SCOTUS rules 7-2 in favor of the Masterpiece baker…
…but it’s a narrow ruling:
The verdict criticized the [Colorado’s] treatment of [baker] Jack Phillips’ religious objections to gay marriage, ruling that a civil rights commission was biased against him. As a result, the decision did not resolve whether other opponents of same-sex marriage, such as florists and photographers, can refuse commercial wedding services to gay couples.
Justice Anthony Kennedy wrote the court’s 7-2 decision against the same-sex couple, departing from his long history of opinions in favor of gay rights dating back a generation.
The text of the decision can be found here (there are separate concurring opinions by Gorsuch, Kagan, and Thomas, with separate dissenting opinions by Ginsburg and Sotomayor). The gist of it appears to be that in this particular case the religious rights of the baker were infringed upon, because the Coloado commission did not take them into account, but that the ruling does not mean the court would rule in favor of all bakers in every case. The ruling is “tailored to the case at hand,” and:
The [Colorado] Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Philli was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided…
The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.
In other words, it’s a balancing act, but the rights of each side should be protected as much as possible without trampling on one or the other. Another interesting statement refers to the rights of clergy, although they were not the subject of this case:
When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion.
However—and I’m doing this in part from my memory of things learned in law school, which is pretty long ago—I do not think that the statement on clergy creates any sort of binding precedent, because “resolution of that question” was not “necessary to the disposition of the precedent case,” one of the requirements for a precedent to be binding. However, it’s an indication of the way this particular Supreme Court would be ruling if such a case came up. As for future SCOTUS courts, all bets are off and it depends on their left/right composition.
I haven’t read the 59-page decision, although I hope to at least skim it. I’m very curious about the deeper reasoning involved, but I agree with the outcome as I understand it so far. I also think it’s interesting that it didn’t break down exactly along the usual liberal/conservative lines. That’s encouraging.
Sweet! Let the wailing and gnashing of teeth commence.
I liked the bit about situations like this being addressed with tolerance. Shopping around for Christian bakers, photograpers, and florists to intimidate does not sound like tolerance to me.
Can you imagine asking an Amish seamstress to make you a bikini?
I’m not familiar with this sort of dispute (rights conflicts), and am not a lawyer, but it seems to me this ruling will be very easy for the Commission (and any other such government entity) to work around.
This is a case of conflicting rights: the gay couple has the right not to be discriminated against; the religious baker may not be sanctioned for his religious beliefs. It will be very easy for the Commission to rule that in this situation, and others like it, the discriminatory act is not allowed, regardless of the baker’s stated motivation for doing so. Had the Commission done that, rather than attack and belittle the baker’s religious beliefs, the case probably would have ended a long time ago in favor of the Commission.
I would have found it more interesting to discuss this from a purely commercial perspective: when I go into business, are there people and other businesses with whom I may be forced to transact business, simply because they want to transact with me?
I haven’t read the decision yet either, but I suspect it’s a bit more broad than the MSM is claiming.
The Colorado commission being overtly hostile to the baker’s expression of his religion (something that would have been hard to imagine 25 years ago) ignores the Constitution’s freedom of religion clause; as I understand it. I’d say this also means that the constitution, or at least this part of it, means nothing to Ginsberg & Sotomayor. I am slightly pleased that Kagan signed on to the majority.
Suppose the case being heard was just some prosecutor &/or judge being overtly hostile to a baker’s religious objection, i.e. without the CO commission. I’d guess the Supremes would have ruled the same way.
But here’s the thing that narrows the utility of the decision towards oblivion. Just prosecute the bakers and others the same way as the CO commission, but without the overt hostility. Use kinder gentler words and use various rationalizations or dodges.
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This reminds me a bit of the various stays against Trump’s travel ban made on the basis of extrapolating Trump’s campaign rhetoric and thereby interpreting the true hidden meaning of his travel ban wording. The difference is between a explicit hostility and an interpreted or imagined hostility. Of course, the latter is an affront to black letter law. Judges aren’t supposed to use an Orwellian dictionary when reading statutes or executive orders.
Oh yeah, there’s also the difference that the baker’s case violates a basic constitutional principle and the freedom to immigrate isn’t in the constitution.
Neo what you recall from law school is called dicta.
“…with separate dissenting opinions by Ginsburg and Sotomayor”
Well… aren’t they special.
Only skimmed it. The opinion is limited in scope but does have some nuggets that hold out hope that freedom of expression and freedom to practice one’s religion will survive the year:
“The government, consistent with the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.”
— MASTERPIECE CAKESHOP v. COLORADO CIVIL RIGHTS COMMISSION
The majority opinion was written by Kennedy who predictably tried to split the difference and decide for the baker but only on the narrow grounds that the Colorado Civil Rights Commission was so obviously biased against religion.
