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"Dressmakers, Bakers, and the Equality of Rights"

A very interesting piece by Stanford Prof. Michael McConnell on the Masterpiece Cakeshop case.

As readers of the blog know, Dale Carpenter and I filed an amicus brief opposing the cakemaker's First Amendment claim in Masterpiece Cakeshop (though we would support similar claims by photographers or freelance writers). But I'm delighted to be able to pass along a contrary view from Stanford Prof. Michael McConnell, one of the leading First Amendment scholars in the country; you can read the PDF version, complete with footnotes, here, but I quote the text below (with some paragraph breaks added):

Dressmakers, Bakers, and the Equality of Rights

Around the time briefs were being written in the Masterpiece Cakeshop case and Washingtonians were preparing for the 2016 inauguration festivities, the Washington Post ran a story in its Arts & Entertainment section entitled "Should designers dress Melania and Ivanka? The question is more complex than it seems." According to the article, President-elect Trump had run a campaign that inspired "waves of racism and violence" and "[w]hether to associate with him ha[d] become a moral question." One designer, Sophie Theallet, public declared she would not design a dress for the first lady, explaining that "as an independent fashion brand, we consider our voice an expression of our artistic and philosophical ideas." The article stated that a designer like Theallet sees fashion as a way of expressing her views about beauty and the way women are perceived in society. Fashion is her tool for communicating her world vision. In the same way that a poet's words or a musician's lyrics are a deeply personal reflection of the person who wrote them, a fashion designer's work can be equally as intimate.

The article went on to explain the difference between selling "wares" off the rack "at retail" and "making one-of-a kind garments for individuals." According to the article, that difference explains "why declining to dress a celebrity is not the equivalent of refusing service."

Toward the end of the article, the writer expresses her own view. Noting that other designers "would happily, and without reservation, create a splendid wardrobe for the incoming first lady," the writer concludes: "for those designers for whom fashion serves as their voice in the world, they should not feel obligated to say something in which they do not believe."

There do not seem to have been any angry letters to the editor. No one insisted that a dressmaker who enters commerce has an obligation to serve all comers and forfeits any right to withhold services on moral or ideological grounds. No one wrote that designing a dress is not a form of expression. Presumably, while some Americans might agree with Sophie Theallat's decision not to lend her skills to the Trump inauguration and others might disagree, no one would question the expressive nature of the activity or disagree with the Washington Post writer's conclusion that "those designers whose work serves as their voice in the world should not feel obligated to say something in which they do not believe."

In fact, it is a common feature of American life for people to refuse to do business with those with whom they have moral or ideological disagreements. Several Rockettes refused to dance at the Trump inaugural. Pro-life women can refuse to be treated by doctors who perform abortions. PayPal refused to build a production facility in a state that enacted a law it disapproved of about transgender bathrooms.

Political consultants (some of them) work only for politicians they favor. Actors can decline roles in productions that communicate a racist message—even if their own roles have no such message. Sports leagues have refused to compete in a state that passed a Religious Freedom Restoration Act. I know a public relations agency that would not do work for the local Catholic diocese because of the Catholic positions on same-sex marriage and abortion. And the United States Supreme Court has already—unanimously—held that an economic boycott based on race, namely a boycott of white-owned businesses, is a constitutionally protected form of protest. The dressmakers profiled in the Washington Post are just the latest example.

How does this compare to Masterpiece Cakeshop?

This brings us back to Masterpiece Cakeshop. The legal issue in that hotly-contested case is whether a Colorado baker named Jack Phillips can be punished for refusing to create a custom cake for an event of which he morally disapproves. In all but one respect, his circumstances are identical to those of Sophie Theallet, the dress designer. Like Theallet, Phillips regards his creative work as his "voice in the world" and as reflecting his view of beauty and of marriage. Like Theallet, Phillips has moral qualms about the event and does not wish to "associate" with it.

Like an inaugural gown, a wedding cake is an expression of its designer's "values" and "point of view"—even if the dress contains no words and no symbols specifically referring to Trump. It is the event at which the dress (or cake) would be used that supplies the expressive context—not necessarily anything particular to the dress (or cake). Like dress designers, Phillips distinguishes between selling off-the-shelf items to a customer on a retail basis and "making one-of-a-kind garments [or cakes] for individuals."

And just as there are many designers "who would happily, and without reservation, create a splendid wardrobe for the first lady," the record in the Colorado case shows that there were dozens of bakers in close proximity to Masterpiece Cakeshop who would happily create a cake for their occasion. This means there is no practical burden on Melania or on the couple from the denial of service—only the insult that comes from knowing that another human being disapproves, which is precisely what the dressmaker and the baker wish to communicate, and the government has no right to prevent.

As the dressmaker news story illustrates, there is no genuine doubt that artisans express themselves in their creations and in their decisions not to associate with events that are inconsistent with their beliefs and values. If Masterpiece Cakeshop had arisen in any other cultural context, civil libertarians would easily recognize the expressive character of the decision to create (or refuse to create) dresses and cakes for ceremonial events. The only difference between the baker and the dress designer is that the dress designer disapproves of the Trump inauguration while the baker disapproves of same-sex weddings. Unfortunately, for some people, that makes all the difference.

Once we recognize that the creation of symbolic objects like inaugural gowns and wedding cakes can be expressive, it ceases to be surprising that the First Amendment extends its protection—even to what one Justice during oral argument derisively dismissed as mere "food." The Supreme Court has long recognized that nonverbal conduct, such as the burning of a draft card to protest the war, sleeping in a park to protest treatment of the homeless, or wearing an army uniform in an anti-war film is entitled to a measure of constitutional protection. To be sure, the government can regulate the material impacts even of expressive conduct, but it cannot use its power to regulate conduct as a back-door way of punishing its communicative content. And it cannot force people engaged in an expressive activity to create or convey messages they disagree with.

It has been argued, nonetheless, that the Masterpiece Cakeshop case is not really about freedom of expression. The Colorado law, according to an amicus brief written by a distinguished lawyer and academic, "does not regulate the creation of messages," but only the selection of customers. The challengers to the Colorado law "have a First Amendment right to pick their message, but not to choose their customers based on sexual orientation."

That is a plain misstatement of the facts. The record shows that the Colorado baker, Jack Phillips, happily produces goods for customers without regard to their sexual orientation. He does not discriminate among types of customer; instead, he (like the dressmaker) refuses to create cakes that celebrate ideas of which he disapproves.

He is the mirror image of a gay photographer who refuses to provide his services to an evangelical rally against same-sex marriage. The photographer is not discriminating on the basis of religion; he is not anti-evangelical; he is opposed to the message of the rally. By the same token, Jack Phillips does not discriminate against customers on the basis of their sexual orientation. He refuses to bake cakes that celebrate a same-sex wedding, which he regards as contrary to God's will.

The State of Colorado is regulating the services of bakers on the basis of their ideological viewpoint. Three pro-same-sex-marriage bakers were approached and asked to bake cakes to be served at anti-same-sex events, and all three refused. When the disappointed customers complained to the Colorado authorities, invoking the theory that businesses have an obligation to serve all comers, the state responded that these bakers were not discriminating against particular customers but simply refusing to assist events they found "offensive." Exactly the same is true of Jack Phillips. The inconsistent treatment of the cases makes clear that the state is simply playing favorites: punishing speech with which it disagrees, protecting speech with which it agrees. That violates fundamental principles of the First Amendment.

Lessons from the Not-So-Distant Past

The closest analogy in the Supreme Court's cases is the unanimous decision in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston. In that case, a veterans group organized a parade on St. Patrick's Day, allowing a wide and seemingly miscellaneous collection of groups to march. The case arose because the organizer refused to allow a group to march carrying a banner announcing themselves as the "Irish American Gay, Lesbian, and Bisexual Group of Boston."The parade organizers did not discriminate against gay or lesbian parade marchers as such—indeed they made no inquiry into the sexual orientation of anyone marching in the parade—but they objected to the message conveyed by the banner, and refused to include it as part of their parade.

Because the parade organizers allowed a wide variety of groups to march, the Massachusetts courts defined the parade as a "public accommodation," much as the Colorado courts have defined Masterpiece Cakeshop as a public accommodation—meaning that it was forbidden to discriminate on various identity grounds, including sexual orientation. The Massachusetts courts held that exclusion of the group violated the public accommodations law. Describing the parade as lacking the element of expression for purposes of the First Amendment, the Massachusetts court held that forcing the inclusion of the group carrying the banner would not violate the First Amendment. The court issued an order forcing the parade organizers to include the gay and lesbian group to march in the future.

The Supreme Court reversed. It began by noting that public accommodation laws are "well within the State's power" and "do not, as a general matter, violate the First or Fourteenth Amendment." A public accommodations law "does not, on its face, target speech or discriminate on the basis of its content, the focal point of the prohibition being rather on the act of discriminating against individuals in the provision of publicly available goods, privileges, and services on the proscribed grounds." Nonetheless, the Court held that "[i]n the case before us, ... the Massachusetts law has been applied in a peculiar way" namely, that its enforcement action was not based on exclusion of any individuals on the basis of their sexual orientation, but instead on the decision of the organizers not to allow the group to march under its banner.

The state's order "essentially requir[ed] petitioners to alter the expressive content of their parade" by including a message they did not approve. "[O]nce the expressive character of both the parade and the marching GLIB [Irish-American Gay, Lesbian and Bisexual Group of Boston] contingent is understood," the Court explained, "it becomes apparent that the state court's application of the statute had the effect of declaring the sponsors' speech itself to be the public accommodation," in violation of "fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message." Nor does it matter that the dispute arose in the context of the commercial marketplace. The right to "autonomy to control one's own speech," the Court stated, is "enjoyed by business corporations generally and by ordinary people."

The same logic should apply in Masterpiece Cakeshop. As in Hurley, the state's public accommodation law on its face is unobjectionable, but as in Hurley, the "peculiar" application of the law tramples on First Amendment rights. When the baker refuses customers not on the basis of their own protected characteristics, but because he does not wish to embrace their message, the law ceases to be an antidiscrimination statute in the ordinary sense and becomes a regulation of speech. Even if Phillips's own "specific expressive purpose" were difficult to discern (and it is not), he has the same right that the parade organizers in Hurley had "not to propound a particular point of view."

Some may say that this prioritizes one right over another—the right of freedom of speech, or perhaps the freedom of religion — over the right not to suffer invidious discrimination. However, this is a misunderstanding. Instead, a decision in favor of the baker would put these rights on an equal plane. The rights of freedom of speech and religion do not entail the right to compel others to support, participate in, or endorse the exercise of the right. Dissenters from popular ideas have the right to express their views, but no right to complain if other people disapprove. It does not violate their dignity for other individuals to abhor their message, and they have no claim of "discrimination" if other individuals refuse to cooperate in or carry their messages.

No one doubts that an artist or artisan can refuse to assist a political party or ideological movement he or she opposes. No one doubts the right to refuse to perform in or assist in a worship service. We prohibit religious discrimination, but a Jewish printer does not have to print church programs declaring Jesus to be the messiah. We prohibit racial discrimination, but a singer cannot be compelled to perform the national anthem at an NAACP convention if she objects to that organization's policies.

There is no need to draw lines between architects, speech writers, public relations firms, photographers, musicians, bakers, or florists: no one engaged in an expressive activity can be compelled to use their talents in support of a cause they disapprove of. This has always been true in America. To say that same-sex weddings are on an equal plane is not to treat the right of same-sex marriage as second class in any way. It simply treats this new right with the same respect, and the same limits, that the older rights of speech and religion have long been treated.

Conclusion

The Washington Post was right. Dress designers have no obligation to create an inaugural gown for Ivanka or Melania Trump. "[A]s for those designers for whom fashion serves as their voice in the world, they should not feel obligated to say something in which they do not believe." The Trump inauguration stands for ideas that many Americans do not share, and an inaugural gown—even without specific words or markings—is part of the symbolism of that event. A wedding is no less symbolic. Nor is the cake. The fashioning of expressive symbols cannot be compelled.

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  • Eidde||

    Following the links, it seems that Prof. Volokh and a colleague wrote a brief on behalf of themselves and something called the Unity Fund, opposing the First Amendment claims of the bakers.

    From the Unity Fund We site:

    "American Unity Fund is engaging courageous, pro-freedom Republicans in the states as we work to advance LGBTQ freedom, mobilizing grassroots support among conservatives, and ensuring advocacy campaigns are authentically bipartisan."

    I'm a bit unclear as to the "bipartisan" appeal of compulsory gay wedding cakes.

  • Eidde||

    Web site, not We site

  • jslinner||

    wedding cakes cant be gay. they dont even have sex.

  • damikesc||

    Nor do married folks.

    *mic drop*

  • jjsaz||

    Bravo (or Bravo, as the case might be)!

  • jjsaz||

    I got autocorrected! Should have read: Brava ( or Bravo...

  • Sam Gompers||

    Cakes that are designed celebrate gay weddings are rightly called gay wedding cakes.

  • Sebastian Cremmington||

    Except hetero marriage is gayer than two dudes getting married. I can't think of anything gayer than a hetero wedding.

  • Krayt||

    I was about to post, about the article as a whole, wondering if this was the point Nelson says, "Ha ha!"

    But your post reminds me of another Nelson joke. Nelson gets caught kissing Lisa and his friends run up. One says, "You kissed a girl! That's gay!"

  • Sam Gompers||

    Two dudes don't get married, they get gay married.

    There's a difference.

  • Sebastian Cremmington||

    My legal advice would be that no two people should just get married but that they should sign prenups that greatly alter the laws on the books and then at every major life change like having a baby they need to renegotiate the contract. The notion two people would waste time planning a wedding instead of drawing up a partnership contract shows a lack of seriousness for the institution of marriage.

  • Larvell Blanks||

    You have an insufficiently enlightened view of the complexity of cake gendering.

  • TwelveInchPianist||

    "wedding cakes cant be gay. they dont even have sex."

    Unlike apple pies.

  • ravenshrike||

    Clearly you've never seen a desperate enough groomsman.

  • Bubba Jones||

    cocktail party invitations.

    obviously.

  • Intelligent Mr Toad||

    Bakers can't be choosers.

  • nonzenze||

    /thread

  • Eidde||

    It would be nice if the Supreme Court undid Scalia's mistake and overruled the *Black* decision, telling the liberals, "you were right - *every* law which impacts religious practice needs to be the least restrictive means of achieving a compelling government interest, or else it's unconstitutional."

    Restore this test, and I don't see how compulsory gay cakes can pass the test.

  • Eidde||

    Smith case, that is - though one of the parties *was* named Black.

  • Rigelsen||

    Usually referred to as Employment Division (or Employment Division v. Smith).

  • Rigelsen||

    I should have added:

    Definitely not Scalia's best work, along with Gonzalez v. Raich. In both cases, he let his fears get ahead of the plain reading of the Constitution.

  • swood1000||

    How would Prof. McConnell's thesis be compatible with the Supreme Court's decision in Bob Jones University? That case involved what the court termed a genuine religious belief that the Bible forbids interracial dating and marriage. As a result, the IRS denied a tax-exempt status for the university.

