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The Eeyores are Right on Masterpiece Cake Shop

I must agree with Ben Shapiro and Andrew McCarthy as against (e.g.) David French's more positive take on the Masterpiece Cakeshop case.

It isn't an incremental step in the direction of anything. Obviously it's better that Sotomayor and Ginsberg didn't win. But the fact that Kagan and Breyer joined in the majority, writing a separate concurrence to make it absolutely explicit why they joined, and that Roberts (besides joining in the weak majority opinion) was MIA, show us where we really are. As McCarthy points out, this should have been a knock-down free speech case, given the massive and highly explicit first amendment jurisprudence on record, including jurisprudence that makes it absolutely clear that words are not required for "speech" in the legal sense. Both the opinions of Thomas/Gorsuch and Gorsuch/Alito make it clear that they would rule in Jack Philips's favor on straightforward first amendment grounds against compelled speech. (I haven't yet read both opinions in enough detail to know why those two opinions couldn't have been joined into one.) But Roberts was silent on that point, and Kennedy's written majority opinion is (to put it at its best) silent as well, noting that different cases may be decided differently, as long as the commission behaves itself more seemly. This raises the very real possibility that Jack Philips himself, if he returns to wedding cake baking tomorrow and refuses to bake wedding cakes to celebrate homosexual ceremonies, may be in hot water again.

David French tries to get something good out of the majority opinion's comments about other cases in which the Commission made different decisions concerning cakes with words opposing homosexuality. But the majority decision focused only on the fact that the commission found those words (which were anti-homosexual "marriage") to be "offensive." In other words, the commission was too blatant in its viewpoint bias. And what if no further such cases arise in the future to help Tomorrow Jack Philips when a new case comes up? How will that later commission be shown to be biased? Or what if that later commission takes its stand solely on the words/no words distinction, without any comments about offensiveness, which (one fears) is a place where Kennedy might be willing to agree with them, as against earlier SCOTUS precedents? And where would Roberts fall in that case?

Jack Philips needs some more good legal advice right about now concerning his future, and that advice should tell him that he isn't out of the woods. If he goes back to baking wedding cakes for the sake of his business's fiscal health, he may be back before a calmer, less rabid, more polished civil rights commission before you can say, "Kennedy."

Comments (33)

Nevermind whether or not creating a wedding cake is expressive or not and also whether or not that expression has a different meaning if a cake that could be used at a real wedding is instead used at a “same sex wedding”. These are important, and I am convinced favor Jack. However, above all that how can a wedding vendor go through all the motions...meeting with the couple or their representative, discuss the wedding, and the like, and not *act* like a marriage is taking place? I just don’t see how this is possible.

Though a legal ignoramus, I can not understand why a business must offer a particular service. Isn't this some kind of slavery? It might have helped matters if conservatives did not add to confusion with their "freedom of association" as if that was remotely pertinent.

As for the baker himself, won't selling of wedding cakes sans the figurines on top work? And the figurines could be sold separately and individually, you buy a boy and a girl, or two boys or three.

T

hough a legal ignoramus, I can not understand why a business must offer a particular service. Isn't this some kind of slavery?

Mactoul, I don't know the specific laws or judicial precedents, but as far as I understand it, being in a certain business like selling apples is taken to mean "offering apples to any buyers with the requisite money". Any. That means that the seller is not allowed to discern and differentiate between THIS buyer and THAT buyer in selling an apple. Differentiating between them for transaction purposes is taken as immoral (and illegal) "discrimination.

It is my opinion that one of the particularly American deformities of mind and imagination is to be swayed, or bent, by the great success of mass-production (in terms of increase of wealth) where the production treats each unit as being virtually identical. Mass-produced pencils are so alike there is no point in examining each one to see if it is "sound". Mass produced books, the same. Mass-produced bikes, not quite as much, but nearly so. Consumers (which is yet another term geared for the mass-production system) are trained to love a market in which the only things they need to ask are "how many" and "how much". No other details are needed, because each unit is (hopefully) identical. In the STOCK market, the "units" of stock are actually esoteric in that they are not material, they are conceptual: each share is a 1/n unit of a "corporation", so naturally each individual share is identical with any other.

In that environment, in the so-called "perfect" marketplace, the seller announces his selling price, and this is taken to mean it is THE selling price to all comers, regardless of any other feature of being a buyer (other than whether he has that price at hand). On that basis, the seller is not allowed to discriminate between this or that buyer. In the ideal market-place (as the theory goes) the buyer and the seller don't even know or recognize each other in ANY OTHER WAY than that of buyer and seller, as if "buyer" constituted one's being. In that marketplace, there is not supposed to be any direct and explicit negotiating between the parties because either "the" offered price is accepted and the purchase happens, or the offered price is rejected and the sale does not happen. The supply-and-demand way of affecting price is supposed to occur BETWEEN separate transactions, only.

But this whole picture is based on a set of assumptions that are unwarranted and fundamentally divorced from some parts of reality. No buyer is absolutely identical to others, and there are ways in which the differences do matter and ought to matter. And, in actual fact, other than the stock market itself, the "marketplace" isn't generally as "perfect" as that picture anyway. In buying a car, a person who has cash will be treated differently from a person who has financing - different senses of "having" the buying price. In buying crop futures from a farmer, one will weigh very heavily the farmer's character. In buying watermelons, one will thump each one and listen, because they are not identical.

