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Free Minds & Free Markets

Supreme Court Rules for Baker in Gay Wedding Cake Case But Carefully Avoids Central Debate

This 7-2 ruling is more about Colorado's biased enforcement of discrimination law than freedom of expression.

Gay wedding cakeIvonne Wierink / Dreamstime.comThe Supreme Court ruled 7–2 this morning that the State of Colorado erred in punishing a baker for refusing to make a wedding cake for a same-sex couple. But the approach the court took guarantees that this debate is far from over.

The court did not rule that cake-baking is a protected form of free expression. Instead it said the Colorado Civil Rights Commission (CCRC) showed open hostility to the baker's attempt to assert his religious beliefs as a reason to reject the couple's request, and that the state thus did not neutrally enforce its antidiscrimination law.

In Masterpiece Bakeshop Ltd. vs. Colorado Civil Rights Commission, bakery owner Jake Phillips refused to sell a wedding cake to a gay couple because he had religious objections to same-sex marriage. Colorado ruled that this counted as discrimination against gay people, which violates state law. Phillips countered that he would sell any other baked goods to gay people, but he wouldn't make or sell goods for same-sex wedding ceremonies, because he felt as though he was being compelled to support an idea (that gay marriage is valid) that he did not believe.

The court punted on the issue of whether creating a wedding cake (or other wedding-related goods) is a form of free expression. Instead the justices ruled that the CCRC took a dismissive, hostile approach toward Phillips' religious-based objections when compared to other kinds of cases that came before them. From the majority decision:

The Civil Rights Commission's treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection. That hostility surfaced at the Commission's formal, public hearings, as shown by the record. On May 30, 2014, the seven-member Commission convened publicly to consider Phillips' case. At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado's business community. One commissioner suggested that Phillips can believe "what he wants to believe," but cannot act on his religious beliefs "if he decides to do business in the state." Tr. 23. A few moments later, the commissioner restated the same position: "[I]f a businessman wants to do business in the state and he's got an issue with the— the law's impacting his personal belief system, he needs to look at being able to compromise."

The commissioner even went so far as to compare Phillips' invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado's antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.

Justice Anthony Kennedy wrote the opinion. Also siding with the baker were Clarence Thomas, Stephen Breyer, Neil Gorsuch, Samuel Alito, Elena Kagan, and Chief Justice John Roberts. Thomas, Gorsuch, and Kagan all wrote concurring opinions. Only Ruth Bader Ginsburg and Sonia Sotomayor supported the commission.

A completely different case that trolled those who wanted to force the baker to make the cake ended up being relevant to the decision. As the Masterpiece Cakeshop controversy was playing out in 2015, a gentleman named Bill Jack went to another Colorado bakery to demand a cake that was decorated with text opposing same-sex marriage. When the bakery refused, he also filed a complaint. His was rejected, with the CRCC concluding that a bakery couldn't be forced to write messages that it found offensive or objectionable. The CRCC appeared to treat the nature of the objections very differently. The majority concluded:

The Commission's hostility was inconsistent with the First Amendment's guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission's order must be invalidated.

In a separate concurring opinion, Justice Clarence Thomas agreed that the CCRC was not neutrally enforcing its antidiscrimination laws, but he took the argument further. He does see the creation of custom wedding cakes as expressive speech: "Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding."

But only Gorsuch joined Thomas' opinion. The other judges were much more focused on the disparate treatment of Phillips' religious objections. So the courts did not establish a precedent here on whether people who provide goods and services to weddings can be compelled to provide them to same-sex couples. Indeed, the decision may actually give states a map on how to enforce antidiscrimination laws in a way that would require bakers (and other businesses) serve gay weddings.

Read the ruling here.

Photo Credit: Ivonne Wierink | Dreamstime.com

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  • damikesc||

    So, Sotomayor and Ginsburg felt it was OK to bankrupt a business for not doing what the state wants?

    Really?

    Fucking hell, those two are God damned morons.

  • John||

    It is worse than that. They think it is okay for the state to bankrupt said business while allowing other businesses to refuse to carry messages the state doesn't like.

  • loveconstitution1789||

    John, pretty funny that you said Shackford would write this piece and I said that he had it mostly ready to go to get it quickly published.

  • Derp-o-Matic 6000||

    Sotomayor is pretty good on 4th Amendment issues but otherwise an idiot. RBG is just a completely awful statist.

  • John||

    RBG is more machine than woman at this point.

  • Marcus Aurelius||

    Darth Vader indeed

  • Bearded Spock||

    "Twisted and evil"

  • Leo Kovalensky II||

    Cue "The Imperial March"

  • SQRLSY One||

    Dear Abby? Am I in the right place?!?!?
    Dear Abby, Dear Abby,
    My life is a mess,
    Bill Clinton stained my dress,
    I can't get it off my hairy chest,
    'Cause my boyfriend's a pest,
    I can't talk of my sexual past,
    'Cause he gets all aghast!
    And Abby, my boyfriend and I have been "seeing" each other for 41 years!
    Now our home state will let us get gay-married, we're a itchin' to go get us a hitchin'!
    But boyfriend INSISTS on us getting gay-married in churches that don't want us, by preachers that hate us, and get photoed by people that can't stand us, and on and on and on!
    I think it's 'cause his pet Hamster Huey and his Gooey Kabloooey rejected him in the 5th grade, and he's NEVER gotten over it!
    Abbey, PLEASE don't tell us to get therapy, we can't afford it! We COULD afford it, but he gives all of our money to politicians who say they are a gonna fix all of this mess with more laws!
    So Abby… Besides therapy, what can I do to help my boyfriend settle for getting gay-married by people who like gays?
    Love and Smooches, Dude B. Gay

  • SQRLSY One||

    Yes General Skarr's Prize Petunias ye are truly cultured! John Prine sang a "Dear Abby" song that I liked, in the VERY olden days, when I used to eat trilobites for breakfast...

    (I am also cultured, but only when you put me in a petri dish with some agar).

    http://www.azlyrics.com/lyrics.....rabby.html

  • Leo Kovalensky II||

    SQRLSY, I can honestly say that of all the people who post in H&R, you would be the most interesting to drink a beer with.

  • BestUsedCarSales||

    Unfortunately he does not drink. He just sort of absorbs by osmosis.

  • SQRLSY One||

    That and alcohol enemas! Chug-a-lug, butt-a-lug!

  • Mark22||

    Give that poor woman a break; she's been dead for years.

  • Marc St. Stephen||

    There may be some good in her - perhaps, in the end, she will throw Hillary to the core of the Death Star

  • ||

    Sotomayor is pretty good on 4th Amendment issues but otherwise an idiot. RBG is just a completely awful statist.

    Considering I could probably trick both of them into getting punched in the face, back to back, by holding up Scalia's dissent to Obergefell and asking them to read the second paragraph really, really closely, I'm pretty convinced they're both short-sighted morons. Hell, I could probably tell them I was going to do it, wait about three years and then do it successfully.

  • Brett Bellmore||

    In Ginsberg's case I rather doubt that, unless you used a shovel. She's really getting on in years, she's running on pure spite at this point.

  • Hail Rataxes||

    So, Sotomayor and Ginsburg felt it was OK to bankrupt a business for not doing what the state wants?

    All the justices believe that.

  • Brett Bellmore||

    True, they only disagree about what the state is entitled to want.

  • tlapp||

    They also believe you can force someone to work for another person. There is freedom on both sides, one not to bake a cake you find offensive and the freedom for someone and their friends to not to buy from a business or person.

