Free Speech

Washington Court Reaffirms That Florists Must Serve Same-Sex Weddings

The U.S. Supreme Court had sent the case back down to be considered in light of the (narrow) Masterpiece Cakeshop decision.

|The Volokh Conspiracy |

This morning's opinion is here.

1. The florist had argued that the First Amendment barred the government from compelling her to speak, and flower arranging should qualify as protected expression for First Amendment purposes. But the court concluded in 2017 (and reaffirmed now) that flower arranging isn't sufficiently expressive to qualify.

2. The florist had also argued that the state of Washington's Constitution had been interpreted to presumptively exempt religious objectors from legal requirements that would violate their religious beliefs. But the court concluded in 2017 (and again now) that, even if this rule applied here, the presumption was rebutted: The government had a compelling interest in "eradicating barriers to the equal treatment of all citizens in the commercial marketplace" (even if same-sex couples could easily get the same floral arrangements from other florists).

3. After last year's Masterpiece Cakeshop decision, the U.S. Supreme Court sent the case back to be reviewed in light of that decision. But though some Justices would have generally recognized a First Amendment right of wedding cake bakers (and thus likely florists as well) to refuse to serve same-sex weddings, the majority's decision was much narrower: Based on the particular actions of the government authorities in that case, the Court held that Masterpiece Cakeshop had been unconstitutionally discriminated by the state adjudicative agency against based on its religion.

In today's decision, the Washington Supreme Court concluded that there was no evidence of such religious discrimination by any adjudicative agency or court against Arlene's Flowers. And it saw no occasion to revisit its free speech and religious exemption analysis, because the Masterpiece Cakeshop majority reasoning didn't affect that analysis.

4. Presumably Arlene's will now petition the U.S. Supreme Court to review the decision again, and it's possible that the Court will agree to consider the case. Or the Court might instead want to wait for a case where the free speech issue seems to be more clearly teed up, such as the calligrapher or videographer cases that are likely to be decide soon by state and federal appellate courts. (Calligraphy and videography are more likely to be seen as inherently expressive than cake baking, or than flower arranging, though perhaps flower arranging might be somewhere in the middle.)

My view is that writers, singers, artists, photographers, videographers, printers, and calligraphers should generally have a Free Speech Clause right to refuse to create or perform material they disapprove of, including by refusing to do things

  • for same-sex weddings (even if that violates state bans on sexual orientation discrimination),
  • for Scientology events (even if that violates state bans on religious discrimination),
  • for Democratic or Republican events (even if that violates some cities' bans on political affiliation discrimination), and the like.

I don't think that extends to cake bakers (at least so long as they aren't asked to write particular words or include any conventionally understood symbols). I'm not sure about florists. The Washington Supreme Court would, it seems, reject all such claims, and at least the florists'. We may soon see what the U.S. Supreme Court says.

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  1. I don’t think we need the First Amendment to tell us that forcing someone to do something against their will is wrong, no matter their motivation.

    1. I think we should have settled that one with the 13th amendment.

    2. How about forcing restaurateur to serve a black person?
      We force people to do things against their will all the time. Ideally I think we do our best to limit it, but it’s the nature of society. If I want to build an addition to my house I have to file for building permits. If I want to drive my car I have to get car insurance. If I want to sell food, I have to serve black people.

      1. Why stop at race? If service is mandatory, you also support serving ALL people — no exceptions?

        1. Except Trump, his cabinet members and staff, family members, and voters.

      2. Honestly? We never should have gone down that road.

        I can understand the appeal of public accommodation laws in extreme circumstances, like the only restaurant or hotel in an isolated town; You car breaks down, what are you supposed to do, sleep under a bridge and eat road kill, until you can walk out? A heart rending situation. But, “Hard cases make bad law”, and public accommodation law has become the epitome of bad law.

        No business that you don’t have a life threatening need to deal with should ever be forced to do business with you, and to compel single proprietorships, where what is sold is a particular person’s labor, to do business with somebody is literally involuntary servitude, specifically prohibited by the 13th amendment.

        To compel that involuntary labor in the case of something as trivial as a bouquet of flowers or a cake? Madness.

        This is the left, and the ‘civil rights’ community, (As if there remained any recognizable distinction at this point.) version of Conan’s “What is best in life”: ” To crush your enemies, see them driven before you, and to hear the lamentation of their women.”

        At this point they’re just reveling in the power to crush their enemies, nothing more. That’s all it’s about anymore.

        1. I calculate my tips at restaurants based on how servers treat my wife — don’t go to a certain restaurant down here whose long dead owner resisted desegregation way too ass-holish for me.

          Not sure that I would go to establishments that go overboard in trashing LGBTQerty or frankly, anyone else.

          The CRA … Democrats trying to fix their prior screw-up and STILL screwing up!

          1. They didn’t understand their mistake on a fundamental level, so instead of giving up on handing out racial and group perks, they just changed client groups.

        2. At this point they’re just reveling in the power to crush their enemies, nothing more. That’s all it’s about anymore.

          JFTR, I would say exactly the same about the right.

          1. That’s because you’re a partisan left-wing douchebag.

        3. You car breaks down, what are you supposed to do, sleep under a bridge and eat road kill, until you can walk out? A heart rending situation.

          You are black. You are traveling when night comes. Are you supposed to have to search all over town, maybe even go to the next town, for a place to eat and sleep, facing angry refusals from those who don’t want you? Carry a special directory, which might not even be up to date?

          to compel single proprietorships, where what is sold is a particular person’s labor, to do business with somebody is literally involuntary servitude, specifically prohibited by the 13th amendment.

          No. First, restaurants do sell labor, but they also sell food, beverages, table space, etc. Second, the labor they sell is usually only partly, if at all, the owner’s. It’s the labor of the cook, the waiter, the cashier, the busboy, etc.

          Second, the decision to open a business is a voluntary one. To be barred from certain kinds of discrimination is no more involuntary servitude than being required to maintain health standards, or to file tax returns.

          Finally, the comparison to actual slavery is ludicrous.

          1. I already addressed that. “You are black” doesn’t add diddly squat to the situation. I admitted it’s a bad case, and maybe even justifies some very limited applications for “public accommodations” laws. But, florists? Seriously? Nobody spends the night under a bridge, maybe dies of exposure, due to having to go to the next florist down the road.

            In some of these cases the plaintiffs actually went looking for somebody who would turn them down! They weren’t even inconvenienced, they were looking for somebody’s life to ruin for fun and profit.

            I didn’t say all businesses sold labor. But some do primarily sell labor. Florists, for instance. The value of the flowers and vase by themselves is a tiny fraction of what you’re charged, because they’re selling the arranging. How much would a box of ingredients for a cake cost you, compared to a wedding cake?

            You’re buying the labor, and forcing somebody to sell their labor to somebody they don’t want to labor for is, literally, involuntary servitude.

            1. In some of these cases the plaintiffs actually went looking for somebody who would turn them down! They weren’t even inconvenienced, they were looking for somebody’s life to ruin for fun and profit.

              I recall one case in Indiana where they went to a pizza place that doesn’t do weddings at all and then tried to make it about same-sex marriage, when the owner would have refused to cater ANY wedding

          2. The argument that the decision to open a business is voluntary, and thus, any restrictions on it are acceptable would mean that there is no “right” to do anything.

            “Hey, you are voluntarily speaking or publishing a newspaper, so if you want to do that, follow our rules, or else.”

      3. Rabidwombat: “Ideally I think we do our best to limit it”

        We never have the “ideal.” You’re right that it’s in the nature of society. Once there is a tool, its “usefulness” continues to increase–unless something interferes. There is some similarity to the metaphor of the frog in the boiling pot.

      4. What about Klan members? Neo Nazis? Are you required to serve them?

        1. I’ve asked that question many times. Could bakery owner be compelled to decorate a cake (none of these cases have been about _baking_ a cake) to commemorate the founding of the Ku Klux Klan? Usually there’s no answer. Once or twice, someone answered that KKK members are not recognized as a protected minority.

