SCOTUS & gay wedding cakes

[Cow Poke]

So, my baby sister - an actual Christian Cake Baker - has thought a lot about this. She makes it really simple.

If a gay couple comes in and asks for a "same sex wedding cake", I tell them I don't do those.
If the gay couple gets their Christian friend to come in and ask for a "same sex wedding cake", I tell them I still don't do those.
If an African-American Jew comes in and asks for a "same sex wedding cake", I simply don't do those - no matter who asks.

She has treated everybody equally.

If a neo-Nazi comes in and asks for a "skinhead" cake - "I don't do those".
If an African-American comes in and asks for a "skinhead" cake (maybe for target practice) - "I still don't do those".
If a Black Lives Matter member comes in and asks for a "fry 'em like bacon" cake - "I don't do those".

She has treated everybody equally.

If a Satan Worshipper comes into a Christian Book Store and asks for a Pentagram - we don't sell those.
If a Christian comes into a Christian Book Store and asks for a Pentagram - we still don't sell those.
If a Jewish Rabbi comes into a Christian Book Store and asks for a Pentagram - nope, we don't sell those.

All requests have been treated equally.

[seer]

Another important principle addressed in the decision:

Dignitary harm can’t trump First Amendment rights.

Finally, possibly one of the most important implications of the Masterpiece decision is this: Claims of offense or dignitary harm are not sufficient to trump religious liberty rights. This has long been a bedrock principle in the free speech context. But opponents of religious rights have argued that this principle should not apply if someone’s beliefs cause others to feel hurt, embarrassed, or insulted.

As my colleague Mark Rienzi and I argued in a recent Boston College Law Review article, these justifications are completely foreign to our First Amendment jurisprudence and would create dangerous precedent. Such a rule would allow the government to stamp out just about any religious belief that is politically unpopular. And that sort of might-makes-right approach is the opposite of what our pluralistic democracy should look like.

Happily, the Supreme Court agreed. Relying on principles drawn from the Supreme Court’s freedom of speech cases, Justice Kennedy stated that “it is not ... the role of the State or its officials to prescribe what shall be offensive” nor to prohibit conduct “based on the government’s own assessment of offensiveness.”

http://thehill.com/opinion/judiciary...s-a-good-thing

This is not a narrow precedent, it may actually have widespread application...

[thewriteranon]

Another important principle addressed in the decision:



This is not a narrow precedent, it may actually have widespread application...

The whole quote is:

A principled rationale for the difference in treatment of these two instances cannot be based on the government's own assessment of offensiveness. Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. See Matal v. Tam, 582 U.S. ––––, –––– – ––––, 137 S.Ct. 1744, –––– – ––––, 198 L.Ed.2d 366 (2017) (opinion of ALITO, J.). The Colorado court's attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips' religious beliefs. The court's footnote does not, therefore, answer the baker's concern that the State's practice was to disfavor the religious basis of his objection.

Kennedy is calling out the apparent hostility of the commission toward religion. It's a precedent that Richard Epstein, for example, argues follows Hobby Lobby in denying the myth that one's religion can be abandoned in the public sphere but it is not an overwhelming victory for religious freedom. It's great that the Court acknowledges that government officials can't display apparent hostility toward religious individuals, but Kennedy explicitly punted on deciding the hard questions:

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.

It's an opening for more litigation. This is how both Gorsuch/Alito/Thomas can concur (and Thomas only is concurring in part and in judgment) as well as Kagan/Breyer (who make it even more explicit that they see the ruling as narrowly applying to government officials acting in open hostility).

Everyone writing was pretty up front about what they were doing.

ETA: Mark Rienzi was one of my profs for Religious Freedom Research. I got an H in his class (H = A). Not super relevant but he's great.

[oxmixmudd]

Great answer Jim! What the "other side" just doesn't weem to get is that since the owner ALSO would not make any kind of Halloween items, if ANY person, STRAIGHT or gay had walked into the shop and asked for a Halloween cake, the baker would have also refused these commissions as well.

I guess I shouldn't be amening pats on my own back ... I was not actually amening the first sentence, but the rest ... no really ...

Jim

[rogue06]

That is because, as best I can tell, you refuse to recognize there are two issues here, not one.

There is the issue of discrimination: He won't serve them because they are gay.
There is ALSO the issue of freedom of religion: He won't create a symbol of an act that violates his religious beliefs.

And it should be said that only one of those rights is explicitly mentioned in the Constitution.

