• Tensions are high, conflict threatens to flare up again at any moment, but let’s hope the situation between the White House and the Philadelphia Eagles can be resolved peacefully.
• Republicans continue to make progress in the polls, with oddsmakers seeing gains in the Senate and the possibility of retaining the House. They are aided by a strong economy; accomplishments that have allayed the doubts many conservatives had about President Trump; and the Democrats’ continued march to the left, which in recent weeks has had them, for example, making a federal case out of the harshness of Trump’s language about the violent MS-13 gang. The party in power usually loses seats in a midterm because the opposition is more fired up, and the polls continue to show high intensity among Democratic voters. But it is slowly dawning on Democratic politicians that they cannot count on the president’s Twitter feed to win the election for them.
• Bill Clinton’s publicity tour for his new spy thriller, written with James Patterson, got off to a rocky start. The Today Show’s Craig Melvin asked the former president whether, in light of the Me Too movement, he would change anything in retrospect about his handling of the Monica Lewinsky scandal. Clinton responded with barely suppressed rage, defensiveness (he “did the right thing” and “defended the Constitution”), deflection (what about Trump? should JFK have resigned?), and the suggestion that he had suffered enough and was being further victimized by Melvin’s pressing the issue all these years later (“Nobody believes I got out of that for free”). When asked whether he owed Lewinsky a personal apology, he responded: “No, I do not.” Twenty-four hours later, he mustered an apology of sorts for his performance in the interview, saying he had gotten “hot under the collar.” He added: “I support the Me Too movement and think it is long overdue.” Yes, and by at least 20 years.
• Eric Greitens resigned less than a year and a half into his governorship of Missouri. The Republican was enmeshed in two scandals, one concerning his alleged abuse of a nonprofit group and the other a relationship with a woman that he described as an extramarital affair and she described as rape followed by blackmail. As the evidence against Greitens mounted, the Republican legislature began impeachment proceedings. A sad story, but one from which Republicans have emerged with some honor.
• The NFL buckled on kneeling. It announced a new policy requiring players to stand for the National Anthem or stay in the locker room. Teams will be fined for infractions. The league clearly believes that it has paid a price for the kneeling controversy, augmented by the pounding it has taken from the president of the United States (another front opened up in Trump’s war with the NFL when he disinvited the Super Bowl–champion Philadelphia Eagles from a White House celebration when it became clear that Eagles players weren’t going to show up). In a better world, sports wouldn’t be just another venue for politico-cultural warfare in this country; in a better world, NFL players would have found a less disgraceful way to register their discontent with American policing than disrespecting our flag.
• In the latest legal parsing of social media, a New York federal judge ruled May 23 that President Trump is constitutionally prohibited from blocking any of his followers on Twitter. Judge Naomi Reice Buchwald, determining that the president’s Twitter account is a public forum as defined by the Supreme Court, declared that preventing users from seeing tweets and participating in the discussions attached to them was a violation of their First Amendment rights. Such phrases as “digital town hall” were featured in the opinion. But Twitter is not a digital town hall. It is at best, if we are allowed to continue disfiguring this metaphor, a digital private hall in which various persons, some of whom are public officials, rent rooms. A real town hall — i.e., a building — is a public forum because it is public property, just like sidewalks or parks or anyplace else from which the government cannot bar speakers simply because of their viewpoint on an issue. Twitter, however, is a private service that Trump uses just as anyone else does, and therefore he ought to be entitled to block whomever he likes (or dislikes), subject to Twitter’s terms of service. Mar-a-Lago does not become a public forum merely because the president uses it for official business sometimes.
• International trade is flourishing within the Trump family, as China recently approved 13 trademarks for items produced by Ivanka Trump’s company, with more applications in the offing. The trademarks cover everything from chocolate to coffins (buy, and use, separately, please). Many applications for Chinese trademarks are preemptive, to prevent profiteering by local rascals. Ivanka did not herself approve the applications; she has put her company in trust (though she still profits from it). The conduct of business as usual is unseemly, however, when the beneficiary is the daughter of a president and the wife of a presidential adviser, and when her business is being done with a major economic and political rival. If the only way to avoid impropriety is selling off, so be it.
