SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Case

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SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Case

Postby aviel » Tue Jun 05, 2018 1:13 am

Excuse the weird topic title; it's all I could fit within the character limit.

The Supreme Court issued a ruling today in Masterpiece Cake Shop v. Colorado Civil Rights Commission, No. 16-111 (2018). You might've heard of this case. A baker in Colorado refused, on religious grounds, to make a cake for a gay couple's wedding. Colorado law, however, prevents public accommodations (like a cake shop) from discriminating on the basis of sexual orientation. The couple therefore filed a charge before the Colorado Civil Rights Commission and won, but the baker argued that the freedoms of speech and religion protected by the First Amendment prohibited Colorado from forcing him to make and sell a cake when he was religiously opposed to doing so.

The case made its way to the Supreme Court, which, in an opinion by Justice Kennedy, decided narrowly in favor of the baker. The majority essentially explained that, although Phillips (the baker) could not use his religion to avoid obeying a "neutral law of general applicability", Employment Division of Oregon v. Smith, 494 U.S. at 879 (1990), the Colorado Civil Rights Commission nevertheless stepped over the line by showing hostility towards Phillips' religious views. The case therefore isn't like to have much broader impact, because the decision relied on the specific facts of how Colorado's commission handled it.


My opinion on the case
TL;DR: I more or less take Kagan's view of it.

I don't have any objection, in principle, to the kind of analysis Kennedy does here. I think it's reasonable to say that, although the state can impose an antidiscrimination law that is neutral and generally applicable with respect to religion, it can't administer that law in a manner motivated by religious animus. That's essentially the same principle as the court articulated in Yick Wo v. Hopkins, 118 U.S. 356 (1886) (ruling that San Francisco's exclusive enforcement of its facially neutral fire codes against Chinese-owned laundromats was unconstitutionally discriminatory), but applied to religion instead of race.

I'm not fully convinced by all of the examples Kennedy cites as proof of religious animus, however. For example, he points to statements by Colorado's commissioners which explained that someone who wants to do business in Colorado may have to compromise on some of his religious beliefs. But this isn't an expression of animus towards religion; it's just a restatement of the Supreme Court's principle that the First Amendment does not prohibit neutral laws of general applicability. See, for example, U.S. v. Lee, 455 U.S. at 261 (1982) ("When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. ")

I'm more persuaded that a commissioner's statement calling Phillips' beliefs "despicable" and comparing them to support for the Holocaust, constitutes animus towards those beliefs. Godwin's law aside, I agree with a portion of the message of the commissioner's statement; homophobic beliefs, whether or not justified by religion, are discriminatory and abhorrent. But it isn't necessary to make that kind of adverse normative judgment of a religious view when deciding that Colorado's civil rights law is neutral and generally applicable. People don't get to use a religious belief to disobey the law regardless of whether that belief is detestable or sympathetic; and it's certainly not the place of the government to decide which is which.

The final explanation Kennedy gave for finding religious animus in the commission's decision, however, is a bit more complicated. He objected to the fact that the commission reached a different decision in the current case -- in which the commission decided that Colorado's civil rights law prohibited Phillips from refusing to sell a cake -- from other cases in which the commission allowed cake shops to refuse to sell cakes that bore homophobic messages along with religious text. In the other cases, the customers argued that the cake shops were discriminating against them based on their religious views, but the commission decided in favor of the bakers. Kennedy argued that the comission's decision to rule against Phillips but in favor of the other bakers could have been motivated by an unconstitutional preference against homophobic religious views.

While I agree with the majority that the commission did not provide a sufficient basis for distinguishing between those cases, I disagree with Gorsuch's and Thomas' assertion that there is no way to make that distinction.

Kagan got it right. In this case, Phillips would have sold a cake for use in a heterosexual marriage even though he wouldn't have sold the exact same cake for use in a same-sex marriage. In the other cases on which the commission ruled, the cake shop owners would have refused to sell the requested cakes to anyone, for any purpose. Phillips' therefore can't claim that the expressive message conveyed by his cake exempts him from Colorado's civil rights law, because his refusal to sell the cake isn't about the cake's message per se, but about the customers to whom he is selling.

