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More on Masterpiece Cakeshop, from Prof. Michael McConnell

Prof. Michael McConnell (Stanford), one of the leading American scholars of the Religion Clauses, wrote this when Masterpiece Cakeshop came down earlier this month, and I wanted to pass this along, especially since the Court is still considering whether to hear Arlene's Flowers, and other cases are percolating up as well:

The Supreme Court ... confounded all expectations, and decided the highly controversial Masterpiece Cakeshop case by a 7-2 vote. This is the case about a Colorado baker who, in accordance with his religious beliefs that marriage is properly confined to a man and a woman, declined to "design and create" a cake celebrating a same-sex wedding. The Court held that penalizing the baker for this refusal to violate his religious convictions violated the principle that the government "cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices." The Court emphasized the fact that the State of Colorado had permitted three other bakers to refuse to provide cakes that expressed sentiments opposed to same-sex marriage, condemning this disparity in treatment as demonstrating hostility to religious views.

In these days of intense culture conflict, the Supreme Court's 7-2 majority demonstrates that concern about hostility and intolerance toward religious views is not a right-wing distraction, as some people say, but a broadly held and fundamental part of our constitutional values. The Court is to be commended for transcending its political divisions and delivering that much-needed message. It bears mention that four of the last five decisions by the Court protecting religious freedom were by unanimous or 7-2 votes, all of them against the government and all of them reversing lower court decisions.

The price of a broad majority is typically a narrow—and often a vague—opinion, and Masterpiece Cakeshop is no exception. The majority opinion, by Justice Anthony Kennedy, scrupulously avoided expressing an opinion about similar cases that might arise in "other circumstances" in the future.

But no one should mistake the principle: If a state recognizes the right of "shopkeepers" to refuse service on the basis of secular principles, it cannot punish others who refuse service on the basis of religious principles. The case might be different if all bakers were required to bake all cakes expressing all ideas—but Colorado did not have such a rule. The constitutional principle recognized in this case is not of expansive freedom for religious exercise, but simply of neutrality. The principle is "narrow," but it is supremely important.

In a response to an e-mail query of mine, Prof. McConnell elaborated:

Enforcement of a genuine public accommodation law, such as a public utility law that requires the utility to serve all comers on a nondiscriminatory basis, would not violate the Free Exercise Clause as interpreted in Smith, because such a law is neutral and generally applicable. A law that allows some bakers to choose not to bake cakes contrary to conscience but requires others to do so, is not neutral or generally applicable, and warrants strict scrutiny.

If the Hobby Lobby Electric Corp. denied service to a household of devil worshipers, it would lose a free exercise case under Smith. But if the Social Justice Water Works were permitted to deny service to the Ku Klux Klan Country Club, Hobby Lobby Electric's case would be different. The state cannot allow non-religious people to follow their consciences but strictly enforce the law against religious people. That, I think, is the enduring legacy of Masterpiece.

If Prof. McConnell is right, and a state that allows bakers to refuse to write anti-gay messages must also allow bakers to refuse to provide cakes for same-sex weddings (or refuse to provide serve to Satanists), then Masterpiece will be influential indeed. After all, almost all American laws banning discrimination in most places of public accommodation let people refuse service on the basis of secular principles, when the refusal is based on disapproval of a person's nonreligious ideology. The laws generally ban discrimination based on race, religion, sex, and national origin, and in many states, counties, and cities based on sexual orientation. But very few ban discrimination against customers based on political beliefs. (I agree that some laws governing public utilities and a few other entities require them to serve everyone, with only a few exceptions; but the current debate is about the more common public accommodation discrimination laws, which only ban certain bases for discrimination.)

Caterers, for instance, are free to refuse to cater a Socialist's wedding, the birthday of an opponent of homosexuality, an environmentalist gathering, or a pro-gun-control event. That is true whether this refusal stems from their religious principles or their secular principles, and whether the would-be customer's Socialism, opposition to homosexuality, environmentalism, or support for gun control stems from the customer's religious beliefs or the customer's secular beliefs. But caterers are not free to refuse to cater a Catholic's wedding, or a same-sex wedding, or an interracial wedding (again, whether this refusal stems from their religious principles or their secular principles).

If Prof. McConnell's position is that, once a state decides not to ban discrimination against anti-gay customers (or, to take the other example, KKK customers), it must likewise allow refusal to supply same-sex weddings, then such refusals to supply same-sex weddings would be legal pretty much everywhere. And this logic wouldn't just be limited to expressive businesses (such as photographers, calligraphers, singers, or, in the view of some, wedding cake bakers), but would also apply to caterers, hotels, limousine drivers, and the like.

But I think that's not right as a matter of Free Exercise Clause precedent, which (at least as the Court interpreted it in Employment Division v. Smith) generally bans discrimination against religious practices. Treating discrimination based on a person's ideology differently from discrimination based on a person's sexual orientation is not discrimination against religion, even if these days refusals to provide goods and services for same-sex marriages tend to be religiously motivated.

When someone refuses to make a cake for a same-sex marriage, it may not be discrimination based on the sexual orientation of the buyer of the cake; the baker doesn't care about who places or pays for the order (it might well be a straight friend or family member). But a state may reasonably interpret it as discrimination based on the sexual orientation of one set of the ultimate users of the cake—the marrying couple, who are being discriminated against precisely because they are engaging in one of the defining characteristics of gays and lesbians, i.e., showing and pledging romantic love to a member of the same sex. (This is why we'd treat refusal to bake a cake for an interfaith wedding as religious discrimination even when the baker doesn't care about the religion of, say, the mother of the bride, who is ordering or paying for the cake.) On the other hand, when someone refuses to make a cake with an anti-gay message, or even refuses to make any cake for someone who he knows is anti-gay or will use it at anti-gay event, that is not discrimination based on the buyer's or users' sexual orientation or religion; the baker doesn't care about the religion of either the buyers or the users of the cake, but only about their beliefs about homosexuality, whether religious or secular.

On the facts of Masterpiece Cakeshop itself, there was evidence that the Colorado courts legally analyzed the refusal to bake the cake with an anti-gay message inconsistently with how they analyzed the refusal to bake the cake for the same-sex wedding; see this post for more details. But, as Justice Kagan and Breyer argued in their concurrence—I think correctly, when it comes to the Free Exercise Clause question—other states don't have to make the same mistake, and yet can still treat discrimination based on sexual orientation (again, the sexual orientation of the ultimate users of the cake) differently from discrimination based on ideological views about homosexuality.

Of course, that still leaves the Free Speech Clause question: Even if there's no discrimination against religious people in the enforcement of these antidiscrimination laws, when do the laws impermissibly compel speech? That is a complicated question, which has been discussed here and elsewhere in detail (see, e.g., here); lower courts have been facing it in many cases, and the Supreme Court may have to return to it. Here Prof. McConnell and I are speaking only about the discrimination-against-religion Free Exercise Clause question.

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  • David Welker||

    I am not so sure that a gay marriage is so than a pro-gun event.

    Both are fundamentally ideological. I happen to be both in favor of gay marriage and guns. But I do not think anyone who objects to either should be coerced into participating.

    Why make someone participate (even by baking a cake) in an event that they do not approve of? Also, can anyone deny that declining to bake a cake or cater an event because you disapprove is a way to send a message? I think it was this message, rather than the refusal to bake the physically cake, that is really being shut down in the Mastercake case. After all, it is pretty much trivially easy to find someone to bake a cake for a gay marriage ceremony.

  • David Welker||

    I am ok with antidiscimination law being narrowed so that, for example, your local KKK member who happens to be a baker does not have to bake a cake for an interracial marriage that they disapprove of, even though I think the KKK member has an abhorrently bad view on issues of race.

    Probably, anti-discrimination law ought to be limited to cases where the provider has significant market power. So, a mere caterer in a competitive marketplace would not have significant market power and ought to be able to discriminate. Because, at this point, the true concern is not that a necessary good or service isn't being provided, but because the provider is expressing themselves in a negative, hurtful, and anti-social way. In contrast, if the provider has significant market power, the concern isn't necessarily their expression of disapproval, but that he good or service will not be readily available. So, for example, since real estate is unique, discrimination in that context should be forbidden. And the local utility should have to serve everyone. But when it comes to mere commodities, the real motivation behind the enforcement of anti-discrimination law seems to punish those with bad views.

  • David Nieporent||

    Probably, anti-discrimination law ought to be limited to cases where the provider has significant market power.

    As a libertarian I am generally opposed to anti-discrimination law, but as a compromise I think your argument here is a better principle than existing anti-discrimination law. But as a practical matter, I'm not sure how workable it is. The key part of many antitrust cases is defining the relevant market and then deciding whether a particular market actor has sufficient power in that market. But that's an expensive and time consuming process of determination. Are we really going to make "sufficient market power" an element of an anti-discrimination cause of action?

    Because, at this point, the true concern is not that a necessary good or service isn't being provided, but because the provider is expressing themselves in a negative, hurtful, and anti-social way.

    And many liberals who support anti-discrimination law are quite clear on that point: it's about (to them) the dignity of the customers, not about whether the customers are actually harmed.

  • David Cary Hart||

    Well, I am an economic libertarian. This progressive, gay Jew would bake a cake for the Westboro Baptist Church. But I digress.

    Let those who oppose serving gay couples post a sign and I will not call it de facto discrimination.

    And by the way, when people are told: "We don't serve your kind here," they ARE harmed.

    Phillips is an arrogant, self-righteous fool. This was his way of expressing disapproval. As the head of the Southern Baptist Convention reminded adherents, Jesus said "Render unto Caesar ..."

  • ||

    Exactly. It's about hurt feelings these days.

  • Oshtur||

    Always has been in may cases. There were other BBQ restaurants, other lunch counters, other hotels, etc. Shoot the hallmark case in Washington state was about purchase of a Slurpee at a 7/11.

    'These days' and all days its been about respect.

