SCOTUS Rules (sort of) on Gay Wedding Cake Debate

SCOTUS Rules (sort of) on Gay Wedding Cake Debate

SCOTUS broke from its tradition of saving bombshells for the end of the term today when it released  its decision in Masterpiece Cakeshop, Ltd. v Colorado Human Rights Commission today, finding in favor of the bakery, owned by Jack Phillips, who refused to bake a cake for a gay couple’s wedding reception. In the moments after the decision came out, social media jumped on it, proclaiming victory for conservatives:

Or a tragedy for civil rights:

…depending on who you ask.

The AP confusingly called it a “narrow decision”, leading many to wonder how a 7-2 vote could be considered narrow. But a reading of the decision reveals that it was the scope of the holding, not the vote, that was narrow.

Consider this quote from the majority opinion, drafted by Justice Kennedy:

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 the State 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 is subject to a neutrally applied and generally applicable public accommodations law.

The Court did not issue an opinion on whether a baker may legally refuse to bake a cake for a gay wedding; rather, it focused on what it saw as the Commission's non-neutral, "hostile" handling of Phillips' case, generously describing as inappropriate one Commissioner's comments calling Phillips' religious beliefs "despicable" and "rhetorical"

The Court in its majority opinion recognized some contemporaneous decisions by the Commission in which they upheld the right of other bakers to refuse to create cakes with anti-gay messaging. Phillips argued that he suffered disparate treatment when those bakers' beliefs were considered legitimate and conscientious and his own were not. The Court agrees.

The decision to reverse the Colorado Court of Appeals was in no way a ruling on whether Phillips was wrong to refuse service, but instead simply based on the Commission's failure to apply the law to Phillips' case "in a manner that is neutral toward religion." The closing words of the majority opinion make that clear:

In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.

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

Despite the 7-2 decision favoring the baker, the Court was in much less harmony than one might think based on the numbers. Only Justices Thomas and Roberts joined in Kennedy’s opinion. Breyer joined Kagan in her separately written concurrence, while Alito joined with Gorsuch in his. Ginsberg dissented, with Sotomayor signing on.

Kagan, noting that she agreed with the majority’s ruling based upon the non-neutral treatment of Phillips by the Commission, wrote separately to opine that the bakers who were allowed to refuse creation of anti-gay cakes did not violate the Colorado Anti Discrimination Act- the refusal was not based on race, sex, religion or other protected characteristic of the customers- and thus there was not disparate treatment between those bakers and Phillips.

Gorsuch wrote separately to voice his disagreement with Kagan and with the dissent and reiterate his belief that Phillips was the victim of disparate treatment by the Commission, calling that failure to apply “a consistent legal rule” the basis for finding the Commission acted non-neutrally.

Thomas’ concurrence focused on the argument, largely ignored by the majority, that requiring the creation of a cake is a form of compelled speech and thus a violation of Phillips’ First Amendment rights. Thomas believes the use of Phillips’ artistic talents is a form of expression and that a freedom of speech analysis would have been appropriate here.

Ginsburg’s dissent (which included a footnote disagreeing with Thomas’ assertion that cake creation is speech) agrees with Kagan that the  treatment of Phillips and that of the bakers who would not create anti-gay cakes is not comparable, because those bakers were not refusing based upon their religious beliefs, nor based on the identity of the customers requesting it. Ginsburg also downplayed the importance of the Commissioner’s statements cited by the majority, arguing that no prejudice resulted, pointing out that the Colorado Court of Appeals heard Phillips’ ‘de novo”; that is, without regard to the procedural history.

So, can a baker refuse to bake a cake for a gay wedding? We don’t know- the Court didn’t actually say.


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Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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73 thoughts on “SCOTUS Rules (sort of) on Gay Wedding Cake Debate

    • My take is that this wasn’t the case Kennedy wanted because of the Commission’s hostility. It’s an invitation for the lower courts to send him a case where the process looks neutral. I also believe it’s an indicator that Kennedy will be back next term.

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      • I suspect that it was more the case that the conservatives did want, to put pressure on Kennedy to side with them more or else feel increasingly isolated and more inclined to leave sooner (i.e., under Trump). And that this was his way of dealing with that pressure (which is really always his way of dealing with the pressure of these hot-button social cases).

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  1. “So, can a baker refuse to bake a cake for a gay wedding? We don’t know- the Court didn’t actually say.”

    I think the court quite clearly implied you could (and indeed can), providing you have the correct reasons.

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    • As far as I can tell, the court said that a baker can only refuse if it is a wedding cake. Cakes that are baked for gay weddings are not necessarily wedding cakes. Many are, some may just be cakes that are served during desert or something.

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    • I disagree. That was suggested in Thomas’ concurrence, but the majority didn’t come close to that. They reiterated time and again that their issue was with the disrespect and hostility with which the Commission treated the Petitioner’s religious convictions, thus failing to render a neutral-under-the-law decision. They clearly said the broader issue would have to be decided another day.

