December 6, 2017

Understanding Justice Kennedy in the Masterpiece Cake case.

I took the trouble to read the oral argument transcript (PDF), and I "live-blogged" my reading of it. You can read my 32-point post here. Now, that post is raw material to mine for insight into Justice Kennedy, and that's worth having because it's almost a certainty that whatever side he takes will be the winning side. Looking only at things Justice Kennedy said during the argument, I will put what I think are his concerns, in the order of importance to him. (Some of this may be verbatim from my earlier post, but I won't clutter this up with quote marks where I'm only quoting myself.)

1. Empathy for the human beings on both sides of this controversy. Kennedy showed empathy for the gay people who face discrimination: If the cake-maker wins this case, he could put "put a sign in his window: we do not bake cakes for gay weddings," and that would be "an affront to the gay community." And there might be a movement to get all cake-makers to stop making cakes for same-sex weddings. But Kennedy also showed empathy for the cake-maker as he criticized the state for its lack of tolerance and respect for the cake-maker's religious beliefs. Kennedy seemed troubled not only about compelling the cake-maker to make cakes for same-sex weddings but also about requiring him to teach his employees that his religion is subordinate to the dictates of worldly government. Kennedy never seemed interested in the much-proffered answer that the the religious man could solve his own problem by getting out of the wedding-cake business. I'd say: Kennedy seems to care about the consequences to real people (whichever side wins).

2. Government hostility toward religious people. Not only did Kennedy chide the government's lawyer for the state's lack of tolerance and respect for religion (as noted in #1), he seemed willing to look into the subjective attitude of individual members of the 7-person commission that made the original decision that the cake-maker had illegally discriminated. One commissioner had said that using religion to justify discrimination is "despicable." This connects to Kennedy's opinion in Lukumi, which was about when strict scrutiny applies in a Free Exercise Clause case. There needs to be discrimination against religion (as opposed to a neutral, generally applicable law), and Kennedy's opinion in that case looked at evidence of the lawmakers' animus toward religion. I'd say: Kennedy reacts to what he perceives as hatefulness coming from or through government. There is no current problem of government animus toward gay people (now that the Court has protected their rights in cases authored by Kennedy that were very sensitive to animus toward gay people). The problem now is government animus toward the religious people who are burdened by the success of the gay-rights advances.

3. Judicial expertise in crafting a principled, limited exception to the state's anti-discrimination law. A big issue, throughout the oral argument was: How can the Court define a principled narrow exception to the state's law against discrimination against gay people, an exception that would allow the cake-maker with a religious compunction to refuse to make a cake for a same-sex wedding? Justice Kennedy became involved in some of this discussion about where to draw the lines — the ready-made/custom cake distinction, the speech/conduct distinction, and the distinction between selling a cake in a shop and supervising the cutting of a cake at a ceremony. But Kennedy stayed out of the distinction between what is art and what is not art (that seemed to entrance Justices Ginsburg and Kagan) and the distinction between the artist and the artisan (that captivated Justice Breyer).  And Kennedy didn't get involved in Justice Breyer's talk about the the superiority of legislatures in crafting religious exceptions to generally applicable laws and the problem of too many picky little cases that might burden the judicial system if courts try to solve problems like this.

These 3 points, in that order, suggest that Justice Kennedy is likely to provide the 5th vote for the cake-maker's religious exception. But if that's the outcome you like for this particular case, do not rejoice. I think that if, in the long run, you'd like to see more conservatives winning Senate seats and in a position to confirm judges nominated by a conservative President — nominees selected for their solid and forthright conservatism — you ought to hope the cake-maker loses.

If, on the other hand, you want the anti-discrimination side to win, you can still feel good if and when you lose. Practically, all you lose is a little access to cake, but if the Court impinges on the right of gay people to be served as equals in an ordinary shop, you will have a powerful political argument that that gay people are still exposed to cruel disrespect and that the so-called "conservatives" of the Supreme Court kicked into judicial activism to make up an unprincipled right to discriminate. What a fraud! Time for more Democrats in the Senate, obstruction of Trump nominees, and for God's sake get a Democrat in the White House in 2020.

168 comments:

Inga said...

“If, on the other hand, you want the anti-discrimination side to win, you can still feel good if and when you lose. Practically, all you lose is a little access to cake,but if the Court impinges on the right of gay people to be served as equals in an ordinary shop, you will have a powerful political argument that that gay people are still exposed to cruel disrespect and that the so-called "conservatives" of the Supreme Court kicked into judicial activism to make up an unprincipled right to discriminate. What a fraud! Time for more Democrats in the Senate, obstruction of Trump nominees, and for God's sake get a Democrat in the White House in 2020.

Hear hear!

readering said...

James Dale v Boy Scouts of America a good example of LGBT community losing the battle and winning the war.

Kevin said...

Let them eat cake!

Michael K said...

Your post is dripping with bias toward gays and gay marriage and we know why.

The cake baker cases have involved custom cakes and there have been no cases I am aware of where the store owner refused to sell ready made things to gays.

Similar facts exist in the photographer and florist cases.

Sebastian said...

"if, in the long run, you'd like to see more conservatives winning Senate seats and in a position to confirm judges nominated by a conservative President — nominees selected for their solid and forthright conservatism — you ought to hope the cake-maker loses." Actually, no. We'll take a win and bag it, considering how conservative nominees move left.

Of course, the real scandal here, including the subtlety and energy our hostess has to expend on mind-reading, is that the rule of law in the U.S. comes down to the urges of a single person, untethered from the actual Constitution.

Inga said...

“Your post is dripping with bias toward gays and gay marriage and we know why.”

How rude.

Bill, Republic of Texas said...

I don't think I understand this point. So religious people should hope they are forced to participate in a ceremony that violates their beliefs because if they win there maybe political backlash.

So has Althouse told the Dems to give up abortion rights. There has been a huge blowback from that decision.

But in actuality, if the court sides with the bakers, no one will care. There will be a few baker's who refuse and they will get such pushback they'll close or lose business. After a few examples everyone else will fall in line.

If the bakers lose, no one will really care either.

Eleanor said...

If a gay couple can't find a bakery in a 30 mile radius that would fall over backwards to bake them a wedding cake, they're probably living in a hostile environment to begin with. Forcing a local baker to bake them a cake or go out of business isn't likely to improve their relationship to the community. Sometimes beating people into submission isn't the best approach.

Martin said...

I howled at this:

"And Kennedy didn't get involved in Justice Breyer's talk about the the superiority of legislatures in crafting religious exceptions to generally applicable laws and the problem of too many picky little cases that might burden the judicial system if courts try to solve problems like this."

So Breyer thinks the legislature is superior to the courts in dealing with the fine strokes of religion and the law? Given that in Obergefell he took the exact opposite position, THAT came as quite the news!

As liberal judges go, Breyer is one of the better ones, but these guys are all just addicted to doing whatever they please and then rationalizing it.

EDH said...

Maybe I'm missing something, but I expect a "conservative" majority can distinguish between invalidating compelled speech and completely overturning state public accommodation law.

As I said before, the notion that same-sex people won't be able to get cakes (or any such a denial would interfere with the right to marry) is an absurd and demeaning comparison to the Civil Rights Acts invalidating Jim Crow.

n.n said...

There is a simple solution to this ostensibly hard problem. The first step is to stop discriminating on the transgender spectrum. Homosexuals are transgendered, as are bisexuals, transvestites, and crossovers. The second step is to reject political congruence ("="), transgendered marriages, and establish civil unions as a common civil institution for all couples, couplets, groups, sexual and platonic, etc. Democrats invoked a Pro-Choice argument and solution, and need to reform their means and methods to avoid creating moral hazards in the future.

Amexpat said...

The legal issues are interesting, but it somehow seems like a contrived case.

Why would a gay couple want to use the services of a homophobic baker, photographer or florist? If they obtained these services through legal force they most likely would not get the type of service they want. There's plenty of competition in these fields, so better to hire someone who's eager for the business - it's not that hard to do.

tcrosse said...

Time for more Democrats in the Senate, obstruction of Trump nominees, and for God's sake get a Democrat in the White House in 2020.

If the Democrats were at all able to accomplish any of this, we wouldn't be having this conversation.

john said...

I want to know how Justice Thomas comes down on this. I want to know the tone of his questions to Yarger. I search the entire transcript. No Justice Thomas. Search the Concordance? Nope. Mentioned in Scotusblog? Not there either. Let's go to the video, oops, no video.

Was he even there?

Sebastian said...

"it somehow seems like a contrived case" Of course, that is the whole point. Create a test case. Expose those homophobic bakers who "refuse to serve gays as equals." Lock in prog orthodoxy through a "civil rights" commission and the courts. For the sake of avoiding "discrimination," no less.

EDH said...

Thomas rarely asks questions during oral argument, and therefore even less likely to interject with a "hot bench" like yesterday's.

Unknown said...

John: Thomas famously does not care for oral arguments--he thinks they are a waste of time, and he never says a word. I think he's only asked a question once in the 30 years he's been on the court.



