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What Does the Masterpiece Cakeshop Decision Say About the Free Speech Claim?

Four Justices opined on this issue, with Justices Thomas and Gorsuch saying that requiring bakers to make cakes for same-sex weddings is an unconstitutional speech compulsion, and Justices Ginsburg and Sotomayor saying the opposite.

As I've mentioned, the main question raised in Masterpiece Cakeshop had to do with the Free Speech Clause, and the prohibition on "compelled speech": Would requiring a baker to make a wedding cake for a same-sex wedding (even one without specific wording or symbolism, such as a rainbow design) be compelling the baker to engage in speech, and thus violate the First Amendment? As the Court put it, "Phillips ... argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation," and "this contention has a significant First Amendment speech component."

The Court declined to opine on this question, focusing instead on the peculiar facts of this case, which it thought showed discrimination by Colorado officials against Masterpiece Cakeshop based on its religious beliefs. (Such evidence would likely not be available in most other same-sex wedding service provider cases, including ones involving photographers, calligraphers, florists, and the like.) But two Justices, Justices Thomas and Gorsuch, concluded that the baker should have won on the free speech theory:

Although public-accommodations laws generally regulate conduct, particular applications of them can burden protected speech. When a public-accommodations law "ha[s] the effect of declaring ... speech itself to be the public accommodation," the First Amendment applies with full force. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., for example, a Massachusetts public-accommodations law ... required the sponsor of a St. Patrick's Day parade to include a parade unit of gay, lesbian, and bisexual Irish-Americans[. T]he Court unanimously held that the law violated the sponsor's right to free speech. Parades are "a form of expression," this Court explained, and the application of the public-accommodations law "alter[ed] the expressive content" of the parade by forcing the sponsor to add a new unit. The addition of that unit compelled the organizer to "bear witness to the fact that some Irish are gay, lesbian, or bisexual"; "suggest ... that people of their sexual orientation have as much claim to unqualified social acceptance as heterosexuals"; and imply that their participation "merits celebration." ...

The parade in Hurley was an example of what this Court has termed "expressive conduct." This Court has long held that "the Constitution looks beyond written or spoken words as mediums of expression," and that "[s]ymbolism is a primitive but effective way of communicating ideas." Thus, a person's "conduct may be 'sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.'" Applying this principle, the Court has recognized a wide array of conduct that can qualify as expressive, including nude dancing, burning the American flag, flying an upside-down American flag with a taped-on peace sign, wearing a military uniform, wearing a black armband, conducting a silent sit-in, refusing to salute the American flag, and flying a plain red flag.

Of course, conduct does not qualify as protected speech simply because "the person engaging in [it] intends thereby to express an idea." To determine whether conduct is sufficiently expressive, the Court asks whether it was "intended to be communicative" and, "in context, would reasonably be understood by the viewer to be communicative." But a "'particularized message'" is not required, or else the freedom of speech "would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll."

Once a court concludes that conduct is expressive, the Constitution limits the government's authority to restrict or compel it. "[O]ne important manifestation of the principle of free speech is that one who chooses to speak may also decide 'what not to say'" and "tailor" the content of his message as he sees fit. This rule "applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid." And it "makes no difference" whether the government is regulating the "creati[on], distributi[on], or consum[ption]" of the speech.

The conduct that the Colorado Court of Appeals ascribed to Phillips—creating and designing custom wedding cakes—is expressive. Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist's paint palate with a paintbrush and baker's whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding. Examples of his creations can be seen on Masterpiece's website.

Phillips is an active participant in the wedding celebration. He sits down with each couple for a consultation before he creates their custom wedding cake. He discusses their preferences, their personalities, and the details of their wedding to ensure that each cake reflects the couple who ordered it. In addition to creating and delivering the cake—a focal point of the wedding celebration—Phillips sometimes stays and interacts with the guests at the wedding. And the guests often recognize his creations and seek his bakery out afterward. Phillips also sees the inherent symbolism in wedding cakes. To him, a wedding cake inherently communicates that "a wedding has occurred, a marriage has begun, and the couple should be celebrated."

Wedding cakes do, in fact, communicate this message. A tradition from Victorian England that made its way to America after the Civil War, "[w]edding cakes are so packed with symbolism that it is hard to know where to begin." If an average person walked into a room and saw a white, multi-tiered cake, he would immediately know that he had stumbled upon a wedding. The cake is "so standardised and inevitable a part of getting married that few ever think to question it." Almost no wedding, no matter how spartan, is missing the cake. "A whole series of events expected in the context of a wedding would be impossible without it: an essential photograph, the cutting, the toast, and the distribution of both cake and favours at the wedding and afterwards." Although the cake is eventually eaten, that is not its primary purpose. The cake's purpose is to mark the beginning of a new marriage and to celebrate the couple.

[Footnote moved:] ... [A] wedding cake needs no particular design or written words to communicate the basic message that a wedding is occurring, a marriage has begun, and the couple should be celebrated. Wedding cakes have long varied in color, decorations, and style, but those differences do not prevent people from recognizing wedding cakes as wedding cakes. And regardless, the Commission's order does not distinguish between plain wedding cakes and wedding cakes with particular designs or inscriptions; it requires Phillips to make any wedding cake for a same-sex wedding that he would make for an opposite-sex wedding.

Accordingly, Phillips' creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message—certainly more so than nude dancing, or flying a plain red flag. By forcing Phillips to create custom wedding cakes for same-sex weddings, Colorado's public-accommodations law "alter[s] the expressive content" of his message. The meaning of expressive conduct, this Court has explained, depends on "the context in which it occur[s]." Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are "weddings" and suggest that they should be celebrated—the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to "bear witness to [these] fact[s]." ...

[Footnote moved:] [Justice Ginsburg's] dissent faults Phillips for not "submitting ... evidence" that wedding cakes communicate a message. But this requirement finds no support in our precedents. This Court did not insist that the parties submit evidence detailing the expressive nature of parades, flags, or nude dancing. And we do not need extensive evidence here to conclude that Phillips' artistry is expressive, or that wedding cakes at least communicate the basic fact that "this is a wedding." Nor does it matter that the couple also communicates a message through the cake. More than one person can be engaged in protected speech at the same time. And by forcing him to provide the cake, Colorado is requiring Phillips to be "intimately connected" with the couple's speech, which is enough to implicate his First Amendment rights.

The Colorado Court of Appeals ... [reasoned] that a reasonable observer would not view Phillips' conduct as "an endorsement of same-sex marriage," but rather as mere "compliance" with Colorado's public-accommodations law.... [But t]his argument would justify any law that compelled protected speech. And, this Court has never accepted it.... Hurley, for example, held that the application of Massachusetts' public-accommodations law "requir[ed] [the organizers] to alter the expressive content of their parade." It did not hold that reasonable observers would view the organizers as merely complying with Massachusetts' public-accommodations law....

In [three past] decisions, this Court rejected the argument that requiring the groups to provide a forum for third-party speech also required them to endorse that speech. But these decisions do not suggest that the government can force speakers to alter their own message.

The Colorado Court of Appeals also noted that Masterpiece is a "for-profit bakery" that "charges its customers." But this Court has repeatedly rejected the notion that a speaker's profit motive gives the government a freer hand in compelling speech. Further, even assuming that most for-profit companies prioritize maximizing profits over communicating a message, that is not true for Masterpiece Cakeshop. Phillips routinely sacrifices profits to ensure that Masterpiece operates in a way that represents his Christian faith. He is not open on Sundays, he pays his employees a higher-than-average wage, and he loans them money in times of need. Phillips also refuses to bake cakes containing alcohol, cakes with racist or homophobic messages, cakes criticizing God, and cakes celebrating Halloween—even though Halloween is one of the most lucrative seasons for bakeries. These efforts to exercise control over the messages that Masterpiece sends are still more evidence that Phillips' conduct is expressive....

The Colorado Court of Appeals also erred by suggesting that Phillips could simply post a disclaimer, disassociating Masterpiece from any support for same-sex marriage.... We have described similar arguments as "beg[ging] the core question." Because the government cannot compel speech, it also cannot "require speakers to affirm in one breath that which they deny in the next." States cannot put individuals to the choice of "be[ing] compelled to affirm someone else's belief" or "be[ing] forced to speak when [they] would prefer to remain silent." ...