  • M.L.||

    Maybe so. But in the days of segregation you had an entire system predicated on disrespect and discrimination based on immutable skin color, enforced by the law.

    Now, it appears we have progressive puritans being kept awake at night by a haunting fear that someone, somewhere might disagree with their sexual behaviors or gender identity.

  • Oshtur||

    Some were enforced by law, but we aren't talking about Jim Crow. We are talking about Piggie Park, the 7/11 owner, Heart of Atlanta Motel, and others who discriminated when no law required them to at all.

    And civil rights laws only mandate conduct, not agreement, message, or anything else. My business served fundamentalists when buying things for their churches whether I agreed with them or not.

    That's all that being asked - them respecting the rights of the invited public to not share their beliefs and still accept the freely made invitation of sale.

  • Rossami||

    Given the Supreme Court precedents on freedom of expression, I'm not sure that the distinction between conduct and message are defensible anymore. It's certainly a weaker argument than it was at the time that the civil rights laws were passed.

  • dunstvangeet||

    And what is that message? Do you agree that a restaurant would never have been able to get away with, "Well, I don't agree with integration, and you forcing my restaurant to integrate goes against my freedom of speech! Serving black people in my restaurant tells the message that I don't want to tell, so it's compelled speech!"

    Most likely, the way I see the court heading is that Mr. Phillips would have been required to still provide the Full and Equal Enjoyment of his public accommodation. That means that if there's a cake he was willing to sell a straight couple, then he would also need to sell a gay couple that cake as well. However, if he wasn't willing to sell anybody that cake, then there is no differentiation.

    The court certainly (at least 6 members of it) wasn't willing to overturn the Civil Rights Act to create a carve-out for wedding cake bakers because of "compelled speech". I'd argue that if that issue was forced, it would be 6-3 going against the baker. Roberts, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan would have made up the majority. Alito might have even joined them (he did not sign onto Thomas's opinion on the compelled speech issue, and wrote in Hobby Lobby that government has a compelling interest in preventing discrimination, and that anti-discrimination laws are precisely tailored to achieve that critical goal).

  • Oshtur||

    But isn't that one of the big problems? Roberts decided Rumsfeld v. FAIR on the premise that laws like this only require conduct, not message or expression. If he reverses that by ruling the laws ARE requiring expression it can break a number of previous rulings.

  • theobromophile||

    "Why make someone participate (even by baking a cake) in an event that they do not approve of?"

    I never understood that, and I understand it even less now, as I plan my own wedding. If the purveyor of our wedding cake* has ideological or moral opposition to our marriage, *everyone* is going to be happier if we find another vendor. Our vendors and reception venue hosts need not be happy for us - they might view this as a business transaction - but I would rather have sheet cake from CostCo than a gorgeous cake baked by someone who had to be sued into baking it.

    To that end, it does feel a bit like the goal is to stamp out religious opposition to homosexuality, or to keep it confined to what people do for an hour on Sunday morning. The problem is trying to map that onto constitutional principles.

    *small cake for us to slice; cupcakes for the guests; I'm lobbying for the slicing cake to be chocolate cake with chocolate mousse and chocolate frosting

  • nonzenze||

    This is true and in the spirit of generosity, but it's also a bit tone-deaf for a straight couple to say it knowing that practically no one will oppose their marriage. It's a bit like white in the South says "I'd rather eat at a diner that wants whites rather than having to sue them to remove their 'blacks only' policy" -- sure, but in practice they were exceedingly unlikely to ever have to make this choice.

    In other words, it's a choice that you won't have to make and hence one that you don't have much moral stake in. That said, by all means, I appreciate if a gay or interracial couple said this, but I hardly think it's morally required of them to turn the other cheek.

    To that end, it does feel a bit like the goal is to stamp out religious opposition to homosexuality, or to keep it confined to what people do for an hour on Sunday morning.

    This is a motte & bailey argument. Surely (the motte) no one believes that the State has the right to prohibit people from having a religious (or secular, or biological, or mystical) opposition to homosexuality. But (the bailey), it's too much to suggest that the State can never prohibit any action motivated by that opposition.

    Where the defensible line is remains to be seen, but we won't find it by making specious arguments.

  • theobromophile||

    "This is true and in the spirit of generosity, but it's also a bit tone-deaf for a straight couple to say it knowing that practically no one will oppose their marriage."

    Actually, you don't get to make that argument. It's a logical fallacy.

    Beyond that, it's not true. My fiance and I are of different religious denominations. Our respective faiths have their own requirements as to whether we can marry in their church, and we are okay with that. (I cannot marry in my own parish because we are having the wedding less than a year from the engagement. It's stupid - do they want premarital fornication? - but it is their rule that we are abiding by.)

    Painfully, some members of my family have refused to participate in the ceremony, because of family drama that is being taken out on my wedding. It is irrational and painful, but my wedding will not be improved by twisting arms to get them to participate. Literally, I has this conversation yesterday, and said that I thought it was wrong and stupid, but was not going to fight it.

    So, yeah, maybe improve your own arguments before callingone specious.

  • nonzenze||

    Sucks about the family members, and really quite hard to comprehend.

    That said, inter-faith marriages hardly face the sort of prejudice that interracial or homosexual marriages do. It's only been 50 years since States refused to recognize the former and only 5 years since they refused the latter.

    Also, the parish/Church surely has the right not to actually allow marriages in their Church that violate their precepts. To compare this with taking a cake and celebrating elsewhere cheapens the argument.

    Finally, I agree that twisting arms is not going to improve things with hard-headed relatives. And I would agree that it would be generous of a couple not to twist the arm of a baker who discriminated, and if I were privately counseling them, I would even recommend just moving on because the conflict detracts from the event. But it's a big difference to say that it's preferable to just move on (sure) with the idea that a couple is obligated to move on (nope).

  • Rossami||

    re: "inter-faith marriages hardly face the sort of prejudice that ..."

    Wow. I hardly know where to start on that opinion. On the one hand, I suppose we should celebrate that nonzenze has grown up in a culture so open-minded. On the other hand, interfaith marriages are still routinely outlawed in many countries. And in a distressing (though now small) number of those countries, it is a crime that can earn you the death penalty. So can homosexual marriages but I can't think of any that apply the death penalty to interracial marriages.

    Even in Western culture, interfaith marriages were prohibited for, well, almost all the the history of Christianity. During most of those same periods history, interracial marriages were routinely accepted (or at least as accepted as any merchant or traveler could be who married a "foreigner" not from his/her immediate cluster of villages). The western prohibition against interracial marriages was a comparatively recent and (historically) short-lived prohibition.

    Re: your final comment, I fail to see why, in your view, the couple can not be obligated to compromise their beliefs but the baker can be so compelled.

  • nonzenze||

    I was referring to the US in the current century. And yes, we are blessed to live in a slightly less barbaric age than grandparents.

    After all, for most of human history, it was permissible to own other human beings as chattel, murder people over trivialities, burn caged cats for amusement and other grotesqueries. This is true but irrelevant.

    Re: your final comment, I fail to see why, in your view, the couple can not be obligated to compromise their beliefs but the baker can be so compelled.

    Are you seriously comparing the weight of a guy that bakes a dessert with the couple that are joining in holy matrimony?

  • jph12||

    "Are you seriously comparing the weight of a guy that bakes a dessert with the couple that are joining in holy matrimony?"

    That's not what we mean by the scales of justice.

  • nonzenze||

    Oh fudge, my analogy was not fully baked.

  • theobromophile||

    More importantly, we have different conceptions of a wedding. To many people, it's a big party attached to a life milestone, a fancier version of a graduation or housewarming party.

    To some of us, it's a solemn promise before God, family, and friends that this is forever, that we are creating a new family, and that this is forever. I have openly snarked about people who think I am celebrating Happy Princess Day with its attendant months of festivities. So yes, having someone there who is opposed the union is no small matter. Celebrate the actual commitment we are making or stay at home.

    What you and your ilk are doing is to impose the first mentality upon the rest of us.

  • nonzenze||

    I apologize for the lack of clarity.

    My claim is that irrespective of what a wedding is about to the participants, the cake baker is not a part that symbolic conception.

    Just to illustrate the example, if a baker (or flower seller) sold flowers to a traditional Catholic (Satanic) wedding, would it be reasonable for a third party to infer that the baker celebrates the Catholic (Satanic) conception of marriage?

  • theobromophile||

    "Just to illustrate the example, if a baker (or flower seller) sold flowers to a traditional Catholic (Satanic) wedding, would it be reasonable for a third party to infer that the baker celebrates the Catholic (Satanic) conception of marriage?"

    Yes.

    But "appearances to third parties" is not the relevant standard for matters of conscience.

  • nonzenze||

    Will you at least accept that I haven't claimed anything about the internal meaning of a wedding to the participants? I've only claimed that whatever that internal meaning is, folks providing items that are then used during that event are not a part of it.

    Moreover, while appearance to third parties is not the relevant standard for matter of conscience, but it is a useful measure of normal linguistic usage of a word. My claim is that in normal English usage, the guy that cooked the food for my wedding (we didn't have cake :p) did not celebrate my marriage.

    As a 85% joking proposal, we should just double-blind cake bakers and wedding-havers so that they always transact through intermediaries in which they cannot know (and hence cannot celebrate or condemn) each other.

  • jph12||

    "Will you at least accept that I haven't claimed anything about the internal meaning of a wedding to the participants? I've only claimed that whatever that internal meaning is, folks providing items that are then used during that event are not a part of it."

    Who cares? The question is about the internal meaning to the baker, not to the couple.

    "My claim is that in normal English usage, the guy that cooked the food for my wedding (we didn't have cake :p) did not celebrate my marriage."

    I suspect that most wedding caterer websites will disagree.

  • Josh R||

    Eugene dealt with the "participation" question in his Masterpiece brief. Whether or not you are persuaded by Eugene's argument, it seemed clear that precedent does not support letting the service provider decide for himself whether he is participating.

