Supreme Court rules in favor of baker who refused to make a wedding cake for gays

UPDATE: The Freedom from Religion Foundation, whose take I wanted on this case, has issued a bulletin on this decision, “Missed opportunity; Supreme Court punts on important case, manufactures hostility toward religion where none exists.” The FFRF had written an amicus brief to the Court supporting the gay couple, and think that this decision was misguided. An excerpt from their bulletin (my emphasis):

This decision is based on the Free Exercise of religion argument and, had it been decided as the Religious Right argued, it would have thrown open the doors for all kinds of discrimination, especially racial discrimination and discrimination against religious minorities and nonbelievers. During oral argument, it was clear that none of the justices or the bakery’s attorneys could draw a legal line that would allow discrimination against LGBTQ customers but not black, Asian, Jewish or atheist customers. During that argument, Justice Stephen Breyer worried that there was no “distinction that will not undermine every civil rights law from the Year Two” and feared that upholding the bakery’s claims would “cause[] chaos.”

Justice Anthony Kennedy wrote the narrow 7-2 majority opinion, in which Justices Breyer and Elena Kagan, typically viewed as liberal justices, joined. Kennedy begins by acknowledging the sincere religious beliefs at issue, and notes, “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.” This is the general rule for which the remainder of the decision is but a caveat.

The remainder of the decision is a finger wag to the Colorado Civil Rights Commission. Kennedy essentially argues that the commission’s “treatment of [the bakery’s] case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”

_________________

I was not surprised at the decision handed down this morning by the Supreme Court, ruling that a baker in Colorado could refuse to make a wedding cake for a gay couple, but I was surprised that the ruling was 7-2, with liberal justices Stephen Breyer and Elena Kagan voting with the five conservative justices.  And I was further surprised that the ruling didn’t come down for the reasons I thought—that any artistry in the cake would allow the baker to refuse service, just as an artist could refuse to paint a picture for a gay couple.  Rather, the reason behind the Court’s decision was that the baker’s religious freedom had been violated: that the Colorado court’s ruling was “hostile” to his religious beliefs. As the New York Times reports (click on screenshot below to see the piece):

Justice Anthony M. Kennedy, writing for the majority in the 7-2 decision, relied on narrow grounds, saying a state commission had violated the Constitution’s protection of religious freedom in ruling against the baker, Jack Phillips, who had refused to create a custom wedding cake for a gay couple.

“The neutral and respectful consideration to which Phillips was entitled was compromised here,” Justice Kennedy wrote. “The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”

The Supreme Court’s decision, which turned on the commission’s asserted hostility to religion, strongly reaffirmed protections for gay rights and left open the possibility that other cases raising similar issues could be decided differently.

. . . Though the case was mostly litigated on free speech grounds, Justice Kennedy’s opinion barely discussed the issue. Instead, he focused on what he said were flaws in the proceedings before the Colorado Civil Rights Commission. Members of the commission, he wrote, had acted with “clear and impermissible hostility” to sincerely held religious beliefs.

One commissioner in particular, Justice Kennedy wrote, had crossed the line in saying that “freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust.”

Justice Kennedy wrote that “this sentiment is inappropriate for a commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law.”

You can see the full decision at the link. I haven’t yet read the decision, but I’m disturbed on the grounds on which the case was decided. Artistry is one thing, and might have been a justifiable reason for refusal to decorate a cake, but saying that a baker cannot be forced to violate his religious beliefs, at least in this case, because that constitutes “hostility to religion”, leaves open a whole gamut of situations in which religion can be used to violate someone’s civil rights. No general principle has been limned for deciding these cases. What does one do when one’s religious beliefs clash with another person’s civil rights? Or must this be decided case by case?

At any rate, I’m writing a response to Stephen Asma’s NYT “The Stone” piece arguing for the benefits of religion, so I’ll let readers discuss this decision while I finish my post.

108 Comments

  1. Posted June 4, 2018 at 11:27 am | Permalink

    Sub

  2. Mark Perew
    Posted June 4, 2018 at 11:28 am | Permalink

    Would it be paranoid to think that the wording of this ruling will give ammunition to those who claim that Christianity is under attack?

    • Roger
      Posted June 4, 2018 at 12:08 pm | Permalink

      Not at all. Opportunists gonna opportune.

      • Posted June 4, 2018 at 12:11 pm | Permalink

        It is under attack regularly in these pages. Not that there’s anything wrong with that. 😉

        • Roger
          Posted June 4, 2018 at 12:56 pm | Permalink

          Indeed and apparently the commissioners got a little too attack-happy I guess. Next time cool it a little commissioners!

    • Posted June 4, 2018 at 6:34 pm | Permalink

      Just because you’re paranoid doesn’t mean someone isn’t out to get you.

  3. DW
    Posted June 4, 2018 at 11:29 am | Permalink

    Honestly, I always considered this case under “De minimis non curat lex”: The law is not concerned with trifles. It would be one thing if a class of people was blocked from getting cakes across the board, but these people went and HUNTED for a bakery that would refuse them simply so that they could sue.

    What’s missing in this, unfortunately, is an important idea that I think is much more deserving: Should there be a “Right to Access the Free Market”? Instead of looking at everything through a 1:1 lens of right to religious freedom vs. right to be gay, as the court did, I think a broader perspective could be much more illuminating.

