December 5, 2017

Here's the oral argument transcript in the Masterpiece Cake case.

PDF. I'll just "live-blog" my reading of it.

1. Kristen K. Waggoner, the lawyer for the cake-maker, expresses her argument concisely:
The First Amendment prohibits the government from forcing people to express messages that violate religious convictions. Yet the Commission requires Mr. Phillips to do just that, ordering him to sketch, sculpt, and hand-paint cakes that celebrate a view of marriage in violation of his religion.
And Justice Sotomayor and Justice Ginsburg both try to jump in with the first question. Ginsburg prevails and asks what if there's no special order, just an attempt to buy a cake off the shelf. Waggoner says her argument is about compelled speech, and if the cake is already made, there's no compelled speech problem.

Justice Kennedy doesn't seem to be accepting this limitation based on what happened first. The cake-maker "expressed himself" when he made the cake, so why can't he withhold the cake when he finds out his expression will be incorporated into a larger speech event that makes the cake say something he doesn't want to say? Waggoner's answer refers to "the stream of commerce," as if once the cake is made and on the shelf, the cake-maker's speaking is in the past, and the customer's acquiring the cake for the customer's purpose exerts no compulsion on the mind of the cake-maker. (I'd add that if the cake-maker wants to exert control over the expression that is a wedding cake, he'd only need to refrain from selling "pre-made" wedding cakes.)
2. Like Justice Kennedy, Chief Justice Roberts seems to push Waggoner to ask for more. If the cake-maker must sell the gay couple the pre-made wedding cake, that's "compelling him to associate [his] message" with something he doesn't want to have to say. Waggoner agrees that the Court could draw a line that gives her a bigger win than she's been arguing for.

3. Waggoner utters the line "The artist speaks," and that gives Justice Ginsburg the opportunity to ask "Who else is an artist?" This transforms the argument, because who wants judges deciding what is art? Is a florist, doing flower arrangements for weddings, also an "artist"? The person who does the invitations? The menu? Waggoner says the key is whether there is a "message" — in words or symbols. The objection can't be "to the person." Justice Kagan joins in and asked about the jeweler and then the hairdresser. Waggoner equivocates about the jeweler but says "Absolutely not" about the hairdresser. Kagan — perhaps sarcastically — asks "Why is there no speech in creating a wonderful hairdo?" And Waggoner says it "may be artistic," but it's not speech. Kagan notes that a "makeup artist" is called an "artist," but Waggoner (wisely) says it's not a question of art but speech. Kagan continues to talk about art, Waggoner holds her ground. It's about speech, and makeup is not speech, and Kagan retreats to the observation that some people think cakes are not speech.

4. Justice Sotomayor asserts that the primary purpose of food is to be eaten, though "the other night," she had a box of cupcakes and one of them was "smashed against the box," so it didn't get eaten. Waggoner repeats something she'd said earlier: the wedding-cake-maker is "sketching and sculpting" on the cake, and that expresses a message. Justice Alito picks up on the idea that something could be "speech" while also having a non-speech purpose: What about architecture? Waggoner doesn't use this idea to extend her argument. She doesn't see buildings as speech. That triggers justice Breyer, and I always love the moment in an argument when Breyer pipes up. I just love how he talks:
So in other words, Mies or Michelangelo or someone is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now, that -- that really does baffle me, I have to say.
Ooh! This is the moment I said I was waiting for: the high/low distinction in art. How could the lowly baker be protected where Michelangelo is not?!

Waggoner repositions herself: She'd only said that "generally" architecture isn't speech. Breyer:
Well, then, what is the line? That's what everybody is trying to get at, because obviously we have all gone into a Mexican restaurant. They have this fabulous mole specially made for the people at the table to show what important and wonderful evening it was, which it did import -- impart. There are all kinds of restaurants that do that. And maybe Ollie's Barbecue, you know, maybe Ollie thought he had special barbecue.
Ollie's Barbecue is the restaurant in the very famous Supreme Court case that upheld the provision in the Civil Rights Act of 1964 that barred restaurants from discriminating based on race. Breyer continues:
All right. Now, the reason we're asking these questions is because obviously we want some kind of distinction that will not undermine every civil rights law from the -­ from -- from the year 2 -- including the African Americans, including the Hispanic Americans, including everybody who has been discriminated against in very basic things of life, food, design of furniture, homes, and buildings. Now, that is, I think, the point of the question, and I've tried to narrow it and specify it to get your answer.
In other words: You shouldn't win unless you can give us a strong line to separate the possibly small thing your client needs from these very big civil rights accomplishments. Unsurprisingly, she repeats her simple idea: Speech. "Is there speech?" And Breyer rejects that: "And there isn't one of the people I mentioned who doesn't think he is communicating something."

5. Kagan asks: What if someone wanted to order a cake for an interracial wedding and the cake-maker who believed these unions were wrong made the "compelled speech" argument? Waggoner said that would be "very different." Well, then, what about a cake for an interreligious wedding? That would be the same as the same-sex wedding cake? Why?! Waggoner says that in the case of race, the objection would be based on "who the person is" and not "what the message is." Justice Gorsuch finally speaks, and he observes that the state also makes the "who the person is"/"what the message is" distinction, so Waggoner needs to get into the deeper question of whether this is "really about the person's identity."

6. Next, we hear from Noel J. Francisco on behalf of the United States, which is supporting the cake-maker. Ginsburg immediately pushes him about the impossibility of drawing lines, and he throws out the idea of "an African American sculptor [compelled] to sculpt a cross for a Klan service," which I guess is a way to argue that obviously you're going to have to draw a line around something. Kennedy reminds him of the larger problem of a right to "boycott gay marriages." And: "If you prevail, could the baker put a sign in his window, we do not bake cakes for gay weddings?" Wouldn't that be "an affront to the gay community"? Of course, an "affront" — in words — is obviously speech. What can Francisco say? He rattles on about "dignity interests." (Maybe he's read somewhere that Kennedy concerns himself with "dignity interest.")

7. Francisco talks about drawing the line where protected speech begins by comparing things that are questionably speech to what "everyone regards as traditional art" and by asking whether it's "predominantly art or predominantly utilitarian" (which sounds like way too much trouble!). Apparently in support of the idea that wedding cake is not "predominantly utilitarian," Gorsuch says "I have yet to have a wedding cake that I would say tastes great." The transcript does not indicate where there is laughter, but presumably the crowd laughed.

8. Breyer brings up the "artisan" — who is, "a kind of artist." He says: "For many years Congress has passed laws saying, at least to the artisans: You cannot discriminate on the basis of -- of race, religion, dah, dah, dah." He doesn't want to introduce "chaos" in all those laws.

9. Kennedy worries that if the cake-maker wins, there might be a movement to get all cake-makers to stop making cakes for same-sex weddings. Francisco the Court should still find wedding-cake decoration to be protected speech, because if this hypothesized boycott happened, speech could, perhaps, be compelled because a court could find that strict scrutiny had been passed, because it would be necessary to meet a compelling government interest. (The compelling government interest would have to be in access to wedding cakes.)

10. Now, arguing for the state of Colorado, we get Frederick R. Yarger. Roberts asks him whether "Catholic Legal Services" would be forced to take on a same-sex marriage issue, and Yarger tries to steer the discussion back to businesses "operating in the sense of a retail store." But the Colorado law would seem to apply to Catholic Legal Services, and Roberts posits that the group has taken "every other customer to date." Yarger struggles, and Kennedy saves him: It becomes a Free Exercise Clause question.

11. Kennedy wants to talk about the Colorado Commissioner who said that using religion to justify discrimination is "despicable." Yarger says, as I noted in an earlier post, that he wouldn't have advised his client to say that and that he (Yarger) now disavows it. Kennedy asks:
Suppose we thought that in significant part at least one member of the Commission based the commissioner's decision on -- on -- on the grounds that -- of hostility to religion. Can -- can your -­ could your judgment then stand?
This gets to the issue of whether there's discrimination against religion (which would trigger strict scrutiny under the Free Exercise Clause (as opposed to the Free Speech Clause, which had been the main subject up to this point). Yarger says one statement would not be enough, so Kennedy posits: "Well, suppose we -­ suppose we thought there was a significant aspect of hostility to a religion in this case." Yarger concedes it "that would be a problem."

12. Justice Sotomayor wants to know how many commissioners there were. If one said something that showed he had hostility to religion, why should it matter? The question is whether this cake-maker was targeted because of religion, but here, the Commission responded to a complaint and it took action as a body of 7. Sotomayor is implying that Kennedy is bothering with something that doesn't matter. Roberts squelches that idea by observing that there are cases about judicial panels where one judge should have been disqualified, but there are enough other judges in the majority to produce the same result without that judge's vote. Because the process is "deliberative," you can't just cancel that one vote and accept the result because "the one biased judge might have influenced the views of the other."

