Gay Marriage

Supreme Court Today Mulls Whether Bakers Can Be Forced to Make Gay Wedding Cakes

Public accommodation laws clash with freedom of religion and compelled speech.

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Wedding cake hat
Jane Tyska/MCT/Newscom

This morning the Supreme Court will be hearing arguments in a case that may determine whether businesses providing services for weddings— like bakers, florists, photographers—may decline to provide goods and services for same-sex couples based on their religious objections to gay marriage.

In Masterpiece Bakeshop Ltd. vs. Colorado Civil Rights Commission, bakery owner Jake Phillips was ruled to have violated the state's anti-discrimination and public accommodation laws by declining to make a wedding cake for a gay couple. Phillips has countered that his speech is being compelled and his religious freedom is being violated by being forced by law to produce a cake for the couple.

There will be some complicated questions before the court: Do religious freedom protections extend to decisions by a business not to serve certain customers? Is refusing to serve gay couples getting married fundamentally different from rejecting gay people entirely? Is baking a cake or creating a bouquet of flowers fundamentally an act of speech or artistic expression protected by the First Amendment? Is providing goods and services to a gay couple getting married the equivalent of recognizing and supporting same-sex marriage?

The American Civil Liberties Union is representing the gay couple. The Alliance Defending Freedom represents the bakery and its owner. The Department of Justice under Attorney General Jeff Sessions has declared support for Phillips.

The Reason Foundation (the nonprofit that publishes Reason.com and Reason magazine), joined the Cato Institute and the Individual Rights Foundation in an amicus brief supporting Phillips. The brief argues the court should consider the creation of cakes and floral arrangements a form of expressive speech and urges the court to resist the mandate to provide these goods and services.

Not all liberty-minded legal experts agree. Law professors Eugene Volokh and Dale Carpenter (of The Volokh Conspiracy group blog) have come down on the opposite side with a brief supporting the state of Colorado. They argue the act of cake-baking has not typically been seen as a form of expressive speech that should be protected by the First Amendment. This matters to Volokh and Carpenter, having previously argued that a wedding photographer should not be forced to provide services for a same-sex wedding because photographs and photography are recognized as a form of expression.

Carpenter further explained to Reason in an email the circumstances of the Mastershop case encouraged them to align with the opposite side: "The particular facts of the case show a 20-second conversation where the baker said 'no' before even learning what the customers might want beyond a generic wedding cake. There was no discussion of words, images, or symbols. In our view, that's stretching the protection of 'speech' too far."

Libertarians may be frustrated with the Supreme Court's decision not to address freedom of association between private businesses and customers. There is very little evidence the court will consider the larger concept of if, when, or how states or cities determine when businesses are allowed to reject customers.

Government, in my opinion, should have to show a serious, significant, widespread problem threatening people's livelihoods before considering restricting the right of a business owner to refuse to associate or contract with certain customers. Wedding services do not, by any means, fall into this category of concern. I predict a close, narrowly tailored ruling, but I'm still undecided on which direction.

Reason's Stephanie Slade will be at the court today listening to arguments. Expect a follow-up post later today about the nature of those arguments and the mood of the court.

NEXT: Brickbat: Adding Injury to Insult

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  1. Thank God GayJay didnt get a SCOTUS-Justice pick.

    1. “I think Souter was a good justice”

      – Gary Johnson, a disgrace

    2. He would have probably appointed Hildog, or possibly even Block Yomomma.

      1. The Christian Taliban hates him mostly for his role in Roe v Wade.
        Hysterically, they HATE the principle of equal, unalienable and/or God-given rights.

  2. Thank God GayJay didn’t pick any Supreme Court Justices.

    1. You can say that again.

  3. Religious freedom is so 19th century.

    1. You might want to read a history book. Government-imposed religious intolerance was at its peak in the 19th Century.

      1. More important. the (un)Holy Inquisition was still commtting moral atrocoties at our founding, until roughly our civil war . We’d suffered the Salem Witchcraft trials. And, for those who remember US History, many came here to …. escape religious persecution.

        But what’s reality?

    2. When multiple states had state religions and compelled worship?

      1. LAME. See the US History lesson just above you. (Timestamp 2:17PM)

  4. I want to know if gay bakers can be forced to make cakes and write “god hates fags” on them.

    -jcr

    1. Here’s the question Gorsuch should ask:

      Should a Muslim baker be required to decorate a cake in compliance with a customer’s request with a portrait of the Prophet Muhammad?

      If the answer is ‘no’, then the case decides itself.

      1. Nope.

        In this case (and all the “gay wedding cake” cases) the refusal was given based on who the customer was, not the requested design or decoration of the cake. So for your analogy to work, you need to have the Muslim baker refusing based on the protected status of the customer before the customer says a word about decoration.

        1. I find you argument fascinating.

          What about a feminist bakery that refuses to bake a cake for an arranged marriage of an 18 year old woman and a 60 year old man? Let’s just say it is a Christian marriage.

          Further, can a baker refuse for “scheduling reasons”? How will anyone ever prove that they refused the work for non-discriminatory reasons?

          1. Religion is a protected class, so she can’t refuse on the basis of “Christian marriage”, but as far as I know there is no protected class to which a “May December”, so she might get away with that. That said, “age” is a really weird protected class so I dunno.

            As for scheduling: yes, absolutely. All the time, any time. If a baker wants to lie about scheduling to discriminate they’ll almost certainly get away with it.

        2. Nope it was based on it being a gay wedding NOT who the customer was. He had served gay customers before. Just no weddings. A birthday would have been fine.

        3. So for the analogy to work the question should be, must the Muslim baker make a cake for a Jew celebrating the establishment of Israel, or must a Jew make a cake for a white supremacist celebrating the birth of He-Who-Must-Not-Be-Named, or a Hispanic baker make a cake w/ a picture of Thomas Homan on it, or a feminist baker make a cake for a Return of Kings party?

        4. I suppose a better comparison would be this; should a Muslim baker be required to serve Jewish apostates?

          Although, frankly, the religious connotations would be the obvious reason why a Muslim baker might not want to bake a cake with the image of Mohammed on it so really they are the same, they’re just involving different beliefs.

          I suspect that the Christian baker would be more than happy to bake a cake for gay people, it’s the wedding cake they specifically might have a problem with. I can’t speak for the Masterpiece Bakeshop owner, but Jesus seemed pretty tolerant of sinners but seemed pretty against the sin’s themselves. Just for what it’s worth.

          It’s pretty tough to deny that being a practicing homosexual is considered a sin according to the holy texts of all 3 big Abrahamic religions, so it’s not like Christians are alone in this belief no matter how misguided you may perceive it to be. (And I would tend to agree with you there, myself, but I abandoned organized religion long ago.) Frankly, the people who openly accept gay marriage are the minority of people on planet Earth. Not that this is a good argument, but it is a fact.

          1. Religion is still covered under the CRA (1964), so yes, under American Federal law, a Muslim baker is prohibited from refusing service to someone because that someone is a Jewish apostate.

            And frankly, it doesn’t matter if the baker would be happy to bake another kind of cake. In case you haven’t noticed, none of the lawyers are arguing that he didn’t discriminate. What they’re arguing is that in this case, it should be permitted.

            But yes, broadly speaking, if I have two halves of my comic book shop, one that serves all customers, and one that I prohibit Catholics from entering, then I’m discriminating against Catholics.

        5. In this case (and all the “gay wedding cake” cases) the refusal was given based on who the customer was, not the requested design or decoration of the cake.

          Incorrect. He was asked to make a cake to celebrate behavior he felt was a sin. He’d sold gays cakes in the past. This was asking him to celebrate what he felt is sinful. Your description is inaccurate.

          1. Yeah, I know that’s the distinction that some conservatives are hoping for, but it’s not part of precedent and it’s not even what’s being argued in front of the SCOTUS.

            The precedent is that refusing an “event” because of a trait that’s intimately tied to a protected class, is the same as discriminating against the protected class.

            It’s like if you said “Oh, I don’t sell girl birthday cakes”. If by your definition you cannot sell a “birthday cake” (which you sell) for a girl’s birthday party without it magically transforming into a “girl’s birthday cake” (which you don’t sell), then refusing to sell a “girl’s birthday cake”, while selling a “birthday cake” is discriminating against women.

            So yes. I understand the distinction you’re trying to make. It’s irrelevant.

            1. It’s like if you said “Oh, I don’t sell girl birthday cakes”. If by your definition you cannot sell a “birthday cake” (which you sell) for a girl’s birthday party without it magically transforming into a “girl’s birthday cake” (which you don’t sell), then refusing to sell a “girl’s birthday cake”, while selling a “birthday cake” is discriminating against women.

              They were free to buy any cake he had ready for sale in the shop.

              They DEMANDED he make them a special cake.

              Last I checked, he is not their slave. They have no right to demand his time or energy.

              Fuck off, slaver.

