Political Animal

Why Concession Speeches Matter

On January 20, 2017, when Donald Trump took the oath to the United States Constitution, the New York developer assumed the right to enlarge it as if he were merely adding another wing to a casino. Trump says he will be “reinstated” into the American presidency this August 1.

This refusal of the ex-president to accept that he is just that, an ex-president, reminds me of a time downright bucolic.

In 1960, John F. Kennedy won a perilously close election against Richard Nixon. Many on the Republican side were questioning the results, especially in Illinois and Texas. (Even JFK himself would casually refer to running mate Lyndon Johnson as “Landslide” in reference to the shenanigans that got him elected senator from Texas in the first place). For Kennedy, even Nixon’s silence in the hours after the November balloting was a problem. The Massachusetts politician knew that only the loser could declare the last hurrah and make clear to his supporters that the other guy had won.

To his credit, Nixon, the sitting Vice President, did just that. When Kennedy called him the following Saturday and asked to meet, he leapt at the offer. Knowing it would seal the victory, Nixon agreed to host his triumphant rival in Florida for a friendly get-together. That Monday, at the Key Biscayne Hotel, with the photographers and TV cameramen looking on, Nixon played the good sport, chatting away with Kennedy over bottles of Coke.

This willingness of a defeated candidate to perform the part, no matter his or her feelings, is an unwritten part of the American constitution and it has been seen as a grim necessity. For the candidate hoping to someday get another chance, a gracious statement of defeat is seen as a sign of good faith in the electoral process itself. Part of what tarnished Nixon’s reputation well before Watergate was his churlish behaviour after losing the 1962 California governorship when he told the press in self-pity “you won’t have Nixon to kick around anymore.”

For years I simply accepted the “concession speech”—whether Nixon’s or Jimmy Carter’s, for whom I worked—as an honorable, if emotional, election night ritual. I would warm to the moment the loser appeared before the cameras to comfort his supporters, admit defeat, and wish the winner well and promise to promote their cause. Call me a political romantic, but I felt it was one time in our too-long campaigns when a candidate would show his or her true soul. John McCain’s concession was particularly noble, noting the importance to the country’s evolution that it had elected a Black man. That his staff prevented Sarah Palin from giving a vice presidential concession was also a welcome note. Al Gore was remarkably eloquent in taking to the microphones after he lost the Supreme Court’s Bush v. Gore case.

Now, having watched Donald Trump’s treachery the last months, I know that concessions are about more than protocol, magnanimity or even seemliness. The country’s unity is at stake. By his refusal to accept the electoral fact of 2020, that Joe Biden won and he lost, Trump has taught me that admission of defeat is a necessary element in our democracy. Failure by a candidate to admit its results can render an election enduringly suspect.

This is Donald Trump’s game, of course.

Where Hillary Clinton (2016) had the moral strength to concede defeat, he has rallied his voters by claiming he won. (We should have realized that this was in the offing when he claimed insanely in 2016 that he had won the popular vote and that the numerical tally had been sullied by illegal immigrants.) He then used his refusal to accept the otherwise obvious 2020 results as a gambit to keep the country at its own throat. Two-thirds of the Republican Party continue to believe Trump’s claim of victory in the 2020 election.

This belief the election was rigged has also ignited insurrection. We saw the mob who responded to his call to prevent Congress from certifying the vote of the Electoral College. Like-minded general Michael Flynn even suggested there should be a military coup against the elected government.

More trouble may be brewing ahead. A poll shows three in ten Republicans currently accept Trump’s vow that he will be “reinstated” as chief executive this summer.

What will happen when this nonsensical event fails to occur? All of this is because a losing candidate refused to tell his people the hard truth that the other candidate received more votes, 7 million more in the popular vote, the same number in the electoral college that he, Donald Trump, had won with his victory in 2016,

As I said, I used to view concession speeches as part of the human drama of election nights, a moment where the defeated hopeful stands and displays his or her grace.

Adlai Stevenson may have done it best after losing to General Dwight D. Eisenhower in 1952. Recalling an Abraham Lincoln line, he said “It hurts too much to laugh, but I’m too old to cry.”

