Back To The Bigoted Baker: It’s Complicated…More Than I Thought

The last time (in July) I dealt with the apparently thornier-than-I-thought issue of the Colorado baker who refused to sell a wedding cake to a gay couple, I assumed that the Supreme Court would treat this as a pure public accommodations case, and side with Colorado and the couple. I was wrong. Now it is beginning to look like baker Jack Phillips may even prevail, based on the justices’ comments during oral argument.

Then I wrote, quoting my post when this case first surfaced…

“The court’s conclusion  is impossible to rebut. The cake the baker was asked to bake for the gay wedding differed not at all from one he would normally sell a straight couple. In truth, this had nothing to do with expression. He was just refusing to serve a gay couple because of their sexual orientation. Selling them a standard cake would neither constitute, nor would it be recognized as a “message” in support of gay marriage.

The Court agreed that a wedding cake with a customized message celebrating a same-sex marriage as such might implicate First Amendment speech issues, but “we need not reach this issue,” the court said. “We note, again, that Phillips denied Craig’s and Mullins’ request without any discussion regarding the wedding cake’s design or any possible written inscriptions.”

In other words, Phillips was gratuitously and unnecessarily being a cruel jerk. An alleged Christian who is unable to detect the basic Golden Rule application in treating fellow citizens with the minimal level of respect inherent in allowing them to buy a standard wedding cake requiring no “Yay Gay!” or “Charlie and David Forever!” messages in pink frosting deserves no sympathy or quarter from the law. Could the couple have just shrugged and found another bakery? Sure, they could have. Linda Brown could also have just shrugged and found an all-black school to attend, too.

The gay couple are not the villains here. Jack Phillips broke the social contract, as well as the law.”

Recent articles about the SCOTUS appeal have added some facts that I had missed, or not given sufficient weight. For example,

  • The baker told the couple that he would sell them—even give them–any other cake in the store, birthday cakes, dessert cakes, anything but wedding cakes. “I’ll make you birthday cakes, shower cakes, cookies, brownies,”  Phillips recalls saying. “I just can’t make a cake for a same-sex wedding.”

So this was not a case of general prejudice against gays. It was prejudice against gays marrying each other, and the wedding itself.

  • The couple had not discussed the cake’s design before Phillips turned them down.  Thus the claim that the cake was going to embody baker’s endorsement of the union with a forced message seems, well, forced.

Unless the cake itself is expression…

  • “I have no problem serving anybody — gay, straight, Muslim, Hindu,” he said. “Everybody that comes in my door is welcome here, and any of the products I normally sell I’m glad to sell to anybody,” said the baker to the New York Times:

“Because of my faith, I believe the Bible teaches clearly that it’s a man and a woman.Making a cake to celebrate something different, he said, “causes me to use the talents that I have to create an artistic expression that violates that faith.”

  • The Art or Public Business question is closer than I originally thought. The couple did want a customized design, and had chosen the bakery because of its reputation for making beautiful as well as yummy cakes. Phillips calls his bakery Masterpiece Cakeshop, and said he chose the name  to emphasize the creativity that informs his craft “It says ‘masterpiece,’” he says “which hopefully indicates painting and art.

Artists, as many court cases have affirmed, cannot be forced to create, and for the government to compel artistic expression is a First Amendment violation.

If a bakery has a free speech right to discriminate, gay groups contend, then so do all businesses that may be said to engage in expression, including florists, photographers, tailors, choreographers, hair salons, restaurants, jewelers, architects and lawyers. A ruling for Mr. Phillips, they say, would amount to a broad mandate for discrimination.

Art is notoriously difficult to define. To that list, I could argue for the addition of gardeners, landscapers, bathroom floor tilers, interior designers, architects, website designers, marketing consultants, and on and on. Is a sign-maker an artist? A printer?

I have a hard time disagreeing with the last sentence of that paragraph.

1. Empathy for the human beings on both sides of this controversy. Kennedy showed empathy for the gay people who face discrimination: If the cake-maker wins this case, he could put “put a sign in his window: we do not bake cakes for gay weddings,” and that would be “an affront to the gay community.” …But Kennedy also showed empathy for the cake-maker as he criticized the state for its lack of tolerance and respect for the cake-maker’s religious beliefs. Kennedy seemed troubled not only about compelling the cake-maker to make cakes for same-sex weddings but also about requiring him to teach his employees that his religion is subordinate to the dictates of worldly government….

2. Government hostility toward religious people. Not only did Kennedy chide the government’s lawyer for the state’s lack of tolerance and respect for religion (as noted in #1), he seemed willing to look into the subjective attitude of individual members of the 7-person commission that made the original decision that the cake-maker had illegally discriminated….

Government is, especially progressive government, increasingly hostile and even contemptuous of religion and people of faith. This is a valid concern.

3. Judicial expertise in crafting a principled, limited exception to the state’s anti-discrimination law. A big issue, throughout the oral argument was: How can the Court define a principled narrow exception to the state’s law against discrimination against gay people, an exception that would allow the cake-maker with a religious compunction to refuse to make a cake for a same-sex wedding? Justice Kennedy became involved in some of this discussion about where to draw the lines — the ready-made/custom cake distinction, the speech/conduct distinction, and the distinction between selling a cake in a shop and supervising the cutting of a cake at a ceremony…

  • Althouse concludes, “These 3 points, in that order, suggest that Justice Kennedy is likely to provide the 5th vote for the cake-maker’s religious exception.”

I still hope she’s wrong. Either side’s victory creates a slippery slope, but the real harm of discrimination and reducing classes of citizens into those with lesser or greater rights is far worse than the symbolic harm of having to sell a gay couple a wedding cake that nobody would regard as the baker’s endorsement of the marriage, including God, since God is presumably not an idiot.

This, however, is the kind of case that spawned the old saying “Hard cases make bad law.” This one will, no matter how it comes out.

That’s why it should have been resolved ethically, with compromise, responsible conduct, kindness, and respect.

 

149 Comments

Filed under Arts & Entertainment, Business & Commercial, Ethics Alarms Award Nominee, Etiquette and manners, Gender and Sex, Government & Politics, Law & Law Enforcement, Professions, Religion and Philosophy, Rights, Romance and Relationships, U.S. Society

149 responses to “Back To The Bigoted Baker: It’s Complicated…More Than I Thought

  1. Steve-O-in-NJ

    A small but, I think, significant fact, is that Phillips also doesn’t make Halloween cakes or bawdy designed cakes due to his beliefs. He’s not just a bigot who turns to the Bible to justify hatred of gay people (EEEEEWWWWWW! BUTT SEX! EEEWWWWWW!!!) – he’s put some thought into his beliefs and they inform all aspects of his life. He was also forced to teach his employees in a manner that must surely offend his beliefs, and yes, progressive government is becoming increasingly hostile to religion and religious people. This is wrong. The First Amendment clearly prohibits government established religion, BUT, it also prevents governmental hostility to religion.

    Whichever way it goes, and it IS looking like it may go Phillips’ way (it might not have if the Colorado HRC hadn’t come down unnecessarily hard on him), the decision is going to be a problem. If it goes his way, a LOT of merchants are going to put up signs saying they reserve the right to refuse service, and a lot of places like diners in rural PA (whose civil rights statute mirrors the Civil Rights Act and has no protection for orientation) will start kicking gay couples out because they can and it’s their way of flipping political correctness off. If it doesn’t go his way, then expect a lot of jerks to start targeting businesses, particularly bakeries, run by people they don’t agree with for requests for services that will offend them – Catholic bakers being asked to bake cakes that say “Yay Abortion!’ Jewish bakers being asked to bake cakes that say “Free Palestine!” or have swastikas on them, hippie-peacenik bakers being asked to bake flag cakes, and so on, just to make the point the owners can’t say no.

    • If it doesn’t go his way, then expect a lot of jerks to start targeting businesses, particularly bakeries, run by people they don’t agree with for requests for services that will offend them – Catholic bakers being asked to bake cakes that say “Yay Abortion!’ Jewish bakers being asked to bake cakes that say “Free Palestine!” or have swastikas on them, hippie-peacenik bakers being asked to bake flag cakes, and so on, just to make the point the owners can’t say no.

      I would not be surprised if Westboro Baptists did just that.

    • I’m not sure it’s quite that slippery of a slope. The defense isn’t that he reserved the right to refuse any service he felt like refusing. It wasn’t even that he reserved the right to refuse service to people he get lived a non-biblical life. It was that he refused to participate in a particular service that he could demonstrate involved him in conduct he believed caused him to live against his religious convictions. That of itself requires a reasonable demonstration barring anyone from make specious claims about any ole service hey would otherwise provide.

      • valkygrrl

        Reasonable demonstration? How would you, or could you prove that a belief is sincere?

        • When it comes to something like publicly discriminating, I am concerned about that as well.

          • Steve-O-in-NJ

            It’s actually a more lenient standard than it used to be for things like exemption from military service in wartime, if you remember U.S. v. Seeger. I don’t see why it shouldn’t be the same standard here for refusing service, which is arguably less important than defending this nation in war.

    • Inquiring Mind

      It’s even simpler:
      Colorado could have issued the same punishments to Acuzar bakery and two others that refused religious anti-gay messages that it issued to Masterpiece Cakeshop. They could have then said they had a principle – and applied it equally.

      But the fact they had a two-tiered system, one for the Christian Right, one for the LGBT community, is going to come back to bite them.

      • Under such a principle, a gay-friendly bakery must bake cakes for a Westboro Baptist or militant Islamist wedding.

        But this does not appear to be the case. If we exclude unpopular minorities from anti-discrimination laws, we defeat their purpose.

      • Chris

        As I explained in another reply, what you’re describing isn’t a “two-tiered system.” The system is that bakeries can be forced to serve the same product to every social group, but cannot be forced to write bigoted messages on those products.

        You have given no evidence that this differs depending on whether the customers are gay or Christian.

    • Inquiring Mind

      Actually, it goes one of two ways, either of which is a win.
      If the commissions punish the bakers, they make the point owners can’t say no.

      If the commissions don’t, then they build a pattern of disparate treatment, creating a two-fold effect:
      1. Once the pattern becomes overwhelming, courts would have to strike down the SOGI laws as applied under “disparate impact” theories.

      2. It would build the notion that “progressives” want two sets of rules – that they are creating a new Jim Crow, and would activate fierce political resistance to new laws of the SOGI variety.

  2. Rich in CT

    Each wedding vendor category has an ever closer connection, by necessity, to the quality of the ceremony, and thus a greater moral burden should they be compelled to participate in class of union they oppose. I propose a simple test: can the product be thrown off a building?

    The cake is in the middle ground of the controversy. The baker could bake a “standard” wedding cake, put it in a box, and some one can drop it from a parking garage without implicating the baker morally….

    Caterers, though, have to participate more closely in the celebration. They have to be present during at least reception to serve the food. Food though is still standard fare; the food could be dropped into the sea without implicating the caterer.

    Photographers and videographers have a very strong First Amendment claim. Their business is art. You cannot throw the videographer to the lions, and still expect quality documentation of the ceremony. (The lions may damage the equipment….)

    The baker has recourse to no more than deliver the product to a location; its fate is someone else’s responsibility. To the extent that he uses artistic discretion in making that cake, his first amendment rights are burdened. The caterer is in roughly the same boat, but has a potentially larger artistic roll in setting an appropriate atmosphere at the venue. A photographer’s work, however, is almost impossible to disentangle from artistic expression; their rights are severely burden if they are compelled to participate against their preference.

    All three, though, have political expression First Amendment claims, which is possibly even more sacredly protected speech than art. Under no circumstances could I foresee any legal ability to restrict a vendor from expressing their disagreement with legality of the wedding. Ideally, the vendor would not be opposed to at least minimal participation, but they have an absolute right to express such opposition.