--Vance

wildswan said...

Can you force another person to make a statement which is against their religious convictions? And try to ruin them if they try to stand by their beliefs? The baker offered the customers any cake in the shop for free but they liked his design ability and demanded he design for them. They felt he had no right to his religious beliefs whereas they had a right to order him use his craft for them. And a right to try to ruin him. This seems a bridge too far to me. Even if it's declared legal, it shouldn't be done. Ruining another person's life over a cake is not something anyone should do.

buwaya said...

"Why would a gay couple want to use the services of a homophobic baker, photographer or florist?'

Because it is indeed a contrived case. A group of activists went looking for a target, in order to either create a row, like this, or force the target to kowtow.
This is cultural warfare.

Big Mike said...

The problem now is government animus toward the religious people who are burdened by the success of the gay-rights advances.

@Althouse, I would have put the period right after the word “people.” When the bias against practicing Christians is so blatant that an atheist like myself can see it, then it’s got to be pretty bad. And your choosing to identify the anti-Christian side as the “anti-discrimination” side strikes me as an affirmation of Dr. Michael K’s point — in your world view Christianity == discrimination. I don’t view Christians that way at all. Having been there at the time, I mean to assure you that if white Christians had not joined with Dr. King there would have been no Civil Rights Act.

whswhs said...

I'm not convinced that the impact will be all that great. Democrats have been ranting about the Citizens United decision, written by Justice Kennedy, for a long time now, and that stirs up a lot more people than the gay rights advocates. But it didn't get a Democrat into the White House in 2016, or give them control of either house of Congress. It might very well have encouraged more people to turn out and vote Republican, to avoid the chance of Clinton getting to name Supreme Court justices.

DKWalser said...

I do not argue that the 1st Amendment's protection of the freedom of association should allow any business to discriminate. The court's first allowed anti-discrimination laws to co-exist with the 1st Amendments protections because those laws only applied to 'public accommodations'. Public accommodations were a narrow class of businesses that served the traveling public -- hotels, taxi cabs, cafes, and the like. The government has a legitimate interest in allowing people to travel from one town to the next without worrying that they'll be able denied a hotel room or a meal based on their race. So, public accommodations, the courts held, could be said to have waived their right to determine whom they'll serve on any basis other than an ability to pay.

The problem is that the narrow exception to the 1st Amendment carved out for public accommodations has been expanded over the years to include basically anyone with a business licence. This expansive redefinition of what constitutes a public accommodation has allowed courts to determine the hiring practices of religious institutions. And, it is the hook that Colorado used to compel this baker to either say what he didn't want to say or quit making wedding cakes. (That's a choice between compelled speech and censorship.)

This whole issue could be resolved by going back to the original understanding of what public accommodations are and why they should be subject to special rules. In no sense is a wedding cake decorator running a public accommodation. A custom wedding cake needs to be arranged for weeks if not months in advance. There are several qualified vendors in every metro area within the country. There is no risk that someone cannot find a baker who is willing to make a cake for them. So, why is there a need to force ALL bakers to make any cake for any occasion whenever asked? This is about as far removed as we can get from the problem of a stranded traveler being denied a room or a meal.

Does this mean a business might be empowered to discriminate? Yes. They might even put a sign in the window saying they decline to bake cakes for same sex weddings, and that might offend some gays. So? How is that different from other offensive speech? Isn't the fundamental purpose of the 1st Amendment's free speech protections to avoid having government regulate speech -- even of at the cost of a less civil society?

whswhs said...

Incidentally, as a lifelong atheist, I agree with Big Mike. I disagree with Christianity as a religion and with the beliefs of many Christians about sexual conduct generally and homosexuality specifically. But I also think that private conscience is important, and a threat to a Christian's right to private conscience is a threat to my non-Christian right to private conscience as well. If Christians believe in God and think that God disapproves of same-sex marriage, it neither picks my pocket nor breaks my leg.

Francisco D said...

I wish Justice Kennedy were more concerned about the consequences of trashing the Constitution in order to come up with an outcome he finds desirable.

How can the state force you to work at your vocation against your will? Forget about gay rights and religious freedom. Think about involuntary servitude.

eric said...

I've heard this sort of reasoning for a long, long time.

Its how we got Trump.

You have to be losers if you want more power.

Never made sense to me. Grab ahold of all the power you'd like. Take all the seats. But be careful, the moment you do what your constituents want, you're going to lose that power to the other guys!

Silly.

Unknown said...

I posited the other day that paid clergy are screwed if Kennedy goes with the left.

How can they refuse to perform a full religious ceremony for any gay? After all, if you cannot discriminate in business.... their business; the way they make money, is by providing weddings and other religious services for a fee. If a business owner cannot discriminate on basis of religion, then it seems clear that a paid clergyman must officiate and provide the exact same religious wedding to a LGBT couple, regardless of doctrine.

I'd love to hear why this would not be the case from our resident "Bake the cake bigots!" supporters.

Do you really want to go down this path? Because one thing is dead, 100% certain: some gay with an axe to grind will try to force a paid clergyman to provide a full church wedding for him and his "partner." If you leftists get your way with Kennedy, that is.

--Vance

34a1de4a-c91e-11e5-9277-bfd7e597ed53 said...

Yeah, I want a cake made by someone who doesn’t want to make a cake for me.

LilyBart said...

Its funny that discrimination is actually allowed under some circumstances, but not others. For example, if a woman divorces her husband to marry her lover, I could legally refuse to bake her wedding cake based on my conscience. But if a man wants a cake for a SSM wants a cake from me, I cannot. As a christian, these might be the same thing to me. But the law picks and chooses.

Weird.

Joshua Barker said...

Its a simple answer... Cake makers (along with any other profession like wedding photographers, et. al.) should not be able to discriminate against ANYONE when it comes to providing a standard service... If you want a cake, you should be able to get one no matter your skin color or sexual leanings... What a cake maker should NOT be forced to do, is to make a cake or provide a service whose CONTENT is objectionable to them... ie... If I make cakes that say "Happy Anniversary", then I should have to provide that same cake to anyone... But I should not have to make a cake that say's Happy Anniversary" with a picture of a giant penis on it... Its not something I would offer or allow for any of my other customer's, so it's not de-facto discrimination...

Another example... As a Christian and family-friendly photographer, I do not take any Boudoir style photos... I should not be forced to have to take pictures of a gay couple having "pretend" sex because I do not take pictures of regular people having "pretend" sex...

Otherwise you basically destroy a big chunk of the 1st amendment.

Michael K said...

A group of activists went looking for a target, in order to either create a row, like this, or force the target to kowtow.

The most obvious example of this was the TV station in Indiana that went to a pizza parlor and asked if they would refuse to cater a gay wedding.

Most of these cases are setups. The one in Oregon certainly was.

Tolerance is no longer enough.

How can they refuse to perform a full religious ceremony for any gay?

Andrew Sullivan has declared this to be his ambition. To be married in the Catholic Church. With this Pope he probably can be,

Dust Bunny Queen said...

I want the cake maker to win because NO ONE should have the right to command you to make a special order item for them. I could give a flying fornication about religion or about teh gays. It is the principle of the thing.

NO one has the right to command your labor or your artistic output.

Not a good or service that is generally for sale to the public, but A ONE OFF SPECIAL ORDER CONSIGNMENT DESIGNED SPECIFICALLY FOR THE INDIVIDUAL CUSTOMER. No one has the right to force you to labor for them or to demand that you work for them.

A bakery or other establishment that offers off the shelf, out of the case goods or services (taxi) to the general public has no right to deny their goods to the general public.

A bakery that also, by contract (which is a mutual decision between two parties) may or may not decide to allow themselves to enter into a contract. You cannot be forced into contractual obligations.

Slavery and indentured servitude were canceled many years ago. Are we going to bring it back and FORCE people to work in conditions that they find objectionable for people who they do not want to be contracted to?

If the baker doesn't win, the existing social contract that we have are completely and totally broken.

Mark said...

"an affront to the gay community."

So what? Lots of things are affronts to this community or that. Jackets saying "Fuck the Draft," burning flags, showing at a drive-in porno movies that are visible from the street, teams and bands named Redskins and Slants, ads saying that you had sex with your mom in an outhouse, and more -- so what if someone takes offense at these.

Someone taking offense has never sufficient to override fundamental rights of expression.

LilyBart said...

Golly, based on the last argument, the left better hope they lose or Trump will win a 2nd Term!

LilyBart said...
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Howard said...

Blogger buwaya said..."Why would a gay couple want to use the services of a homophobic baker, photographer or florist?'
Because it is indeed a contrived case. A group of activists went looking for a target, in order to either create a row, like this, or force the target to kowtow.
This is cultural warfare. 12/6/17, 5:23 PM


Exactly, it's a contrived case just like forcing the Black kids into Alabama schools, just like the contrived lunch counter sit-ins and the coop da grass the contrived shameful violence that Rosa Parks inflicted on those poor white bus riders terrified they were being forced to share their seats with a black woman.