Furthermore, in some societies, the marketplace is assumed to entail a series of activities of negotiating after an initial price offer is made, explicit negotiations in which "the" price changes WITHIN the transaction itself as a result of stated terms of supply and demand. In these negotiations, if the market environment is small (such as in a village square), the specific relationships between the buyer and seller may well enter into the negotiations, their past history of other transactions, their family relationships, etc. Rasheed may take into account that the buyer is his brother-in-law, and reduce the initial price (or secretly raise it because he can't stand his brother-in-law), and this is expected.

It is taken as a given that some services are so heavily reliant on person-to-person relationship that it is (still, for the time being) impossible for the law to impose the standard of "every potential buyer is to be treated identically". Contracting for a very complex process (say, doing a new wing on your house) can legitimately involve asking "can I work with this person without him rubbing me the wrong way". Even more obviously, art (like painting a portrait) has similar issues.

It should have been a slam dunk right from the beginning for wedding photographers to be able to say - legally and socially - "because I don't think this 'event' is actually a wedding, I will find myself unable to provide the artistic input you have a right to ask for, and for this reason I ought to decline to provide this service to you." But somehow the explictness of a photograph (as if it were just a mechanical recording and nothing else) allows judges to ignore the artistic input and pretend that a photographer can do his best for any and all customers regardless of personal feelings. This is shitty thinking and - if it weren't for a totally obvious bias against Christianity - would not be tolerated for other artistic situations.

The baker's product is a little more removed from that kind of artistic input, but he should always have been able to resort to a straightforward conscience out, and refuse to cooperate with anything he thinks is wrong. It's not that he can't do it well, it's that he has a legitimate moral objection to doing it at all, because it is wrong to formally cooperate with evil. The law can and should protect that moral objection. (Of course, the law can and should make it illegal to have gay "marriage" at all. In fact, the laws actually do, and the Supreme Court ruling that pretends to overturn those laws is false and empty of force.)

American anti-discrimination law is rooted in the history of American race relations. This has led to the general idea Tony discusses that one cannot "discriminate" against or in favor of any customer. Though in actual legal fact, only some classes are "specially protected" against discrimination. If a restaurant refuses to serve someone wearing a "So-and-so for President" bumper sticker, that is still legal. (As it should be, IMO.)

I don't even know that figurines were mentioned in the discussion between Philips and the homosexual couple. But a wedding cake, even aside from the figurines, doesn't just look like any old cake, and indeed the couple themselves used the phrase "to celebrate our wedding," which was cited by Thomas and (I believe separately) Gorsuch in their opinions. In other words, they admitted that the creation of the cake (which as DR84 mentions would have been customized and hence required consultation) was expressive conduct intended to assist in celebrating the union. Given previous SCOTUS precedents on what constitutes speech/expressive conduct, the creation of a custom cake of a particular appearance to celebrate an event should have been unqualifiedly an instance thereof and hence subject to 1st amendment protection from compelled speech. It's not a good omen at all that so few justices were willing to say so.

"Jack Philips needs some more good legal advice right about now concerning his future, and that advice should tell him that he isn't out of the woods. If he goes back to baking wedding cakes for the sake of his business's fiscal health, he may be back before a calmer, less rabid, more polished civil rights commission before you can say, "Kennedy.""

Jack has announced he is going to be making custom wedding cakes again. I'm somewhat optimistic be will be left alone by the state. I think being able to use as a defense that he did this exact same thing before and the Supreme Court said he didn't violate Colorado's law is about as legally solid as it gets. Even more so, there is just no way around such a thing appearing to be hostile towards Jack.

My understanding is the ADF is now using Masterpiece to point out that Washington did nothing about the gay coffee shop owner who verbally harassed and then kicked out Christian customers to defend Barronelle by showing inconsistent application of that state's law. I wish Masterpiece was the broad First Amendment case it should have been, but it is at least giving new tools for the people litigating these cases to use.

Even more so, there is just no way around such a thing appearing to be hostile towards Jack.

I disagree. Hostility on the part of a "couple" who is creating the case isn't the same thing as hostility on the part of the commission, and the latter is all that matters for legal purposes. Even if a "couple" goes out of their way to try to target him and get him in trouble, once they bring a complaint, the commission has to address it, and at that point the commission can avoid being said to be hostile to Jack if they just act sufficiently Spock-like and make no negative comments about religion.

I think being able to use as a defense that he did this exact same thing before and the Supreme Court said he didn't violate Colorado's law is about as legally solid as it gets.

The Supreme Court *did not say* that he did not violate Colorado's law. I have absolutely no idea where you are getting that idea, but it is *nowhere* in the opinion. Nowhere.

The Supreme Court said that the commission enforced the law in a fashion that violated Jack's freedom of religion because the commission showed hostility to religion in its enforcement. That means nothing about whether or not Jack violated Colorado law.

The only value to Jack at this point will be purely psychological and/or sociological--that other people may be under the legally mistaken impression that SCOTUS upheld his right to do this, or held that he is allowed to go back and do this, or something of that kind. Which is flatly false. Or just that it would vaguely look bad to try this against the same guy twice.

