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Supreme Court Takes The Cake

[ Posted Monday, June 4th, 2018 – 16:40 PDT ]

Today, the Supreme Court punted. Or, to be more properly seasonal, they ruled that a runner didn't touch second base so they invalidated his home run. The case before them was Masterpiece Cakeshop versus Colorado Civil Rights Commission, a test case that dealt with the limits of the freedom of religion and the state's right to regulate commerce to assure equal treatment under the law for all. However, the ruling did not directly address that weighty constitutional issue, but rather ruled that the state behaved improperly in its decision-making process. They didn't rule on the decision itself, in other words, but rather how it was arrived at. This is the big reason why the ruling was not another 5-4 decision, but rather 7-2. If the high court had ruled on the actual question before them, no matter how they ruled it most probably would have been another close 5-4 split.

The facts of the case aren't that important, given the ruling, since the key constitutional question being challenged wasn't even addressed. But in case anyone hasn't been paying attention, here is what happened: a gay couple living in Colorado could not get married (at the time) because their state did not allow gay marriages. So they flew off to Massachusetts and tied the knot. But because all their friends and family lived in Colorado, when they got home they planned a celebration of their new marriage. This nuance might have been legally important, but it turned out not to be. Many news organizations are getting this wrong today, it's worth pointing out. The ceremony in question was not actually a gay wedding, merely a secular party to celebrate the union (no religion was involved on the part of the couple, in other words, the way it might have been if the event in question had been an actual gay marriage).

One of the new husbands went with his mother to a local bakery, Masterpiece Cakeshop. They wanted to buy a wedding cake for the party. The baker, when he discovered the facts of the marriage, said he did not (quite literally) cater to gay marriages. His religious beliefs informed him that gay marriage was wrong, and therefore he could not in good conscience bake a cake for the planned party.

Colorado, however, has a civil rights statute which explicitly states that all businesses open to the public cannot discriminate against people for their sexual orientation. So the turned-away customers filed a complaint. The Colorado Civil Rights Commission heard their case, and ruled that they were in the right and the baker was in the wrong -- that the baker had explicitly stated that he was refusing them service directly because his religious beliefs demanded he discriminate against gay couples celebrating marriages. Seldom are civil rights cases so cut-and-dried, in fact, because in most of them the high burden is proving that discrimination actually happened and that the discrimination was illegal because a protected class was being discriminated against. In this case, however, there were no such questions to be resolved, since the baker openly stated why he was refusing service to the customer.

Since the baker lost in front of the state commission, he sued in federal court. This is the actual case that the Supreme Court heard. What they decided was that illegal discrimination had indeed happened, but that the discrimination was against religion, and that the Civil Rights Commission was the one who had perpetrated the discrimination. To return to our baseball metaphor, it would be like a batter who hit a ball that hit a foul pole, but otherwise made it out of the park. Rather than reviewing the umpire's decision that the ball was a legitimate home run (or not), instead the court ruled that the runner didn't physically touch second base, and therefore the hit was to be scored as a mere single rather than a home run. The key question -- the ball hitting the pole, and whether it was still in play or foul -- was ignored.

The upshot of the Supreme Court's ruling, therefore, is that the constitutional question of where religious freedom begins and ends versus where equal rights in the marketplace begin and end is still wide open. Another test case will be required to draw a necessary boundary line between the two when it comes to gay marriage (and discrimination against gays in the marketplace in general). The cakemaker is not alone -- his is not the only federal case in the system that pits people in the wedding industry against gay couples' rights. What it means is that the court will have to accept a much clearer test case, one without the side issue of the behavior of the state in coming to such a ruling.

It's worth noting that two of the liberal justices voted with the majority. The ruling condemns the Colorado state board for going too far in the opposite direction -- in effect, being openly hostile to religion in general when deciding this specific case. The questioning of the cakemaker during the commission's legal process showed an anti-religion bias on the commission's part, which is what the court ruled was unconstitutional. The Civil Rights Commission, rather ironically, was ruled to be discriminatory (towards religious beliefs). From some of the comments and questions the commission made during the process, this behavior was pretty egregious, which is why the argument against it convinced two of the Supreme Court's liberals to agree with the conservative justices.