              1. Yes, I’m broadly aware of how you feel about non-discrimination law. But your views are not the binding ones. What I was talking about, how refusing “events” because of the people, about how “I don’t sell gay wedding cakes, I sell wedding cakes”, and so-on? That’s what actually matters to the case.

                Your outburst? Do not.

        6. In this case (and all the “gay wedding cake” cases) the refusal was given based on who the customer was, not the requested design or decoration of the cake.

          That’s not true. In the Oregon case, the couple were already previous customers of the baker – and I believe the couple were also already out of the closet too. While the refusal of the baker to do their wedding cake would certainly eliminate any goodwill or future business between the two – it is pretty clear that the refusal was about the specific request. And I suspect in every case, the issue was about the specific request – NOT the customers identity.

          1. I think you’re confusing the cases. You’re mostly describing Arlene’s Flowers, but that was a Florist, not a bakery. The Oregon bakery was Sweet Cakes by Melissa.

            That said, has Stutzman (of Arlene’s Flowers) been consolidated into Masterpiece? I know they requested the consolidation, but I couldn’t find any word on it.

            That said, when you refuse a “specific request” for a reason intimately tied to a customer’s characteristics, then yes, you’re discriminating against the customer. Change one of the men to a woman and the problem disappears. It’s as absurd as saying “I’m not being racist, I’m just against serving a black wedding”.

            1. when you refuse a “specific request” for a reason intimately tied to a customer’s characteristics, then yes, you’re discriminating against the customer.

              Discrimination is not against the law. Hell – setting a price on something is discriminating against everyone who doesn’t want to pay that much. Refusing to arrange the pepperoni on a pizza into the form of a swastika for any customer who requests that as a custom order is discrimination.

              Some FORMS of discrimination have been made illegal. And in pretty much every case it is because the particular discrimination locks someone out of a public space (eg jim crow south rules where blacks effectively could not travel, public buildings where the disabled cannot even enter). NOT because of the feelz.

              If a city were to have that sort of discrimination as an ordinance – or were to prevent/license competitors on that basis – or the discriminated against customer is able to point to some sort of pattern that essentially eliminates their ability to BE married – then there’s a legal case.

        7. My understanding is that the couple requested a cake with a rainbow design . That is unquestionably a MESSAGE that the baker was being forced to advance. Moreover, it’s a POLITICAL statement.

          1. Your understanding is wrong. The cake they wound up with was such a cake, but Masterpiece refused them before they got that far.

            That said, they probably wound up with such a cake because after Masterpiece’s initial refusal made news, another bakery volunteered and what was a reception became a political thing.

            1. Doesn’t that indicate that there really wasn’t a real concern to being locked out of services? One Baker choose not to provide a service and the one down the week jumped at the chance. It sounds like there is no significant concern. The point being, as stated above, the shouldn’t be a federal laureate deciding every transgression that is or isn’t an issue that needs resolution of the resolution is already provided.

              Just thinking someone is an asshole doesn’t seem SCOTUS worthy, not does it seem like something that should have a positive result for the plaintiff. Unless there is real harm where an entire society has blocked you from earnest progress in private transactions should there action.

              1. I hate swipe keyboards sometimes. Week was supposed to be street.

      2. If the answer is ‘no’, then the case decides itself.

        The Gorsuch example is quite bigoted, since he’s anti-Constitution and pro theocracy

        It’s also illogical and irdelevant.

    2. No. Just as no American baker has been required to print “God loves fags”, a swastika, or a cross on a cake.

      Under non-discrimination in public accommodation law, any given butcher, baker or candle-stick maker has always been allowed to refuse specific speech. What they have not been permitted to do under these laws is refuse service to a class of people.

      In this case, there was no discussion of specific message, design, content, or anything. The refusal was 100% based on the customers being gay. Which is why the baker’s argument relies on the act of baking any cake to be “speech” in and of itself, rather then any conceivable detail of the cake itself.


      1. In this case, there was no discussion of specific message, design, content, or anything.

        The cake itself is the message, clearly, as it is a wedding cake. That’s the message. You seem smart enough to realize that, so I wonder if you’re being purposefully dense or if you really are making the claim that a wedding cake isn’t ‘special’. If they aren’t ‘special’ I must ask myself what other kind of cake generally costs hundreds of dollars?

        1. It is possible that the SCOTUS will conclude that the cake is “the message”, but that will be new precedent, not existing precedent.

          Seeing as I don’t know the future, I answered Randolph’s question based on existing law.

      2. A wedding cake is BY ITS VERY NATURE a symbolic statement of approbation and support for the couple and their union as well as (for the religious) an invocation of blessing upon them. To argue that it’s not a form of speech is risible.

        1. blockquote>A wedding cake is BY ITS VERY NATURE a symbolic statement of approbation and support for the couple and their union as wellYou’ve obviously never been in a bakery.

          as (for the religious) an invocation of blessing upon them.

          1. ??????

            A wedding cake is BY ITS VERY NATURE a symbolic statement of approbation and support for the couple and their union as well

            You’ve obviously never been in a bakery. Otr a supermarket with one.

            as (for the religious) an invocation of blessing upon them.

            Irrelevant. Separation.

            1. Not irrelevant at all. Jack Phillips is a religious person. As he sees it, Colorado is not only forcing him to make a statement in support of the couple, it is forcing him to ask a blessing on them and their union. Separation is exactly why Colorado cannot do this.

              1. The state of Colorado isn’t requiring him to bless anyone. If he includes blessings in all his wedding cakes? That’s between him and his Health Inspector.

                1. Yes, Colorado is requiring him to ASK a blessing on the couple. Your opinion on the validity or source of blessings is irrelevant.

                  1. Yes, Colorado is requiring him to ASK a blessing on the couple.

                    Shameful lie. You a Christian?

                    Your opinion on the validity or source of blessings is irrelevant.

                    Your comments, based on IGNORANCE of the case are irresponsible and morally reprehensible..

              2. Irrelevant. Separation.

                Not irrelevant at all. Jack Phillips is a religious person

                Irrelevant. Separation.

                Separation is exactly why Colorado cannot do this.

                TOTALLY backwards. The Wall of Separation is freedom OF and FROM religion

                A wedding cake is BY ITS VERY NATURE a symbolic statement of approbation and support for the couple and their union as well

                You’ve obviously never been in a bakery. Otr a supermarket with one.

                You killed your own argument, demanding “special” rights based on religion … and calling THAT separation!.

                .Have you ever seen signs outside businesses serving the public “No shoes. No shirt. No Service?.”

                It has been assumed for years … DECADES before public accommodations laws … that open for business means to ANYONE … unless stated otherwise ON THE WAY IN.

                That was thousands of businesses … no state coercion. You baker needs a sign outside his door, stating who or what he may refuse to serve. Standard business practice, undeniable, for decades, which is also why religion is irrelevant. Plus no special rights.

                That sign, in Colorado, would likely destroy his business. It’s cowardice, not faith, that caused him to skip the sign.

                Of his customers for the past 10-15 years, how many would have refused to do business with him … if they knew?

                1. That was thousands of businesses … no state coercion. You baker needs a sign outside his door, stating who or what he may refuse to serve. Standard business practice, undeniable, for decades, which is also why religion is irrelevant. Plus no special rights.

                  That has nothing to do with the case in question. The Colorado Civil Rights Commission has previously allowed bakers to refuse to decorate cakes with anti-same-sex-marriage stuff on it. This baker is arguing that denying his ability to refuse to decorate cakes with the opposite content is either a)a violation of his religious freedom or b)an imposition of establishment or c)an imposition of speech.

                  He wasn’t refusing service to gays. Nor were the other bakers refusing service to fundies. In both cases they were simply refusing to do everything the customer wanted them to do.

                  1. That was thousands of businesses … no state coercion. You baker needs a sign outside his door, stating who or what he may refuse to serve. Standard business practice, undeniable, for decades, which is also why religion is irrelevant. Plus no special rights.

                    That has nothing to do with the case in question.

                    Umm, it addresses the ENTIRE issue, not just this case.

                    The Colorado Civil Rights Commission has previously allowed bakers to refuse to decorate cakes with anti-same-sex-marriage stuff on it.

                    That would be irrelevant. If it ever happened. (You are scary)

                    This baker is arguing that denying his ability to refuse to decorate cakes with the opposite content ..

                    You been brainwashed. They ever discussed the cake at all.

                    He wasn’t refusing service to gays.

                    You’ve been brainwashed. That’s the only POSSIBLE reason.

                    Nor were the other bakers refusing service to fundies.

                    That’s downright shameful of you. What you accuse fundies of.

                    In both cases they were simply refusing to do everything the customer wanted them to do.

                    Say hi to Alex Jones.

                2. The wall of separation exists to protect religion from the state, not to forbid the faithful from participation in politics.

                  1. The wall of separation exists to protect religion from the state, not to forbid the faithful from participation in politics.

                    That too is SHAMEFULLY dishonest.

                    This part: “forbid the faithful from participating in politics.”

                3. So if he had had a sign out front stating that he didn’t make wedding cakes for same-sex couples that would have been ok?