• In 1912, Jack Johnson, the world heavyweight boxing champion, was arrested twice for violating the newly enacted Mann Act, which forbade the transport of women across state lines “for immoral purposes.” The first case against Johnson collapsed after the woman, Lucille Cameron, who soon married him, refused to cooperate. A few months later, a different woman testified against him, and in 1913 he was convicted. Johnson was black. Both women were white. Johnson fled abroad with Lucille. When he returned in 1920, he surrendered to federal agents at the Mexican border and served his sentence, a year and a day. Last month, more than 70 years after Johnson’s death, President Trump pardoned him — a symbolic act that the Senate, in a resolution, had urged President Obama to make. He didn’t. The Mann Act has been amended several times to remove consensual sex from its snare, in which Johnson had been caught. The glaring racial element in his prosecutions — it was an era when a screening of The Birth of a Nation would be a hit in the White House — has been a stain on American history. The posthumous pardon of Johnson was overdue.
• In 2012, author and sometime NR contributor Dinesh D’Souza arranged for two small straw donations to the hopeless New York senatorial campaign of Wendy Long, an old friend of his. Such actions, clearly illegal, are typically punished by fines. The feds instead threw the book at him, resulting in a fine, five years’ probation, and eight months in a halfway house. Alan Dershowitz commented that the legal full-court press “smack[ed] of selective prosecution.” President Trump has now granted D’Souza a pardon. Next up should be reform of the campaign-finance laws.
• The 2010 Dodd-Frank law was an attempt to prevent future recessions through the power of regulation. Thus far, all it’s accomplished has been to make it difficult for small banks to compete with the industry’s giants, which can much more easily absorb the costs of compliance. President Trump, however, recently signed a bill rolling back some of the least popular provisions. The new law makes it easier for community banks and credit unions to offer mortgages outside the onerous “qualified mortgage” rule (so long as the institutions keep the mortgages rather than selling them), raises the threshold at which banks are subject to “stress tests” from $50 billion in assets to $250 billion, and exempts small banks from numerous other arcane provisions as well, including reporting requirements and restrictions on “speculative” trades. We’d have preferred a broader repeal of the 2010 law, but a significant rollback — targeting community institutions that did little to contribute to the financial crisis a decade ago yet were disproportionately harmed by the Democrats’ “reform” — is a legislative accomplishment for a Congress in need of them.
• Republicans on the House Ways and Means Committee have put forward a gut renovation of Temporary Assistance for Needy Families, the cash-welfare program famously overhauled in 1996. Since that year, serious problems have emerged: Some states have turned TANF’s block grants into a slush fund (paying for college scholarships, among other things), and others have escaped having to enforce the work requirements (through various credits the law provides). The new reform would crack down on the misuse of federal funds, in addition to requiring states to engage all recipients in work activities. These are positive developments, but there are three risks as well: First, states would no longer be held accountable based on how many recipients actually met the work requirements; second, the definition of a work activity would be expanded, with states even able to create their own; and third, as an alternative way of holding states accountable, the program aims to track welfare recipients’ employment after leaving the program, a process sure to prove difficult. There’s no denying our welfare system is still deeply flawed, but Republicans must be careful not to lose the gains they made two decades ago.
• The new Trump “zero tolerance” enforcement policy at the border has — par for the course — met with a hysterical response. The administration is now prosecuting all adult migrants for illegal border crossing and holding them while their asylum claims are adjudicated. If the adults brought their children with them, this necessitates their separation. Obviously, this is a significant moral downside. But Congress could alleviate the situation immediately by allocating more resources to detention space — especially family detention space — and giving the administration the legal authority to continue holding kids while their parents pursue asylum (an old consent decree makes it impossible to hold kids for longer than roughly 20 days, even if their parents are still detained). As it is, we have to choose between waving all Central American migrants with kids into the country, probably never to be seen by authorities again, or enforcing our laws. A functional and humane system would not impose this choice.