That and the fact that maybe for right now he and his employees will get out of the mandatory sensitivity training, unless there is a next time.

Civil rights commissions should be abolished. These are despotic organizations unaccountable to the electorate.

Right...my bad, that was a poor choice of words. Perhaps, saying they did not say he did violated the Colorado law is more accurate.

If...and correct me if I am wrong...but my understanding Masterpiece does direct that Jack’s beliefs must be treated respectfully and neutrally, but does not clarify exactly how that must work. I’m aware some think that just means saying nice things next time, or at least not blatantly hostile things. Yet, I cannot help but think what if it means instead that Jack’s conduct must be judged by Jack’s beliefs or even just also his beliefs? If so, that bodes well for him. (It just cannot follow from the belief that marriage can only be between a man and woman that to not act like a relationship between two men can be a marriage is sexual orientation discrimination.)

I say him because he will inevitably be back in front of the commission in Colorado. The LGBT activists despise Jack and want his head, they cannot help themselves. I hope the commission looks the other way this next time, but they probably also cannot help themselves. Furthermore, I have already seen one LGBT activist claiming he is aware of plans for a same sex couple to request a custom wedding cake from Jack. This person, I believe lives in Denver and is also an attorney, so I think the comment is credible.

Yet, I cannot help but think what if it means instead that Jack’s conduct must be judged by Jack’s beliefs or even just also his beliefs?

Not exactly. It means that the commission must assume (at least for legal purposes) that his beliefs are held sincerely and that he really does object on the grounds that he says he objects on. In other words, the commission cannot relabel his religious beliefs as mere bigotry.

But it doesn't follow that he would have to be permitted not to bake the cake.

In fact, the majority opinion is quite explicit that it would *not* be permitted for a business owner to put a sign in a window saying, "No goods or services will be provided for a gay wedding." Note: Even if someone claimed that such a blanket policy was required by his religious beliefs. The opinion is explicit that such a broad-ranging policy would not be able to enjoy any constitutional protection.

So the commission would have to argue that it had a policy of neutral application that, ah, sad to say, just happened to catch Jack's refusal in its net, despite his sincere religious objections. As would be the case (the opinion indicates) if someone put such a sign in a window.

The policy claim by the commission would be that the refusal by Jack constituted discrimination on the basis of sexual orientation and that this is against the law, even if it burdens his religious views. They would have to claim that they would apply the law even-handedly in a different direction. For example, if a Jewish baker refused to bake a custom-made cake to celebrate the baptism of a convert from Judaism, they would have to claim that they would also fine such a baker.

One way that they could do this would be to claim that any time a cake involves *words*, they will give more deference to free speech claims, but that a custom cake involving only non-verbal symbolism in its general appearance (e.g., the appearance of a wedding cake) will not be regarded as speech. This was an issue that the majority opinion *pointedly* refused to address. But it would be a way for the commission to push the issue.

Or they could really bite the bullet and claim that they are going to force all bakers to bake all cakes, including words. Would that really be a "win" for the forces of good? Do we really want to have Jack Philips forced to bake (e.g.) a rainbow cake that says, "Hurray for gay marriage!" in return for the promise that a progressive baker will be forced, if asked, to decorate a cake that says, "Marriage is one woman and one man"?

To me, that would be a pyrrhic victory. It makes everybody a slave, Jack included.

And I doubt that they will go in that direction. I suspect instead that they will try to go in the words/no words direction. That *should* run them smack into several SCOTUS precedents (cited by Thomas's opinion) that words are not required for "speech" in the legal sense. But Kennedy might buy it.

So, no, the neutrality claim doesn't mean that Jack has to be judged by Jack's belief system. It just means that *somehow or other* the commission has to argue that it is treating a variety of different discrimination cases in a similar fashion rather than being hostile to Jack's views in particular.

Kennedy needs to die, retire, or go non compos mentis. He is poison on homosexual issues.

I'd say I'm a touch more optimistic than you folks. Looks like Roberts again played his moderating role by strategically throwing in with Kennedy. That may have managed to pull Breyer and Kagan on board to get the decisive-sounding 7-2 ruling. (Certainly liberal social media was stunned by it.) I'm not fond of this Machiavellian legal intrigue that Roberts appears to prefer, but maybe I'm wrong and it will bear fruit down the line.

That's some Kremlinology by me, but overall my sense that prediction, always tricky, grows ever more difficult, has not abated. We have no idea what happens next.

I will say that, as a general matter, the idea of a "narrow" ruling appeals to me.

As a general rule I also am in favor of narrow rulings. When, that is, both sides play fair with the narrow rulings, and they are narrow across the board.

We all know that we didn't get narrow rulings in the 60's through 2000's. We got broad strike-downs of abortion limits, just to pick one topic. Broad strike-down of school prayer. Broad strike-down of laws against sodomy. (Not to mention the court running the school bussing program, if we want to highlight activist judges.) It ain't cricket if the libs get all the broad rulings, and the conservatives get the narrow ones.

I have this sense that Roberts would rather have a 7-2 ruling that is clearly imperfect in basic stance but better than nothing, than a 5-4 ruling that has the correct root stance. Maybe I am wrong. Maybe he wasn't going to get ANY kind of a majority on the right stance. That's unknowable (for the moment).

