Gretchen said...
Glad Masterpiece was reversed, pretty big decision 7-2 is pretty decisive these days.Kate said...
So the next time you have to bake the cake they'll use nice words to describe your refusal.Teller said...
If anything, it was a decision against open hostility to religious beliefs. The more subtle, smirky hostility will eventually carry the day.Big Mike said...
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?Now, I'll go read the opinions and see if I have anything special to say. But first, I would like to point out my post from last December that looked closely at what Justice Kennedy (author of today's opinion) said during the oral argument. After a long post about everything he said, I extracted his 3 concerns in order of importance to him. I think the second of the 3 things is what produced today's narrowly framed decision that won 7 of the Court's 9 votes:
1. Empathy for the human beings on both sides of this controversy. Kennedy showed empathy for the gay people who face discrimination: If the cake-maker wins this case, he could put "put a sign in his window: we do not bake cakes for gay weddings," and that would be "an affront to the gay community." And there might be a movement to get all cake-makers to stop making cakes for same-sex weddings. But Kennedy also showed empathy for the cake-maker as he criticized the state for its lack of tolerance and respect for the cake-maker's religious beliefs. Kennedy seemed troubled not only about compelling the cake-maker to make cakes for same-sex weddings but also about requiring him to teach his employees that his religion is subordinate to the dictates of worldly government. Kennedy never seemed interested in the much-proffered answer that the the religious man could solve his own problem by getting out of the wedding-cake business. I'd say: Kennedy seems to care about the consequences to real people (whichever side wins).
2. Government hostility toward religious people. Not only did Kennedy chide the government's lawyer for the state's lack of tolerance and respect for religion (as noted in #1), he seemed willing to look into the subjective attitude of individual members of the 7-person commission that made the original decision that the cake-maker had illegally discriminated. One commissioner had said that using religion to justify discrimination is "despicable." This connects to Kennedy's opinion in Lukumi, which was about when strict scrutiny applies in a Free Exercise Clause case. There needs to be discrimination against religion (as opposed to a neutral, generally applicable law), and Kennedy's opinion in that case looked at evidence of the lawmakers' animus toward religion. I'd say: Kennedy reacts to what he perceives as hatefulness coming from or through government. There is no current problem of government animus toward gay people (now that the Court has protected their rights in cases authored by Kennedy that were very sensitive to animus toward gay people). The problem now is government animus toward the religious people who are burdened by the success of the gay-rights advances.
3. Judicial expertise in crafting a principled, limited exception to the state's anti-discrimination law. A big issue, throughout the oral argument was: How can the Court define a principled narrow exception to the state's law against discrimination against gay people, an exception that would allow the cake-maker with a religious compunction to refuse to make a cake for a same-sex wedding? Justice Kennedy became involved in some of this discussion about where to draw the lines — the ready-made/custom cake distinction, the speech/conduct distinction, and the distinction between selling a cake in a shop and supervising the cutting of a cake at a ceremony. But Kennedy stayed out of the distinction between what is art and what is not art (that seemed to entrance Justices Ginsburg and Kagan) and the distinction between the artist and the artisan (that captivated Justice Breyer). And Kennedy didn't get involved in Justice Breyer's talk about the the superiority of legislatures in crafting religious exceptions to generally applicable laws and the problem of too many picky little cases that might burden the judicial system if courts try to solve problems like this.
These 3 points, in that order, suggest that Justice Kennedy is likely to provide the 5th vote for the cake-maker's religious exception. But if that's the outcome you like for this particular case, do not rejoice. I think that if, in the long run, you'd like to see more conservatives winning Senate seats and in a position to confirm judges nominated by a conservative President — nominees selected for their solid and forthright conservatism — you ought to hope the cake-maker loses.
If, on the other hand, you want the anti-discrimination side to win, you can still feel good if and when you lose. Practically, all you lose is a little access to cake, but if the Court impinges on the right of gay people to be served as equals in an ordinary shop, you will have a powerful political argument that that gay people are still exposed to cruel disrespect and that the so-called "conservatives" of the Supreme Court kicked into judicial activism to make up an unprincipled right to discriminate. What a fraud! Time for more Democrats in the Senate, obstruction of Trump nominees, and for God's sake get a Democrat in the White House in 2020.
Posts
115 comments:
Let's try it with a Muslim bakery. Then we'll learn the truth,
(Muslim) > (homosexual) > (any faith other than Islam)
I read the opinion as overall a win for the states ang gay people. I don’t know how SCOTUS could have more clearly said, “While this case is intolerable to neutrality towards religion, here is how to prevent religious exceptions to gay rights going forward.”
Of course, that is a double-edged sword, as that same reasoning would make it harder on any form of anti-hate speech laws to be upheld, but I see that as another positive.
Althouse wrote: “What a fraud! Time for more Democrats in the Senate, obstruction of Trump nominees, and for God's sake get a Democrat in the White House in 2020”
Yikes! Like who?
“(Muslim) > (homosexual) > (any faith other than Islam)”
Muslims are an emerging minority and Christian are disappearing. The current philosophy of the Democratic Party is to cater to emerging demographic groups at the expense of practically anyone. It’s pretty simple.