          Think about that. Whether or not it’s allowed to oppress a minority depends on whether that minority won a political popularity contest!

    3. Then go seek the repeal of the CRA (1964).

      1. We should, but it’s going to have to get a lot worse before we will. a LOT worse.

        1. I’m generally down on anti-discrimination laws, but the 1964 CRA is tame compared to the ones at issue here. If there are businesses that shouldn’t discriminate, motels and the like are precisely the sort where you get the heart-rending examples you used earlier.

          My only gripe with the CRA is why it lumps in inherent traits (race/color) with non-inherent traits (religion). It’s not at all clear to me why religious views deserve special treatment from any other viewpoint based discrimination.

          1. My only gripe with the CRA is why it lumps in inherent traits (race/color) with non-inherent traits (religion). It’s not at all clear to me why religious views deserve special treatment from any other viewpoint based discrimination.

            Because religious bigotry has been widespread, and remains so today, with only the particular religion(s) changing over time.

            In other words, it’s based on actual experience, rather than some nice philosophical principle.

            1. “Because religious bigotry has been widespread…”

              What difference would that make? Does that mean we need anti-discrimination laws for NAMBLA, because their views are overwhelmingly disfavored?

              1. It’s not a question of views being disfavored.

                I don’t care if someone thinks my religious views are nutty, as long as they don’t refuse to rent me a hotel room because of it. In fact, given any single religion, there are lots of people who think it’s nutty, or at least badly mistaken.

                NAMBLA members don’t get discriminated against, probably because they are not identifiable and, unlike some religious believers who might also be unidentifiable, are not likely to worry about a sign that says they are not welcome.

                As I said, it’s based on actual experience, rather than some nice philosophical principle. Classroom discussions are one thing, reality is something else.

                1. If we are talking actual experience, then the ability of a gay couple to get a wedding cake is miles removed from the ability of a black motorist to get a tow when his car breaks down in 1960. These cases are all contrived. First, there is no emergency in getting a wedding cake. Heck, you can get married without one. And second, there are probably a hundred alternatives that will gladly take their money.

                  The answer, IMO, is to substantially narrow the definition of “public accommodation” to either essential services (roadside assistance, medical care) or places where people gather socially (hotels, restaurants, theaters).

                  1. A good point, Bored. Major problems come from a common inability to take into account the amount of harm to a recipient. How minimal or major is it? In the particular case of weddings, there is no “harm” beyond outrage and (perhaps) inconvenience. Unlike being able to get a tow, a hotel room, a meal, or a prescription for your asthma.

                    1. That comes of placing zero or even negative value on the interests of the seller. Either they don’t count, or forcing them to do something they don’t want to is seen as valuable in itself.

                    2. In all of these cases other service providers eagerly lined up around the block to provide the services for FREE. It’s literally the opposite of the Jim Crow situation.

                  2. In the Elaine Photography case, the plaintiffs literally shopped around for a photographer who would refuse the job, and didn’t settle on Elaine until they’d confirmed she wouldn’t do it.

                    They weren’t shopping for photos, they were shopping for a lawsuit.

                    1. They are thoughtcrime detectives.

                2. “I don’t care if someone thinks my religious views are nutty, as long as they don’t refuse to rent me a hotel room because of it.”

                  Take out the word “religious”. I’m an attorney. Why can’t I refuse to take on clients because of their views? If the state told me that I had to take on clients who had views I disagreed with, I wouldn’t treat this as a trivial demand. Would you?

                  “NAMBLA members don’t get discriminated against…”

                  Yes they do. I know at least one person who refuses to provide services to NAMBLA members. It’s me.

    4. My business serves people across racial lines along with straight and gay individuals and/or couples. I have also refused to serve a few gay individuals and a few african american individuals (along with several straight individuals and several white individuals).

      My reasons for refusing to serve those individuals are due to a variety of reasons, none of race or sexual oreintation discrimination, but on the individual behavor and other factors.

      Based on the behavior described by the masterpiece cake plaintiff’s, I would have absolutely refused to provided service to them, not because they were gay, but because they behaved like jerks.

      that being said, that puts me at risk for frivolious suit.

      1. Yea. Who walks into a bakery and asks for a cake for a special event? What jerks!

        1. Who walks into a bakery and asks for a cake for a special event, already knowing that the baker won’t be willing?

          Yeah, a jerk, the sort who finds forcing somebody to bake a cake as tasty as the cake itself.

          1. I know of a hardware store that has a “no gays allowed” sign, but I have never heard of a bakery that publicly posts it’s intention to discriminate.

            If y’all won’t have the courage of 1960s racists to publicly warn us of your “beliefs” ahead of time, don’t come whining that we didn’t know about them ahead of time.

            1. Masterpiece’s policy isn’t “no gays allowed” it’s “no custom cakes celebrating events offensive to the baker.” He’s perfectly willing to sell anything already on the shelves to anyone, and he’s perfectly happy to custom-bake a birthday cake for anyone. But he doesn’t create cakes for the purpose of celebrating divorces, gay weddings, Satanism, transgender reveals, Halloween, etc.

    5. “should generally have a Free Speech Clause right to refuse to create or perform material they disapprove of”

      they do. you go on to cite only who theyre done for, which is a separate matter entirely.

  2. I don’t think that extends to cake bakers (at least so long as they aren’t asked to write particular words or include any conventionally understood symbols).

    What are “conventionally understood symbols?” Two little men on a cake with tuxedos?

    IMO, a wedding cake is by itself a conventionally understood symbol — it has a distinctive appearance, and announce a celebration of a wedding. (At least in our culture at this time.)

    Google “wedding cake,” click on Images, and you will see hundreds of similar cakes, all of which are recognizable as “wedding cakes.” And many of which display considerable artisitc talent.

    That is why baking a wedding cake is expressive, IMO. Certainly a custom one.

    But that would not be the case for other baked goods. I don’t think a baker that is asked to bake petit fours for a wedding has a First Amendment argument.

    1. I’m not sure about florists.

      Surprised that you are sure about wedding cakes but not florists. The latter seems to be a harder problem. It is only marginally expressive. Much less so than a wedding cake.

      Many florists and large florist companies do use slogans that imply that flowers are expressive. Try Googling “Say It With Flowers.” Apparently many florists feel that their wares are expressive.

      1. Ask yourselves this question; What if government outlawed certain flower arrangements?

        In the cake issue, if it suffers no first amendment protection, could the government outlaw two guys in tuxedos on it?

    2. While a wedding cake does itself convey a message, I think the point here is that the baker’s objection is not the message sent by the cake itself (leaving out the topper), but the message sent by the cake’s usage. I think the professor is saying that if the baker were forced to ice into the cake a “Marriage Equality!” slogan, that would go to far. But a cake, even a custom one, in and of itself, doesn’t say anything the baker doesn’t always say.

      An analogous situation would be a birthday cake for Hitler. The baker would be justified in saying, “I’m not going to write ‘happy birthday, Hitler’ on the cake.” But is he really expressing any particular favor for Hitler if he simply writes “Happy Birthday” on the cake and sells it to someone who is going to use it for a Hitler celebration?

      1. I should add, though, that I am not in favor of most of these forced sales laws. I think our economy is sufficiently large and diverse that such laws are not needed.

      2. I think your analogy is apt, but I come out the opposite. “Happy Birthday” is clearly expressive, and the fact that someone is going to use it for Hitler’s birthday is part of the context of the expression.

        Same thing applies to a wedding cake — the context becomes part of the expression. “Congratulations” or “Many Happy Returns” are generic expressions that take meaning from their context. Who are you congratulating? The persons being honored by the cake.