  • jph12||

    While I didn't find Eugene Volokh's brief particularly compelling, it really has little to do with the issue being discussed in this thread, which is "[w]hy make someone participate (even by baking a cake) in an event that they do not approve of?"

  • Josh R||

    When we ask "why make some one participate," we are referring to anti-discrimination law. Thus, it seems reasonable that a legal analysis of what constitutes participation is relevant.

  • jph12||

    Not in this thread, which is pretty clearly about what the law should be, rather than what it is.

    "I am ok with antidiscimination law being narrowed so that . . .

    Probably, anti-discrimination law ought to be limited"

    Why do you want someone baking your wedding cake who disapproves of your wedding?

  • Josh R||

    Shouldn't a discussion about what the law should be include what the current law is? What constitutes "participation" is a critical piece of the analysis, and it strikes me that if the service provider gets to self-define participation, anti-discrimination law is going to be gutted.

    Why you want to do business with someone who disapproves is a personal question, in contrast to the legal question of why someone should be forced to provide the service.

  • jph12||

    "Probably, anti-discrimination law ought to be limited to cases where the provider has significant market power."

    This will pretty much gut anti-discrimination laws, regardless of how you define participation.

    "Why you want to do business with someone who disapproves is a personal question"

    Which is the question being asked.

  • nonzenze||

    Is society really willing to grant the baker an exemption from the neutral application of a general law on the basis of his internal meaning?

    Or the limo driver. Or the custodian. Or the building maintenance guy. Or the million other people who might be so self-absorbed to think that everything they touch is implicitly part of their own lives.

  • jph12||

    "Is society really willing to grant the baker an exemption from the neutral application of a general law on the basis of his internal meaning?"

    According to the Cato Institute, 68% of Americans think bakers shouldn't be forced to bake cakes for gay marriages, so yes, society is. Whether the laws will catch up is a different story.

    "Or the limo driver. Or the custodian. Or the building maintenance guy. Or the million other people who might be so self-absorbed to think that everything they touch is implicitly part of their own lives."

    That you can only attribute it to self-absorption is a failure on your part, not theirs.

  • Josh R||

    Does society think a baker should be forced to serve an interracial marriage?

  • jph12||

    "Does society think a baker should be forced to serve an interracial marriage?"

    I don't know, and don't particularly care. I'm sure you have access to the Google if you really want to find out.

  • nonzenze||

    You didn't actually clarify whether you believe that Americans at large recognize a right for limo drivers, custodians and building maintenance folks to decline to 'celebrate' a same sex wedding.

  • jph12||

    You caught me. I wasn't trying to hide the ball and thought it was pretty obvious, but you are correct. I clarified what I thought about you instead of your question.

  • nonzenze||

    Why make someone participate (even by baking a cake) in an event that they do not approve of?

    How is baking a cake participating in the event? Would anyone colloquially refer to a baker as a participant at the wedding, given that his putative participation was separated temporally and physical from the event itself?

  • theobromophile||

    Yes, because the fancy cake does not get thrown into someone's trunk; it is transported to the reception venue by the store's employees on the day of the reception. It is "temporally and physically" tied to the event.

  • Oshtur||

    You are conflating everyone at the business with the beliefs of one person as if they shared them. Someone wants religious accommodation, give it to them - send someone else.

  • theobromophile||

    What if their business is too small for that?

  • Oshtur||

    The could hire a temp, 3rd party contract it out. The obligation to operate without discrimination is the business's, not any particular employee's.

  • theobromophile||

    You are assuming the question - that the business has a legal and moral obligation to bake the cake, and that they give up their rights to religious liberty by opening a bakeshop.

    In all the discussion of what Masterpiece Cakes hope could have done, there is little discussion of the plaintiff's other options. They could have taken their business elsewhere. Bonus - the people who support gay marriage get more money!

    The desire to force Christians to kiss the ring shows that this is not about discrimination. If some Southern baker told me they wouldn't bake a wedding cake for a lady lawyer from Boston, I would take myself and my business elsewhere - happily. The idea that there's a civil right in having someone be your wedding vendor is so beyond stupid.

  • Oshtur||

    Same for Piggie Park Enterprises who's sincerely held beliefs didn't allow facilitating the races to mix. But as the court ruled.

    "Undoubtedly defendant Bessinger has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens."

    Every customer responding to a public offer has a constitutional right to their own beliefs about marriage and a civil right to accept that public offer without discrimination because of them.

    You don't like that the people have recognized civil rights, that's ok. But they have and those who think they shouldn't are a minority.

  • MichaelGC||

    "Same for Piggie Park Enterprises who's sincerely held beliefs didn't allow facilitating the races to mix. But as the court ruled."

    The Masterpiece decision rejects that line of reasoning and holds it invalid.

    From Obergefell

    "The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so
    central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. "

    Reiterated in Masterpiece:

    "The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression."

    Good luck on trying to get the Court to accept your view that rejection of SSM = the new racism.

  • dunstvangeet||

    Interesting that you deleted the two sentances before your quote in Masterpiece Cakeshop. You know: "Our society has come to the recognition that gay personsand gay couples cannot be treated as social outcasts or asinferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts."

    And you also got rid of the next few sentences in the paragraph: "Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do notallow business owners and other actors in the economy and in society to deny protected persons equal access togoods and services under a neutral and generally applicable public accommodations law."

    You selectively edit that paragraph to delete the two sentences that come before that, that go directly against your point.

    The court has already accepted that SSM is equal to discrimination against sexual orientation. They state so throughout Section II-A, which you selectively edited to make the exact opposite point that they actually made.

  • dunstvangeet||

    Oh, and the court actually cited Piggie Park Enterprises in that same paragraph that you were quoting. So, the Supreme Court has equated SSM to racism, basically.

    So, come back when you've actually read the opinion, rather than just quotes from it. Or come back when you come

  • dunstvangeet||

    Or come back when you come away from deceptively editing quotes in order to try to argue the reverse position.

    The Supreme Court has acknowledged that discrimination against SSM is discrimination against Sexual Orientation ("Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rightslaws that ensure equal access to goods, services, and public accommodations.")

    They further remark: "It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they chooseon the same terms and conditions as are offered to other members of the public. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment. Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter and theState would have a strong case under this Court's precedents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and issubject to a neutrally applied and generally applicable public accommodations law."

  • MichaelGC||

    "Oh, and the court actually cited Piggie Park Enterprises in that same paragraph that you were quoting. So, the Supreme Court has equated SSM to racism, basically."

    My quote from Masterpiece came from page 9. Piggie Park was cited by Kagan in a separate opinion joined only by Breyer. You would have known that had you taken a peek at the opinion.

    As for the rest, nothing you cited negates the 7-2 opinion of the court, part of which is

    "At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression."

    So much for your spurious claim that the Court saw Phillips' views of SSM as tantamount to racism.

  • dunstvangeet||

    Piggie Park Enterprises was cited on page 9, right below where you took that quote from, in that same paragraph that you're pulling your quote from. It's as plain as day:

    Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law. See Newman v. Piggy Park Enterprises, Inc., 390 U. S. 400, 402, n. 5 (1968) (per curiam); see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 572 (1995) ("Provisions like these are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments").

  • MichaelGC||

    Piggie Park Enterprises was cited on page 9, right below where you took that quote from, in that same paragraph that you're pulling your quote from. It's as plain as day:

    OK. On page 9 it is spelled Newman v. Piggy Park Enterprises, Inc., on page 3 of Kagan's opinion it is spelled Newman v. Piggie Park Enterprises. I searched on Piggie.

  • Oshtur||

    yes some people have tweeted about the error and it crossed my mind that might be what had happened.

  • Oshtur||

    No the masterpiece ruling said the CCRC acted improperly so this case was decided for the accused. It specifically uses it as a "Nevertheless" right after your 3rd paragraph.

    And the Obergefell quote is what protects customers responding to a public invitation. Remember no one made the business invite the public - a group of all belief - they chose to invite all people, even those with beliefs that include marriage regardless of gender. It is the customer who's beliefs have been religiously discriminated against.

    And I agree with the last paragraph. If they don't want to serve all faiths they can direct their invitation to particular faiths. But they can't invite everyone of any faith and then say to the responding customer 'sorry we don't sell this to people with your beliefs.'. The customer's own right to their own beliefs about marriage shields from any 'after the invitation' religious discrimination.

  • dunstvangeet||

    I'd argue that they can't direct their invitation to paticular faiths. That would clearly go against not only the Colorado Anti-Discrimination Act, but the Civil Rights Act of 1964.

    I think you were trying to state that if they set up a private club. However, they cannot say, "Only Christians are allowed in my store." It sounded (probably unintentionally) like you're saying they could just advertize to Christians, and therefore refuse to serve people of other faiths. That is not true.

  • Oshtur||

    Setting up as a private membership business was one way to do this, and it wouldn't be for Christians as Christians would have sold the cake in the first place. I know in my state it would be perfectly legal to set up a non-profit that only served members in good standing of different churches, same as they can set up ones that only serve other civil rights categories. Make the invitation to only members and their problem would be solved. But as in Reynolds the group has to associate with the 'right' people first, and them make the invitation of service to only those associated members.

  • dunstvangeet||

    The problem comes when you're a storefront that's normally open to the people. That is an act of itself that means that you're not associating with only "the right people."

    Let me put it this way. Back where I grew up, there was a Christian Book Store named Christian Supply. They had a store front. They stocked Christian books (such as Bibles, devotionals) and other items (such as Jewelry Crosses, and the like). They advertized exclusively on Christian Radio Stations, and the like. The vast majority of their customers, because of what they actually supplied, were Christian.

    However, if a Muslim came in and looked to buy something that they sold, they would not be able to state: "No, you're a Muslim. This store is only for Christians. Go over to Muslim Supply!"

    Get my drift. Non-profits are kind of weird area of the law, and I really don't have the ability to state with any certainty whether or not they'd be able to do that.