    • Jenny Haniver
      Posted June 4, 2018 at 12:36 pm | Permalink

      There’s a lot of cake in a trifle.

      “these people went and HUNTED for a bakery that would refuse them simply so that they could sue.” Source, please.

    • Posted June 4, 2018 at 12:45 pm | Permalink

      I think is more narrow than that. These are the facts as I understand them:

      Jack Phillips, owner of Masterpiece Cakeshop, refused to custom-design a cake to help celebrate a gay wedding. As a Christian, he found same-sex unions to be unbiblical and immoral, and he wasn’t willing to use his artistic talents to advance a message he holds to be wrong.

      He was happy sell the couple a cake “off the shelf”, just not create a new thing using his talents, which is the unique selling point of his business.

      To me, this is analogous to a poet refusing to write a new poem for someone (anyone, for whatever reason).

      Although I disagree with his stance, I can also see where he should not be forced to create a new thing for the couple.

      The idea that I would be forced to create a custom musical instrument for someone I don’t want to work with (the typical reason I don’t want to do this is because the customer tries to tell me how to design the instrument) makes me decidedly queasy.

      • Posted June 4, 2018 at 2:06 pm | Permalink

        I don’t know. If a shop advertises custom instruments made to order or custom poems written to order, then artistic license is off the table, otherwise the entire bespoke industry can discriminate. If your business is custom orders then do your business whether it is distasteful to you or not. Otherwise, get out of the custom business.

        • Posted June 4, 2018 at 2:20 pm | Permalink

          No, I just tell them that they’d be better off working with another builder. I will not work with a “difficult” customer. And they aren’t that hard to see coming.

          I would guess (hard to tell for sure) that my customers are >50% very religious. In fact, many have told me they want the instrument for playing in church.

          Could’t care less. Couldn’t care less if they are gay/het/trans, black, white, brown, or green, whether they have an imaginary friend or not.

          But I will not work with an asshole (not to put too fine a point on it). Or with someone who presumes to tell me how to design and build the instrument — and then still expect me to be liable for how it sounds and plays. (Sorry, mate, design and build are my job.)

        • Posted June 4, 2018 at 2:21 pm | Permalink

          One of the other strategies is to have a really long waiting list you can whip out if needed. Or price according to the risk involved. Sure, I’ll build you that; it will cost X.

          • Posted June 4, 2018 at 2:31 pm | Permalink

            Entirely fair. A difficult customer means a higher cost. Likewise, I suppose, if someone asks me to write something on a cake that I found distasteful, I could charge a higher price due to the psychological cost it causes me. It does open the door to discrimination of course but, face it, the world ain’t perfect.

          • Posted June 4, 2018 at 4:22 pm | Permalink

            Curious, what kind of musical instruments do you build?

            I agree with you about difficult customers. I used to build bespoke bicycles and have rejected a few customers from time to time for just that reason.

    • sshort
      Posted June 4, 2018 at 12:46 pm | Permalink

      My understanding was it was a free-market decision as well. Access to the commons.

      I was able to sway an anti-gay cake guy with the analogy “What if a gas station in a small town in the south refused to sell gas to black drivers because of some arcane biblical injunction and their sincerely held beliefs?”

      He said they should be able to. The drivers can just drive a bit further on. Freedom, right?

      “So what if this principled-stance proves popular with the local churches and community and the next gas station over follows suit? And the next? The whole town?

      His answer was “They can just move on to the next town.”

      Of course, this guy had sincerely-held beliefs and a poor grasp of recent history, but with some slight extension of the analogy and some added urgencies, he finally got it!

      A bit simple of an example, but I fear the creep from this ruling if the market becomes less open and secular and more religiously balkanized.

      • Posted June 4, 2018 at 12:57 pm | Permalink

        Serving gas doesn’t involve one’s beliefs like cake writing does. Discrimination shouldn’t be allowed at any service where choice is narrowed (need to get gas when tank is empty) and where the business owner’s beliefs don’t come into play. Of course, there are likely businesses where this is not such an easy decision. On the other hand, it does seem likely that these two aspects of business are mutually exclusive. I can’t think of any business, for example, where the consumer’s choice is restricted but the business owner’s self expression is involved in the product or service.

      • Ken Kukec
        Posted June 4, 2018 at 2:30 pm | Permalink

        That was a typical experience for black people in the Jim Crow south before enactment of the Civil Rights Act of 1964, at least as to restaurants and lodging facilities — no where to eat, nowhere to sleep, nowhere to use the restroom facilities. LBJ said that the domestic couple that accompanied him and Lady Bird to Washington after the 1960 election would return to Texas a couple of times a year and had to sleep in the car and relieve themselves on the side of the road.

    • Ken Kukec
      Posted June 4, 2018 at 2:18 pm | Permalink

      … “these people went and HUNTED for a bakery that would refuse them simply so that they could sue.”

      Where did you get that from? I see nothing in the opinion to support it; the couple seeking the cake were legitimately surprised the baker refused.

    • Posted June 10, 2018 at 5:38 am | Permalink

      I agree that some gay couples, going against Christian bakers in what I can describe only as a crusade, brought the decision upon themselves. I suppose that this aggressive revengefulness made some liberal judges support the decision.

      At the same time, I am also worried about the right to access the market. Here some Christian baker refuses to bake a cake for a gay wedding, there some Muslim driver refuses to transport beer… where are we heading?

