June 5, 2018

Masterpiece Cakeshop is not a judicial masterpiece.

It's kind of a mess! It's the Cake Wrecks of opinions...



I'm reading Richard A. Epstein at SCOTUSblog, "The worst form of judicial minimalism — Masterpiece Cakeshop deserved a full vindication for its claims of religious liberty and free speech." And he wants something CLEAR!
Judicial minimalism may sound nice in theory. But where the court is faced with a clear question of high principle, the whole nation loses when it is handled in a muddled and ham-handed way. The Cakeshop fiasco needs to be put behind us. A decision that gives blanket exceptions for religious liberty on grounds of sincere belief does all that is needed to protect religion while leaving the basic structure of CADA intact. Pity that this Supreme Court decision opens yet another chapter in the endless culture wars.
In art and architecture, minimalism gets you to something sleek and simplified and instantly comprehensible. You get the opposite from judicial minimalism, which holds back from stating big clear rules and makes a special case out of this one case, resolves it, and leaves us on our own to figure out how like or unlike it is to the next case and whether this or that factor ought to tilt the outcome another way.



It's not aesthetically pleasing! Epstein offers a clear rule that he wishes the Supreme Court would adopt: "blanket exceptions for religious liberty on grounds of sincere belief." That's at the opposite end of the spectrum from the clear rule that Justice Scalia articulated in Employment Division v. Smith, which Epstein calls "one of the late Justice Antonin Scalia’s worst opinions."

Scalia liked clear broad rules, and his rule — which is the Court's most important statement of the meaning of the Free Exercise Clause — is that the government can hold everyone — even those with religious compunctions — to "neutral, generally applicable" rules.

Smith was not judicial minimalism. And Masterpiece Cake doesn't question the big general rule of Smith. What Masterpiece Cake does is find a lack of neutrality: The government didn't get into the big safe harbor Smith's clear rule because it expressed hostility to religion. Don't do that, government, and you'll be out of the exception and into the big, non-minimalist rule.

So what the Court can't tell government exactly when hostility will be detected? Government is tasked with suppressing contempt for religion and making it seem as though religious people get treated with neutrality. That's the fuzziness Masterpiece Cake left us with, but that fuzziness was always there around the edges of Smith.

Don't let Epstein bamboozle you. He wants to flip Smith. And Antonin Scalia is not here to defend his legacy.

98 comments:

Matthew Sablan said...

I think the only way they got anything but a 5-4 "tyranny of the conservative justices" narrative was to be minimalist.

David Begley said...

“Government is tasked with suppressing contempt for religion and making it seem as though religious people get treated with neutrality.”

That’s a clear rule. But the problem with it going forward is that other government agencies and tribunals will just mask and hide their contempt for religion. Similar to what colleges did with their admissions policies,

I liked the decision as it sets up the decision in a future patent case that smacks the kangaroo court known as the PTAB.

The thing is that judges have to decide the case presented to them and not skip over the important law stuff like due process, fair tribunals and jurisdiction. Judicial restraint and all that,

rhhardin said...

Epstein wants to flip to freedom of association except in monopoly markets, which solves the whole mess without bringing in religion as a safe harbor at all.

Diogenes of Sinope said...

Turley had it right, this should have been a broad freedom of speech ruling. Now we can expect decades of individuals having to prove their "real" religious beliefs in court. Seems backwards, shouldn't the burden of proof be on the accuser? Isn't it a violation of our freedom of religion rights for our beliefs judged by the government in court? There's something wrong with an individual having to document and prove their religious beliefs to have the right not to be subject to compelled speech or actions?

Original Mike said...

“Epstein wants to flip to freedom of association except in monopoly markets, which solves the whole mess without bringing in religion as a safe harbor at all.”

Me too.

The Colorado Civil Rights Commission thinks making that first cake illegal fixes something. They’re fools.

Owen said...

rhhardin: agree. It would be simpler that way but I think the battle was lost when the civil rights legislation swept up "acommodation" in commerce. As the protected classes proliferate, merchants have ever-less scope to exercise religious belief. That's fine when you are selling widgets: the design is what it is, customers can choose to buy or not. But when the customer brings xir design and demands that you make it? Are you free to decline the commission? For religious reasons or any reason or for no reason at all?

Roy Lofquist said...

SCOTUS politics as usual. Trump needs one or two additional justices to bring some measure of clarity to the court. Kennedy is likely the first. Ginsburg (85) and Breyer (79) are possibilities for the second.

Ann Althouse said...

"That’s a clear rule. But the problem with it going forward is that other government agencies and tribunals will just mask and hide their contempt for religion. Similar to what colleges did with their admissions policies."

That's exactly what I say in the post. Smith is the clear rule, but to get to it, there needs to be neutrality. That leaves a question where neutrality ends. That was always a fuzzy edge to Smith. If the state wants to be in the safe harbor, let it do all it can to be neutral. If it challenges where the line is, there will be litigation. This is always part of the problem with clear rules. There's the edge of the rule, and it relates to real-world facts that can be fuzzy. And those making the decisions could always be secretly making them for the wrong reasons and in a position to cover it up. That's what happens when you trust people with power. Human beings are running things. What's the alternative?

Ann Althouse said...

If you have a right to religious exceptions from general rules, you also have a problem with the deceptiveness of human beings. Anyone who wants to do anything that's against the law could claim a burden to his free exercise of religion. How do you know when that's phony? Epstein wants "blanket exceptions for religious liberty on grounds of sincere belief." Looking for that sincerity is at least as problematic as looking for the government's neutrality. There's very little willingness to take the sincerity question seriously. The social norm is, strongly, to just accept that anybody who claims a religious belief is telling the truth. But if that's the way you evade a rule you don't like and you're getting away with too much, those of us who follow the rule might become quite skeptical and cynical.

