Portland, Oregon Civil Litigation Defense Attorneys - Kaempf Law Firm PC

A Blog by John Kaempf

Monthly Archives: July 2018

In Masterpiece Cakeshop, the U.S. Supreme Court ruled for a Christian baker in Colorado who sells his goods to anyone, but refused to create a cake for a gay wedding due to his sincere religious beliefs. The Court, however, avoided deciding the broader first amendment legal issues. Oregon’s Sweetcakes By Melissa case, which involves less overt government hostility to religion than Masterpiece, may be the case that requires the Court to decide these issues for the nation.

In June, 2018, the U.S. Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, two men came into the small Colorado bakery owned by Jack Phillips, a devout Christian, to order a customized cake for their same-sex wedding. Mr. Phillips sells his premade goods to anyone. He politely told the couple, however, that he would not (1) create a cake (2) for their gay wedding because of (3) his religious opposition to gay marriage. The couple filed a charge with the Colorado Civil Rights Commission, alleging sexual orientation discrimination in violation of the Colorado Anti-Discrimination Act. (A version of the statute exists in many states.) Colorado ruled in favor of the couple, but the U.S. Supreme Court reversed. Continue reading

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In NIFLA v. Becerra, the U.S. Supreme Court held that a California law requiring pro-life Christian pregnancy centers to advise women that California provides free abortions violates their first amendment rights. This is a big win for supporters of the rights to free speech and to freely exercise religion.

In June, 2018, the U.S. Supreme Court, in a case called National Institute of Family and Life Advocates “NIFLA” v. Becerra, addressed a challenge to a California law called the Reproductive “FACT” Act. It was enacted to regulate crisis pregnancy centers. They are “pro-life (largely Christian belief-based) organizations” that “aim to discourage and prevent women from seeking abortions.” The FACT Act states that centers that do not perform abortions must provide this prominent, pre-written notice to clients: “California has public programs that provide immediate free or low-cost access to comprehensive family planning services including ***abortion for eligible women.” Continue reading

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Supreme Court Justice Anthony Kennedy announced his retirement. President Trump nominated Federal Appellate Judge Brett Kavanaugh, an establishment conservative, to replace Justice Kennedy. Judge Kavanaugh will likely be confirmed because Republicans control the Senate at least until this November’s mid-term elections. However, a heated confirmation battle is expected. This is because he will change the balance of the court to a 5 to 4 generally conservative majority. This should positively affect religious freedom and free speech rights. It will also revive the debates over abortion and gay marriage.

Justice Kennedy announced his retirement this summer. He was a moderate “swing” voter. He was appointed by President Reagan in the 1980s and confirmed when Democrats controlled the Senate. He often provided the decisive fifth vote in groundbreaking cases. For example, he was the deciding vote in favor of gay marriage, and wrote the Obergefell majority opinion. In 1992, he rejected the opportunity to overturn Roe v. Wade and the right to an abortion.

President Trump nominated D.C. Circuit Court of Appeals Judge Brett Kavanaugh to fill this vacancy on the nine-member Court. Judge Kavanaugh follows the principle of “originalism” in interpreting the Constitution. Its major champion, Justice Scalia, defined it this way: “The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the Court, thinks it ought to mean, but what it meant when it was adopted.” Continue reading

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Churches and Religious Schools Should Consider Having a Lawyer Review Their State’s Constitution and the State Appellate Cases Construing It To See If They Have Legal Protections Against Lawsuits Beyond Those Provided By The U.S. Constitution.

All 50 states have their own constitution. Religious entities should consider having a lawyer check the constitution of the state where they are located concerning its free exercise of religion and free speech protections, as well as state appellate cases interpreting these clauses. U.S. Supreme Court cases construing the U.S. Constitution grab the headlines. But state constitutions and the state appellate cases interpreting them should not be overlooked because they often provide greater protections to free speech and the free exercise of religion. Also, state constitutions often contain additional protections against civil lawsuits. Continue reading

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