Gay Marriage

Now That Gorsuch Is Seated, Will Supreme Court Take Up Gay Wedding Cake Case?

SCOTUS has delayed making a decision whether to tackle religious freedom claim.

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wedding cake
Ivonne Wierink / Dreamstime.com

Today is newly seated Supreme Court Justice Neil Gorsuch's first day at the office hearing cases. He is apparently not going to be a quiet, Clarence Thomas-style justice and asked several questions during the first case before the court.

Before this morning's case—which is a procedurally-oriented matter about the processes required appeal federal work discrimination complaints—the Supreme Court released its list of orders from last week's conference and decided not to take any new cases as yet. Gorsuch did not participate in this last conference but will for the next one.

This matters because the Supreme Court has repeatedly declined to make a decision whether to take a high-profile case about businesses declining to serve gay weddings and has been bumping it to future conferences since last December. It rescheduled the case yet again this morning.

That case is Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. This is a case about wedding cakes, gay marriage, and whether businesses can decline to provide their goods and services on the basis of religious beliefs. Jack Phillips, owners of Masterpiece Cakeshop in Lakewood, Colorado, declined (all the way back in 2013) to bake a wedding cake for a gay couple's wedding. This decision ran him afoul of Colorado's public accommodation laws, which forbid discrimination on the basis of sexual orientation.

Phillips' response, as we have seen in many of these cases, is that he's not refusing to serve gay people, but he has religious objections to gay marriage and sees being obligated to make a wedding cake as being compelled to put his stamp of approval on it. Courts across the country have disagreed with Phillips and other businesses that serve weddings, like florists and photographers. Courts have thus far declined to accept the argument that refusing to serve gay weddings is somehow different from refusing to serve gay people. Furthermore courts have declined to accept the claim that floral arrangements or wedding cakes are a form of protected expression and that compliance with law compels speech or forces people to compromise their religious beliefs.

That the Supreme Court kept pushing back a decision on whether to take this case until now is significant because they've already previously rejected to hear a similar fight. A photographer in New Mexico tried to get the court in 2014 to hear their case where the state told them they couldn't refuse to provide their services for a gay couple's wedding. The photography company, like Masterpiece Cakeshop, lost their challenge to the law, and the Supreme Court declined to hear the case.

Now, three years later, the court appears to be delaying a decision at least until Gorsuch has been seated. There haven't been any cases where higher courts have accepted the arguments of the religious shop owners, so there's no "split" that requires the Supreme Court to resolve. Most recently, a florist in Washington State lost her challenge just like the bakery and photographer had before her. It's possibly significant that the Supreme Court didn't again simply refuse to certify a case that's very similar to one they've rejected before.

Damon Root has carefully analyzed what Gorsuch is likely to be bringing to the court here. On Wednesday, the Supreme Court will be hearing a case connected to the boundaries of separation between church and state. The question at hand is whether it's constitutional for Missouri to withhold grants from a state program funding playground equipment from religious schools. Missouri's state constitution forbids it; the religious schools say this counts as religiously motivated discrimination.

The only real fundamental overlap here with the bakery case is the invocation of religious freedom, so be wary of reading too much into any questions Gorsuch might ask in that case. Nevertheless, it's worthy of noting that the court held on to the bakery case long enough for a ninth justice to be seated before deciding whether to take it. We may find out next Monday.

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  1. Paging Lawyer John to tell us all about how religious freedom is the one true freedom in the Constitution…

    1. In many ways it is. The freedom to be left alone while not harming anyone else is fundamental. All rights in the Bill of Rights stem from this. Freedom of religion is no less paramount than freedom of speech, or firearm ownership, or not having to quarter soldiers, etc.

      Religion may be the universal laughingstock among libertarians, but the ability to believe what you want, and peacefully act as you wish, without government intrusion, is the very core of the Non Aggression Principle. Without it we’re left with the State deciding what we can or cannot believe, what moral principles we can or cannot guide our actions by. If I want to worship a non-existent God rather than the State, what business is it of yours?