  4. Randall Schenck
    Posted June 4, 2018 at 11:32 am | Permalink

    There are way too many Catholics on that court. They can never get past their religion and just follow the law. Not possible. I do not see the free speech business in this either. If you are opened to the public to perform a service then perform. Church is on Sunday. Let’s see one of these artist refuse a black gay couple and see how they twist their way out.

    • Posted June 4, 2018 at 12:53 pm | Permalink

      If a person came into the bakery and said: You must make me a cake that says “All Jews Must Die, It’s in the Holy Quran!”, can you refuse to do it?

      Can you refuse if you are Jewish by descent but are not observant?

      Can you refuse if you are a highly committed observant Jew?

      Or could you refuse to make a cake with the message: “All Blacks Must Go Back to Africa or Die!” with an image of a lynching on it?

      • Randall Schenck
        Posted June 4, 2018 at 1:36 pm | Permalink

        You could certainly refuse to do all those things you say here. You can also say, I’ll make you a cake and you can put on it or write on it anything you want. But I don’t think any of this has anything to do with the case. If you go into a bakery to get a cake and he first wants to ask you your religion or if you a gay or if you are a racist, then the baker should be shut down and find some other work to do.

        • Posted June 4, 2018 at 2:22 pm | Permalink

          But he didn’t do that!

          He was happy to sell them the cake for them to write on themselves or any cake “off the shelf”.

        • Posted June 4, 2018 at 2:34 pm | Permalink

          I hope it’s obvious that I think he’s wrong to refuse to work with the couple; but it’s not clear to me (at all) that he’s legally wrong.

          • Posted June 4, 2018 at 2:47 pm | Permalink

            It is a difficult issue to my mind, which is why SCOTUS dodged it by accusing the Colorado Civil Rights Commission of animus.

            • Posted June 4, 2018 at 3:08 pm | Permalink

              At least one member of that committee was guilty of overt animus*. Hence the ruling.

              *of course what they should have done, like every HR department everywhere tries to do, is simply keep their animus to themselves. If you don’t make your discrimination obvious, it can be effective but hidden.

        • Posted June 4, 2018 at 2:51 pm | Permalink

          My other point here is that there are legitimate rights on both sides and finding which prevails in a particular case isn’t always obvious or easy.

          If the baker had refused to sell the gay couple anything, he would clearly be in violation of the law (in my limited knowledge).

          He didn’t do that. He was happy to sell them a blank cake or a cake “off the shelf.”

          What he refused to do was exercise his talents to create a custom design for the their wedding.

          I think that the law is pretty well established that no one can force an artist to create an artwork for them.

        • BJ
          Posted June 4, 2018 at 4:49 pm | Permalink

          “You can also say, I’ll make you a cake and you can put on it or write on it anything you want.”

          That’s almost exactly what the owner in this cake did.

          • BJ
            Posted June 4, 2018 at 4:49 pm | Permalink

            *this case

            Whoops!

            • Posted June 4, 2018 at 5:14 pm | Permalink

              Good one, though

              • BJ
                Posted June 4, 2018 at 5:34 pm | Permalink

                Most of my best jokes are the result of my own incompetence.

        • Rocket
          Posted July 10, 2018 at 10:21 pm | Permalink

          Yeah no. The baker shouldn’t be “shut down” as you say. How would you like to be forced to do something against your will, and if you refuse, be shut down and have your livelihood taken from you.

    • Ken Kukec
      Posted June 4, 2018 at 2:54 pm | Permalink

      One of the Catholics on the Court, Sonia Sotomayor, dissented. Two of the three Jews on the Court, Kagan and Breyer, joined the Court’s opinion. (There are currently five Catholics, three Jews, and one Protestant on the Court — though no partridge in a pear tree. 🙂 )

      Protestants (all of them white males, of course) dominated the Supreme Court until very recently (though that was accepted as how it was deigned to be). There were two Catholics who made it to the Court back in the 19th century, but no Jews until 1916 (when an sole “Jewish seat” was informally established), no African-Americans until 1967 (there have been but two), and no women until 1981 (there have been only four, three of whom sit on the Court today).

      The great liberal icon, Justice William J. Brennan, was a practicing Catholic, and I’m certain he would’ve led the charge against any type of discrimination against gay folk.

  5. Posted June 4, 2018 at 11:33 am | Permalink

    If I read this right SCOTUS is not saying that “the baker can …” but that “the process cannot …” Reversing a lower court decision is not necessarily a precedent setting event if all they are saying was that the process was flawed as to how the decision was arrived at.

    • Ken Kukec
      Posted June 4, 2018 at 3:02 pm | Permalink

      Yeah, the Court decided this case on exceptionally narrow grounds, meaning we probably haven’t seen the last of this issue — except to the extent that the nation seems to have accommodated itself pretty well to the idea of same sex marriage, and people in the service sector who refuse to provide goods and services to gay folk (like this baker) are a dying breed.

  6. Peter Nonacs
    Posted June 4, 2018 at 11:34 am | Permalink

    I haven’t read the entire ruling, but if it is as reported it is bizarre. I believe the baker was within his rights to refuse, but that seems to have been left undecided as was the legality of the CO law. Instead, the baker won because someone said something nasty about religion? Looks like SCOTUS punted on this one.