The uppity fags simply don't know their place, how dare they expect equal treatment in a business open to the public.

Everyone knows that the best way to achieve social equality and civil rights is to keep your head down, don't make waves, stay in your lane and STFU.

Mark said...

Now, Ollie's BBQ could be told what to do because community-wide, no one would serve Blacks equally. The circumstances today for same-sex couples and people who self-identify as "gay" are far different. Businesses today fall all over themselves to cater to them.

wwww said...
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Jim at said...

"an affront to the gay community."

Tough shit.

Everybody gets offended. Why should the precious LGBTBBQBFD get special treatment?

Don't like the baker? Go to another one.

Oh, but make sure it's not a Muslim bakery. They're exempt from your totalitarian thuggery.

LilyBart said...

Howard said...how dare they expect equal treatment in a business open to the public.

I think they got equal treatment. Jack Phillips has turned down other business in the past that violated this conscience including a divorce celebration cake, cakes that represent certain body parts, and some cakes depicting occult images.

Fabi said...

Howard declares this silly cake dust-up equivalent to transportation, education, and sustenance. Lulz

Big Mike said...

@whswhs, more eloquently put than my comment. Thank you, sir.

Inga said...

“....But the cake is not part of the mass. The cake is sacramental bread. The cake is not part of the vows. The cake is not theologically significant.”

You mean the cake is NOT sacramental bread, correct?

Howard said...

Not the same thing, Lily... also, were not litigated.

Gotta draw the line somewhere, Fabi.

Sydney said...

Unknown Vance said:
Because one thing is dead, 100% certain: some gay with an axe to grind will try to force a paid clergyman to provide a full church wedding for him and his "partner." If you leftists get your way with Kennedy, that is.

That is just one of the next steps. The public accommodation argument is interesting to me, because there has at the same time been a concerted effort by leftists to force private education establishments and the medical profession to serve the transgender agenda. In the case of private schools, it involves forcing a curriculum on elementary schools that teaches that gender is fluid. In the case of the medical profession, it is involves forcing physicians to provide sex "changing" therapy. Exhibit one in the latter case was an op-ed by Zeke Emanuel in the New England Journal of Medicine arguing that there is no such thing as conscientious objection for a physician. He even goes so far to argue that contraception (code for abortion) and transgender treatment are not lifestyle medicine:

To distinguish mental health, sexual health, and LGBT health as nontherapeutic realms of medicine, or as medicine in service of “lifestyle” choices, is to substitute cultural and political judgments for professional medical knowledge.

Love the way he conflates mental health with contraception and LGBT. If the baker loses, there is going to be far reaching implications for years to come.

wwww said...
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AlbertAnonymous said...

Serious questions:

Could the Baker legally make a cake that says "God Hates Fags" ?

Could he legally refuse to make such a cake?

Does it matter if the person requesting the cake is straight or gay?

Say a gay guy walks into the bakery and wants a "God Hates Fags" cake so he can have a victory party with his buddies after this case is decided in favor of LGBTQWERTY folks, and they can eat the cake laughing at their bigoted political opponents, or as a facetious joke for a gay friend's birthday party, or to throw at a conservative politician or Westboro Baptist Church member... Who knows. Could the baker legally refuse to make the cake?

If he refused, wouldn't it be the same discrimination as alleged in this case? Based on his identity? Or is it ONLY NOW that its based on message, and therefore ok?

Mark said...

Interesting to see so many people here -- invariably on the left -- who would do business with Nazis, who buy clothing made by child slave labor, who own stock in companies that dump toxic waste in rivers, who never boycotted a product or company, who never demanded divestment with companies doing business in apartheid South Africa, and who are perfectly fine with Confederate statues, because simply being associated with them does not mean that you are associated with them and, thus, what they stand for.

Rabel said...

DBQ said:

"No one has the right to force you to labor for them or to demand that you work for them."

Yes and no. They can't put a gun to your head and force you to perform that service/labor but they can sue you successfully if your business serves the general public and your refusal in a particular case is based on the "race, color, religion or national origin" of the person demanding the service/labor. It's the law, like it or not.

In Colorado that extends to the sexual orientation of the demander.

Masterpiece has an argument only because the "public accommodation" laws in this case come into conflict with the basic rights of speech and religion.

If, for example, you're a plumber with a storefront business and a Black man comes in and requests a leak repair job, you can't refuse purely because the customer is Black without legal and financial repercussions.

wwww said...
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Mark said...

Not surprising though that the same folks who promoted and practiced involuntary servitude in the 19th century -- and even killed hundreds of thousands of people in order to continue doing it -- would continue to support it today.

LilyBart said...

Howard said...
Not the same thing, Lily... also, were not litigated.


Nevertheless, he HAS turned down other business that violated his conscience. He has a history of this. One cannot therefore say that he treated these two men differently - he treated them the same as others who requested custom cakes that he believed would violate his conscience.

CJ said...

I know replacing Ginsburg with a conservative would be the crown jewel of Trump's term(s), but replacing Kennedy with a Bork clone would be just as good.

It'd taste better than gay wedding cake - I had my first slice of gay wedding cake in Nantucket this September for my brother's wedding. Gay people do details better than straight people. I don't know why or how, but they do. The wedding was immaculate.

Michael K said...

Everyone knows that the best way to achieve social equality and civil rights is to keep your head down, don't make waves, stay in your lane and STFU.

Hoard has well described the current situation of college students who have conservative sentiments.

I'm sure it was an accident, Howard.

buwaya said...

"First, I am baffled that some merchants think they are guests and are included in a celebration to which they have not been invited. "

They are semi-guests actually, if they perform their professional services during the event. This includes caterers, waiters, entertainers, and photographers of course. They mingle with the guest-guests and interact with them.

These are social occasions and these people are expected to be social, pleasant, as well as efficient and professionally adequate. A wedding photographer who acquires a reputation for cold aloofness is not going to get much business, eventually.

LilyBart said...

buwaya said...
"First, I am baffled that some merchants think they are guests and are included in a celebration to which they have not been invited. "


When you design a custom order (cake, flowers, etc), you are participating in the project. Some would like to opt out of these proejcts based on their personal religious views. Why are you all such religious bigots?

Inga said...

“They are semi-guests actually, if they perform their professional services during the event. This includes caterers, waiters, entertainers, and photographers of course. They mingle with the guest-guests and interact with them.”

How many wedding cake bakers are invited to the ceremony or the reception? None of my daughters wedding cake bakers were invited to the weddings. They were strangers, merchants I was purchasing a cake from.

wwww said...
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LilyBart said...

Inga said...
How many wedding cake bakers are invited to the ceremony or the reception? None of my daughters wedding cake bakers were invited to the weddings. They were strangers, merchants I was purchasing a cake from.


When you design a custom order (cake, flowers, etc), you are participating in the project. Some would like to opt out of these proejcts based on their personal religious views. Why are you all such religious bigots?

buwaya said...

Lilybart,

I am quoting wwww

wwww said...
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buwaya said...

"How many wedding cake bakers are invited to the ceremony or the reception?"

If it is a very elaborate cake (and I have seen some monsters), these sometimes need to be assembled and finished on the spot. We are (mostly) talking of the fancy end of things.

Inga said...

“When you design a custom order (cake, flowers, etc), you are participating in the project. Some would like to opt out of these proejcts based on their personal religious views. Why are you all such religious bigots?”

I’m a Presbyterian, I don’t think I’m a religious bigot at all. Also the wedding cake baker was not “participating” in the event, he was being paid to bake a wedding cake, that is all.

Inga said...

“If it is a very elaborate cake (and I have seen some monsters), these sometimes need to be assembled and finished on the spot. We are (mostly) talking of the fancy end of things.”

I’ve seen the assembly of bigger wedding cakes take place BEFORE the guests arive, not during the reception, which would be very hectic and a distraction from the event.

buwaya said...

" I do not comprehend this view of vendors and merchants. "

It is akin to a view of servants. It may be difficult to explain.
I grew up with servants, its a complex relationship.
They are not your friends, but friendliness, or at least agreeableness, is a mutual obligation.

And yet there is an unbridgable distance that would be mutually embarrassing to cross.

You could watch "Upstairs, downstairs" or "Downton Abbey" to get some idea, I suppose.

"I have a traditional understand of guest rights."

I too, and I suspect my idea of tradition is more ancient.

wwww said...
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LilyBart said...
This comment has been removed by the author.
buwaya said...

"I’ve seen the assembly of bigger wedding cakes take place BEFORE the guests arive, not during the reception, which would be very hectic and a distraction from the event."

This is true, but the cake assemblers have to deal with, most likely, the organizers of the affair.

LilyBart said...

Inga said...I’m a Presbyterian, I don’t think I’m a religious bigot at all. Also the wedding cake baker was not “participating” in the event, he was being paid to bake a wedding cake, that is all.

Jack Phillips was not objecting to being asked to 'participate' in the event. He was objecting to using his talent to create a custom cake for the party. This isn't about 'participating'. Don't get lost in minutia.

