Supreme Ct. Rules on Wedding Cake for Same Sex Marriage

[Danmark]

Today the U. S. Supreme Court finally published its decision in MASTERPIECE CAKESHOP, LTD. v. COLORADO The full text of the decision along with concurrances and dissent:
https://www.law.cornell.edu/supremecour ... _OPINION_3

Tho' nominally the decision overturns the Colorado decision and was a finding in favor of the baker, it was a cleverly crafted 'non decision.' Justice Kennedy affirmed the Colorado law in question, a law which says a company open to the public cannot refuse to sell its products to someone because of their race, religion, marital status, or sexual orientation.
“It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.� Colo. Rev. Stat. §24–34–601(2)(a) (2017)."

However, Kennedy found fault with the Commission that applied this law to Phillips [the baker], saying that they showed hostility toward Phillips' religious beliefs by characterizing them as an excuse for unlawful discrimination:

"To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use� is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law__...."
The subject for debate is A, doe this summary of the decision fairly represent the Court's opinion, and
B, is Colorado's anti discrimination law fair to competing factions?

[Danmark]

This is the thin edge of the cake wedge.

Schools and many other institutions will be next.

It remains for me an open question whether a society can be so easily destroyed from within.

You are missing the point by a wide margin. Exactly the opposite of what you say is the case. Consider what would happen if the law were otherwise; if any business that serves the public could refuse service or goods to anyone they disagreed with. Grocery stores could refuse to sell food to people of the 'wrong' religion. Republicans could refuse to sell bread to democrats. Merely selling something to someone is not an endorsement of them or their beliefs.

It is a GOOD thing that our schools cannot refuse admittance based on what a person believes. The only threat is to do what you propose, allow our institutions to serve or not serve based on people's beliefs. Masterpiece Cake merely honors the First Amendment. Phillips is the one who wants to violate those freedoms by deciding he won't serve customers who he disagrees with based on his interpretation of his religion. If the Colorado commissioner had not opined that Phillips was using his religion merely as an excuse to discriminate against gays (the way some Christians used their religion to promote slavery) Phillips would have lost. This case was decided on the narrowest of bases, like the court said.

Religious people should embrace the fact that their faith is protected; that no one can deny them public accommodation based on their beliefs.

[bluethread]

If you want to contribute an argument, please quote a relevant section of the opinion and voice an opinion about that section.[/size]

Sorry, I thought this was a discussion forum, not a legal journal. That said, why did you not admonish jgh7 for not quoting the relevant section regarding the nature of the cake? That was indeed one of the relevant factors, because the defendant was not in the business of making and selling basic flat cakes, but is an artist and was arguing that as a significant factor. You also did not admonish Wootah for making sweeping statements, but rather chose to address them on a philosophical basis without sitation of a relevant section of the decision. So, I see no reason to comply with discriminatory erudite requirements.


Now, to the substance of what you said in response to Wootah, I see nothing wrong with allowing people to refusing service to Republicans in an open market. For example, a sign maker refusing to print up posters featuring aborted fetuses. One can just walk accross the street and get someone else to print them, or print them up themselves. As long as resources are available the market will solve the problem. Your objections stem from a conflation of government activities and private activities. Public schools should not be able to refuse attendance based on the entrants beliefs, that is what is behind the clause, "congress shall make no law". However, requiring private schools to admit entrants without regard of beliefs does not make sense. Finally, you misstate the facts of the case by saying that Phillips "deciding he won't serve customers who he disagrees with based on his interpretation of his religion." He did not refuse service, he retained the right to artistic expression. There is no difference between requiring all cake decorators to make a cake specifically for a homosexual wedding and requiring a photographer to photograph legal pornograghy. The government enforcing such a requirement is clearly congress making a law abridging freedom of speech.

[Wootah]

[Replying to post 11 by Danmark]

I'm ok with that. I don't think capitalism promotes racism and shops would accept money from people that have money.

Too many people want a world of racism and a state to police it. I dont understand you Danmark. Do you know how dangerous the fire called government can be? Don't feed the fire.

[bjs]

If I may, I think that several posts on this thread missed the central issue.

The issue at hand was not simply that of buying a cake, but of ordering a specially made cake with a specific message. In this case, the baker stated he would have sold the couple pre-made cake, but objected to writing a specific message on that cake.

The question is not if a store owner must sell to all people. The question is if a store owner can be compelled to create a message he does not agree with.

To take up the analogy of selling a flag, if a store sold American flags then the store would be required to sell flags to a Nazi who openly said that he planned to burn those flags.