Both Clinton and Gore won more popular votes than their opponent, Hillary Clinton, almost four million more. All managed to concede as have others over the decades. Samuel Tilden managed to concede after a brutal contest with Rutherford B. Hayes that was settled by a congressional commission.

And yet they did their duty to the US constitution, accepting the validity of the other candidate’s right to the office on which they themselves had set their heart.

No one but a losing presidential candidate can know the personal cost involved in such moments. It requires standing before your supporters to say you have failed them, standing before the country and admitting its verdict. Whatever else can be said of him, Richard Nixon accepted this duty in November 1960. As Ted Kennedy would say at the time of Nixon’s death, “Despite the intensity of the campaign and the narrow outcome, he accepted the results with grace and without rancor.”

That get-together of Kennedy and Nixon, it is well recorded, took place six days after their razor-edge election. We are now six months after Joe Biden’s inauguration and Donald Trump has yet to show either the grace or the patriotism to do the same.

Supreme Court Affirms Limited Win for College Athletes But Helps Monopolies

This week, the Supreme Court gave college basketball and football players a modest victory over the National Collegiate Athletic Association but one that, in the long run, may make life harder for proponents of vigorous antitrust against dominant corporations.

The Court, in a unanimous decision authored by Justice Neil Gorsuch, upheld a lower court ruling that invalidated the NCAA’s prohibition on education-related benefits to athletes. Despite the headlines declaring a defeat for the NCAA, the Court only affirmed a limited win for college athletes. It did not strike down the NCAA’s prohibition on paying a salary to players who generate billions for their colleges and universities.

In its ruling in NCAA v. Alston, the Court rejected the NCAA’s pleas for lenient antitrust treatment or an outright antitrust immunity. The NCAA asserted that a 1984 Supreme Court decision, which invalidated NCAA rules on television broadcasts, immunized its rules on capping player compensation because the Court noted the “revered tradition of amateurism in college sports.” The NCAA also claimed that it and its member schools are not “commercial enterprises.” These arguments gained no traction, and the Court ruled that the granting of antitrust immunities is the province of Congress, not the judiciary.

The Court, however, declined to revisit the trial court’s analysis that robbed the players of a complete victory against the NCAA. Although the players sought an end to NCAA’s collusive prohibition on player compensation, Judge Claudia Wilken, following a bench trial, struck down only the NCAA’s rules on education-related payments. In preserving the NCAA’s general prohibition on paying players, she concluded that some viewers may watch and attend college basketball and football games because the players are not paid like professionals. In its amicus briefs in support of the players in the Ninth Circuit and Supreme Court, the Open Markets Institute, where I work, argued that this “cross-market” balancing of harm to workers against benefits to consumers (whether theoretical or real) is bad law and bad policy.

The Court, however, declined to squarely address this issue because the players and their counsel gave it an easy out. The opinion stated that “the student-athletes do not question that the NCAA may permissibly seek to justify its restraints in the labor market by pointing to procompetitive effects they produce in the consumer market.” Although the Court punted on this question, law professor John Newman noted that the Court approved of Judge Wilken’s analysis and so appeared to implicitly bless such balancing.

In addition to failing to directly address cross-market balancing, the Court loosened antitrust rules on business conduct and showed skepticism toward antitrust enforcement in general. “Some restraints may be so obviously incapable of harming competition that they require little scrutiny,” the Court asserted. The Court said these restraints could be blessed without examining their effects on competitors, producers, and consumers and with just an abbreviated analysis. This was a bold move. Whereas courts had previously limited this abbreviated or “quick-look” antitrust analysis to facially problematic restraints (for instance, practices that resembled price fixing among rivals) and condemn them without a full antitrust analysis, the Court said that quick-look review could be used to approve certain restraints too. The Court also sounded a theme of caution in judicial application of the antitrust laws to business practices. The Court wrote that “antitrust courts must give wide berth to business judgments” and warned about judges serving as “central planners.” The Court further (incorrectly) suggested that markets exist apart from law and affirmed the ahistorical consumer welfare ideology, which conflicts with the broader economic and political aims expressed by the members of Congress who drafted the antitrust laws. Justice Gorsuch stated, “Judges must remain aware that markets are often more effective than the heavy hand of judicial power when it comes to enhancing consumer welfare.”

