Free Speech

The Masterpiece Cakeshop Decision Leaves Almost All the Big Questions Unresolved


Do bakers have a First Amendment right to refuse to bake cakes for same-sex weddings, even if there's a state law banning sexual orientation discrimination by such businesses?

Do they have a First Amendment right to refuse to bake such cakes that contain text or symbolism (e.g., rainbow striping) that the bakers disapprove of?

How about wedding photographers or videographers, who create products that (unlike most cakes) are traditionally seen as speech? How about calligraphers or graphic designers, who have an objection to personally writing or typing certain messages?

The Supreme Court's 7-to-2 Masterpiece Cakeshop decision answers none of these questions (not even the first, which seemed to be most squarely raised on the facts of this case). Rather, the decision concludes that, in this particular case, Colorado government agencies unconstitutionally discriminated against the plaintiff based in part on his religiosity; the Court concludes this based on particular statements made in the record, such as the statement by one member of the Colorado Civil Rights Commission that,

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

Applying antidiscrimination laws to a baker simply because he violated those laws, the Court said, might be constitutional (depending on whether that violates the Free Speech Clause, a matter on which the majority did not opine). Applying them because you find discrimination generally to be "despicable" would likewise not be impermissible religious discrimination. (Most laws are based on a judgment that the forbidden actions are wrong, and some based on a judgment that the actions are despicable; that does not make them impermissible discrimination against the religious, even if many of those who engage in those actions belong to a particular religion or set of religions.) But applying the laws because you find the defendant's religious views or statements to be "despicable" may be impermissible religious discrimination, and 7 Justices so found, based on this statement and several others.

This is a legitimate basis, to be sure, for deciding the case (though Justices Ginsburg and Sotomayor disagreed that such discrimination against the religious was showin this particular case). But it is a basis that will have little effect on other such same-sex wedding service provider cases, especially when government commissioners realize they shouldn't say more about religion than is necessary to deal with the particular religious objections raised in those cases. (In many such cases, there are religious exemption claims raised under state statutory or constitutional religious exemption regimes, such as state Religious Freedom Restoration Acts, and those require some discussion about whether the claimant's religious beliefs are sincerely held, and whether the claimant's beliefs forbid him from doing what the law requires.)

Four of the Justices did talk about the free speech issues here, and they split 2-to-2 (Justices Thomas and Alito would have accepted the free speech claim, and Justices Ginsburg and Sotomayor would have rejected it given the facts of this case, which in their view didn't involve any expression on the cake at all). I'll have more to say on that debate later, and I'll also discuss the religious discrimination arguments as well, especially the weight given to Colorado cases involving William Jack, who has now been proved to have produced a tactical masterstroke. But for now, the important point is that the free speech debate, as well as the broader religious accommodation debate, remains unresolved.

Finally, the careful reader might be asking: Does all this talk about government officials' statements showing religious bias foreshadow the result in the so-called (rightly or wrongly) "Trump Travel Ban" case, where the challengers are arguing that various statements by candidate Trump or President Trump show that the restrictions on travel from certain countries were motivated by religious hostility? Your guess is as good as mine.

NEXT: Chelsea Manning Loses Wikileaks First Amendment Appeal

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  1. So can a judge in a robbery trial be biased if she rants about how robbery is despicable and evil?

    1. Or if the robber acted in the name of some religion and the judge says that’s gross?

      Is the Supreme Court merely looking for a way to dodge the fundamental 1st Amendment issues?

      1. Pretty much. They’re avoiding a lot of tough issues at the moment.

        1. My Whole month’s on-line financial gain is $2287. i’m currently ready to fulfill my dreams simply and reside home with my family additionally. I work just for two hours on a daily basis. everybody will use this home profit system by this link………

      2. ===Finally, the careful reader might be asking: Does all this talk about government officials’ statements showing religious bias foreshadow the result in the so-called (rightly or wrongly) “Trump Travel Ban” case, where the challengers are arguing that various statements by candidate Trump or President Trump show that the restrictions on travel from certain countries were motivated by religious hostility?===

        I thought it was already a regular SC principle that any law with good evidence (e.g. loud statements) that it was really motivated by forbidden First Amendment infractions permaqueered the law even with legitimate real reasons.

        1. The fundamental problem with the analogy between this decision and the travel ban decision, is that this decision has to do with the rights of Americans within America, while the travel ban has to do with the purported rights of non-Americans outside America.

          Which is a pretty big difference.

        2. permaqueered ???

          I just looked it up, and Google says that your post is the only known use…which is pretty damn impressive.

          I’m assuming it was an auto-correct. But for the life of me; I cannot figure out what the intended word was. “The law was embiggened with prejudice…”

      3. > Is the Supreme Court merely looking for a way to dodge the fundamental 1st Amendment issues?

        They should be. Every ruling should be made on the narrowest possible grounds. Regardless of the substance of the decision, the Colorado board was clearly acting on an animus against the plaintiff’s religion, making any adverse decision unconstitutional.

    2. No, but in this case we had an act which either was or wasn’t legal, depending on the motive. And there was clear evidence of hostility to religion present. They dismissed his religious motivation as pretextual, despite ample evidence to the contrary.

      My consistent position is that his motive should, properly, be irrelevant, because compelling him to bake a cake is involuntary servitude. Economic transactions ought, properly, to be voluntary on both sides.

      This was once the default libertarian position, of course.

      1. “This was once the default libertarian position, of course.”

        I still don’t entirely understand how it shifted from this so far and so quickly. With the Libertarian Party even going so far as to nominate Gary “Bake the damn cake, Jew-boy” Johnson as their presidential candidate and a gun-grabber VP.

        1. Most of the sensible/principled people left the LP during the 90’s and early oughts, after realizing that campaign finance ‘reforms’ had rendered third parties non-viable in the US. The people left behind were quickly overwhelmed by the left’s march through the institutions.

          At least, that’s what it looks like to me.

        2. Gary Johnson said the government could force the bakers to bake a “gay” cake but not force Jewish bakers to bake a Nazi cake. But there are no religious proscriptions in the Judaic law against Nazis (duh!). So the Jewish baker declining a nazi cake is only a political freedom issue. The Constitution speaks directly to religious freedom (it’s the first freedom!) but is silent about political freedom.

          Stupid Gary Johnson.

          1. And should we bury our heads in the sand and ignore the fact that these “poor, aggrieved” defendants could have driven down the street and got their stupid wedding cake?

            This is all about fascists that will broach no dissent. Libertarians should be aghast.

            1. Yeah really. If I was a baker I’d bake as many cakes as they’d be willing to pay for, and I’m sure they could easily find bakers who would be happy to.

            2. Also I would never try to compel someone to sell me something they didn’t want to sell me. Seems like a prescription for getting a slipshod product.

              1. Especially food.

                1. No, you don’t understand. They weren’t looking for a cake, they were looking for a chance to screw over one of the enemy.

                  A cake you can get anywhere, but a lawsuit bringing the full power of the government down on your enemy requires you to go to your enemy, and get turned down.

                  That’s what we typically find in these cases; That the plaintiffs were shopping for somebody who would refuse to sell to them, so that they could sue.

      2. So would you also argue that being required to serve all races at a diner is also involuntary servitude, or do you see a meaningful difference with this antidiscrimination law?

        1. Yes, I would argue being required to serve all races at a diner is also involuntary servitude.

          1. I agree. If a rastafarian opens a restaurant and refuses to serve white people (who are devils incarnate in their religion), more power to them.

        2. Of course I would. No meaningful difference.

          The 13th amendment’s prohibition of involuntary servitude is in direct conflict with public accommodation laws. But the prevailing viewpoint in the ‘civil rights’ community is that businessmen have no rights the civil rights movement is bound to respect.

          Understand, that a libertarians draw, (Or used to draw, anyway.) a distinction between saying somebody has a right to do something, and approving of their doing it. I don’t approve of racial discrimination, but that doesn’t mean people don’t have a right to be obnoxious assholes.

          1. For me, I draw the line at non-emergency goods/services. Ultimately, it’s going to be a balancing test, and I am okay with requiring ER doctors to not discriminate.

            1. I can see that; The case for emergency services is compelling. But once you admit the legitimacy of compelled servitude, it just snowballs, there’s always another excuse for it.

              1. Of course, drawing lines is always tough. But I think carving out emergency services and common carriers is as good a place to do it as any.

                1. If they’re providing a public service that the government thinks is that important, the (state!) government could offer a subsidy, on the condition of non-discrimination.

                  But we’re so far from an ideal libertarian society now, and heading further every day, that it seems like a fantasy.