        And let’s not forget, many wedding cake artists (I believe the Masterpiece Cakeshop owner was one of them) work with the customer to create a particularized theme for that couple. This might include their hobbies or interests. In such cases, clearly there is particularized expression for a particular couple, not just a generic statement of congratulations.

        1. I thought Phillips categorically refused to create a custom cake, even one with no message on it, once he realized it would be used by a same-sex couple in their wedding. So, I think Duck916 is right when he said, the baker’s objection is not the message sent by the cake itself (leaving out the topper), but the message sent by the cake’s usage.

          Eugene argues that a cake with no message on it isn’t expressive enough to trigger the First Amendment. If it were, then the limousine company could likewise claim that delivering people to the wedding is expressive.

          1. He refuses to bake a cake for celebrations he disapproves of. Supposedly he’ll *sell* a cake already baked to whomever.

      3. Duck97: “But a cake, even a custom one, in and of itself, doesn’t say anything the baker doesn’t always say.”

        A custom cake endorses that for which the artist prepares it. Eugene Volokh now seems prepared to grant first amendment protection if, say, a rainbow flag motif is requested (I don’t think he was so inclined previously). If one accepts the proposition (and I do) that one should have to provide services except in cases fairly rare cases where things such as First Amendment principles are at stake, the inclusion of such viewpoint-specific content seems to me to be a firm boundary in favor of the service provider.

    3. This is the one place that I think perfectly reveals the dishonesty of many on the “Bake the Cake” side.

      Anyone that thinks that cakes (or flower arrangements) are not artistic is either ignorant, or lying.

      There are tens of thousands of cake competitions held in the United States every year, with millions worth of prizes and cash given out to the winners. These are judged on many different criteria, usually including appearance and creativity.
      There have been dozens of TV shows dedicated to creating cakes, and making them look good. Some of these TV shows produce cakes that are actually inedible! The use glue and wires and paints to produce cakes that look amazing, but cannot be eaten. Obviously, then, the point of those cakes cannot be anything OTHER than ‘art’.

      Flower arranging is the same. In the US, it isn’t a popular competitive art form, but in other nations it is. Japan, for example, has ikebana – and ancient art form with thousands of competitions from high school clubs up to national flower store chains. There are hundreds of formalized styles, using different symbolism and structure to produce their artworks.

      1. This is the one place that I think perfectly reveals the dishonesty of many on the “Bake the Cake” side.

        Anyone that thinks that cakes (or flower arrangements) are not artistic is either ignorant, or lying.

        I strongly urge you to read the SCOTUS transcripts from the oral arguments in Masterpiece Cakeshop.

        This issue was discussed there. The justices were not able to get a coherent and consistent answer out of Phillip’s lawyer on where the line between art and service was. Phillip’s lawyer even flipped on that based on whether the “artist” was anti-black or anti-Jew.

        1. I have read them. I also read the dissents.

          The question never should have come up in the first place. It might have been reasonable to question whether a particular cake was artistic or not, but flat out denying that ANY cake could be art (like a dissent did) is absurd and dishonest.

  3. The Washington Supreme Court has been taken over by the left. It is degenerating into a leftist rubber stamp.

  4. This was depressingly predictable, as our march towards the “Everything that’s not forbidden is mandatory” dystopia continues.

  5. The ghost of Tony K. strikes again.

    I guess the only cake baker in Washington should be forced to do stuff. Wait, you say there are hundreds or even thousands of cake bakers. Wow, you would think otherwise from the state forcing this baker to violate his beliefs but fascists gotta fascist.

  6. It strikes me that Eugene’s list of things that deserve 1A protection against compelled production under anti-discrimination laws are, with the *possible* exception of singers, depending on the circs, things that are protected, or at least protectable, by copyright. Is that a useful mode of analysis?

    1. No. There are many things that are protected by the First Amendment that are not protecible by copyright. “Down with Trump” and “Vote for Trump” are two such things that come to mind.

      1. Fair enough, but since the issue is whether something is expressive or not, if something *is* protectable under copyright, then it must be at least minimally expressive.

    2. I should have continued this thought, so I’ll do it this way. One way of looking at wedding cakes and perhaps floral design is as types of ephemeral sculpture. Under what circumstances would you deny a sculptor the right to object to compulsion? Perhaps only when the sculpture is a completely stock, “scènes à faire” creation? The point is that it’s unhelpful, I think, to look to categories rather than substance in deciding what is creative and what isn’t. But since judges abhor having to make value judgments, using copyright concepts might be a helpful crutch.

    3. “Is that a useful mode of analysis?”

      No, because art cakes, which includes many wedding cakes, are excluded by EV from 1A protection, but are protectable by copyright.

      1. Yes, well I was trying to critique Eugene’s line of reasoning, or at least what I presume it to be with respect to his list of what’s covered and what isn’t.

  7. “I don’t think that extends to cake bakers (at least so long as they aren’t asked to write particular words or include any conventionally understood symbols).”

    My understanding is that a bronze art sculpture is protected by 1A even absent “particular words or any conventionally understood symbols”

    What makes the bronze art sculpture different from a sculptural art cake, a category many if not most wedding cakes fall into?

    1. Is there some particular case about bronze sculptures?

    2. Nothing.

      But that’s the wrong question, because no one is contesting that Phillips would be able to deny a specific design to any customer he wants.

      What is actually being debated is under what conditions can a public accommodation offer a service to the public and then deny that service to a specific class of people that are enumerated in applicable non-discrimination law.

      So in this context, Phillips can offer “sculptural art cakes” to everyone, but then refuse specific ones (“If you want me to do David, I’m putting underroos on him”). What he cannot do is offer “sculptural art cakes” to everyone and then say pregnant women can’t buy them.

      1. EscherEnigma: “deny that service to a specific class of people that are enumerated in applicable non-discrimination law.”

        Not, at least, in the cake baker case. Phillips did not object to serving gays, and in fact does serve them (if any come into his shop anymore). He objected to creating a a gay-themed wedding cake. If I — a straight but not narrow guy — went into his shop to get a gay-themed cake for my friends’ wedding, he would refuse to bake it for me. If my gay friends went in to buy an off-the-shelf product, he would provide it.

        1. You do realize that the distinction you’re trying to make has been rejected for decades, yes?

  8. We all get that tests like “compelling interest” are just judges’ excuses to uphold unconstitutional laws that they like, right? Hopefully they aren’t fooling anybody.

    1. No. From your post; the only thing I get is that you’re someone who has not yet been to law school, and that you never took a constitutional law class in high school or college.

      Your approach–of imputing bad faith to all judges who rule in ways you don’t like–may make you feel good. But it’s not gonna change the mind of any reader who has not yet already gulped the Kool-Aid.

      1. Let me ask you a question I asked my Con Law professor:

        If the Constitution facially protects a right, and that right can be violated so long as it passes some heightened level of scrutiny, how can Congress actually overrule the Supreme Court when the highest level of scrutiny is applied?

      2. I guess they’re fooling some people.

        1. But the interest is compelling though. See?

          Are you not compelled?

  9. Forcing someone to serve you against their will is slavery, plain and simple.

    That it falls below chattel slavery and the Soviet gulags that Comrade Bernie admired so much does not change reality.

    1. Problem with that argument is that so far, none of the florists, bakers and others being forced to serve in these cases have as far as I know included a 13A challenge. It would be interesting to see what the courts did if someone made a 13A challenge to these laws.

      1. The answer to that is, no one is forcing you to run a business that serves the public. Lots of people in the US don’t. So there is no 13A violation.

        1. Yeah, no.

          One has a right to start a business … don’t need your permission. And that we except this mild form of slavery does NOT make it square with the 13th.

          The state had NO constitutional power to force racial segregation, and yet …

          1. “The state had NO constitutional power to force racial segregation, and yet …”

            Which provision of the constitution prohibited racial segregation by states?