Me, I tend to doubt that people believe what they say they believe, but it's something I refrain from expressing to an individual believer.

Quayle said...

We must use the powers of the state to coerce from others adherence to the state’s sense of morality here, because why? Because it is so difficult to find artists that are supportive of gay marriage that can make a celebrative cake?

Don’t tell me that, civil rights jerk-commissioners or not, this isn’t all about hostility to religious people. We’re not talking about the need for lodging after a long drive or basic food on which to subsist.

The courts long ago ventured to distinguish between fundamental rights and rights that are not fundamental. This case could easily have been resolved satisfactorily with a similar distinction of the right to fundamental commercial services versus non-fundamental commercial setvices. It is hard to argue that someone needs a particularly expressive cake to subsist.

And Epstein is right. Emp. Div. v. Smith is a horribly reasoned decision.

Quayle said...

If someone says it’s my religion to make cakes and walk out the door and shove them in people’s faces I think we can all agree the state might have an interest to stop that behavior.

If someone says it’s my deeply held religion to make cakes and sit here Inside my door and sell them to who might voluntarily walk in my door to buy it if I happen to like that person: on what basis would anyone argue it’s the state has an interest to coerce that person on any grounds? Regardless of whether it’s a generally applicable law?

We crossed a line when we started invading peiple’s right to be harmless jerks (in our eyes).

Amadeus 48 said...

"Me, I tend to doubt that people believe what they say they believe..."

I doubt that you believe that.

You mean like that?

Chuck said...

And, remember this people: if you don't like what happened to the Masterpiece Cake Shop (as I don't), and if you see yesterday's Supreme Court decision as a weak, messy defense of the cake shop (as I do), then don't enact those kinds of state "civil rights" laws. Don't give panels of unelected commissioners the kinds of powers to demand that everyone celebrate homosexuality.

We're stuck, of course, with the lingering messes of the line of cases beginning with Kennedy's breathtakingly bad decision in Lawrence v Texas. Where it is declared that there is a federal constitutional right to homosexual sodomy. And which led, inexorably and despite Kennedy's promises that it would not, to federal rights to homosexual marriage and the various liberal state schemes like Colorado's "civil rights" law.

It was a mess that Scalia predicted with uncanny precision, in his Lawrence dissent:
"At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it."

Amadeus 48 said...

All you really need to know about the quality of justice in Colorado is that cake bakers are allowed to refuse to bake cakes with anti-same sex marriage messages on them. Viewpoint discrimination is open for business in the Centennial State. It has been Californicated.

David Begley said...

“Human beings are running things. What's the alternative?”

No alternative. But the people running things need to be moral and respect the rule of law.

Mark said...

Smith was likely Scalia's worst opinion. General applicable laws sounds reasonable, except that the reality of disparate impact shows how groups can be targeted without being overtly so. Laws need to work in the context of facts, and when "general" laws factually really apply only to one group because the other group already agrees, then it is no longer general. So the Scalia framework falls apart.

Further, the whole enterprise has failed to take into account that in a free society, freedom is shared among different people with different interests and desires and beliefs.

Consequently, in a free society, freedoms of one are necessarily going to come into conflict with another. The answer in a clash of competing freedoms is not to use the power of government to force one to capitulate to the other. It is not the role of government to choose sides.

In a free society, what has historically worked is voluntary association. A system of voluntary association also has the benefit of being consistent with the Thirteenth Amendment, which rightly prohibits involuntary servitude.

There are plenty of places that same-sex couples can go to purchase a cake for their ceremony without compelling someone to do so against their will, whatever that person's reasons for not wanting to do so.

MadisonMan said...

Where it is declared that there is a federal constitutional right to homosexual sodomy.

Is there a right to heterosexual sodomy? (Asking for a friend)

Why should the Federal Govt care into which orifice an erection is inserted?

Dear Feds: MYOB.

mccullough said...

Epstein wants to have his cake and eat it too.

Scalia was a very smart guy. Epstein is a dork.

Mark said...

I tend to doubt that people believe what they say they believe

And when we doubt that you actually believe that?

A society based on distrust cannot work.

Quayle said...

Begley says “No alternative. But the people running things need to be moral and respect the rule of law.“

That is necessary but it is insufficient. The core issue with which we are struggling is that we originally established a layer of “rule of law“ on top of a religious foundation comprised of duties to God to treat other human beings with either kindness or at least respect. We are now trying to live in a layer of “rule of law” that has been moved to a foundation of nothing or a foundation of Darwinian “strong eat the week.” Thankfully up till this point a majority of us have recoil from the raw power-play of Darwinism, So we’ve tried to fill the void in the foundation with civil laws attempting to create a duty to the state to be nice to people. but if you look at our political divide today you’ll see more and more people being willing to play in the Darwinian power-play game, Judeo-Christian foundation be damned.

And we wonder why these legal problems become so difficult? Because there’s no substitute for the religious foundation that urges kindness and civility is a duty to God.

Quayle said...

Sorry Begley. I was imprecise. You said “moral”. Yes, I agree that is sufficient, if that morality is defined as treating others with kindness and respect.

Bob said...

It seems the Supremes are also involved in culture wars.

traditionalguy said...

Masterpiece Cake in a nutshell:The Art of passive aggression takes practice. The more passive you pretend to be, the more you can run over the weak that wish you loved them.

Angle-Dyne, Angelic Buzzard said...

"Pity that this Supreme Court decision opens yet another chapter in the endless culture wars."

You don't get endless culture wars because of unaesthetic, rube-goldberg Supreme Court decisions. You get endless unaesthetic, rube-goldberg Supreme Court decisions because of culture wars.

