The Supreme Court has under consideration the case of the Colorado baker who refused to make a wedding cake for a same-sex couple. The parties have taken their dispute all the way through the court system believing something significant hangs in the balance. People camped out in front of the Supreme Court to assure themselves of a seat in the courtroom to hear what they assumed would be significant oral arguments presented by each side.
Despite this belief, there is nothing of national importance to be won or lost in this particular dispute. If the Supreme Court finds in favor of the same-sex couple, the Colorado baker can still discriminate against the next same-sex couple.
Within just the last few decades, a mere majority on the U.S. Supreme Court has improperly assumed legislative powers and has “rewritten” a primitive, and corrupt, statutory scheme, the Federal Arbitration Act, and now for the first time applies it to average Americans. In reworking this act, these justices granted to merchants, corporations and employers the power to impose on average Americans “arbitration clauses” now found in standard form contracts drafted exclusively in the interest of these entities. We all must live in a web of such contracts.
In this new, and alternative form of government, members of the public who have been required to sign these contracts can no longer access their courts, or laws, or even executive agencies. We are now required to submit to dispute resolution procedures where the merchant, corporation or employer chooses who will hear the matter, what practices and procedures will apply, what law, if any, will apply, and there is no jury or appeal. In this context, even if a member of the public is allowed an actual hearing, it all takes place in secret. We have been thereby transformed from a “nation of laws” into an ancient and odious system of tyranny of men.
A virtual civil war raged in our courts during the last few decades over this transformation. Justices in opposition have attacked this reprehensible agenda as ”inexplicable,” ”fantastic,” “unquestionably wrong” and ”evil.” Yet none of this has penetrated the public consciousness.
If the Supreme Court decides in favor of the same-sex couple, and against the Colorado baker, what is to stop the Colorado baker from utilizing the above Supreme Court scheme? The offending baker can simply draft a self-serving arbitration clause as part of his form contract, and have the next same-sex couple sign it before there is even a consultation. He can again deny his services, and that next couple cannot present their claim in court, much less reach the Supreme Court. That couple will be stuck with the baker’s private dispute resolution process where he has absolute control over the process and the outcome.
There remains an LGBT movement, a woman’s movement and other civil rights movements, but these movements, like all of us, no longer have a democratic voice because there are no longer any legal guarantees. Organizations can lobby for any law they choose, but there is no guarantee that even existing laws will be enforced.
The United States Supreme Court is composed of politically appointed justices who at best have only legal expertise. They do not have the education, experience or capacity to be this nation’s architects. It is in fact not their job and not their right. Given the choice, would you choose the government of the Founding Fathers, which is the product of centuries of struggle and experience, or the civil rights catastrophe of today’s mere majority on the Supreme Court?
Lawrence Cantwell has been an attorney for 30 years.