                  ???

                  1. So if he had had a sign out front stating that he didn’t make wedding cakes for same-sex couples that would have been ok?

                    To a consistent libertarian. But dumb marketing. As an Entrepreneur Coach/Consultant, I’d have him simply state that he reserves the right to refuse service for ANY reason.

                    Easy to defend, as standard business practice for decades. (on other refusals)

                4. It emphatically is not freedom FROM religion. If it were there are myriad examples where government officials being up religion during official precedings daily. That point is moot. In this case, it is religion of an individual and business. The biggest question here seems to be if religion can be included in a business.

          2. Yeah, I’ve been in a bakery before. I really don’t get what point you’re trying to make here.

            1. Yeah, I’ve been in a bakery before. I really don’t get what point you’re trying to make here.

              No surprise. At least 98% of the cakes you saw had NOTHING to do with your spurious claim.

              1. Every cake I saw was a message of some sort, whether it was “Have a wonderful life together,” “Little Timmy should have a happy birthday,” “Congratulations on graduating fifth grade,” or whatever….

                1. Every cake I saw was a message of some sort, whether it was “Have a wonderful life together,” “Little Timmy should have a happy birthday,” “Congratulations on graduating fifth grade,” or whatever….

                  I appreciate your retraction of the original assertion.

                  If you want to switch to a GENERIC blessing — like “Have a good day’ … saying “Bless you” to a sneeze is not a religious matter (vast majority of cases)

        2. That is the baker’s argument, but that is not precedent.

          That said, you missed the point of my response: even under current non-discrimination law, no baker is required to print “God Hates Fags” on a cake.

          1. You have no way of knowing that.
            And whataboutism

            1. You have no way of knowing that.
              Seeing as you can look up relevant cases, including the lower-court arguments of this one, you really really can know that.

              1. You have no way of knowing that.

                Seeing as you can look up relevant cases, including the lower-court arguments of this one, you really really can know that.

                The three bakers.
                I know the cases and it’s totally irrelevant here.
                You’ve swallowed bullshit hysteria from the loony right
                .
                It has NO relevance to this case at all. In THIS case it was refused TOTALLY because they were gay. He was NEVER asked to write anything on the cake. He rejected them before knowing ANYTHING about what they wanted (other than a wedding cake).

                Did you also swallow the Planned Parenthood Selling Baby Parts bullshit — which was EVIDENT in the video!!!!

      3. I think you assume he wouldn’t have baked a cake that simply says “you’re gay”.

        Isn’t baking a cake that you know will end up as part of a celebration a tacit agreement with the celebration?

        1. Isn’t baking a cake that you know will end up as part of a celebration a tacit agreement with the celebration?

          (laughing) No,

  5. Between expansive Commerce Clause jurisprudence and Justice Kennedy’s “dignity interest” line of anti-bigotry cases, I would not be betting on the bakers.

    1. Freedom of association, when publicly politically unpopular, has always been a risky bet.

    2. What does the Commerce Clause have to do with this? It’s a state law.

      1. Commerce clause and “for the public welfare” has everything to do with everything. Where have you been?

        1. Busy practicing law. The Commerce Clause has been abused to justify FEDERAL laws that interfere with economic activity. The law being challenged here is a state law.

          1. Busy practicing law

            VERY bad bluff.
            See the Supremacy Clause.
            And spare us your phony federalsm, which is actually the States Rights verson promoted by southen racsts, the Klan, and currently by Ron Paul.

            1. Ron Paul is a racist. Oh lord.

              1. He didn’t call Ron Paul a racist. He said Ron uses

                1. I forgot to say “Oh lord” … and to sigh deeply.
                  Nolan has wiped the floor with the blind loyalty of Ron Paul’s uninformed defenders here.
                  As many others have done for decades, outside the tribal cave..

          2. Perhaps I should have added, “… has everything to do with everything, even when – especially when – it has nothing to do with anything …”

            “phony” federalism: In retrospect, maybe the 10th & 9th should have been the 1st & 2nd, respectively, and scoot everything down accordingly.

            1. “phony” federalism: In retrospect, maybe the 10th & 9th should have been the 1st & 2nd, respectively

              Then you too deny the ninth amendment, which is what phony federalism means, as used by southern racists, the Klan, Ron Paul and too many others. In 1957, Arkansas Governor Orvil Faubus activated his state militia, armed force to keep 9 black kids from registering at Little Rock’s Central High School. President Eisenhower sent federal troops, authorized to use force if necessary, to defend the rights of 9 kids. Faubus caved.

              That was a landmark victory for equal rights. You should have learned it in school. But Faubus later “justified” it by whining that SCOTUS had overreached and abused its power. Faubus was a southern racist. His phony federalism, like Ron Paul’s and every bigot for over a century, denies two things. The Court has always been empowered to defend fundamental rights. And the Ninth Amendment severely limits the 10th, which they lie about.

              You seem to have no idea what the ninth amendment actually does. Read it. It guarantees to the people all rights not enumerated in the Constitution, Life Liberty, Pursuit of Happiness and all the others never mentioned,

              Anyone who says “rogue” judges overturned DOMA is a phony, a liar, or totally ignorant. Rearranging the Bill of Rights is not the solution to your problem. Learning them is a start. Nolan could have been more specific.

            2. “Perhaps I should have added, “… has everything to do with everything, even when – especially when – it has nothing to do with anything …”

              That’s the worst of your two blunders on federalism. I agree with Nolan, that your claim to be studying law was a bad bluff,

              I can’t describe both your errors in one comment. Something about 1500 characters max. Sorry, please continue to a second part.

  6. “Public accommodation laws clash with freedom of religion and compelled speech.”

    Ah yes, “religion and speech.” The elephant in the room is the fact we have public accommodation laws at all. I guess, like medical marijuana, we libertarians need to take the crumbs we can get.

    1. “I guess, like medical marijuana, we libertarians need to take the crumbs we can get.”

      I’m assuming you’re really into edibles?

      1. So I’m not the only one curious to try elephant stakes.

        1. *steaks* – don’t really want to try elephant stakes; I didn’t even know there were elephant vampires …

          1. I vant to suck your peanut oil!

  7. I’m interested in some what-ifs…

    The baker claims he serves gays. What if the gay couple had asked for a wedding cake that was, to use a phrase, traditional? In other words, a cake that was visually indistinguishable from other cakes he had baked?

    Presumably, he would have turned down doing a cake that was clearly for a gay marriage (i,e., ‘congrats Tom and Mike”) even if ordered by a single person, say a female (someone not named either Tom or Mike)?

    If so, he isn’t objecting to a cake for a gay marriage per se, but rather for a cake that artistically celebrates one. Would that have made a difference?

    1. Public accommodation laws clash with freedom of religion and compelled speech.

      What should be put under judicial determination is the legality of so-called “public accommodation laws”, for they’re based on the insidious and wrong conclusion that a person loses all control of his or her property the moment he or she engages in commerce.

      Unfortunately the arguments will center on religious freedom because the interested party doesn’t want to lose, but I believe the religious exception is spurious and a red herring, precisely because the argument is not whether you own your conscience but whether or not you own your PROPERTY and whether or not you retain the rights to it at the very last moment until exchange happens.

      1. On this we agree. Essentially what is being said is that it’s fine to say no for ‘x, y, or z’ but it’s illegal to say no because of ‘w’ which is as absurd of an argument as you’re likely to find. Somewhat ironically, Christians are compelled by their faith to let homosexuals know why they aren’t going to do it, so it’s kind of a catch 22 in that there’s an easy out for the bakers but that also requires them to violate their faith.

        There are limits on freedom of religion, just as there are on any other natural right, but those limits only happen when they come into conflict with other natural rights. I’m unclear on what the conflict is here that would justify limiting this bakeshops religious freedom. Maybe someone can help me out. Is there a natural right to purchase the good’s someone else has for sale? Last I checked, there is not.

        1. Sure it’s absurd. I can fire you for having red hair, but not if you can argue that I’m really firing you for being Irish.

          But it’s also directly traceable to distinct events and circumstances that made people think “that’s just wrong. There should be a law about that”.

          So absurd? Sure. Welcome to Earth.

    2. Me too.

      I’ve also met at least one woman named Michael. What if he were asked to write “”Congrats Stan and Michael” without seeing them?

      Or what if the couple happened to be named Pat and Chris?

      I also want to know about those restaurants down south with sighns that say, “No shirt, no shoes, no service.” That is some anti-nudist discrimination right there!

      I find this whole debate fascinating. Maybe I’d make a cynical business owner, but to me, the only aspect of a a customer’s lifestyle I would care about would be whether their money is good.

      1. Whether or not you would care about their lifestyle is not the relevant question.

        1. True.

          I know I joke around a lot, but in reality I’m very uncomfortable about anyone being compelled to do something against their will. I don’t care what sort of goods or services they are offering, they should have a right to say, “Sorry, I can’t help you. Maybe try [my competitor] instead.”