Because Phillips' conduct (as described by the Colorado Court of Appeals) was expressive, Colorado's public-accommodations law cannot penalize it unless the law withstands strict scrutiny. Although this Court sometimes reviews regulations of expressive conduct under the more lenient test articulated in O'Brien, that test does not apply unless the government would have punished the conduct regardless of its expressive component. Here, however, Colorado would not be punishing Phillips if he refused to create any custom wedding cakes; it is punishing him because he refuses to create custom wedding cakes that express approval of same-sex marriage. In cases like this one, our precedents demand "'the most exacting scrutiny.'"

The Court of Appeals did not address whether Colorado's law survives strict scrutiny, and I will not do so in the first instance. There is an obvious flaw, however, with one of the asserted justifications for Colorado's law. According to the individual respondents, Colorado can compel Phillips' speech to prevent him from "'denigrat[ing] the dignity'" of same-sex couples, "'assert[ing] [their] inferiority,'" and subjecting them to "'humiliation, frustration, and embarrassment.'"These justifications are completely foreign to our free-speech jurisprudence. States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified....

Justice Ginsburg, joined by Justice Sotomayor, concluded that applying the law to Masterpiece Cakeshop wouldn't violate its free speech rights (though the opinion didn't discuss what would happen to businesses that provide more expressive services, such as photography or calligraphy):

As Justice Thomas observes, the Court does not hold that wedding cakes are speech or expression entitled to First Amendment protection. Nor could it, consistent with our First Amendment precedents. Justice Thomas acknowledges that for conduct to constitute protected expression, the conduct must be reasonably understood by an observer to be communicative.... But Phillips submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker's, rather than the marrying couple's. Indeed, some in the wedding industry could not explain what message, or whose, a wedding cake conveys. See Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 100-101 (1987) (no explanation of wedding cakes' symbolism was forthcoming "even amongst those who might be expected to be the experts"); id., at 104-105 (the cake cutting tradition might signify "the bride and groom ... as appropriating the cake" from the bride's parents). And Phillips points to no case in which this Court has suggested the provision of a baked good might be expressive conduct.

For Dale Carpenter's and my view of the matter, which is closer to Justice Ginsburg's than to Justice Thomas's—and under which photographers, wedding singers, and the like would win, but bakers, limousine drivers, and the like would lose—see our amicus brief; for an especially interesting contrary view, see Prof. Michael McConnell's post.

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  • Scarecrow Repair & Chippering||

    Why not just rely on freedom of association and cut the Gordian knot? I have two guesses (freedom of association has been swept under the rug, and stare decisis) but it sure seems like an awfully convoluted way to go about ignoring it.

  • jph12||

    Wouldn't that invalidate almost all private non-discrimination laws?

  • PoxOnBothYourHouses||

    jph12: "Wouldn't that invalidate almost all private non-discrimination laws?" re: free association

    We'd need to see how that would play out. In what particular circumstances would free association invalidate non-discrimination (and vice versa)?

    I note this largely because I've run across any number of people who have argued that a free speech claim would invalidate non-discrimination laws though it's simply not the case.

  • nonzenze||

    You fell for the bait. Yes, a small minority of folks on this website want to overrule a number of old precedents and roll back public accommodations law.

    Let them tilt at windmills in peace and quiet, it's self-discrediting if they cannot find a way to fit their views in without fighting the CRA.

  • M.L.||

    What is your view of freedom of association, nonzenze?

  • nonzenze||

    A fairly strong one. I believe that ideological and religious groups have the right to exclude members for reasons normally impermissible. I believe in the freedom to create any number of 'closed' associations. I even believe that public universities (a) if they allow some groups should allow all based on objective criteria and (b) ought to do so rather than have no closed groups at all.

    That said, I do not agree that freedom of association applies to public accommodations that are generally open to all comers. The relationship between a public accommodation and the individuals that patronize it is not "association" for the purposes of the phrase in any sense. I am not an "associate" of Costco or Shell Oil or the other places I do businesses in.

  • Booker61||

    I don't know if it'd go that far, but let's say you own a restaurant in a segregated area before the 1964 Civil Rights Act. If you decide to be the only restaurant in town that serves blacks, are you sending an expressive 'message'? It'd probably be seen that way; people would assume you're saying "I don't believe in segregation" (of course, you could just be saying, "Why should I turn away paying customers?) After the Act passed and you served African-Americans because the law said so, are you sending any message other than, "I have to because it's the law." But sure, some people might expect that you'd defy the law if you ''really were against integration. But as Volokh said, it's what a 'reasonable' person might think, and it's not (to me) reasonable to believe someone obeying the law necessarily agrees with it.

    I have a Jehovah's Witness friend who told me years ago when her son was a child, she'd never allow him to have a blood transfusion. If she did that would of course send a 'message' that she either didn't believe her church's doctrine or she put her son's life ahead of it. But when I asked what she'd do if a court ordered a transfusion for her son, she said she'd comply, because in that case it wouldn't be her responsibility. So she wouldn't be 'sinning' in that case, and she assumed nobody would think she was sending a 'message' with her compliance that she approved.

  • SlimTim||

    Would your analysis change for a (potential) custom cake design that would be eligible for copyright protection?

    As I understand it, in order to be eligible for copyright the (potential) custom cake design would have to "express an idea in a tangible medium" and not simply be based on ideas/facts. If copyright requires that the work be an "expression" then isn't the state forbidden from compelling works that would be eligible for copyright under the 1st Amendment?

  • Toranth||

    While a cake recipe may not be copyrightable (but may be patentable), the artistic decorations certainly seem to meet all the requirements.

    There are thousands of cake decorating contests every year.
    There have been dozens of TV series and specials dedicated to designing and decorating cakes.
    The cake decoration industry is a significant chunk of the $30 billion bakery industry.

    At the very least, there certainly are millions of people out there that think cakes are art, and are willing to shell out good money for artistic cakes.

  • Chris Paige||

    Ginsburg's distinction between Masterpiece & the Jacks cases is bogus on its face: the defendant in Masterpiece didn't refuse to sell a wedding cake to gay customers, he refused to sell wedding cakes to anyone who wanted to use those cakes for gay weddings. That is, there's no evidence that he would have sold the cake to the plaintiffs' straight mother either. To the contrary, the evidence appears to be that he declined her offer too. Thus, he simply did NOT discriminate on the basis of the plaintiffs' orientation -- he discriminated on the basis of their message. To use another example, there's no evidence he would have refused to sell a cake to a gay man who wanted to marry a woman -- thus, it was gay marriage & not gays to which he objected. Her distinction, therefore, is phony.

  • NToJ||

    "Her distinction, therefore, is phony."

    I am persuaded because Chris Paige appears to be an expert on the subject of phony distinctions.

  • Slocum||

    But Phillips submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker's, rather than the marrying couple's. Indeed, some in the wedding industry could not explain what message, or whose, a wedding cake conveys.

    Under such a standard, it seems that non-representational art, architecture, dance, photography, music would all lack first-amendment protections.

  • Toranth||

    By her logic, it also means that a birthday cake or an undecorated flat cake would have served as well at the wedding - since a "wedding cake" is not a symbol. And since the bakery offered both of those for sale, obviously RBG must have only accidentally written "dissent", since she actually concurred with the ruling.

    /s

  • Josh R||

    Neither the birthday or undecorated flat cake would have served as well because the customer didn't want them.

  • Toranth||

    But RBG said that cakes are not symbols, therefore any cake is equivalent to any other cake. Therefore, "not wanting them" is a sign that the customers were dishonest in their request for a cake. If all they wanted was a cake for their wedding, then any cake would do.
    /sarc

    In case you didn't catch it, the conclusion follows directly from RBG's logic, but is silly. That's why her argument is silly.

  • Josh R||

    A couple can prefer one cake over another for many reasons unrelated to expression. Perhaps they prefer chocolate, or they want the icing to be of their favorite color, or they need the cake to fit within a certain space. The discussion never made it that far because Phillips categorically refused to create a cake for a same-sex wedding.

  • Toranth||

    You mean: "Because Phillips refused to use his artistic skills to design and create a custom wedding cake celebrating a same sex wedding."

    You are trying to bring in "what ifs" that have nothing to do with the case, or with RBG/my argument.

    Let me explain this again for you:
    RBG argued that a wedding cake is not a symbol for anything, and thus not protected under the First Amendment.
    I pointed out that if a wedding cake is not a symbol, then any other variety of cake they were offered would have been acceptable as well. The very fact that the couple demanded a wedding cake shows that it meant something to them.