  • Fairbanks||

    Unfortunately it is a very very small minority that realizes this country practices forced servitude with our anti-discrimination laws.

  • TheOldMan||

    No, one is a Wise Latina and the other a drunkard.

  • John||

    Sure it gives them a roadmap. The roadmap is to force everyone to do business with everyone else no matter their objection or force no one to do so. The entire point of these laws was to stick it to people like the plaintiffs in this case. If doing that actually requires everyone to live by the same rules, these laws will likely lose much of their appeal to their supporters.

  • loveconstitution1789||

    Elitists definitely hate laws to be equally enforced on all persons subject to those laws.

  • Palin's Buttplug||

    "Religious Freedom" is an oxymoron.

    Nevertheless the majority got it right.

  • Eidde||

    The First Amendment exists to protect us from people like yourself.

  • Palin's Buttplug||

    No, the First exists to protect people like me from a STATE religion like you conservatives wish to establish.

  • John||

    No it also protects the free exercise of religion. it is there to protect the public from craven retards like you.

  • Palin's Buttplug||

    But it is well known that I am a secularist, you asswipe.

    sec·u·lar·ist
    ˈsekyələrəst/Submit
    noun
    1.
    a person who advocates separation of the state from religious institutions.

    Go ahead and tell me how Soros is paying me to say this. Anyone that strays from the GOP plantation must be attacked.

  • Sam Haysom||

    No Sorosbots stay on message you and tony are clearly emotionally crippled people.

  • John||

    It is well known you are a craven retard. You are one of the dumbest people on the planet but make up for it by being angry and irrational.

  • loveconstitution1789||

    Buuthole, you believe in the state as your religion with politicians as your demi-gods.

  • ||

    1. a person who advocates separation of the state from religious institutions.

    20 and he asked them, "Whose image is this? And whose inscription?"

    21 "Caesar's," they replied.

    Then he said to them, "So give back to Caesar what is Caesar's, and to God what is God's."

    22 When they heard this, they were amazed. So they left him and went away.

    Jesus Christ, secularist.

  • Mickey Rat||

    So the government should butt out, or does the baker's talents belong to the State?

  • Libertymike||

    Jesus Christ, tax protester.

  • Episteme||

    Kind of the opposite. The word used for "image" here is the same as in Genesis 1:27, hence why the comment on what is Caesar's and what is God's. Before putting on his David Caruso sunglasses, Jesus reminds the Pharisees that the coins may bear the emperor's image, but Man bear's God's image — returning again to the usual Proverbial message of offering one's self in prayer and works instead of some monetarily-valuable sacrifice (think of the parable of the Pharisee and the Publican on this same subject).

    But also, fuck taxes.

  • ThomasD||

    Matthew was not originally written in Hebrew, so it cannot be the same word. While it is possible the meaning is the same as used in Genesis, that is by no means certain.

  • UnrepentantCurmudgeon||

    Jesus, whose kingdom was not of this earth and always remembered that.

  • Hank Phillips||

    When mystical conservatives say "free exercise" they mean "forced on individuals by men with service pistols." It pays to compare the 1872-3 Comstock Laws, the 1920 NSDAP Program and recent platforms by God's Own Prohibitionists in America and in the former Ottoman Empire.

  • Libertymike||

    He has no desire to establish a state religion, much less force it upon you.

  • Palin's Buttplug||

    "He" may not but most conservatives do.

  • Libertymike||

    Billy Graham and Jerry Falwell are dead.

  • Palin's Buttplug||

    Unfortunately the spawn of Billy Graham is not.

  • Weigel's Cock Ring||

    Trump is going to preside over more economic growth in one term than your Obamessiah had in eight years. Tell the truth: how does that make you feel, you little asswipe? Choke on it.

  • Palin's Buttplug||

    Bullshit. GDP was 2.2% last quarter. Same old normal.

  • Hank Phillips||

    Billy and ilk are the programmed spawn of Billy Sunday and Father Coughlin. Both fanatics can be seen on Youtube.

  • croaker||

    And what religion would that be?

  • SQRLSY One||

    There is but ONE true and valid State Religion! JOIN my now in a SONG of Praise!
    Scienfoology Song… GAWD = Government Almighty's Wrath Delivers

    Government loves me, This I know,
    For the Government tells me so,
    Little ones to GAWD belong,
    We are weak, but GAWD is strong!
    Yes, Guv-Mint loves me!
    Yes, Guv-Mint loves me!
    Yes, Guv-Mint loves me!
    My Nannies tell me so!

    GAWD does love me, yes indeed,
    Keeps me safe, and gives me feed,
    Shelters me from bad drugs and weed,
    And gives me all that I might need!
    Yes, Guv-Mint loves me!
    Yes, Guv-Mint loves me!
    Yes, Guv-Mint loves me!
    My Nannies tell me so!

    DEA, CIA, KGB,
    Our protectors, they will be,
    FBI, TSA, and FDA,
    With us, astride us, in every way!
    Yes, Guv-Mint loves me!
    Yes, Guv-Mint loves me!
    Yes, Guv-Mint loves me!
    My Nannies tell me so!

  • JesseAz||

    It has never protected you from interacting with religious people you daft moron. It's freedom of religion, not freedom from.

  • Mickey Rat||

    The Colorado commission is establishing a state religion that mandates celebration of gay marriage, given what they deem business acceptable and unacceptable to refuse.

  • damikesc||

    No, the First exists to protect people like me from a STATE religion like you conservatives wish to establish.

    I've not seen conservatives demanding progs do things they deeply loathe for no reason.

    But forcing nuns to pay for birth control is cool for Progs.
    Forcing Christians (and, mind you, ONLY Christians --- activists won't ask Islamic bakeries) to support that which they oppose is cool for Progs.

  • Mark22||

    No, the First exists to protect people like me from a STATE religion like you conservatives wish to establish.

    People here tend to be libertarian.

    However, to be crystal clear: in a libertarian country that happened to be predominantly Christian, the state wouldn't actually "protect you" from the majority religion; that is, in a libertarian state, people might find it difficult to find a job or housing because of their religion or atheism. That's what freedom of association means.

  • UnrepentantCurmudgeon||

    So then, "religious freedom" is NOT an oxymoron. You really should keep up with your own posts.

  • See.More||

    Nevertheless the majority got it right.

    Yeah, but for the wrong reason. This should never have been a Freedom of Expression or Religion case. This should have been a Freedom of Association (including Disassociation) case.

  • Procyon Rotor||

    Exactly this. I've always disliked the idea of Freedom of Religion as a special permission slip to do things that nonreligious people are forbidden to do, or to not do things that nonreligious people are compelled to do, because God said so. Liberty belongs to everyone equally, regardless of what beliefs they hold. Taking that view would also have the practical benefit of not putting the courts in the position of deciding who sincerely holds religious beliefs and who's making up bullshit to get their special exemptions from the rules.

  • Mark22||

    I've always disliked the idea of Freedom of Religion as a special permission slip to do things that nonreligious people are forbidden to do,

    That's why I think it's good that they didn't decide this as a freedom of religion case.

  • Fist of Etiquette||

    The Civil Rights Commission's treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.

    The commission isn't made up of robots. They saw before them someone so unapologetically unwoke that righteous indignation was the only logical feeling to express. It just so happened that their feelings on the matter coincided with what any right-thinker would recognize as the facts. It's a shame the SCOTUS can't see that this case is the very reason such a commission exists in the first place. Feelings codified.

  • Libertymike||

    Are you channeling your inner OBL?