  7. alexandra Moffat
    Posted June 4, 2018 at 11:37 am | Permalink

    what if I went into that bake shop with a sign, lapel pin, saying
    ‘down with god’ or ‘religion is impious’ or ‘me atheist’ or similar. It would be OK to refuse to sell me a cake? That the case was mostly decided on the supposed anti religion bias of the under court doesn’t really address the issue, does it? Is the Court just being sure that more cases are headed its way? Confusing!
    It is always disheartening that the Court members are mostly religious. 6 Catholics? Or is it 5 now. Is there some way to get a case with standing before the Court about the built-in bias against secular, atheists by religious judges?

  8. Mark Jones
    Posted June 4, 2018 at 11:38 am | Permalink

    It would be great if a Muslim run bakery refused to bake a cake with ‘Jesus is the Lord’ on it, and see what the court felt about that freedom of religion.

    • Posted June 4, 2018 at 11:41 am | Permalink

      There are a lot of Muslim-run bakeries not too far from me. Today I will ask them to make me a cake with ‘Jesus is Lord’ on it. Ok, I’m not going to do that. However, my bet is that they would be fine with it as they need the business and don’t need Christians with pitchforks surrounding it.

      • alexander
        Posted June 4, 2018 at 12:09 pm | Permalink

        Happened to me in Paris. I wanted to buy a couple of merguez, and the butcher said: “Not for you.” I just walked out. It is very common now that you are not allowed to bring your own wine in a Lebanese restaurant, for example, while in the past they all served wine (often from wineyards in the Middle East).

        • Jenny Haniver
          Posted June 4, 2018 at 12:57 pm | Permalink

          Whether the reason was extreme religious prejudice, or more broad ethno-cultural chauvinism(i.e., you’re not North African and merguez is part of our culinary culture – refusals I’ve occasionally experienced when venturing into unknown ethnic culinary territory, and they’re usually afraid that I’ll find the dish gag-inducing, so that’s somewhat understandable), I hope you never went back to that butcher shop.

          I have no problem with a restaurant barring patrons from bringing in their own liquor for consumption if the owners do not wish to have alcohol in their establishment, for whatever reason. Would you have the same cavil if the proprietors were regular old white bread white people, who ran an alcohol-free establishment?

          • alexander
            Posted June 4, 2018 at 1:39 pm | Permalink

            I wouldn’t go to any restaurant that wouldn’t serve wine with meals. McDonald is not a restaurant, it is a hamburger place, you don’t go there to enjoy a meal.

    • Troy
      Posted June 4, 2018 at 11:51 am | Permalink

      Mark, steven Crowder did just that for a gay wedding cake, nobody seemed to care about it when the Muslims refused to serve. https://youtu.be/bIwqPbFCFck

      • Posted June 10, 2018 at 5:47 am | Permalink

        I suppose that US gays think that US Muslims are too few and too moderate to create problems for them. They should keep in mind, however, that Muslim minorities increase fast both in numbers and in religious observance.

    • Ken Kukec
      Posted June 4, 2018 at 3:08 pm | Permalink

      You really think US federal courts would treat it any differently? If so, know nothing of American jurisprudence.

    • Posted June 4, 2018 at 4:35 pm | Permalink

      Reading Jerry’s piece more closely, and reading the FFRF article and the decision itself, it seems clear that the Supreme Court majority haven’t addressed the merits of the case itself, but rather the conduct of the Colorado Civil Rights Commission. I didn’t realise that was their job too.

      The dissenting opinion from Ruth Bader Ginsberg may become more important in the long run:

      Phillips would not sell to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others. When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding—not a cake celebrating heterosexual weddings or same-sex weddings—and that is the service Craig and Mullins were denied.

      https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf

      Ginsberg has it exactly right, and indeed the majority opinion confirmed this principle:

      “[t]he 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.” Id., at ___ (slip op., at 27). 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.

      …but then went on to condemn the commission’s ‘hostility’ to the bakers. So it goes.

      • Ken Kukec
        Posted June 4, 2018 at 9:15 pm | Permalink

        Yeah, there are echoes of the underlying battle over same-sex marriage in the conflicting concurring opinions. Justice Kagan (joined her in concurrence by Breyer) would frame the issue as whether the baker can refuse to bake a gay couple a wedding cake. Justice Gorsuch (joined by Alito) would frame the issue as whether the the baker can refuse to bake a cake for a gay wedding.

        This recapitulates the difference in framing the issue in the same-sex marriage case itself, where the majority said it was whether the the constitutional right to marry could be denied to gay people, and the dissent said it was a whether the constitution included a special right to homosexual marriage. In these cases, how broadly one frames the issue essentially dictates the outcome.

        • Posted June 5, 2018 at 5:04 am | Permalink

          Hi Ken, I dare say you’re right about the framing, but this is about providing goods and services to a protected minority; would a baker saying they would refuse to ‘bake a cake for a black wedding’ be granted a religious exemption? Surely this would be seen as racial discrimination, just as refusing to sell a wedding cake to a black couple would be?

          Happily I think society is moving to a place where such formulations are seen for what they are; attempts to protect prejudicial beliefs and, importantly, activities.

