Reason.com

Free Minds & Free Markets

SCOTUS May Yet Approve Gay Wedding Cake Demands

Despite its ruling in favor of a Colorado baker, the Court remains hostile to religious exemptions from anti-discrimination laws.

Kamala Harris, a Democratic senator from California, says Jack Phillips should have been forced to bake gay wedding cakes because "our constitution requires equal protection under the law." Ted Cruz, a Republican senator from Texas, says this week's Supreme Court ruling in Phillips' favor is "a major victory for religious liberty," upholding the Colorado baker's "constitutional right to live according to his faith."

Although Harris and Cruz are both lawyers, they are both wrong. Harris conflates discrimination by individuals with discrimination by the government, while Cruz overlooks the Supreme Court's approval of laws based on that false equivalence.

Contrary to what Harris seems to think, the "equal protection of the laws" guaranteed by the 14th Amendment is a constraint on state and local governments, not private citizens. It does not require Phillips, who owns Masterpiece Cakeshop in Lakewood, a Denver suburb, to bake cakes for wedding ceremonies that offend his religious beliefs.

Contrary to what Cruz seems to think, the Supreme Court did not say such a requirement would be unconstitutional. Its decision hinged on the anti-religious prejudice reflected in comments by members of the Colorado Civil Rights Commission and in that agency's inconsistent handling of complaints against bakers under the Colorado Anti-Discrimination Act (CADA).

"The Commission's treat­ment of Phillips' case violated the State's duty under the First Amendment not to base laws or regulations on hos­tility to a religion or religious viewpoint," Justice Anthony Kennedy writes in the majority opinion, which was joined by six other justices. "Whatever the outcome of some future controversy involv­ing facts similar to these, the Commission's actions here violated the Free Exercise Clause."

But for the evidence of hostility to Phillips' faith, there can be little doubt that the Court would have rejected his religious freedom claim. Since 1990 the Court has taken the position that the First Amendment does not require religious exemptions from "neutral laws of general applicability," a category that includes CADA, which prohibits businesses from discriminating against customers based on their sexual orientation.

"The Court's precedents make clear that the baker, in his capac­ity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws," Kennedy writes. "It is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law."

Kennedy says such laws aim to "pro­tect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods and services." He thus endorses the idea that one person, by virtue of his membership in a protected group, has a right to conscript another, forcing him to do work against his will.

The Court did not address Phillips' claim that compelling him to bake gay wedding cakes would violate his freedom of speech by making him endorse a message he rejects. "The free speech aspect of this case is difficult," Kennedy writes, "for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech."

Unless the Court ultimately endorses that proposition, bakers with religious objections to gay weddings will have no constitutional defense against demands that they nevertheless supply cakes for them, as long as the officials enforcing that expectation keep their prejudices under wraps. As a commissioner who heard Phillips' case put it, "If a businessman wants to do business in the state and he's got an issue with the law's impacting his personal belief system, he needs to look at being able to compromise."

Kennedy says that comment "might be seen as inappro­priate and dismissive," showing a "lack of due consideration for Phillips' free exercise rights and the dilemma he faced." If so, the dismissiveness is part of the Court's jurisprudence.

© Copyright 2018 by Creators Syndicate Inc.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Yellow Tony||

    I wonder how much money I could make by opening up a cake shop that exclusively served the gays.
    Penis cakes
    Vulva cakes
    Testicle ball cakes
    Clithoris mini cakes
    Ovary cakes
    Smegma cakes
    Scrotum sheet cakes
    All the above can be mixed and matched. You may also order some of our fine young (or old) employees to do naughty things with our baked goods.

  • Iheartskeet||

    I think you are on to something.

    Issue: Is paying people to jerk off on cakes sex work ? Would said "frosting" pose a health issue and draw the attention of various regulators ?

    I think the answer is yes to both, illustrating how our regulatory state hurts the disenfranchised.

  • The Laissez-Ferret||

    I assume the Smegma cake would be made with cream cheese icing.

  • John's broseph||

    I have debated this to death with friends, even some who I thought were libertarian. Unfortunately for the future nearly everyone I've talked to who isn't a practicing Christian is fine with forcing the bigots to make the cake.

    It's exhausting to argue with them, why can't people leave others the fuck alone? You won, you got your gay marriage, which was weirdly important for many heterosexuals. Who gives a shit that someone somewhere might have a different values system than you.

    End rant

  • lap83||

    Maybe I'm too nice, but I assume it's because people don't realize that encouraging tolerance and forced labor shouldn't be the same thing. But maybe they realize it is force and are fine with it. If so, this country is just screwed

  • Ajax999||

    America is screwed! Cultural Marxists do not believe in freedom. Making people conform to their demands is the very core of their beliefs. Like a cowboy breaking a horse, liberals believe that they have to break the citizenry in order to prove that they can control them. Liberals do not dislike guns - they just dislike YOU having guns. They are perfectly happy with their jackboots being armed to the teeth.