13. Breyer says that it would be better if legislatures would craft narrow exceptions for people like this cake-maker, and courts can't just write narrow exceptions. They need to state principled reasons that will keep the exception properly narrow and not interfere with important other law. Breyer says he "can't think of a way to do it." Yarger just agrees with that, naturally.

14. Justice Alito brings up 3 other cases the Commission considered, in which opponents of same-sex marriage had gone to other bakeries and tried, unsuccessfully, to order anti-gay-marriage cakes. In those cases, the Commission didn't intervene and say the bakers had to make those cakes. Yarger says those cases were different, because the bakers were not refusing to sell these customers a type of cake that they would sell to other customers. It was a different kind of cake. But you might think that a wedding cake, when sold for a same-sex wedding, becomes a different kind of cake. But Yarger's argument is that's the same cake and it's only considered different because it is put into the context of the identity of the people who buy the cake. This might strike you as an intriguing philosophy question, but judges must stay grounded in the real world, and here the question is whether the cake-maker was discriminated against because of his religion, and the state is arguing that he was targeted because he discriminated, based on the identity of the customers. Those other people, who tried to order the cakes that expressed an anti-gay message were not discriminated against because of who they were but because they wanted something written on the cake that the baker found offensive. The answer to that — which Alito voices — is that to Jack Phillips (the Masterpiece Cake baker), the wedding cake made to order for a same-sex wedding expresses approval of same-sex marriage, and he doesn't want to express that message, so it's not about who the customers are, but what they want to make the cake-maker say.

15. After Sotomayor raises the topic of rainbow cakes, Justice Kennedy is called to the higher level of abstraction:
Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it's mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs. And -- because accommodation is, quite possible, we assume there were other shops that -- other good bakery shops that were available.
In other words, why can't the government give this conscientious man a break? I think the real answer is: We, the people of Colorado, want to say that discrimination against gay people is wrong, and we don't want to see it reframed as something good, just because a man who can present himself as good says he needs to do it. But that's not how Yarger responds (and this is what might be the most crucial moment in the oral argument, because it's where Kennedy's vote is, perhaps, determined). Yarger says the state did take religious rights very seriously, it listed to "the faith community," and it made some exceptions but declined to make this exception.

16. Breyer supports Yarger by asking whether it would be good enough if an anti-same-sex-marriage baker had an arrangement with another baker down the street, and he referred same-sex wedding cake customers to that other baker. They'd get their cake. Yarger says: "You cannot turn [someone] away from your storefront if you're a retail store." But then (and this surprises me) he says it might be okay, as long as the customers don't receive "lesser service." But they're diverted from one store to another. They're treated differently in a way that hurts their dignity.

17. Roberts brings up the fact that Colorado did not recognize same-sex marriage in 2012 when the Jack Phillips refused to make this wedding cake. The whole state was discriminating against gay people at the time (which was before the Supreme Court required states to recognize same-sex marriage). Yarger says that even though same-sex marriages were not recognized as a legal matter in Colorado at the time, same-sex couples could still have weddings. That certainly wasn't illegal. Alito says it's odd that if these 2 men — Craig and Mullins — had gone to the state government for a marriage license, the state would say no we don't do that, but when they go to the cake store and the baker says "no I won't do it... he's created a grave wrong." What sense does that make?

18. To answer Alito's question, Yarger returns once again to the idea that a wedding cake is a type of cake, and Phillips made that type of cake and turned away the customers because of who they are. It's at this point that Alito poses the hypothetical that I made into a free-standing post, but I'll put it here for the sake of completeness:
So if someone came in and said: I want a cake for -- to celebrate our wedding anniversary, and I want it to say November 9, the best day in history, okay, sells them a cake. Somebody else comes in, wants exactly the same words on the cake, he says: Oh, is this your anniversary? He says: No, we're going to have a party to celebrate Kristallnacht. He would have to do that?
Yarger says the baker could refuse to sell the cake for the Kristallnacht context, because his objection would be to the message and not "the identity of the customer."

19. Gorsuch brings up the fact that the state ordered Phillips to train his staff to follow the state law, and that was also compelled speech. Kennedy observes that the man is forced to teach others (including his family members who are employees) that "state law... supersedes our religious beliefs."  Yarger says he only has to say that because we are operating a place of public accommodation, we must follow the government's law. That is, in order to keep running a bakery that makes wedding cakes, he must not only make wedding cakes for same-sex weddings (and thereby violate his religion), he must instruct other people to do what he believes is a violation of his religion. He has to teach the violation of religion — and teach it to his family. That makes me think of the saying of Jesus, "If anyone causes one of these little ones—those who believe in me—to stumble, it would be better for them to have a large millstone hung around their neck and to be drowned in the depths of the sea." My understanding of what Jesus said is that it's much worse to teach others to violate religion than it is to commit a violation yourself.

20. The fourth lawyer to speak is David Cole, who represents the 2 men who made the original complaint. His prepared beginning is to say that discrimination against gay people should be treated the same as discrimination against black people. What the bakery did to his clients is as bad if it had objected to "celebrating black lives" and tried to use that to justify refusing to sell a birthday cake to a black family. Chief Justice Roberts reminds him:
When the Court upheld same-sex marriage in Obergefell, it went out of its way to talk about the decent and honorable people who may have opposing views. And to immediately lump them in the same group as people who are opposed to equality in relations with respect to race, I'm not sure that takes full account of that -- of that concept in the Obergefell decision.
Cole says that those with opposing views are free to have their views and to express them, but that doesn't mean they run a business that turns gay people away.

21. Breyer asks a very confusing question, but I think it boils down to what we've been talking about all along: Compelling speech is a different kind of intrusion on the shopkeeper than requiring him to serve people he doesn't like. And now were back into the metaphysics of whether the cake is the same cake if it's sold for a gay wedding. Cole stresses that his clients were refused service before they got to the stage where they might ask for custom details of any kind (such as 2 masculine names or any words about gay marriage).

22. Kennedy has a hypothetical about a "complex cake" that needs the baker to attend the wedding to supervise the cutting and make sure "the thing doesn't collapse." Cole concedes that a special exception might be required to spare the baker from having to participate in "a religious ceremony that an individual deeply opposed." (I note the cake isn't normally part of a religious ceremony, but the reception after the ceremony.) That triggers Breyer, who really seems to want to leave exception-making to the legislature. He says "we can't have 42,000 cases, each kind of vegetable that the preparer thinks is something special."

23. Breyer returns to his idea of the artisan. You saw, at #8, that he called the artisan "a kind of artist," but now he says "An artisan is not quite the same as an artist." I still ask, why does anything depend on art? Artisans might make fin "custom good" with "an element of expression," but "where the clash is between an important public policy, the policy of opening the doors to everyone, including  minorities, in the public commercial area, well, there the speech element of the artisan is not really sufficient to outweigh that." He pronounces his own idea — which presumably gives different stature to real artists — as "pretty straightforward," and he admits — I love this —"I don't know how it fits within the law and the so forth." Perfect! First comes the instinct for where the right answer is — that's the artist part, his part — and then comes the legal reasoning pulling it all together — that's for the artisans of the law, maybe law clerks or this lawyer he's got right here. Cole says — and I strongly agree with him — "it is just not possible to develop doctrine based on how expressive, how artistic the speech is."

24. Cole says what the Court should do is "ask what's the state's interest in regulating? What's the state doing?" And if the state is regulating the conduct — here, the denial of service — then there's no free speech problem. It's like the case (O'Brien) where the government criminalized burning your draft card. The Court saw the government as running the draft, so it didn't matter that O'Brien had was engaging in expressive conduct, protesting the draft.

25. Alito asks what about the "words on the cake"? They can't be just "expressive conduct." They're words. Actual speech. Cole redirects him to the conduct of refusing service. That's what the government is regulating (and you need to look at the problem from the government's point of view, like that time the Supreme Court helped the U.S. government enforce the military draft by choosing to prosecute the person who made a public show of burning his card).

26. Alito raised the hypothetical of a business that writes custom wedding vows, and what if someone specifically wanted the expression of the idea "that we don't believe in God, we think that's a bunch of nonsense." Could that business turn that customer away? Cole concedes that case could be treated differently, which triggers Kennedy: "Differently on what basis?... On what principle?" Cole suggests a rule against "compelling somebody to engage in a religious ceremony that is against their deep religious commitment." Cole says that would require modifying Employment Division v. Smith (which said neutral, generally applicable law doesn't violate the Free Exercise Clause), and Roberts says "It sounds like an overruling of Smith."