          • Posted June 10, 2018 at 5:55 am | Permalink

            However, I think that this movement of society shouldn’t have Jacobin zeal. A decade or two ago, the prejudicial beliefs in question were mainstream, nobody (no matter how progressive) running for an ellected office would dare to advocate gay wedding, and now gay activists try to reform people and recruit the state punitive apparatus against small businessmen in the middle of nowhere.

  9. Posted June 4, 2018 at 11:38 am | Permalink

    All the news outlets are calling it a “narrow ruling” but the devil is in the details. There is an interesting general question at the heart of this issue, though I expect that SCOTUS avoided it in their decision. I will be interested in reading legal scholars’ analysis that they must be busy writing as we speak.

    • Posted June 10, 2018 at 5:56 am | Permalink

      And all commenters ask since when 7-2 is “narrow”.

  10. Posted June 4, 2018 at 11:46 am | Permalink

    By the way, I’ve added an update with the Freedom from Religion Foundation’s take on the decision. If you read only on your phone, you won’t see this (or other) updates, I think. I always prefer readers to go to the site to read, for that’s the only way I have an idea of the traffic.

    • Posted June 4, 2018 at 12:00 pm | Permalink

      Having read FFRF statement, I stand by comment below (I was hedging because all I knew about the decision was what I read on the news).

      I think SCOTUS made the correct, very narrow decision. It does not matter that what the commissioner said was true or simply a matter of personal belief, as an agent of the state she should not even give the appearance of bias.

    • ThyroidPlanet
      Posted June 4, 2018 at 9:09 pm | Permalink

      Can the post be resent? It’d help.

  11. Posted June 4, 2018 at 11:49 am | Permalink

    I dunno – I haven’t read the decision and am only going on news reports (always a dangerous thing to do) but if we are really committed to a separation of church and state, a government agency cannot be blatantly anti-religion. They must at least appear to be neutral and decide things under their purview according to statute and without any overt bias. This does not appear to be the case here and I think (based on my limited reading) that the SCOTUS made the right decision.

    • Craw
      Posted June 4, 2018 at 12:21 pm | Permalink

      Yes. The decision says some of the commissioners for example described his faith as “despicable”, and denied its relevance. So he was not given impartial due process.

    • Ken Kukec
      Posted June 4, 2018 at 3:23 pm | Permalink

      That was certainly the interpretation under which Justices Kagan and Breyer joined the opinion (per Kagan’s separate concurring opinion). Gorsuch and Alito (per Gorsuch’s separate concurrence) saw the issue more broadly. Kennedy’s majority opinion hedged its bets on the issue.

      Justice Clarence Thomas, as is his wont, heard his own distant drummer and marched to its beat, addressing in his separate concurrence the free-speech issue the other justices declined to reach.

      • Craw
        Posted June 4, 2018 at 6:17 pm | Permalink

        Yes, he did give a strong defense of free speech. Like Scalia he has consistently been one of the strongest defenders of free speech on the court.

        • Ken Kukec
          Posted June 4, 2018 at 8:56 pm | Permalink

          Thomas has a highly idiosyncratic view of the Free Speech clause — indeed, a highly idiosyncratic view of the entire Bill of Rights and the 14th Amendment’s “privileges and immunities” clause. And even within his own idiosyncratic framework, he’s permitted himself some idiosyncratic exceptions, as in his dissent in the cross-burning case”.

  12. mirandaga
    Posted June 4, 2018 at 11:54 am | Permalink

    “. . .saying that a baker cannot be forced to violate his religious beliefs, at least in this case, because that constitutes ‘hostility to religion’. . .”

    The “hostility to religion,” as I understand it, was not in the attempt to force the bakers to bake a wedding cake but in the Colorado Commission’s blatant prejudice against religion in making their decision. As the Supreme Court decision states:

    As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.

    Pretty hard to argue with that. If anything, “cast doubt on the fairness” is an understatement.

  13. Posted June 4, 2018 at 11:55 am | Permalink

    I would have greatly preferred the court had ruled narrowly on the matter of compelled speech. (cf. First Amendment Lawyers Association amicus.)

    But the Colorado commission essentially declared that some sincerely-held beliefs are more equal than others.

  14. Ken Kukec
    Posted June 4, 2018 at 12:08 pm | Permalink

    I’m gonna read the opinion now, but my preliminary reaction is that it’s interesting that the opinion was written by Justice Kennedy, the author of the same-sex marriage opinion in Obergefell and several other gay-friendly decisions. Had the case been decided strictly on free-speech grounds, the decision might have been closer, and Kennedy might have been the swing vote (as he so frequently is in controversial cases). With the case decided on Religion Clause grounds, the majority held not just Kennedy, but Kagan and Breyer, too.

    Where the Chief Justice is in the majority, he chooses which justice will write the majority opinion, based on the initial conference vote in chambers. It’s a fairly frequent occurrence that the Chief will assign the writing to the justice he feels is waivering on the issue, since, once the drafter begins writing and going through the rationale and justification for their decision, it tends naturally to bolster his or her support for the outcome. I wouldn’t be surprised if that’s what happened here.

    • Ken Kukec
      Posted June 4, 2018 at 12:27 pm | Permalink

      It also occurs to me that, by assigning the opinion to Kennedy, the relative “centrist” on the Court, Roberts made it much more likely that it would be written in language palatable to the two liberals (Breyer and Kagan), certainly more so than had it been written by one of the fire-breathing conservatives (Thomas, Alito, or Gorsuch).