    It is time to use the lefts tactics against them. Trying to be fair to cultural Marxists is a waste of time. Granting them freedoms that they actively try to take away from conservatives is absurd. Liberals think that they want a war with conservatives. Sillier yet, they think that they can win. Liberals will continue to make progress only if conservatives fail or organize and actively resist them.

    America - It was fun while it lasted.

  • Smtwngrl||

    Yes! @lap83 You have nailed it. In fact, I don't believe this issue is really about discrimination. In many of these cases, the defendant had a previous relationship with the plaintiff. They had provided them with birthday cakes or other baked goods. So, it wasn't about discrimination against a person, but an event, and about not wanting to be forced to be a participant in the process. At least one of the bakers (i don't remember who) said they had received support from gay bakers, who also didn't want to be forced to provide baked goods for things they didn't agree with.

  • Iheartskeet||

    Same. Back in the day, I was all pro-gay-marriage/live-and-let-live, but gays have managed to make the worst nightmares of gay marriage opponents a reality. Now I look up at Canada with their mandatory gender pronoun bullshit and wonder if it could happen here (answer, yes, on college campuses anyway).

    I have to admit my give-a-shit level for anything gay people bitch about has dropped to zero.

  • loveconstitution1789||

    Give an inch certain people take a mile.

    I knew it would get out of control when gay folks did not want to be just like everyone else. They were never fighting to be like everyone else.

  • Ajax999||

    Homosexuals do not want us to just tolerate them. Instead they demand that we proclaim that they are normal and that homosexual marriage is equivalent to the marriage between a man and a woman. They want society to label anyone that does not support the homosexual agenda as bigots and 'haters.' I don't think that the homosexual movement understands how their militancy has turned a lot of people against them.

  • commentguy||

    Are you saying that heterosexuals don't buy wedding cakes? If you aren't, then how is a gay couple trying to buy a wedding cake any different from "everyone else"?

  • wreckinball||

    Agree great post

  • Brett Bellmore||

    I wasn't pro-gay-marriage, because it mattered to me whether it was achieved by legitimate democratic change, or judicial fiat, but mainly because I saw this sort of thing coming.

    Just getting to do what they want is never enough for the left, no victory is complete until they can force the people who didn't like it to submit and be complicit. That's why abortion can't just be a normal medical procedure, it has to be subsidized: To force pro-lifers to pay for it.

    Winning is never, ever enough for them. They have to crush the people stupid enough to think they're entitled to their own opinions and values.

  • Cynical Asshole||

    You won, you got your gay marriage, which was weirdly important for many heterosexuals. Who gives a shit that someone somewhere might have a different values system than you.

    Gay marriage means nothing if you can't force others to serve you and to adhere to your value system. After all, those other value systems? They're the wrong values. /progs

  • EscherEnigma||

    Unfortunately for the future nearly everyone I've talked to who isn't a practicing Christian is fine with forcing the bigots to make the cake.


    Most practicing Christians are perfectly fine with "forcing the bigots to make the cake", so long as the "bigots" in question aren't "homophobic bigots", but a different variety (anti-Christian, racist, etc. and so-on).

    Which is, of course, the problem. If folks against non-discrimination laws that protect gay people were against all non-discrimination laws, their case would be much stronger. But most try to draw a line between the non-discrimination laws they like, and the ones they don't, and it's never persuasive.

  • Nardz||

    Citation missing

  • commentguy||

    See: prayer in schools, anti-sodomy laws, inserting "under God" into the Pledge of Allegiance, that dumbfuck Congressman who thought that if members of Congress weren't sworn in on the Bible then they weren't validly sworn in...

  • JFree||

    Unfortunately for the future nearly everyone I've talked to who isn't a practicing Christian is fine with forcing the bigots to make the cake.

    In part that is honestly because those who ARE practicing Xians are notoriously dishonest about what constitutes actual expression of that faith.

    Is the actual 'baking of the cake' (or writing the icing) the expression of faith? Because if so, then it is the employee who is doing that work - not the corporation. Who MAY be the same entity but still it is their LABOR not their OWNERSHIP where the issue lies.

    If it is their ownership or their property that is the expression of faith; then is there a difference between a sole proprietorship or a state-created corporation with the benefits of limited liability and unlimited lifespan and such? And if property itself is the expression of faith, then exactly what property is religious? Your dog? Your house? Your business? Your car?

  • Robert||

    I think it's because people think biz should be exclusively about making $.

