April 24, 2017

With Gorsuch, will the Supreme Court take the cake?

We've been waiting and waiting to see if they'll take the cake.
So this week’s conference will be the first for Gorsuch. That fact is reflected in this week’s unusually long roll of relists, which are plentiful enough that it appears that the court may have simply rolled over the entire “discuss list” from last week’s conference. Three of last week’s relists return again, including the closely watched six-time relist and potential blockbuster Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111, involving a cake decorator who refused on religious grounds to make a cake for a same-sex wedding....

39 comments:

eric said...

So we are looking at a 5-4 cake decision?

Let's say they side with the cake maker. And they say the cake maker can refuse to supply gay sex celebrations with cake.

Does this have any implications for the other cases where businesses are forced to celebrate such things against their wishes?

Gahrie said...

I say just have the city council pass an ordinance banning wedding cakes.

David Begley said...

The only one I care about is Oil States v Greene Energy Services.

Nonapod said...

It takes the cake that it can be a piece of cake to have a cake and eat it too, but it also can be no cakewalk.

WisRich said...

eric said...
So we are looking at a 5-4 cake decision?

...Does this have any implications for the other cases where businesses are forced to celebrate such things against their wishes?

4/24/17, 10:43 AM

It would seem to depend on if it's religious (and mainstream) based. If so, then I'd say: Of course.

Original Mike said...

Gorsuch just maintained the status quo. Don't take the cake until we lose a liberal.

J. Farmer said...

Does this have any implications for the other cases where businesses are forced to celebrate such things against their wishes?

It's too bad this has to rest on 1st amendment religious rights, since people should be free to refuse services to whomever they wish. If a restaurant doesn't want to serve blacks or gays or Christians or Jews or heterosexuals or people with red hair, they should be completely free to do so. Unfortunately, freedom of association was pretty much jettisoned by the 1964 Civil Rights Acts and has since been followed suits has dozens of states (including Colorado) have passed their own, even broader civil rights laws that catalog an ever-increasing protected classes. Pretty much anything that isn't a straight white man. Not only is it okay to discriminate agains them, it's a downright moral duty.

Gahrie said...

Pretty much anything that isn't a straight white man. Not only is it okay to discriminate agains them, it's a downright moral duty.

It's often a legal duty.

Michael K said...

I agree that the situation has become almost impossible.

The Oregon case, with which I am more familiar, had a set of facts that should have been defensible except for that asshole of a commissioner. The bakery had served the two lesbians for years without a murmur. They only declined the wedding cake and even offered to recommend another bakery.

Public accommodation has been taken too broadly but I don't know what to do about it anymore., One of the only four boys colleges in the country is now under attack for not accepting women. The freshman class is 27.

Of course, there are still women's colleges because SHUT UP!

Jupiter said...

J. Farmer said ...

"Unfortunately, freedom of association was pretty much jettisoned by the 1964 Civil Rights Acts ..."

Actually, what was jettisoned was not freedom of association but property rights. The CRA effectively established the principle that property *used in commerce* ceases to be private in numerous important respects. You can still discriminate against anyone on any basis on your private property, provided you aren't running a business there.

Birches said...

I believe Kennedy's decision in Windsor included some pablum about those who didn't feel like gay marriage was a thing shouldn't be vilified. Time to put up.

J. Farmer said...

@Michael K:

The bakery had served the two lesbians for years without a murmur. They only declined the wedding cake and even offered to recommend another bakery.

There are certain segments of the gay (especially activist) community who are absolutely determined to be offended. It gives them an opportunity to do what they seem to love best: being victims. Plus, it's the ultimate get out of jail free card. If you are always a victim, then nothing in your life is ever really your fault.

Michael K said...

There are certain segments of the gay (especially activist) community who are absolutely determined to be offended.

I wish it was just the gay community. It seems to be the focus of much attention in all communities. The military is about to be turned inside out with sexual accusations.

The latest one is a medical officer with three deployments who is now being accused by a dependent wife of "inappropriate touching" during an exam. The original charge was years ago and dismissed by his hospital commander. Now, a general who has nothing to do with it has revived the charge and the doc is looking at 10 years of prison if convicted of this vague accusation.

