So About Kavanaugh (UPDATED)

Last night President Trump announced Brett Kavanaugh as his pick to replace retiring Supreme Court Justice Anthony Kennedy. So what do I think about Kavanaugh?


It is an underwhelming choice

He’s no Merrick Garland, which is good. But he’s no Neil Gorsuch, which is bad. I would have preferred Judge Don Willett from the 5th Circuit or Judge Kethelridge of the 6th.  Someone who be a strong advocate of personal rights and stop the erosion of the rights guaranteed in Bill of Rights (including the unenumerated ones in the 9th). Kavanaugh is not that and is very much a justice in the John Roberts mold. Read his dissent in Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir 2011) and you see how simpatico he is with Robert’s decision in National Federation of Independent Business v. Sebelius, 567 US 519 (2012).

In Seven-Sky, Kavanugh saw the mandate in Obamacare as a tax (despite everyone involved in the bill’s passage clearly stating it was not) and arguing the Court could not even consider the case until the law went into effect (post-2012 election) citing the Anti-Injunction Act of 1867. (That holds Courts cannot hear pre-enforcement challenges to the assessment and collection of taxes).

Kavanaugh is certainly not a civil libertarian and will continue upholding the steady erosion of the 4th Amendment thanks to our continued misguided drug war. So,….wait, what? Sen Chris Murphy wants to chime in? Ok

CT Loon

Well, I guess, Kavanaugh won’t be that bad.

Murphy really does want to be known as the Stupidest Man in Government. There is nothing to suggest Kavanaugh is going to be striking down laws the prevent citizens from owning Surface to Air Missiles or Machine Guns. He might not even allow this assault weapon:


(UPDATE 1: David Kopel of the Volokh Conspiracy outlines Kavanaugh’s actual views on the 2nd Amendment post Heller)

On the plus side, he seems to be wary of excess regulations and may be willing to strike down the horrible, pro-bureaucrat Chevron Deference.

(UPDATE 2: Ken White, a/k/a Popehat has posted a piece suggesting Kavanaugh is a strong proponent of a robust First Amendment).

Also interestingly, since the left is swooning over an absurd, irrational fear that with Kavanaugh, SCOTUS will overturn Roe v. Wade, is the Judge’s opinion in Emily’s List v. Federal Election’s Commission, 581 F.3d 1 (D.C. Cir 2009). In that case, Emily’s List, a pro-abortion Special Interest Group, challenged the Federal Election Commission’s rules making it harder for advocacy groups to raise money for election campaigns. The decision, which came a year before Citizen’s United, struck down the FEC rules. If, as some on the left are hyperventilating, Kavanaugh is ready to strike down Roe and institute the Handmaiden’s Tale, it seems odd he would be loosening the rules to allow a pro-abortion group to raise more money.

And that is going to be the problem for the Democrats in opposing his nomination. (Well that and Chuck Schumer’s decision to die on the hill of the Gorsuch nomination- Thanks to Schumer, Trump only needs a simple majority to confirm Kavanaugh. Had the Senate minority leader kept his powder dry, the filibuster would still be in play and would have given him more leverage, especially in an election year.) While Kavanaugh has some issues, none of them appear so damaging they will preclude his confirmation. Indeed, the Democrats and their allies already made clear they were going to oppose anyone nominated on the grounds of him/her being dangerous etc:

You would think nominee XX would be more pro-woman.

One line of attack has been: Kavanaugh believes a President is above the law.

The “support” for this is a law review article. In the article, Kavanaugh sets forth some changes he believes should be made in the way the government operates. Regarding the President is above the law claim, it’s basis is found in his argument a President should be temporarily immune to lawsuits (and possibly criminal prosecution) during his term of office.

With that in mind, it would be appropriate for Congress to enact a statute providing that any personal civil suits against presidents, like certain members of the military, be deferred while the President is in office.                                                                            (1460-1461)

Yes, that dastardly Kavanaugh is saying… Congress should pass…a law…. to give temporary immunity….?

This is the proof he believes Presidents are above the law?

Here’s a pro-tip. If Kavanaugh really believed Presidents are above the law and immune during their tenure, he wouldn’t be calling for Congress to pass a law making it so. It is quite clear he believes the current status is the exact opposite.