27. Gorsuch offers a hypothetically that's virtually identical to Alito's Kristallnacht hypo (at #18):
Let's take a case a little bit more likes ours, and -- and it doesn't involve words, but just a cake. It is Red Cross, and the baker serves someone who wants a red cross to celebrate the anniversary of a great humanitarian organization. Next person comes in and wants the same red cross to celebrate the KKK. Does the baker have to sell to the second customer? And if not, why not?
Cole gives the same answer Colorado's lawyer gave to the Kristallnacht hypo: The objection is not based on the customer's identity. Gorsuch follows up: Why can't we characterize it as identity? The baker refuses to deal with KKK people. Why does that have to be characterized as a message when the refusal to make a gay-wedding cake isn't characterized as a message?  Great question. Perhaps THE question. And you know what happens? Justice Ginsburg sweeps in and helps him reframe his answer: If it's identity-based discrimination, it's an identity that isn't protected from discrimination. Colorado's public accommodations law specifies the protected identities. This solution leaps over Gorsuch's quandary about whether it's really about speech or really about identity.

28. Kennedy gets back to the facts of the actual case and wants to talk about whether the refusal to serve was about identity or speech. Once the cake-maker knew these were 2 men who wanted a wedding cake, he reacted to the message he was being asked to put on the cake. He wasn't rejecting them for who they were, but what they were asking him to say (via cake). He didn't need to know anything more about the customized details of the cake they would have ordered. We can still say this is about speech and not conduct. That's Kennedy's question. Cole says that's just like the Bob Jones University case, where the Court considered it race discrimination for the university to ban interracial dating.

29. Cole on his own returns to the KKK hypothetical and makes it more difficult. (Good for him!) What if instead of the KKK, it was a religious group with the same beliefs as the KKK. Now, you've got a would-be customer who is in one of the categories protected from discrimination under Colorado's law: religion. But then Cole screws up the answer to his own question. He proceeds to talk about a case (Piggie Park) where a restaurant owner discriminated against black people and presented his own discrimination as a religious requirement. The improved hypothetical was about a business owner being forced to express a racist message lest he discriminate on the basis of religion. Why didn't any of the Justices pick up on this and ask: Wouldn't your argument require the cake-maker to make the cake with the cross for the KKK-as-religion customer? (Remember, the cake-maker had already made a cross with a cake for the Red Cross, so it's the same cake, but a different customer, where the identity of the customer creates a context that changes the meaning of the cake.)

30. Roberts gets back to his Catholic Legal Services hypo (#10, above). Cole says legal services are completely speech, and not conduct. Roberts insists that legal services involve a lot of conduct.

31. Alito brings up the problem of religious colleges that want to exclude same-sex married couples from it's married-student housing. Cole says that under Employment Division v. Smith, if there's a neutral, generally applicable law requiring nondiscrimination, there's no right under the Free Exercise Clause to an exception. Cole specifies that Smith is a Scalia opinion. And that's where Cole's argument ends.

32. Waggoner has 5 minutes of rebuttal, and before she can get to 3 quick points she wants to make, keyed to the arguments she's just listened to, Justice Sotomayor jumps in and asks a long question on a completely new subject, the fact that Masterpiece Cake is a corporation. Sotomayor seems to follow an etiquette of her own. I'm just going to skip this question (which was big in the 2014 case, Hobby Lobby). I think this is just stealing Waggoner's rebuttal time.

33. Waggoner's 3 points are: 1. The Commission really was biased, considering how it treated the 3 cake-makers who refused to make anti-gay-marriage cakes, 2. Jack Phillips has his own "dignity interest," and 3. "political, religious, and moral opinions shift," but "this Court's dedication to Compelled Speech Doctrine and to free exercise should not shift." And Sotomayor comes back again on that third point.
Counsel, the problem is that America's reaction to mixed marriages and to race didn't change on its own. It changed because we had public accommodation laws that forced people to do things that many claimed were against their expressive rights and against their religious rights. It's not denigrating someone by saying, as I mentioned earlier, to say: If you choose to participate in our community in a public way, your choice, you can choose to sell cakes or not. You can choose to sell cupcakes or not, whatever it is you choose to sell, you have to sell it to everyone who knocks on your door, if you open your door to everyone.
Waggoner has to request more time in order to respond, and the Chief gives it to her. Waggoner responds:
Justice Sotomayor, I hink that the gravest offense to the First Amendment would be to compel a person who believes that marriage is sacred, to give voice to a different view of marriage and require them to celebrate that marriage. The First Amendment....
At that point Sotomayor interrupts. (Honestly, it seems that Sotomayor has overcome all the usual inhibitions that makes most of us worry about whether we're talking too much. And I really don't think she's helping her own side of the argument. She's just so enthusiastic about government compulsion.)
Then don't participate in weddings, or create a cake that is neutral, but you don't have to take and offer goods to the public and choose not to sell to some because of a protected characteristic. That's what the public anti-discrimination laws require.
Roberts on his own offers Waggoner "A brief last word." Waggoner modestly keeps it truly tried:
A wedding cake expresses an inherent message that is that the union is a marriage and is to be celebrated, and that message violates Mr. Phillips's religious convictions.
34. That's it. That took a long time. I don't know if anyone has really read all this, but it was helpful to me to pay attention to every single thing. And now I'm going to use this text — my post — as raw material for some shorter posts that highlight individual Justices. And I want to make a prediction about the outcome and then explain why I think you ought to hope that the your side loses.

122 comments:

eric said...

This is too much nonsense for my brain to handle.

We need to do away with some amendments and add some more. Specifically, no one ought to be compelled into an association with another. Nor should they be compelled not to associate. We got it wrong once and to fix it, we got it wrong again.

Freedom of association. If you want to go to an all Indian female school, go for it. If you want to start a business that only serves male Jews, more power to you!

Quit forcing us to associate if we don't want to.

Michael K said...

I agree with this and it should be noted that in other cases, maybe not this one, gays sought out religious cake bakers, florists and wedding photographers.

In the Oregon case, the gay women had been customers without complaint of the bakery until they asked for the wedding cake.

EDH said...

JUSTICE ALITO: What would you say about an architectural design; is that entitled to -- not entitled to First Amendment
protection because one might say that the primary purpose of the design of a building is to create a place where people can live or work?

MS. WAGGONER: Precisely. In the context of an architect, generally that would not be protected because buildings are
functional, not communicative
.

cubanbob said...

1. Kristen K. Waggoner, the lawyer for the cake-maker, expresses her argument concisely:
The First Amendment prohibits the government from forcing people to express messages that violate religious convictions. Yet the Commission requires Mr. Phillips to do just that, ordering him to sketch, sculpt, and hand-paint cakes that celebrate a view of marriage in violation of his religious.
And Justice Sotomayor and Justice Ginsburg both try to jump in with the first question. Ginsburg prevails and asks what if there's not special order, just an attempt to buy a cake off the shelf. Waggoner says her argument is about compelled speech, and if the cake is already made, there's no compelled speech problem."

For supposedly intelligent people this is really silly. Buying an off the shelf cake like buying off the rack clothes is one thing. Commissioning a cake, just like commissioning a dress is another thing.

Ignorance is Bliss said...

MS. WAGGONER: Precisely. In the context of an architect, generally that would not be protected because buildings are functional, not communicative.

I find cakes of all kinds to be functional. Well, not ones with cream cheese frosting. Any baker should be allow to refuse to frost a cake with cream cheese frosting on moral grounds.

Rumpletweezer said...

How does this work with pre-baked cakes? Is the buyer wearing a shirt that says "We're going to a gay marriage?" Is the shop owner quizzing the customers? "This ain't for no gay marriage, is it?"

n.n said...

They need to address political congruence ("="), not limited to transgender couplets; otherwise, it is certain that this issue will be revisited in perpetuity, until the last minority whatever is served.

Rabel said...

Since we're doing analysis, I'll bring mine up here:

I read through the transcript available through Althouse's WSJ link and it's clear from the first questions to Waggoner that both Sotomayor and Ginsberg were embarrassingly misinformed on the facts of the case. Once corrected, they were thrown off their game and the entire session devolved into a series of increasingly absurd and poorly framed hypotheticals which were mostly unanswerable and did little to advance either side's arguments.

But fear not. I think the case was settled in the first round of questioning when it was established that Masterpiece agreed that they would be required to sell a pre-designed work or a work that did not involve the use of words or symbols, but could not be required to go beyond that and create a customized work that included words or symbols which they felt violated their religious beliefs.

The decision will be 5-4 or possibly 6-3 in a slightly limited victory for Masterpiece.

James K said...

It would be nice if this would result in a broader ruling that "public accommodations" does not refer to custom-made, custom-ordered unique products, only to products offered for sale that anyone can purchase. The latter would include taxi rides, special orders at restaurants, etc. If they rule very narrowly in this case we will just end up with many more battles for years to come.

AlbertAnonymous said...

There is a difference (to some of us at least, apparently some progressives can't see it) between refusing to make the cake because of the message (which should be allowed and which should win the day for the baker) and refusing to make the cake because of the identity of the customer (i.e., because he's gay).

