Legal Spirits Episode 001: A British Version of Masterpiece Cakeshop?

For the first Legal Spirits podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss the UK Supreme Court’s decision last month in Lee v. Ashers Baking Company. The court ruled that Christian bakers did not violate British anti-discrimination laws when they declined to create a cake with a pro-gay marriage inscription. Mark and Marc explain the British decision and compare it with the American Supreme Court’s recent ruling in Masterpiece Cakeshop, and speculate what influence the British decision might have in future American cases.

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web This Week

Here are some interesting stories involving law and religion from this past week:

We the People: What the Public Thinks About Originalism

The following is a post by Center friend and supporter Don Drakeman.

As part of a lively debate about originalism and same-sex marriage (at the Volokh Conspiracy site between Orin Kerr and Ilya Somin), Larry Solum has suggested that there is “no good empirical data on public beliefs about originalism.”  I can’t add to the substantive debate, but I have some empirical data about what the public believes about originalism.  Readers can decide whether it is good or not.

In 2012, I commissioned a YOUGOV survey of 1000 Americans specifically on the topic of originalism.  Most surveys have simply asked voters to choose between the Constitution’s original meaning and a more modern, living Constitution approach. Over time, the public has generally split about 50-50 on that point, with a majority periodically flipping from  one side to the other.  In my Originalism 2012 Survey, 60% chose the understanding of the Constitution at the time it was originally written, with 40% picking “what the Constitution means in current times.”

But here’s the interesting part. I asked the “current times” respondents what the Supreme Court should do with evidence of the original meaning.”  I expected that most would say that it should be either irrelevant or, or merely historical background.  Yet, only 3% said that the Court should ignore it, 18% opted for it to be used only as historical background, and an impressive 79% said that the Supreme Court should “consider it as one of the various factors that should be considered in making the decision.”  So, all in, over 90% of Americans think that the original meaning is at least relevant to the Supreme Court’s decision, with half or more considering it determinative.

That strikes me is as a pretty powerful reason for us to think hard about what the original meaning really is. Many of the debates among originalists center on exactly where we should be looking for that meaning.  I asked the public that question. Offered a series of possible sources, a majority of the public said “yes” or “maybe” to all of these four possibilities: Dictionary definitions; how average voters at the time of ratification understood it; how hypothetical, well-informed ratifiers would have understood it; and the understanding of the framers.  When asked which of these is the most important in the event of a conflict, 66% picked “what the Constitution’s framers intended it to mean.”

Whether the public’s views are important is an interesting question for debate. (For what it’s worth, I believe that they are.) For today, however, I simply wanted to point out that we do have some empirical data, and it speaks pretty clearly.

Details of the Originalism 2012 Survey (along with why I think it is important) can be found here:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2448431

Supreme Court Declines to Hear Wedding Photographer Dispute

The Supreme Court today denied certiorari in Elane Photography v. Willock, the case involving a claim by a photography business that it was compelled to create images celebrating a gay wedding pursuant to New Mexico’s public accommodations statute, in violation of the business owner’s First Amendment rights.

The decision by the Supreme Court not to hear the case leaves in place the New Mexico Supreme Court’s decision against Elane Photography.

Slessarev-Jamir on the Rhetorical Artifice of Religious Conservatives on the Gay Marriage Question

Helene Slessarev-Jamir (Claremont Lincoln University School of Theology) has posted Religious Conservatives’ Success in Constructing Gay Marriage as a Threat to Religious Liberties.  Rather than posting the abstract, which you can see simply by clicking on the link, it may be more helpful to post some selections from this short but intensely felt paper.  Those selections follow.

In this country, an exclusivist, patriarchal construction of religion has positioned itself as the principal crusader against the legalization of gay marriage by essentially claiming the gays and lesbians are not created in God’s image. Yet, the role of religion in the on-going debate is complexified by the gradual emergence of alternate, inclusive religious voices that publicly support gay marriage . . . .

Conservative religious strategists have won their campaigns against marriage equality by raising the specter of possible infringements against the religious liberties of those families, individuals, and institutions that oppose gay marriage were state governments to grant legal status to gay marriage. In the US, the defense of heterosexual couples’ religious liberties has become the principal trope in the campaigns against the right to same sex marriage, thereby legitimating the defense of traditional marriage by claiming that it is the embodiment of an ideal that many Americans perceive as sacrosanct. Thus, a vote to maintain discriminatory laws against same sex couples by denying them the right to marry is effectively recast as a patriotic defense of American liberty and freedom of belief, both of which are regarded as sacred values rooted in this nation’s founding principles . . . .

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