            2. Why do you want to enslave doctors?

              1. Doctors are required by their professional ethics not to discriminate in emergency situations. However, doctors do not have to establish a relationship with someone they don’t feel comfortable with for various reasons. For example, does a Jewish doctor need to have a a professional relationship with someone with swastika tatoos? No. Similarly a black doctor doesn’t need to see a white supremacist. Now in both cases, there are plenty who will take care of those patients, but I don’t want the government forcing them.

                1. I didn’t say “doctors.” I said “ER doctors.” Should a black ER doctor be forced to treat a white supremacist who is wheeled in unconscious? Yes. Should a black doctor be forced to see a white supremacist with an earache? No.

        3. This is such an idiotic point. Jim crow didn’t allow discrimination, it enforced it. The government had to step in to force racism on business owners. The fact that this is the example leftists keep bringing up shows a huge ignorance in how businesses and markets work.

          The bakers in question sold all goods to homosexuals except wedding cakes which they consider religious and expressive. The fact you can’t identify this as the issue shows you to be debating from ignorance.

          1. Not to mention that during Jim Crow, white customers would boycott you if you served black customers, so the CRA was necessary for a period of time. That isn’t the case today, with respect to race or sexual preference.

            1. Even then, I suspect the primary concern for must businesses wasn’t potential boycotts. It was the klan, sheriffs who ignored klan activities, a wide variety of boards that could deny permits / slow walk services, etc.

              1. More the Klan and not being protected against them, I think. I’m not sure just how dependent on regulatory approval businesses were in the Jim Crow era. That’s a lot more prevalent today.

            2. Yeah, no. The only reason that the Jim Crow laws existed was that not enough businesses were discriminating. See Plessy v. Ferguson.

          2. Jim crow didn’t allow discrimination, it enforced it. The government had to step in to force racism on business owners.

            How often does this idiocy need to be refuted?

            There are plenty of examples of racist practices by businesses, in the South and elsewhere, that were not required by any law.

            1. And examples of other business that didn’t care to discriminate, but were forced to.

              It would have been enough to remove the force, and protect those who wouldn’t discriminate from violence.

              1. “Enough” for whom?

                1. Enough to vindicate the rights of the freed slaves, without compromising everybody else’s rights.

                  They were entitled to normal legal rights, equal protection of the law. This didn’t mean that the liberties of everybody else had to be reduced.

                  1. Area man celebrates constitutional rights he thinks he has.

              2. And examples of other business that didn’t care to discriminate, but were forced to.

                Are you going to bring up streetcars again? Oh. Kazinski beat you to it. That’s one.

                In the South you would have found hardly any businesses that were forced to discriminate against their will. As ARP points out above, serving blacks would have cost you white business, so economic rationality generally dictated that the business owner discriminate. This is most clear in employment practices, where racist practices were extremely widespread, despite not being mandated by law.

                And of course many owners simply would discriminate if they were allowed to, even if it cost them money. Remember, we are talking about small local businesses.

                Jim Crow laws were not imposed by an invading army. They were passed by the state legislatures, and were overwhelmingly popular among the white populace. A politician who proposed repeal would have been trounced in an election, if not removed from office immediately. Candidates routinely competed to see who could sound more racist. The idea that Jim Crow laws were the source of racist practice is ahistorical nonsense.

                Only a libertarian could believe it.

            2. Plessy v Ferguson was brought with the approval and cooperation of the railroad that was being forced to segregate its railroad cars. Sure their are and were plenty of examples of racist businesses, but it doesn’t refute that Jim Crow laws were enforced by the government against businesses leaving them with no choice to comply.

              1. Jim Crow laws were enforced by the government against businesses leaving them with no choice to comply.

                Yes, but the question is whether businesses would have changed anything if the laws weren’t there. For the most part, they would not have, so you can hardly blame the government for the racism.

                As I said to Brett, these laws were tremendously popular – I’d guess they enjoyed 90+% support among the white population.

            3. “How often does this idiocy need to be refuted?”

              Yeah, it’s pretty ingrained, eh? I mean, the system was called “Jim crow laws” and not “Jim Crow freedom” or “Jim Crow deregulation” I wonder how hard it will be to get people to use the proper terminology.

              1. So you didn’t read past that sentence?

                Afraid you might learn something?

              2. No it was not called ‘Jim Crow laws’. Just as there is actually nothing in any medieval laws re land that uses the term ‘feudal’ or ‘feudalism’. In general, there was no public discussion at all and no attempt to pigeonhole any particular ordinance into a larger ‘system’. To the degree that they were rationalized into a larger system of beliefs; the phrases used would have been positive sounding (eg ‘freedom of association’, ‘extension of civil rights’) or neutral.

                The LA Law at the core of PlessyFerguson starts An Act to promote the comfort of passengers on railway trains and was simply The Louisiana Railway Accommodations Act. It was not created to mandate that color-blind railroads jump through ‘separate but equal’ hoops in order to carry black passengers. It was created so blacks could actually board a train. Because the railroad owners of the day used the ‘southern libertarian’ argument (which seems to be what a lot of R’s today adhere to) that they didn’t want blacks on their property period.

                It’s so screwy that the same rationale that opposed ‘Jim Crow’ as proggie bleeding-heart anti-property nonsense at the start is used to ‘oppose’ Jim Crow repeal as proggie bleeding-heart anti-property nonsense. To a modern R, it all makes sense.

                No surprise. Most of the laws are still on the books and have never been repealed.

                1. Just so we’re clear, you’re argument is that the black people who organized to challenge a law written by the post-Reconstruction Louisiana legislature were doing so to allow railroad companies to refuse to provide them any service at all? I guess in the single year between the passage of the law and when the group formed to challenge the law they forgot how bad it used to be.

                  And wouldn’t it have been easier for the post-Reconstruction Louisiana legislature to simply mandate that railroads couldn’t refuse service to blacks and let the railroads figure out the seating arrangements? The Act seems to spend a lot of time focused on the separating aspect of the law rather than the accommodating part of it.

                  1. And wouldn’t it have been easier for the post-Reconstruction Louisiana legislature to simply mandate that railroads couldn’t refuse service to blacks and let the railroads figure out the seating arrangements?

                    A black legislator at the time said Most of the railroads have been in the habit of crowding colored men and women into smoking cars or such other worn-out old boxes as they have on hand. That WAS the status quo except for a mandate to carry (which didn’t exist until the 1960’s).

                    What the act ACTUALLY did was authorize railroads to refuse to carry on their trains such passengers as may refuse to occupy the car to which they are assigned and to exonerate such railway companies from any and all blame and damages that might result from such refusal. Blacks were the ones mandated to obey the law and denied standing in court to pursue damages. Railroad corporations were granted judicial power and indemnified.

                    It is deceitful for you to pretend these laws were enforced against whites. The black legislators understood that ‘equal facilities’ would never occur but indemnification would snowball into abuse.

                    The Act seems to spend a lot of time focused on the separating aspect of the law rather than the accommodating part of it.

                    Maybe that’s because the intent of the ‘accommodation’ was for ‘the comfort’ of whites.

                    1. “Most of the railroads have been in the habit of crowding colored men and women into smoking cars or such other worn-out old boxes as they have on hand.”

                      I’m confused. Were they crowding them in shitty cars or were they refusing to allow them on their trains like you said in your last post? Pick a story.

                      “It is deceitful for you to pretend these laws were enforced against whites. The black legislators understood that ‘equal facilities’ would never occur but indemnification would snowball into abuse.”

                      If I had done anything like that, you might have a point. But you were the one pretending this law was passed for the benefits of blacks, not me.

                      “A black legislator at the time said”

                      Man, post-Reconstruction Louisiana was apparently a lot more progressive than I thought.

          3. I recently saw something indicating that segregation significantly boosted profits, at least in some cases.

            Washington DC had a law prohibiting discrimination in theaters, but for a long time it wasn’t enforced and they were segregated. When a court decision started enforcement, their profits dropped dramatically, while theaters in nearby VA did better.

            Sadly I’m having trouble finding it.

          4. They even sold premade cakes, just not custom ones.

          5. Jesse, you simpleton, i asked a question to clarify Brett’s position. He answered in the affirmative. You say my question is a stupid point.

            You appear unable to express clearly yourself in words. Why do you think public accommodation law requiring all races to be served is enforced racism?

            If you need a question tailored more closely to this case;

            How would a diner owner refusing (on professed religious grounds) to serve a black person an artfully decorated slice of pie (which they consider to be expressive) be different?

        4. You can’t have freedom of association without freedom from association. And yes, sometimes that manifests itself in ugly ways.