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      • [f]inding in favor of the bakery, owned by Jack Phillips, who refused to bake a cake for a gay couple’s wedding reception.” Your words (emphasis added). And as they didn’t rule against them… Thus, you can refuse, you just have to thread the needle of words and deeds. The fact that there wasn’t a consensus among the justices, either for or against, doesn’t change that.

        What isn’t prohibited, is therefore legal.

        Did they (the justices) also thread a needle? Yes, yes they did.

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        • No, I don’t read it that way. They found in his favor, in that the reversed the order of the appeals court which had upheld the Commission’s decision, on very narrow grounds which did not include a right to refuse service. It was in the bakery’s favor, because he doesn’t have to follow the commission’s directives.
          As an analogy, when a criminal trial verdict is overturned on a constitutional violation, the defendant wins. That doesn’t legalize the crime.

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          • I think the analogy is poor, as this was not a criminal matter. Rather, as a civil matter due to the court not finding it verboten, it is allowed. And, as was put upthread, they wanted a better case to rule on*. Indicating that, in this case at least it is allowed. So, due to the arguments that were presented, or lack thereof, in this case, it is allowed.

            *The fact that there could in the future be a case that overturns this, tells me that the set of words and arguments made this case.

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            • The analogy stands, because the point is that this ruling in the bakers favor does not mean that another similarly situated baker could not run into the same trouble. All the ruling does is change the way the commission is required to look at these cases. As it stands, there is no overruling of the discrimination claim underlying the case.

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              • How? A precedence has been set, no? If another “commision” shows prejudice, and the artist can prove it, should they not get treated the same under color of the law?

                And as CO does not define the married couple as having a protective characteristic, why should another case such as this come to court, if from the same or other states with similar laws re discrimination?

                I personally feel same-sex marriage is an unalloyed good, but even better is good law.

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                • The precedent set is “the commission must act with neutrality and not hostility toward religion when hearing these claims.”

                  The precedent is not “religious reasons are sufficient basis for discrimination.”

                  Neutrality toward religion does not equal rule on behalf of the religious beliefs.

                  Where do you get that Colorado doesn’t define sexual orientation as a protected class?

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  2. Above, you quote Kennedy saying:

    “Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter.”

    wasn’t that pretty much the case, though? I was under the impression that Masterpiece told the couple to pound sand as soon as they realized they’d be baking a cake for a gay wedding, before the couple had even placed an order.

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      • This presumes that the wedding cake is, in fact, art. And that would seem to be highly contingent on particular factors in any individual case as well as a bit of philosophy.

        I mean, if it’s a one-off special commission thing, then I would be inclined to say yes. If it’s a standard design that the bakery kicks out a half-dozen of per week, I would be inclined to say no. In the latter case, how does the fact that it’s a “wedding” cake materially distinguish it from any other baked goods they produce? Is their entire product line “art”? Does it become art when you write their names on it in frosting? When you perch the little figurines on top?

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        • “f it’s a standard design that the bakery kicks out a half-dozen of per week, I would be inclined to say no”

          This is rarely the case with wedding cakes.

          And if the gov’t is going to get into the business of deciding what is and isn’t art, I’d rather they decided too widely than too narrowly.

          All precedents considered.

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          • Well, I’ve been married twice but I had bupkiss to do with the cake; that’s more like mother-of-the-bride territory I guess. Anyway, I’m just assuming that the reality is they’ve got a set of pans in standard sizes and a half-dozen or templates they work from depending on how many guests the thing is supposed to feed. I’m also assuming that your super-special, one-of-a-kind creation is actually pretty much the same as the one we made for the Crawford wedding last week, but you don’t know that because you don’t know the Crawford’s and didn’t go to their wedding, and if by some weird coincidence DID go to the Crawford wedding you probably didn’t pay that much attention to the cake anyway.

            But I may very well be all wet here…

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        • What about printed circuit boards? Can I decline to design a particular board because it’s intended for a weapon that violates my pacifist religious beliefs? Does it matter if I also design boards of my own choosing on spec and sell them through a storefront shop, and that anyone can walk in and discuss a custom board design? Does it matter if the weapon board is the first custom design I’ve ever declined to do? Does it matter if I’ve designed boards before intended for weapons, but assert that there’s something peculiar about this weapon?

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            • A Raspberry Pi is an application-agnostic PCB. A board with a dozen 250V 10A AC relays on it with 0-5 VDC high-impedance control inputs is application-agnostic. The two (small, almost trivially simple) custom boards that make up my whole house fan controller are very largely application-agnostic because the “controller” aspect is software that can be replaced.

              My limited and mostly dated experience with fancy wedding reception cakes is that they too are largely application-agnostic, in the sense that except for a few details (text, figurines) they are free of any indication of the sexual orientation of the couple.