      1. Without it we’re left with the State deciding what we can or cannot believe, what moral principles we can or cannot guide our actions by.

        By claiming something is a matter of religious freedom, you’re telling the government to make those determinations.

        1. You must not be familiar with religious jurisprudence, even a little. The government is not allowed to determine whether a religious objection is legitimate, just that is deeply held.

          1. Why does it matter if it’s shallowly held?

          2. Begs the question, don’t it?

            1. Not at all. If your faith is pacifism, the government doesn’t have the authority to determine whether or not the basis for that belief is legitimate. It only has to determine if you legitimately believe that or if that is a convenient excuse for you to avoid the draft.

              1. That’s nice. I don’t see how you’ve escaped the circle. The govt still determines what is a religious organization, what is a deeply held religious belief, etc. I gotta see what’s happening with that First Church of Cannabis’s RFRA suit.

                But I will retract my original comment, because rereading Brandybuck’s comment is now confusing me. It’s not as if the state has the power to determine what you can or cannot believe, so my objection is greater than the bit about singling out religion.

              2. Does a similar test apply for sexual orientation? “Are you really gay, or are you just mildly interested in gay sex? Prove it to the court! Bruno over there is happy to help you with your demonstration.”

          3. The government is not allowed to determine whether a religious objection is legitimate, just that is deeply held.

            I’m actually not sure which is worse.

      2. In many ways it is. The freedom to be left alone while not harming anyone else is fundamental.

        But that needs to work for everybody. If Catholics can refuse to bake cakes for gay couples, then gay couples should be allowed to refuse to, say, rent rooms to Catholics.

    2. I kind of miss John.

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  2. Ridiculous that this is even a case. As a private entity doing business, I should absolutely have the ability to turn down business from anyone I feel is disreputable or objectionable. And watching the insanity of Title XI enforcement play out, who is foolish enough to think that once the govt is forcibly mandating this, it won’t be quickly and absurdly warped and abused?

    How can you even prove that you’re being denied service? What if a baker just requests info regarding the event and then declines to take the business due to fabricated conflicts…will it be up to the Govt Truth Squads to make sure no one is lying about possibly having double-plus ungood opinions?

    1. will it be up to the Govt Truth Squads to make sure no one is lying about possibly having double-plus ungood opinions?

      No, thanks to public accommodation laws. If you own a business that serves the public then you don’t get to decide not to serve anyone for any reason.

      1. Witness Seattle’s ridiculous requirement that landlords accept the first tenant to apply and not exercise any judgement as to who is more likely to be a better tenant.

      2. But what if your business does NOT “serve the public” and only looks like it does because very few people are denied service?

        1. Good luck making that case.

      3. Yup! Sure enough. When that Nazi couple wants that cake with a big, bold swastika in the middle of it …. you just gotta’ do your duty and bake it up for them. Goose-stepping bakers ….. “I hear the USSR will be open soon …. as vacation land for …. Lawyers in Love!”

      4. What if my religion bans shoes or shirts?

      5. one does NOT surrender their Constitutional rights when they secure a business license.
        the REAL question is;does a person have any right to the labors or property of another person or business if that other party doesn’t freely consent to it? No.
        Does a person lose their Constitutional rights (First,5th,and 13th amendments) when they open a business? No.
        If one goes by the Constitution,”public accommodation” laws are unconstitutional,they force people into slavery,indentured servitude.
        It’s anti-freedom. it’s Fascism.
        Private property rights should always trump your feelings being hurt or your desire to do business somewhere.

    2. If you’re looking for a defense of your position you’re at the wrong site. You want to check out Reason magazine circa 2011.