          By the way, are white guys allowed to join the black fraternity that brands the brothers?

    3. No.

      How about an honor killing case where a judge rants about the evils of Islam?

      1. Wedding cakes.. the denial of which is tantamount to murder!

    4. Put it differently. If a trial judge ranted against the character of the defendant, that would be reversible error. Here the commission had members who ranted against the character of the Cake Baker’s faith, in a case where his claim was based on faith.

      I agree on the dodging-the-question issue. It seems to me Kennedy (probably with others) worked for the narrowest of decisions in order to get the most justices on board. And it worked, as it brought Breyer and Kagan over. And — quite possibly — it’s the furthest Kennedy himself would go.

      I’d personally have wanted a cake-creation-as-expression decision, where the court referred explicitly to the privileged position of speech and the necessity of using strict scrutiny when questioning its place.

    5. There is no need for a judge to rant about a crime being despicable or evil. The job is to preside at the trial and decide on applicable sentencing. Editorials should be reserved for editorial sites, not trials. Once a judge sidesteps to editorial commentary, the trial becomes suspect as to its fairness and the outcome may possibly be appealed on that basis.

    6. What’s despicable and evil is you conflating robbery with a person’s right to choose for whom to work. Typical evil spewed, though, from the mouths of anti-liberty and anti-American democrats. Democrats fought a war to keep slaves and have been doing everything since to get their slaves back.

  2. Whatever, I’ve still got a smile on my face. Wonder if they sell cakes mail order?

    Still think it should have been decided on 13th amendment grounds, though.

    1. Voluntarily running a public business and required to serve black/gay/etc. people is not involuntary servitude or slavery as that amendment or phrase (going back to the Northwest Ordinance) was ever understood. Rightly so. But, your thoughts are duly noted.

      The pro-gay rights comments in the opinion help future cases of regulations that require equal access in public businesses where the law is applied with more careful application to avoid claims of religious bias. This very well might include political correctness level care being taken that supporters of the result here in some other context will find bothersome.

      The religious bias reasoning also goes against some of what you said regarding discrimination claims. But, the result is one you like, so smile if you like.

      1. What is a “public business?” A privately owned business is not a public business, no matter how much you leftists like to distort the language.

        1. A public business is a business open to serve members of the public; as opposed to, say, a private sportsman’s club firing range open to serve only members. It’s not hard to understand.

          1. That’s what I said, up thread: Businesses have no rights the ‘civil rights’ community feel obliged to respect. They figure, go into business, lose all your rights.

          2. In your opinion, how discriminatory can a ‘private business’ be when deciding to whom they shall sell memberships? Can the owner of a ‘private business’ refuse to sell memberships to anyone not of the owner’s race?

            1. It’s at least valid at the gender level, see women’s only gems. Why special carve outs for them?

              1. Some states don’t even allow those.

            2. They can sell memberships to left-handed redheads only, for all I care, and it’s OK. I don’t know what the law says.

              Around here, V.F.W. halls often have bars attached. I can’t go in and buy a drink, though, because it’s a private business restricted to members only and I don’t qualify. The restaurant that I’m sitting in at the bar right now tapping out this comment, though, is a public business. Again, it’s not difficult.

              1. Great, I’ll start a convenience store open to Members Only. The memberships themselves are free and last only one day, but I retain the ability to give them only to people I want.

                Is this legal in your mind?

          3. So if you run a “public” business, you have to give up your religious freedoms…you know the first rights enshrined by the Constitution. I missed the right to have a gay wedding cake baked for you (or really the right not have to drive down the street to get it baked for you.)

      2. Hey dummy. They did serve homosexuals. They just didn’t make wedding cakes. Religious people believe marriage is a sacramental rite. It is a core part of their religion. You wouldn’t ask a priest to be forced to participate in a black mass would you?

        It is such dishonesty to not be able to separate the tell girls question of marriage fr a general goods question.

        1. Religious people believe marriage is a sacramental rite. It is a core part of their religion.

          No they pretty clearly don’t. Yes it started as a religious ritual. And the civil laws are all direct copies of the rules of marriage as propounded by ecclesiastical courts of the Church of England (and before that Catholic Church).

          But the moment they rewrote the vows to say by the authority vested in me by the state of XXX, I now pronounce you man and wife, they ceded all claims to it being a religious ceremony. The pottage of being granted various civil privileges was obviously more valuable than any sacramental/religious stuff.

          Turns out that once they sold themselves into establishmentarianism, they also then lost all their moral/religious credibility to keep the institution establishmentarian. Whodathunk it.

          1. As an aside – a very small group of churches did refuse to rewrite their vows. No surprise, they are also the ones that regularly demonstrate how their religious beliefs inform their everyday living – Amish, etc – and thus how protection of freedom of religion and protection from establishment of religion should be interpreted to limit the state.

            All the rest are just hypocritical assholes.

          2. “But the moment they rewrote the vows to say by the authority vested in me by the state of XXX, I now pronounce you man and wife,”

            I’m not aware of any state that requires these magic words to be recited for a marriage to be valid.

            “they ceded all claims to it being a religious ceremony.”

            Not a fan of multi-tasking?

      3. Hey dummy. They did serve homosexuals. They just didn’t make wedding cakes. Religious people believe marriage is a sacramental rite. It is a core part of their religion. You wouldn’t ask a priest to be forced to participate in a black mass would you?

        It is such dishonesty to not be able to separate the tell girls question of marriage fr a general goods question.

        1. I am of the opinion that the couple who brought the suit should simply have shopped for a cake elsewhere, but, let’s be clear: making a cake for a wedding is not “participating” in that wedding, it is not condoning it, it is not sanctifying it. It remains an act of commerce. I have yet to hear of a baker who investigates the moral turpitude of other potential customers before selling them a product: adultery? divorce? other things that the Bible takes as strong or stronger stand against as homosexuality. It always seems to be gay weddings specifically that raises the ire of these devout bakers that have popped, so dramatically and in such numbers, out of the woodwork since the advent of marriage equality.

      4. I love how you just make up the term “public business”, then pretend it means people’s basic human rights can be denied because they run a “public business”.

        Pro-tip: it’s a PRIVATE business, run by a citizen, who is protected just as much by the 13th amendment as everyone else. The 13th amendment isn’t suspended just because a gay couple wants a cake.

  3. This based on an ancient judicial doctrine: when it is a tough case, punt.

    1. It’s not that tough. ALL Americans have the right to choose form to work and have the right to be free from involuntary servitude. This case is an easy case to decide for anyone with a basic understanding of the right to liberty and the clear language of our constitution. It is only “a tough case” to those who think the constitution is inconvenient to their desired political goals, in this case to oppress Christians and deny Christians their 1A and 13A rights.

  4. This is a very arrow, fact-bound decision. It wouldn’t have been, though, unless the Court implicitly rejected certain propositions that would have made the factual inquiry unnecessary. First, it clearly rejected the “I don’t have to sell to f****ts if I don’t want to (13th amendment), or can claim that my religion prohibits it (first amendment-religion)” theory. Second, you can decline to bake a “message” cake: “Happy Hitler’s Birthday” or “Congratulations Adam and Steve.” (first amendment–religion and free speech). But, third, you can’t decline to sell to gay people or gay couples the very same cake you would sell without objection to straight people or straight couples (same). Unless these propositions are true, there is not need to get into what the Court felt the need to get into.

    1. I don’t think the last one has been resolved. The Court thought the factual issues were not properly developed and not clear what was really going on. The concurrences certainly debate the point.

    2. Unless these propositions are true, there is not need to get into what the Court felt the need to get into.

      This is not a correct reading of the decision.

      The way the Court rejects X is by saying, “We reject X.” One can’t read into the fact that it decided something it didn’t have to if X is true as deciding that X isn’t true. It is possible, for instance, that there were 5 votes for a broad free exercise ruling but 7 votes for this narrower ruling, and they decided that they’d rather have the latter than the former.

      (To be sure, the court does not have two — let alone five — Ayn Rands on it; it is not going to overturn all anti-discrimination law via a 13th amendment argument. But we know that from common sense, not from this opinion.)

  5. I skipped to the penultimate paragraph:

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

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

    1. Not surprising, Tony K. has always been considered himself the grater protector and “white knight” to gays.

      1. great [not grater]

      2. Yes, he thinks there’s dignity in having gay anal sex. His own decision said so!

        1. At any rate there’s not much dignity for the receptive partner.

          1. Not at all.

        2. Why are “conservatives” obsessed with how they believe others have sex? Is it because they experiance so little of it themselves?