              I have wondered how the cake maker would have reacted if I had walked in with another man to order a cake and said, “He’s marrying my sister; she can’t be here so I’m representing her interests in the cake design.”

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              • Pretty much. Yes, the structure of the cake is largely a series of different cakes assembled together. The artistry tends to be in the frosting and other decorations, and possibly messaging.

                The core of the argument all of these places seem to have is that once they know what the custom work is for, they can not, in good conscious, contribute to it. Much like if I want a PCB and all I do is give you the desired inputs and outputs, you wouldn’t know, for certain, that it was for a guided missile (you might suspect, but chances are you won’t know for certain unless you have some pretty detailed knowledge of guided missile systems). Both places were willing to sell the couple stock cakes/arrangements, but were unwilling to perform custom work.

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        • Well, the case that Burt linked to refers to floral arrangements rather than cakes, but sure.

          It strikes me that this is a case of who gets to tell whom to go eff themselves and under what circumstances. I’m still not entirely sure that it’s a good idea to go for this particular issue in an election year…

          Remember Brad Avakian? He was the Commissioner of the Oregon Bureau of Labor and Industries who imposed a $135,000 damages fine on Sweet Cakes By Melissa.

          Well, back in 2016, he was running for Oregon’s Secretary of State.

          Here, I’ll just quote myself again:

          He lost to Dennis Richardson, a Republican.

          This is in a state that Clinton won by 10 points. The Democratic senator beat the Republican challenger by more than 20 points. The Democratic Governor won by 7 points. Out of the five Congressional elections, Democrats won four of them.

          Richardson will become the first Republican to win an Oregon statewide office in 14 years.

          Anyway, I tend to lean more towards “businesses should be able to say we reserve the right to refuse service” (did you see the movie Hamburger University? I digress) than I lean away from it.

          Where I waver is with stuff like licensure. (Like, I think that pharmacists ought to be compelled to provide birth control because people who don’t have pharmacist licenses can’t sell it without going to jail.)

          Is there a law that says that you cannot make a wedding cake without a wedding cake license? (Or that it’d be illegal for you to do so?)

          If so, these bakers need to cowperson up and make the cake. You wanted a monopoly? YOU GOT ONE. BAKE THE DAMN CAKE.

          If they don’t need a license? Hell. Go somewhere else.

          (But if it’s art, then: yeah. Artists shouldn’t be compelled. There are risible comparisons that one could make to sex work, if one wished.)

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          • Actually, my personal position is pretty close to yours. I don’t have a real strong position either way, but in general I think the bakers and florists in question are being real dicks about it but the government is being worse and it’s lousy strategery on the part of gays and lesbians to make a big stink about relatively minor stuff like this just after having won a major victory in ssm. A big factor in the victory was in demonstrating that it was No Big Deal and then some of them go off and make it a Big Deal again.

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              • The “you can’t legislate morality” thing was always kinda dumb. Of course you can legislate morality; that’s the whole frickin point! We have laws against things like murder, rape, theft, etc precisely because they are universally considered immoral acts. When people invoke that aphorism what they really mean is you can’t legislate against acts that aren’t universally seen as immoral (e.g., gay sex, smoking pot, abortion), i.e., “victimless” crimes, or don’t sufficiently impact society as a whole to warrant criminalization (adultery). Then there’s the whole thing where we have laws that aren’t really based on morality at all, like zoning laws or some occupational licensing, but that’s a different conversation.

                I believe discrimination of this general sort is a legitimate government interest sufficient to warrant legislation, but I worry that the harm is de minimus and we’re essentially turning dicks into martyrs.

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                • I believe discrimination of this general sort is a legitimate government interest sufficient to warrant legislation, but I worry that the harm is de minimus and we’re essentially turning dicks into martyrs.

                  Any law we pass will…

                  1) …be enforced by men with guns against minorities.

                  2) …take up societal scarce resources and reduce the effectiveness of all other laws.

                  3) …be used by the other side and/or bad actors in the culture war.

                  That doesn’t mean we shouldn’t pass legislation, but if the harm is “de minimus” then the odds are non-trivial the cure will inflict more harm than the original problem.

                  Having said that, I suspect this is an issue that will go away on it’s own so a legislative fix could quickly become another nothing law.

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                • I believe discrimination of this general sort is a legitimate government interest sufficient to warrant legislation, but I worry that the harm is de minimus and we’re essentially turning dicks into martyrs.

                  I rather suspect that simply a) requiring companies to publish their discrimination openly, and b) allowing this entire thing to happen in reverse. [edit: …would solve the problem.] I.e., it’s my sincerely held belief that same-sex marriage is fine, so I can boycott anyone interfering in it.