[Sparko]

The whole quote is:



Kennedy is calling out the apparent hostility of the commission toward religion. It's a precedent that Richard Epstein, for example, argues follows Hobby Lobby in denying the myth that one's religion can be abandoned in the public sphere but it is not an overwhelming victory for religious freedom. It's great that the Court acknowledges that government officials can't display apparent hostility toward religious individuals, but Kennedy explicitly punted on deciding the hard questions:



It's an opening for more litigation. This is how both Gorsuch/Alito/Thomas can concur (and Thomas only is concurring in part and in judgment) as well as Kagan/Breyer (who make it even more explicit that they see the ruling as narrowly applying to government officials acting in open hostility).

Everyone writing was pretty up front about what they were doing.

ETA: Mark Rienzi was one of my profs for Religious Freedom Research. I got an H in his class (H = A). Not super relevant but he's great.

did you ever get to do your argument in front of the Supreme Court yet?

[thewriteranon]

did you ever get to do your argument in front of the Supreme Court yet?

Yeah, we submitted our brief in January and the oral args for our case were heard in March. They didn't reference our brief during questioning, but the decision is still forthcoming. Hopefully before June ends.

[carpedm9587]

So, my baby sister - an actual Christian Cake Baker - has thought a lot about this. She makes it really simple.

If a gay couple comes in and asks for a "same sex wedding cake", I tell them I don't do those.
If the gay couple gets their Christian friend to come in and ask for a "same sex wedding cake", I tell them I still don't do those.
If an African-American Jew comes in and asks for a "same sex wedding cake", I simply don't do those - no matter who asks.

She has treated everybody equally.

If a neo-Nazi comes in and asks for a "skinhead" cake - "I don't do those".
If an African-American comes in and asks for a "skinhead" cake (maybe for target practice) - "I still don't do those".
If a Black Lives Matter member comes in and asks for a "fry 'em like bacon" cake - "I don't do those".

She has treated everybody equally.

If a Satan Worshipper comes into a Christian Book Store and asks for a Pentagram - we don't sell those.
If a Christian comes into a Christian Book Store and asks for a Pentagram - we still don't sell those.
If a Jewish Rabbi comes into a Christian Book Store and asks for a Pentagram - nope, we don't sell those.

All requests have been treated equally.

No. Apples and Oranges.

[Cow Poke]

No. Apples and Oranges.

Nope - cakes and amulets.

[JimL]

It definitely sets the tone that a Christian businessperson's beliefs do not have to be abandoned simply because he/she chooses to engage in commerce.

That never was the case anyway. No one in this case was being forced to abandon their beliefs. Baking a cake according to the specifications of the buyer is not the baker abandoning his beliefs. That's just silliness.

It also sends a signal that hostility toward religious beliefs should not be tolerated.

That's the only signal that was sent, which of course was the Supreme Courts way of kicking the can down the road.

[carpedm9587]

Nope - cakes and amulets.

[Cow Poke]

That never was the case anyway. No one in this case was being forced to abandon their beliefs. Baking a cake according to the specifications of the buyer is not the baker abandoning his beliefs. That's just silliness.

Like the NYTimes opinion said....

This much, however, is clear: Business owners and others have no obligation under the Constitution, nor can one be imposed by statute, to confine their religion to the private domain. On the contrary, they have the constitutional right to proclaim and act on their religious beliefs in the public domain, including in the domain of commerce. If you are a Christian (or Jewish, or Muslim, or Hindu) business owner, you may run your business according to your religious principles, subject to legal regulations that are neutral (that is, not rooted in antipathy to your religious beliefs or those of your fellow citizens) and general in their applicability (that is, they apply to everyone equally).

That's the only signal that was sent, which of course was the Supreme Courts way of kicking the can down the road.

You miss the implication of the signal, but, yes, most of it was just kicked down the road - I don't think that's in dispute.

[DesertBerean]

No. Apples and Oranges.

Explain.

[rogue06]

A compelling opinion piece from the staff of the Boston Herald:

Source: Ruling reveals left’s bias

The Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission has predictably caused those on all sides to man their battle stations.

Some celebrate a victory for religious freedom while others lament a step back for LGBT rights.

At the end of the day, though, the Supreme Court ruled that there is no right to discriminate based on the identity of the customers. It basically determined the Colorado Civil Rights Commission was biased against the bakery because of the bakery’s religious views.

This is a niche victory for the bakery rather than a sweeping referendum on civil rights or religious freedom.

Unfortunately the cultural and political tribes in this country almost never listen to each other but instead opt to engage in the arguments they came prepared to have, while ascribing the worst of intentions to their rivals.