But imagine someone went a tailor and said, “I want you to sew an American flag for me, with the words ‘America Sucks’ written in bright letters, appearing to drip with blood, and lots of obscenities about every American soldier is a baby-killer.� Now, would the tailor be legally required create that message for the customer?

When creating a unique design, should people be legally compelled to create a message that they are opposed to?

[Wootah]

[Replying to post 14 by bjs]

It is ridiculous. Suppose a porn website wants me to make their site. I would say no. And so they can take me to court? And this was only narrowly defeated. /facepalm

[Danmark]

I see nothing wrong with allowing people to refusing service to Republicans in an open market. For example, a sign maker refusing to print up posters featuring aborted fetuses. One can just walk accross the street and get someone else to print them, or print them up themselves.

First, when someone substantially DISAGREES with a Supreme Court Opinion, they should indicate they've actually read it and cite the portion they disagree with. Re: this forum not being a 'legal journal,' we are discussing a Supreme Court opinion. What do you want, quality legal analysis or summary, or some witless opinion based on mere personal opinion?

2d, The law, including the Constitution of the U.S. clearly states that if a business is open to the public, you can't refuse to sell because of the person's thoughts, ideology, race, gender or any other status he/she has a right to. You may not like the Constitution, but that IS the law of the land.

The tired old (and frequently used by racists) argument, that 'they can go somewhere else,' is entirely bogus. Let's suppose you live in a village where you are the only Christian, or the only member of the X party, faith, or race. Everyone else gets to shop wherever, but you have to make at least one extra stop no one else has to, and may have to drive to a different town to buy your daily bread.

Re: the sign painter example, the Supreme Court (and less importantly, I) agree with you. That has been set out in the opinion I cited which you obviously did not read. For example, one of the cases cited in Masterpiece Cake was one involving a William Jack who wanted a baker to inscribe a cake with hateful messages. The baker declined and the Court upheld his right not to write.

In Masterpiece the buyer just wanted a wedding cake, with no script. The baker was willing to sell, but not if the cake was used in a same sex wedding ceremony. THAT is unconstitutional.

Using your Republican example, if a Republican comes into my bakery and wants a cake and blathers on and on about how much he loves Trump, I have to sell him the cake (maybe after I stick it in his face ). But when he wants me to inscribe the cake with "Trump is the greatest and Obama wasn't born in the U.S.," I get to refuse.

That is where the line is. I have to sell my products and services, but I don't have to assist you in promoting your Nazi beliefs by actually writing a specific message that contravenes my religious beliefs or ethics.

[Danmark]

[Replying to post 14 by bjs]

It is ridiculous. Suppose a porn website wants me to make their site. I would say no. And so they can take me to court? And this was only narrowly defeated. /facepalm

In the example you give, I believe you could lawfully refuse. Prob'ly not even a close case. Having to set up a porn site involves you actually viewing and promoting material you find highly offensive and immoral. This is akin to writing an inscription on the cake.

However, if the pornster wants you to sell him bread which he will eat so he can continue his life of sin, you have to sell it. Even if you know he will share that bread with a porn star.

[Danmark]

[Replying to post 11 by Danmark]

I'm ok with that. I don't think capitalism promotes racism and shops would accept money from people that have money.

Too many people want a world of racism and a state to police it. I dont understand you Danmark. Do you know how dangerous the fire called government can be? Don't feed the fire.

I don't understand your "Do you know how dangerous the fire called government can be? Don't feed the fire," or why you think I don't think government can be dangerous. The ENTIRE POINT of this subtopic is that we NEED the courts to curb government excess. Ultimately, without our Constitution and the Judicial system's opinions on what it means, government could do whatever it wanted.

Business and capitalism certainly does not NECESSARILY promote racism, just as socialism does not necessarily prevent it. But I don't seriously think you are ignorant of the fact that many individuals and companies involved in business have consistently discriminated on the basis of race. Do I need to attach photos of businesses who refused to sell because someone was of the 'wrong' race? One of the excuses business people have made for refusing to serve 'blacks' is that they would lose their 'white' trade.

This is why the Civil Rights Act was passed in 1964.
https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964

[bluethread]

I see nothing wrong with allowing people to refusing service to Republicans in an open market. For example, a sign maker refusing to print up posters featuring aborted fetuses. One can just walk accross the street and get someone else to print them, or print them up themselves.

First, when someone substantially DISAGREES with a Supreme Court Opinion, they should indicate they've actually read it and cite the portion they disagree with. Re: this forum not being a 'legal journal,' we are discussing a Supreme Court opinion. What do you want, quality legal analysis or summary, or some witless opinion based on mere personal opinion?