AustinRoth: Without the religious animus there would have been no issue. Gay people are not denied cakes, they can buy them almost everywhere. It was animus that led to this situation, and animus which moved the board to make the decision they did.
The 'problem' is religious people. The court said that deciding on that basis cannot be done.
The 'problem' is not availability of wedding cakes.
'Practically, all you lose is a little access to cake, but if the Court impinges on the right of gay people to be served as equals in an ordinary shop, you will have a powerful political argument that that gay people are still exposed to cruel disrespect and that the so-called "conservatives" of the Supreme Court kicked into judicial activism to make up an unprincipled right to discriminate.' None of this works as well with a 7-2 decision.
"pretty big decision 7-2 is pretty decisive these days."
It was actually really a narrow decision if you read it. Rests not on Freedom of Association but Freedom of Speech/Religion and contends that timing is everything. Same-sex marriage not recognized in Colorado at the time of the incident, but now that it is, the State has an interest in challenging new cases that fall along the same lines.
I forgot to add that RBG’s dissent was an embarrassment.
"I forgot to add that RBG’s dissent was an embarrassment."
They always are; it's SOP for her.
"What a fraud! Time for more Democrats in the Senate, obstruction of Trump nominees, and for God's sake get a Democrat in the White House in 2020."
Ha. You're "funny."
There's a message to Trump that Scotus will take account of any animus expressed at rallies or on Twitter. I think that's how they got Kagan and Breyer for the 7-2 decision.
I have only glanced at the decision, but I would say this was an artful dodge if there ever was one.
The intent was to leave it up to more litigation, and that's what we will see.
However, in the end this question will not go away.
I do respect Kennedy for his determination to prevent mobbism from winning, especially when that mobbism is emanating from the government. Over the long run however, I think his legacy will be less than it should be due to his failure to articulate strong, fundamental constitutional grounding for his deep personal belief that oppression of the individual is forbidden by the US Constitution (or should be).
“What a fraud! Time for more Democrats in the Senate, obstruction of Trump nominees, and for God's sake get a Democrat in the White House in 2020."
As pointed out in the past, Althouse sheds IQ points with ease on these matters.
"As pointed out in the past, Althouse sheds IQ points with ease on these matters."
Either I do or you do. Read it again. Duuuuhhhh....
chickelit,
Please reread what Ms. Althouse wrote in that segment.
"As pointed out in the past, Althouse sheds IQ points with ease on these matters."
Either I do or you do. Read it again. Duuuuhhhh....
If, on the other hand, you want the anti-discrimination side to win...
I realize this is shorthand, but it's loaded shorthand.
Thanks, Yancey.
Ok, Ms. Althouse can defend herself here.
The NRA should order MAGA cakes with an icing AR-15 from every bakery in San Francisco.
I had forgotten those previous posts. Yes, Kennedy was clearly the key vote, and it is pity that we won't get to find out where exactly he would have been if the case had been settled on the broader option rather than the more narrow one.
chickelit confirms my observations about The Era of That's Not Funny. (See "Not-Funnyites converge on a hipster homophobe.) Any comic riff has to be loaded with signs of when you're kidding or when you're adopting a voice other than your own. You have to make it so that the dumbest person in the room gets the joke or you'll get slammed for what the person who needs to get bonked on the head to see humor thinks you said.
bagoh20,
I have advocated the same. It would serve the useful purpose of exposing the hypocrisy even though the customers in that case would be laughed out of every civil rights commission and federal court in CA.
Eugene Volokh has a good summary on the unresolved aspects of the case at Reason.
Business owners have a need to know when they're gonna be legally vulnerable to lawsuits or fines.
Final thoughts:
On cake politics:
I did not know so many people thought it was a good idea to buy a cake that would take weeks or months to craft with artistry. That's a ill-advised way to spend your $$ if you wanna have children and buy a house.
Most people do not buy elaborate cakes that have decor on it specific to the couple. Look at Meghan's and Harry's wedding cake. It is beautiful but generic. It could be at any wedding.
Can a customer be subject to questioning about the cake if the customer just wants to order a cake with flowers?
What about a customer who does not want to talk about the event? If the customer only wants to talk about frosting, size of cake, and fillings?
What if it's a transgender couple, with heterosexual sounding names. Does the baker have the right to ask for birth certificates?
My parents ordered and paid for our cake. I never spoke to the baker. I have no idea which baker they went to buy the cake. Admit I am taken aback by fuss about cake.
Does the baker have a right to deny service if parents order the cake? What if their children, to be married, are finishing higher education out-of-state?
What if a heterosexual couple has names that are hard to identify the gender? A Shawn/ Sean/ Sam or Samantha/ Parker.
What if parents order a cake for the kids, named Sam and Parker? Does the baker have the right to ask about gender? Or is that an invasion of privacy?
Can a customer be questioned about the type of cake they want to order if there are no unique marks on the cake? If it's just a cake with some frosting flowers?
Can a gay individual or couple be denied a cake for a baby shower?
@Yancey Ward: I now see her humor. Yet, I write having watched Althouse for years on various gay-themed legal matters. So, no walk back or apology from me. .