    The Court held that the Government's fundamental, overriding interest in eradicating racial discrimination in education substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs.

    The university accepted Blacks as students, just not ones who were involved in an interracial marriage. The argument of the owner of the Masterpiece Cakeshop is that he will accept gay customers but will not participate in the celebration of a gay wedding. If the government has a fundamental overriding interest in Bob Jones then by what logic would they not have one in Masterpiece?

  • swood1000||

    In Obergefell the Supreme Court did say that "Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. …This view long has been held and continues to be held in good faith by reasonable and sincere people here and throughout the world."

    Maybe it would just come down to which religious beliefs the Court determines to be decent and honorable. Perhaps they know it when they see it.

  • Brett Bellmore||

    Something like that. They should have followed that line you quoted up with, "But our view is held by Supreme court justices, so we win.", to be honest.

  • nonzenze||

    People continue to deny either the existence of the Overton Window or the plain fact that things are not the same within and without.

  • mad_kalak||

    "No matter whether the constitution follows the flag or not, the Supreme Court follows the election returns" wrote Finley Peter Dunne (1867-1936) in 1901, through his comic character Mr. Dooley.

    As true then as of today. While in low level courts the law actually matters, at that level, not so much.

  • nonzenze||

    You still don't get it. The election happens within the Overton Window. And the window is rather wide, all the way from Bernie Sanders to Ted Cruz.

    Of course the result of the election doesn't change the law, because the election happens with the space of views that necessary not beyond the pale.

  • Sebastian Cremmington||

    And Trump was the most pro LGBT Republican nominee in history.

  • mad_kalak||

    We might be talking past each other. Nobody doubts the existence of the Overton Window, which is just a fancy name for the range of socially acceptable opinions. What I'm saying is that courts almost always follow the culture rather than lead the culture. Social change through the courts only occurs when there is support for it from the populace, the executive, and a fair number in legislature. By then the Overton Window encompasses whatever decision they make. And even then that doesn't mean that there will not be noncompliance with a decision, but just that courts, in effect follow the election returns, in order to determine if a decision that would make social change is acceptable.

  • swood1000||

    People continue to deny either the existence of the Overton Window or the plain fact that things are not the same within and without.

    That's it! The Overton Window is where the Supreme Court goes to determine which rights "rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era," as they put it in Obergefell. After all, "[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . " So they by implication gave the Supreme Court the authority to determine these rights via the Overton Window. It's finally all so clear to me!

  • bernard11||

    "[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . "

    Do you think that is false? I don't.

  • mad_kalak||

    The generations that wrote and ratified the Bill of Rights and later the 14th Amendment also used the amendment process to enshrine their expanded concepts of liberty, rather than a court with their finger in the wind.

  • Krayt||

    I have much less issue with changing views of society increasing personal freedoms than changing views giving government more regulatory authority in realms it never had before, without the amendment process.

    One is in accordance with basic ideas behind the constution, of inalienable rights, and the other what it sets out to prevent, government increasing control sans supermajority approval.

  • swood1000||

    Do you think that is false? I don't.

    No. What's false is that their solution was for the Supreme Court to have the authority to add to and subtract from the freedoms protected by the constitution. Their actual solution was a system for amending the constitution.

  • nonzenze||

    Por qué no los dos?

  • jph12||

    But see, the Ninth Amendment. You can't add anything to the freedoms protected by the Constitution.

  • bernard11||

    Well, I don't agree with your characterization, but so what? How are we to deal with cases the drafters never remotely considered? Maybe by assuming that their principles are best honored by applying them even there.

    The difficulty is that amending the Constitution is a very poor solution, since it requires, as a practical matter, an overwhelming majority to do so. Given the various choke points we are talking what, 80+% at a minimum, and even then a small minority with a lucky geographic distribution can stop it.

    Now, you can argue, and probably will, that that's the way it is and we are stuck with it. But of course politics, like water, finds a path.

  • Brett Bellmore||

    This is a common misconception exploited by people advocating judicial circumvention of Article V.

    Article V doesn't require that an amendment have overwhelming public support. An amendment could get out of Congress and be ratified easily if 51% of voters in every district supported it, because every member of Congress and every state legislator would find themselves in a district where the majority was in favor of it.

    Contrarywise, if an amendment had 99% support in 49% of the districts, and 51% opposition in 51% of the districts, it would fail dismally, event though most people supported it, because a majority of members of Congress and state legislators were in districts where it was opposed.

    What Article V requires is that support for an amendment be wide spread, rather than local.

    Supermajority support in a representative legislature isn't a product of overwhelming public support. It's a product of support that's very widespread. It doesn't have to be much over 51% if it's everywhere.

  • mad_kalak||

    I couldn't agree more. Even as recent as 1933 with the repeal of Prohibition, people understood the proper route to create significant change within the system was the amendment process. And while you can argue that it started before the Warren Court, there is no doubt in anyone's mind that it was the Warren Court that fed the beast of anti-majoritarianism, when we had court decisions en mass that created significant change to the system through non-electoral means. Leftists since then have perhaps marveled at the results, but in quite moments of solitude, have to question the means, because what they wrought is a conservative legal revolution whereby the same methods and tactics are being used to advance an agenda that they don't agree with.

  • swood1000||

    bernard11:

    How are we to deal with cases the drafters never remotely considered?

    But how is it legitimate, in a case not addressed by the Constitution, to have the Supreme Court devise a solution and pretend that the Constitution does answer the question? If the Constitution is a mere "thing of wax" as Jefferson put it, then how does it provide security for any rights? If the Court can say that the Constitution has a different meaning from the one it originally had, without even explaining how it arrived at the new meaning, then why would rights even expressly protected by the Constitution be secure? It just seems so short-sighted to rejoice when the Court remolds the wax in a way we like, knowing that if the next remolding is one we object to we can't point to the text of the Constitution as a part of our objection.

    How do we distinguish between changes from the original meaning that the Supreme Court is authorized to make, and changes it is not authorized to make?

  • nonzenze||

    Actually swood, I mentioned the OW not with respect to Obergefell, but to distinguish it from Bob Jones.

    Like it or not, religious opposition to SSM is going to be considered differently than a religious opposition to interracial dating. Or religious opposition to emancipation for that matter.

    In fact, that's exactly what the Court tried to explain in Jones -- that there is a 'fundamental, overriding interest in eradicating racial discrimination', which is another way of saying that overt racial discrimination is outside the Overton Window.

  • swood1000||

    In fact, that's exactly what the Court tried to explain in Jones -- that there is a 'fundamental, overriding interest in eradicating racial discrimination', which is another way of saying that overt racial discrimination is outside the Overton Window.

    I agree with you completely. Obergefell was made possible only after same sex marriage became acceptable to the public. If my comment seemed sarcastic it was a response to the view of some people that consulting the Overton Window on the question of new constitutional rights is either (a) objective, or (b) a proper role for the Supreme Court.

    Furthermore, could the Supreme Court announce a distinction on the basis that racial discrimination is less acceptable to the public than lgbt discrimination? That would be awkward. I mean, the idea behind the Constitution is that the rights of the minority should be protected. But certain rights don't get the same protection because proponents of those rights have not achieved the same acceptance in the community? Is that really coherent?

  • Brett Bellmore||

    ". Obergefell was made possible only after same sex marriage became acceptable to the public."

    That completely inverts the actual events.

    What happened was that the judiciary started to show an interest in legalizing SSM, and one state after another democratically attempted to close that option off. But the judiciary wouldn't let them, and ultimately prevailed over the democratic will of the people.

    See, for example, the passage of Proposition 22 in California, in 2000. Adopted 61-38. THAT is a genuine measure of public opinion, in one of our most liberal states. In 2005 the state legislature considered attempted to overturn this legislatively, but it was vetoed on the basis of Prop 22.

    In May 2008 the state supreme court overturned Prop 22. The voters of California responded in the fall of 2008 by passing Prop 8, amending the state constitution to remove the basis for the ruling. In 2010 the state judiciary enjoined enforcement of it, and in 2014 the state legislature used that injunction as an excuse for why they could legislatively overturn it.

    Similar sequences happened in most states where this issue came up.

    All you're looking at now in public opinion is resignation, not support. The public now knows that it's opinion won't be allowed to matter, and has given up.

  • swood1000||

    That completely inverts the actual events.

    I completely agree with your train of events. There is no doubt that the Supreme Court strongarmed the process. My point, though, was that a change in public opinion allowed them to do this. They would not have been able to get away with it in the 50s.

  • ||

    I don't think that's true. The Supreme Court got away with the outrageous Kelo ruling, and got away with the outrageous Warren Court rulings decades ago because most people don't care enough to fight. I think the majority of people might support same sex marriage in the abstract ("It doesn't affect me, so I don't really care") but that's not the same as enthuastic support which is what the left would have you believe.

  • swood1000||

    I don't think that's true. The Supreme Court got away with the outrageous Kelo ruling, and got away with the outrageous Warren Court rulings decades ago because most people don't care enough to fight.

    Maybe you're right. It seems to me, though, that if Obergefell had come out in 1950 it would have been immediately reversed by constitutional amendment. The Warren Court rulings did not as greatly contradict the mores of the time. By 2015 a constitutional amendment was no longer possible.

  • Sebastian Cremmington||

    SSM is a pretty stupid concept in 2018 so in 1950 no one could even conceive of SSM. Marriage laws (divorce laws) in modern America are really about giving stay at home mothers some leverage in our society because in 1950s and 1960s when we were experiencing rapid economic growth and societal changes stay at home moms in a nuclear family had no leverage in the marital partnership. In 2018 the state really has no business getting involved in marriage because women and men have equal power in our society and women don't need the government leveling the playing field.

    And relevant to this discussion is that the nuclear family is also a post WW2 development which Conservative Christians can't quite grasp. So ironically adoption by gay people would have been more acceptable in 1850 that it is today due to the fact early death was so much more common and children had to live with whichever relatives were capable of providing for them.

  • Eidde||

    As far as free exercise is concerned, Bob Jones is outdated, because it used the balancing test approach, and under Smith this is no longer necessary - the government gets to win as long as they're enforcing a neutral, nondiscriminatory law regardless of how much it steps on free exercise.

    Which is why Smith is wrong and why Congress and many states passed RFRAs to restore the real meaning of the First Amendment.

    So let's assume the balancing test approach is restored, and look at the Bob Jones case.

    I quickly skimmed and found this in the Bob Jones opinion:

    "Over the past quarter of a century, every pronouncement of this Court and myriad Acts of Congress and Executive Orders attest a firm national policy to prohibit racial segregation and discrimination in public education....

    "...Given the stress and anguish of the history of efforts to escape from the shackles of the "separate but equal" doctrine of Plessy v. Ferguson...it cannot be said that educational institutions that, for whatever reasons, practice racial discrimination, are institutions exercising "beneficial and stabilizing influences in community life,"...or should be encouraged by having all taxpayers share in their support by way of special tax status....

  • Eidde||

    "On occasion, this Court has found certain governmental interests so compelling as to allow even regulations prohibiting religiously based conduct....Denial of tax benefits will inevitably have a substantial impact on the operation of private religious schools, but will not prevent those schools from observing their religious tenets.

    "The governmental interest at stake here is compelling. As discussed in (the excerpted passage above), the Government has a fundamental, overriding interest in eradicating racial discrimination in education -- discrimination that prevailed, with official approval, for the first 165 years of this Nation's constitutional history. That governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs. The interests asserted by petitioners cannot be accommodated with that compelling governmental interest...and no "less restrictive means,"...are available to achieve the governmental interest."

    If you can find the same compelling interest in stamping out a few Christian bakers - and unlike denying a nonprofit tax break, the imposition of crippling fines, suing bakers into bankruptcy probably *will* "prevent those (bakers) from observing their religious tenets."

  • Rev. Arthur L. Kirkland||

    It seems prudent to note that not all Christians, bakers or not, are backward and bigoted. Not nearly.

  • Eidde||

    Should we take a poll, and see if there's enough traditional Christians to make it worthwhile to protect their rights?

    How small in numbers would traditional Christians have to be in order for us to safely dismiss the idea that they have any rights the community is bound to respect?

  • Rev. Arthur L. Kirkland||

    Bigots have rights, too.

    But bigotry cloaked in religious garb is no more attractive than any other bigotry, nor more attractive than a right-winger hiding behind silly libertarian drag.

  • Rev. Arthur L. Kirkland||

    Also, not all traditional Christians are bigots. Not nearly.

  • Eidde||

    "Bigots have rights, too."

    Of course you do, silly.

  • Mesoman||

    It is not bigoted to disagree with a policy of gay marriage. It is not bigoted to disapprove of another's sexual practices.

  • Krayt||

    That governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs.

    While I am sympathetic to this, didn't The People weigh this value judgement and tell the governmrnt in no uncertain terms Religion is at the apex of freedoms Congress shall not impede?

  • swood1000||

    While I am sympathetic to this, didn't The People weigh this value judgement and tell the governmrnt in no uncertain terms Religion is at the apex of freedoms Congress shall not impede?

    I think their implication is that whatever the burden to Bob Jones was, it wasn't that great, and there's no reason that a minor or tangential burden on freedom of religion should trump a serious and profound burden on another constitutionally protected right.

  • Bubba Jones||

    The easy way out is to distinguish between tax exemptions and criminal prosecution.

  • Larvell Blanks||

    For starters, Bob Jones did not involve the government compelling the university to engage in speech it did not agree with -- it simply held that the school did not qualify as a tax exempt organization. Indeed, the court expressly held that "[d]enial of tax benefits ...will not prevent those schools from observing their religious tenets." Forcing a baker to make a cake to celebrate a wedding he disapproves of is analogous to forcing a school to observe religious tenets they do not agree with. And there is no fundamental overriding government interest in ensuring that everyone has uniform opinions about gay marriage, or in making sure that those with the "wrong" opinions keep quiet about it. So the cases are quite different.

  • swood1000||

    For starters, Bob Jones did not involve the government compelling the university to engage in speech it did not agree with -- it simply held that the school did not qualify as a tax exempt organization.

    Well, Bob Jones was a free exercise case. The Court said that the government's interest overrides whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs. Why wouldn't the government's interest here override whatever burden fines and lawsuits place on petitioner's exercise of his religious beliefs and/or his free speech rights?

    Forcing a baker to make a cake to celebrate a wedding he disapproves of is analogous to forcing a school to observe religious tenets they do not agree with.

    But nobody is forcing the baker to be a baker. There are plenty of other ways of making a living that would not present him with this predicament. In fact, he has avoided the predicament since this case started by refusing all requests for custom wedding cakes. Problem solved?

    And there is no fundamental overriding government interest in ensuring that everyone has uniform opinions about gay marriage…

    But the overriding government interest, here as in Bob Jones, would not be in regulating opinions but in eradicating invidious discrimination.

