December 5, 2017

SCOTUSblog is decorated with cakes this morning...



... as the Supreme Court hears oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the case about whether the government can force a cake-decorator to make a cake for a same-sex wedding. Here's the SCOTUSblog argument preview. Excerpt:
In his brief at the Supreme Court, [Jack] Phillips depicts the legal battle as a pivotal one that threatens “his and all likeminded believers’ freedom to live out their religious identity in the public square,” as well as the “expressive freedom of all who create art or other speech for a living.” He stresses that the First Amendment protects expression, which is not limited to words but can also include visual art, from traditional paintings and movies to tattoos to stained-glass windows. The “expression” protected by the First Amendment also extends to Phillips’ wedding cakes, he says, even if they are made with “mostly edible materials like icing and fondant rather than ink and clay,” because they convey messages about marriage and the couple being married....

The federal government argues that public-accommodations laws like Colorado’s will generally pass constitutional muster, because they normally only regulate discrimination in providing goods and services – conduct that is not protected by the First Amendment – rather than expression....

The implications of a ruling for Masterpiece, the state and the couple suggest, would be sweeping, far beyond the “countless businesses” such as hair salons, tailors, architects and florists that “use artistic skills when serving customers or clients.”...
This is a genuinely difficult case. I empathize with the people on both sides, and I think the legal interests are very hard to prioritize. I was disgusted by the NYT op-ed headline I saw this morning: "The Colorado Cake Case Is as Easy as Pie." What arrogance!

Part of that arrogance — the part that offends me the most — is the high-low distinction in art. I'm very interested in hearing whether the Supreme Court gets into the matter of setting Jack Phillips apart from "real" artists and devaluing his expression because it is in butter-sugar.

By the way, the NYT podcast, "The Daily," has an excellent, well-balanced episode on the case this morning. It includes an interview with Jack Phillips, and you hear Adam Liptak explain the legal issues in a straightforward way. He also goes on to speculate that Anthony Kennedy — who's distinguished himself as the author of the Court's gay rights cases — may vote for Phillips out of an urge to protect "the loser."

112 comments:

Oso Negro said...

The government's efforts in the mainstreaming and compulsory celebration of homosexuality in the past 40 years have been a wonder to witness.

Matthew Sablan said...

If you put Thérèse Dreaming on a cake and call it art, is it still "undeniably romanticizing the sexualization of a child?"

Mike said...

First Amendment issues are vital to all of us, which is why this is so much more important than "baking a cake." As Althouse has noted, that shorthand completely elides the actual artwork the baker provides. And for me the case turns on that one important point:

Can the State compel speech in the form of artistic output? Can one be forced to "bake that cake" when they have a religious objection to taking part in the specific ceremony?

Chuck said...

This is one of those cases where the average grassroots voter can have the last word.

The reason that this case exists at all is because the state of Colorado, in its infinite wisdom and its own Rocky Mountain arc, bending toward justice, decided to enact a "civil rights" statute which was in turn overseen by a "civil rights" commission.

If your state doesn't have one of these laws, and one is being proposed (as is the case in my state of Michigan) fight hard against it, lest you find yourself in the position of Jack Philips.

Michael K said...

We have gone from tolerance to mandatory celebration the past 25 years.

Next up, if the cake guy loses, will be NAMBLA,

surfed said...

Think of it this way: if a gay or straight couple came to my cake shop and ordered - in my view - a lewd or pornographic cake of them performing oral sex on each other - or maybe even a simple reach around - would I be required by law to decorate one in such a manner with my artistic skills?

Kevin said...

Your conversation reads a lot like a Rush Limbaugh transcript. My conversation reads like court transcript.

Yet another example of attacking one's sophistication rather than their argument.

See also: "Jane, you ignorant slut!"

Sebastian said...

"This is a genuinely difficult case." After the progressive transvaluation of values, yes. Beforehand, the case would not have arisen. The supposed difficulty marks the decline.

""The Colorado Cake Case Is as Easy as Pie." What arrogance!" The arrogance is baked in. It is an inevitable feature of prog rule. Shock and indignation fail to Reckon with prog lust for power and control. Until The Reckoning about the depredations of progressivism starts in earnest, there will be many more occasions for nice midwestern emiriti profs to be shocked, shocked.

"He also goes on to speculate that Anthony Kennedy — who's distinguished himself as the author of the Court's gay rights cases — may vote for Phillips out of an urge to protect "the loser."" That's the "rule of law" for you in the U.S. today: it's the rule of Tony's urge.

LYNNDH said...

Sorry to say the baker is not going to win. I am torn on this. It harkens back to Civil Rights days and eating at the lunch counter. I do believe though that the gay couple had choices and they chose to be AH's.

Ann Althouse said...

"Can the State compel speech in the form of artistic output? Can one be forced to "bake that cake" when they have a religious objection to taking part in the specific ceremony?"

You would divide expression into 2 parts: religion-based and not-religion-based? You'd put viewpoint discrimination in the understanding of the right to free expression?

I have a problem with that.

Kevin said...

If your state doesn't have one of these laws, and one is being proposed (as is the case in my state of Michigan) fight hard against it, lest you find yourself in the position of Jack Philips.

Agreed. Protected class = special privileges = creation of superequal citizens.

james james said...

The cakes are a painting by Wayne Thiebaud.

From Wiki: "Thiebaud is averse to labels such as "fine art" versus "commercial art" and has described himself as "just an old-fashioned painter"

"fine art" versus "commercial art": an esoteric Art Question now in need of a Legal Answer.

Maybe Real Art is like Obscenity: I know it when I see it.

- james james

donald said...

This isn’t difficult at all. One person owns the bakery and another doesn’t.

gspencer said...

"Mom, Mom, it's my turn to lick the bowl. This time Janey can lick the egg beaters."

From fond memories past with my family.

David said...