Justice Brett Kavanaugh expressed the most suspicion toward the NCAA. In a separate concurrence, he wrote that the NCAA system appears illegal because, through collusion among colleges and universities, it caps compensation of players and prohibits payment of wages and salaries. He observed that college basketball and football generate billions and enrich “[c]ollege presidents, athletic directors, coaches, conference commissioners, and NCAA executives.” The group excluded are “the student athletes who generate the revenues, many of whom are African American and from lower-income backgrounds.” He condemned the NCAA’s amateurism defense as “circular and unpersuasive” and demonstrated its absurdity by adding, “Hospitals cannot agree to cap nurses’ income in order to create a ‘purer’ form of helping the sick.” Yet, his concurring opinion has its faults. He wrote, “Price-fixing labor is price-fixing labor.” Notable for his strong hostility toward labor unions, Kavanaugh did not distinguish employer cartels, such as the NCAA, from unions and insinuated that a “free market in which individuals can otherwise obtain fair compensation for their work” features neither employer collusion nor unionization among workers.

Alston preserved a narrow win for college basketball and football players but largely left the NCAA’s collusive exploitation intact. It also continued its 40-year practice of giving trial judges who are skeptical of antitrust claims plenty of ammunition. Dominant firms like Amazon, Tyson Foods, and Uber may be able to impose restraints on workers, farmers, and other producers and defend themselves by pointing to purported benefits to consumers, just as the NCAA did. In delivering a battlefield win for college basketball and football players, the high court also appears to help corporations win their war against antitrust strictures.

Pell Grants Should Cover Good Short-Term Worker Training Programs

At just 22 years old, Christian Couric is already an experienced professional welder. A specialist in pipeline welding, Couric has worked in paper mills, commercial refrigeration facilities, as well as petrochemical plants in Kentucky, Texas and Louisiana. Currently, he’s in Reno, Nevada, helping to build a biofuel plant that will process the city’s garbage into jet fuel. He says he earns between $35 and $50 an hour, often working 60 to 70 hours a week. Industry magazines say skilled pipeline welders like Couric can clear as much as $5,000 weekly.

Couric doesn’t have a four-year degree or even an associate’s degree. What got him his start were three eight-week classes in welding from Blue Ridge Community College (BRCC) in Virginia’s Shenandoah Valley, where Couric grew up. It was enough to earn him a welding certificate and his first job at a local fabrication shop. “This is absolutely way more viable than any college degree I could have gotten for sure,” says Couric. “The guidance counselors and career coaches would always say, ‘Go to college, go to college, you have to go to college, you’re not going to amount to anything if you don’t go to college,’ but they were wrong.”

Couric is living proof that short-term, career-focused educational programs—provided they are high-quality courses for in-demand fields—can put workers on track to high-paying jobs. Most of these programs don’t, however, qualify for federal financial aid through the Pell Grant program, putting them out of reach for workers who are low-income or unemployed. The three courses Couric took cost about $5,600 at BRCC, including $1,998 for a welding fundamentals class, and about $3,700 for two courses in pipe welding (Couric’s specialization). Although Virginia offers a workforce training grant program that can pick up two-thirds of the tuition, BRCC President John Downey says many students in his corner of rural north-central Virginia still can’t afford to enroll. “It’s pretty insurmountable for the type of population we’re talking about when there’s no financial aid available,” he said.

Congress recently missed a chance to remedy this problem, and with it, a chance to help potentially tens of thousands of workers displaced by the pandemic. Legislation expanding Pell to many workforce programs has strong bipartisan support, and advocates had hoped for its inclusion in the China competitiveness bill passed by the Senate earlier this month. (Unfortunately, a “manager’s amendment” including the provision failed.) Now, as Congress contemplates infrastructure legislation, it should ensure the passage of “workforce Pell.” Federal financial aid for job training could be a vital support for workers in need of new skills as they face an economy permanently altered by COVID-19’s impacts. “It would be a game changer,” says BRCC’s Downey.