It should be noted the law review article was published in 2012 and based on a speech he gave October 2008 and is based on his experience in the Bush (43) White House and as a member of Ken Starr’s Special Prosecution Team during the Clinton Presidency. That’s right, Kavanaugh’s argument is based upon his time investigating a sitting president. So I seriously doubt he had Trump in mind. And the fact he is advocating something that would have prevented him from investigating a Democrat suggests maybe he didn’t have some sort of partisan motive in making this suggestion.

(And for the record, I think some of what Kavanaugh proposes has some merit. His arguments about a 180 day cap before an up or down vote on nominees has some appeal and is being taken up by others. The most recent suggestion is a law that would take effect Jan 20, 2025. That way no one would know who it would favor. I’m not as impressed with the concept of a single 6 year Presidential term. While the Founders did consider it, they ultimately decided against it.)

This is something I plan to expand on in the coming weeks, but the so-called #Resistance has really got to get some anti-psychotic meds because they have lost it.  I mean, I’m old enough to remember when claiming Sharia Law was about to imposed upon the United States was a sign of mental instability (see e.g., here and here). Now, it’s taken as a fact for what Trump is trying to do:

Perl man

Democrats are doing themselves no favors by hunkering down with the Alex Jones’s of the left. And the increasingly overt anti-Catholic arguments against his nomination reveal the Left’s tolerance only extends to those who don’t disagree with them.

Nor will they impress anyone with their seriousness by ignoring Kavanaugh as some are apparently doing. (I wonder if Harris will be running around with a towel over her head).

Barring a Black Swan event, Kavanaugh will get confirmed.

And that will not cause the Earth to crash into the Sun.


Gordon Granger, General Order Number Three, and the Beauty of Free Markets

In June of 1865, as the American Civil War ended, Major General Gordon Granger was appointed the Military Governor of the District of Texas. Granger, one of the saviors of the Union Army during the Battle of Chickamauga, had been given the assignment by General Philip Sheridan, Commander of the Union Forces in the Southwest District. On June 10, 1865, as Granger departed New Orleans to take up his post, he was instructed by Sheridan to, among other duties, publish the terms of the Emancipation Proclamation in Texas.

On June 19, 1865, he arrived at his new post. After disembarking  with 2,000 soldiers in Galveston, Texas, Granger and his 5 officers made their way to Ashton Villa. There, on the balcony, he formally accepted his command and issued 5 General Orders for the governance in Texas. Of particular importance was General Order No. 3:

The people of Texas are informed that, in accordance with a proclamation from the Executive of the United States, “all slaves are tree.” This involves an absolute equality of personal rights and rights of property between former masters and slaves, and the connection heretofore existing between them becomes that between employer and hired labor.

The freedmen are advised to remain quietly at their present homes, and work for wages. They are informed that they will not be allowed to collect at military posts, and that they will not be supported in idleness either there or elsewhere.

By command of Maj.-Gen. GRANGER.

Granger followed up this proclamation by sending his Officers across the length and breadth of Texas, in an attempt to notify as many slaves as possible not only of their emancipation but their equal footing with those who, until June 19, 1865, treated them as property.

While the 15th Amendment wouldn’t outlaw slavery across the entire country until 1870, June 19, 1865 is a very important day. Granger’s General Order Number 3 put down a very important marker in American History. Lincoln’s Emancipation Proclamation, a war time necessity, merely said slavery was over. No thought was given to what was going to happen to the freed. Gen Sheridan, when he told Granger to promulgate the Proclamation, envisioned the newly freed slaves staying on their plantations until the Federal government arrived to work out the details. Granger went beyond that and declared the relationship between the parties was no longer master and slave, but employer and employee.

Juneteenth should be celebrated and across the Country. It should be celebrated not only for it role in the the end of slavery, but also in celebration of free markets. Granger expected everyone to work.  (“They will not be supported in idleness”). The idea of having everyone wait around to until the Federal government figure things out appears to have been anathema to him. Better to have freed-slaves and the plantation owners to figure out the price of labor. (‘[B]etween employer and hired labor.”). That is the essence of supply and demand.