As a Constitutional matter this case may be difficult. As a public policy matter it seems easy to me. The legislatures and the "commissions" could be more concerned with balancing the interests of both sides of the disputes, and the advocacy groups could approach these matters in a spirit of compromise rather than seeking total victory while demonizing other groups. The United States Supreme Court is not an institution well suited to fashion these compromises, both because of its design and its current membership.

Basically this case arises because of a failure of civic compromise at the local level.

sparrow said...

Good point Ann. Atheists have rights as well , do they loose the ability to refuse service because their objection is not faith based? Interesting I generally see this only from the bakers side but there's more to this. I think restricting the state compulsion in general is a good principle, but this runs afoul of civil rights law. Not as simple as it first appears.

Fritz said...

LYNNDH said...
Sorry to say the baker is not going to win. I am torn on this. It harkens back to Civil Rights days and eating at the lunch counter. I do believe though that the gay couple had choices and they chose to be AH's.


They wanted a case, not a cake.

James K said...

It seems to me a reasonable distinction is "bespoke" versus generic. No one should have a right to demand a bespoke product from someone else. "Public accommodations" should be limited to non-bespoke products or services offered for sale to the public. If anyone wants to get cute and say that this would apply to medical services or "Have it your way at Burger King," that can be handled easily enough.

gspencer said...

"Thou shalt be forced to celebrate, not merely tolerate, the intolerant."

Henry said...

Think of it this way: if a gay or straight couple came to my cake shop and ordered - in my view - a lewd or pornographic cake of them performing oral sex on each other - or maybe even a simple reach around - would I be required by law to decorate one in such a manner with my artistic skills?

If you advertised yourself as the pornographic cake artist with a history of making pornographic cakes, and you chose not to serve the couple that came in because of their sexual orientation, you might have a problem with the law.

Mike said...

You would divide expression into 2 parts: religion-based and not-religion-based? You'd put viewpoint discrimination in the understanding of the right to free expression?

The first sentence is a generalization that I would apply equally (like a law should be) and answer in the negative. That is, if a baker is asked to make a Nazi cake or a pedophile cake or a DNC fundraising cake then they should be allowed to demure. No reason needed. Just don't want to participate. No.

The second clause was more specific to the case in question. Again, the reason is not viewpoint discrimination. (Which isn't an issue for some reason when Muslim bakers turn down bar mitzva cakes, as have happened many times over the years we have been discussing "gay" cakes.) The issue is being able to choose the work you perform, and the ideas you promote.

My post above did not intend to conflate these two issues.

Kevin said...

You would divide expression into 2 parts: religion-based and not-religion-based? You'd put viewpoint discrimination in the understanding of the right to free expression?

Doing so means the plaintiffs can argue that the person really isn't religious, or religious enough, to receive the protection. It also involved the courts in what beliefs are and are not part of a particular religion.

Is that really the world in which we want to live?

Henry said...

David said...

As a Constitutional matter this case may be difficult. As a public policy matter it seems easy to me. The legislatures and the "commissions" could be more concerned with balancing the interests of both sides of the disputes, and the advocacy groups could approach these matters in a spirit of compromise rather than seeking total victory while demonizing other groups. The United States Supreme Court is not an institution well suited to fashion these compromises, both because of its design and its current membership.

Basically this case arises because of a failure of civic compromise at the local level.


Very well put.

It would be interesting if Colorado had a "except for assholes" caveat attached to its public accommodation laws, but that is not the case.

james james said...

The City Employee With The Weird Grin is happy lately. Above the Weird Grin there is now a noticeable twinkle to his eye. It probably isn't the particular eye twinkle of a child molester, but then it could be: I don't know.

He likes politics that go his way, and he believes politics now are starting to go his way. Or at least the people who's politics go the other way are being hurt: either / or. As I have said before, this is not an uncommon template for many to view the world. He is an example, not a particularly interesting one, but he is one of those who fit that template. And he is at the bar. So: proximity.

He sits at his usual table, with his usual friends -- I'll probably catalog them later, I assume. Anyway, he is showing the latest political memes on his iPhone. You can tell the ones he really likes: he reads those aloud. After two or three some of his friends say "Yeah, I saw that one," or stare off at the TV. The TV sound is off, but you don't really need sound to follow ESPN, the scroll on the bottom is enough. Like a Twitter feed with muted talking heads above it, the talking heads making jabby hand gestures for emphasis, and they indeed seem pretty emphatic by the constant hand gestures, but I digress.

The friends no doubt share most of his politics: it is Seattle. But they don't really share his passion for politics: it doesn't consume them. One is obsessed with video games, another is obsessed with women's feet. For examples. Again: I'll probably catalog them later, I assume.

I have mentioned before that we have become a Cut-and-Paste Nation. And the City Employee With The Weird Grin is a prime example. He will recite what his preferred websites say, he will repeat his favorite Tweets. You know what he thinks by what he quotes.

Usually one of the friends will change the subject. To anything that isn't politics, basically. This causes the rest of his table to become more animated, but he inevitably goes quiet and sulks for a few minutes. The others not sharing his passion is a little martyrdom he suffers for his --well --passion.

Sometimes I put the same word twice in a sentence because I like the recall of repetition. This time I just can't think of another word that I like better. I probably could cut-and-paste from a thesaurus, but: no.

- james james

LilyBart said...

Remember how the Gay activists asked, "How can letting gays marry possibly hurt you?"

Kevin said...

No one is arguing these days that Nazis must, or should, be accommodated.

It's like the counterpoint to the gay couple - you don't want to be forced to serve Nazis, do you? On the contrary, people want to out them on social media so they lose their friends, homes and jobs.

When Nazis become a protected class, we'll be on our way back to an equality-based society.

We'll also be on our way away from designating people a protected class. Because if Nazis get to be a protected class, that shit is going to end toot sweet!

rehajm said...

