Ethics Observations On The Masterpiece Cake Shop Decision

The Supreme Court ruled today in favor of Jack Phillips, the Christian baker in Colorado who refused to bake a custom wedding cake for a same-sex couple. The Court  found that the Colorado Civil Rights Commission infringed on Phillips’s rights in ruling that he violated the Colorado anti-discrimination law barring merchants from refusing service based on race, sex, marital status, or sexual orientation. The ruling is narrow; it does not empower merchants to deny service based on sexual orientation.  It is based entirely on  the Colorado Civil Rights Commission’s  hostility toward Phillips’s religious views in ruling against him.


1. Justices Ruth Bader Ginsburg and Sonia Sotomayor were the only dissenting votes, meaning that the decision was 7-2, and not a “conservative vs liberal” outcome. Even the dissent is based on narrow legal and factual distinctions rather than ideological ones.

2. Read the opinion, and the dissent. Also, if you really want to impress your friends, access the resources available here.

3. These statements from Justice Kennedy’s majority opinion, cited by Justice Ginsberg, help clarify matters in the right legal and ethical direction:

  • “[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
  • “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”
  • “[P]urveyors of goods and services who object to gay marriages for moral and religious reasons [may not] put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’ ”

The ruling could have hardly been less of a ringing endorsement of either “side.”

4. To which I say, “Good.” As I wrote the last time this case was discussed here,

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.

5. I don’t have a lot to add to that today, in light of the decision. This case should never have ended up in court. All parties behaved badly. Stuck with the case, I think the Court did as good a job of handling it without causing more confusion as it could have. If the law it makes is bad, it’s not as bad as I expected.

6. The spin conservatives are putting on the ruling is misleading. For example, the National Review’s headline is “SCOTUS Rules in Favor of Baker who Refused to Make LGBT-Wedding Cake.”  That is technically accurate, but you would have to read the whole article to learn “The ruling does not broadly empower merchants to deny service based on sexual orientation but rather narrowly addresses the question of whether the Colorado Civil Rights Commission demonstrated hostility toward Phillips’s religious views in ruling against him.” In fact, if the Commission had not been so obviously anti-religion and had not so blatantly signaled its contempt, its ruling against Phillips might have stood.

7. The real lesson of the opinion is “Bias makes you stupid.”

39 thoughts on “Ethics Observations On The Masterpiece Cake Shop Decision

  1. If that one commissioner hadn’t gone Dan Barker and spewed anti-religion bile like he/she was attending a meeting of the local religion-haters club, with the next order of business being suing over a cross on a war memorial, immediately followed by the annual anti-Christmas billboard, then it might have stood. Hatred of religion should be treated the same as hatred of color.

    • I was worried that the commission’s bias was going to get shunted aside in the question of baker vs gay couple- so I was pleasantly surprised when the court placed their ruling squarely on the shoulders of the government’s one-sided behavior.

  2. Do you think using the term narrow ruling is misleading? In your context it seems clear because I can read the story. But much of twitter is making 7-2 seem like a narrow ruling.

  3. #5. With respect, Jack, I would like to request clarification on this point. I’m clear on the point that no one’s behavior here was exemplary. However, I don’t see how this couldn’t have ended up in court given the zero-sum nature of the event. Should the homosexual couple have simply shrugged and taken their business elsewhere, maybe passing along their experience to others, or should Jack Philips have simply swallowed his principles and “baked the cake, bigot?” Someone was going to come away from this not getting what they wanted. I’d have an easier time coming down on one side or the other if there wasn’t a clear double standard at work in this country right now wrt Christian principles vis-à-vis other principles.

  4. The reeducation & quarterly obedience reports was what really seemed despicable about this whole mess. My wife & I are quite happy with the ruling.

    • Mrs. Q good on you and your wife. These folks getting married were welcome to buy a cake. The bakery drew a reasonable, defensible line between tolerance (anyone will be served and can buy a cake from us) and forced acceptance of making a cake for a specific purpose with which they disagreed.

      • Absolutely. Honestly there is no shortage of bakers & others who are very happy to participate in such weddings.

        We had only one negative experience when we tried to buy rings and the owner was obviously uncomfortable. He went so far as to talk about a football player who had recently come out and shivered while holding himself & said “gross.” Admittedly this was unacceptable but we let it go. Forgiveness mattered more than vengeance, which is why we felt Colorado Civil Rights Commission had gone too far for too little in this case.

  5. Totally different topic….

    Proud mom orders ‘Summa Cum Laude’ cake online. Publix censors it: Summa … Laude.  | | | | | |


    | | | | Proud mom orders ‘Summa Cum Laude’ cake online. Publix censors it: Summa … Laude. By “Congrats Jacob! Summa — Laude Class of 2018.” | |



    but funny. 

    Sent from Yahoo Mail for iPad

  6. Justice Thomas, in his partial concurrence:

    Ac­cording to the individual respondents, Colorado can com­pel Phillips’ speech to prevent him from “‘denigrat[ing] the dignity’” of same-sex couples, “‘assert[ing] [their] inferiority,’” and subjecting them to “‘humiliation, frustration, and embarrassment.’” Brief for Respondents Craig et al. 39 (quoting J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 142 (1994); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 292 (1964) (Goldberg, J., concurring)). These justifications are completely foreign to our free-speech jurisprudence.

    States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Johnson, supra, at 414. A contrary rule would allow the govern­ment to stamp out virtually any speech at will.

    This is the opinion that should’ve carried the day. In fact, Kennedy’s opinion is a blatant special pleading, fallacious on it’s face when he claimed the CCRC disparaged Phillips’ position. Even if I allow the comments made by some CCRC members do in fact disparage Phillips’ religion, the law makes it clear that religion is inoperative as a defense against its requirements anyway. How, then, can hostility to religion matter one jot or tittle, and isn’t such expression protected in its own right? The CCRC needed not show the least deference to Phillips’ religion, because the law that creates it manifestly doesn’t:

    “It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges,advantages, or accommodations of a place of public accommodation.” Colo. Rev. Stat. §24–34–601(2)(a) (2017).