But what they achieved here is a virtual certainty not merely that someone will force the issue back to the Supreme Court, but that the gay nazis will force Masterpiece back through the wringer, on the same fundamental issue. One small business cannot afford to KEEP ON taking things through one court after another over and over again in order to resolve all the nooks and crannies of several "narrow holdings". There is a separate principle that also applies, besides that of judicial restraint. While I recognize that "double jeopardy" technically only applies to criminal matters, the principle is broadly valid: you don't get as many bites at the apple as you want, just because you didn't succeed with the first, or second...

It's possible that the bullies will happen to pick someone else to bully next time, who knows. Perhaps they'll feel that their "blue sky" will be eroded if they do it to Jack Philips again. Or perhaps they'd rather pick someone who hasn't been as clear as Jack has been that he will sell all kinds of other cakes to homosexuals. They lied over and over again about him by saying that he "refused to serve gay people," but it *was* a lie and could be refuted. No doubt they'd find it more convenient to sue a baker or florist who had some less circumspect tweets or Facebook posts about how he really wishes flaunting homosexuals wouldn't come into his establishment or something.

The narrow ruling wasn't at all appropriate here because of the plethora of existing precedents. Free speech is one issue that has been thoroughly hashed out in SCOTUS's case law. When something like that is open and shut, there is absolutely no reason not to point out the obvious facts, as Thomas did in his opinion--e.g., that words are not required for expressive action in the legal sense, that this clearly would be expressive action intended to "celebrate" the occasion, that compelled speech by a government entity is (under existing precedents) a violation of the first amendment. End of subject. It would have saved everybody a lot of time later.

My strong suspicion is that Kennedy absolutely refused to rule that way, so it would have gone (at best) 5-4 the wrong way on that question. Why Roberts didn't speak up anyway and join one of the other opinions remains a worrisome mystery. I cannot see what harm it could have done, any more than Thomas's writing his opinion did any harm.

"The policy claim by the commission would be that the refusal by Jack constituted discrimination on the basis of sexual orientation and that this is against the law, even if it burdens his religious views. They would have to claim that they would apply the law even-handedly in a different direction. For example, if a Jewish baker refused to bake a custom-made cake to celebrate the baptism of a convert from Judaism, they would have to claim that they would also fine such a baker."

With respect to the line in Masterpiece saying religious views must be treated respectfully and neutrally. I get that the neutral requirement could be understood to be fulfilled if bakers have to create custom wedding cakes expressing a pro-gay message and also have to create custom cakes that express Christian views. So, in Colorado Jack has would have to make custom wedding cakes for "same sex weddings" and Azucar bakery would have to write "homosexuality is a detestable sin" the next time Bill Jack asks them to.

It is the part about "respect" that I dont understand, I just am not seeing how it is possible for that commission to again rule against Jack (or another Christian baker) and not treat his beliefs as false, insincere, if not outright malicious. Which raises a question, has the court already essentially declared the belief that marriage can only be between a man and woman is false and perhaps even malicious? If not, Jack *should* win Masterpiece 2.0. If so, what is the point in saying false and malicious beliefs need to be treated respectfully? One cannot imagine a court saying the same of blatant racist beliefs.

Asked another way, has the court established that gay people do exist? I dont mean gay people in the sense of someone who experiences unchosen attractions to other people of the same sex and may or may not choose to identify by those attractions and/or seek to fulfill them. People made to be "gay" by God, in other words. Ill leave it at that because asked this way, I think the question answers itself.

It is the part about "respect" that I dont understand, I just am not seeing how it is possible for that commission to again rule against Jack (or another Christian baker) and not treat his beliefs as false, insincere, if not outright malicious. Which raises a question, has the court already essentially declared the belief that marriage can only be between a man and woman is false and perhaps even malicious? If not, Jack *should* win Masterpiece 2.0. If so, what is the point in saying false and malicious beliefs need to be treated respectfully? One cannot imagine a court saying the same of blatant racist beliefs.

While I agree that the notion of being "respectful" of Jack's beliefs is nebulous, I'm really sorry (really), but you *cannot* get a win for Jack in Masterpiece 2.0 out of any such requirement if the commission simply handles it correctly.

For example: Suppose that you have a law that says that people are not allowed to enter a particular pond at a particular park. The pond, let us say, is regarded as somewhat dangerous, with a slippery bottom. Plus the ducks and other wildlife for which the pond is maintained are disturbed if humans are swimming or wading in the pond. So there's a "no humans" rule set up by the city for the pond.

Now suppose that Living Waters Baptist Church begins carrying out baptisms in the pond because the pond is located near their church. Let us say that Living Waters has an unusual view (this isn't actually ordinary Baptist theology, but I'm making it up for the case) that natural, outdoor water is the only water effective for baptism. A swimming pool or other pool contained in manmade material won't do. It has to be a river, lake, pond, ocean, etc.

Now, a local governing entity could refuse Living Waters Baptist Church's request for special permission to baptize in the park's pond on the grounds that their religious desires and needs are simply not sufficient to trump the reasons for the "no humans in the pond" rule in the first place (safety, well-being of the wildlife).

The governing entity could do so with a kind of regret, while acknowledging and speaking respectfully of the beliefs of Living Waters Baptist. They could acknowledge that Living Waters really has a genuine belief, which they don't treat as stupid, that they have to baptize in a natural waterway.