They should stop using the term "protected class". "Protected voting block" is more accurate, and nobody should be dividing Americans up by class for divergent legal rights anyway.
I could be wrong but my take away from the hints that the Court gave was that the following should be the rules to follow:
1. If you are a "minister of the gospel," you cannot be forced to perform a same-sex wedding if that would violate your beliefs.
2. Where there are anti-discrimination laws and you provide a generic product, you can be penalized for failing to provide it for a same-sex wedding.
3. Where there are anti-discrimination laws and you provide a custom product, you cannot be forced to create the product for the wedding.
Just a guess from the tea leaves.
"Ok, Ms. Althouse can defend herself here."
I still appreciate being defended. I'm not always here and I can't read everything. Sometimes I'm out moving through the real world, like today when the opinion came out. I was biking and walking and Meade was buying a new car!
Hm. Problem with this post is all the gay ads that are popping up on my page. Ick.
and Meade was buying a new car!
Audi?
"Hm. Problem with this post is all the gay ads that are popping up on my page. Ick."
Yet your avatar is of a bisexual woman.
Maybe you're using humor about as well as our host.
"If the cake-maker wins this case, he could put "put a sign in his window: we do not bake cakes for gay weddings,"
Wait, shouldn't that be "we do not decorate"? After all, as we've been told, baking ain't decorating. This was a decorating case, no?
By the way, the "anti-discrimination side" did win, so far.
New as in brand new, or new as in a car he hadn't owned?
Ginsburg wrote it was sensible to affirm the judgment of the Colorado commission and court.
Something that is discouraging to me is how many people who know better, or at least should know better, are attacking the description of the opinion as narrow on the basis that the narrow description flies in the face of the 7-2 vote of the justices. Of course, anyone with familiarity of what went down knows that narrow(ly) is referring to the framing of the decision. I expect progressives to do this but it's disappointing when supposed sober minded conservatives so eagerly spike the ball on a fallacious point.
They will bake a cake for their customers, transgender or otherwise, but will not be required to endorse transgender couplets.
But, yeah, agreed on the second point of Althouse's original analysis being dominant in the minds of the jurists. The commissioners made it a pretty easy decision with exactly the two dissenters I would have expected, if there were going to be any.
he could put "put a sign in his window: we do not bake cakes for gay weddings," and that would be "an affront to the gay community."
Oh noes
Oh the humanity
What stands out in the decision for me is this: "His dilemma was understandable in 2012, which was before Colorado recognized the validity of gay marriages performed in the State and before this Court issued ... Obergefell. Given the State’s position at the time, there is some force to Phillips’ argument that he was not unreasonable in deeming his decision lawful. State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive.
This is Kennedy basically pumping up Obergefell as the dawn of enlightenment, before which the behavior of deplorables might have been "not unreasonable."
>>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.
Two Supreme Court justices thought all of that was just fine.
This notion of hate from the government I think is fundamental. Far too many people see the government as monolithic and simply just. It's not a left or right thing, because those on the left can see the government as unjust in say capital punishment while those on the right see the injustice in taking away religious freedom.
The government is just a tool, and not a very easy one to wield. The best solution here wasn't the SCOTUS verdict, the Colorado commission's behavior, or the Baker just making the cake. The simple solution is just using the open market and finding a Baker happy to make the cake you want. There was never any doubt that the couple couldn't get a cake that they wanted. They just couldn't make this Baker do it for them, especially for them.
Maybe something here many are missing. David French of NRO and Never Trump came writes;
Had Kennedy stopped his opinion at that point, Phillips’s victory would have been important, but profoundly limited. The obvious response would be for the commissioners to reconsider the case, cleanse their rhetoric of outright hostility, deliver the same result on a cleaner record, and put the more difficult free-speech claim right back in the Court’s lap. But Kennedy didn’t stop. He found a separate ground for concluding that Colorado was motivated by anti-religious animus, and that separate ground will make it difficult for states to take aim at “offensive” religious exercise, even when it occurs in a commercial context.
It turns out that the state of Colorado had protected the right of bakers to refuse to create cakes with explicitly anti-gay messages. Here’s Kennedy again:
On at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service. It made these determinations because, in the words of the Division, the requested cake included “wording and images [the baker] deemed derogatory.”
But wait. Can the state make those distinctions? Can it protect the right of one baker to refuse an “offensive” message without extending protection on an equal basis to other bakers? Kennedy’s words are key:
A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. . . . The Colorado court’s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.
Let’s put it differently. All bakers — regardless of religion — have the same rights and obligations. At the same time, gay and religious customers enjoy equal rights under state public-accommodation statutes. Any ruling the commission imposes will have to apply on the same basis to different litigants, regardless of faith and regardless of the subjective “offensiveness” of the message.
So it seems a larger victory than perhaps people think.
You have to make it so that the dumbest person in the room gets the joke or you'll get slammed for what the person who needs to get bonked on the head to see humor thinks you said.
...in which AA elegantly illustrates the intellectual depths of your average snowflake.
chickelit: “What a fraud! Time for more Democrats in the Senate, obstruction of Trump nominees, and for God's sake get a Democrat in the White House in 2020."
As pointed out in the past, Althouse sheds IQ points with ease on these matters.