Some folks are still touchy about this whole idea of making sure everyone know they’re equal. Indeed, it has been that way since June 19, 1865. On August 6, 1865, Granger was replaced as Military Governor.  The Southern Democrats, who had ruled Texas before and during the Confederacy, were not pleased to have  Yankees appearing on their plantations telling the slaves they were free. It rather upset the perceived natural order of things. And it seems these Democrats succeeded in convincing Washington, D.C. that reconstruction would go smoother if folks like Granger weren’t around

Today celebrating Juneteenth as an actual national holiday is presented as a danger to very fabric of the Republic. The idea we as a nation could devote a day to celebrate the end of slavery is an attempt to Balkanize this Country, cry some. (usually the same group who believe removing Civil War Participation Trophies is also an attempt to Balkanize the Country). Others, who mouth platitudes in support of Juneteenth, still maintain the attitudes that required Granger to send his officers to announce the Order throughout Texas: The slaves might be free, but they can’t possibly take care of themselves. Better they stay here on the plantation. Some of the early justifications of Jim Crow were premised on the need to help the freed slaves, arguing they couldn’t do things on their own since they had no idea what they were doing.

The History of Jim Crow is an attempt to forestall free-market economics. Gen. Granger’s model, as opposed to Jim Crow, would have been a boon. For employees, the market would set the price of labor and you would know how much you could expect to make for a day’s labor. Negotiations between the ex-slaves and the plantation owners to determine the true price of labor would have had ripple effects that would have crossed the color barrier. Consider the non-landowning whites. In antebellum Texas, they did not benefit from slavery. Landless, their only marketable skill was their labor. But the price of their labor was suppressed by the large pool of “free” labor.

After slavery was abolished, the need for labor remained. The plantations still existed. The only difference was now the cost of paying workers had to be considered. Anyone willing to work for the market price, regardless of color, had the option for employment. But Jim Crow altered that. And did so in a way that negatively effected both black and white workers. For black workers, the law precluded them from certain sectors and jobs, depriving them of employment.

While white workers didn’t have that problem, the law did harm them.As economist Gary S. Becker noted in his PhD dissertation (published posthumously as The Economics of Discrimination), under Jim Crow employers were forced to pay a hidden tax in the form of artificially high labor prices. As labor costs rise, the fewer employees a business can hire. Cost margins increase and net profits decrease, reducing the available capital a company has to expand and hire additional workers. Some whites got jobs, but not as many that could have but didn’t because employers couldn’t afford them.

(Think of how many projects during the Great Depression were designed to raise the living conditions of those who lived in the South where Jim Crow had the strongest grip. There is a connection between the market distortion those laws created and the mass poverty suffered.)

Jim Crow, distorted supply and demand. Beyond the cost of not being able to employ those who may be best qualified simply because of their skin color, harming productivity, complying with the Jim Crow regulatory scheme increased the cost of doing business in the south. That’s why, as James Devereaux noted in a piece for, when Homer Plessy sat in the white-only section of the New Orleans street car,  to challenge Louisiana’s segregation law, the Rail company supported Plessy’s actions:

What is often lost in the short history-class-version of this case is the effort by the company to comply and remove the segregation law. This may appear counterintuitive to some, but the market reality made segregation expensive.  Looking at the requirements of the law (see above) makes it clear why securing separate accommodations, either by car or partition, is costly, and when you are in the business of selling seats, increasing the likelihood of empty seats works against that interest.

As the quote above shows, by requiring separate but equal facilities, owners of public establishments and services (such as railroads) had to purchase items they didn’t necessarily need or want. As Frederic Bastiat noted, those costs while unseen, were still there. The money that had to be spent purchasing a second railway car or building a second set of bathrooms, is money that could have been used elsewhere to generate revenue for the company but for the law. While some prejudiced  business owners would have undoubtedly been willing to pay more to white workers, market forces would ultimately reward the non-prejudiced who hired not on the basis of skin color, but the basis skill level. As has been noted about Gary Becker’s work, his “economic model reduced a charged social issue to an economic fundamental, supply and demand.”