  • croaker||

    Get Woke, Go Broke.

  • Juice||

    Even when SCOTUS correctly rules on the outcome, they rarely get the reasoning correct. Privileges and immunities? No, substantive due process. Freedom of speech and/or association? No, right against discrimination. Bodily autonomy? No, right to privacy. Right of contract? No, vague law.

  • John||

    In fairness to the court, they never addressed those issues because they did not have to. This is a case where the Commission's behavior was so revolting that you didn't have to even get into the validity of the law.

  • JesseAz||

    The problem is the two serious cases from Oregon and New Mexico remain unheard now. Oregon is especially egregious with a ruling against the religious bakers in the six figures in the form of fines.

  • Leo Kovalensky II||

    But SCOTUS did essentially punt on the relevant question of our times. Is cake decorating speech and can it be compelled for protected classes of people? The next case that doesn't involve flagrant hypocrisy from some civil rights commission will still be hotly contested.

  • loveconstitution1789||

    The majority opinion did but Thomas raised that specific legal point.

    That means that the majority would not agree to make force to bake cakes a free speech issue.

    Just as RBG and Sotomayer said they agreed with some parts of the majority opinion. This was not a 9-0 decision because of the politics involved in the decision and what issues it covered.

    Gorsuch being so awesome explained in his concurring opinion how government force in this case involved many violations of the Constitution and the decision should cover as many government limitations as possible.

  • Rev. Arthur L. Kirkland||

    Gorsuch will abandon those ostensible principles when a dollar bill case reaches the Supreme Court.

    He seems a relatively reliable solid authoritarian when backing the government advances right-wing aims.

    And if a church makes abortion a sacrament, Gorsuch will flip against religious freedom faster than Michael Flynn, Sam Nunberg, Rick Gates, or Michael Cohen flip against the guiltiest-looking innocent man on Earth.

  • BYODB||

    I'm pretty sure there's at least one religion in America that probably thinks child sacrifice is neat, but unfortunately you'd still need a Doctor to provide their religious rites by legislative fiat. Would make for an entertaining read, but it would never make it to SCOTUS because then they'd need to count how many angels fit on the head of a pin.

  • John||

    I agree. But courts often do that. If they can decide a case on a narrow ground and avoid a bigger issue, they will do it. And there is some reason to do that. You want to decide bigger issues with cases that don't present any side issues to distract from the holding.

  • SQRLSY One||

    As trained lawyers, you want to decide as little as possible, and rule as narrowly as possible (about what color of ink was used to sign the document, for example)...

    SO AS TO INSURE FUTURE EMPLOYMENT OF MANY-MANY LAWYERS AND JUDGES!!!!

  • Derp-o-Matic 6000||

    By the time the next case reaches SCROTUS, it's likely that there will be one, two, or even three new Justices on the bench.

    If Trump continues to appoint judges who are committed to interpreting the Constitution as written, I'm cool with waiting a few years. More likely we'll end up with the right result for the right reasons.

  • SQRLSY One||

    SCROTUS is correct! It stands for Supreme Court Retards Of The United Socialists!

  • Mark22||

    But SCOTUS did essentially punt on the relevant question of our times. Is cake decorating speech and can it be compelled for protected classes of people?

    Whether cakes-are-speech strikes me as a silly question, and I suspect SCOTUS probably didn't want to go into that either. I think the really relevant question is: do we have freedom of association in business. But that's not a question conservative justices could have won on this time, so they went with what they could.

  • Rhywun||

    But the approach the court took guarantees that this debate is far from over.

    What else is new.

  • DajjaI||

    I can't imagine why gay people would even want to force a baker to bake them a cake. Why would they want to live in a world like that? First of all expecting your government to 'protect' you from every slight is a recipe for disaster. Or maybe they just hate life and this is their fuck-you. As they are celebrating a joyous occasion? Seems so messed up. Or maybe they are just trying to incite a war against religion. In that case, enforced secularism is the most dangerous religion of them all.

  • John||

    It is because the people doing this are not "gay" they are asshole leftists who happen to be gay.

  • Marcus Aurelius||

    Much like Rosa Parks was not just a random bus rider, these wedding cakes are not for random weddings. Clearly selected targets in a war.

  • Scarecrow Repair & Chippering||

    It's payback, karma, revenge, retribution for all the years they were discriminated against. It's their turn to be assholes[sic].

  • I can't even||

    Who the fuck would actually eat that cake?

  • Derp-o-Matic 6000||

    Yeah, seems to me that finding someone who finds you and your lifestyle detestable and forcing him to handle your food is...ill-advised

  • Rev. Arthur L. Kirkland||

    So, the bigots have that going for them . . . which is nice!

  • gimmedatribeye||

    wah wah wah you're all bigots! wah wah wah

    Get over it, crybaby.

  • Brett Bellmore||

    They weren't shopping for a cake, they were shopping for a lawsuit. You see this over and over in these cases. In the Elaine photography case the plaintiffs didn't pick out a photographer until they'd found one who wouldn't do the work.

    It's becoming a sport among a small fraction of 'gays': Find somebody who doesn't want to supply your cake/photo/whatever, and sue them into the poor house.

    What's the fun just going to somebody who wants your business?

  • Episteme||

    You know they'd just throw the cake out in the nearest dumpster, then laugh and high five...

  • Robert||

    I can't imagine why gay people would even want to force a baker to bake them a cake.


    Gay per se, no way.

    Sadists made this.

    There are gays, among others, who delight in days they can smother someone else's dignity, hot diggity.

  • Wolf Larsen||

    Because this is what Leftists are....and that is largely irrelevant to their sexual proclivities in this case.

    Leftists are the very worst humanity has to offer. They are the scum of the Earth.

    It is also why I am a Recovering Democrat.

  • Rhywun||

    Phillips takes exceptional care with each cake that he creates — sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding.

    That's so gay. *ducks*

  • Eidde||

    I skipped to the penultimate paragraph:

    "The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the
    context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere
    religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open
    market."

    I observe that they warn only against *undue* disrespect to religious views, while there is no similar qualifier when it comes to "subjecting gay persons to indignities." Indignity to "gay persons" doesn't even have to be "undue" to raise the court's concern.

  • Mickey Rat||

    If gays consider "indignity" not getting what they want, from who they want, without complaint, then I am not sure how such can ever be reconcilable.

  • ||

    I observe that they warn only against *undue* disrespect to religious views, while there is no similar qualifier when it comes to "subjecting gay persons to indignities." Indignity to "gay persons" doesn't even have to be "undue" to raise the court's concern.

    Your religious views have to be sincere and closely held. Sexuality, OTOH, isn't a choice because it's fixed but is completely fluid and can change whimsically. Trampling over thousands of years of harmless hokum is OK, but God help you if you inadvertently slight someone who didn't realize you were doing anything wrong until they joined a protected class two months ago.

  • Red Rocks White Privilege||

    The secularist progressive claims that there's no War On Christianity while conducting war on Christianity.

  • tbc||

    And now I am beginning to understand why God said, 'burn the whole thing down' in the case of Sodom and Gomorrah. It wasn't so much the sex as the statism

  • Scarecrow Repair & Chippering||

    Once again, politicians see an opportunity to turn an outrage into votes: call it market failure, throw out a principle (freedom of association), and spend the rest of their career trying to fine tune a zillion regulations to emulate what the market would have handled easily.

