LGBTQ rights, OC Pride, Grand Marshal Duron and Masterpiece Cakeshop!


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One probably shouldn’t expect OC Pride’s 2018 Grand Marshal, C.J. Duron  to comment extensively on the implications of Masterpiece Cakeshop v. the Colorado Civil Rights Commission (2018) .  He is 11 years old, after all.

For myself, my head is with Kagan (58 years old) and Breyer (79 years old), my heart with the dissent of Ginsburg (85 years old) and Sotomayor (63 years old), and the tension painful. The swing vote here, Anthony Kennedy (81 years old) sought to thread a needle: to protect the rights of a baker in the least destructive mechanism possible for his overall legacy in defense of LGBTQ rights.  Essentially, Kennedy’s opinion rules on behalf of the bakery, whose owner refused to make a wedding cake for a same sex couple’s marriage, and against the Colorado Civil Rights Commission, because in Kennedy’s view, the commission was prejudicial when they said things like “it’s despicable if religion is used to justify discrimination.”

This case is a blip on Kennedy’s legacy with respect to LGBTQ rights, which opens with him invalidating one Colorado Constitutional provision in 1996 (a provision barring homosexuals the right to bring discrimination claims) in Romer v. Evans, and may well end with him invalidating another Colorado decision.  And despite this latest judgment, Marshal Duron may still get a birthday cake from Masterpiece Cakeshop for his 12th birthday if he so desires.  Just not a wedding cake. Which he won’t need for quite a while.  Because he’s still 11.

Kennedy’s legacy will always come down to Lawrence v. Texas (2003) – which invalidated every criminal sodomy law against consenting adults (laws that were seldom enforced against anyone except LGBTQ individuals), and U.S. v. Windsor (2010), which rendered the ‘Defense of Marriage Act’ unconstitutional.  Oh, something else happened in 2010 as well: the House and Senate were taken back by Republicans.

With his vote in today’s opinion, Husted, Ohio Secretary of State v. Randolph Institute (2018) Kennedy may have just set the stage for all his legacy to come undone.  Husted upheld Ohio’s voter purge process, whereby the any person who refuses to vote may be removed from the voter rolls if that person fails to send in a note to the regristrar in time.  Anyone struck in Ohio cannot register on the same day and cast a provisional ballot, like they can in California (and few other states).  To register, most voters need proof of residency – a drivers license, a utility bill, etc.  That’s not always so easily achieved (e.g., for spouses who don’t have bills in their own names, for subtenants living in a shared household with other occupants, for people who move regularly due to work).

In the event of a SNAFU (like Los Angeles’ printing error last week that deleted 118,000 voters from the rolls), Ohio voters may have no remedy whatsoever.  And it’s sort of an iron law of elections: stuff goes wrong, SNAFUs happen.  They happen more often to poorer voters…

In February 2016, Antonin Scalia passed away from the Supreme Court.  Mitch McConnell determined to block any nominee Barack Obama proposed, regardless of qualifications – a novel assertion of partisan power arising from a majority.  In 2018, 35 seats on the Senate are up, with 26 held by Democrats or Democratic-aligned Senators, and only 9 by Republican.  Ten Democrats run in states that voted for Donald Trump in 2016.  Oh, and McConnell plans to continue the Senate’s role into summer.  To fill vacancies to the courts? Or to keep Democrats in competitive races in Washington longer?

Absent a ‘magical blue wave,’ there’s great reason to expect that the Senate majority that has governed since 2010 will continue.  But just in case a ‘magical blue wave’ starts swelling, McConnell can easily defend his majority with a carefully orchestrated set of purges, and thus ensure the Supreme Court looks quite different in a few years time than it does today.

So…what ought Marshal Duron do in next week’s OC Pride Week festivals about this looming threat?  Ideally, he’ll do what LGBTQ Pride Organizers ask of him: smile, wave, be brave, and do his best to enjoy the parade.  The bigger problems are a task for the rest of us to work on, for now.  But looking at this 11 year old Grand Marshal, perhaps we can share a grim smile at how the world is changed from that he was born into, for him, probably for the better.  Many of those changes are worth defending.


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