      Say what you will about the outcome — and I’ll likely disagree with it — it’s a pretty canny move by the Chief Justice.

  15. Neil Wolfe
    Posted June 4, 2018 at 12:19 pm | Permalink

    It seems that “sincerely held beliefs” can be a justification for any action be it refusal to make a cake or flying a plane into a building.

    • ThyroidPlanet
      Posted June 4, 2018 at 9:08 pm | Permalink

      Precisely

      (Being fair, the other comment says this too)

      Did a SC justice use the SHB argument? I have to look now…

    • Posted June 10, 2018 at 6:03 am | Permalink

      This is why I keep saying that some beliefs are better than others.

  16. E.A. Blair
    Posted June 4, 2018 at 12:25 pm | Permalink

    I could maybe buy the baker’s argument, but only if I knew that he would refuse to bake a cake for a couple in which one or both had been divorced or were living together before the wedding.

    • Craw
      Posted June 4, 2018 at 12:41 pm | Permalink

      That’s a demand he conform to your idea of conservative Christianity, not his own. He’s entitled to his own religion.

      • E.A. Blair
        Posted June 4, 2018 at 1:24 pm | Permalink

        Throughout this case, the baker has claimed to be a “bible-believing Christian”, and there are many more restrictions on sexual behavior than the ones he cites. Of course he’s indulging in a favorite pastime, cherry-picking. Furthermore, I wrote what I did based, not on my idea of conservative Christianity, but from the actual passages from the book that is supposed to be the basis of his religious beliefs. Lynn Lavner said it better than I ever could:

        “There are 6 admonishments in the Bible concerning homosexual activity and our enemies are always throwing them up to us usually in a vicious way and very much out of context. What they don’t want us to remember is that there are 362 admonishments in the Bible concerning heterosexual activity. I don’t mean to imply by this that God doesn’t love straight people, only that they seem to require a great deal more supervision.”

        — Lynn Lavner

        • Posted June 4, 2018 at 2:52 pm | Permalink

          In essence you argue that, unless one is a strict biblical literalist, one does not have a right to religious freedom.

        • Craw
          Posted June 4, 2018 at 6:24 pm | Permalink

          I agree he’s cherry picking. He has the right. That’s the point: you don’t get to define his beliefs, nor he yours.

          As an aside I expect that you, like I, cherry pick all the time, for reasons that seem sufficient to us. I cherry pick the science I accept. Do you believe in the luminiferous aether and caloric? I cherry pick the TV news I believe in; do you believe Fox?

          • Ken Kukec
            Posted June 4, 2018 at 11:49 pm | Permalink

            Do you really cherry-pick the science you accept? I think the appropriate heuristic is to accept provisionally all scientific propositions on which there is a broad-based expert consensus (viz. propositions on which there is no significant, well-supported dispute among experts) — unless one is a bona fide expert, and thus in a position to challenge the consensus, in the particular field oneself.

            If one isn’t willing to follow that heuristic — if one instead cherry-picks according to what makes one feel good or what comports with one’s politics — then it isn’t really “science” you’re accepting, is it?

            • Posted June 10, 2018 at 6:07 am | Permalink

              I disagree. It looks like Lamarckian epigenetics is becoming a consensus; are non-experts obliged to accept it? Are non-experts obliged to accept applied behavior analysis for autism (the current consensus) when the consensus among autistic people is against it?

  17. Barry McGuire
    Posted June 4, 2018 at 12:33 pm | Permalink

    It is not the “sincerely held beliefs” that are the problem but the actions that are prompted by those beliefs.

    • ThyroidPlanet
      Posted June 4, 2018 at 9:06 pm | Permalink

      Precisely

      The spell of religion explains why “sincerely held beliefs” is any kind of argument at all. It isn’t. It’s completely irrelevant.

  18. Jon Gallant
    Posted June 4, 2018 at 12:52 pm | Permalink

    The ruling carries an implicit reproach, which may not be widely recognized, to the now conventional view that, as Matt put it so well, “some sincerely-held beliefs are more equal than others”.

    This is the axiom underneath not only the Colorado Commission’s decision, but much of the large “diversity, equity, and inclusion” bureaucratic machinery that has been constructed in universities over the last generation. And the actions of this machinery, as cases at Evergreen State and elsewhere show, can have heavier consequences than who does or doesn’t get a cake.

    • Posted June 4, 2018 at 12:57 pm | Permalink

      Exactly.

    • Posted June 4, 2018 at 6:47 pm | Permalink

      One is free to hold any belief, and to speak in favor of it, but not necessarily to act on it.

  19. Posted June 4, 2018 at 1:25 pm | Permalink

    “Jack Phillips, owner of Masterpiece Cakeshop, refused to custom-design a cake to help celebrate a gay wedding. As a Christian, he found same-sex unions to be unbiblical and immoral…”

    I don’t know if I read “unbiblical” as “umbilical” due to poor vision or weird brain, but found it humorous in a not-so-humorous topic.

    If a patron had come into this bakery asking for an anti-slavery cake and the baker refused to design one due to a sincere belief that the Bible authorizes slavery (which it does), and someone(s) on the commission had said what was said here, would the Supreme Court have waffled like this?