    The question eventually becomes, once the same sex couple is informed thusly of the vendor’s opposition to their union, does the couple really wish to hire someone who will not enthusiastically participate, and work to give them the best possible experience?

    • If they want to make a public demonstration and punish the guy as a matter of principle to warn everyone else, yes.

      Interesting analysis.

      • I think the SCOTUS was correct in admonishing the state civil rights commission for trampling on the baker’s religious beliefs. What gives the state the right to challenge the baker’s religious belief or lack thereof? Adding insult to injury, the state forced this baker and his staff to go through reeducation disguised as sensitivity training. How is that not totalitarian?

        Last Monday, I went to a baker for a specially-designed wedding cake. I asked the baker, a devout and observant Jew, to have it ready on Saturday at 1:00 pm. The baker declined, telling me that it would be available on Friday before sundown or Saturday after sundown. What was my alternative? Pick it up on Friday, Saturday evening, or go to someone else who could accommodate my needs. But, I didn’t. I demanded that the baker have my cake ready on Saturday at 1:00 pm. The baker respectfully declined, offering to have another baker make my cake. I refused and sued the baker because his religious beliefs impaired my right to cake on Saturday afternoon. The City Commission of Civil Rights ordered the baker to violate his religious beliefs, ordered him to bake my cake and have it available on Saturday at 1:00 pm., and to train his staff to ignore their deeply held religious beliefs to accommodate my demands. At the end of the day, the baker learned that he loved Big Brother.

        jvb

    • valkygrrl

      The question eventually becomes, once the same sex couple is informed thusly of the vendor’s opposition to their union, does the couple really wish to hire someone who will not enthusiastically participate, and work to give them the best possible experience?

      To go elsewhere is an easy choice, in a city. This argument reminds me of pharmacists refusing to dispense some medication (I have some sympathy when they own the pharmacy, I have none when they’re employees at CVS.) I could go elsewhere, between grocery stores, Walmart, CVS, Walgreens and other sources I’m not going to need to go more than a mile to find whatever the doctor wants me to take, don’t have it, don’t want to sell it to me? Screw you, within 30 minutes someone else will be selling me a bottle of pills. But what if I’m in Wyoming and 70 miles from the next town? I can’t exactly hike there, I mean, have you been to Wyoming? It’s hills and sheep and snow drifts the size of barns. What happens when there’s a local monopoly? Suddenly instead of forcing people to go down the street, you’ve stopped them from participating in society, locally at least.

      What happens when it becomes the redlining that Steve-O was talking about? I’d rather draw a damned swastika on a cake (even if that is political speech not exercise of religion) than risk some assholes shutting me out of society.

      • To go elsewhere is an easy choice, in a city. This argument reminds me of pharmacists refusing to dispense some medication (I have some sympathy when they own the pharmacy, I have none when they’re employees at CVS.) I could go elsewhere, between grocery stores, Walmart, CVS, Walgreens and other sources I’m not going to need to go more than a mile to find whatever the doctor wants me to take, don’t have it, don’t want to sell it to me? Screw you, within 30 minutes someone else will be selling me a bottle of pills. But what if I’m in Wyoming and 70 miles from the next town? I can’t exactly hike there, I mean, have you been to Wyoming? It’s hills and sheep and snow drifts the size of barns. What happens when there’s a local monopoly? Suddenly instead of forcing people to go down the street, you’ve stopped them from participating in society, locally at least.

        Under present federal antidiscrimination laws, such employees must be reasonably accommodated.

        https://www.eeoc.gov/eeoc/newsroom/release/10-22-15b.cfm

        There is an irony in that under EEOC precedent, a gay-friendly bakery in Colorado must make reasonable accommodations for employees who do not want to bake cakes for a same-sex wedding. But under Colorado’s laws, that same gay-friendly bakery can not refuse to bake a cake because it would be used in a Westboro Baptist wedding.

      • “But what if I’m in Wyoming and 70 miles from the next town? I can’t exactly hike there, I mean, have you been to Wyoming? It’s hills and sheep and snow drifts the size of barns. What happens when there’s a local monopoly? Suddenly instead of forcing people to go down the street, you’ve stopped them from participating in society, locally at least.”

        When someone’s ability to participate is so tenuous it hinges on the ability to procure a cake from people who wouldn’t piss on them if they were on fire. You’re in a pretty bad place.

        What if, for instance, the reason you couldn’t procure the societal-privilege-granting cake was because you lived in rural Wyoming, where the nearest baker, not the nearest LBG-tolerant baker, but the nearest baker, was 70 miles away and hidden behind multiple hardships like a snowdrift the size of a barn, a small tornado, and a McDonald’s ball pit?

        Does one not get married? Won’t somebody think of the children?!

        (I think the bakers should bake the cake, but I also think the argument you put forward is lame.)

        • What if, for instance, the reason you couldn’t procure the societal-privilege-granting cake was because you lived in rural Wyoming, where the nearest baker, not the nearest LBG-tolerant baker, but the nearest baker, was 70 miles away and hidden behind multiple hardships like a snowdrift the size of a barn, a small tornado, and a McDonald’s ball pit?

          One other aspect of living Wyoming is altering one’s expectations. If I really want something badly enough, I’ll drive the 70 miles (or 100 or 120 or 235) to get it. The idea that 70 miles, especially nowadays (when we don’t have to go by horse, but these new contraptions that run on the black stuff that gushes out of the ground), is a hardship is less a reality and more a matter of perception.

          If something is truly that important that the distances in Wyoming are prohibitive, you probably won’t last long out here. But there’s nothing necessarily forcing you to stay in Wyoming, either.

          • I actually live in a small town and commute about that far each way daily. People always ask me; “Jeff, why on Earth don’t you just move to the city?” To which I reply, “Well, because then I’d have to live in the city.”

            My hour long drive is my wake up/wind down period, and I love it. Except in winter. Like now. When snowdrifts and ball pens are prowling around every bend. Then I tolerate it.

            • And….! We don’t have a local baker. Closest one is about 60 miles away, but it’s in *huck, ptooey* Selkirk. We don’t eat no *huck, ptooey* Selkirk cakes around here.

            • I actually live in a small town and commute about that far each way daily. People always ask me; “Jeff, why on Earth don’t you just move to the city?” To which I reply, “Well, because then I’d have to live in the city.”

              Various family keep encouraging my wife and I to move down to Saratoga (population 1600), because the scenery is far more attractive than in Rawlins. It would be a 40 minute commute each way. I couldn’t handle that. A friend lives even further away, down in Encampment, and he says the same thing you do. I can appreciate it, but I couldn’t do it myself. And when I hear about how some people in Houston have to leave their homes at 4:30 AM to make it to work at 5:00 AM, or leave home at 5:00 AM and make it to work at 8:00 AM, I can only shake my head in wonder. I don’t particularly want to live in the big city, myself.

              • valkygrrl

                Before they rearranged the seats on the train to face inward rather than forward I always liked the 40 minute ride downtown. Put in my earbuds and stare out the window, very relaxing. Now when the train fills up I’m almost always face level with someone crotch and it’s awful.

        • valkygrrl

          But is it just cake? Is that the line? Only cake and nothing more?

          No, the cake is a lie, this is really about opening the door to redlining.

          • You get bonus points for the Portal reference.

          • So… Your thought on this is that Christian bakers are twirling their villain mustaches and thinking about new and exciting ways to disenfranchise the gays…. “First, we fight the battle where we assert our first amendment right to freedom of religion, so we don’t have to artistically partake in practices contrary to our faith… and then we can really get ’em!”

            People don’t think like that, it might…. *might* be an eventual outcome of a SCOTUS ruling that doesn’t necessarily allow it, but cracks the door to it… But the simpler, more realistic way of looking at it, is that it really *is* just about the cake. It’s why this topic hardly ever springs up around anything else.

            • valkygrrl

              I think they loved that the gays couldn’t be in the army, I think they loved sodomy laws. I think when those fell they decided to fight on marriage and now that they can’t use the laws to stop that they’re looking for some other method to stick it to the gays (and not in a good way.) Should they lose, they’ll just look for a new place to make a stand.

              I think there will be fight after fight over and over knocking them back and back and back again because of you give them an inch on this, they’ll try to take back marriage equity next and then sodomy and they will keep pushing until homosexuals are stoned outside the city gates at dawn.

              These are the people who helped fund the push in Uganda for the kill the gays bill.

              We’ve been through this before. No slavery? Well don’t let them vote. Oh fine they’ll vote-maybe, keep them form living and working near us, oh and redline so they don’t leave their assigned places, okay don’t let them marry any but their own kind, oh did we not let them vote? oops. Fine let them vote but I don’t have to hire them, but I don’t have to, but I don’t have to.

              Whatever stand they think they can make.

              • Chris

                Yes, that’s how the culture war works. No one has “villainous mustaches.” They have what they think are deeply held principles, but those principles are usually poorly thought through and contradictory. Deep down, it’s tribalism and resentment.

              • Funny how you don’t like all of the Democrat supported postures of the past, Val.

                We’ve been through this before. No slavery? Well don’t let them vote.

                The South was Democrat during and for years after the Civil War.

                Oh fine they’ll vote-maybe, keep them form living and working near us,

                Another Democrat tactic, used mostly in the North to prevent Blacks from moving there.

                … oh and redline so they don’t leave their assigned places,

                Democrat tactic, enforced by the KKK (a Democrat hate group)

                …okay don’t let them marry any but their own kind,

                Name a Republican who endorsed those laws… and I can name 20 Democrats who wrote them.

                …oh did we not let them vote? oops.” Finally a spot were both parties are at fault, at one time or another. The interesting thing is that the GOP endorsed Mr. King’s Civil Rights movement, while the Democrats were turning fire hoses on them. Look it up.

                Fine let them vote but I don’t have to hire them, but I don’t have to, but I don’t have to.” THAT ship has sailed. Racial discrimination in the workplace is a third rail topic, and employers go WAY out of their way to avoid the practice.

                I am not endorsing the GOP or Democrats on these, just stating history. Your comments are projection and a dishonest smear, seemingly made only for virtue signalling and as an unfair debate tactic.

                Other than that, love you like a sibling! Have a great weekend!

                • Chris

                  Why would you even post that comment, slick?

                  • The irony of the post modern progressive intrigues me. It also allow me to reveal fact where it goes against progressive revisionism of history and the rebranding of the righteous left.

                    Plus it was fun to tweak Val on a friday 🙂

                    • Chris

                      Except valky’s comment had nothing to do with partisan politics, and you’re the one revising history by being misleading. I wasn’t going to reply to the substance, because it’s a diversion; I’d hoped my comment would give you the opportunity to reassess and realize your partisan comment was out of place and misleading, since I’ve addressed this particular deception before. But since you’ve doubled down, I’m going to correct you again.

                      No one denies that Democrats were the party of racism up until the 1960s. Then the Southern Realignment occurred. I understand your position and the position of many conservatives on the Southern Realignment is one of denialism, but that flies in the face of objective reality in the present, in which we see:

                      –Mostly Republicans idealizing the South and the Confederacy and mostly Democrats wanting to take down monuments and symbols commemorating them
                      –The South moving from a reliable Democrat voting bloc to a reliable Republican voting bloc
                      –A vast majority of the black community voting for Democrats, not Republicans
                      –Republicans pushing for new voter restrictions and Democrats opposing them on the basis that they disproportionately affect black people
                      –Republicans like Steve King and Roy Moore constantly making racially insensitive comments about blacks
                      –Republicans being largely against movements like Black Lives Matter while Democrats being largely for them

                      None of these can be explained if the Southern Realignment did not happen. If you have alternate explanations–especially for why Southern Confederate sympathizers are now almost exclusively on the right, rather than the left–present them. Absent that, denialism on this subject is absurd. Your “Democrats used to be racist!” gotcha is a failure. Most Republicans are not racist, but Southern racists absolutely fled the Democratic party and moved to the Republican party after the Civil Rights Movement, and this fact is undeniable.