• Soon after President Trump directed the Department of Energy to find a way to keep struggling coal and nuclear power plants alive, the DOE’s as-yet-unfinished plan to fulfill that directive leaked to reporters. The plan, justified under a national-security provision of the Federal Power Act and the Korean War–era Defense Production Act, would force energy-grid operators to buy power from these plants. Were this proposal to become federal policy, the Trump administration would be tipping the scales of the American energy sector under the highly dubious justification that the continued existence of these power plants is vital to national security. As a general matter, corporate welfare is distasteful; worse is the administration’s penchant for doling it out with fictive “national security” justifications. Reportedly, the administration is divided over the plan. May its opponents prevail.
• President Trump has signed three executive orders aiming to make the civil service more accountable and curtail unions’ use of public resources. The orders make it easier to fire poor performers, require agencies to negotiate contracts quickly, bar federal employees from spending more than a quarter of their workday on “official time” (during which taxpayers pay them to do union business), and end the practice of letting unions use space in federal buildings for free. As commonsensical as these changes are, however, steps taken by executive order can be undone just as easily. Trump made a good move; Congress should write it into the law.
• Across the country, conservative state legislatures have been striving to implement more stringent protections for the unborn — and in a few instances, they’ve achieved some success. This year’s biggest victory came after the Supreme Court declined to hear a challenge to an Arkansas bill prohibiting prescription of abortifacients unless the relevant physician has admitting privileges at a local hospital, effectively limiting most early-term abortions in the state. Meanwhile, both Mississippi and Louisiana have enacted bans on abortion after the 15th week of pregnancy; Louisiana’s was signed by a Democratic governor. A few states have prohibited selective abortions based on gender, race, or disability, and Iowa governor Kim Reynolds recently signed the nation’s most pro-life law, prohibiting abortions after a fetal heartbeat can be detected, usually about six weeks into pregnancy. While several of these regulations have faced successful legal challenge or been stymied in court, the overall strategy seems to be working: Incrementally, states are finding legal chinks in the abortion-on-demand regime.
• One month after the death of Alfie Evans, Bambino Gesù Pediatric Hospital in Rome released the “Charter of Rights of the Incurable Child.” Its ten articles include the proposition that every family should have the right to choose their child’s doctors and hospital, even if it means a “move to a country other than their own.” Alfie’s parents, like those of Charlie Gard last year, were prevented by British courts from transferring their severely ailing child to Bambino Gesù, which in both cases had offered to treat the infant after his doctors recommended removal of life support and obstructed the parents’ decision in favor of the second opinion they had sought. Mariella Enoc, the president of Bambino Gesù, says that the hospital will send the charter to the European Parliament and member states of the European Union. In the United Kingdom, Charlie’s parents have begun a campaign to revise the relevant laws and regulations there. No one expects Bambino Gesù to meet with quick and easy acceptance of its proposals, but Godspeed to the pediatricians there as they continue to affirm that even the incurable have a right to fight for as much time as they can.
• We’d prefer if the on-again, off-again Trump–Kim summit were off-again. It is assured to be compelling theater but less likely to serve U.S. interests. If the past is any guide, the North will use some sort of promise of denuclearization to relax the international pressure against it. Even if Trump doesn’t want to ease up, it will be hard to resist South Korean entreaties to loosen the sanctions regime based on positive atmospherics around the historic meeting. And the Chinese will exploit any cracks in the sanctions. The North Korean regime has perfected this gambit over the decades, which is why it now has nuclear weapons to promise to get rid of.