And as Henry Ford discovered, paying workers a decent wage not only encourages them to be more productive, it allows them to purchase more goods.

Juneteenth is not only a day to celebrate the end of slavery, but also to rejoice in the Free Markets and reject the type of government intervention that led to Jim Crow.

(For those who are curious, Gordon Granger moved on after his time in Texas. He eventually married Maria H. Letcher of Lexington, Kentucky in 1869. He became Military Governor of the New Mexico territory in 1870 where he remained until his death on January 10, 1876. He was buried in Lexington. Granger’s grave marker lists many of his accomplishments, but curiously does not list his time in Texas.)


‘Silesian Treasure’: Behind the Scenes

Welcome to this discussion about ‘Silesian Treasure’, the first story in Superversive Press’s Planetary Anthology: Earth.

We’re doing this Q&A thing again?

Yes. Yes we are.


Because you don’t like talking about yourself.

It’s a fair cop.

So, if you haven’t, go on and buy it/download it, then read it. we’ll wait….

[instrumental version of ‘Girl From Ipanema’ plays]

So, now that everyone has read we can discuss it. If for some reason you didn’t, then let this be your Final Spoiler Warning. And with that, I want to welcome the author, W. J. Hayes. Thanks for taking the time to talk to us.

Well, I’m talking to myself, but sure, you’re welcome.

This is the second of the Planetary Anthologies to contain one of your stories.

Yes, ‘Venus Felix’ appeared in the Venus Anthology.

Did you plan on submitting a story for all of the books in the series?

Oh, good lord, no. I looked at call for submissions, which were brief, maybe a sentence or two description of the themes. And for most of them, I just shook my head, and thought, “Nope, I got nothing.”  I had an idea for Venus.

That was your ‘Venus Felix’ story?

No. It was a completely different idea than the story that I eventually submitted.

And what about Earth?

I couldn’t think of any story that would apply. When I read the original description for the book, I kept trying to think of a sci-fi, futuristic story.  And nothing came. It was the same with the guidelines for Mars. As a matter of fact, even now, I still can’t think of a Mars story.

What changed about writing for the Earth Anthology?

I think the first thing that changed was  my approach. One of the things I am conscious of is I tend to focus a lot of dialogue and less on people doing things. Early drafts of stories tend to be heavy on people talking about things instead of doing them. And as much as I enjoy banter between different characters, it does not necessarily make for a good story. Plus there is a danger of the work going from being an enjoyable read to a polemic screed.

And it happened at around this time, I discovered Kindle had the original Doc Savage novels available for cheap. So, I bought The Man of Bronze.  It is very instructive of the early 30’s pulp style. Then I went back to Kindle to buy the next novel, only to discover Amazon had pulled all of the early Dent books.

Why is that?

I have no idea. But in trying to find out why, I went down the rabbit hole that is the internet and began reading up on Dent himself. In doing so, I came across his tips on writing short pulp stories. And armed with his advice, I decide to see if I could do it.

‘Silesian Treasure’ is the result?

It’s the most polished result, but not the first. There were a couple of prior stories that I am still playing around with.

Let’s talk about the story, who is Buchanan Polk?

Buchanan Polk is the President and CEO of Polk Industries, which is primarily focused on commercial fishing ventures. He someone that women want, men want to be, and his enemies want him to be crush by space debris.

This is not Buchanan Polk’s first appearance.

No it’s not. His first and only other appearance was in Freedom’s Light: Short Stories entry, ‘Polk’s Prophetic Property’.

Had you always intended to bring back Polk?

No. When I wrote ‘Polk’s Prophetic Property’, Buchanan Polk was essentially a one-off character. His main function was that story was to defend the concept of property rights in battle of wits with Cthulhu.


Yeah, I don’t write normal stories.

Anyways, I had no plans to use him again, because I wasn’t sure what I could do with him.  But as I began fleshing out the idea that became ‘Silesian Treasure’, it occurred to me Polk was the perfect pulp hero for the tale. He has the swagger and self-confidence you see in a lot of early pulp stories.

How did the story come about?