NYT believes Kennedy is a pliable fondant. They can whip him into stiff peaks.

Kevin said...

Anthony Kennedy — who's distinguished himself as the author of the Court's gay rights cases — may vote for Phillips out of an urge to protect "the loser."

At some point you have to realize you're voting to protect The Union itself.

Chuck said...

Althouse has it right; I agree that this is a difficult case. Made so, by the construct of the Colorado civil rights law and the accompanying commission.

When Lawrence and Obergefell were being decided (wrongly, and spectacularly so), Scalia had this portion embedded toward the end of his brilliant Lawrence dissent:

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so.

https://www.law.cornell.edu/supct/html/02-102.ZD.html

The federalism/democracy argument favored those duly- and popularly-enacted laws in Lawrence and Obergefell. Kennedy had to invent a Constitutional right to homosexual sodomy and homosexual marriage. The drafters of the Constitution and all of its amendments would have been dumbfounded by the result.

But here, Coloradans, through their elected representatives, did enact this "civil rights" law. They did, what Scalia invited them to do.

I might not be so upset to see Jack Philips lose his case, if it galvanized opposition to, and popular reversal of, all of the laws like the Colorado law.

David Docetad said...

This case has nothing to do with religion and nothing to do with art.

The cake baker has the right to refuse to bake a cake for anyone for any reason, just as the plumber or the lawyer has the right to refuse to take on a client for any reason.

It is as simple as pie.

Hunter said...

LilyBart said...
Remember how the Gay activists asked, "How can letting gays marry possibly hurt you?"

They meant regular people who assent and agree with them. If you're a bigoted homophobe, you deserve to be hurt. That's part of the deal.

I Have Misplaced My Pants said...

No reason needed. Just don't want to participate. No.

This should be the principle, in a free society. That's all that needs to be said.

Kevin said...

When Lawrence and Obergefell were being decided

There you go again, dropping the image of sodomy into a pleasant discussion about cake.

((shudder))

I Have Misplaced My Pants said...

Doing so means the plaintiffs can argue that the person really isn't religious, or religious enough, to receive the protection. It also involved the courts in what beliefs are and are not part of a particular religion.

Is that really the world in which we want to live?


No, it isn't, which is why Mike is correct in his comment which I quoted a moment ago.

LilyBart said...



How in the hell did we get to the point that the "feelings" of a few gay people trump the first amendment rights to free speech and free exercise of religion?

Kevin said...

No reason needed. Just don't want to participate. No.

You not only have the right to assemble, but will do so as compelled!

Sincerely,
The Sophisticates

Johanna Lapp said...

No better foundation for a lifetime of happiness than a mouthful of spite.

We decided instead on a cake baked with love.

Henry said...

Is that really the world in which we want to live?

It is the world in which we live. To take a different case, the court decided in favor of Hobby Lobby based on the evidence that the Green family did embed their Christian beliefs into the way the ran their corporation. If the Greens had been more cavalier about applying their beliefs they would not have won the case.

Any individual, organization, or corporation seeking redress under RFRA has to demonstrate that their request is sincerely representative of their religious beliefs.

Dust Bunny Queen said...

The federal government argues that public-accommodations laws like Colorado’s will generally pass constitutional muster, because they normally only regulate discrimination in providing goods and services – conduct that is not protected by the First Amendment – rather than expression....

Those would be goods and services that are generically available to the public and which are not customized, individual works or by contract only. Lunch at a diner. A dozen glazed donuts. Mass produced tee shirts in a store. Yes. Anyone and everyone should have access to those things.

NOT. A catered luncheon with gourmet foods requested by the buyer. A special order wedding cake. Tee shirt with custom art work designed and printed for the customer.

Those are not public or publicly offered but are only by contract or special design. The artist has a right to decline to design and create their works of art.....for ANY reason.

Mike said...

It ain't simple.

Which is why I find myself in agreement with Chuck and thankful for Misplaced Pants. At heart I don't believe in "protected class" as a thing that should be perpetuated in a country where "all are equal before the law." This is exactly what opposition to the 1964 CRA spelled out, a fear that some people in the future would be "more equal than others" in an attempt to correct the past. Now that concept of a "protected class" has been distorted to cover the most coddled, celebrated, and high-status people this culture can produce.

This case won't resolve these problems. But, like Chuck, I think the loss here may turn the tide to addressing the problem at the heart of this case: some animals are more equal than others.

traditionalguy said...

Everyone is exactly equal or else we will arrest you. That is not reality. But it is a standard that makes everyone guilty all of the time. Lawyers will have to be hired and paid and paid and paid.

Make lawyers great again. And making our wealth equal will require several Supreme Court decisions. Let loose the dogs of legal wars.

Paddy O said...

Besides the question "what is art?" I think another huge question is "what is religion?" There's a significant imbalance in rights based on how that term is defined. If we assume that religion must include some deity, then some orienting philosophies are privileged as being 'objective.' However, if religion is really more of a set of beliefs about human behavior, thriving, and fulfillment (as it really should be defined in our era), then there's really competing religious perspectives at work. That religion is understood as requiring a deity is really a Western conceit.

Kate said...

"How in the hell did we get to the point that the "feelings" of a few gay people trump the first amendment rights to free speech and free exercise of religion?"

I believe Justice Kennedy got us here. And now people guess he will try to make amends by ruling for the cake guy. Did he honestly not see this case would be the consequence of his previous opinion about gay marriage? When he claimed that bigoted animus was the only reason for dissent, was he thinking at all?

Mike said...

Those are not public or publicly offered but are only by contract or special design. The artist has a right to decline to design and create their works of art.....for ANY reason.

Yes. Often overlooked in this discussion. Very much like "off the rack" vs. designer duds. One requires participation, not just goods and services. But this may be too subtle a distinction for the legal minds at SCOTUS.