          I think most business owners are concerned with earning a profit and staying afloat. It therefore follows that it will be a minority of them that start turning away paying customers for no good reason other than feelz. For the ones that do, it just means that much more business goes to their competitors. Ultimately, they may well go under. So, if you don’t like businesses that discriminate, why not let the free market fix the problem? The free market can fix so many issues that government just ends up screwing up and making worse!

          I see the whole gay wedding cake controversy as a non-issue, especially these days when you can order virtually anything online. I also highly doubt most these religious bakers would refuse to sell a loaf of bread or box of danishes to a customer who they suspected might be gay. So, in that sense, it’s really not comparable to Jim Crow laws (which were government-created, let’s not forget) against serving black customers back in the last century.

          1. Well said.

          2. So, if you don’t like businesses that discriminate, why not let the free market fix the problem?
            Well, that’s dishonest.

            I mean, advocate for “free market” whatever, but the “Free Market” doesn’t fix shit like this. How do I know? Well, this guy is still in business. That flower lady from Oregon? Still in business. Last time I checked Elane Photography was still in business. Sweetcakes by Melissa is sort of still in business (but that has more to do with their newfound status as Christian Martyr ™ then economic concerns).

            And those are the ones that got nationwide coverage of their stories. Most cases don’t get nearly that much attention. Heck, I can’t even name the Michigan pediatrician or mechanic that refused gay customers, Take the Cake in Toledo Ohio got by relatively unscathed.

            Moving bigger, even after the whole “Boycott Chik-Fil-A” they’re still expanding, and on the other side of things so is Starbucks.

            So sure, pimp the “free market” if that’s what you like, but don’t tell people the “free market will fix this” when it manifestly won’t. That just leads people to disappointment, whereupon they’ll say “okay, that failed. What else can I try?”

            1. Why can’t I discriminate against people? Who is harmed in today’s world. I ask only from the moral standpoint not legal.

              Morally speaking, what right do I have NOT to be discriminated against?

              Why does the free market need to “fix” anything here? Why can’t gays stay away from Christians and vice versa? Do we have to love everyone else in such a big country?

              1. Why can’t I discriminate against people?
                You can.

                Who is harmed in today’s world?
                Jack Zawadski.

                Morally speaking, what right do I have NOT to be discriminated against?
                That’s between you and your own code of ethics/morality.

                Why does the free market need to “fix” anything here?
                “Need” is the wrong word.

                Why can’t gays stay away from Christians and vice versa?
                Because Christians keep having gay babies.

                Do we have to love everyone else in such a big country?
                No.

                1. The market doesn’t have to force those owners out to have a remedy. That isn’t the point at all. The market simply needs to provide a means for those customers to receive the goods elsewhere at a competitive price, time, and quality. Saying they have to be put out of business because you don’t like them is asinine. Other people do. So what?

                  1. The market simply needs to provide a means for those customers to receive the goods elsewhere at a competitive price, time, and quality.

                    How many troops will you need, to enforce your fascist demands on the market?

  8. “They argue the act of cake-baking has not typically been seen as a form of expressive speech that should be protected by the First Amendment.”

    Same sex unions typically haven’t been recognized as marriages. Atypical situations are the cornerstone of individual freedoms.

    1. Sorry for all the duplicates

  9. “They argue the act of cake-baking has not typically been seen as a form of expressive speech that should be protected by the First Amendment.”

    Atypical situations are the cornerstone of individual freedom.

    Maybe the baker should have refused to make the cake because it was an “atypical situation.”

    1. I would’ve refused to bake the cake and justified my decision by telling the person “I’m not your Goddamned slave!”

  10. Let’s change bakery to inn, religious baker to innkeeper who is also a Holocaust survivor, and gay couple to couple dressed in full Nazi regalia. Is the innkeeper compelled to rent the Nazis a room? Or bakery to restaurant, etc.

    1. Property is not religious. The OWNER may be religious but the property isn’t. And in particular, if state-incorporated property (with the benefits of state-incorporation such as limited liability, unlimited lifespan, etc) has religious protections that are contrary to or undermine their public accommodation function; then THAT is an ‘establishment of religion’ violation.

      I’m not sure this bakery case is any more difficult than:
      Is a private post-marriage celebration a protected right subject to public accommodation rules? I can easily see why it is not – and if it is then we are soon going to require churches to host gay marriage receptions. This is not about ‘baking a cake’ – it is about ‘baking a wedding cake’ and the litigation is entirely about the use of ‘wedding’ as an adjective.

      Is the business in question more of a dba individual or a c/s corporation? If the former, there is a serious issue of compelling an individual and thus a 1st amendment violation. If the latter – then see ‘property is not religious’.

  11. Reason.com – “We reserve the right to delete any comment for any reason at any time.”

    Depending on how this ruling goes you can’t delete a comment for “any” reason.

    1. They never delete them anyway. How many comments do you see about someone’s aunt’s friend who bought some crappy car with the money she made on some internet scam? Those things are just one step above the Nigerian prince emails, and they leave them up.

      1. Touche. Because Reason.com discriminates against othe languages. Lol.

        1. “Your comment does not appear to be written in an English script. Please comment in English.”

          1. Ha. My first attempt to post a comment below resulted in that error with what must have been your “touche” in the comment box.

            I sure hope they spend some of their windfall to fix the damn site already.

          2. I think that has more to do with a bad job of scrubbing data before insertion. There are actual issues issues with using the Cyrillic alphabet, for example.

      2. Objecting to acright veing taken away from you is perfectly reasonable even if you do not regularly exercise that right.

  12. The “gay” wedding cake is no more “compelled” speech than a stenographer taking dictation is engaged in
    compelled speech. The cake maker is transcribing the speech of another – it is not their own and in no way reflects their views anymore than a court stenographer transcribing the testimony of a serial killer.

    1. Wonder what would happen if you took the stand and said, “The jury is a quite a fine-looking and intelligent group of men and women, but the unfortunately the court stenographer is one disgusting-looking skank.”

    2. Ah, but there are distinctions of course.

      You can’t (and don’t) compel a stenographer to engage in stenography. It’s part of his/her job and if they decide not to take the dictation, they can and should be fired. What is being done here is akin to a stenographer being held at gunpoint with the threat of force if he/she doesn’t comply. Is that what you favor?

      1. The baker can quit too. In fact, I believe that’s exactly what he did pending trial: he stopped selling wedding cakes.

        So your “they can quit” line isn’t that great.

        1. He did quit – that particular transaction; it’s immoral for gov to stick a gun in his ribs and tell him he must do as they wish or he may do nothing at all.

        2. I believe he’s also facing a $150k fine

        3. No, it’s his business; he stopped selling cakes; not the same as quitting a job given to you but someone else.

          Unless your view of society is that we all work for the government and the whole country is the government’s place of business.

        4. Will sign nakers be allowed to discriminate?

          Could I be compelled to make a banner that says “happy birthday, confederacy” for racist skinheads if I was happy to make the same banner for people celebrating the birth of some other confederacy that had no racist background?

        5. Will sign nakers be allowed to discriminate?

          Could I be compelled to make a banner that says “happy birthday, confederacy” for racist skinheads if I was happy to make the same banner for people celebrating the birth of some other confederacy that had no racist background?

          1. No. See “Hands On Originals”. Kentucky I think, maybe Tennessee.

        6. I think the better point is the stenographer is an agent of the state. The Baker certainly was not.

    3. Sure if the baker only made cakes sans frosting and decorations.

    4. The court stenographer is under contract to be a stenographer and has agreed to the conditions if that job with their employer.

      Colorado is arguing that the baker must agree to take a contract regardless of his personal objections to the content (and it really only applies to this content). It is forced consent and arguably the establishment by the state of a singular theological view of marriage that cannot be legally contradicted in the publuc square.

    5. So then a baker can’t refuse to make a cake adorned with swastikas in your opinion?

      1. I’m curious if there has ever been any case law where a Baker or other business were found liable or guilty in other speech found to be offensive or ‘hate speech’with a punishment. Just seems like if it has happened then there’s a catch-22.(Yosarian rolls his eyes)

        1. Umm,. e have maybe 50 years of precedent, voluntary actions by thiusands of busienesses, a

          1. (DAMN. My new wireless keyboard keeps doing strange things, like submitting on its own).

            We have maybe 50 years of precedent, voluntary actions by perhaps millions of business, without a lick of coercion .

            MANY misguided libertarians think it was public accommodation laws that “decreed” if you’re in business, that alone implies you’re open to the public, and the public is anyone. But that is a LONG established presumption, in the marketplace, by perhaps millions f businesses “open to the public.”

            Every time you see a sign that says “No shirt, no shoes, no service” (or equivalent) you’re seeing proof of it. That’s WHY we even have the phrase “open to the public.”

            Plus, it can NEVER be done for religious reasons, because of separation, and equal rights. Christians are not entitled to demand “specia

            1. “special rights.”

    6. If the baker is no different than a stenographer, then why don’t they bake their own damn cake? Or go across the street to another business offering the same commodity? The fact is they want the expertise and creative abilities of this particular baker, which makes the cake a form of artistic expression.