• Some 2,000 clerics in Afghanistan were meeting in Kabul. They are members of the Afghan Ulema Council. They issued a fatwa against suicide bombing — saying that it was forbidden, “haram,” under Islamic law. They also called on militants to enter peace negotiations with the government. “The ongoing war in Afghanistan is illegal and has no root in sharia law,” they said. The war “does nothing but shed the blood of Muslims.” Less than an hour after they made this statement, they were suicide-bombed. At least seven were killed and at least 20 wounded. Once again, we see that prominent among the Islamic State’s victims are pious Muslims.
• A French magazine, Le Point, put Turkey’s strongman Recep Tayyip Erdogan on its cover, saying, “The Dictator: How Far Will Erdogan Go?” Copies of the magazine duly appeared at kiosks, along with posters promoting the cover. Some Turks in France took offense at this. At one kiosk, near Avignon, they pressured workers to take the poster down. The workers complied. This moment was caught on video, and was seen around France. Le Point requested that its poster be returned, and it was. Police then surveilled the kiosk. France’s president, Emmanuel Macron, took to Twitter, saying, “It is totally unacceptable for @LePoint’s posters to be removed from kiosks, just because they displease the enemies of freedom, whether in France or abroad. Freedom of the press is priceless. Without it, there is dictatorship.” In Turkey, the dictatorship was mightily displeased with France. Chapeau, Macron.
• Arkady Babchenko is a Russian journalist, one of the bravest. As a young man, he joined the army, fighting the Chechen wars. Then he became an investigative journalist, reporting stories that annoyed the Kremlin. This made him a marked man, and he fled Russia for his life last year. On May 29 of this year, it was reported that Babchenko had been murdered in Kiev. Tributes to him poured in. He got to read his obituaries. The next day, Ukrainian intelligence revealed that it had faked Babchenko’s death to unravel murder plots against him and others. Opinion on this gambit was split. Some said that the Ukrainians had undermined trust in government; others were thrilled, saying that at last someone had put one over on the FSB (as the KGB is now called). Garry Kasparov was in the latter camp, writing, “I have lost too many friends to bullets and beatings to spend my anger on anyone other than the assassins and the man in Moscow who commands them.”
• The stories ran like prairie fires through pop-land, and by now everyone not a Trappist has seen the flames or smelled the smoke. Roseanne Barr had the successful reboot of her sitcom canceled thanks to a late-night tweet in which she speculated that former Obama aide Valerie Jarrett was descended from Planet of the Apes. Soon thereafter TV comic Samantha Bee had to apologize for bestowing the worst four-letter insult to women on Ivanka Trump. Barr is a Trump supporter; is that why her head rolled, while Bee’s, and the heads of the writers and producers who came up with her epithet and approved it for broadcast, remain in place? Whatever the explanation, no one seemed to care about Barr’s loose-lipped talk when she was merely a 9/11 truther. Meanwhile we are stuck with a conjunction of insult as humor and instant dissemination, which no phony apologies, nor the firing of any number of stars, will dispel.
• MSNBC’s Joy Reid simply can’t keep her story straight. When, earlier in the year, a set of homophobic posts was discovered on Reid’s old blog, she apologized and said she’d evolved. But when a second set, identical in tone, was discovered later, she said that she’d been retroactively hacked and that the FBI was looking into the case. Now that a bunch more posts have been discovered — they include 9/11 conspiracy theories, the casting of immigration as a libertarian plot, a photoshop of John McCain as a school shooter, and some casual anti-Semitism — the hacking line has disappeared in favor of another apology. One almost gets the feeling that she’s making it up as she goes along. She was a poisonous troll back then, as she is now, though her views have changed; perhaps MSNBC wants to be in that business. That she cannot keep her story straight should be fatal for her career.