    This has nothing to do with chocolate, or other recipe considerations. Now, can you respond without the non sequitors?

  • Joe_dallas||

    The second point is that Ginsburg did not acknowledge that Philips would sell a wedding cake to the couple - It was that phillips would not create a custom cake.

    see her concluding paragraph in the dissent

    "For the reasons stated, sensible application of CADA toa refusal to sell any wedding cake to a gay couple should occasion affirmance of the Colorado Court of Appeals'judgment. I would so rule."

    Ginsburg further misrepresents the facts in the case with her statement -
    "Phillips would not sell to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others."

    No - The facts are that Phillips would not sell a custom made cake for a specific event, not that he would not sell for their sexual orientation.

  • Josh R||

    @Joe_dallas: as a factual matter of statutory interpretation of Colorado law affirmed by the Colorado Court of Appeals, refusing to sell a custom cake for a same-sex wedding (while creating such cakes for opposite-sex weddings) is unlawful discrimination against gays.

  • Joe_dallas||

    Josh - the distinction is that ginsburg misrepresents is the following statement - "Phillips would not sell to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others."

    By definition - A custom cake is not regularly sold to others - each custom cake is unique.
    The second point is that he is not refusing to sell the cake due to their sexual orientation - The facts of the case dispel that talking point - he regularly sells cakes and other items to gay couples. What his if refusing to do is create a cake for a specific event - A distinction which ginsburg continually misrepresents.

  • Josh R||

    he regularly sells cakes and other items to gay couples. What [he is] refusing to do is create a cake for a specific event - A distinction which ginsburg continually misrepresents.

    Again, that distinction was rejected by the authoritative voice (The Colorado Court of Appeals) in its interpretation of CADA.

  • Josh R||

    Sorry Toranth, I stand by my response. Eugene makes the same point in his amicus brief:

    Phillips replied that he does not create wedding cakes for same-sex weddings. [...] Phillips denied Craig's and Mullins' request without any discussion regarding the wedding cake's design or any possible written inscriptions.
  • Krayt||

    ===A couple can prefer one cake over another for many reasons unrelated to expression.===

    What was the reason they vastly, vastly preferred a custom cake from this bakery, as to a generic cake, or a custom cake from another equally artistic bakery?

    ETA can someone use freedom of expression to show how to artistically decorate with block quote and italics and bold?

  • Krayt||

    "...as opposed to..."

  • Kazinski||

    But Phillips did have cakes in stock he would have sold to them.

    The issue is that he would not take an order for a custom cake.

  • Michael Ejercito||

    Well, that was what was being sold as available to all.

  • Josh R||

    Although Eugene disagreed with the decision, the New Mexico Supreme Court held that a photographer did not have a Freedom of Speech right to opt out of serving a same-sex wedding precisely because it was the couple's message and not the photographer's.

  • JesseAz||

    And yet we apply copyrights to the Photographer in almost every single other instance of photography. In fact, often times you have to buy the copyright from your wedding photographer as part of the package.

  • nonzenze||

    If your photographer won't (for adequate consideration) sign an agreement making the whole thing a "work for hire" and assigning you all the rights, find another one.

  • lucia_l||

    I am observer. I understand a wedding cake at a gathering to convey the message "this is a wedding".
    Perhaps I'm not "objective".

    I suspect we could fairly easily show pictures of wedding cake at a gathering and ask them what message the wedding cake conveys. I suspect quite a few of them would think it communicates "this is a wedding".

  • Stephen Lathrop||

    Is there any reason to suggest that would not be a controversial expression among folks who insist, "This is not a wedding?"

  • Sarcastr0||

    Hard to argue otherwise.
    But who is sending the message? I don't associate that speech with the baker at all.

    If anything the baker is just saying 'I sell wedding cakes.' Any supposed endorsement is all in the baker's head. Which has some legal moment perhaps, but not via speech.

  • Voyager||

    A baker who "just sells wedding cakes" is not going to generate custom cakes of the degree being discussed. They are going to provide you a stock cake from their stock molds in one of the stock of assorted flavors they offer.

    To generate anything more than that, you have to give a about what you are providing.

  • Sarcastr0||

    My understanding is that the factual question of how customized the cakes are was not clear from the record, but that the Court didn't need to reach that issue.

    Seems to me like it's a question of fact whether a given shop is selling cakes or crafting them.

  • JesseAz||

    What a dumb argument NToJ. But when nothing of substance to offer...

  • nonzenze||

    there's no evidence he would have refused to sell a cake to a gay man who wanted to marry a woman -- thus, it was gay marriage & not gays to which he objected

    Wow. This is great.

    Next up:

    I have no objection to hiring Christians if they don't go to church, so it's the church-going and not the Christian-being that I object to.

    I have no objection to hiring females if they don't menstruate, so it's the menstruation and not the female-being that I object to.

    I have no objection to hiring Sikhs if they don't wear a turban, so it's the turban-wearing and not the Sikh-being that I object to.

    I'm going to have so much fun!

  • swood1000||

    I have no objection to hiring Christians if they don't go to church, so it's the church-going and not the Christian-being that I object to.

    Or, as in the case of William Jack:

    I refuse to sell a cake that has written on it an expression of the customer's religious faith (Bible verses) but it's not the customer's religious faith that I object to.

  • Josh R||

    swood1000, you have your facts wrong. Here is a corrected version:

    I refuse to sell a cake that has written on it an expression of the customer's religious faith (Bible verses) anti-gay beliefs, without regard to whether those beliefs are secular or religious.

  • swood1000||

    swood1000, you have your facts wrong.

    Justice Gorsuch seems to disagree with you:

    The facts show that the two cases share all legally salient features. In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intending only to honor a personal conviction. To be sure, the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there's no indication the bakers actually intended to refuse service because of a customer's protected characteristic. We know this because all of the bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else). So, for example, the bakers in the first case would have refused to sell a cake denigrating same-sex marriage to an atheist customer, just as the baker in the second case would have refused to sell a cake celebrating same-sex marriage to a heterosexual customer. And the bakers in the first case were generally happy to sell to persons of faith, just as the baker in the second case was generally happy to sell to gay persons. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers.
  • Josh R||

    You are correct that Gorsuch believes the Jack bakers objected to religious anti-gay messages as evidenced by this passage from his concurrence (my emphasis):

    For just as cakes celebrating same-sex weddings are (usually) requested by persons of a particular sexual orientation, so too are cakes expressing religious opposition to same-sex weddings (usually) requested by persons of particular religious faiths,

    But, Gorsuch is wrong and Eugene is right:

    The bakers in the William Jack cases were opposed solely to his anti-gay message, not to his religion; there is no reason to think they would have accepted a secular anti-gay cake while rejecting the religious one.

    To hammer home Eugene's point, not only would the Jack bakers have refused to make a cake with inscription "God Hates Fags," they would have done likewise for one that read "Darwin Hates Fags."

  • TwelveInchPianist||

    "To hammer home Eugene's point, not only would the Jack bakers have refused to make a cake with inscription "God Hates Fags," they would have done likewise for one that read "Darwin Hates Fags."

    And I refuse to serve anyone who wears a yarmulke, whether they do so for secular or religious reasons.

  • Josh R||

    And I refuse to serve anyone who wears a yarmulke, whether they do so for secular or religious reasons

    Nice try, but there is a close correlation between wearing a yarmulke and being Jewish (very few non-Jews wear yarmulkes on a regular basis). In contrast, there isn't a close correlation between anti-gay messages and having religious beliefs (plenty of people hold anti-gay views based on secular beliefs).

  • jph12||

    "In contrast, there isn't a close correlation between anti-gay messages and having religious beliefs (plenty of people hold anti-gay views based on secular beliefs)."

    Really? What is the correlation is between people who want to put anti-gay messages on cakes and religious beliefs? Or even just anti-gay messages and religious beliefs in general?

  • swood1000||

    Gorsuch responds:

    To suggest that cakes with words convey a message but cakes without words do not—all in order to excuse the bakers in Mr. Jack's case while penalizing Mr. Phillips—is irrational. ...Nor would it be proper for this or any court to suggest that a person must be forced to write words rather than create a symbol before his religious faith is implicated.