                    • I dispute your bullshit, Chris. I could take your post apart, bit by bit, but I will not waste my time on a progressive tactic. Just saying things does not make them so.

                    • Chris

                      I explained exactly how you could dispute it, slick: provide me an alternate explanation for the phenomena I described above.

                      You won’t do it because it’s indisputable. Southern racists migrated in droves from the Democratic party to the Republican party after the Civil Rights Movement. This is a fact. It is now Republicans, not Democrats, flying the Confederate flag.

                    • Your version of alternative facts has been rebutted over and over as a progressive narrative to whitewash the Democratic party. You will not listen, so I will not waste time to go over it again. Have the last word if you must: you are still wrong.

                      You label people racists (like progressives do) for ANY item they disagree with you on: the term has no meaning in 2017. You are lying, and you know this, which makes your stance unethical.

                      Which ends this conversation.

                    • Chris

                      Tex,

                      Your appeals to those previous conversations avoids the point entirely, which is that Southern racists are now a reliable demographic for the Republican Party, rather than the Democratic Party, making slickwilly’s irrelevant partisan diversion a misleading irrelevant partisan diversion.

                      I find your central thesis that the Southern Realignment was about more than race convincing; however, that doesn’t change the fact that Southern racists are now a reliably Republican voting bloc. (Oddly, you posit in one of those earlier threads that you would bet there are just as many KKK members who identify as Republicans as there are who identify as Democrats. This is bizarre to me; what policy is more important to present-day white supremacists than restricting further immigration? Which party is for further immigration restrictions and which one is not? This of course does not mean that further immigration restrictions are therefore wrong just because the KKK supports them. It also doesn’t mean Republicans are bad for supporting policies that the KKK also favors. It just means that it is highly unlikely that large numbers of the KKK support a party that is practicing, in the words of white supremacists, “white genocide” by importing more people of color into what they see as a “white” country.)

                      I also notice that in the conversation I was privy to, I posted this:

                      I think you’re underestimating the effects of the Realignment. It is Republicans, not Democrats, who now get reliable votes from the South. It is the Republicans, not Democrats, who defend flying the Confederate flag. It is Republicans, not Democrats, who oppose affirmative action. It is Republicans, not Democrats, who push voter ID laws that intentionally disenfranchise black voters. It is the Republicans, not Democrats, currently putting forth a candidate favored by the Klan.

                      Absolutely none of these are coincidences.

                      This is very similar to what I posted above, asking for an alternate explanation to the Southern Realignment to explain these phenomena. Then as now, you ignored these phenomena to act like there has been no shift at all in the two parties’ views on race. Yet you claim to have “taught” me something when you ignored my central question entirely.

                      Again: I’ve told you exactly how you could change my view, and it’s a rational request. If you have an alternate explanation for these phenomena, present it.

      • Don’t understate it, Valkygrrl. Here in Rawlins, it is 100 miles to the next town of comparable size (Laramie or Rock Springs), 120 miles to Casper or Riverton, 165 miles to Ft. Collins, 235 to Denver or Salt Lake.

        However, it should be noted that there are benefits to our isolation, like not having to deal with traffic, air pollution, long commutes to work (unless you really want to), and endless city skylines.

        But yes, it has worried my wife and I at times. Our local hospital can’t handle replacing a GJ-feeding tube, so we were forced to go to Denver or Salt Lake any time our daughter had an issue with it. We currently don’t have much in the way of options of OB/GYN, so we’re considering whether we go with the one we have local and aren’t sure about, or if we see if Casper or Laramie has someone we like better. As far as schools go, the only viable alternatives to the one elementary, one middle school, and one high school in town is take our kids 40 miles to Saratoga or home school.

        • valkygrrl

          I can’t bring myself to set foot in Laramie.

          Intellectually, I know a long time has passed, the people who did it were convicted and the people there even at the time were horrified but I can’t even drive past without thinking about it.

          • I’m very sorry to hear how much just passing by Laramie distresses you. If you don’t mind my asking, how often do you drive past, and did you have ties to Laramie before Matt Shepard was murdered?

            • valkygrrl

              I passed back and forth about 8 times in 2012-2013. It was between where I was, and where I needed to be and at the time travel by road was the better option than flying. I did my stopping in Little America. Haven’t been west of St Louis in the last couple years though.

              No ties. It was national news and some things just stick with people. I don’t want to go there, thinking about it the whole time, jumping at shadows.

              • Do you really think someone is just waiting for you to break down in that vicinity? People are not that way, or this would happen much more often.

                • valkygrrl

                  I’ve been culturally trained to think just that, and so have you or have you never heard comments about dark alleys?

                  No I don’t, on an intellectual level think I’d be in any particular danger in Laramie. On an emotional level, the place has bad associations, they’re front and center whenever I even hear the name. What do you want me to do? Go there and be upset and afraid when I don’t have to?

                  • Fair enough.

                    Many parents have been converted to the idea that kids cannot walk to the park by themselves: as if there are predators looking to harm them on every corner, and the mere presence of an adult makes them safe. This illogical commonly held view is a result (IMHO) of over-dramatized sensational reporting of such events, which FBI stats show are not more prevalent than 50 years ago.

                    Not suggesting you ‘face your fear’ or anything like that. I just find it interesting that you feel the way you do.

      • Rich in CT

        My question is meant to presuppose that the the couple could compel the vendor to serve at the wedding….

        For instance, if the vendor wished to remain in business, he must serve the couple, or face crippling fines for discrimination, etc, for refusing. He always has the option to leave the wedding industry to protect his religious prerogatives.

        No law or tort, however, could possibly prohibit the vendor from expressing his religious view that the wedding is immoral, nor his political view that the wedding should be unlawful. This expression is absolutely protected.

        My question is, does the couple actually want to hire a vendor who expresses such a negative view towards their union?

  3. “This, however, is the kind of case that spawned the old saying “Hard cases make bad law.” This one will, no matter how it comes out.”

    Bad law just makes more hard cases, too.

    Nice racket that Judicial Branch has, huh?

  4. At this point, I can only throw my hands up and hope the Supreme Court fleshes out the varying aspects of the case in their discussion and they find a way to get more than a 5-4 ruling one way or the other. They have surprised me multiple times over the years in how they are able to find that one truth, underlying facet that is pivotal to the entirety of the scenario. I’m rooting for SCOTUS on this one.

    With that said, my “what’s really going on here” thought is that I hate everyone in this case. The plaintiffs, the defendants, the commissions, the lower courts. Everyone. This is what happens when ethics is devoid from everyone and no one takes the high road. Sure, each side has some aspect of law on their side and they feel they are in the right, and they both probably are, but a little golden rule or ethics would have gone a long long way here.

    • With that said, my “what’s really going on here” thought is that I hate everyone in this case. The plaintiffs, the defendants, the commissions, the lower courts. Everyone.

      My sentiments exactly, Tim. Perfectly stated.

      • Agreed. ‘A tale of two Asses’

        -Hand the guys a cake, for crying out loud. Plain white, no decorations.

        -Why sue over this? Bully, much?

        A little politeness on both sides, and this never happens.

        • philk57

          My understanding is that the baker did offer to sell them a “non-customized” cake, but they wanted a custom cake.

          • He offered to sell them anything but a wedding cake.

            • They should have asked for a giant 6 layer cake to celebrate their love of rainbows. From bottom to top: Red, Orange, Yellow, Green, Blue, Purple. To add legitimacy to their request, plan it for April 3rd, which is National Find A Rainbow Day.

              • Except I don’t think they really wanted a cake. I think they wanted a fight.

                • dragin_dragon

                  BINGO!!!!

                  • dragin_dragon

                    To expand on that, I think they knew going into that, that the baker was going to refuse them. Thus, the SCOTUS case. Personally, I am an non-believer, but I also think freedom of religious practice trumps (no pun) sexual preference and is certainly more basic.

                    • Chris

                      In…what way? Sexual preference, unlike religion, isn’t voluntarily chosen.

                      But they are both crucial to one’s identity, and should both be protected. Meaning anti-Christian bigots can’t refuse service to Christians, and anti-gay bigots can’t refuse service to gays. Not even if they think they have a really good reason. Not even if they think God wants them to discriminate.

                    • Selling a product can’t plausibly be called the practice of religion.

                    • dragin_dragon

                      True. But being asked to modify his product such that it violates his religious beliefs MIGHT be a consideration.

                    • How does our Establishment Clause jurisprudence factor into this?

                      Is it implicated if the state bakes cakes for the public as a public benefit, and some receipients choose to use them to celebrate a baptism or a bar mitzvah?

                      Can the state bake cakes for baptisms or bar mitzvahs?

                    • dragin_dragon

                      Michael, even I know the answer to that one. The state cannot, if fact, participate in ANY WAY in religious ceremonies. Thus…no cakes.

                    • Then it lacks constitutional authority to require privaye individuals to do the same.

                    • dragin_dragon

                      Be my guess. Precisely. However, you and Jack are attorneys…I’m a psychologist.

                    • Chris

                      Agreed, but he wasn’t asked to do that.

                    • valkygrrl

                      Sexual orientation Chris, not preference.

                    • Thank-you. Eliminating “preference” would stop a lot of public confusion, especially from the religious side. It takes volition and choice to fairly constitute sin…or should.

                    • Jack,

                      I’m not sure that I see how eliminating the term preference in favor of orientation would stop confusion. To me, the terms speak to the same thing, but I guess I’ll back up a bit.

                      From my point of view, there are three interrelated but distinct matters in question. First, there is the person; second, the desire; and third the action. At least on the Catholic side of things, neither the person nor the desire are sinful. A person is good, and a desire is simply a desire. It is acting upon that desire where choice comes into play, and where the question of sinfulness enters. This remains the same no matter what desire we’re talking about, and what choices we make regarding that desire.

                      When speaking of “preference” and “orientation”, in my understanding of things, these are just two terms referring to the desire. Maybe I need a little clarification, but at this point, I don’t see how changing terms would eliminate public confusion.

                      On a complete different note, as a thought experiment, suppose that two straight men decided they wanted to get legally married (say, for tax reasons or some other benefit), and approached our baker asking for a wedding cake. Let us assume that the straight men are up front about being straight, and the baker understands and believes them to be straight. He then declines to give them a wedding cake, on the grounds that he will not support a wedding between two men. What does the law say about that? (This popped into my head lying in bed last night, so if you think this is stupid, just dub it as such, and I won’t worry about it.)

                    • Preference implies a fair choice. And while a gay man can choose never to express his sexuality, or live life in a heterosexual relationship, refusing to engage in gay sex is like an alcoholic refusing to drink. That’s a choice, but it’s not a preference. Gays do not just decide they prefer to to be gay. They are gay, just as alcoholics don’t have control over their desire to drink. There is little legitimate dispute about this. Gays are born gay. Thus they cannot be “fixed” or “cured” and the very words suggest that gays have a “preference” after being given a fair choice in the matter.

                      As I said above, the choice of rejecting your own make-up and living a lie is not a preference, and being who you are should not be seen as a choice based on a preference. When a gay person decides to live as if he were not, that comes of fear, or avoidance of negative non-ethical considerations.

                      The “preference” myth is what allows the sin argument to persist. God says this is wrong, and these immoral people decided in defiance, given a choice of light and dark, to be sinful.