  • ScooterB||

    An interesting case testing the boundaries of 'equal treatment'. There should be a line put somewhere though, right? Do libertarians believe that we should have just let the market weed out "No Blacks Served Here" signs (of even further, slavery)? Isn't there a certain point where the state has an interest in ensuring people are treated fairly?

  • Eidde||

    Slavery was the state ensuring people were treated *unfairly.*

    There are still private forms of slavery, relying on private violence, but the state-sponsored variety of slavery was much more widespread and systematic.

  • ||

    was

    Tell my kids in all honesty that they weren't born in bondage to the state.

  • Vernon Depner||

    Tell them to vote against having a state that holds them in bondage. If that results in a coup that overthrows the elected government and reinstates the bondage, then we'll know they were born in bondage. If voting against bondage works and results in change, then they weren't born to it.

  • ||

    Tell them to vote against having a state that holds them in bondage.

    This sounds more delirious than 'pray the gay away'. That's never been on my ballot. I'm fairly certain it's never been on my parents' ballots either. Matter of fact, I'm having trouble remembering how the popular vote to end slavery after the Civil War went down precisely.

  • Vernon Depner||

    Ending slavery put us in bondage because there wasn't a vote?

  • UnrepentantCurmudgeon||

    Slavery was on its deathbed at the start of the Civil War and would have died of natural causes within a generation even if the South had successfully seceded.

  • Scarecrow Repair & Chippering||

    Yes, freedom of association and let the market sort it out. Look at how government meddling has handled racism:

    Government created slavery.

    Government created Jim Crow "separate but inequal".

    Government created affirmative action.

    Government created unlawful cakes and photos.

    Isn't that proof enough that government is the problem? What in the world makes you think free markets and freedom of association could do any worse?

  • Leo Kovalensky II||

    In fact you could argue, in the case of the Roseanne's tweet, that the market decided much quicker punishment to racist speech than any government hate speech regulation ever could have. And in that case nobody was forced at gunpoint to comply.

    Even if you don't agree with the ultimate outcome for Roseanne, it's hard to argue that the result wasn't far better than if government would have been involved. Roseanne is still free to tweet and her fans are still free to listen to her speech or not as they see fit.

  • Rose Tico was well conceived||

    This is a lucid analysis and one I would agree with.

  • Ariki||

    This is what I think too. We now live in a world where market forces can be super charged by social media.

    No longer can crap businesses get away with selling crap products. How long would a shop with a "no black people" sign survive in this day and age? Sure, there may be some old racists that go there but even they will be subject to a spotlight most of them would wish to avoid.

    The free market is built on free choice, demand and social pressure. It is the will of the people to a certain degree. It just needs to be predicated on a positive value system to avoid sliding into witch hunts and totalitarian bullshit.
    Simple values. Individuals have the right to freedom of speech, freedom of association, freedom from violence, private property. Why is this so hard?

  • WoodChipperBob||

    It's so hard because so many people don't want other people to have freedom of speech and association, because that hurts their feels, and they don't want freedom from violence and private property because that keeps them from appropriating the possessions of others "for the greater good". Having a state to protect those things is necessary because so many individuals are willing to violate them. Unfortunately, because the state has power, many of those individuals seek to subvert the state in order to get help violating them.

  • Robert||

    I don't think gov't created slavery. I think slavery created gov't. It was a useful invention, but probably didn't arise by honorable means.

  • Ariki||

    Biology created slavery.
    We are born to recognise and find reassurance in familiar patterns.
    Unfamiliar patterns are fascinating, slight variations in familiar patterns are frightening.
    Enslaving the latter is a natural consequence I would think.

  • UnrepentantCurmudgeon||

    It is a well-established principle that there is no problem so bad that it cannot be made infinitely worse by means of government intervention.

  • Don't look at me.||

    Why would the state have such an interest?

  • JesseAz||

    Jim crow didn't allow business to discriminate, it required it. Why? Because most business owners care about making a profit. This hypothetical is pure idiocy.

  • ScooterB||

    If you want complete democracy to be a priority in your state, then equal treatment and opportunity would be an important interest. Jesse, don't you think there are benefits from excluding certain groups from the market? In this case, the poorest and most competitive? It's not idiocy, it's tribalism (human nature).

  • Libertymike||

    Maybe you do, but I do not want "complete democracy" to be a priority, anywhere.

  • JesseAz||

    Be honest. You mean equal outcome. Denied a service or good based on trait? Open a competition business that doesn't. You've already cornered a percentage of market share.

  • EscherEnigma||

    Jim Crow didn't require Ax Handle Sunday and other acts of violence by private citizens in support of segregation. Y'all really love to ignore that Jim Crow was supported by the violent majority.

  • Rose Tico was well conceived||

    I think you have that exactly backwards, we are constantly pointing out that it was supported by the violent majority. Showers, who want to make money, however, are not the violent majority.

  • Rose Tico was well conceived||

    shop owners

  • UnrepentantCurmudgeon||

    "Y'all" … love the faux Southern pretensions.

  • Vernon Depner||

    Isn't there a certain point where the state has an interest in ensuring people are treated fairly?

    I believe the public accommodations section of the federal Civil Rights Act of 1964 drew that line in the right place, balancing the right of free association against the infringements of the rights of racial minorities imposed by discrimination by certain businesses. Unfortunately, the expansion of the concept of a "public accommodation" under state civil rights laws and by court decisions has left us in this situation of virtually all businesses being considered "public accommodations" and the right of free association being ignored.

    Public Accommodations, Civil Rights Act of 1964

  • EscherEnigma||

    [...] against the infringements of the rights of racial minorities [...]


    The CRA (1964) was never just about race. Pretending that it was so that you can claim that it was "okay" then, but not now, is just revisionism.

  • Vernon Depner||

    What? Yes, it was about race, and I'm saying it's still "okay" now as originally envisioned.

  • Deep Lurker||

    The Civil Rights Act was a necessarily awkward and ugly attempt to stop State and local governments from mandating racial discrimination and then lying about it. Because if businesses could freely choose to discriminate, then certain State and local governments could apply under-the-table pressure to make businesses "freely choose" to discriminate, and it would be very hard if not impossible to call the State and local governments out on that.

    Also, the view was that - absent the 14th Amendment - State governments had a free hand to either require, allow, or forbid racial discrimination at whim. Excuse me: Given a "rational basis." The 14th Amendment then allowed the Feds to require the States to forbid racial discrimination, and the CRA was seen as a short-circuiting of that: Technically over the line, but in an no-harm, no-foul sort of way.

  • Fairbanks||

    Why do you single out blackness for special consideration? I posit that it's simply because we've been socialized into that belief, due to long-standing civil rights laws and because of the terrible treatment of blacks during slavery. If tall people, who are not a protected class today, had been similarly treated we would most likely single them out for special treatment now. But we shouldn't. Singling out certain groups for special treatment is terrible policy. Plus, the freedom from forced servitude trumps any consideration of the feelings of "special" groups, in my opinion.

  • EscherEnigma||

    Do libertarians believe that we should have just let the market weed out "No Blacks Served Here" signs [...]


    Well, stated preference vs. revealed preference.

    There are many libertarians who will claim that they'd be fine abolishing all non-discrimination laws and letting it be at real jungle.

    There are almost no libertarians who will advocate laws or policy that will actually do that. The closest you get is them opposing new protections.

  • Mark22||

    There are almost no libertarians who will advocate laws or policy that will actually do that.

    There have been, but (ironically) they get immediately labeled as neo-Nazis and white supremacists and a leftist lynch mob destroys them. So, they tend not to stay around politically for very long.