  13. “Is providing goods and services to a gay couple getting married the equivalent of recognizing and supporting same-sex marriage?

    I don’t see how we can even ask that question at the Supreme Court without making bad assumptions about the government’s appropriate place in relation to freedom of religion.

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.

    The question isn’t whether someone’s beliefs are sufficiently religious to qualify for free exercise or if the government’s establishment of religion violates legitimate religious beliefs. The question is whether the law violates free exercise or whether the law effectively amounts to the government establishing religion. After all, the First Amendment is a prohibition on government; it doesn’t define what is or isn’t religious belief.

    If the Supreme Court wants to start refereeing what is and isn’t religious belief, then atheists are in big trouble. Why would atheists have religious rights if atheism isn’t a religious belief?

    The Supreme Court would be wise to stay away from that can of worms and focus on the question of whether the law violates the First Amendment rather than whether any particular belief is legitimately religious.

    1. There are limits on religious freedom. You’ll note that while jihad appears to be a tenant of some people’s version of the Muslim faith, it violates people’s right not to be violently murdered.

      What remains unclear is what conflict of natural rights exist in these bakery cases that compels the government to intercede. There is no right to purchase what someone else is selling as far as I’m aware, thus the government has no business being involved here.

      Maybe someone can point me at the title in the CRA that prohibits discrimination based upon religious grounds?

    2. the government’s appropriate place in relation to freedom of religion.

      Unfortunately religions screwed themselves re the issue of marriage. Every single religion that changed its wedding vows to by the authority vested in me by the state of X I now pronounce you husband and wife gave up its right to claim some special protection FROM govt for ‘marriage’ as a religious institution. And it gave up those rights in a pure Judas-like betrayal. Their congregations decided they wanted the 20 pieces of silver (govt subsidies of marital status) – and in exchange they now perform a ceremony as agents of the state.

  14. his religious freedom is being violated by being forced by law to produce a cake for the couple

    Are they really “forcing” him to bake a cake? I thought they were threatening to revoke a business license, which is different. He’s free not to bake the cake, but he’ll suffer some consequences. Isn’t that how everything works? (I’m not saying it’s right, just that people throw around the word “force” too much.)

    1. Yeah, if you don’t want to go to prison for advocating libertarian ideas, then there’s an easy way to do that–just don’t break the law prohibiting the dissemination of libertarian ideas!

      Either that or the First Amendment is a prohibition on government making laws that violate people’s right to freedom of exercise and freedom from establishment.

      If you don’t like the First Amendment, try to repeal it. Don’t try to pretend it’s something other than what it is. It’s a prohibition against government violating people’s right to choose their own religious beliefs and exercise them freely.

      1. Well said, Ken

      2. They’re obviously violating his right to freedom of association. I just don’t think they’re “forcing him to bake a cake”.

    2. Fuck off, slaver.

    3. They don’t “force” you to pay your taxes. You’ll just go to jail after a while.

      1. The government actually argues this. Officially, justifying yourself to the IRS every April is a voluntary act.

    4. That is how coercion works, yes. You can argue that it is legal or that the law is justified or whatever, but it is coercion.

      1. WRONG.. The baker failed to put a sign on his door saying who he refused to serve.
        He’s “open to the public” — which has been the marketplace standard for maybe 50 years, established by perhaps millions of businesses, voluntarily.

        It’s called an established market presumption.

    5. Hey, Mr. Bank Teller, I’m not “forcing” you to fill this pillow case with cash! You’ll just suffer some consequences (namely, a bullet from my gun impacting with your skull) if you choose not to comply! Isn’t that how everything works?

      1. With all your raging hysteria, how did I miss that they gay couple had a gun, and threatened to kill the baker??

  15. I would like to see what happens if this public accommodation is upheld and the owner then says that all cakes will be quoted a price independently. IE gay wedding cakes will cost 5x a normal cake or something. Would the public accommodation laws state that there’s a price control on wedding cakes as well?

    Oh the slippery slopes you create when you compel someone by force against his will.

    1. “Public Accommodation Laws” entail that you can’t even price your own property as you see fit. Those laws are as close to Socialism as you can get while not sounding like a thief…

      1. If you’re so old, how did you manage to miss maybe 50 years of accepted business practice, by maybe millions of businesses, all voluntarily.

        THEY presume that “open to the public” means what it says … unless they post a sign stating who will not be served. Are you seriously saying that “socialism” caused all those signs: No shoes, no shirt, no service?

        In that sense, public accommodation laws merely say one must deliver what one appears to offer.
        Do you deny that government has a legitimate role in defending us from fraud?

  16. There is very little evidence the court will consider the larger concept of if, when, or how states or cities determine when businesses are allowed to reject customers.

    No, that would be too difficult and useful and we can’t have that.

    1. Of course, any distinctions the Court does make will have disproportionate implications in precedent anyway.

      Let’s not make any big decision, here, about the constitutionality of this–we’ll just say that cannabis is commerce!

      Let’s not make any big decisions–here, we’ll just say it’s a penaltax!

      It just makes things worse.

  17. Volokh’s brief is making a ridiculously fine distinction. Apparently, you do not have free speech protection if you upfront say “I do not make cakes for same sex weddings”, but it is protected if you refuse to put a topper on the cake depicting two grooms or any other decoration that indicates what kind of event it is.

    And all Volokh’s pearl clutcging about blowing a hole in antidiscrimination laws mean is that he is fine with compelled service. Volokh can go pound sand on this issue.

    1. To a layman, the law appears to be full of ridiculous distinctions. (Possibly to most lawyers, too, but they aren’t allowed to admit it.)

  18. When we’ve lost Eugene Volokh, we’ve lost.

    1. When Eugene Volokh has lost his way, you mean

      1. Tribal loyalty is the obstacle here.
        Yours.

  19. Just reviewed the briefs in the case, and it’s clear what this case is really about: snobbery. Some people can’t wrap their heads around the idea that cake decorating is art; sure, they’ll accept the proposition that blobs of paint are art or even that an image of Christ in piss is art, but cake? No way! The contempt they feel for bakers is almost risible…

    Once you accept the proposition that cakes can be art, the answer is easy & all those allegations about the “slippery slope” are quickly rejected, but — if you can’t buy the idea that cake decoration is art — then you can’t see the other side.

    1. ^this^

    2. What about manufacturing cell phones? Why isn’t that also art?

      1. Is there some reason it shouldn’t be?

      2. I know I see a lot of engineers with the eARTh stickers on their cars. And they dress well too. Most engineers I know, and that’s a lot, really like to make sure that colors are the most important aspect of any project.

    3. I just reviewed the briefs in the case

      Read them again. And again, if necessary. Keep reading until you see your massive error.

      Cake decorating is not the issue here. It was never discussed or even mentioned.
      They mentioned a wedding cake,
      He asked who iit was for.
      They said it was for them.
      He refused … SOLELY on their sexual orientation,

      Just to clarify, the merits of the case are separate from your failure to even know what it’s about … even if your claim of having read the briefs is truthful.

  20. My personal hypothesis is that we’ll either get a 6-3 decision in favor of the status quo (that is to say: baking a cake is not speech), or a 5-4 decision that’s convoluted and vague that tries to add more carve-outs and exceptions without attacking the root of the problem (non-discrimination in public accommodations law).

    I’m sure Libertarians/libertarians would complain about the former, but if the SCOTUS tries to parse this such that a Christian can refuse me service because of what their God thinks of gays, but I can’t refuse them service because of what their God thinks of gays, then this won’t be an advancement of religious liberty, but of religious dominance.

    1. Eegads, that’s a stupid remark. Do you also complain that Quakers are exempted from the draft? Or do you complain that the Amish aren’t required to send their kids to school or home school them past the age of twelve, despite state laws applying to everyone else?

      Religious liberty and accommodation has existed in this country since the beginning (the founders even exempted Quakers from having to take an oath explicitly in the Constitution by stating that simply affirming is sufficient). Anything less than accommodating religion is reactionary religious dominance- the dominance of the state religion over an individual’s conscience.

      This Gay Jay version of individual liberty is just reactionary European soft statism. What garbage

      1. Do you also complain that Quakers are exempted from the draft?
        Yep. Either the draft should be abolished, or we should all have to sign up. This picking and choosing favored classes is bullshit.

        do you complain that the Amish aren’t required to send their kids to school or home school them past the age of twelve, despite state laws applying to everyone else?
        Yep. The Amish have no stronger a case then a Pastafarian in this regard. Either we all are compelled or none of us are compelled. Picking whose religious beliefs are “real” and whose are “fake” is not the proper place for government.

        Anything less than accommodating religion is reactionary religious dominance […]
        The problem is not accommodating religion. It’s accommodating religion in a way that you would not accommodate others. In this case, that means that if “because God hates fags” is a good reason to be absolved of non-discrimination law when you’re behind the counter, then it’s a good reason to be absolved of non-discrimination law when I’m behind the counter.