                      Orientation provides necessary context. That’s how gays roll, it isn’t volitional, and they should not be condemned because God made them the way they are.

                    • As I said above, the choice of rejecting your own make-up and living a lie is not a preference, and being who you are should not be seen as a choice based on a preference. When a gay person decides to live as if he were not, that comes of fear, or avoidance of negative non-ethical considerations.

                      How is it living a lie to refuse to have gay sex?

                    • So buggery is a sin, but mere desire for compansionship with the same sex is not.

                      Got it.

                    • Well that’s right, you know.

                    • Chris

                      My mistake; I was relying on the terminology dragin_dragon used.

                    • Ryan – In that “2 straight” scenario where they are upfront, the Baker would refuse (in a logical world). 1) They probably wouldn’t go for an expensive cake, as his are, but let’s assume they do go for it because it’s a part of their “sham”. 2) The baker knowing that the marriage is a sham, would have to know it’s a fraud against the government and unethical to be complicit. 3) Even if he didn’t object as he should in #2, you might expect him to refuse because it further denigrates his view of “marriage”. Just another mockery of marriage and another way for him to stand up for what he believes marriage is: between a man and a woman.

                      When do we get the ruling, May? This thread and topic are just going to keep going until then, huh?

                • Except I don’t think they really wanted a cake. I think they wanted a fight.

                  I suppose I wasn’t fair to them because we all fantasize and theorize about how they might (or might have) “circumvent(ed)” his policy. Which in turn means that this comment isn’t fair as well, unfortunately. I know I said I hate everyone in this case, but that’s probably unfair as well considering some of the facts.

                  This was a 20-second conversation more than 5 years ago. He declined them service when he found out the purpose of the cake and they left. People on FB told them it was against the law and to file a complaint with the appropriate regulator, which they did. What they also did was find a different baker and moved on with their lives.

                  I think it would be fair to say that they are the unwitting passengers for the cake-shop’s unending appeals, because the cake-shop keeps losing. If it had gone his way just once, we could know if the customers would have contributed an appeal, but that hasn’t been needed. Even then, the appeal would probably be brought by the State on their behalf.

  5. Inquiring Mind

    Jack, some facts speak very clearly to me:
    1. They wanted a custom design created for them. One that was beyond the line of what Phillips, as an artist, was comfortable creating. Then,. that couple sought to use the power of the state to punish him for not wanting to express a message.

    If Colorado wins, then where does that coerced expression stop? How can we be sure whatever line is drawn would stand.

    2. The disparate treatment between Masterpiece Cakeshop and Acuzar bakery (among others). At a bare minimum, there was viewpoint discrimination by agents of the state of Colorado. Or, it could be the hostility towards the religious beliefs of Phillips.

    Either way, the present state of affairs in Colorado is that of a First Amendment apartheid. The protection of free speech and the free exercise of religion depends on whether the governments favor your particular category.

    3. The progressive hostility towards certain religions, for whatever reason, now renders their push for SOGI laws very suspect. When one major proponent says the purpose is to “punish the wicked,” I have no reason to trust in fair-minded enforcement.

    I hope Kennedy is vote number 5 FOR Phillips in this regard. Upholding Colorado’s de facto First Amendment apartheid is a recipe for disaster, and Ann Althouse is wrong in one regard: Even if the “progressives” win this case, they will feel a sense of vindication, and continue to push harder.

    • If Colorado wins, then where does that coerced expression stop? How can we be sure whatever line is drawn would stand.

      One might think it does not stop. Bakers would have to bake cakes for Westboro Baptist weddings or militant Islamist weddings, for example. Principled supporters of this law would argue that these groups must be protected, or no one would be, or could be.

      But your quote below answers this.

      The disparate treatment between Masterpiece Cakeshop and Acuzar bakery (among others). At a bare minimum, there was viewpoint discrimination by agents of the state of Colorado. Or, it could be the hostility towards the religious beliefs of Phillips.

      Indeed, see this brief.

      http://www.scotusblog.com/wp-content/uploads/2017/09/16-111-ts.pdf

      But the Commission’s change of heart appears to
      be litigation posturing since it continues to take its more extreme position in 303 Creative, LLC v. Elenis,No. 16-cv-02372-MSK-CBS (D. Colo.) (excerpts of relevant filings reprinted in Addendum). There, a
      custom website designer named Lorie Smith seeks an injunction ensuring that the Commission cannot compel her to design websites that express ideas (such as support for same-sex marriage) in conflict with her
      conscience. See Addendum at 12a-20a (reciting relevant stipulated facts from the case, including the stipulation that all Smith’s “website designs are
      expressive in nature, as they contain images, words,
      symbols, and other modes of expression”). The Commission has argued that if Smith creates websites for weddings, CADA requires her to write
      words and design images that celebrate same-sex
      marriages. Addendum at 2a-3a. The Commission justifies its position by insisting that Smith’s “website design service is … not constitutionally protected speech.” Addendum at 6a.

      In short, the line is whether or not the discriminatory act offends some group the Commission favors. This can not stand, even if the state could in theory require bakers to bake cakes for same-sex weddings, Westboro Baptist weddings, or militant Islamist weddings.

      • Inquiring Mind

        As I said earlier… Colorado is trying to create a state of First Amendment apartheid. That has to be shut down, no matter the cost.

    • Chris

      2. The disparate treatment between Masterpiece Cakeshop and Acuzar bakery (among others). At a bare minimum, there was viewpoint discrimination by agents of the state of Colorado. Or, it could be the hostility towards the religious beliefs of Phillips.

      Either way, the present state of affairs in Colorado is that of a First Amendment apartheid. The protection of free speech and the free exercise of religion depends on whether the governments favor your particular category.

      You’re just wrong, and your comparison is stupid.

      Find me a case where a court ruled that a baker can be compelled to write “There is no God,” or “Jesus Sucks,” and your claim that there is “disparate treatment” will make sense. Alternately, find me a case where it was ruled that an anti-Christian baker doesn’t have to bake a cake for two Christians getting married.

      Until you can show me either of those, you are comparing apples to oranges. There is no disparate treatment in the law requiring bakers to serve the same product to all classes of people, and the law *not* requiring bakers to put bigoted messages of damnation on the cakes they bake. The former protects both gays and Christians. So does the latter.

      • The defendant alleges disparate treatment.

        http://www.scotusblog.com/wp-content/uploads/2017/09/16-111-ts.pdf

        But the Commission’s change of heart appears to
        be litigation posturing since it continues to take its more extreme position in 303 Creative, LLC v. Elenis,No. 16-cv-02372-MSK-CBS (D. Colo.) (excerpts of relevant filings reprinted in Addendum). There, a
        custom website designer named Lorie Smith seeks an injunction ensuring that the Commission cannot compel her to design websites that express ideas (such as support for same-sex marriage) in conflict with her
        conscience. See Addendum at 12a-20a (reciting relevant stipulated facts from the case, including the stipulation that all Smith’s “website designs are
        expressive in nature, as they contain images, words,
        symbols, and other modes of expression”). The Commission has argued that if Smith creates websites for weddings, CADA requires her to write
        words and design images that celebrate same-sex
        marriages
        . Addendum at 2a-3a. The Commission justifies its position by insisting that Smith’s “website design service is … not constitutionally protected speech.” Addendum at 6a.

      • “Find me a case where a court ruled that a baker can be compelled to write “There is no God,” or “Jesus Sucks,” and your claim that there is “disparate treatment” will make sense.”

        The funny thing is that an apples to apples comparison is so foreign that you couldn’t actually think of one. I mean, really…. What does that have to do with anything? The bakers aren’t offering a “Die in a fire, fags” cake instead of a wedding cake, they’re saying they don’t want to participate in a gay wedding.

        Your second try was better though,

        “Alternately, find me a case where it was ruled that an anti-Christian baker doesn’t have to bake a cake for two Christians getting married.”

        Find me a case where a court ruled that they had to.

        I mean… It would be…. really novel, I think, for a couple of things to happen to make this scenario real. First off, in a country that is more than 70% Christian, you’d have to find someone who 1) Was not Christian, 2) Hates Christians, and 3)Opened a business that bakes wedding cakes.Then, they’d have to find a Christian willing to give money for someone to create some kind of pagan wedding cake for their Christian ceremony, have the bakery owner turn them down, and have the Christian be litigious enough to actually take it to court.

        • Chris

          I don’t know if you’re genuinely not getting my point, or if you’re just avoiding it.

          Inquiring Mind said that the fact that bakers can be forced to serve wedding cakes to all customers, but can’t be forced to write that a certain class of people are detestable sinners, is evidence of disparate treatment.

          It clearly isn’t.

          Disparate treatment would be if bakers could be forced to serve wedding cakes to gays but not to Christians, or if they could be forced to write anti-Christian messages but not anti-gay messages. Neither is true.

          I mean… It would be…. really novel, I think, for a couple of things to happen to make this scenario real. First off, in a country that is more than 70% Christian, you’d have to find someone who 1) Was not Christian, 2) Hates Christians, and 3)Opened a business that bakes wedding cakes.Then, they’d have to find a Christian willing to give money for someone to create some kind of pagan wedding cake for their Christian ceremony, have the bakery owner turn them down, and have the Christian be litigious enough to actually take it to court.

          Yes, thank you for making my point that the level of anti-Christian discrimination in this country is so insignificant as to make Inquiring Mind’s claim of disparate treatment nothing but piss-baby whining.

          • I’m not sure that I “avoided it” so much as you didn’t make it. I was unaware of the Azucar bakery debacle, and you didn’t quote the paragraph it was referred to in.

            Having read up, Yeah, but I don’t think it’s as slam dunk as you seem to think… If you’re of a mindset that your religion is important to you, and you are forced to make something that is anathemical and offensive to that religion… Remember that freedom of Religion is protected by the first amendment… then it’s really not so different from the mindset of the gay person who sees the slurr covered cake as anathemical and offensive to himself. In this case, we remember: Sexual orientation and equality under the law is protected by the fourteenth amendment. So from the perspective of the baker these situations are probably equally offensive. If there’s a difference, it’s in the legal protection of the acts involved. There IS a disparate treatment there, we’re really arguing on whether that disparate treatment is warranted.

            “Yes, thank you for making my point that the level of anti-Christian discrimination in this country is so insignificant as to make Inquiring Mind’s claim of disparate treatment nothing but piss-baby whining”

            You’re welcome. But what I think you need to come to terms with is that the left seems to be taking a salted earth, by any means necessary approach to equality. While that scenario is novel for many reasons, I don’t think an anti-Christian sentiment is the most outrageous thing in it.

            • “I’m not sure that I “avoided it” so much as you didn’t make it. I was unaware of the Azucar bakery debacle, and you didn’t quote the paragraph it was referred to in.”

              Gah. You did. I just missed it. Mea culpa.

              • Chris

                No worries. To be fair, I had to look up what IQ was talking about in reference to Acuzar Bakery.

                Having read up, Yeah, but I don’t think it’s as slam dunk as you seem to think… If you’re of a mindset that your religion is important to you, and you are forced to make something that is anathemical and offensive to that religion… Remember that freedom of Religion is protected by the first amendment… then it’s really not so different from the mindset of the gay person who sees the slurr covered cake as anathemical and offensive to himself. In this case, we remember: Sexual orientation and equality under the law is protected by the fourteenth amendment. So from the perspective of the baker these situations are probably equally offensive. If there’s a difference, it’s in the legal protection of the acts involved. There IS a disparate treatment there, we’re really arguing on whether that disparate treatment is warranted.

                It doesn’t really matter that someone might be equally offended having to bake a cake for a gay wedding as another person might be having to write “God Hates Fags.” One is compelled expression and one isn’t.

