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Supreme Court Hears Arguments In Case Pitting First Amendment Rights Against LGBT Rights

church-state-street-signs

Earlier today, the Supreme Court heard oral argument that pits the issue of the rights of gay and lesbian couples and laws regarding bars on discrimination in public accommodations based on certain criteria and the First Amendment rights of business owners:

Justice Anthony M. Kennedy, who almost certainly holds the crucial vote in the case of a Colorado baker who refused to make a wedding cake for a gay couple, sent sharply contradictory messages when it was argued Tuesday at the Supreme Court.

He asked a lawyer for the Trump administration whether the baker, Jack Phillips, could put a sign in his window saying, “We don’t bake cakes for gay weddings.” The lawyer, Noel J. Francisco said yes, so long as the cakes were custom made.

Justice Kennedy looked troubled and said the administration’s position was an affront to the dignity of gay couples.

Later, though, Justice Kennedy said that a state civil rights commission that had ruled against the baker had “neither been tolerant nor respectful of Mr. Phillips’s religious beliefs.”

The case, which pits claims of religious freedom against the fight for gay rights, has attracted extraordinary public attention and about 100 friend-of-the-court briefs.

Mr. Phillips says that he should not be forced to use his talents to convey a message of support for same-sex marriage. The couple, Charlie Craig and David Mullins, say that businesses open to the public should not be allowed to discriminate against gay men and lesbians.

Tuesday’s argument, which lasted almost 90 minutes instead of the usual hour, appeared to divide the justices along the usual lines.

The more liberal justices probed whether all sorts of artisans — tailors, hair stylists, makeup artists, chefs — could refuse to supply goods and services for same-sex weddings. Conservative justices considered whether artists can be required to convey messages with which they profoundly disagree.

Kristen K. Waggoner, a lawyer for Mr. Phillips, said her client was an artist, one who created a sort of sculpture.

Justice Sonia Sotomayor appeared unpersuaded. “When have we ever given protection to a food?” she asked.

Justice Stephen G. Breyer said the questions served a purpose.

“Where is the line?” he asked. “That is what everyone is trying to get at.”

Both Ms. Waggoner and Mr. Francisco said that it would be harder to justify discrimination against interracial couples than gay ones. “Race is particularly unique,” Mr. Francisco said.

That distinction did not seem to sit well with some justices. And David D. Cole, a lawyer for the couple, said it would relegate gay and lesbian couples to second-class citizenship.

But Chief Justice John G. Roberts Jr. said the court’s 2015 decision establishing a constitutional right to same-sex marriage had anticipated good-faith disagreements over gay unions.

“The court went out of its way to talk about the decent and honorable people who have opposing views,” Chief Justice Roberts said, referring to Justice Kennedy’s majority opinion. (The chief justice had dissented.)

The remark was a sign of Justice Kennedy’s central role in the case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111. He is at once the court’s most prominent defender of gay rights and its most committed supporter of free speech.

In his majority opinion in the 2015 decision, Obergefell v. Hodges, he indeed seemed to anticipate clashes like the one from Colorado. Justice Kennedy called for “an open and searching debate” between those who opposed same-sex marriage on religious grounds and those who considered such unions “proper or indeed essential.”

At Tuesday’s argument, he indicated sympathy for the rights of gay men and lesbians. But he also indicated that he believed the civil rights commission had mistreated Mr. Phillips. He quoted from the remarks of one commissioner who called Mr. Phillips’s position despicable, and he seemed troubled by a part of the commission’s ruling that required Mr. Phillips to retrain his staff.

Frederick R. Yarger, a lawyer for the commission, said he disavowed the commissioner’s comment, but Justice Kennedy did not appear satisfied.

“Tolerance is essential in a free society,” Justice Kennedy said. “It seems to me that the state in its position here has neither been tolerant nor respectful of Mr. Phillips’s religious beliefs.”

The practical implications of Justice Kennedy’s concerns were unclear. They left open the possibility, for instance, that the Supreme Court could return the case to the commission for a rehearing before an unbiased panel.

At SCOTUSBlog Amy Howe analyzes the argument in more detail and, as she notes, with four Justices on each side of the Court seemingly sympathetic to one side or the other, attention was focused mainly on one man, Associate Justice Anthony Kennedy:

With Kennedy seemingly holding the key vote, the couple and their supporters at first seemed to have reason to be optimistic. Discussing the impact that a ruling for the baker could have for gays and lesbians, Kennedy told Solicitor General Noel Francisco, who argued on behalf of the United States in support of Masterpiece Cakeshop, that if the baker were to win, he could put up a sign indicating that he would not bake cakes for same-sex couples. That, Kennedy suggested, would be “an affront to the gay community.”