        Demanding freedoms for yourself while denying the same to others isn’t liberty.

        1. You take the Gary Johnson cop-out position. “Hey, if we all have to suffer than you have to too”. It’s a perfect position in favor of further statism. Rather than recognizing accommodations afforded to the religious can be applied to others of conscience and expanded, you would rather just get rid of that carve-out because you dislike them. You complain about religious liberty, but falter when it comes to protected class status.

          1. … do I need to remind you again that I’m not a libertarian/Libertarian? You’ve made that mistake, and I’ve corrected you on that point, before.

            That said, as I stated and you ignored: “The problem is not accommodating religion. It’s accommodating religion in a way that you would not accommodate others.”

            So sure, expand conscience protections. Or strike down the public accommodation provisions of non-discrimination law all-together. Or say that contracted services such as commissioned cakes, photographers, and so-on that aren’t “off the shelf” aren’t covered under non-discrimination laws. But whatever the decision is, it needs to apply equally and fairly, and not prize religious objections over other ones.

            In short? If “God hates fags” is good enough reason for you to refuse me service, then it’s a good enough reason for me to refuse you service. I’m good with that sentence and would accept that. But if you’re unwilling to accept the second-half of that sentence, then you have no business asking for the first.

            1. Homosecuals have been given protected class status under these antidiscrimination laws. Their concerns are being treated unequally in their favor.

              1. Seeing as state and federal law prohibits me from refusing service because someone’s holy book literally calls for my death, I’m not sure that prohibiting someone from refusing me service because that someone’s holy book literally calls for my death is “unequal treatment”.

                1. Seeing as state and federal law prohibits me from refusing service because someone’s holy book literally calls for my death

                  Cannot speak for the Koran, but the Bible is big on the whole “love the sinner, hate the sin” philosophy. We can hate what you do but not hate you.

                  Do you often cite beliefs that are categorically wrong?

                  For what it’s worth, I applaud your right to not serve Christians. Sure, you’ll be killed in the market and all…but you should be allowed to do so.

                  1. Do you often cite beliefs that are categorically wrong?
                    Have you actually read the bible?

                    Debate among other Christians whether or not Leviticus 20:13 still applies if you want, but don’t fault me for correctly identifying how Jews, Christians and Muslims have interpreted and applied the Torah (or Old Testament, if you prefer) for centuries.

                    1. Have you actually read the bible?

                      Yes. Revelations was a mess, but the rest was rather easy to digest.

                      Debate among other Christians whether or not Leviticus 20:13

                      Hint: Old Testament is Judaism. New Testament is Christianity. It’s called a NEW Testament for a quite specific reason.

                      but don’t fault me for correctly identifying how Jews, Christians and Muslims have interpreted and applied the Torah (or Old Testament, if you prefer) for centuries.

                      Don’t give a shit about “centuries” ago nonsense. I care about NOW.

                      Deal with the now.

                    2. Dude, I’m not the one you need to debate. It’s other Christians that think Leviticus still applies.

                      Yelling at me for properly identifying what they teach and believe is pointless.

            2. In short? If “God hates fags” is good enough reason for you to refuse me service, then it’s a good enough reason for me to refuse you service. I’m good with that sentence and would accept that. But if you’re unwilling to accept the second-half of that sentence, then you have no business asking for the first.

              Have you been living under a rock? Do you just not comprehend this issue in the slightest?

              This–“If “God hates fags” is good enough reason for you to refuse me service, then it’s a good enough reason for me to refuse you service” is what is being fought for. That one CAN refuse service due to matters of conscience–regardless of the specificity of those thoughts.

              The refusal to accept the first part of your sentence is the whole reason we’re here at all.

              1. No, I have not been living under a rock. But I have been paying attention to what’s actually being argued in court rather then what I want to be argued in court.

                The libertarian desire of abolishing all non-discrimination laws is not on the table. What is on the table is allowing anti-gay Christians to discriminate against me, while still making sure that I’m obliged to serve them.

                1. The libertarian desire of abolishing all non-discrimination laws is not on the table. What is on the table is allowing anti-gay Christians to discriminate against me, while still making sure that I’m obliged to serve them.

                  So, unless a baker is forced to do whatever you want, then you’re oppressed?

                  Is THAT going to be your argument du jour?

                  Yeah, I bet that will lead to no negative consequences in the future.

                  1. More like “what’s good for the goose is good for the gander”.

                    Either we all have to play nice and smile and serve the other, or we all get to be as mean and petty and nasty as we want.

                    1. Oh, so it’s individualistic revenge your after. Believe it or not, most folks don’t care about your personal choices. Christians and Muslims probably don’t want their noses rubbed in it for what it’s worth.

                      In what way are you forced to serve Christians and Muslims? I get that you have a market issue if you don’t, but that’s your problem.

            3. Oh. I get your political stance now. I was confused before and couldn’t quite place it. Thought maybe left leaning libertarian. But that explains a lot.

            4. IIn short? If “God hates fags” is good enough reason for you to refuse me service

              You have severely misrepresented the case at hand,

            5. EscherEnigma|12.5.17 @ 11:01AM|#
              In short? If “God hates fags” is good enough reason for you to refuse me service

              That’s the fourth or fifth time that you’ve falsely stated the actual issue here.

        2. In other words, you would prefer religious freedom (or really any kind of freedom of conscience) to a be dead letter in the face of courts having reluctance to overturn laws in whole.

          1. Sure.

            My first preference is that the court strike down a law of general applicability.
            Second is that it create an exemption that’s available to all.
            Third is that it leaves it in place.
            Fourth (and last) is that it creates an exemption that privileges one belief over others.

            If that makes me a bad libertarian, I’d like to point out that I’ve never claimed to be one.

            1. Post a sign. “We do not serve (whatever) ” — which has been a common business practice for maybe 50 years, thus it’s LONG been a presumption that “open to the public” means what it says.
              Voluntary actions. In the marketplace
              No Shirt, No Shoes, No Service
              Have you really never seen that?

        3. Either the draft should be abolished, or we should all have to sign up.

          Or you could refuse to sign the Selective Service card and tell them it’s because of your strongly-held beliefs. Hell, make up a religion if you want. Make the state discriminate against you. Force the issue.

          1. Some of us aren’t liars, Rhywun.

            1. So what you’re saying is you’re not willing to defend your strongly-held beliefs. I don’t know what to tell you. I even left you an open for “non-religious”.

              1. So what you’re saying is you’re not willing to defend your strongly-held beliefs.

                Sure I am. Opposition to the draft just isn’t one of them. Much like Libertarians whining that gay people should have abolished marriage, I think about it and say “yeah, that’d be nice”, but it’s not really that important to me. The only reason I stated my view on it was because Just Say’n asked.

      2. This Gay Jay version of individual liberty is just reactionary European soft statism

        As (almiost) always, anyone who says “Gay Jay” is either bullshitting or brainwashed by bullshit,
        Despite the crazy psychos, his objection was a special right for only certain people.

    2. You’ve posed a serious, difficult question that any person who talks about equal liberty should wrestle with. I trust you did not expect a response other than lol you’re stupid and want to oppress Christians.

      1. That wasn’t the response. And his question was basically “how do I best defend the state, while pretending like I totally don’t like the state”. I understand that cosmotarians, such as yourself, have no interest in shrinking the state when it comes to social issues, but some of us actually believe in a smaller state and individual rights.

        1. You’re very sophisticated and smart.

          1. No, you, of course are MJ. You feel the need to attack everyone who actually opposes state actions if it doesn’t align with your own personal preferences. You really are the perfect foil for John.

    3. I’m sure Libertarians/libertarians would complain about the former, but if the SCOTUS tries to parse this such that a Christian can refuse me service because of what their God thinks of gays, but I can’t refuse them service because of what their God thinks of gays, then this won’t be an advancement of religious liberty, but of religious dominance.

      You are free to refuse to serve Christians.

      Sure, they are, what, 80% of the population…but you can always refuse.

      I’m not sure how you’re personally harmed if one baker refuses to make cakes to celebrate your lifestyle. I guess somebody not sufficiently praising it is damaging or something.

      1. You actually can’t refuse to serve someone because they’re Christian, and that’s federal law.

    4. So you’d support repealing the CRA altogether then?

      If not, then stop complaining.

      1. Not the parts that relate to how the government treats the citizenry, but the parts relating to public accommodations and private businesses? Sure.

  21. The problem with this case and with all similar cases is the notion of a “public accommodation”. Businesses should be able to refuse service to anyone for any reason or no reason at all. You don’t have to allow anyone who comes to your home inside. Same with business.

  22. Fucking ACLU. They are just such a mixed bag. On any given issue, they either display some principles or completely abandon them. Sometimes they even crap on their progressive buddies by taking the principled civil liberties position.

    In this case, they’re taking the side of individuals who want the state to compel other individuals to violate their principals. DAFUQ? No one is violating the civil liberties of the gay couple who want a cake. The baker’s civil liberties are clearly being violated. How can ACLU possibly take the position they have?