          1. HIV is being spread how? Let me know then.

            1. I dunno. Let’s ask the 7,500 or so women who contracted HIV last year and see if they have any ideas.

              1. It’s pretty obvious where the spread of HIV is coming from.

                According to the CDC:

                Risky behaviors, like having anal or vaginal sex without using a condom or taking medicines to prevent or treat HIV, and sharing needles or syringes play a big role in HIV transmission.

                Anal sex is the highest-risk sexual behavior.

                If you don’t have HIV, being a receptive partner (or bottom) for anal sex is the highest-risk sexual activity for getting HIV. If you do have HIV, being the insertive partner (or top) for anal sex is the highest-risk sexual activity for transmitting HIV.


                Also according to the CDC, in 2014, the estimated new HIV infections percents were:

                Drug users: 7%
                Heterosexuals: 23%
                Gay and bisexual men: 70%

              2. Anyway, personally I don’t care who you diddle and how you do it, but to imply that conservatives care more than liberals about who sticks what and where is just plain wrong, in that liberals are way more concerned about dealing with the effects of HIV/AIDS, as well as implementing sex education classes everywhere.

                Statistically, conservatives appear to actually be having more sex, or at least more reproductive sex, as they are having more kids. And according to this VICE article I just saw, called “Why Conservatives Have Better Sex Lives than Liberals” they are more satisfied on the whole.

            2. This opinion brought to you by 1982.

              1. I actually take that as a compliment.

    2. Can you think of religious views that do not merit respect? There are sincere crackpots, and worse, in the world, you know.

      What indignities do you think gay people can be subjected to that are not “undue?”

      1. Being told you have to go to another baker to get your cake, for one.

        1. Saying Bette Midler and Judy Garland are overrated?

      2. The opinion could have said “undue disrespect” in both instances. But it didn’t.

      3. “There are sincere crackpots, and worse, in the world, you know.”

        Which is the reason it’s not always disrespectful to disagree with a gay person about something – they might be one of those crackpots.

      4. People get hung up on the 1A side of this, but it’s a clear 13A case. People have the right to choose for whom they work and can decide yes or no for ANY reason.

  6. As facially narrow as this 7-2 decision is, it does something profound. The opinion firmly establishes that religious belief can manifest in commerce and that arguments to the contrary (at least in an adjudicatory setting) are grounds for finding a violation. It has a certain Marbury v. Madison character to it.

    Notably, the opinion framed the issue of religious protection in fact-bound-terms, implicitly dismissing the idea that there is a principled dividing line between clergy and other religious persons (p. 12 citing Obergefell). The Court, assuming the obviousness, wrote that refusal by clergy to officiate a wedding is “an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth” (p.13). The Court continued to address the protection due the baker. The important thing there is that the juxtaposition was less a contrast than stating that the same principles apply and that care must be taken in evaluating the facts.

    This is directly contrary to what many (usually liberal) scholars and many in the public debate have insisted. There has been a general belief that Obergefell’s restraint in not criticizing religious views against homosexuality was more tact than principle. This case answers, quite resolutely, that that wasn’t the case.

  7. Finally, the careful reader might be asking: Does all this talk about government officials’ statements showing religious bias foreshadow the result in the so-called (rightly or wrongly) “Trump Travel Ban” case, where the challengers are arguing that various statements by candidate Trump or President Trump show that the restrictions on travel from certain countries were motivated by religious hostility? Your guess is as good as mine.

    Well, if the supremes can determine that frequent loud and strident statements by Obama that “it is NOT A TAX!!”
    makes it a tax, they can also say whatever they want to, regardless of facts, in the travel ban case.

  8. “Justices Ginsburg and Sotomayor disagreed that such discrimination against the religious was showin this particular case”

    Or any case involving Christians.

    1. They would probably dismiss Scientology too.

      1. Somewhat in the same way Islam wins special judicial consideration thanks to its willingness to behead people, Scientology benefits from having a rather extensive selection of blackmail files on prominent people.

        Religions generally only get respect from government if they are the overwhelming majority, or in some way dangerous if offended.

        1. “Religions generally only get respect from government if they are the overwhelming majority”

          Maybe from the legislature and executive but the courts only respect minority religions.

          Most of the free exercise cases involve Jehovah’s Witnesses and other “disfavored” sects [or individuals with esoteric beliefs], the smaller the better.

          Meanwhile the establishment cases are direct attacks at mainstream Christianity.

          1. Isn’t this exactly what you would and should expect? The elected branches of government favor popular religions, wouldn’t be inclined to restrict their free exercise, and would be inclined to establish their practices. They would not be inclined to favor minority religions, would be unlikely to concern themselves with whether the laws they pass or enforce restrict free exercise of minority religions, and would be extremely unlikely to pass laws establishing minority religious practices. Unelected courts consider the cases in front of them, which, in this country, means that mainstream Christians rarely have a reason to sue over free exercise claims or the establishment of minority religious practices, and that minority religions have exactly the opposite incentives to sue.

  9. Public accommodation laws violate the substantive due process right of individuals to do business with the people they want to.

    1. substantive due process is a complete joke

      1. Of course, but if it protects things the left likes, it should protect us too.

        1. It shouldn’t protect anything bc it’s nonsense.

  10. “especially when government commissioners realize they shouldn’t say more about religion than is necessary to deal with the particular religious objections raised in those cases. ”

    I’m truly shocked that any quasi-judicial board member didn’t already know this…

    Ironically, this case may actually help bring us together. I think both left and right agree that these particular commissioners are idiots, and their entire staffs should be fired for gross incompetence in so utterly failing to prepare their clients.

  11. Kagan’s concurring opinion, joined by Justice Breyer, pretty much instructed the Commissioners what to say and what not to say at the inevitable rehearing if they wanted to decide the same way but have their decision get upheld by the Supreme Court. Speak respectfully to everybody, no badmouthing the bakers’ religious views or their opposition to gay marriage, and everything will be fine. Two other liberals would have upheld as is.

    Three conservatives (Gorsuch, Allison, and Thomas) suggested that previous rulings upholding refusals to sell cakes with anti-gay wedding messages as protected by the First Amendment bind the Commission and require it to rule Masterpiece Cakeshop is also protected by the First Amendment.

    So this leaves Kennedy and Roberts.

    Nonetheless, the majority opinion suggested that even if Masterpiece Cakeshop prevailed under the specific facts and baggage of the case, the result might be different if based on a clean slate. But it hedged – perhaps if the bakers win if they are asked to put specific messages on their cakes, but not otherwise.

    1. As you line up the votes on Cake II, we would have a perfect opportunity to see loki13’s rule in action: What Roberts and Kagan agree on is right and if they disagree, Alito is wrong.

      1. Is there a Sotomayor Corollary to this rule?

        1. Not one you’re likely to get out of loki

      2. The first thing I though of when I saw the lineup was loki’s rule! I knew the decision was correct without reading it.

  12. Nonetheless the opinion says a great deal about the tone that government officials need to take. If they are too openly hostile to religious conservatives, what they want to do will backfire. They can’t take a triumphalist stance.

    1. They should have said, “sir, I have a great deal of respect for your sincere religious beliefs. Faith is part of what made America. But in this particular case, my duty regretfully requires me to screw – I mean rule against you.”

    2. Define hostile. Is the Six figure fine of a baker on Oregon hostile? Or does it require words?

  13. I don’t get it. Who won, and what did they win?

    1. An online search of to find other bakers?

    2. The baker gets the right not to have to file quarterly reports explaining why he hasn’t complied with what the Department wants him to comply with.

      1. for now… can’t the board just get a new complaintent and start over? And this time, be smart enough to keep their mouths shut?

        1. And this time, be smart enough to keep their mouths shut?

          I’m not certain how that would help, considering they’ve already shown themselves to be prejudicial towards Christians who actually hold sincere beliefs and don’t treat their religion like a left-wing version of the Rotary Club. Pretty much every person who gets a complaint brought against them can point to this decision and say, “I already know I won’t get a fair hearing because the Supreme Court directly called them out for being Christian-haters.”

          Maybe if everyone on the Commission is replaced, that could help, but now they’re open to having their entire history of public statements opened up to scrutiny. Any remark saying negative things about Christians in any context will be shown as evidence that they’re not impartial and will have an ax to grind.

  14. “Your guess is as good as mine.”

    One distinction is that the members of a Civil Rights Commission are exercising quasi-judicial powers and have a greater obligation of fairness and being un-biased.

    Whether that makes a sufficient distinction for Tony K., who knows.