But this isn't all that unusual for the court to take this route, really. Recall, if you will, that legalizing gay marriage across the land actually required two Supreme Court decisions, because the first one similarly dodged the larger constitutional question. In 2013, the court ruled in United States versus Windsor that the federal government could not refuse to recognize gay marriages performed in states that had legalized the process. But this ruling was a technical one -- it didn't change any state laws, it merely said that the federal government had to abide by every state's definition of what marriages were acceptable. It wasn't until two years later, in 2015, that the court ruled in Obergefell versus Hodges that same-sex marriage was in fact a constitutional right that no state could deny. In other words, it is common for the court to punt an initial case before returning to the core legal subject later on, partly to give society time to get used to the idea.

So today's ruling isn't as big a victory for those arguing religious freedom as they might think, and it isn't as big a defeat for equal treatment under the law for gay couples as its supporters might believe. The Supreme Court, in this instance (and apologies in advance for the pun) decided to "take the cake," this time around. But it always prefers the cleanest of test cases when deciding basic constitutional questions, and it determined that this one was seriously flawed. So it'll be the next test case they take up on the cake-baking issue that will likely determine the constitutional questions involved.

I'd like to close with a longish excerpt from an article I wrote three years ago on the subject, which examined some of the wide spectrum of constitutional cake-baking questions that are now still up in the air, because I fear today's ruling will be subject to a whole lot of oversimplification by the media and by the public at large. There are still a lot of valid questions left to be answered, some of which few people have even now considered. Today's ruling changes none of these questions, meaning the Supreme Court will have to wade into them sooner or later.

It strikes me that people on both sides of this issue haven't fully thought through the consequences of their relative positions quite yet. After all, we are talking about using the power of government (fines, shutting down a business, etc.) to compel bakers to bake cakes they don't want to bake (or decorate). The government already does this, to a certain extent, since a baker would face the same fines for refusing to bake a cake for someone of a different race or religion, on the grounds that their religion would consider doing so a sin. Religious beliefs that are deemed detrimental to society's well-being are already constrained, in other words. What we're arguing over is merely another extension of granting such civil rights.

When someone on your own side of the political divide is the one getting their ox gored, it's easy to call up the righteous indignation. But when the issue cuts back a different way, it's also easy to get squeamish about supporting the full range of what you're advocating. Many who agree that bakers should be able to refuse gay weddings would be horrified to learn that this also might eventually encompass the right to refuse to bake a cake for a divorced person's wedding. Many who agree that bakers should be forced legally to cater to gay weddings would likewise be horrified that this might eventually force a baker in Harlem to cater to a K.K.K. reunion party. The dodge of "here's the icing, you write it yourself" is likely not going to stand up legally, if all bakery customers must be served equally (unless the baker forces everyone to write their own messages, that is). There are passionate arguments on both sides of this divide, but many have the flavor of simple rationalization. One outcome is desired, and all the possible complications are conveniently ignored or dismissed out of hand.

These are all weighty issues, far outweighing a fluffy confectionary concoction. The Cake Wars might seem fairly simple at the moment -- centered as they are around the baker and the gay wedding -- but there are larger issues to contemplate, legally. These not only encompass the freedom of religion, but also the freedom of speech and the freedom of association -- all guaranteed us in the Bill of Rights. At its heart (aptly, since we're arguing about cake, after all), the issue is one of how to legislate good taste. Which cakes are in such poor taste that the order can be legally refused? Which cakes will be deemed in good enough taste to legally force all bakers to bake and decorate them? Either way, the issue is a lot stickier than just the question of marriage equality.

-- Chris Weigant

 

Follow Chris on Twitter: @ChrisWeigant

 

25 Comments on “Supreme Court Takes The Cake”

  1. [1] 
    Kick wrote:

    Very well said, CW. I think the Supreme Court made the right decision under the specific circumstances of this particular case, and you nailed the facts of the case which others are overlooking in favor of disinformation to further their political agenda.

    Speaking of rights and political agenda, BLOTUS just disinvited the Philadelphia Eagles from the White House, blasting the Super Bowl champions for not agreeing with his policy of standing for the national anthem.

    They disagree with their President because he insists that they proudly stand for the National Anthem, hand on heart, in honor of the great men and women of our military and the people of our country. ~ Donald Trump

    It seems to me like the people who understand the concept that no one can insist that the "cake baker" must perform in a manner with which he disagrees might see their way clear to recognizing that it's not altogether different than a President of the United States who "insists" how citizens must perform to suit him.

  2. [2] 
    Balthasar wrote:

    Writing for the court, Justice Anthony Kennedy pointed to one commissioner’s comments that religion had been used to justify slavery and the Holocaust and that invoking religion to hurt others is “despicable.”