  • Larvell Blanks||

    nobody is forcing the baker to be a baker

    Thankfully, we live in a country where you can generally choose how you make a living, without surrendering your First Amendment rights. And seriously, you're going to make your stand at baking? "Oh, people with your beliefs can hold all sorts of jobs, but not baking cakes, that's far too important. Only people who agree with same sex marriage can bake cakes." Start down that road, and there's no real stopping point. Plus, it is incredibly elitist to just tell someone, "Oh, go find a different job, big deal."

    The Court said that the government's interest overrides whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs.

    When the court said that the governmental interest "substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs," it was talking about the actual burden imposed on religious beliefs by the denial of tax benefits -- it wasn't saying, "Hey, whatever burden you can think of, no matter how great, is outweighed by the government's interest." The denial of an exemption for an otherwise applicable tax is not a substantial burden on the exercise of religion; being forced, on pain of crippling fines and being forced from your chosen profession, to engage in speech you don't agree with is an overwhelming burden on the exercise of free speech.

  • swood1000||

    The denial of an exemption for an otherwise applicable tax is not a substantial burden on the exercise of religion; being forced, on pain of crippling fines and being forced from your chosen profession, to engage in speech you don't agree with is an overwhelming burden on the exercise of free speech.

    Look, I think you and I are fundamentally on the same side of this issue. And as Eidde points out, the Supreme Court no longer uses the balancing test used in Bob Jones. But you would apparently distinguish Bob Jones by the amount of the penalty.

    According to this article, in 2013 corporations paid an average effective federal tax rate of 12.6%. I don't know if that also includes the social security and unemployment taxes at issue in Bob Jones.

    But you are apparently arguing that if the baker were presented with economic penalties equivalent to the additional taxes Bob Jones had to pay, as well as to the reduction in charitable contributions caused by the revocation of the charitable deduction, then there would be no constitutional issue. Is that correct?

  • PoxOnBothYourHouses||

    swood1000: "But you are apparently arguing that if the baker were presented with economic penalties equivalent to the additional taxes Bob Jones had to pay ...then there would be no constitutional issue. Is that correct?"

    He may or may not mean that, but his examples are solid. In the BJ case the ruling was "you can disallow interracial marriage if you want, and stay in business, you just can't keep a tax exemption." In the cake baker case, it is: "you cannot as a cake baker refuse to celebrate a same-sex wedding /at all/!"

    Yes, there is a difference. The cake bake penalty is much more onerous -- draconian actually -- for much less offense.

  • Sebastian Cremmington||

    Nobody said being a Christian was easy. That said, Christians like MLK were willing to break the law and take the punishment to change society. If this Christian believes in his cause then these penalties are not draconian relative to the punishment suffered by the leaders of other movements led by Christians. In fact the Memories Pizza people came out ahead by expressing their Christian beliefs.

    The bigger issue I have with this episode is the Christians not involved in the wedding industry egging this guy on...what do they have to lose by saying Christian beliefs compel a Christian to not serve a civil license signing ceremony?? Christians are free to engage in legal commerce and gay wedding cakes are part of legal commerce. So in 1920 a majority of WASPs supported Prohibition but today I know Christians that don't drink but they don't believe we shouldn't have bars and restaurants that serve alcohol...they probably would like to see fewer liquor stores but that is about it.

  • NOVA Lawyer||

    Um, no one is saying that "you cannot as a cake baker refuse to celebrate a same-sex wedding /at all/!"

    I don't think selling a generally available widget to someone who will use the widget in a wedding is "celebrating" the wedding. Is the electric company that sells them electricity to light the venue "celebrating" the wedding? Is the balloon company that sells the balloons to decorate the reception hall "celebrating" the wedding? Is the fork/plate/chair rental company that rents out forks, plates, or chairs for use in the wedding or the reception "celebrating" the wedding?

    There are non-frivolous, libertarian arguments that businesses should generally be able to pick and choose who to serve based on any criteria or no criteria, but it is frivolous to say the gas station was forced to "celebrate" a same-sex wedding because a gay couple wanted to buy gas there on the way to their honeymoon and a local ordinance made it illegal to discriminate based on sex or sexual orientation.

    The law at issue does not force any baker to "celebrate" same-sex weddings.

  • Krayt||

    Umm...that was what the whole article was about. "Leftists" get cheered when they refuse to use their expressive creativity to make dresses for Melania and Ivanka for fear of being seen as celebrating approval of Trump and his statements.

    Now perhaps people think it ok for government to override this impulse at will, but it most certainly is using force.

  • NOVA Lawyer||

    I took issue with Pox's formulation of the question as whether baker's are being forced to "celebrate" a same-sex marriage. Bakers might be forced to bake a cake which would be used by someone else in a celebration, but the baker is not being forced to celebrate. They are being forced to bake. These are two different things.

    Krayt: The "Leftists" are probably not worried about being seen as "celebrating" anything, rather, they don't want to be associated with the Trump administration and/or want to make an affirmative statement that they oppose the Trump administration. This has analogies to the cake baking case, obviously, but couching the argument in terms of being forced to "celebrate" is abusing the English language and muddies rather than clarifies.

  • Ken Arromdee||

    Wedding cakes are not "generally available widgets". They're specifically tailored to the customer and situation each time.

  • NOVA Lawyer||

    Ken: Not necessarily. Some are available off the shelf, others are available from predetermined designs, others are "specifically tailored". I likely agree with you that specifically tailoring a cake for an event to which you do not want to lend your creative talents is treading too far into First Amendment territory, but not all wedding cakes are specifically tailored. But your comment indicates you likely agree the off-the-shelf cakes should not be subject to the conscientious objection exception to anti-discrimination laws. Otherwise, why object to the widget characterization?

  • Rossami||

    And there's the problem, NOVA Lawyer. You "don't think selling a generally available widget to someone who will use the widget in a wedding is 'celebrating' the wedding" but the cake bakers do hold that position as a matter of their sincerely held religious beliefs.

    And per Supreme Court guidance (and lots of other rational thought), you can challenge whether someone's claimed beliefs are truly sincerely-held but you can not challenge the beliefs themselves. Your opinion on whether their beliefs are based in religious scripture, logic, etc are irrelevant. Religious beliefs are deeply individual and not subject to contradiction in a secular court.

    Based on all the evidence in the case, the bakers in this case really do sincere believe that selling the case makes them part of the celebration. (They also challenge your description of their custom cake decorating as "a generally available widget" but that's beside the point for now.) Accept their religious belief as a given. Then tell us how this law does not compel them to violate their (self-defined and maybe idiosyncratic but nevertheless legal) religious beliefs.

    Or, if you have evidence that their alleged religious belief is a mere pretext or insincerely held, present that evidence.

  • NOVA Lawyer||

    Rossami: No, the cake bakers' opinion on whether they are being forced to "celebrate" anything really doesn't carry weight. Their religious belief that baking a cake is immoral when the cake is intended for a wedding they find immoral does carry weight and is beyond judicial inspection (absent evidence of insincerity). They can be sour and use their own speech to denigrate SSM while they bake. They are not forced to "celebrate." Celebrate has a meaning. Being forced to design, bake, and/or sell a cake, while it might violate your religious beliefs, is not being forced to "celebrate."

  • PoxOnBothYourHouses||

    NOVA Lawyer: "Um, no one is saying that "you cannot as a cake baker refuse to celebrate a same-sex wedding /at all/!""

    That is /precisely/ what the bakers are being told. You /must/ on request create a custom cake that would celebrate a same-sex wedding. If you do not, we will force you to comply, including getting staff training and filing quarterly reports on how you treat customers. If you continue to resist, we will run you out of business. That was what the Colorado Civil Rights Commission said the state's Anti-Discrimination Act required; and it ignored both free exercise of religion and free speech rights.

    Timeline of case from Fox news

    NYT coverage of discussion at the Supreme Court

  • NOVA Lawyer||

    Pox: Baking != celebrating. The law requirers bakers to sell cakes regardless of the sexual orientation of their customer. It does not require them to "celebrate." That the baker's have a religious belief that they are somehow complicit in the immorality of celebrating a SSM does not equate to forced celebration. I think you and others use "forced to celebrate" precisely because that formulation assumes the conclusion. No, you can't be forced to celebrate under the First Amendment (i.e., cannot be forced to engage in expressive speech with which you disagree). In fact, the question at issue is whether baking a wedding cake is sufficiently expressive to constitute speech (e.g., celebratory speech). For an off-the-shelf cake (i.e., a widget), I think the answer is obviously not (and the bakers agreed before the Supreme Court). For a custom designed cake, the issue is much closer.

  • Rossami||

    Baking =/= celebrating for you, NOVA Lawyer. You are never going to get anywhere in this debate until you recognize that other people disagree. By all available evidence, those bakers do sincerely believe that baking and decorating = celebrating.

    You may disagree. I certainly do. But neither of us gets to second-guess their interpretation of their own religious beliefs.

  • NOVA Lawyer||

    Rossami,

    You are wrong.

    Again, the bakers are free to believe baking for a celebration (by others) of SSM is sinful and the courts must respect that absent evidence of insincerity, etc. However, because they disapprove, their baking, even if they do it because "forced" (especially if forced), it is not "celebrating" by any reasonable dictionary meaning of the term "celebrate." I presume they have dictionaries where you live.

    (For example, working in a munitions plant is not killing people, but Amish people may well believe they are morally complicit in the inevitable killing if they help build munitions. But to say the Amish worker is being "forced to kill" just fucks with the English language. The bakers presumably have a sincere religious belief that they are complicit in SSM if they bake for an SSM celebration (by others), but they, quite clearly, are not celebrating SSM.)

    Alternatively, maybe by "celebrate" you mean that designing/baking a cake is a type of speech and, as substantive speech, may not be compelled (whether for an SSM or any other reason absent a compelling justification, narrow tailoring, etc.). But then saying the baker is being forced to celebrate is not stating a fact, it is taking a position in the legal argument regarding whether designing/baking cakes is speech for purposes of First Amendment free speech standards.

    This is why people use Newspeak, to hide the ball and rig the game. The bakers are not being "forced to celebrate" anything.

  • Lee Moore||

    NOVA Lawyer : However, because they disapprove, their baking, even if they do it because "forced" (especially if forced), it is not "celebrating" by any reasonable dictionary meaning of the term "celebrate." I presume they have dictionaries where you live.

    You may have a dictionary, but do you actually open it and read the entries ?

    "celebrate" doesn't just mean " have a happy party" it has more solemn meanings :

    publicly acknowledge (a significant or happy day or event) with a social gathering

    perform (a religious ceremony)

    clearly indicating giving public acknowledgement or recognition to something. Deriving from :

    mid-15c., "to perform publicly with appropriate rites," originally of the Mass, from Latin celebratus"much-frequented; kept solemn; famous," past participle of celebrare "assemble to honor,"

    which is precisely what the bakers don't want to do. For their production would have a central place at the rite in question.

    "Forced to celebrate" exactly describes the situation of someone required against their will to publicly acknowledge or honor an event or ceremony of which they disapprove. Imagine yourself required to attend Trump's inauguration if you find this difficult.

  • NOVA Lawyer||

    Lee Moore:

    Good job!

    Bakers, when baking a cake, are not publicly acknowledging anything, they are in their kitchen baking.

    Bakers, quite obviously, do not perform a religious ceremony.

    "which is precisely what bakers don't want to do"

    Which they don't, at all.

    "For their production would have a central place at the rite in question."

    You say this as if with a grand flourish, but your conclusion does not follow from this fact. That a product they created at any earlier time is used at celebratory event doesn't mean the bakers are "celebrating" anything, not any more than the building's architects are or were. They are somewhat tangentially connected to the celebration, but they are not celebrating by baking a cake.

    "Imagine yourself required to attend Trump's inauguration"

    The bakers aren't being required to attend or publicly acknowledge anything. You aren't very good at this.

    Thank you for providing the dictionary definitions which make my point precisely. I am not sure how you thought the dictionary supported your point. (Nobody disputed that a wedding is a celebration, which seems to be your point.)

  • Lee Moore||

    Alas, NOVA, you're down in print as insisting :

    However, because they disapprove, their baking, even if they do it because "forced" (especially if forced), it is not "celebrating" by any reasonable dictionary meaning of the term "celebrate."

    demonstrating that you imagine that to celebrate you must be jolly - that "because they disapprove" makes it impossible for them to "celebrate."

    That turns out not to be the case. Consequently you were unwise to taunt Rossami for weak dictionary skills. And unwiser yet to try to blow smoke to cover your embarrassment. But if, as I hope, NOVA connotes youth, the years may temper a tendency to impetuosity. If it's something to do with Northern Virginia rather than youth, then it may be too late :)

  • NOVA Lawyer||

    Lee Moore,

    If the point of your comment was only that disapproval does not necessarily entail that a person is not being forced to celebrate, fair enough. But not terribly relevant.

    Even granting that one can be forced to celebrate something of which they disapprove, baking a cake is still not "celebrating" under the circumstances of this case (the point I made) using the definitions you provided.

    You are in print:

    "which is precisely what the bakers don't want to do. For their production would have a central place at the rite in question."

    They aren't celebrating the wedding. The production of the architect (dead), the seamstress, and the farmer who grew the flowers has a "central place at the rite in question" but none of them are celebrating the wedding. That is my point. It stands.

    Schrodinger's Kitchen:

    On the Saturday before this year's Super Bowl, he is asked to bake, and does bake, a specially designed cake. The cake will have a central place in either a Monday night celebration of the Patriot's Super Bowl win or a Monday night celebration of the Eagle's Super Bowl win. On Saturday, was the baker in some metaphysical quantum state where he was simultaneously celebrating both a Patriot's and an Eagle's win? Or is he just baking a custom cake that someone else will use in a celebration? Obviously, the latter. He may or may not object to baking a cake for either or both of these parties, but his objection isn't to being forced to celebrate.

  • Josh R||

    Rossami, because the Colorado law is likely neutral towards religion, this is a Freedom of Speech case, not a Free Exercise of Religion case. Your claim that we have to accept the baker's opinion that he is celebrating the wedding only applies to a Free Exercise case.

  • PoxOnBothYourHouses||

    "For an off-the-shelf cake (i.e., a widget), I think the answer is obviously not (and the bakers agreed before the Supreme Court). For a custom designed cake, the issue is much closer"

    The case does not concern an off-the-shelf product. I don't know how many people would argue for the ability to not sell such an item, but I have certainly never indicated anything like that.

    The case concerns the design and creation of a custom product that is specific to the event in question, i.e., a same-sex wedding. The state of Colorado has ruled that the baker /must/ create it, using whatever elements the customers desire. The cake is part of the celebration and the baker is compelled to take part in it or forfeit his business.

    For a free-speech advocate like me, that is clearly unconstitutional -- and hateful --
    compelled speech.

  • Josh R||

    Once again, which you have yet to address, doesn't your doctrine mean the hairstylist, jeweler, makeup artist, chef, tailor, caterer, landscaper, lighting designer and event planner all can claim compelled speech exemptions in many circumstances too?

    And, they can do so for more than just weddings including events such as birthdays, baby showers, funerals and anniversaries. And, they can do so if they object to the race, national origin or religion of the events' participant as well.

  • swood1000||

    PoxOnBothYourHouses:

    Yes, there is a difference. The cake bake penalty is much more onerous -- draconian actually -- for much less offense.