In the end, you don't have anything resembling a coherent body of law left, just a shaky contraption that falls apart once running around and venting the pressure here, and shoring up a wall there, just doesn't work anymore.

Bad Lieutenant said...


Mark said...
I tend to doubt that people believe what they say they believe

And when we doubt that you actually believe that?

A society based on distrust cannot work.


I dunno... I was thinking, Robert Mueller could use a gal like Althouse on his staff. "I tend to doubt that people believe what they say they believe" = instant perjury. Ann's 302 would be all Mueller would need.

Owen said...

Mark: "...A society based on distrust cannot work.". True, but a society based on skepticism will. Trust, but verify.

rhhardin said...

Richard Epstein on religious liberty and anti-discrimination laws, tradeoffs in the Epstein style
https://www.hoover.org/research/problem-antidiscrimination-laws
4/15/2015

He's talked about it since the 70s or so there are lots of instances.

Tank said...

Religious freedom of association is a subset of freedom of association generally. The problem started when the Gov't decided to start impinging on freedom of association. Without it, men are not free. As with all freedoms, you may not like the way that plays out.

Freder Frederson said...

The problem started when the Gov't decided to start impinging on freedom of association. Without it, men are not free.

And with it, some men remain slaves.

mockturtle said...

"In art and architecture, minimalism gets you to something sleek and simplified and instantly comprehensible".

I take issue with this assertion. In architecture, and possibly in art, simplicity is often the least comprehensible. What makes minimalism so appealing is its implied complexity: What must be eliminated to accomplish it. If that makes sense.

Rob said...

Only Justice Thomas planted the flag for the robust First Amendment interpretation I hoped for—against compelled speech, and accepting the inevitability that freedom of expression is going to leave some with hurt feelings, and so be it.

Hagar said...

"Your right to swing your fist ends where my chin begins."

It should not be necessary for me to "prove" the genuineness of my religious beliefs, or if I have any beliefs at all. It should be sufficient that I do not wish to do business with you, and it would be up to you to to show a reasonable claim that you suffered any injury from my refusal.

Hurt feelings should not count in a court of law; only proof of actual injury.

rhhardin said...

And with it, some men remain slaves.

Read the Epstein and tell me what you think.
https://www.hoover.org/research/problem-antidiscrimination-laws

Browndog said...

The Court orders the commissioners to "fix" this case by removing religious hostility.

This case wouldn't exist without religious hostility.

Curious George said...

"MadisonMan said...Where it is declared that there is a federal constitutional right to homosexual sodomy.

Is there a right to heterosexual sodomy? (Asking for a friend)

Why should the Federal Govt care into which orifice an erection is inserted?"

This may shock you, but homosexual or heterosexual sodomy...same orifice.

mockturtle said...

This case wouldn't exist without religious hostility.

Exactly so, Browndog! In the pecking order of protected citizens, Christians are just about at the bottom. So the rights of just about any other group--Muslims, transgenders, gays, Communists, people of color [IF they aren't Christians] and even animals--will trump theirs.

becauseIdbefired said...

A decision that gives blanket exceptions for religious liberty on grounds of sincere belief does all that is needed to protect religion while leaving the basic structure of CADA intact.

How can that be constitutional (not that I can see how CADA can be since it abridges free speech).

Are other deeply held beliefs somehow not as valid as deeply held religious ones?

"Congress shall make no law respecting an establishment of religion"

AlbertAnonymous said...

Good luck with that plan. Supremes are narrow (and should be generally), but then they do shit like Obergefell or Roe and just make stuff up.

And don’t get me started on the 2nd Amendment jurisprudence (or lack thereof). They should have taken the California case last year. Could have even been a narrow ruling.

Illegal to carry a handgun openly in California. The whole state, blanket illegal. And you can’t carry concealed without a permit. But some county sheriffs (those who issue the permits) require a showing of special need before they’ll issue a concealed carry permit. In the case, the San Diego sheriff got sued because he wasn’t issuing permits. Essentially the plaintiff couldn’t carry open or concealed.

What other constitutional right requires a permit and showing of special need in order to be exercised by a citizen?

DKWalser said...

I agree that Epstein wants to flip Smith, which is why I wish the Court had addressed the freedom of expression question. Thomas, in his concurring opinion, addresses the question and finds that the creation of a custom wedding cake (as opposed to a ready-made cake) is a form of expressive activity worthy of 1st Amendment protection. In reaching this conclusion, he cites a number of books that discuss the symbolic nature of a wedding cake and it's purpose to announce that a wedding has taken place and that it is to be celebrated. He also points to other forms of non-verbal expressive conduct that the Court has found is protected by the 1st Amendment: parades, nude dancing, etc. He believes that the making of the types of cakes made by Masterpiece clearly falls within the kinds of non-verbal expressive activity the Court has protected in the past.

Thomas does NOT hold that Masterpiece would win on this ground. He only says that, having found that the making of a custom wedding cake is protected speech, the government can regulate that speech only after making a showing that would pass the hurdle of strict scrutiny. He notes that the stated purpose of the Colorado statute in this case -- to protect the dignity of a protected class -- is unlikely to meet that strict scrutiny test. If the government interest in protecting the dignity of blacks did not permit it to prevent someone from burning a 25' cross, it's hard to see how its interest in protecting the dignity of gays would allow it to compel speech.

wwww said...

On Freedom of Association: Public Opinion.

An analysis of social etiquette. People who have weak boundaries and give out mixed messages.

People want clear boundaries. They do want to avoid you if you're gonna be a waste of time. You're not special. No one wants to go out of their way for you. Don't waste their time. Don't put them in a position of rejection. People have a responsibility to manage their boundaries.