    …We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; un¬derstanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right. The problem is, the Commission didn't play with the level of generality in Mr. Jack's case in this way. …Neither the Commission nor this Court may apply a more specific level of generality in Mr. Jack's case (a cake that conveys a message regarding same-sex marriage) while applying a higher level of generality in Mr. Phillips's case (a cake that conveys no message regarding same-sex marriage).

    It will be interesting to see how Phillips handles this from now on. At a minimum he will wait until the purchaser requests some LGBT words or symbols before rejecting the order. We may have a different court composition by the time this case rolls around again.

  • Josh R||

    Gorsuch's response was to Kagan's argument about what product was sold (was it a cake, a wedding cake, or a same-sex wedding cake). Gorsuch didn't reply to Eugene's argument because (sadly) Kagan missed an opportunity to make it.

    In particular, the Commission could have (but didn't) apply the same two-step process to both the Phillips and Jack cases:

    1) Factual inquiry: why does the baker refuse to create a cake? Phillips: I object to same-sex weddings. Jack: I object to anti-gay messages.

    2) Apply CADA: Is the answer in #1 closely correlated with the customer being in a protected class? Phillips: yes, same-sex weddings are closely correlated with being gay. Jack: no, anti-gay messages are not closely correlated with religious beliefs.

    As to the Freedom of Speech issue you raise, it would perhaps be smart of Phillips to wait until some words or symbols are requested. On the other hand, wouldn't he be lying if (under oath during a Commission investogation) he said he would create a cake for the couple without words or symbols?

  • swood1000||

    2) Apply CADA: Is the answer in #1 closely correlated with the customer being in a protected class? Phillips: yes, same-sex weddings are closely correlated with being gay. Jack: no, anti-gay messages are not closely correlated with religious beliefs.

    If the rejected message is literally a verse from the Bible, or if it is a paraphrase of what is claimed to be a teaching of the person's religion, then why wouldn't it be a rejection on the basis of the person's creed?

  • swood1000||

    anti-gay messages are not closely correlated with religious beliefs.

    "Homosexuality is sinful" is not closely correlated with a religious belief? It was specifically the person's religious belief that was being rejected in the Jack case. What difference should it make that anti-homosexual language is rejected by some people for non-religious reasons? Is there anybody who believes, for non-religious reasons, that "Homosexuality is sinful"?

  • Josh R||

    If the rejected message is literally a verse from the Bible [...] then why wouldn't it be a rejection on the basis of the person's creed. "Homosexuality is sinful" is not closely correlated with a religious belief?

    In both examples you are incorrectly applying the two-step standard.

    In particular in Step 2, you want to ask if the specific anti-gay messages requested [anti-gay Bible verses or "homosexuality is a sin"] are closely correlated with a protected class. Both are closely correlated with a protected class, but you reached Step 2 without correctly applying Step 1.

    In the Step 1 factual inquiry, we conclude the Jack bakers object to all anti-gay messages, not just the specific ones requested. Thus, in Step 2 we only ask whether anti-gay messages are closely correlated with a protected class. We do not ask whether the specific ones requested are closely correlated with a protected class.

  • jph12||

    For the Phillips Step 1, why isn't a possible response that he objects to baking cakes for events that violate his religious beliefs? Apparently the guy wouldn't even make Halloween cakes, so it's not just the gays. If the Jack baker's can refuse to make religious anti-gay cakes because that's merely one instance of their broader objection to anti-gay messages, why can't Phillips refuse to make gay wedding cakes because that's merely one instance of his broader objection to making cakes that violate his religious beliefs.

    "In the Step 1 factual inquiry, we conclude the Jack bakers object to all anti-gay messages, not just the specific ones requested. Thus, in Step 2 we only ask whether anti-gay messages are closely correlated with a protected class."

    You've repeatedly asserted that they are not, but I'd like to see some evidence. I'm skeptical that there's not a fairly close correlation between anti-gay messages and religious beliefs, particularly when it comes to people who request anti-gay messages on cakes (which would appear to be the appropriate baseline--the only reason these issues are even in question is because there is a commercial transaction involved).

  • Josh R||

    For the Phillips Step 1, why isn't a possible response that he objects to baking cakes for events that violate his religious beliefs?

    If Phillips' religious beliefs require him not to serve events that have black participants, do you think he is discriminating on the basis of race?

    As such, the inquiry in Step 1 can't end with the conclusion that the event violates his religious beliefs. We need to answer what characteristic of the event itself violates his religious beliefs. The same level of specificity related to the service request itself is required of the Jack bakers.

  • swood1000||

    In the Step 1 factual inquiry, we conclude the Jack bakers object to all anti-gay messages, not just the specific ones requested. Thus, in Step 2 we only ask whether anti-gay messages are closely correlated with a protected class. We do not ask whether the specific ones requested are closely correlated with a protected class.

    You are saying that an expression of opposition to homosexuality is not closely correlated with a creed but it is closely correlated with a sexual orientation. What is the basis on which this distinction is made? What if it were demonstrated that those who express an opposition to homosexuality are usually motivated by religious reasons?

  • Josh R||

    You are saying that an expression of opposition to homosexuality is not closely correlated with a creed

    Correct.

    but it is closely correlated with a sexual orientation.

    Incorrect. I am saying that same-sex weddings are closely correlated with sexual orientation.

    What if it were demonstrated that those who express an opposition to homosexuality are usually motivated by religious reasons?

    In the name of not having to repeat myself, that aspect of "closely correlated" is being discussed below.

  • nonzenze||

    Who said I wouldn't have ruled in favor of Jack?

  • QuantumBoxCat||

    Rascally bakers just keep ruffling constitutional feathers. If it isn't working hours and conditions, it's making cakes. I'm sure there's a law review article somewhere on the impact bakers have had on constitutional jurisprudence (along with 6,000 footnotes)

  • Eidde||

    If you include Baker v. Carr.

  • nonzenze||

    Thread winner!

  • Eidde||

    Just overrule Smith - Scalia was simply wrong.

    He said the legislatures can give religious-based exemptions, but courts are very limited in their ability to do so.

    The rhetoric of the case indicates that it's about neutral laws of general applicability.

    But the legal code taken as a whole is riddled with religious exceptions - starting with conscientious objector exemptions from the draft. Hence the legal code as a whole is not neutral and of general applicability.

    Under Smith, if your religious is influential enough to get an exemption from the legislature, fine. But if not, you can rarely go to court to vindicate your rights.

    Which discriminates against the unpopular religions or the ones without good lobbyists.

    Nothing "neutral" about that approach at all.

  • nonzenze||

    Congress and some of the States basically did by passing RFRAs.

    That's how our system of government is s'posed to work.

  • y81||

    Under Professor Volokh's test, of course, all the Christians (and Jews) who refused to offer pagan sacrifices would have lost, since there isn't anything expressive about putting a dead animal on an altar, anymore than delivering a cake to a reception hall.

  • swood1000||

    Under Professor Volokh's test, of course, all the Christians (and Jews) who refused to offer pagan sacrifices would have lost, since there isn't anything expressive about putting a dead animal on an altar, anymore than delivering a cake to a reception hall.

    No, because Employment Div. v. Smith held that:

    …the [free exercise] Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.

    The example you gave is specifically directed to religious practice. A law requiring all butchers to sell pork would be a different matter.

  • y81||

    I agree, that is the current state of the law. But I don't think it's what Prof. Volokh advocates. He never defends freedom from coerced religious practice, only from coerced artistic expression, with the courts deciding what counts as "art" and what is mere commerce. So coerced commercial activity, like buying some pigeons for the temple, with no expressive content, gets no protection in his jurisprudence.

  • swood1000||

    I agree, that is the current state of the law. But I don't think it's what Prof. Volokh advocates.

    Eugene's principal argument has been on the speech issue. His amicus brief was directed toward:

    Whether a requirement to bake a wedding cake should be viewed as a "speech compulsion" akin to a requirement to write, sing, paint, or photograph.

    With respect to the free exercise question are you criticizing him for believing that the question would be dismissed under Employment Div. or for failing to call for an overruling of Employment Div.?

  • nonzenze||

    Commenters love to suggest overruling precedent.

    Law Profs (and amici) by nature are apt to suggest working within precedent and, if necessary, distinguishing them because this argument has a lot higher chances of practical success.

    This is a common dynamic here that I've seen many times.

  • FlameCCT||

    IMHO that is where Eugene gets it wrong. It is not about "baking a cake" but about the artistic talent required to "decorate the cake", i.e. expression of a message.