But the tide seemed to shift later in the argument, as Kennedy asked Colorado Solicitor General Frederick Yarger, representing the state, about a statement by a member of the Colorado Civil Rights Commission who noted that religious beliefs had in the past been used to justify other forms of discrimination, like slavery and the Holocaust. It is, the commission member contended, “one of the most despicable pieces of rhetoric that people can use their religion to hurt others.” If we thought that at least this member of the commission had based his decision on hostility to religion, Kennedy asked Yarger, could the judgment against Masterpiece stand?

Kennedy returned to this idea again a few minutes later, telling Yarger that “tolerance is essential in a free society.” But Colorado, Kennedy posited, hasn’t been very tolerant of Phillips’ religious beliefs in this case. And, following up on Gorsuch’s suggestion that the training required of Phillips would amount to compelled speech, Kennedy commented (more than a little derisively) that Phillips would “have to teach that state law supersedes our religious beliefs.”

Keeping in mind my previous caveats regarding looking to oral argument to try to guess how a particular case might turn out, it’s obvious here that this is one of those cases where the conservative and liberal wings of the Court are entirely predictable in how they are likely to view the case. On the conservative side, Justices such as Chief Justice Roberts, along with Justices Alito, Thomas, and Gorsuch, clearly seem to be on the side of the bakers appealing the decision of the Colorado Civil Rights Commission. On the liberal side, Justices Ginsburg, Breyer, Sotomayor, and Kagan all seemed skeptical of either the argument that baking a cake for a wedding reception constituted speech for purposes of the First Amendment or that the free speech and religious liberty objections raised by the bakers constituted a sufficient bar to the State of Colorado’s arguably compelling interest in enforcing generally applicable laws barring discrimination by businesses that advertise themselves as being open to the general public. In Colorado’s case, that includes enforcing the laws that bar discrimination based on a number of characteristics including race, religion, ethnicity, gender, and sexual orientation. With these two sides of the Court seeming pre-determined in the manner in which they would rule, the question of which way Justice Kennedy is inclined to go will prove crucial to the outcome of this case.

Kennedy is in a unique position in this case in that it seemingly pits two of the most notable things about his nearly thirty-year tenure on the Court against each other. On the one hand, Kennedy has been a strong defender of freedom of speech and skeptical of efforts by the government to either punish those holding unpopular opinions or compel them to engage in speech that they do not support. On the other hand, Kennedy has been at the forefront of the Court’s decisions that have expanded protections and rights for LGBT citizens. This started in Romer v. Evans, a case in which the Court struck down a Colorado referendum that purported to bar local jurisdictions from passing municipal laws barring discrimination against its LGBT citizens. It continued in Lawrence v. Texas, a 2003 case which overturned the Court’s previous ruling in Bowers v. Hardwick and found state and local laws barring consensual sodomy to be unconstitutional. When the legal battle for marriage equality reached its peak earlier this decade, Kennedy was once again the key vote in advancing LGBT rights. In United States v. Windsor, Kennedy wrote the majority opinion in the case in which the Court found the Defense of Marriage Act to be unconstitutional. Finally, of course, it was just over two years ago that Kennedy penned the majority opinion in Obergefell v. Hodges, the case that struck down laws against same-sex marriage in the states where they remained standing. In each of these opinions, Justice Kennedy relied heavily on the argument that laws that bar equal rights to LGBT individuals not only violate the equal protection clause but are also objectionable under the 14th Amendment due to the fact that they deny those citizens the dignity and equality that the Constitution and its Amendments were clearly intended to provide to all Americans. Given this history on Kennedy’s part, how these two issues — freedom of speech v. LGBT rights — balance in his mind are likely to go a long way toward determining which way the Court ends up deciding this case.