    This says nothing about religion being an influence. It considers itself above that requirement, being stated as a law of “general applicability.” So why should the CCRC consider religion at all? In fact there is no reason they should. The Colorado Court of Appeals most certainly should’ve, but their position was essentially a defense of the text as generally applicable. That is the judgment that should’ve been reversed and remanded, because it isn’t the CCRC’s job to apply the First Amendment, especially when it comes to balancing religious rights vs. equal protection rights. That’s the court’s job, one which the Colorado Court of Appeals abdicated. Ginsberg gets this part exactly right:

    Statements made at the Commission’s public hearings on Phillips’ case provide no firmer support for the Court’sholding today. Whatever one may think of the statements in historical context, I see no reason why the comments ofone or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mul-lins. The proceedings involved several layers of independ-ent decisionmaking, of which the Commission was but one. [citations omitted] First, the Division had to find probable cause that Phillips violated CADA. Second, the ALJ entertained the parties’ cross-motions for summary judgment. Third, the Commission heard Phillips’ appeal. Fourth, after the Commission’s ruling, the Colorado Court of Appeals considered the case de novo. What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say.

    Indeed. As rulings go, this was one of those typical Kennedy trademark failures of logic. It’s an abortion that was probably negotiated to protect his more conservative colleagues, because there’s no doubt he would’ve joined the liberals in affirming the ruling absent pressure from the conservatives. Evidently, they persuaded him to leave the substance of the question for another day in return for yet another legacy-building gay rights ruling, even one so manifestly bereft of substance or reason.

    • Yes, yes, yes. Exactly right.
      Kennedy is a terrible jurist, and poor writer (or he hires incompetent clerks.) He can’t retire soon enough for me. To have a weak intellect like him being the swing vote is a continuing fiasco. I’m sure you also have nailed how this misbegotten, useless opinion came to be…in response to misbegotten, useless failure of human relations.

      Thomas’s dissents are often perceptive, but the news media has labeled him a legal dunce, so nobody pays attention.

  7. It’s a very narrow ruling, but it may very well be used as a lever in allowing refusals of this type. Roe v wade was a narrow ruling, too, and it magically became “abortion is a constitutionally protected human right.”

    Either ruling may have been a slippery slope, but prevailing winds are coursing strongly leftward, so I’m glad to see SOMETHING not ratchet counterclockwise.

    • Looks to me like a guarantee of MORE of these types of cases: partially because there’s no shortage of assholes, and partially because so much of the populace doesn’t understand the ruling. So there’s going to be a LOT of instances where people are denied service by an asshole who crows about it. And there will be assholes going looking to be denied (similar but not exactly like Lillian and the vegan bakery?) and then holler about it. And then the whining about NOT getting their cases to the Supreme Court because why would they hear anything similar again?

  8. The ruling is merely a brief “demilitarization” or “cease-fire” decree. If I had money to bet, I’d bet it on Jack Phillips and his bakery business being driven out of Colorado in a short time, one way or another, as “the ends justify the means.” Then, look for the church splits over what kinds of sex are OK…

  9. Froma previous comment of mine on the issue.

    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 purported 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?

    How would one affirm the judgment of the Colorado Court of Appeal without the implication that a sign-maker may be required, under state law, to make signs for pro-ISIS marches or Westboro Baptist pickets? What is the principled distinction between that and wedding cakes for same-sex weddings? Surely it can not be because society finds the former more offensive than the latter.

    This is a line that the Supreme Court may have to draw soon.

  10. I was getting ready to be upset when I began read the ruling today and immediately calmed down after seeing how narrow it was — and I don’t even disagree with it.

    What does concern me however is what you pointed to above — each side is using this to fan their respective fires. I am worried that we’re now going to see more nonsense coming out of certain communities who really do want to restrict the rights of Gays — clogging up our courts and generally making people’s lives unpleasant. I also don’t want to spend the next few months explaining the ruling to non-lawyer liberals who already are beginning to tear their hair out because they don’t understand the opinion.

      • It is as narrow as the original Hobby Lobby opinion.

        Which was immediately interpreted as far more broad than the original opinion stated. Right now, it’s unclear if there are *any* limits to it.

        The ruling does not broadly empower merchants to deny service based on sexual orientation

        But it will be applied in exactly that way, won’t it? Not just sexual orientation either, any religious based objection. And with the right conservative judge, it will be upheld too. Appeal is another matter, but the game is whack-a-mole, as the religious right has stated.

        I don’t see the SCOTUS having much choice here though. The ruling was correct IMHO.

        • I really don’t think so, Sue. I also haven’t seen Hobby Lobby overly applied.
          But that is the risk when activist try to push the envelope to bend others to their will.

          It was no more appropriate for the Commission to have members bashing religious freedom than it would have been to have members expressing disgust with gay marriage.

            • Hobby Lobby threw a wrench into the preventive care aspect of the ACA and who can determine what kind of health care is covered, especially at $0. It changed insurance a lot, and if you work for one of those businesses who worry about your form of birth control, upped your personal spending to keep it. But part of the problem is that it’s been TOO broadly interpreted because enough people don’t know that certain birth control options are NOT abortifacient drugs but they got CALLED those for the case.

    • Notice who sued whom here. This baker was singled out because of his views, which were well known in his community. He offered to sell them anything off the shelf except a custom cake.

      They could have had their cake (and ate it, too!) literally within a 5 minute drive.

      The gay couple targeted this man to destroy freedom of religion, and to restrict free speech.

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