        2. You’ve got to do SOMETHING to earn a living, unless you happen to be independently wealthy. I’ve seen no reasoning that limits the expansion of public accommodation law to essentially every single solitary way of earning a living. I see no limiting principle beyond just what they think they can get away with at any given moment.

          1. I agree that the concept of “public accommodation” has been stretched far beyond what was intended or needed to combat racial oppression.

            But there are many ways of earning a living that do not involve operating a public accommodation. Gainful employment comes to mind — that’s the way most people put bread on their table. And many businesses are not public accommodations. Wholesale businesses are a good example. I am sure you can think of many others.

            1. There are many ways of earning a living that don’t involve operating what is presently a public accommodation. The range of ways of earning a living that count as public accommodations has been growing like a cancer.

              Indeed, when Arlene decided that she was going to be a florist, (29 years ago!) she’d have had no way to know that some day somebody would be able to force her to arrange flowers for a SSM; SSM was illegal at the time, everywhere in the world!

              So, let’s not pretend that you’re capable of deciding in advance not to go into a line of work where you’d be subject to this sort of demand. The list of lines of work subject to such demands, and the list of people capable of making the demands, is continuously growing.

            2. So you’re saying if a person operates a wholesale business and doesn’t want to provide goods to a [INSERT FAVORED GROUP HERE]-owned business, no one would attempt lawsuits?

        3. Can the government require public service as a condition for starting a business?

          Want to start your own law firm? You must spend X hours a year on government-approved pro-bono activities.

          Starting a dental practice? You must take X% indignant clients.

          Offering a lawn care service? You must service government property for free upon request.

          1. Starting a dental practice? You must take X% indignant clients.

            I know what you meant, but, what made the clients so upset?

            1. Have you ever gotten a bill from a dentist?

      2. It’s a nice question whether, for 13A purposes, a slave who has chosen to be a slave (analogizing to someone who sets up in business to serve the public) get to choose his master?

        1. I always assumed that voluntary servitude would also be verboten … can’t imagine X getting in debt and selling themselves to Y for relief.

          The text of the 13th doesn’t mention voluntary though, does it…

      3. Under Jones v. Alfred H. Mayer Co., arguably private discrimination violates the 13A. Under that framework, it seems unlikely that anti-discrimination laws would run afoul of the 13A. However, Jones could be limited to private discrimination against black people.

    2. I think a fitting analogy would be the case law that prohibits “specific performance” for personal service contracts. There is a difference between a task that anyone following instructions could perform and something that requires an individual create spark.

      1. I’m not sure that this distinction actually resolved the issue. Designing a wedding dress, for instance, surely requires a substantial amount of creativity (I doubt that I could do it well) and yet seems very unlikely to have a significant expressive component. Shouting “gay marriage is good and Christianity is evil”, on the other hand, requires no creative input at all, but is surely beyond the power of the state to compel through anti-discrimination law.

  10. Curious not to see this distinction discussed.

    The 1st Amendment vs. CRA line should be between selling a good that has already been created (required under CRA) vs. requiring someone to specifically create a good (protected by 1st Amendment).
    CRAs require equal public accommodation which is to rent the room, sell the item, or allow entrance to the existing service or good.
    Requiring the creation of a previously non-existent good involves another layer of coercion, coercion of the mind, even of the soul, that brings this under the 1st Amendment.
    Finally, this protection of the right to expression could be overcome by a showing that a similar good or service is otherwise impossible to obtain elsewhere.
    This framework solves the problem and protects the reasonable interests of all sides.

    1. This isn’t about solving problems and protecting reasonable interests, though. “Find a willing florist” resolves all the reasonable interests here, and there wasn’t any problem to solve in the first place.

      These sorts of laws have long since stopped being about solving a real problem, and become nothing more than a way to prove to dissenting minorities that they’re not going to be allowed to live according to their own consciences.

      Just a demonstration of raw power to coerce, for its own sake.

      1. If the proper response is “find a willing florist”, then the law is not “proper” and should be changed.

        So no, there’s still a problem.

      2. It’s unfortunate that minority Christians are so hopelessly outnumbered by the gays, in America.

      3. “These sorts of laws have long since stopped being about solving a real problem, and become nothing more than a way to prove to dissenting minorities that they’re not going to be allowed to live according to their own consciences.”

        ” ‘Find a willing florist’ resolves all the reasonable interests here”

        “Find another job” ALSO resolves all the reasonable interests here. Don’t want to make a cake in exchange for money because the buyer wants to use it as they see fit instead of how you see fit? Simple solution: Don’t operate or work in a business that makes cakes in exchange for money. Make all the cakes you want, and NEVER, EVER have one of them be used in a way you find objectionable.

        1. No, it doesn’t, because the number of jobs subject to these sorts of demands isn’t fixed, it is continually expanding. When Arlene decided to become a florist, being forced to arrange flowers for a SSM couldn’t have been a consideration, it was illegal everywhere in the world.

          And it is unreasonable to demand that people repeatedly change their careers as you expand “public accommodation” laws to add their new jobs to the list.

          Simply put, it’s unreasonable to demand that somebody sell you something, or buy something from you, when there are willing alternatives available, or the product is not essential. Human liberty is more important than that!

          1. Then chime in about the hundreds of non-discrimination cases, every year, that don’t involve gay people at all.

            But you don’t do that. You only speak up about the same half-dozen cases over the last decade that include gay people.

            Stated preferences vs. revealed preferences and all that jazz.

      4. To leftists, merely holding a different view is a real problem. So they’ll force you to act in a way such that your “different view” has to be held in secret.

    2. So per your preference, made-to-order restaurants wouldn’t be covered under non-discrimination laws. I’m amused at the thought of a non-discrimination case hinging on whether or not a restaurant’s chicken nuggets qualified as “already created” or if the work of putting them in a deep fryer was enough of a “transformative work” to qualify them as new.

      That said, I’m broadly amiable to attempts to curtail, clarify or narrow non-discrimination laws so long as they apply to everyone, and do not value one belief or “conscience” over others. This is a standard that every serious attempt to protect “religious liberty” in the last five years has failed at.

      1. The difference is between selling and creating. Sorry you can’t see that.

        1. Go read the SCOTUS transcripts from Masterpiece Cakeshop.

          They specifically raised the issue of who counts as an “artist” and where to draw the line. There was no coherent answer.

          So your sorrow isn’t with me.

        2. So does a restaurant count as selling or creating? I genuinely am not sure where you come down.

          1. Restaurants* mass-produce identical dishes. That’s selling, not creating.

            A cook that produces a custom dish just for you, based on your preferences and tastes, creates.

            * Restaurants can have cooks that do custom work, too. I’m referring to the ones that don’t in this comparison.

            1. So a steakhouse can refuse you a steak (which is created based on your preferences and tastes), but they have to serve you the baked potato.

              Yeah, that’s a real clear line.

              1. A steak is not a custom work. It comes in the same size and shape as everyone else that orders that cut of meat, and is cooked to the same one of four conditions as every else’s steak.

                You know this, and are just trying to play silly games (and even fail there, since your “example” is not internally self-consistent).
                Please make a real argument.

                1. Please make a real argument.

                  I already did:

                  Go read the SCOTUS transcripts from Masterpiece Cakeshop.

                  They specifically raised the issue of who counts as an “artist” and where to draw the line. There was no coherent answer.

                  So your sorrow isn’t with me.

    3. “The 1st Amendment vs. CRA line should be between selling a good that has already been created (required under CRA) vs. requiring someone to specifically create a good (protected by 1st Amendment).”

      Depends on what you mean by “create”. Would your definition be similar to copyright law?

      1. Not saying it’s a perfect line to draw. Just that it’s the best solution to this problem.
        Also, the artist analogy is not helpful or accurate as it creates a new false argument, i.e., what is an artist?
        Artists have no more 1st Amendment rights than any other group of people.
        So, the cases can be argued on the issue of sale vs. creation.
        Steaks are sold, hotel rooms are sold, cakes are sold, unless they are custom made, flowers are sold unless they are custom made.