                  If you post ‘We do not create cakes for same-sex weddings’ on your bakery, you will get exactly one super-Christian wedding planner that uses it as an advertising point, and everyone else ends up having to boycotts you for weddings, because their wedding photographer is gay or their wedding dress maker is gay or whatever, and they won’t work a wedding where people who won’t work gay weddings are hired.

                  And, heck, probably half the people boycott you for everything. I know that sign would make me turn around.

                  And I’m not sure that (b) would be illegally currently anyway, but I can see some asshole judge asserting it’s religious discrimination. So I would like the Supremes to explicitly say that discriminating against someone who openly discriminates against someone based on religious reasons is legal, and in fact jurisdictions that allow such open discrimination based on religion, have to allow counter-discrimination.

                  I think it is entirely reasonable to claim that A cannot discriminate against B in a manner that normally would be a violation of the law, because of A’s deeply held religous beliefs, and then turn around and sue C because C discriminated against A because of A’s deeply held religious beliefs.

                  Once you put your beliefs out there to legally justify your behavior towards others in ways that would normally violate the law, other people can use your beliefs (Or, at least, your behavior that was justified by your beliefs) as to justify _their_ behavior towards you in ways that would normally violate the law.

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                  • This is, IMHO, the most libertarian approach. About the worst you could attempt to claim is that it is government compelled speech, but I’m pretty sure that would fail, since the government isn’t telling you what to say, only that you are required to be upfront and honest about your desired behavior.

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                    • Ugh, well, if it’s the libertarian thing, I don’t want to do it. ;)

                      No, but more seriously, I think everyone should remember that not only was open discrimination tolerated a lot more by society, that as soon as, for example, educational discrimination was banned, the entire racist population essentially built ‘private businesses’, aka, private schools (Which before that were some really weird thing that Catholics did and most people were not fans of.), to get around the law.

                      So we need to not assume that all our problems can be solved that way, and I’m only suggesting we allow this sort of open discrimination to deal with _artistic_ situations. I think someone making a specific cake for a wedding should be able to refuse if they openly state that. I don’t think, for a counterexample, that a hotel should be able to not rent them a reception hall, even if they say so. (Which is sorta a change from how I thought about this in the past, but then we got Trump and, uh, let’s say I’m less optimistic about people.)

                      And on top of that, another reason I am okay with this: I hate to have to point this out, but, technically speaking, no one _needs_ a wedding, (wedding != marriage) and they don’t _need_ a wedding cake to have a wedding anyway…technically, wedding cakes aren’t even part of the wedding ceremony. And there’s very little chance they will not be able to get a cake, anyway. If they’re in a small town, they might end up having to get one from another city, but they will get one.

                      This isn’t ‘the only grocery store in town will not sell me food, so I starve’ or even ‘so I have to live off gas station food’. This is not denying someone a good education. This is denying one luxury good of a very specific way…and it’s only denying it in one specific shape.

                      And weddings are extremely rare in people’s life, on top of that. The average person basically averages…one? Two?

                      Even in an absolute worst case scenario, we are talking about someone who has a singular event in their life not quite go off as planned because they have to buy a large cake and figurines at Walmart.

                      This is…probably not the line in the sand to die on for gay rights. I think gay rights would be a lot safer if civil right lawyers, right now, decided to try to figure out a _extremely specific and narrow_ definition of ‘artistic expression’ (1) and how they have to state their refusal of service upfront.

                      1) For example, we don’t want Hobby Lobby coming along and being able to refuse to sell to gay people under the justification that their stuff is used for art, and Hobby Lobby is thus part of the artistic process, and they can refuse to collaborate with gay people.

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                      • Ugh, well, if it’s the libertarian thing, I don’t want to do it. ;)

                        Curse you and your dogged tribalism! (Shakes fist at the sky)

                        But seriously, yes, it can’t be a general rule, since people suck. But it can be a rule for, as you say, things that are highly artistic in nature. Or perhaps for businesses that are sole proprietorship, with no other employees (or no more than 5 employees) and no outside investors. Something like that. Basically, if you want your business to grow beyond a glorified hobby, you can’t be discriminatory.

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                      • Not only were non-elitist private schools seen as some weird Catholic thing, a few states tried to ban them to get Catholic children into public schools. The Supreme Court slapped them down on this in the 1920s in Piece vs. the Society of Sisters. It helped that many public schools were de jure Protestant schools in addition to being segregated until the mid-20th century. The Supreme Court began slapping down on the de jure Protestant nature of schools about the same time they went against segregation.

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                  • I rather suspect that simply a) requiring companies to publish their discrimination openly, and b) allowing this entire thing to happen in reverse. I.e., it’s my sincerely held belief that same-sex marriage is fine, so I can boycott anyone interfering in it.

                    First, this is brilliant. 2nd, just stop with “a)”.