  • Elias Fakaname||

    Progressives will never leave anyone alone. They should be destroyed, as there are too many of them too ignore.

    Now this is the part of the discussion where everyone usually condemns me for being a big meanie. Instead, maybe some of you can explain an alternative course of action. And don't tell me elections are working. They're not. I don't see them going away without a bloody fight, and they have already proved vicious and violent in groups.

    So what is to be done about millions of slaver just like Tony intent on taking your property and liberty?

  • Teddy Pump||

    "Equality, rightly understood, as our founding fathers understood it, leads to liberty and to the emancipation of creative differences. Wrongly understood, as it has been so tragically in our time, it leads first to conformity and then to despotism."
    -Barry Goldwater, 1965

  • Michael Hihn||

    ... the "equal protection of the laws" guaranteed by the 14th Amendment is a constraint on state and local governments, not private citizens

    Look closer. Only a preferred class of people is exempted from the public accommodation laws -- which is NOT equal treatment of anyone who refuses for non-religious reasons. Plus Separation.

    No, that's not defending public accommodation laws. This is like crony capitalism, but in social issues, not economic. Special privileges are not individual liberty, when only some individuals are favored over others.

  • Elias Fakaname||

    "Special privileges are not individual liberty, when only some individuals are favored over others"

    Something we agree on.

  • Brian||

    It's totally consistent, to force Christian bakers to make gay wedding cakes, just as long as you also force gay bakers to make "God hates fags" cakes for Christians, just for the sake of public accommodations for all people, regardless of religion.

    Are you fine with that? Ok. Good to know.

  • Cantard||

    Depends on how you couch the denial.

    "I won't make a cake for you because you are gay" Is an openly discriminatory statement against a protected class.

    "I won't make a cake for you because what you want on the cake is personally repellent to me" is not a rejection of a protected class. Private enterprises are still free to discriminate in the kinds of speech they perform. It takes a leap to say that a cake devoid of message is actually speech.

  • Brian||

    Does a painting without words on it have a message, or count as speech?

    Lots of art has a message without words.

  • Cantard||

    That really depends. In your example you are wanting to make an overtly offensive cake that a gay baker wouldn't agree to make and potentially foul him on CRA issues.

    A white cake with a red cross is overtly Christian and refusing to make it would be potentially discriminating against a protected class (the christian customer), but has no message in and of itself for the baker to object to.

    A cake depicting Dante's seventh circle of hell (reserved for sodomites) is overtly Christian (as far as Dante goes) but rapidly transitions to speech because there is a clear message in the image. So the baker might have grounds to beg off the project.

  • JesseAz||

    You realize your two examples are the exact same statement just said differently right?

    In the second the person is repellent of standard christian dogma. It's the exact same as the first statement. You are stating that one morality system has less rights than another morality system.

    In this instance, you are the bigot.

  • Elias Fakaname||

    So? Everyone is prejudiced about all kinds of things. The idea that anyone is entitled to engage third party services at their unilateral whim is ridiculous. But we have progressives, so now this is commonplace.

  • Iheartskeet||

    That would be some awesome trolling.

    Crowder had a video where he goes to some Muslim bakeries and asks for a gay wedding cakes...they all turned him down. I wonder how the intersectional left will square that circle ? Oh, I already know: only Christians should be forced to bake the cakes.

    Also interesting is just what speech you can be compelled to say. The Masterpiece guy also did not make Halloween cakes or anything with profanity. Would he now be compelled to make those as well as cakes for Satanists too ?

  • Brian||

    "The power of Satan compels you to make my fucking Blood Sacrifice Cake!"

  • IceTrey||

    So it's a Christian cake.

  • Elias Fakaname||

    Speaking of bigotry.........

  • Cynical Asshole||

    It's totally consistent, to force Christian bakers to make gay wedding cakes, just as long as you also force gay bakers to make "God hates fags" cakes for Christians

    I thought there was another case where someone did ask for something like that (I think they wanted the cake to say something like "marriage is between a man and a woman" instead of the more inflammatory "God hates fags), and sued the bakery when they refused. IIRC one of the lower courts (didn't make it all the way to SCOTUS) ruled that the writing on the cake made it a case of compelled speech so the baker was well within their rights to refuse.

    Which was probably the right call in that case. The two examples aren't exactly the same, unless you consider the act of merely baking a cake is considered an expressive act. I know that was one of Masterpiece Bakeshop's arguments - that creating a custom wedding cake is an expressive act, regardless of whether there's writing on it or not. SCOTUS pretty much ignored that bigger and more important question, so it's still open to interpretation where the line is drawn.

  • Wrath0fKahn||

    That actually occurred in Colorado and was part of the considerations for this case. Colorado's treatment of the anti-gay cake case was so different than this one that it helped demonstrate the anti-religious bias of the committee.