People get annoyed with acquaintances who waste their time. "Hey, come on over." "Oh, I didn't mean you. I wanted to hang out with your friend." "Yeah, that open sign in the window didn't mean YOU. Ugh! I don't want to associate to YOU!"

"I'm Open" sign is a mixed message if you're not open to the general public. Public opinion is valuable to business owners. Mixed messages annoy people.


if you do not maintain clear boundaries, one should expect the predictable human response to mixed messages.

Hagar said...

I thought then, and still think, that large parts of the Civil Rights Acts of the '60s were unconstitutional. The problem was that it was not just a question of landlords refusing to sell or rent to Black people, but that there was a conspiracy to maintain that practice, i.e., people were told that if they ever did, they and their businesses and families would be ostracized from the local society.
It was long past time to put an end to this conspiracy setting one part of the nation against another, but how to do it? I certainly did not have any better idea than LBJ did, so, however reluctantly, I accepted the Civil Rights Acts and just hoped it would be a temporary measure necessary to break up the Jim Crow system.

But today every construction contractor still have to certify with his bids that he will not provide racially segregated toilet facilities on the job site, though no contractor today would any longer dream of going to the extra expense of doing so.
Instead we have the social justice warriors suing to prevent them from the courtesy of providing separate facilities for the gentler (and presumably more fastidious) sex.

The Civil Rights Acts have gone sideways and no longer serve their intended purpose, but have been "weaponized" for use in the cultural wars among the White gentry.

Owen said...

DKWalser: excellent exegesis, thanks.

Chuck said...

MadisonMan said...
Where it is declared that there is a federal constitutional right to homosexual sodomy.

Is there a right to heterosexual sodomy? (Asking for a friend)

Why should the Federal Govt care into which orifice an erection is inserted?

Dear Feds: MYOB.


If the great state of Wisconsin wanted to ban, or if it wanted to legalize, or if it wanted to say nothing about, homosexual sodomy, I say that it could do that.

And I say that the federal courts, working off of our United States Constitution as it is before us now, have no business saying that a state cannot make homosexual sodomy illegal. Because when the Constitution was enacted, and when it was amended over the years, absolutely no one thought that they were protecting a federal right to homosexual sodomy when in fact there were a great many states with laws against homosexual activity.

You are free, if you wish, to say that such laws are a terrible idea. You'd be free, to act politically within your state to decriminalize homosexual sodomy in any way you choose. Change your state laws; change your state constitution; whatever.

But the Supreme Court is not a super-legislature, empowered to write "just" laws from its position as a wise giver of law and justice.

In Lawrence v Texas, the Supreme Court -- Kennedy and the liberals -- could not simply say that they thought that a law against homosexual sodomy was a bad idea and we are all so much more enlightened now and thanks to the Supreme Court's superior wisdom we can all have better laws. No; the Supreme Court -- Kennedy and the liberals -- had to say that the language in the Constitution including the Fourteenth Amendment was such that no state could ever reasonably have a law that made homosexual sodomy illegal. When in fact, many states and other jurisdictions had such laws when the Fourteenth Amendment (and all of the other amendments and all of the other articles) was passed. That is the most obvious basis for saying that none of the founders and none of the authors of the Fourteenth Amendment had any notion that they would be creating a federal right to homosexual sodomy through Fourteenth Amendment.

Angle-Dyne, Angelic Buzzard said...

wwww: if you do not maintain clear boundaries, one should expect the predictable human response to mixed messages.

No, deliberately seeking to ruin someone who clearly and politely explained his boundaries is not a normal or predictable human response. It's the predictable response of a small subset of spiteful bullying shits who have no respect for the boundaries of other people. The only people getting "annoyed" by the baker were the people who were seeking to get annoyed for malicious fun and profit.

Many times throughout life I've had to "waste my time" seeking out another vendor because the first one or two likely vendors I approached didn't provide the precise variant of the general item or service category I was seeking, and they had not provided exhaustive lists of what they did and did not do in their windows or on their websites. I was not aware that these constituted an injustice requiring remedy and compensation.

Sebastian said...

"there needs to be neutrality."

Hey, Antonin, wherever you are, you crafty old originalist, where does the Constitution say that?

Minimalism is what you get when no one cares about the actual Constitution anymore.

Minimalism is just another way to maximize Supreme Court power.

James K said...

Why should the Federal Govt care into which orifice an erection is inserted?

Not really the issue here. The feds demand (or at least have failed to disagree) that we are not free to disassociate from those who make a big public declaration of sexual proclivities that we find repulsive.

James K said...

The problem started when the Gov't decided to start impinging on freedom of association. Without it, men are not free.

And with it, some men remain slaves.


Huh???

How does freedom of association result in slavery? Non sequitur alert.

wwww said...

"No, deliberately seeking to ruin someone who clearly and politely explained his boundaries is not a normal or predictable human response."


Yes, a very small percentage of people with rejection issues become enraged by unclear boundaries. That's a predictable human response. They will rage against someone who does the push-pull social dance.

No, it's not a healthy response. The healthy response is to do what 99% of the population does, which is to think, "hey, lots of fish in the sea. I don't need you. ciao! Walk away, cut the person from their social world, and be happy.

99% of people do not want to associate with people who reject them. They do not want that rejection in their world; they do not want to associate with people who reject; give out clear boundaries, and 99% people will give a wide berth.

I'm not talking about legalities. It's social dynamics. People don't like messy boundaries. Firm boundaries keep people from humiliating themselves. A 20-something woman who flirts but rejects a man who asks her on a date. People side with the rejectee. Society does not have a lot of patience for unclear boundaries.