No evidence. No other accusations.

Michael K said...

The story.

Sebastian said...

"There are certain segments of the gay (especially activist) community who are absolutely determined to be offended." Sure, but taking offense is just a maneuver in the culture war.

J. Farmer said...

@Michael K:

I wish it was just the gay community. It seems to be the focus of much attention in all communities.

@Sebastian:

Sure, but taking offense is just a maneuver in the culture war.

I agree with both of these sentiments; I was just trying to restrict my comments to the topic at hand, though now I don't know why, since I almost never do that. But in any event, gays are just another of the identity politics community to use the 1960s civil rights playbook. Get yourself identified as an official victim group and then use civil rights laws and threats of lawsuits to get favors for your group. This is a perfectly predictable consequence of "diversity."

As Singapore's late authoritarian leader Lee Kuan Yew correctly observed: "In multiracial societies, you don't vote in accordance with your economic interests and social interests, you vote in accordance with race and religion. Supposing I'd run their [the British] system here, Malays would vote for Muslims, Indians would vote for Indians, Chinese would vote for Chinese. I would have a constant clash in my Parliament which cannot be resolved because the Chinese majority would always overrule them."

mockturtle said...

J. Farmer observes: There are certain segments of the gay (especially activist) community who are absolutely determined to be offended. It gives them an opportunity to do what they seem to love best: being victims. Plus, it's the ultimate get out of jail free card. If you are always a victim, then nothing in your life is ever really your fault.

Right. But it will ultimately backfire because real power is never achieved via victimhood.

Fernandinande said...

mockturtle said...
But it will ultimately backfire because real power is never achieved via victimhood.


Power to the victim, right on!

Thorley Winston said...

Gorsuch just maintained the status quo. Don't take the cake until we lose a liberal.

Agreed, right now the protection of freedom of association and the free exercise clause seem to depend largely on what side of the bed Justice Kennedy wakes up on. I’d rather save those cases until after Trump has replaced Kennedy, Ginsberg or Breyer.

rhhardin said...

They're in the wedding cake business.

Same sex isn't a wedding.

You can redefine them into a different business.

AMDG said...

The easy solution - the bakery cannot refuse to sell the cake, however, they cannot be forced to recreate it in a manner that might offend them.

A restaurant cannot refuse service in a discriminatory manner but they cannot be forced to serve a particular dish.

Michael K said...

the bakery cannot refuse to sell the cake, however, they cannot be forced to recreate it in a manner that might offend them.

My understanding of all these cases is that the seller was require to participate in the wedding. The photographer was a more difficult case if she just did weddings. The flower person could sell but not arrange although that is probably part of the service.

There is a level of vindictiveness in all these cases that resembles the Little Sisters of the Poor being told to provide birth control.

I know that Catholic Services has been driven out of adoption in Massachusetts for declining to place kids with gays.

By the way, there is a virtual blackout on studies of children raised by gay couples.

n.n said...

With the progress of a mother or father, a male or female guardian, and womb bank or sperm depositor, how can they not demand to have their baby and abort it, too.

J. Farmer said...

@AMDG:

The easy solution - the bakery cannot refuse to sell the cake, however, they cannot be forced to recreate it in a manner that might offend them.

I think the even easier solution is to just let private companies decide for themselves who they want to do business with. I used to joke that the Westboro Baptist Church should find a gay bakery and order a "God Hates Fags" cake. If the bakery refused, sue them. If people want to claim a self-righteous mantle of principles, let's see them actually defend them.

But of course, if we're going to live in a country where it is against the law to discriminate privately against blacks, then we've already crossed that threshold. It's now a matter of we know what you are, we're just negotiating price.

Matthew Sablan said...

"I used to joke that the Westboro Baptist Church should find a gay bakery and order a "God Hates Fags" cake. If the bakery refused, sue them."

-- Westboro didn't do this, but someone else did, and it was determined that the two cases were different enough that the bakery did not have to honor the deliberately provocative message (though I'm not sure if I'm remembering it right).

traditionalguy said...

How thin can Gorsuch slice this Cake. Stay tuned.

Jason said...