    The simple solution is that you let the market and consenting adults figure out what their criteria are regarding who they do business with, but that lacks the slight buzz politicians get from policing their subjects.

  • wreckinball||

    He's not fine with it. He wants the law to only be enforced one way
    Which is what CO is doing
    It's also how the CRA is enforced.

    Theoretically it protects against all racial discrimination but in practice it just works one way

  • tbc||

    I hate the practice of citing precedent as a means of violating people's rights. Because the court screwed up earlier, we have to keep on screwing the populace lest they get any ideas about liberty and freedom

  • Juice||

    Yup.

  • I am the 0.000000013%||

    There should be a sunset clause on everything government does.

  • DajjaI||

    as long as the officials enforcing that expectation keep their prejudices under wraps

    Yes but don't underestimate the value of civil discourse. If the commission can't compare the baker to nazis and slaveholders, the outcome might very well have been different.

  • Rich||

    Serious question: What is the, um, legal definition of a "gay wedding cake"?

  • This Machine Chips Fascists||

    see "can of worms"

  • Cynical Asshole||

    A wedding cake that prefers to have sex only with other wedding cakes, I assume.

  • I am the 0.000000013%||

    Wow, that is an unbelievably typist statement. Your insertion of your belief that things of a type should only have sex with things of the same type is just neolithic.

    Let me try to bring you into congruence with modern thought by fixing your sentence:

    "A wedding cake that prefers to have sex only with similarly gendered things".

    I'm so proud of myself now I feel like going out and punching a nazi.

  • Brian||

    I'm not sure if it's a legal definition, but "a cake used to celebrate a gay wedding" is probably what everyone means.

  • lap83||

    It seems like society is changing the definition of discrimination. AFAIK no bakers have declined to serve gay customers in any circumstance. They simply don't want to participate in their wedding because it goes against their religion. The definition of bigot now appears to be "exercising freedom of religion" I guess speech can't be far behind

  • lap83||

    Of course I think public accommodation shouldn't require a religious exemption, but this even goes beyond what the civil rights movement was about

  • Cynical Asshole||

    The definition of bigot now appears to be "exercising freedom of religion" I guess speech can't be far behind

    Oh it isn't. See: "hate speech" laws.

  • Max S.||

    The hidden issue here is the whole notion of "protected classes" having an unfettered right to compel people to do their bidding. This is an application of something in Animal Farm - "Some animals are more equal than others." Since when is this an exercise in equal protection?

  • Fist of Etiquette||

    ...[religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.

    The key to liberty is to become a protected person.

  • Cantard||

    You are a protected person. Christian, White, Male, and Americans are all members of a protected class under the CRA.

    The difference is, Christian White Male Americans don't have a history of being disenfranchised and rejected from the public market place.

  • wreckinball||

    No we are not protected
    Evidence CO not enforcing a complaint by a Christian customer refused service by a gay baker

    We just need the laws applied equally see 14A

    Ironically the basis for the SCOTUS gay marriage decision

    Protected classes are unequal as you keep reinforcing

  • Cantard||

    Yeah. Bullshit.

  • wreckinball||

    Wow such a well thought out response
    Can't debate LOL

  • Brian||

    Yes they do

  • JesseAz||

    See former CEO of Mozilla...

  • Elias Fakaname||

    If the progressives are dealt with, all this bullshit goes away.

    Think about that.

  • Juice||

    "serving the public"

    I'm not serving the public. I only serve customers of my choosing.

  • loveconstitution1789||

    Come on! We cannot rollback more lefty legacies by rejecting the Civil Rights Act of 1964.

    We all know that laws that Congress makes up trump Constitutional protections like the 1st Amendment.

  • laurapetrie||

    The CRA of 1964 defined "public accommodation" much, much more narrowly than state anti-discrimination laws do today. A whole lot of this nonsense could be avoided by scaling back the definition to exclude small service providers with only a few employees. Is it reasonable to say that a wedding photographer who works alone or with an assistant on contract with selected clientele is offering a public accommodation?

  • loveconstitution1789||

    These unconstitutional laws are used as incremental tools to undermine the Constitution.

    The Constitution specifically prohibits laws that limit the right of assembly and Liberty would not be possible without people being able to interact with people they chose to.

  • tbc||

    And it all hangs on a ridiculous interpretation of the interstate commerce clause -- because, you know, the flour that goes into the cake crossed state lines, therefore it is interstate commerce...

  • loveconstitution1789||

    But for the evidence of hostility to Phillips' faith, there can be little doubt that the Court would have rejected his religious freedom claim. Since 1990 the Court has taken the position that the First Amendment does not require religious exemptions from "neutral laws of general applicability," a category that includes CADA, which prohibits businesses from discriminating against customers based on their sexual orientation.