Opponents of short-term Pell argue the money would go toward poor-quality programs that lead to high-turnover, dead-end jobs. Certified nursing assistants, for instance, make notoriously low wages, and few ascend to better-paid careers in health care. Critics also say that workforce Pell lets employers off the hook for job training, shifting costs to taxpayers.

These objections, however, do not warrant the current blanket prohibition on Pell eligibility for all short-term training programs. These restrictions are not only unsupported by the evidence but create unnecessary barriers for adult learners pursuing more education.

Under current law, the Pell program only pays for classes that offer at least 600 hours of instruction over at least 15 weeks. Though intended to ensure program quality, this Pell length requirement is arbitrary. A program 599 hours long does not magically become more effective with one extra hour of instruction. As a December 2020 study by the Urban Institute concluded, “[t[here is no clear justification for the current line between programs that are Pell eligible and those that do not meet the program length requirements.” Some programs Pell pays for “provide little or no earnings boost for students,” write authors Sandy Baum, Harry Holzer and Grace Leutmer, while “many others, including programs that do not qualify for federal aid, do boost earnings.”

What matters, research finds, is not the quantity of classroom time but the quality of the program and the field of study. While many certificates may indeed have little value in the job market (cosmetology, for example), other programs can be valuable if they lead to industry-recognized certifications and are part of a career track that allows the accumulation (“stacking”) of credentials and skills. Welders, for instance, can earn up to 17 different certifications from the industry’s standard-setting body, the American Welding Society, and there are additional certifications for welding supervisors, inspectors, engineers and instructors. Likewise, in the IT industry, courses that lead to valuable professional certifications can translate into six-figure salaries.

In fact, says a 2020 study by the Georgetown Center on Education and the Workforce, some certificate holders earn more than those holding associate’s or bachelor’s degrees. Workers with certificates in construction trades, for instance, have median earnings “that are as high as those of bachelor’s degree recipients in liberal arts and humanities (between $40,001 and $50,000),” while workers with certificates in engineering technologies can earn between $75,000 and $150,000 a year.

In Virginia, where the state’s five-year-old Fast Forward program subsidizes short-term credentials in high-demand fields, participants saw their earnings jump by a median of $6,100 (24 percent) one year out. Given these findings, it makes little sense to deny students federal financial aid for shorter-term programs that can deliver huge returns.

It also makes little sense to force adult learners, many of them juggling work and family obligations, to go to school full-time or part-time just to qualify for federal financial aid. Workers displaced by the pandemic, for instance, “have a hard time envisioning themselves going to college for two years to get an associate’s degree,” said BRCC President John Downey. “They don’t have two years of their life to set aside.” Shorter-term programs can offer a much shorter on-ramp and still deliver results.

Businesses also don’t want to wait. “The jobs are open now,” says Traci Tapani, co-president of Wyoming Machine, Inc., a small custom metal fabrication company north of Minneapolis. Tapani, who employs 55 people, says she works with nearby Pine Technical and Community College to recruit and train the welders her business desperately needs (entry-level salary: $15 to $18 an hour). Workers learn the basics in the classroom, and then get on-the-job training at Tapani’s firm. “In our experience, short term credentialing works very well,” she said. “We’re able to supplement what they’re learning in the classroom with hands-on experience in manufacturing. It’s proven to be a very successful way to take people who have little or no skill and quickly get them to the point where they can be contributors in a company that would otherwise struggle to fill its open positions.”

In response to critics’ worries that expanding Pell would open the floodgates to predatory for-profits eager to offer correspondence courses in truck driving, the legislation sponsored by Senators Tim Kaine, a Democrat from Virginia, and Rob Portman, a Republican from Ohio, provides plenty of safeguards to ensure quality. Among other things, the Kaine-Portman bill explicitly excludes for-profits from receiving short-term Pell and limits program eligibility to sectors where workers are in demand. Courses must be at least 150 hours and 8 weeks long and prepare students to receive an industry-recognized certification. Educational institutions also need to provide extensive outcomes and earnings data for graduates in order to keep programs eligible (a requirement that could actually prove overly burdensome to resource-strapped community colleges).