The narrowness of the majority opinion is probably why Kagan and Breyer joined in. If it had been broader on the issue of religious rights they would probably not have joined the majority. Kagan wrote a concurring opinion that would have narrowed the decision even further.
The concurring opinions by Thomas and Goresuch are very interesting in that they might imply which way the court might trend if Trump gets to nominate a couple of more conservative justices. (Brennan has been rumored to be considering retirement for a while now and if Trump serves 2 terms he will almost certainly be replacing Ginsburg due to her age.) The conservatives would have decided on much more expansive religious freedom grounds.
Of course Ginsburg and Sotomayor dissented as would all committed progressives who care more about group rights than individual rights.
The 13th (anti slavery) Amendment to the Constitution states that “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” This has been held to mean that any forced labor is unconstitutional. A homosexual can’t force a baker to bake him a cake. Many years ago there was a local case where a home remodeling contractor had a “take this job and shove it” dispute with the homeowner. The homeowner sued the contractor to make him complete the job. The judge ruled he couldn’t force the contractor to work for the homeowner nor penalize the contractor in any way.
Of particular interest to me is the majority’s opinion’s statement that, “The government, consistent with the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices,”
Among other no doubt unintended consequences, how does this not eviscerate the prohibition against polygamy?
GB…I saw that too…but I wondered if that wasn’t in this decision’s more focussed disavowal of the overt anti-Christian hostility of the Colorado Commission.
But yes…Mormons & Muslims will certainly sit up and take notice.
My reading of the Australian law is that the answer here is…bake that cake. So I’d take the win there and see how the next decision/domino falls.
This decision portends a case wherein the Court will need to determine whether Islam is a religion or an alien political ideology.
“GB…I saw that too…but I wondered if that wasn’t in this decision’s more focussed disavowal of the overt anti-Christian hostility of the Colorado Commission.”
I don’t think that interpretation can hold up to logical examination but expecting intellectual consistency out of SCOTUS is, more often than not… an exercise in futility. That is always the case when justices place ideology before Constitutional fidelity.
IMO, they punted the ball to get a majority vote.
the Court will need to determine whether Islam is a religion or an alien political ideology. CapnRusty
I’ve argued here that Islam is not a religion but a violently expansionist, totalitarian ideology that wraps itself in a facade of religious pretense.
But it seems to me that SCOTUS just ruled (perhaps inadvertently) that the government cannot pass judgement upon the legitimacy and illegitimacy of religious beliefs and practices…
“The government, consistent with the Constitution’s guarantee of free exercise… cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices“
Seems to me this was more a rebuke of the unaccountable “star chamber” commissions and the appointment of biased activists by governors.
There should, under Magna Carta, be personal liability by these commissioners who have “laid their hands upon the citizen” wrongly. Alas, the rights espoused by Magna Carta have been overrun. But an appropriate action would be to go after the governor for the appointments and the failure to supervise the department.
I don’t fully understand the reasoning that allows a business to decline servicing or selling to a particular customer because the owners object to the morals or behavior of said customer. While this particular case was apparently more about the mistreatment of the business owner at the hands of government than about his singling out a gay couple, the fact is that for whatever reason he refused to accommodate them, and them alone.
In the over 40 years I was in business making and selling a product, I ran across a number customers that I would just as soon not had anything to do with. One customer operated a whore house behind the front of a shoe repair business. The numbered printed product I made and sold to her was used to keep track of waiting customers, not the line up of shoes to shine & repair. Another customer operated several businesses that were fronts for his money laundering. His manager, Vito, made it very clear that if we refused to sell to them it would not be in our best interest.
The fact is that unless you operate an exclusive members only club, you sell to whoever has the money. All this nonsense about the morals of the customer is very much beside the point. You don’t want to own a business? Go to work for someone.
This issue seems to me to fall under the heading of the right to free association. Does not the baker have the right to refuse service to any customers that he does not want to serve? I know, I know, we aren’t supposed to discriminate on the basis of race, sex, religion, etc. But, if I am forced to sell my labor to anyone, no matter what, is that not a form of slavery? It’s a complex issue and one that is trending toward forcing us to associate with or accommodate people that we would chose not to. Where is the right to individual freedom? These human rights commissions tend to be organizations that want to direct the lives of citizens as they see fit, based on their particular standards, which are not necessarily codified in law or approved by the voters. Why do they have standing? I ask these questions as one with no legal training and a distrust of lawyers in general.