    Less offense because lgbt discrimination is less of an offense than racial discrimination?

    According to the Brief For Petitioners Phillips has avoided the problem by shutting down his wedding business completely, resulting in a 40% reduction in his income. If he pays taxes at a rate of 25% then this results in an after-tax reduction of 30%.

    Why do you say that this penalty is so much more draconian than the reduction suffered by Bob Jones University? They were forced to pay income tax, social security tax, unemployment tax, etc., in addition to however much their charitable contributions were reduced due to the loss of the charitable deduction for their donors.

  • PoxOnBothYourHouses||

    swood1000: "Less offense because lgbt discrimination is less of an offense than racial discrimination?"

    No.

    Less offense because the baker's actions had only symbolic effect -- not stopping a same-sex marriage, or its celebration, or even the couple's getting a wedding cake (in fact - they could even get an off-the-shelf wedding cake from Mr. Phillips). Whereas the Bob Jones rule disallowed actual interracial dating and marriage among students who wanted its services.

    More draconian in that BJU can continue with their stupid rule as long as they don't mind losing the tax benefit, whereas Mr. Phillips cannot follow /his/ rule at all, not and stay in business.

  • swood1000||

    Whereas the Bob Jones rule disallowed actual interracial dating and marriage among students who wanted its services.

    But this didn't keep these people from interracial dating or marriage. There were plenty of other colleges they could attend.

    More draconian in that BJU can continue with their stupid rule as long as they don't mind losing the tax benefit, whereas Mr. Phillips cannot follow /his/ rule at all, not and stay in business.

    BJU could continue their rule if they were willing to accept the financial penalty. Phillips can follow his rule if he is willing to accept a financial penalty (40% reduction in income). Phillips will be excluded from selling wedding cakes and BJU was excluded from whatever the taxes they paid would have financed.

  • PoxOnBothYourHouses||

    swood1000: "Phillips can follow his rule if he is willing to accept a financial penalty (40% reduction in income)"

    Again, that's not right. BJU can keep doing what they do. Phillips cannot. BJU can stay in the fundamentalistic college business, with any doctrine they desire. Phillips has to get out of the wedding-cake business, his "doctrine" be damned.

  • Gordito||

    I think the question would come down to whether, by providing an education to a given person, a university is also making an expressive statement (presumably of approval) regarding that person's choices.

    A good illustration would be to consider the differences between the following:

    1) Baker 1 refuses to bake a cake for a birthday party ordered by homosexual parents for their child, on the grounds that he does not support same-sex marriage.

    2) Baker 2 accepts the clients from Baker 1, but refuses to bake a cake ordered by the heterosexual parents of one member of a homosexual couple for the same-sex wedding, on the grounds that he does not support same-sex marriage.

    Fundamentally, Baker 1 is discriminating against the sexual orientation of the prospective customer, while Baker 2 is refusing to make a statement of approval for something of which he disapproves, regardless of the characteristics of the customers. In this way, the bakers' expression relates directly and intimately to the service he is providing.

    Returning to the original example, I can't see a way in which the University's admission practices are in any way to the nature of the applicant's marriage, much less a direct expression of approval by the University.

  • swood1000||

    I think the question would come down to whether, by providing an education to a given person, a university is also making an expressive statement (presumably of approval) regarding that person's choices. …Returning to the original example, I can't see a way in which the University's admission practices are in any way to the nature of the applicant's marriage, much less a direct expression of approval by the University.

    Suppose the religious university is a monastery preparing people to become Catholic priests, and that they say that only those who accept and obey certain religious precepts can attend the university. Let's pick something less inflammatory, such as that students must profess a belief in God. Would it not infringe on their free exercise of religion to order them either to accept students who do not believe in God or to pay a fine?

    Masterpiece Cakeshop is both a Freedom of Speech and a Free Exercise case. The government is saying that they have to either agree to curtail their first amendment rights or pay a fine.

  • PoxOnBothYourHouses||

    "The government is saying that they have to either agree to curtail their first amendment rights or pay a fine"

    No. Not disagreeing with the gen eral thrust of your comment, but on a detail: A fine would itself be unfair, but they have to curtail their first amendment rights or be driven from business. On a single "offense," they will have to pay the fine even /if/ they swear they'll give up their 1A rights. And -- in at least one of these cases (not sure if it is this one) -- the person will have to have to allow a reeducation program for the entire staff.

  • Krayt||

    Forced reeducation programs are fine as long as most people think...

    Oh, dear.

  • swood1000||

    A fine would itself be unfair, but they have to curtail their first amendment rights or be driven from business.

    Not really driven from business. According to the Brief For Petitioners Phillips has been able to stay in business by shutting down the wedding part of his business, reducing his income by 40%.

  • PoxOnBothYourHouses||

    "they have to curtail their first amendment rights or be driven from business."

    Re-read that sentence. If he continued to try to assert his 1A rights, he would /indeed/ be driven from business.

    With his free exercise and freedom of speech rights abrogated, he followed the only path open to him without closing down entirely -- getting out of the wedding cake business.

  • swood1000||

    "they have to curtail their first amendment rights or be driven from business."

    Re-read that sentence. If he continued to try to assert his 1A rights, he would /indeed/ be driven from business.

    The 1A rights that Phillips asserts are (a) that he should not be subjected to compelled speech, and (b) that his right to free exercise of religion not be violated.

    If Phillips were to give up the wedding cake portion of his business then his 1A rights would not be curtailed and he would not be driven from business.

  • PoxOnBothYourHouses||

    swood1000: "If Phillips were to give up the wedding cake portion of his business then his 1A rights would not be curtailed and he would not be driven from business."

    Oh please! Let me translate your sentence: "If only he doesn't speak his own thoughts, he can say anything he wants."

  • swood1000||

    PoxOnBothYourHouses:

    Oh please! Let me translate your sentence: "If only he doesn't speak his own thoughts, he can say anything he wants."

    A better translation is that the choices before him are not limited to (a) curtailing his first amendment rights, and (b) being driven from business, and I am not defending this as an example of robust first amendment freedom.

    The first amendment violation he claims is not that he is being prevented from speaking but that he is forced to speak. The government is saying that Phillips has to either agree to curtail his first amendment rights (i.e., agree to make the custom cake for the same-sex wedding) or suffer an economic penalty (give up that portion of his business). This is similar to the offer made to Bob Jones (whose economic penalty was increased taxes, and who also wasn't driven from business).

  • Randomutation||

    In the Bob Jones case, the activity the university objected to (interracial dating/marriage) was not at all related to the service they denied (education). Compare this to Masterpiece Cakeshop case where the service denied (creating a cake celebrating SSM) was directly tied to the activity objected to (celebration of SSM). For Bob Jones U, the requested service (education) did not involve the creation of anything that would express a positive sentiment toward interracial marriage. But for Jack Phillips, the requested service would involve the creation of a cake expressing a positive sentiment toward same sex marriage.

  • swood1000||

    In the Bob Jones case, the activity the university objected to (interracial dating/marriage) was not at all related to the service they denied (education).

    But isn't a religious organization entitled to insist that to be accepted at its institute the applicants must adhere to the tenants of the religion? Suppose the government said that a Catholic Monastery would have to pay a fine if it refused to accept applicants to its priesthood program who refused to declare a belief in God. Would you see no first amendment issue with that? The Supreme Court in Bob Jones did refer to the belief at issue there as a genuine religious belief.

    For Bob Jones U, the requested service (education) did not involve the creation of anything that would express a positive sentiment toward interracial marriage. But for Jack Phillips, the requested service would involve the creation of a cake expressing a positive sentiment toward same sex marriage.

    So the Bob Jones first amendment issue doesn't have the importance of the Jack Phillips first amendment issue, because free speech is more important than free exercise?

  • Randomutation||

    Yes, although Jack Phillips attorneys argued both freedom of religion and freedom of speech in their brief to SCOTUS, it is very unlikely SCOTUS would rule in favor of the religious argument. More likely to decide on the basis of speech - where there is no equivalent precedent to Smith.

    As far as the monastery question, I'll have to think about that and get back tomorrow

  • Randomutation||

    On the monastery question, yes, a religious organization is "entitled to insist that to be accepted at its institute the applicants must adhere to the tenants of the religion." And the Catholic Monastery would be entitled to insist that applicants believe in God. But in the Bob Jones case the question was whether the university was entitled to tax exempt status. As noted in the opinion the intent of the tax exemption policy was that a tax exempt institution would be doing something "charitable", benefiting society. For Bob Jones U to be practicing racial discrimination contrary to established public policy, the benefit to society was deemed negative – hence the removal of tax exempt status was deemed justifiable, and within the intent of the applicable law.

  • swood1000||

    Randomutation:

    My original comment was a doubt that the Supreme Court could accept Prof. McConnell's thesis and be able to reconcile this with the result in Bob Jones. You distinguished them by saying that

    In the Bob Jones case, the activity the university objected to (interracial dating/marriage) was not at all related to the service they denied (education).

    I replied that the activity Bob Jones objected to was related to their religious beliefs. You then point out that the government is entitled to penalize someone in the furtherance of public policy it wishes to advance. But this does not distinguish Bob Jones from Masterpiece Cakeshop. The same is true there.

  • Randomutation||

    1) Bob Jones U argued (and lost) on the basis of freedom of religion. Prof. McConnell's argument is based of freedom of speech. Two different things, each with different judicial standards, tests, and levels of scrutiny. You can't just arbitrarily take a religious freedom ruling and apply it one to one with a free speech claim.
    2) There was no doubt that the policy at Bob Jones U was racially discriminatory, and therefore warranted a very compelling government interest. The discrimination ruling against Masterpiece however is very dubious (the verdict was based on "identity" arguments Justice Kennedy has characterized as "too facile"). There is no reason why this superficial identity sort of "discrimination" should warrant the same government interest as the very real racial discrimination that was practiced at Bob Jones U. Simply labeling something as "discrimination" does not automatically put it on the same level as racial discrimination.

  • swood1000||

    1) Bob Jones U argued (and lost) on the basis of freedom of religion. Prof. McConnell's argument is based of freedom of speech. Two different things, each with different judicial standards, tests, and levels of scrutiny. You can't just arbitrarily take a religious freedom ruling and apply it one to one with a free speech claim.

    Of course there are different rules governing speech and religion. The question was what exception to the free speech right made this case different from the religion case.

    The discrimination ruling against Masterpiece however is very dubious (the verdict was based on "identity" arguments Justice Kennedy has characterized as "too facile"). There is no reason why this superficial identity sort of "discrimination" should warrant the same government interest as the very real racial discrimination that was practiced at Bob Jones U.

    I agree that this is one of the features of Masterpiece that could be used to distinguish it from Bob Jones. The difficulty, though, is that they would be saying that discrimination because of interracial marriage is the same as discrimination on the basis of the person's race, but that discrimination on the basis of a gay wedding is not discrimination on the basis of the person's sexual orientation. Why the difference in treatment?

  • Randomutation||

    That's where intent could be the deciding factor that distinguishes the two cases. Is the defendant's opposition to IRM a surrogate for white supremacy? If yes, then it should qualify as discrimination. If the same question posed about a defendant in an SSM case yields a different answer, then one could rule against the 1st defendant, yet rule in favor of the 2nd defendant without being inconsistent

  • PoxOnBothYourHouses||

    Of course the Bob Jones case actually came up in Obergefell.

    From the WaPo account:

    "Here is an exchange between Alito and Solicitor General Donald B. Verrilli Jr., arguing for the same-sex couples on behalf of the Obama administration.

    "Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax­ exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same­-sex marriage?

    "General Verrilli: You know, ­­I don't think I can answer that question without knowing more specifics, but it's certainly going to be an issue. I don't deny that. I don't deny that, Justice Alito. It is –it is going to be an issue."

    A follow-up question then came up about whether a clergy would have to perform a same-sex wedding. Everyone said "no" to that, so the line in the sand seemed to be drawn at official clergy actions.

    WaPo accountof Bob Jones discussion in Obergefell

  • Brett Bellmore||

    The thing about lines in the sand, is that you can reach down while nobody is looking, wipe them out, and redraw them someplace else.

    I really would not recommend that anybody place too much reliance on that line in the sand. The step from forcing somebody to bake the cake or cease baking cakes, and forcing somebody to perform the marriage, or cease performing marriages, is a very small step.

  • Mesoman||

    The next step is requiring churches to provide their meeting rooms for same sex weddings, if they provide them for, say, the VFW to meet.

    Basically, modern public accommodations law pretty much removes property rights, in the name of the cause de jour.

  • PoxOnBothYourHouses||

    Yes! You've spotted probably the actual suit that will be the camel's nose in the tent.

  • swood1000||

    A follow-up question then came up about whether a clergy would have to perform a same-sex wedding. Everyone said "no" to that, so the line in the sand seemed to be drawn at official clergy actions.

    How many times have we seen legislation passed or amendments ratified by people who firmly believed that it would have effect X, and then later have the court declare effect Y? Many people even hail it as a feature and not a bug that the Supreme Court is not moored to what was originally intended.

  • PoxOnBothYourHouses||

    Brett Bellmore: "I really would not recommend that anybody place too much reliance on that line in the sand."

    swood1000: "How many times have we seen legislation passed or amendments ratified..."

    ==> I agree. I've run across a press account (can't find it right now) that hypothesized the exchange helped get Donald Trump elected, because evangelical leaders believed the momentum was to take away /all/ religious rights, /even/ such things as deciding whom the clergy could decide to marry. Therefore they would back a deeply-flawed Donald Trump rather than any person aligned with the Democratic party, home of their religious enemies.

    I'm not so sure about that. I think a Bernie Sanders could have won blue-collar evangelicals over with his economic message (as flawed as I think it was), but it's an interesting thought.

  • Joe_JP||

    Many would think there was a fundamental interest to address discrimination generally but it is true that race is treated the highest degree of care (compelling state interest test) while the Supreme Court has not even fully held that to be the line for sex and surely not sexual orientation. Also, dealing with racial discrimination in education might be argued to be a more compelling problem than discrimination in bakeries. Anyway, using tax policy to address an issue isn't the same thing as requiring service.

  • swood1000||

    the Supreme Court has not even fully held that to be the line for sex and surely not sexual orientation.

    That's true, but could the Supreme Court come right out and say that discrimination on the basis of sexual orientation is not as great an evil as discrimination on the basis of race? Are we to have semi-protected classes, or discrimination-lite?

    Anyway, using tax policy to address an issue isn't the same thing as requiring service.

    Reminds me of the argument as to the difference between a tax and a penalty.

  • AmosArch||

    I see 'enforcing entitlement to cakes for same sex weddings is a basic function of minimalist individual liberty focused government but maintaining territorial borders is not' is still a bedrock pillar in the 'libertarian' philosophy of Eugene and Co.

  • swood1000||

    You must have missed the part explaining that Eugene filed an amicus brief opposing the cakemaker's First Amendment claim in Masterpiece Cakeshop.

  • Brett Bellmore||

    I think you need to reread what Amos wrote. You two don't appear to me to be disagreeing.