  15. The punt seems weird, giving that it is inevitable that more challenges will come up…manufactured or not. The idea of cake baking as being fundamentally expressive should have been determined to establish the line. Can the hair stylist of the same-sex couple discriminate or not…the wedding flower arranger…..the reception room decorator….the lawn shrub “shaper” (if the wedding is conducted at someone’s house)? I think I see that the majority of the Court has opinions on this….why would they choose the narrow route…unless as Eugene surmises….this might have some short-term benefit related to Trump’s travel ban.

    1. Still waiting to see how the political wars turn out. Why take the heat if in 2021 it’s only going to result in the Court being packed, and any conservative precedents being overturned?

      This is NOT a courageous Court, it’s a Court that’s trying to avoid making enemies.

      1. But it’s the same Court basically that decided Windsor and Heller and Citizens United….they know that this is not going away…so why no lecture about dignity from Kennedy? I’m shocked

        1. Probably because this is overreach by the LGBT community and because white Christians aren’t the only religious group in America. I would have preferred conservatives take the “bull by the horns” and do this to a Muslim baker so maybe the Left could see how irrational they are behaving.

    2. Expressive or otherwise, everyone has the right to have their case heard by a neutral arbiter.

      That seems more ‘fundamental’ that details of what is and isn’t expressive.

    3. Hairdressers, florists, and interior decorators are known to display great animus toward same-sex couples, so clearly they must not be allowed to decline to provide such services because otherwise same-sex couples would have no alternatives.

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

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

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

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

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

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

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

    Pluralism and freedom and all that jazz.

    1. Because for the reformers, the fight for getting same-sex marriage was more than just getting the government to recognize a type of legal contract between two types of people that were not able to make that type of contract before, it was about social inclusion and acceptance. To them, if you reject their viewpoint and dismiss was what a long fought legal right, than you are rejecting them as a person. And dammit, the government is on the side of the same-sex marriage advocates here, and if someone won’t voluntarily give me respect, Big Brother will MAKE you, or else.

      Likewise, to many Christians, their religion is not just what they do in church on Sundays, it defines them as a person. To force them to bake a cake antithetical to their beliefs is to us the power of government, which as citizens they have a say in, means that the same-sex marriage advocates are using THEIR government to force them to change their innermost vision of themselves.

      1. Well said.

        1. Thanks! (despite the typos I noticed after I posted).

          This problem of the “personal as political” even more “problematic” as we move forward with a more diverse culture that is increasingly secular.

          Most of us want to feel like we are part of something greater than ourselves, and this often motivated religiosity and patriotism. Party identification is filling in that “greater than yourself” feeling for more and more people rather than religion.

          I wish people would use some sort of geek fandom for that “greater than oneself” feeling, like Star Wars or Star Trek, but it is increasingly the GOP and Democrat Party that are taking the place of God. Disrespecting someone’s fandom in Star Trek when they view that fandom as part of their identity is not as disruptive to democracy as disrespecting someone’s party affiliation when they view it as part of their identity.

      2. Except, it won’t work, in the most direct sense.

        No matter how stringent the law may end up being in terms of requiring people to provide goods and services to other people they may not wish to, I sincerely doubt there could ever possibly be a law requiring business owners to be polite to potential customers.

        “So, what flavor of cake is it you want for your filthy sodomite ritual?”

        It’s perfectly possible to provide someone with a product while making it exceedingly clear that you dislike them.

    2. Public accommodation laws…mixed in with explicit state anti-discrimination law. Do you believe blacks should just have gotten over it and headed over to restaurant without the “no blacks served” sign (not meaning to be Godwinesque)? One could rightly argue whether homosexuals should be a protected class….but there is nothing wrong with making businesses open to the public….be literally open to the public…and not deny service based on some quasi-irrational bigotry. Sure, this one has a small cloak of religion…which makes it interesting….but the actual intersection…in my opinion…is pretty remote…or else the baker would be making more efforts to screen other heresy.

      1. “small cloak of religion”

        That’s putting it very lightly, (wrongly I might add) and a severe diminution of the importance of beliefs and ideology in the minds of the average person. People are willing to fight, and die, for many other symbolic things, let alone just file a lawsuit.

        1. The baker was not being asked to attend the wedding….it was actually conducted in another state weeks earlier. He was not asked to endorse the wedding….or provide his Christian analysis of the morality of the wedding. He just had to provide a cake. Had a straight couple come in and ordered the wedding cake….and then delivered the cake to the reception themselves….the baker would not have known differently…just as he generally would not know whether any of his other customers were atheists, divorced, or fornicators. If the baker was not being asked to write something objectionable on the cake, it loses the true expressive angle or else any other piece of reception food or drink somehow becomes protected speech. The fact that the baker did not have to participate in any meaningful sense with the reception celebration…let alone the wedding….means that the religious accommodation aspect is also suspect. There is nothing in the Bible stating the symbolic importance of the wedding cake…anymore than there is about the significance of the wedding haircut. What am I missing?

          1. If the gay couple had come in and ordered a pre-made cake behind the shelf, the guy would have sold it to them. Instead, they wanted one specially made for their wedding, and therein lies the difference.

            “There is nothing in the Bible stating the symbolic importance of the wedding cake…”

            Yes, but the bible is clear that marriage is between a man and a woman (leaving aside ancient plural marriages in the Old Testament) and very clear that homosexuality is morally wrong (Romans 1:26-28). Yes, I am sure most Christian men at some point have watched lesbian pr0n, the point here is not to point out hypocrisy, but to show you that baking the cake would make said baker complicit in something deeply morally antithetical to him.

            It’s not the cake, but rather what the cake is celebrating. I am sure that there is some symbolic act, which is meaningless in the scheme of things, but that you are unwilling to participate as it would make you complicit with a (to you) morally wrong act. Imagine we kissed the ring of the president, or bowed to him, like we used to have to do to royalty not that long ago. Would you bow and kiss the ring of Trump?

            1. But is the baker any more complicit than the hairstylist, tuxedo renter, hall provider, florist, honeymoon travel agent, hotelier, limo driver, or caterer….or can they all opt out? Again, this is not a photographer that has to attend the ceremony and/or the reception…or a singer or officiant that must perform at the reception…or a florist that is decorating the church…this is at most someone who stages the cake at the reception venue….which was weeks after the actual wedding in a different state. It seems that the couple could purchase an anniversary cake to celebrate their marriage or a birthday cake to celebrate the birth of their child…but the wedding cake itself has to be treated specially….as if the flour and sugar take on some special significance. The baker disagrees with Windsor and calling it marriage. I get that. I think he can express that in ways where he does not deny service…especially in a state with a non-discrimination law that covers gays.

              1. Considering marriage is a CIVIL institution in America this shouldn’t even be an issue because if the Christian opposes homosexual behavior then SSM probably leads to less overall homosexual behavior. I hate to break it to Christians but two gay dudes don’t need to get married to engage in homosexual behavior!

              2. AJ, you should listen to the oral arguments from this case. A ton of hypothetical situations about hairdressers and architects, etc., were discussed and debated. You might find it enlightening.

                The situation here was about the baker though. To your thought experiment, I suppose if two men went to a conservative Christian hairdresser and said “give me the works for my gay wedding” we would have the same result. But all my hair dressers who are male have been gay, though I suppose a conservative Christian woman may have the same reaction as this baker.

                Still, you’re dodging my question. If you had to kiss Trump’s ring in alternative world where the president is made royalty with all the attached pomp of yesteryear, would you do it? Would you, AJ_Liberty, kiss Trump’s ring. It’s merely a symbolic act of submission, harmless in the scheme of things, right?

            2. Wrong, there is nothing in the Bible that says simply being a homosexual is wrong. SSM does not necessarily have anything to do with homosexual behavior but even if it did the homosexual behavior is happening regardless of the two dudes get married!!

              1. Sebastian, that’s threading a needle. The bible doesn’t say being gay is wrong, but engaging in homosexual acts is wrong. Here is a very clear passage from the NT:

                Because of this, God gave them over to shameful lusts. Even their women exchanged natural sexual relations for unnatural ones. In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed shameful acts with other men, and received in themselves the due penalty for their error.
                Furthermore, just as they did not think it worthwhile to retain the knowledge of God, so God gave them over to a depraved mind, so that they do what ought not to be done.
                So if you’re going to be legalistic about it, yes, you could be gay and not engage in any sex acts and you’re not sinning according to the religion.

                1. I actually believe Christians are “threading a needle”. You lost! SSM is the law of the land so just accept it and move on with your life. The notion one’s religious beliefs compel a person to not bake a cake for a perfectly legal and innocuous civil ceremony is absurd.