The New York Times, a tribal leader, rallied the troops with a typical misleading headline: “In Narrow Decision, Supreme Court Sides With Baker Who Turned Away Gay Couple.”

It hardly paints an accurate picture. But the truth is beside the point. The left wants to tell the story of a mean bigot who used mean religion to mask his hateful homophobia to punish a young couple in love.

Being mean is bad. Except when it’s not.

© Copyright Original Source

And here is where it gets interesting:

Source: ibid

Last year, when a slew of fashion designers refused to dress Melania Trump for the presidential inauguration on Jan. 20 they were treated as heroes. That was the kind of mean progressives could get behind. Let us suppose even one designer had refused to dress Michelle Obama.

During that same inauguration, liberals were tickled pink about reports that many musical acts refused to perform. The Daily Beast headline read, “NO, THANKS. Trump’s Inauguration Nightmare: All the Musicians Who Have Turned Down Invites.”

This April, a judge ruled that a New York City bar could throw out Trump supporters at will. Last November, a New Mexico business refused to deal with Trump supporters. The owner posted an item declaring that it “will no longer do business with any person that is a registered Republican or supports Donald Trump.”

The same happened at a fast-food chain in Virginia and a cafe in Hawaii, where a note on the door read, “If you voted for Trump you cannot eat here! No Nazis.”

Continually, progressives act on their meanness and hate out in the open with little or no condemnation. Meanwhile, we are told again and again that Trump voters have hate in their hearts, though it rarely manifests itself anywhere outside of the imaginations of the #Resist factions.

Maybe we can salvage the second half of 2018 by being nicer to each other. Perhaps we can be more tolerant of each other and not take every opportunity to make something out of nothing.

Sometimes a cake is just a cake.



Source

© Copyright Original Source

GIF Applaud.gif

[carpedm9587]

A compelling opinion piece from the staff of the Boston Herald:

Source: Ruling reveals left’s bias

The Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission has predictably caused those on all sides to man their battle stations.

Some celebrate a victory for religious freedom while others lament a step back for LGBT rights.

At the end of the day, though, the Supreme Court ruled that there is no right to discriminate based on the identity of the customers. It basically determined the Colorado Civil Rights Commission was biased against the bakery because of the bakery’s religious views.

This is a niche victory for the bakery rather than a sweeping referendum on civil rights or religious freedom.

Unfortunately the cultural and political tribes in this country almost never listen to each other but instead opt to engage in the arguments they came prepared to have, while ascribing the worst of intentions to their rivals.

The New York Times, a tribal leader, rallied the troops with a typical misleading headline: “In Narrow Decision, Supreme Court Sides With Baker Who Turned Away Gay Couple.”

It hardly paints an accurate picture. But the truth is beside the point. The left wants to tell the story of a mean bigot who used mean religion to mask his hateful homophobia to punish a young couple in love.

Being mean is bad. Except when it’s not.

© Copyright Original Source

And here is where it gets interesting:

Source: ibid

Last year, when a slew of fashion designers refused to dress Melania Trump for the presidential inauguration on Jan. 20 they were treated as heroes. That was the kind of mean progressives could get behind. Let us suppose even one designer had refused to dress Michelle Obama.

During that same inauguration, liberals were tickled pink about reports that many musical acts refused to perform. The Daily Beast headline read, “NO, THANKS. Trump’s Inauguration Nightmare: All the Musicians Who Have Turned Down Invites.”

This April, a judge ruled that a New York City bar could throw out Trump supporters at will. Last November, a New Mexico business refused to deal with Trump supporters. The owner posted an item declaring that it “will no longer do business with any person that is a registered Republican or supports Donald Trump.”

The same happened at a fast-food chain in Virginia and a cafe in Hawaii, where a note on the door read, “If you voted for Trump you cannot eat here! No Nazis.”

Continually, progressives act on their meanness and hate out in the open with little or no condemnation. Meanwhile, we are told again and again that Trump voters have hate in their hearts, though it rarely manifests itself anywhere outside of the imaginations of the #Resist factions.

Maybe we can salvage the second half of 2018 by being nicer to each other. Perhaps we can be more tolerant of each other and not take every opportunity to make something out of nothing.

Sometimes a cake is just a cake.



Source

© Copyright Original Source

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Taking a stand against who someone is (e.g., black, gay, female, short, disabled) is not the same as taking a stand against what someone believes (e.g., Christian, xenophobe, climate denier/supporter, etc.).