  • swood1000||

    I think you need to reread what Amos wrote. You two don't appear to me to be disagreeing.

    I thought he was saying that "enforcing entitlement to cakes for same sex weddings" is a bedrock pillar in Eugene's philosophy, whereas Eugene is actually arguing against such an entitlement. No?

  • Bubba Jones||

    No. Eugene is sharing an article written by someone else. Eugene supported the State in this case, denying that baking is a 1st amendment expression.

  • swood1000||

    Mea culpa. I got myself turned around with too many negatives.

  • Larvell Blanks||

    Force bakers to make cakes for gay weddings they disapprove of -- nothing to do with free speech, how could you possibly even think that?

    Restrict immigration from some, but not all, countries that have majority Muslim population, along with other countries that are not majority Muslim -- clear violation of freedom of religion (but only if we suspect the president doesn't really like Islam that much).

    Not your father's libertarianism!

  • MonitorsMost||

    The law is not always libertarian. Professor Volokh has made it clear on several occasions that anti-discrimination laws focused on private actors might not be the best policy. But bad policy != unconstitutional, regardless of what some Warren Court members may have thought.

  • Larvell Blanks||

    The law is not always libertarian... But bad policy != unconstitutional

    I never said it was, I was just remarking on the peculiar combination of flawed constitutional reasoning in furtherance of non-libertarian results by supposedly libertarian (and quite bright) thinkers. In fact, the second example I gave (immigration restriction) may very well be bad policy, but it takes a great deal of contortion to turn it into an unconstitutional violation of the freedom of religion (although some on this blog are willing to so contort, and it's hard to avoid the conclusion that they do so mainly because they think it's bad policy). And I realize that Eugene and Ilya are different people, but the exceedingly dismissive approach to the free speech clause seems greatly at odds with the overly broad and strained construction of the free exercise clause in connection with immigration.

  • Bubba Jones||

    So if Eugene chooses to leverage a bad law to support his preferred victim group, does that make him no better than any other opportunistic fascist?

  • Krayt||

    It makes him no better than any other situational ethics jockey.

    Either putting your custom (not off the rack manufacturing) artistry to work for certain people is seen as supporting their words and activities, or it isn't.

  • MatthewSlyfield||

    Like an inaugural gown, a wedding cake is an expression of its designer's "values" and "point of view"—even if the dress contains no words and no symbols specifically referring to Trump. It is the event at which the dress (or cake) would be used that supplies the expressive context—not necessarily anything particular to the dress (or cake).

    This is dead flat wrong. Designer dresses and custom wedding cakes are works of art that have expressive context ndependent of the events at which they are used. In this regard they are no different than a painting or a sculpture.

  • Bubba Jones||

    Therefore you can force them to be displayed at a gay wedding?

  • MatthewSlyfield||

    Um no. Where the fuck do you get that out of my comment?

  • Rossami||

    I must admit that I got that out of your comment, too. I inferred it from your "dead flat wrong" wording.

    Perhaps what you meant to say is that designer dresses and custom wedding case may have expressive content independent of the events.

    But (like paintings and sculptures), it is also true that they may have even more expressive content based on the context - that is, the event.

  • MatthewSlyfield||

    No, they absolutely have expressive content independent of the events, even if the events for which they are used add additional expressive content.

    However, it's precisely because they have inherent expressive context (independent of use) that they shouldn't be subject to public accommodations laws.

  • Brett Bellmore||

    What bothers me about it, is that the doctrine basically says that anybody but artists are subject to forced labor. Who the heck cares if the work is expressive? Digging a ditch isn't expressive, but that doesn't mean that there's nothing wrong with forcing somebody to dig one for you.

    These fundamentally aren't 1st amendment cases, they're 13th amendment cases. But the government really doesn't want to admit that they've gradually slipped into enacting involuntary servitude in the name of fighting discrimination.

  • Lee Moore||

    Well I half agree. I agree that there shouldn't be a difference between declining to sell a fancy artistic wedding cake, and declining to sell a carton of milk. But I don't need to venture as far as the 13th Amendment to get there. Refusing to sell something to someone will often be an expressive act, regardless of the artistic merits of the product or service refused. "Up yours" can be conveyed in a very large number of ways, only a very small percentage of which require artistic training.

  • swood1000||

    These fundamentally aren't 1st amendment cases, they're 13th amendment cases.

    I really don't see where you get that. The owner of the cakeshop can successfully avoid any involuntary servitude by simply refusing all requests for custom wedding cakes, as he has been doing since this case began. He can also just pay the fine and continue as before. Do you really think this bears any resemblance to what was intended to be prohibited by the 13th amendment? Is Roe v. Wade also mandated, otherwise women will be subjected to involuntary servitude?

  • Brett Bellmore||

    "You don't have to dig this specific person's ditch, you can give up your job as a ditch digger, instead, and go do something else."

    So the dude stops being a ditch digger, sells his backhoe at a loss, and learns to bake cakes?

    Look, nobody has to do a specific thing, and yet, everybody has to do something, and the reach of public accommodation law just keeps growing like a cancer. So it's no answer to say that you can chose some other service to be ordered to involuntarily provide.

  • swood1000||

    I share your goal, just not the means of achieving it. Calling this involuntary servitude is no closer to the original meaning of the constitution than the logic used in Obergefell was. No less of a "judicial Putsch" (as Scalia put it) would be involved. Maybe it's come to that and it's going to be brute force constitutional adjudication all the way out.

    Instead of going down that road why don't we just find a first amendment approach for this one?

    Otherwise, every requirement we place on the way somebody does his job suddenly involves us in an involuntary servitude argument. Is an electrician required to use a certain type of circuit under certain conditions or lose his license? Involuntary servitude!

  • Sebastian Cremmington||

    Omg, these gays are forcing their money on me so I can provide for my family—WHY HAVE YOU FORSAKEN ME MY LORD!!!

  • Brett Bellmore||

    No, I'm sure that Masterpiece Cakes would be glad to take the money, if it weren't coupled to an obligation to provide the cake.

  • Sebastian Cremmington||

    I also can't believe the gay couple wouldn't just write a nasty review on Yelp and move along.

  • swood1000||

    I also can't believe the gay couple wouldn't just write a nasty review on Yelp and move along.

    Because nasty Yelp reviews don't strike fear into people's hearts like legal proceedings do. It's the same technique as was used during the Reformation by the Catholics and Protestants against each other. Make a public spectacle of a dissenter from the required belief system, in order to encourage everyone else to stay in line.

    I remember being told when I visited England about how they used to stretch a recalcitrant "papist" on a rack and then parade him through the streets, with his agonies being aggravated with each jolt from the uneven cobblestones. Of course, the excesses of the Catholics, for example during the Inquisition, are well known. A proud tradition now being utilized with great zeal by today's enforcers of how one must think.

  • Sebastian Cremmington||

    Just as many people support the baker that is turning away business and Memories Pizza came out ahead thanks to a GoFundMe account. In general Christianity preaches to engage in legal commerce and to take pride in one's job whatever that might be. This baker is just being a dick but the gay couple are also being dicks.

  • MatthewSlyfield||

    Except it's the defendants in these cases, not the government that are making them 1st amendment cases.

    Start your own bakery get sued and pay your lawyer to contest public accommodations law on 13th amendment grounds if that's how you think it should be done.

  • jph12||

    "There do not seem to have been any angry letters to the editor. No one insisted that a dressmaker who enters commerce has an obligation to serve all comers and forfeits any right to withhold services on moral or ideological grounds. No one wrote that designing a dress is not a form of expression."

    I'm guessing he didn't read the comments.

  • Bubba Jones||

    Why is this not the obvious answer for anything who has given this more than 10 minutes of thought?

  • Sam Gompers||

    "The legal issue in that hotly-contested case is whether a Colorado baker named Jack Phillips can be punished for refusing to create a custom cake for an event of which he morally disapproves."

    Strange that everyone in the world understands that this is a custom wedding cake except for Noted First Amendment Scholar, Volokh and his partner in crime Carpetner.

  • Lee Moore||

    It has been argued, nonetheless, that the Masterpiece Cakeshop case is not really about freedom of expression. The Colorado law, according to an amicus brief written by a distinguished lawyer and academic, "does not regulate the creation of messages," but only the selection of customers. The challengers to the Colorado law "have a First Amendment right to pick their message, but not to choose their customers based on sexual orientation."

    This seems a bit weak to me. Choosing your customers may sometimes not be expressive - eg you choose them or reject them because you believe or doubt their ability to pay - but when you deny service to an African American, or a gay person, or a cop, or a Muslim, or a member of the Trump family you are expressing your opinion that you don't like or don't approve of these people. To say "I don't approve of Ivanka and I don't want to sell to her" and then going ahead and selling to her is a performative contradiction. Your disapproval of her is well expressed by boycotting her.

    So there may (or may not) be all sorts of good 1st Amendment case law as to when and whether declining someone's custom shouldn't be allowed notwithstanding the 1st Amendment, but that surely depends on cantering through the relevant tests of when speech restrictions are OK rather than pretending that declining custom is not, of itself, often an expressive act.

  • Brett Bellmore||

    But Masterpiece Bakery didn't deny service to a gay person. They denied a specific service, cakes for SSM, to everybody.

    The gay couple could have sent a straight friend to buy the cake for them, and the sale would have been denied if he'd admitted it was for a SSM. The gay couple could have come in and bought a wedding cake for some straight friends getting married, and met with no obstacle.

    It wasn't the identity of the purchaser, but the purpose of the cake, that they objected to.

  • Lee Moore||

    I know. My point is that even if they had denied service to a gay person qua gay person that would still be an expressive act. The expression being "I don't approve of gay people." The expression "I don't approve of gay people" may or may not be protected speech under whatever runes judges refer to, but the notion that it isn't speech because it doesn't involve curly icing is misconceived.

    "I don't approve of same sex weddings" expressed by declining to construct and sell a curly iced wedding cake and "I don't approve of gay people" expressed by declining to sell a can of soda are both expressive acts. One may be protected under the 1st Amendment and the other may not, for reasons that great legal minds might be able to explain, but should the explanation rest on the notion that the former is speech but the latter is not, the explanation is faulty.

  • Krayt||

    Is the creativity the speech, or is the creativity in service of a celebration (gay wedding, or Trump inauguration) the speech?

  • Lee Moore||

    The speech (whether in the form of words, pictures or action) is the speech. Creativity has nothing to do with it.* Unoriginal, banal repetition is still speech.

    * nothing to do with what is speech. It may have something to do with what the Supreme Court thinks is protected speech, but that's a different question.

  • Eric VonSalzen||

    Yes, Brett's hypo is right on point. The baker wasn't "discriminating" against the customer but the message the customer wanted to convey.

    The greater problem is that our "public accommodations" laws are all based on the model of laws intended to break down barriers against Blacks in Jim Crow states, where strong public and private forces made it impossible for Blacks to access many services and facilities. Those problems simply don't exist in most places for most minorities today. The gay couple in this case certainly could have found another baker to bake their cake. (If I could bake, I'd have done it, as I support and celebrate gay marriage.)

  • Michael Ejercito||

    Why would this logic not apply to refusing to bake a cake for an Orthodox bar mitzvah or a Catholic baptism?

    Or making "God hates Fags" signs for a Westboro Baptist picket?

  • Josh R||

    I think refusing to serve a bar mitzvah or baptism is a good analogy, and doing so would discriminate on the basis of religion even if the service provider only objects to the messages in those ceremonies and generally serves Jews and Catholics. The standard from Christian Legal Society is whether the service provider objects to conduct that is closely correlated with being Jewish or Catholic.

    On the other hand refusing to make a "God hates Fags" sign wouldn't discriminate on the basis of religion because the sign maker presumably objects to any sign that says "So-and-so hates Fags", not just God.

  • Brett Bellmore||

    "where strong public and private forces made it impossible for Blacks to access many services and facilities"

    Vital services and facilities. This isn't showing up at an emergency room with a gushing wound, and they won't treat you. This isn't even the only hotel or restaurant in town refusing to give you shelter or food when your car breaks down in a blizzard. It's a cake!

    Today's public accommodation laws aren't a solution to a hard problem. They're the 'civil rights' community's version of, "To crush your enemies, to see them driven before you, and to hear the lamentations of their women."

    It's their way of establishing that nobody else is entitled to freedom of conscience.

  • Joe_JP||

    Requiring bakeries and other "non-vital" places to serve black people isn't something that started a few years back. In the 19th Century, we had public accommodations laws that covered more than hospitals and the only inn around for miles etc. In fact, the Civil Rights Cases (1883) included theaters, not a "vital" service, and many states had laws that required service.

    Did they want to "crush" their enemies? This is the bottom of the slippery slope, I guess, where a person needing not worry about being served because of who they are is "not really a problem" we should be concerned about since they can just go some place else. This is so even when the business is licensed by the government, gets special privileges under incorporation etc.

    This is not what "freedom of conscience" means. Being in a society means following laws that sometimes clashes with other people's beliefs. Neutral anti-discrimination laws have long been understood to be acceptable here with certain exceptions for religious institutions etc.

  • ravenshrike||

    To be even more precise, they denied the service of creating any cake that took artistic effort to create. They were perfectly willing to sell any of their premade cakes or sheet cakes to the couple to use for their wedding.

  • rsteinmetz||

    I've always wondered Sophie Theallet was actually approached about making an inaugural gown, or if she sensed a good opportunity for self promotion.

  • mse326||

    I maintain this ultimately inane decision the Court has to make (is a wedding cake speech or not) is because the Court wrongly did away with Lochner and economic freedoms to contract. Perhaps there are some types of businesses where preventing discrimination is important enough (like a hotel possibly) but I don't see a cake shop as the type of business where the denial or service because of race actually oppresses anyone.

    This is the type of case that SHOULD be analyzed under economic freedom of contract not speech.

  • MatthewSlyfield||

    But the court did do away with Lochner, so we are stuck fighting these cases on 1st amendment grounds, or taking the even harder road of arguing that it's involuntary servitude in violation of the 13th amendment as suggested by Brett Bellmore.

  • Joe_JP||

    There were public accommodation laws back then too & the Supreme Court did not strike them down except when Congress was held to unduly apply them across the board in the Civil Rights Cases.

  • MightyMouse||

    The butcher, the baker, the candlestick maker, and all of them gone out to sea.

  • Longtobefree||

    The fashioning of expressive symbols cannot be compelled.

    (Unless the compelling is upon a conservative)

  • Rev. Arthur L. Kirkland||

    Quit whimpering.

    Lose the culture war with some dignity -- at least as much dignity as can be associated with backwardness, intolerance, and authoritarianism, anyway.

  • Sebastian Cremmington||

    Uh no, this is called "reverse psychology". Marriage is an asinine institution on the decline. Gay marriage was promoted by the Divorce Lawyers of America.

  • Josh R||

    One of McConnell's arguments is that Phillips isn't discriminating on the basis of sexual orientation, but is instead merely expressing his view that same-sex marriage is wrong - and thus this case is analogous to refusing to make a dress for Melania or a rally against same-sex marriage.