  • Oshtur||

    Right, I'm not talking about an open invitation business that discriminates, but a private membership one or non-profit that has a targeted service population. Ttimes may be a changing in that regard since the previously civil marriage performing Hitching Post Wedding Chapel in Coeur d'Alene, Idaho has declared itself a religious for profit business and now only performs religious weddings to avoid same-séx weddings.

    If the BSA can offer a camping merit badge to only their purposely selected theist members, why can't another business do the same with a membership selected for their being suited for the business's theistic-related wedding services?

  • MichaelGC||

    And the Obergefell quote is what protects customers responding to a public invitation.

    If it was a matter of Phillips' hanging signs on his storefront saying "Straights Only" and refusing to sell gays anything from his store, you would have a point.

    Hurley v Irish-American Gay, Lesbian, and Bisexual Group of Boston, cited along with Piggy Park, also applies. Justice Thomas:

    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.

    From Hurley:

    once the expressive character of both the parade and the marching GLIB contingent is understood, it becomes apparent that the state courts' application of the statute had the effect of declaring the sponsors' speech itself to be the public accommodation.

    If courts find that a custom-made and decorated cake is expressive, at least as expressive as a float in a parade, then it is speech, and it is precedent and good law that speech is not a public accommodation.

  • Oshtur||

    If that was what the business offered at the time you'd have a point. What was offered was a wedding cake gallery, inviting the public to buy with only this caveat:

    "Click the cake image and if you see something you like, just tell Jack. You can customize any cake exactly the way you want it!"

    It was a stock cake design that the customer could customize IF they wanted just as they wanted it. Just like every real wedding cake shop. Not a work of art, not 'expressive' but a "cake #13 with white frosting, blue trim, white vanilla cake with raspberry fill."

    No mention of a religious litmus test to buy it.

    And the business had 15 employees and 2 locations, someone else could have dealt with this order if Jack didn't want to.

  • Oshtur||

    And Hurley was about a private membership organization, not a business making offers to the public.

  • Josh R||

    The Supreme Judicial Court of Massachusetts held that the parade was a place of public accommodation (if the hadn't done so, there would have been no case before SCOTUS).

  • Oshtur||

    Yes but from the moment the group refused all public funding, it really wasn't. Seattle has the same distinction: a March, that has some public financing, is a public accommodation but a parade - where the holders are paying all costs, is not. The court made a mistake that the SCOTUS recognized.

    If the BSA had a parade they could exclude all atheists since private organizations don't make public offers and aren't subject to civil rights public accommodation laws. They can invite others to join in their celebration, but they still control the message as Hurley ruled.

    Has nothing to do with a business that invited the public to come buy pre-orderable customer-customizable wedding cakes. Far too late to have a religious test the responding, invited customers must pass to actually be able to buy the service.

  • MichaelGC||

    The Supreme Judicial Court of Massachusetts held that the parade was a place of public accommodation (if the hadn't done so, there would have been no case before SCOTUS).

    And SCOTUS overturned the Massachusetts Supreme Court on that point.

    Although the state courts spoke of the parade as a place of public accommodation . . . once the expressive character of both the parade and the marching GLIB contingent is understood, it becomes apparent that the state courts' application of the statute had the effect of declaring the sponsors' speech itself to be the public accommodation. . . . But this use of the State's power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.
  • Josh R||

    The Supreme Judicial Court of Massachusetts has the final say on interpreting Massachusetts law. As such, SCOTUS did not reverse the Massachusetts court on that point. SCOTUS held that the law, as interpreted by the Massachusetts court and applied to the parade, violated the Constitutional guarantee of Freedom of Speech.

  • Oshtur||

    You are missing the target - the parade participants are like temp employees of the organizing group, the performance of the parade to the public the free speech of the company.

    The free speech here is the customer's wedding reception, their celebration, and they are just purchasing props for it, including a wedding cake that was freely offered for sale to the public.

    Just as the LGBT wanna-be-participants mistakenly thought their participation was their speech, so does this business think that someone else's wedding reception is their's.

  • MichaelGC||

    And commercial speech is still constitutionally protected speech.

    Turning that around, if the Family Research Council approached a baker who happened to be a gay activist and requested a cake for a big event celebrating the sanctified union of man and woman, would you still be as gung-ho about it?

    If anything has been highlighted in this decision, it is that the accommodation law has to work both ways, and the commissions have to be neutral in applying it.

  • Josh R||

    If the "big event" is the wedding itself or the reception, then the gay activist baker can't refuse to create the cake.

  • MichaelGC||

    No, not a wedding or reception, a fund-raising, or honoring some of their bigger donors.

    Are you implying that there are some orders the gay activist cake baker can turn down?

  • Josh R||

    For a fund raiser, the gay activist baker can refuse to create that cake. So too could Phillips for a similar pro-gay rights fund raiser. In either case, the baker is discriminating on the basis of political belief, which is permitted in Colorado.

  • MichaelGC||

    For a fund raiser, the gay activist baker can refuse to create that cake. So too could Phillips for a similar pro-gay rights fund raiser. In either case, the baker is discriminating on the basis of political belief, which is permitted in Colorado.

    To paraphrase Justice Thomas in Masterpiece: Does the First Amendment gives individuals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage? You just said a gay baker can express disapproval of the Family Research Council and what it stands for by withholding their request for a custom cake, then why cannot Phillips' express his disapproval of the newly imposed State orthodoxy of SSM by withholding a wedding cake for the celebration of something he believes to be an act of defiant rebellion and an affront to God?

    That's what I am hearing here -- that SSM, once unheard of and nonexistent until the directive came down from above, is inviolable and sacrosanct.

  • Josh R||

    You just said a gay baker can express disapproval of the Family Research Council and what it stands for by withholding their request for a custom cake

    Phillips can equally express disapproval of the Human Rights Campaign and what it stands for, including support of same-sex marriage, by withholding their request for a custom cake.

    why cannot Phillips' express his disapproval of the newly imposed State orthodoxy of SSM by withholding a wedding cake

    A gay activist baker equally cannot express his disapproval of the Family Research Council's viewpoint on the sanctity of marriage by withholding a wedding cake to an opposite-sex, evangelical Christian couple.

    That's what I am hearing here -- that SSM, once unheard of and nonexistent until the directive came down from above, is inviolable and sacrosanct.

    I hope the above two examples demonstrate you have heard things incorrectly. All viewpoints are treated equally and same-sex couples are treated the same as opposite-sex couples.

  • dunstvangeet||

    The FRC is not a "religion" and therefore refusing them would not actually fall under the law. That would be a political affiliation. This is getting into more of a grey area as to where they'd be refusing on creed/religion, and not refusing on creed/religion. However, if they were to actually refuse the exact same cake that they sold to other groups, they might get into a grey area that could be considered discrimination against creed.

    However, Mr. Phillips refused the exact same cakes that he makes for opposite-sex straight weddings to Mr. Craig and Mr. Mullins based on nothing more than the sexual orientation of them. If they had been an opposite-sex straight couple, Mr. Phillips would have served them. That is a refusal of service that is specifically illegal under Colorado Law.

    The Supreme Court put it: "And any decision in favor of the baker would haveto be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying "no goods or services will be sold if they will be used for gay marriages," something that would impose a serious stigma on gay persons."

    By stating that, you can see that they were not willing to give people with religious beliefs a blanket exemption to not provide any services for gay weddings. That was clear throughout the opinion.

  • dunstvangeet||

    The ruling likely would have come down somewhere in the center. Mr. Phillips doesn't have to provide any cake that gay people want to the gay weddings, but he also cannot have a blanket refusal to not serve gay weddings either. I think that the court, if forced on the issues, would have ruled against the baker, but put language in there making it clear that they are required to provide the same service, no more no less, to gay people, and construe that to mean that if they're willing to make a cake for a straight couple, they must also be willing to provide that cake to a gay couple. However, if a gay couple orders something that they wouldn't provide to a straight couple, then they have the right to also refuse that cake to a gay couple.

    So, Mr. Phillips can still refuse the specific design. However, he cannot refuse to sell his designs to gay couples. Mr. Phillips had been doing the latter. That would be a ruling that would be in line with the law.

  • Oshtur||

    The FRC is a political ideology, no more a religious group than the KKK and not covered by Colorado, Washington or Oregon civil rights laws.. The bakery of the with a gay activist baker wouldn't have to accept the order if they didn't want. (it is the business with the obligation to obey civil rights laws, not a particular employee's)

    Ironically only the most liberal of places protect political ideology as a civil right, California, Seattle, and maybe some others. If the FRC asked there then the bakery would happily provide them with a cake. Respecting the rights of people to be different in a pluralistic society is its common base. The bakery might give the 'gay activist' baker a pass on having to bake or decorate the cake themselves, but they would respect the civil rights of others.

  • nonzenze||

    it is transported to the reception venue by the store's employees on the day of the reception.

    Just to be clear, does it change your view if the purchaser arranges for a third party cake transportation company?

  • Rossami||

    re: "How is baking a cake participating in the event?"

    Because the baker sincerely believes that it is. And per Supreme Court precedent (and lots of good common sense), courts have no business second-guessing the sincerely held beliefs of others. Whether the rest of us agree that the baker's belief makes sense or even whether we think that it is a valid interpretation of the baker's own professed religion is utterly irrelevant. The Court found that the belief is sincerely held.. He believed that baking a cake was participation in the event. Our right to analyze the matter ends there

  • nonzenze||

    It's not second guessing. As Smith held, the State can compel a believer to act contrary to their sincere beliefs if they do so pursuant to a neutral law of general applicability.

    He believed that baking a cake was participation in the event. Our right to analyze the matter ends there

    And I believe that paying taxes is participation in an unjust war.

    You don't have to question/deny/analyze my belief to insist that I have to pay my taxes anyway.

  • dunstvangeet||

    Whether or not the belief is sincerely held is actually irrelevant to the case. The Supreme Court has found in the past that even a sincerely held belief does not overcome the need to obey neutral laws of general applicability. From Masterpiece Cakeshop: "Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do notallow business owners and other actors in the economy and in society to deny protected persons equal access togoods and services under a neutral and generally applicable public accommodations law."