  • Mark22||

    Do libertarians believe that we should have just let the market weed out "No Blacks Served Here" signs (of even further, slavery)?

    Segregation, slavery, forced sterilizations, eugenics, and all that were government policies; businesses that do stupid things like that in a free market simply don't hang around long.

    Isn't there a certain point where the state has an interest in ensuring people are treated fairly?

    The state has always been the primary cause of unfair and unequal treatment.

  • Rose Tico was well conceived||

    No, I don't believe there is.

  • Brett Bellmore||

    Yeah, libertarians do believe that. Not a lot of libertarians around these days, though.

    What do you mean by "fairly"? Because if it means just as much right to order other people around as the next guy, I'm not on board.

  • Eidde||

    Anyway, it's time to get rid of Scalia's awful opinion in the Smith case.

    I get it - Scalia thinks legislators, not judges, should formulate religious exemptions.

    But he ladled on rhetoric about "neutral, generally-applicable laws" so that some people actually think that's what the case was about.

    No, Scalia *agreed* the government could carve out religious exemptions from laws, he simply thought the legislative branch was the one who should do it.

    So we have a law code filled with religious exemptions created by the legislature for religions which are able to successfully lobby the legislature.

    Then other religions, with equally valid claims for exemption, fail to get their exemptions because their lobbying power isn't as great.

    And this system is supposed to be interpreted as a system of "neutral, generally applicable" laws!

    Drop the pretense, admit the legislature can grant religious exemptions, but then go on to say that it cannot withhold exemptions from unpopular religions who don't have enough lobbyists. The unpopular religions should be able to go to the courts for relief.

  • Rev. Arthur L. Kirkland||

    When a church declares abortion, gay marriage, contraception, marijuana, and cocaine to be sacraments, right-wingers will experience an epiphany with respect to recent expansion of special privelege for religious claimants. A come-to-Jesus (and only Jesus) moment, one might say.

  • Eidde||

    Right-wingers generally rejected Scalia's opinion and supported the Religious Freedom Act of 1993. So did most left-wingers (at least in Congress). So did Bill Clinton. This was at a time when the face of religious freedom was a non-Christian Native American group using peyote as a sacrament.

    Today, most right-wingers *still* support the various Religious Freedom Restoration Acts. But the left changed its position because they realized that conservative Christians might benefit from these laws.

  • Rev. Arthur L. Kirkland||

    In general, conservative Christians play 'heads we win, tails you lose' ('we can discriminate against others, but no one can discriminate against us, and in general our religious claims are upheld while others' often are not'). They currently can make this work because many judges are Republican-appointed Christians and because many jurisdictions (those currently resisting the trend away from organized religion, especially) are controlled by conservative voters.

    Over the long term, for several reasons, I expect more consistent principles to prevail in America.

  • Mark22||

    In general, conservative Christians play 'heads we win, tails you lose' ('we can discriminate against others, but no one can discriminate against us, and in general our religious claims are upheld while others' often are not').

    You know, as a gay atheist, I tended to think that way as well.

    These days, I find that the left is so full of authoritarian assholes like you that I'm more and more OK with giving Christians special privileges. All things considered, they are the lesser of two evils.

  • UnrepentantCurmudgeon||

    You need to refrain from sticking your head into your juicer and turning it on

  • Vaelyn||

    The good Reverend just loves napalming those strawmen.

  • UnrepentantCurmudgeon||

    Damn, you are dated. I first heard this "sacrament" line back in the 1960s. It was bankrupt then, and being given some new "life" by a faux reverend doesn't give it any more weight.

  • Mickey Rat||

    So the commission found that a baker can refuse do something he finds objectionable, at least if the commission finds it objectionable as well. But on what basis does someone find something objectionable if not their moral sensibilities? I dareday for most people their moral sensibilities are informed by theirv eligion. What the commission seems to be endorsing one set of moral sensibilities over another. One religion over another. The middle of the court is likely annoyed that the commission mafe this that obvious.

  • UnrepentantCurmudgeon||

    Trust me, leftists who assert a "moral sensibility" are as a rule not at all motivated by any religion.

  • Mickey Rat||

    Not by a normal religion, but this is a belief they intend to legally impose on society.

  • loveconstitution1789||

    ...But the approach the court took guarantees that this debate is far from over.

    Because the SCOTUS decided gay marriage was a protected right in the Constitution?

    As many of us predicted, the gay marriage issue will resurface because it was not decided by overwhelming support via a Constitutional Amendment or other legislative protected right process. The SCOTUS legislated from the bench. The court tried to make gay marriage the same as marriage between and man and woman while avoiding polygamy and any other type of marriage between consenting adults.

    Gay marriage was probably on its way to becoming legal in most states and then Congress would probably recognize and protect the right for people to enter into domestic contracts.

  • Eidde||

    The gay marriage will resurface again and again so long as someone, somewhere, opposes it, no matter how peacefully.

  • Rev. Arthur L. Kirkland||

    Bigotry seems to be persistent and animated, and there are always a few right-wing lawyers willing to argue for intolerance (and creationism, prayer in school, etc.) while soliciting "seed gifts" from the gullible and backward.

  • UnrepentantCurmudgeon||

    Physician, heal thyself. Don't worry about the mote in another's eye while you have a plank in your own.

  • gimmedatribeye||

    Toughen up, snowflake. Get over it.

  • Leo Kovalensky II||

    These bakery cases aren't about gay marriage. These are about compelled speech/association vs anti-discrimination laws. They shouldn't even really be about religion, IMO, because speech isn't exclusive to religious or irreligious viewpoints.

  • EscherEnigma||

    Legally, they often aren't about religion. The arguments the lawyers made in court did as much as they could to minimize Phillip's religious beliefs, and focused on the free speech aspects.

    It's just that the lawyers, once out of court, do everything they can to emphasize the religious aspect to the press because they know that's what gets donations.

    There's a reason the ADF is still in operation even though it has a shitty record for actually winning cases.

  • LynchPin1477||

    7-2? That's really shocking.

  • Leo Kovalensky II||

    Not when you consider how watered down the ruling really was. The fact that it wasn't 9-0 is the shocking part.

  • loveconstitution1789||

    RBG is a statist and identity politicker.

    This decision limits government power and sets gay marriage up for another round of debate.

    This decision can be used to allow people who marry people or prepare weddings to deny services to gay people based on religious objections to gay marriage.

    The media just has not realized it yet.

  • Leo Kovalensky II||

    Fair enough. But to say that anti-discrimination laws should be equally enforced both way regardless of religion should be a freaking lay-up to anybody worthy of being on SCOTUS. I guess my assumption falls apart when discussing whether RBG is really worthy of her position.

  • Chipper Jones||

    I suppose the other side of that coin is that RBG is both non-senile and honestly believes that this decision really is a blow to those on her side. We can only hope.

  • loveconstitution1789||

    It seems to be a tight religious argument which might be why its was not a 5-4 decision. This still covers a bunch of activity that used to be illegal. I don't know if I would call the decision "narrow".

    Evidently there was ambiguity on the record for the free speech part of the argument.

    Its definitely not a "fuck you people can do and say what they want" type of decision.

  • Libertymike||

    What about canvassing wedding cake makers as to the question of whether their craft is a manifestation of creative expression?

    Well, from personal experience, the making of wedding cakes is not a fungible proposition. My experience? My mother made wedding cakes for about 25 years. During the process of making the cakes, she was an absolute bitch - my father and I were forbidden from even entering the family kitchen while she engaged in the cake making and we were also forbidden from entering her office, which included a small dining room with walk-in refrigerator.

