"There are only 3 cases left from the fall, and they are all big ones: Gill v. Whitford (which Roberts is likely to be writing, assuming the Court follows its normal opinion-assignment practices); Carpenter v. US, and Masterpiece Cakeshop. The conventional wisdom is that Kennedy and Roberts are also writing Masterpiece, although no way to know which is which."
Says SCOTUSblog, live-blogging doings at the Supreme Court this morning.
Maybe something big will happen this morning. If so, I won't get to it for a few hours, and this will be a place where you can get the conversation started without me.
YIKES: It's very hard for me to turn away from this. There are 2 boxes of opinions, suggesting 2 cases....
June 4, 2018
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124 comments:
If I knew you we're comin'...
...oh wait. No I don't have to...
Masterpiece reversed.
The baker won. Gay and liberal fury to follow.
But SCOTUS got Oil States wrong. Trillion dollar error.
That consideration was compromised, however, by the Commis- sion’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs moti- vating his objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Hol- ocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impar- tiality of the Commission’s adjudication of Phillips’ case.
Supreme court is just regular court with sour cream and tomatoes.
..so if you treat the assholes more fairly next time you'll get your way!
Glad Masterpiece was reversed, pretty big decision 7-2 is pretty decisive these days.
There will be much wailing and gnashing of teeth. It will be fun!
It feels like SCOTUS punted. Baker will be re-sued, run up more costs, and CO will punish them for wrong thik.
Why didn't they simply say "you can't compel someone to enter into a contract?" (Contract meaning, in this case, an agreement to create a custom cake?) Too broad a ruling? I mean, I go to a roofer, and I can't make him fix my roof, even if I am willing to pay. He has to agree to do the work (and he can have many, many reasons from schedule, distance, vacations, etc to not want to do the work in the way I wan't it done, even if the cost is basically determined by materials, condition and design. He may even not want to work on Victorian Homes due to a phobia).
Kagan's in for a lashing in the leftie op-eds.
Kristian,
You should google the recent case in Ontario, Canada. A Muslim woman is being taken to a kangaroo court for not giving a Brazilian wax of a customer's penis.
You baked your cake now lie in it.
Gretchen said...
Glad Masterpiece was reversed, pretty big decision 7-2 is pretty decisive these days.
It is decisive*, but only on a narrow issue of if he got a fair hearing. It does not answer the question about if he can be required to bake a cake for same-sex wedding.
*Of course, all decisions are, by definition, decisive.
Kristian,
You should google the recent case in Ontario, Canada. A Muslim woman is being taken to a kangaroo court for not giving a Brazilian wax of a customer's penis.
Canada. Like UK, not nearly as respectful of individual liberties.
7-2 for the bakery = good sign of Justice prevailing. So which liberal voted honestly?
So the next time you have to bake the cake they'll use nice words to describe your refusal.
Kristian Holvoet said...
...I go to a roofer, and I can't make him fix my roof, even if I am willing to pay. He has to agree to do the work (and he can have many, many reasons...to not want to do the work...
True. But there are reasons that he is not legally allowed to use. For example, he can't refuse to fix your roof because you are black, or a woman, or old. Not sure about other places, but at least in Colorado, he couldn't refuse because you were gay.
The commission is arguing that the baker refused because the customers were gay. I think this framing is incorrect. I'm pretty sure the baker would have refused to bake a cake for two heterosexual men who were marrying each other (for example, if one wanted to help the other by getting him insurance coverage.) Likewise, the baker probably would have baked a cake for a homosexual man marrying a lesbian.
Thus, no discrimination based on sexual orientation.
The weighing of Constitutional Rights is not easy. What I am hearing is that the court says that religious rights are important too. The whole process will start over.
What some people forget is that the cake shop was agreeable to sell anything already in the case to the gay couple. They just didn't want to be forced to create a special cake for the wedding.
...I go to a roofer, and I can't make him fix my roof, even if I am willing to pay. He has to agree to do the work (and he can have many, many reasons...to not want to do the work...
True. But there are reasons that he is not legally allowed to use.
See, this is where I have the issue. There should be essentially NO reason a person must enter into a contract. It is and AGREEMENT, not a COMPULSION.