    Serious question: Would a Jewish baker be forced to create a bar mitzvah cake to be used at a non-Jewish birthday party? Or would a Jewish or Arab baker be forced to include bacon in a custom cake if that is what the customer wants? After all, it is just baking a cake!

  • swood1000||

    Would a Jewish baker be forced to create a bar mitzvah cake to be used at a non-Jewish birthday party?

    "It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation." Colo. Rev. Stat. §24–34–601(2)(a) (2017).

    Would it be a refusal of service to persons based on creed, specifically, the absence thereof? Doesn't sound like a question that would have been brought to the courts very many times.

  • Michael Ejercito||

    From a previous comment of mine on the issue.

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

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

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

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

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

  • Josh R||

    Eugene suggested an answer to your question in another post today:

    The bakers in the William Jack cases were opposed solely to his anti-gay message, not to his religion; there is no reason to think they would have accepted a secular anti-gay cake while rejecting the religious one.

    The sign maker would reject a pro-ISIS or Westboro Baptist sign because of their messages, not because of their religion. Thus, there isn't discrimination on the basis of religion and the anti-discrimination statute isn't being violated.

  • Eidde||

    The thing is that political-orientation discrimination is one of the things activists want to ban.

    And why not, if we keep adding more and more suspect classifications to the law?

  • Eidde||

    It's sometimes a suspect class where employment discrimination is concerned; can public accommodations law be far behind? If not, why not?

    "In some states, including New York and California, bosses can influence their workers' votes only within limits and cannot discriminate based on employees' political activities or beliefs unless it interferes with their work. Government workers tend to enjoy more free speech in the workplace."

  • Michael Ejercito||

    Jack Phillips rejected the offer to design the cake because of the ceremony it would be used for, not the customers' sexual orientation.

    There was no evidence he would have designed the cake for a straight person who wanted a cake for a friend's same-sex wedding.

  • Rossami||

    Building on Michael's point, there was evidence presented in this case that Philips did in fact refuse to design a cake for a straight person (one of the Plaintiff's mothers) who wanted the cake for her son's same-sex wedding.

  • Josh R||

    The Colorado Court of Appeals concluded:

    that the act of same-sex marriage is closely correlated to Craig's and Mullins' sexual orientation, and therefore, the ALJ did not err when he found that Masterpiece's refusal to create a wedding cake for Craig and Mullins was "because of" their sexual orientation, in violation of CADA

    In contrast, there is no such "close correlation" in your hypothetical. An objection to an anti-gay message on a Westboro cake ("God hates fags") is not closely correlated to a religious belief because the baker also objects to secular anti-gay messages (that was Eugene's point).

  • Michael Ejercito||

    that the act of same-sex marriage picketing funerals is closely correlated to Craig's and Mullins' sexual orientation the Phelps's religion, and therefore, the ALJ did not err when he found that Masterpiece'syour refusal to create a wedding cake picket sign for Craig and Mullins the Phelpses was "because of" their sexual orientation religion, in violation of CADA


    HTML is useful in illustrating analogies.

  • Josh R||

    Picketing funerals isn't closely correlated to a religious belief.

  • jph12||

    Really? It seems like it's pretty much limited to one bat shit crazy religious sect to me, but I definitely could be missing some. How many other groups are out there picketing funerals?

  • Josh R||

    The fact that an act is done almost exclusively by a class of people is not sufficient to establish "close correlation." Additionally, the act needs to be close to inherently linked to the class of people.

    Just because almost no one has (so far) chosen to picket funerals, doesn't mean the act is inherently linked to Westboro Baptism doctrine in the way that yarmulkes are linked to Jewish doctrine. Consider two hypothetical laws, one which bans picketing funerals within 500 feet of a funeral, and the other which bans wearing yarmulkes within 500 feet of a funeral. Which law do you think violates Free Exercise rights?

  • jph12||

    "The fact that an act is done almost exclusively by a class of people is not sufficient to establish "close correlation."

    Then you are using correlation incorrectly.

    "Consider two hypothetical laws, one which bans picketing funerals within 500 feet of a funeral, and the other which bans wearing yarmulkes within 500 feet of a funeral. Which law do you think violates Free Exercise rights?"

    Both with the right challenger and the wrong law. Just because the free speech claim is easier than the free exercise claim in the first instance doesn't mean there isn't a free exercise claim there as well. The biggest difference between your hypothetical laws doesn't go to how closely correlated the particular behaviors are with any particular group, it's about the difference in the level of generality in the laws and absence of any kind of justification for your yarmulke law. If the second law banned the wearing of hats within 500 feet of a funeral, and there were some really good reasons for wanting to do so (Imaginationland is a very different place), is the distinction between the two laws really so obvious?

    Or consider a third hypothetical law, one that makes it illegal to call homosexuality immoral. Do you really think that religious people wouldn't have a free exercise claim because it also prohibited secular people from claiming that homosexuality is immoral?

  • Josh R||

    I don't disagree that the phrase "closely correlated" can mislead the mathematicians. The phrase comes from the Colorado Court of Appeals ruling quoting Christian Legal Society.

    The picketing funerals law isn't a hypothetical. Westboro lost on its Freedom of Speech claim while not even bothering to make a Free Exercise claim.

    Your "hat ban" law makes my point because wearing hats isn't closely correlated with being Jewish, so that law survives. But targeting yarmulkes does not survive because of the "closely correlated" standard (from the Colorado Court of Appeals quoting Christian Legal Society: "a tax on wearing yarmulkes is a tax on Jews.").

    Whether a law which bans calling homosexuality immoral would survive a Free Exercise challenge would depend on whether there is a secular argument that homosexuality is immoral. Assuming there is such a secular argument, I think the law survives a Free Exercise challenge (barring a legislative history of Lukumi-like hostility or gerrymandering against religion).

  • swood1000||

    According to the Colorado Court of Appeals ruling that you referenced:

    In these decisions, the Supreme Court recognized that, in some cases, conduct cannot be divorced from status. This is so when the conduct is so closely correlated with the status that it is engaged in exclusively or predominantly by persons who have that particular status. We conclude that the act of same-sex marriage constitutes such conduct because it is "engaged in exclusively or predominantly" by gays, lesbians, and bisexuals.

    So if requesting an anti-gay message on a cake were engaged in exclusively or predominantly by persons who are doing so out of religious motivations, then this would describe a close correlation between requesting such an anti-gay message and religion, right?

  • swood1000||

    "The fact that an act is done almost exclusively by a class of people is not sufficient to establish "close correlation."

    The dictionary definition of correlation:

    a relation existing between phenomena or things or between mathematical or statistical variables which tend to vary, be associated, or occur together in a way not expected on the basis of chance alone
    … the obviously high positive correlation between scholastic aptitude and college entrance …
    —James B. Conant

    If it were found that close to 100% of those requesting an anti-gay message on a cake were motivated by their religion this would be a high positive correlation between this message and religion, right?

  • Josh R||

    If it were found that close to 100% of those requesting an anti-gay message on a cake were motivated by their religion this would be a high positive correlation between this message and religion, right?

    No, repeating from above:

    The fact that an act is done almost exclusively by a class of people is not sufficient to establish "close correlation." Additionally, the act needs to be close to inherently linked to the class of people.

  • swood1000||

    The fact that an act is done almost exclusively by a class of people is not sufficient to establish "close correlation."

    Doesn't that contradict the statement by the Colorado court cited above?

  • Josh R||

    I don't think the Colorado court's analysis is completely correct. But even if I am wrong about that, what the Jack bakers objected to wasn't "anti-gay messages on cakes." It was "anti-gay messages" (they just happen to be in the cake business). Our world is full of both religious and secular anti-gay messages.

  • swood1000||

    what the Jack bakers objected to wasn't "anti-gay messages on cakes." It was "anti-gay messages" (they just happen to be in the cake business). Our world is full of both religious and secular anti-gay messages.

    But you would acknowledge that in the opinion of the Colorado Court of Appeals, if "anti-gay messages" are uttered "predominantly" by persons who are doing so out of religious motivations, then this would describe a close correlation between requesting such an anti-gay message and religion, right?

  • Josh R||

    On close inspection of the opinion, perhaps not. Right after the part you quote is this:

    New Mexico's antidiscrimination law similarly protects "conduct that is inextricably tied to sexual orientation," [...] We agree with the reasoning of the New Mexico Supreme Court.
  • swood1000||

    On close inspection of the opinion, perhaps not. Right after the part you quote is this:

    New Mexico's antidiscrimination law similarly protects "conduct that is inextricably tied to sexual orientation," [...] We agree with the reasoning of the New Mexico Supreme Court.