    In keeping with her tastes, if she was given carte blanche by the bride and the bride's posse, my mother's wedding cakes were often extravagant, rococo productions.

    My mother was paid between $1,000.00 - 2,000.00 per cake. She also made the cakes for the weddings of family friends and would give the cake to the bride and groom as her wedding gift.

  • Leo Kovalensky II||

    I found this to be the most interesting portion of the decision:

    To Phillips, his claim that using his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation, has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. His dilemma was understandable in 2012, which was before Colorado recognized the validity of gay marriages per-formed in the State and before this Court issued United States v. Windsor, 570 U. S. 744, or Obergefell

    I read that as essentially saying that speech is protected up until the point that SCOTUS or Colorado allows something, and at that point it's no longer protected. In other words Phillips could make a 1A claim to not decorate wedding cakes prior to 2012 because to do so would have been supporting not protected by established law.

    The implication that I see here is that once the law is established in support of some behavior, Phillips's "dilemma" is no longer understandable. That's a dangerous view, indeed, and really flies in the face of the intent of 1A.

  • Leo Kovalensky II||

    *supporting something not protected

  • John||

    I think you are reading too much into that. I do not think the court meant that his dilemma suddenly became untenable once gay marriage was recognized. I think they were saying his dilemma was understandable at the time the case arose, meaning his views were sincerely held and reasonable.

  • Vernon Depner||

    Don't think so. There has never been any legal significance to weddings or wedding receptions. Only the licensing and certification of marriages were issues of law. The state never allowed or disallowed wedding ceremonies or wedding receptions.

  • Brett Bellmore||

    Yes, I found that line of reasoning a bit scary, in that it suggests that another defendant, in all ways similarly situated except that they were sued after Obergefell, would lose.

    I don't know if that's what the Court really meant, but I'm damned sure that a fair number of lower courts will read it that way.

  • ||

    I posted this at Volokh.

    Everyone gets all caught up in all these 'legal entanglements' of what is and what ought to be and should he or would she to the point they lose common sense.

    I may be a simpleton, and please forgive my McBain inelegance, but here's the skinny; the scoop as it were.

    Two gay people walk into a store (with a Rabbi and a Newfie), they metaphorically shove an icky Christian's face on the hood of a car (learned from Vinny over at Cafe Whatsamoider') and demand he bake the bitches a cake. "You bake this fucken cake or we'll fuck you up good because government'.

    The Christian, being well-read in how they were once fed to the lions and holding some incomprehensible principles alien to the coercive class, declines. In his place of business. As ought to be his right. We're all free to be angels and assholes after all, no?

    In a normal world where properly calibrated people, the couple (however angered and insulted) would just move on to the next place of business and spare the rest of their faux-righteous outrage. I know I do. It's not uncommon people avoid that 'one' place for whatever reason.

    My overall point is, what happened to basic decorum and of live and let live? Why must everything be a 'fight'? Not baking a cake is not an example of civil liberties being trampled on in my view. It's just two people who acted like a couple of dicks.

    Seems to me, the mature thing would have just been to let it go.

    Pluralism and freedom and all that jazz.

  • Leo Kovalensky II||

    What's even more ironic about these cases is that the plaintiff is arguing that what this particular baker does is simultaneously artistic expression and is not. They say on one hand that the couple has a right to go to this baker because what he does is expressively special (otherwise why wouldn't they just accept a "separate but equal" baker down the street), yet on the other hand that it's not expressive enough to be protected speech.

  • ||

    That's because they're full of shit.

    And there isn't one 'artistic' baker in town. There's always one competitor.

    To ruin a business and a life over this impacts a community. It's absurd.

  • Rev. Arthur L. Kirkland||

    What's your position on an employer who refuses to hire religious applicants, or refuses to provide time off for religious observance, or doesn't wish to permit an employee to wear religious jewelry?

  • ||

    What's your position on an employer who refuses to hire religious applicants, or refuses to provide time off for religious observance, or doesn't wish to permit an employee to wear religious jewelry?

    Depending on partial or complete enforcement of any or all of those, they're either failing to do business for lack of applicants or selectively enforcing the rules against religious observance.

  • Rev. Arthur L. Kirkland||

    Lack of applicants? I believe an employer that preferred to hire no Jew, no Muslim, or no Christian would find it easy to staff a restaurant, showroom, or office in my community. Some employers already discriminate based on religion and seem to staff operations with little problem.

    Relatively few applicants (or, in general, employees) ask for special privilege associated with religion, in my experience. I remember precisely one applicant who indicated she would request or expect special treatment.

  • Fairbanks||

    Employers should be able to set the terms of employment, full stop. Try harder.

  • BigT||

    Um...employers and employees should agree to the terms. It is often a negotiation.

  • mpercy||

    U.S. District Judge Josephine Staton, an Obama appointee, who sided with the state of California a few weeks ago, saying: "Even an outright ban on certain types of semiautomatic weapons does not substantially burden the Second Amendment right."

    To paraphrase: "A baker's outright ban on certain types of wedding cakes does substantially burden the made-up right to not be discriminated against."

    If someone doesn't want to bake you a cake, go down the street to the next baker. Don't bitch and moan to the State to force someone to bake you a cake.

    P.S. Who'd eat a cake that they forced someone to bake?

  • ||

    "Who'd eat a cake that they forced someone to bake?"

    Exactly.

    If I were the baker, let's just say I wouldn't put any effort into it.

  • Vernon Depner||

    If the baker made that too obvious, that could get him a civil rights complaint, too.

  • ||

    I know. That entered my mind. I was going to end my post with 'and then what?'

    But good luck proving that. 'But your honour, I have declining skills!'

    Proving intent is hard.

    Or if he really is subtle, just use shitty ingredients. There's no way of knowing.

    All I know is, personally, there's no fucking way two assholes who did that to me are gonna have the last say.

  • HGW xx/7||

    Exactly, but that's because it isn't "equal treatment" the far left is after; it's control. Coercion is a necessary requirement for the Great Leap Forward to occur; without it, the provincials will continue to succeed.

    They don't want a cake at all; they want a fight and a public forum to social signal in. Usually, they win; thankfully here, they essentially lost. Not a perfect ruling but I'll take it.

    And RBG can go fuck herself sideways.

  • TxJack 112||

    It is not a violation of civil rights to be a crappy baker.

  • Mark22||

    The court did not rule that cake-baking is a protected form of free expression. Instead it said the Colorado Civil Rights Commission (CCRC) showed open hostility to the baker's attempt to assert his religious beliefs as a reason to reject the couple's request, and that the state thus did not neutrally enforce its antidiscrimination law.

    Seems to me like they ruled on the more important issue.

  • Fairbanks||

    Yeah, everything I'm reading elsewhere thinks this was a non-decision. Strange.

  • Vernon Depner||

    Suppose that a baker refused to make a wedding cake for couple because he knew the groom was already married and was practicing bigamy?

  • BigT||

    Bigamy...biggacake!

  • EscherEnigma||

    The decisions is fucking disgusting is what it is. They've been denying cert and punting on these cases for years, and when they finally do accept one they dodge every merit-based question and go straight for "the commission was kind of mean"?

    Fucking cowards.

  • Vernon Depner||

    Ruling on the real merits could have resulted in a massive pruning back of state public accommodations laws across the country. That would be a good thing, but it's understandable they would approach that with trepidation, or hold off until just the right case was brought.

  • BigT||

    ... or hold off until just the right case was brought.

    Or until RBG is DOA, and replaced.