First, I hate the concept that our identity is somehow entirely based on our sexuality/sexual preferences/sexual proclivities. We are (most of us anyway) so much more than who we fuck. So just because someone is gay (or leans that way) doesn't make "gayness" their identity.

This guy will sell any of his products to gay or straights, whites or blacks, Christians or Jews or Muslims. He just doesn't want to make a "gay wedding cake" because he believes there is no such thing and he won't put his imprimatur on one. Won't sell one to a gay person; won't sell one to a straight person.

If the heterosexual Mother of one of the gay guys came in by herself to buy a "gay wedding cake" and he refused, what happens then? Same result? She's not in the LGBTQWERTY protected class (she's straight). His refusal isn't based on her "identity" as gay (because she's not).

Gospace said...

Rabel said...
I read through the transcript available through Althouse's WSJ link and it's clear from the first questions to Waggoner that both Sotomayor and Ginsberg were embarrassingly misinformed on the facts of the case.


Does that surprise you? They're liberals- facts don't matter. Only proper results in accordance with the narrative. Their dissents are likely already written, and not a word in them will be changed. The bakers are evil nasty people who must be punished, to Hell with the Constitution and what it says.

hombre said...

Why is this about art and not about government compulsion in violation of the First Amendment? Are all cake decorators artists? Are photographers? Are proprietors of banquet facilities? Are florists?

By all means, let's create a new privileged class, artists, whose religious beliefs are entitled to be protected by the Constitution while those of the rest of us can be ignored while we are temporarily enthralled by local bureaucrats at the behest of gay agitators.

Unknown said...

So, let's assume the left wins and government can compel a business owner to violate their religious beliefs to support LGBT causes (Note that almost certainly this would only apply against Christians in practice).

So my question then is this: Many ministers and priests are paid. They make a living providing religious services--weddings, funerals, etc.

If the State of Colorado can force someone in business to provide services regardless of religious objection, then isn't it pretty clear that an LGBT "couple" can force a minister to marry them? After all, if they pay his fee... how can he possibly say no? That's discrimination in the course of business; his business. And obviously he couldn't provide a "different" service to them, i.e. he couldn't just do a civil ceremony like a justice of the peace; that would be discrimination against the gay person, wouldn't it?

It seems to me that any kind of paid clergy is pretty well going to be forced to provide religious ceremonies to the gays, regardless of how much it violates their faith. Or else they will starve because they will have to become volunteer clergy.

--Vance

madAsHell said...

O/T, but I can't believe our hostess overlooked this red meat.

Ken B said...

Things get complicated when you start with a false premise and never acknowledge it. Here is the false premise:

It's okay to force people to do things as long as you call it business

Remove that premise and suddenly the case is simple. You are forcing bakers to do something. Obviously you need a basis for doing so. What is your justification? Only that it's business.

If we legalize prostitution, as we should, can prostitutes be compelled to accept any paying client? Yes, if it's just business.

The case seems complex only because this premise can never be questioned, so to prevent that it can also never be stated.

gspencer said...

though "the other night," she [the wise and overweight Latina] had a box of cupcakes and one of them was "smashed against the box," so it didn't get eaten.

*****

Now that's willpower. Yo go girl!

Curious George said...

"Justice Sotomayor asserts that the primary purpose of food is to be eaten, though "the other night," she had a box of cupcakes and one of them was "smashed against the box," so it didn't get eaten."

Oh, c'mon. The wide latina woman ate the smashed one too.

MayBee said...

including the Hispanic Americans, including everybody who has been discriminated against in very basic things of life, food, design of furniture, homes, and buildings.

How have "the Hispanic Americans" been discriminated against?

MaxedOutMama said...

Ann - one could certainly have a wedding without an elaborate special-purpose "wedding cake" (and many do). But no one pre-makes wedding cakes, because the materials cost is high and the goods are perishable. No baker is going to spend two or three days working on a cake to set it on a shelf for a possible sale within the week.

I think the Colorado Commission's behavior in mandating that wedding cakes be designed for and provided to same-sex couples, but that cakes with an "offensive" anti-gay message need not be provided kind of bakes the cake for at least several justices. You have this type of freedom in Colorado only if you exercise it in ways of which the Commission approves. That has to be a deal-breaker for Kennedy.

Unknown said...

Ken B: Leftists get very, very uncomfortable when you ask them if a prostitute can be forced to service anyone, anyone at all. Forcible sex has that unfortunate name of "rape" and is a crime... except when leftists do it, naturally.

But yeah, under lefty logic I don't see any reason why you can't force a prostitute to have sex with you, regardless of her will. It's her business, right? And that means you signed away all your rights when you became a prostitute. Just like Christians did. Not like Muslims, naturally.

--Vance

Real American said...

What a load of crap! Sotomayer ate the whole fucking box of cupcakes and licked the smashed one off the side of the box. Who is she trying to fool?

MaxedOutMama said...

I'm just a little floored at the response to the hypothetical about Catholic Legal Services being obligated in Colorado to do that for same-sex couples! That's what Roberts got Cole to confirm.

Francisco D said...

I strongly disagree with the "freedom of religion" approach that the baker's attorney is taking.

It is simply a case of Freedom.

The state cannot compel involuntary servitude.

As I said in an earlier post, this is not about gay rights or freedom of religion. Those concepts are not in conflict.

The conflict is about freedom versus involuntary servitude (i.e., slavery).

Jupiter said...

Ken B said...
"The case seems complex only because this premise can never be questioned, so to prevent that it can also never be stated."

They state it all the time. That was the whole point of the Civil Rights Act, to establish that property used in commerce belongs to the government, not to the person who pays taxes on it. They slipped it by us because we felt sorry for the poor Negroes. I don't see much chance we'll ever get it back. So now we're reduced to arguing about wedding cakes.

walter said...

Oh no.
I hate when my cupcake gets smashed.
I totally feel her pain.

"we have all gone into a Mexican restaurant. They have this fabulous mole specially made for the people at the table to show what important and wonderful evening it was, which it did import -- impart."

Yes..the importance would surely diminish without it. And boy..we've all been THERE.
Can you ask the chef to write a mole message on your plate?

Bad Lieutenant said...



I find cakes of all kinds to be functional. Well, not ones with cream cheese frosting. Any baker should be allow to refuse to frost a cake with cream cheese frosting on moral grounds.


Iggy, I forgive you. But please just don't say anything about carrot cake.

Christopher said...

"If the State of Colorado can force someone in business to provide services regardless of religious objection, then isn't it pretty clear that an LGBT "couple" can force a minister to marry them? "

Oh don't worry, that's next if LGBTQWERTY has its way.

Bad Lieutenant said...

4. Justice Sotomayor asserts that the primary purpose of food is to be eaten, though "the other night," she had a box of cupcakes and one of them was "smashed against the box," so it didn't get eaten.

Who's she kidding, that box never got opened before she rammed it down.

tim in vermont said...

Doesn't the name "Masterpiece Cake" settle it that it's art?

The Toothless Revolutionary said...

So glad the Republicans are focused on the big issues - like your god-given American right to be a bigoted cake maker.

The narrowness of their vision would overwhelm the most accomplished of amoebas.

dbp said...

From what I had heard about the case, the baker had offered to sell any cake in the cooler to the gay couple. He only refused to make a custom cake for them. So the issue of selling a pre-made cake would not seem germane to this case.

tim in vermont said...

I am thinking denial of service. It wouldn't be that hard for a few dedicated idiots to make this blog hard to use.

The Toothless Revolutionary said...

There is no constitutional right to "associate." Though perhaps there should be.

Instead there is the much more democratic and effective right to peaceably assemble.

MikeR said...

"an African American sculptor [compelled] to sculpt a cross for a Klan service"
What about an African American store owner [compelled] to sell a cross for a Klan service? They Justices all accept that it is right to force him? Not good.

buwaya said...

"The narrowness of their vision would overwhelm the most accomplished of amoebas."

Its quite a broad vision in fact. Which is why the people suing them did it (forced the issue) in the first place. Symbolic issues are the battlegrounds of cultural war.
This one embodies several contentious principles, and more than that a critical matter of power relationships.

Its sort of like calling the Rosa Parks matter narrow.

buwaya said...

"Instead there is the much more democratic and effective right to peaceably assemble.

Apparently not, if one espouses views unpopular in parts of Virginia.
Or parts of California.

AReasonableMan said...

If Obama cured cancer, Trump would try to bring it back

robother said...

Let's be frank about this case. This is a staged event, designed simply to identify and drive a sincere Christian baker out of business. No one in their right mind would demand that someone uncomfortable with "Your Kind" (whatever the category) prepare something to be eaten by Your Kind. As if there are no gay wedding service providers (including cake bakers) in Denver. The whole thing is preposterous, akin to a hate crime hoax.

buwaya said...