    Let me make sure I understand your point. In paragraph 34 the Colorado court reported the U.S. Supreme Court's constitution interpretation that:

    This is so when the conduct is so closely correlated with the status that it is engaged in exclusively or predominantly by persons who have that particular status.

    In paragraph 35 the Colorado court said:

    New Mexico's antidiscrimination law similarly protects "conduct that is inextricably tied to sexual orientation," including the act of same-sex marriage.

    So your point is that since the Colorado court agreed that the New Mexico antidiscrimination law "similarly" protects conduct that is inextricably tied to sexual orientation, we should understand "predominantly" to mean "inexorably tied."

    Is that your position?

  • Josh R||

    It's not clear what the Colorado's court's standard is. It might be simply that the conduct is engaged in exclusively or predominately by persons in the status. Or, it might be (as I suggest it ought to be) a combination of that standard together with being "inextricably tied" to the status. The court's standard is most certainly not, "inexorably tied."

  • Michael Ejercito||

    It is closely correlated to the religious beliefs of Westboro Baptists.

  • Bored Lawyer||

    Ant the exact same thing applies, mutatis mutandis, to the baker in the Walsh case. He rejected their message -- celebration of a same-sex marriage. He was willing to sell them anything else -- a birthday cake, a cookie, etc.

  • FlameCCT||

    How does this sound: The baker in the Masterpiece case was opposed solely to their same sex marriage message, not to their sexual orientation; there is no reason to think he would have accepted a religious same sex marriage message while rejecting the secular one.

    BTW: There are religious organizations that do perform same sex weddings.

  • DKWalser||

    Having read both Thomas and the Ginsburg opinions, I'd be tempted to review my work in if my own view were closer to Ginsburg's than Thomas'. I found his opinion to be very persuasive. Hers, not so much.

    (I've read brief by Carpenter and Volokh. It's solid. I don't think Ginsburg does their side justice.)

  • Brightly||

    So what is the highest point of law in the United States? Laws prohibiting anti-discrimination against an ever growing number of classes born out of politics?

    Or is it individual freedom to associate, exercise one's faith or grant or withhold one's own labor as they choose?

  • ||

    In modern liberal society, non-discrimination (whether in public accommodations or immigration) is the highest ideal to which all others must yield. Of course, a society that cannot discriminate against outsiders will cease to exist. Human nature is to discriminate. Liberals, as always, think their laws can change human nature.

  • Sarcastr0||

    Society has been changing human nature since Ur.

    That's why I can't hit you and take your stuff. (Or vice versa, I suppose)

  • ||

    It can attempt to, but as long as it's contrary to human nature, people will find a way around it. No one wants to be told who they have to sell their products or rent their apartments to. So instead of listing a "discriminatory" reason, they'll come up with something else.

  • nonzenze||

    I'd contend that it's a useful societal function to eliminate the public display of "Irish Need Not Apply" signs even if the shops secretly find ways not to hire Irish applicants.

  • ||

    You don't think Yelp and Tripadvisor will cause that to happen in modern times?

  • nonzenze||

    Yelp and TripAdvisor will cause people posting job offers not to include the phrase "Irish Need Not Apply"?

    Do they usually rate potential employers? Am I missing something obvious?

  • Sarcastr0||

    Um, you seem to have disproved the existence of civilization.

    We evolved as cave men. But our giant brain is a pretty remarkable organ - it allows us to mold an environment that incentivizes them in ways we decide we want.

    Every time you feel something but don't act on it because of the consequences, that's an example of laws changing human nature.

  • FlameCCT||

    Have to disagree with the last sentence. Progressives, as always, think their laws will discriminate against people that do not agree with them.

  • Sarcastr0||

    Why do you think that?

    You can disagree with liberal policies and wisdom without insisting they are acting in bad faith and secretly want to oppress you.

  • Sarcastr0||

    Our legal system has resisted such blanket pronouncements, preferring a more fact-based assessment of which rights give when they are in conflict.

  • Voyager||

    Wasn't the original argument that life, liberty, and the pursuit of happiness were the inalienable rights; i.e. the fundamental aspects of humanity that could not be taken away, and which any attempt to alienate would both fail and cause great injustice and misery in the process?

  • Stephen Lathrop||

    Wasn't the original argument that life, liberty, and the pursuit of happiness were the inalienable rights . . .

    Problem is, "liberty" in that formulation referred historically not to anything libertarians endorse today, but instead to self-government under popular sovereignty on majoritarian principles. So you get a situation prone to snarls.

    Courts rightly and unambiguously protect rights explicitly decreed by the popular sovereign—as for instance in the Bill of Rights. But legal enforcement of any right beyond the explicit decree from the sovereign becomes a problematic check on that other right—the right to self-government. And as the happenstance embodied in cases broadens, or narrows, or complicates the scope of the explicitly decreed rights, more and more of the legal response nibbles at and narrows the right to self-government.

    Taken far enough, that process becomes a challenge to the American People's sovereignty. And there are not a few advocates who want to take it that far, especially among libertarians. Those grow vociferous in objecting, when anyone suggest their rights-minded advocacy actually attacks a fundamental right—the right to self-government.

    So the "original argument" may be a touchstone, but interpreting it is never going to be simple.

  • jph12||

    "Problem is, "liberty" in that formulation referred historically not to anything libertarians endorse today, but instead to self-government under popular sovereignty on majoritarian principles."

    Still wrong.

  • swood1000||

    Problem is, "liberty" in that formulation referred historically not to anything libertarians endorse today, but instead to self-government under popular sovereignty on majoritarian principles.

    This is contradicted by William Blackstone in Commentaries on the Laws of England 129, 134, 138 (1765–1769), in his chapter on "The Absolute Rights of Individuals" he describes the rights of 'life, liberty, and estate':

    these may be reduced to three principal or primary articles . . . I. The right of personal security [consisting] in a person's legal and uninterrupted enjoyment of his life, his limbs . . . II. . . . the personal liberty of individuals . . . [consisting] in the power of locomotion, of changing situations or moving one's person to whatsoever place one's own inclination may direct, without imprisonment, or restraint, unless by due course of law . . . III. The third absolute right, inherent in every Englishman . . . of property: which consists in the free use, enjoyment and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.
  • Stephen Lathrop||

    For Dale Carpenter's and my view of the matter, which is closer to Justice Ginsburg's than to Justice Thomas's—and under which photographers, wedding singers, and the like would win, but bakers, limousine drivers, and the like would lose . . .

    Given what was actually going on in the creation of these cakes, I think the conflation with limo drivers, etc. is off the mark. I posted before—with less than full conviction—that I thought cake baking might be sufficiently expressive to deserve the same protection which photographers ought to get (I am a photographer). After learning more about this cake baker, I am more confident. A facts-of-the-case test, such as this decision seems to rely upon, might always be a better way to judge such cases than any preexisting set of occupational categories could be.

    Note also that under the theory I suggest, the core issue is expression, not religion.

  • Stephen Lathrop||

    Likewise, religious protections ought always to get intensively facts-based-analysis, not categorical support. Religious exercise, more than expression, tends toward coercive consequences when people in positions of power are furthered empowered by government to prescribe to others, such as their employees. The extent of that coercion ought always to be among the principal factors in attempts to find the proper boundaries for protection of religious freedom.

    That kind of analysis—by itself—should never be interpreted by courts as showing animus against religion.

  • Rev. Arthur L. Kirkland||

    Because this controversy directs attention to certain Christians, it seems important to mention that not all Christians are intolerant, stale-thinking, and backward. Plenty of Christians are decent, tolerant people.

  • apedad||

    It's always fun to watch Christians, Muslims, Jews, Republicans, Originalists, and Libertarians duke it out over which 'flavor' is better.

  • swood1000||

    not all Christians are intolerant, stale-thinking, and backward. Plenty of Christians are decent, tolerant people.

    How do you determine intolerant, stale-thinking, and backward? Take these two verses:

    LEVITICUS 18:22 Do not lie with a man as one lies with a woman; that is detestable.

    1 CORINTHIANS 6:9-10 Do you not know that the wicked will not inherit the kingdom of God? Do not be deceived: Neither the sexually immoral nor idolaters nor adulterers nor male prostitutes nor homosexual offenders nor thieves nor the greedy nor drunkards nor slanderers nor swindlers will inherit the kingdom of God.