    • freiner
      Posted June 4, 2018 at 3:58 pm | Permalink

      I love that “umbilical!” it’s like something out of Peter De Vries — or Philomena Cunk! Welcome bit of relief while trying to untangle the topic here.

  20. busterggi
    Posted June 4, 2018 at 1:28 pm | Permalink

    I guess sincere worshippers of Kali can murder for devotion as long as they don’t wear atist smocks or berets while doing so.

  21. danstarfish
    Posted June 4, 2018 at 1:33 pm | Permalink

    I think of this as a case where different enlightenment values are in conflict. I completely support gay marriage, but I don’t think the baker’s freedom to follow his conscience should be overridden lightly. If you believe in freedom of conscience then you need to accept when people use it to act on deep beliefs that you consider misguided.

    In the case of black people being denied service in the South back in the 1950s, I do think there was more than sufficient justification to intervene. The situation was much worse with pretty much all the businesses in area denying blacks the level of services available to whites. Also, I would judge that most of discrimination wasn’t driven by a deeply held values so freedom of conscience was less of an issue.

    If gay couples were facing a similar level of discrimination then I think there might be justification to override the rights of the religious to follow their conscience. I think it is difficult to draw a clear line for when one right should override the other. In the case of a religious pharmacist wanting to refuse certain services, I would probably go the other way. Partly because I think medical services is an area where we can’t afford a policy of excessive accommodation of beliefs that impact the medical care of other people who don’t share those beliefs.

  22. Fred F
    Posted June 4, 2018 at 1:50 pm | Permalink

    See additional info here…

    • Posted June 4, 2018 at 2:06 pm | Permalink

      Do you want to tell us what “additional information” you’re highlighting here?

  23. C. Morano
    Posted June 4, 2018 at 2:45 pm | Permalink

    I think the decision as right but the concept of religion freedom’ should have nothing to do with the issue. A private citizen should have the right to act irrational and not be forced to do anything against his wishes, rational or not. The baker holds no monopoly on wedding cakes and infringes on nobody’s rights. Anyone with moral principles would refuse to do business with such a baker. Both sides in this argument sucked.

    • Posted June 4, 2018 at 3:09 pm | Permalink

      But would you say that if a gas station or apartment building owner refused to serve gay people?

      • Adam M.
        Posted June 4, 2018 at 5:29 pm | Permalink

        In my view it’d depends on whether a person is really deprived of a good or service.

        If one gas station on a corner with two others doesn’t believe in same-sex driving, any customers he refuses can simply go across the street. Ditto with an apartment building owner if there are hundreds of other, comparable apartments on the market. You’re not really denied access to gasoline if you just have to go across the street to get it, so requiring the gas station owner to do something he opposes seems more punitive than anything.

        On the other hand, if it’s the only gas station or apartment building in a small town, then they’d have a lot more power, relatively speaking, to harm others, in which case it’s more important to balance the competing desires of the people involved.

        • infiniteimprobabilit
          Posted June 4, 2018 at 6:52 pm | Permalink

          I think you’ve highlighted that quite well. Many of these ‘rights’ are a balance between conflicting interests, and local circumstances can be highly significant.

          To my mind the wedding-cake case is a very bad one to base a decision on. Simply because it does wander into grey areas. I’m not surprised the Supremes ducked for cover.

          cr

        • Posted June 4, 2018 at 9:23 pm | Permalink

          Your example of gas stations on every corner is specious. That perhaps used to be the case 30 years ago but isn’t now. What if all the gas station owners at a particular intersection all don’t want to serve gays? Does the law say that someone flips a coin and the losing gas station must serve them? What if the one with the lowest prices is the one that doesn’t like gays? And in case your are going to suggest they can just go down the street, there are lots of situations where that’s not possible. What if their tank is completely empty?

          I believe the default for someone running a public-facing business is that you have to accept all customers. There are, of course, exceptions like not allowing people in a restaurant without a shirt or shoes but this kind of thing is well covered by existing law. What is perhaps needed to be created that doesn’t exist now is a special case for business where the service involves the business creating custom items with messages. Perhaps those businesses have to apply for a special license. This is the tricky part.

  24. Posted June 4, 2018 at 4:08 pm | Permalink

    I think that the larger irony here is that the Colorado baker did not follow Jesus’ example of regularly hanging out with the ‘sinners’ and other societal misfits. If baking a custom cake for a gay couple violates his deeply held religious beliefs, I have to wonder if the personal behavior of the Orange Draft Dodger violates his beliefs. Maybe he will get invited to the White House, and turn it down.

    • Posted June 4, 2018 at 6:53 pm | Permalink

      Jesus never went to a Gay Wedding. He never celebrated sin in ANY way ever. In fact he spent his ministry telling people to TURN from their sins. If someone invited Jesus to celebrate a Gay Wedding, he would go and preach the Gospel.

      • Posted June 4, 2018 at 7:03 pm | Permalink

        Oy! This person just submitted a spate of goddy comments. He’s gone after this one.

      • Posted June 4, 2018 at 10:35 pm | Permalink

        Keith – I think you missed the point. First, you really don’t know if Jesus went to a gay wedding. Not everything he did is recorded in the NT, with many years of his adulthood completely missing. And yes, he did call folks to turn from their sins, and made particular reference to the sins of divorce and remarriage and adultery. I don’t think that he preached about homosexuality. Perhaps you are more focused on Paul and the OT than on JC.