As for bigotry, the problem is that you and others don't give any weight at all to the conscience of a religious person. You give all the benefit to the feelings and time of the one side, and no consideration to the deeply held beliefs of the other side.

Inga said...

“This is true, but the cake assemblers have to deal with, most likely, the organizers of the affair.”

So? Do you think that gay people hire only other gay people to organize their wedding?

Michael K said...

"I have a traditional understand of guest rights."

No, you are rationalizing the result you want.

If you want the court to rule for the gay rights people, fair enough, but don't pretend it's a big mystery,

Kyzernick said...

Wifey is a math nerd. We got married on Pi Day in 2015 (3.14.15). We had 3 medium sized cakes and 8 or 10 pies of various flavors and types. The baker delivered them, along with two of her assistants, and helped set them up on the cake stands that my wife and her maid of honor custom-made for the wedding (crafty women are the best). All three of the "merchants" were invited to stay since we had more than enough food for everyone. In any case, they were present for the preparations and as far as I'm concerned, that made them participants in the occasion, however small their contribution was (and based on the amount of sweets they provided - which as I recall also included some small pastry trays for the guests during cocktail hour - I would not call it a minor contribution).

wwww said...
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Left Bank of the Charles said...

This is just Masterpiece Cakeshop I. The summary judgment will be vacated and sent back for further proceedings, which will be appealed as Masterpiece Cakeshop II, then Colorado will rewrite its nondiscrimination rules, and it will come back again as Masterpiece Cakeshop III. Then there will be the cases with the florists, the hairstylists, the makeup artists, the jewelers, the invitation designers ...

Really there is no reason why these issues couldn't be litigated indefinitely until everyone has the right to be a special cupcake.

wwww said...
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buwaya said...

Ultimately this is the result of a culture permanently cut apart, without common values worth the name.

The agonizing over laws and accommodations is in the end futile.

The solution is visible in the old world - there are long-standing communities of incompatible cultures living side by side - separately. Ancient cities were often broken into quarters each with its own culture, interacting in a limited, commercial way, but mostly not at all.

I recommend a fine SF novel, "The Diamond Age", Neal Stephenson, for an idea of a cultural model for a future society which may work.

Kyzernick said...

In any case, disputing whether the "merchants" are "guests" or not is simply a distraction. Fact is, by directly providing a service or goods in support of the ceremony or function, they are participants. The waterboy on the sideline isn't playing the football game or coaching the team, but he is still participating in some way to make it happen. The sign language signaller isn't giving the speech or writing it, but they are still participating and rendering their service. Would the Leftists here wish to force a sign-language signaller who happens to be Jewish to sign out a Neo-Nazi rally? Cuz that's where we could head if the baker loses this case?

Inga said...

“As for bigotry, the problem is that you and others don't give any weight at all to the conscience of a religious person. You give all the benefit to the feelings and time of the one side, and no consideration to the deeply held beliefs of the other side.”

Interesting. I recall outrage from people when Muslim cab drivers denied service to people with dogs and bottles of alcohol in their possession and rightfully so. I recall how Hasidic men demanding the airlines that they be moved if seated next to a female. How many more religious accommodations can come out this, if it’s in favor of the Baker? Are you ready for them?

Lem said...

Kennedy is going try to bake a cake everybody will fall in love with.

buwaya said...

"But this understand of service comes from the idea that the servant is, in some way, a dependent in the household."

The traditional view of a vendor to a family of the gentry is that the vendor was a supplicant, a seeker of gracious favors, a servant, if only temporarily. In a more traditional culture one would have customary vendors. The Filipinos have acquired this from the Chinese, including the term "suki" for the relationship. But in fact this sort of thing is European-medieval also. In a certain social circle, for instance, it may be de rigueur to give the business to a certain favored merchant. Actually I can think of a certain inevitable Chinese wedding photographer, that was somehow always at every "event".

" I would assume this is a southern way of looking at the world. It doesn't seem very Yankee merchant. "

Its a very traditional view of the world. But its also quite universal.

wwww said...
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buwaya said...

"I recall outrage from people when Muslim cab drivers denied service to people with dogs and bottles of alcohol in their possession and rightfully so."

Because they don't conform to the prevailing culture. If they raised this objection in Pakistan they would be entirely in the right.

This baker controversy is about the nature of the prevailing culture. Or rather, since neither will die, which is to dominate the other.

Inga said...

“I still cannot see a baker through that lens, but I can understand they are seeing it as a servant relationship, and that's why they think they are participating in a household event.”

In the US, a baker is a merchant, not a servant.

wwww said...
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buwaya said...

In the US an artist still has a patron-client relationship with the person paying for the commission. This is a very ancient idea and it does indeed carry much cultural baggage; one is the patron, one is the client (the client being the artist in this sense, which dates back to ancient Rome). The patron is not simply buying a thing, he is supporting the artist, as a dependent. Think Medici.

This is not the relationship between Walmart and a shopper in their store.

buwaya said...

"He sees himself as providing a household service."

He sees himself as an artist, or at least as a craftsman.

wwww said...
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CWJ said...

My view of this case pretty much crystalized after reading the Adam Litpak(?) account to which Althouse linked last September 16. The plaintiffs suffered no objective harm. They got a cake elsewhere. They were turned down in what appears to have been a private meeting between them, one of their mothers, and the baker. They are quoted, not citing principle, but rather spouting how humiliated they were and how the experience forced them to question this that and the other. It seems to me that a private meeting is the least humiliating way to receive a "no." So if this is their response, I question how they can go through life. All I know is that I'm happy that I live no closer than 500 miles to them. They are "angry gays" that did not get their first choice, and for that the baker had to be made to pay. They were fortunate that Colorado has a Civil Rights Commission that they could enlist for their revenge.

It's interesting reading the views of the commenters and Althouse arguing the law and principle. But the actual case on the ground has little to do with either. It could have done, but no. It is a case of spite.

Angel-Dyne said...

...but if the Court impinges on the right of gay people to be served as equals in an ordinary shop, you will have a powerful political argument that that gay people are still exposed to cruel disrespect and that the so-called "conservatives" of the Supreme Court kicked into judicial activism to make up an unprincipled right to discriminate.

A "powerful political argument" that won't appeal to anybody who doesn't already agree with your point of view.

DKWalser: The court's first allowed anti-discrimination laws to co-exist with the 1st Amendments protections because those laws only applied to 'public accommodations'. Public accommodations were a narrow class of businesses that served the traveling public -- hotels, taxi cabs, cafes, and the like. The government has a legitimate interest in allowing people to travel from one town to the next without worrying that they'll be able denied a hotel room or a meal based on their race. So, public accommodations, the courts held, could be said to have waived their right to determine whom they'll serve on any basis other than an ability to pay.

The problem is that the narrow exception to the 1st Amendment carved out for public accommodations has been expanded over the years to include basically anyone with a business licence.


Yes, and it would be great to see this monstrous over-reach rolled-back, bit by bit. (Remember when the damned fools who opposed these laws based on their foresight that what has come to pass, would come to pass, were excoriated as ninnies or bigots for their troubles?)

If laws can be over-extended, they can be rolled back. "The law is the law" until it isn't, as aggressive activists know very well. There is no necessity in resigning ourselves to the absurd present state of affairs, wherein one is reduced to engaging in ridiculous (and inevitably futile) Clown World quibbles about whether this tiny little corner of freedom should be preserved (like an animal from an endangered species in a zoo) because "religious conscience" or "artistic expression".

Bill, Republic of Texas said...

Last gay wedding I was at they served sheet cake from Costco. Actually the yummiest wedding cake I can remember.

But they had been "married" for many years before the ceremony.

Michael K said...

" I recall outrage from people when Muslim cab drivers denied service to people with dogs and bottles of alcohol in their possession and rightfully so"

The Muslim cab driver or grocery clerk has a job that requires behavior that fits the job description.

If they don't want to do it, they can get another job,

The baker bakes cakes and, as far as I know, there are no instances of refused service to gays.

The difference is that additional service is required for elaborate cakes, like wedding cakes. The cab driver or grocery clerk is expected to provide the identical service to everyone.

Nobody asks the cab driver to taste the alcohol or the grocery clerk to take a bite of bacon.

The florist might have a weaker case unless they are expected to be at the wedding and do the arrangement there and not in their own shop.

indiana118 said...

"Slavery and indentured servitude were canceled many years ago. Are we going to bring it back and FORCE people to work in conditions that they find objectionable for people who they do not want to be contracted to?"

Only if it's necessary to establish that we are all morally obliged to hold correct beliefs on topics where Christians have incorrect beliefs.

Bill, Republic of Texas said...

Can a Santarian force a vegan photographer to photograph the ceremonial sacrifice, butchering and cooking of a rooster?

buwaya said...

Modern capitalism didn't really change the relationship of artist and patron.
These are not standard goods made for sale to some anonymous person, these are commissioned works requiring a mutual understanding.

MaxedOutMama said...