  • dunstvangeet||

    The only differences between a "gay marriage" and a "straight marriage" are the gender and the sexual orientation of the participants of the wedding. Both of those are protected classes (at least in Colorado).

    So, when you break it down, you have a baker who's refusing to provide the same services that he does to a straight wedding based upon the sexual orientation and gender of the participants of the wedding. That's discrimination, plain and simple.

    Belonging to the NRA isn't actually a protected class.

  • dunstvangeet||

    The only differences between a "gay marriage" and a "straight marriage" are the gender and the sexual orientation of the participants of the wedding. Both of those are protected classes (at least in Colorado).

    So, when you break it down, you have a baker who's refusing to provide the same services that he does to a straight wedding based upon the sexual orientation and gender of the participants of the wedding. That's discrimination, plain and simple.

    Belonging to the NRA isn't actually a protected class.

  • David Welker||

    And let's not pretend that many in society do not want to punish people with bad views because of those views. For example, people want to punish people who are racist or sexist or otherwise bigoted, even if they are otherwise law-abiding. That is understandable, but the government has no legitimate role in participating in such punishment of people who think bad thoughts. But that is precisely what anti-discrimination law, when applied to providers of interchangeable commodity type goods and services, enables. We have a reason to prevent utilities from discriminating other than the repugnant social views of the owner of the utility. I don't think the same can be said of mere commodity cake makers.

    And with that analysis, I find myself in the bizarre situation of taking a more free speech friendly position than Eugene Volokh. I didn't think the day would come.

  • nonzenze||

    ... punishment of people who think bad thoughts ... But that is precisely what anti-discrimination law, when applied to providers of interchangeable commodity type goods and services, enables.

    So in your view, a punishment for running a 'whites only' diner[1] is punishment for the thoughts, not the overt act of failing to serve non-whites?

    [1] Let's stipulate that diners are a commodity rather than a utility.

  • M.L.||

    Today? I think so, yes. The overt act is the hook, but the object of the punishment is the thoughts.

    In the past, it was just different. I could make distinctions, like that Jim Crow laws mandated segregation in private businesses. And that segregation was widespread and drastic action was needed to reverse course. But at some level, maybe it just comes down to the fact that we were punishing thoughts back then too, but we felt it was justified under the extreme circumstances.

  • nonzenze||

    Is that so. What about an earnest believer in equality that refuses to serve blacks because he knows that his clientele is racist and would stop patronizing his store?

    Surely we aren't trying to punish his thoughts by punishing him for a 'whites only' policy. We could either say we are punishing him vicariously for the thoughts of use customers, or we could say that we punish the act of excluding black people irrespective of the motivating thoughts.

    Conceptually, I think the latter is a lot easier to understand

  • floridalegal||

    I still think that this all comes down to the ranking or pecking order for undesirable discrimination. Race has the highest level of scrutiny and will uniformly be protected. Sex was never as high a scrutiny as a race. Sexual orientation is derived from statutes that only referenced sex. Religion is tied to speech and ha an elevation more than sex but less than race. The battle lines are whether sexual orientation will be at the level of sex, elevated to the level of race, and is religion going to be demoted to plain old rational. Scalia once described rational as being something that he may think is unwise and doesn't make any sense but, a board of people acting without any evidence of animous came up with it. Stupid but constitutional. Religion's ultimate "ranking" depends upon how you define or perceive religion. If religion is a more secular viewed activity as someone choosing to attend the Elks Lodge, Rotary, or the Methodist church, then religion will not be elevated above rational. Restrictions that are stupid but constitutional. Historically, religion has not been cheapened and denigrated.

  • Oshtur||

    But that means the customers with beliefs that include marriage regardless of séx just as respected and protected, with the difference being the business chose to make an offer to the public knowing that is a group of 'everyone' and subsequently every belief.

    Beyond civli rights the customer's own right to religious freedom will shield them from any such religious discrimination. Both Colorado and Washington include in their religious freedom statutes that freedom of conscience doesn't mean it excuses acts of licentiousness, i.e. doing as one wills without regard for the law, ethics or the rights of others.

    Can't sell something to people of all creeds, don't invite a group of all creeds to come and buy that something.

  • MaineQuaker||

    I think we are overlooking something here: public accommodation.

    The two would-be customers pay taxes that support this business: road maintenance, lights, fire and police protection, even the court system which the baker used.

    As a public, licensed busniness, this baker uses public services. Can we allow him to decide which members of the public he chooses to serve? I think not.

    The late Justice Antonin Scalia, a conservative icon, once wrote that regardless of an individual's "conscientious religious scruples," he must comply with an otherwise valid law that is neutrally applied to all. Thus, citizens who disagree must still obey laws that make polygamy illegal, or laws that compel the payment of taxes for programs that the individual may disagree with. To do otherwise, said Scalia, would be to make each individual a law unto himself.

  • PoxOnBothYourHouses||

    Maine Quaker: "As a public, licensed busniness, this baker uses public services. Can we allow him to decide which members of the public he chooses to serve? I think not"

    I certainly agree, but the case we're discussing didn't concern refusing to serve, but refusing to take part in a celebration of that which he disapproved. Phillips served gays and would sell them anything except a made-to-order wedding cake. For sake of argument, say that's true.

    Public accommodation laws keep proprietors from withholding food, drink, a room, transportation, everyday items, and so forth. All those are tangible things, and they have measurable effects on human well-being.

    A celebration is a different matter. Phillips didn't keep Mullins and Craig from getting married. He didn't keep them from celebrating their marriage or doing anything else with their lives. He tried to opt out of celebrating the wedding.

    To me, this difference in the type of event is crucial. One should consider drawing a bright line between situations where customers might face practical harm from non-service and those that are symbolic expressions. The state of Colorado required Phillips to help celebrate something that was antithetical to his beliefs. It was compelled speech.

    From this standpoint, First Amendment challenges to public accommodation laws would be limited to such cases that are symbolic rather than substantive.

  • nonzenze||

    I certainly agree, but the case we're discussing didn't concern refusing to serve, but refusing to take part in a celebration of that which he disapproved. Phillips served gays and would sell them anything except a made-to-order wedding cake. For sake of argument, say that's true.

    But this is begging the question.

    Phillips claimed that making and selling a cake makes him "part of a celebration". Many of us don't really buy that. A guy that makes a cake is no more a part of the celebration than a guy that delivers chairs or a gal that maintains the building.

    I certainly don't believe that Phillips should have to celebrate, approve or even acknowledge a gay wedding. But those three things are distinct from whether he might have to bake a cake that is later used to celebrate a gay wedding.

  • MatthewSlyfield||

    "I certainly don't believe that Phillips should have to celebrate, approve or even acknowledge a gay wedding. But those three things are distinct from whether he might have to bake a cake that is later used to celebrate a gay wedding."

    Whether those things are distinct or not is not that simple. A custom, made-to-order wedding cake is an edible art piece with expressive content in it's own right.

    I can not agree with you that baking such a cake for a gay wedding does not amount to at least acknowledgement of said wedding.

  • nonzenze||

    Subtle moving of the goalposts from "celebration" of the wedding to "acknowledgement" of it.

  • jph12||

    nonzene: "I certainly don't believe that Phillips should have to celebrate, approve or even acknowledge a gay wedding."

    more nonzene: "Subtle moving of the goalposts from "celebration" of the wedding to "acknowledgement" of it."

    Shift the goalposts then blame the other guy. Now that's subtle.

  • nonzenze||

    I was expanding the opponent's goal post by conceding part of his point!

  • dunstvangeet||

    The public accommodations laws state: "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". You're limiting it too much. The public accommodation laws require him to provide "the full and equal enjoyment" of the public accommodation.

    Also, your bright line isn't such a bright line. For instance, let's take a look at a situation. How much harm would withdrawing food from someone, when there's a restaurant that will serve them across the street? Does that mean that the restaurant now gets the right to deny service to gay people? What about when that restaurant is the only one in town? That ups the harm. Your "bright line" already looks a little faded now.

    The court was very clear that people cannot just have a blanket immunity to refuse to provide services to gay weddings. "And any decision in favor of the baker would haveto be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral andreligious reasons in effect be allowed to put up signs saying "no goods or services will be sold if they will be used for gay marriages," something that would impose a seriousstigma on gay persons."

  • Variant||

    Of course we can accept it. Those who don't can take their business elsewhere. The market is a far better solution that compelling speech on others.

  • ||

    This false "licensing" argument is really getting old.

  • David Nieporent||

    As a public, licensed busniness, this baker uses public services. Can we allow him to decide which members of the public he chooses to serve? I think not.

    Of course we can.

    And not only can we in the abstract, but we do. A business is generally allowed to refuse service to anyone on any arbitrary ground the business chooses, other than a handful of prohibited grounds (race/sex/religion/disability/etc.)

    But of course in a free society the legitimate question isn't whether we "can allow" someone to do something, but whether we can forbid someone from doing that thing.

  • Michael Ejercito||

    Can we forbid a sign maker from refusing to make picket signs for the Westboro Baptist Church?

  • Josh R||

    It depends on how such a law is worded.

  • Booker61||

    This "the business uses public services so he can't discriminate" thing I've heard before; I find it unpersuasive for a few reasons, but more to the point, it's unnecessary. It's already established that businesses can be required to obey non-discrimination laws--Phillips doesn't even dispute that--so we don't need a new 'angle' to support that.

    He's saying the First Amendment protects him from baking the cake. I don't agree with that (I think he should have to make a 'neutral' wedding cake, but should be able to refuse to decorate it with any 'message' he objects to) but if we say using public services, roads, etc, means a business can't challenge any requirement at all exacted in return, we could say that about any of us, whether we're running a business or in our own home.

  • Krayt||

    Government for thousands of years did little but tax to make the kleptocracy rich and wage wars. Free people did things later called "business", to stay alive.