    1. If it were so clear it wouldn’t be before the supreme court. Nevertheless it seems stipulated that the baker violated state law in discriminating against the gay customers. The question is whether he gets a special expedition from it because of his particular belief in bigoted deities.

      1. Well, his civil liberties are clearly being violated. It’s just a question of whether or not the court will find that they are being violated in an unconstitutional way or if they’re being violated in a standard everyday manner that we are all expected to tolerate. Whether or not the court believes that there is a sufficiently compelling interest in ensuring equal access to wedding cakes to justify violating those civil liberties.

        That’s one thing I hate about the way many of these cases are argued/debated. They’re discussed in the context of whether belief in particular deities grants a special exemption from laws that violate civil liberties. Instead, they should be discussed in terms of whether or not those violations are justified regardless of superstition.

        Admittedly, I don’t know the details in terms of which of those contexts his lawyers are using (possibly both).

        1. While I get that libertarians/Libertarians view non-discrimination laws as a huge violation, you shouldn’t fool yourselves into thinking your views are universal.

          Which is a large problem with the case. The ADF lawyers are trying to argue that asking him to bake a wedding cake for gays is a violation, but asking him to bake a wedding cake for Christians is not. Their efforts to split hairs that way is why I suspect that whatever decision the court comes to it’s going to mostly ignore the arguments in favor of doing what they want to anyway (as Roberts and Kennedy are both fond of doing).

          That libertarians view it so cut and dry is, well, irrelevant.

          1. When applied to individuals those laws are violations of the individual’s civil rights. I think that is cut and dry. Whether there is a compelling interest to do so is definitely not as cut and dry depending on the situation. There’s a wide spectrum of opinions there.

            Your comments above suggest your much better informed on the details of this particular case than me. I think you’re saying that his lawyers are arguing that his superstitions justify a special exemption based on freedom of religion. I hate that argument, but I don’t blame his lawyers because it probably provides a better opportunity to win the case. And that’s their goal.

            But, I agree with your assessment that most justices will simply ignore arguments and find their own justification to do whatever they believe.

            1. think you’re saying that his lawyers are arguing that his superstitions justify a special exemption based on freedom of religion.
              In or out of the court room?

              Outside of the court room they’ve been pushing the “Christian martyr” narrative and really talking about this as a religious liberty issue.

              Inside the court room they’ve avoided that because it hasn’t historically gone well (the first cases against the CRA included “because God” arguments), and thus they’re trying “the cake is the message”.

              1. Okay, so it sounds like the freedom of religion argument is being used by them outside court and freedom of speech inside the court. I assumed they were going with religion arguments in court similar to Hobby Lobby; although I think I remember that the court avoided taking a position on freedom of religion and only used RFRA.

            2. But, I think the details matter and the state should have to show a compelling interest to force someone to do something. If there were ten other bakers in town that the couple could have used, then the state has less interest in compelling this one to do something than if there was only one. Also, I think there’s a big difference between a case where the state requires the sale of a standard off-the-shelf product (grocery store cake, bouquet in a display, Big Mac on the menu board) and requiring someone to perform specific future work (bake and decorate a cake, take specific photos, arrange specific bouquet).

              I acknowledge that my personal opinions mean nothing and libertarian opinions are in the majority. But I don’t think it’s a crazy, wingnut, minority opinion to say that, in principle, the state should have to demonstrate a clear overriding interest in order to force someone to do something. To show that forcing someone to do something is the best solution.

              1. *sigh*

                I don’t mean to be dismissive, but you’re asking questions that go back to decades of case law. To summarize those decades:
                state should have to show a compelling interest to force someone to do something.
                Yep. And they did.

                If there were ten other bakers in town that the couple could have used, then the state has less interest in compelling this one to do something than if there was only one.
                The interest is not just in making sure services are available, but in reducing discrimination itself. As such, prevalence of other providers is not relevant.

                Also, I think there’s a big difference between a case where the state requires the sale of a standard off-the-shelf product (grocery store cake, bouquet in a display, Big Mac on the menu board) and requiring someone to perform specific future work (bake and decorate a cake, take specific photos, arrange specific bouquet).
                That gets into the “services” part of public accomodations.
                This is all subject to change, but that’s the ruling

  23. I don’t see how this is any different than compelling racists to serve lunch.

    1. It’s not. Which is why the law should be struck down. Are you not familiar with the libertarian position on public accommodation law?

      1. Are you not familiar with the libertarian position on public accommodation law?

        Lemme ‘splain it for you.

        It is NEVER libertarian to demand special rights for only SOME people.
        The libertarian establishment should have NOT defended the baker, but opposed ALL public accomodations laws, and argue for this as a test case.

        I disagree, and the free market is on MY side (for many decades). But …
        Anything else?

    2. The courts ruled on the 1964 Civil Rights Act definition of public accommodations in the case Heart of Atlanta Motel/Pickrick and Katzenbach v McClung .

      It is entirely possible that the SC will expand ‘wedding services’ into interstate commerce/travel (basis for federal CRA jurisdiction) – since no state has a residency requirement for marriages – and 43 states long ago banned common-law marriage (ie no state benefits and no state control/licensing) in favor of exclusively legislated/civil marriage.

      But if that happens it will be because married pigs in the statist trough long ago relinquished the right to claim that ‘marriage’ is some private affair – because they prefer the federal goodies that come with ‘marriage’. Shame really – because the people who are getting screwed in all this are not Christians or gays but single people (and esp single parents).

      1. But if that happens it will be because married pigs in the statist trough long ago

        1639.

        because they prefer the federal goodies that come with ‘marriage’

        There was no federal in 1639.

        It is entirely possible that the SC will expand ‘wedding services’ into interstate commerce/travel (basis for federal CRA jurisdiction)

        Only because it’s crackers to slip a rozzer, the dropsy in snide,

  24. Volokh and Carpenter bring up a good point, but I think I side with Reason’s brief. Maybe that is a bit of a cheat, but if stretching the definition of speech is the way to roll back onerous public accommodation regs, SO BE IT.

  25. I would never eat something I forced a business to make. Or if the cake happens to be subpar, oh well. “What are you gonna do? I guess I messed up on your cake. Sorry, not sorry. “

    1. None of the couples in these stories were actually going after cake.

      They went to sue. Every single one only selected the business because they knew that they’d get turned down.

      1. ANOTHER CONSPIRACY!!!!
        (lol)

      2. Like the religious right has been doing for decades? Like Abigail Fisher in the affirmative action case (hand picked by activist lawyers)? Who gives a fuck?

        1. Like the religious right has been doing for decades?

          Centuries See Inquisition still alive at our founding

  26. I think somebody needs to try a new strategy to get around this issue: don’t discriminate the customer; discriminate the product.

    Here’s how I’d do it if I were in this person’s position with this person’s views. I’d have a fixed catalog with many types of wedding cakes, all of which have a bride and groom figurine on top. And I’d have in bold print at the bottom of the catalog: “NO CUSTOMIZATIONS OR SUBSTITUTIONS EXCEPT AS OTHERWISE STATED; ADDITION OF CUSTOM WORDING IS AT BAKER’S DISCRETION”.

    And then, if a couple like that came in, I’d look at them and say “I sell only cakes with a bride and groom on top. I don’t sell cakes with a groom and groom or bride and bride. But you are welcome to purchase any of the cakes I do offer.”

    To me, they’d have a harder time suing over that one because the logic that would require a baker to sell a specific kind of cake is the same logic that, for example, would allow a women’s clothing store like Talbots to be sued for not carrying men’s clothing.

    1. BINGO! Like all those signs that say “No shirt. No shoes. No service.”
      THANK YOU for being a REAL libertarian.

    2. A couple of problems.

      First, the guy does custom cakes, so it would cut into his business.

      Second, it’s easy to take a topper off and replace it. So he wouldn’t actually be stopping gay people from buying his wedding cakes, he would just be making them supply their own toppers. So while it might practically accomplish his objective (not selling wedding cakes to gay people), it’s not guaranteed to (for example, me and the hubby provided our own cake toppers for our wedding cake. If we liked the cake enough, swapping the toppers would have been a trivial compromise)

      1. the guy does custom cakes, so it would cut into his business.

        I AGREE. It’s about cowardice. not faith

        And you SEVERELY distorted the facts of what happened.
        The baker refused solely because they are gay. They never said a word about what they wanted/

        1. And you SEVERELY distorted the facts of what happened.
          The baker refused solely because they are gay. They never said a word about what they wanted/

          I’m going to have to ask for a quote here, because I’m pretty sure you have me confused with someone else.

          1. I’m going to have to ask for a quote here, because I’m pretty sure you have me confused with someone else

            The comment I responded to.,

            Or … are his custom cakes totally devised in his own mind, never asking what the customer might like?

            MANY people think the two people atop the cake are kinda dumb (both of my own marriages). Are you SURE he never asks?