                “Disparate treatment” implies that a baker could be forced to write “Christians are Stupid,” or that a baker could refuse to bake a cake for a Christian wedding. This isn’t true. The law applies equally to everyone, and regardless of whether some people hate the law more than others, there are no actual disproportionate consequences among different groups. If the law allowed Masterpiece Bakery to discriminate, that actually would lead to disparate impact, because as you’ve pointed out, it’s far more likely a gay person will face discrimination in a bakery than a Christian will. What you’re describing is just some people being mad about having to serve customers they don’t like. That’s not disparate treatment.

  6. Mrs. Q

    When my wife & I were looking for wedding rings we stopped at a place where the owner after talking to us went on a strange rant about some NFL player who came out gay. The owner went so far as to physically mimic kissing another guy in telling his story, and shivering with wide toothed disgust at the thought. He didn’t say he wouldn’t sell us a ring, but obviously we didn’t want one from his store & the feeling was mutual.

    We could have gone on Yelp and given the store a bad review or complain to someone who could “go after” him politically, but at the end of the day our relationship didn’t (doesn’t) need others affirmation. We were certainly hurt – not by his thoughts but the manner in which he shared his thoughts. Yet we picked our proverbial battle and let it go. Why? because we too are Christian and know no one person can ever really give us what we need. Hurt feelings can be gotten over and forgiveness heals wounds far faster than enacting revenge because someone doesn’t agree with us or what we do.

    Like Steve-O mentioned we have to ask what will be next. I don’t believe suddenly we’ll see “No Homo’s Allowed” signs on shops. And ultimately that’s not what I believe this case is about. Also I’m not convinced that these bakers are bigots either. Instead I suspect what this case is ultimately about religion and thought police. Orthodox Muslims having to make non-Halal foods, Jewish deli’s selling pork, Christians making Satanic themed confections. I’d rather see a few victim-minded SJW’s get butt hurt than force others to sign off on what are ultimately another persons *private* beliefs. Forcing business owners to think as we wish sets a dangerous precedent while walking away from a shop not being affirmed only requires one to find another place to go. And honestly it’s fairly easy to find smug leftist affirmation at businesses. Yes…even in small towns too.

    If love is really love than that means we love our enemies and don’t force them to be like us and hide behind press hungry lawyers and the ACLU to do it. We have patience and use the power of the free market to spend money at places that *appear* to be ideologically similar and we LIVE OUR OWN LIVES.

    The cake shop didn’t pursue a lawsuit, the gays did and they did it I believe out of spite, revenge, and a desire for control. The cake shop didn’t ruin their wedding, the litigious couple ruined their own by believing they must be affirmed by these people. If that’s their version of love, I’d take a birthday cake from Masterpiece Cakeshop long before I attended a wedding of any couple that acted like that. Honesty and integrity matter more than identity politics (to me) and ultimately if a wedding is about identity politics than it’s clear love isn’t so much about love after all.

  7. Art is notoriously difficult to define. To that list, I could argue for the addition of gardeners, landscapers, bathroom floor tilers, interior designers, architects, website designers, marketing consultants, and on and on. Is a sign-maker an artist? A printer?

    This is a feature, not a fault, of the First Amendment. Courts must make findings of fact based on evidence and testimony. Courts did in fact do just that in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 91995) and Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006).

    In its amicus brief, the Department of Justice spent a total of six paragraphs detailing how public accommodations laws do not ordinarily implicate freedom of expression.

    Justice Kennedy became involved in some of this discussion about where to draw the lines — the ready-made/custom cake distinction, the speech/conduct distinction, and the distinction between selling a cake in a shop and supervising the cutting of a cake at a ceremony…

    It is a distinction that must be made.

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

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

    Further guiding this issue is our Establishment Clause jurisprudence. While states can not discriminate against religion, neither can states provide direct support for religion. If the state offered sacks of flour, recycled rubber, blank recordable CDs, or sign-making materials to the general population, it can not deny such because the receipient wants to use them for religious purposes. See Trinity Lutheran Church v. Comer, No. 15-557 (Jun. 26, 2017) However, the state, with extremely limited exceptions, can not design a church, nor priestly vestments, nor signs for a religious picket. And it is obvious that the state can not make (let alone design) a cake to celebrate a baptism or a bar mitzvah, (which is different from making cakes for the general population)

    A corrollary to this is the state can not require private individuals to do what it itself is forbidden to do. as such, it can no more require private individuals to support religious ceremonies any more than it can require private schools to practice racial segregation. See Brown v. Board of Education, 347 U.S. 483 (1954).

    And thus, this conclusion is inescapable. Because the state can not make (let alone design) a cake to celebrate a baptism or a bar mitzvah, it can not require private individuals to do so. And because the state may not require private individuals to make (let alone design) a cake to celebrate a baptism or a bar mitzvah, it may not require private individuals to make (let alone design) a cake for a same-sex wedding. In this context, there is no difference between a baptism, a bar mitzvah, a same-sex wedding, or a picket.

    Kennedy seemed troubled not only about compelling the cake-maker to make cakes for same-sex weddings but also about requiring him to teach his employees that his religion is subordinate to the dictates of worldly government….

    It seems Kennedy wants to rule on as narrow grounds as possible. He seems to want to avoid either a discrimination free-for-all, or requiring sign makers to make “God Hates Fags” signs for the Westboro Baptist Church.

    Indeed, Masterpiece Cakeshop had , in fact, alleged that the law is not neutral as applied. Laws against discrimination must be evenly applied, or else they fail their purpose. To be clear, anti-discrimination policies can not be a pretext for suppressing unpopular viewpoints. See Ward v. Polite, 667 F.3d 727, 735 (6th Cir. 2012) And the defendant has argued that this is what is happening. He argued that “[t]he Colorado Court of Appeals has established,and the Commission has acknowledged, that cake
    artists may decline requests for cakes with “designs or messages” that they consider objectionable” and “the court below said that the other cake artists could refuse an order because of “the offensive nature of the requested message.” Pet.App.20a n.8. But it is undisputed that
    Phillips declined Craig and Mullins’s request because he too did not want to express ideas that offend his religious convictions about marriage. ” And yet, he also points out that “The Commission has argued that if Smith creates websites for weddings, CADA requires her to write words and design images that celebrate same-sex marriages

    This would be an independent basis for reversal, even if a state could require sign makers to make “God Hates Fags” signs for the Westboro Baptist Church.

  8. RWE

    Jack,
    “DON’T MAKE ME COME UP THERE!”, my mom would yell from the bottom of the stairs. My siblings and I could get pretty rowdy, but we knew we did NOT want my mother to come upstairs.
    Likely exhausted from working and taking care of us, the home and my father, we knew that making her walk up the stairs was not going to make her mood any better. We also knew that there was not going to be any attempt to figure out who was right and who was wrong. As far as she was concerned we were all wrong.
    And now we have a story about the children bickering about a cake. Except this time, instead of yelling “Don’t make me come up there”, mom is taking statements and is going to decree who is right.
    Is this really what we wanted? Another rule, another set of victim groups, another way to divide us?
    People have the right to act like idiots. They should be the ones to have to live with the consequences, not us. One or both of these sides should have backed down before it got to this level of idiocy.
    I don’t know how it’s going to affect us, but this is going to be yet another example of unintended consequences being having more effect than the actual ruling meant.
    By the way, my mother, while elderly is still alive, and if it would help I’ll gladly send her over to apply some “Don’t make me come up there” discipline.

    • But this is how things are going to go: Mobs will destroy the disfavored “bigots” and their businesses, family members, private property, reputations, employability, opportunities to access the Internet and health care, etc. – while the favored bigots will BE those mobs, until sufficient mobs can be constituted to counter those mobs on those mobs’ terms. (Cue Godfather music)

      • When the Mobs get physical (as they did in Charlotte) and the law does nothing, the other side gets the message very clear: the law is two tiered.

        And yet the first time a right leaning mob gets violent (even in self defense) watch it be all their fault.

        We have seen this already. We are sitting on a powder keg created by progressives. They won’t like the results when push becomes shove.

        • dragin_dragon

          And if you look into the middle distance, you can see the smoke from the rapidly burning powder trail leading to the keg. Believe me, slick…NOBODY is going to like those results.

  9. Regarding the two slippery slopes, I’m more concerned about the slippery slope posed by forcing the business owners to serve whoever walks in, than the one posed by the “right to refuse service”.

    First, discrimination is no longer socially acceptable like it once was. If some establishment, in this day and age, were to say, refuse to serve blacks, it doesn’t matter if the law allows it or not. Their story will go up on Yelp, Facebook, etc. and they would be shamed out of business.

    On the other hand, we ALREADY have people who abuse the notion “The customer is always right”, as anyone in customer service can tell you. Giving businesses the right to refuse service would give them the capacity to toss out the jerks, without having to worry abou the jerks suing them.

    • So a citizen humiliated, harmed and inconvenienced by legal prejudice can take solace in Yelp? Good lord. That’s a lot of help when only one pharamacy is open and your kid is sick.

      • Why would a pharmacy turn a customer like that away and risk the wrath of their community, and social media? You yourself have covered what happens when a customer claims a business mistreated them. I can only imagine the collective outrage for a pharmacy that was that stupid, and so could the pharmacist.

        • Why would anyone act like an asshole? Why would there be racism and bigotry at all?
          Be serious.

          • Because some people like to step on others when they think can get away with it. Again, social values used to support open discrimination, which created convenient targets for those who like to put others down, now the social winds have changed.

            The far left has long maintained that there are hordes of racist, sexist, homophobic people out there just WAITING to return to the glory days of lynching, separate bathrooms, etc. and of course they’ve seized on the election of Trump as a sign those days are about to return. I’ve never believed that, and I’m sure you don’t either. Most people who would put up signs like “white people only” or “no gays” are either retired, deceased, or converted. Any holdovers will have learned to keep their bigotry under wraps, lest they be outed and exposed to public ridicule.

            Like you said, either side’s victory creates a slippery slope; I’m of the opinion that the baker’s side is less slippery today than it would have been about 40-50 years ago.

            • valkygrrl

              Most people who would put up signs like “white people only” or “no gays” are either retired, deceased, or converted.

              https://www.huffingtonpost.com/2011/12/15/debra-dodd-fired_n_1152356.html

              • Junkmailfolder

                There will always be people who will find anything to blame other than themselves for their problems. I recently fired an employee for cause because she was committing some serious policy violations. She doesn’t see it that way–she’s convinced I was out to get her from the start–and nothing will convince her that her termination was legitimate.

                Could her story be legitimate? Of course, but even then, no one is arguing that racism, sexism, etc., has been completely eliminated. The very quotation you are referencing starts with the word “most.”

                • valkygrrl

                  But they don’t need to be a majority do they? There just have to be enough in the right (or wrong) places.

                  There’s only one Roy Moore but he sure manages to make a lot of people on both sides of the aisle miserable because there are enough people willing to go along.

  10. Mike

    Any business should be free to tell any wannabe customer that their trade is unwanted for any reason or none.

    • What color is the sky in your world, Mike? I think the 1964 Civil Rights Act properly put that archaic notion to bed, but it’s good to see a nearly extinct species still roams the earth, deluded as it is.

      • Sue Dunim

        While I agree with you Jack, it is unethical imho to dismiss Mike’s view without review and counterargument. It was expressed clearly and concisely without ad hominem or ridicule. It has an obvious constitutional basis in the concept of “free association”.

        I’ll make a start at counterargument.

        It doesn’t work. History has shown that if the right of free association is taken to extremes, it always and necessarily causes violation of other rights. These other rights, if violated, lead to riot and civil war.

        This argument is not based on philosophical correctness, but practicality.