Now, if an employee refuses, but the employer agrees, the employee can be fired (Catholic Nurse need not apply to Planned Parenthood, and I am okay with that, conversely abortion evangelist (pun intended) need not apply to a Catholic Hospital). Further, for pre-made, mass market, generic, what have you, that you put up, anyone who meets the price can buy it (cakes in a super market), though the super market need not modify it, though they can).
I think the Colorado "Civil Rights" commissioners who called the baker a Nazi for refusing to take part in a gay wedding was a factor in getting two of the liberals to vote with the majority. It does seem to leave wiggle room for other ways to make these bakers toe the line in the future. But for now, religious liberty is safer than it was yesterday. One cannot be compelled to create speech by the State.
"The commission is arguing that the baker refused because the customers were gay."
In addition to doing justice for a change, the Court also punctures this particular instance of prog dishonesty.
What some people forget is that the cake shop was agreeable to sell anything already in the case to the gay couple. They just didn't want to be forced to create a special cake for the wedding.
What happens with the Oregon case now ? The ALJ assessed a killing fine on that cake baker.
"The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market," Kennedy said.
Look how CNBC reports it:
"President Donald Trump's administration intervened in the case in support of Phillips."
Intervened?
How did Trump intervene in the Supreme Court's decision? Did he go into their chambers and tell them how to rule? Is this what CNBC is saying?
DNC media. all the way up and down.
The Colorado baker wins!
"Civil Rights Commission." Here's your civil rights: Submit, Conform, Obey.
I mean, I an introvert, and I strongly want the right to say, f' right off, I don't want to deal with you for whatever damn reason I feel like. Also, get the f' my lawn.
mockturtle said...
The Colorado baker wins!
Narrowly.
"How did Trump intervene in the Supreme Court's decision?"
Trump called Putin who called his hackers, the same ones who intervened in the election.
Narrowly.
I wouldn't call 7-2 narrow, would you? But the headlines want you to think so.
Narrowly indeed. The Supremes said government can't be openly hostile to religion.
So, the D's will have to change their platform to be less open about it, and pretend they aren't doing it while they are.
7-2 is Narrow when you are a loyal democrat hack media hack pimping the narrative that didn't go your way.
Everyone except Ginsburg and Sotomayor. That's as close as you'll get unanimous these days.
mockturtle said...
I wouldn't call 7-2 narrow, would you? But the headlines want you to think so.
The vote was not narrow, the opinion was. It did not address the issue of if the baker could be forced to bake the cake. It only addressed the commissions blatant hostility to religious views displayed during their discussions.
If the commission examines the issue again, and speaks respectfully about religious views, then rules against the baker, this will go back to the Supreme Court, and will likely be a 5-4 decision one way or the other.
>>If the commission examines the issue again, and speaks respectfully about religious views...
If the commission examines the issue again, and lies about their reasons...
Anybody taking bets on him winning against the same commission next time?
It's unconstitutional to force us to bake the cake, lefty bigots.
So which two dissented? I'm assuming RBG and Sotomayer.
The Gaystapo were gestopped!
It's almost always a good day when the individual beats back the abusive power of the government.
Another biggie is Janus v. AFSCME on labor law.
The hostile leftwing collective WILL force you to___________________. and if you're a Christian, the hostility is kicked into the stratosphere.
I suppose, it could also have been Kennedy not wanting to actually write a 5-4 (however it fell) decision, and to let the next guy take the heat when it get back up to SCOTUS.
Waggoner said Phillips is willing to sell ready-made products to anyone who enters his store. But, "he simply declines to express messages or celebrate events that violate his deeply held beliefs," she said.
Exactly my opinion all along on this cake case.
The baker didn't discriminate in his daily business and sold the inventory/regular products available to anyone. Want a doughnut? Here. In the case are dozens. Want me to bake an extra special one that I wouldn't ordinarily have in stock.... just for you? Nope.
He can't be forced to create a product that is not in his regular inventory. Forced to design and bake a specialty, single order, and by contract cake. Especially one that expresses views/speech that violates his own first amendment rights.
If you can be forced to contract your labor and your artistic output then you are literally a slave.
Would have preferred a more expansive 5-4 ruling than a narrow 7-2 ruling, something along the lines of: "YOU CAN'T FORCE SOMEONE TO ENTER INTO A CONTRACT EVEN IF YOU ARE GAY".