  11. Pro tip: get your wedding flowers from Costco.

    1. Another pro tip:

      Just don’t decorate your wedding with the severed sex organs of plants.

  12. “that flower arranging isn’t sufficiently expressive to qualify”

    The Japanese and their many schools of Ikebana would like to have a word with this court! Flower arranging is extremely expressive. It’s no different than any other art form.

  13. Internet Oligopoly deplatforms you:
    Liberals: LOL, Business rights…make your own Internet.
    Normal Person: But I can’t because you also got me banned from all the banks and payment processors.
    Liberals: LOL, make your own financial system.

    1/10000000 flower shops don’t serve SSW:
    Liberals: THIS CROSSES THE LINE!

    1. discrimination against racists isnt illegal

      1. Gay is a race now? alright lol.

    2. “Internet Oligopoly deplatforms you:
      Liberals: LOL, Business rights…make your own Internet.”

      It wasn’t the liberals who wanted net neutrality repealed.

      1. Of course not, they care when their speech will be affected. But for 99.9% of internet censorship that comes from downstream platforms its AOKAY

        1. Supporting private property rights is left-wing now?

          MMMMKay.

          1. So I take it you’re arguing in favor of the florists?

    3. Good point. Amazon, Youtube, Facebook, Google, the payment processors, banks, and such should also be considered common carriers.

  14. Just give them an arrangement consisting of poison sumac. Drop several tubes of Astroglide into the arrangement to emphasize your enthusiasm.

    1. You may be joking, but that is the next question, right? Not expressive? Okay, here’s a crappy arrangement of flowers. I put no thought or skill into it whatsoever, consistent with the Washington Supreme Court’s view. What now? A claim for “constructive refusal”?

      1. ” Okay, here’s a crappy arrangement of flowers. I put no thought or skill into it whatsoever, consistent with the Washington Supreme Court’s view. What now? A claim for ‘constructive refusal”
        ‘?”

        Pretty sure contract law already has stuff for failing to do competent work that has been contracted for.

        1. Your point being… ?
          Now we’re right back where we started: Lance Hardwood and Heywood Jablomi still need a flower arrangement, and Arlene still hasn’t been paid.
          Specific performance backed by contempt seems to be the only outcome.

          1. Specific performance is only appropriate where one-of-a-kind objects are in contention.

        2. The question would not be a contract question, but a WLAD question.

          1. I’ve been a lawyer for 30 years and I don’t know what “WLAD”, means.

  15. So a group of lawyers decided that a florist is legally obligated to supply floral arrangements for a same-sex wedding despite the florist’s feelings.

    That’s interesting, because ABA Model Rule 8.4(g), which prohibits harassment or discrimination “in conduct related to the practice of law” based on, among other grounds, sexual orientation or gender identity, also expressly states, “This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation…” So we lawyers are perfectly entitled to refuse to represent same-sex couples if we choose – while we punish others for doing exactly the same thing.

    1. I’m not sure you’re going to be able to prove that the authors of the ABA Model Rule were the same lawyers involved in this case.

    2. ” ABA Model Rule 8.4(g), which prohibits harassment or discrimination “in conduct related to the practice of law” based on, among other grounds, sexual orientation or gender identity, also expressly states, “This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation…””

      None of the ABA model rules exist in isolation; they interact. So, if Joe Gaydude wants you to represent him, but taking him on as a client would create a conflict because you already represent Jane Bigot, your responsibility to treat Joe fairly does not override your responsibility to avoid conflicts of interest. Similarly, if Joe Gaydude wants to engage you to draft a will, but your practice area is criminal defense, you can decline the representation. And if you DO happen to take on Joe Gaydude as a client, and he refuses to pay his bill, you can decline to represent him further.

  16. I’m surprised that you’d think cakes are more clearly expressive than flowers. There’s a whole language of flowers, after all. And if the florist agreed to take the commission and then provided bouquets of nothing but stinkweed and similar plants, I think they’d definitely be sending a strong message.

    Personally, I’d draw the line at whether you’re asking them to take additional efforts per your specifications. In a hotel, you’re asking for a room like anyone else gets. In a restaurant, you’re ordering off a set menu that they prepare for everyone. If you go into a bakery or a florist and get a cake/bouquet that’s sitting out on the shelf, that’s not expressive. If you’re asking “make me something that matches my wedding colors/theme/preferences,” then that seems clearly expressive.

    1. And if the Florist/Baker/venue refuses them before they get so far as to talk about design, “additional efforts”, or any “expression”?

      As happened in this case? And the others?

      1. EscherEnigma, my understanding is that they didn’t want any of the premade cakes that were available to anyone, they wanted someone to make a cake for their specific event. That’s additional elements right there. You don’t have to go any farther. They didn’t want to walk into Costco the morning of the wedding for a premade cake, they wanted one made for them.

        1. my understanding is […]

          wrong.

          Go look at the Azucar bakery case. That is a baker not refusing the customer, but refusing specific designs.

          In every single one of the cases y’all are talking about, the service provider in question refused the service not based on what was being requested, but on it being for a gay couple. That is why they keep pushing the argument that any wedding cake (even a plain sheet cake lacking decoration) is a “message”.

          1. Sorry, your statement is false.

            For example, Masterpiece offered to sell non-custom cakes and wedding decorations to the gay couple, and refused to sell a gay cake to a heterosexual customer. This is 100% consistent with the disagreement being with the message, and not with the customer. It is 0% consistent with the disagreement being with the customer and not the message.

            1. As I understand it, Phillips categorically refused to create a custom cake for the wedding of a same-sex couple without regard to what was on the cake. That doesn’t strike me as refusing specific designs. I’m also not following how Phillips distinguishes his decision to categorically not create a custom cake from his decision to sell them a non-custom cake.

    2. “If you’re asking ‘make me something that matches my wedding colors/theme/preferences,’ then that seems clearly expressive.”

      But if so, it’s your expression, not the florist/baker’s. YOU made the decision about what color/theme/preferences, not the baker.

      1. “But if so, it’s your expression, not the florist/baker’s. YOU made the decision about what color/theme/preferences, not the baker.”

        Exactly. You’re asking the baker to make a particular expression that you have chosen. If it’s an expression they don’t want to make and you want to force them to make it against their will, that’s the problem.

  17. For their compelling-interest analysis, the court cited some cases from other states and then had this to say:

    ‘We agree with Ingersoll and Freed that “[tjhis case is no more about access to flowers than civil rights cases in the 1960s
    were about access to sandwiches.” Br. of Resp’ts Ingersoll & Freed at 32. As every other court to address the question has concluded, public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.’

    Just a heads-up to supporters of the decision, in case you are under the mistaken impression that it’s solely about access to goods or services.

  18. Just out of curiosity, and because I haven’t gotten an answer yet, which additional suspect classifications do people want to add to the civil-rights laws? Will they be satisfied to add sexual orientation and gender identity, or will they want a law, like that the provincial government in Buenos Aires, protecting larger persons against discrimination by clothing stores?

    Should discrimination based on political orientation be banned?

    What about discrimination based on physical attractiveness? Height?

    1. Here’s an article from 1995:

      “Shape up or ship out? Employment discrimination against the overweight

      “Abstract
      Increasing health care insurance costs have focused employer attention on health-related factors in employee recruitment and retention. One such factor is weight. Employers have argued that overweight employees are absent more often, are more susceptible to on-the-job injuries and illnesses, and are less productive than others. They have also contended that overweight employees present poor role models and may cause “negative reactions” by others. Although no federal law addresses employee obesity specifically, a number of laws prohibiting other forms of discrimination present potentially litigious situations. This article reviews the background and legal framework of discrimination against the overweight and offers some guidelines for avoiding such charges.”

