SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Case

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Re: SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Cas

Postby Crimson847 » Mon Jun 11, 2018 7:34 am

aviel wrote:The majority didn't say that cakes with Leviticus 18:22 quotes had to treated the same as cakes for gay weddings. Only Gorsuch's opinion (joined by Thomas) said that. The majority only said that, if the civil rights commission wants to treat them differently, it has to provide a better reason than that it found the Levicitus quote offensive. Four of the justices even agreed on the specific better reason expressed in Kagan's concurrence. (Three more justices expressed no opinion on that justification).


Four? I count only two: Kagan and Breyer. Are you counting Ginsburg and Sotomayor here?

If so, then that still leaves a 5-4 majority for treating such cases the same, a view the four conservatives and Kennedy have already endorsed. No justice has expressed "no opinion" on the matter; I don't know how you got that idea. Roberts is the closest, but even he signed on to Kennedy's opinion and declined to join Kagan's or write a concurrence of his own, which sends a distinct message.

Additionally, the majority opinion made itself very clear that it was not a license for discrimination. For example, Kennedy explained:

[W]hile ... religious and philosophical objections are protected, it is a general rule that such 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.



And if that quote wasn't specific enough to make it clear that the opinion should not be read authorizing religiously motivated discrimination, Kennedy clarified:

[A]ny decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying "no goods or services will be sold if they will be used for gay marriages," something that would impose a serious stigma on gay persons.


I can see how it would appear that way. However, Kennedy is drawing the same distinctions and referring to the same limiting principles that religious liberty litigators have been hammering on for years in response to this case: specifically, the distinction between art and mere "goods", and the distinction between refusing a particular project for conscience reasons and refusing a customer in toto due to a protected identity. What he's saying is entirely consistent with what religious-liberty proponents have been arguing, which is not that people should be free to issue blanket denials of service to gay people. Rather, the argument is that a narrow exemption should be made in cases where someone is being asked to use their art to express a message they disagree with, whether the speech takes the form of an article, a painting, or the celebratory words and symbols on a custom-decorated wedding cake.

Kennedy's quoted words draw a distinction between this and forms of discrimination that religious liberty proponents largely do not support, like refusing to provide any goods or services (whether custom-made or not, and whether the good or service endorses their union or not) to gay people, as well as to outcomes that religious liberty proponents expect to easily avoid, like a situation where a gay couple can't reasonably find a baker to make a wedding cake for them because every bakery within 50 miles is an independent shop run by a Bible-thumper (hell, even in the Deep South there's always Wal-Mart). He's not rejecting the religious liberty line on the issue; he's echoing it.



On a more practical note, I'd like to point out that the practical effect of the ruling was to allow Phillips and others in his situation to discriminate. The Court didn't outright say "discrimination is okay if these conditions are met", but they did reverse the judgment against him and impose a likely insuperable obstacle to having it reapplied, in practice guaranteeing his freedom to discriminate even if they declined to put it that way. So it seems absurd to argue that the Court's opinion demonstrates that it wouldn't allow...the very thing it just de facto allowed. I mean, if a man sticks a gun in your face and demands your money, but insists he isn't robbing you and goes on a big speech about how robbery would be terribly wrong, which are you going to believe? His words or his actions?
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Re: SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Cas

Postby aviel » Mon Jun 11, 2018 8:17 am

Crimson847 wrote:Four? I count only two: Kagan and Breyer. Are you counting Ginsburg and Sotomayor here?

Gorsuch and Thomas insisted that cakes for gay weddings have to be treated the same as cakes with homophobic messages on them.

Kagan, Breyer, Ginsburg, and Sotomayor said that those cases did not have to be treated the same, and specific reasons why. Ginsburg's provided reasons were essentially a superset of Kagan's; see, for example, Masterpiece Cake Shop, at 6 n.5 (Ginsburg, J., dissenting) (explaining that the difference between the cases is the difference between "a cake with a particular design and one whose form was never even discussed.")

Kennedy, Alito, and Roberts (who all joined only the majority opinion) did not say either way whether the cases before the civil rights commission had to be treated the same. The majority opinion only said that the specific justification identified by the commission (that the messages on the homophobic cakes were offensive) was insufficient. There didn't seem to be any disagreement by any of the Justices on this point.

Rather, the argument is that a narrow exemption should be made in cases where someone is being asked to use their art to express a message they disagree with, whether the speech takes the form of an article, a painting, or the celebratory words and symbols on a custom-decorated wedding cake.

I think this is an accurate statement of the argument; it's just that that doesn't translate into a license to discriminate. Phillips wasn't asked to make a custom-decorated wedding cake. All the Justices seem to agree that he could not be required, even by anti-discrimination laws, to make such a cake if it bore a message with which he disagreed.

But no cake design was discussed in this case. The issue therefore wasn't about the artistic message, it was just about whether he would sell a cake for use in a gay wedding. If he's allowed to refuse to sell an already made cake, whose message was already determined before any buyer asked for it, then he can do exactly what the majority opinion said he couldn't, i.e., refuse to sell any product to be used in a gay marriage.