So the Crypt keeper and the Wise Latina are hostile to freedom and liberty. Why am I not surprised?
SCOTUS used Amendment One instead of Amendment Fourteen. That preserves all their rulings on interstate commerce and integration. So it is still the law that buyers have more rights than sellers. The sellers just have to be careful how they phrase their refusal. And it helps if the government calls them Nazis. I don’t see anything in this decision to cheer about.
Kristian Holvoet said...
...I go to a roofer, and I can't make him fix my roof, even if I am willing to pay. He has to agree to do the work (and he can have many, many reasons...to not want to do the work...
Or more to the point, I can't go to a contractor who's a member of the "Freedom from Religion" foundation and force him to build me a chapel even if structurally it's the same as any other building with four walls and a roof.
>>It's unconstitutional to force us to bake the cake, lefty bigots.
The Constitution says whatever 5 justices say it says. See "Kelo".
It's unconstitutional to force us to bake the cake, lefty bigots.
The opinion didn't say that. It said that the Colorado Rights Commission was hostile to the baker's free exercise of religion, and the court order based on their ruling was therefore unconstitutional. It's possible that Colorado will hold another rights hearing with a less openly anti-religion commission, thus making their ruling constitutional.
"Bake your own damn cake"
The Constitution says whatever 5 justices say it says. See "Kelo".
Or, if your prefer as I do, Marbury v Madison
'If you can be forced to contract your labor and your artistic output then you are literally a slave." That is the whole point of the left. They know what's good for you. You don't know bupkis. From Obama on down, they know what is best for you. So shut up and respect your betters. And if 9 people in black robes tell you what to do, you don't have any choice.
The Soviet Union did much the same, but at least they didn't try to wrap their totalitarianism in legal theory, as if you had a choice.
The Constitution turns out to be a very fungible document.
SCOTUS: Civil Rights Commissions must be nice when they deny and individual HIS civil right.
Lance said...
It's possible that Colorado will hold another rights hearing with a less openly anti-religion commission, thus making their ruling constitutional.
I don't think the current opinion addressed the underlying issue, so it made no statement one way or the other on whether such a ruling (by the commission) would be constitutional. I suspect that will require a return trip to the Supreme Court.
There is an interesting part to this ruling that so far I've seen it ignored.
In part of the ruling, while talking about sincerely held religious beliefs, the court uses as an example a minister of priest refusing to marry a gay couple. And how that would be a clear example of sincerely held religious beliefs.
And it just sorta glosses over that as if we all already agree on it.
Was this already legally decided and I just missed it?
Because my Church has been concerned for awhile now that our State will force us to marry gay couples.
Given that the Supreme Court said:
...showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here
Can the cake baker sue the Commission and/or individuals on that commission for slander? Denying his civil rights? Stupidity?
Excellent points, DBQ at 10:28! Aside from the religious perspective, there is artistic integrity. It would be like telling Picasso what to paint. Or [as did the Stalin regime] telling composers what kinds of music they could or could not compose.
DBQ wrote: “The baker didn't discriminate in his e daily business and sold the inventory/regular products available to anyone. Want a doughnut? Here. In the case are dozens. Want me to bake an extra special one that I wouldn't ordinarily have in stock.... just for you? Nope”
Exactly. But the danger is that fellow rubes will see the decision more broadly and will mistake it for green-lighting discriminatory behavior. Lefties will see the decision as an OK to erect fence posts in Wyoming. All so predictable.
Why not buy a blank cake and decorate it yourself?
Blogger eric said...my Church has been concerned for awhile now that our State will force us to marry gay couples.
The Crypt Keeper and the Wise Latina would agree.
I don't think the current opinion addressed the underlying issue, so it made no statement one way or the other on whether such a ruling (by the commission) would be constitutional. I suspect that will require a return trip to the Supreme Court.
Omit (by the commission), and you just accurately described a boat load of SC 'decisions'.