I remember thinking I wanted to drop character into a bizarre situation and team him up with someone who was taking the absurdity of it all in stride. So then it became a sequence of questions: Where were they? What was happening? Why was it happening? Slowly, the idea began to coalesce around a single scene.

What scene?

When the Dragon mentions the treasure is the drawing and cries out, “It’s a treasure to me.”

The Dragon is rather unusual.

Yeah, the idea of the Treasure and its guardian had been kicking around in my head for years. There was something about taking the phrase “One man’s trash is another man’s treasure” and substituting the word ‘Dragon’ and then imaging who everyone else would react when they saw the treasure was not, well… a treasure in the conventional sense.

Once I had that, I began to work back, trying to figure out how people got to that point.

How does Enoch P. Simmons of the Royal Air Force fit into the tale.

He is the reader’s introduction to Polk and the insanity that swirls around him. I wanted someone who would be slightly perplexed as to what was happening and could occasionally ask questions the readers were probably asking. Plus, his befuddlement served as comic relief allowed me to make hamburgers out of some sacred cows.

His view of dwarves for instances.

Exactly, the idea that he has been so indoctrinated into not offending anyone that he focuses more on the correct term instead of the fact they are criminals.

The motivation of the leader of the dwarves is different.

For some reason, the idea of having a villain seeking a great power and not wanting to use it for world domination, but something smaller scale just struck me as fittingly absurd for the story. I think its something that should be used more often. The idea of the criminal mastermind always trying to take over/destroy the world/universe is one of those clichés that has been done to death.

Originally, he wasn’t an ogre, but a human. But when I got rid of the humans in the hotel attack scene, I realized I didn’t need one leading the robbery. And an ogre seemed like a more fitting substitution.

What else in the story change?

The basic outline of the story pretty much stayed the same. Once I began writing, it was always going to occur at a Seafood Convention in the Czech Republic and would result in the discovery of the dragon and her treasure.

The details changed. For example, the story originally took place in Opava, which is in the Czech portion of Silesia. Which is where the story got its name. Also, the original attackers in the hotel were humans and the dwarves didn’t appear until Polk and Simmons got to the spas. There was also for a while a damsel in distress in the spa battle.

What happened to her?

Even as I was writing that draft, I knew she was probably coming out of the story. I just couldn’t figure out what to do with her. Simmons filled the role of the companion. And so, just like poor Harry Sullivan, she was excised from the story.

Now that Silesian Treasure has been published, what’s next?

For me? Or Buchanan Polk?


Well, I waiting to hear back on a couple of short story submissions. I can say I will have a story appearing in the Pluto Anthology, ‘Pluto Invictus’.

Does that feature Polk?

No, but Cyrus Strabo from ‘Venus Felix’ returns. As for Polk, I am working through another draft of the first pulp experiment. That coincidentally featured Polk. So when that’s ready, I’ll see if anyone wants to publish it.

Beyond that, I am working on another story with Strabo that would be a sort of sequel to the Pluto tale. After that, I intend to finally work on the story I originally planned to submit for the Venus Anthology.

Which seems like a good time to stop this interview. Is there anything we forgot to discuss?

If you have read the story and/or the anthology, please consider leaving a review on Amazon. And I should probably mention the publisher has a freestartr Indiegogo* campaign to send some of its novelists to Dragon Con. So maybe check that out. Other than that, I think that’s is it.

Well, thanks for talking.

Well thank you for this opportunity to  talk to me… myself.


*UPDATE: See the Update I posted at the end of Midweek Housing Cleaning for an explanation

Mid-Week House Keeping

I hope you are enjoying Planetary Anthology: Earth. If you are, please leave a review at Amazon. The more people who review the book helps get it promoted using Amazon’s algorithms.

Also, there was a livestream roundtable about the Anthology last Sunday with the Book’s editor, Dawn Witzke and A M Freeman (who edited the Venus Anthology).

Next, Superversive Press, the fine people who released the book, have a campaign on FreeStartr  Indiegogo* to have a bunch of the authors go around in a van and solve mysteries….

[looks at notes]

Sorry, that’s a Scooby-Doo campaign. My bad….

The Superversive folks are looking to send a couple of their novelist authors to Dragon-Con. There is some neat swag at different pledge levels. So, feel free to chip in for that.