        I find that troubling. I also see no way around it. I won’t mock any view to the contrary, merely show that the consequences of adopting those views amount to a suicide pact for the nation. I also won’t pretend that contrary views don’t have firm constitutional grounds.

        • That’s admirable of you. But we’ve had that debate as a nation, and I regard the 200 years prior to 1964 as res ipsa loquitur. At what point does an assertion evince such wilful ignorance or obstinacy that it does not warrant a respectful rebuttal? Maybe I’m too broad in my categorization, but denials of evolution, the wrongfulness of slavery, the equality of genders, the evil of child sex, the importance of kindness to animals, and several other issues I regard as signature significance for cognitive damage and ethical bankruptcy.

          Correct: it doesn’t work. But a minimal familiarity with Jim Crow and US history makes it painfully obvious it doesn’t work, as does the common sense God gave a vole.

          • I’d hold off on judging people’s character based on what they believe. I’ve talked with people who believe bizarre things and still turn out to be decent folk. As a nurture mindset user, I treat all ignorant assertions as warranting respectful rebuttal, and am readily equipped to provide one.

            A person can’t control the environment they grow up in, and that shapes their beliefs. I will, however, start to judge people based on how they respond to respectful arguments that contradict their beliefs. Of course, that, too, is shaped by their environment. Most people have a stunted perception mindset due to a woefully inadequate education system, and there are limits to how much I can compensate for that with nurture mindset in just one conversation. That’s why I’m just skipping the blame phase entirely (after all, what kind of idiot would choose to be an idiot?), and moving on to the grandiose plans to change the world for the better.

            • That’s an ethical perspective, to be sure. However, there are limited hours in a lifetime. My efforts are not well spent explaining basic ethical principles to someone whose comprehension and perspective are that limited.

              • That’s entirely fair. I have no life and no one who depends on me, so I don’t face the same limits on explaining things to people. To me, this is all useful practice, since I’ll eventually need to explain philosophy from the ground up to all of humanity anyway. To a certain extent it’s also a matter of pride for me.

                • Your squid tongue is snaking into your crypto-cheek again. I salute you for placing higher priority on taking the time, wasted though it might be, to try to explain matters to those neither inclined nor capable of processing them.I’m serious. But we all have to spend our inadequate seconds of existence as we think reasonable.

                  • It was clear I was being self-deprecating, right?

                    If I actually thought that people were both incapable of managing the world competently and of admitting their incompetence, I’d be preparing for a more hostile takeover. It’s still theoretically an option.

              • I still think that insults are a highly counterproductive way to indicate that an argument isn’t worth your time, though. Instead of going to look up the answers themselves, they’ll just assume that you don’t have anything to back up your arguments. Ignorant people frequently hide behind arrogance and insults, after all, so it’s hard to tell intelligent but condescending people apart from them.

          • We have had laws against religious discrimination for fifty years.

            To my knowledge, no court has ever interpreted such laws to require tailors to design priestly vestments. No court has ever interpreted these laws to require architects to design churches, mosques, synagogues, or temples. and most significantly to this case, no court has ever interpreted these laws to require bakers to bake cakes for baptisms or bar mitzvahs.

          • Matthew B

            Jack,

            I’ve always looked at the “public accommodations” part of the 1964 civil rights act as a necessary evil. It’s no big deal for giant corporations being regulated, but not so much as you descend into the sole proprietorship realm. As you point out, the Jim Crow era points out the need for the law. As a Black American in the 1950’s, going about your life was an impossibility. Where you could live, stay when traveling, eat when traveling, and so on was severely limited. The ability to conduct your life in so many ways was severely hampered. Given how severe the impact was, action was needed. But that action comes at a severe cost. What you end up with is the government getting into the personal business of the small business owner to an onerous degree.

            Maybe I’m off base, too naive and optimistic, but I have my doubts that things are as bad now as they were 53 years ago. Take away the civil rights act, and really, how many places would actually behave badly? I think what’s happened is now we’re into the territory where what SJW types want is the freedom from offense, not the ability to function in their lives.

            In this case, as more than one poster has pointed out, all involved are assholes. The cake shop is in a suburb of Denver, a rather liberal place. It’s not like they couple didn’t have other options, they want to stuff it to this guy because they’re offended. In a liberal city of the size, there are no doubt many other high quality options.

            So what we have here is a first amendment, constitutional rights question vs. a federal and a state statute commerce based set of statutes. In 1964 we (well not, me, I wasn’t born…) had to weigh those under very different conditions. In the time since, we’ve just accepted the intrusion as the norm. I think it’s about time we re-weigh in light of the evolution of society since then.

            Another factor to consider is something I’ve pondered for a while. Is it a good thing for racists to be driven underground? I’d posit no, it’s not. What we’ve accomplished is that in all facets of life, racists have to hide their views. The problem with that is that we can’t tell the racists from the non-racists. Those that are racist will still get their digs in a multitude of passive aggressive ways. They’ll fight any way they can, just being sneaky about it. Where that hurts is it leaves minorities unable to tell people apart. When few are openly racist, it leaves minorities questioning every interaction for the hidden motive. I think this is a large part of where the “all whites are racist” is coming from because there is a percentage that are, and no way to tell them apart.

            I also don’t want to be in business with anyone who is only serving me in fear of the government. It ranges from: I’d rather have a restaurant owner tell me to get out vs. one that will spit if my food on through to I want the lawyer or doctor who’s really on my side instead of phoning it in. I want to know who the assholes are so I can take my business where I’m wanted.

            • As with drug legalization, the government often makes an important moral/ethical statement that sets cultural values when it makes conduct illegal, and when it makes conduct that was illegal legal. Then the message is “this is OK now.” But racism isn’t OK, and removing the public accommodations law would encourage not just racist restrictions, but all-male bars, all-male clubs, no unmarried couples pharmacies, progressive only restaurants, and more. You don’t want to live in that kind of tribal America, and neither do I.

              • Matthew B

                Speak for yourself Jack. I don’t disrespect your position, as always you don’t react blindly and think things through. You bring up drug legalization, and I’m in the opposite camp there too. I’m quite pro legalization and view prohibition in nearly all forms as more trouble than good. When I say I’m libertarian, I really mean it.

                I’m not looking to derail the topic as this is yet another passionate topic so I’ll bow out at that.

                • “Speak for yourself Jack.”

                  i don’t even know what you think this means. It is easily demonstrable that when the government says something that was illegal isn’t, the public takes that as approval and endorsement. The polls on drug legalization support that conclusion as well. Abortion. There are many examples.

                  The fact that I think legalizing drugs is certifiably insane and that I will be proven right after the genie is out of the bottle and has trashed our society is irrelevant to the statement I made in the comment, which is correct. Whe the government flip-flops, unhealthy, irresponsible conduct is deemed endorsed.

                  Libertarians choose to live and think in a world where human nature is a myth. Like pacifism and communism, it’s just ideology, great on paper, fatally flawed in practice. I respect it as an intellectual exercise, but find it pretty useless for responsible government—-except as a counter-balance to statists. That is valuable.

      • Inquiring Mind

        Jack, the disparate enforcement of the “public accommodations” line, as well as the flat-out refusal of progressives to support the investigation of African-Americans who violate the Voting Rights Act are some serious warning signs that these laws are being weaponized.

        If that is not halted – and if there is not a significant reversal of this, the entire concept of public accommodations law will become another partisan issue.

        • Chris

          Jack, the disparate enforcement of the “public accommodations” line,

          You’ve shown no evidence of disparate enforcement other than your comparison of Masterpiece with Azucar. Which wasn’t disparate enforcement, as the two cases are in no way similar.

          as well as the flat-out refusal of progressives to support the investigation of African-Americans who violate the Voting Rights Act

          Example? The most prominent one I can think of was the Black Panther voter intimidation in 2008…which was investigated and prosecuted.

          • The Azucar case really is easily distinguishable. They are superficially similar, cakes/ weddings/ lawsuits—but not enough to provide any support for Masterpiece. There’s no disparate enforcement in evidence.

        • And the purpose of these laws would be defeated.

  11. There’s an obvious question here (well, several) that occurs to me: What if I walked into the shop and asked for a wedding cake for no reason at all? Nobody’s getting married; I just want the cake. Is it against his religion to make that style of cake for anything other than weddings? Do I have to show him a marriage license? I’m an atheist; will he refuse to acknowledge my marriage because you can’t have marriage without a god? Does only the Christian deity count for a “real” marriage?

    I would argue that the artistic quality of the cake has nothing to do with who is getting married, or if there’s even a marriage at all–at least, as far as religion is concerned. If I asked someone to draw me a picture of a bird, they don’t have to know anything about me in order to make it. Their art doesn’t have anything to do with me, and they are not expressing any objectionable ideas. They’re not endorsing me in any way by taking me on as a customer. Therefore, this isn’t like refusing to make a swastika cake. This is like refusing to sell a cake to Nazis. (Yes, Nazis should be able to buy cake like anyone else. Preventing them from doing so is just bullying, and won’t teach them anything except more hate. How will they learn how to appreciate different people if only other Nazis talk to them?)

    Even if the cake was specially designed, the baker didn’t refuse to create art in support of a union he didn’t believe in; he refused to sell art because he didn’t like the event it would be used for. If it were another medium, I could possibly understand that, but cakes just get eaten and forgotten.

    On a separate note, I assert that religion ultimately must be subordinate to the law of the land. Free exercise of one’s religion sounds nice, but a religion could believe literally anything, and their practices could be (and not infrequently are) intolerably unethical by any standard those here would consider reasonable. To recognize “freedom of religion” is just another way of saying, “you’re entitled to your opinion.” That doesn’t mean we allow people to break laws simply because they feel it’s not wrong. If we allow religious people to violate rules (other than culture-centered ones like dress codes) solely because of religion, it allows any person to use their belief that their crimes are mandated by a higher power as a legal defense. Where, exactly, does it stop?

    • That’s COTD 3 on this post…

    • EC,

      I hate to answer for the baker, so I hope you don’ mind if I respond with how I would answer.

      What if I walked into the shop and asked for a wedding cake for no reason at all? Nobody’s getting married; I just want the cake. Is it against his religion to make that style of cake for anything other than weddings?

      It would not be against my religion, no.

      One thing I want to point out about your line of inquiry here is that you are divorcing the mechanical action of making a cake from the purpose of making a cake. A cake is a cake, and apart from any purpose, it remains a cake with no further meaning than a configuration of confectionery molecules. But the purpose for making the cake defines the context. If you wanted me to bake you a cake so you could bury it in your backyard, I wouldn’t have any religious objections to that, but I would certainly object to having the fruits of my labor just thrown away. Just as I would object if you wanted me to write you a book so could use the pages of the book as toilet paper.

      The purpose of making a wedding cake is for it to be displayed and consumed at a wedding. If you aren’t going to use the cake for a wedding, ontologically speaking, could it even be a wedding cake?

      Do I have to show him a marriage license?

      I wouldn’t require that. My general standpoint would be to take people at their word. That being said, if I knew you and you were known for pranks, were opposed to marriage in general, and nothing I knew about your recent activities hinted at a wedding, I might want some actual proof that a wedding was occurring.

      I’m an atheist; will he refuse to acknowledge my marriage because you can’t have marriage without a god? Does only the Christian deity count for a “real” marriage?

      Since I’m Catholic, I’ll just toss out what the Catholic Church teaches about marriage. Marriage is universal. Historically, marriage permeates pretty much every culture. Marriage is an institution that has, for the most part, united a man and his wife to the children they bear together. Marriage does not require a profession of faith, because it is a foundational institution of mankind. That is why eating, drinking, and shelter don’t require a profession of faith. They are also foundational aspects of the human condition. So, there is no objection to two atheists marrying.