    3. We’re up to Title 11 now? Ye Gods!

  3. Part of the tragedy here ultimately traces back to ignorance of history.
    Many of these people sincerely believe that these laws are all that stand between blacks and ‘Jim Crow’ laws, and generalize from there to any and all persons perceived as oppressed.
    Yet the problem with ‘Jim Crow’ laws was precisely that they involved the government legislating who you could and could not do business with. They were enacted because too many businesses in the south cared less about the color of a man’s skin than they did about the color of his money.
    Freedom works, markets work, and eventually, left to themselves, businesses that refuse to do business with broad classes of people will go out of business. Or they will fill a niche which history strongly suggests will shrink over time.
    But no, if ‘right now’ isn’t perfect, for whatever reason, then a law, no matter how bad, *must* be put in place to ‘fix’ the problem. Even, or sadly, especially, if the law creates many more problems than it solves, and/or prevents the natural solutions that would otherwise take place.

    1. I’ve heard it argued on a number of occasions that you’re either for the Civil Rights Act or you’re for Jim Crow laws. There is no other option. There is no possibility that you could think both are wrong. One or the other, that’s it. Diversity or Racism.

      1. How could there be a third option when there are only two political parties?

        1. What’s the second political party?

    2. It shouldn’t surprise me, but it always does, when I find someone treating the 1954 Brown (?) decision and the 1964 Civil Rights Act as triumphs of enlightened government against evil bigots, when both were really just government changing its mind. They know nothing of Plessy (?, I am terrible at remembering these case names) and the railroad that wanted to have integrated trains and stations for the very simple reason that it was cheaper and its customers accepted it; it was the Louisiana state government which forced the desegregation, just as so many of them are ignorant about Woodrow Wilson setting back race relations by generations and leading to a resurgence of the KKK and lynchings.

      As in so many cases, government was the root of the evil, and all these clowns can think of is giving government clowns even more power and control.

    3. Right, Jim Crow laws had to be put in place because southerners weren’t sufficiently racist.

      Which laws led to Ax Handle Sunday?

      And regardless, anyone that wants to reduce the discussion of the CRA to just Jim Crow is ignoring that it went well beyond race/ethnicity.

      1. Not sure how facetious you’re being.

        Yes, the government DID have to write Jim Crow laws because the public wasn’t sufficiently racist. Look it up.

        And Yes, the government was responsible for Ax Handle Sundays, because prosecution was (and is) a government monopoly, and if the government sheriff or police weren’t interested in investigating or arresting, or if the government prosecutor wasn’t interested in prosecuting, or if the government judge wasn’t interested in a fair trial, then there wasn’t much the victims could do about it.

        Contrast that with what victim prosecution would have done.

        Then get back to me on how the government “solved” the problems it created.

        1. And in case you didn’t know, in many places, the sheriff, police, prosecutors, and judges were members of the KKK and frequently lead the lynchings.

        2. I just want to make sure I have this right…

          Southerners vote in rampant racists to all levels of state government, who then go on to enact/enforce/whatever racist laws. But we shouldn’t take that as any indication of what the people actually wanted.

          Northerners/Californians vote in rampant liberty-hating liberals to all levels of state government, who then go on to enact/enforce/whatever non-discrimination laws that cover gay people. And that shows that Californians are liberty-hating commies that want to destroy all religion.

          Do I have that about right?

          1. You have it wrong. Go read wikipedia’s entry on Plessy.
            The railroad wanted integrated cars because it was cheaper and easier. Would they have done that against the wishes of their customers? Kinda doubt it.

            Please edumacate yerself.

          2. Nope not at all. The majority of southerners were racist. They then voted in racists to enforce racist laws against the will of the minority who was not racist. That can happen with as little as 50.0001% of the population. Let’s say its 70-30 racists in 1950 Alabama. Those 30% were prevented from treating black people fairly due to the loving hand of government regulation and the all hallowed “democracy” that made it possible. Democracy sucks. It is a tool the majority uses with regularity to violate the rights of the minority. That is primarily what 2017 California and 1950 Alabama have in common. The only difference is in 1950 Alabama they strung up their perceived enemies. California isn’t there yet but given the history of progressives in places like the USSR I am sure they are working on it.