Mark Jones said...

I don't find this case difficult at all. It's about Freedom of Association. The bakers would like to be free to choose NOT to associate with gay weddings. They should have that freedom. That doesn't give them any power to prohibit gay weddings, or to prevent the would-be customers from finding a more agreeable baker, it only means THEY can't be coerced into participating in a celebration to which they object.

Dust Bunny Queen said...

NOT. A catered luncheon with gourmet foods requested by the buyer. A special order wedding cake. Tee shirt with custom art work designed and printed for the customer.

To expand...these are one off, created works...not generic and publicly available to anyone at anytime types of goods and services.

Do we force the kosher deli to cater an event with NON kosher foods? The strict Muslim to do a Hawaiian roasted pig luau?

Can we make the baker produce a pro Nazi, Hitler themed wedding cake? Don't laugh. It could happen.

Force the tee shirt artist to depict animal torture or disemboweled babies?

Other than the first example the reasons to decline do NOT have to be religious based.

(and what is UP with all the conflicting edits Blogger??)

YoungHegelian said...

Fugget 'bout dis constitutional rights bizness! Let's talk statutory law.

Am I missing something or aren't situations like this covered by the Religious Freedom Restoration Act? Every time I hear some asshole say "So, you think that having faith means you get to break the law with impunity?", I say "You mean, like distribution & possession of peyote? That kind of law? Seemingly, yes it does."

If a bunch of Native Americans get to commit multiple felonious with prohibited substances in their protected beliefs, why can't some Christian get to mix up some baking goods & get protected in his completely mainline, standard issue, Christian faith?

LilyBart said...


After Obergefell, people said that "Love Wins". And, frankly, I'm not against SSM because freedom.

But if Masterpiece wins, we can all say, "Freedom Wins!"

Assrat said...

Am I just paranoid? The last thing I'd want to do is compel someone to make something for me to eat.

YoungHegelian said...

@DBQ,

(and what is UP with all the conflicting edits Blogger??)

Momma, dat be the troof!

To all would be posters, be thee warned: save a copy of your posting in the cut/paste buffer before you try & post it, lest it be felled by a conflicting edit & ye be left with naught!

Kevin said...

Part of that arrogance — the part that offends me the most — is the high-low distinction in art. I'm very interested is hearing whether the Supreme Court gets into the matter of setting Jack Phillips apart from "real" artists and devaluing his expression because it is in butter-sugar.

Court rules bikini baristas are real artists: "Moreover, in certain scenarios, bikinis can convey the very type of political speech that lies at the core of the First Amendment."

"U.S. District Court Judge Marsha Pechman wrote that the city’s rules “are likely void for vagueness under the 14th Amendment and that they “fail to provide clear guidance and raise risks of arbitrary enforcement.” The judge also says that the dress code — an attempt by the city to get baristas to wear at least a tank top and shorts — likely violates the baristas’ right of free expression under the First Amendment.

The baristas’ lawyer argued in court last month that the city shouldn’t be able to regulate clothing and that there was an “art form” to being a bikini barista."

http://komonews.com/news/local/judge-sides-with-bikini-baristas-grants-injunction

Inga said...

Just remember, the can of worms you want opened, will allow for a Muslim cab driver to legally prohibit you from riding in his cab with a dog or a bottle of alcohol. The male Hasidic Jew won’t be prohibited from demanding to be moved if he’s seated next to a woman, and more that will surely crop up if religious bias is made legal.

I Have Misplaced My Pants said...

I don't find this case difficult at all. It's about Freedom of Association. The bakers would like to be free to choose NOT to associate with gay weddings. They should have that freedom. That doesn't give them any power to prohibit gay weddings, or to prevent the would-be customers from finding a more agreeable baker, it only means THEY can't be coerced into participating in a celebration to which they object.

I agree 150%. This should be easy. It should go like this: The _____________ would like to be free to choose NOT to associate with ______________.

It is morally wrong and antithetical to liberty to compel or prevent anyone's participation or association.

Chuck said...

LilyBart said...

After Obergefell, people said that "Love Wins". And, frankly, I'm not against SSM because freedom.

After Obergerfell, this is what Chief Justice Roberts said:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

I respectfully dissent.

Quaestor said...

... Anthony Kennedy — who's distinguished himself as the author of the Court's gay rights cases — may vote for Phillips out of an urge to protect "the loser.

A justice who decides cases based on his "urges" should resign or be impeached.

Sydney said...

I am puzzled by the idea that a wedding cake is not a piece of art. It seems obvious to me that it is. It is a commissioned piece of art, just as a painting or a scultpure would be. The only difference is that it is not permanent. If you can not force a painter or a sculptor or a song writer or playwright to create something for you for a specific event, then you can not force a wedding cake baker to create something for you for a specific event.

Sydney said...

Slightly off topic, but kind of related. There seems to be no legal controversy when a songwriter refuses to allow a politician to use his music because he dooesn't like the politician. It is refusing to sell your product to someone because you simply dislike them. Why is that not illegal?

Darrell said...

Declare your bakery to be a Sanctuary Bakery. Then you can do anything you fucking want to do regardless of Federal, State, or Local law.

And Muslim cab drivers have been banning people with alcohol or dogs for years. Write to your Taxi Commission if you have a problem with that-- and get a form letter for your troubles.

hombre said...

It is hard to believe that my son, a Christian videographer in the "land of the free" and the First Amendment, can be compelled to choose between losing his business or plying his trade and his talent to support an event that insults his God and his faith.

Screw the "art" nonsense. The issue is involuntary servitude that "prohibits the free exercise of [his] religion."

Kennedy, the lovebug, has an opportunity to mitigate his fate here. Otherwise he will likely join Blackmun in the netherworld.

Ignorance is Bliss said...

YoungHegelian said...

Am I missing something or aren't situations like this covered by the Religious Freedom Restoration Act?