    New sheriff in town?

  • Old Mexican - Mostly Harmless||

    Libertarian comedian Dave Smith said yesterday on SE Cupp Unfiltered that what makes the case bizarre is that a gay couple was suing a known bigot to give ****him**** money for a product he sells. The two other panelists engaged in the usual and irrelevant whataboutif exercise without regard for the irrationality of the whole thing. Smith's point is that the gay couple simply wanted revenge and not justice.

  • Elias Fakaname||

    "Smith's point is that the gay couple simply wanted revenge and not justice."

    This is the cornerstone of progressivism.

  • Cantard||

    If you would prefer not to serve black people at your public business, opening and benignly communicate that opinion to your potential black customers, should those black customers have a redress against you?

    Welcome to the 1960's South where institutionalized racism shut out members of the black community who had to fight to have laws baring them from participating in the market on the same terms as their white counter parts.

    So what if the basis of your preference comes from religious grounds instead of personal prejudice? So what? What is the difference between religious prejudice vs personal prejudice and why should we care? Should we allow a shop keeper to get a pass on nicely telling blacks to sail on because he doesn't serve their sort because the Lord wills it and punish the shop keeper who nicely tells blacks to sail on because he just doesn't serve their sort?

    Under the CRA Congress decided that if you want to participate in the public market place you had to make certain concessions. Those being that you cannot discriminate against a persons religion, their sex, their race, or their nation of origin in providing your services. If you follow a religion that requires you to discriminate based on one of these factors and you elect to do so, you have then elected not to make the same concessions that everyone else does to participate in the public market.

    If you can't play by the same rules as everyone else, then you shouldn't be in the market.

  • loveconstitution1789||

    You missed that Jim Crowe laws were government force that created those laws and enforced them.

    It was government.

  • Cantard||

    It was government fully endorsed by the white citizenry the ending of which was violently opposed.

  • loveconstitution1789||

    You mean after government tried to force Americans to do things they didn't want to do?

    Heavens to Betsy! Americans violently opposing government force. That has never happened in the history of the United States of America.

  • brec||

    And bigotry created the laws. The laws were not the only cause for discrimination against blacks. Substitute "black wedding(s)" for "gay wedding(s)" in the Masterpiece case; would that put a different spin on it?

    I don't have a complete answer, but "it was government" is not a complete answer to the issue of irrational discrimination by public-facing businesses.

  • EscherEnigma||

    Jim Crow laws didn't require "Ax Handle Sunday" and other acts of bloody violence in support of segregation.

  • loveconstitution1789||

    How many people took place in "Axe Handle Sunday"? All white people?

    Government created segregation laws, enforced segregation laws, and refused to protect the civil rights of Americans being attacked.

    Government is the problem.

    If a bunch of lefty socialists white supremacists attacks black people and the government does not go after those attackers criminally, then government is the problem.

  • TxJack 112||

    First, he did not say he would not serve them. He said, he would not make a wedding cake that had decorations for a same sex marriage. He offered to sell them an undecorated cake which they could have decorated themselves (ie, put the figures on themselves or had it done by another). So in that instance your premise is flawed. So if I am a white supremacist, I should be allowed to walk into a Jewish business and demand they make items with swastikas? That is exactly what your racism argument implies. More important, the decision was based more on the actions of the CCRC than the baker. Justice Kennedy wrote very clearly in his opinion that members of the commission demonstrated a clear bias against the baker by statements they made which were part of the record. They clearly were attempting to use the commission not to address the issue presented, but to punish the baker for having what they deemed as inappropriate views. In short, they attempted to establish a "government religion" by rejecting the free exercise of religion by the baker. That is why it was a violation of the 1st amendment.

  • Cantard||

    I didn't couch my statement as the bakers case. So my hypothetical is just fine. You hypothetical, however, has issues.

    1) White Supremacy is not a protected class. The Jewish baker can freely to tell you to hit the road.

    Everything else you wrote is an argument for a comment I didn't make.

  • Iheartskeet||

    First, Jim Crow laws were...laws. Its an open question how many private businesses would have served blacks equally in the absence of the laws...I speculate quite a few, and the trend would have been more and more that way.

    CRA overreached in outlawing private discrimination. I find your statements above toxic...I shouldn't need your goddamn permission to "be in the market". Who the fuck are you ?

    More the issue is: what exactly do you think you are accomplishing by FORCING people not to discriminate in their private lives ? If they don't come to higher ground through an embrace of their better nature, what have you done ? This kind of thing almost always backfires and subverts the social goals it seeks to achieve. It breeds resentment and as we see now, identity politics run amok.

  • Iheartskeet||

    Oops, this was intended as a response to Cantard.