MacArthur's Park is melting in the dark
All the sweet, green icing flowing down
Someone left the cake out in the rain
I don't think that I can take it
'cause it took so long to bake it
And I'll never have that recipe again
Oh, nooooo
"McArthur Park," Donna Summers (1978 -remake)
Or, if your prefer as I do, Marbury v Madison
I used to think that Marbury was one of the greatest Supreme Court decisions ever. Now that I know the history of it (that I was never taught in high school or university - as a Poli/Sci major) I can't believe that the decision was allowed to stand. Just to start, there was the obvious need for Marshall to recuse himself.
>>some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments.
But these same people will give him a fair hearing next time. Honest!
On the subject of today's ruling on Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission the Reuters article had this to say:
Mullins and Craig were planning their wedding in Massachusetts in 2012 and wanted the cake for a reception in Colorado, where gay marriage was not yet legal. During a brief encounter at Phillips' Masterpiece Cakeshop in the Denver suburb of Lakewood, the baker politely but firmly refused, leaving the couple distraught.
Distraught? More like gleeful...
If anything, it was a decision against open hostility to religious beliefs. The more subtle, smirky hostility will eventually carry the day.
Here's another question:
What is now the ruling legal precedent?
Presumably these two men married each other already. They should have no standing for (another) wedding cake.
So do we need another baker to deny another couple a cake, which then must go again before the bigoted civil rights commission for a ruling?
You write there are only three cases remaining.
Did Janus vs AFSCME come down and I somehow missed it?
If a fundamentalist Christian goes to a progressive lawyer in order to sue someone for slander who has called him a Nazi, does the lawyer have to take the case?
Distraught? More like gleeful.
Most definitely. They probably carefully researched bakeries to find one that might be vulnerable. I'll bet businesses that display the Christian ΙΧΘΥΣ symbol on their websites are setting themselves up for this sort of shenanigan.
A few years ago I was thinking about the various controversies around the Pledge of Allegiance. Here is something I wrote about the two WWII-era decisions about requiring the Pledge to be said in school and the differing views of the role of the courts vs. the legislatures in dealing with religious discomfort resulting from facially neutral laws.
The Pledge, while broadly acceptable across the States, became controversial, and has remained controversial in American politics. While today the controversy mostly centers on the phrase “under God,” the Supreme Court ruled twice during the Second World War on the godless version of the pledge, first upholding and the striking down a compulsory pledge for school children. The actual controversy was not about the text of the pledge, but rather the stiff-armed salute that originally accompanied it, to which the Jehovah’s Witnesses objected. The second decision that threw out the compulsory pledge and salute was written by Robert Jackson, who wrote that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” The original decision upholding the compulsory salute, and the sole dissent when it was overturned, was written by Félix Frankfurter, a Jew, who, as “one who belongs to the most vilified and persecuted minority in history [was] not likely to be insensible to the freedoms guaranteed by our Constitution.” Frankfurter, who co-founded the ACLU, argued that it was the role of legislatures, not of the courts, to judge the wisdom of laws, clearly signaling that he felt this law unwise. The law was constitutional, by all precedent, and was therefore allowable. While Jackson stated that no “village tyrant” was beyond the reach of the Constitution, Frankfurter said to “suggest that [they were] here concerned with the heedless action of some village tyrants is to distort the augustness of the constitutional issue,” which is the proper role of the judiciary and the legislature. This is a battle that Frankfurter lost, with lasting impact to our constitutional system.
The concern that Jackson stated in his opinion was that “small and local authority may feel less sense of responsibility to the Constitution.” Hence, a school board, or other unit of government might be accountable to local voters, but still oppressive to a religious minority. This argument Frankfurter rejected entirely. “Law is concerned with external behavior, and not with the inner life of man,” he said. “One may have the right to practice one's religion and at the same time owe the duty of formal obedience to laws that run counter to one's belief.” The case, we need remember, was adjudicated in the midst of a world war against National Socialism. Many people objected to or were embarrassed by the stiff-armed flag salute, because this was identical to the Nazi salute. There was always the sly implication that there was something fascistic about the ceremony. Frankfurter bridled at this, saying “it mocks reason and denies our whole history to find in the allowance of a requirement to salute our flag on fitting occasions the seeds of sanction for obeisance to a leader.”
Looks like the Court took Colorado to the woodshed.
Bravo!
Yes, the whole thing turns on how many of the justices who concurred will be okay if the anti-Christian attitude of the members of the Commission is better disguised next time. Two? Three?