Angle-Dyne, Angelic Buzzard said...

Hagar: But today every construction contractor still have to certify with his bids that he will not provide racially segregated toilet facilities on the job site, though no contractor today would any longer dream of going to the extra expense of doing so.

But all this stuff is bureaucratically entrenched, and it benefits the entrenched bureaucrats, and well as other species of gravy-train riders. That it is now hugely wasteful of time and resources, as well as having becoming culturally destructive, doesn't matter, because the people with the power to keep it going are the people who benefit from keeping it going, and they ain't gonna stop until other people are fed up enough to make them stop.

Michael K said...

The social norm is, strongly, to just accept that anybody who claims a religious belief is telling the truth.

I assume that personal history will be the determining factor. The cake shop in Oregon had sold cakes to the two lesbians on many occasions until they asked for the custom wedding cake.

They politely declined and were sued by the two angry lesbians.

The ALJ put the cake shop out of business with a $150,000 fine. He then ran for higher office and was defeated.

They should be a good case.

wwww said...


Most people do not want to associate with vendors who are not interested in the job. Make it clear, and customers will go elsewhere.


Reading these threads: I'm perplexed by the confused boundaries. I do not want to go to a shop who does not want to serve me.

This is what interests me about the cake issue. Not interested in the legalities. But the social dynamics are fascinating. I am an introvert. I do not want a social relationship with vendors. I do not think most people view vendors as friends or guests in their social circle. The assumption of friendship is a presumption. It's a violation of a social boundary.

The vendor has assumed the customer wants an association which the customer does not want.

The vendor says, "This cake means something to me. It means we have a significant relationship. I approve, or disapprove, of your marriage." Most customers are perplexed. The customer does not seek approval or social association. The customer seeks to purchase a material good. The vendor is meaningless to the customer aside from this transactional interaction.

It's socially clumsy, to reject after communicating mixed boundaries. The sign says "open." People with rejection issues will have a strong response. It's a push-pull social dynamic.

Dust Bunny Queen said...

Once again.....everyone is missing the main point.

This is only marginally about religion. It is about freedom of association and the right to NOT BE FORCED TO CONTRACT YOUR LABOR IN AN INDIVIDUAL ONE ON ONE TRANSACTION.

You have the right to refuse to be contracted or forced to work for someone or anyone. You have the right to refuse to associate with people who you do not want to associate with.

It isn't about the cake. It isn't about God. It is about the right to freely choose and not be forced into involuntary servitude.

Jason said...

wwww... they didn't seek out this particular baker because they expected he would make their cake. They sought him out because they knew he wouldn't.

Angle-Dyne, Angelic Buzzard said...

wwww: I'm not talking about legalities.

Yeah, we know (you already told us), which is good, because you think "the legalities" is about cakes.

It's social dynamics. People don't like messy boundaries. Firm boundaries keep people from humiliating themselves. A 20-something woman who flirts but rejects a man who asks her on a date. People side with the rejectee. Society does not have a lot of patience for unclear boundaries.

But "people" aren't siding with the rejectees here, and "people" aren't buying that anyone was "humiliated" here. Even talking about something as nebulous "social dynamics" requires some reference to objective reality, wwww.

And, as a matter of fact, healthy societies with coherent cultures are populated by people who can handle "unclear boundaries" with flexibility and common sense.

It's the decaying ones that require an endlessly proliferating codification of rules.

wwww said...

"They politely declined and were sued by the two angry lesbians."

You can see the rejection issues at play in the history of one of the women. Rejected by her mother. Reunited. If I remember right, they were shopping for cake together. Rejected. Made a complaint. I think it was an on-line complaint. At that point the bureaucracy took over.

In this most recent case, I believe one of the men was shopping with his mother for the cake. Rejected in front of his mother.

People deserve clear boundaries. They have a social right to be told they are not welcome and will experience a social rejection. Otherwise a clumsy social interaction will result. The point of etiquette is to avoid clumsy social interactions.

This is not a legal judgement. It is a social norm.

Inga said...
This comment has been removed by the author.
Inga said...

With this ruling the Supreme Court unambiguously essentially expanded religious freedom laws. So be it. Let’s not hear any more complaints about Muslim cab drivers and Hassidic men who refuse to sit next to women on planes. That’s their right to their religious beliefs. If you agree that freedom of religion is of utmost importance, it is of utmost importance for all religions

wwww said...

"But "people" aren't siding with the rejectees here, and "people" aren't buying that anyone was "humiliated" here. Even talking about something as nebulous "social dynamics" requires some reference to objective reality, wwww."

FYI, narrow rulings are uninteresting to me. I find them boring because they have little implications beyond the specific case. Bowers was not boring. Bowers affirmed the right to criminalize heterosexual and homosexual oral sex. SCOTUS had the power to affirm Bowers. SCOTUS did not have the power to change American society's response to that decision. Societal and cultural responses can be more powerful then SCOTUS.


I believe they felt humiliated. It is why they bothered to make the complaint.

You do not think the customers were humiliated. But the biggest mistake people make about psychology is assuming other people have similar emotions and social responses.

It is the younger generation that is MUCH more likely to need a wedding cake. The millennial generation approves of gay marriage. How many boomers need wedding cakes compared to millennials? We live in a age of YELP reviews and wedding vendors.

SCOTUS has the power to allow shop owners to discriminate on the basis of many things.

SCOTUS does not have the power to convince millennials to shop at these stores. SCOTUS cannot stop millennials, the phone-oriented generation, from writing up a yelp review. I believe the social response of millennials will be significant to shop owners.


wwww said...



A wedding vendor suggested to this Colorado couple that they go to Masterpiece Cake company. Do you all think this wedding vendor will make future referrals?