      Where the religious context comes into view is with the nature of that marriage. Catholics profess that Jesus elevated the institution of marriage to a sacrament. This means that a valid marriage between baptized individuals cannot be dissolved save by the death of one of the two parties. But that does not mean every marriage is sacramental. If one of the two parties is not baptized, the marriage is still a valid marriage, but it is not a sacramental marriage. Thus it could be dissolved, and either party would be free to re-marry.

      A funny oddity of terminology crops up in Catholic teaching. Since a valid, sacramental marriage cannot be dissolved, but since parties can licitly separate for serious reasons (abuse, abandonment, adultery, addiction), a Catholic can be married and divorced at the same time…

      I would argue that the artistic quality of the cake has nothing to do with who is getting married, or if there’s even a marriage at all–at least, as far as religion is concerned.

      I agree with you to a certain extent, here. The artistic quality is its own concern. It is the teleological purpose of the cake that is the true contention. So that raises a question: if I bake a cake that I do not intend to be used at a wedding, but looks just like a cake that I do intend to be used at a wedding, is it a wedding cake? To use some technical terms, there is the essence of a thing, and there are the accidents of a thing. The essence of a thing is what is essential to a thing being that thing; accidents are just features that particular thing has that are not essential to a thing being that thing. The essence of a chair is something to sit on. Accidents of a chair are having one leg, or three, or four, having a back, not having a back, etc. So what is the essence of a wedding cake, and what are the accidents of a wedding cake? I think the only essential difference between a wedding cake and a non-wedding cake is the intent for which the cake is made. The only part I waffle on is the cake-topper…

      On a separate note, I assert that religion ultimately must be subordinate to the law of the land.

      I’m uncomfortable with how you phrase this, so let me toss out what I think about this, and let me know if it does or doesn’t conform with what you’re thinking.

      Speaking again only for the Catholic faith, holding to my religion means that I recognize as the highest authority the omnipotent, omnipresent, omniscient, omnibenevolent necessary being who, I profess, created all things visible and invisible. But that God bestows authority upon mankind. Parents have authority over their children. Governments have authority over their territories, etc. Thus we have “render unto Caesar what belongs to Caesar, and to God what belongs to God.” But we admit that human authority is fallible. If human authority conflicts with what God decrees, it must be God that is obey, for he is the ultimate authority.

      What does this mean when there are so many ideas of what God has decreed? It means that we need to do the best we can. While I live in the United States, I am subject to her laws. If at some point, I find myself caught between obeying the law of the United States or obeying what God has revealed through the Catholic Church, I will choose obedience to God. BUT! I will be prepared to accept the consequences of breaking the laws of the nation I live in. Suppose, for example, that the United States became so hostile to Catholics that they prohibited, on pain of death, attendance at the Mass. I would still attend Mass, and I would accept the consequence of breaking the law.

      Part of why this notion rubs people wrong is that there is admittedly a distinct confusion of what God teaches. If you look at any particular point of doctrine, you can find two religions opposed on that point. Most of the time, you can find two Christian denominations opposed on that point. This is a great scandal, an embarrassment to Christianity, and a reason why the law of the land should not be expected to conform to every whim of doctrine out there. Thus I’ve always wondered myself how compatible with the rule of law the free exercise of religion really is. I am more than willing to accept a stipulation that religion may be exercised freely up to the degree that the law permits. If you want to exercise your religion in defiance of the law, you should be punished — and accept humbly — the punishment the law demands.

      it allows any person to use their belief that their crimes are mandated by a higher power as a legal defense.

      Have you ever seen the movie Frailty? It poses the case where a man believes he’s been given a list of “demons” by God, with the mandate to hunt them down and kill them. It really stirs up abhorrence in reaction, but it does make you stop an think about what people do when they truly believe they have a divine mandate. Your statement here made me think about it.

      • Comment of the Day on this post #4. Good job, Ryan.

      • valkygrrl

        The purpose of making a wedding cake is for it to be displayed and consumed at a wedding. If you aren’t going to use the cake for a wedding, ontologically speaking, could it even be a wedding cake?

        So if your beliefs say that the couple buying the cake aren’t entering into what you think of as a marriage, you’re not making a wedding cake. You’re making a cake for a party with formalware and a jewelry exchange.

      • That’s a very thoughtful reply. I should clarify my position.

        I believe that the separation of church and state is a fantasy, because religion often determines what people believe is right and wrong, and people will (and should) use their beliefs about right and wrong to inform their policy choices. Depending on what you believe is right or wrong, you can end up with laws that are based on religious beliefs, or laws prohibiting practices that are central to a particular religion (even if the laws themselves don’t refer to any religion in particular).

        If you were to believe that an all-wise deity deemed it an abomination to wear hats on Sundays, I would hope that you would try to get that belief enshrined in law. If you kept it to yourself, you’d be condemning others to… whatever fate befalls those who wear hats on Sundays. (Plus, it’s harder for insular communities to learn that their beliefs are wrong.) You should follow whatever you consider the highest authority, and attempt to get other people to recognize it as well.

        We can’t get anywhere by drawing boundaries between which beliefs can be foundations or exceptions to laws and which cannot. Those boundaries seem to be nothing more than a pragmatic truce based on differences in spiritual beliefs which people aren’t perceptive enough to resolve. (It also invokes the Golden Rule to protect minority belief systems, but that’s not the point.) If there was only one set of spiritual beliefs, no one would think twice about making laws about it, and rightly so (even if the beliefs themselves are incorrect). The only solution I can see is that we learn to communicate, learn to use philosophy to understand what does and does not make sense, and come to a consensus as a society on fundamental existential questions.

        “I would still attend Mass, and I would accept the consequence of breaking the law.”

        No offense, but that’s easy for you to say if you believe you will be rewarded for your virtue. If it was required for me to attend Mass, I would either attend insincerely or remain absent and defy the consequences. I see no reason to let people kill me because (to my view) they see the world less clearly than I do.

        “The purpose of making a wedding cake is for it to be displayed and consumed at a wedding. If you aren’t going to use the cake for a wedding, ontologically speaking, could it even be a wedding cake?”

        As an existentialist, I don’t believe the cake has any inherent nature or essence, either based on its purpose or otherwise. Labels can be applied to things based on the definitions associated with the labels, but they only influence how society interacts with the things, not the things themselves. Purpose and essence are concepts people ascribe to things to make thinking about them easier. As such, I think the issue depends on whether a person is in the business of selling proactive pastry consulting services to weddings, or in the purpose of selling matter configured into the structure of cakes, of a style called “wedding”. In the former case, they don’t have to do anything when there’s no wedding, and they can decline to assist with any wedding that doesn’t meet their standards. In the latter case, they have no claim on the cake after it’s bought.

        Of course, there may be a case that blends the two: a baker could reserve particular services for weddings. However, I’d consider such a restriction placed on a cake to be… snobbish, for lack of a better word, considering that the creation of the cake doesn’t require the baker know any details about the wedding itself, including its existence. If someone were to deceive such a baker in order to obtain a cake for any reason, I’d consider it a justified resort that the baker brought on themselves.

        • dragin_dragon

          On the other hand, there are laws that appear to be religion based but really are not. Murder, theft and perjury are all forbidden by the ten commandments, but equally are unethical from the get-go, whether forbidden by Judaism or not. Worst-case scenario, however, is Sharia law, which prevails in most, if not all Arabic/Muslim nations, and we’ve seen how well that works. I would also point out that Christian Europe prior to around Gustav Adolphus’s invasion, Catholicism ruled the roost and the local Arch-Bishop often had more power than the King. And before anybody gets upset by the date I am aware that Martin Luther pre-dated Gustav II’s advent, and could be said to have caused it.

        • EC,

          I believe that the separation of church and state is a fantasy, because religion often determines what people believe is right and wrong, and people will (and should) use their beliefs about right and wrong to inform their policy choices.

          To an extent I agree with you. The way we have interpreted the idea of separation of Church and State I think is completely untenable, precisely for the reason you give here. However, in the original sense of the separation of Church and State, I think is the possibility for things to work decently. That notion was simply that the head of the Church should not also be the head of the State. To an extent, we have that separation in our country precisely because, at the time, the King of England was the head of the Church of England. It isn’t too much of a stretch to say simply that our federal government should not be the head of a particular church, and that the head of a particular church should not be a member of our federal government.

          If you were to believe that an all-wise deity deemed it an abomination to wear hats on Sundays, I would hope that you would try to get that belief enshrined in law.

          Yes and no. Part of the question is whether this particular abomination is something that is noticed through natural law, or if it is a specific divine revelation that human reason would not necessarily attain. For example, murder is pretty clearly objectionable. Human reason doesn’t have any issue with condemning the intended, unjust killing of another human being. However, when it comes to hats, a divine mandate to not wear hats on Sunday doesn’t appear to be something that one would reason to. If it is not morally objectionable to wear hats any other day, there doesn’t seem to be anything inherent in wearing hats that would suggest they shouldn’t be worn on Sundays. Thus it would seem to be a particular expression of worship.

          Now, Catholic teaching states that forcing people to believe and worship against their conscience is wrong. (Whether or not individual Catholics live up to this moral standard is another question entirely.) Thus, if not wearing hats on Sunday were a peculiarity to Catholicism, trying to enshrine the hat-doffing into law would, I think, cross the line into a form of worship against conscience, unless this law were coming into effect in a purely Catholic state. I would prefer evangelizing people as the method of warning them away from wearing hats on Sunday, as that would get the warning out without forcing someone into a religious belief against their will.

          Suppose we take a different example, though, such as desecration of the Eucharist. Catholics believe that the Eucharist, upon the moment of consecration, is truly Jesus, body, blood, soul, and divinity. To take a host, then, and throw it in the trash, or any of the other things people have done to show their hatred of the Eucharist, is very serious matter to Catholics. We do believe that such actions will have very grave consequences. Would I want to make it illegal to desecrate the Eucharist? Sure, but I doubt such a law would have any positive effects. There are not tangible damages being done — a priest doesn’t vet people coming forward at Communion, unless there is a very publicly known reason why a specific person shouldn’t take Communion, so legally it isn’t stealing to take a host out of the Church — and regulating relations between Catholics and non-Catholics strikes as thought-policing.

          Then there is always the question of how enforceable a law really is. While I don’t subscribe to the notion that a law is ineffectual if some people will break the law anyway, there does have to be a prudential consideration of whether one actually has the resources to enforce a new law.

          We can’t get anywhere by drawing boundaries between which beliefs can be foundations or exceptions to laws and which cannot….

          …The only solution I can see is that we learn to communicate, learn to use philosophy to understand what does and does not make sense, and come to a consensus as a society on fundamental existential questions.

          So, I think the end of your paragraph here refutes the beginning of your paragraph. Because we can use reason, philosophy, experimentation, observation, and other tools we possess, we can identify boundaries and determine which beliefs can be foundational to laws, and which should not be. However, if you mean only which beliefs peculiar to a particular religion should or should not be foundational, then I do agree that at best we can only hope for that pragmatic truce.

          No offense, but that’s easy for you to say if you believe you will be rewarded for your virtue. If it was required for me to attend Mass, I would either attend insincerely or remain absent and defy the consequences. I see no reason to let people kill me because (to my view) they see the world less clearly than I do.

          Is there some action or principle for which you would die to defend? I ask, because I think for you, attending Mass is not necessarily morally objectionable, just a waste of your time. Kind of like weekly sensitivity seminars. I would probably attend sensitivity seminars every week if my life were on line.

          As an existentialist, I don’t believe the cake has any inherent nature or essence, either based on its purpose or otherwise.