You are missing something: RFRA applies to the federal government, not to the states. This is a case about state law. Some states have their own law equivalent to the RFRA, Colorado does not.

EDH said...

I still believe the best way to analyze this case is if the baker said, "Oh, you want our 'You're Going to Burn in Hell for All Eternity' Cake." At that point, the government would have to compel speech from the baker in order to obtain the desired result for the complainant by ordering the baker to change his artistic expression.

Also, look at the major civil rights cases like Heart of Atlanta. 379 U.S. 241 (1964). That decision included extensive congressional findings that such discrimination was pervasive and seriously impaired the fundamental right of interstate travel.

This testimony included the fact that our people have become increasingly mobile, with millions of people of all races traveling from State to State; that Negroes in particular have been the subject of discrimination in transient accommodations, having to travel great distances to secure the same; that often they have been unable to obtain accommodations, and have had to call upon friends to put them up overnight, S.Rep. No. 872, supra, at 14-22, and that these conditions had become so acute as to require the listing of available lodging for Negroes in a special guidebook which was itself "dramatic testimony to the difficulties" Negroes encounter in travel. Senate Commerce Committee Hearings, supra, at 692-694.

Is anyone suggesting that gay couples similarly cannot find a nearby bakery that is willing to bake their cake, or that such refusal to decorate seriously interferes with the right to marry?

I Have Misplaced My Pants said...

The baristas’ lawyer argued in court last month that the city shouldn’t be able to regulate clothing and that there was an “art form” to being a bikini barista."

I'm glad that they won, but they should not have had to argue this. If the business owner and the employees want to feature/be bikini baristas, whatever. It's the public's choice to patronize the place or not.

Just remember, the can of worms you want opened, will allow for a Muslim cab driver to legally prohibit you from riding in his cab with a dog or a bottle of alcohol. The male Hasidic Jew won’t be prohibited from demanding to be moved if he’s seated next to a woman, and more that will surely crop up if religious bias is made legal.

I, for one, am OK with that. I can tolerate other people's wacky beliefs if they don't threaten my life and limb. There are lots of cabs, not to mention Uber where Mister No Alcohol wouldn't last a day, and Mister Hasidic can move away from me on a plane if he wants to; whatever. I don't require everyone to like or validate my life choices or want to hang out with me. It's fine; it's their problem and I'll go about my business hanging out with and patronizing people who do like and want to do business with me.

Oso Negro said...

Oh, Ms. Pants - This argument has distressed our hostess deeply in the past. Everyone gets the vapors if you insert "negroes" in the second blank. Because Civil Rights Act.

Dust Bunny Queen said...

Inga--------Just remember, the can of worms you want opened, will allow for a Muslim cab driver to legally prohibit you from riding in his cab with a dog or a bottle of alcohol. The male Hasidic Jew won’t be prohibited from demanding to be moved if he’s seated next to a woman, and more that will surely crop up if religious bias is made legal.

Once again missing the point(s) by a flipping MILE.

The first example the taxi driver) you put out is one of public accommodation. Everyone is entitled to use a taxi. Unless you are presenting a real danger or are breaking the rules of conduct in the public accommodation you get to use the service. Drunk, unruly, puking, going to rob the cab driver....not so much. The driver's personal choices of religion or preference in how you are dressed etc.....don't get to trump the PUBLIC generic service.

You don't get to ride in MY car because I am not a public service but you do get to use a taxi no matter who you are.

The other, getting pissy about having to sit next to someone, is a matter of choice and public accommodation to the other passengers. If the public is able to access the vehicle/plane/taxi, then there cannot be special conditions based on your own personal choices that inconvenience the rest of the public. Choosing to NOT want to sit next to a woman, person of color (as was the case in the Jim Crow South), or any one else, is YOUR choice. You don't have the right to force other people to cater to your personal choices.

Public accommodation exceptions are of course made for the handicapped as being in a wheelchair or otherwise disabled is NOT (generally) a choice.

Jason said...

No, this is not a “difficult case.” Not even remotely.

This is another example of Professor Althouse shedding 30 IQ points whenever there’s an issue involving gays.

AZ Bob said...

It is a difficult case and Althouse appreciates nuance like a good law professor should.

AZ Bob said...

But I agree with Jason in that it should not be a difficult case.

Unknown said...

If it were me, I'd be making a 13th amendment argument here. What is being proposed is nothing less than enslaving people. If I can be compelled to work for someone else and I have no choice, is that not slavery?

It's no surprise Democrats like Inga are so heavily in favor of it--they always did love enslaving people.

Consider: in the antebellum south, why were blacks slaves? Because they were compelled by force of law to work for the protected class of the day: the white plantation owners. If a black refused, the state would enforce the law and ultimately could and probably would put the black to death.

The difference was that a black person could be freed; could become a plantation owner himself; could even own slaves. Today's LGBT overlords would never permit that!

Today, a Christian business owner must provide work; he has no choice! He must labor. The fact that he may get paid is of no consequence; the black slaves were also given room and board and, yes, health care for free. Some of them got a paycheck as well (rare, I admit, but some did).

Can a Christian refuse an LGBT customer on any grounds? Or is that a guarantee of his business being destroyed? It's the latter.

So: involuntary servitude--the LGBT crowd is the slaveowners, and Christians the slaves. That's the world Inga and the left are going for. And if you don't want to be a slave, well, you are a bigot hater and should be punished!!!!! Right Inga?

--Vance

Trumpit said...

I have it on good authority that Charlie Manson ordered from prison a red velvet cake for Christmas with the permission of the warden. He said that he'd share the cake with his fellow inmates. He tried to purchase separately, off of Ebay, a pregnant barbie doll and a miniature knife. Manson said that he wanted to decorate the cake with the items. The warden stopped the purchase from happening for reasons known only to him. You can see the doll for yourself here:
http://www.ebay.com/itm/like/263160452369

eric said...