If, on the other hand, the government entity sprinkles its response to Living Waters Baptist with statements like, "There is no good reason why they can't just find someone with a swimming pool or build a baptistry. This whole idea about needing outdoor natural waters is just silly," then they would be acting without respect for Living Waters Baptist.

So it's possible to treat religious views with respect while refusing to allow an accommodation or exception to a law "of neutral application."

That is what the commission would have to do in any Masterpiece 2.0. It's a matter of the attitude they take and the way it would be seen as applying to other bakers as well as Jack.

Even if they took the words/no words distinction, they would still have to treat Jack's religious beliefs with respect and make it clear that they would treat other cases in a similar way. For example, if someone asked a secular gay baker to make a cake with a book on top in icing and told him that the book represented the Bible and specifically its prohibition against homosexuality, they would have to say that this wordless cake would also have to be baked. Or, as I said, a custom-made cake to celebrate a baptism/conversion, if the cake didn't contain words.

And once again, there would be no problem with "respect" so long as the attitude of the commission was, "We're sorry that this burdens your sincerely held religious beliefs, and we're not making fun of those, but the law is the law, and it's important enough that it has to be carried out even if this is hard on you due to your sincere religious beliefs."

You actually *could* do this with blatantly racist beliefs if they were bound up with religion. (It's religion, not racism, that has constitutional protection.) For example, if a restaurant owner refused to serve meals to mixed-race couples because of his sincere belief that God "divided the races" at the Tower of Babel, a commission on discrimination wouldn't have to make any negative or dismissive remarks about those racist religious beliefs in order to say, "Sorry, but you have to serve meals to mixed-race couples." *Of course* the commission would have no *actual* respect for such views, but they would have to behave professionally and with a strong appearance of dispassionately applying the law and (for example) not stating that this guy is really "just" a racist and doesn't have any sincere religious *reasons* for his racial practices.

Yes, I agree in this situation with the Living Water Baptists that their faith could be treated respectfully while still denying them use of that particular pond. I am not sure that analogy quite matches the Masterpiece case; though. In short, Jack believes a marriage can exist only between a man and woman. The two men believe a marriage can exist between two men or two women in addition to a man and woman. It is not clear that either belief is more "religious" or more "secular" than the other. If that pond in that public park were closed off to the Living Water Baptists not because of danger or concern for wildlife but instead because a Native American group considered it sacred and they used it for religious rituals, I think it would be closer to the Masterpiece case. To continue to forbid the Living Water Baptists logically and necessarily means treating their beliefs as less valid than the Native Americans. The same is true of Masterpiece, to make Jack make the cake (or give up custom wedding cakes entirely) it logically and necessarily follows his beliefs are being treated as less valid than his customers. Which could very easily interpreted to be

So, I think there is a sound argument that could be used to exploit that line about "respectful" in Masterpiece. That said, even if it is sound logically it may not be sound legally and may not be accepted anyway. My main source of pessimism here is we live in a culture that has broadly accepted that "gay people exist" and "gay people can really only marry other gay people of the same sex". As such, I expect if this comes again, that it will said that Jack's beliefs may indeed be sincere but they still demean the dignity of "gay people" and the neutral requirement could then be fulfilled by saying so long as the refusal of service does not demean the dignity of the person based on the protected "characteristic" all is well.

and "gay people can really only marry other gay people of the same sex"

Interestingly, this is manifestly not valid. People with SSA can and do marry persons of the other sex. Some of them do so because they want children naturally.

It would be impossible to be "respectful" of the KGB-QLVPG crowd by trying to insist that a person with SSA can "only" marry someone of the same sex, not only because it would cut out the ones who want to marry someone of the opposite sex, but because it would be a finger in the eye of the "B" part of KGB-VXQNT groups. And it would be a finger in the eye of the people whose sexual attraction target undergoes variation over time. Etc.

Ultimately, the notion that the government (or society) can be neutral in these matters is false. Pretending there is a kind of neutrality that is equally fair and appropriate to all parties is a LIBERAL religious belief, an illogical superstition that they religiously hold to in the face of all reality. We should not cave in to this kind of liberalism of the mind - the so-called neutrality is always like "some animals are more equal than others". Ordinary Christian (or even natural law) morality is always on the losing end of that kind of neutrality, funny how that goes. It should be obvious from the dicta of Anthony Kennedy that even "moderate" liberalism is incompatible with any thought system that holds an objective moral order, and so HIS neutrality makes a target of THEIR moral order.

I agree myself that the Living Water Baptist case is not parallel to the Masterpiece Cake Shop case. I used it only to show how it is supposed to be possible for the commission to "make a long face" and pretend to be respectful of Jack's religious beliefs. And I also used it to illustrate what is *meant* by being respectful in Kennedy's opinions.

You see, DR84, Kennedy does *not* mean by that to be neutral as between Jack's beliefs and the beliefs of the homosexual activists for whom the law itself was made. Not at all. Obviously, the law itself, by making homosexuals a specially protected class and by requiring any service whatsoever (even non-wedding cakes) for gay "weddings," makes them "more equal than others." After all, Jack would (probably--I haven't seen the full list of protected classes in the ordinance) be protected by law if he refused to bake a cake for me because he learned that I didn't vote for Donald Trump in the last election. That is to say, political affiliation is *not* a protected class status. So the law itself is automatically non-neutral by picking out homosexual activity for protected class status.

