Comment Of The Day: “Ethics Observations On The Masterpiece Cake Shop Decision”

How refreshing it is, while at least half the pundits and journalists are misrepresenting the Masterpiece Bakery decision to the public, to read an Ethics Alarms comment that both clarifies Justice Kennedy’s majority opinion’s flaws and also highlights an important issue that only the routinely-derided Justice Thomas focused on.

As it happens, I disagree with Thomas that a custom wedding cake for a gay wedding is  necessarily “compelled speech.” What is it saying? If it can’t be reasonably interpreted to express a position that can be fairly attributed to the baker, then it’s the customer’s speech, not the baker’s. I know there are cases where sign-makers and others have been upheld in their refusal to reproduce messages they personally find offensive. We saw a hint of that in the silly “Summa ___ Laude” cake fiasco. My position is that a business that creates a setting for speech by others should have no right to interfere with that message—hateful messages, obscene messages, it shouldn’t matter. It should be no more acceptable for a sign-maker to say “I won’t make that sign” than for a cabbie to say, “I won’t drive to that address,” or a haberdashery to refuse to let you buy a suit that makes you look fat.

Here is Glenn Logan’s excellent Comment of the Day on the post, Ethics Observations On The Masterpiece Cake Shop Decision:

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 of one 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 independent 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.

47 thoughts on “Comment Of The Day: “Ethics Observations On The Masterpiece Cake Shop Decision”

  1. As someone who accidentally overheard militants several years ago planning to overthrow Catholic teaching on marriage from within, among other things, I am left to believe militants are seeking forced acceptance (authoritarianism) via subversion instead of broad based tolerance (liberty). That is the socio-cultural the crux of the matter over which we debate.

    • This is my take as well. (We really should get coffee sometime: we might be the same person)

      The baker was purposely targeted in order to make him embrace the new order. Everything else flowed from that starting point.

      It is not enough for progressives that you are ‘tolerant.’ You must be enthusiastic for the narrative, no matter that it changed from yesterday, or be destroyed. This is about control. Thus, authoritarianism.

      • I don’t know that you can say he was targeted, though he well might have been. Custom cake shops are not fungible. If he had the best Chinese restaurant in Portland according to critics, would choosing his restaurant to cater the reception not be justified beyond political activism?

        • The record seems to show this was a hit job, Jack. True, we have Occam’s Razor to consider, and I can’t claim to be completely objective, but the record seems to suggest the two had no interest whatever in accommodating his religious beliefs. Golden Rule, and all that.

          I think it was a put-up job intended to accomplish exactly what we have. I may be wrong, but I don’t think so.

          • The point is, set up or not, the treatment of the customer should be with respect and consideration. If I go into Starbucks and set up my office at a table, carrying a tooth bush and electric razor, and I am considering doing that, it will be explicitly to dare the company to ask me to leave when they will not dare ask a black non-customer. It still doesn’t matter. The conduct will still be a double standard if they kick me out.

            • While I agree with your ethics ruling, the set up part sticks in my craw. This is what much of the objections I am hearing revolve around: progressives using the courts to attack their opponents, to destroy their lives and intimidate others.

              This will come back to bite them.

            • Well, I totally agree there. We should never be rude to customers, even customers who’s business we decide not to accept. When I fire a customer (and I have), I always do it in the nicest possible way.

              The thing is, that is a bit of a two-way street. Customers should respect the beliefs of their suppliers/vendors just as the reverse is true. In the instant case, it seems to me the cake baker showed more respect for the gay men than they showed him, saying he would supply baked goods to them for almost anything other than marriage.

              Justice Thomas’ opinion has a great deal of detail about how Masterpiece Cake Shop conducted its business, and how they saw themselves as artists rather than simple bakers. It was surprising to me to know this, and it was almost completely ignored by the media.

              In the end, this was two viewpoints at loggerheads. One party decided the solution was to send a message by filing a legal complaint rather than accepting the MCS’s religious view as stated, and simply going down the street to another cake shop who held no such views.

        • Jack: The point of real differentiation is the customization.

          E.g., we would like to host an event featuring your Chinese food. No problem. What would you like off our menu. (The cake purchase.)

          Or, instead, we want you to customize your Chinese food catering service to meet the needs of our event which violates your religious sensibility. (The lesbian wedding cake demand.)

          This is a distinction with a difference. The SCOTUS seems to agree.

      • There’s no doubt this is true, and there is no doubt that they expected the CCRC to jump on board with both feet.

        They couldn’t be as sanguine about the Colorado appeals court, but they figured by then he’d be out of business anyway, and they were very nearly right.