One possible clue in that regard comes from a 2011 case called Christian Legal Society v. MartinezIn that case, the Court upheld a policy by the University of California Hastings College of Law that barred officially sanctioned student organizations from discriminating in membership and other policies based on a prospective member’s status or beliefs. Kennedy joined a majority in that case in an opinion written by Justice Ginsburg and filed his own concurring opinion. The student organization had argued that its Christian beliefs were sufficient justification for barring prospective members who engaged in “unrepentant homosexual conduct” or otherwise supported ideas such as same-sex marriage or LGBT rights. In his concurrence, Kennedy specifically argued that the interest in barring discrimination outweighed the First Amendment rights of the student organization. If Kennedy views the arguments made by the bakers the same way he did the student organization in Martinez, he seems more likely to side with the Court’s liberal wing and in favor of the State of Colorado. If he finds that the state’s efforts to compel the baker to make a cake that goes against their religious beliefs and compelling them to send a message they do not endorse, then he could end up siding with the conservatives and ruling for the bakers.

As I noted when the Court accepted this case for argument, my tendency is to argue that the argument the bakers are making here is not consistent with existing law. While I am a strong supporter of freedom of speech rights, the idea that baking a cake constitutes speech for First Amendment seems to be without much merit. In some cases, such as cases involving wedding photographers, officiants, or others, the argument that there is a First Amendment rather than a purely commerical aspect to the work being solicited seems to have merit. In others, such as a florist asked to provide flowers for a wedding or a baker asked to bake a wedding cake and have it delivered to a specific venue at a certain time, the argument that speech is being compelled seems rather week. Additionally, even if it is the case that there is a freedom of speech right being impacted by the law, there is recent Supreme Court precedent that suggests that this does not mean the law in question has been applied in an unconstitutional manner. Just this year, in Expressions Hair Design v. Schneiderman the Supreme Court held that a law “does not violate the First Amendment because it has an effect on speech that is “only incidental to its primary effect on conduct.”” In this case, that would mean that even if there is a valid freedom of speech claim being made by the baker, it does not trump a generally applicable law barring discrimination that clearly has only an incidental mpact on those claims. The ruling against the Plaintiffs in Schneiderman was unanimous, although Justices Breyer, Sotomayor, and Alito wrote or signed onto concurring opinions distinguishing certain issues in the case.

Similarly, the religious liberty argument advanced by the bakers is also seemingly without merit based on existing Supreme Court precedent.  The question is whether the First Amendment claims of the bakers outweigh the governmental interest at issue. In this case, Colorado’s interest is one that the Court has generally found to be a compelling one,  namely the interest in protecting minority groups from invidious discrimination in public accommodations. In many ways, then, the case is similar to the issues raised by Employment Division v. Smitha case that the Court decided in 1990 in which it rejected the argument of a Native American who tested positive for the use of peyote that the fact that using the drug was part of a religious ceremony should exempt him from a state policy that barred unemployment insurance to someone who was terminated due to an illegal act such as drug use. The Court’s majority opinion in that case, which was written by Justice Scalia and joined by conservatives such as William Rehnquist and Anthony Kennedy, essentially held that a claim of religious liberty was not sufficient to provide someone with an exemption from a generally applicable law that was not directed at a specific religious faith or at religious practice in general. In other words, a claim of religious liberty does not trump a generally applicable law in which the government has a compelling law and where the law in question is narrowly tailored to address that interest.

This is likely to be one of those cases where it will be some time before we get an opinion from the Court. Regardless of which way Kennedy decides, the question that Justices may end up debating back and forth for months is what kind of precedent the Court wishes to estbliah. If Kennedy sides with the liberals, for example, we could end up with a narrowly tailored opinion that rejects the First Amendment claims in this case but leaves open the possibility that there could be some cases where freedom of speech or religious liberty could trump the interest of an individual state in seeing that its generally applicable laws are enforced equally. If he sides with conservatives, the question will be just how broadly the court wishes to extend the protection of freedom of speech and religious liberty and whether or not it wants to put its long-standing position that laws against discrimination constitute such a compelling government interest that there are few, if any, exceptions to the enforcement of those laws. Additionally, there will no doubt be a number of concurring and dissenting opinions that will take time for the Justices involved to draft. Potentially, we could get a decision sometime in the late winter or early spring of 2018 or, we may not get a ruling until June when the Court typically hands down opinions in its most difficult and most controversial cases. In the meantime, we’ll all just have to wait and see.

Here’s the transcript of today’s argument:

Masterpiece Cakeshop Et Al v. Colorado Civil Rights Commission Et Al Transcript by Doug Mataconis on Scribd

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Kylopod says:

    The question I have is: would the defenders of these laws want to allow a baker to refuse to bake a cake to an interracial couple, citing religious objections to race-mixing? I ask this not to be inflammatory, but simply because I’m curious how far they’d truly be willing to take their reasoning.