I am one of those who has made that observation in the past, most vividly in the aftermath of the Memories Pizza events.
I didn't say that here though (I went back and checked on what I wrote in the original thread as well).
It's clear to me that the Prof is not writing in her own voice here, but instead characterizing and describing an argument that democrats could make to America's dumbest people and drum up fundraising among anti-liberty happy-face fascists if they lost this case.
And I think she is correct... they will make that argument. But I think it's a losing argument. Elections for Democrats have not gone well since they started going after Christian caterers and wedding vendors with torches and pitchforks.
Thought experiment: A Muslim congregation sues because a construction company refused to build their mosque.
The go before the city commission to appeal.
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 the Muslim faith as despicable and characterized it as merely rhetorical, and compared the invocation of these sincerely held religious beliefs to defenses of slavery and the Holocaust.
Who thinks Sotomayor and Ginsburg vote in favor of the commission?
At least in this case you can’t have your cake and be gay too.
But on a serious note, this opinion by Kennedy is clearly transitional. You can’t help when reading it to understand that future non-messy cases that make it to the Supreme Court will find the court ruling against discrimatory behavior by businesses.
Pastries haven't been this important since Ich bin ein Berliner.
As I stated in an earlier thread, I don't see this case as an issue of gay rights versus religious freedom. In a broader context it is about the power of government to compel people to enter into contracts.
I wonder if any of the SCOTUS justices touched on that in their opinions.
eric @ 1:29
Am I correct this means that if a baker would be violating state anti-discrimination statues if a baker refused to bake a cake with no unique or distinguishing language or symbols?
For example:
A baker bakes for couple A one 3-tiered buttercream cake with raspberry filling for couple A with frosting flowers & fresh flowers on top and NO other identifications...
the same baker is required to bake the same or similar cake for couple B?
Assuming both couples can pay? And there are no economic obstacles to baking the three tiered buttercream cake?
And I think she is correct... they will make that argument. But I think it's a losing argument. Elections for Democrats have not gone well since they started going after Christian caterers and wedding vendors with torches and pitchforks.
I believe this attitude is no longer with us. Never Trump seems to hold this belief which boils down to you have to lose in order to win.
But what's the point of winning if you won't get what you want?
Trump has shown me that you can't be afraid to lose. You've got to go after what you want and worry about the rest later.
Well, I want to win these SCOTUS cases. If it means losing elections afterward, so be it.
eric @ 1:29
sorry - that was a messy post.
Do you mean a baker would violate Colorado's anti-discrimination law if he refused to bake a cake with no distinguishing marks?
For example: If the baker made a buttercream 3-tiered, simple, fresh-flower covered cake for couple A-- can he refuse to make this generic cake for couple B if couple B can pay for the cake?
Blogger wwww said...
eric @ 1:29
Am I correct this means that if a baker would be violating state anti-discrimination statues if a baker refused to bake a cake with no unique or distinguishing language or symbols?
I'm not sure this case addresses that. I'd say you're correct though. If Walmart has a cake for sale, it cannot refuse to sell it to someone.
The number of people opining on the case who can't grasp the difference between a public accommodation and a private contract entered into at arms length between two entities for forward services is depressing.
I'm still waiting for America to decide to overthrow the 1960s Civil Rights acts as unconstitutional for violating our basic freedom of association rights. Will it happen in our lifetime?
Interesting. Kagan & Breyer are not 100% diehard leftists. Wise Latina & Ancient Ginsburger are.
@eric 1:45
Most bakeries make generic cakes on order -- otherwise they taste yucky and dry. And you can't be assured that your cake is ready unless you order it for the date of your event. I bought a pie for a party a few months ago in this manner.
My parents bought our wedding cake. The baker had several "generic" options. You choose frosting, filling and size. The baker put some flowers on top. Buttercream frosting. No images, signs, distinguishing marks. We valued how the cake tasted over the other crap.
The cake could have been used for a very large baby shower. Nothing distinguishing on top.
This is the type of cake I mean. Generic. Nothing on the cake made it a specific "wedding" cake.
They had it right: The CRA's scope was limited. It preserved private property and freedom of association rights in general, carving out some very narrow exceptions that only applied to places of public accommodation.
Wedding caterers and photographers don't meet that standard. The law was written that way, narrowly defining "public accommodation" for a reason.
The problem is libtards can't grasp what "public accommodation" means. They don't care. Witness all the demented slather from them about "if you want to discriminate don't open a 'public business.'"
These simpering morons think a "public business" is a thing.
This can't be made settled until the original mistake is fixed, the civil rights law that forces service in other than monopoly markets.
To have to claim a religious objection is ridiculous.
Jason @1:50
Not sure how much this matters because we're talking about the legality of anti-discrimination statutes. Under these state anti-discrimination statutes, a journeyman plumber can not refuse to work because someone is Jewish or African American.
A cake is distinguished with specific language/pictures vs. a generic tiered buttercream cake with a couple of fresh flowers on top. Legally, can a generic buttercream cake with flowers be determined to be objectionable or obscene under the Colorado state statute?