  • Vernon Depner||

    That might have crossed their minds, too.

  • Brett Bellmore||

    RBG and ALK are replaced. RBG by herself wouldn't fix this, or else they'd have just gone 6-3, which is a respectable majority.

  • Tony||

    Ah, the old "don't be meanies" clause of the constitution.

  • ace_m82||

    In contrast to the 9th amendment? You know, the one stating (to the effect of) "there are other rights that aren't enumerated here"?

  • Tony||

    Meaning that we are allowed to enumerate them elsewhere.

    "Christians who hate gays get a special exemption from the establishment clause" is not a new right I personally favor codifying.

  • gimmedatribeye||

    Why are you and your ilk so obsessed with homosexuals?

  • TxJack 112||

    First the decision is not a special exemption for Christians hating gays. Second, the establishment clause says "the government will not make any law respecting the establishment of religion or the free exercise thereof". Telling someone they must ignore their religious beliefs in order to make a living is exactly what the establishment clause prohibits. In this case the government was telling this man your religious beliefs are irrelevant because we have a different set of religious beliefs and they override yours.

  • Mickey Rat||

    As opposed to the "don't be meanies" exception to the freedom of religion clause?

  • Tony||

    Not the worst retort I've ever seen.

  • Kenrm||

    Have the baker, bake the cake, then let the couple go find somebody to do the icing decorations.

  • TxJack 112||

    He offered to sell them an undecorated cake but they refused.

  • TxJack 112||

    The main issue is the baker agreed to sell them anything in the shop but only refused to make a special cake for them. They could have taken a plain cake and decorated it themselves, but chose to not do that and instead sue. The larger question for me is why not just go to a different bakery? That seems more logical than all this insanity.

  • Tony||

    Because it's not about a cake, it's about whether gay people get to participate in the commerce of their community to the same extent straight people do as required by Colorado law.

  • UnrepentantCurmudgeon||

    So a straight person could go into a Jewish bakery and demand a cake with a swastika on it?

    No, Tony, it isn't any different. In both cases the customer is asking the bakery to do something that is against the fundamental principles of the business owner, and the owner is refusing. I have a simple solution: go find a different bakery.

  • Tony||

    You're about 70 years out of date with your suggestion.

  • TxJack 112||

    No you are in total denial about the actual intent of the 1st amendment in regard to religious freedom. ?Of course, you have said on other issues that you think the Constitution is a "living document" and its interpretation up to the majority of the electorate which is why you find yourself on the wrong side of so many debates. BTW, insults are the last defense of a weak and disorganized mind...which is why you use them so often...

  • Rockabilly||

    Oh Tony my Totally Gay Favorite Poster.

    Pink looks Divine on you.

    Frankie says Relax !

    https://www.youtube.com/watch?v=QtzdP45TG3s

  • gimmedatribeye||

    Yes, they do. There's plenty of bakers that would accommodate them. You come off as though you hate personal liberty and freedom when it conflicts with your own interests, causes, and beliefs.

    Homosexuality will never be widely accepted to the degree that you desire. And you need to get over it.

  • Tony||

    Neither will cousin fucking. Sorry.

  • TxJack 112||

    And I rest my case.... insult in response to a point you cannot logically counter. The logical response would have been it does not have to be widely accepted, we just need to get the government out of all relationship issues. For me the most logical solution to the entire problem is simple. Government should only issue Certificates of CIVIL UNION to ALL couples seeking to live within a legal, committed relationship, not Marriage licenses. Marriage is a religious term and has religious connotations. The problem is the radicals in the LGBT community demand marriage licenses because they know it is a religious term and therefore if they are granted one, they can stick their lifestyle in the face of people who they oppose. If the government only dealt with the legal aspects of the issue, then all the other stuff is irrelevant because for once, EVERYONE would be treated equally under the law which is supposed to the be the goal. The problem is that is no longer the goal for your side. You want to be granted superior rights to anyone with views you oppose. In short, you are the very person the Constitution was written to protect us all from gaining power by controlling the government.

  • Mickey Rat||

    "As the Masterpiece Cakeshop controversy was playing out in 2015, a gentleman named Bill Jack went to another Colorado bakery to demand a cake that was decorated with text opposing same-sex marriage. When the bakery refused, he also filed a complaint. His was rejected, with the CRCC concluding that a bakery couldn't be forced to write messages that it found offensive or objectionable. The CRCC appeared to treat the nature of the objections very differently."

    Did not read the article again, did you Tony?

  • TxJack 112||

    In this case you are wrong because he has refused to make cakes for other reasons on religious grounds. Fundamentalist Christians object to Halloween, divorce and a variety of other issues and he has refused to make cakes celebrating these events as well. He has been very consistent in how he responds when refusing to make a cake for religious reasons. This is why the ruling was so narrow and did not address the larger issue. Justice Kennedy wrote in his decision this was a narrow ruling and the larger issue would be decided by cases now working their way through the courts. The much larger issue for me is why would you want to force someone to do business with you that you know does not like you? It is not like he was the only baker in the city. This was about the couple trying to force someone to accept their lifestyle but refusing to give the baker the same consideration and that is the real issue.

  • Brett Bellmore||

    "The much larger issue for me is why would you want to force someone to do business with you that you know does not like you?"

    Some people get off on that sort of thing, it gives them a feeling of power. We're not all natural libertarians who are revolted by the very idea of coercing other people, you know.

  • Brett Bellmore||

    Speaking as a straight guy, I want straight people and 'gay' people to participate in the commerce of their community on an equal basis: NOBODY should be entitled to force somebody else to engage in commerce with them.

    It would never even occur to me to force somebody to sell me something if they weren't willing. What kind of warped person wants to exercise that kind of coercive power?

  • Ebeni||

    Let's do a hypocrite check for two way tolerance of deeply held religious and philosophical beliefs.
    Hypothetical situation: Gay couple owns a bakery providing wedding cakes including toppers. Couple comes in toting a Bible and wants a topper of a Christian/Jesus Fish with the script: Marriage: Between Man and a Woman. The Gay couple, citing deep philosophical beliefs, refuses services. What would the commission have decided? For me, a committed conservative/libertarian, the decision is simple.....government--- stay the hell out of both situations.

  • Fairbanks||

    It's not a hypothetical, for the most part. After Masterpiece came before the Colorado Civil Rights Commission, the Commission got a case in which a man asked for custom cakes from three different bakeries. The bakeries declined the request because they felt the cakes were demeaning to gays. The Commission decided in favor of the bakeries. And part of the logic they used to deny Masterpiece the right to not bake a cake was nowhere in the Commission's deliberations, presumably because that would have tilted the decision away from the bakeries. This was one reason SCOTUS ruled that the Commission was hostile to Masterpiece's religious convictions.

  • Stephdumas||

    Now then you mention this, Steven Crowder did that video in 2015 wondering if Muslim cake bakers will do a cake for gay couple. https://www.youtube.com/watch?v=RgWIhYAtan4

  • PG23COLO||

    This opinion is just another example of the Supreme Court practicing "safe opinion writing," where they announce opinions that don't stand for clear principles. Each case stands on its own and is pretty much useless as a precedent. They don't want to recognize legal principles because that would suggest that people have clearly defined rights. And that would deprive judges of their arbitrary power to decide each case as they wish. No member of the present court wants to end that practice. The members each get to write opinions when they are on the right side of the vote. The price they must pay for getting opinions to write is that they can't write opinions that articulate clear legal principles.