Blogger Inga said...
Just remember, the can of worms you want opened, will allow for a Muslim cab driver to legally prohibit you from riding in his cab with a dog or a bottle of alcohol. The male Hasidic Jew won’t be prohibited from demanding to be moved if he’s seated next to a woman, and more that will surely crop up if religious bias is made legal.


I hope you are right.

We made a wrong turn many years ago. If you aren't working for the government, you ought to have complete freedom of association.

AlbertAnonymous said...

Don't know if everyone knows this but the mother of one of the gay guys was also at the cake shop for the meeting where they were (politely) told that the baker would not make a cake for a gay wedding. She didn't sue, but I wondered what would happen if she had (she's not gay).

So here's my thought experiment:

1. Gay couple sues to force the baker to make the cake (this case). What result?
2. Mother (not gay) sues to force the baker to make the cake. What result?
3. Next customer (not gay) requests "burn in hell fags" cake, is refused. What result?
4. Next customer (gay) requests "Eat Shit U Hetero Fuckers" cake, is refused. What result?

Show your work.

Big Mike said...

We need a baker who is like Seinfeld's Soup Nazi. “You are too ugly! No cake for you!”

eric said...

Ian Millhiser @imillhiser on Twitter just tweeted out, "Terrible argument for pro-equality side. Kennedy all but sure to side with anti-gay Baker."

He seems upset.

James K said...

But here, Coloradans, through their elected representatives, did enact this "civil rights" law. They did, what Scalia invited them to do.

I disagree. Where did Scalia invite them to pass a law that infringes on the religious freedom of its citizens?

exiledonmainstreet said...

Blogger I Have Misplaced My Pants said...

I, for one, am OK with that. I can tolerate other people's wacky beliefs if they don't threaten my life and limb. There are lots of cabs, not to mention Uber where Mister No Alcohol wouldn't last a day, and Mister Hasidic can move away from me on a plane if he wants to; whatever. I don't require everyone to like or validate my life choices or want to hang out with me. It's fine; it's their problem and I'll go about my business hanging out with and patronizing people who do like and want to do business with me.

12/5/17, 10:28 AM

This.

I don't care what the religious beliefs of Muslims or Jews are. I care about other people's religion when they make a habit of killing other people with different beliefs.

It's astounding to me that liberals are more offended by a Christian baker refusing to bake a wedding cake for gays then they are by Muslims who throw gays off buildings in the Middle East.

James K said...

Just remember, the can of worms you want opened, will allow for a Muslim cab driver to legally prohibit you from riding in his cab with a dog or a bottle of alcohol. The male Hasidic Jew won’t be prohibited from demanding to be moved if he’s seated next to a woman, and more that will surely crop up if religious bias is made legal.


Neither of these is analogous to a bespoke product like a wedding cake. A taxi ride is no more custom-made than going to Burger King and saying "Hold the lettuce." It's a generic transportation service open to anyone. Same for the airline. The service does not include special seating requests. It shouldn't be hard to make those distinctions.

Matthew Sablan said...

"It shouldn't be hard to make those distinctions."

-- This is why arguments by analogies are almost always a dangerous thing.

HoodlumDoodlum said...

Ann Althouse said..."Can the State compel speech in the form of artistic output? Can one be forced to "bake that cake" when they have a religious objection to taking part in the specific ceremony?"

You would divide expression into 2 parts: religion-based and not-religion-based? You'd put viewpoint discrimination in the understanding of the right to free expression?

I have a problem with that.


We're already there, though, aren't we? One of the briefs for this case apparently documents that the state has allowed some bakeries to refuse to bake/make cakes with anti-gay messages (some activists requested those to make a point). I think the distinction the Court will make is that it's ok for an artist to refuse to write a specific message...but since a wedding cake itself both is and conveys a message I personally don't buy that as a line.
Anyway if the state currently says that it's ok for an artist to refuse to make/express certain messages (when requested by a customer) but not others then they're already doing viewpoint discrimination (by making "the rules" different for different viewpoints).

Paddy O said...

If you get a "conflicting edit" screen, hit reload on the browser. The post then posts.

Paddy O said...

As an example, that last post had a conflicting edit, I hit reload, and it posted with no problem.

Whatever you do, don't hit the back button. Google is giving bad advice.

johns said...

If the baker loses this case, and more gay couples come to ask him to bake them cakes, can he be sued if he bakes sloppy, ugly cakes for them?

Henry said...

One thing this thread makes clear is that none of us know anything about constitutional law. The living constitution is nothing compared to the totemic constitution.

buwaya said...

The law is an ass.
Because the law is an illusion.
Its all an elaborate rationalization for power relations.
The cake business is a dominance display, thats all.
If you want to know who wins, it depends on who has the $, ultimately. Judge that and you can predict the outcome.

EDH said...

How's this for government compelled behavior?

Man says cops ordered him to cut off his dog’s head or go to jail

Nate Goodwin says Crawford County deputies told him he needed to decapitate his dead pit bull or go to jail. His dog Big Boy was shot and killed earlier by a deputy after it bit a neighbor and lunged toward the deputy.

Blood stains at the end of the Crawford County, Georgia driveway had been covered up with sand Monday in the spot where a dog was beheaded with a kitchen knife early evening Friday.

Clumps of dog hair were still visible on the blood-soaked blue collar nearby.

Joe Nate Goodwin says he decapitated his 2-year-old dog at the behest of the sheriff’s deputies, who had been called out to the house earlier in the day after a neighbor was bitten on the leg...

On Monday, Goodwin told The Telegraph that the officers offered him the option to call a veterinarian and pay to have the head removed. However, with three young children around Christmas time, money is tight.


I can see authorities ceasing the dog body for rabies testing, but requiring the owner to cut off the head himself in the driveway?

n.n said...