This whole issue was settled in the 1960s when the government told Woolworth they had to serve blacks. The country decided forced anti-discrimination was a more important than the Constitution.
wwww... fact is these statutes have validity because the courts keep saying they do. We keep electing judges and politicians who appoint these judges for the last 50 years. Society is in favor of this statutes, there is nothing we can do about it.
@Dan The Man,
Some of the commissioners at the Commission’s formal public hearings...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.
Two Supreme Court justices thought all of that was just fine.
This is an example of the foundational moral delusion at the heart of modern Progessivism:
Morality based on Revelation is irrational
My Morality is not based on Revelation
Therefore: My morality is rational
Even if it's true that Religious Morality has been used to justify things that are now considered moral evils (e.g. slavery), does that mean that Revealed Morality is always wrong? Has "Secular" Moral Reasoning never produced bad results (e.g. The Cultural)? Revolution, and thus, by that line of reasoning be every bit as suspect?
It amazes me that so many people who ought to know better don't realize that Moral Philosophy's a mess. It's not like you kick out all the God-Talk and it all becomes perfectly clear. No way, no how.
Ginsberg won’t make it 6 more years.
Replacing her is going to be awesome.
This can't be made settled until the original mistake is fixed, the civil rights law that forces service in other than monopoly markets.
rhhardin @ 1:55
Not just 1 law. This would be judges overturning individual state statutes. Some states have specific provisions written into their state constitutions. Judges would need to overturn legislatures and provisions of state constitutions.
This case seems simple. Cake!
But it's not. I can see why SCOTUS wrote the decision narrowly.
Jason said: The number of people opining on the case who can't grasp the difference between a public accommodation and a private contract entered into at arms length between two entities for forward services is depressing.
Seriously.... depressing.
I'm seriously shocked in 2018 if any public-facing small business will actively discriminate against anyone. Why risk losing your business? Over Jesus? Didn't Jesus say to love everyone?
I read the case. It’s a pretty straight forward equal protection case — here discrimination based on religion.
. The court punted on the first amendment speech issue and bungled the free exercise issue by confusing it with a straight equal protection argument. Hell, the opinion seems to imply that every equal protection violation against a person based on their religion is automatically a free exercise violation.
The court never decided if baking a custom cake for a gay wedding is “expressive” or “conduct.” If its conduct, the baker loses both the free speech argument and the free excercise argument because laws of generally applicability that regulate conduct are not unconstitutional. A baker would need a state RFRA law in order to win.
It's weird. When criticizing Social Conservatives I seem to recall that many lefties used to say things like morality should not or can not be legislated. But of course in the view of Progressives, the State is the ultimate determiner of morality. In the Great Secular Church of Progressivism, discrimination based on sexual orientation is most certainly a great immorality. If discrimination is immoral it is the State's job to police it and to punish transgressions. And it's the state's job to compel proper (moral) behavior. It is never the job of the free market to do such things. Only our high priests, the Supreme Court Justices, can determine morality, for they are near divine beings made flesh.
I wish the case hadn't been decided on the basis of religious freedom but on the basis of freedom of expression (that is, the freedom to not have your speech compelled). I think a ruling on that basis would have been clearer and easier for the rest of us to apply. It also wouldn't have been burdened with the baggage of the argument 'a feigned religious belief allows one to discriminate against gays'.
The 1st Amendment free speech protections are designed to protect unpopular speech, so it doesn't really matter -- from a free speech perspective -- if the reason why the baker doesn't want to bake a cake is animus against gays. The point is the 1st Amendment prevents government from forcing him from using his 'voice' to express a message he disagrees with (that a same sex marriage should be cheered). You can disagree with the baker's view, as I do, but still support his right to control his voice.
However, on his blog today, Popehat, makes a good argument why the Court was right to use the approach that it did in deciding the case. This result is limited to the narrow facts of this particular case. Thus, the court acted very conservatively and didn't weigh in on a constitutional question it did not have to in order to render a judgement.
Thomas wrote a blistering partial concurrence; everyone should read it:
If the only reason a public accommodations law regulates speech is “to produce a
society free of . . . biases” against the protected groups, that purpose is “decidedly fatal” to the law’s constitutionality, “for it amounts to nothing less than a proposal to
limit speech in the service of orthodox expression.” Hurley, 515 U. S., at 578–579; see also United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000)
(“Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails”). “[A] speech burden based on audience reactions is simply government hostility . . . in a different guise.” Matal v. Tam, 582 U. S. ___, ___ (2017) (KENNEDY, J., concurring in
part and concurring in judgment) (slip op., at 4).
...
Moreover, it is also hard to see how Phillips’ statement is worse than the racist, demeaning, and even threatening speech toward blacks that this Court has tolerated in
previous decisions. Concerns about “dignity” and “stigma” did not carry the day when this Court affirmed the right of white supremacists to burn a 25-foot cross, Virginia v.
Black, 538 U. S. 343 (2003); conduct a rally on Martin Luther King Jr.’s birthday, Forsyth County v. Nationalist Movement, 505 U. S. 123 (1992); or circulate a film featuring
hooded Klan members who were brandishing weapons and threatening to “‘Bury the niggers,’” Brandenburg v.Ohio, 395 U. S. 444, 446, n. 1 (1969) (per curiam).
I so wish he were Chief Justice.