Common sense here: how well will bakeshops perform if wedding vendors do not feel comfortable referring clients. There's LOTS of bakers in cities like Denver. To be safe, professionals will refer to another shop that avoids politics.

Millennials read and write Yelp reviews. They disapprove of discrimination. How many millennials will give their business to a shop that discriminates?

Professionals can use social dynamics to predict customer reaction.

Inga said...

Wwww makes a valid point about millennials. They are a large group that will be replacing us baby boomers. They as a group are far more liberal and inclusive of minorities, gays, etc. it’s their purchasing power that vendors of the future will be seeking to keep them in business. We baby boomers are a dwindling number and soon will be irrelevant.

wwww said...



Inga,

This ruling is a very narrow ruling. It did not do anything of substance. The Colorado Commission acted under Colorado anti-discrimination law. SCOTUS did not overturn that law.

In short: the ruling said the anti-discrimination commission in Denver acted like a jerk during their hearing and used religious bias in their language. As a result of the language used in the hearing, SCOTUS voided the commissions ruling against the cakeshop.

Cake shops who discriminate towards gay or lesbian couples in Denver are, most likely, legally vulnerable to fines and other punishments. If I had a cake shop, I would be worried that I could be subject to fines. Another cake shop would have to act as another test case. There is no guarantee the courts would take up the case. These cases can go on for years.

Look at Popehat on twitter. Narrowly Decided Hat @Popehat. Ken White, former US assistant attorney. He's got a good explainer of this case & its narrow ruling.

Dickin'Bimbos@Home said...

Did the Colorado commission actually tell the cake decorator to take mind crime classes?

why yes they did.

This is the future of the progressive left.

wwww said...

"It isn't about the cake."

I think the case is about clumsy social interactions.

Inga said...

Wwww, I know it was a very narrow ruling, but it’s ruling regarding religious freedom wasn’t as narrow as the rest of the issues at hand, freedom of speech, which they didn’t address at all and the rights of gay people which they gave a passing mention to in saying they were deserving of equal dignity.

Dust Bunny Queen said...

"It isn't about the cake."

wwww I think the case is about clumsy social interactions.

Are you brain dead? How is that for clumsy :-) These people weren't looking for socialization or being friendly at a party to strangers. This is a business transaction between two individual parties.

They want to FORCE the contractor to do work for them whether or not he wanted to do work for them. He doesn't need a reason as an INDIVIDUAL contractor to refuse to be dragooned into doing work he doesn't want to do. For ANY reason or for NO reason at all.

Please take your head out of your ass and try to understand the difference between walking into a retail establishment and buying something generic that is in stock.......and ordering a custom piece of work to be done in the future(a contract) and trying to force that person to work for you. Forced work is servitude. Get a dictionary.

Raise your hand if you have ever been self employed. Raise your other hand if you have ever been a contractor. If you can't then you have no understanding. But I repeat myself.

Inga said...
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Inga said...

“They want to FORCE the contractor to do work for them whether or not he wanted to do work for them. He doesn't need a reason as an INDIVIDUAL contractor to refuse to be dragooned into doing work he doesn't want to do. For ANY reason or for NO reason at all.”

Not exactly. He’s in violation of civil laws if he states his reason for denying to bake a cake for a gay couple’s wedding is based on he just not liking gay people. He must have a valid legal reason to deny service. Are you saying because there is a contract that the vender can deny service for any reason whatsoever? Civil laws don’t have any bearing on contractual work? Hmmm, don’t know about that.

Yancey Ward said...

I think Matthew in the very first comment got it right- the goal was something other than 5-4 decision.

However, there is a problem with the commission modifying its language and performance in order to reach that safe harbor exception- it would seem it has to do more than this with respect to just Phillips' case- it must also treat him equally to the treatment received by entities that refused to produce products offensive to other people- in this case the other bakers who refused to produce cakes that celebrated opposition to gay marriage, for example.

Dickin'Bimbos@Home said...

It wasn't a denial to bake a cake, it was a denial to decorate a custom cake.

The gay couple admitted they were shopping for a Christian to persecute and destroy.

The Colorado Leftwing Bureaucratic Progressive Creepy Totalitarian Commission of Mind-Crime and Tolerance then went on to demand mind-crime classes after comparing the baker to a slave owner and his religion to the holocaust.

Breyer and Kagan not impressed.

wwww said...



DustBunnyQueen,

I hear your interpretation of the law.

I hear that you are upset when you imagine someone forcing you to bake a cake, or otherwise work, against your will.

This is another social dynamic I've seen of commenters outside the case. Not the principles in the legal cases, but people watching or reading about it on TV.

This is the other social dynamic at play. It's a anger, a horror and a feeling of threat that the government or a individual will force you to do something or associate with someone against your will. That makes sense. People get enraged at the idea of being forced into situations.

On the other side, they are enraged that you would presume they want to associate with you. People are enraged by the presumption that they are the last kid chosen for a team in gym class. People are insulted, angry, and humiliated at the mixed messages of "open for business, nope not to you!" No one likes to be told they are unwanted or rejected.

As I said, this case is about clumsy social dynamics.

My point is that the complaintants in these cases feel social humiliation upon the point of rejection. Humans are biologically programmed to react strongly to rejection. Healthy people handle it well. Unhealthy people act out. As long as the rejection response continues, people will continue to complain.

Note: I do not think it's wise to let humiliation or feelings take control of actions or one's mental outlook on the world.

Final note: Society, social norms, and expectations of social dynamics are equally powerful to the courts. Professionals ignore them at the risk of hurting business.




wwww said...