    I’ve never seen conservatives adequately address this sort of argument when applied to SSM-related issues; typically they just swat it away, like when Ted Cruz was asked, in light of his defense of Kim Davis, whether he’d support a clerk who refused to issue a marriage license to an interracial couple. He simply said, “There’s no religious backing for that.” But that’s just his opinion, and it’s a fact that there are people out there who believe race-mixing is against the Bible. Agree or disagree with that, whichever religious beliefs have more “backing” (which of course is in the eye of the beholder) is irrelevant to whether they deserve constitutional protection or not.

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  2. CSK says:

    After a quick Google search, I can’t find it, but fairly recently I viewed a news video in which Jack Phillips, the baker at the center of this matter, referred to a wedding cake as a Christian symbol. I think he might have used the phrase “sacred Christian symbol,” but I can’t be sure.

    Anyway, this is what I want to tell Jack: Jews have wedding cakes. Hindus have wedding cakes. Atheists have wedding cakes. (I’ll speak for the three with which I am familiar.) Christians do not have a monopoly on wedding cakes.

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  3. Modulo Myself says:

    My gut says that Kennedy goes with the bakers, and in one year it’s going to be it’s part of religious freedom (arguably) to not serve a gay couple meatloaf at a restaurant because the owner and cook are Christians and producing Christian meatloaf.

    The flip-side is that the religious sentiment against gay people is indefensible. Christians who supposedly tolerate gays but don’t think they should be elevated to equality subscribe to a bizarre numbskull deity who in creating gay people made them capable of love and desire exactly like straight people and yet somehow doesn’t think they have the same status in his or her hierarchy.

    Of course it’s bs. Christians think gays are scum and perverts. Thirty years ago they were happy to have the Moral Majority believe that AIDs would wipe gay people out. Now they’re going to elect Roy Moore to patrol the malls to keep 14 year olds safe from trans bathroom at Target.

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  4. Kylopod says:

    @Modulo Myself:

    Christians think gays are scum and perverts.

    To be fair, there are many Christians who don’t hold that belief.

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  5. Gustopher says:

    With Kennedy seemingly holding the key vote, the couple and their supporters at first seemed to have reason to be optimistic. Discussing the impact that a ruling for the baker could have for gays and lesbians, Kennedy told Solicitor General Noel Francisco, who argued on behalf of the United States in support of Masterpiece Cakeshop, that if the baker were to win, he could put up a sign indicating that he would not bake cakes for same-sex couples. That, Kennedy suggested, would be “an affront to the gay community.”

    I would much rather the bigot bakers have to let the rest of the world know about their bigotry, if they want an exception.

    I don’t want to accidentally order a graduation cake from them.

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  6. CSK says:

    @Kylopod:

    That is true. Most of the non-fundamentalist Protestant denominations are welcoming of LGBT people. Eugene Robinson, the episcopal bishop of New Hampshire, was openly gay. I recently attended a Lutheran funeral presided over by an openly gay male pastor who had recently married his longtime male partner. Anecdotal evidence, to be sure, but indicative–and consonant with my experience.

    Things are a bit different, I suppose, in the northeast.

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  7. Mikey says:

    Quoting John Fugelsang: “My favorite Bible story is the one where Jesus drives all the gay cakes out of the temple.”

    As the ACLU tweeted today, a public business is free to decide what to sell, but not to whom they will sell it. Unfortunately, that principle of equality has been put at risk by these typically hypocritical evangelicals, who raise much stink over same-sex wedding cakes and cartoonish drawings on paper coffee cups but have nothing against middle-aged men who lust after eighth-grade girls.

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  8. Modulo Myself says:

    @Kylopod:

    Sure, but there’s a lot of mainline Christians who once thought otherwise. It’s great that they changed. But gay people being ‘normal’ is really new, and happened fast. Barry Diller, for example, is still a very rich straight man married to Diane von Furstenberg. When I was kid in the 80s, being gay was not what you wanted to be. It was pretty clear. At the same time, for prejudice was so easy to get rid of that it’s indefensibility is so obvious. Whereas older generations still believe that there’s maybe you know defensibility to not wanting to bake a cake to for two men getting married. They sympathize with some fundie idiot. Nobody who is under 45 and not popping weird pills designed to increase your Alpha-ness believes these people are worth anything, religious beliefs included.