Pastries haven't been this important since Ich bin ein Berliner.
"I am a donut"?
https://youtu.be/5mu02xUgE4k
Jason said: "The number of people opining on the case who can't grasp the difference between a public accommodation and a private contract entered into at arms length between two entities for forward services is depressing."
I guess I'm one of them. What is a "public accomodation"? Is that a term of art?
Jupiter said: I guess I'm one of them. What is a "public accomodation"? Is that a term of art?
Assuming you are serious. Just shooting from the hip and what I remember of the Civil Rights/Jim Crow laws battle. I have direct experience with Jim Crow in the South when I was a kid traveling with my parents. (Not us being discriminated against, but seeing it first hand)
A public accommodation is the definition of a business that has a physical establishment (I may be wrong on that aspect) that purports to be open to the public and provide services. Restaurants, Movie Theaters, Coffee Shops, Beauty Shops, Hardware Stores, Motels, Bakeries, Taxis, Busses. Because they are open to the general public they cannot discriminate or refuse services (within reason).
Obviously business, like a restaurant or bar or motel or other, can refuse service if you are a destructive, dangerous person, causing disruption, damaging the premises, threatening other patrons etc.
Before the Jim Crow laws were changed, notoriously, lunch counters could just refuse to serve Black people. Motels could refuse to rent rooms. Even something as simple as being able to drink from a public water fountain was forbidden. The public accommodation laws are a good thing.
The difference between a public accommodation business....like a regular bakery and a business that contracts for forward services is that. The bakery has items for sale. Already made. Generic cakes, cookies, danish etc.
The baker may also offer OFF premises sales of special orders to be made....in the future....by contract and customized just for you. AKA. A Wedding Cake. Or Birthday Cake. Those are not a "public accommodation" in that the baker can really for any reason decide to not be contracted. Maybe he is sick this week. Too busy. Or has an objection that is fundamental to his beliefs that make him decide to nope out of the contract.
In this case it was religious objection to same sex marriage. In another case it might be that he objects to your Heil Hitler Nazi's Were Great/Kill the Jews cake. It doesn't matter. He can't be forced (or used to be the case) to contract with you do do the work.
Pretend it was the Hardware Store, owned and operated by a contractor who also builds yard fountains. The hardware store must sell you anything that they carry. That is public accommodation. You cannot MAKE the contractor build you a fountain that is objectionable to him....Say...Jesus upside down in a piss yellow water fountain. Or one with a Nazi Swastika.
Didn't Jesus say to love everyone?
Yes, but he didn't say "Endorse their sins!".
DBQ,
I'm afraid I don't see the distinction you are trying to draw. A drinking fountain is presumably provided by the government, and the government should not discriminate on the basis of race or sex, although it does so routinely. But everything else you describe is private property. You seem to be saying that what distinguishes a "public accomodation" is when the goods are made. I'm not buying it. When is a haircut made? Is a barber shop a public accomodation?
As defined in the CRA, Title II, a "place of public accomodation" is basically a hotel, restaurant, or place of public entertainment. Doesn't say anything about retail stores. So, it has no relevance to a cake shop, unless it is a "facility principally engaged in selling food for consumption on the premises". Perhaps the State of Colorado has a more expansive definition?
wwww -- Allow me to address your question regarding a generic cake. First, let's stipulate that we're talking about a custom, albeit very plain, cake. We're NOT discussing one that's in the display case, ready for sale.
The legal question turns on whether or not making a custom cake is considered a form of expression. Eugene Volokh believes that it is not. He bases this belief on some case law that held that making certain forms of pastries and other types of food were not 'expressive' for purposes of the 1st Amendment. I disagree. (Volokh is an acknowledged 1st Amendment expert. I'm not an acknowledged expert in much of anything.)
My argument is based in life experience and case law. My wife makes wedding cakes. She does so as a hobby, not as a profession. But, she's very good at it. (Professionals have often tried to hire her when they've seen her work.) She makes cakes for family and friends -- mostly for girls she taught in Sunday School when they were growing up. Anyway, I've seen the amount of creative effort and energy that she puts into every cake she makes. Each one is designed to express the spirit of the couple's romance, the essence of their hopes for their life together. To that end, she selects the colors and flowers and other objects used to decorate the cake (with, of course, the bride's input). If that's not an expressive activity in the eyes of the law, then, with Dickens, I say, "The law's and ass."
There was a recent district court case out of California that held that the State could not force a Bakersfield backer to make a wedding cake for a same-sex marriage. The court noted that the purpose of the cake was to be the centerpiece of the couple's celebration of their wedding. That is, the cake was central to the couple's message: "We're happy to be married!" By forcing the baker to make the cake, the State would be compelling her to assist with the delivery of the couple's message of affirmation about their message -- something she did not wish to do. The Constitution does not permit the government to compel someone to use their 'voice' to advance a message they disagree with. Thus, the State could not compel the baker to make the centerpiece for the couple's wedding celebration.
I did not see anything in the language of the court's opinion that would limit it's holding to highly decorated cakes. Even a fairly plain, generic cake -- as long as it's custom, would seem to have been covered by the logic of the ruling.
