Postponement as Precedent
29 S. CAL. REV L. & SOC. JUST. 1
60 Pages Posted: 5 Sep 2019 Last revised: 1 Feb 2021
Date Written: August 28, 2019
Abstract
Is a punt by the U.S. Supreme Court ever really just a punt?
Is doctrinal precedent the only power wielded by the Court’s decisions?
What lessons can civil rights scholars and activists learn from the Court’s postponement of doctrinal decisions that touch on raging cultural battles?
Many commentators and scholars contend that the Court’s postponement of a doctrinal decision — a punt — has little impact. Rather, these commentators and scholars frame this kind of decision as “narrow” and of little value to civil rights advocates moving forward.
The project of this Article is to put this theory to the test. It answers the foregoing questions in the specific context of the Religious Right’s persistent campaign for religious exemptions from state antidiscrimination law as manifested in Masterpiece Cakeshop v. Colorado Civil Rights Division.
In brief, the Article concludes that precedent comes in various forms, including legal precedent and social precedent. The Article focuses on the social precedent created by a Court decision — the extent to which “law” impacts the social setting in which people think about and reason through difficult subjects, like the proper balance between principles of antidiscrimination and religious liberty. The Court’s avoidance of a merits decision is, in fact, a positive, expressive act; because “[m]eaning is contested and struggled for in the interstices,” the Court’s mere act of avoiding the merits itself creates social meaning of constitutional consequence. Postponement, then, creates social-meaning precedent. This Article describes the likely consequences of this social precedent in Masterpiece and offers concrete suggestions for the LGBT-rights movement to effectively contest that social meaning and prepare for the case in which the Court does reach the merits of the issue.
Keywords: sexual orientation, antidiscrimination, religious liberty, religious exemptions, civil rights
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