  • Cantard||

    1) Lol. That's an overly optimistic view considering the naked hatred against civil rights activists who tried to change the law.

    2) I'm just the guy telling you how it is. That's who the fuck I am. Btw, you are free to privately discriminate all you like. Just not if you run a public business.

    3) You force people to treat others as equals because you have a severe lack of faith in their ability to do it on their own. Just like you force people to pay their taxes or force people to respect laws. As for the outcomes of the CRA: Blacks have made considerable progress in southern states toward social and economic equality. They can vote in elections and have elected their own representatives. The CRA is a success.

  • Iheartskeet||

    1) Nope. Certainly many national business that had operations in the south (Greyhound I think) chaffed under Jim Crow. I'd say your comment betrays an ignorance of southerners. They are not a monolithic bunch of rednecks. As a great man once said: A southern man don't need you around anyhow.

    2) If you get wood by telling people how to live their lives, it may be time for some self examination. Whats a "public business" ? Its ANY business. Meaning you are reaching into people's personal lives, full stop.

    3) Unfortunately we don't get to run controlled double-blinded trials on laws like this. Fact is, blacks were improving economically well before Jim Crow. We may have achieved quite a bit with a CRA limited to government sponsored discrimination. Plus you miss my point: over the long haul, this will backfire. Many whites already have a certain resentment to blacks over racial quotas and the like, even as they outwardly profess that they aren't racist (and probably aren't). This stuff sours the good apples and adds fuel to racial resentment. Despite their progress, will ever see black people as a group want to see these quotas etc abolished ? Nope. More fuel to the racial fire.

  • Cantard||

    1) My opinion is based on burning buses and murdered bodies in earthen dams. Not to mention murders beings set free by all white southern juries. And the lynch mobs hanging people in the streets. And the bombing of black churches.

    2) Hey, I'm sure you get you rocks off trying to convince people the south wasn't really all that bad. I had a guy make the same arguments to me once before. He, however, started also talking about how blacks owned slaves too and how slavery wasn't like how it's depicted. I kinda worked out where he was coming from.

  • wreckinball||

    So what's your point? Slavery is illegal. Jim Crow laws are gone.

    The CRA doesn't protect against a corrupt justice system

  • Cantard||

    "It prohibit racial discrimination but really it prevents blacks from discrimination
    It's OK to discriminate against whites"

    This is your base point. You don't support it with anything. So bullshit.

  • wreckinball||

    Obama DOJ was instructed not to pursue CRA claims of black on white discrimination
    You really can't debate?
    It's humorous
    You angry bro?

  • wreckinball||

    Affirmative Action
    Federal preferences for minority contractors
    I mean seriously dude?

  • loveconstitution1789||

    You know who rant the South under segregation, Jim Crowe, and lynchings?

    Democrats.

  • loveconstitution1789||

    *ran the South...

  • Iheartskeet||

    1) Those things indeed happened and are disgraceful. It was also all against the law to begin with...so what happened ? People changed, quite independent of the CRA. It doesn't prove your point in the slightest nor tell us what would have happened with private discrimination.

    2) I never claimed it "wasn't really all that bad" and to infer that from my posts is dishonest. I am saying you are painting all southerners with a brush...and then provide an anecdote, which proves nothing. I've lived up north too, in the oh so enlightened state on CT...and by god there are plenty of rural rednecks and racists up there too. Or maybe they just got that way after getting shafted by racial quotas.

    The simple fact is your are trading in stereotypes, and again miss my main point on how this backfires.

  • Elias Fakaname||

    Cantard, Make no mistake, you are an oppressor, just like those people who oppressed blacks fifty years ago. You just champion a different brand of oppression. It doesn't make you or it any better. I'm sure you think you are, it you're really not.

    So now that we have established you are just another oppressive slaver bigot, you can piss off.

  • Brian||

    OK let's try another hypothetical: let's assume a bunch of white racists that don't want to work for a black-owned company out there. Can those black-owned companies sue on the basis of discrimination? Can they claimed damages for loss of productivity?

    At the point where we're compelling people with beliefs we don't agree with to work for other people that they don't want to, some would say we might have crossed a line with all this social justice were trying to get here.

    Not to mention the first amendment issues that come into play with making art.

    In short: this isnt a lunch counter that was banning gay people from sitting down, or running them out of town on a rail. It's a guy didn't want to bake a damn cake.

  • wreckinball||

    Ok not hypothetical

    Blacks can sue and claim discrimination for any outcome they dislike involving white people

    Whites cannot sue or claim discrimination about anything because of slavery privilege Jim Crow or some combination

  • Brian||

    I wish they could just be honest: it's SJWs looking for a scapegoat for their own victimhood.