That Masterpiece decision is pretty awful, I think. It seems to be saying that, well, you tried to make him bake the cake out of spite, and you don't get to do that. You'll have to try to make him bake the cake out of love. So next time, smile while you put a gun to his head.
If you read Ginsburg's dissent, she basically says that there is no reason that the baker's religious sensibilities should trump the decision of the legislature to grant gays protected status with regard to discrimination. I think that forcing a baker to bake a cake he or she doesn't want to make is terrible on a personal level, but I do not think forcing a Muslim cab driver to transport me to a party if I happen to be carrying a bottle of wine is terrible at any level. Having the Supreme Court micromanage all of this seems like a very bad idea. That is what legislatures are for. Frankfurter warned us of this.
Ginsburg: "...I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake..."
What??
The Commissioners wrote that the baker and his ilk were responsible for the Holocaust!
Ginsburg needs to go home. She is wasting the governments time. I resent her salary.
"...clear and impermissible hostility toward the sincere religious beliefs moti- vating his objection...some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.
How are members of the proliferating "civil rights commissions" and "human rights commissions" - in this country or elsewhere - chosen, anyway? Is there any form of selection for them that is not self-selection by unacceptably biased "professional activist" types? Are any of these sorts of commissions not staffed by Stalinist shitheads who've dedicated themselves to battling heresy against The One True Prog Faith?
(Honest question. My own small town has a "human rights commission", which I find ludicrous, but so far I've seen no evidence of its getting up to any mischief, or doing anything at all, beyond wasting a small amount of public money for moral vanity purposes.)
"If you read Ginsburg's dissent, she basically says that there is no reason that the baker's religious sensibilities should trump the decision of the legislature to grant gays protected status with regard to discrimination. I think that forcing a baker to bake a cake he or she doesn't want to make is terrible on a personal level, but I do not think forcing a Muslim cab driver to transport me to a party if I happen to be carrying a bottle of wine is terrible at any level. Having the Supreme Court micromanage all of this seems like a very bad idea. That is what legislatures are for. Frankfurter warned us of this. @Two-eyed Jack
And that is the nub. It is the job of Congress, not the courts.
George Grady - exactly.
Act like a fascist and then run and hide behind the word "love". David Hogg shows us how every day.
Ginsburg: "...I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake..."
I agree. It's akin to a Hawaiian judge using campaign rhetoric to revoke Trump's authority to execute his duties pertaining to immigration/national security.
David Hogg shows us how every day.
Yes. It will be interesting to see just how far these young brown-shirts will go in their self-righteous crusade before they are stopped. Of course, they would be stopped short if the media ignored them.
Browndog: I agree. It's akin to a Hawaiian judge using campaign rhetoric to revoke Trump's authority to execute his duties pertaining to immigration/national security.
That thought struck me, too.
Discuss.
The stories all spin this as the bad Christian refused to bake a cake for gay customers.
He baked what ever cakes the gay customers want, with the sole exception of a Gay Wedding Cake.That was why it was religious Freedom.
"the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain,"
And yet, Title VII of the Civil Rights Act of 1964 prohibits:
"employment discrimination based on religion. This includes refusing to accommodate an employee's sincerely held religious beliefs or practices unless the accommodation would impose an undue hardship (more than a minimal burden on operation of the business)."
So an employee can bring religious beliefs into the public sphere, but an employer cannot? Nor can a business owner conduct a business in accord to sincerely held religious beliefs?
Read the Thomas and Gorsuch concurring opinions. Thomas agrees and then responds on free speech grounds, laying waste to a whole bunch of commentator views.
Gorsuch, well he's just right on the money. If Trump never does anything else good his whole presidency, it will have been worth it because of the Gorsuch appointment.
Kagan claims the baker has to make the cake because its just a "wedding cake" like he would make for a heterosexual wedding. Gorsuch refers to her reasoning as "Goldilocks-like". Adjusting the level of specificity up or down in each case to achieve the desired result. Epic.
Two Eyed Jack: I think that forcing a baker to bake a cake he or she doesn't want to make is terrible on a personal level, but I do not think forcing a Muslim cab driver to transport me to a party if I happen to be carrying a bottle of wine is terrible at any level.