• In the 1960s, civil-rights activists sat down in restaurants and tried to get served. Now they try to get thrown out. In Portland, Ore., Lillian Green, a state education bureaucrat whose job involves “building capacity for equity work,” showed up at the Back to Eden vegan bakery after closing time and demanded to be served. The staff politely refused; Green, who is black, filmed the ensuing argument; and suddenly the bakery (which is woke even by Portland standards, complaining on Facebook that it does business in a “gentrified neighborhood in a racist city within a racist state of a racist country”) was worse than Alabama in 1955 — maybe even worse than Starbucks. The manager issued a self-flagellating apology, fired two employees, and announced a “reparations happy hour” at which every black customer would receive $10 and a free drink. He invited Green to meet with him to arrange further groveling, whereupon Facebook commentators complained that he had not offered to pay her for doing so. First time as tragedy, second time as farce, and 17th time as dreary, counterproductive ritual.
• NR contributor James Kirchick, Yale class of ’06, has announced his candidacy for alumni fellow of the Yale Corporation. He needs 4,226 signatures by October 1 to be listed on the ballot that goes out to alums. Kirchick’s two main issues — administrative bloat and free speech — are interrelated. Like most modern universities, Yale carries ranks of diversity cheerleaders on its payroll. These encouraged the protesters who in 2015 raged at Silliman College master Nicholas Christakis after his wife suggested that the university leave students to make their own decisions about what Halloween costumes to wear (the horror!). Yale’s 1975 Woodward Report on free expression was a clarion call for open and honest discussion and debate; Yale today relapses into the safe-space swamp. Kirchick, a sprightly libertarian, is just the candidate to call his alma mater back to its best traditions.
• British actor Benedict Cumberbatch, the star of the TV series Sherlock, a modern take on the Sir Arthur Conan Doyle character, was riding in an Uber in London with his wife last November, when he spotted four thugs beating up a delivery rider and attempting to steal the man’s bicycle. Cumberbatch asked his driver to pull over, got out of the car, and with the help of the driver fended off the attackers, who fled. The story came out in June, as told by the driver to the Sun: “It all got a bit surreal. Here was Sherlock Holmes fighting off four attackers just ’round the corner from Baker Street.” He added: “The cyclist was lucky, Benedict’s a superhero.” Reached for comment, Cumberbatch was more understated: “I did it out of, well, I had to, you know.” Well done.
• In Paris last month, a four-year-old boy fell from the balcony of his family’s sixth-floor apartment. On his way down, he grabbed hold of the railing on the balcony of the apartment two floors below. From the street, a bystander, Mamadou Gassama, rushed to the building and proceeded to scale it, climbing straight up, from the railing of one balcony to that of the next. He got to the fourth floor in less than a minute. In one fell swoop, he lifted himself up, planted one foot on the balcony floor, lifted the boy up, and planted him safely beside him. His sheer athleticism was astonishing; his courage, more so. The crowd that had gathered below roared their amazement. Camera video of Gassama’s feat soon went viral. Emmanuel Macron invited him to the Élysée Palace, where he presented the 22-year-old Malian immigrant with a medal for valor and promised to grant him citizenship and a job with the Paris fire department. Gassama had been in the country illegally, but French officials acted appropriately, making an exception for an exceptional case, the Spider-Man of the 18th Arrondissement.
• John Smoltz was one of the greatest pitchers of his generation. Indeed, he is one of the best pitchers ever, as his name litters the record book. He is also a golfer — and he has just played his way into the U.S. Senior Open. That is, he earned a qualifying spot, in grueling competition. What can we say? When you got it, you got it — at least a dazzling few do.
• A popular book of the 1980s was called “Real Men Don’t Eat Quiche.” Today’s U.S. armed forces beg to differ. Pentagon foodies have developed a variety of new rations that use innovative technologies to attack the age-old problem of combining portability, durability, and nutrition without sacrificing too much edibility. A new method of drying fruit, for example, decreases size and weight by 50 percent while “still leaving a little moisture in it to maintain some of the original flavor and texture,” an Army journalist excitedly reports. Other items developed to endure punishing field conditions include not only backpack-stable spinach quiche but a “Korean barbeque stir-fry packet,” pepperoni pizza (made with “high-heat-tolerant mozzarella” to yield a three-year shelf life), and the irresistible-sounding “chocolate Performance Readiness Bar.” All these items are “designed to increase infantry squad lethality.” Based on these descriptions, we suspect they may increase infantry squad profanity as well.