What is meant by respect and neutrality is a) not making derogatory comments about Jack's religious beliefs in the course of applying and enforcing the law, b) not denying the sincerity of his religious beliefs or claiming that they are a cover for something else, and c) treating claims of religious discrimination by others similar to Jack (e.g., other bakers) according to some rule that appears in some way to be treating "like cases alike." Hence, see the examples I gave above about perhaps using a words/no words principle and then fining a Jewish baker for refusing to bake a no-words symbolic cake to celebrate a Jew's baptism as a Christian. Or fining a secular baker for refusing to bake a no-words cake for religious people that was especially stated to be symbolic of religious opposition to homosexuality in some fashion.

"b) not denying the sincerity of his religious beliefs or claiming that they are a cover for something else"

This is not as easy as it looks; though. For example, the "a tax on yarmulkes is a tax on Jews" analogy has been used in these cases already. This analogy necessarily denies the sincerity of belief and insinuates it is a cover for something else on the part of the wedding vendors. This because "a tax on yarmulkes is a tax on Jews" relies on the person discriminating against/taxing a person wearing a yarmulke knows full well it is a Jewish article and they can "tax yarmulkes" to circumvent the letter of the law to not "tax Jews". Using this analogy against wedding vendors like Jack implies they are really targeting "homosexuals" and using their religious beliefs as cover to circumvent the letter of the law. New analogies can certainly be made, but no doubt they all will suffer from the same flaw. There is no way to make such an argument without it being a hidden premise that the wedding vendor is insincere, malicious, and/or wrong.

There may be a sweeping free exercise result hidden away, and maybe not even all that hidden away, in Masterpiece if beliefs about marriage can be taken into account. However, it probably runs smack into Obergefell and in order to be exploited would essentially mean Obergefell gets overturned because it is either valid to believe that recognizing marriage as man/woman union is non-discriminatory to "gay people" or it isn't. Obergefell says it isn't at the level of the Constitution no less. If it is already precedent that there is no distinction between "same sex marriage" and "gay people" it already is game over. Masterpiece really is just a "next time dont say anything too harsh to the religious person while you politely tell they lose" case. It may be about a one or more people on the Supreme Court not wanting to face that either "gay rights" or First Amendment rights will have to be restricted one way or another. There is no win-win, it is the zero sum game, all that, but they can pass the buck and let someone else decide which wins and also take the blame and credit.

I wont complain if this ends up working towards the good and Obergefell does get overturned, or at least part way overturned, by new precedents that de-link "same sex marriage" and "gay people".

Kennedy's decision as written already insists (explicitly) that wedding vendors cannot *broadly* discriminate against serving for homosexual "weddings." So there is *no possible way* that any talk of "respecting" religious views in the decision means that someone like Philips is allowed to delink homosexual "people" from homosexual "weddings." No way. The decision as written expressly disallows that. It expressly says that a vendor cannot refuse *across the board* to cater for or provide goods and services for a homosexual "wedding" without breaking the law. Religious beliefs or no religious beliefs. Period.

The only bare possibility that even remains is that *maybe* someone in Philips's position would be allowed not to perform customized, artistic, "expressive activity" that he sees as endorsing homosexual "weddings." But as far as selling, I dunno, plates or renting tables and chairs or (probably) catering food, it's quite clear that that is not going to be given a pass on the basis of respect for religious beliefs.

You're just trying to wring blood from a stone with the concept of "respect" in the Kennedy decision. Please take my word for it: It is a very thin and unhelpful concept.

"The only bare possibility that even remains is that *maybe* someone in Philips's position would be allowed not to perform customized, artistic, 'expressive activity' that he sees as endorsing homosexual 'weddings'"

Perhaps too much is being made of the words "custom" and "expression" when referring to wedding cakes. I took a tour of Phillips' gallery as well as the galleries of several high end shops in Los Angeles and New York.

While cakes for some one-off events can show a certain level of creativity and imagination as well as carrying an obvious message, wedding cakes across the board strike me as "custom" as ordering an automobile. Essentially a choice of cake, filling, and a rather standard assortment of shapes, colors and icing flourishes. Cakes are baked to order ("custom") for the obvious reason that they are perishable and weddings have varying numbers of guests meaning different sizes of cakes.

J. Gorsuch waxes eloquently about wedding cakes as tradition but tradition has its downsides. One is that the forms seem rather ossified. Tiers - square or round, some icing swirls and flowers, etc. As far as I can see, the only message to be drawn about the baker, regardless of who is being married, is his skill level. (BTW, those things cost, yikes!)

As usual RBG nails it - I hope you all have read her dissent.

but tradition has its downsides. One is that the forms seem rather ossified.

That's a wonderfully expressive comment, al. Thank you for being so forthright.

Your comment about custom is perfectly tuned to the liberal mindset. To the liberal (and also to the progressive, which groups overlap but are not congruent), "custom" seems ossified and to be resisted precisely because of that. But of course custom cannot become custom without it being followed regularly, and this regularity is just why it feels ossified to the liberal and progressive. For "ossified" one may read "regular".