ARM,

I heard it first in the opposite construction.

http://thehill.com/homenews/media/347757-hannity-trump-could-cure-cancer-and-the-media-still-wouldnt-like-him

Months before the Clinton flack said it.

buwaya said...

" This is a staged event"

Of course it is. So was the Rosa Parks case. It was intended as agitprop, and more so a dominance display. Symbolic warfare.

The Toothless Revolutionary said...

Apparently not, if one espouses views unpopular in parts of Virginia.

Yes, killing people - young nice female activists - is unpopular even in Virginia.

Or parts of California.

Oh how boo hoo. Wingers can't control the mob. But the totalitarian governments they identify with can.

Policing is the cost of life in a free society. If you can't afford the added security costs of protecting you from the people you want to incite then perhaps the problem is with you and your choice of venue. Not with society or how basic policing works.

tim in vermont said...

He's a troll buwaya. You will have better luck getting on honest argument from TTR.

Matthew Sablan said...

In which TTR acknowledged that violence against minorities is acceptable.

Michael K said...

"Wingers can't control the mob."

One day that may be up for proof.

tim in vermont said...

But the totalitarian governments they identify with can.

Yeah yeah yeah. We are all Nazis. We all throw away dimes because Roosevelt's face is on it. And every VE Day anniversary, we cry into our beer

Matthew Sablan said...

If she couldn't afford the price of protection from the men she incited she shouldn't have worn that skirt, am I right?

Unknown said...

I'm glad to know that Toothless seems to think that whether the government can willy nilly strip citizens of fundamental constitutional rights is a boring question.

I have an idea: Why can't, say, Utah pass a law demanding that every business owner must vote Republican or else they will be fined and ultimately jailed?

I mean, according to the left, every business owner waives all constitutional rights when they open a business, so why not, right? If you don't want to vote Republican, don't own a business--simple as that!

And hey, it's only the government violating your constitutional rights, Toothless! No big deal! You didn't need them anyway.

--Vance

Matthew Sablan said...

What price do you demand of minorities so that the people they incite by existing or speaking don't burn their churches? This is moral bankruptcy.

buwaya said...

"Wingers can't control the mob. "

Indeed. One of the less nice tactics of the Marcos government was to avoid using the cops or the constabulary or the military against the opposition on the streets, but for his allied politicians to let loose their thugs on the fringes of the crowd, and "punish" participants, and try to start riots. That's why we activists were forced to impose strict discipline, perimeters (often of nuns/religious), linked arms, proctors.

The CA tactics are not a bit unfamilar to me. Deniable political enforcers are nothing new.

Diogenes of Sinope said...

If this baker's cakes aren't a work of art and beauty then why would this gay couple want this baker to make their wedding cake?

Sebastian said...

I appreciate the summary of the oral "argument" and all, and a number of comments, but of course it is all beside the point: we are governed by the rule of Tony's urges. He who can deduce SSM from substantive due process and deduce substantive due process from the 14th can do anything. For now, we can't do anything about it. Even if the outcome of this case will, for once, protect actual liberty.

Henry said...

Unsurprisingly, she repeats her simple idea: Speech. "Is there speech?" And Breyer rejects that: "And there isn't one of the people I mentioned who doesn't think he is communicating something."

*Everyone* can be super! And when everyone's super...
[laughs maniacally]
...*no one* will be.


Syndrome is on the right side of history. It's just his methods that are problematic.

* * *

If everyone is communicating something, then you have a harder time drawing a line between what first amendment privileges the cake decorator gets versus the realtor or the small-business lender.

There are a lot of modern artists who have attempted to define the idea of who is an artist when art is conceptual. If ever there were a philosophical watershed of slippery slopes, this is it. I'm conflicted myself. I know enough artists and craftspeople to know how sincerely they treat their work. I also know enough charlatans to know what a pose this can be.

Thanks Althouse. I appreciate the analysis.

Ken B said...

Jupiter
They talk about “its business” all the time, but not the premise that that justifies it.

n.n said...

LGBTQWERTY... Z.

Transgender spectrum.

CStanley said...

Did they ever get around to discussing the "line" that is the obvious distinction? There is no need to quibble about art, expression, and religion when you simply acknowledge that there's a difference between retail sales and contractual work. That is the logical way to give a broad ruling that does not invite future cases litigating the question of "what is art?"

Quaestor said...

Oral arguments about cakes ought to involve tasting a representative sample. Such oral argument would help settle Sotomayor's notion that a wedding cake is just food.

MadisonMan said...

I appreciate the analysis. Thank you! Very interesting to read.

Narayanan Subramanian said...

Scenario:. Baker's daughter has been raped. Rapist out on bail. Rapist comes in shop to special order cake with message " rape is fun".

What to do?

Can decency prevail or bludgeoning under color of law?

CWJ said...

Actually, I think the root problem is that there is a Colorado Civil Rights Commission in the first place. As Mark Steyn illustrated in his multi-year battle against multiple Canadian equivalents, these entities are jumped up neighborhood associations with the power to "legally" ruin people's lives. The only way the CCRC can validate it's existence is to find civil rights violations. So who wants to serve on such other than those who'd lust to wield their power to ruin the unenlightened (for their own seccular salvation of course). The commission's title is its destiny. The self selection that goes into composing such a commission guarantees that it will not be searching out brotherhood. This is star chamber stuff, and it amazes me that it is taken so seriously that the USSC in turn has to take them seriously and deal with their mess. OTOH, this also in turn is the sort of thing that the USSC can use to justify it's budget.

Birches said...

Cstanley nails it.

Birches said...

Althouse also nails it by live blogging this reading. Thank you.

rhhardin said...

Now, the reason we're asking these questions is because obviously we want some kind of distinction that will not undermine every civil rights law from the -­ from -- from the year 2 -- including the African Americans, including the Hispanic Americans, including everybody who has been discriminated against in very basic things of life, food, design of furniture, homes, and buildings.

Right, the trouble is the civil rights law is unconstitutional.

Only in monopoly markets should the government exercise control of monopolies to require nondiscriminatory service.

Having made that mistake, the law is fucked. You have to undo the mistake.

Richard Epstein Let Them Bake Cake.

SteveBrooklineMA said...

I think AlbertAnonymous is right. Baker wouldn’t have agreed to make cake if one of the groom’s mother came in to order it. It’s not discrimination based on sexual orientation. He just doesn’t want to make such a cake.

cyrus83 said...

The question concerning the artistic value should be obvious from the price and time involved. Wedding cakes are not some $15 pre-made cake slapped together in minutes found in the grocer's refrigerator, they're usually multi-hundred dollar affairs custom-made over the course of at least a day with attention to detail. Seeing as art in the form of pictures can often be created in less time and purchased for less money, wedding-cake creation has artistic value.

I'm surprised the lawyers wouldn't and justices wouldn't go to one of the constituent elements of a wedding ceremony - the part where the minister asks if anyone objects to the marriage. Though it is rude to wait until the ceremony to do so, if a place is made for objection at the altar, it is hardly unreasonable to allow objection well before.

Related to this, it should be remembered that a straight couple has no ability to compel any vendor to service their wedding should the vendor decline. Why gays should have some special legal ability to compel services their straight counterparts can't seems to fly in the face of that whole equality bullshit they've been selling. I mean think about this - how many gays have had problems getting a wedding package put together apart from the ones deliberately making a federal case out of it?

Narayanan Subramanian said...

How come this case is before USSC and not CO SC?

john said...

Just to pick out a random page:


JUSTICE GORSUCH: -- so we have two -­ two -- two commissioners out of seven who've expressed something along these lines.

MR. YARGER: I don't agree that what was expressed in the record reveals the kind of bias that existed in cases like the Church of

JUSTICE GORSUCH: What if we disagree with -­

MR. YARGER: -- Lukumi Babalu Aye.

JUSTICE GORSUCH: What if we disagree with you; then what follows?

MR. YARGER: I think you have to do that analysis and decide whether this proceeding was engineered in a way to single out people with a certain faith and they're not. This -­

JUSTICE SOTOMAYOR: You -­

JUSTICE GINSBURG: This -­

JUSTICE BREYER: Well, the reason that I -­

MR. YARGER: -- this law would apply


In the bit of testimony I have done, I have been trained to take great pains to complete my sentences, and the attorneys usually, not always, try not to talk over each other. Have the Justices not learned this? Don't they speak in turn? I didn't know Gorsuch had a stutter.

Hagar said...

I think I once read of a case where someone went to hire a lawyer so as to prevent that particular lawyer from representing his opponent and when the lawyer refused to take him as a client, sued the lawyer for refusing to provide a public service he was advertising for sale.
How did that turn out?

tcrosse said...

Bridezilla.

iowan2 said...