Inga - re your question about the cake baker being at the ceremony (which also was mentioned during the verbal melee at the SC the other day) - it turns out that elaborate cakes, especially with tiers, often do require a caterer to be there to cut the cake. Otherwise the whole thing could collapse. So yes, for fancy stuff participation in at least part of the ceremony/celebration is required.

Also it turns out that often very fancy tiered cakes have non-cake portions that are only supportive in function, so if someone who did not know what was up tried to cut and serve the cake they might be quite disappointed, or I suppose, knock out a cardboard support wall and bring the Tower of Icing down. This case made me learn more about cake baking than I ever desired!

Also florists, for example, go to the church/hall/whatever and decorate it, etc, and if they have a joint deal they also deal with the reception. It's not at all as if they just dump off a crate of flowers. Photographers/videographers are of course at the ceremony taking pictures.

Wedding planners often participate in the whole thing. I and my family are all Plain, so to be honest aspects of this conspicuous consumption are more religiously iffy than two men or two women getting hitched, or at least that's the way it strikes me.

Covering a piece of cardboard with elaborate icing is just WRONG. Or that's the way it strikes me.

buwaya said...

Btw, the Medici were very "modern" indeed. Merchant princes. There are hordes of them today.
The biggest difference, then and now, is the modern ones mostly have dreadful taste.

Chuck said...

A. I mostly agree with the substance of the Althouse analysis. Her legal analysis is routinely excellent. Unsurprisingly.

B. I have always been a fierce critic of Justice Kennedy's majority opinions in Lawrence and Obergefell. I have so written many times on these comments pages. And in that regard (and apart from mere analysis), I expect that I differ from Althouse.

C. Just to expand on Althouse's analysis in this case, I will take cold comfort in any 5-4 majority opinion, written by Kennedy, in which he finds some strict religion-based backwater in the Colorado statute, and allows Masterpiece Cake Shop to win the case. Because I think that such a ruling by Kennedy is calculated to make statues, and "civil rights" commissions like the one in Colorado, more palatable to 21st century America. I think a ruling against Mr. Phillips and his cake shop would stand as an object lesson in why such statutes should never be enacted in the first instance. As a matter of democratic hygiene. Get rid of all such laws. Don't hand them over to judges, to shape them into whatever the legal ruling class likes.

indiana118 said...

"If, on the other hand, you want the anti-discrimination side to win"

Assuming that refusing to bake a cake constitutes discrimination.

Also assumes there is nothing discriminatory about interpreting a law in a way that makes it a crime to be an observant evangelical or Catholic.

narciso said...

Like the Saudi prince who bought Salvador mundi aims will exhibit it Abe dhabi's louver

n.n said...

The problem is that liberal judges are still engaged in an unprincipled right to discriminate under the religious doctrine of Pro-Choice and ideological belief in political congruence ("="), which is not limited to transgendered spectrum behaviors, and routinely discriminates against politically unfavorable orientations (i.e. unrealized behaviors, including real and invented thought crimes).

Jack Wayne said...

Good Lord Althouse! This is just demented! When are you going to admit that red-lining was the slippery slope that led us to this point? Buyers have more rights than sellers? This is so fucked-up from a democratic republic viewpoint that it spells the eventual end of said republic. When are you gonna wake to the damage that you have advocated?

Dickin'Bimbos@Home said...

DBQ - interesting take. No one seems to be arguing that. They should.

n.n said...

Assuming that refusing to bake a cake constitutes discrimination.

They are not refusing to bake a cake. They are not discriminating against the individual. They are abstaining from a political congruent obligation to endorse a behavior. Perhaps if there was some consistency to political congruence ("="), but there isn't, so any law that endorses transgender/homosexual behavior is a prima facie evidence of selective exclusion (e.g. political correctness). Social liberals need to up their game and lose their Pro-Choice religion.

Narayanan Subramanian said...

How is compelling a compliance to make a cake for them a win for the homosexual community?
How did this country get to the legalism that compelling a citizen's agreement is the same as consent?

Narayanan Subramanian said...

And simulsynchronous with the Reckoning going on.

Marcus said...

This talk about contractors (musicians, bakers, photographers, wedding planners, et cetera) not being "guests" at a wedding? Agreed that they are not invited guests, but at all three of my wedding receptions, I ensured that the musicians and the photographer were provided food and drink (we did Publix cakes and no wedding planners). Not because I thought they were guests or entitled to some guest privileges but because I am not an asshole. (My wives might disagree now, but they didn't at the time)

Michael K said...

How did this country get to the legalism that compelling a citizen's agreement is the same as consent?

We are past consent or tolerance. We are at the stage of celebration and if you don't participate, you are in big trouble.

Ask James Damore about it.

AZ Bob said...

The ruling may end up being on a narrow point. It will not allow bakers to refuse to serve gay people. It will merely say that the gays cannot demand that they be given a specific cake that requires the baker to jump on the gay band-wagon. I think the baker was fine with giving them anything on his shelf.

LilyBart said...

Bill, Republic of Texas said...
Last gay wedding I was at they served sheet cake from Costco. Actually the yummiest wedding cake I can remember.


Costco food can be really good.

George Spix said...

Can this argument be extended to others who would like not to pay for something their religion discourages? What’s the difference between discourage and forbid, conscientious objection, to something like you must push the injector of deadly poison into this condemn’ s person’s vein, "they’ll feel nothing, I guarantee it." Slippery slope, we’ve been on it for decades and there is no going back. Darn computers that make it easy to check off a dollar for some cause, means they can also be used to, say, spend none of my tax revenues for something my religion discourages.

Michael K said...

It will merely say that the gays cannot demand that they be given a specific cake that requires the baker to jump on the gay band-wagon

That was status quo ante as far as I know. The Oregon case involved a lesbian couple who had been buying baked goods for years from them. They asked them about the wedding and when declined, went straight to the Oregon civil rights court.

Narayanan Subramanian said...

Can USSC strike down Colorado Civil Rights Commission?
Totally as unconstitutional.

Narayanan Subramanian said...

Can USSC strike down Colorado Civil Rights Commission?
Totally as unconstitutional.

indiana118 said...

"Exactly, it's a contrived case just like forcing the Black kids into Alabama schools, just like the contrived lunch counter sit-ins and the coop da grass the contrived shameful violence that Rosa Parks inflicted on those poor white bus riders terrified they were being forced to share their seats with a black woman.

The uppity fags simply don't know their place, how dare they expect equal treatment in a business open to the public."


False equivalence on several points. Rosa Parks had no other bus system to choose, and that makes a difference. Schools and bus systems are public entities, not private property. The motives in all these cases are different - nobody is afraid that gays will cause racial impurity. There is no "one drop rule" that determines how gay you are and if you're deemed gay you get special treatment. Exactly the opposite: the gays are the ones who want special treatment, who DO NOT want to live by the same rules because it isn't enough for them, they need active accommodations, exemptions to the normal rules.

Most importantly: it's quite frankly not accurate to compare interracial coupling with sodomy because there are differences, and the question is over whether and how much those differences matter.

Ultimately persuasive civil rights cases are based on need: the blacks in every one of these cases had a legitimate need, a legitimate reason why they had to do what they did. They weren't just trolling to make a point. Even so, the rights of both sides of the issue were considered. That bigots lost was because they had a losing argument; they deserved to lose. It does not follow that therefore every case will always end with the people making the claim winning and the people accused of bigotry losing. It does not follow that if black, therefore gay for the same reason it does not follow that if black, therefore incest, or therefore polygamy, or therefore anything.

Final point: black civil rights was ultimately decided on persuasion, not force. If the majority did not believe that civil rights were correct, they would have voted their belief and all the rules forcing integration or equal access or whatever would have been overturned. America is ruled by consent of the governed: there is no king who can overrule the people. The notion "civil rights should not be up for a vote" begs the question, who decides what a civil right is?

LilyBart said...

Inga said...Interesting. I recall outrage from people when Muslim cab drivers denied service to people with dogs and bottles of alcohol in their possession and rightfully so. I recall how Hasidic men demanding the airlines that they be moved if seated next to a female. How many more religious accommodations can come out this, if it’s in favor of the Baker? Are you ready for them?

These are real problems, and we need to find a way to balance peoples' rights.

For myself, I think we've defined public accommodation too broadly. People need the basics of life - and they need to have access to them. Basic food, shelter, and yes, transportation. But, at this point, we're denying people their rights even if they have a party-time wedding photo business out of their home. It should be a higher bar before government places the burden on people to potentially violate their conscience. Cake, flowers and photography are nice things - but they are not the essentials of life.

I don't take any pleasure at the idea of a gay couple having to make a 2nd call to find a baker for their cake. But I'm also disturbed that many on the other side don't give any weight or consideration to the conscience of this christian man. They don't understand his view, so they give it no consideration.

chickelit said...

Althouse exhorts: "Time for more Democrats in the Senate, obstruction of Trump nominees, and for God's sake get a Democrat in the White House in 2020."