The Other Chuck:
The baker was more than willing to serve this couple and sell them any product in the store. He was not willing to make a cake for a special occasion that went against his religion. That’s the distinction.
how does this not eviscerate the prohibition against polygamy
All relationships, with narrow exceptions, not limited to polygamy, should have been normalized under equal rights, but instead the bigots gave us political congruence (“=”) or selective exclusion, a Pro-Choice religious/moral principle.
So far comments have not addressed a couple of points about the decision that could have ramifications:
(1) a second line of argument from the baker’s lawyer was that the Colorado commission had previously declined to censure (harass?) a couple of bakers who had refused to make cakes with anti-gay messaging, and the decisions recognized the double-standard in operation, which effectively allowed the commission to punish only the discrimination they did not approve of;
(2) the argument most often cited here and elsewhere, that the commission “lost” because they did not hide their blatant disdain for the religious principles of the baker — in other words, their motives were an inseparable part of their decision — could affect future court judgments about the “legality” of Mr. Trump’s travel “bans” because of his putative motives, rather than the face of the executive orders;
and the icing on the cake –
(3)The Other Chuck Says:
June 4th, 2018 at 11:01 pm…”the fact is that for whatever reason he refused to accommodate them, and them alone.” — this is not true; the baker’s arguments that his religious principles were deeply-held, not frivolous excuses, pointed out that he had consistently refused to design cakes for messages that contradicted his beliefs, such as for Halloween (no accounting for tastes..)
Geoffrey Britain — The ruling in Obergefel v. Hodges, makes it inevitable that laws against polygamy, and shortly thereafter, incest, will be ruled unconstitutional. Unless, of course, Trump gets to appoint one or two more justices to the Supreme Court.
One of the things brought up that factored in the decision (that saved the baker) was that the state hadn’t instituted gay marriage at that point, but was persecuting the baker for refusing to bake them a cake. I think the decision may have been different in the post gay marriage state.
You will be made to accommodate.
Neo and Aesop point out good distinctions in this case that allowed the Supreme Court to issue their somewhat surprising decision. However, the best argument against the baker rests on public accommodation and the civil rights laws which prohibit discrimination based on certain criteria, as well as common sense. While it would be very nice to be able to pick and choose an exclusive customer base, the law doesn’t allow it, and in the long run it is not going to serve the business owners interest. You open yourself up to legal problems and can become the target of special interest groups.
Here are some quirky instances of similar conduct:
https://www.washingtonpost.com/news/acts-of-faith/wp/2016/03/15/barber-refuses-to-cut-transgender-army-veterans-hair-citing-the-bible/?utm_term=.f45690c50206
https://www.theblaze.com/news/2014/03/10/colorado-barber-refuses-to-cut-the-hair-of-people-smelling-of-pot
Remember the case of the Muslim cab driver who refused anyone with a dog based on his religious beliefs? Using religious beliefs to deny service is a slippery slope.
When the government takes away a right that citizens have to associate with and do business with whomever they choose then they set themselves up to have to decide over and over again who is a protected class and who isn’t.
What about the religious printer that is asked to make posters against religion?
What about the Muslim or Jewish printer who is asked to print an add encouraging people to eat more pork?
What about the gay printer that is asked to print an add against same sex marriage?
What about the black printer that is asked to print an add against a black activist group?
For printer you can substitute the occupation of your choice.
Remember, the Constitution prohibits the GOVERNMENT from discriminating on various bases. It says nothing about private individuals. It was always assumed that the free market would take care of other situations. If one person will not accommodate buyers for various reasons then another business will open to serve them. When some hotels would not rent to Jews then others opened that would. I’m Jewish and don’t approve of such discrimination but I trust the free market to correct it.
At first the only protected class was religion which started in the fifties. Then in the sixties race was added. That seemed fine to everyone and worked okay for a while but now we have a constantly increasing number of protected classes.
In the past there were signs in every shop about their right to refuse to service to anyone for any reason. If some of the reasons are not to be allowed then there is an infinite number of situations that will have to be decided by the courts.
Irv, I like your comment. Common sense. As a nation, we have lost our way.
Irv:
Your position on discrimination seems to be the same as Goldwater’s at the time of the 1964 Civil Rights Act. He opposed the measure’s public accommodation and workplace articles believing both were unconstitutional. Goldwater was basically a libertarian who thought that ending racial discrimination in government was all that was necessary. Like you he was willing to let the marketplace regulate and correct any wrongs outside of government.