                  Many Christians own liquor stores but at certain times Christians have attempted to outlaw alcohol…do you think a Christian should run a liquor store?? Because if you do Christians in 1919 probably wouldn’t consider you a good Christian!

                  1. I didn’t lose, in that I had changed my mind in supporting SSM before Obegerfell because straight people had already ruined it before gays got ahold of it. But yea, Christians lost.

                    While you may think it absurd, you do not constitute a majority of public opinion. And as for you’re example of Prohibition, I’ve actually had this debate before with a super conservative sect of Christianity which was against alcohol. I asked them “Do you know what Jesus’ first miracle was?” Well, it was turning water into wine at the wedding in Cana when the party was still going when the host ran out of wine. Mary basically ordered him to do it and he complied. So Jesus was actually in support of people getting drunk for a happy occasion at a wedding, and in fact they complemented the quality of the wine. Look it up if you don’t believe me.

                    Christians were deeply split on the issue of Prohibition. Germans Lutherans and the significant southern European Catholics, and Irish Catholics saw Prohibition for what it was, an attack on their culture. But the Progressive Northern European prudes won the day….for a time at least, until the repeal.

                    1. The notion WASPs considered the other Christians to even be Christians is absurd. WASPs won the day because WASP culture was deemed the superior culture that Americans desired to perpetuate. Sorry, if you are Catholic descended from a family that came here during the Great Wave then you would not have even been deemed equal to the WASP ruling class. That is why it was a big deal in 1960 when Kennedy ran and won as a Catholic.

                    2. While plenty of evangelical Christians even today think that Catholics are not “real Christians” in the sense that they are deluded fools working with/for the whore of Babylon, I’m not sure how far Progressives took that line of reasoning into support of Prohibition (which they argued for mostly in non-religious arguments). While there were Know-Nothings who were explicitly anti-Catholic, most pro-Prohibition arguments were about men spending their pay down at the bar and the poor starving wife and children, etc.

                      Nor do you or I know how common that “Catholics aren’t real Christians” thinking was at the turn of the 20th Century. Let me know if you find some survey data on it. I suspect, like today, they still acknowledged that Catholics are least are “brothers and sisters in Christ” even if deluded. Now the Mormons though…,,they aren’t real Christians…*snicker*

                      Still, that was not the point of your syllogism about Prohibition, now was it?

                    3. Progressives believed in the supremacy of WASP culture and the inferiority of the cultures of the Great Wave immigrants. So yes the Christians that promoted Prohibition were motivated by women’s rights and public health concerns but it was couched as a religious crusade.

                      Related to Progressives was the second iteration of the KKK which was founded in 1915 as anti-Catholic and anti-immigrant and pro-Prohibition. So that KKK died out because Progressives were successful and greatly reduced immigration and enacted Prohibition.

                      The reason Catholics are now accepted by WASPs in America is because the vast majority of American Catholics have assimilated to WASP culture. That said the anti-immigrant fervor among Trump supporters is in part anti-Catholic in that Trump supporters believe Latino Catholics have an inferior culture to WASPs and assimilated American Catholics.

                    4. The 2nd wave of the KKK died out after a series of funding-raising scandals. The immigration restrictions put into place in 1924 were likely inconsequential because the KKK also existed to much more strongly to support white supremacy and blacks didn’t go anywhere. Furthermore, the first immigration restrictions, like the Chinese Exclusion Act, occurred before the 2nd wave of the KKK was founded, in 1882.

                      As to your point about Progressives thinking N. European culture was superior, I don’t disagree. And yes, the Italians and Irish assimilated, mostly, but I’m not sure that is why Catholics are (mostly) accepted by WASPs. That is a point you have to prove, and I see nothing but an assertion with no data points.

                      As for why Trump voters are anti Latino, I disagree, it’s more about the rule of law and illegal immigration than anti-Hispanic animus. My evidence is both my own experiences in talking with them, as well as the things they say in interviews, in surveys, to the media, and online. The more alt-right elements of Trump supporters, to be sure, have a problem with low IQ mestizos coming in here and sucking on the welfare teat. Now, please don’t presume that they are all lying and secretly, in their heart of hearts and in the privacy of their living rooms they rant like Richard Spencer.

                    5. I mostly support Trump with respect to immigration because you won’t help any Latino immigrants if they come in such great numbers that assimilation isn’t induced. So assimilation is a necessary aspect of our immigration system and the culture that immigrants should assimilate to is WASP culture. So America got lucky after the Great Wave in that the Great Depression and WW2 were essentially a blast furnace that melted (assimilated) white immigrants in record time. I think because assimilation is so important we must err on the side of too few immigrants instead of too many.

                    6. Well, I agree, I also think that this country should have fewer immigrants and more assimilation. 🙂

          2. Actually it is custom in a gay wedding for the cake baker to participate in the post reception orgy.

      2. No, it’s not what I think but I do feel there’s a difference.

        Homosexuals have more rights (and I’m not saying it’s perfect as we know there are still some wrinkles to iron out) than blacks did back then. It was a cultural problem that eventually got onto a path of fixing (and perhaps even healing) itself. There is no widespread discrimination against gays anymore Muslims face persecution. Heck, call me when Muslims face real discrimination on the level of the Jews have in the West.

        This was one baker, one place in time. And it was distorted as if there are more like him.

        They had options. Blacks didn’t.

        1. call me when Muslims face real discrimination on the level of the Jews have in the West.

          That’s…a low bar.

      3. Yes. Because the number of restaurants that would sell food to anybody would drive the bigot-run restaurants out of business, except for about 1 bar where the Klan guys would hang out.

    3. Or write a review on Yelp and then let it go.

      What we have here is a breakdown in civility by both parties. The Christian has misinterpreted the Bible most likely due to animus for homosexuality and the gay couple is motivated to make a big deal out of this out of animus for Christians. In 2018 this should not be a big deal because it is very easy to find a bakery to bake a cake and then notify everyone that this baker is dick.

      Btw, the wedding industry in 2018 in major cities is about as unChristian as an industry could be because money and envy has corrupted it.

    4. Substitute “old” or “Jew” or “Black” in and see if you still agree.

      [ And, I will give props to our resident right-wing nut jobs, they are at least consistent in saying that it’s fine no matter what. Try going to either the court of law or the court of public opinion and argue that you should be able to discriminate against blacks and see how well that goes though. ]

      1. Appeal to popularity is not a compelling argument.

        1. Neither is tilting at Civil Rights Act windmills.

          1. Oops, I replied to the guy who doesn’t want women to vote.

            Thinking this guy cares about his opinions’ viability is itself tilting at a windmill.

        2. It’s quite compelling, in the sense that you have discredited yourself in the eyes of at least 80% of readers of our comments.

          It’s a free country, you can mill about outside the Overton Window if you like. But we’re also free not to take fringe views seriously.

  17. Did they grant cert expecting this nothing-burger outcome? Or were they hoping to answer some, if not all of Eugene’s questions, and unhappily found themselves unable to get to five votes on any of the questions?

    1. Also, why did it take six months form oral arguments to produce the nothing burger? I wonder how close they came to something more tasty?

      1. Maybe they couldn’t find a non-ideological deli that would cook up and serve them that tasty burger…metaphorically.

  18. So we atheists are fucked, right?

    1. Probably in more than just the Constitutional sense 🙂

      1. I have no doubt that it is a fetish somewhere…

    2. Probably not. Presumably had the Civil Rights Commission ruled against an atheist who refused to serve a Lutheran wedding because of their atheist beliefs, and the Commission showed hostility to atheist beliefs, the atheist would win his case.

    3. Agnostics for the win.

      Without exception.

    4. Just make up a religion so you get those rights. People that don’t own guns don’t have it nearly as easy as atheists.

      That said this court and our federal government have shown extreme animus to any religion that promotes polygamy so my advice is to make your religion as gay as possible!

      1. You joke, but acceptance of plural marriage is what is next on the agenda, after trans rights (should the left win on that one).

        1. I am not joking and I think it is pretty clear that not allowing plural marriage is unConstitutional pursuant Obergefell with Kennedy’s opinion being strong evidence of animus for those that engage in plural marriage.

          1. Well, then you just provided more evidence for any passersby about my assertion that the left is going to go for plural marriage next. Thanks I suppose.

            1. And you provide evidence that the only religion you care about is Christianity because right now Muslims can engage in plural marriages and so we are currently discriminating against Muslims by having laws that clearly display animus for their deeply held religious beliefs.

              1. In America, Muslims cannot engage in plural marriage you dope. Nor can anyone else. I don’t are what the rules are in Saudi Arabia. This is a blog, and a thread, about American courts.