There isn't a chance with existing candidates. None of them have crossover appeal like Trump does and who will be able to woo Republican voters away from Trump? Maybe a conservative democrat could do that, but the last election pretty much buried that faction. The Dems appear to be irreversibly committed to identity politics. California and NY Electoral College votes may go to Kamala Harris, but with WI, PA, OH? I think not. Biden is perhaps the only one in the field who could swing the swing states. Hillary's pick, Terry MaAufille, shouldn't be viable.

As for the Senate, I seriously doubt that Madison alone could send Paul Soglin to the Senate. He has zero upstate appeal. I've watched his political career for 40 years now; he's rather scoffed at Middle America all along.

PackerBronco said...

"The right of the people not feeling affronted, shall not be infringed."

I'm not sure which amendment says that, but damn it, I'm sure its in the constitution somewhere.

exiledonmainstreet said...

CWJ has it right. this is about spitefulness on the part of the gay couple. they want to ruin and humiliate a man who doesn't approve of their marriage. I was for gay marriage until many gays showed themselves to be vindictive winners, out to make others suffer because they had. I forget who said that it was not enough for them to win the culture war, they had to roam the battlefield shooting the wounded in the head.

PackerBronco said...

Blogger Rabel said...
"they can sue you successfully if your business serves the general public and your refusal in a particular case is based on the "race, color, religion or national origin" of the person demanding the service/labor. It's the law, like it or not."

===========

And I don't see how it applies to this case at all. The baker was willing to design a cake for a different occasion such as a birthday or anniversary. He was also willing to sell a generic premade cake to this gay couple. So he was not showing any animus to them as individuals because he was perfectly willing to sell them any product or service except one: a gay-themed wedding cake.

To me that comes down to the question of whether any vendor should be compelled to provide any particular service a customer might want. So he specializes in Christian heterosexual marriage cakes, so what? There are bakers and bakeries that specializes in homo-erotic porn cakes. If I went into such a bakery and asked for a straight-laced simple traditional wedding cake, they might laugh say: "no, we don't bother ourselves making THOSE kind of cakes, man, are you in the WRONG place" And I would shrug and leave and find a baker that can make the kind of product I want.

Why make it more complicated than that?


exiledonmainstreet said...

and it's not only petty, vindictive behavior, it shows real insecurity. why should they care if this baker doesn't approve of them? they can - and did- give their business and money to another baker. this incessant demand for approval, even forced approval, strikes me as quite immature. Not everyone agrees with you. so what? go on and live your life the way you want to. and let the baker do the same.

PackerBronco said...

Blogger exiledonmainstreet said...
CWJ has it right. this is about spitefulness on the part of the gay couple. they want to ruin and humiliate a man who doesn't approve of their marriage.


Of course. They won the battle for gay marriage, but as long as people are allowed to disapprove gay marriage with impunity, they will never be "free". So you get people fired for voicing opinions against gay marriage. You boycott companies that hire such people.

But what do you do about the small entrepreneur? He can't be fired because he owns the business. And maybe you can boycott him, but darn it, he seems to have a nice loyal clientele which are not influenced by your cries to boycott. And people LIKE his cakes!

So, private methods having failed, it's time to turn to government to FORCE that homo-hating religious zealot to play ball or suffer the consequences. Say it with pride! We shall not be affronted!

exiledonmainstreet said...

packerbronco, if you recall there was a 9 year kid in California who wanted a cake celebrating Trumps election and he couldn't find a baker who would do it. If a Christian baker has to make a wedding cake for gays, why can't Dem bakers be forced to make a MAGA cake? personally, my reaction was "kid, why can't your mom do it? it's not that hard to make a sheet cake and scrawl Yay Trump across the top of it." but if the kid (or his parents)wanted to prove a point, he or they did.

Big Mike said...

@exiledonmainstreet, I have to agree. It's hard for me to have empathy for the gay couple when there's more than a whiff of them picking this baker because of their naked hatred for devout Christians.

Sydney said...

To me that comes down to the question of whether any vendor should be compelled to provide any particular service a customer might want.

This is exactly what it is about. It isn't about wedding cakes or florists. These are but the first step on the path to compel other types of professionals to provide services -the minister to provide the wedding, the doctor to provide hormones or surgery to alter appearance, the private school to teach gender fluidity.

Chuck said...

If a Christian baker has to make a wedding cake for gays, why can't Dem bakers be forced to make a MAGA cake?

What ignorance.

The simple reason that a baker can (in Colorado) be forced "to make a wedding cake for gays" is that the state of Colorado enacted a law protecting gays.

There is no law anywhere making "MAGA" fans a protected class. You can discriminate against Dems if you want.

So that's it. There is no law to supply the basis for your hypothetical. It was a stupid hypothetical.

Now, I say all of that as someone who has been a harsh critic of the Lawrence, Windsor and Obergefell decisions. All along. I may be the biggest Scalia fan in the Althouse commentariat.

But I like smart arguments; not dumb ones.

exiledonmainstreet said...

funny you say that, Chuck. you're known here for making lots of dumb arguments.

Achilles said...

AZ Bob said...
The ruling may end up being on a narrow point. It will not allow bakers to refuse to serve gay people. It will merely say that the gays cannot demand that they be given a specific cake that requires the baker to jump on the gay band-wagon. I think the baker was fine with giving them anything on his shelf.

This is what I expect to happen as well. It is the best of a bad situation.

Conservatives had decades to take this power away from the government when opinion was on their side. They decided to use the power of government to force their view of things. Now it is going the other way.

Maybe you people will realize the government is not on your side?

Francisco D said...

Chuck: " I may be the biggest Scalia fan in the Althouse commentariat."

You are delusional, Chuckles. You pretend to be an LLR who kept Detroit safe from voter fraud. That is laughable, as are many of your other statements. This one takes the cake. It is completely contradictory with your argument about protected classes.

Now it is clear that you have never read Scalia's opinions or the Constitution; nor are you a lawyer. I suspect you flunked out of law school many years ago.

You are just a lonely old fart sitting at home in his underwear, living in a dream world, bordering on dementia.

EDH said...

Chuck said...
"But I like smart arguments; not dumb ones."

Seems like you feed off both quite indiscriminately.

EDH said...

Chuck said...
"But I like smart arguments; not dumb ones."

Seems like you feed off both quite indiscriminately.

chickelit said...

Chuck writes: All along. I may be the biggest Scalia fan in the Althouse commentariat.

I think Simon took the cake on that one. But you two do (did?) share one uncanny thing: a visceral loathing Donald Trump which has clouded everything you've written since he was elected.

chickelit said...

Surely "Chuck" has been around long enough to recall Simon.

Althouse gave neither one the time of day, at least in public.

richard mcenroe said...

Hey, Al, you know what? Never mind...

https://www.nbcnews.com/news/us-news/john-conyers-iii-was-arrested-domestic-abuse-not-prosecuted-n827151

Crazy Jane said...

Why would a gay couple want to use the services of a homophobic baker, photographer or florist?

Here's why: vengeance.

The law of the land requires tolerance, but so far it does not compel celebration.

What will the gay/transgender community have to say when a baker, citing religious values, refuses to make a Happy Hitler's Birthday cake? You know it's coming; we have an atomized, siloed society now.

Meanwhile, in my increasingly multicultural area, no Jewish, Asian, Muslim or African American families seem to have been invited to join either of the golf clubs. My guess is those outfits would rather have white gay couples instead. Is that progress or what?

Enlighten-NewJersey said...

Has the weddding been put on hold until this case has been decided or did the couple find someone to bake them a wedding cake?

Crazy Jane said...

During the Supreme Court arguments, one justice asked whether a baker could be compelled to make a KKK-decorated cake.

The ACLU lawyer provided this answer: "The Ku Klux Klan as an organization is not a protected class."

Sadly, an attorney for a group devoted to civil rights, said this: Some animals are more equal than other animals.

n.n said...

Conservatives had decades to take this power away from the government when opinion was on their side. They decided to use the power of government to force their view of things. Now it is going the other way.

Some kind of "conservative", but it is not embodied in American conservatism. There is supposed to be a reconciliation of individual rights and responsibilities with the promotion of the general Welfare, and proportional measures representative of the People and our Posterity. That contract has been broken on a number of occasions, most recently with the establishment of Pro-Choice through a corruption of constitutional law (and scientific knowledge), and the advent of social justice activism that denies individual dignity, denies Posterity, reestablishes diversity (e.g. racism, sexism), and indulges in constructing political congruences ("=") that create super classes (ironically, too many Labels, and Judgment galore).

gregq said...

Laycock and Berg clearly idnetified the religious animus by the CCRC, over at Vox https://www.vox.com/the-big-idea/2017/12/6/16741602/masterpiece-cakeshop-same-sex-wedding

Refusing to create a cake with a message associated with a protected class of customers — whether same-sex couples or conservative Christians — either discriminates against that class or it does not. The message on a cake is either the baker’s message or the customer’s message, or perhaps the message of both. But the answers to these questions cannot vary depending on whether the state agrees with the message, which is how it worked out in the Colorado courts.

Protecting the bakers who refused to make the Leviticus cakes undermines the state’s interest in eliminating religious discrimination at least as much as protecting Phillips would undermine the state’s interest in eliminating sexual-orientation discrimination.