One other case lends weight to the California court's decision. IIRC, in a case out of NJ, a group wanted some t-shirts printed for a gay pride event. They went to a local custom t-shirt shop, which refused the commission. The group sued. The court ruled for the shop. Why? Even though the group was providing the artwork and all the shop had to do was print the shirts (so there's no question of where this falls on the 'art' vs. 'service' continuum), the court said the shop could not be compelled to assist the group in creating and delivering its message. That would be 'compelled speech' which the Constitution forbids. Why should backing a cake be afforded less 1st Amendment protection than printing t-shirts?
The EEOC says "Places of public accommodation include a wide range of entities, such as restaurants, hotels, theaters, doctors' offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers." But that's for the ADA.
So who was it that was berating us for not knowing what a "public accommodation" is? It appears a "public accommodation" is whatever a governista says it is.
Also, the CRA says "All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation...". I would guess that "services" includes "forward services", and contracts for same.
So let me get this straight. There is an artistic exemption in the Constitution that allows you to discriminate, but if you are just 'meat & potatoes' business owner you have to serve everyone?
So, a baker/printer/photographer can discriminate because HURR DURR ARTIST HURR DURR. But a bed & breakfast doesn't want to serve gays but the government will tell them they have to.
DBQ -- Historically, a public accommodation was not merely a business open to the general public. It was a small subset of businesses that catered to the traveling public. The thought was that (particularly while traveling) no one should run the risk of not being able to get a room or a meal merely because of the color of their skin. To avoid this result, the legislature crafted and the courts allowed this narrow exception to the Constitution's freedom of association protections. The problem is that once was the exception has now (virtually) swallowed the entire rule.
It appears that both sides won a little bit in this decision. Gay people were told that they are deserving of “dignity and worth” and religious freedom advocates get an expansion of the Free Exercise Clause.
But was anything resolved? Freedom of speech issues and LGBTQ rights weren’t resolved. Undoubedtly more such cases will be heard in lower courts.
Inga, so in your mind do religious people have any "dignity & worth" or they just exist as foils for LGBT crusaders?
“Inga, so in your mind do religious people have any "dignity & worth" or they just exist as foils for LGBT crusaders?”
All people have dignity and worth.
Oh really? Not according to your leftist friends over on Slate or Trevor Noah's show. Ridiculing religious conservatives is the order of the day over there.
“So let me get this straight. There is an artistic exemption in the Constitution that allows you to discriminate, but if you are just 'meat & potatoes' business owner you have to serve everyone?”
I think the Justices focused on the religious freedom of the bakers in this case, moreso than their artistic expression or free speech.
Well it better be, because there is no 'artist' exemption in the 1st Amendment. That has to be the most moronic defense of religious liberty I ever heard of. However given freedom of association is not allowed in modern America if I were a religious baker I'd argue artistic freedom if that's what got me the 'win'.
Jupiter. I would guess that "services" includes "forward services", and contracts for same.
You should stop "guessing."
“In this case it was religious objection to same sex marriage. In another case it might be that he objects to your Heil Hitler Nazi's Were Great/Kill the Jews cake. It doesn't matter. He can't be forced (or used to be the case) to contract with you do do the work.”
Yes, the religious freedom aspect was ruled on, but not the free speech aspect. So if a baker refuses to bake a cake with an objectionable word or symbol, this decision would not set a precedent. Today’s ruling was a narrow ruling on religious freedom, not addressing the free speech rights of certain groups of non religious groups.
This whole issue was settled in the 1960s when the government told Woolworth they had to serve blacks. The country decided forced anti-discrimination was a more important than the Constitution
Probably Woolworth wanted to serve blacks. Business is business. There was state or public violence going against it. Nice store you have here too bad if you serve blacks.
That was the sort of monopoly market that intervention is justified in. Monopoly of violence.
Rather often forcing people to do what they'd prefer to do anyway, but freeing them of the monopoly control of who their customers can be.
Jason said: The number of people opining on the case who can't grasp the difference between a public accommodation and a private contract entered into at arms length between two entities for forward services is depressing.
Yes. It is.
In some cases, it's about people who have agenda. In other cases, it's about people who are not that smart.
No names will be provided.
The personal is political, also termed The private is political, is a political argument used as a rallying slogan of student movement and second-wave feminism from the late 1960s...
DKWalser,
Thank you for your comment. It's interesting, and it helps me to understand a different perspective. I've been perplexed by all of this focus on cake. Just about every wedding I've been to has been a neutral coloured cake with flowers on it. I did go to one wedding where the couple had a Star-trek themed cake.
It would never occur to me to put special colours or symbols on a wedding cake. My take was, "make it delicious and put some flowers on it!" For me, the ceremony was sacred, but the reception was just a party. I have no idea who made the cake, as my parents arranged it.
Honestly, I would be disturbed if a baker, who was not a friend, wanted to know intimate stuff about me and my husband. My husband and I are introverts! I am not the target audience for this issue. I was not the kind of bride who spent a lot of time thinking about wedding colours.
I think we spent all of 30 minutes on making decisions about the cake. My parents called to ask me and my husband to select frostings and flavours. I was very opposed to that fondant type of frosting that looks good but tastes horrible. We had buttercream cake and the interior of the cake was infused with a raspberry wine. Our cake looked very similar to Meaghan's and Harry's cake, but our cake was not placed in gold settings.