        This whole affair says way more about the militant gays than the baker. They had no interest in accommodation, what they wanted was to put the guy out of business and claim a scalp. At least, as bad a decision as this was, that part was negated. The militant gays may ultimately succeed in putting him out of business anyway, but that’s how life goes, sometimes, alas.

  2. “My position is that a business that creates a setting for speech by others should have no right to interfere with that message—hateful messages, obscene messages, it shouldn’t matter.”

    A setting for speech by others would be poetry night at the local coffee house, where each participant gets up and reads their poetry to others.

    Then it would be more akin to forcing a Jew to recite Mein Kampf. But the Jewish baker is legally compelled to write “Happy Birthday Herr Fuhrer” on the cake, right?

    What is the distinction between written and spoken word?

    A nation of assholes indeed.

    • Are you willfully misconstruing what I wrote? If a Jew is employed by Books on Tape,he can be compelled to read Mein Kampf into a mike, or he can quit.He’s not communicating on his behalf, but as an agent of another. Nobody thinks the actor reading words wrote them, or is communicating his won thoughts. The same for the cake maker who writes “Bill loves Andy” in icing.

      • There is no existing agreement between the baker and the couple.

        A setting for speech to me means providing a forum for speech. Perhaps the legal definition is different.

        The baker it’s not providing a setting for speech, he producing products, and doing so according to his beliefs. If he produced crucifixes with inspirational writings, should be be compelled to print “hail Satan” on them? Or producing something in accordance with your beliefs has no protections?

        Alternatively, if he is providing a forum for speech, he’s doing so as a private entity and the gov’t has no right to compel him.

        Either way, it’s a BS suit, meant to compel adherence to a belief not the bakers.

        • If a cake is art, it’s one thing. If it’s just a product, it’s something else. Of course there’s a relationship, and it is contractual. I pay you X to say Y FOR MR on MY cake. My words, my cake.

          • Substitute crucifixes for cake, what’s your answer?

            They want a crucifix to display in their house with their names on it, reading “John and Bill married such and such a date”.

            Why am I compelled to put words on my product that violate my protected beliefs?

            It’s not much of a secret that religions en masse declare marriage is a man/ woman arrangement.

            Go to a baker who believes what you do, plenty of them, not hard.

            BS suit meant to compel a belief.

            • BS analysis Bob. It’s not your product once you sell it, and the argument that writing what a customer custom orders is the maker’s “belief” is too silly to debate.

              When arguments become THIS forced, I begin to suspect, “Ah. You just don’t like gays. Got it.”

              • He didn’t sell it to them, thus the court case.

                You dont like Christians, got it. Now that we have our ad hominem attacks out of the way…

                Tell me the difference between the example of the crucifix and the cake.

                Both just “products” right?

                No deeply held symbolism of faith with either one, right?

                That’s why the wedding party routinely orders half-sheet cakes from Costco, right?

                Oh, wait, that’s right, they order ornate, beautifully decorated ones to celebrate an event that has no real significance, you know, marriage, that concept that Christ referred to as the relationship between him and those who follow him.

                Many of us have, or know, or work with, or have people in our church with gay family members.

                • What do you mean, “I don’t like Christians”? Bite me. You are not even trying to make sense. No, I don’t like people who make other people feel like pariahs and second class citizens when all they have to do to be decent, welcoming community members is to make and bake a damned cake. I don’t like people who express their moral disapproval of other people who just want to have the right to do what those self-elevated pricks can do themselves. It doesn’t matter if they are Christians (like everyone in my family and current family, except my son, all of whom I like, jerk) or Rosacrucians…although I don’t like people, like the baker, who as Christians refuse to apply the Golden Rule when it inconveniences them. And I REALLY don’t like commenters who use dishonest arguments, like “He’s not an agent because he hasn’t signed the contract”, which is what “he didn’t sell it to him” means in legal terms.The issue is whether the contract makes him a victim of forced personal expression, and it doesn’t…unless, as I said, the cake is art or a product, and that’s a razor-thin distinction. You had no rebuttal, so you faked it. Not impressed.

                  A crucifix is a Christian religious symbol. Desecrating such a symbol is per se a blasphemy; putting someone else’s words on baked goods is, duh, NOT. What’s the difference between a crucifix and a cake? Wow. Worst analogy her in years, and that’s saying something. By the way, a crucifix store could not refuse to sell one to gay couple either if the public accommodations law included sexual orientation, and SHOULD not if it doesn’t. Ethics.

                  • And yet you’re so sure I don’t like gays… is that the kings pass?

                    My whole point is you expect that (some) Christians live their faith in a closet, or use your particular set of ethics or law to be their guide, instead of their knowledge of God’s word and faith and genuinely trying to live it. Hint: none of us are perfect in our application of it.