                    I’m a normal consumer. Me refusing to do business with a bakery for any reason is legal without needing to strip him of any rights. If he’s going to pull his religion into every cake he makes, then he’s going to be painful enough to work with that I won’t bother.

                    Note putting your religion into your food is fine as a concept, thus Kosher restaurants, but you need to advertise that’s who and what you are.

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                    • I’m a normal consumer. Me refusing to do business with a bakery for any reason is legal without needing to strip him of any rights.

                      Yes, you, as a _consumer_, can decide to discriminate for any reason, including the religious beliefs of the owners of a business.

                      But _businesses_ can’t.

                      Let’s pretend that you own a wedding planning company, with half a dozen employees. Let’s say that some of those employees are gay, and the company generally supports gay rights and is well known for planning gay weddings.

                      And these anti-gay-marriage bakers exist in the same town. And a couple comes to you to hire you as a wedding planner, and thinks they should get a cake from there. The couple is straight, so the bakery will make the cake. And the bakery has never indicated any problem working with your company, despite your reputation.

                      However, you openly say that you will not work with such bigots, you recommend that the couple go somewhere else for their cake, and if the couple really has their heart set on a cake from there, they will need to find another wedding planner.

                      And…you just, technically, violated anti-discrimination law. You are refusing to hire the baker because of their religious beliefs, and possibly also refused service to the couple because of _their_ religious beliefs.

                      And what you just did usually isn’t covered under these dumbass ‘religious freedom laws’, a lot of which are written specifically only covering people who object to same-sex marriage for religious reasons. Not people who ‘object to people who object to same-sex marriage’, nor people who object for ‘non-religious’ reasons. (Mostly because these laws are written by bigoted idiots who don’t understand how religious freedom works and how the law shouldn’t be encoding specific rights for specific religious beliefs.)

                      I want to courts to say ‘Nuh-uh. If the law allows artists to use their religious beliefs to override part of anti-discrimination laws, the law has to allow other artists to use _that fact_ to override the same parts of anti-discrimination law against the first artists.’

                      But, again, still this is limited to artistic things. So the situations this would come up in are very small…but I want it in writing.

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        • As far as I understood (and i did get into this a lot, if only to be able to better comment in Rod Dreher’s blog), Jack Williams acknowledged on the record they never got to discuss the cake, how it would look like, what it would include, and what words would be written on it. He refused to bake a cake that would be used in a gay wedding, period.

          I always hoped someone in the SC would address that part of the record, with respect to whether or not “the cake is -on its own- the message”, as opposed to “the cake is the canvas, I refuse to put a celebratory message on it, but I would sell them a white marzipan cake, no problem”

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          • This is the edge that it all rides on. From my understanding, in both the cake and the floral cases, the business owners were fine selling stock cases or arrangements to gay people. It was the act of preparing a custom cake or arrangement for a gay wedding that was the bridge too far.

            ETA They were also fine selling custom arrangements to gay people for non-wedding events.

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  3. This was a punt. I suspect Kennedy did not want to destroy his legacy on gay rights but also his inner-Catholic kicked in. Breyer and Kagan went along rather go against him.

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  4. A few years back I wrote a guest post that was partly about this topic. To summarize the ideas I was trying to articulate in that post:

    1) I, as a gay man, am perfectly fine with anti-discrimination laws written in such a way as to provide significantly more protection to business owners who wish to discriminate than they currently do. There are clearly competing freedom interests here, and I think it’s the legislature’s job to create bright-line rules about where one person’s interest trumps another’s.

    2) I am much less sanguine about fuzzy religious exemptions that don’t have clear boundaries, both because I think it will bring more grief to queer people and because I think it puts us closer to a world where attesting religious belief is a “get out of jail free” card, something that’s corrosive both to law and to religion.

    3) Similarly, I am opposed to laws that carve out very specific exemptions that are specifically targeted to the issue of gay weddings. Religious exemptions should be in furtherance of the principle that any religious belief, even odious belief, deserves deferential treatment. Narrowly tailored exceptions fail to do that–instead they’re effectively state endorsement of a particular religious tenet.

    I wrote that article in 2015, a month before the Obergefell decision. At the time, I was primarily worried, not about individual acts of discrimination, but instead about the state as an institution, and the ability of that institution to promote or oppose discrimination.

    Since that time, we’ve had three years of nationwide legalized gay marriage. The broad and continuing shift in acceptance of same sex marriage and queer people more generally has been profound–thanks in part to the wisdom of the Supreme Court on that issue.

    On the other hand, we’ve also had a year and a half of the Trump Presidency, which has proved a great example of the ability of our government, acting as a cultural institution, to embrace and promote bigotry.

    Thus, my views remain the same.

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    • A Corollary to my points above:

      2a) Fuzzy exemptions for “art” or “expression” are as bad or worse than fuzzy exemptions for religion. Everything action we take is expressive. Everything we create is art. To allow us to broadly ignore the law because our actions are artistic is even more corrosive than allowing us to ignore the law because we can cite a religious belief.