    But as SCOTUS noted in Christian Legal Society, "Our decisions have declined to distinguish between status and conduct in this context." That is, when a service provider categorically refuses to provide a service (in this case, making a custom cake) to any same-sex wedding, they are discriminating against gays because the conduct they object to is closely correlated with being gay. The same does not hold true for the cases that McConnell believes are analogous.

  • swood1000||

    But as SCOTUS noted in Christian Legal Society, "Our decisions have declined to distinguish between status and conduct in this context."

    But the example the Court used to explain this concept was

    "When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination."

    However, here the baker clearly distinguished between the celebration of SSM and serving individual gays. They are clearly not the same thing. Refusing the former does not necessitate refusing the latter.

  • Josh R||

    I didn't argue that refusing to serve a gay wedding necessitates refusing to serve gays in general.

  • Sebastian Cremmington||

    Which is why the baker is so dumb—same sex marriage can only decrease the amount of homosexual behavior in 2018 because that proverbial ship has sailed.

  • Brett Bellmore||

    So? If he doesn't want to be complicit in something he finds objectionable, let him not be complicit.

    Why the determination to force him to sell the cake? I think it's only to demonstrate who has the whip hand, it's just a demonstration power, nothing more.

  • GabrielSyme||

    "I think it's only to demonstrate who has the whip hand, it's just a demonstration power, nothing more."

    The Law of Merited Impossibility is action: "You Christians will never be forced to do that, but when you do, you'll totally have it coming"

  • Sebastian Cremmington||

    He finds a ceremony celebrating the signing of a civil license "objectionable" ? I just can't believe this is even an issue for both sides.

  • swood1000||

    I just can't believe this is even an issue for both sides.

    Even if you don't share the belief you should be able to understand how different religions find different things objectionable, such as eating pork to a Jew or Muslim.

  • Sebastian Cremmington||

    Except Christianity promotes engaging in legal commerce to provide for one's family. The obvious example is alcohol which at one point WASPs made illegal based on their Christian values, but now no one looks down upon Christians selling alcohol. Prior to the Civil Rights movement Christians were allowed to discriminate against black people in their business and the vast majority of white Christians in the South had no problem with it.

  • swood1000||

    Except Christianity promotes engaging in legal commerce to provide for one's family. The obvious example is alcohol which at one point WASPs made illegal based on their Christian values, but now no one looks down upon Christians selling alcohol. Prior to the Civil Rights movement Christians were allowed to discriminate against black people in their business and the vast majority of white Christians in the South had no problem with it.

    Are you arguing that biblical opposition to same-sex marriage results only from a strained and tendentious reading of the Bible, and that in this enlightened age reasonable people should be willing to abandon such beliefs that are clearly not biblical and that result only from ignorance and superstition?

    Or are you arguing that biblical precepts not in accordance with modern enlightened wisdom should be disregarded?

    Or are you arguing that Christians should show no aversion to helping to celebrate behavior they regard as sinful?

  • Sebastian Cremmington||

    In America marriage is a civil institution so gay marriage has nothing to do with religion. Two dudes signing a civil license is not a sin, and I hope you are not so naïve as to think SSM leads to more homosexual behavior. In the homosexual world marriage has nothing to do with homosexual behavior...the homosexual behavior will go on regardless of SSM.

  • bernard11||

    I don't think McConnell's comparison to the inaugural gown situation holds water. In the one case, there is a refusal to serve a specific individual. In the other, the refusal logically encompasses a large class, without reference to any individual member of the class.

    That's a big difference, and McConnell's argument seems to hinge on ignoring it. That doesn't work.

  • jph12||

    Like Soylent Green, classes are made of people. Why is discriminating against one person okay but not against a class? How big does a class have to be before you can't discriminate against its members under your theory?

  • Brett Bellmore||

    It's not so much a matter of how big a class is, as whether the judiciary likes them.

  • bernard11||

    Why is discriminating against one person okay but not against a class?

    Because discriminating against (some) classes affects large numbers of people who you are not in direct contact with and about whom you know nothing except for the attribute that puts them in that class.

    The dressmaker knows a lot about Melania, and has specific reasons for refusing to serve her.

  • jph12||

    "Because discriminating against (some) classes affects large numbers of people who you are not in direct contact with"

    No it doesn't. The only gay people who were discriminated against in this case were the couple who were denied service. Do you think gay people who have never been to Masterpiece Cakeshop could join with the plaintiffs and make this a class action?

    And, even though you reference numbers again, you still haven't answered how big a class has to be to matter.

    "The dressmaker knows a lot about Melania, and has specific reasons for refusing to serve her."

    I doubt the dressmaker knows all that much about Melania. Enough to want to refuse service, sure. But so does the baker. His reason is very specific. You just don't like it.

  • bernard11||

    Yes it does. Not this particular incident, of course, but there are plenty of anti-gay bigots around, and telling them, "Hey, it's fine," is going to affect lots of people.

    How big does the class have to be? Dumb question, but since you insist, I'll say eleven members.

  • jph12||

    "Yes it does. Not this particular incident, of course,"

    So, no, it doesn't.

    "but there are plenty of anti-gay bigots around, and telling them, "Hey, it's fine," is going to affect lots of people."

    How many anti-gay bigots own bakeries in Colorado? How many gay couples have been refused wedding cakes?

    And you don't think telling people it's okay to discriminate against people whose politics you don't like will affect a lot of people?

    "How big does the class have to be? Dumb question,"

    Your the one who keeps insisting that numbers matters and trying to justify discrimination. I think discrimination is discrimination. And I guess you've never heard the phrase, "in a class by itself."

    "but since you insist, I'll say eleven members."

    Why 11?

  • swood1000||

    But McConnell's point with both the cake and the dress is

    It is the event at which the dress (or cake) would be used that supplies the expressive context – not necessarily anything particular to the dress (or cake).

    So McConnell is saying that for First Amendment purposes the expression arises from the use of the cake at a same-sex wedding. That is the forced expression. It is not a "refusal to serve a specific individual," as shown by the fact that Phillips had no problem serving gay people. It was a refusal to be forced to express a celebration of a same-sex wedding.

  • Josh R||

    If the expression arises in how the product or service is used, rather than whether the product or service is inherently expressive, then wouldn't it also be the case that the hairstylist, jeweler, makeup artist, chef, tailor, caterer, limo driver and electrician are also being forced to express their disapproval of gay weddings?

  • PoxOnBothYourHouses||

    "from the use of the cake at a same-sex wedding. "

    In which case the same-sex couple could be refused an off-the-shelf cake. I'd think that's a bridge or two too far, even as a practical matter. And it's one Phillips is not making. He's fine with the off-the-shelf items (if my reading on this is correct). And it's a stand that might possibly eke out a 5-4 win. (though I doubt it)

  • Josh R||

    I agree that if the expression arises in how the cake is used, then an off-the-shelf cake would be expressive. And, you are correct that Phillips has conceded that off-the-shelf cakes aren't expressive. Therefore, doesn't it follow that the expression cannot arise in how the cake is used?

  • PoxOnBothYourHouses||

    Josh R: "Therefore, doesn't it follow that the expression cannot arise in how the cake is used?"

    I generally agree. One can buy an off-the-shelf item and use it any way one wants. The expression issue arises with the compelled speech -- the requirement that the baker is required to create a special item that celebrates something he finds abhorrent.

  • Josh R||

    Do we then agree that McConnell's argument (or at least his argument as interpreted by swood) is wrong?

    Assuming we are in agreement, then we can move whether creating a "special item" is the standard for compelled speech. If that is the standard, then the hairstylist, jeweler, makeup artist, chef, tailor and caterer all can claim compelled speech exemptions in many circumstances too.

  • PoxOnBothYourHouses||

    "we can move whether creating a "special item" is the standard for compelled speech."

    The question would be "to what /extent/ is this something unique for that event?" The line may be very fine and difficult to define (sorry for the rhymes), but the baker is clearly across it.

    He is compelled to create a product for a specific event, and the product will have to have visual elements specific to that event and demanded by the customers' political/moral/religious/philosophical vision of the event (else they'd just use an off-the-shelf product). I believe the couple went to a more congenial baker and got a cake with a rainbow flag motif. He's not compelled merely to bake up something but to throw himself into designing and creating something that violates his moral and religious sensibilities.

    In other cases, I'd think they would have to be taken case-by-case, with specifics. Does the caterer, for example, have standard meals the audience will be served? Does the tailor rent out tuxes from among the varieties in her shop? The jeweler's case, I would think, would be much like the baker's. Most wedding rings are ordered from catalogs. The jeweler might be compelled to inscribe them, which would cross the line. Others have brought up the limo driver, who I don't think would have much of a case, unless the customers demanded a particular uniform or wanted to decorate the limo.

    In all, as with the baker, one can't simply throw out a line without there being specifics.

  • Josh R||

    I'm not following how you have a workable standard for measuring the extent of uniqueness. Assume that in all of my other examples, an off-the-shelf product is not being used; each one has customization (standard meals aren't used, standard tuxes aren't rented).

  • PoxOnBothYourHouses||

    Josh R: "Assume that in all of my other examples, an off-the-shelf product is not being used"

    Then each of them could have a case.

    And the more I think of it the stronger I think the cases could be. If it's a 1A right versus a statutory privilege -- or even versus a right derived via substantive due process -- we should err on the side of the black-and-white enumerated freedoms of speech and conscience - or what's the 1A even for? Even here, so many people are so willing to throw that away, leaving them with what -- samizdat?

    This problem of splitting hairs come up because the public accommodations statutes do not have a clear, natural end-point of application. They were intended to pry open barriers to restaurants and motels in a section where public sentiment, law, fear of isolation and bankruptcy, and the possibility of violence, made it almost impossible for a particular group to get ordinary services.

    But there's no clear limit to /how/ minimal the "discrimination" in such services can be and still draw down the law. In the middle of a social crusade, every opportunity to crush those with opposing opinions will be -- and is -- used, until there is an actual clear line beyond which 1A rights are upheld.

    I have drawn my line at actions that are only symbolic in their effects and that preserve freedom of speech and conscience. The cake baker's refusal to create the special cake qualifies.

    (continued)

  • PoxOnBothYourHouses||

    (continued)

    So what if the baker (probably) loses? Do you think the social crusade ends there? Let me go down the slippery slopes that people always say won't happen but often do. What if a customer prevails but is unhappy with the final product? Was it a case of discrimination? The customer could very well prevail in such a situation. What if the proprietor says something that once would have been acceptable but has been redefined as homophobic? Does she have to undergo re-education and face endless oversight? You think that's unlikely? What if we have an actual church, but it happens to rent out its hall for a VFW event. Are they now required to rent it out for a same-sex wedding? That case will /certainly/ occur.

    The 1A is undergoing the strongest attacks outside of wartime since at least the McCarthy hearings.

    (I'm using same-sex examples here only because they are the ones in the case and in the news)

  • Sebastian Cremmington||

    Conservatives should have found a Arab Muslim baker to do a test case with instead of getting a person that can be legally discriminated against.

    As a Christian I don't see the issue with serving an event celebrating two people signing up for a civil license that they are just signing to make Conservative Christians angry. Also as a Christian I understand divorce lawyers have children that they need to feed so I see same sex marriage as a growth industry for divorce lawyers and generally gay people have a lot of money to spend because they don't have to worry about pregnancy or buying an overpriced house in a good school district.

  • swood1000||

    or buying an overpriced house in a good school district.

    Perhaps you were not aware of adoption, or of artificial insemination/surrogacy.

  • Sebastian Cremmington||

    Unplanned and easy pregnancies are the problem for heterosexuals and LG don't have those. I know heterosexuals that have been forced to do IVF and it is expensive and it has to be part of well though out plan.

  • Sebastian Cremmington||

    My legal advice to bakers that do not want to serve gay couples is to only stock the little male/female cake toppers and so when a gay couple asks for a gay wedding cake just say you are all out of gay cake toppers...and then when they ask if you can recommend another baker say "oh sure, they are at the corner of Main and learn to use fucking Yelp".

  • Krayt||

    "But you have separate boxes of male and female figurines!"

    "Ok, but then you will have two identical dudes on the cake."

    "You have multiple male figurines, yes? Just use two different ones at random." -- The answer when asked why a guy in a tuxedo on the cake is marrying an Elmer Fudd

  • ReaderY||

    Professor McConnell is taking a rather expansive concept of expression. If ones work isn't just a job but is an expression of ones identity, one has a right to be selective about what, and who, ones it for. And for work which is a source of personal identity, it's natural, normal, and to be expected that this selectivity will occur.

    So I have two questions:

    1. What gives federal judges the right to declare what shall and shall not be sources of personal identity? Socrates was a stonemason as well as a philosopher. What right have courts to say that only his philosophy, and not his stonework, may be his source of meaning in life?

    2. And why should courts declare people who deviate from judges' orthodoxy on what gives meaning to their lives "evil"?

    If we were doing a traditional First Amendment analysis what is a symbol or language, we might be able claim there is an objective basis for judges to decide.

    But when it comes to questions of what is a fundamental source of meaning in ones life, who are judges to say that (say) abortion and sex and race is, but cake and dress design aren't, and those who disagree are evil?

    What is liberty if it doesn't include the right to decide oneself what is meaningful for oneself?

    So if the difference between what is protected and what is considered invidious is whether or not it's a "proper" source of meaning in life, then the courts here are merely imposing their own personal sense of propriety on the public.

  • MightyMouse||

    For 1, the civil rights act is to provide equal access to public accommodations. Accommodations are services the public relies on to go about their lives on a regular basis. If Plato doesn't want to build a temple to Aristotle on the basis of his religion, then so be it, as long as alternate stonemasons are available of like kind and quality. This is allowed because of the connection of the building with the religion.

    If Plato doesn't want to sell Aristotle lentils on the basis of his religion, that is illegal discrimination. Not only does it deprive Aristotle of purchasing a staple on which the public regularly relies, but the lentils are not connected to the religion.

    In summary, if the discrimination is based on the essential nature of the product or service — as opposed to the class identity alone — and the denial of the product or service does not disrupt the customers life (eg discrimatory denial of a bathroom), then the symbolic expression interest ought to be protected.

  • Brett Bellmore||

    Why isn't it sufficient that there are alternate purveyors of lentils, of like kind and quantity? Your argument here isn't internally consistent.

  • Sarcastr0||

    Stonemasons don't parallel to lentils. Crafted service is not the same as interchangeable goods.

    Regardless, I don't believe public accommodations laws look to availability of alternatives.

    What's interesting is that this has become a debate over facts. Rare on this blog.
    Not many are unhappy about the existence of the laws, or of they are that's not the battle they are fighting. It's all about the question of fact about the expressive nature of baking a cake that will be used in a gay wedding.
    Whether there can be such a thing as a 'generic' wedding cake, whether baking a cake is tantamount to participating in the wedding, etc.
    This means the functional aspect of the debate is basically over on this issue. On to gender!

  • apedad||

    I agree with Brett (YAAY!) on the narrow point he's making; a building, bean, or baked good is just a thing and there may be others willing to sell those goods or services.