      (Paul, R.J. & Townsend, J.B. Employ Respons Rights J (1995) 8: 133. https://doi.org/10.1007/BF02621279)

      1. Another article, this one from 1987:

        “This Note will argue that appearance, like race and gender, is almost always an illegitimate employment criterion…”

        (“Facial Discrimination: Extending Handicap Law to Employment Discrimination on the Basis of Physical Appearance.” Harvard Law Review 100, no. 8 (1987): 2035-052. doi:10.2307/1341199.)

        1. Apparently, local law in Washington, D. C. bans discrimination on several grounds, including personal appearance (“subject to business requirements or standards”) and political affiliation:

          https://ohr.dc.gov/protectedtraits

          1. In Austin, TX, housing discrimination based on “Status as a Student” is prohibited.

            http://www.austintexas.gov/department/housing-discrimination

            1. Michigan prohibits discrimination based on height or weight.

    2. Discrimination isn’t a dirty word; tell me a man who does not discriminate his right from his left. In my eyes, such legislation should only disallow non-evidentiary discrimination. What makes discrimination legislation on the basis of protected classes so murky is concomitant factors. Particularly as we move into the Machine-Learning Age, statistical correlants will nullify much of the need for anti-discrimination legislation, unless such measures are banned too.

      1. Interestingly, you’re the only one who actually proposed a criterion to decide which characteristics should be treated like race for purpose of the civil rights laws.

        In the actual legislative arena, though, these decisions seem to be based on the arbitrary preferences of the legislators.

        1. I didn’t provide much of a criterion on what factors should be protected classes, only necessary conditions on when legislation on such protected classes should be applied. I am not the judge on whether the root cause of the legislation would fit for characteristics other than race just as well, the electorate is. Regardless, such strong legislation should be refrained from use, primarily because (1) In soft exchanges such as job interviews, to apply non-discriminatory legislation would leave the defense with little basis in court to claim the discrimination was evidentiary, (2) Such discrimination legislation gives further rights grounded in law to a subpopulation of the country, and (3) Protecting non-immutable characteristics of a person provides an enticement for others to join the protected group, weakening group identities and providing grounds of fraudulent personas.

    3. If I don’t have enough money to purchase the flowers, isn’t that economic discrimination? I’m being discriminated against for being poor?

  19. “The government had a compelling interest in ‘eradicating barriers to the equal treatment of all citizens in the commercial marketplace’ (even if same-sex couples could easily get the same floral arrangements from other florists).”

    If they CAN “easily get the same floral arrangements from other florists”, that certainly undercuts the “expressive speech” claim.

    1. JP: “If they CAN “easily get the same floral arrangements from other florists”, that certainly undercuts the “expressive speech” claim.”

      Certainly /not/ if what it means (as you no doubt are aware) that the happy couple can readily find another floral arranger who will serve them.

      Sheesh! There are enough /legitimate/ issues to discuss and debate here.

      1. “Certainly /not/ if what it means (as you no doubt are aware) that the happy couple can readily find another floral arranger who will serve them.”

        If you can get something from anyone and anywhere, there’s nothing unique and expressive about it.

        How are you getting to “/not/” on that?

        1. I can get paint smeared on canvas from one person.
          I can get paint smeared on canvas from a different person.

          Is paint smeared on canvas no longer expressive speech?

          1. If you can’t tell the paint-smeared canvas from source A from the paint-smeared canvas from source B, probably not.

            Random chance can cause paint to become smeared on canvas. What’s being expressed?

            1. Excellent question!

              How did Jackson Pollock’s works of “art” become famous, and worth millions?

              1. “Excellent question!”

                You forgot to answer the excellent question, rambling off on a tangent instead. Want to try again?

                “How did Jackson Pollock’s works of ‘art’ become famous, and worth millions?”

                People with millions to spend on art wanted to own one of Jackson Pollock’s works of art, and proceeded to exchange their millions to get one.

                1. And “Whoosh” you miss the point again. But on the off chance that you really are that stupid, let me spell it out for you.

                  Some of Jackson Pollock’s most famous and expensive “works of art” are nothing more than random smears of paint on canvas. Yet, these are granted First Amendment protections.

                  What’s being expressed?
                  The answer is: Same thing the baker’s art expresses; whatever the creator wanted.

        2. “If you can get something from anyone and anywhere, there’s nothing unique and expressive about it.”

          Protesters at a rally will often have identical signs and chant identical slogans. Are you really arguing that they’re not expressive just because the next person is saying the same thing?

          1. “Protesters at a rally will often have identical signs and chant identical slogans.”

            And if you go across the street to the counter-protest, do they ALSO have identical signs and chant identical slogans?
            (You’re also confusing the issue by conflating the people who make the signs with the people who wave them.)

  20. OK, I’ll try this again, coming at it from another angle:

    Is there any characteristic which you would *not* want to be a suspect classification? How would you respond to objections (“I guess you’d be against the 1964 Civil Rights Act, too.”)

    1. Anyone? Bueller?

      1. Ya barely made it half-an-hour before you started complaining? Go down to Wal-Mart and buy some patience. Better yet, go to Costco… you need the giant-size container.

    2. “Is there any characteristic which you would *not* want to be a suspect classification?”

      Sure. How does this matter, again?

      1. I see that you’re applying your favorite legal maxim: “If you have the facts on your side argue the facts, in you have the law on your side argue the law, but if neither the law nor the facts are on your side, make jokes about Costco and Walmart.”

        Incidentally, I’m surprised you didn’t list Whole Foods, since under Amazon, they too are trying to lower their prices. Does it violate your sense of the sacred to have Whole Foods mentioned in the same breath as Costco and Walmart?

        1. I see you’re using the old “if you don’t want to answer a question, pretend there’s a reason not to” tactic.

          Didn’t say anything about Whole Foods because I know zero about them. Can’t say I’ve ever been in one, unlike Walmart or Costco.

          1. Why is the multiplication of new suspect classifications, unguided by any principled standards that I can see other than what’s fashionable and gets votes – why is that a problem?

            Do you really want to force landlords to rent to students?

            1. Ah. You’ve switched from “if you don’t want to answer a question, pretend there’s a reason not to” to “if you don’t want to answer a question, answer a question that wasn’t asked, instead.”

              “Do you really want to force landlords to rent to students?”
              Charge a deposit high enough to cover any damage, and rent to any student who can pay it.

              Someplace, Seattle, I think, tried a law that said landlords had to rent to the first person who showed up who met the published qualifications. That got overruled, although I think it makes sense.

              1. So, yes, you really do want to force landlords to rent to students.

                Although this would presumably be strictly a one-way ratchet: Non-students couldn’t apply to live in a college’s dormitories – those can be reserved exclusively for students. “Heads I win, tails you lose.”

                “Someplace, Seattle, I think, tried a law that said landlords had to rent to the first person who showed up who met the published qualifications. That got overruled, although I think it makes sense.”

                Are you referring to the ordinance which “prevents landlords from running criminal background checks when evaluating tenant applications”?

                Let me guess: You don’t own any rental properties.

                https://www.nbcnews.com/news/nbcblk/seattle-s-fair-housing-law-most-progressive-country-now-landlords-n1004321

                1. “So, yes, you really do want to force landlords to rent to students.”

                  You sure are fascinated with whether or not not I want to force landlords to rent to students, despite the fact that I didn’t say anything about the subject until you brought it up.

                  “Are you referring to the ordinance which “prevents landlords from running criminal background checks when evaluating tenant applications”?”

                  No, or I would have written something about preventing landlords from running criminal background checks. A person of ordinary intelligence would have figured that I was referring to an ordinance that required landlords to rent to the first qualified applicants who showed up. Like the kind Seattle had.

                  You sure like to substitute something else for whatever it was you were asked about.

                  1. “…I didn’t say anything about the subject until you brought it up.”