Transgender marriage.

The bakers do and will make the cake. The issue is whether they can be forced to normalize/promote/celebrate political congruence ("="). Social liberals will have to do better than cite the Pro-Choice precedent in order to justify PC.

MaxedOutMama said...

I think that if Kennedy can find a way to make it a narrow ruling he will go with Philips. Kennedy's "protective" jurisprudence is one thing I have always admired about him.

Freeman Hunt said...

Some undeniably great artist who cares about free speech should make a great work out of frosting and eat it.

Freeman Hunt said...

If I were a great artist, I would begin on that project today, but, alas, I am not.

Big Mike said...

I cannot help but think that Phillips would have been in stronger — maybe unassailable — grounds if he had baked them a cake but given it to them undecorated.

n.n said...

Corporations for all. I now pronounce you incorporated. No progressive bigotry (i.e. sanctimonious hypocrisy) or judgment required. No social liberalism (i.e. divergence) or quasi-religious apology required. A baby would be classified as an asset of the corporation, which could be reduced, reused, or recycled at will. No appeals to the twilight fringe and denial of evolution required. We don't have to live in a Pro-Choice, Pro-Choice, Pro-Choice, Pro-Choice world.

Freeman Hunt said...

The most bothersome element of this entire case is that some bureaucrat somewhere might be allowed to define art and artistic media. That idea is appalling.

Matthew Sablan said...

"I can see authorities ceasing the dog body for rabies testing, but requiring the owner to cut off the head himself in the driveway?"

-- I can have sympathy for shooting a dog lunging at you, especially one you know already bit someone. But that? That's just messed up.

Big Mike said...

I'm very interested in hearing whether the Supreme Court gets into the matter of setting Jack Phillips apart from "real" artists and devaluing his expression because it is in butter-sugar.

Didn’t the courts rule that a painting of the Virgin Mary made with dung is still art? Aside from flavor, why would it be different to say that the art is done with sugar and butter?

Larry J said...

Seeing as how the supreme court (not capitalized on purpose) has ruled that flag burning and pornography are covered by the First Amendment, it would seem inconsistent for them to rule that decorative cakes aren't. But then, expecting the supreme court to respect individual rights is a dubious proposition these days.

Amadeus 48 said...

"He also goes on to speculate that Anthony Kennedy — who's distinguished himself as the author of the Court's gay rights cases — may vote for Phillips out of an urge to protect 'the loser.'"

I think this analysis of Kennedy's jurisprudence is facile and stupid. It is pretty clear that Kennedy has a proclivity for defending the right of individuals to self-expression and liberty, and is adverse to the government's attempts to squash outliers into conforming boxes. His articulation can be quite woolly, but he explains himself in terms of the rights of an individual to self-definition and self-expression. If he comes down on the side of the baker, it will be because of that line of thinking, not because of some emotive sympathy for a "loser", whatever Liptak means by that word.

Gospace said...

It's only a difficult case if you're trying to decide if Christians should be sent to reeducation camps or simply death camps. If you follow the Constitution, it's really easy. You find for all the baker's and florists.

R.J. Chatt said...

I don't think the issue of whether cake baking can be an art form will come into question. What is art? Art is whatever the "artist" says it is. If you don't agree you are entitled to your opinion as well. You don't have to buy that art.

Bottom line you can't force someone to do something they find objectionable, something that goes against their strongly held beliefs. Any employer has to find a reasonable accomodation for employees whose religious beliefs are in conflict with their duties. That's the law already.

What if the baker had a rack of already made wedding cakes? Could he refuse to sell one to a gay couple? No, I don't think so. That's why the issue of how artistic the baker is irrelevant. This baker who is being sued would or should refuse to sell any cake to the gay couple, if he's being consistent about him being unable to validate gay marriage; and that would be discrimination.

IMO, the gay couple and the LGBT political activists have done the movement a huge disservice. The couple felt disrespected but instead of being understanding of the baker, they in their "sensitivity" want to put him out of business? What happened to live and let live?

Paddy O said...

On Creative Galaxy, a Amazon produced cartoon my son loves, there's a whole episode on how food can be art. There's even a song. I think it's the first episode of the second season.

It's one of those things everyone knows is true and teaches in all sorts of places, until it's politically or religiously inconvenient.

Ralph L said...

If Phillips wouldn't sell them one of his standard cakes, they'd have a case.

Is a hotel required to accommodate a guest who wants a channel on his TV which the owner prohibits?

Bruce Hayden said...

“I am puzzled by the idea that a wedding cake is not a piece of art. It seems obvious to me that it is. It is a commissioned piece of art, just as a painting or a scultpure would be. The only difference is that it is not permanent. If you can not force a painter or a sculptor or a song writer or playwright to create something for you for a specific event, then you can not force a wedding cake baker to create something for you for a specific event.”

My partner would clearly agree. Her first husband was an executive chef at a big name resort, and the executive pastry chef did the big wedding cakes. French trained, he was an artist. He painted with frosting, often spending hours getting his vision just right. The only times in her life that she liked a lot of sweets were her pregnancies, and he would send home his creations every week. Even the decorations on his cheesecakes were Devine, as was, apparently, the taste. Point is that he probably would have covered you with cake, in a fit of French pique, if you ever insulted him to his face that his creations, and esp his wedding cakes, were not art.

Matthew Sablan said...

"This baker who is being sued would or should refuse to sell any cake to the gay couple, if he's being consistent about him being unable to validate gay marriage; and that would be discrimination."

-- There's a huge difference between buying something from the store that's pre-made and asking for a cake decorator/baker to spend hours of their time personalizing a cake for you. Wedding cakes can be incredibly personal/personalized, sometimes with the bakers even sitting down and interviewing the people getting married to get inspiration.