                I think you will find that if your compatriots win the day on trans issues and move onto plural marriage, that will be a much tougher hill to climb. Not because the women are against it, there are plenty of women who would gladly be Bill Gates’ 3rd wife for the money, but that the men without means will see the unequal distribution of reproductive access and won’t stand for it. It’s happened before.

                SSM was won rather easily because most people know at least one gay person who is a stand up fellow or gal. It won’t be as easy with plural marriage.

                1. And in 2000 gays couldn’t engage in same sex marriage.

                  My point is the arguments expounded by Kennedy in Obergefell very clearly make prohibitions on plural marriage unConstitutional. Kennedy knew this which is why his opinion contains pretty obvious animus for plural marriage as he uses the word “couple” over and over like a child that is trying to trick a parent into going to McDonald’s for dinner.

                  I personally believe the government should get out of the marriage business now that men and women are on equal footing with respect to drafting and signing a contract. I think all couples should spend less time planning a wedding and more time drafting a contract to spell out expectations in a marriage and control division of property in case of divorce. So I think this baker that believes marriage is a great Christian institution is part of the problem because marriage in America is a broken institution.

                  1. You actually have to go back to the Lawrence decision that made sodomy laws illegal. Scalia saw the writing on the wall. If a state can’t prohibit sodomy, then it was only a matter of time before all manner of court cases came their way for repeal of this or that related to sex. He predicted Obergefell if you read his dissent. I actually think legalized prostitution will be next. The arguments for it are much stronger than for plural marriage.

                    The government can’t get out of the marriage business, because it is so tied up with child custody and survivor benefits and welfare based on family income, and court cases to decide assets after a divorce. When you get married, it’s a standardized contract across the state (for the most part). If the government got out of the marriage business, each marriage would be an a individualized contract requiring particular attention to its particular details, and this assumes a contract at all. When they divorce, and many will, the courts would get involved anyway, as part of dispute resolutions.

                    1. Slippery slope arguments are not actually probative.

                      There may be some logical parallels, but logic does not move policy. I don’t see a lot of discussion of polygamy from the left. To be a bit cynical, I think it’s because they don’t have a constituency there.

                      There are also cultural reasons the government won’t get out of the marriage business.

                    2. Polygamy would be an interesting topic to study for public opinion on the left. I bet it would split them. Plenty would support it because of Islam, but they don’t support fundamentalist Mormons right now as they say polygamy is exploitative of women (ignoring the lost boys created by the system). However, the left is pushing for cultural acceptance of polyamory, and has pretty much normalized serial monogamy and a “party till 29 then try to lock down a spouse” Sex in the City lifestyle that is only a step away from polygamy. I know well-to-do and handsome fellas with a “soft harem” of women they manage by not staying exclusive, but they are the exception, though most women have a male they keep in orbit as a back up plan.

                2. I suspect that there are plenty of men who would be willing to become Bill Gates’s 3d spouse for the money.

    5. No. If not for the religious exemptions, the doors to this and other rights would be closed for good. Now that there is a religious pry-bar in the right to free association, we can hopefully use that to expand the right to everyone.

      1. Yes! Let’s not require only those who worship a deity to be allowed to freely associate.

  19. I generally do not like rulings that are based on the intent of the parties. It simply encourages people to mask their true feelings as to why they are doing what they are doing. The next time this matter is before the Colorado Civil Rights Commission, having been aware of the Court’s ruling in this case, they will know what statements will cause them problems and defend their ruling differently. The result will be the same, while encouraging a dishonest public debate about the matter.

    In this regard, the Court’s ruling is unfortunate for the same reason that the Court’s ruling in University of California v. Bakke terrible. In Bakke, it was clear that University of California’s motive for supporting affirmative action was to compensate victims of prior societal discrimination. The Supreme Court ruled that this was not a basis to allow affirmative action but found that promoting diversity is a compelling reason to allow it. After that ruling, those who supported affirmative action to compensate for prior discrimination, did not stop supporting it. They simply started paying lip service to the importance of promoting diversity, so that a policy they supported would be found constitutional. The entire public conversation about affirmative action was dishonest because of the Supreme Court’s ruling in Bakke.

    1. Agreed. They may have helped Masterpiece, but they just wrote a script for the CCRC to follow the next time they want to screw over a Christian baker.

      Good analogy to Bakke. That’s exactly what happened.

      1. “may have helped Masterpiece”

        If the “civil rights” commission can re-hear the case [I am unclear on this], then it is a Pyrrhic victory and they were not helped at all..

    2. Concur with the comment re Bakke. In Grutter v Bollinger, the 5 justices in the SC accepted without any critical analysis that the the purpose was to create the “critical mass” for diversity. Even though it was quite obvious from the findings of fact at the trial court level that UM had a quota. The CA 6 then discarded the findings of fact and accepted the pleadings of UM as the facts de nova- ignoring the obvious reality.

      The second point is that the progressives are trying to cram their beliefs down everyones throat.

  20. How about that? A MODEST Supreme Court decision which resolves the plaintiffs’ dispute, without trying to set a broad policy. Who’d have thunk it? More like this, please.

    1. Uh, no. The Court’s function is to create precedent, not to correct the world one case at a time.

      1. Wrong…the Court’s function is to solve disputes, not set policy (even though that happens, it generally shouldn’t).

        The court is an anti-majoritarian institution and in a Republic it is the job of the elected branches to set broad policies.

        1. I wouldn’t mind a Volokh post revisiting the ‘minimalism-activism’ dichotomy. It’s interesting seeing the right swing towards activism, and I have trouble nailing down where in the squishy middle ground I draw my line. I think separation of powers requires that a court neither be a retiring minimalist you never see nor a muscular activist that weighs in on everything. Beyond that…

          Nothing clarifies like debate!

          1. Yes, the right wing has swung towards judicial activism, in that there has been a conservative “rights revolution” modeled after the one that the left kicked into high gear in the 1950-60s. Until the 1980s, the right sought to “tame the courts” but left wing decisions had too much staying power (and popularity), and the right was ceding a whole field of battle in the culture war to the left by not engaging in rights based litigation of their own.

            You’re never going to see a return to a pre “switch in time to save nine” jurisprudence, despite all the federalism and Commerce Clause cases that started in the 1990s, but rather you will see a “rights on the right” judicial activism as much as the “rights on the left”.

    2. Except that the Supreme Court exists to resolve issues of nationwide importance. This opinion does nothing to resolve the issues that are actually of importance, so it just ensures more litigation and uncertainty until then.

  21. “I believe that marriage is the union between a man and a woman. Now, for me as a Christian, it is also a sacred union. God’s in the mix.”

    President Barack H. Obama

    1. Eh, he just said that because he needed to get all of the black vote, and blacks were particularly hostile to SSM. I doubt he ever meant it.

      1. Of course not.

        He was for it in Chicago local politics, then against it in national politics, then for it again once it was safe.

        1. You are officially a Birther?congratulations!

          1. “In 1996, as he ran for Illinois state Senate, Chicago’s Outlines gay newspaper asked candidates to fill out a questionnaire. Tracy Baim, the co-founder and publisher of Outlines, dug up a copy of the questionnaire in 2009, cataloging the president-elect’s shift.

            He had written on the 1996 questionnaire, “I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages.”…..012/may/11

            1. Obama was enrolled in a madrassa and his father and step father were Muslims!

              You are a Birther!

        2. He ‘evolved’.

      2. Lol, that makes you a Birther!

        I am sure that is how the Supreme Court will deal with Trump’s rhetoric?he was simply lying to the “poorly educated” in his base.

        1. Why would the SC make a ruling on Trump’s rhetoric?

          1. You must not read this blog very often.

      3. Brett, based on no evidence whatsoever and relying only on mindreading-at-a-distance, I conclude you don’t really mean that about Obama and only wrote it because you crave the approval of the conservative commentariat.

    2. Pretty sure he said that before he was elected President. Might be mistaken though.

      Oooh, here’s another one:

      “Mommy, I wet the bed”

      President Ronald Regan (probably)

      1. I’m pretty sure that whenever Obama changes his mind, it proves he’s a secret Muslim.

        1. Obama has vocally affirmed his Christian beliefs while rejecting the Islam of his childhood and for that reason he is seen as the most vile infidel to Muslims.

          1. Have you every spoken to a Muslim about your understanding of their faith?

  22. Here is a hypothetical.

    A shop makes custom birthday cakes for living persons and past historical figures including Lincoln, FDR, Churchill, and Castro among others. If a customer wants a Hitler birthday cake with swastikas and miniature crematoria could the baker refuse service if buyer was straight but not if gay?