    They pass public accommodation laws, and then go looking for hobgoblins and trolls to clobber, just for the feels.

    And the best they could come up with is an overtly Christian baker who doesn't like making cakes for gay weddings.

    When we find something that actually has impact on anyone's quality of life, let know. Until then, enjoy whatever victimhood you can scrape out of that.

  • JesseAz||

    Your ignorance of history is stunning. Jim Crow lows didn't allow whites to discriminate, it forced them to. Since business owners didn't care about race of their customers in general, laws were passed to mandate them to care. You literally had government enforced racism; the market didn't give a care int he world.

  • TxJack 112||

    The problem with this entire decision is both sides are making it much more than it actually is. First, it was not about just the wedding cake because the baker has refused to make cakes for other events that are contrary to his religious beliefs, such as Halloween cakes. Yes, there are fundamentalist Christians who view Halloween as Satanic and object to celebrating it. Second, forcing someone to do something when there are other options available is not equal protection under the law. The problem with what Harris says is you cannot limit it to issues you support. How would she feel if the court told a African American baker or sign maker they must make a sign that says "A N*** must die"? Under her premise, the business owner would have no choice because it would be "equal protection under the law". However, in reality, the racist would have the same option the same sex couple had in this case, go to another business. The problem is they chose to not do this and attempted to use the government to impose their values on someone who opposed them. Harris is the epitome of progressivism since she always wants to use the power of government to punish those who disagree with her. The harsh truth is freedom, real freedom, is hard because it means you must accept things you may not like. That reality is the basic problem for all progressives.

  • Cynical Asshole||

    The harsh truth is freedom, real freedom, is hard because it means you must accept things you may not like.

    Just to add to that thought: it also means you must take people as they are, warts and all. The problem with progressives is that they seem to believe that it's OK to use government force to make people "better," by their own definition of "better," of course.

  • Cantard||

    "How would she feel if the court told a African American baker or sign maker they must make a sign that says "A N*** must die"? Under her premise, the business owner would have no choice because it would be "equal protection under the law"."

    This is a common fallacy in discussing this issue. A public business cannot discriminate on four factors: Race, Religion, Sex, and National Origin.

    In your example the black baker isn't objecting to the message because the race of the customer, but because of the content of the message. The customer can be freely told to hit the road.

  • tbc||

    I am pretty sure MOST bakers, Black or otherwise, wouldn't want to make such a sign.

  • colorblindkid||

    Fashion designers can refuse to make Melania a custom dress. They can't stop her from buying an off-the-rack dress. That is the appropriate comparison here.

  • EscherEnigma||

    [...] bakers with religious objections to gay weddings will have no constitutional defense against demands that they nevertheless supply cakes for them [...]


    You mean like bakers with religious objections to Jews, Irish, blacks, veterans, disabled, and so-on already do?

    Y'all keep acting like this is new ground, but it was well-tread fifty years ago.

    To put it simply, if religious objections are good enough reason to be exempt from non-discrimination laws protecting gay people, then they are good enough reason to be exempt from non-discrimination laws protecting everyone else too. That Kennedy took feigned offense to this comparison just shows how much he (and the rest of the court that signed off on it) doesn't want to address the issue.

  • tbc||

    the problem is a conflation of conduct with being. Being *black* is not the same thing as having a same-sex marriage ceremony. The court (mainly Kennedy) has screwed things up by conflating the two. Straight people can have gay sex. Gay people can get married to people of the opposite sex. Homosexuality is essentially a behavior. A same-sex wedding most certainly is a behavior, even if only homosexual persons would be interested in it - there is no limitation in the law concerning that. A straight man can marry his best male straight friend and the law has no presumption that they are homosexuals. THAT is the issue.

  • Wrath0fKahn||

    It's pathetic this even hinges on free speech. In the 21st century conscription ought to be illegal irregardless of whether the activity to be conscripted is an instance of speech.

  • wreckinball||

    True
    We live in weird times
    They are for not discriminating against gays but that is not the law
    It prohibits discrimination based on sexual orientation
    That would mean it also protects heterosexuals as well
    CO commission didn't see that way throwing out a case where a gay baker refused service to Christians
    So they are OK with selective enforcement
    Much like the Federal CRA
    It prohibit racial discrimination but really it prevents blacks from discrimination
    It's OK to discriminate against whites

    Moral of the story is that we need no protected classes not more

  • IceTrey||

    I've never heard a compelling reason as to why participating in the public market should mean you lose your liberty.

  • Jason T||

    It's also worth noting that at the time of the baker's refusal to make the cake, same sex marriage was illegal in Colorado.