    “The commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion,” Kennedy wrote.

    And Kennedy's ruling is inconsistent with the concept that our laws should be realistic about Religion, while guaranteeing the everyone be allowed to pray to the fictional idol of their choice.

    The statement by whatever Colorado Commissioner incurred the wrath of the majority has the unfortunate virtue of being true: religion has indeed been used to justify truly heinous policies, including slavery and the Holocaust; it is (or should be) entirely reasonable to question whether this is yet another case of the same. The Supremes have here in effect gagged the courts from considering this pertinent question in future cases, to the detriment of due consideration and common sense. It shouldn't be out of bounds for any Court to ask any question, as long as the intent or source of that question isn't malicious.

    This is in fact a win for those who would use religious belief to justify their bigotry, hatred and narrow mindedness, a total step backward for our whole society. And henceforth, no Court will even be able to question that out loud. Sad!

  3. [3] 
    nypoet22 wrote:

    seems like a cop-out decision. i think it's clear the commissioner was making a rhetorical point, not going full godwin over a wedding cake. a better analogy might have been segregated lunch counters in the jim crow south. could those lunch counters have constitutionally stayed segregated if their religious beliefs said people of different skin color need to be separate?

    JL

  4. [4] 
    Michale wrote:

    However, the ruling did not directly address that weighty constitutional issue, but rather ruled that the state behaved improperly in its decision-making process.

    Yes.. In effect, the SCOTUS ruled that government commissions can't use bigoted, intolerant and hateful processes to push an unpopular partisan agenda..

    One of the new husbands went with his mother to a local bakery, Masterpiece Cakeshop.

    A bakery well-known for it's religious affiliations..

    Out of the HUNDREDS of bakeries in the city, they choose the ONE bakery they knew would have a religious aversion to serving them...

    https://www.dailywire.com/news/31408/walsh-gay-couple-masterpiece-cakeshop-case-matt-walsh?utm_medium=referral&utm_source=idealmedia&utm_campaign=dailywire.c

    What they decided was that illegal discrimination had indeed happened, but that the discrimination was against religion, and that the Civil Rights Commission was the one who had perpetrated the discrimination.

    WORD......

    The Civil Rights Commission, rather ironically, was ruled to be discriminatory (towards religious beliefs). From some of the comments and questions the commission made during the process, this behavior was pretty egregious, which is why the argument against it convinced two of the Supreme Court's liberals to agree with the conservative justices.

    X2......

    The VERY first Amendment of the US Bill Of Rights and the US Constitution has religious freedom at it's base...

    Unless you want to concede special rights for gay people, forcing a religious baker against their will to create a cake for a gay couple is no different than forcing a liberal baker against their will to bake a MAGA cake for President Trump's birthday party...

  5. [5] 
    Michale wrote:

    Balthy,

    And Kennedy's ruling is inconsistent with the concept that our laws should be realistic about Religion,

    "realistic" according to whose definition?? Those who hate and are intolerant of religious beliefs??? :^/

  6. [6] 
    Michale wrote:

    JL,

    seems like a cop-out decision. i think it's clear the commissioner was making a rhetorical point, not going full godwin over a wedding cake. a better analogy might have been segregated lunch counters in the jim crow south. could those lunch counters have constitutionally stayed segregated if their religious beliefs said people of different skin color need to be separate?

    The decision goes to who is the more aggrieved party..

    If the gay couple really just wanted a celebratory cake, they could have gone to ANY one of a hundred bakers without a single hiccup.. The facts clearly indicate that they were looking for activism..

    In this particular case, the harm to the baker to violate his beliefs or lose his business is MUCH MORE egregious than the "harm" of the gay couple to....

    "OH MY GOD, WHAT A FUCKING NIGHTMARE!!!"
    -Marissa Tomeii, MY COUSIN VINNY

    ..... find a different baker..

    If one looks at it with an objective eye w/o regards to a political agenda, one can clearly see the logic in the ruling..

    This gay couple decided to bully a religious baker to push their activist agenda and they got their wee-wees whacked...

    End of story...

  7. [7] 
    Michale wrote:

    Hay CW...

    Are you going to Live Blog the California races today?? :D

    Can't wait to see if the Democrats out-foxed themselves.. :D

  8. [8] 
    TheStig wrote:

    CW-You were way ahead of the press pack on this court question and your blackbox wayback machine proves the point. 3 Years! Extra credit for the baseball analogy.