The difference between your two examples is the difference between a public accommodation or a business that is open to the general public, versus a legal contract between one party and the other.
The bakery, or any other retail establishment, open to the public, is obligated, by law, to make its ordinary wares available to the public without discrimination. Which this baker did. Unless he had in his display cases wedding cakes...which he didn't.... he then would be obligated to sell those, in the store, to all comer's.
The second (the cab driver) is also offering a public business that is open to everyone during his regular hours of operation. As a public accommodation he is obligated, by law, to serve everyone without discrimination.
The "Wedding Cake" is not a public business transaction in that it is open to everyone. It is a one off contractual event that can take weeks to design and create. It is like creating a work of art or an architect designing a building.
Angle-Dyne, Angelic Buzzard said...
"(Honest question. My own small town has a "human rights commission", which I find ludicrous, but so far I've seen no evidence of its getting up to any mischief, or doing anything at all, beyond wasting a small amount of public money for moral vanity purposes.)"
Here in Eugene, they cooked up an ordinance requiring all bathrooms and locker rooms to be open to either sex. Even the brain-dead Commies on the City Council weren't ready to go along with that one, so they scotched it before anyone got raped or murdered, but they are a sick bunch and no one will be safe until they're festooning lampposts.
Ginsburg is unlikely to survive the entirety of Trump's terms. And if Trump can replace Ginsburg with another justice like Gorsuch, this old country might just remain a Republic.
If Kennedy retires and is replaced by a Gorsuch-type, so much better. But Ginsburg is the cherry on top.
I still think this issue is more broadly one of compelled labor (i.e., slavery). You cannot force someone to labor for any reason other than contracts or imprisonment. If a muslim cab driver refuses to take a passenger carrying meat or alcohol, it is up to the employer (who has an explicit contract with the driver and the public) to take action.
I follow DBQ's logic and generally agree with it. However, I want to look at the issue more broadly. If the employer allows his/her driver to refuse service, then the government has a proper course of action in revoking the taxi medallion because the contract with the public was not fulfilled.
I am not a lawyer and did not sleep at a Holiday Inn Express last night. However, this logic makes sense to my untrained eye.
Ginsburg is the antithesis of what a Supreme Court Justice should be. Has anyone in our history done more violence to the Constitution than her?
I would say it would nearly impossible to duplicate a Ginsburg, but then I'm reminded a judge ruled that twitter trolls have a Constitutional right to scream at Trump on his personal twitter page.
Just to clarify, the government has no role compelling the baker to provide his services because the baker sells products (services already rendered) without discrimination. I do not believe you can compel the baker to enter into a future contract.
"the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain,"
That would be like forcing a Christian bookstore to carry books on Satanism. Or, perhaps more insidious, Prog-lib literature.
The narrowness of the opinion was probably a bargaining chip to get Kagan and Breyer on board. Had the decision been broadened to affirm the baker's refusal outright, it would have been 5-4. I don't think the 7-2 vote is worth enough to give that chip over, but I don't think it is an open/shut case that it isn't.
And it is entirely possible that it was Breyer and Kagan who offered to support a narrower decision in return to prevent the more definitive decision.
The gay couple didn't ask for a kkkake with a big kkkock or a kkkondom on it. They wanted a cake with Adam and Steve figurines dressed in tuxedos not Adam and Eve with a flowing white gown, so they were discriminated against simply because they were gay. The seven homophobic justices deserve a cream pie in their faces, or maybe dirt pudding. They definitely have egg on their faces despite having no sense of shame. Clarence Thomas, a nincompoop, and sexual harasser, is an affront to black people like Trump is. Bush, Sr. replaced the great Thurgood Marshall with a fascist nutcase like Hitler. What a disaster that has proven to be for the country. Fortunately, George H.W. Bush, who appointed Thomas, a token Uncle Tom, is near death.
FranciscoD I follow DBQ's logic and generally agree with it. However, I want to look at the issue more broadly. If the employer allows his/her driver to refuse service, then the government has a proper course of action in revoking the taxi medallion because the contract with the public was not fulfilled.
Thank you Francisco. I believe we are in agreement. If the cab driver wants to refuse fares (for reasons other than his own safety**) and discriminate based on religion, sex, or other legally prohibited reasons....yes, his license should be revoked.