Gorsuch and Thomas each fail to understand this distinction. Gorsuch, for example, characterizes Kagan's concurrence as suggesting that the distinction between a cake made for a same-sex marriage and a cake made for a heterosexual marriage doesn't matter enough to deserve First Amendment protection. Gorsuch then suggests that, by contrast, Kagan thinks that the difference between a cake bearing a homophobic message and a cake that doesn't have such a message is enough to deserve First Amendment protection.

The problem with this characterization, however, is that the difference between a cake made for a same-sex marriage and a cake made for a heterosexual marriage isn't just minute -- it's nonexistent. Phillips would have refused to sell the exact same cake, already baked, to a gay couple for their wedding, even though he would sell it for use in a straight wedding.

Thomas also fails to appreciate this fact. Thomas' concurrence explains that wedding cakes convey a message, and therefore constitute protected speech under the First Amendment. Accordingly, requiring Phillips to bake a cake conveying a message with which he disagrees violates the First Amendment.

But, as Kagan explained, Phillips isn't being required to bake a cake conveying a message with which he disagrees. It's just that, given the existence of a wedding cake, Colorado law prohibits him from selling that cake for straight weddings and not gay ones. It's the same cake, regardless of customer. Colorado therefore isn't controlling the message of the cake, just the manner in which it is sold.

Thomas' analogy to Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011) makes this point clearer. Violent video games are, as the Court held in that case, protected expression under the First Amendment. But I don't think anyone would suggest, for example, that Gamestop could invoke the First Amendment to defend a refusal to sell a video game to a customer because of the customer's race. That's because the expressive value comes from the product, not its sale. And it's the creation of the product, not its sale, that the First Amendment protects.

Despite the fact that the Court was highly fractured in this case, I think there's a lot of agreement about the underlying law. Every justice except maybe Gorsuch and Thomas seems to agree, for example, that Phillips can refuse to create a cake which itself endorses gay marriage, but can't refuse to sell a cake he would have made anyway to a gay couple. Additionally, the Justices all seem to agree that, while antidiscrimination laws may be neutral and general applicable, they can't be administered in a manner that is discriminatory on the basis of religion. The primary source of disagreement seems to come from the facts -- specifically, the question of what cakes Phillips actually would or wouldn't bake, and for whom.

Hopefully on remand Colorado will be able to better articulate the reasons why it distinguished Phillips' case from cases involving a refusal to bake homophobic cakes, and the law can be settled correctly.
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Re: SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Cas

Postby SandTea » Tue Jun 05, 2018 2:56 am

Yeah, I'm distressed but not surprised by this. I hope these pricks stick to their "principals" and put up 'no gays allowed' signs on their windows so everyone can exercise their right to tell them to fuck off. Maybe some "straights only" water fountain/bathroom signs as well. The conservative majority in the supreme court has always been detrimental. They always make it one step forward, ten steps back. Maybe one day people will be kind to each other but I'm not holding my breath.
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Re: SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Cas

Postby Krashlia » Tue Jun 05, 2018 3:55 am

I have a controversial opinion:
If the conservative Supreme Court was as conservative as one fears it is, they would've made that ruling a broad one.
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Re: SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Cas

Postby JamishT » Tue Jun 05, 2018 4:32 am

As much as I appreciate and respect your opinions, Avi, I'll wait until tomorrow when I'll hear Nina Totenburg break it down on NPR (I get Morning Edition and All Things Considered downloaded as podcasts in the morning, so I haven't heard today's ATC yet). She did tweet about it without making it sound like the 7-2 decision was close like many other headlines, which is nice.

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

Postby Deathclaw_Puncher » Tue Jun 05, 2018 5:04 am

While it doesn't set as a precedent so as to allow the right to refuse service to LGBT Americans, my main concern is whether the case could be used as a precedent to argue discrimination as a valid religious tenant.
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Re: SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Cas

Postby aviel » Tue Jun 05, 2018 5:14 am

Deathclaw_Puncher wrote:While it doesn't set as a precedent so as to allow the right to refuse service to LGBT Americans, my main concern is whether the case could be used as a precedent to argue discrimination as a valid religious tenant.