    Then some government comes along and taxes you and makes roads and stuff. "Since others helped do that, we get to say what you can and can't do in your business!"

    No, that's not how this works. That's not how any of this works.

  • RoyMo||

    Sadly it seems that this is exactly how it works. If we ever get mind reading machines offensive unexpressed thoughts will be banned with the argument that the state pays for oxygen, hydrogen and carbon.

  • floridalegal||

    "neutrally applied to all". The problem is that at applied, it renders those who are religious inferior to those who are not religious. Masterpiece is at least illustrative of the hostility that some government officials have toward religion. If government officials are so comfortable with expressing their hostility toward religion in open public meetings where they are recorded and transcribed, how much MORE prevalent and hostile are they when the cameras and recorders are not rolling. IF there were not the open hostile comments from members of the Colorado Commission in the record, there would have been a much different opinion from SCOTUS.

  • Oshtur||

    The business didn't need to offer anything to the public they felt they couldn't in good conscience sell legally no matter what the reason for that conscience is. And, of course the customer's have their own right to their beliefs and many of them include the people can marry regardless of their sexes.

    Can't offer something for everyone to come and buy and then refuse some of them because they don't have the same beliefs about marriage as the business owner. At the very least they would need to make clear to the public that they religiously discriminate against customers with the original offer.

  • Mesoman||

    "As a public, licensed busniness, this baker uses public services. Can we allow him to decide which members of the public he chooses to serve? I think not."

    This reasoning is sufficient to deny any liberty to any person. Everyone uses public services, including businesses.

    A much higher standard should be required to deny liberty.

  • Oshtur||

    This is off. Every customer has a constitutional right to NOT share the business owner's beliefs and civil right to accept their freely made offer of sale regardless of their beliefs.

    Can we agree that every invited customer has a right to accept the offer even though they don't share the owner's beliefs and egos? And that this owner had at least one employee that would have happily handled this order?

    How can she claim religious freedom and not not acknowledge same in her employees?

    This is a case the conservative court won't take: no religious bias, an employee that would have done the job, and the business has run according to the owns's conscience and the law for the last 5 years which is all the state asked her to do.

    The liberal court might take it but it is an instant loss for the conservatives as per Rumsfeld v. FAIR.

  • David Nieporent||

    Every customer has a constitutional right to NOT share the business owner's beliefs and civil right to accept their freely made offer of sale regardless of their beliefs.

    No such offer was made.

    Can we agree that every invited customer has a right to accept the offer even though they don't share the owner's beliefs and egos?

    No, we can't agree about that.

    And that this owner had at least one employee that would have happily handled this order?

    No, we can't agree about that, either.

  • nonzenze||

    This is a bit much. A baker offers cakes to the public in exchange for payment.

  • Oshtur||

    Sorry, replying from a wedding and was primarily responding to the part about Arlene's Flowers.

    Yes advertising to the public is an invitation to buy the item or service and it is a legally regulated act by the public, including Consumer Protection Acts and civl rights.

    And so you are saying you don't thing that civil rights protections for creed are enforceable? That is an entirely different issue. I don't think that any court is going to say that religious discrimination in a public offering is alright.

    Her name is Eryn Hugo and quit when told to illegally treat customers. She would have happily handled this order. One reason the owner lost the liability shield of the LLC, a business only operating illegally by the direction of the board can't shield the board members from financial responsibility in Washington.

  • MatthewSlyfield||

    If you are replying only to a limited part of an article, you should include a quote to indicate what you are replying to.

    As far as I can tell, this is the only mention of Arlene's Flowers in the article:

    "and I wanted to pass this along, especially since the Court is still considering whether to hear Arlene's Flowers, and other cases are percolating up as well:"

    I don't see where the article says anything substantive about Arlene's Flowers.

  • YS||

    I've read some comment posts from Eugene on the Masterpiece Cakeshop case. However, it seems that he doesn't respond to Justice Thomas & Gorsuch's opinions directly. He did mention their viewpoints in a post, and Justice Kagan & Ginsburg as well. But I think the two (three) conservative justices are more convincing. For example, Justice Gorsuch argued "the level of generality in Mr. Jack's case." Why do the liberal Justices think that a wedding cake is just a wedding cake? For Phillips, same-sex-marriage-cake and opposite-sex-marriage-cake are different things. And, same as Mr. Thomas case - "the Court didn't try to suggest that making steel is just making steel. Or that to offend his religion the steel needed to be of a particular kind or shape. 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." Then, why was Mr. Phillips not entitled to define the nature of his religious commitments too?

  • Josh R||

    As I understand Eugene's argument, the level of generality of the product makes no difference. Let's assume Justice Gorsuch is correct and a same-sex wedding cake is different than an opposite-sex wedding cake. It is still the case that refusing to create a same-sex wedding cake discriminates on the basis of sexual orientation because the cake is almost always used by a gay couple.

    I have no doubt that Eugene agrees that Phillips gets to decide the nature of his religious commitments and Phillips' religious exercise was substantially burdened by Colorado's anti-discrimination law. However as Eugene explained in this post, he believes the Colorado law is neutral towards religion and generally applicable and thus Phillips must comply with the law.

  • YS||

    Thank you very much for your reply.

    However, I think the point is that if what you said is the case, then "the Commission would have to order the bakers to make Mr. Jack's requested cakes just as it ordered Mr. Phillips to make the requested cake in his case." The point is the double standard of the Commission (and also the liberal Justices).

    Justice Gorsuch:
    //Why calibrate the level of generality in Mr. Phillips's case at "wedding cakes" exactly—and not at, say, "cakes" more generally or "cakes that convey a message regarding same-sex marriage" more specifically? If "cakes" were the relevant level of generality, the Commission would have to order the bakers to make Mr. Jack's requested cakes just as it ordered Mr. Phillips to make the requested cake in his case. Conversely, if "cakes that convey a message regarding same-sex marriage" were the relevant level of generality, the Commission would have to respect Mr. Phillips's refusal to make the requested cake just as it respected the bakers' refusal to make the cakes Mr. Jack requested. In short, when the same level of generality is applied to both cases, it is no surprise that the bakers have to be treated the same...// (p. 10)

  • YS||

    ...continue...

    //...Only by adjusting the dials just right—fine-tuning the level of generality up or down for each case based solely on the identity of the parties and the substance of their views—can you engineer the Commission's outcome, handing a win to Mr. Jack's bakers but delivering a loss to Mr. Phillips. Such results-driven reasoning is improper. 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). That conveys no message regarding same-sex marriage). Of course, under Smith a vendor cannot escape a public accommodations law just because his religion frowns on it. But for any law to comply with the First Amendment and Smith, it must be applied in a manner that treats religion with neutral respect. That means the government must apply the same level of generality across cases—and that did not happen here.// (pp. 10-11)

  • Josh R||

    Again, Eugene is arguing that the Commission can use one common standard (be it "cakes", "wedding cakes", or "cakes that convey a particular message") and still conclude Phillips must create his cake, while the Jack bakers do not. No matter which common standard is used, Phillips is discriminating on the basis of the users of the cake being gay (not permitted under Colorado law), while the Jack bakers are discriminating on the basis of the users' political beliefs (permitted under Colorado law).

  • YS||

    Regarding the Free Exercise Clause question, "Although public-accommodations laws generally regulate conduct, particular applications of them can burden protected speech…When this law required the sponsor of a St. Patrick's Day parade to include a parade unit of gay, lesbian, and bisexual Irish-Americans, the 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."

    Justice Thomas see Phillips's creating is expressive: "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."

    I know that Eugene doesn't think making cake is a form of expressive speech. But how would he respond to Justice Thomas's argument which expanding the expressive speech to include tailor-made wedding cake?

  • Josh R||

    Justice Thomas is making a Freedom of Speech argument, not a Free Exercise argument. Eugene's amicus brief deals with Thomas' argument starting at the bottom of page 10.

  • MichaelGC||

    Justice Thomas also said this regarding the expressiveness of Phillips' business:

    "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."

  • Oshtur||

    Since no specific message other than what was freely offered for sale, i.s. stock cakes customized exactly as the customer wanted, I'm not sure how this is relevant.

    I presume you do know that a wedding cake works just as well no matter the sexes of the couple getting married.

  • Oshtur||

    If they are different things they the customer will just order the one the business will make and use it according their beliefs, not the business owner's.

  • Peter Gerdes||

    Isn't what McConnell saying a bit different. He isn't alleging the broad principle that if you allow any baker to refuse to bake a cake contrary to conscience you can't require a religious baker to bake any cake contrary to their conscience. Merely that the (viewpoint neutral?) conditions under which the baker is allowed to refuse to perform because they are contrary to their secular views can't be larger than the conditions under which the religious baker can refuse to bake contrary to their conscience.

    Thus, if you allow bakers to refuse to bake cakes with anti-gay messages but require they bake cakes for events with an anti-gay theme then religious bakers must also bake cakes for gay weddings but can refuse to include a pro-gay message.

    Now how drastic such a view is really depends on how 'neutral' the conditions under which service can be refused truly must be. For instance, can the conditions be as narrow as 'can't refuse service to someone based on a view about gays' provided it doesn't differentiate between pro and con positions? Or does letting someone refuse to bake a cake based on someone's views on racial equality require you to let people refuse to bake cakes for someone whose religious beliefs you dislike?

  • Josh R||

    Colorado law doesn't require bakers to create cakes for events with an anti-gay theme.

  • Oshtur||

    No, they don't require them to make cakes with obvious anti-gay messages. Point of fact the business made it clear they would sell them a cake for their event with an anti-gay theme, just not put an antigay message on the cake for them.

  • Ellen B||

    Unless I'm mistaken, the bakery didn't refuse to sell baked goods off-the-shelf to anybody, so the matter seems to have less to do with "public accommodation" than contract law doctrine, if that the baker chose to not even make an offer (specifically: "The doctrine of privity means that a contract cannot, as a general rule, confer rights or impose obligations arising under it on any person except the parties to it.") Masterpiece Cakeshop didn't make a contract with the customers and then cancel - correct?