Finally, this Friday, I will have a post discussing my story, ‘Silesian Treasure’, i.e. what was the genesis of the story, etc.

(And I see in my notes, I still owe one for ‘Venus Felix’ from the Venus Anthology).

So, see you all Friday.



*UPDATE: Apparently there are people out there who don’t like competition. Worse, there are people who don’t like competition if the competitors engage in WrongThinkTM. In this case, some folks decided projects funded through FreeStartr might cause people to think for themselves and got the credit card processing companies to refuse to do business with them. So, the Superversive Folks have had to migrate their campaign to Indiegogo.

Planetary:Earth Now Available

You can now purchase Planetary:Earth, the latest from Superversive Press’s Planetary Anthology series.

It is available in Kindle and Paperback. (For some reason, it takes Amazon a while to realize the Kindle and paperback versions are the same item.)

My story is Silesian Treasure. What is it about? The blurb I wrote for the book states:

RAF Group Captain Enoch P. Simmons is tasked as liaison to a business convention. He meets Buchanan Polk and the pair suddenly find themselves in the midst of a robbery. The only thing more unusual than the thieves is the treasure.

As some of you may know/recall, Buchanan Polk first appeared in Polk’s Prophetic Property in the 2017’s Freedom’s Light Anthology. When Buchanan and company appeared in that story, I did not envision ever writing another story about Polk. However, late last year, I started playing around with writing in a quasi-pulp format. The idea of the treasure and its guardian had been kicking around in my head for a while.  And when I was thinking about who the main characters would be, Buchanan Polk adjusted his cuffs and suggested he was the one with the most experience and would be happy to explain to the good Group Captain all about the wonders they would face, including those who were ‘Vertically Different’.  I hope you like it.

(And I will post something next week, expanding on how this story came together.)

And there are 17 more stories for you to enjoy:

This Planet is a Hole by Lou Antonelli – An alien teen is forced to move with her family to the worst planet in all of space and she’s not happy about it.

Extinction Point by Richard Paolinelli – Every civilized planet reaches a point when its technological advances lead to its ultimate demise. Major Adam Armstrong has just discovered that Earth has reached its extinction point and he is racing against time and space to try and warn his homeworld before it is too late.

I Hate Mars! By Arlan Andrews – An exile from Earth is sent to Mars in a robotic body. He hates the Red Planet but makes an unexpected life for himself there.

The Mantle of Gaia by Jody Lynn Nye – When Earth is under attack from an enemy force, her defender might be the one with the most unlikely of talents. College student Winston Chun is the last survivor of the programmers who can operate the planetary repulsor web against the incursion of bloodthirsty aliens, but can Colonel Fran di Palma get him to the control center before the Fangs wipe out the entire human race?

Reality Run by Alfred Genneson – A post-human discovers the world outside of the computer.

The Lamp By Which My Feet Are Guided by R. W. Ware – What’s left after a religious apocalypse? The brave men and women of the Mavericks.

Escape From The Lost Land by Nathan Dabney – Explorers Virgil Shephard and Ross Kent have discovered a tropical paradise deep in the snows of Antarctica, but beyond the flora and fauna thought to be extinct there lurks a mysterious evil from which they must escape.

Unacceptable Losses by John M. Olson – Caroline Storm is stranded in a combat zone, her team missing or dead, communications on blackout. Can she complete her mission and survive?

Climate of Change by Marie Genneson – A marital spat between Pluto and Persephone sends the world into chaos. Can Athena mend the split before the drastic temperature changes destroy the humans and kill them all?

Welcome to Mars! by A. M. Freeman – Some rivalries span over decades, but how far is too far when doing what it takes to win?

The Dawn of Reason by Dan Gallagher – At the dawn of humanity there was a choice to walk in trusting humility, or else covet equality with God as a thing to be grasped. How’d that work out?

Under A Wayward Sun by Josh Griffing – Terran Fleet Ensign Jack Williams is about to make history on Topeka-2 as the youngest officer ever to lead a survey team to a planet’s surface. But the real story of Topeka-2 is far more curious than anyone expected.