The state has tried to distinguish the two sets of bakers by saying that the protected bakers would not make the Leviticus cake for anybody. The state court never made that argument. The protected bakers were in the business of making custom cakes with messages and designs requested by customers, and they refused the Leviticus cake because they disapproved a message strongly associated with a particular religious view. Phillips is in the same business, and refused for the same reason (substituting sexual orientation for religion). And suppose Phillips says he wouldn’t make a cake with two grooms for anybody. The state’s answers at yesterday’s oral argument clearly implied that Colorado would say that’s sexual orientation discrimination.


"If, on the other hand, you want the anti-discrimination side to win, you can still feel good if and when you lose. Practically, all you lose is a little access to cake"

No, what they lose is getting their rocks off over using the State to bully Christians. It's the same thing they lost when the Supreme Court ruled for Hobby Lobby

DKWalser said...

The ignorance on display in this thread is simply amazing. How many of you have an intimate knowledge of the process and effort involved in creating a custom wedding cake? If you did, I doubt you'd claim that the cake wasn't 'speech'. My wife makes wedding cakes. She does so as a hobby and only makes cakes for family and friends (usually for brides she taught taught in Sunday School when they were little girls). The process starts with an interview with the couple in an effort to understand their mutual dreams and aspirations -- what makes them unique as a couple. Then, working with the bride, my wife comes up with a design that celebrates those hopes and dreams. One couple loved to ride the groom's motorcycle. A layer of their cake was decorated with circles. On the day of the wedding, the bride noticed that the edge of the circles had ridges resembling the tread of a tire and inside the circles were thin lines representing the spokes of a wheel. It took hours to make and attach all those mini-tires to the cake. So, the cake is 'speech' in the sense that it was created expressly to represent the couple's hopes. It's not something off the shelf or out of a catalog of prior cakes. (My wife's never made the same cake design twice -- even when asked to. Each design is unique to a couple, but many designs contain similar elements.)

Nor can it be fairly said that the use of the cake at an event does not reflect on the artist who made it. My wife's cakes are works of art. People attend the reception who would have just sent a gift because they heard she'd made the cake. The fact she made the cake means she approves of the union. The cake is 'speech' in that sense, too. It is physical proof of her approbation.

Besides, all this trying to draw a line between something that's merely art and something that conveys a specific message is pointless. Are you going to argue that sculpture isn't a form of expression protected by the 1st Amendment unless the sculpture contains words? Some of the most moving forms of expression involve no words -- a symphony might be an example -- do they have no protection? That boat sailed long ago. Exotic dancing doesn't involve words, but it's a protected form of expression. It would be a weird result that held exotic dancers had more freedom from government compulsion than bakers.

No, a simple counterfactual demonstrates that this is about compelling a choice speak approved thoughts or to shut up. Should a jewish baker be forced to make a cake to celebrate Hitler's birthday? Of course not. Nor should an African American be forced to make a Confederate Flag cake. Why not? It's easy to see that a happy birthday cake in celebration of Hitler's birthday is something no Jew should be forced to make. The reason is because such a cake expresses a message that many Jews would find vile. The problem is that many cannot see any legitimate reason why anyone wouldn't support same sex unions, so why not force them to make cakes that celebrate such unions? The answer to why not force them to endorse something we 'all know' they should endorse is that government is prohibited from mandating speech by the 1st Amendment. It doesn't matter that we cannot understand why they find the message offensive. It doesn't even matter whether they find the message offensive. All that matters is that government cannot compel speech. Or, if government can compel speech, Jehovah's Witnesses better start saying the Pledge of Allegiance!

Bruce Hayden said...

"Because it is indeed a contrived case. A group of activists went looking for a target, in order to either create a row, like this, or force the target to kowtow. "
"This is cultural warfare."

Roe v Wade and much of the privacy/birth control jurisprudence leading up to it was just as contrived.

"Why would a gay couple want to use the services of a homophobic baker, photographer or florist? "

In real life, if not trying to make a point, they would be stupid to. Esp the baker. That is the point that my partner makes in these cases. Her first husband was an executive chef at a well known resort in Las Vegas, and taught her about the fetid underbelly of the food preparation business. And her best friend was involved in a case where some kitchen worker ejaculated into the food being prepared. That was extreme, but she fully expects someone to spit into her food if she complains too much. Which causes problems when we are out because I can be a demanding patron. When they screw up the order, I expect it to be fixed. She doesn't (but is the one with all the food issues). She is too much the germophobe to chance someone spitting (or worse) into her food if we somehow piss off either the waiter or someone in the kitchen. Then, when we are done, she expects me to leave a good tip, despite the screwed up order? Not likely - I will lie to her about the tip before rewarding screwing up. Oh, and she insists that we put the food in takeout containers, instead of allowing them to, because restaraunt staff have been known to spit into your food when doing it for you, if you caused them too much grief during the meal.

Both photographers and floral designers can screw up a wedding experience. The photographer is obvious, but the florist can do it too. Her first career was in floral design. And, done right, it is an art, which requires formal training. She graduated from HS early, and spent the year before college in floral school. She loved weddings, which was a good thing working in Las Vegas. Being an obsessive perfectionist, she has a whole list of things that can be done wrong for wedding flowers. Subtly wrong, some are more obvious - such as wilted flowers. Some are less so, with the color disposition being less than optimal. You know that it is blah, but don't know why. She could tell you, but that is because she was a skilled professional. If a wedding is a day to remember, part of that is having flowers that are perfect, and photos that make the two of you look your absolute best. Both are less likely if you are forcing the people providing them to do so under duress.

Kevin said...

"If, on the other hand, you want the anti-discrimination side to win"

That's the crux of the problem. The law by empowering some over others, inherently discriminates.

We can pretend it does so in the name of "good", in the name of "justice". But we should not delude ourselves that it's doing anything other than setting up patterns of discrimination by one person or group over another.

Kennedy and his clan will continue to add epicycles to the law until the entire system becomes as unbearable as English law was to the colonies.

He knows this. He's trying to manage this by doing just enough to forestall the inevitable a bit longer. He may even delude himself that if he can find the right balance at the right moment the system may find some new, previously undiscovered, stable equilibrium.

But it's a fool's game. The government will continue to address grievances in exchange for its power. And in doing so, any stability will be continuously undermined by the advocacy industry that grows by the day.

Kennedy is no longer in control of the system, but slave to it. His decision does not solve the underlying issue, for it has nothing to do with bakers or cakes.

Jason said...

Chuckles: There is no law anywhere making "MAGA" fans a protected class.

Chuck has his head up his ass, as usual. There are a number of jurisdictions that make political affiliation/activity a protected class, including Washington DC, New York and California.

Jason said...

wwww: My point is that a merchant is not a guest and does not have guest rights.

Feck off with that garbage thinking and made-up doctrine.

Merchants have natural rights.

gadfly said...

Althouse wrote: "...I think that if, in the long run, you'd like to see more conservatives winning Senate seats and in a position to confirm judges nominated by a conservative President — nominees selected for their solid and forthright conservatism — you ought to hope the cake-maker loses."

But the facts are obvious - there is no conservative anywhere close to the White House, let alone one with the title of President. Our President, for the next three years unfortunately, is Donald Trump and any win is desirable in order to rationalize Trump godliness thus offsetting his failures in the restricted world the Trumpmind, so expect the tweet machine will soon be in high gear, rooting for the cake-maker.

If the Supremes rule against religious cake-makers, expect Trump to attack that forever ungrateful Justice Gorsuch.

Rusty said...


“If, on the other hand, you want the anti-discrimination side to win, you can still feel good if and when you lose. Practically, all you lose is a little access to cake,but if the Court impinges on the right of gay people to be served as equals in an ordinary shop, you will have a powerful political argument that that gay people are still exposed to cruel disrespect and that the so-called "conservatives" of the Supreme Court kicked into judicial activism to make up an unprincipled right to discriminate. What a fraud! Time for more Democrats in the Senate, obstruction of Trump nominees, and for God's sake get a Democrat in the White House in 2020.”

I think that the above is probably the least informed, emotional and unreasoned statement I've ever seen you make here. As if "democrat" is a talisman. Whatever the decision is let me tell you what will happen. People of a religious bent who wish not to bake a custom cake for a gay wedding will lose out to those bakers that see baking custom wedding cakes for anybody is good business. There are more of the latter than the former.
I don't have faith in the supreme court. I do have faith that an unfettered marketplace always produces acceptable results.
Take a deep breath, Althouse. Hold it. Now let it out.
There. Feel better?
Intelligent people don't vote democrat.

tim in vermont said...

Kennedy seems to think he is the king. These ruminations are the province of monarchs, it's Kennedy's job to interpret the law. The problem is that if he does that honestly, well, a whole house of cards falls apart, and he knows it.

tim in vermont said...
This comment has been removed by the author.
James K said...