Given the benefits of short-term Pell and the safeguards built into the legislation, there’s no reason Congress shouldn’t act. According to the bill’s cosponsors, workforce Pell would cost about $190 million a year—or 0.6 percent of the $30 billion the federal government spends on the Pell program annually. The result, said welder Christian Couric, could be transformational for other workers like him. “I could name a dozen people I work closely with that I guess started off really not knowing what they were going to do with their life—working just a minimum wage job and kind of felt like they weren’t ever going to end up anywhere,” he said. “And then they heard about welding and were able to take a class similar to what Blue Ridge has. They just managed to scrape enough money together to pay for it. And then, you know, one thing led to another and here they are working in this industry that pays really good money and were able to completely turn their life around for the better.”

By passing workforce Pell, Congress will also recognize the value of non-degree programs and certificates in helping workers land good jobs. As workers like Couric amply illustrate, a college degree is not the only path to the middle class. Public investment in higher education should acknowledge that reality.

On LGBTQ Rights, the Supreme Court Punts Yet Again

Sometimes the oracles of the law speak out boldly—as they did in cases like New York Times v. Sullivan (press freedom) or Obergefell v. Hodges (same-sex marriage).

At other times, they sound more, well, oracular—less like Moses at Mt. Sinai and more like Mattel’s Magic 8 Ball, boldly proclaiming something like BETTER NOT TELL YOU NOW.

The nine members of the 8-Ball mumbled last week in a case called Fulton v. City of Philadelphia. Since November, lawyers, clergy, legislators, family-services specialists, and lay people have been looking to the court for guidance on an important question: what is the constitutional status of laws that protect LGBTQ people from discrimination?

Seventy percent of Americans support same-sex marriage—including, according to a recent Gallup Poll, a majority of Republicans. But a significant minority of religious Americans oppose it, and many of them believe that homosexuality itself is a sin that should be outlawed. Some of those believe that even to passively acknowledge the existence of same-sex marriage is a sin that should not be forced upon them by the law. Now that the court has recognized that LGBTQ people are free to choose their intimate relationships, and that same-sex marriages are valid throughout the country, the lingering question is whether “religious liberty” requires that religious objectors be exempted from gay-rights statutes.

Fulton is a challenge to a Philadelphia city regulation requiring its contractors not to discriminate on a number of bases, one of which is sexual orientation. A private agency named Catholic Social Service is one of a number of such agencies that have been funded by the city to place foster children in suitable temporary homes. CSS, however, has stated that it would refuse to begin the placement procedure if a same-sex couple, married or not, applied to be foster parents. Philadelphia cut off the placement funding to CSS (city money continued to flow for other services). CSS went to court, arguing that requiring it to evaluate same-sex couples violated its First Amendment right to “the free exercise” of religion. In the universe of free-exercise exemption claims, this one is pretty extreme; CSS believes it has a right not only to exclude same-sex couples, but to receive taxpayer funds to indulge their preferences.

Last week, the court managed to award CSS at least a temporary win; the city could not enforce its regulation, the majority held, because the non-discrimination regulation contained language allowing exemptions in a city official’s “sole discretion.”

The court majority said that language means that the law is not “neutral and generally applicable.” Those are magic words, because under a case called Employment Division v. Smith, if a law is “neutral and generally applicable,” the Free Exercise Clause would not require the state to exempt religious objectors. If it is not neutral, in religious-freedom cases, the court applies “strict scrutiny.” That’s a legal term meaning that a law must be “narrowly tailored to further a compelling state interest”—a hard bar to clear. The Civil Rights Act of 1964’s ban on “whites only” restaurants survived a religious-freedom challenge in 1968; since then, religious opposition to integration or miscegenation does not require exception to laws against racial discrimination. (In fact, the court termed that claim “patently frivolous.”)

What about gay-rights laws? By a 6-3 majority, the court in Fulton last week held that the Philadelphia statute 1) wasn’t neutral and 2) didn’t pass “strict scrutiny.”