Inga,

The libertarian articulation of freedom of contract rejects the Civil Rights Act of 1964 and state anti-discrimination laws.

Dust Bunny Queen said...

People are enraged by the presumption that they are the last kid chosen for a team in gym class. People are insulted, angry, and humiliated at the mixed messages of "open for business, nope not to you!"

That last part is illegal and they have the right to be enraged if a "STORE" is open for business and they are unfairly turned away. Note: there are legitimate reasons to deny service.

I'm talking about individual legal contracts at arms length distance.

No one likes to be told they are unwanted or rejected.

To effing bad. Rejection happens. Grow up.

Angle-Dyne, Angelic Buzzard said...
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tcrosse said...

My gay stepson observed that nothing bolsters the dignity of the gay community like a couple of screamers going all Bridezilla about their wedding cake.

Angle-Dyne, Angelic Buzzard said...

wwww: On the other side, they are enraged that you would presume they want to associate with you.

[my feelz, their feelz, millenial feelz.....]

Hey, w⁴, the LSD thread is two posts north of this one. You can talk all about your personal experiences with ego boundary dissolution there. I think you made a wrong turn and landed here by mistake.

As I said, this case is about clumsy social dynamics.

You can say it all you want, doesn't make it any less loopy and wrongheaded. This case has nothing to do with some businessman's insensitivity or ignorant gaucherie. (I don't think the baker - or anyone else attempting to run a business these days - is unaware of the all the Feelz running rampant out there that may impact his business.)

(Btw, the phrase "clumsy social dynamics" is clumsy word-salad.)

Inga said...

People entering into contracts do have protection under civil rights laws. Wanting it to not be so doesn’t make it not be so, no matter how many all caps one uses. A person in a protected class of people who are refused a contractual service do have a legal remedy. Can you imagine a black couple wanting a contractor to build a house for them and the contractor says no based on their color? How did libertarians come up with the idea that contractors can violate civil rights laws and get away with it??

Richard Dolan said...

"You get the opposite from judicial minimalism, which holds back from stating big clear rules and makes a special case out of this one case, resolves it, and leaves us on our own to figure out how like or unlike it is to the next case and whether this or that factor ought to tilt the outcome another way."

Judicial minimalism of that sort is just another name for common law decision-making, where competing legal principles are weighted against each other to arrive at a decision that fits the facts before the court. Clear, general rules has more in common with code-based systems, in which judicial precedents are not often seen as a law-making exercise.

There are certainly areas of the law where clear, general rules are necessary, typically in the rules governing economic activity where the players need to know the lay of the land in order to craft a deal that works for them (including which general rules to overrule in their contract). Same with some areas of criminal law, although that's a bit dicey. When carried too far, as in the original design of the sentencing guidelines, the 'clear general rules' can become quite oppressive indeed.

Epstein likes clear, simple and general rules in part because he approaches the question from an economist's perspective, looking to reduce administrative and transaction costs to achieve an efficient marketplace. There is much to be said for that approach, but not so much in constitutional cases involving a conflict between competing constitutional values. Clear, general rules in cases such as that not only impose 'one size fits all' results on a complex society where that doesn't work, but also end up as deeply anti-democratic, transferring to judges decisions about basic social values that would be better (and more lastingly) resolved through the give-and-take of legislation. The morass of abortion jurisprudence, and the failure of the SCOTUS' ever more arcane death penalty caselaw, are two areas of conspicuous failure.

The common law approach of allowing the rules to arise from the accumulation of decisions isn't a cure-all. But it allows for the governing rules to evolve, and accepts as its starting point the fallibility of those making the decisions as well as the fact that the home team will not always be the decision-maker.

mockturtle said...

Tcrosse observes: My gay stepson observed that nothing bolsters the dignity of the gay community like a couple of screamers going all Bridezilla about their wedding cake.

Good! Very good. ;-)

BamaBadgOR said...

I wonder if Kennedy wanted to punt the big issue into the next term when he may not be there.

darrenoia said...

@rhhardin: Epstein's position that antidiscrimination laws should only be operative in monopoly situations strikes me as so sensible that it has no chance to become the law of the land.

Nobody ever notes the irony that the gay rights activists who won a victory to choose who they contract with in marriage then immediately tried to make the courts deny public vendors that same right of choosing their contracts.

It would be amusing if it weren't so petty and totalitarian at the same time.

hstad said...

I love the lawyers on this blog discussing this case - "in the weeds". This discussion is a perfect example of how broken our American Justice System is - from the Supreme Court to the Local Court. Over the years our Justice System has morphed into a gargantuan ugly bureaucratic entity which is self serving and rarely dispenses justice. The Prosecutors have to much power. Just look at the John Doe prosecution in Wisconsin and the indict a "ham sandwich" actions by grand juries. At all levels of the system, the requirement of "pay for justice" is all but cast in concrete. The politics in this system is disgusting as evidence in this case. I have very little hope that it will change over time and may be a reflection of our own countries divide. The only hope we have as a body politic is vote intelligently, which has not happened in some decades, or hope the this antiquated creaking old elephant drops dead of its own volition.

Birkel said...

People think these boards will be able to hide their animus. This argument was applied in other discrimination cases. And look what happened!

The court developed disparate impact so that clever racist/sexists could not escape the law by formally following the rules.

The instant case is a disparate treatment case. The court will develop a disparate impact standard.

Maybe not a best-case scenario but there is precedent.

James K said...

He’s in violation of civil laws if he states his reason for denying to bake a cake for a gay couple’s wedding is based on he just not liking gay people.

He didn't say anything about "not liking gay people." He'd made cakes for gay people before. It was his feelings about gay weddings.