I’m sure that is an enlightened attitude to have. Would that human nature be as benevolent and rational as the libertarians wish. Unfortunately, the example of the Jim Crow South is still with us. You and I are old enough to remember Lester Maddox and his Pickrick Restaurant. He met blacks at the door with axe handles, vowing to never let one eat in his establishment. Like the baker in Colorado who is willing to sell cakes to gays, just not wedding cakes, old Lester didn’t think of himself as a bigot since he hired blacks to work in his restaurant. As with the baker, he was upholding a higher principle. For Maddox it was property rights. For the baker it’s religious rights.
The big difference between these two examples is that race is definitely a protected class written into the 1964 Civil Rights Act, as Lester found out. Discrimination against gays was never a part of it even though some court decisions have expanded the definition of protected class. The Trump administration is in favor of restricting it to the classes that were originally included. In that sense Trump could be called a Goldwater Republican.
The leftist LGBT crowd is going out of its way to antagonize people of good will. They will hunt down and expose anyone who doesn’t fully embrace their agenda. On the one hand, what difference does it make that one wedding cake baker refused service to a same sex couple? Surely there were many others who would bake them a wedding cake. On the other hand, I’m not buying his “religious” excuse one damn bit. As with our overall current political situation, both sides have dug in their heels.
Novit enim Dominus qui sunt eius.
I don’t think the right of free association enters into this case. The issue was never about to whom the baker wished to refuse service – he did have gay customers (unless I’m getting the details confused with the Oregon case) – but about what he was being asked to do – produce a product for the explicit commemoration of a religiously prohibited union. If he’d refused to bake a birthday cake for a gay customer, the case turns on free association. This case is more like forcing a Jew to bake a cake in the shape of a crucifix or a swastika (not that I’m equating the two).
While I agree that the marketplace is a very slow way to remedy discrimination, I believe it is the only viable way. The remedy has been worse than the disease in that it has split the races more than ever before.
In my opinion the way to stop discrimination for good is to have the government to stop dividing people up by race, sex, creed, national origin, and a myriad of other divisions.
There are very few ‘pure’ anythings left. It hard to find people without some mixed races in their background. The same is true for creed, national origin et al and even sex is no longer binary.
If the government quit dividing people by these characteristics then the public would have no way of knowing who’s who. At what shade would a person become black? How far back would people choose to divide by national origin? Which of the myriad of sexual preferences would be used to discriminate?
If the government quit dividing then people would have to be judged by their individual characteristics instead of by group characteristics. Do you really think that businesses would have signs with a color swatch that said, ‘If you’re darker than this then you won’t be served.’?
I seem to remember a famous civil rights activist who wished for that very same way of judging people, and while he is held up as an icon in the movement, what he wished for is the farthest thing from what is being demanded.
Just try to name one social ill that the government has tried to remedy by changing people’s minds that hasn’t wound up doing more harm to that particular cause than good.
If I wanted to destroy the culture of an entire race I would implement the Great Society programs that destroyed their family structure.
If I wanted to destroy people’s will to succeed I would put them all on welfare and tell them that if they worked then they would lose it.
If I wanted to destroy a group’s self esteem I would implement affirmative action which would destroy them in two ways. First it would take individuals out of groups where they were being successful and puts them into groups for which they’re not qualified and thereby insure their failure. Second, it would taint the success of those who manage to succeed by making people think that, but for the leg up, they wouldn’t have succeeded.
Government is wonderful for many things but correcting social ills isn’t one of them. Should we then do away with welfare? Of course not! Helping those who can’t help themselves will always be a proper function of government. But, helping those who can help themselves will always be destructive.
Irv, you’re right on every count. Both just above and earlier.
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To me, an important part of this issue is the matter of compelled expression. That would remain even if the expression (or speech) were not based on religious belief at all. For instance, Mr. Phillips says that he would refuse to provide an “anti-American” cake. I take that if one were to request a cake depicting, say, the American flag afire with a sword running through it, one would be denied.
I hope that in such a case SCOTUS would still find for Mr. Phillips.
And just to repeat what Irv said, before we get to compelled speech, there’s the issue of compulsory servitude.
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The Muslims and the dogs. If The Gov (Federal, State, municipal, whatever) got out of the business of setting rules for business on pain of some sort of punishment, then it would be a purely contractual deal between the cab company and the driver as to whom the latter would or wouldn’t convey, or where the driver would or wouldn’t consent to go, etc. I daresay most cab companies would insist that all of their drivers take all comers, bedogged or not; but that would be a private matter in any case.
(Personally, if you don’t take my dog, you won’t take me.)
In short, Sen. Goldwater was quite right about the unConstitutionality of the Civil Rights Act of 1965 regarding compulsory “non-discrimination” of private businesses.
@ Chuck: You seem upset, even mad.
GRA, not mad but irritated. I dislike people using Christianity as a cover for decidedly un-Christian actions – and getting away with it.