Supreme Court

Supreme Court Tries to Draw a Line Around Gay Wedding Cakes

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If decorating a cake counts as constitutionally protected speech, what doesn't count? That was the question at stake during Supreme Court oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

The case—which centers on whether a state may, in the interest of preventing discrimination, require a private baker to produce a custom wedding cake for a same-sex marriage celebration—was heard in early December.

As Jack Phillips, the baker in question, put it in a recent USA Today op-ed, his creations are "not just a tower of flour and sugar, but a message tailored to a specific couple and a specific event—a message telling all who see it that this event is a wedding and that it is an occasion for celebration." Such a message in the case of a gay union, he wrote, "contradicts my deepest religious convictions." His lawyers argue that nonetheless forcing him to "sketch, sculpt, and hand paint" a cake, as the state civil rights commission has done, is "compelled speech" and a violation of his First Amendment rights.

But wouldn't the same logic, the justices wanted to know, permit someone to turn potential clients away based on their race or religion as well? For example, could a baker refuse to make a birthday cake for an African-American child on the grounds that his religion tells him it's wrong to "celebrate black lives"?

This is an important legal question, because unlike sexual orientation, race and religion are protected classes at the federal level—and laws against discrimination on those grounds have been frequently upheld. (In 1983, for instance, the Court ruled that Bob Jones University could not claim a religious exemption to government desegregation efforts.) If Phillips' challenge to the Colorado law necessarily implicates widely accepted decades-old protections against other forms of discrimination, it stands little chance of succeeding.

On the other hand, if there is some aspect of the Colorado policy that clearly separates it from (and makes it more egregious than) the laws that came before, the justices might be willing to side with the cake artist. Thus, their frequent attempts to get Phillips' lawyers to narrowly define their theory about when the state can or can't butt in.

"What is the line?" Justice Stephen Breyer asked at one point. "The reason we're asking these questions is because obviously we want some kind of distinction that will not undermine every civil rights law."

It wasn't just the baker's legal team that was pressed to state a limiting principle, however. When the attorneys representing Colorado took the floor, they were immediately interrupted with similar queries. Is there any form of compelled expression, the justices wondered, that would in the state's view cross the line? If the government can require you to make a cake against your will, what can't it do?

Could a state force Catholic Legal Services to represent a same-sex couple in a wedding-related dispute, Chief Justice John Roberts asked, since the nonprofit happily represents heterosexual couples in similar situations? Justice Ruth Bader Ginsburg speculated about a case that involves words and not just images: Would Colorado say a baker must spell out "God Bless the Union of Charlie and David" in frosting? Justice Samuel Alito inquired whether a writer who gets paid to pen wedding vows for couples should be made to do so for a gay marriage.

If any of these regulations fail, the justices were implicitly asking, what makes the Colorado law different? And if all these regulations are licit, well, what good is the Constitution?

Months will pass before a decision is handed down in this closely watched case—and when it is, there's no guarantee it will answer all the major questions at play. But one way or another, the Supreme Court is left with something its members clearly see as a difficult task: defining the contours of a state's power to require people to do what their religion tells them they may not.

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  1. “What is the line?” Justice Stephen Breyer asked at one point. “The reason we’re asking these questions is because obviously we want some kind of distinction that will not undermine every civil rights law.”

    Or, in other words, can you make a narrow argument that doesn’t make prior courts look like they were totally wrong? We’re trying to save face here and save some laws that are of questionable constitutionality…

    1. The thing is that all the other civil rights laws need to go away! IF there was ever a time they were “needed,” I think it is past that point now. Could you imagine the screeching from the SJWs if they just handed down “We have determined that all civil rights laws are unconstitutional” as a verdict. LOL

  2. If the Supreme Court rules in favor of the plaintiff, the alt-right is gonna have a field day with cakes adorned with Leviticus quotes. Then we’ll have another Supreme Court case about “compelling hate speech” or some such nonsense. And on and on this nonsense will go.

    1. You mean freedom loving people will have a field day.

      You cannot force people to make things for you. You also cannot force people to like you. At least in America.

      1. Turns out that oftentimes you can.

        I think it’s sad that this has become a free-speech issue only. And that there is apparently little consideration period for freedom of association. Perhaps it’s not constitutionally recognized but if so that only points to a weakness in the constitution.

      2. Whooosh.

          1. Obvi, that was not meant for you, my beloved BUCS.

        1. The court recognizing that people don’t have to make stuff for people will not leave room for this issue to go on and on.