Delicious cake. We got complements on it.
Probably Woolworth wanted to serve blacks. Business is business. There was state or public violence going against it. Nice store you have here too bad if you serve blacks.
What people tend to forget (or are to young to have ever known) is that the laws in many cities and states required discrimination against blacks. It's not that the owner of a particular lunch counter wanted to discriminate against blacks; the law required him to either serve whites or blacks. Both could not be served. The law required blacks to sit at the back of the bus. The law required separate hotels to prevent the mixing of the races. This is what the Democrats with their Jim Crow laws imposed throughout much of the South.
You might have thought that the federal government could have simply abolished such forced discrimination. The fear was too many in the South would continue to discriminate, so the law went the extra-mile and outlawed discrimination, too. I wish that the more conservative approach had been tried. Perhaps it would have proven sufficient. The more robust version has proven to have many undesirable and unintended consequences.
They weren't shopping for a cake; they were shopping for a case.
I think 99% of the population does not want to do business with any vendor who did not want the business. People do not want to spend their hard earned money on people who don't like them, or who do not want the business. There's no shortage of vendors out there.
Mentally healthy people don't want to waste their time and are happy to avoid association. Nobody wants to bring that sort of negativity into their wedding. You want stuff to arrive on time and in a professional manner.
wwww. we need activists to do the heavy lifting of fighting bigots so the rest of us can lead stress free lives.
Cake. MUST. EAT. CAKE.
more subtle, smirky hostility will eventually carry the day
Late to the party, but I'll just say we now have the precedent of examining any and all comments someone has made -- such as tweets -- in order to find evidence of bias.
No, Mark. We don't have that. We have commissioners (effectively judges) expressing hostility during the hearing (essentially trial). It is a longstanding rule that judges avoid hostility to those appearing before them.
judges =/= politicians
wwww. we need activists to do the heavy lifting of fighting bigots so the rest of us can lead stress free lives.
Right! I know that the stress levels in my life are sooooo much lower just knowing that these righteous individuals are working tireously for the common good. Nothing calms the nerves like knowing your career might be ruined by a remark taken out of context, following company policy (and being made the scapegoat for same), or for having the temerity to express an opinion that -- until 5 years ago was held by the majority -- is is considered a thought-crime.
Here's a post of mine I dug up from the Althouse blog during oral argument last December.
I stand by it, still: People who think this is limited to religious liberties miss the point entirely.
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.
“The Supreme Court ruled today in favor of Jack Phillips, a Colorado baker who refused to make a custom cake for a same-sex couple because he believed that doing so would violate his religious beliefs. This was one of the most anticipated decisions of the term, and it was relatively narrow: Although Phillips prevailed today, the opinion by Justice Anthony Kennedy rested largely on the majority’s conclusion that the Colorado administrative agency that ruled against Phillips treated him unfairly by being too hostile to his sincere religious beliefs. The opinion seemed to leave open the possibility that, in a future case, a service provider’s sincere religious beliefs might have to yield to the state’s interest in protecting the rights of same-sex couples, and the majority did not rule at all on one of the central arguments in the case – whether compelling Phillips to bake a cake for a same-sex couple would violate his right to freedom of speech.”
http://www.scotusblog.com/2018/06/opinion-analysis-court-rules-narrowly-for-baker-in-same-sex-wedding-cake-case/
Royal ass Inga,
Can you tell me what the composition of that future court is, that ScotusBlog anticipates? Is Kennedy still on the Court or has Trump given us another Gorsuch-type? Has Ginsberg finally passed to be replaced by a Gorsuch-type?
Good luck with your futuristic wishcasting.
Birkel Clavin go get yer shine box!
Fritz
"They weren't shopping for a cake; they were shopping for a case."
!
"They weren't shopping for a cake; they were shopping for a case."
!"
Precisely.
Despite what Inga posted I think at least one justice argued this case on freedom of speech grounds. Any artist is free to accept or reject commissions .
It's fine TTR, I'm correct and you don't like where reality is heading. There's not a lot to be done to reconcile your wishes for a Leftist Collectivist future and the current trajectory.
I look forward to two more Trump appointees on the Court. Only slightly less awesome will be witnessing the caterwauling of the Left.
I look forward to two more Trump appointees on the Court.
He could very easily get three more, especially if he gets a second term.
RBG just turned 85.
Breyer is about to turn 80.
Kennedy is about to turn 82.
If RBG dies, or is forced to leave (she'll never leave voluntarily as long as a Republican is in office) Trump gets a chance to appoint an originalist to the court. This gives the originalists a five seat majority. Thus Kennedy goes from being the most important vote on the court to the least important. There's a good chance that convinces him to retire and Trump gets appointment number three. Breyer probably sticks around hoping for a Democrat in 2020 or 2024, but he's getting old and things happen.
Among all of his many ongoing successes, Trump has the potential to leave us with a solid 7 vote originalist bloc on the court.
Gahrie,
Reading your contribution I am filled with an overwhelming hopefulness. I want to make babies with that particular possible future.
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