In the Oregon case, the whole thing got a major cheerleading boost from the owners of a rival cupcake shop downtown in the heart of libtard Portland. The owners of the competing store also lobbied hard to cut off Melissa from any GoFundMe aid she might receive, too.

Owen said...

Vindictiveness and payback are woven into the victim narrative. Along with self-dramatization, absolution from any personal responsibility, and serious damage claims if it is played right. Alinsky's book has been memorized by every single one of the Identarian communities, and the practical tools have been widely shared. Lord knows what user groups are swapping notes every day.

A great man once said, "Punch back twice as hard." It is very tempting, and way overdue. But I think some people are temperamentally and philosophically ill-equipped to do battle on these terms, so they tend to lose. Over and over.

I agree that the "accommodations" battle was joined, and largely lost, in the 1964 civil rights act. No distinction was drawn between a common carrier (bus, hotel, restaurant) and a personal service (barber, baker of "Your" wedding cake, florist for "Your" wedding flowers, photographer for "Your" special day). And here we are. I find it sad --the entire cost of the Outrage is borne by one or a few hapless individuals in order to Make A Point. I also find it ironic --thanks to technology and the New Economy, the line between private association and commercial activity is blurring as people invent new lines of services and run them under the radar or with little formality. So at the very time you'd expect less of this madness, you're getting more of it.

IMHO.

J. Farmer said...

@Owen:

I agree with a lot of what you wrote, but it's probably not true that "Alinsky's book has been memorized by every single one of the Identarian communities, and the practical tools have been widely shared." I think most people in the social justice movement could not even tell you who Saul Alinsky was, let alone having "memorized" anything he ever wrote. I think there are many strands to this, including the advent of the social sciences in the second half of the 20th century, the advent of postmodernism, the rise of the civil rights movement, the shift from a manufacturing economy to an information economy, etc.

The whole gay weddings thing is, from my perspective, a very small and insignificant battle in a much larger war. There are only about 250,000 same-sex married couples in the country, compared to around 60,000,000 opposite-sex couples. And there have only been a handful of cases in regards to bakers, florists, and photographers. But I do think it is significant in that it is part of a large scheme to force diversity on people and to label anyone who may resist such diversity as a bigot or a hate monger.

I much prefer the Westboro Baptist Church, who make no bones and no apologies about their personal beliefs, and do nothing but engage in peaceful protests and picketing, to the kind of lynch mob that sought to destroy Brendan Eich's livelihood.

Owen said...

J. Farmer: Thanks, and I think you are right that Alinsky was just one thread in a great matted mess of ugly stuff. I shudder to think that many of the current crop of SJWs may not yet have absorbed his advice, because their present capabilities are already quite terrifying.

I agree wholeheartedly with your point about the disproportion between the number of SSMs and the number of hetero couples. I would say that the disproportion is part of the point: that the most terrifying exercise of power is arbitrary and capricious exercise, where for no reason somebody is beaten to death in view of the crowd. The word travels fast. This kind of behavior speaks to your point: "But I do think it is significant in that it is part of a large scheme to force diversity on people and to label anyone who may resist such diversity as a bigot or a hate monger."

The Progs are very good at this kind of stuff, and they have used a few early soul-crushing examples in order to move the crowds to acquiesce or at least begin to move in the desired direction.

Michael K said...

But I do think it is significant in that it is part of a large scheme to force diversity on people and to label anyone who may resist such diversity as a bigot or a hate monger.

Yes, I think they are the skirmishers for the army of cultural hegemony, sort of like Gramsci anticipated.

Owen said...

J. Farmer: If I may expand a little on my notion of how the Progs exercise their power: I think one of the biggest "tells" of a tyrant is that xe refuses to take yes for an answer. Xe lacks magnanimity in victory, but doubles-down, demands yet more. That is what happened with SSM. It was not enough to win the litigation, the SSM advocates had to walk the battlefield and shoot the wounded. That was where they really lost my sympathy.

Sydney said...

A restaurant cannot refuse service in a discriminatory manner but they cannot be forced to serve a particular dish.