          Whoosh.

    2. I’ve been tempted to go get a horrible cake from some of the bakeries in Seattle for the same reason. I think some good fag hating bible quotes or a Hitler birthday cake or something would show these fuckers how wrong they were. I don’t mind gay folks, but as a group they have lost their shit in recent years.

  3. No one should be forced by the government to run their business in a way they don’t want to. But if your “deepest religious convictions” are about *other people* not being allowed to do harmless things then your religion is garbage

    1. But there are a bajillion beliefs and ideologies that are garbage that aren’t religions. That doesn’t change your rights to have them.

    2. Homosexuality is harmless and is harmful at the same time.

      Who cares what adults want to do to each other.

      On the other hand, the humans race would probably end if nobody was popping out babies. Plus biological man and woman as parents does have a balance to it. Not that homosexuals cannot have babies or that opposite sex parents cannot be shitty.

      Its worth discussing but many butt-sex ideologues refuse to say anything that is not gay fabulous.

      1. Yes, homosexuality is threatening to spread so much that no one will have kids. Jesus Christ, lovecon89.

        1. As I already said, Gay folks can have kids in alternative ways too.

          Funny that I brought up butt-sex ideologues not being able to rationally discuss this issue and you went that route.


          1. As I already said, Gay folks can have kids in alternative ways too.

            Currently, to my knowledge, there is exactly one way to conceive a child even while the surrounding mechanics are variable.

            1. A stork?

      2. There is an argument that homosexuality is a response to modern culture and/or a societal response to certain pressures that we likely don’t understand. It’s also pretty likely this is in our wiring somewhere as an evolutionary trait, but to what ends I don’t think anyone really gets yet.

        You see it in nature, and it’s usually in response to population pressures as far as we can tell.

        In other words, it’s pretty unlikely that the entire world will become fabulous and stop popping out kids.

        1. Sure, its unlikely that the World will stop popping out kids but some nations have negative or near neutral birth rates.

          As you say, a lot of the reasons we don’t understand and we probably won’t since certain groups cannot have a rational discussion about it.

          I tend to think that as our culture gets more leisure time to be do what we want, we do things that past generations would not do as much. In the past, gay men who wanted to have kids had to couple up with a woman and marry because that was custom.

          It seems that you would be an interesting party to discuss that with.


          1. As you say, a lot of the reasons we don’t understand and we probably won’t since certain groups cannot have a rational discussion about it.

            I tend to view it as a natural problem, in that it’s unlikly to use a flawed instrument to examine itself and expect a rational conclusion. RE: Our own brains.

        2. The biological causes of “the gay” are kinda interesting. I’ve read on it a decent amount over the years.

          One thing is that they definitely have biological differences, genetic abnormalities of some sort. Their brain scans actually show a mix of reacting like male brains and females brains both in lesbians and gay dudes.

          They’ve noticed in animal populations that when they get over populated magically queers appear. So one theory is that because we’re more densely populated nowadays, this is triggering whatever weird genes to kick out more gays. Even a small rural town is more dense than our natural environment of a few people living in huts/caves. Urban environments could kick it into overdrive. This area is complicated and a lot more to it, but interesting.

          Since we have no real measure of how many people were actually gay saaay 1000 years ago, because people hid it, it’ll be hard to know if there are more gay people now than in the past.

          I do know that a lot of people that are “on the edge” are definitely pushed to go gay that wouldn’t have 50 years ago, and would have been perfectly happy. Like bi people or whatever. What really worries me is I have met people that were totally straight, who “tried” being gay against their own inclinations, just because of the social pressure, and then went back to being straight after being disgusted with their gay experience… I can’t understand how somebody can be so weak willed, but the do exist apparently…

    3. And this is why we need an official state religion, or at the very least the Government needs to sign off on if your religion is ‘real’ or not and vette your beliefs in advance to make sure there’s nothing objectionable. There should also be religious tests for office.

      Islam hardest hit? Or…is that Islam? I’m confused.

      /sarc

    4. Define “harmless”.

      If doing [A] is wrong but doesn’t appear to affect anyone negatively, it would appear to us that [A] is harmless. But that doesn’t make it anything other than wrong.

      In freedom, you don’t force anyone to do anything (other than to stop initiating force).