            1. You mean the part where we were discussing a hypothetical workaround to nondiscrimination law and not the actual case? That’s where I misrepresented the case?

              1. You mean the part where we were discussing a hypothetical workaround to nondiscrimination law and not the actual case?

                (sigh) Nope.

                That’s where I misrepresented the case?

                I stated the correction in the very next sentence, immediately after. stating that your statement is false.
                .
                Two VERY short sentences. Is that why you posed THIS question so far away from the evidence?

                PLEASE spare me any more of such mind games. You’ve stated the same falsehood four or five times, perhaps more that I didn’t see.

    3. I’d add a figurine of two men smoking cigars.

  27. Once again, the libertarian establishment failed an opportunity to provide a libertarian solution. NO rights are absolute. Not even life. Per the definition of unalienable. Disagree? Take it up with Jefferson and the Founders. Or any dictionary. Or stop the self-righteous “What the Founders intended.”

    There’s at least 50 years of precedent supporting the gay couple. How many signs have you seen, outside a business establishment serving the public, “No shoes. No shirt. No service” (or equivalent)

    Get it? Businesses have accepted for years — FREELY — IN THE MARKETPLACE– a presumption that they will serve anyone, unless THEY say otherwise. Full stop.

    THAT (a sign) is a solution which satisfies BOTH conflicting rights — that our establishment failed to do. Again.
    Equally shameful, LIBERTARIANS are demanding special rights for ONLY (some) religious … in a government which guarantees Separation of church and state. Yet another ass-kiss to ANTI-liberty Ron Paul and extreme socons.

    If they choose to defend the baker, the briefs shoukd argue against ALL public accomodation laws, this being a test case for a larger PRINCIPLE. .Instead of special rights for some. Crony libertariism.

    Personally, I’d side with the baker, but have him pay for a different baker’s cake, only because it’s too late for a sign here. But that’s just individual liberty.

    1. Oh hi Hihn.

    2. Better to get rights for some than rights for none. And in the current political climate, rights for all is not going to happen. You’ve correctly identified the libertarian answer to the question, but you’re letting the perfect be the enemy of the good.

      1. That’s your argument against a proper Constitutional ruling?
        I did no such thing,
        And it’s too idealistic (perfect) to acknowledge many decades of accepted business practice as context?

        And in the current political climate, rights for all is not going to happen.

        That excuses Reason and Cato taking a blatantly anti-libertarian position?

        1. Nothing anti-libertarian about it. The only thing that’s anti-libertarian is initiation of force. Siding with the baker in this case reduces the total initiation of force by government against individuals. It doesn’t completely eliminate it, which would be the ideal. But as I’ve said, I’ll take an imperfect victory for liberty over a defeat. And make no mistake, trying to get this case to rest on free association rights that would apply to everyone would result in a defeat.

          1. Nothing anti-libertarian about it

            I see you have no idea what that means.

            The only thing that’s anti-libertarian is initiation of force.

            Shame on you.
            You just sanctioned the original bans on inter-racial marriage, woman’s suffrage, abortion, ALL violations of equal rights — claiming those were all libertarian And fraud. EVEN THEFT!

            That’s why David Nolan redefined it. It’s now promoted by proven bigots (and statists) like Ron Paul, Murray Rothbard, Lew Rockwell and their ilk (much of the alt-right).

            1. Banning inter-racial marriage is initiation of force. So is theft. The other issues you bring up are more complex, but I think getting into the hows and whys would be a distraction. The important thing right now is how much I need to laugh at you for calling Paul, Rothbard, and Rockwell statists. It’s like the pot calling the china black.

              1. Banning inter-racial marriage is initiation of force. So is theft.

                You actually said that in public?

                The important thing right now is how much I need to laugh at you for calling Paul, Rothbard, and Rockwell statists.

                You need to spend some time outside your tribal cave. I’ll teach you.

                Ron says states have powers never delegated, thus superior to the people. (You’ve already lost and I;m just starting)

                That we have NO defense from rights abuses by states. He denies separation of powers and balance of power between three co-equal; branches. All (as I said) per the KKK and southern racists.

                He LIES about what the 10th Amendment does, denies the very existence of the 9th amendment – which SEVERELY restricts the 10th. Duh.

                The dumbfuck says “rogue judges” recognized marriage equality — application of PURE KKK “principles”

                The statist motherfucker BRAGS of sponsoring a bill that would have forbiden SCOTUS from even HEARING any challenge to marriage equality bans … gays would have been the first people denied the defense of their rights …. SINCE SLAVERY.

                But you believe we had armed troops outside every county statehouse — forcibly keeping women from registering to vote!

                On the evidence … you have no idea what “initiation” means … or “force” … or “staism”
                And it’s ME laughing.

                Anything else?

                1. Nope. You’ve embarrassed yourself enough for one night. Get some rest.

                  1. >You’ve embarrassed yourself enough for one night

                    (snort)Then I’ll have to jam it up you ass even deeper.

                    Bend over

                    Now you refuse to accept that Ron Paul sponsored a bill that would forbid SCOTUS from overturning DOMA — which would have made gays the only group denied any defense of fundamental rights since slavery. — because it would expose you as an ignorant blowhard yet again.

                    Here’s the proof, chump.

                    “I supported the Defense of Marriage Act, … I have also cosponsored the Marriage Protection Act, which would remove challenges to the Defense of Marriage Act from the jurisdiction of the federal courts”

                    Stop attacking me and I’ll stop publicly humiliating you.

                    (My tone and boldface in defense of yet another aggression by a proven stalker/bully/blowhard.
                    Just another starry-eyed puppet of a political cult.)

                2. That’s comedy gold.

                  1. You think Ron Paul’s egregious statist bigotry is … COMEDY?

    3. Get it? Businesses have accepted for years — FREELY — IN THE MARKETPLACE– a presumption that they will serve anyone, unless THEY say otherwise. Full stop.

      I’ll bite:

      Wedding cakes are contractual agreements.

      If one party is not PERMITTED to say no, then how is a contract valid?

      There is no contractual expectation or obligation in serving food — mind you, restaurants should be allowed to say no, as well. There is one — you have to sign them when you request one — for having an expensive wedding cake made.

      1. If one party is not PERMITTED to say no, then how is a contract valid?
        Oh, this is a dangerous rabbit hole that will eventually lead to either “FROM THE BARREL OF A GUN, ALL RIGHT??!” or “what do you mean ‘when did I agree to my parents’?!”

        Might be fun, but a complete ant total time-waster.

        1. Well stated.

        2. Well-stated.

      2. Wedding cakes are contractual agreements.

        So is selling coffee at Starbucks, Big Macs at McDonalds … popcorn at the movie theater… and selling ANYTHING behind the signs I mentioned.

        If one party is not PERMITTED to say no, then how is a contract valid?

        Why ask ME?
        NO rights are absolute. And there are two conflicting rights here, BOTH must be defended to the greatest extent possible, a core principle of individual liberty. Do they no longer teach the principles and concepts of “conflicting rights” in school?.

  28. If I heard correctly, the justices did not disappoint in asking the relevant question, who the fuck puts words on their goddamn wedding cake, some kind of redneck?

  29. Personally, I think there is a deeper/larger issue to be examined here, that is not being considered. Why do only religious people get to pick & choose who they will/will-not do business with? Cannot an atheist baker have objections to gay marriage? Is s/he to be forced by law to bake a gay marriage, or nazi, or black-lives-matter, or whatever cake against his/he will … while the person wit a “religious” objection gets the protection of the law to not have to do so. Cannot a non-religious, non-practicing jew have an objection to baking a nazi cake? I thought the government was not to discriminate for nor against anyone on the basis of their religion … or lack thereof.

  30. Cato is wrong in this case. Baking a cake in no way infringes free exercise – unless your religion requires you to do inflict your god’s judgment on Gay people. The baker is not at the ceremony he or she disapproves of, unlike the caterer or photographer. They bake is not showing any endorsement of something they deem sinful.

  31. There’s a widely ignored, pragmatic and entirely equitable solution to the cake-baking /flower-arranging /taking-photographs issue and that’s to uphold BOTH the 1st Amendment AND public accommodation laws.

    The issue is simple when you stop conflating the crucial distinction between the 1st Amendment rights of a person and a business. The 1st Amendment specifies that people have the right NOT to speak as well as to speak, but says nothing about businesses.

    So the public accommodation law can compel a BUSINESS to comply but this does not mean an individual working or employed in that business should be forced to surrender his or her 1st Amendment rights.

    If someone in that business is willing, then the customer gets his flowers arranged. But if no one is willing, then Constitutional 1st Amendment rights trump public accommodation laws and the would-be customer goes elsewhere. This largely resolves the tension. In a freedom-supporting world, of course, there would be no such laws, but should the perfect be the enemy of the good?

    It seems to be domineering bigots like the government officials bringing this case that cause such difficulties. Such snowflakes should stop trying to arrogantly insist the 1st Amendment doesn’t apply to people who disagree with them and simply get their cake baked /flowers arranged /photographs taken elsewhere.

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