At face value, this would seem like a blow to LGBTQ people and same-sex couples. The implication is that homophobia is in some way not as bad as racism, that combatting it is not a “compelling interest.” Religious objection can’t override legislative protection against race discrimination. But it can override gay-rights statutes.

A close read, however, shows a different Magic 8-Ball message: ASK AGAIN LATER.

It was clear from the moment the court granted review that the importance of protecting gays and lesbians was at stake in Fulton. During oral argument in November, Justice Elena Kagan broached that issue.

The Trump Administration had entered the case as amicus to argue that Catholic Social Services had a religious-freedom right to enter into city contracts while rejecting anti-discrimination rules—in fact, that the city was required to keep renewing its contract with CSS. Kagan was questioning Hashim Mooppan, the Trump-appointed counselor to the Solicitor General.

Earlier, Mooppan had told Justice Samuel Alito that Philadelphia could enforce, without a religious exemption, such a rule against excluding mixed-race couples. That, he said, was because of “the significant compelling interest in that context.”

“If I understood you correctly,” Kagan said, “you said that it is a compelling state interest to eradicate racial discrimination, but it is not a compelling state interest to eradicate discrimination on the basis of sexual orientation. And I was wondering where in this scale that you’re using would discrimination on the basis of gender come. Would that be a compelling state interest?”

It didn’t matter, Mooppan argued, because the policy at issue in this case had the “sole discretion” language.

Kagan dogged his steps. “Do you think there’s a compelling state interest to try to eradicate discrimination against gays and lesbians? Is that a compelling state interest?”

At this point, Mooppan, like Billy Flynn from Chicago, went into his dance. He said the government was “not denying the significance of that interest in the abstract.”

“Is it a compelling state interest, Mr. Mooppan?”

“In the abstract, perhaps,” Mooppan began.

“Is it perhaps, or is it yes or is it no?”

Mooppan kept razzle-dazzling until Chief Justice John Roberts told Kagan her time was up. But her question is the one that’s been asked ever since the day the same-sex marriage cases were decided.

Last week, the court bought Mooppan’s “exceptions” argument—and Kagan joined a six-Justice majority to do so (the vote was unanimous, but Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch wrote separately to advocate for much broader protection for religious bodies).

The majority, however, cheated; it misapplied the “strict scrutiny” test. Remember: if the law is “neutral and generally applicable,” it doesn’t need to pass the test. The majority said that the “sole discretion” language means the regulation isn’t neutral and must pass the test.

Then the majority said the regulation could not pass the test. Why, though? Does this mean that protecting same-sex couples isn’t a “compelling” interest—that it is in some way of lesser value than protecting racial minorities?

Magic 8 Ball says… REPLY HAZY.

Philadelphia’s interest in protecting same-sex couples, the majority noted, was “a weighty one.” But it wasn’t “compelling.” Why not? Not because of anything about LGBTQ people or about anti-discrimination law in general; the interest wasn’t “compelling” because the regulation contains “a system of exceptions.”

As a feat of judicial double-dealing, this trick is worthy of the immortal Scarne. It’s a bit like the old con where the grifter talks the mark into giving him two $10 bills for one $5. The law had to be subject to strict scrutiny because it contained exceptions. And it cannot pass strict scrutiny because… it contained exceptions. The majority got out of the opinion without giving any legal verdict on the importance of equality for LGBTQ people and same-sex couples (there’s no constitutional meaning to “weighty”). Philadelphia’s interest isn’t compelling because Philadelphia didn’t act as if it is.

It’s important to understand that Fulton did not ask whether the Constitution itself forbids discrimination against same-sex couples. The Fourteenth Amendment provides that all persons in the U.S. must receive “the equal protection of the laws,” but applying those abstract words has created a plethora of court decisions assessing “how bad” different forms of discrimination are. Age, the court has held, is a perfectly rational one; national origin is “suspect,” etc. Protections for LGBTQ civil rights are found, if at all, in state or local laws passed by elected officials. The question, then, is whether a city or state government can decide that same-sex couples should be protected against discrimination and refuse to contract with religious groups who defy that rule. Local and state civil-rights statutes protect against many forms of discrimination: race, sex, religion, age, disability, pregnancy, veteran status, and others. They embody a general decision by elected bodies that a state has a vital interest in the equal treatment of its citizens, whether judges approve or not. Is there something about sexual orientation that requires a religious exemption when other such laws do not?