    I'm a clay artist. If I chose to not to make a contract to produce mugs with Nazi swastikas (or images of angels, with or without wings, or text that I find offensive) - why would the basis of the "refusal" matter (secular or religious) matter in the slightest? Being compelled to perform is a frightening specter.

  • Michael Ejercito||

    It is possible you are mistaken.

    As Justice Thomas pointed out, "the parties dispute[d] whether Phillips refused to create a
    custom wedding cake for the individual respondents, or whether he refused to sell them any wedding cake".

    But the Court assumed the truth of Phillips's factual allegations, "describ[ing] his conduct as a refusal to "design and create a cake to celebrate [a] same-sex wedding." , not merely refusing a cake that would happent o be used in a same-sex wedding.

  • Oshtur||

    The business freely advertise to the public the opportunity to pre-order wedding cakes from a stock gallery and freely offered to customize them exactly as the customer wanted. The customer is the cake designer, the business is volunteering to be a decoration technician. And, at the time of this incident the business has 15 employees and 2 locations - there were other employees that could have decorated the cake.

    And since you can have a policy you won't put religious or political imagery on your products for anyone there really isn't an issue. These customers could have said they wanted 'cake design #13, with white frosting and blue highlights" - no artistry involved and Jack could just take the day off if he wanted to be completely uninvolved with the 'creation'.

  • ||

    I've never found the "expressive" argument here compelling. To me, whether he doesn't want to sell a cake for a gay wedding period or whether he doesn't want to design one is irrelevant. No business owner should be forced, absent an emergency, into serving someone else. Period. Anything beyond that is tyrannical.

  • ReaderY||

    I don't think the Masterpiece Cakeshop decision was nearly as broad as Professor McConnell was suggesting. The Justices agreed only that the hearing was improper and comments made in it reflected anti-religious bias. So far as the decision is concerned, a different hearing in which the commissioners held their tongues could reach exactly the same result. All other issues were reserved for later.

    Five justices gave their opinions on the other issues, two that that they had no merit and three that they controlled. But the four justices who were silent will control the ultimate decision, and we're successful, I think, at not tipping their hand about the outcome.

  • nonzenze||

    Agreed entirely. And I think the morally and civically right thing to do is kick it back to Colorado to conduct hearings in an impartial manner and then see later what the outcome is.

  • MichaelGC||

    "I don't think the Masterpiece Cakeshop decision was nearly as broad as Professor McConnell was suggesting. The Justices agreed only that the hearing was improper and comments made in it reflected anti-religious bias. "

    It's broader than you might expect. Look at the number of posts here that compare Phillips' views to Deep South racism. The Court has rejected this reasoning, yet it imbues much of the LGBT activism. Tim Gill, who has heavily financed the LGBT cause, talked about using SOGI (sexual orientation and gender identity) laws to "Punish the wicked" (i.e. Christians who recognize only the complimentary form of marriage). The Court is not going to indulge this animus.

  • Michael Ejercito||

    Let us paraphrase the Colorado Court of Appeal.

    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.

    Given the conduct of the Commission, it is fair to write that they would not have required a sigbn make to make "God Hates Fags" signs for the Westboro Baptists.

  • Josh R||

    Your argument is unpersuasive because picketing funerals isn't closely correlated with Phelps' religion.

  • ||

    Yes, it is. His religion is what he sincerely believes it to be. It doesn't have to mirror the mainstream beliefs of his denomination.

  • Josh R||

    I agree his religion is what he sincerely believes. But that conclusion is not dispositive to the analysis of whether picketing funerals is closely correlated with Phelps' religion.

  • dunstvangeet||

    And neither did Bob Jones University. The Supreme Court ruled that they had a sincerely held belief that interracial dating was wrong, and that this belief led them to create policies that expelled students for interracial dating. They also ruled that it was discrimination, and the IRS had a right to take away their tax exempt status because of it.

    Just because you have a sincere religious belief doesn't mean that you get to ignore the laws that conflict with that. Reynolds v. U.S. put it that it would make every man a law unto himself, and would be nothing more than courting anarchy. Justice Antonin Scalia upheld that view in Employment Division v. Smith, and Kennedy expressly upheld that view in Masterpiece Cakeshop v. Colorado Civil Rights Commission: "Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do notallow business owners and other actors in the economy and in society to deny protected persons equal access togoods and services under a neutral and generally applicable public accommodations law."

    You may want to actually read the decision.

  • Oshtur||

    Would the business make such a sign for anyone? If not there is no discrimination.

    This is the case where some customers can accept the invitation to buy pre-orderable customer-customizable wedding cakes from a gallery of stock designs and some can't, not because of what it 'says' but what is going to be used for.

    Could the printer refuse to sell the Westburo Baptist Church 'Exit this way' signs, right after a customer who had just bought some? Probably not.

  • ||

    And Phillips wouldn't make a gay wedding cake for anyone, including straight customers.

  • Oshtur||

    No one asked to by a 'gay wedding cake' they wanted exactly what was offered for sale. If some business owner said that, I'd just reply "Fine, I'll take a straight wedding cake then". (you do realize they look exactly the same, right?)

  • ||

    No, they wanted "Congratulations Adam and Steve" written on it. That makes it a gay wedding cake.

  • Oshtur||

    The customers were discriminated against in all these cases before design was discussed.

  • dunstvangeet||

    Where are you getting your information? These are the exact words from Jack Phillips as he describes the event: I introduced myself to them, and they did the same. I sat down across from them and I believe Mr. Mullins said he needed a wedding cake or he was there to pick out a wedding cake. Mr. Craig quickly added that it was for their wedding. I quickly responded that I do not create wedding cakes for same-sex weddings at which time both men stood up and exited the store through different doors. There may have been a moment where the three of us were talking over each other, and I think I stated that I could create birthday cakes, shower cakes or any other cakes for them. The entire interaction lasted no more than 20 seconds."

    Pleases show me where in that scenario did they request "Congratulations Adam and Steve" written on it. (It would have been expressly weird for them to request that, since their names were Charlie and David). The fact is that Mr. Phillips refused service knowing two things, and only two things: 1. They wanted a wedding cake. And 2: it was for their wedding. There was absolutely no discussion of the decoration of the cake. Mr. Phillips denied all wedding cakes, no matter how they were decorated, to them. "I do not create wedding cakes for same sex weddings."

  • EscherEnigma||

    Yeah, that's why Phillip's lawyers were trying to argue that the cake itself was a "message" regardless of any material detail of it.

  • Josh R||

    During oral arguments, Phillip's lawyers argued that selling an already-made cake for a same-sex wedding would not be expressive. Both Roberts and Kennedy were surprised that the argument that creating a new cake that will be used in a same-sex wedding is categorically expressive (regardless of whether the cake has a message on it), but selling an already made one isn't.

  • dunstvangeet||

    Which just begs the question...

    So, there's a wedding cake on display. A gay couple comes in and orders it, takes it out of the store right then and there... No expression.

    Now, the same couple comes in and says, "That cake looks beautiful. However, my wedding isn't for 6 months. So, I'd like to pre-order a wedding cake that looks exactly like that one." Expressive.

    Why is the act of making a pre-order expressive, but selling something that's already there not?

    Makes absolutely no sense.

  • Josh R||

    As I said, Kennedy and Roberts were taken aback by the argument. The best I could make of the lawyer's argument was that expression derives from what was in Phillips' mind at the time he created the cake.

  • dunstvangeet||

    That's the reason I think Roberts and Kennedy didn't sign onto any concurrances. They thought that the argument of the "off-the-shelf wedding cake" (as if there is actually such a thing) was an idiotic argument for them to make that had no purpose other than trying to make the baker seem more reasonable than he actually was (all his wedding cakes are custom wedding cakes, so therefore he doesn't have off-the-shelf wedding cakes would have been his next argument).

    Roberts and Kennedy are the two that I have the least amount of feeling on how they would have come down on a ruling on the merits. However, I think that they would have been against the baker on a ruling on the merits. However, I don't think that either of them really wanted to decide on the merits, so they cobbled together this decision based upon the "religious animus".

    I disagree with their analysis (especially the comparison with the Azucar bakery case, and Kagan's concurrence and Ginsburg's dissent rightly took the majority opinion to task for that), but I think that's what they had to do to actually avoid ruling on the merits of the case. Personally, they should have just reversed the Cert and say that it was improperly taken (as there was no split in the courts that was forcing them to rule).

  • dunstvangeet||

    He never offered them a straight wedding cake either.

  • Oshtur||

    Yeah that's not true. On their website they had a gallery of stock wedding cakes and told the public viewing it:

    "Click the cake image and if you see something you like, just tell Jack. You can customize any cake exactly the way you want it!"

    The public - a group comprised of all faiths - was invited to come buy pre-orderable customer-customizable wedding cakes, exactly what the customers came in to buy with no indication or prior warning they would have to pass a religious litmus test to be able to actually buy it.

  • dunstvangeet||

    And when they came in, Mr. Phillips refused service on any wedding cake, no matter how it was decorated.

    This was the situation, according to Mr. Phillips: I introduced myself to them, and they did the same. I sat down across from them and I believe Mr. Mullins said he needed a wedding cake or he was there to pick out a wedding cake. Mr. Craig quickly added that it was for their wedding. I quickly responded that I do not create wedding cakes for same-sex weddings at which time both men stood up and exited the store through different doors. There may have been a moment where the three of us were talking over each other, and I think I stated that I could create birthday cakes, shower cakes or any other cakes for them. The entire interaction lasted no more than 20 seconds."

    Later in the document that he describes this, he states: "Mr. Craig is welcome in my store to purchase any of my creations, with the exception of a wedding cake for his same-sex marriage celebration or reception."

    So, he never offered them a straight wedding cake for use in their wedding. In fact, he specifically barred them from order any wedding cake for use in their wedding.

    Like I said, he never offered them a straight wedding cake.