  4. It is interesting to note that in the BJU case, they fought for their religious right to discriminate, and then a couple decades later, casually tossed aside the rule that cost them their tax exemption. (I sadly admit I’m a BJU alum myself, having been a student while the school was fighting this case)

    They have recently regained their tax-exempt status, and have been granted Title IX exemptions that prohibit gender discrimination in schools that receive federal funds (they accept students who use government-backed student loans, in addition to SC students who use scholarships funded by the lottery — something I find wildly hypocritical of a school that eschews vices such as gambling).

    I am not only a BJU graduate, I am also a gay man, in a conservative state (SC) that recently married my BF of almost 10 years. We shopped around for cakes. We asked up front if the bakers had a problem with doing a same sex wedding, but that’s a luxury we had because of where live. Not everyone has that luxury with grocery stores or healthcare, much less something as trivial as bakeries. As far as I’m concerned if you take a business license (or accept government employment), you agree to serve the entire community. It doesn’t mean you have to cater to every whim (or religious belief) of every customer (haven’t there already been cases about objecting to putting specific wording on cakes?). This guy didn’t even attempt to work with the customer.


    1. This guy didn’t even attempt to work with the customer.

      Did the couple try to find another bakery?

    2. “It doesn’t mean you have to cater to every whim (or religious belief) of every customer (haven’t there already been cases about objecting to putting specific wording on cakes?). This guy didn’t even attempt to work with the customer.”

      So your solution is to…. muddy the waters even further?

    3. Well then I’m going to go find a gay baker and demand he make me a birthday cake for Hitler (it’s on 4-20 of all days!) that shows him plunging a sword through a jews chest, while stomping a trannies head in with his jackboot.

      That should be cool right? Because you can’t discriminate… It’s an all or nothing thing man. I’m a reasonable person, and it sounds like this baker didn’t immediately shout “Get the fuck out of here you faggots! I hope you get gassed or burn in hell!!!” He just politely declined.

      It’s all or nothing. Either nobody has to make a gay wedding cake, or they have to make my great idea for a Hitler birthday cake. Which I will send to the ADL as a prank. Does that sound cool with you? ALL OR NOTHING. DECIDE.

  5. In other words: doesn’t free speech let people say, or not say, racist things?

    And the answer is, “Yes, yes it does.”

    And this is why free speech is horrible and all you libertarians are closet racists. QED.

  6. “For example, could a baker refuse to make a birthday cake for an African-American child on the grounds that his religion tells him it’s wrong to “celebrate black lives”?”

    Apples and oranges.

    One is discrimination based on a behavior. The other is not.

    1. Wut.


    2. One is discrimination based on a behavior. The other is not.

      That is essentially the crux of the issue. Homosexual individuals want to claim that a behavior and/or sexual preference is exactly the same as someone’s skin color. This is demonstrably false, but it’s the logic they had to use in order to get special dispensation from the government to receive marriage benefits.

      A black man CAN NOT change his skin color to be something else, but a gay man can indeed fuck a woman.

      1. Ehhhhh, I dunno.

        There are people that are bi. That is true. But there are also people that ARE NOT. My gay friend Tom said the very thought of pounding tight pink pussy, instead of hairy older mens assholes, was disgusting. LOL I get it. The idea of banging a dude makes me seriously grossed out.

        I believe it is biological 110%. So it’s not really that different IMO from being black. BUT the real point is that a guy SHOULD be able to refuse to serve a black guy. In the 21st century it wouldn’t happen much, and all the places that did that would probably go under pretty quick. But it should be allowed if we’re arguing on principles. People just don’t have any fucking principles anymore, which is why this country is so fucked up.

      2. Also, I would like to add that as a white guy, I would be okay with a black fried chicken restaurant owner having a “No Honkies Allowed” sign up too. I’d probably be bummed, because you know it’s be some grubbin’ ass fried chicken nigga!!! But I’d survive. Frankly I think THIS outcome is more likely if discrimination laws were removed, see ethnic groups of all kind sprouting up everywhere.

  7. That’s what happened to me: I have over $100K in student loan debt, with a masters in problematics, with a minor focus on vaginal studies.

    Where’s my job?

    And that’s all you need to know that capitalism sucks. QED.

  8. Frankly I don’t think it’s a Free Speech issue at all. It is really about a business person choosing their customers. A business has a right to turn down potential customers. The mistake both bakeries made was giving an honest reason for refusing the gay couple’s business. What they should have said was they had a backlog of work in that time period and would be unable to accommodate them along with a referral to another bakery.
    This is a situation where honesty didn’t pay.

  9. If any of these regulations fail, the justices were implicitly asking, what makes the Colorado law different? And if all these regulations are licit, well, SEO Preneur what good is the Constitution?

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