    Kick-1 Petty man child Trump takes his White House Ball and goes home. I doubt the players care much, since many weren't going. Eagles management probably saw the invite as a potential wedge issue of team unity, so they happy too.

    nypoet22 I agree that it looks like a cop-out, but CW makes a pretty good case that it may be strategic decision to avoid this particular battle at this particular time in American History. In the words of Lord Trump* "We'll see."

    * Would Trump be less of an A-Hole if he didn't have such a high register voice? Bit of manliness overcompensation? Could a good voice coach have changed history. Sadly, we will never know.

  9. [9] 
    C. R. Stucki wrote:

    Balthy [2]

    You and that "commissioner" fail to differentiat between 'sins' (acts) of COmission and those of Omission.

    Justifying slavery or "holocaust" on religious grounds results in serious harm to black folks and Jews

    Justifying refusal to bake a cake for a queer couple inflicts physical harm on nobody.

    Yeah, you can respond to the effect that it inflicts emotional harm on the people, but in spite of how much Dems/Libs wish otherwise, there is NO constitutional guarantee against being offended!

  10. [10] 
    Michale wrote:

    Would Trump be less of an A-Hole if he didn't have such a high register voice? Bit of manliness overcompensation? Could a good voice coach have changed history.

    So, no we're voice-shaming in addition to all the other physical attributes you attack President Trump over??

    You hysterical NeverTrumpers really ARE no different than you accuse Trump and Republicans of being... :^/

    Sad....

  11. [11] 
    Balthasar wrote:

    voice-shaming? That's a new one. Every national politician in my memory bank has been lampooned, parodied, and imitated mercilessly. I know folks who can do a pretty gook JFK, still.

    One of the things I dislike about Baldwin's Trump, aside from its total lack of nuance, is that he fails to pick up the 'preciousness' of the man, from the high register of his voice to the way he keeps his hands suspended in the air like a French decorator (although some of his gestures are also jarringly similar to those I've seen on religious statuettes like the ones my mother used to put all over our house). He also sometimes gets into a defensive sitting posture like that of a young boy being punished.

    But compared to many presidents, comedians have been surprisingly soft in their imitations of Trump since his election. I would have expected otherwise.

  12. [12] 
    Balthasar wrote:

    I know folks who can do a pretty good JFK, still.

  13. [13] 
    nypoet22 wrote:

    @ts,

    Society is going in a definite direction. Whether sooner or later, roberts must be concerned about presiding over this era's plessy v ferguson

    JL

  14. [14] 
    Michale wrote:

    voice-shaming? That's a new one.

    You like it? I channeled my inner SJW for that one..

    It's a savage beast that is never allowed to see the light of day...

    Every national politician in my memory bank has been lampooned, parodied, and imitated mercilessly.

    Yea.. But never with such hatred and bigotry and intolerance..

    But compared to many presidents, comedians have been surprisingly soft in their imitations of Trump since his election.

    Of course you would say that..

  15. [15] 
    Michale wrote:

    I know folks who can do a pretty gook JFK, still.

    I guess you let out yer inner racist now and then, eh? :D

  16. [16] 
    Kick wrote:

    TS
    8

    Petty man child Trump takes his White House Ball and goes home.

    Petty is exactly right because the BLOTUS has an issue with crowd size. When he found out that the vast majority of the team had refused to come, he freaked out and cancelled on the dozen or so that were planning to attend and then politicized the event.

    This First Amendment issue isn't complicated in the least. Those who respect the cake maker's right to exercise his First Amendment rights while "insisting" that the football players (or anyone else) can't exercise theirs are pushing a political agenda, particularly when they are a POTUS violating the very oath they swore to "preserve, protect and defend the Constitution."

    For the record, none of the Philadelphia Eagles players took a knee so they couldn't have been the "sons of bitches" Trump was referring to when using the issue as red meat to divide people, and Trump's reason for disinviting them was yet another lie. The Eagles players stood.

    Would Trump be less of an A-Hole if he didn't have such a high register voice?

    No.

  17. [17] 
    nypoet22 wrote:

    Comedy is often a reflection of reality. If bigotry is what Donald's seeing opposite him, it's because he's earned it by showing so much bigotry of his own.

  18. [18] 
    Michale wrote:

    Comedy is often a reflection of reality. If bigotry is what Donald's seeing opposite him, it's because he's earned it by showing so much bigotry of his own.