2d, The law, including the Constitution of the U.S. clearly states that if a business is open to the public, you can't refuse to sell because of the person's thoughts, ideology, race, gender or any other status he/she has a right to. You may not like the Constitution, but that IS the law of the land.

It appears that you have no problem with discrimination, because you appear to be requiring me to do things on this thread that you do not require of others. That is fine, I just don't have to accept that arbitrary standard. That said, the Constitution of these United States is indeed the basis of our laws. However, that does not mean that one clause in one amendment should be viewed outside the context of the rest of the Constitution. If there is a conflict between parts of the Constitution, as there is in this case, the courts adjudicate a resolution to that conflict. Also, judicial precedent does silence debate. If that were the case then there would be no 13th amendment, because there was already judicial precedent in favor of lifetime slavery prior to it being passed.

The tired old (and frequently used by racists) argument, that 'they can go somewhere else,' is entirely bogus. Let's suppose you live in a village where you are the only Christian, or the only member of the X party, faith, or race. Everyone else gets to shop wherever, but you have to make at least one extra stop no one else has to, and may have to drive to a different town to buy your daily bread.

Well, the tired old (and frequently used by statists) argument that "no one will provide the service unless compelled", is entirely bogus. Past law, enacted by racists, mandated that some individuals must go somewhere else, even if a good capitalist wished to serve them. Where such laws were not in effect, the market worked things out. In fact, even where such laws were in effect, the market developed systems that made things work. Where ever there is demand, the market, either open or black, will provide the supply.

Re: the sign painter example, the Supreme Court (and less importantly, I) agree with you. That has been set out in the opinion I cited which you obviously did not read. For example, one of the cases cited in Masterpiece Cake was one involving a William Jack who wanted a baker to inscribe a cake with hateful messages. The baker declined and the Court upheld his right not to write.

In Masterpiece the buyer just wanted a wedding cake, with no script. The baker was willing to sell, but not if the cake was used in a same sex wedding ceremony. THAT is unconstitutional.

Sorry, though that was stated (IA) the Supreme Court ruling concluded that (IIC) "The Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside." The other cases referred to were cases that the Commission deemed to be "offensive" speech. This was based on the concept that, "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 (1943)". Therefore, at best, the difference between a "wedding cake" and a cake decorated to express another message was not decided. I would say that, if we are to continue down this path, "offense" must be based on unbias legal "offense" and not subjective personal offense.

Using your Republican example, if a Republican comes into my bakery and wants a cake and blathers on and on about how much he loves Trump, I have to sell him the cake (maybe after I stick it in his face ). But when he wants me to inscribe the cake with "Trump is the greatest and Obama wasn't born in the U.S.," I get to refuse.

As far as I am concerned, you should not have to sell him anything at all, just as he is not required to buy anything from you, nor should he be restrained from encouraging others to refrain from doing business with you. However, I do think you should be tried for assault and battery, if you do choose to stick it in his face.

That is where the line is. I have to sell my products and services, but I don't have to assist you in promoting your Nazi beliefs by actually writing a specific message that contravenes my religious beliefs or ethics.

Though I prefer the line be drawn by market forces, under current law, I would be willing to accept that principle. However, that is not the principle that the other side is willing to accept. They wish to compel artistic speech, if not actual depictions or words. That is the problem with this current trend of regulating the marketplace. Sometimes a cigar is just a cigar. Other times it is a Lowinsky. I do not see how consumer preference and a seller's willingness to supply can be adjudicated in an impartial fashion. Once one side or the other is granted preference, the government is tipping the scales.

[Danmark]

I see nothing wrong with allowing people to refusing service to Republicans in an open market. For example, a sign maker refusing to print up posters featuring aborted fetuses. One can just walk accross the street and get someone else to print them, or print them up themselves.

First, when someone substantially DISAGREES with a Supreme Court Opinion, they should indicate they've actually read it and cite the portion they disagree with. Re: this forum not being a 'legal journal,' we are discussing a Supreme Court opinion. What do you want, quality legal analysis or summary, or some witless opinion based on mere personal opinion?

2d, The law, including the Constitution of the U.S. clearly states that if a business is open to the public, you can't refuse to sell because of the person's thoughts, ideology, race, gender or any other status he/she has a right to. You may not like the Constitution, but that IS the law of the land.

It appears that you have no problem with discrimination, because you appear to be requiring me to do things on this thread that you do not require of others.

This is a false claim for exactly the reason I already explained to you. Perhaps you did not understand. Let me give you another example. If someone says, "I accept everything in the Bible as being the divine word of God, you would not object.

But if someone said, "The Bible makes absurd statements," you would expect the person to cite the so called 'absurd statement.'