If he didn't want to offer a "public accommodation" then he needs to be a charter service.
**Obviously, a taxi service is entitled to refuse service to dangerous, drunken, drugged, crazy people who present a real threat.
I do not believe you can compel the baker to enter into a future contract.
EXACTLY! Designing and creating a wedding cake, wedding dress is a contractual event.
Gorsuch (referring to the Kagan view):
"Nor can any amount of after-the-fact maneuvering by our colleagues save the Commission. It is no answer, for example… simply to slide up a level of generality to redescribe Mr. Phillips’s case as involving only a wedding cake like any other, so the fact that Mr. Phillips would make one for some means he must make them for all… Suggesting that this case is only about “wedding cakes”—and not a wedding cake celebrating a same-sex wedding—actually points up the problem. At its most general level, the cake at issue in Mr. Phillips’s case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; understanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right."
Who is this Trumpit idiot?
They wanted a cake with Adam and Steve figurines dressed in tuxedos not Adam and Eve with a flowing white gown, so they were discriminated against simply because they were gay
The figurines were gay? Who would have thought ...
Also Gorsuch:
"The problem is, the Commission didn’t play with the level of generality in Mr. Jack’s case in this way. It didn’t declare, for example, that because the cakes Mr. Jack requested were just cakes about weddings generally, and all such cakes were the same, the bakers had to produce them. Instead, the Commission accepted the bakers’ view that the specific cakes Mr. Jack requested conveyed a message offensive to their convictions and allowed them to refuse service. Having done that there, it must do the same here. Any other conclusion would invite civil authorities to gerrymander their inquiries based on the parties they prefer. Why calibrate the level of generality in Mr. Phillips’s case at “wedding cakes” exactly—and not at, say, “cakes” more generally or “cakes that convey a message regarding same-sex marriage” more specifically? If “cakes” were the relevant level of generality, the Commission would have to order the bakers to make Mr. Jack’s requested cakes just as it ordered Mr. Phillips to make the requested cake in his case. Conversely, if “cakes that convey a message regarding same-sex marriage” were the relevant level of generality, the Commission would have to respect Mr. Phillips’s refusal to make the requested cake just as it respected the bakers’ refusal to make the cakes Mr. Jack requested. In short, when the same level of generality is applied to both cases, it is no surprise that the bakers have to be treated the same. Only by adjusting the dials just right—fine-tuning the level of generality up or down for each case based solely on the identity of the parties and the substance of their views—can you engineer the Commission’s outcome, handing a win to Mr. Jack’s bakers but delivering a loss to Mr. Phillips. Such results-driven reasoning is improper. Neither the Commission nor this Court may apply a more specific level of generality in Mr. Jack’s case (a cake that conveys a message regarding same-sex marriage) while applying a higher level of generality in Mr. Phillips’s case (a cake that conveys no message regarding same-sex marriage)."
johns said...
“If a fundamentalist Christian goes to a progressive lawyer in order to sue someone for slander who has called him a Nazi, does the lawyer have to take the case?”
Please say you’re not serious!
All civil rights commissions in the US are deep state. They answer to a higher power. This one will retreat and reform to achieve its stated ends.
Who is this Trumpit idiot?
He is an inmate in the mental ward of a state prison. Why they give him access to the internet is a mystery.
The SCOTUS ruled decisively against unlawful discrimination and bigotry today. It was a resounding victory against hate and intolerance.
Liberals are just too stupid and miseducated to see it.
Trumpi said...”The gay couple didn't ask for a kkkake with a big kkkock or a kkkondom on it. They wanted a cake with Adam and Steve figurines dressed in tuxedos not Adam and Eve with a flowing white gown, so they were discriminated against simply because they were gay.”
No. They very clearly wanted “Adam cum Steve “ on their cake and the baker refused to cumply.
It is completely believable that Ginsburg and the Wise Latina have deliberately mischaracterized the decision in order to narrow its impact.
I haven’t read the opinions yet, but I was hoping for something like the old “sweeping with too broad a broom” adage from my law school days. It’s been a while. I wonder if that is still a rule and applicable. Of course, that was the old days before justices had to show how smart they are.