• Philip Roth commanded the best American prose of his generation. Tom Wolfe’s flashed, John Updike’s glittered; Roth’s was smooth, muscular, precise, and, when need be, funny as hell. He made a brilliant start with stories long (“Goodbye, Columbus”) and short (“Defender of the Faith”), realistically observing post-war American Jewish life. Then came Portnoy’s Complaint, his obscene succès de scandale, a book-length stand-up monologue. The combination of barely concealed autobiography and sexual exhibitionism unfortunately took him down many dead ends, but in the last lap of his career he recovered himself with a panoramic social novel, American Pastoral. Could he have done more? Impossible. Better? Perhaps. He never got the Nobel Prize, but he wrote strong, true words, which is the lasting writerly accomplishment. Dead at 85, R.I.P.
THE WHITE HOUSE
What Trump’s Lawyers Get Right
In early June, the New York Times published a long letter from President Trump’s legal team to Special Counsel Robert Mueller arguing that he should drop his request to interview the president. The letter makes many factual and legal assertions, some of which are highly debatable. Yet, assuming that it accurately reflects the nature and scope of Mueller’s investigation, two of its bottom-line claims have merit: The special counsel does not have a viable criminal case against the president, nor has he justified the extraordinary measure of seeking the president’s testimony.
The letter suggests that the special counsel’s inquiry into Trump’s conduct is focused on obstruction. Mueller was appointed on May 17, 2017, amid the uproar over two events: Trump’s firing of then–FBI director James Comey, and Comey’s subsequent leak of a memo-to-self that claimed that Trump had pressured him to drop any investigation of former national-security adviser Michael Flynn. The letter implies that these two events remain the gravamen of the special counsel’s obstruction probe. If that is so, there is no obstruction case.
Only illegal acts to influence an investigation can predicate a criminal charge of obstruction against a president. Investigation and prosecution are executive functions in our system. Consequently, a prosecutor may not charge obstruction based on the president’s exercise of his constitutional prerogatives. The president’s authority to remove executive officials such as the FBI director and to exercise prosecutorial discretion — an executive power — by weighing in on the merits of an investigation are incontestable.
Theoretically, if a president attempted to impede an investigation by illegal acts, that could predicate an obstruction charge. Presidents Nixon and Clinton, for example, were properly investigated on obstruction allegations based on witness tampering and subornation of perjury. But those presidents were subjected to impeachment proceedings, the remedy our system contemplates for egregious executive misconduct.
The president’s attorneys are also correct in asserting that no federal prosecutor should seek a president’s testimony, much less attempt to compel it by grand-jury subpoena, absent a demonstration “with specificity” that the information sought is “important” to proving a serious crime and “is not practically available from another source” (to quote a D.C. Circuit opinion cited by the attorneys). It is doubtful that Mueller can establish either condition.
There was no evident obstruction, and Mueller cannot legitimately claim that the information he wants from Trump is unavailable from any other source. He has collected voluminous documentary evidence and extensively questioned other participants in Comey’s termination and Flynn’s investigation. The prosecutor does not need the president’s testimony to prove what happened. Nor does he need it to establish Trump’s state of mind. Unless Trump committed an illegal act, his intentions are irrelevant.
In short, unless there is a smoking gun against the president that is lurking unseen even in the private jousting between Trump’s team and Mueller, the special prosecutor should be wrapping up the obstruction aspect of his probe rather than extending it via a court fight over the president’s testimony.
Senseless on Steel
Originally President Donald Trump’s tariffs on steel and aluminum exempted imports from Canada, Mexico, and Europe. No longer. The administration has broadened the application of its tariffs even as their strategic and economic costs are becoming more apparent.