    The straightforward interpretation of these has always been that homosexuality is sinful. There are those who interpret them otherwise. Is a Christian intolerant, stale-thinking and backward if he concludes that, contrary to his preference, the original meaning was that homosexuality was sinful? Or does the intolerance come from the conclusion that the original meaning is the current meaning?

    If the U.S. Constitution incorporated an injustice as originally written, to be decent does a person have to conclude that the original unjust meaning can be gotten rid of through judicial interpretation (as opposed to by amendment)?

  • nonzenze||

    It is not intolerant to believe homosexuality as sinful and more than it's intolerant for a vegan to believe that eating animal products is morally wrong.

    Intolerance is not a belief, it's a lack of the act of toleration that allows us to live in a pluralistic society while disagreeing on some core issues.

    I would expect those that believe homosexuality is a sin to act with no lesser respect towards gays than I would expect of vegans towards those that eat meat.

  • swood1000||

    I would expect those that believe homosexuality is a sin to act with no lesser respect towards gays than I would expect of vegans towards those that eat meat.

    Is it intolerant for the vegan to refuse to affirm the morality of eating meat? Must he say that morality is not absolute but is rather for each person to decide for himself? Is it intolerant if he says "I believe that what you are doing is wrong"? Is it intolerant if he attempts to convince meat eaters to change their lifestyle? Is it intolerant if he teaches his children that they shouldn't eat meat and that it is morally wrong to do so? Is it intolerant if he objects to his children being taught in school that veganism is an erroneous and flawed belief system that they should abandon? Is it intolerant if he prefers the company of other vegans?

  • nonzenze||

    Any of those things could be done in tolerant or intolerant ways.

    For instance, if a vegan attempts to convince meat eaters by rational persuasion and with respectful disagreement, that would be tolerant. If he goes around screaming "meat is murder you're all awful people that are worse than Hitler", that would be intolerant.

    If he teaches his children that it's morally wrong to eat meat, that's tolerant. If he teaches them not to play tag with kids that eat meat at recess at school, that's intolerant.

    If he prefers the company of other vegans, and joins a vegan advocacy group, that's tolerant. If he snubs his neighbor and refuses to even acknowledge her existence because she eats meat, that's rudeness bordering on intolerance. If he goes to the PTA meetings and refuses to engage with any parents that eat meat on PTA business, that's surely intolerant.

    Tolerance is about the set of behaviors and attidues that are about living in a society that includes Christians alongside atheists, vegans alongside non-vegans, Sikhs alongside Hindus.

    This is not so damned hard. Here's a simple way to assess the behavior: mask out the specific identities of the participants and assess how it sounds.

  • swood1000||

    If he goes around screaming "meat is murder you're all awful people that are worse than Hitler", that would be intolerant.

    You almost seem to be saying that just about any negative statement about another person's lifestyle can be made without intolerance as long as it's done with gentle demeanor. Can a baker's refusal to create a cake to celebrate a gay wedding be done in a tolerant manner?

  • nonzenze||

    To clarify, respectful demeanor towards those with whom one disagrees is a necessary but not sufficient condition for tolerance.

    Can a baker's refusal to create a cake to celebrate a gay wedding be done in a tolerant manner?


    If the baker has an open-to-the-public bakery in which he normally bakes cakes, tolerance requires that he bake cakes for all comers on equal terms.

    Interestingly though, even though the couple getting married (and their friends and family) might celebrate the wedding, I don't see that verb celebrate applies to the baker right? He isn't baking a cake to celebrate the wedding.

  • swood1000||

    If the baker has an open-to-the-public bakery in which he normally bakes cakes, tolerance requires that he bake cakes for all comers on equal terms.

    Does tolerance require the black baker to bake the pro-Ku Klux Klan cake? It might be said that the Ku Klux Klan is harmful to society but some believe devoutly, for religious reasons, that homosexuality is harmful to society. Is it only "enlightened" beliefs that we must tolerate? If I refuse to serve any students who go to the "rival" school is that intolerant? What if I refuse to serve male customers who are not wearing a jacket and a tie?

    Is it only beliefs approved and protected by the legislature? In a country in which the law permits racial segregation does tolerance still require service without reference to race?

  • nonzenze||

    As a legal matter, political preference is not a protected class within the CADA. If CO were to add it, it would cause considerable grief (for all sides) and I would generally be against doing so. If they did against my advice (sadly not everyone listens to me) then it would have to apply equally well to the John Birch folks baking a Communist cake as it would a black baker baking a KKK cake.

    As a matter of tolerance as a social value, I would advise that the baker make the KKK cake even while being against a compulsion to do so. Baking the cake does not help the KKK achieve its aims, refusing does not hinder them -- so while the KKK is harmful, the cake is neither here nor there with respect to the harm.

    Is it only "enlightened" beliefs that we must tolerate?

    Since I generally promote tolerance for religions that are mutually incompatible (and for religion vs areligion, which are also incompatible), the answer must surely be 'no'.

    If I refuse to serve any students who go to the "rival" school is that intolerant? What if I refuse to serve male customers who are not wearing a jacket and a tie?


    This is what is referred to as "being a jerk" which, while not illegal, is still just a jerk thing to do.

  • Drewski||

    Categorizing limo drivers and bakers together is not really a convincing argument. No person would consider those jobs to be similar; not in the expressive nature of the work, the process by which they're typically hired for the event, nor in how they are paid. The only reason to lump them together is rhetorical.

    That is to say, you've gone too far with the "baking is inexpressive" argument. Placing expression on a continuum, as you did in earlier articles, is reasonable; making it categorical is oversimplifying to the point of absurdity.

  • FlameCCT||

    Baking is not expressive however design & decorating is expression.

  • Sarcastr0||

    Not always.

    What does a trefoil or whatever frosting flourish have to say?

  • AJ_Liberty||

    Is a wedding cake a quickly recognizable symbol of a wedding celebration? I would have to say "yes", just as a wedding gown and rings are associated with a wedding ceremony. Does the wedding cake serve a decorative function in addition to a food function? Sure. Does this imply that the cake decorator and gown seamstress are differently situated in terms of expressive speech from the caterer, limo driver, and hairstylist? Perhaps. Does providing something beautiful, perhaps with custom features, and culturally recognizable, if not symbolic, imply compelled speech....as in, the "artist" is compelled to join in the celebration? That one's tougher. Would providing a beautiful venue or creatively decorating a hall for the reception be akin to "participating" and being made to "celebrate" the wedding? Most would assume some indifference without some personal connection. Does a calligrapher of wedding cards stand by its sentiments? Again, I would think not....it is given to the person who imbues its meaning. The same goes for the gown and cake. Absent a compelled message, making something beautiful seems too broad an analysis to render the Colorado anti-discrimination law effectively nugatory.

  • nonzenze||

    Has the architect that designed the wedding hall done something artistic/express and created something beautiful? Perhaps.

    Should they be considered differently than the decorator by virtue of the increased temporal distance between the creation and the use?

  • Voyager||

    Is there precedent that event halls cannot reject events that are inconsistent with their founding mission?

    Thoughts are:
    1) Have there been cases where a church has been sued to host an event contrary to its doctrine?
    2) Have there been cases when a secular event center has been sued to host an event that the owners object to, but is not in conflict with their founding mission?
    3) Has there been a case where a secular event center has been sued for refusing to host an event that expressly conflicts with the secular agency's founding reason for being?

    I'll have to think through this one more another day though: it's late and I've got to be up a o'dark-thirty in the morning

  • nonzenze||

    I was more focused on the architect whose job is primarily creative/aesthetic.

  • AJ_Liberty||

    The leads to the philosophical question: does Phillips bake and decorate cakes to make money or to celebrate Christian-authorized weddings or both? This was the least persuasive element of the Thomas/Gorsuch dissent that somehow by interacting with the couple to design the cake and to deliver and setup the cake, Phillips was participating in the celebration. I don't see participation as similar to a wedding singer, photographer, videographer, celebrant, or event planner who are actively involved in the celebration. However, is an ice sculpture fundamentally expressive? Is it permissible for the ice sculpture artist to deny service based on the event where the sculpture will be displayed? No one questions that sculpting is expressive even though the message of the creation may be benign (what is your dolphin trying to say artist?). Would it become less so if there was some additional functional use for the statue. No. The cake is a decorative feature for the event. I'm starting to lean in the opposite direction.