    On the large issue though, I think the 1st Amend. tack will fail.

    Per Prof. McConnell, "The legal issue in that hotly-contested case is whether a Colorado baker named Jack Phillips can be punished for refusing to create a custom cake for an event of which he morally disapproves."

    I think that attempt will get tripped up on 'morally disapproves.'

    In law (and IANAL) we have to agree on definitions and since 'morally disapproves' cannot be readily defined, then no court should ever have to be in the position to decide the issue.

  • Brett Bellmore||

    I think the 1st amendment tack will fail, because all tacks are doomed to fail when the judiciary themselves have signed onto a moral crusade.

    And that's what this is at this point, not normal law, but a moral crusade out to crush anybody who won't sign on.

  • PoxOnBothYourHouses||

    The 1A approach might possibly lead to a win (though I'm not holding my breath) if Justice Gorsuch were successful in bringing over Justice Kennedy, who seemed -- in his questions --
    unhappy with Colorado's treatment of Phillips.

    /If/ that were to happen, Justice Kennedy should write the decision.

  • swood1000||

    One of the grounds on which Kennedy could rule for Masterpiece Cakeshop was whether the Commission was really neutral, or whether they showed a hostility to religion.

    JUSTICE KENNEDY: …Commissioner Hess says freedom of religion used to justify discrimination is a despicable piece of rhetoric. Did the Commission ever disavow or disapprove of that statement?

    JUSTICE KENNEDY: Suppose we thought that in significant part at least one member of the Commission based the commissioner's decision on -- on -- on the grounds that – of hostility to religion. Can -- can your -could your judgment then stand?

    Both Kennedy and Alito pointed out that this statement was never disavowed by any of the commissioners and Alito said that this is what makes it appear to be a practice of discriminatory treatment based on viewpoint.

    Gorsuch also pointed out a second commissioner who expressed views that he said were along this line.

    JUSTICE KENNEDY: Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it's mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs.

    MR. YARGER: Your Honor, I don't – I don't agree that Colorado hasn't taken very seriously the rights of those who wish to practice their faith.

    [continued]

  • swood1000||

    [continued]

    Another problem Kennedy had was with the mandatory speech that Phillips had to give his employees.

    JUSTICE KENNEDY: Part of that speech is that state law, in this case, supersedes our religious beliefs, and he has to teach that to his family. He has to speak about that to his family who are the employees.

    Kennedy also seemed to think that opposition to same-sex marriage is not necessarily against their identity as lgbt.

    JUSTICE KENNEDY: Well, but this whole concept of identity is a slightly -- suppose he says: Look, I have nothing against – against gay people. He says but I just don't think they should have a marriage because that's contrary to my beliefs. It's not their identity; it's what they're doing.

    JUSTICE KENNEDY: I think it's – your identity thing is just too facile.

    So there seems to be plenty of room for Kennedy to side with the baker.

  • bernard11||

    Commissioner Hess says freedom of religion used to justify discrimination is a despicable piece of rhetoric. Did the Commission ever disavow or disapprove of that statement?

    Why should it? It's true. And it's not as if religion has not been used to justify discrimination.

    It's not "hostility to religion." It's hostility to religiously based discrimination.

  • Josh R||

    The problem with the statement is the Commissioner might be saying he wouldn't have treated a secular-based objection the same. If that is the case, then the Free Exercise Clause comes into play because the application of the law is not neutral towards religion.

    If SCOTUS ruled on this basis, the opinion would be limited to these set of facts with little applicability in other cases.

  • swood1000||

    Why should it? It's true.

    Perhaps, but apparently Justice Kennedy disagrees.

  • PoxOnBothYourHouses||

    I didn't realize how strong his statements were. I'd was fully aware only of the "neither tolerant nor respectful" quotation.

  • Jerry B.||

    "For 1, the civil rights act is to provide equal access to public accommodations. Accommodations are services the public relies on to go about their lives on a regular basis."

    So you agree that if Mrs. Trump asks a clothing designer to provide her with an inauguration dress, and the designer refuses because of her political animus against Pres. Trump, the courts should force the designer to provide a dress.

  • Sarcastr0||

    Inauguration dress doesn't sound like part of one's life on a regular basis.

    But if she walked into the designer's store to buy a dress of the rack, my understanding is that she would have to be served.

  • Sam Gompers||

    So if it's a one off event like an inauguration or a gay wedding, then they don't have to be served?

  • PoxOnBothYourHouses||

    They have to be served. They don't have to be given a custom design.

  • Sarcastr0||

    I don't understand why it is so difficult for people to separate the good from the customer from the customer's event.

    You have a right to sell (or not sell) any good you want, but you can't pick and choose to whom you sell it or what they're going to use it for afterwards.

  • Sam Gompers||

    I don't think Jack cared if the gays bought some baked good off the shelf and then took it to their gay whatever's.

    He didn't want to work with the gays to design and bake them a gay wedding cake.

  • PoxOnBothYourHouses||

    "You have a right to sell (or not sell) any good you want, but you can't pick and choose to whom you sell it or what they're going to use it for afterwards."

    That's the case with the "off-the-shelf" items. But do you hold that one can't opt out of designing and creating a special good (one that will have visual elements that celebrate or commemorate the occasion) for an event that violates one's beliefs?

  • MightyMouse||

    I disagree.

    Jack is preserving his dignity (according to conscience), while the couple is preserving their honor (according to society)

    The state had a greater interest in freedom of conscience, rather than preventing slights.

  • apedad||

    Political party/affiliation (whatever...), is not a protected class.

  • Brett Bellmore||

    No, it is, but only if you're a Democrat; The fact that almost all blacks are Democrats has led to the courts treating discrimination against Democrats as 'racial' discrimination, while discrimination against Republicans is just, meh.

  • Sarcastr0||

    This is disclaimed by the current bevvy of gerrymandering cases, which are specifically not about race.

    Just because you feel oppressed and don't like being called racist, doesn't mean there's actually a double standard.

    (Liberals calling each other racist has a long and proud history on the Internet.)

  • Brett Bellmore||

    "This is disclaimed by the current bevvy of gerrymandering cases, which are specifically not about race."

    Are you looking at the same gerrymandering cases as I am?

  • Sarcastr0||

    The ones about whether partisan gerrymandering is constitutionally permissible? We already know racial gerrymandering is not, so these cases are specifically discussing a separate issue.

  • jph12||

    Sarcastro apparently believes the Voting Rights Act is unconstitutional. Never would have guessed.

  • Sam Gompers||

    It is in many districts.

  • art guerrilla||

    @ swood1000-

    "But the judiciary wouldn't let them, and ultimately prevailed over the democratic will of the people."

    um, please tell me you were either being transparently sarcastic (too transparent for me to discern), or merely making a point regarding the THEORETICAL functions of small-dee democracy...
    please...
    .
    otherwise, I am to believe that A) legislators ACTUALLY represent the 'will of the people' (um, gilens and page ring a bell ? ? ?), B) they are legitimately elected, C) by a reasonable majority of the electorate, D) and then go on to represent their views ? ? ?
    .
    (which STILL begs the question of how laws six degrees of separation from the voter reflect THE PERSONAL VIEWS OF EVERYONE, voter and non-voter alike, amazing ! ! !)
    .
    c'mon man/woman/intersex being, if you -other than pro forma- think the stoopid legislature tricks they do are in response to their SUPPOSED constituents, then you are either irredeemably naïve, or 10 years old...

  • Brett Bellmore||

    "otherwise, I am to believe that A) legislators ACTUALLY represent the 'will of the people' "

    I thought this was fairly laid out in my timeline: The judiciary set out to impose SSM on California, the public democratically, directly fought them via winning ballot proposals, while the legislature at the very same time the public was voting to ban SSM took the judiciary's side in the matter.

    The legislature is somewhat more representative of public opinion than the judiciary, but on a number of topics, SSM being among them, that's not very representative at all.

    Our democracy is, IMO, starting to break down, because we've developed a self-perpetuating political class who are effectively monopolizing public office, and who have systematically different opinions from the general public on a lot of topics.

  • apedad||

    HA! You're either willfully blind or simply cannot accept what's happening.

    We're witnessing the NATURAL human progression away from bigotry, hatred, and ignorance.

    As I've posted in the VC before the arc of progress is not linear and there are still significant pockets of resistance--and yes there will be regressions sometimes (Trump wins!).

    But you and your slowly shrinking like-minded fellows cannot and will not stop progress.

  • Brett Bellmore||

    I'm not commenting on who's right about the moral issue. I'm challenging the idea that the courts were responding to public opinion.

    Objectively, that's false: Almost everywhere, SSM was imposed by the courts in the teeth of democratic opposition. You can bemoan that, celebrate it, whatever. It's still the truth.

    Public opinion didn't change until after the courts shoved SSM down the public's collective throat in defiance of it. I'm reading that as resignation, not agreement, but the key point here is who led, and it wasn't the public.

  • Sarcastr0||

    Yell about the Supreme Court all you want - with the people or against it, that bit of elitism is a feature created by the Founders as a bulwark against tyranny of the majority.

    As for the idea that we have an elite political class - that's who the Founders were. Our democracy is more populist and all-inclusive than it has ever been, and our representatives reflect that.

    Not that America is perfect - our polity has some gathering threats to deal with. I just disagree with you about what they are!

  • apedad||

    And another nail is driven into bigotry: http://www.foxnews.com/politic.....enial.html

  • PoxOnBothYourHouses||

    "Almost everywhere, SSM was imposed by the courts in the teeth of democratic opposition."

    It's more complicated than that, though the courts imposed it in the majority of cases.

    (1) In three states SSM was passed via referendum (Maine, Maryland, and Washington)

    (2) In 25 cases a state or Federal court ruling brought in SSM.

    (3) I believe that in nine cases legislation brought in SSM.

    (4) In the rest of the country, SSM was brought in by Obergefell. Many of those states had outlawed it, mostly via legislative action.

    BUT: In some cases a legislative approach /followed/ a state or Federal court ruling or a referendum against SSM. California was maybe the most complex example. The CA supreme court ruled for SSM. Then Proposition 8 outlawed it. Then state government nullified Prop 8 by refusing to defend it in Federal court. After some back-and-forth in the courts, SSM was reinstated. Then the state legislature passed a SSM bill.

  • apedad||

    And I should add and acknowledge that the Progressives are not always noble, their deeds are not always honorable, and those violent, criminal actions should be punished.

  • swood1000||

    art guerrilla:

    "But the judiciary wouldn't let them, and ultimately prevailed over the democratic will of the people."

    That quote was by Brett Bellmore, but are you asserting that representative democracy is no different from dictatorship? Actually, the original idea was that actual democracy is too unstable and is not a good system for that reason.

  • ||

    I suspect there's a lot of Bradley Effect with respect to polling on same sex "marriage."

  • Josh R||

    A polling-based prediction of how people would vote in 2012 was accurate.

  • 1234||

    Like much of the reporting, but unlike Prof. Volokh's amicus brief, this piece mis-states the facts of the case.

    Phillips did not simply refuse to create a customized one-of-a-kind cake. He refused to sell them any wedding cake, including generic uncustomized ones that were already sitting on the shelf. He refused to sell them an *identical* cake, sans any customization, as what he would have sold anybody else who'd asked for it. Sure he said he'd sell them another cake, but not any of the "wedding" ones, even if uncustomized.

    Writing a message on a cake is expressive. Customizing a cake made to order for a particular event is expressive. But the cakes sold by this shop weren't so limited, and those weren't the only sort of cakes he refused to sell to gay people. It's an important distinction, because if a baker can refuse to sell an uncustomized cake, then what's different about a restaurant refusing a meal, or a hotel refusing a room, or a grocery store refusing to sell cookies off the shelf? Hardline libertarians might say good at that result, but obviously the courts aren't going to effectively gut all anti-discrimination laws. We're not revisiting Heart of Atlanta anytime soon. And there's no way they can rule in favor of Phillips without opening that door; because there's no coherent way to draw the line for how what he did entailed "expressive" conduct but the other examples don't.

  • AJ_Liberty||

    "Customizing a cake made to order for a particular event is expressive."

    I'm not so sure how to draw the line on this one. What constitutes "customizing"? What if the cake looks exactly like a cake provided for an opposite-sex marriage...perhaps just scaled for reception size? Is every cab ride a "customized trip"? Is every hair cut a "customized styling"? Is every catered meal a "customized serving"? Is every lawn service "customized landscaping" that would end-run the anti-discrimination laws? I would agree that requesting a message, artwork, or imagery would make the cake expressive. I'm not sure if 2-tiers versus 3-tiers or chocolate icing versus blue icing suddenly makes the cake expressive...or else a whole lot of other conventional commercial activities also gain additional 1A considerations. I'm skeptical that the Court wants to go there or tease out some special nuance about cake baking. Phillips considered all of his wedding cakes custom. I have a difficulty accepting that premise and seeing a limiting principle that would not eviscerate Colorado's statute.

  • NOVA Lawyer||

    1234,

    While you are right that the the petitioner refused to sell them any wedding cake, their counsel conceded at oral argument before the Supreme Court that refusing to sell a pre-made wedding cake would not amount to compelled speech and, so, would not violate their speech rights under the First Amendment. See Tr. at 5. ("MS. WAGGONER: Absolutely not. The compelled speech doctrine is triggered by compelled speech. And in the context of a pre-made cake, that is not compelled speech.").

    This goes to my "widgets" argument elsewhere in this thread. No free speech issues are implicated by the sale of a pre-made item generally available to the public for purchase. I would suggest, this also pretty clearly extends to pre-determined recipes/designs that are generally available to pre-order. Free speech principles are not implicated in these cases. Being compelled to sit down with someone else and design a cake (or even being compelled to create a unique "work of art" in your own kitchen/workshop) should fall within the Constitution's free speech protections.

  • Josh R||

    How about sitting down with the hair stylist, jeweler, makeup artist, chef, tailor, sandwich artist, caterer, landscaper, lighting designer and event planner? Are all of these protected from compelled speech?

  • AJ_Liberty||

    This comes down to what truly is a "work of art". A painter painting a mural on my garage is art....the same guy painting my gutters probably not so much. Both activities might require a sit down with some discussions, so "planning" by itself does not seem like the proper discriminator. Is a hair stylist creating art? Is a well-trimmed shrub art? A wedding cake certainly has some aesthetic value but I question whether or not there is a clear "endorsement" of anything by the baker....or even a clear association. Someone who takes personal pride in their good or service should not be the sole decider as to whether it is art.

  • NOVA Lawyer||

    Josh and AJ,

    Both excellent points. Merely calling something a "work of art" doesn't solve the issue. There will be grey area no matter where the line is set. But I think the category of constitutionally-protected speech comfortably excludes off-the-shelf cakes, painting a gutter, but definitely includes a commissioned poem or a personal appearance by a musician. I agree with AJ's comment in every particular.

  • Josh R||

    Eugene agrees that a poem or music is expressive because they have been historically protected. The only other things Eugene would add to the list are activities that are inherently expressive. Cake baking doesn't meet either criteria.

  • jph12||

    "Cake baking doesn't meet either criteria."