          Do you disagree that when we use the term cake, we are referring to a particular thing with particular qualities, and that there are certainly qualities that if they were absent or of a different degree, it would no longer be a cake, but something else? I know we’ve talked a bit about labels and natures, and I don’t think we’ve come to a working consensus on what terms actually mean.

          For another example, you say you are an existentialist. That’s not essential to you — you could change your mind later in life and believe something different — but then, there are certain beliefs that are essential to being an existentialist. If you didn’t have those beliefs, even if you called yourself an existentialist, you wouldn’t really be an existentialist. Yes, existentialist is a label, but the label indicates a certain reality, a certain category, a certain meaning. Natures and essences and accidents are labels, but they are useful for indicating precisely what category, what reality, and what meaning we intend in discourse.

  12. Bad Bob

    Color me stupid, but even with much excellent reasoning on either side here, why do I feel that this is an easy proposition?

    If we have in the first amendment a proscription on limiting the free exercise of religion, and there appears ample evidence that the baker has always adhered to the practice of it as much as is humanly possible, then how can it be considered discrimination?

    There is no pervasive history saying the baker regularly turned away gays from his business under any other circumstance.

    From a layman’s position, the case should’ve been thrown out on it’s ear.

    The case is nothing more than an attempt to use the courts to impose a particular viewpoint. And it is rather consistent within what I guess one might call the “radical” lgbt….xyz community (and many others, frankly).

    The inclusion of gay marriage in the law was largely achieved via judicial fiat, not by the voters, the most striking example being California; liberal as it is, the vote was to keep marriage as traditionally defined.

    Just throw in the “discrimination boogeyman” and any legal action is all at once justifiable.

    The thought that this event rises to discrimination which warrants action federal courts in 2017 is absurd.

    Working in a business for 15 years and consistently out-performing ones peers, and being denied a promotion soley because of being gay would merit review in the courts (I would say obvious exceptions applying, such as leadership in a religious organization… oops, no free exercise of religion that this case would like to chip away at…).

    Roughly restating the argument others have made, the ethical thing to do would’ve been for the gay couple to graciously accept the man’s apparently obvious religious beliefs, ask for a recommendation of a comparable baker in town, and wish him well.

    Why am I wrong?

    • Well, let’s see.
      Baking a cake isn’t the exercise of religion, and the claim that doing so “endorses” or participates in a gay marriage is irrational on its face/ Moreover, this isn’t a church, it’s commerce. The baker is engaging in commerce, and thus must obey the laws of commerce: no witholding of services or products based on invidious discrimination alone.

      The government isn’t forcing the baker to worship.

      The forced artistic expression is a valid issue. The religious freedom argument is baloney. The refusal to provide an artwork for gays is unethical. The refusal to sell a wedding cake based on sexual orientation is illegal. Both are dickish.

      • It is not that simple under our Establishment Clause jurisprudence.

        the Higher Education Facilities Act of 1963 provides federal construction grants for college and university facilities, excluding

        “any facility used or to be used for sectarian instruction or as a place for religious worship, or . . . primarily in connection with any part of the program of a school or department of divinity.”

        Note that these grants were generally available, and could be provided to church-related schools, as long as the funds were not used to build places of religious worship.

        One might think that withholding generally-available state benefits because it would be used for religious purposes would constitute unlawful discrimination. (This is in contrast to state benefits solely for religious purposes.)

        Citizens of Connecticut sought injunctive relief against offering construction grants to religious institututions. The Supreme court decided this in Tilton v. Richardson, 403 U.S. 672 (1971). The Court upheld the grants, except for one provision.

        “Limiting the prohibition for religious use of the structure to 20 years obviously opens the facility to use for any purpose at the end of that period. It cannot be assumed that a substantial structure has no value after that period, and, hence, the unrestricted use of a valuable property is, in effect, a contribution of some value to a religious body. Congress did not base the 20-year provision on any contrary conclusion. If, at the end of 20 years, the building is, for example, converted into a chapel or otherwise used to promote religious interests, the original federal grant will, in part, have the effect of advancing religion.Tilton, 403 U.S. at 683

        So in effect, the Supreme Court invalidated the twenty-year grace period because the construction grant might have a part of advancing religion.

        Under the rationale of Tilton,. baking a cake ““endorses” or participates in a gay marriage”. In fact, it is a stronger argument that baking a cake for a same-sex wedding that will happen in, two weeks, would constitute participation in a same-sex wedding, than providing construction grants for a building that might be used for religious purposes in twenty years.

        If, under Tilton, a state is prohibited from providing construction grants that may be used for religious purposes, then it follows that it could not provide construction materials to persons who would use them for religious purposes. And, as such, it could not require private individuals to do the same. Under Tilton, a seller of construction supplies may refuse to sell such supplies if the customer intends to use them for religious purposes. It therefore follows that a seller of baking supplies could refuse to sell such supplies if a customer intends to use them in a same-sex wedding.

        How do you reconcile your comment with the inescapable conclusion of Tilton? The grants at issue in Tilton did not have any religious qualifications. Belief in HaShem or the Devil or Shiva was not a prerequisite for receiving these grants. And yet, if those grants were used to construct a building that would be used for religious purposes twenty years later, it constituted impermissible entanglement with religion. It is plain and clear what conclusion we would draw if we applied the Tilton doctrine to wedding cakes.

        Was Tilton wrongly decided?

        • That’s a refreshingly new angle on this topic.

          I would draw a distinction between the government giving something away for free versus private citizens selling something for money. There are things I think that everyone should be able to buy wherever it’s sold but that not everyone should be able to get for free from the government. Does that make sense?

          • If the government were to offer something for free, it must do so on religiously neutral terms.

            However, several Supreme Court cases had required discrimination against religion, like the Tilton case I mentioned above.

            See also Lemon v. Kurtzman, 403 U.S. 602 (1971). Even though the beneficiaries were not required to be religious schools, and even though the law in question specified that “eligible teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion“, it was still struck down because, even though it only provided salary reimbursements for teachers who taught specific subjects (none of which were religion), the Court held that it nevertheless, despite these restrictions, involved “excessive entanglement between government and religion”.

            If we applied the Lemon test to Masterpiece Cakeshop, then baking a cake for use for a same-sex wedding clearly involves “excessive entanglement” under the Lemon definition.

            Here is another thing worthy of note. Justice Sotomayor cited Tilton in her dissent in Trinity Lutheran Church v. Comer, dissenting op. of Sotomayor, J. No. 15-557, at 4-5 (Jun. 26,.2017) According to the dissent, the mere provision of recycled rubber for playground resurfacing, even though it is available to all institutions regardless of religious belief or lack thereof, nevertheless violated the establishment clause, because the petitioner might use it for worship.

            I can understand why the seven justices rejected this view. After all, the state can not require the private sector to do what it itself is forbidden to do. The dissent’s view leads to the conclusion that wholesale sellers of recycled rubber may refuse to sell rubber to customers whose faiths they disagree with, because those customers may use the rubber for religious purposes. And the corrollary to that is that wholesale sellers of flour may refuse to sell flour to homosexuals because they might use it to bake a cake for a same-sex wedding. This goes far beyond what Jack Phillips is arguing.

            if a state can not bake a cake for a Catholic baptism, an Orthodox bar mitzvah, or a ceremony celebrating the 9/11 terrorist attacks, how casn it do so for a same-sex wedding.

            If the state can not bake a cake for a same-0sex wedding, how can it require Masterpiece Cakeshop to do so.

            How are antidiscrimination laws consistent with Lemon and Tilton?

            • Chris

              I’ve never seen someone who could rattle off so many law facts and still be so obviously wrong about nearly every conclusion you draw from those facts. I don’t even have a tenth of the knowledge about court cases as you do, but nearly every time you write about them here I can easily tell that the conclusions you are drawing from them are illogical.

      • Jack, respectfully, I think it’s a mistake to dismiss the religious freedom argument, and address only the commerce aspect. I’ve written a more detailed comment below.

      • Bad Bob

        Says who? You define it as art, he defines it as using his talents to the glory of God. The picture in the new testament is with Christ as the groom and the church (i.e. his followers) as the bride. Baking the wedding cake is a clear violation of his beliefs.

        In no other area has he refused to serve anyone of any persuasion – is this not the preponderance of the evidence?

        You also didn’t answer the question as to the ethical choice of the gay couple, which if I read correctly, Mrs. Q did – and in my opinion, for quite valid reasons.

        The ethical thing for the gay couple to do would have been to find any number of other bakers willing and happy to bake their cake. Instead, they chose to sue a man who by all accounts was consistent in the exercise of religious beliefs, with which they took issue.

  13. I don’t know why the baker is using the artistic expression defense. Maybe that’s truly his main concern, or perhaps it’s because he thinks, or was advised, that this avenue would more likely be successful in court. Still, I don’t think it’s accurate to dismiss the religious freedom argument out of hand, and assume commerce trumps all. Do state or local business ordinances universally override the constitutionally protected right for individuals to practice their religion in their daily lives?

    The right to freedom of religion is not just the ability to worship or go to the church of your choice. It’s also the freedom to live your life according to the dictates of your conscience as directed by your religious beliefs. Obviously, this could conflict, at times, with other laws & regulations, e.g., stoning adulterers, as an extreme. A Christian (or maybe Jewish, or Muslim) baker may believe that marriage is not just an event, but a sacred rite involving man and woman. If they view a gay marriage as a mockery of that rite, they would not want to participate in it.

    Not all commerce is the same; some jobs involve significantly more involvement in the lives of a customer than others. It seems, from the information given, that this baker had no problem conducting “regular” commerce with the gay couple or anyone else. He seemed to balk at crossing a line into what he considered “participation” in their ceremony. Certain other professionals (photographers, florists) might also be presented with this quandary. They might likely react the same way if they were asked to be involved in a “black mass” wedding for a group of Satanists.

    So, we seem to have a conflict of “rights” in such a situation, and one party is going to have to be disappointed to some degree in the resolution. How do the courts determine which prevails? Would they consider who would suffer the most if their particular rights were limited, and who could most easily find a remedy for their “damage”? My own analysis in this case is that the couple’s damage is essentially to suffer hurt feelings, and their remedy is to go down the street to another baker. The baker’s damage is to suffer a violation of his religious convictions if forced to participate (any remedy for that?), and to avoid that, be forced out of business, or suffer significant loss of revenues if forced to opt out of offering any specialty products. If this is accurate, advantage to the baker, I think. Jack, as a lawyer (which I am not), may have some more knowledgeable answers on this aspect of the issue.

    • luckyesteeyoreman

      Willem, I suspect the artistic expression defense was viewed as more generally and broadly defensible under the First Amendment than a religious practice defense which, as you illustrated with examples, would not necessarily implicate encroachment on a baker’s First Amendment rights. Compelled expression that is antithetical to the religion of the would-be compelled requires a more circuitous route of proof of such compulsion, and would be at higher risk of failing a “church-state separation” test, while an argument that the plaintiffs seek to compel the baker to express artfully that which the baker has no interest or desire in expressing, at all, promises a clearer path to proof of infringement on the baker’s freedom of speech.

      In recent times, I have become a bit more hard-assed against business owners whose business operations project the religious convictions of the owner, to an extent where an owner feels entitled to refuse business to customers whose convictions differ from his own. At the same time, I’ve become more hard-assed against the notion that “the customer is always right,” to an extent where one customer can demand that a business owner deliver to a customer’s order, regardless of any adverse impact that fulfillment of the customer’s order might have on the owner’s overall business.

      • “At the same time, I’ve become more hard-assed against the notion that “the customer is always right,”

        This is kind of where I’ve been coming from on this thread. As a call center agent, I’ve come to believe that businesses need a greater capacity to say “no”, at least in certain instances, particularly when dealing with customers becomes like dealing with spoiled children.

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