        3. Umm… Saturday.

  4. The Court doesn’t always wait for a circuit split before taking up a case. Take for example Brown v EMA, the video game sales case. There was no split in lower courts. All the courts ruled that the government can’t arbitrarily regulate sales of video games. The US Supreme Court took up the case, not because of a split but likely to just settle the issue because it was just going to keep popping up around the nation.

  5. Maybe newly seated Justice Hitler will overturn marriage recognition altogether!

    1. Yeah right. Unfrozen Caveman Justice is going to make it so only the right people can get married again. As Caveman God intended it.

    2. You jest (I think), but there are folks that fervently hope that.

  6. I suspect they kept putting it off because it was always possible that the new 9th seat would want to flog that dead horse again.

    That said, I doubt Gorsuch would actually want to. The simple fact is, the case isn’t just about non-discrimination laws that include gay people. They include all non-discrimination laws.

    Fact is, any of the arguments that would limit a ruling against the non-discrimination laws to just “wedding services” would be absurdly arbitrary. I mean, for starters, you’re saying that “religious beliefs” about marriage are so important… well, what about “religious beliefs” about other things? Are religious beliefs about modesty, the proper place of women, or cutting hair less important then religious beliefs about marriage? Do you really want the government to be getting into the business of deciding which religious beliefs override non-discrimination laws and which ones don’t?

    So yeah, any winning argument against non-discrimination laws that cover gay people in the context of weddings? Will be more broadly applied. Including other protected classes.

    And that is why I suspect Gorsuch has no interest in these cases. Same reason why Elane Photography wasn’t heard. The SCOTUS knows it can’t touch non-discrimination laws that include gay people without touching the whole snarled mess. And that’s something they just don’t want to get into.

    1. Seems like it would be pretty simple to rule that contracts do not receive ‘protected class status’. End of story. That would have zero impact on all existing non-discrimination laws, including those covering gays.

    2. Do you really want the government to be getting into the business of deciding which religious beliefs override non-discrimination laws and which ones don’t?

      They’re in similar biz all over the place: obscenity or indecency, for instance.

  7. Amazing. Correct me if I’m wrong, but I didn’t see a single comment about the slavery of Forcing a business owner to serve somebody they don’t want to serve, or about Freedom of Association. And you guys call yourselves Libertarians?

  8. Kosher food is Kosher because of religious laws.
    How is allowing Kosher stores to stay Kosher different from allowing Christian bakeries to stay Christian? Can I, as a Christian, expect a Kosher store to provide a dish that contains pork? Is there a difference in the act of the baking of the cake, and the (possibly creative) act of decorating the cake? If a Kosher store can refuse to serve pork because it is not a product normally carried in inventory, can a Christian baker say pro-homosexual decorations on a cake are not part of inventory?
    Serious questions, not trolling.

    1. Wow, this is a really good point.

      I know that in these iossues there are always really good examples that someone out there would think up, but I usually can never do it myself. It’s a good thing us righties (and yes I consider libertarians righties) are good at fielding input broadly over the internet

      the analogy is perfect, just needs to be modified to a kosher caterer. Not hard to imagine a Christian demaning they make pork dishes for his party

  9. The left is playing a very strategic long game. They don’t want any vote taken that isn’t a likely win.

  10. The left is playing a very strategic long game. They don’t want any vote taken that isn’t a likely win.

  11. That case is Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. This is a case about wedding cakes, gay marriage, and whether businesses can decline to provide their goods and services on the basis of religious beliefs.

    I hope they will be able to decline… provided, say, members of the Church of the Flying Spaghetti Monster can also refuse to serve Catholics or Baptists.

  12. Similar to the erroneous “fire in a crowded theater” argument, this is not about religious freedom but property rights. Do you own your stuff, or not? If you do then you may sell it or not, to whomever you please, or not. If you don’t own it, then you must do as the state says with their stuff that you are steward of.