This case makes clear that the courts don't get to decide which religious tenets are valid.
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Re: SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Cas

Postby Crimson847 » Tue Jun 05, 2018 7:55 am

I'm a little surprised they didn't go 5-4 on a broader opinion in favor of the cake shop. This route definitely takes some heat off the Court--the decision was narrow and bipartisan, everyone went home with a prize, and they punted on the central question at issue, all of which help reduce the stakes and mollify people. Certainly helps burnish the cautious reputation of the Roberts Court.
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Re: SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Cas

Postby aviel » Tue Jun 05, 2018 8:52 am

Crimson847 wrote:I'm a little surprised they didn't go 5-4 on a broader opinion in favor of the cake shop.

I suspect that part of this was Scalia's absence. I feel like we know what opinion he would have written in this case, and it would have been ugly. Without that, it was easier for the Justices to reach a consensus. Everyone here was polite. Nobody insulted anyone else's opinion, or suggested that sexual orientation was a mere lifestyle choice undeserving of legal protection.
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Re: SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Cas

Postby CarrieVS » Tue Jun 05, 2018 1:20 pm

I agree with Avi and apparently with Kagan (who I presume dissented? You didn't actually say.) Apparently I don't agree, and must have misread the OP.

Arguing that you'd provide a birthday cake for a gay wedding and therefore aren't discriminating is like defending a refusal to sell a dress to a man because you'd allow him to buy trousers. It's not the same thing. If he wanted a dress, trousers are not the same thing. Nor is a kilt.

But by way of playing Devil's Advocate, a wedding cake with rainbows on it comes to mind.

I think everyone agrees that the bakers are within their writes to refuse to produce a cake with an explicit message of support for gay marriage.

The LGBT community don't own rainbows and they stand for plenty of other things, so if a heterosexual couple who served a cake decorated with rainbows at their wedding, it would likely not be construed as a message of support for gay marriage or LGBT rights. Not everyone has white cakes these days.

But context matters in communication, and a rainbow wedding cake in the context of a gay wedding could well be taken as carrying such a message. Yet it's an identical cake.

And if you allow that the context of the cake matters, then it gets harder to argue that a wedding cake in the context of a gay couple isn't a message of support for gay marriage.


At the end of the day though, I don't think any of that holds water (I wasn't actually convinced of that until I finished typing it out, though.) If you sell a product you're generally not responsible for, and have no control over what a customer does with it afterwards. I could serve that unobjectionable birthday cake at my gay wedding* with little models of two grooms or two brides on top of it and the effect is just the same. Besides, if you're really that worried, you could always refuse to make rainbow wedding cakes for anyone.


*If I were having a gay wedding, or any wedding.
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Last edited by CarrieVS on Tue Jun 05, 2018 3:06 pm, edited 2 times in total.
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Re: SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Cas

Postby IamNotCreepy » Tue Jun 05, 2018 2:06 pm

I'm of two minds on this, and I am trying to reconcile the cognitive dissonance.

I recognize the importance of safeguarding the civil rights of people, especially with disaffected groups such as LGBT and minorities.

On the other hand, as a person of faith myself, I also understand the point of view of the baker not wanting to do something that violates his religion, even if I don't agree with his position.

What I try to do in these situations is reframe things in a different way. Let's substitute "interracial wedding" for "gay wedding". Someone refusing to bake the same cake for an interracial wedding instead of an all-white wedding would certainly run afoul of civil rights laws.

I agree with Avi that if the content of the cake is the same, and the only difference is the recipient, then that is discriminatory and would run afoul of the law. So, refusing to put a religious, homophobic message on a cake would be okay, and I'm guessing that refusing to sell a generic cake for use at a religious, homophobic event would not be okay.
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Re: SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Cas

Postby Crimson847 » Tue Jun 05, 2018 2:19 pm

CarrieVS wrote:I agree with Avi and apparently with Kagan (who I presume dissented? You didn't actually say.)


She wrote a concurring opinion, which means she agrees with the court's judgment (presented in this case by Kennedy) but differs in her reasoning. Breyer joined her concurring opinion, Gorsuch wrote a second concurring opinion that Alito joined, and Thomas wrote a third concurring opinion. Ginsburg wrote the sole dissenting opinion, which Sotomayor joined.
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Re: SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Cas

Postby iMURDAu » Tue Jun 05, 2018 9:26 pm

aviel wrote:
Crimson847 wrote:I'm a little surprised they didn't go 5-4 on a broader opinion in favor of the cake shop.
Nobody insulted anyone else's opinion, or suggested that sexual orientation was a mere lifestyle choice undeserving of legal protection.