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    • (That was a good post.)

      Today I saw a tweet that explained that Western Atheism was a Christian Heresy and after laughing, I’ve been wrestling with it because, the bailey of that is obviously false… but there *IS* a motte in there.

      And the motte is very, very interesting indeed.

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    • Narrowly tailored exceptions fail to do that–instead they’re effectively state endorsement of a particular religious tenet.

      Indeed.

      One of those idiotic exemptions basically said that people (I think it was county clerks) can refuse to officiate a wedding, and have to find someone else to do it, if they held a strong religious belief that same-sex marriage was unacceptable.

      What the hell? What if you hold a strong religious belief that say that _opposite-sex_ marriages are not acceptable? What if you hold a strong religious belief that interfaith marriages are not acceptable? Or interracial marriages?

      What if you hold a strong religious belief that same-sex marriages are not only acceptable, but _mandatory_, and instead of marrying people to the people they came in with, you wanted to randomly pair off any people of the same sex?

      What if you held a strong religious belief that it was impossible to know the inside of someone’s else head, and thus it was impossible for you to judge anyone’s consent in a marriage, and thus while you would marry people in theory, in practice you refused to marry any particular couple? (Sorta an epistemological religious objection.)

      What if you hold a strong religious belief that the woman is way too good for that man and he doesn’t deserve her, for God’s sake Monica what are you doing with your life, Greg lives on a couch and doesn’t even own a car, seriously? (Okay, that one probably doesn’t work.)

      Who decided that the supposed Christian belief of the ‘Only true marriages are opposite-sex ones’ was the _only_ religious exception allowed under the law?

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      • Who decided that the supposed Christian belief of the ‘Only true marriages are opposite-sex ones’ was the _only_ religious exception allowed under the law?

        Which is why the Restore the First Amendment Act drafts circulating around are all facially unconstitutional, because they all “protect [businesses/employees/government officials] for acting based on a belief that marriage is one man/one woman”, as opposed to protecting [same bunch] for acting about whatever they think about marriage.

        You can create a protected class called “thinkers about what marriage is”. You cannot protect just those that have certain ideas about what marriage is. You have to protect those that believe that man/woman IS the only true marriage, and those that think that man/woman IS NOT the only true marriage.

        I have the strong conviction that the people in the Alliance Defending Freedom know this perfectly well. They just want to pass on an unconstitutional law just to have it blown out of the water, and claim how persecuted Christians are, and please send us money to protect you.

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        • Which is why the Restore the First Amendment Act drafts circulating around are all facially unconstitutional, because they all “protect [businesses/employees/government officials] for acting based on a belief that marriage is one man/one woman”, as opposed to protecting [same bunch] for acting about whatever they think about marriage.

          I have zero faith that the court, as presently constituted, will find those acts unconstitutional.

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      • One of those idiotic exemptions basically said that people (I think it was county clerks) can refuse to officiate a wedding, and have to find someone else to do it, if they held a strong religious belief that same-sex marriage was unacceptable.

        When did we make gov officials Priests?

        The gov does secular marriages. If you can’t do secular marriages because of your faith then you shouldn’t have that as part of your job description.

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  5. Semi-OT: The Second Circuit issued its’ first strike against the Trump administration in an immigration matter on May 25, 2018. In Hong Fei Gao v. Sessions, the 2nd Circuit held that even under the REAL ID Act, trivial inconsistencies and omissions to justify an adverse credibility for asylum applicants. The principal trivial omission in this case was failure to disclose medical treatment or provide corroboration of such. Aliens do not need to disclose every act of persecution and the logical outcome of said acts on their asylum application.

    While Hong Fei Gao’s case started long before Trump was nominated to be the Republican Presidential candidate in 2016, the language of the case shows that they are taking direct aim at Sessions’ tough on immigrants stance. As Attorney General, Sessions is the head of the Executive Office of Immigration Review, the Agency that oversees the Board of Immigration Appeals and the Immigration Courts. The language of the case strongly states that the Immigration Courts should not be turned into or treated as deportation machines, as Sessions is attempting to do, because of their nature.

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  6. I’ve read the case and the separate opinions and even though I’m not a lawyer and no one has asked for my advice, I’ll invoke the “privilegium interneti” and offer my 2 cents:

    1. I don’t quite agree with Em’s statement that “[o]nly Justices Thomas and Roberts joined in Kennedy’s opinion. Breyer joined Kagan in her separately written concurrence, while Alito joined with Gorsuch in his. Ginsberg dissented, with Sotomayor signing on.” The slip opinion says the decision was “joined” by Breyer, Alito, Kagan, and Gorsuch. I do understand that after reading the concurrences, the justices are staking out ways in which to differ from whatever one may take from the decision and therefore set up a rematch or signal what kind of decision another challenge might bring. It seems to me, though, that the conurrers all agreed on the decision to reverse because of the allegedly hostile-to-religion attitude of some on the Colorado commission.