    This nation is now a country where the law is what judges say it is, just like when British kings said that the law was what came out of their mouths.

    If you go into court thinking your rights are clearly defined and will be protected, you will be in for a very unpleasant surprise.

  • Harvard||

    Were I the baker; following the filing of the discrimination complaint, would have baked a cake to end all cakes. I'd be tempted to attend the reception. When the two flowers merrily shoved cake into each others maws, I'd rise, cringe, smile and nod to the knowledge they'd both just unwittingly packed some pre honeymoon fudge. Which is the reason these puds picked a Christian baker, as one who would with principles and likely not be as mendacious as myself.

  • UnrepentantCurmudgeon||

    Of course SCOTUS avoided the deeper issues. That's what a SCOTUS opinion is for. The governing rule is "decide the case on the narrowest grounds possible" -- unless, of course, the case involves abortion in which case there are no narrow grounds on which to make a decision. But I digress.

  • Michael Ejercito||

    I wonder why the court is so protective of abortion.

  • Rockabilly||

    but who will make me my Totally Gay Wedding Cake?

  • swampwiz||

    It seems to me that the proprietor of a store is the sole authority in determining what is put up for sale; it would be ridiculous to tell a store what can must carry in stock. When someone orders a special design on a cake, the store owner is basically making the decision to source from his supplier (himself) that particular design, so the store owner can simply say that he doesn't have that design "in stock". However, if it's a design that the store owner has documented in his design book, then he has to sell it to whomever shows up with the cash to buy it, even Adam & Steve.

  • Michael Ejercito||

    So basically, Phillips did not get a fair trial.

    http://ethicsalarms.com/2017/1.....i-thought/

    It is a tenuous argument, at best, that the sale of sign-making supplies constitutes expression. Thus, Colorado's laws properly apply to such, and it is unlawful to refuse to sell sign-making supplies because the purported customer is a Westboro Baptist or a militant Islamist. And religious discrimination laws must cover unpopular religions, or else it fails to achieve its own purpose.

    But the question is, does this law apply to actually making signs? If not, how do you distinguish between making a sign for Westboro Baptists, or designing a cake for a same-sex wedding? Would it make a difference if the sign maker already sells "God Hates Fags" signs to the general population?

    How would one affirm the judgment of the Colorado Court of Appeal without the implication that a sign-maker may be required, under state law, to make signs for pro-ISIS marches or Westboro Baptist pickets? What is the principled distinction between that and wedding cakes for same-sex weddings? Surely it can not be because society finds the former more offensive than the latter.

    This is a line that the Supreme Court may have to draw soon.

  • fafalone||

    This is ridiculous for the simple reason that it's providing lesser protection for sexuality than other characteristics. If the baker was refusing to make cakes for interracial weddings (which also used to be illegal and people have sincere religious objections to), not for one minute would anyone on that court be entertaining the idea that religious freedom supersedes antidiscrimination law.

  • Brett Bellmore||

    Actually, I think Thomas might have. He's a real "though the Heavens should fall" sort of guy.

    Probably nobody else, though, they'd stop being invited to the right parties.

  • Sedona Vortex Hunter||

    maybe someone mentioned this above, but in any case..

    What about the quality of the product? Can the baker just make a really shitty looking cake? Like one of the layers just sliding off, or the cake lopsided etc..?

    Is there now going to be some sort of government cake judge who decides if the slave, err... baker baked a cake of proper quality? What if they are just shitty bakers? Who decides this point? What if the baker down the street makes a way better cake? Would that mean the cake is not good enough? Is the baker not allowed to be a shitty baker? Well the government force the baker to go to baking school or something?

    If I were the baker I would just make a totally horrendous cake. But is this 'allowed'? This whole thing is incoherent....

  • LifeStrategies||

    There is a simple, entirely equitable, but long ignored solution. This issue only seems complex if you ignore the crucial distinction between the 1st Amendment rights of a person and a business. The 1st Amendment gives every PERSON the right to both free speech and not to speak, but does NOT give these rights to businesses which instead can be forced to obey public accommodation laws.

    Public accommodation law can compel a business to bake-a-cake /design-a-dress /take-a-photograph /arrange-flowers but this does not mean an individual employed in that business can be forced to surrender his 1st Amendment rights.

    So if someone in that business is willing, then the customer is accommodated and gets his cake/dress/photograph/floral arrangement. But if no one working there is willing, then fundamental 1st Amendment rights trump public accommodation laws and the would-be customer trying to insist his rights trump the 1st Amendment needs to go elsewhere.

    It's generally with bigots such as the gay couple objecting to Philips' refusal to celebrate their union that these sorts of difficulties arise.

    There are lots of nearby businesses willing to bake them a cake, they should stop trying to insist the 1st Amendment doesn't apply to people who disagree with them and simply go elsewhere.

  • DaveSs||

    Here is the thing
    Public accommodation laws are themselves unconstitutional.

    That someone is engaging in commerce is not a declaration that they relinquish their right to refrain from associating(that is, selling/hiring/serving) with anyone for whatever "good" or "bad" reason they might have.

    To that you will of course respond: You need a business license to operate a business, so the State gets to decide the condition upon when they can refuse service.

    Which I will rightly and correctly reply: In what bizzaro world does an individual need the State's permission to engage in exchange of things of value with other individuals?


    Yes I know the State has usurped a person's right to engage in voluntary exchange without first obtaining permission from the State, and that agents of the State (Courts) has blessed this usurpation
    I also know that the State has usurped a person's right to refuse to serve people for whatever reason that person, and this to agents of the State have blessed.

    That the State has done so does not in any way make it legitimate, any more than the State saying 'thou shalt not practice Christianity/bigamy/homosexuality" with an agent of the State(Court) subsequently blessing this declaration would make that declaration legitimate.

  • TxJack 112||

    I will admit like most people I knew little about this case beyond the superficial until today. The decision of the SCOTUS was correct for one very good reason. The baker has been consistent in his views across the board. I found out he has refused to make Halloween cakes, cakes celebrating divorce, and a variety of others that are objectionable to very conservative Christians. For that reason, it is obvious the Colorado Civil Rights Commission did violate his 1st amendment rights because they chose to act only on this one, specific issue. For me the much larger question is why was this ever in court. The couple could have simply went to another baker who I am sure would have been happy to make them a cake, or they could have purchased a blank cake as he offered and decorated it themselves. The fact they literally made a Federal case out of the incident unfortunately demonstrates it was less about the cake and more about attempting to impose their views on someone who disagreed with them and that is a much more dangerous issue for us all.

  • DaveSs||

    more about attempting to impose their views on someone who disagreed with them

    That, is precisely why it was done.
    That is the entire purpose of law dedicated to prohibiting private discrimination. To impose a view on a private actor.

  • jj magoo||

    I am reassured to know that the Supreme Court ruled in favor of the baker. Especially since the ruling was not based on freedom of religion nor freedom of expression. I believe this case was about freedom of association. The First Amendment was written to guarantee the right of every individual freedom of association - business owners were not excluded. I am impressed by Justice Kennedy's focus on "the dignity of the individual." I think it was a subtle reminder that the rights of all individuals must be considered. Just because I want a service or product from someone doesn't mean that I'm entitled to it, even if the law supports me. In this case, the position of the Civil Rights Commission is to take the side of any member of a minority (except business owners). This is part of the Civil Rights Law. I expect the Supreme Court to continue to settle such cases on technical grounds rather than face this contradiction head on.

  • jj magoo||

    Whatever happened to the concept of consenting parties? It's a term gays might be familiar with.

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