The law gives Trump the authority to impose tariffs to protect national security. These tariffs are, however, an abuse of that law. The Department of Defense has explained that the military needs only 3 percent of our domestic steel and aluminum production, and our largest supplier, Canada, is an ally — albeit one that now has reason to be miffed with us. The steel and aluminum tariffs have undermined our ability to make common cause with other countries against Chinese mercantilism, and even aided China’s campaign to gain influence among them.
Economically, we will pay for these tariffs twice over. Companies that rely on steel and aluminum will pay higher prices — and those companies are responsible for far more employment than the steel and aluminum industries themselves. For that reason, President George W. Bush’s steel tariffs were estimated to cost more jobs than they protected, as were President Barack Obama’s tire tariffs. There is no reason to expect happier results this time. And other countries are also imposing retaliatory tariffs on us.
Most congressional Republicans think the tariffs, by hurting their constituents, will also hurt their reelection prospects. They would like to campaign on today’s strong economy and the tax and regulatory policies that have helped to bring it about. The president’s new trade taxes counteract those policies.
On trade as on other matters, Congress has over the years given the executive branch too much authority that is too prone to abuse. In other areas, the president and his appointees have been effective foes of the arbitrary and capricious executive power — the unaccountable “administrative state” — that has thereby been unleashed. When it comes to trade, they have decided instead to illustrate the dangers.
The Masterpiece Cakeshop Decision
The goal of a Supreme Court litigant is first and foremost to win his case. And that’s exactly what Jack Phillips did — by a shockingly wide margin. In a 7–2 decision, the Court held that the State of Colorado violated Phillips’s right to free exercise of religion by ruling that he violated the state’s public-accommodation law when he refused to bake a custom cake for a same-sex wedding.
When Phillips first filed his appeal, predictions of such a resounding victory were few and far between, and the media immediately set about minimizing the ruling’s significance. The New York Times said that the majority “relied on narrow grounds.” CNN legal analyst Steve Vladeck called the decision “remarkably narrow.” NPR’s Nina Totenberg wrote a story headlined “In Narrow Decision, Supreme Court Decides in Favor of Baker over Same-Sex Couple.”
There’s no doubt that the Court could have issued a broader ruling, one holding that baking a custom wedding cake is protected expression under the free-speech clause of the First Amendment. Its actual ruling is nonetheless significant. It might increase the cost of state discrimination against traditional religious beliefs.
The Court ruled that the State of Colorado violated Jack Phillips’s free-exercise rights in two specific ways. First, it singled out examples of obvious religious animus in a transcript to show that Phillips did not receive a fair hearing from the Colorado Civil Rights Commission. Most egregiously, one commissioner had compared Phillips’s principled refusal to custom-design a cake for a gay wedding to religious arguments for slavery or the Holocaust.
While the Court could have ruled against Colorado based solely on the commissioners’ expressed anti-religious animus, it went farther. Justice Kennedy also noted the existence of a rather profound double standard. It turns out that even as Colorado punished Jack Phillips for refusing to design a cake for a gay wedding, it had protected the right of bakers to refuse to create cakes with anti-gay messages. In other words, the existence of favoritism was itself evidence of anti-religious animus.
There are underlying free-speech issues that remain unresolved, but until then the Court has issued a ruling that urges tolerance — for people of faith. To a commissioner’s description of Phillips’s religious-liberty claim as a “despicable piece of rhetoric,” Justice Kennedy — the judicial father of gay marriage — responded with words that should echo in the public debate:
To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical — something insubstantial and even insincere.
Yet is that not exactly what critics of orthodox religious believers do every day? While there is little doubt that radical academics and pundits will continue to act with actual malice, their counterparts in the state and local governments will now find that their hostility and double standards carry a cost. On that basis alone, Phillips’s victory is worth celebrating.