What this mindset fails to understand clearly is that culture and society cannot exist without customs, and that people have a positive obligation toward observing customs. It is a moral obligation, not contractual, and you don't get to choose whether you will fall under the general obligation. (The obligation is not identical with respect to every custom, of course, and the obligation toward observing custom admits of exceptions and escape clauses of many kinds and degrees, so that the obligation toward observing is not an absolute. And it's a straw man argument to pretend that the only obligations we have are the ones that are absolute.)

wedding cakes across the board strike me as "custom" as ordering an automobile.

I don't have a clue what you are talking about. I watched a friend make a wedding cake, and she put a huge amount of personal thought and consideration, and creativity, into it. Perhaps some professionals grow blase about it, but to me this sounds somewhat like saying that they have gotten so practiced at the many layers of evaluation on what this person (or couple) would appreciate that it is no longer as drawn-out and difficult for them - kind of like portrait artists (and caricaturists) at a fair. And if you want to suggest that portrait and caricature artists are doing "mass production" and not "expressive art", you will be laughed off the stage. I suppose that it is true that the raw materials of the art are like from one job to another, but so are paints.

(BTW, those things cost, yikes!)

Yeah. So don't pay them. Bake your own cake. Decorate it yourself. That way it will be expressive and cheap too! It it will be worth what you put into it.

Inevitably the expressiveness (or the lack of it) of wedding cakes is a subjective and disputable matter. And this should not have formed the bedrock of the defense. I have tried to inquire why a simple defense-that a business can not be expected to offer all the possible services a customer might want--can not work. Why people are willing to countenance what is virtually a slavery but are fighting for expressiveness of wedding cakes and artistry of the bakers?

I have tried to inquire why a simple defense-that a business can not be expected to offer all the possible services a customer might want--can not work.

Because that was a sure and certain lose. It has been denied again and again in American law and precedent. It is not deemed a constitutional right and has not been so deemed for a long time. If the business *does* offer the service/product of a wedding cake, discrimination law says the business may not refuse it on the grounds of belonging (or being perceived to belong) to a protected class. The *only* possible way to get around this is to demand an exception for freedom of speech or freedom of religious practice. And that requires getting into the meaning of the act of making the cake. Sorry, but that's the way it is in the legal background.

"I don't have a clue what you are talking about."

Simple, no dealer can possibly stock every possible combination of body style/trim, engine, transmission, color, interior options, etc. Annual model changes goes to perishability.

Likewise no baker can stock on a daily basis every possible combination of cake, filling, size, and color/decorations. That is why bakers and auto dealers have menus and galleries and why the buyer in both cases must order in advance and choose among available options.

Now you are going to invoke "expression" in making up a cake as opposed to merely taking an order for a car, you have a point unless we are dealing with a customized auto in which case bodywork, interior, and painting can be just as expressive as a cake.

(Note that if our hypothetical baker were to bake up every possible combination so our hypothetical customer could merely walk in, choose and purchase a cake and leave, our hypothetical baker would (or should) have exercised the same level of skill, etc. as in a so called "custom" cake. A decorated cake (sans an obvious message) is a decorated cake.)

The problem is that anything involving arts and crafts involves "expression" which is why using it as an out for obeying neutral, generally applicable laws would be a slippery slope. Tile work, landscaping (e.g. Isamu Noguchi), textiles (a friend has a MFA in textiles), ceramics, masonry and plastering, blacksmithing, gunsmithing, photography, etc. all involve similar skill levels and "expression".

Your reaction to my rather anodyne comment on wedding cakes being "ossified" is puzzling. All one has to do is to search out a few galleries of wedding cakes and it becomes clear. That you expand that into a generalized reflection on "liberals" and "progressives" demonstrates some serious misunderstandings on your part.

Some customs are useful (everyone drives on the same side of the road) and some need to be challenged (white only/colored only). This seems unproblematic.

" I have tried to inquire why a simple defense-that a business can not be expected to offer all the possible services a customer might want--can not work."

Laws concerning various forms of public accommodations go back several centuries. Contra libertarians and conservatives, markets aren't self organizing. A civil society can't exist if peaceably abiding folks with the ability to pay are arbitrarily and randomly excluded from commerce (Kennedy's concern with "dignity").

Simple, no dealer can possibly stock every possible combination of body style/trim, engine, transmission, color, interior options, etc. Annual model changes goes to perishability.

Likewise no baker can stock on a daily basis every possible combination of cake, filling, size, and color/decorations. That is why bakers and auto dealers have menus and galleries and why the buyer in both cases must order in advance and choose among available options.

Likewise, no painter and portraitist can stock on a daily basis every possible combination of paint color, size, style and subject (the person painted). That is why painters have galleries, and why the buyer must either accept something the painter has already painted ignoring that it is not a perfect fit, or order one custom. But of course, this does not imply expressive art.

The problem is that anything involving arts and crafts involves "expression" which is why using it as an out for obeying neutral, generally applicable laws would be a slippery slope. Tile work, landscaping (e.g. Isamu Noguchi), textiles (a friend has a MFA in textiles), ceramics, masonry and plastering, blacksmithing, gunsmithing, photography, etc. all involve similar skill levels and "expression".