The Hidden Conquest by Hans Schantz – Faster-than-light travel is a myth, yet a invasion crosses light years of space and eons of time, employing a small but devastating secret weapon to conquer another world. Can he can stop the Civic Circle’s “Hidden Conquest,” before it’s too late?

Complicit in Their Bondage by J. Manfred Weichsel – A US Soldier discovers an ancient secret in the mountains of Afghanistan.

Ringrun by Ben Wheeler – A robotic scientist is on the run from a nanotech swarm desperate to rip out the information he holds in his mind.

Xolotl Resurrected by J. D. Beckwith – A convergence of breakthroughs in quantum intelligence and materials technology has led to the birth of matter conversion. Can the idealistic inventors prove its viability to the world, and share it, while still protecting against its misuse? They have the power to create anything, so why not start with a miracle?

We’ll Always Have Earth by Bokerah Brumley – Ilsa Land works on the R.S.S. Ether Hope, a Trans-Galactic Spaceliner. As an AA—or Aware Android, she plans to spend the rest of her life with the concierge bot, Rick Blair, another AA. When a ship-wide malfunction sends Ilsa’s plans horribly awry, she must choose between saving her future and saving an innocent life.

And please, leave a review on Amazon.

Masterpiece Cakeshop: How a 7-2 Ruling Can be a Narrow Ruling

So, here I was this morning, getting ready to get back in the swing of things, blog-wise, by posting about the next of the Planetary Anthologies being published, Earth, and my story, The Silesian Treasure (available tomorrow from Amazon!) when I checked, as I always do, SCOTUSblog to see if the Supreme Court has issued any new rulings. And so of course, SCOTUS picked today to release its decision on Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. That’s pretty much what everyone will be talking about today. So, thanks SCOTUS for making the book launch that much harder!

That in and of itself wouldn’t be that bad. It is, after all, news-worthy. The problem comes from partisans on both sides of the issue reading and reacting to the headline, not the opinion. To wit

  • Social Liberals are developing vapors because the headlines suggest the Supreme Court is all for discrimination (with Liberal justices Breyer and Kagan getting raspberries).
  • Social Conservatives are having kittens because most news reports are calling the 7-2 decision ‘limited’.

Both sides are reacting to things that are not there.

So, in order for you to pay more attention to buying my book tomorrow, I will today, explain how a 7-2 Supreme Court ruling can and is “limited”.

I. What Is This Case?

This is the (in)famous ‘Bake the Cake’ lawsuit. A little background before we go into the facts:

The underlying events occurred in 2012. This was before the Supreme Court ruled in either the Windsor case (which found portions of the Defense of Marriage Act unconstitutional) or the Obergefell decision (which struck down as unconstitutional, bans on same sex marriage). Indeed in 2012, same-sex marriages in the State of Colorado were not legal (nor were same sex marriages performed in other states recognized under Colorado law).

In the summer of 2012, Charlie Craig and Dave Mullins walked into the Masterpiece Cakeshop and asked Jack Phillips to create a wedding cake for them. Craig and Mullins were going to get married in Massachusetts (where same-sex marriages were then legal) and then have a celebration in Colorado. Phillips refused to create a wedding cake, citing his religious beliefs that marriage was solely between a man and a woman.

(brief interlude: The word create is the proper term for what was being asked. Phillips has long made it clear, and there seems to be nothing the Court record to the contrary, that he would have made any other type of cake for the couple. In fact, had they simply asked him to bake a cake, but not decorate it as a wedding cake, he would have done so happily. Therefore this was never about his refusing to “bake a cake”. It was more a refusal to “decorate a cake”. The latter just doesn’t roll off the tongue like the former).

In August of 2012 Craig and Mullins filed a discrimination complaint against Phillips with the Colorado Civil Rights Commission. The Commission found against Phillips and for Craig and Mullins. Phillips appealed to the Colorado Supreme Court, which upheld the Commission’s ruling. He then appealed that decision to the US Supreme Court. He argued the Colorado decisions violated his Freedom of Religion rights guaranteed by the US Constitution.

