Thanks to William Teach of The Pirate’s Cove, I found this gem from Senator Kamala Harris (D-CA):
No business should be allowed to discriminate against any American based on who they are or who they love. Our constitution requires equal protection under the law. Full stop. https://t.co/fkGGs1pYXs
— Kamala Harris (@KamalaHarris) June 4, 2018
One wonders, given that Mrs Harris’ tweet is so brief — a tweet can’t be more than 280 characters — if she concomitantly believes that this was also wrongly decided:
At the time, state law also afforded storekeepers some latitude to decline to create specific messages the storekeeper considered offensive. Indeed, while enforcement proceedings against Phillips were ongoing, the Colorado Civil Rights Division itself endorsed this proposition in cases involving other bakers’ creation of cakes, concluding on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages.¹
Thrice the Commission decided cases of bakers who refused to make cakes with “wording and images [the baker] deemed derogatory,” and in all three, the Commission decided in favor of the bakers. The messages were explicitly condemnatory of homosexual marriages:
In the latter cases, a customer named William Jack sought “cakes with images that conveyed disapproval of same-sex marriage, along with religious text”; the bakers whom he approached refused to make them.²
Clearly, the Commission allowed bakers to refuse to bake cakes based upon whom Mr Jack did not love. The refusal to contribute to, or participate in, the making of messages offensive to the bakers was certainly allowed. Why, it’s almost as though Mrs Harris believes that the legality of such refusals is based not upon the personal beliefs of the craftsman, but upon the opinion of the state as to whether the messages are or are not offensive.
Mrs Harris stated, “Our constitution requires equal protection under the law. Full stop.” By that, I take it she means that there is no further discussion: equal protection under the law means equal protection under the law, period, with no exceptions. What, then does she make of this:
In the context of higher education, the durational requirement can be met by sunset provisions in race conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity. Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race neutral alternatives as they develop. ([T]he States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear). The requirement that all race-conscious admissions programs have a termination point assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.” (“It would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all”).
We take the Law School at its word that it would “like nothing better than to find a race-neutral admissions formula” and will terminate its race-conscious admissions program as soon as practicable. It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
In summary, the Equal Protection Clause does not prohibit the Law Schoolís narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner’s statutory claims based on Title VI and 42 U. S. C. §1981 also fail. (“Title VI . . . proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment”) (the prohibition against discrimination in §1981 is co-extensive with the Equal Protection Clause). The judgment of the Court of Appeals for the Sixth Circuit, accordingly, is affirmed.³
If I am to believe that Senator Harris believes that “Our constitution requires equal protection under the law. Full stop,” then I must concomitantly believe that she is opposed to Affirmative Action, the program the Court was addressing in Grutter v Bollinger, in which Justice O’Connor, writing for the majority, approved, albeit grudgingly, a temporary exception to equal protection under the law.
What’s that you ask? Do I really believe that is what Mrs Harris believes? No, of course I don’t believe that! What I do believe is that Senator Harris was lying to us when she said she believes that “Our constitution requires equal protection under the law. Full stop.” I believe that Mrs Harris believes in our Constitution only when it is convenient to her political goals, and that lawfare may be used to batter down anyone who does not go along with leftist groupthink.
Cross-posted on The First Street Journal.
¹ – Masterpiece Cakeshop, LTD, et al, v Colorado Civil Rights Commission, et al, Opinion of the Court, pages 11-12.
² – Masterpiece Cakeshop, LTD, et al, v Colorado Civil Rights Commission, et al, Justice Kagan, Concurring opinion, Page 1.
³ – Grutter v Bollinger, 539 U.S. 306 (2003), Opinion of the Court, Pages 31-32. Internal references omitted.