    So, how does the Left justify their bigotry???

  19. [19] 
    Kick wrote:

    Michale
    14

    Yea.. But never with such hatred and bigotry and intolerance..

    Those whose Party and themselves tolerate the calling of names like school children of their opponents regardless of party affiliation and the wearing of t-shirts by some to describe their opponent as that "C" word they whined about Samantha Bee using to describe Ivanka, that "P" word that Trump uses on a regular basis, and referring to citizens exercising their rights to free speech as "sons of bitches" who wish to whine incessantly like victims about "hatred, bigotry, and intolerance" is the very pinnacle of hypocrisy.

    #Pathetic
    #Speck-Eye-Log
    #Pot-Kettle-Black
    #Reap-What-You-Sow

  20. [20] 
    Michale wrote:

    If bigotry is what Donald's seeing opposite him, it's because he's earned it by showing so much bigotry of his own.

    Oh.. I see..

    NeverTrumper bigotry is perfectly acceptable because President Trump has shown bigotry too..

    OK... I got it...

    Here I thought ya'all were claiming you are BETTER than President Trump...

    Now you concede ya'all are no better..

    OK... Fine.. Glad that is on the record..

  21. [21] 
    Kick wrote:

    nypoet22
    17

    Comedy is often a reflection of reality. If bigotry is what Donald's seeing opposite him, it's because he's earned it by showing so much bigotry of his own.

    Yes, sir. It's a simple concept, really... "reap what you sow." The multiple lies that Donald Trump has told about Barack Obama with all the birther nonsense and on his Twitter feed is recorded for posterity, and I hope the fat, bald, Orange Blowhole and his kind are able to live long enough to experience what real bigotry feels like instead of the fake white male grievance they whine incessantly about. :)

  22. [22] 
    nypoet22 wrote:

    i wasn't referring to anyone here, just comedians.

  23. [23] 
    Michale wrote:

    i wasn't referring to anyone here, just comedians.

    I stand corrected..

    But my point is valid nonetheless...

  24. [24] 
    Michale wrote:

    The ruling of the SCOTUS is not as narrow as the Left would like us to believe..

    In a nutshell, the Court ruled that the state of Colorado violated Jack Phillips’s free-exercise rights in two specific ways. First, the Court singled out examples of obvious anti-religious animus to show that Phillips did not receive a fair hearing from the Colorado Civil Rights Commission. Most egregiously, one commissioner compared Phillips’s principled refusal to custom-design a cake for a gay wedding to religious arguments for slavery or the Holocaust. Writing for the majority, Justice Kennedy rightly declared the statement “inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation.”

    While the Court could have ruled against Colorado based solely on the commissioners’ expressed anti-religious animus (a ruling that truly would have been narrow), it went further. Justice Kennedy also noted the existence of a rather profound double standard. It turns out that even as Colorado punished Jack Phillips for refusing to design a cake for a gay wedding, it had protected the right of bakers to refuse to create cakes with anti-gay messages. In other words, the existence of obvious favoritism was itself evidence of anti-religious animus.

    Not only was the CO Commission bigoted and prejudiced against the baker, they showed a double standard insofar as allow OTHER bakers to refuse to bake cakes based on THOSE bakers beliefs...

    THAT is the part of the ruling that is going to bite the SJW's on the ass...

  25. [25] 
    Kick wrote:

    Michale

    You continue to rather conveniently miss the fact that Mr. Phillips didn't refuse to "design a cake for a gay wedding." They never got to the "design" part of the equation you keep harping on. The baker refused to sell them a wedding cake... any wedding cake... without any knowledge whatsoever regarding what type of cake they wanted.

    https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf

    As is so frequently your modus operandi, you post partisan rhetoric with a political agenda that you highlight in bold without providing a link to your source and without crediting the author(s)… like this partisan puff piece by "The Editors" of National Review.

    Now in this baker's defense, he apparently did offer to sell these guys anything else they wanted from his bakeshop, but he would not sell them a wedding cake. As stated in the Supreme Court's decision, there were disputes among the parties involved regarding the facts of the case, and I imagine that's simply one of many reasons why they ruled narrowly here and punted it back down to Colorado, which committee is likely to rule the same way but with a nicer tone the next time around.

    In the meantime, Mr. Phillips does not and will not sell custom wedding cakes to anyone because to sell a product to some customers but refuse to sell it to others is not allowed in the State of Colorado where he chooses to do business. If you don't believe me, check out his website.

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