In any case, even if it was about his feelings toward gay people, it's not clear that a contractual arrangement such as baking a customized cake for a wedding amounts to a "public accommodation." Therefore the assertion about civil laws is false, or at least not determined.

Inga said...

“He’s in violation of civil laws if he states his reason for denying to bake a cake for a gay couple’s wedding is based on he just not liking gay people.”

“He didn't say anything about "not liking gay people." He'd made cakes for gay people before. It was his feelings about gay weddings.”

I wasn’t referring to the cake baker in this Masterpiece case. My “he” was an example of a person who decides he just doesn’t like something about someone and denies service. People who are of a protected class entering into contracts have the expectation that they have a legal remedy to contractors who discriminate against them because of their protected status. Are they mistaken? Can a house builder refuse to build a house for a black couple because he doesn’t like black people? Can he lie and claim a religious exemption? Maybe now he does if he claims that according to his religion black people are sons of Ham and unclean, the Curse of Ham?

Michael K said...

My point is that the complaintants in these cases feel social humiliation upon the point of rejection.

Many of these cases involve "social activists" who seek out the unsophisticated business owner to make a point or a few thousand.

There was on such in California a few years ago in which a "disabled activist" teamed up with a small law firm to sue local small business whose "handicapped" parking or bathrooms or railings or walkways were not exactly to the state standards.

They made the mistake of trying to shake down Clint Eastwood. He took them to court and got the law firm disbarred.

Inga thinks "protected classes" are angels.

A person in a protected class of people who are refused a contractual service do have a legal remedy. Can you imagine a black couple wanting a contractor to build a house for them and the contractor says no based on their color?

Perfect strawman argument. Inga is good at those.

The chances of finding a contractor who would turn down a house contract.

How about a custom whorehouse, Inga?

How about a mosque with separate quarters for women ?

How about a building for child prostitution?

Inga said...
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Inga said...

My 3:23 PM scenario would make for an interesting court case. What would win, the religious rights of the contractor or the protected status of the contractee? Both have legal protections against discrimination.

MadisonMan said...

If you don't want to provide someone a service, I suggest a simple way to decline:

"No."

It's a complete sentence. It stands on its own, needing no elaboration.

James K said...

What would win, the religious rights of the contractor or the protected status of the contractee?

What religion proclaims dislike of black people?

Inga said...

James, it’s a hypothetical. Go with it.

Dust Bunny Queen said...

The chances of finding a contractor who would turn down a house contract.

Happens more often than you think. Reasons from: the architect is an idiot and the house is un-buildable for the area, it will have no end of future problems which you will be blamed for, the owners are dicks who keep changing their minds and adding items without understanding that they have to PAY for those things, the bids that the owners will accept are guaranteed to cause financial losses for the contractor, the credit of the owners is less than stellar, the contractor doesn't have the time for your project...... to ....we just don't like you for any reason.

Of course you don't phrase your rejection in those terms. I have turned away clients many times in my financial practice because all I could see was problems looming. We turn down pump jobs for many of those above reasons. And to maintain our sanity.

Some people are just unbearable to work for or be around. When people show you who they are, you should believe them.

Our cake baker should have just lied to their faces and told them he was all booked up and unable to design, bake and decorate a cake at this time. " Such a shame. Why don't you contact the XYZ baking company. Have a nice day.

Of course, being a staunch and true Christian, unlike myself who considers a white lie a damned good thing, he made the fatal mistake of actually telling the truth. Dummy!

wwww said...
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Jason said...

Re: tell the truth vs little white lies...

I recall that after Memories Pizza, Althouse encouraged Christian business owners to go public and make targets of themselves for leftist gay rights activists. This was while Sweek Cakes By Melissa was already facing the state persecution that would drive them into personal bankruptcy and take food out of the mouths of her children.

Althouse had no worries, though. She never built a business. She is secure with her taxpayer-funded pension that is safe and protected from the Commissioners of the world.

Francisco D said...

"Is there a right to heterosexual sodomy? (Asking for a friend) Why should the Federal Govt care into which orifice an erection is inserted? Dear Feds: MYOB."

Precisely.

This decision has very little to do with Gay Rights or Freedom of Speech. Read DBQ's posts if you want to understand the true underlying issue.

Inga said...

SD state lawmaker: Businesses should be allowed to ‘turn away people of color’.

Looks like he too forgot about the Civil Rights Act of 1964.

Jason said...

So did Inga.

cyrus83 said...

The problem with Smith, and with rules in general that rely on the judgment of the one judging, is that neutral applicability is a fantasy. Whether it's prosecutorial discretion, judicial leniency, regulatory capture, or plain old corruption, the actors in the judicial and political systems work to produce outcomes favorable to those they like and unfavorable to those they don't. Various "rights" commissions are no different and not exempt from human nature.

Maybe when Scalia wrote he trusted judges and governments to act impartially in general, but that kind of deference today is not warranted, and it probably never was. Get the government out of making decisions over whose message, beliefs, or feelings take precedence over another's.

Rigelsen said...

Or you can see Employment Division v. Smith as of a piece with Gonzalez v. Raich. Both cases involving evil drugs. Scalia was a noted believer in the limitations of the Interstate Commerce clause, unless it involved drugs. If he’s willing to drive that big a truck through the principled wall of Interstate Commerce and judicial textualism, it’s an easy reach to suppose that Free Exercise to him fell to the same predilection.

Yes, as Cyrus83 notes, neutral applicability is a fantasy. “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

A Free Exercise clause that is stripped of any protection from “generally applicable” laws pretty much ceases to have meaning, just as we have seen in the judicial battles since. Like much of the Bill of Rights, it is now pretty words on a page of things that should be important but are so only in the abstract, never in the concrete.