  13. When this particular issue comes up, we are always told heartbreaking stories of snarling homosexuals menacing poor little grandmothers who just want to run their tiny little flower shops in peace.

    But is it just wedding service providers who should have “religious freedom” to turn away Gay customers? What constitutional standard will be used to determine that a bakery can turn away a Gay couple who want a wedding cake, but that a restaurant cannot turn away the same couple that wish to have an anniversary party ten years later?

    In Mississippi, the recently-passed House Bill 1523 says people can deny services or goods for the “celebration or recognition of any marriage, based upon or in a manner consistent with a sincerely held religious belief or moral conviction,” which would include pre-ceremony celebrations, post-wedding celebrations, anniversary celebrations and other related celebrations. So it really isn’t about just weddings, it is about ANYTHING that acknowledges the legal right of Gay couples to marry in Mississippi.

    1. OK, let’s assume all that’s true

      So what? What’s the damage here?

      God forbid a gay couple has to go to the next block over to find a provider for a good/service they want

      Quelle Horrible!

      This whole situation is NOTHING like the Jim Crow South where blacks outright could NOT GET SERVICE at all across ENTIRE REGIONS

    2. Uh,it’s NOT about “acknowledging” anything,it’s about being forced to participate in or support specific activities to which one is opposed,religiously or otherwise. Providing material support (or labor) for what your religion considers “sinful” is “aiding and abetting”,nearly as bad as doing the sin yourself.

      All these people want is to NOT be involved with SS”M”,in any way.
      IOW,”do what you want,but leave me out of it”.

      1. Any citations of Bible passages to support the idea that baking a cake for a gay wedding is “nearly as bad” as the sin of sodomy? Because I want to believe you but I never heard Jesus castigate anyone for selling things to Mary Magdalene, for example.

  14. none of this shit is comparable to the Jim Crow South.

    We as a nation decided it was worth it to override freedom of association ONLY because of how EXTREME the situation in the South was.

    Jim Crow were LOCAL LAWS which were backed up by GUERILLA TACTICS of the KKK. Basically, the locals were OVERRIDING THE RULE OF LAW itself to keep their system in place. Many businesses had to be forced AGAINST THEIR WILL to refuse to cater to blacks or hire blacks. The Federal Legislation was ASKED FOR by national BUSINESSES, who were impeded by these policies.

    Blacks COULD NOT GET SERVICE throughout ENTIRE REGIONS in the South. Like literally you could drive for more than a day and still not find anywhere a black person would be allowed to get food or water.

    This gay stuff is NOT the same. There are no local laws enforcing anti-gay discrimination. Plenty of businesses cater to gays. Very few business owners can afford to turn away customers in a world of shrinking profit margins and higher taxes and costs

    the lefties are just fascists who want to shove their agenda down everyone’s throat

  15. the REAL question is;does a person have any right to the labors or property of another person or business if that other party doesn’t freely consent to it? No.
    Does a person lose their Constitutional rights (First,5th,and 13th amendments) when they open a business? No.
    If one goes by the Constitution,”public accommodation” laws are unconstitutional,they force people into slavery,indentured servitude.
    It’s anti-freedom. it’s Fascism.
    Private property rights should always trump your feelings being hurt or your desire to do business somewhere.

    1. note that in today’s Internet world,people who were refused service have the ability to wield great power against such a business,by spreading the news,inciting a boycott. (or to support a business in peril from a boycott,via fund-raising sites like GoFundMe.)
      (when GoFundMe doesn’t go politically correct…)
      That power did not exist in Jim Crow days or earlier.
      these days,it’s very easy to drive a business out of business through social media. In essence,that is allowing the people to DIRECTLY “vote” their support or displeasure at discriminatory people/businesses.
      It’s TREMENDOUS power. It outweighs or negates any need for “anti-discrimination” or “public accommodation” laws. People now have the power to fight back on their own,no need for government to become involved.
      That’s FREEDOM,for -both- sides.

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