II. What Did the Court Decide?

The US Supreme Court this morning vacated the Colorado Supreme Court decision and Civil Rights Commission’s Determination. It found the Commission never gave Phillips a fair shake in evaluating his arguments, noting:

The neutral and respectful consideration to which Phillips was entitled was compromised here, however. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.

(All quotes come from the majority opinion)

The Commission, the Court is saying, had its finger on the scale in favor of Craig and Mullins. The commissioners were looking to punish Phillips regardless of the merits of his defense. During the first public hearing, at least two of the commissioners made comments suggesting once you enter the domain of public commerce, you have to keep your opinions to yourself. The Court noted while these comments could have been acceptable depending on the circumstances, the events at the following public hearing show the Commissioners had open animosity towards Phillips, with one saying:

“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

As Justice Kennedy’s Majority Opinion notes:

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. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation. The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission’s decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.

(emphasis mine)

The majority noted there were case around the same time in Colorado,  where bakeshops were being asked to decorate cakes with anti same-sex marriage message and those bakers refusing. The Commission upheld the rights of those bakers to not participate in creating those messages. If those bakers were fine, why was Phillips’s actions not? But because the Court found the Commission, which has a judicial like authority, went into its investigation openly hostile to one party, SCOTUS said the Civil Rights Commission’s decision cannot stand.

For the reasons just described, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

That is the only thing the Court decided in today’s case. This why although the Supreme Court’s ruling was 7-2, the issue decided was one of procedural fairness instead of whether Phillips’s refusal was constitutional. This is why Kagan and Breyer voted to vacate the Commission’s decision. They are not suddenly becoming soft on same-sex marriages. They are however, making it clear, adjudicative bodies, such as Civil Rights Commissions, can’t pull a Red Queen and have the sentence first, trial later. They have to evaluate the claims of both sides fairly and impartially.

 III. What Did the Court Not Decide?

 The Court did not decide when, if ever, a merchant’s sincerely held religious beliefs can be the basis for refusing to provide a service to members of the public. Nor did SCOTUS rule whether there is a material difference between ‘baking a cake’ and ‘decorating a cake’.

It also didn’t decide whether the timing of the refusal was relevant. As noted at the beginning, when Phillips refused, same-sex marriage was not legal in Colorado. One of the arguments that was made in the Courts was because those marriages were not legal (and possibly illegal) or recognized, Phillips had some expectation to believe his view represented the prevailing legal view of the state of Colorado. That’s important because of the fines and other punishments levied on Phillips by the Commission, including having to file quarterly reports showing how un-bigoted he was now. Had the Civil Rights Commission simply said, “We know you thought what you were doing was legal, but it’s not, so don’t do it again”, you might have seen a different outcome.

IV. What Does This Mean Going Forward?

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.

(Translation: We know this isn’t going away. But we’re not going to answer questions we don’t have to today).

Because the underlying questions were not answered, the issue is not resolved one way or the other. There will continue to be a number of these cases percolating through the legal system until such time as an ideal case is presented to the Supreme Court to answer those questions.

Also, now that same-sex marriage is legal across the country, any future case will be decided in that light, i.e., everyone knows what the law of the land is, so how does that interact with personal beliefs.

When will that case appear? Who knows? It depends on how eager the Supreme Court is to delve into this topic. Don’t be surprised to see a lot of test cases appear in the media with everyone trying to get the case that will answer the question. And don’t be surprised to see the Court pass on most of them. They will be looking for that certain something in order to take up the case.

V. So, What Now?

That’s simple:

  1. Now you know how it is possible for a 7-2 Decision to be narrow.
  2. If you’re a Social Lib, Don’t Panic. If you’re a Social Con, don’t get cocky.
  3. Go out tomorrow and order Planetary:Earth at Amazon
Earth Cover art
Available Tomorrow!



(Featured image is the West Facade of the Supreme Court and is taken from the Court’s website).


Planetary: Venus

Here it is, the second in the Planetary Anthology, Venus. It is currently available as an e-book. The link will shortly have the option to buy a paper copy of the book.

Read it, enjoy it. And if you would please be so kind, leave a review for the book.

I’ll be back in a couple of days to discuss some of the background to my story Venus Felix