  • AJ_Liberty||

    The leads to the philosophical question: does Phillips bake and decorate cakes to make money or to celebrate Christian-authorized weddings or both? This was the least persuasive element of the Thomas/Gorsuch dissent that somehow by interacting with the couple to design the cake and to deliver and setup the cake, Phillips was participating in the celebration. I don't see participation as similar to a wedding singer, photographer, videographer, celebrant, or event planner who are actively involved in the celebration. However, is an ice sculpture fundamentally expressive? Is it permissible for the ice sculpture artist to deny service based on the event where the sculpture will be displayed? No one questions that sculpting is expressive even though the message of the creation may be benign (what is your dolphin trying to say artist?). Would it become less so if there was some additional functional use for the statue. No. The cake is a decorative feature for the event. I'm starting to lean in the opposite direction.

  • swood1000||

    This was the least persuasive element of the Thomas/Gorsuch dissent that somehow by interacting with the couple to design the cake and to deliver and setup the cake, Phillips was participating in the celebration.

    But Gorsuch wasn't determining that a certain interaction had a certain religious consequence. He said that the religious significance is up to the individual:

    it is our job to look beyond the formality of written words and afford legal protection to any sincere act of faith.

    He referred to a case in which a Jehovah's Witness in a steel mill agreed to work on an assembly line where the product might find its way into armaments, but was unwilling to work on an assembly line producing tank turrets. Gorsuch said:

    Instead, it recognized that Mr. Thomas alone was entitled to define the nature of his religious commitments—and that those commitments, as defined by the faithful adherent, not a bureaucrat or judge, are entitled to protection under the First Amendment.

  • nonzenze||

    The adherent is entitled to define the nature of his religious commitments, but the deference required to his exercise, especially as it regards exemption for neutral laws of general applicability, is limited by the bounds of other State interests.

    For instance, we can agree that an atheist landlord can define the nature of their commitments as a duty not to house religious tenants, but they cannot be exempted rental laws. To do so doesn't vindicate free exercise, it eviscerates it.

    One of the conspirators posted directly on the tension between the two requirements, I should find and re-read it.

  • M.L.||

    What harms does a public accommodation law prevent?

    Where the only harm being prevented is dignitary harm, how can the conduct in question be deemed anything other than expressive?

    Dignity, according to Merriam-Webster, means "the quality or state of being worthy, honored, or esteemed."

    While dignitary harm is real, is not the conferrence or denial of dignity inherently expressive? At least, when it is exclusive of any other tangible or intangible rights or interests?

    Are human beings entitled to a (rebuttable) presumption of dignity? In point of fact, they are not. In a moral world, I think, such a presumption would be extended, and it follows that we have a moral obligation to do so.

    However, I would think that the 1st amendment prevents the government from enforcing that maxim against private actors, for example, by compelling them to engage in symbolic submissions of dignity toward others, such as by conveyance of dignitary token-cakes, or performance of expressive acts, in favor of any persons or pet interest groups of the moment.

  • Sarcastr0||

    Dignitary harm implicates rights that according to current precedent trump association.

    As I recall from that Irish parade case, Expressive association requires it to be central to the organization in question - for that to apply to dignitary harm it would have to be a 'we don't believe gays deserve dignity' bakery.

    Making the right to discriminate means freedom argument is just academic unless you grapple with the Jim Crow south.

  • M.L.||

    Of course this is just academic.

    But here, I'll bring it home for you.

    "Precedent . . . precedent . . . distinctions, distinctions, distinctions . . . " *waves hands vigorously*

    There you go.

  • Sarcastr0||

    If you are just going to make up neat systems of rules and not address how they would have a moral effect in the real world...you'll probably go far as a philosophy author or something.

  • M.L.||

    Well, I'm not filing an amicus brief.

    But, let's assume, as in this case, there are many bakeries available and others were falling over themselves to give this couple cakes for free.

    How can you possibly deny that this application of the law is nothing more than a regulation of speech, expression, and by extension, thought? That's the entire point here. Penalizing people for expressing a disapproved message.

  • Sarcastr0||

    We regulate action, not thought. Cute Orwell flourish though.

    You prove way too much. By your logic murder is protected speech.

    We asked and answered when discrimination counted as protected speech long ago. You may not like where it came out, but we've decided where that line goes.

  • M.L.||

    No, murder is the ultimate violation of the ultimate right of another person, life.

    No matter how much you whine and protest to wriggle out of it, these laws as applied are nothing more or less than punishment for hurting someone's feelings.

  • M.L.||

    The sacred right not to be offended must be enforced by the full weight of the law, right?

    At least for the "right" groups and views, of course.

  • Curly4||

    This was an attempt to force a person to make and fulfill a contract that the person did not believe in. This required the person to use his talents and skills to produce something that is reprehensible to him. But that is what America has to now days. But it only applies to a very small segment of the population. It would never apply to say a Muslim baker if the cake was a pig for instance.

  • Bored Lawyer||

    Thomas's concurrence makes the point about wedding cakes that I repeatedly made in prior posts, albeit more eloquently than I can:

    Wedding cakes do, in fact, communicate this message. A tradition from Victorian England that made its way to America after the Civil War, "[w]edding cakes are so packed with symbolism that it is hard to know where to begin." M. Krondl, Sweet Invention: A History of Dessert 321 (2011) (Krondl); see also ibid. (explaining the symbolism behind the color, texture, flavor, and cutting of the cake). If an average person walked into a room and saw a white, multi-tiered cake, he would immediately know that he had stumbled upon a wedding. The cake is "so standardised and inevitable a part of getting married that few ever think to question it." Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 95
    (1987). Almost no wedding, no matter how spartan, is missing the cake. See id., at 98.
  • Bored Lawyer||

    "A whole series of events expected in the context of a wedding would be impossible without it: an essential photograph, the cutting, the toast, and the distribution of both cake and favours at the wedding and afterwards." Ibid. Although the cake is eventually eaten, that is not its primary purpose. See id., at 95 ("It is not unusual to hear people declaring that they do not like wedding cake, meaning that they do not like to eat it. This includes people who are, without question, having such cakes for their weddings"); id., at 97 ("Nothing is made of the eating itself "); Krondl 320–321 (explaining that wedding cakes have long been described as "inedible"). The cake's purpose is to mark the beginning of a new marriage and to celebrate the couple.
  • Bored Lawyer||

    To me, this is so obvious, that I am astounded anyone would not believe that creating a wedding cake (especially a custom one) to be expressive.

  • nonzenze||

    I don't think baking the cake is the expressive act. It's expressivity comes from using it in a wedding.

    By contrast, if I buy a wedding cake and go home and eat it alone in the dark, has the baker expressed anything about a (non-existent) wedding? Surely not.

    It's not enough to say that it is expressive (which, I agree, it is). Expression is something that is done, and in this case it's clearly not done by the baker.

  • Bored Lawyer||

    So printing a sign is not expressive? It is only expressive when you actually carry it?

  • Sarcastr0||

    My trenchant legal analysis: cakes are not signs.

  • Curly4||

    Is it not expressive when you design a one of a kind sign?

  • Curly4||

    Are not wedding cakes not contracted? That contract may be verbal but it is a promise that the baker will bake a wedding cake with certain attributes to be used in a wedding for a price which will cover the cost of the cake and for the time to design and put the cake together and generally delivered to a destination. But under the law a person artist cannot refuse to do the work for any reason other than maybe non-payment.

  • Sarcastr0||

    To me, this is so obvious, that I am astounded anyone would not believe that creating a wedding cake (especially a custom one) to be expressive.

    The inability to understand the other side is a red flag you're letting your emotions do your logicking.

  • Bored Lawyer||

    Thomas also mentions that the dissent faulted Walsh for not citing evidence that the cake-making is expressive.

    What kind of evidence would be needed? In trademark and false advertising cases, parties often use consumer surveys. So what if Walsh had commissioned a survey to determine if a wedding cake is expressive? Would that convince anyone?

  • nonzenze||

    I think the evidence would be whether any third party would attribute the expressive content of the cake (whatever it is) to the baker or bakery.

  • Curly4||

    All this ruling means is that if there is a Christian cake baker the does custom wedding cakes that Christian cake baker will have to bake the cake regardless of his religious beliefs. He will not be able to refuse to contract to bake a custom cake for anyone who wants one.

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