This is all about protected classes. An invention of the courts, not the people.
Homosexuals, a class that is defined by how they seek to sate their sexual desires, somehow are a class that has no defintition, or test.

SCOTUS involving themselves in areas they have no constitutional jurisdiction, have gotten us into this insanity of defining who is, or is not, an artist. IIRC, Strippers were early adopters, when SCOTUS declared being naked, and dancing, was speech. (when SCOTUS amendended the constitution to change the word "speech" to "expression")

gadfly said...

Same sex marriage discrimination is not just for bakers anymore.

The state Supreme Court in Wyoming is considering charges that a municipal judge should be banned from the judiciary permanently and fined $40,000 for following the tenets of her Lutheran faith regarding marriage.

The claims against Judge Ruth Neely, a municipal judge in the small town of Pinedale as well as a part-time circuit court magistrate, were brought by the Wyoming Commission on Judicial Conduct and Ethics.

The state agency got involved after a local reporter, upon the U.S. Supreme Court’s creation of same-sex “marriage,” asked Neely whether she was excited to perform such ceremonies.

Well, no, the judge responded, because her faith wouldn’t allow her to do that.

Leland said...

The argument about where the line is baffles me. It seems states until recently set the line at marriage between a man and a woman. I get that SCOTUS moved that line, but what if a thirty year old man walked in to an Alabama bakery and said he wanted to marry a 14 year old girl; could the baker refuse to sell him a cake if he found the marriage repugnant? The state will refuse the marriage license, but that's just recognition of the marriage by the government. The couple, their family, and even their religion make recognize the marriage, and as long as sex wasn't involved until later; I'm not sure what the state could do but say, "we don't agree". But here, the baker isn't given that right? Where did the state derive its authority in the US if not from the people?

Alas, I'm libertarian in the view that someone shouldn't be compelled to perform work for another. I get that's what lead to restaurants refusing service by race, and I think that's wrong as well, but I think the solution is just to patronize a restaurant or baker that doesn't behave that way. I don't think government is necessary. Oddly, universities are going back to allowing segregated dorms, because a different race that isn't white is demanding them. So apparently the state can still segregate based on race if it chooses.

Leland said...

Oh, like others, I do appreciate the analysis. I didn't realize many of the mistakes in my own bias understanding.

The Cracker Emcee Activist said...

“So glad the Republicans are focused on the big issues - like your god-given American right to be a bigoted cake maker.”

Well, transgender bathrooms gave Trump the White House. So you never know how big the issues are until history has had it’s say.

Henry said...

I get that SCOTUS moved that line

Masterpiece Cakeshop lost their case in Colorado under Colorado's public accommodation law. The suit was filed years before the SCOTUS Obergefell v. Hodges decision. The Colorado Civil Rights Commission decided the case against the Cakeshop before Obergefell v. Hodges. The Colorado Court of Appeals unanimously affirmed the Commission’s order about two months afterwards.

If not for SCOTUS, Masterpiece Cakeshop would have no one to appeal to.

john said...

Ann better get to point #12 because the reading gets really good around page 61-62.

BTW, thanks also for live blogging the transcript.

Sydney said...

I think make-up artists should be considered artists. What if a make-up artist was asked to make a gay man look like a beautiful woman for his wedding day. If the make-up artist objected to using his skills to that purpose, he should be able to refuse.

Henry said...

It's not like Wikipedia is lawyer-central, but could everyone in this book club at least read the Cliff Notes (Masterpiece Cakeshop v. Colorado Civil Rights Commission) to understand that this is a public accommodation case, not a same-sex marriage case? Thanks.

Lucien said...

One of the things I love about Althouse is the insight of the commenters. In the above I note (not trying to insult anyone by failing to mention their contribution):

CStanley observing that a good distinction would be standard retail sales (restaurants, hotels, shopping malls, cakes and cupcakes pre-made for anyone who wants to buy them) vs. contract work;

CWJ on a CCRC almost by definition being an organization staffed by people who want to f**k with their neighbors;

Jupiter suggesting that 1960s civil rights Supreme Court decisions may have sacrificed liberty on the road to Hell that is paved with good intentions;

And multiple commenters ignoring without comment ARM's attempt to derail the thread.

Thank you, Althouse commenters. Great stuff.

Lucien said...

Fuck off Henry. Thanks,

Lucien said...

Wikipedia? FFS.

Ray said...

"Yes, killing people - young nice female activists - is unpopular even in Virginia."

Actually she died of a heart attack. We will probably find out in court if they can prove he actually killed her.

I'm not condoning his beliefs, just that he, like everyone else, should get a fair trial.

Rigelsen said...

Given that Waggoner is arguing this on Free Speech grounds and not Free Exercise grounds (thanks, Scalia, for making that a dead letter), I do think she does her cause a disservice by trying to line draw where art becomes speech. Just as a tactical matter, this invites the justices to draw the lines in a place that does not serve her well.

Anyway, all art has a communicative aspect, that's what makes it art. Francisco's point about where there may be a compressing government interest makes a better line, in my view. Ban collusion against governmental interests, perhaps. Even commission state bakers, or photographers, or hairdressers, if you must. But don't force individual artists (or atisans) to voilate their conscience.

Ann, do you think there's enough of an angle here, as claimed, for the justices to take on Employment Division? Waggoner certainly seems to be trying to avoid it, though I can't say I blaim her.

Henry said...

CStanley observing that a good distinction would be standard retail sales (restaurants, hotels, shopping malls, cakes and cupcakes pre-made for anyone who wants to buy them) vs. contract work.

That could be a good distinction, though I'm not sure that a custom cake is the same as contract work. If the custom cake is a fixed fee service of the business it might not be.

And an exception for contract work won't work if you have a case where a class of people are boycotted by a class of independent contractors like realtors.

Fuck off Henry. Thanks,

Just staying on-topic, Lucien.

The Godfather said...

Leaving aside the legal issues in this particular case, from a public policy standpoint, why have a law that says business X shall be penalized if it refuses to sell its product to someone, for whatever reason? Under normal circumstances, the customer can go to a competitor, business Y, down the street and buy the same or an equivalent product. Business X just lost a sale. So why should the government pass a law and appoint an agency and direct prosecutors to go after business X?

My Gay friends say that they want to be accorded the same respect as Straight couples buying a wedding cake. But laws like this don’t accomplish that. They create a false impression of respect. If you point a gun at my head and say, Call me Sir, I’ll call you Sir, but I won’t respect you. You have earned fear, not respect.

I’ve said before here that our governments screwed up when they applied the “civil rights model” to cases that don’t involve Jim Crow. In the Jim Crow south, State laws prohibited businesses from serving Black customers, masked and hooded terrorists broke up and burned businesses that did so, and local law enforcement protected the Klansmen, not the businesses that served Blacks. NONE OF THIS IS TRUE TODAY OF GAY COUPLES SHOPPING FOR WEDDING CAKES.

Justice Breyer wants to know how the Court can allow a baker to refuse to bake a wedding cake for a Gay couple without exposing Blacks to discrimination. My answer is, Justice Breyer, go look at the country you live in.

walter said...

Wow..so many "conflicting edits".
But hey..blogger still has the comforting rainbow graphic....

n.n said...

if they can prove he actually killed her

That, and that the Antifa mob or another party did not setup a kill-zone, which would trigger a right to self-defense. Clearly, he did not Plan to commit mass abortion, nor did he actually commit mass abortion.

AReasonableMan said...

Ray said...
Actually she died of a heart attack.


This is fascist propaganda.

PackerBronco said...

Blogger Ignorance is Bliss said...
MS. WAGGONER: Precisely. In the context of an architect, generally that would not be protected because buildings are functional, not communicative.


So if I try to hire a contractor to build me a chapel and the first contractor I interview is a member of the Freedom From Religion Foundation and he doesn't want to build "any damn chapel for anyone", I can compel him to build the chapel or else face the loss of his business?

Yeah right.

Jonathan Graehl said...

Wedding cake makers should clearly be equally able to abstain from creating a cake that represents may-december or interracial or whatever other kind of marriage they don't wish to promote - whether or not that refusal is on grounds of religious belief.

However, I respect the judge's desire to minimally disrupt precedent.

n.n said...
This comment has been removed by the author.
n.n said...

So, what the commission ruled is that Colorado, or perhaps Denver, is such a backwater location, that there isn't a reasonable alternative public accommodation to not provide a publicly-oriented cake, which the baker targeted for retributive change had done, but to normalize/promote/celebrate transgender couplets, and ostensibly others of the transgender spectrum disorder, which are conveniently classified under other Labels by the TSD community and activists.

Ray said...

"This is fascist propaganda"

No, I live in the area and that's what's been reported.
Answers like that is why no one takes your arguments seriously.

narciso said...

In point of fact, a study proved this was due to the laissez affair attitude that signer and mcauliffe imposed on the local police

Kevin said...