                    Of course not, which is precisely the point – I wanted to know how far your anti-free-association principles went. You didn’t cite any particular principled reason as to which characteristics should be suspect like race and which characteristics should not be.

                    If you don’t want to avow any particular principle for why – say – sexual orientation should be treated like race but political orientation shouldn’t be – that lack of principle makes your arguments seem…what’s the word…unprincipled.

                    (Do you want to treat political orientation like sexual orientation, by the way, or would you prefer not to tie yourself down by principle?)

                    You *have* committed yourself to banning rental housing discrimination based on student status. Which as I’ve shown is quite stupid.

                    I’m sorry I found the wrong retarded Seattle housing ordinance. There seem too many to keep track of, including this one

                    https://www.kuow.org/stories/seattle-moving-forward-to-ban-rent-bidding

                    …and while it’s possible you located a unicorn – a legitimate housing law in Seattle – I’d like to see the actual citation.

                    1. Do your principles extend to “protecting” smokers against discrimination by private businesses?

                      “Right now, 29 states and the District of Columbia have laws which provide smokers some level of protection. Many prevent employers from employment discrimination based on lawful, off-duty conduct, which would include smoking cigarettes. In these states, while an employer cannot refuse to hire an employee solely because the employee is a smoker, there may be exceptions. For example, some of the statutes only apply to employers with a certain number of employees, or to public employers. Many statutes also have exemptions where smoking would pose a safety risk to the employee or the workplace (e.g., volatile chemicals on the premises), where there is a bona fide occupational requirement or qualification that would justify a ban (e.g., employees who need to be physically fit to do their job), or where there is a rational basis for a ban. To this end, some statutes also specifically exempt certain professions such as firefighters or police officers. In addition, some statutes have exemptions for religious or non-profit organizations if smoking is incompatible with the purpose of objective of the organization (e.g., a non-profit related to lung cancer.) Still other statutes recognize carve-outs if smoking is covered by a collective bargaining agreement.”

                      https://www.hrdefenseblog.com/2018/09/can-employers-refuse-to-hire-smokers/

                      I mean, they have exemptions for religious organizations and everything!

  21. I think that such issues should be left up to the states. The 1964 Civil Rights Act should well be considered unconstitutional, particularly it’s standing based upon the commerce clause should be rejected. Going to a Hotel isn’t inter-state commerce, it is intra-state commerce.

    1. What about restaurants?

      1. Even moreso the case. Some hotel chains frequently have out of state travelers, even though just about all the dealings are done state-side, but for restaurants unless you have a prior reservation, you will have both parties at the restaurant in question, and in particular in the same state.

        1. Some restaurants are right on the state line, and draw customers from more than one state. I imagine the super-nice restaurants with prices that would add 50 points to my blood pressure in Portland, OR, aren’t turning away customers from Vancouver, WA. I imagine things might be similar with NYC restaurants that serve people from Jersey, and, say, St. Louis restaurants will serve people who drove across the river from Illinois.
          Some of these restaurants might even do interstate deliveries, so food that was cooked in one state might be paid for, and consumed, in another.

          My point is, some restaurants are doing interstate business.

    2. “Going to a Hotel isn’t inter-state commerce, it is intra-state commerce.”

      Depends on where you started, now, doesn’t it?
      Last week, I drove cross-country, staying in hotels in TN, KS, NE, and ID. Those are different states, no?

      1. And I’m willing to bet that in every case, you went to bed and woke up in the same state.

        The interstate commerce clause distinguishes between commerce which is and isn’t interstate, it is fundamentally dishonest to define “interstate” to eliminate that distinction.

        1. “Interstate commerce” refers to commerce that involves people in different states, not commercial activity that happens in two states.

          As you cannot possibly be too dumb to know this, I can only assume you are being intentionally disingenuous.

          1. At the time you show up at the hotel, you are in the same state as the hotel. Have you somehow not noticed this?

            It is absurd to declare any commerce engaged in by somebody temporarily in a different state to be interstate commerce. It refers to purchasing something in one state for sale in another. Thus the “commerce” itself it interstate.

            1. “At the time you show up at the hotel, you are in the same state as the hotel. Have you somehow not noticed this?”

              At the time I booked it, I was in a different state.

              “It is absurd to declare any commerce engaged in by somebody temporarily in a different state to be interstate commerce”

              I retract my previous statement that you couldn’t possibly be that dumb. You either are, or wish to appear to be.

  22. A bigot is still a bigot, regardless of how a litigation is resolved, and reasoning adults do not believe that wrapping bigotry in superstition improves that bigotry.

    1. “A bigot is still a bigot, regardless of how a litigation is resolved, and reasoning adults do not believe that wrapping bigotry in superstition improves that bigotry.”

      And you’re free to say “That guy’s a bigot” and have nothing to do with him. The First Amendment doesn’t only protect expression you agree with.

    2. Of course the next question is do we need or want the government to identify and punish bigotry? Or should we leave it to the reasoning adults to do decide?

      1. “Or should we leave it to the reasoning adults to do decide?”

        You’re assuming that “reasoning” and “bigotry” aren’t mutually exclusive.

  23. I think the Supreme Court, by deciding the Masterpiece Cakeshop case the way it did, indeed left the Washington Supreme Court free to leave its previous decision undisturbed. However, by making such a narrow decision that left the major issues untouched, it left itself free to revisit the issue.

    It does seem that the set of “semi-expressive” conduct is relatively small. If everyone agrees that non-expressive conduct can be prohibited and expressive conduct can’t be, then whether cake bakers, flower arrangers, and/or similar ultimately get put in one category or the other may not make a huge difference in the long run.

    1. “If everyone agrees that non-expressive conduct can be prohibited and expressive conduct can’t be”

      I’m certainly not going to agree to that. Picking cotton isn’t particularly expressive, but that doesn’t mean you can force somebody to pick cotton for you.

      To use a random example…

      1. Can we agree to it solely in the context of the first amendment? Since we already know the first amendment doesn’t prohibit someone from forcing another to pick cotton

      2. “Picking cotton isn’t particularly expressive, but that doesn’t mean you can force somebody to pick cotton for you.”

        You seem to have inserted a 180-degree turn.

        If the government can prohibit the picking of cotton, where does anyone get the ability to force someone to pick cotton?

  24. These cases just prove that homosexuals are disgusting perverted tyrants.

    1. Over the last decade there have been what, a half-dozen non-discrimination cases involving gay folk? All of which are necessarily at the state level.

      Every year, there are literally hundreds of non-discrimination cases that don’t involve gay folk at all at the federal level alone.

      So if seeking the enforcement of non-discrimination laws makes us “tyrants”, then we’re like, baby little amateur tyrants compared to the rest of you.

      1. The troll does not respond to logic.

        1. Assuming your meaning is that RestoreWesternHegemony is a troll and I shouldn’t bother responding to them…

          Sure. But at the same time, the stated view (“gay people are tyrants for using non-discrimination laws!”) is a common one, and that argument is worth rebutting, regardless of whether RestoreWesternHegemony themselves cares.

          1. “Assuming your meaning is that RestoreWesternHegemony is a troll and I shouldn’t bother responding to them…”

            I would have expected anyone reading his comments would have figured out the first half. The second half isn’t quite accurate… rather, you should temper your expectations about what kind of response you’re going to see (if any).

      2. “The rest of you?” I’m a white male. We don’t whine and file discrimination lawsuits. Don’t lump me in with blacks, Hispanics and Muslims (who whine a lot about these issues, but nowhere near as much as homosexuals).

        1. Get some therapy to deal with your feelings of inadequacy.

  25. Freedom of association ought to be the rule except where there’s a serious problem, as there was in the era of the Democrats’ Jim Crow laws.

    In these cases, there’s no risk of deprivation of services or goods, either essential or frivolous. On the contrary, there is a widespread societal and corporate eagerness to not only provide such services, but to do so lavishly and with great praise and constant fanfare for PR benefit. So it’s the complete upside-down opposite situation.