        • Posted June 10, 2018 at 6:13 am | Permalink

          I’d bet that historical Jesus, if he existed, never went to a gay wedding, for such an institution didn’t exist in 1st century Judea.

    • Posted June 10, 2018 at 6:12 am | Permalink

      As far as we know, the couple never invited him to their wedding.

  25. Torbjörn Larsson
    Posted June 4, 2018 at 4:42 pm | Permalink

    It was such an odd outcome that it was put up in our local press (without comment).

  26. Posted June 4, 2018 at 6:52 pm | Permalink

    I am not sure why you are surprised that two “liberal” judges sided with the others? Are not judges, in particular SUPREME COURT Judges supposed to be unbiased, and rule on matters of law… from the standpoint of Constitutionality?

    Why do we employ Judges that use their political leanings to decide a case? Doesn’t that defeat the entire purpose of the legal system?

    • Posted June 4, 2018 at 10:38 pm | Permalink

      Rare is the judge whose interpretations of the Constitution and of law are devoid of political bias.

  27. ThyroidPlanet
    Posted June 4, 2018 at 9:00 pm | Permalink

    I think a big part of this disaster is that every justice views religion the way they view sports, 99% of which they know nothing about, and the one percent they do know about – their own religion- is immune to their otherwise awesome intellect.

    When they go try to come up with important decisions involving the amorphous blob of religion, it is impossible to produce anything that evinces a sharp intellect.

    Like an electrician using Jell-O to attach wires to electrical boxes.

  28. Ken Kukec
    Posted June 4, 2018 at 9:53 pm | Permalink

    Under the Free Exercise clause, it’s clear that government cannot enact laws targeted at restricting religious practice. The much tougher question is whether individuals’ religious beliefs should ever exempt them from compliance with facially neutral laws — laws that do not target religious practice and whose primary effect is not the restriction of such practice.

    This is an issue on which the Court has failed to provide much consistency. For example, SCOTUS has held that Santeria practitioners are exempt from laws prohibiting animal sacrifice, but that Native Americans’ sacramental use of peyote is not exempt from criminal laws prohibiting drug use. It is also an issue on which the justices’ usual liberal/conservative dichotomy frequently does not hold.

    And it is an issue the Court dodged today through its narrow disposition of the cake-baker case.

  29. Mark Perew
    Posted June 4, 2018 at 9:56 pm | Permalink

    Part of the opinion reads: “the State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed.”

    Is it possible that this matter will be returned to the Colorado Civil Rights Commission, who could then hold a new hearing? Could that Commission then render the same ruling against the cake maker, but do so without the language the Court found so objectionable?

    • Posted June 4, 2018 at 10:28 pm | Permalink

      Mark – I think this might happen. The case was the baker vs the Colorado Commission, not vs the gay couple. Thus the Supremes ruling was truly narrowly defined, with the Commission losing.

  30. Posted June 5, 2018 at 10:35 am | Permalink

    Ian Millhiser characterises the decision as ‘Supreme Court holds that religious conservatives are special snowflakes who need a safe space’.

    https://thinkprogress.org/the-supreme-courts-opinion-in-the-anti-gay-baker-case-is-a-stupid-waste-of-time-punt-d1b63eeb195f/

    • Posted June 10, 2018 at 6:17 am | Permalink

      To me, those gay couples for whom a process against some random homophobic baker is their most precious wedding present are even bigger snowflakes.

  31. Posted June 5, 2018 at 11:36 am | Permalink

    What will happen now? If the case was decided as an overturn of bias on the part of an earlier court, then can a similar case go before another court and work its way up again if necessary?

    I guess the “sufficiently similar” part also has to also be settled by a court, but …

    Also, what can states do to “grease the wheels in the right direction” (and the wrong one, so we can look out for them)?

  32. Posted June 5, 2018 at 4:29 pm | Permalink

    Nick Little, Legal Director of the cfi, chimes in here:

    There’s no other way of explaining this but to say the Court dropped the ball badly here. As Justice Ginsburg explains in her (as ever) eloquent and fiery dissent, the two situations are easily distinguished. Phillips refused to make a cake for customers because they were gay. This is illegal in Colorado. The other bakers refused to make a cake for customers because they found the design of the cake offensive. This is permitted in Colorado. Whoever asked for that cake design would have been refused; with Phillips, whatever cake design a gay person requested for their wedding, they as individuals would be refused.

    https://centerforinquiry.org/blog/what-the-hell-happened-with-masterpiece-cakeshop/

  33. Posted June 5, 2018 at 10:41 pm | Permalink

    From Ari Ezra Waldman’s analysis:

    “This raises an important question. If saying something true, yet critical about religion as an institution is an example of expressing hostility toward religion, then is every comment critical of religion evidence of bias? Are we never allowed to say anything negative about the harms that can be wrought by fundamentalism? It’s now hard to imagine the forces of equality getting a fair hearing if no one can say anything negative about the forces of bigotry when they use religion to justify their hatred.”

    http://www.towleroad.com/2018/06/masterpiece-cakeshop-decision/

    • Posted June 10, 2018 at 6:20 am | Permalink

      Reading these words, one would never guess that the “harms wrought by fundamentalism” and “forces of bigotry” were perfectly mainstream a couple of decades ago. To me, such a short memory smacks of hypocrisy.


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