The crux of the matter is that individual rights make it difficult for the government to impose its will on the citizenry.

And that once you start accepting the idea of individual rights, government power collected over centuries might be rolled back very quickly.

You can see the terrible predicament these Justices face.

Colorado should just have instituted a tax for not creating gay wedding cakes.

Roberts could have gotten behind that.

Owen said...

Many great comments, thanks. And thanks to Prof. A for the play-by-play and the PDF of the transcript. My two cents: (1) the oral argument was a free-for-all; like a cockpit voice recording from a flight that went wrong. Amazing how hard it can be to develop and defend a thought when you are all interrupting each other. (2) Richard Epstein's market analysis seems productive. Unless this is the only regional provider of an essential service, it is a false controversy. But that's the way the culture wars are fought, with staged fights. (3) if we want to hold the line on "free speech" here, why not "freedom not to have you put your words in my mouth"? If I have to sell a stock product to all comers including the protected class that I don't like, nobody is going to attribute their values to me. If I do them a custom product, that the market and public can trace to my workshop, I am implicated in their activity. I am forced to weaken my brand --my self-concept, my character, my beliefs-- to please them and strengthen their brand, their message. "Don't you love the cake? It's an Owen custom model, he took DAYS to get those little curlicues just right for us!" (4) insofar as the forced expression is required, it is a transfer of value that is uncompensated, a parasitization, a vandalizing of belief under cover of State power. The Colorado Commission is being used --apparently quite willingly-- to advance a narrow and private agenda, of score-settling and (as buwaya said well) dominance display.

iowan2 said...

The comment upthread, correctly identified this debate as one of public accomodation. The idiocy starts with SCOTUS and their self appointed role in creating and then becoming the final arbitor of 'protected classes'.

J. D. said...

Ms. Waggoner missed an opportunity to give the justice a distinction they were looking for in the architecture discussion. An architect (or furniture maker, jeweler, etc.) can refuse to design something for someone they find objectionable, bit once they have created something and relinquished their ownership of it, they no longer control the message. If an architect designs a building for the Mickey Mouse Club and they decide to sell it to the Masons, the architect can't stop that sale. They could object to it, but their voice would carry the same weight as any other third party. As a real world example, Coolio recorded "Gangsters' Paradise,"which was parodied by Weird Al as "Amish Paradise." Coolio later objected to the use of his song (there was some confusion over who said the parody was OK), and while he could object on moral or ethical grounds, he had no legal recourse.

The distinction therefore is not the ratio of utility to art of the product, but its permanence. A cake is impermanent and intended to be consumed, therefore it is less likely to change hands after its initial sale. Ms. Waggoner already stated that there was a difference between a pre-made cake and a designed one. The distinction is, you can compel the sale of a good, but not a service. A florist can refuse to arrange flowers, but not to sell pre-arranged flowers. A jeweler can refuse to design a ring, but not to sell a ring that was already made.

Owen said...

Kevin: "...tax for not creating gay wedding cakes." I saw what you did there. Excellent!

Owen said...

J.D.: good point about goods versus services. The practical and moral difficulty of compelling performance is why courts (I believe) almost never issue orders requiring specific performance of anything beyond, say, restitution or other clearly-defined and simple tasks. Injunctions to NOT do something are, comparatively speaking, easy to issue and oversee. Am I right about the hellish mess of affirmative injunctions by which the courts forced busing to "fix" school segregation? That was expensive, intrusive and produced enormous backlash.

Also a good point about the making of things and our control over them. Obviously while we are still conceiving a thing (whether a Titian or a typewriter) our control is total (we are uniquely creating it) and others cannot compel us, not in the essentials; and shouldn't presume to try. But once the thing is made, it goes into the world. What others do with it is now their business. We can sometimes bitch with a claim of "droit moral" over "art," but that's shaky. Essentially, once it leaves the store and the check has cleared, we're done with claims of control. (I omit vast reaches of technology requiring maintenance, warranties, licensed components, etc).

I would like to think that some of these ideas penetrate the contemplations of the learned Justices, but based on that transcript I just can't guess...

Browndog said...

It looks like once again the Supreme Court is going to parse an issue instead of resolving it. Building more conflicting case law keeps lawyers gainfully employed. In a few years, the SC will once again be called on to clarify it's finding, only to parse that too, creating more conflicting case law which...

Ignorance is Bliss said...

J. D. said...

An architect... can refuse to design something for someone they find objectionable, bit once they have created something and relinquished their ownership of it, they no longer control the message.

Howard Roark could not be reached for comment...

Caligula said...

"The cake-maker "expressed himself" when he made the cake, so why can't he withhold the cake when he finds out his expression will be incorporated into a larger speech event that makes the cake say something he doesn't want to say? "

Attempting to control what is done with purchased objects after the purchase seems an obvious waste of judicial capital, and seems likely to lead to First Amendment challenges. Although I understand there are those who insist that an artist has (or should have) the right to control what's done with a work after the work has been sold.

There is, at least, a well-recognized right to parody. And if I wish to buy a copy of an author's book just so I can burn it, or deface it, or use it as a prop within an artwork that ridicules the content of that book, would it not be a restriction on my speech if the author of that book were able to deny me the right to do this?

Why would the Court not confine itself to custom, commissioned works in this case?


Caligula said...

An obvious question along this line is, what if I buy a wedding cake claiming it's for use in a straight wedding and then use it for a different purpose? What if I buy a crucifix and use it in a work that mocks Catholicism? What if I buy angle-iron at a hardware store and use it to construct a swastika? What if I honestly represent what I wish to do with a work at the time of purchase but later change my mind and decide to use it in a different manner and for a different purchase? And let's not even think of what might happen if I sell it.

Perhaps Apple can get away with this (sell you an iDevice and yet still maintain control of it, as though it remained Apple's property), but they do so by technological means which you are (or should be) aware of when you buy the device.

Or perhaps we are entering a new age in which outright purchase is replaced with restrictive licensing, in which we may only do with an object that which its maker explicitly authorizes us to do with it?

HoodlumDoodlum said...

Ann Althouse said...Why does that have to be characterized as a message when the refusal to make a gay-wedding cake isn't characterized as a message? Great question. Perhaps THE question. And you know what happens? Justice Ginsburg sweeps in and helps him reframe his answer: If it's identity-based discrimination, it's an identity that isn't protected from discrimination.

Yep--that's what I said in a blog comment here yesterday. If the person in question belongs to a protected class then it's illegal discrimination, but if they don't then it isn't. The crazy part is that those distinctions are made, in the very law itself, in the name of "equality."

The State mandates unequal treatment (in terms of the law) in order to promote or ensure equality (before the law). To do any less would risk hurting someone's feelings and we all know that concerns about that (individual dignity, etc) supersede any other Constitutional priorities.

HoodlumDoodlum said...

17. Roberts brings up the fact that Colorado did not recognize same-sex marriage in 2012 when the Jack Phillips refused to make this wedding cake. The whole state was discriminating against gay people at the time (which was before the Supreme Court required states to recognize same-sex marriage). Yarger says that even though same-sex marriages were not recognized as a legal matter in Colorado at the time, same-sex couples could still have weddings. That certainly wasn't illegal. Alito says it's odd that if these 2 men — Craig and Mullins — had gone to the state government for a marriage license, the state would say no we don't do that, but when they go to the cake store and the baker says "no I won't do it... he's created a grave wrong." What sense does that make?

Yes again! I wish I had made that point--the State itself is requiring individuals to take actions and uphold standards the State does not recognize and the excuse for doing that is simply "well the State can put whatever conditions it likes on individual citizens who the State grants the freedom/license to do business and earn a living here." Since earning one's daily bread is about as fundamental a freedom as there can be...it's pretty damn offensive for the government to argue that the Court must recognize any restrictions the gov. chooses to put on people so long as those restrictions are related to business or commerce.

HoodlumDoodlum said...

19. Gorsuch brings up the fact that the state ordered Phillips to train his staff to follow the state law, and that was also compelled speech. Kennedy observes that the man is forced to teach others (including his family members who are employees) that "state law... supersedes our religious beliefs." Yarger says he only has to say that because we are operating a place of public accommodation, we must follow the government's law. That is, in order to keep running a bakery that makes wedding cakes, he must not only make wedding cakes for same-sex weddings (and thereby violate his religion), he must instruct other people to do what he believes is a violation of his religion. He has to teach the violation of religion — and teach it to his family.