Who is this Trumpit idiot?
A strict vegetarian who wants meat-eaters dead.
Yet, takes time out of her day to buy cheeseburgers with which to feed the seagulls.
Is the bias of the commission a denial of due process according to Sup. Ct.? Isn't that the argument of the judges who stopped Trump's immigration restrictions---that he held biased and unfair opinions that swayed his judgment? I'll read the opinions eventually, but I worry about the law focusing on personal biases (other than real conflicts of interest) rather than whether an action is or is not clearly prohibited regardless of official opinions about the violator.
Who is this Trumpit idiot?
An unfortunate attempt at performance art.
"No. They very clearly wanted “Adam cum Steve “ on their cake and the baker refused to cumply."
"Cum" is responsible for your existence, so c'mon, you shouldn't cumplain about it when there's a turtle to mock.
Trumpit: “Fortunately, George H.W. Bush, who appointed Thomas, a token Uncle Tom, is near death.”
I love this guy! He displays unabashedly the illiteracy, illogic and insensitivity of the leftist cult. Thomas, who has never been enslaved on the Democrat plantation, kowtows to no one. GHWB, near death, is not in a position to harm anyone and at his age his death is neither fortunate nor unfortunate. However, to characterize it as the former illustrates callousness toward his family typical of the haters on the left.
You are the man, Trumpit, even if you are a woman. Lol.
Trumpit - the token leftwing racist. I bet you're white, too.
Althouse blogged about this last fall (September?) and linked to a news article giving both sides voice to this controversy. I strongly recommend it for background. As to the commission, I googled it after reading last year's post. IIRC, the members are appointed by the governor without outside approval, but I don't remember for how long, and whether or not they can be fired or recalled.
That they have the power to ruin or otherwise punish people outside of normal judicial channels is frightening, particularly since those most likely to want to serve are those most eager to find and punish "injustice." Where's the fun in being judge and jury if you don't get to chop heads. The commission needs a steady diet of violations to validate its existence. Every finding in favor of the defendent undercuts its purpose.
So yes, frightening and arrogant in its prejudice. Still, its establishment is a clever if transparent ploy to allow the Governor, legislature, and courts to each keep their own hands clean.
Francisco D said...
Who is this Trumpit idiot?
A genius who parodies ritmo.toothless/PP
"An unfortunate attempt at performance art.
It would seem to be from the Kathy Griffin school of performing arts.
That is unfortunate.
I shouldn't have done it. I read Gabriel Malor's twitter page. Malor is a lawyer and covers the nuts and bolts of court decisions no one else seems interested in. He's a hard-core NeverTrumper, but an astute legal mind.
I think this sums it up (via Malor): "SCOTUS largely punts on the core First Amendment speech and religion questions in Masterpiece Cakeshop. Instead, seizes on the fact that the civil rights commissioners were assholes to the baker at their hearings."
"...the decision points only to the commissioners' conduct."
"Justice Kennedy's maj. op. suggests TWICE that maybe the anti-religion comments of the civil rights commissioners could have been cured by simply disavowing them in briefing at SCOTUS."
The Supremes said government can't be openly hostile to religion.
Except Ginsburg and Sotomayor have effectively said that they believe the government can express open bigotry towards religious views when making decisions. They believe that the government can determine which religion's beliefs are valid and which are not. Incredible that two people with such a limited understanding of the first amendment can serve on the Supreme Court.
But when the Trump vs Hawaii decision comes, Ginsburg and Sotomayor will decide it's wrong when Trump "expresses open bigotry" towards Muslims, of course because Trump.
Damn, I'm an atheist, but I understand that people can hold sincere religious views including their views of socialism, communism, global warming, gay rights, or more conventional religions without the government needing to decide which are correct and which are wrong. We are diverse in our views, that's what the first amendment is meant to protect
There is a large segment of the liberal/gay constituency that have long held that this "Bake my cake!" business was heavy handed, wrong, and unnecessary--fearing backlash because of it.
Hard to believe it came down to the fact the Commissioners said mean things.
If Sotomayor is a "wise Latina" that doesn't say much for Latinas.
Jersey observes: If Sotomayor is a "wise Latina" that doesn't say much for Latinas.
I meet wiser Latinas almost every day.
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