It's one thing to buy a cake off the shelf, another to give that level of attention to the wedding. People routinely thank their bakers, florists, etc., for being part of the service and making the day memorable--so I think there's a clear understanding or room for understanding that those people *approve* of the marriage.

Ralph L said...

Althouse needs her own server. Besides Meade.

eddie willers said...

We have gone from tolerance to mandatory celebration the past 25 years.

Cue Bob Hope joke:

“I’ve just flown in from California, where they’ve made homosexuality legal. I thought I’d get out before they make it compulsory.”

narayanan said...

forcing participation in a wedding - how is that different from sexual harassment - being made witness to splooging into pots?

Jack Wayne said...

This is not a hard case and it is being mis-represented as a free speech/religion case. It is a business case where the state gets to rule that buyers have more rights than sellers. The slippery slope of civil rights is revealed as a chasm, leading to chaos.

R.J. Chatt said...

I've been reviewing the synopsis of the arguments at wsj and both sides are pretty nuts and unreasonable, illogical. I'm not impressed. I'm more impressed by the reasoned arguments made here.

For example, the baker does refuse to sell any wedding cakes to same sex couples, so the whole argument about him having some non-specific wedding cakes as opposed to special artistic creations is mute. He's stopped selling wedding cakes altogether, which has cost him about 40% of his business. (" He also argues that being required to sell gay couples the same wedding cakes he offers other customers violates his right to freely exercise a religion that considers same-sex marriage a sacrilege." Kristen Waggoner) But then the same lawyer goes on about how the baker is an artist and every cake is a work of art but florist, printers, hair stylists, etc. aren't real artists. Bull. The lawyer who knows nothing about art or art history is trying to define what is art and not. Kind of silly.

The U.S. Solicitor General Noel Francisco arguing in support of the baker claims that there's some easy formula for determining what is a public accomodation and expressive speech. Really? So many speciality shops providing unique services and products would argue otherwise. Then to add insult to injury he also argues that, "Eradicating racial discrimination is the most compelling of state interests, while eradicating opposition to same-sex marriage is not." Gee, thanks but no thanks for telling gay people their rights are not necessary or valued.

I had favored the baker in this case but considering the arguments being presented I'd say screw it.

Jason said...

These are private contractual transactions negotiated between two parties. These cases don't even involve public accommodations.

Claiming 'First amendment' or 'religious freedom' exemptions isn't even broad enough. The same issue would come up for a caterer providing napkin rings.

Artistic expression has fuck all to do with it. This is about economic liberty. Not art. It does liberty little good to win a narrow ruling to protect artists and through all orther vendors and craftsmen to the wolves. The state is trying to compel an individual to enter into a contract for services to which he objects.

If I'm a janitorial services company, a locksmith company, an HVAC repair company, an electrician or a plumber, and 'artistic expression has nothing to do with my services, I still assert the freedom to turn down a contract with Planned Parenthood. Why? because I want no association whatsoever with them.

I don't want to see them.
I don't want to be obligated to take their calls.
I don't want to be asking them for money every month.
I don't want to put my employees in the position of having to walk in their abortion rooms to do their work.
I don't want my work van with my name and logo on it sitting in their parking lot.
I don't want anything to do with them.

I assert that right.

If someone wants to know why, I also assert the right to say nothing. Or tell that person the reasons are not their concern.

Let's go further: I can own a business that is normally a place of public accommodation. A restaurant, with a big room in the back I can use for banquets. I will happily serve anyone who walks in in normal street clothing of whatever ethnicity who just wants a meal, without making me and my business a part of their cause.

I reserve the right to refuse to rent my banquet hall for an event to which I object. For any reason.

And no, it's not just Planned Parenthood.

And that list and those reasons can be different for everybody.

The libtards, as usual, are beyond stupid on this issue. The sad thing is, they've dragged people into that intellectual sewer with them on this issue who should know better.

Chuck said...

Jason;
All that long blather about who you don't want to associate with; you have no worries. Because there is no law against private discrimination based on ideology.

There ARE laws prohibiting discrimination based on race, or gender, or national origin or even (ironically) religion. A vast, broad patchwork of local, state and federal laws. Like the federal Civil Rights Act of 1964. Like the human rights ordinances in lefty urban enclaves like Chicago and San Francisco. And, like the Colorado Anti-Discrimination Act (CADA) that was the basis for the penalty imposed on Jack Phillips and consequently this litigation.

There is no non-discrimination act, that I know of, for Planned Parenthood or whatever other "libtard" organization that is tormenting you in your dreams.

So once again I say that if you don't like this case involving Masterpiece Cake Shop, than urge your representatives to NEVER pass laws like CADA. There's your answer to the problem posed in this case. It's up to voters. No federal judges needed.

Jason said...

WHOOOOOSH!!!!

That was the sound of the argument sailing over dumbass Chuck’s head.

Jason said...

Inga: Just remember, the can of worms you want opened, will allow for a Muslim cab driver to legally prohibit you from riding in his cab with a dog or a bottle of alcohol. The male Hasidic Jew won’t be prohibited from demanding to be moved if he’s seated next to a woman, and more that will surely crop up if religious bias is made legal.

I am 100 percent fine with all the above, with the general exception of service animals as defined by the ADA. Which is the law we have now, anyway, and is generally enforced.

Nevertheless, Imagine being so twisted by libtard happy-face fascism that you can't grasp that in a free society, individual liberty is a feature not a bug.

Anonymous said...

"Remember how the Gay activists asked, "How can letting gays marry possibly hurt you?""

I remember when they swore they weren't interested in interfering with anyone's religious freedoms.

Of course we knew then they were lying. Taking away the right to refrain from profaning what is sacred is the whole point. Only the government can or should decide what is profane and what is sacred, and they'll let you know what you must or can't believe.

ceowens said...

My FFL, and yours too, does not have to sell you a gun if he (she) does not like the color of your shoelaces.