    So if the harm isn’t a tangible deprivation of services, what is it? It’s emotional and dignitary harm. The hurt feelings of someone being irrationally prejudicial, or merely disagreeing with your opinion.

    But we shouldn’t have laws against hurting someone’s feelings, in my opinion. Furthermore, while arranging flowers might not seem very expressive, the context indicates that the expressive element of doing business or declining to do business with someone is the very thing being punished here. We’re punishing thought crimes and speech crimes on the basis that it hurts others’ feelings . . . or, worse, on the basis that they’re “wrong” irrespective of hurt feelings and must be criminalized to encourage goodthink.

    1. “Freedom of association ought to be the rule except where there’s a serious problem, as there was in the era of the Democrats’ Jim Crow laws.”

      A problem for who? Me? You? or anyone?
      A statement from that fight is still true… “injustice anywhere is a threat to justice everywhere.”

  26. Case presentation is inherently deceptive. This isn’t about making any one make anything, it’s about getting a business to not make fraudulent public offers.

    Masterpiece Cakeshop Jack didn’t make all the wedding cakes, someone else can. Arlene’s Flower’s had an employee, Eryn, who would have gladly handled the order and quit without notice when told to treat customers illegally.

    Stutzman is listed in the lawsuit only as the owner who’s responsibility is to insure the business runs legally in this case respect the customer’s they chose to invited civil rights.

    If the owner can only sell something to customers that share here southern Baptist beliefs about marriage obvioyslyba public offer is the wrong way to go. Every customer has a constitutional right to their own beliefs about marriage and a civil right to buy what’s offered regardless.

    When the federal court told the owner of Piggie spark Enterprises that they must go against their sincerely held beliefs they were effectively given a choice of their belief or running the sit down restaurant aspect of their business. Similarly in US v Lee the Amish business owner was given a choice of their belief or having paid employees.

    In this case it a choice of their belief or offering custom wedding florals. The owner hasn’t offered wedding florals since the incident a solution consistent with the choices the court has made in the past and one that respects the religious freedom of the business owner and the customer.

    There can’t be a right to invite the public – a group of all beliefs – and then after the fact spring on the responding customer that they don’t have the ‘right’ beliefs that will allow them to buy what they were invited to buy.

    If Stutzman can only sell to people that share her southern baptist beliefs about marriage at a bare minimum every member of the public should know that before they even consider any invitation the business makes.

    1. “There can’t be a right to invite the public – a group of all beliefs – and then after the fact spring on the responding customer that they don’t have the ‘right’ beliefs that will allow them to buy what they were invited to buy.”

      Checking out the opinion, I find no exception for businesses which advertise to only segments of the public, or which specifically state that the services they offer are limited (eg, only kosher food, only opposite-sex weddings).

      In short, the opinion, and the statute it upholds, are broader than your proposed principle.

      1. But I could always be wrong, so here’s what they say:

        “”Any place of public resort, accommodation, assemblage, or amusement” includes, but is not limited to, any place, licensed or unlicensed, kept for gain, hire, or reward, or where charges are made for admission, service, occupancy, or use of any property or facilities, whether conducted for the entertainment, housing, or lodging of transient guests, or for the benefit, use, or accommodation of those seeking health, recreation, or rest, or for the burial or other disposition of human remains, or for the sale of goods, merchandise, services, or personal property, or for the rendering of personal services, or for public conveyance or transportation on land, water, or in the air, including the stations and terminals thereof and the garaging of vehicles, or where food or beverages of any kind are sold for consumption on the premises, or where public amusement, entertainment, sports, or recreation of any kind is offered with or without charge, or where medical service or care is made available, or where the public gathers, congregates, or assembles for amusement, recreation, or public purposes, or public halls, public elevators, and public washrooms of buildings and structures occupied by two or more tenants, or by the owner and one or more tenants, or any public library or educational institution, or schools of special instruction, or nursery schools, or day care centers or children’s camps: PROVIDED, That nothing contained in this definition shall be construed to include or apply to any institute, bona fide club, or place of accommodation, which is by its nature distinctly private, including fraternal organizations, though where public use is permitted that use shall be covered by this chapter; nor shall anything contained in this definition apply to any educational facility, columbarium, crematory, mausoleum, or cemetery operated or maintained by a bona fide religious or sectarian institution.”

        https://app.leg.wa.gov/RCW/default.aspx?cite=49.60.040

        1. I suppose they might found the Fraternal Florist Association, have a membership fee and a membership committee, a secret password and initiation ritual, and it would all be legal?

          1. In Washington state it would be if set up as a non-profit and would fit the bill fir the feds as a private club. If there is one private membership style group we know IS federally approved its one that associates by religion (BSA, Hurley).

      2. But anyone can buy the kosher-branded food but anyone can buy them and use them in non-kosher ways. If this is about branding I have no problem with them branding their wedding services as ‘opposite sex’ as long as a customer can buy them and use them according to their own beliefs.

    2. This isn’t about making any one make anything, it’s about getting a business to not make fraudulent public offers.

      Stop lying.

  27. So, as a non-lawyer who nonetheless would like laws to make sense, I have a few questions for the learned esquires roaming these pages.

    1) Has there ever been a ruling or series of rulings that differentiated public accommodations and other equality laws on the basis of the attributes of those being discriminated against?

    I’m interested in the precedent because it does seem like (whatever the de jure situation is) de facto race issues are treated differently than sex issues which are treated differently than religion issues.

    So is the reason you hardly ever see a (cis)woman suing to get in the mens’ room, or a Muslim suing a Synagogue to force it to hold a Yemeni wedding, because there is precedent saying “that’s silly, go away”? Or is it just that no one’s tried hard enough?

    1. 2) Specifically in the Gay Marriage domain, has any business tried to justify a refusal on the basis of religious non-participation? Not so much bakers… but photographers and to a lesser extent florists have to be at the ceremony and more-or-less serve.

      1. The obligations is the bakery’s not any particular baker. The public accommodation laws regulate how the accommodation must conduct business, not its own inner workings.

        An employee can ask for religious accommodation and probably get it (Star Trucking) but that doesn’t free the business from fulfilling its obligations.

        Other bakers at Masterpiece did wedding cakes, Arlene’s Flowers had an employee that would happily handled the order, Elaine Photography said they had hired 3rd party photographers in the past.

        An individual is not the business in any of these cases.

        1. Hmmm… even for sole proprietorships? How does this square with the Hobby Lobby and Chik-fil-A decisions about “closely held private companies”?

    2. So is the reason you hardly ever see a (cis)woman suing to get in the mens’ room […]

      Until recently, there weren’t actually laws saying what restroom someone had to use. So if a woman needed to use the men’s room (if, for example, the women’s room was closed for cleaning) she would just walk in. This has worked fine since we started slapping signs on public restrooms.

      As far as anyone suing a religious venue for access, I can think of a few cases, but importantly, none of them involve suing for access to an actual church, synagogue, or other venue normally used exclusively for worship services.

      There was a case in New Jersey where a church had an outdoor pavilion that it rented out to folks that weren’t part of it’s congregation. It did this specifically because renting it out in this way was a condition for a tax-break they sought in order to renovate it. When it denied a pair of lesbians the use of the outdoor pavilion for their commitment ceremony it was sued.

      Beyond that, most venues that are sued aren’t churches themselves, they just decide, having a history of renting to all sorts of folks. They only discover their religiosity when they run into gay folk.

      And of course, there’s a recent case (Washington I think) where a venue refused an inter-faith couple after cashing their deposit (and filling out a form indicating the interfaith wedding).

      But there are no cases about actual churches or the like, because those are not public accommodations.

  28. Beautiful bouquets of dead weeds?

  29. […] ruling against Arlene’s Flowers and Barronelle Stutzman in same-sex marriage refusal case [Volokh Conspiracy, earlier on case here and […]

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