Unfortunately, we've reached the point where serving a particular dish, at least in health care services, is now a right. One of the little noticed aspects of the Affordable Care Act was to make it an act of discrimination to refuse to perform abortions on demand or to refuse to perform sex change operations or hormonal manipulations on demand.

"The rule in dispute on Saturday was adopted by the U.S. Health and Human Services (HHS) Department to implement those provisions, including definitions for sex discrimination that encompassed transgender and abortion services."

The rule is still being contested in court, but as it stands, if a physician feels it is medically or ethically wrong to perform an abortion or to manipulate the sex of a pre-pubescent child, they can not refuse to do so without being accused of discrimination.

Owen said...

Sydney: "The rule is still being contested in court, but as it stands, if a physician feels it is medically or ethically wrong to perform an abortion or to manipulate the sex of a pre-pubescent child, they can not refuse to do so without being accused of discrimination."

I think the list of medical interventions protected from "discrimination" will only grow. Next up: FGM. It is now a "culturally loaded" term and disapproved by the PC style police. I guess the new taxonomy will be "plastic surgery - reimbursement code XXXX."

Sydney said...

Owen- that is a good point. When I heard about the Michigan doctors who were arrested for FGM I wondered why that is illegal but it is legal to mutilate a child in a far worse way when it comes to transgender surgery. Or to manipulate them hormonally with long term consequences yet to be determined. The argument can even be made that FGM has fewer long term consequences than transgender manipulation or surgery, yet FGM is illegal and transgender manipulation can be forced on the physician by the law. I guess this is what they mean by interesting times.

Michael in ArchDen said...

Owen said...
I find it sad --the entire cost of the Outrage is borne by one or a few hapless individuals in order to Make A Point.

Especially important to remember in this case...as the bakery in question has gone out of business, due (at least in part) to this cost.

Dust Bunny Queen said...

A restaurant cannot refuse service in a discriminatory manner but they cannot be forced to serve a particular dish.

The biggest issue is that a wedding cake decorator, flower arranger, photographer are all doing things that are artistic expressions. Unlike the guy who is baking generic bagels, sells cut flowers from buckets of water or prints photos from your negatives (if there is such a thing anymore in this digital world) they are artists are creating something other than a utilitarian item.

The baker who makes a chocolate cake, is making a generic cake that can and should be sold to anyone who has the money to buy. The wedding cake decorator is an artist. Do you have the right to demand that an artist create something unique specifically and especially just for you that is objectionable to the artist or which is against his/her principles?

You can expect the mechanic at the local garage to service your car, just as he does every one else. You can't force Chip Foose to give you a one off, uniquely designed remodeled custom car if he doesn't want to.

Owen said...

DBQ: "Do you have the right to demand that an artist create something unique specifically and especially just for you that is objectionable to the artist or which is against his/her principles?"

Short answer: No.
Slightly longer answer: HELL No.
Even slightly longer answer: The remedy of specific performance is not favored by courts because they cannot assess, easily or at all, whether the performance is "good." What are they supposed to do, hire an art expert to oversee Rembrandt as he grudgingly pushes paint around on the canvas as the patron fidgets?
Even slightly longer answer: the idea of specific performance assumes that a contract exists. Here, the vendors declined to enter into a contract. Yet they were forced to perform anyway, on pain of business-killing fines and legal costs and, for all I know, time in the slammer.

Do you know what we call that kind of forced labor? Chattel slavery. Silly me, I thought we fought a great war and changed the Constitution to abolish that.

Michael K said...

" they can not refuse to do so without being accused of discrimination."

This is one reason why doctors are dropping out of all insurance. Most of them, so far, are older and have no student loans and their kids are educated or college funds are done. The rules for physicians are now incomprehensible and every doctor probably commits at least two felonies a day.

Tucson is almost a center for cash medical practice and I see an Urgent Care on every corner, I haven't done a survey but there are lots of web sites about it.

If we get decent health care reform, that will drive cash practice from the other aspect, We got off on a dead end in the 60s which was paying every office charge with insurance. The overhead on each end became a huge industry.

Remember when Teddy Kennedy said health care was "a cottage industry?" Now we have had a few years of industrial health care,

Time to get back to the cottage industry.