    2. As is usual with these types of things, when I read each opinion, each one seemed compelling to me in its own way.

    3. I’m agnostic (hah!) about whether the prejudices shown by two statements from the Colorado commission against religion necessarily mean Phillips wasn’t given a fair hearing. I lean toward saying yes, it does mean that, but my priors on this issue pretty much mean I’m going to say that. And I can accept the dissent’s reasoning that the two statements in question don’t necessarily mean as much as the other justices seem to think.

    4. I found the dissent’s distinction between Phillips’s refusal to bake a “gay wedding cake” and other bakers’ refusal to back cakes with explicitly anti-gay messaging to be quite convincing, and I find Gorsuch’s attempt to find an underlying similarity unconvincing. Phillips stated at outset that he’d bake no cakes for gay weddings, without even discussing what message(s) the cake would contain. I was not expecting to agree with the dissent on that point.

    5. Notwithstanding no. 4, I’m not sure what a constitutionally valid conversation would look like. A couple comes in and asks for a cake for their gay wedding.

    5a. The baker says, “I’ll make the cake, but we can’t have any pro-gay wedding messaging.”

    5b. Or, the “I’ll make the cake, let’s discuss it’s design, etc.” In the course of the discussion, the couple says, “we want a message on the cake that says, ‘our celebration is an affirmation of all gay persons’ right to marriage.'” At that point, the baker says, “sorry, I can’t do that message.”

    In my view, both 5a and 5b are consistent with what the dissent seems to imply is acceptable, or at least consistent with what the dissent seems to say would make Phillips’s case comparable to the anti-gay cakes. At the same time, I have a hard time believing the dissenters would sign on to that outcome.

    6. One thing that’s alluded to somewhere, I forget if it’s Thomas’s dissent or Gorsuch’s concurrence (or another of the opinions), is that wedding-cake bakers often go to the ceremony itself as part of the setting up process for the cake. To me, a baker refusal to bake a cake on the grounds that he or she would have to go to the ceremony is a potentially strong claim.

    7. For what it’s worth, an acquaintance of mine has suggested we should distinguish between purveyors of public services open to all comers, “craftspeople,” and “artists.” In his view, a baker would be more like a craftsperson, which would entitled his views to less protection than an artist but more than a purveyor of public services open to all comers. I’m not sure that’s a workable outcome, but it’s an intriguing idea.

    8. I’m glad that same sex marriages are legally recognized in the US. One of the things I fear is that Obergefell could become like the next Roe v. Wade and energize a strong constituency that puts the finding for ssm in danger, just as the reaction to Roe has for abortion rights. So far, such an energization seems unlikely and seems not to have materialized. But I’m wary of attempts that might create a strongly partisan base dedicated to overturning it. What’s right is right, of course. But there’s also a political calculation that needs to be considered. And if the price of that calculation is that some business persons are given some leeway to manage their own messaging, then maybe that price is politically acceptable. Or not. But it’s something to consider.

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  7. To me, a baker refusal to bake a cake on the grounds that he or she would have to go to the ceremony is a potentially strong claim.

    He doesn’t go to the ceremony. He goes to the venue where the cake will be eaten (which might, or might not, be the ceremony venue itself), and he goes in advance of the reception. The cake is not assembled while the (Episcopalian) minister is blessing the couple in the background.

    Lastly, he has employees. If he really doesn’t want to step into the banquet hall where the reception for a gay marriage (*) will be celebrated in a couple of hours, he can send some of his personnel.

    So if walking into the banquet hall to assemble the cake is beyond the pale, would someone please think about the waiters. They have to be there at the actual party. They have to serve champagne during the actual toasts. They have to distribute the cake. Can they, too, refuse to collaborate in sin

    (*) Which was the actual Philips case. The couple had married already in Massachusetts. The cake in question was for a wedding party in Denver. There was no ceremony Jack Phillips could have attended, unless he traveled to MA himself.

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    • I did say “ceremony,” so it’s fair to point out that the reception isn’t the ceremony. But it is part of the celebration.

      As for going in advance of the reception, if that’s what he’d be doing, I admit that weakens his claim considerably. However, I’m not sure all celebrations/receptions work that way. When my spouse and I got married, the cake persons were there during the ceremony (I think…it was a while ago). Since everything was done in my sister’s backyard, the ceremony and reception were the same, which I suppose is different from Phillips’s situation.

      Lastly, he has employees. If he really doesn’t want to step into the banquet hall where the reception for a gay marriage (*) will be celebrated in a couple of hours, he can send some of his personnel.

      I suppose he could make the argument that his employees are his agents and what they do on his dime is tantamount to him doing it. I do admit it’s at least one degree removed from what I was talking about, though.