  • ||

    There is little doubt but that Masterpiece Cakeshop was a "punt." What it probably means is that Justice Kennedy is about to retire and the court wanted to wait until there was a less squishy majority for the more important first amendment issues implicated in that case before making a decisive ruling.

  • Danathar||

    One thing that nobody has asked. I wonder, would the Baker be required to make a QUALITY cake? In other words, if he decided to purposely do a bad job after bering required to bake the cake could he still be sued?

    I could see somebody doing that.

  • CapitalistRoader||

    As a commissioner who heard Phillips' case put it, "If a businessman wants to do business in the state and he's got an issue with the law's impacting his personal belief system, he needs to look at being able to compromise."

    Kennedy says that comment "might be seen as inappro­priate and dismissive," showing a "lack of due consideration for Phillips' free exercise rights and the dilemma he faced."

    I'm a frustrated Coloradan. No story about this ruling has specified which commissioner made this statement, and if this anus is still a CCRC commissioner. CO just got rightly bitchslapped. It would be helpful to know who should be voted out of office or ejected from their bureaucracy.

  • Brett Bellmore||

    Bottom line, "protected classes" and "equal protection of the law" are in complete conflict.

    And this really was a 13th amendment case, but the judiciary don't want to admit they could ever be party to violating that amendment.

  • LifeStrategies||

    Since public accommodation laws make discrimination under the Ist Amendment illegal, resolving the bake-a-cake /design-a-dress/ arrange-flowers issue requires a pragmatic approach to resolve the resultant tension. In an ideal world, of course, there would be no such laws, but they exist and are supported by many.

    However, there is an equitable, but long ignored solution. The issue only seems complex when you ignore the crucial distinction between the 1st Amendment rights of a person and a business. The 1st Amendment specifies that PEOPLE have the right to both free speech and not to speak, but does NOT specify businesses.

    So these laws can compel a business to comply but this does not mean an individual working or employed in that business should be forced to surrender his 1st Amendment rights.

    If someone in that business is willing, then the customer gets his cake/dress/photograph. But if no one there is willing, then 1st Amendment rights should trump public accommodation laws and the would-be customer goes elsewhere. This resolves most of the tension.

    Only when an employee and the owner don't agree do any difficulties remain. It seems to be domineering bigots like the gay couple objecting to Philips' refusal to celebrate their union that cause such difficulties.

    They should stop trying to arrogantly insist the 1st Amendment doesn't apply to people who disagree with them and simply get their cake baked elsewhere.

  • Abe Froman||

    The problem comes about from the notion of a "public accommodation" which grew out of the busing boycotts in the South. Business are owned by private parties mostly. Those parties don't give up their rights just because they start a business. You don't have to allow anyone into your private home. And likewise you don't have to allow anyone into your business. Just because you start a business doesn't men you have to serve anyone who shows up. Must law firms take every case presented to them? Must contractors take every job brought to their offices? Just because you open a business that serves the public (what business doesn't) doesn't mean to have to serve anyone and everyone who shows up. You should be able to refuse service to anyone for any reason or for no reason at all.

  • Abe Froman||

    The problem comes about from the notion of a "public accommodation" which grew out of the busing boycotts in the South. Business are owned by private parties mostly. Those parties don't give up their rights just because they start a business. You don't have to allow anyone into your private home. And likewise you don't have to allow anyone into your business. Just because you start a business doesn't men you have to serve anyone who shows up. Must law firms take every case presented to them? Must contractors take every job brought to their offices? Just because you open a business that serves the public (what business doesn't) doesn't mean to have to serve anyone and everyone who shows up. You should be able to refuse service to anyone for any reason or for no reason at all.

  • texexpatriate||

    SCOTUS may also disapprove "gay" wedding cake demands. Jacob Sullum's essay is silly. As long as homosexuals have other businesses to which they may turn to buy their cakes---or anything else---the national government has no business interfering. Now, does a state government have such a business? Maybe, but I don't believe so. Either we have liberty or we do not have it. Right now we have precious little of it.

  • LifeStrategies||

    Yet there's a pragmatic, entirely equitable but widely ignored solution to the cake-baking /dress-designing /flower-arranging issue and that's to uphold BOTH the 1st Amendment AND public accommodation laws.

    The issue is simple when you stop ignoring the crucial distinction between the 1st Amendment rights of a person and a business. The 1st Amendment specifies that PEOPLE have the right to both free speech and not to speak, but does not specify businesses.

    So these laws can compel a business to comply but this does not mean an individual working or employed in that business should be forced to surrender his/her 1st Amendment rights.

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

    It seems to be domineering bigots like the gay couple objecting to Philips' refusal to celebrate their union that cause such difficulties. Such snowflakes should stop trying to arrogantly insist the 1st Amendment doesn't apply to people who disagree with them and simply get their cake baked elsewhere.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online