                    You also assume the couple’s motivation was that they felt marginalized – how do you know they weren’t feeling vindictive and out to stick it to someone easily identified as Christian to get even for all the Christian’s who’ve been total jerks to them over the years? Maybe they’re now guilty of the same treatment they’ve endured.

                    They’ve doubtless been treated with kindness and respect by many more Christians that didn’t make it a point to identify themselves as Christians (who among us announces that we’re kind because we’re Christians? That would be awkward and silly)

                    Bottom line, you expect the baker to subjugate his beliefs to yours, believing that you are right and he’s not.

                    He did not refuse services in any other area but the wedding.

                    • 1. “And yet you’re so sure I don’t like gays… is that the kings pass?” I read my comments twice, and I neither said nor implied that. Putting words in my mouth is specifically taboo.

                      2. No I expect all members of a community to be kind, caring, and not dicks. Not hurting people gratuitously and to no end is not “my ethics”, but ethics. No system supports it.

                      3. I don’t care what the couple’s motivation was. I support resolving the matter by common sense and by both parties not trying to hurt the other. They had a right to expect to be served in a wedding cake store like any other citizen who wanted a cake. They had a right not to like being treated otherwise.

                      4. “They’ve doubtless been treated with kindness and respect by many more Christians that didn’t make it a point to identify themselves as Christians (who among us announces that we’re kind because we’re Christians? That would be awkward and silly)” So what? Why do you think that’s relevant? If 99% of the people I meet are kind, and one kicks me in the nuts, you think I should shrug it off because of everyone else?

                      5. “you expect the baker to subjugate his beliefs to yours, believing that you are right and he’s not.” No, I expect him to obey the law, respect others, and if he won’t bake cakes for everyone, go into another business. “Beliefs” have nothing to do with it. If he believed that blacks were the children of Cain, he still should treat them respectfully, and no differently than anyone else. His beliefs aren’t any of my business. His conduct is.

                      6. He did not refuse services in any other area but the wedding. Rationalization #22.

              • “I begin to suspect, ‘Ah. You just don’t like gays. Got it.'”

                Then I shall amend my comments to include similar preceding language.

                Re: #5, 6 of your last response, I offer Amendment 1 of our Constitution.

                You’ll site case law, I’m sure, as to what is and what isn’t the free exercise thereof, but most of the populace, and I, would focus on the plain meaning.

                “Case law” begot CJ Roberts determining that Congress could tax, literally, doing nothing under Obamacare. Pardon me in advance for thinking that some legal reasoning is an exercise unto itself.

                We shall remain at odds as to the “free exercise of religion”.

                • Not if you have an open mind and are rational. Said exercise means “worship as one please.” Not “be a dick to people our religions thought were evil and dirty thousands of years ago, when ignorance could be excused.”

                  • He is not the God of the dead, but of the living, from everlasting to everlasting. He is not a man that He should change His mind.

                    If we don’t believe that He loves us, and that these things He’s written for our benefit, and that they are true, we’re the poorer for it, fools even.

                    It’s all sexual sin, but we give a pass to fornication and adultery. Look at the havoc that continues to wreak.

                    God loves me, I do better when I love him back. We are His bride, after all.

                    If your best friend says, “hey, buy this card for me, and write in it ‘I love you honey'”, knowing it was going to his lover of one year, not his wife of 20, would you do it?

                    That’s what the baker was asked to do.

                    Proud to be called backward and irrational.

                    Good day to you sir.

                    • Terrible analogy, and not even close to fair or illuminating. See, if I’m in the business of writing people’s cards, I have no rightful control over what is chose to be written, nor is it rational for me to insist on it. Taking the element of a public accommodation out of the situation is stacking the deck. If it’s not a business, we aren’t having this conversation.

                      The same principle is applicable to pharmacists who don’t want to sell birth control to unmarried women. Tough. If you can’t do the job for everyone, pick a different line work.

  3. Well done, Glenn. One day after the ruling, I am more sure than ever that Phillips and his bakery business are about to be driven out of Colorado. One way or another. Waiting for a mob to occupy and stage a “marry-in.”

  4. Let us paraphrase this passage from the opinion from the Colorado Court of Appeal.

    that the act of same-sex marriage picketing funerals is closely correlated to Craig’s and Mullins’ sexual orientation the Phelps’s religion, and therefore, the ALJ did not err when he found that Masterpiece’syour refusal to create a wedding cake picket sign for Craig and Mullins the Phelpses was “because of” their sexual orientation religion, in violation of CADA

    HTML is useful in illustrating analogies.

  5. It should be no more acceptable for a sign-maker to say . . . “I won’t make that sign” than for a cabbie to say, “I won’t drive to that address,”

    Considering that you usually come up with exemplary examples, I have to consider this one arguable on several grounds, distance and danger being two I have noted myself. That’s why smart cabbies always insist on having the address before accepting the fare. Once he (or she) takes off for parts as yet unknown, they are committed to the destination to the extent that they can call the dispatcher for support, or the police as necessary.