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      • I suppose he could make the argument that his employees are his agents and what they do on his dime is tantamount to him doing it.

        Since you are agreeing with me I should probably let it go, but, I won’t :-)….

        Aren’t religious beliefs something that is deeply a part of you, that it cannot be taken away from you without great violence? Isn’t that part of Philips’ arguments?

        So how can you claim that your religious beliefs are automatically transferred to your employees, since they are on your dime? Phillips’ Episcopalian employee’s religious beliefs are that same-sex weddings are true marriages blessed by God, and they are happy baking and setting the cake. Contrariwise, what about the small o-orthodox (thanks, Rod) employee of an Episcopalian baker. Why has he to contribute to sin by assembling a cake in a same-sex marriage reception?

        Why are the religious beliefs of the employees totally unimportant?

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        • I guess I’m facing a contradiction here in my own beliefs. I would expect the employer to have to afford some reasonable accommodation to his/her small-o orthodox employee who wouldn’t like to “participate in sin.” So if there are episcopalian employees who could/would participate, the employer would probably be advised to have them staff the gay wedding reception/celebration. But if there are none, then I suppose the employer could make it a “if you don’t do it, I’ll have to let you go proposition.” [ETA: added a end-quotation mark here]

          I don’t see how a small-o orthodox business owner, who decides not to use any of his employees, including the episcopalian ones, to staff a gay wedding reception/celebration is violating the religious beliefs of those episcopalian employees. But because I favor “for cause” employment laws and because I oppose religious discrimination in hiring, I can’t condone making belief in anti-ssm’ism a requirement for employment.

          So how can you claim that your religious beliefs are automatically transferred to your employees, since they are on your dime?

          I don’t exactly mean that the employer’s beliefs “transfer” to his/her employees. I mean that when the employees are on the employer’s dime, they’re representing the employer. The employer’s name, or his/her business’s name, is represented at the event. Or if the name literally isn’t, the business is. However, as I hinted in my comment, I’m not sure how far to take that line of reasoning.

          Aren’t religious beliefs something that is deeply a part of you, that it cannot be taken away from you without great violence? Isn’t that part of Philips’ arguments?

          I’m not sure how much the “without great violence” claim is part of Phillips’s argument. He seems to be claiming the law is unfair to require something of him, but he doesn’t seem to be invoking the “they’re doing this behind the barrel of a gun” hyperbole that some libertarians indulge in. (Maybe in meatworld, he actually does. I was reading the case, but I haven’t followed how he or those who sympathize with him have been talking about the issue in public.)

          As for religious beliefs being “something that is deeply a part of [me],” that’s probably his argument, or maybe he’s just invoking the “free exercise” protections without delving into the question of ontology and belief. I personally agree that one’s religious beliefs are deeply a part of who one is and as Burt has suggested elsewhere, not easily changed.

          So……I guess we have to agree to agree? I mean, I give a little more weight to the “he or an agent of his business might wind up having to attend an event” than you do. Even though I guess I contradict myself, I can’t shake that that claim of his (or rather, that claim that one of the justices is making on his behalf….I don’t know if Phillips has made that exact claim) makes a certain amount of sense to me.

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  8. 1. I don’t quite agree with Em’s statement that “[o]nly Justices Thomas and Roberts joined in Kennedy’s opinion. Breyer joined Kagan in her separately written concurrence, while Alito joined with Gorsuch in his. Ginsberg dissented, with Sotomayor signing on.” The slip opinion says the decision was “joined” by Breyer, Alito, Kagan, and Gorsuch. I do understand that after reading the concurrences, the justices are staking out ways in which to differ from whatever one may take from the decision and therefore set up a rematch or signal what kind of decision another challenge might bring. It seems to me, though, that the conurrers all agreed on the decision to reverse because of the allegedly hostile-to-religion attitude of some on the Colorado commission.

    That’s a term of art. The slip opinion used “joining” as in 7 out of 9 agreed to vacate. In legal parlance, “joining” in the context I intended means signing on specifically to the opinion, like Thomas and Roberts did (note that on the concurrences, a second justice is noted as “joining” the author). Writing a concurrence means that while they agree with the ultimate holding- vacating the lower court opinion, in this case- they do so for different reasons, which often means they disagree with the reasoning of the majority opinion (and sometimes it means that they agree with all of it but think another argument deserves to be made).

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    • To nitpick a little bit further, Kagan’s opinion said she (and presumably Breyer) joined “the Court’s opinion in full….[She] write[s] separately to elaborate on one of the bases for the Court’s decision.” That’s not quite saying another argument deserves to be made, although I admit that Kagan, despite her stated intention, seems to be signalling she would take the case in a different direction from the one the Court did if the issue comes up again (and may have done so now if enough people would voted that way).

      Still, you’re right, and thanks for the clarification.

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