    I'm skeptical that there are actually cases saying that custom wedding cakes are not expressive. As far as I am aware, this will be the first time that the Supreme Court will be addressing whether someone can be forced to bake a custom wedding cake. Just because bakers traditionally did not need to sue for protection doesn't provide much evidence that they weren't protected.

    I have a hard time understanding why a cake is art if you combine flour and salt and makes the cake out of playdough, but not if you throw in some eggs and sugar too.

  • Josh R||

    There aren't cases that say wedding cakes aren't expressive. But, Eugene's first criterion (historically protected) is limited to activities that have affirmatively been legally protected in case law or by statute. The second criterion (inherently expressive) covers activities that might have been protected had only a case been brought forward. Perhaps custom flower arrangements qualify under the second criterion, but custom wedding cakes don't.

  • jph12||

    "But, Eugene's first criterion (historically protected) is limited to activities that have affirmatively been legally protected in case law or by statute."

    I know you are relaying Eugene Volokh's position, but I don't think that's a meaningful standard. Nothing was protected, until it was, and generally nothing was protected until it needed to be. So why would the fact that cake baking didn't need protection in the past mean that it isn't entitled to it?

    "The second criterion (inherently expressive) covers activities that might have been protected had only a case been brought forward. Perhaps custom flower arrangements qualify under the second criterion, but custom wedding cakes don't."

    That's just like, your opinion, man. As I said, I have a hard time understanding why a cake is art if you combine flour and salt and makes the cake out of playdough, but not if you throw in some eggs and sugar too. I've seen a lot of people asserting that custom wedding cakes aren't inherently expressive, but precious little argument.

  • NOVA Lawyer||

    I agree that Masterpiece should lose this lawsuit. As Eugene points out, the bakers weren't required to be at the wedding and the record is not otherwise suggestive that the cake requested (or denied) had any expressive content beyond "this is a pretty cake." I am unwilling to say that there is no situation in which a cake designing business could deny a particular service (say writing a message on the cake).

  • Josh R||

    In this case, the baker categorically refused to design a custom cake based on the couple being of the same sex, even if there were no words on the cake. So, we don't have to reach the more difficult question as to which words on a cake might or might not trigger the compelled speech doctrine.

  • NOVA Lawyer||

    "So, we don't have to reach the more difficult question...."

    What an odd thing to write. Are you under the impression that we are on the Supreme Court?

    I am not sure why you are so confident that flower arranging is inherently expressive whereas designing a cake isn't. In fact, I think it is more likely that a cake can be designed to have an intelligible message beyond beauty. But this case is about cakes, so we needn't reach the question of whether floral arrangements are, or in some cases might be, expressive. (Weird, huh?)

  • Josh R||

    I'm more confident that designing custom cakes aren't inherently expressive because cakes have a more obvious non-expressive function than flower arrangements. However, you are correct that we need not reach the question as to whether designing custom flower arrangements are inherently expressive to dispose of this case.

  • swood1000||

    NOVA Lawyer:

    I am unwilling to say that there is no situation in which a cake designing business could deny a particular service (say writing a message on the cake).

    So you would let a Jewish baker refuse to create a cake with anti-Semitic statements on it but require him to create a cake that is intended for an anti-Semitic rally and that obviously, through imagery, glorifies antisemitism?

  • Josh R||

    I wouldn't make the Jewish baker create that cake because he isn't violating the anti-discrimination law in the first place (he isn't discriminating on the basis of membership in a protected classification).

  • swood1000||

    Josh R:

    I wouldn't make the Jewish baker create that cake because he isn't violating the anti-discrimination law in the first place (he isn't discriminating on the basis of membership in a protected classification).

    What if the customer were Louis Farrakhan, whose religious beliefs apparently include the belief that Jews are devils?

  • Josh R||

    I'm pretty certain the Jewish baker would refuse to create the cake no matter who the customer is. But if somehow he would make the cake for anyone except a member of the Nation of Islam, he is discriminating on the basis of religion.

  • swood1000||

    But if somehow he would make the cake for anyone except a member of the Nation of Islam, he is discriminating on the basis of religion.


    No, he would not under any circumstances make a cake that celebrates antisemitism, just like the baker in this case would under no circumstances create a cake that celebrates same-sex marriage. However, anti-Semitism is an element of the religion of the customer. Can the state penalize him for refusing to make the cake?
  • Josh R||

    No, he is not discriminating on the basis of religion if he would refuse to the design the cake for any customer.

  • swood1000||

    No, he is not discriminating on the basis of religion if he would refuse to the design the cake for any customer.

    So if a baker would refuse to create a cake for anyone that would celebrate a same-sex marriage you say he should be in the clear?

  • Josh R||

    So if a baker would refuse to create a cake for anyone that would celebrate a same-sex marriage you say he should be in the clear?

    Again, no because (per Christian Legal Society) same-sex marriage is closely correlated with being gay. In contrast, antisemitism is not closely correlated with being religious.

  • NOVA Lawyer||

    swood1000,

    Maybe this helps.

    I meant:

    I am unwilling to say that there is no situation in which a cake designing business could deny a particular service (e.g., writing a message on the cake).

    Rather than:

    I am unwilling to say that there is no situation in which a cake designing business could deny a particular service (i.e., writing a message on the cake).

    Was it really that ambiguous? The parentheses surrounded an example, not the only instance. My clear import being that something "obviously" expressive of a substantive message very well may constituted speech that the state cannot compel.

  • swood1000||

    NOVA Lawyer:

    Was it really that ambiguous?

    The ambiguous part is what you mean by expressive conduct. Suppose a Jewish artist were asked by Louis Farrakhan to create an abstract painting to be displayed during a religious gathering devoted to antisemitism? The painting should show antisemitism in a heroic light. Does he have to do it if it is to be entirely abstract, without text or symbols already established as antisemitic?

  • jph12||

    There doesn't seem to be any doubt that a "sculptor" could refuse to create custom centerpieces for the tables, even though there isn't any expressive content other than, "what a pretty sculpture." Why is a sculptor treated so deferentially? Is it just because only rich people could afford custom sculptures, while even the common folk order custom wedding cakes? There does seem to be a tendency in these types of discussions (what is art) to denigrate the kinds of things ordinary folk enjoy and do.

  • Josh R||

    Designing custom cakes aren't inherently expressive because they have obvious non-expressive functions.

    Have sculptures been historically protected in case law or statute as speech? Is this sculpture inherently expressive? Does it have some obvious non-expressive functions?

    I reiterate that if we accept custom cake design as categorically expressive, we open the door to reaching the same conclusion for the hairstylist, jeweler, makeup artist, chef, tailor, caterer, landscaper, lighting designer and event planner when they custom design for a wedding.

  • jph12||

    "Designing custom cakes aren't inherently expressive because they have obvious non-expressive functions."

    Why does that matter? Why can't something with non-expressive functions still be inherently expressive? Painting a mural on the side of a building has non-expressive functions as well (paint is paint, after all), but I don't see how that prevents the mural from being inherently expressive. Why does something have to be useless to be art?

    "I reiterate that if we accept custom cake design as categorically expressive, we open the door to reaching the same conclusion for the hairstylist, jeweler, makeup artist, chef, tailor, caterer, landscaper, lighting designer and event planner when they custom design for a wedding."

    I agree. What I don't understand is why that affects the analysis.

  • Josh R||

    The mural's primary purpose is to convey a message, something not categorically shared with house painting or custom cake design.

    Permitting service providers to define themselves as artists would broadly undermine anti-discrimination law and I find that problematic.

  • NOVA Lawyer||

    Josh R,

    You say: "The mural's primary purpose is to convey a message, something not categorically shared with house painting or custom cake design."

    As a factual matter, a mural's primary purpose may not be to convey a message. It isn't all that hard to imagine such circumstances.

    Even more clearly, the primary purpose of any particular house painting job or custom cake design might be to convey a message. A person might ask for a cake with an offensive statement written in icing with no intention of anyone eating the cake and the person may have no intention of letting anyone eat the cake. He just wants to convey his message in cake form because, maybe cake has particular valence in the situation.

    At any rate, I think you go too far in trying to divide certain mediums in "inherently non-expressive" and inherently expressive" buckets. The latter may be useful for courts, so that certain categories (i.e., wedding photographers) have First Amendment protection for their work in all cases. But I don't think the reverse works, that an activity that is generally not "inherently expressive" can be said to never have protection. Even with cakes, sometimes the requested design may itself indicate that this particular cake is inherently expressive.

  • Josh R||

    I didn't argue that custom cakes should never have protection. I argued that custom cakes should not have categorical protection.

  • jph12||

    "The mural's primary purpose is to convey a message, something not categorically shared with house painting or custom cake design."

    Why does it matter whether the primary purpose is expressive, rather than just whether it has an expressive purpose?

    And while this might distinguish wedding cakes, how does that help us with "hairstylist, jeweler, makeup artist, . . . tailor, . . . landscaper, lighting designer"? The primary purpose of all of these people is simply to produce an aesthetic effect. Which seems a lot like art.

  • Josh R||

    I disagree that categorically the primary purpose of any of those services is expressive. Again, it seems you are willing to the businesses self-identify as being artistic.

  • jph12||

    "I disagree that categorically the primary purpose of any of those services is expressive."

    Why? The primary purpose of all of those industries is to produce an aesthetic effect (generally a pleasant one). What makes the aesthetic effect they produce less worthy of protection than that of a painter or a symphony?

    "Again, it seems you are willing to the businesses self-identify as being artistic."

    No, I don't care what the business self-identifies as. I'm asking how you distinguish these businesses from their more favored brethren, and why that should be so. Most of the answers I've seen so far (and not just coming from you) aren't very convincing.

  • Josh R||

    Aesthetics don't equate to expression that is protected by the First Amendment. To borrow an example from Eugene's brief, even though landscaping is aesthetic, it is not controversial that the state can require people to cut their lawns.

  • jph12||

    And it didn't use to be controversial that states could prohibit gays from getting married. Now things are better.

    Again, why is a sculpture of a cake made out of playdough protected, but a cake itself isn't? What is the magic power of sugar and eggs that renders a cake unworthy of protection?

    Perhaps we've already extended the First Amendment too far, and things like symbolic speech, paintings, and sculptures shouldn't be protected. I'm open to that possibility as well. But I don't like the legal elites picking categories for special treatment with little or no actual justification for the distinctions.

  • Josh R||

    Since the elites haven't persuaded you their line is justified, where would you draw it?

  • jph12||

    I'm not exactly sure where the line should be drawn. But it needs to be based on reason, not just prejudice, which is why I find the idea of limiting the protection of the First Amendment to actual speech and writing to be fairly compelling.

  • Michael Cook||

    To beat a dead horse, the hypothetical professional wedding singer forced to warble a love song to a couple he does not believe is being joined in holy matrimony is the compelled oral version of the first amendment being gooned by fashionable cultural trends.

  • Demagogisimus||

    Excellent opinion peace by Prof. Michael McConnell. Thank you for sharing.

  • ReaderY||

    I'd like to clarify why I see Professor McConnell's arbgument as broader than some other First Amendment arguments that have made. Others have argued that the question of whether something is expressive is an objective one, to be made by judges. Painters produce expressive work, welders don't, and a custom baker either falls in the painter or the welder category. But Professor McConnell's criteria appear to be much more subjective. One has to do custom work for ones profession to be expressive, but beyond this it involves questions like whether it is important to you, part of your identity, values, etc.

    Moreover, this expansions of what used to be called privacy jurisprudence,moving it more in the direction to whether something is important to ones sense of self rather than connecting it to historically protected practices or institutions, have a similar difficulty.

  • ReaderY||

    (Cont)

    The difficulty here is that if judges make authoritative pronouncements over society as a whole using purely subjective criteria, they risk losing legitimacy. It's one thing to say that painting has historically been classified as symbolic communication while welding historically hasn't, and the First Amendment requires determining if something is symbolic communication. What constitutes symbolic communication in a society is a question about the society. But if judges distinguish the two because painting provides meaning in life while welding doesn't, they are now dictating their subjective opinions about individuals. Welders who find identity and meaning in their art are entitled to object that judges downgrade their work unreasonably, because they don't like them.

    The same with other professions. Are professions like teaching, law, medicine, or accounting art? Custom chefs at high-tier restaurants? Is the entrepreneur who invents a new kind of business engaging in art? Why shouldn't a Steve Jobs be able to select who his bold new, custom ideas will benefit? It seems to me many if not most people find meaning in their work, whether or not judges poo-poo it and consider it unworthy of being considered expressive.

    So I'm suggesting Professor McConnell is entering shaky ground. But it's ground the courts entered when they first began using subjective criteria, and their own judgment, to determine if activities are protected rights are not.

  • swood1000||

    ReaderY:

    Do objective criteria control it? What if a designer were asked to create an abstract design to celebrate same-sex marriage? It is to be an entirely new design and no recognizable symbols are to be included, but the designer is asked to use his creativity to produce it. Perhaps it will become the design to be used nationally on pro-LGBT placards, etc. Does he have to do it against his religious objections?

  • Michael Cook||

    Well, if I were him or her and I did it I would be sure to reserve the copyright for myself! This could be extremely valuable intellectual property the way things are trending--the new pink!

  • LifeStrategies||

    This case, and the others like it, ignore the crucial distinction between the 1st Amendment rights of a person and a business. Every person has 1st Amendment rights, businesses do not and instead obey public accommodation laws.

    Public accommodation law can compel a business to bake-a-cake/design-a-dress/take-a-photograph but this does not mean an individual 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. But if no one is willing, then 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 only when there are bigots such as the gay couple objecting to Philips refusal to celebrate their union that these sorts of difficulties arise. They should simple go elsewhere.

  • David Friedman||

    I have not read all of the very long comment thread. But it seems to me that Michael McConnell's argument leaves Eugene Volokh with only three possible positions:

    1. The dressmaker's choice (et. al.) is not protected by the First Amendment, hence a law criminalizing it would be constitutional.
    2. The baker's choice is protected by the First Amendment, hence a law criminalizing it is unconstitutional.
    3. There is a significant difference between the cases such that the former is protected and the latter is not.

    I am curious which alternative he will choose.

  • MR1986||

    "First Lady," "President," and "abortion performer" aren't protected classes.

  • John Cuyle||

    One thing that bothers me about a lot of the discussion over whether a cake is art/speech/expression is that a lot of people who are on the fence or say that a cake isn't art do so with a limited (and in my view incorrect) understanding of what makes a cake (or any baked good or any food) a form of expression. It doesn't matter if words are written on a cake, or what a cake looks like.

    The reason people have cakes at wedding and not hardtack (with or without writing on it) is not appearance. Flavor, moisture, texture, and mouthfeel are expressive aspects as well. Cake, even an off the shelf cake, is not a generic widget in the way gravel or hardtack is. Subtle differences in texture and flavor are creative aspects of baking.

    While food can certainly be appreciated visually (plating is a thing) it is primarily experienced via smell, taste, and touch, with sound occasionally playing a part (for example, fajitas are traditionally served sizzling.) Do the people who argue cake is a commodity not cook or bake?

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