I suppose that it is such a slippery slope, that nobody can draw a line between the painter I hired to paint my living room, and the painter I hired to paint my family portrait. Nobody can draw a line between the tile guy I hired to do my shower, and the tile guy I hired to create a mosaic for me as the drawing piece of my living room. Nobody can draw a line between the blacksmithing done to shoe my horse, and the blacksmithing done to create the sculpture in the National Sculpture Garden. Nobody can draw a line between taking photos for fun and pleasure on the cell phone, and taking (and adjusting, revising, framing, lighting, etc) photos for a professional gallery exhibition. I'll tell that to my professional photographer brother.

Your slippery slope slipped and destroyed the whole category of expressive art. Good going there.

Inevitably the expressiveness (or the lack of it) of wedding cakes is a subjective and disputable matter. And this should not have formed the bedrock of the defense. I have tried to inquire why a simple defense-that a business can not be expected to offer all the possible services a customer might want--can not work.

Mactoul, our laws have been created in the context of American history, in which commercially discriminatory and wrongful behavior was rampant for some time: A man walks into a restaurant and is told that he will not be served. Another man walks in one minute later and is seated immediately. The difference? The first was black and the second white.

Liberals want to be able to claim the moral high ground in righting such wrongful acts as wrongful discrimination based on race. However, they want to do so while also claiming that the laws by which they do this (and all laws they wish to impose) are "morality neutral", and thus avoid any debate on whether THIS or THAT behavior is actually immoral, or whether there is such a thing as an objective moral norm. Yes, of course it is hypocritical and oxymoronic, but that's what we've got.

Yep, and also (perhaps, according to Al's principles?) no distinction between the tile company that tiles your bathroom and the tile guy who makes a mosaic for your floor that reads, "Marriage equals one man and one woman. Anything else is an abomination." So I guess any tile contractor has to do that, too, or stand accused of religious discrimination.

Or perhaps Al is going to take his stand on the words/no words distinction. Bad news for that in terms of previous free speech rulings by SCOTUS, where it was distinctly stated that words are not required for protected expression under the 1st amendment.

Now you are going to invoke "expression" in making up a cake as opposed to merely taking an order for a car, you have a point unless we are dealing with a customized auto in which case bodywork, interior, and painting can be just as expressive as a cake.

What a fascinating unintentional concession we have here.

Al raises the comparison to cars, in order to knock down the point about custom cakes; and then in his next comment concedes that, indeed, there may well be examples of automobile orders that include artistic craftsmanship. And, since Al is undoubtedly familiar with First Amendment law, he knows that no custom auto detailer could be compelled to paint swastikas, hammer-and-sickles, Confederate battleflags, etc., on the grounds of public accommodation (Justice Thomas brilliantly demonstrates this in his concurrence). So Al's own analogy actually operates a fortiori against his position.

As amusing as that is, I thought we very politely asked Al to leave two months ago . . .

“The problem is that anything involving arts and crafts involves "expression" which is why using it as an out for obeying neutral, generally applicable laws would be a slippery slope. L

Are these laws really neutral and generally applicable? There is no protected or perceived protected class for “multi partner marriage” or “heterosexual same sex marriage”. Bakers are free to not create custom wedding cakes for either of those “weddings”.

It seems these laws actually favor a particular belief about marriage and conduct based on that belief. In particular, the belief that two men or two women involved in homosexuality can really marry each other.

Lydia wrote:

If the business *does* offer the service/product of a wedding cake, discrimination law says the business may not refuse it on the grounds of belonging (or being perceived to belong) to a protected class

Only if the class of wedding cakes includes both heterosexual wedding cakes and homosexual wedding cakes. But, on one level at least, this is arbitrary. And I think this point needs to be made again that the baker did not refuse to do business with the one belonging to a protected class. That is a red herring. The objection was to the service wanted--a homosexual wedding cake. And any society priding itself on freedom of commerce and enterprise, can hardly adopt a principle that a business must offer any and all services a consumer might want.
Perhaps it is not a very good legal defense in the given legal situation but the bedrock principle of a free society can hardly be otherwise.

Tony, Al,
There was no excluding here of any person. So, argument of public accommodation and parallels with Jim Crow are misleading.

Only if the class of wedding cakes includes both heterosexual wedding cakes and homosexual wedding cakes. But, on one level at least, this is arbitrary.

Ideally we *should* be able to argue that the baker doesn't acknowledge that homosexual ceremonies are true weddings or something like that.

But please understand that that isn't how special class law is shaking out. As I said (please note) Kennedy's opinion *specifically* stated that refusing some *clearly non-expressive* service for a homosexual "wedding" (I assume this would be something like renting chairs) would not be constitutionally protected. The fact that the wedding cake appears to *express approval* was the only pragmatically possible way to go.

And I think this point needs to be made again that the baker did not refuse to do business with the one belonging to a protected class.

They did. Repeatedly.

And any society priding itself on freedom of commerce and enterprise, can hardly adopt a principle that a business must offer any and all services a consumer might want.

Of course there are limitations even in our litigious society, particularly if a general *type* of service isn't offered by that business in the first place. Unfortunately, getting down to more *specifics* (such as "does homosexual 'wedding' count as a separate type of service that you can say you don't offer?") *does* in practice require getting into issues such as what counts as expressive activity. Once *non-expressive* activities have been deemed covered without constitutional protection by a non-discrimination law in a given venue.

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