To many church and religious-rights groups, the answer is clearly yes. “While CSS’s ideas about marriage are likely to be objectionable to same-sex couples,” Justice Samuel Alito wrote in an impassioned separate opinion, “lumping those who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs.” These “traditional beliefs” must prevail, even of that means permitting religious people and bodies to exclude same-sex couples altogether, he wrote.

In fact, he argued, CSS has not only a religious right, but a free-speech right, to refuse to deal with same-sex couples. Discrimination against these couples, it turns out, is not discrimination at al—it is merely protected speech. “CSS’s policy has only one effect: It expresses the idea that same-sex couples should not be foster parents because only a man and a woman should marry. Many people today find this idea not only objectionable but hurtful.” He added a page later, “Suppressing speech—or religious practice—simply be­cause it expresses an idea that some find hurtful is a zero-sum game.”

This one is the old Spanish Handkerchief trick: the grifter nabs the sack of money and leaves the mark holding an empty bag. The City of Philadelphia regulation was not aimed at speech or ideas. Catholics or any other religious groups are more than free to express their opposition to same-sex marriage. The Philadelphia regulation aimed at protecting living individuals and families from being excluded from city-funded services. Exclusion may or may not be permissible; but as sure as God made cheesesteaks, it isn’t speech. The Philadelphia regulation was a moderate one. It didn’t abolish all aid to CSS because of their stance on same-sex marriage, as it might have. It only prohibited city dollars, funded in part by LGBTQ citizens, from financing a discriminatory practice. That’s a restriction of speech only if you considered speech to be publicly financed social work.

In Alito’s formulation, Philadelphia becomes a heartless Nebuchadnezzar demanding that modern-day martyrs deny their faith. There’s only one side to this conflict, he says, and it is the religious side.

What if, for a moment, we just sat with this case to its full extent? On the one side are living individuals who have been taught, and believe, that homosexuality is a sin and that they must not countenance it, even passively. They will experience pain if required to override that belief. On the other side are living individuals whose marriages and families express their identities and their deepest values, secular and spiritual. They, too, will experience pain and loss if excluded from government programs and public accommodations.

How do we resolve that conflict? That’s the question Kagan was trying to get Mooppan to grapple with.

Eventually the choices are stark. Is rejection of LBGTQ people a part of the “traditional” palette of American belief, a religious right that must remain in place? Or is it homophobia, the moral equivalent of racism and misogyny, historically linked to a searing history of persecution against LGTBQ Americans? The subject is not “compelled speech” vs. saintly nuns; it is two sets of humans, with needs and emotions.

The overall issue is a hard one, but at the very least I believe no agency is entitled to take a couple’s tax monies and then refuse to serve them because it disapproves of their family structure. Other smart people disagree. There’s every indication that the issue has divided the Justices just as it has other Americans, and the court doesn’t want to decide it until it really has to.

This court is divided, and the Justices are feeling their way to an accommodation that will keep from shaking itself to pieces now that their court has become an overtly partisan body—if such an accommodation can be found.

The 8-Ball has already dodged the question once, in 2018, when it considered the case of a Christian baker who offered wedding cakes to the public but refused to obey a Colorado “public accommodation” statute requiring him to bake a cake for a same-sex couple. The Justices got out of that dilemma by noting that one member of the Colorado Civil Rights Commission had made some hostile remarks about Christianity. It was a puzzling sidestep; the decision didn’t invalidate the statute, but it did void that particular order—exactly the way the “exceptions” voided the Philadelphia regulation.

But last week, a state court in Colorado upheld a fine against the very same baker for refusing to bake a “transition cake” for a transgender customer. The conflict between LGBTQ rights and religious sensibilities is coming back. Dodging won’t make it disappear. A court that is deeply split along cultural and religious lines is going to have to face it sooner or later.

Counting noses, I am not feeling eager to know what they actually think.

What will happen, Magic 8 Ball?