Gorsuch seems solid. The "public accommodation" shield is such crap. If you want a private club you'll get shut down (over discrimination) and/or won't be allowed to make money (get a business license, etc). If you operate as a business you're going to be considered a public accommodation no matter what. It makes economic sense to treat a few businesses/types of businesses differently--if they're the monopoly provider of a vital service then I can see a case that they should be prevented from certain types of discrimination. You wouldn't want to let an airline, a railroad, a hospital, or even hotels deny people service (assuming there are only a few hotels in s given city, only one railroad, etc). But, predictably, the State uses that justification to enforce restrictions on damn near ALL commercial activity. Open to the public? You're subject to the same restrictions of your freedom & liberty as state-recognized monopoly providers of essential (public) goods and services. That some luxury good like "a custom wedding cake" is thrown into that same category ought to be enough to show the ridiculous nature of the State's position, but it sure seems like everyone's just OK with that, now.

HoodlumDoodlum said...

Kagan comes across as very sharp--I doubt I agree with her on much but she lays her thinking out clearly and seems like she engages with the logic of counterarguments.

Sotomayor...I guess I'm just not seeing it. She doesn't seem dumb but I don't think she compares well to the other Justices I hear and read.


Professor Althouse: thanks very much for this recap, and thanks as always for the forum & community of good commenters.

Roger Sweeny said...

How about a gay baker refusing to sell a cake for a gay wedding, on the grounds (once very common among gay activists) that marriage is a conservative, stifling institution, that gay people are inherently freer, more open to new experiences, and that to engage in marriage is to betray one's gayness?

Birches said...

I don't know how I could possibly want my side to lose. There is no will to protect free speech that offends Our Betters in media legislatively anymore. I hope it's a 7-2 decision.

narayanan said...

Ignorance is Bliss said...Howard Roark could not be reached for comment..

I will speak for him - Mr. Roark claims that contract was breached and therefore he withdraws his product. He will address the matter further in open court in front of a jury of his peers.

narayanan said...

The First Amendment prohibits the government from forcing people to express messages that violate religious convictions.

this opening premise of Waggoner is mischievously and cripplingly wrong.

why does the professora agree with it?

The First Amendment prohibits the government from -restraining- people from expressing messages that -do not violate- their (religious or other) convictions.

one such specific expression is "I do not agree to do business with you."

MadisonMan said...

Thank you for this, again! Fascinating reading.

Rob said...

It's not so much that Justice Sotomayor has an etiquette of her own. She was on a sugar high from mainlining those cupcakes. And they were as bad for the wise Latina's diabetes as they were for her comportment.

CStanley said...

Colorado's public accommodations law specifies the protected identities. This solution leaps over Gorsuch's quandary about whether it's really about speech or really about identity.

Well this is the root of the quandary, isn't it? Since this class of individuals has defined their identity by their sexual orientation, and Kennedy in the Obergefell decision said that their dignity depends on having equal access to the institution of marriage, any commercial participation in weddings is going to have to participate in gay weddings in spite of the decision paying lip service to the idea of principled religious objection. Separate but equal accommodations aren't going to cut it. I wonder if Kennedy feels he went too far and failed to carve out room for conscience objections.

Sydney said...

Reading the transcript, I had the impression that the justices were hostile to the baker's lawyer. They interrupted her much more frequently than the other lawyers and kept her from presenting a coherent argument. Is this how cases generally go in the Supreme Court? In my imagination I thought each side presented their argument then answered questions. I never realized they were interrupted constantly. Doesn't seem right to me, as a layman. But then again, it does explain why we have such poorly constructed decisions.

Bad Lieutenant said...

one such specific expression is "I do not agree to do business with you."


"Non Serviam"

Roger Sweeny said...

Sydney, the arguments are presented, with supporting citations, in briefs that are filed (and hopefully read) before oral argument.


Very little of the Supreme Court's work goes on in public view.

Ann Althouse said...

"If the person in question belongs to a protected class then it's illegal discrimination, but if they don't then it isn't. The crazy part is that those distinctions are made, in the very law itself, in the name of "equality.""

Well, you're protected on either side of a classification that the law identifies, so white people are protected from race discrimination, men are protected from sex discrimination, and straight people are protected from sexual orientation discrimination. So there is equality in those categories.

There are other classifications that aren't in the law, such as racist/nonracist or left-wing/right-wing.

PoNyman said...

The main reason I read Althouse is for her occasional, well thought out, challenges to my beliefs or biases. The second reason is for this. Outstanding!

ceowens said...

Reposted from an earlier discussion of this matter.

My FFL, and yours too, does not have to sell you a gun if he (she) does not like the color of your shoelaces.

How does that work?

gregq said...

Breyer says that it would be better if legislatures would craft narrow exceptions for people like this cake-maker, and courts can't just write narrow exceptions.

Then you toss out this law, and tell Colorado that either they make a law with exceptions like this, or they're overbraod and unconstitutional


Justice Alito brings up 3 other cases the Commission considered, in which opponents of same-sex marriage had gone to other bakeries and tried, unsuccessfully, to order anti-gay-marriage cakes. In those cases, the Commission didn't intervene and say the bakers had to make those cakes. Yarger says those cases were different, because the bakers were not refusing to sell these customers a type of cake that they would sell to other customers. It was a different kind of cake. But you might think that a wedding cake, when sold for a same-sex wedding, becomes a different kind of cake. But Yarger's argument is that's the same cake and it's only considered different because it is put into the context of the identity of the people who buy the cake.

No, it's different because same sex marriages aren't real marriages, and therefore it's a "fake marriage cake", just like the anti-gay marriage cakes were "anti-marriage cakes".

The CCRC has an ideology, and they're forcing that ideology on others in a speech context.


I think the real answer is: We, the people of Colorado, want to say that discrimination against gay people is wrong, and we don't want to see it reframed as something good, just because a man who can present himself as good says he needs to do it."


Yes. The point is, you are attempting to use State power to force the rest of us to give up our beliefs, and adopt yours.

That is evil.



He says: No, we're going to have a party to celebrate Kristallnacht. He would have to do that?
Yarger says the baker could refuse to sell the cake for the Kristallnacht context, because his objection would be to the message and not "the identity of the customer."


But Phillips isn't refusing to do business with gays. He told them he'd sell them any non-custom product in his store.

His objection was to the message of celebrating a same sex "marriage".


Cole says that those with opposing views are free to have their views and to express them, but that doesn't mean they run a business that turns gay people away.

Cole says "they're allowed to have their beliefs, so long as they hide them inside themselves and never bring them out into the world"

Fixed it for him


Justice Ginsburg sweeps in and helps him reframe his answer: If it's identity-based discrimination, it's an identity that isn't protected from discrimination. Colorado's public accommodations law specifies the protected identities. This solution leaps over Gorsuch's quandary about whether it's really about speech or really about identity.

So having an "identity" that 5 SC Justices approve of is like having a title of Nobility? You get rights the ordinary rule of people don't?

Gee, and here I thought that the US Constitution bans titles of nobility?


And Sotomayor comes back again on that third point.
Counsel, the problem is that America's reaction to mixed marriages and to race didn't change on its own. It changed because we had public accommodation laws that forced people to do things that many claimed were against their expressive rights and against their religious rights.


And this is why Sotomayor is evil scum. "Cole says that those with opposing views are free to have their views and to express them", and Sotomayor says "No way in Hell! you are only allowed to have the beliefs I like, and the government may destroy you for heresy if you disagree with those beliefs."

whswhs said...

Let's talk about that issue of not letting black people sit down in the front of buses. That wasn't a result of the freely made decisions of bus company owners. There were laws in southern states that prohibited their doing so, and it was those laws that were overturned. The south did not trust private enterprise to hold up the community standard of racial inequality; their voters and legislators were concerned that a private business might care more about making a profit than about traditional values—that, for example, it might look at empty seats in the front of buses and say, "Wait a minute, there are people who want to sit in those seats." In fact, according to the legal history I've read, the infamous formula "separate but equal" came from a court decision in Louisiana, where a railroad was under legal orders to have separate cars for black and white passengers, even if there were only enough passengers to fill one car; they quietly arranged for a black man to ride in a car with white passengers, and made a test case of it—and it was ruled that "separate but equal" accommodations were constitutional. The private business was NOT on the side of segregation.

There were also the factories in the South that were legally required not to hire black employees unless they provided two sets of rest rooms for black and white employees, two sets of staircases, and so on. (I presume it was all right for a black janitor to clean the white toilets, so long as he didn't use them!) That just made it economically prohibitive to have a racially mixed workforce—which was the goal of those laws. Again, note that the legislators didn't think private businesses would keep their workforce segregated without that kind of compulsion.

And yes, if you didn't have those laws, some businesses would still have segregated. But some would not, and they would have made money that the segregationist businesses were passing up, and potential customers would have had a place to go.

Of course, that doesn't apply as well to monopoly businesses, such as city bus lines or licensed taxis. On the other hand, the fact that those businesses have monopolies and subsidies is itself a product of government interference with the market. If we're going to have that kind of interference, it seems fair to say that a condition of getting such privileges is that you agree not to discriminate. If you want to discriminate, do without help from the government.