  • Oshtur||

    or he presumed that every wedding cake was a straight wedding cake.

  • dunstvangeet||

    He never offered them a straight wedding cake either.

  • dunstvangeet||

    Mr. Craig makes wedding cakes. He refused to sell those wedding cakes, the same wedding cakes that he makes for straight couples, to gay couples. The gay couple did not request any paticular design, or anything other than a wedding cake for their wedding.

    Now, your analogy of the "God hates Fags" signs, I don't think that the commission would have required that. Nor does the law. The law says: "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".

    There's two pertentant things here. The first is the "Full and Equal Enjoyment..." clause. That means that the Sign maker is required to provide the same goods and services to the Westboro Baptist Church that he provides to other non-members (I'm taking your assertion at face value that the Westboro Baptist Church would qualify under "creed" under the law, I haven't done the research to disprove that or prove it one way or another).

  • dunstvangeet||

    pt 2.

    So, if the sign maker doesn't make "God hates Fags" signs for non-members of the Westboro Baptist Church, then there is no case with not providing those signs to members of the Westboro Baptist Church. That would be more akin to the Azucar Bakery ruling, where they ruled that since Azucar bakery wouldn't provide that cake to anybody, it wasn't discrimination to not provide it to Mr. Jack. There was also a T-Shirt vendor in Kentucky that won the right to not print gay-pride T-Shirts for a gay-pride parade. That would also be an analogy.

    Where Mr. Phillips got in the most trouble is that he refused all wedding cakes, no matter how they were decorated. Mr. Phillips refused service before any discussion of the decoration of the cake took place. So, your statement about the "God Hates Fags" sign is out of place. A better analogy would be a sign maker refusing to make any sign for the Westboro Baptist Church, no matter what it said. And I think that the Colorado Civil Rights Commission would have rejected the ability to do that. That would be a clear discrimination on the basis of creed.

    If Mr. Phillips had waited until the design phase and rejected a design that he was uncomfortable with, instead of just a blanket "I don't provide wedding cakes to same-sex weddings", he would have been on stronger legal grounds. However, since he refused all cakes, no matter how they were decorated, your analogy just doesn't work.

  • Seamus||

    On the other hand, when someone refuses to make a cake with an anti-gay message, or even refuses to make any cake for someone who he knows is anti-gay or will use it at anti-gay event, that is not discrimination based on the buyer's or users' sexual orientation or religion. . . .

    Really? Even if the message is the text of Leviticus 18:22 or Romans 1:26-27?

  • Josh R||

    If the baker refused to include an anti-gay quote from the Bible while not refusing to include other anti-gay messages, that would be discrimination on the basis of religion. However, if the baker equally refuses all anti-gay messages including Biblical quotes, that is not discrimination on the basis of religion.

  • Oshtur||

    The Bible has many instances of advocating illegal acts and yes they could be refused because of that no matter their source.

    I do find it odd that in all these cases everyone ignores that obviously the customers have beliefs that include same séx marriage. If some florist shop business owner said "I'm southern baptist and belief marriage is only between a man and a woman" I, the invited customer, would just reply "That's great. I'm a Lutheran and believe God blesses all marriages regardless of the couple's sexes" and continue with my ordering.

    Rumsfeld v. FAIR made clear such laws only regulate conduct and that if the business owner wants to say they don't 'believe' in the customer's marriage that's fine. They've had their say, they have made clear what their message is, and the customer can still buy what was freely offered to the public with their civil rights to be free of discrimination because of creed, séx, and sexual orientation respected.

  • ||

    And if he did that, you liberals would be saying that he was creating a hostile environment and should be sued for that.

  • Oshtur||

    I just suggested that they do it 'me liberals' would do no such thing.

  • M.L.||

    On the Free Speech question, I remain interested in the point about governmental purpose. When the purpose of the law is just to prevent "dignitary harm" or to keep people from being offended, as opposed to a deprivation of services, that seems like a restriction on speech.

  • M.L.||

    "Edit" : I see David Welker had already propounded the same thought at some length above.

  • Randomutation||

    Would a baker have the right to decline to service a celebration of abortion? Or would that be considered discrimination against women - because abortion is "closely correlated" with women? After all, that's the same "logic" the Colorado Civil Rights Commission employed to rationalize its verdict against Jack Phillips. And it's the same basic argument used to rationalize the decisions against Baronelle Stutzman in Washington and other vendors in other states who have declined to service festivities celebrating same sex marriage. If this postulated "close correlation" between same sex marriage and homosexuality is sufficient to prosecute a vendor who refuses to service festivities celebrating same sex marriage, then wouldn't the verifiable and stronger correlation between abortion and women make for an even stronger case against a vendor who refuses to service festivities celebrating abortion?

  • Josh R||

    That's an interesting argument, particularly in light of the belief espoused by Justice Ginsburg that abortion rights are women's rights. It would be interesting to see both sides brief the issue, but I doubt such a case will ever occur (no one I know of celebrates an abortion). Instead what we are likely to see is vendors refusing to make signs celebrating Roe or other political messages, which aren't closely correlated with being a woman.

  • Randomutation||

    At first I thought I was just being hypothetical about abortion celebrations. But when I googled abortion party, I was surprised to find out there actually is such a thing.

  • Mesoman||

    After reading the article and the comments, I am struck by how little deference is given to the Bill of Rights. The First Amendment privileges religious exercise where it does not similarly privilege secular conscience.

    Have we utterly abandoned that? So it would appear.

  • nonzenze||

    You need to read the 1A in light of Employment Division v Smith.

    After that, you are welcome to believe that Smith was wrongly decided, but it does no good to come in here confused.

  • tekcoyote||

    By extension of this article's logic (not the Supremes' logic) gays should be forced to patronize the shop--and Chik-Fil-A regardless of whether it offends them to do so.

    Right?

  • dunstvangeet||

    People are not public accommodations, and therefore are not subject to the public accommodations rules. Try to make an argument that actually makes sense.

  • GabrielThursday||

    I'm afraid that Eugene misconstrues McConnell's argument. The issue is not whether the government provides the same kind of exceptions from public accommodations laws, but whether the government discriminates by providing exceptions that themselves are discriminatory.

    If the tender consciences of secular people are protected because the government permits them to refuse service when they genuinely feel they can't conscientiously provide the service on the basis of political conviction; but the government does not provide religious people the ability to refuse service on the basis of their deeply-held convictions, which happen to be religious in nature, that itself is discriminatory.

    We see a little of this where religious groups are refused service because they are associated or incorporate political stances the left doesn't like. Such discrimination is allowed because it is regarded as political. Other (conservative) posters here have defended the cake-maker, arguing that gay weddings are inherently ideological, and hence political.

    This is not a reasonable position. Religious believers are treated unfairly in both directions - actions motivated by their religious belief generate refusals of service on political grounds; while their own conscientious refusals to serve are not permitted.

  • dunstvangeet||

    GabrielThursday, I think you missed the point of Eugene's point. The Civil Rights Commission didn't give Azucar bakery an exemption. They ruled that Azucar Bakery had fulfilled their requirement to provide the "full and equal enjoyment of the products, services... of their place of public accommodation" to Mr. Jack. The refusal to bake the cake was a refusal that they would have made to anybody, no matter their religion, and therefore there was no differentiation in service.

    Masterpiece Cakeshop, on the other hand, did bake wedding cakes. They refused to provide those exact same wedding cakes when a gay couple ordered them, therefore differentiating their service. If Mr. Phillips had waited until the design of the wedding cake had been discussed, he would have been in much better ground (presuming that the design of the wedding cake wanted was not one that he normally made). However, given the fact that Mr. Phillips refused service to them when all he knew was that they wanted a wedding cake, and that it was for their wedding, means that he did differentiate their service. If an opposite-sex, straight couple had walked in and asked for a wedding cake for their wedding, Mr. Phillips would not have refused service, but gone "right this way".

    That was the point that Eugene was making. It's two widely different fact scenarios that really have very little to do with eachother. It's one fo the reasons that I disagree with the opinion of the court.

  • Josh R||

    Eugene persuasively argues secular and religious bakers are treated equally. Both are required to create a cake for a same-sex wedding (and an interfaith wedding, and an interracial wedding). Both are permitted to not create a cake when they object to a political message (anti-gay, pro-gay or any other message) on the cake.

  • ReaderY||

    Consider the following scenario:

    1. The Rabbi not only will not perform but will not be seen at gay or interfaith marriages, least someone think he is endorsing them.

    2. The kosher caterer only serves kosher food supervised by the Rabbi.

    3. Accordingly, the caterer won't go where the Rabbi won't go.

    Is there any difference between the kosher caterer and Masterpiece Cakeshop? Why does the Rabbi make, or not make, a difference?

  • dunstvangeet||

    1. A Rabbi is not a public accommodation. They have the right to refuse whatever they want. Colorado law specifically states: "Place of public accommodation" shall not include a church, synagogue, mosque, or other place that is principally used for religious purposes.

    So, there's no real test there.

    2. It's amusing that you think that a Kosher caterer only serves Kosher food when they're able to have a Rabbi directly there when people supervise the people eating the food. This is where your argument falls apart. The caterer doesn't have to be supervised by a certain Rabbi. So, your argument that a certain Rabbi won't set foot in there is irrelevent to whether or not they have the obligation to serve people. They can find a Rabbi who will set foot in there for the purpose of certifying that the food prep is Kosher.

    Furthermore, they can also prep the things off-site (which would be in the supervision of their favorite Rabbi). Most caterers actually don't do a whole lot of prep of foods actually at the site. They usually prep the foods (which is where the foods would actually need the Rabbi for the certification) to be Kosher, transport the food to the venue themselves, and not get there.

    There is not a Kosher law that requires the food to be eaten in the presence of a Rabbi.

    So, your entire scenario is one made up out of thin air that would never actually happen.

  • Oshtur||

    As we know, there are plenty of Rabbi's that would attend and even hold such weddings. Get one of them.

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