Couples." The key voice here is that of Kristen Waggoner, of Alliance Defending Freedom:

"The First Amendment protects the right of all Americans to decide what they will express and when they will remain silent," she continues. "It's fundamentally different than saying to someone, 'I will not serve you just because of who you are.'" This case, she maintains, "is about the message."

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New Year’s observations on matters religion writers will want to be watching (Part I)

New Year’s observations on matters religion writers will want to be watching (Part I)

The Religion Guy’s thoughts about religion-what beat specialists may want to anticipate for 2017 once the New Year has been properly toasted are as follows: Much of the action will circle around LGBTQ-related controversies. I am sure that is not a surprise.

As throughout 2016, all things Donald Trump will dominate the news. Due to the ongoing conflict between gay rights and religious-liberty assertions there’s keen interest in the unpredictable new president’s Supreme Court choice to succeed the late Justice Antonin Scalia. Justice Samuel Alito recently lamented the repression of free speech, particularly on college campuses, but warned that “freedom of religion is in even greater danger.”

Again, this is not a big surprise.

Alito and Scalia uttered that same warning as dissenters when the court majority dodged religious rights in its 2015 ruling legalizing gay marriage. A new justice in Scalia’s mold won’t shift the Court’s balance of power. The bigger ruckus comes later, with a replacement for swing voter Anthony Kennedy (age 80), or liberals Ruth Bader Ginsberg (83) or Stephen Breyer (78). 
Also vital, though often neglected by the media, will be Trump’s nominees for lower federal courts that will decide most of these First Amendment disputes.

Though this is often portrayed in the press as a mere concern of Catholics and white evangelicals, 27 African-American Protestant leaders rallied by the Seymour Institute sent a notable letter to candidate Hillary Clinton. Alongside conventional black concerns on matters like education and justice, the clergy charged that gay activists want to “criminalize our biblical texts as hate speech,” and accused Democrats of “open contempt for religious freedom.”

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