And that's why the SCOTUS is boring. No villain stepped up to fill the vacuum. Electable villains have a much shorter shelf life. Appointed villains are necessary, we just have to limit their power.
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Re: SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Cas

Postby Absentia » Wed Jun 06, 2018 1:00 am

aviel wrote:
Crimson847 wrote:I'm a little surprised they didn't go 5-4 on a broader opinion in favor of the cake shop.

I suspect that part of this was Scalia's absence. I feel like we know what opinion he would have written in this case, and it would have been ugly. Without that, it was easier for the Justices to reach a consensus. Everyone here was polite. Nobody insulted anyone else's opinion, or suggested that sexual orientation was a mere lifestyle choice undeserving of legal protection.


But we didn't get any delightful new legal terms like "jiggery-pokery", either. You have to admit, the man was an entertainer.
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Re: SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Cas

Postby Crimson847 » Wed Jun 06, 2018 2:39 am

Absentia wrote:
aviel wrote:
Crimson847 wrote:I'm a little surprised they didn't go 5-4 on a broader opinion in favor of the cake shop.

I suspect that part of this was Scalia's absence. I feel like we know what opinion he would have written in this case, and it would have been ugly. Without that, it was easier for the Justices to reach a consensus. Everyone here was polite. Nobody insulted anyone else's opinion, or suggested that sexual orientation was a mere lifestyle choice undeserving of legal protection.


But we didn't get any delightful new legal terms like "jiggery-pokery", either. You have to admit, the man was an entertainer.


We've got one of those in the White House now. No need for SCOTUS to duplicate functionality.
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Re: SCOTUS Narrowly Rules in Favor of Baker in Gay Cakes Cas

Postby blehblah » Wed Jun 06, 2018 9:27 pm

Of all things, I first heard about this thanks to Donald Trump Jr.

https://www.alternet.org/trump-jr-offer ... y-schooled

Commenting on an Associated Press article announcing the Court’s “narrow” decision, Trump Jr. chimed in, “I am reading about a 7 - 2 vote. Pretty sure that's not narrowly... At least 2 dem leaning justices must have agreed.”


*dramatic pause whilst we all take a deep breath*

As for the decision itself, I figure it's fine. Generally, supporting someone's ability to not sell their products to someone doesn't bother me, so long as it doesn't impact the rights of the customer. People, so far as I understand it, don't have the right to cake, but it would be different were it a doctor or even a pharmacist (doing doctor or pharmacist things, not denying their patients cake; let's leave that to the dentists).

An example up here in Canada is pondering if doctors who don't agree with assisted suicide should be able to completely avoid dealing with it, be required to refer a patient to a doctor will help, or must help.

Back to religion - do whatever you want; I'm totally fine with it, so long as it doesn't infringe on what I consider more important rights. Refuse to sell cake for a gay marriage? Fill yer boots. You're not my kind of paddy-cake maker, but everyone has that one crazy uncle. Put a sign in your window saying, "Help wanted - gays need not apply," and you're pushing my buttons. Marry-off teens to elderly men? Straight to jail with ya.

I know it's more nuanced than that, and Avi broke it down nicely. This particularly caught my eye:

aviel wrote:Kagan got it right. In this case, Phillips would have sold a cake for use in a heterosexual marriage even though he wouldn't have sold the exact same cake for use in a same-sex marriage. In the other cases on which the commission ruled, the cake shop owners would have refused to sell the requested cakes to anyone, for any purpose. Phillips' therefore can't claim that the expressive message conveyed by his cake exempts him from Colorado's civil rights law, because his refusal to sell the cake isn't about the cake's message per se, but about the customers to whom he is selling.


Can someone, based on the first amendment, refuse to express something? I'm thinking of the example of writing something on the cake (or, in any other way, expressing something in the creation of the product)? If, let's say, the couple asked for those little figurines on top of the cake, would that count? I suppose even if it does, he could sell them the generic cake, but refuse the, arguably, expressive flourish (or rainbows, following Carrie's example).

Anyhow - very interesting. Thanks for the break-down, Avi.
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