    1. The talking point du jour is “we’ll force you to bake the cake, but not to decorate it.”

      Which makes it all better, of course.

    2. Wait… you put Castro in the same category as Lincoln and not with Hitler????

  23. should have been an open and shut case. There is no compelling practical or moral argument to force
    one private bakery out of 1000 to pick their own customers the way the state wants them to.

    1. You might want to ask around before you declare there is no moral argument for something the Civil Rights Act directly deals with.

      1. There’s no moral argument for the CRA today either.

      2. You should read that “civil rights act”.
        It specifically prohibits any form of “affirmative action” on account of any imbalance.
        That’s been routinely ignored.
        And then there’s the whole Constitutional issue of the federal government forcing private businesses and individuals to associate with those they don’t wish to.
        If they had restricted it to government actions, it would have been fine – going into coercion of individuals was its step too far.

  24. I’m really bothered that those homosexual wedding decorations all have gazebo’s above them.

    That’s not right. Just put the husband/husband or wife/wife together. Don’t put a damn gazebo on a wedding cake.

    I wish the court just banned all wedding cakes if that’s the future.

  25. Breyer and Kagan are hateful bigots now. Buzzfeed will release newly discovered archival footage showing Kagan burning crosses in full Klan regalia in the 70s and Stormy Daniels and 30 other women will break their silence on stern faced Jimmuh Kimmel recounting blow by blow suddenly remembered accounts of violent beatings and non consensual paid rapes Breyer meted out upon them 50 years ago tapping his foot for young girls at the shopping mall. It’ll take a lot of the ‘correct’ rulings to make up for this deviation.

    1. Yes, those straw-liberals sure do lack nuance!
      And if they disagree, that only proves they lack integrity!

      The scary thing is how much time and trouble you’ve spent here laying an emotional framework to ignore any amount of witnesses that any conservative did something horrifying.

    2. 10/10 exactly right.

  26. I wonder whether this case will have any impact at all on the recent challenges by defendants to Title Nine enforcement by colleges and universities in cases of alleged sexual assault. I realize these cases primarily are concerned with lack of due process; I’m curious about the state of mind of college adjudicators as expressed in their opinions and conduct.

  27. I think it’s a neat, clean decision. If they came in to buy pre-baked cookies then they are protected. If they request penis shaped cookies and the baker doesn’t want to make them he can not be compelled to.

    Everyone wins… Except people who want to force a gay agenda on the entire country.

    1. Did you read some other decision than the rest of us?

      1. Equal protection applies where it is applicable not in some willy nilly Colorado civil rights commission back room.

        It is STILL illegal to deny this couple equal service and the baker STILL can not be compelled to create a cake for a lifestyle he disagrees with.

        Like I said… Neat and clean.

        Were you hoping the court would put out a treatise on why homosexuals rights outweigh all others?

        1. Yep, you read some other decision than the rest of us.

  28. This decision is a perfect illustration of why the Supreme Court should be barred from considering the motivation for enacting a law or regulation in deciding whether or not it is constutitonal — unless the motivation itself is offered as a reason why the courts should make an exception to the literal meaning of the Constitution.

    My reasoning is that if this practice causes legislatures when writing laws, regulatory agencies when writing regulations, the president when writing executive orders, and even lower courts when making their decisions, to refrain from revealing their reasons lest the Supreme Court reverse their actions because it finds those reasons unworthy, the effect will be to drastically lower the transparency, and therefore usefulness, of the common law.

  29. If the Supremes had only decided correctly when debating whether gay marriage was legal, none of this would be happening.

    Or, for that matter, if the gays had been willing to do as the Quakers did. Back in the 17th century, even though they were very non-troublesome, Quakers filled the jails on charges of “contempt of court” because they wouldn’t swear an oath to tell the truth…it was against their interpretation of Scripture. So, they finally came up with a compromise. A Quaker, or someone else with scruples about “swearing oaths,” could “affirm” to tell the truth, etcetera, and everybody was satisfied. Gays could have had 99% of what they lyingly said they really wanted, if they’d been willing to compromise on the word “marriage.” But NOOOO! They pouted and screamed until they got what they said they wanted…and they promptly broke all the promises they’d made about how nobody not directly involved with their “marriages” would even be inconvenienced. They went out of their way to find venues and businesses that wanted nothing to do with the whole thing, and when they were turned down, they screamed “Discrimination!” and whipped up Twitter mobs to put struggling small businesses out of business. They are cowards, bullies and utter fools.

    If I could go back in time and show people what “non-discrimination” would lead to, MLK and the rest of the Civil Rights leaders would be hailing Bull Connor as God-Emperor of the Known Universe.

  30. Astounding.
    This is a libertarian site seriously?
    Freedom of association yes of course.
    He didn’t make divorce cakes Halloween cakes or anything that celebrated drinking alcohol
    Or gay wedding cakes
    I mean I drink and celebrate Halloween
    What’s up with that?

    1. This comment is hilarious.
      Because when this blog was on Washington Post, it was accused of being liberal.
      Or sometimes people marveled at such common-sense being allowed on WP.
      This blog is its own creature – well Volokh’s creature anyhow.
      The bloggers are typically libertarian, it is true.
      But they’re law professors.
      While they may be libertarian in their preferences, they are not all activists.
      Hewing to the best libertarian theory is not what they invariably do.

  31. The justices split 2-2 on the First Amendment issue, but the votes in favour of the baker were Thomas and Gorsuch not Thomas and Alito.

  32. The case was heard as though it’s about discrimination. What is quite clear is that, under contract law, there would have been no case to hear because the parties to the putative contract could not agree on the terms of such a contract.

    Ergo, no contract. No contract, no obligation to deliver.

    1. But this wasn’t pursued on a contract theory by the aggrieved parties. This was a case by the Civil Rights Commission for violation of a non-discrimination law.

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

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

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

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

    1. Should be obvious. What happens if a baker makes a bad cake for your wedding? A baker can do that and deal with the lawsuit for contract claims and possibly tort claims. If there is evidence that the cake was made poorly for the same reason the baker would have denied service, he would face the same ramifications as if he didn’t make it at all.

      There is a venue which previously denied service to same-sex couples and had to pay a fine. The venue continues to operate and has adopted a clever policy. Now the venue states up front that a portion of its revenue is donated to an organization that supports traditional marriage.

  34. But you’re missing the important point, Eugene. This issue only seems complex if you ignore the crucial distinction between the 1st Amendment rights of a person and a business. The 1st Amendment gives every PERSON the right to both free speech and not to speak, but does NOT give these rights to businesses which instead can be forced to obey public accommodation laws.

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

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

    It’s seems to be bigots such as the gay couple objecting to Philips’ refusal to celebrate their union that cause these sorts of difficulties to arise.

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

    1. This argument is wrong in every vector.

      “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…”

      There is no “crucial” distinction.

  35. A bigger question is can you be forced to work for someone else? If someone wanted a cake with a swastika would you be forced to make it? When someone wants to hire you don’t you have an option to accept or reject the job?

    1. The forced labor argument doesn’t hold up in the anti-discrimination context. Under antidiscrimination law, one already engaged in a business must sell to customers without discriminating. The act of selling involves all manner of labor before, during, and after. It might be as simple as ordering from supplier, operating a cash register, and ordering more to replace what was sold.

      If a person working in a sandwich shop (either owner or employee) refuses to sell a sandwich to someone who isn’t white and the state tells him he must, an objection that it is forced labor is absurd because he’s already engaged in the work and he earns the money for engaging in it.

      An antidiscrimination law operates much like safety and sanitary regulations (which likewise require labor of some kind). Whatever wild libertarian theories exist, such laws are recognized as unlike involuntary servitude.

      The proper question is how far such laws can go without infringing on substantive rights.

  36. It should be an embarrassment to adjudicatory bodies everywhere that the Supreme Court has decided a major case by admonishing the courts and administrative agencies to be fair, and left the substance of the case for another day.

    Yet the mega-punt is not unknown in the Court’s approach to difficult issues, for example, the notion of conscience exemptions to health care mandates, which was a non-decision but was surely successful in burying the issue, as no one seems to have wondered about it in the years since Hobby Lobby, and there were good bits of writing to extract from the case, so no one seems to have groused very long about it, excepting the lower courts that had the cases land back on their dockets.

    I think the Court’s approach is wise in Masterpiece Cake and not unexpected. No rights of any sort will be recognized or vindicated if the decision maker is not receptive to any party. And fanning the flames of the culture wars does little good, particularly as we appear to be living in a time of daily hysterics.

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