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.