This thread of conversation started when Tess clarified that the ruling did not create a constitutional right to refuse to sell cakes for use in gay weddings. The majority expressly says as much when it says that you can't post a sign saying "'no goods or services will be sold if they will be used for gay marriages'", Masterpiece Cake Shop, at 12 (Opinion of the Court). That's what I mean, and presumably what Tess means, when we talk about the case not creating legal sanction for discrimination. If that's not the kind of liberty that religious freedom advocates want to exercise, then great; we're all in agreement.

The Court didn't outright say "discrimination is okay if these conditions are met", but they did reverse the judgment against him and impose a likely insuperable obstacle to having it reapplied

I disagree. The obstacle is very easy to super; all the civil rights commission has to do is say that Phillips (and others similarly situated) can't refuse to sell wedding cakes to gay couples (because that would violate Colorado's civil rights law), but can refuse to bake or design cakes where the design contains a message with which they disagree (because the design is protected speech). This allows the commission reach the exact results it wants consistent with the Supreme Court's opinion, prohibiting behavior like Phillips', but allowing bakers to refuse to make cakes with hateful messages.
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Re: SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Cas

Postby Crimson847 » Mon Jun 11, 2018 10:33 am

Firstly, Alito joined Gorsuch's opinion, Avi.

I think this is an accurate statement of the argument; it's just that that doesn't translate into a license to discriminate. Phillips wasn't asked to make a custom-decorated wedding cake. All the Justices seem to agree that he could not be required, even by anti-discrimination laws, to make such a cake if it bore a message with which he disagreed.

But no cake design was discussed in this case. The issue therefore wasn't about the artistic message, it was just about whether he would sell a cake for use in a gay wedding. If he's allowed to refuse to sell an already made cake, whose message was already determined before any buyer asked for it, then he can do exactly what the majority opinion said he couldn't, i.e., refuse to sell any product to be used in a gay marriage.


Phillips was indeed asked to make a custom-decorated wedding cake. The specific design was never discussed, but it was understood that this would be a custom cake.

https://www.supremecourt.gov/opinions/1 ... 1_j4el.pdf (see page 3 describing the bakery's services, noting that the wedding cakes were custom, and the civil rights commission's finding mentioned at the end of page 6 that Phillips had denied the service in question--"custom wedding cakes"--to other gay customers as well)
https://www.washingtonpost.com/opinions ... 9f6c137b72 (an op-ed by Phillips outlining the events of that day as he understood them)

This thread of conversation started when Tess clarified that the ruling did not create a constitutional right to refuse to sell cakes for use in gay weddings. The majority expressly says as much when it says that you can't post a sign saying "'no goods or services will be sold if they will be used for gay marriages'", Masterpiece Cake Shop, at 12 (Opinion of the Court). That's what I mean, and presumably what Tess means, when we talk about the case not creating legal sanction for discrimination. If that's not the kind of liberty that religious freedom advocates want to exercise, then great; we're all in agreement.


Generally speaking I don't get the sense that the religious-liberty folks think the same protection should be extended to premade cakes. Even the Phillips case was considered a less-than-ideal example because he refused before a design was even discussed, making the free-speech argument harder. If he'd waited for the couple to ask for a cake decorated with rainbows to celebrate gay pride (as they reputedly ended up getting), he'd have been on firmer ground and his defenders would have been happier.

So if you're alright with the Jack Phillipses of the world refusing to make custom cakes for gay weddings, then you are indeed in rough agreement with religious freedom advocates and should have no problem with the ruling shaking out like French expects. Saying that "we all" agree seems too broad, though, since I know for a fact there are lots of folks to your left who aren't with you on that point.
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Re: SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Cas

Postby aviel » Mon Jun 11, 2018 6:36 pm

Crimson847 wrote:Firstly, Alito joined Gorsuch's opinion, Avi.

Good point, I mixed that up.

Phillips was indeed asked to make a custom-decorated wedding cake. The specific design was never discussed, but it was understood that this would be a custom cake.

I don't get the impression from the opinion that Craig and Mullins were requesting a custom wedding cake, but it also doesn't clarify that they weren't, so let's say (given Phillips' account) that they were. Even so, if the design was never discussed, then the design isn't the reason he refused to bake them a cake. If it were, that might be protected by the First Amendment. Instead, he's refusing to bake them a cake because they're going to use it in a gay wedding. The majority opinion clarified that this kind of discrimination was lawfully prohibited by Colorado's civil rights law.

So if you're alright with the Jack Phillipses of the world refusing to make custom cakes for gay weddings, then you are indeed in rough agreement with religious freedom advocates and should have no problem with the ruling shaking out like French expects. Saying that "we all" agree seems too broad, though, since I know for a fact there are lots of folks to your left who aren't with you on that point.

Two clarifications: I'm okay with people in Phillips' situation refusing to make cakes whose designs they believe convey approval for gay weddings. But if they'd make the same custom cake for a straight wedding, then the opinion makes clear that a refusal to make that cake for a gay wedding is lawfully prohibited under Colorado law.

Second, by "we all" I just meant you, me, Tess, and the Justices of the Supreme Court.
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