I think that if, in the long run, you'd like to see more conservatives winning Senate seats and in a position to confirm judges nominated by a conservative President — nominees selected for their solid and forthright conservatism — you ought to hope the cake-maker loses.

I don't buy this view that it's worth having the left wreak havoc now so that conservatives will be victorious in elections.

1. As we've seen with Obamacare, there's no guarantee (Obama won in 2012 anyway), and it's very hard to undo the damage--especially from a SCOTUS ruling.

2. I've seen no evidence that the left is so galvanized on this particular issue as to have it swing an election.

3. Trump has three more years at least, and will very likely get a couple more nominees anyway.

Gretchen said...

Both slides claim to be anti-discrimination.

I think the exception is in the creation of the cake for a specific event. Gay people were welcome to purchase anything made in the shop bakery case, the baker just declined to make something special for them. I would consider it rude to ask a Jewish or Muslim baker to create a cake celebrating a Christian event like baptism or Easter, why doesn't anyone care about the sensibilities of people who aren't liberal?

James K said...

why doesn't anyone care about the sensibilities of people who aren't liberal?

The question answers itself. Well, not "anyone" but "liberals." The best example is people who want "gender-free" restrooms lest any transgenders' feelings be hurt. No concern whatsoever for the feelings of girls who might not care for boys or men sharing the restroom with them.

Rusty said...

"why doesn't anyone care about the sensibilities of people who aren't liberal?"
Because to liberals you are sub human.

Bad Lieutenant said...

What if the cake artist parses his brief carefully, and creates (and reveals only at showtime) a stunning, artistic, uncontaminated, delicious masterwork, whose theme is mockery of the wedding, the couple and guests? Say, groom and groom sandwiching a four-year-old while the audience bukkake's them? Depicted down to the screams and struggles of the child? Hey, it's art!

Jason said...

Yes, though it could be a breach of contract.

*contract.*

Amadeus 48 said...

The love that dare not speak its name has become the love that won't shut its trap.

I have sympathy for both sides here. Too bad the baker didn't have a plan in place-like a subcontracing arrangement with another baker- so that everyone could be served from his shop without his personal participation. If he loses, I expect that is what he will do.

This is clearly a test case. I personally prefer freedom of association, but that ship sailed a long time ago. There is no point in arguing that now.

The Colorado Civil Rights Commission sounds like a nest of wankers. I'm glad Kennedy made that lawyer disavow the anti- religeous, bigoted staement made by the commission member. Kennedy made him eat it. Heh.

Unknown said...

Yes, let's discriminate against religious people for the greater good of forcing everyone to groupthink in lockstep.

Charles said...

(Some of this may be verbatim from my earlier post, but I won't clutter this up with quote marks where I'm only quoting myself.)


Aren't you concerned that Newsweek will accuse you of self-plagiarization without quote marks?

Charles said...
This comment has been removed by the author.
Jason said...

Amafeus: if you’re subcontracting, you’re still participating.

If you’re referring, you’re still participating.

See the Little Sisters of the Poor case. Or Linda Davis.

Or St. Thomas Moore, each of them were targeted because they refused to sign a document, because that, too is participating.

For observant Catholics, the doctrine is clear.

Chuck said...

Blogger Crazy Jane said...
During the Supreme Court arguments, one justice asked whether a baker could be compelled to make a KKK-decorated cake.

The ACLU lawyer provided this answer: "The Ku Klux Klan as an organization is not a protected class."

Sadly, an attorney for a group devoted to civil rights, said this: Some animals are more equal than other animals.

But the ACLU lawyer was right!

The Colorado cake shop would have been perfectly free to refuse the gay couple, but for the ruling of the Colorado civil rights commission. Based on the Colorado law, CADA. Because gays are explicitly protected under that law.

The KKK is not protected. Why is that so hard for some of you to accept? I don't like the Colorado law; I'd oppose it if I were in Colorado. But that doesn't change the obvious analysis.

whswhs said...

Chuck: I think it's missing the point to say, "the law says X," when the question is "is that a valid law?" (which is what the Supreme Court has to decide) and as a basis for that, "is X just?" At best it's begging the question to appeal to the law itself to validate the law. After all, if the Supreme Court strikes down that law, then it will no longer be the law and it will not be possible to appeal to it to show anything.

Kirk Parker said...

Post-Raich, the court really has no respect left to preserve. But a case like this does usefully show that they still deserve zero respect as a matter of law or ethics.

Even Thomas deserves some criticism for just sitting there and putting up with this contemptible nonsense, instead of exploding with a denunciation of the entire faux-philosopher-king charade.

buwaya,

"since neither will die"

Sadly, you are wrong about that.

Narayanan,

"Can USSC strike down Colorado Civil Rights Commission?  Totally as unconstitutional."

That would certainly be the preferable, bloodless way to do it. I have little expectation it will turn out that way, though.

Amadeus,

"I personally prefer freedom of association, but that ship sailed a long time ago. There is no point in arguing that now. "

WTH? Since the alternative, eventually, is Civil War, you darn well had better be arguing for that now, with all the ability you can muster.

Michael Ejercito said...

It is a tenuous argument, at best, that the sale of sign-making supplies constitutes expression. Thus, Colorado’s laws properly apply to such, and it is unlawful to refuse to sell sign-making supplies because the purpoted customer is a Westboro Baptist or a militant Islamist. And religious discrimination laws must cover unpopular religions, or else it fails to achieve its own purpose.

But the question is, does this law apply to actually making signs? If not, how do you distinguish between making a sign for Westboro Baptists, or designing a cake for a same-sex wedding? Would it make a difference if the sign maker already sells “God Hates Fags” signs to the general population?

Further guiding this issue is our Establishment Clause jurisprudence. While states can not discriminate against religion, neither can states provide direct support for religion. If the state offered sacks of flour, recycled rubber, blank recordable CDs, or sign-making materials to the general population, it can not deny such because the receipient wants to use them for religious purposes. See Trinity Lutheran Church v. Comer, No. 15-557 (Jun. 26, 2017) However, the state, with extremely limited exceptions, can not design a church, nor priestly vestments, nor signs for a religious picket. And it is obvious that the state can not make (let alone design) a cake to celebrate a baptism or a bar mitzvah, (which is different from making cakes for the general population)

A corrollary to this is the state can not require private individuals to do what it itself is forbidden to do. as such, it can no more require private individuals to support religious ceremonies any more than it can require private schools to practice racial segregation. See Brown v. Board of Education, 347 U.S. 483 (1954).

rich hahn said...

What it comes down to is individual rights vs group rights. Liberal justices will vote in favor of group rights over individual rights and Conservative justices the opposite.

Kennedy will wimp out and vote against individual rights because we can't erode government power with individual rights, even though that is the purpose of the Bill of Rights.

PeterK said...

Amexpat wrote "Why would a gay couple want to use the services of a homophobic baker, photographer or florist?"

first of all the Masterpiece cake baker is not homophobic (tired phrase designed to shut down any discussion much like calling someone a nazi or fascist) as he regularly sold cakes, cupcakes and other baked goods to homosexuals who came into his store. the same goes for the florist in Washington state who had sold floral arrangements for years to the plaintiff in her case. in both cases they declined to participate in helping celebrate the "nuptials" of the SS couples.

I suggest that you go forth and gather more facts about the cases at hand. I've long suspected that in the case of the baker that he was targeted by the SS couple since just the year before he had declined to create a Halloween-theme wedding cake. that couple did not sue him but rathe posted numerous bad reviews about him in various online websites. so this SS couple may have known that he was a devout Christian and were testing him to see what he would do.
the couple eventually went to a bakery that specialized in serving the homosexual community

Rick67 said...

Dang. Your last two paragraphs appear to argue:

Win the battle, lose the war.
Lose the battle, win the war.

The outcome of the "war" seems much less certain than the effects of the immediate battle. However your perspective - as is often the case - is different and intriguing.

hombre said...

"What a fraud! Time for more Democrats in the Senate, obstruction of Trump nominees, and for God's sake get a Democrat in the White House in 2020."

Absolutely right! Democrats have never been troubled by involuntary servitude.

Chuck: "The KKK is not protected. Why is that so hard for some of you to accept?"

It's not hard to accept for the purpose of argument. However, as a matter of fact until a few years ago homosexuals were not protected either and their "protection" from cake bakers is arbitrary and by no means universal or natural law. There may even be folks in this country who believe gay activists should have no more "right" to impose their will on us than the KKK.

hombre said...

Amexpat: "Why would a gay couple want to use the services of a homophobic baker, photographer or florist?"

Because it is not about cake or flowers. It's about compulsion, denigration and destruction.

BTW, there is no reason to believe the baker in question was homophobic at the time of his refusal. He may be by now.

Bad Lieutenant said...

The KKK is not protected. Why is that so hard for some of you to accept?

1857: Blacks are rightless chattels. Why is that so hard for you to accept?

Jason said...

Chuck "The KKK is not protected. Why is that so hard for some of you to accept?"

Know who IS in a protected class?

Christians.

As well as anyone else with a religious objection to being Mau-Mau'd into participating in a same sex wedding in any way.