    What would be clearly unethical would be to charge an extra, under-the-chassis, cash amount to complete the ride. In which case a passenger could and I would — and once did, back in the pre-mobile phone days — refuse to get out until I the cabbie ordered another cab from that company to take me where I needed to go (NYC taxi driver: “no going north of 125th Street after ten p.m.”), and tell him he would be paid what was on the meter at the time he stopped to argue. We compromised on my getting out without paying anything. I went to the nearest pay phone and made a complaint to the company and later, after hearing nothing from the company, notified the NYC Taxi Commission. … didn’t hear anything from them either, but I wasn’t then the pesky crusader I grew into in later years. Nowadays, armed with a freshly recharged mobile phone . . . I can call the manager myself from the cab — one time, a successful threa…promise — or even order a wedding cake for me and my (so far nonexistent) husband while on my way to the bakery.

    • You can also legally refuse to make a cake that is too difficult and impossible—the too far, too dangerous feature changes the rules. Can a taxi driver say, “Nope, my religion tells me that place is bad, and I won’t contribute to its evil business by taking you there. No, they can’t, and the excuse is invalid. Same with “your cake offends ME.” Similarly, I don’t hold actors responsible for the politics or the film they are in, or the characters they play.

      • See, and this is admittedly tangential, I feel a muslim would be allowed to hold this position, and if forced to go against what he believes his religion dictates, would be lauded by progressives as a downtrodden martyr.

        This, as much as the stupid cake, is what much of the objection is about from Christians. Double standards offend, and should offend, all rational people.

    A South Dakota lawmaker on Monday said businesses should be able to turn away customers based on race.

    In a Facebook comment, state Rep. Michael Clark, a Hartford Republican, said business owners should have the final say in who they serve.

    Clark’s initial comment came in response to the U.S. Supreme Court’s narrow decision Monday siding with a Colorado baker that refused to make a cake for a same-sex couple’s wedding.

    “He should have the opportunity to run his business the way he wants,” Clark wrote. “If he wants to turn away people of color, then that(‘s) his choice.”

    Entirely predictable, and predicted. Inevitable.

    Yet..the more I think on it, the more I support the SCOTUS decision. There was obvious animus expressed on the part of two commissioners. That taints the whole process, which until then was due process, not a kangaroo court. If throwing out otherwise valid decisions is the price that has to be paid when obvious animus is involved at the final step, so be it. This pernicious practice must be nipped in the bud.

    Besides which, it is a very, very useful precedent from a GLBTI viewpoint.

    • …And the left is beginning to wake up to the fact that the modified Golden Rule is taking root in their formerly principled opposition.

      ‘Do unto others as they have done unto you, or as they would do unto you.’

      Better pull the reins, progressives, as you are about to reap a whirlwind.

      • My nod to your prophecy there, slickwilly. I live in Texas, where being a “right-winger” is more the norm (except in and near the biggest cities). But the things I have heard right-wingers outside of Texas saying lately have been most alarming. It’s happening, that rooting of the modified Golden Rule. It really is. I am hearing things that I would never say aloud, even if I thought them – from people in California, Oregon, and Florida. I think it’s already too late for the proglefties to do anything to stop the mounting and multiplying animus. But, as we have both seen, there isn’t enough self-awareness among either of the opposing camps to compel any corrective action-from-within (or non-action).

        I understand that weather forecasters have a “Torcon” scale from 1 to 10, in reference to likelihood or probability of tornadoes – 10 being most likely. If I could design a perfect “Apocon” scale from 1 to 10, for an apocalypse (which these days, seems to be the term for “a catastrophic development of grave impact upon all”), I would say the Apocon for an outbreak of nationwide violence between groups of right-leaning and left-leaning residents has moved from 5 to about 7 in the past 3 or 4 years. I think we both know that TRUMP is not going to move that needle lower, either.

  7. “Our underlying goal for the staff and members at CrossFit Infiltrate and our other gyms CrossFit White river and University Ave CrossFit is total health and well-being for the individual and community. Total health involves the body, the emotions, relationships, and the spirit. At the foundational detractor from health, as we believe God sets the parameters for, is pride. We believe that true health forever can only be found within humility, not pride. Humility is seeing oneself as they truly are, and as God truly defines them to be. As a business we will choose to deploy our resources towards those efforts and causes that line up with our own values and beliefs.

    “Of course we will continue treat anyone and everyone with the same respect and provide the same service at CrossFit Infiltrate to anyone that wishes to take part”

    – Reason given for a Gym cancelling a Gay Pride workout event.

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