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  9. DrDaveT says:

    Conservative justices considered whether artists can be required to convey messages with which they profoundly disagree.

    Um, artists?

    1. It’s a cake. It’s a commodity, not a work of art.

    2. Unless the cake says “Gay marriage is OK with God!” in piped icing, there is no “message’. It’s a cake. A cake is not a message — it’s a baked dessert.

    3. As others have noted, there is zero difference between “My religion teaches that gay marriage is wrong” and “My religion teaches that blacks shouldn’t marry whites” — unless the Court wishes to get into the business of (a) deciding which religions are sufficiently mainstream that their belief systems get protection, and (b) distinguishing orthodox from heterodox positions in every religion so protected. Good luck with that.

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  10. Kylopod says:

    @Modulo Myself:

    But gay people being ‘normal’ is really new, and happened fast.

    Absolutely. But it wasn’t just something happening among “Christians,” but among the whole of society. I’m always struck whenever conservatives talk about how Hollywood has helped normalize homosexuality. In a sense they are correct, but that’s only if we’re talking about very recent history. In fact, a great deal of the cultural myths about LGBT people were perpetuated by the mostly liberal entertainment industry for decades.

    In All in the Family in the 1970s, there’s a weird moment in which Mike tells Gloria not to smother the baby, because that could lead it to become homosexual. Mike was supposed to be the liberal on the show, and most of the time when the subject of homosexuality comes up, he’s the one defending gay people against Archie’s intolerance. But a lot of liberals at the time still considered homosexuality to be a mental disorder caused by bad parenting. That was a “liberal” point of view, compared to, say, the idea that gays should be imprisoned or even executed.

    Not too long ago I was watching one of Eddie Murphy’s standup films from the ’80s, and I was shocked by his level of homophobia. It wasn’t the standard lisping minstrelsy but a savage, brutal, and deeply unfunny attack that made gay men sound like monsters. (Murphy apologized for these routines several years later, claiming he was young and ignorant.) Portrayals of transgender people were even worse. In the 1990 movie Soapdish (spoilers ahead), the main villain is a psycho-b!tch played by the sexy Cathy Moriarty, and at the end it’s revealed that she’s actually a transsexual who underwent a sex-change operation. Then as the credits roll, we see that “she” has gone back to being a man–as if to suggest her transition was a form of fraud. I know it was just a lightweight comedy, but it did reflect the way a lot of people saw these things at the time.

    In a way it reminds me of the shifting attitudes toward marijuana, which when I was a kid was always being lumped together with coke and heroin in the anti-drug propaganda we were constantly being fed. There was just so much nonsense coming out of mainstream culture, and the only difference with conservatives is that they just did it more.

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  11. george says:

    @Kylopod:

    Most Canadian Christians have no problem with same sex marriage, and quite a few have gay ministers.

    There’s a very small group that have a problem with same sex marriage, so small that the last Conservative prime minister (Harper) basically put a muzzle on them.

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  12. grumpy realist says:

    My argument is the following: open the door to allowing First Amendment protection to this form of “artistic expression” and the next thing we’re going to see is cooks refusing to serve gay couples because of how the cooks arranged the food on the plate–artistically. Or the taxicab drivers because of the “artistic expression” in how they drive.

    “Artistic expression” opens a loophole you could drive a battleship through.

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  13. Kylopod says:

    @grumpy realist:

    “Artistic expression” opens a loophole you could drive a battleship through.

    You’re raising an important point that I think requires a little more elaboration. There is an established precedent that the First Amendment protects not only verbal communication, but also “symbolic speech.” This was established in several SCOTUS cases, perhaps most famously Texas v. Johnson which held that burning an American flag constituted protected speech. Ironically, after that decision it was cultural conservatives who were the most dismissive of the concept of symbolic speech.

    From my understanding, symbolic speech would apply to actual works of art, such as a painting or a sculpture. Otherwise it would be perfectly constitutional to ban artwork that offends people, such as Piss Christ.

    The problem is that the act of communicating something–whether through words, pictures, or any other method–can be objectionable for reasons that are independent of the content of what’s being communicated. For example, if you give a political speech through loudspeakers at 3AM, you can be punished for disturbing the peace, and that would not necessarily be a violation of your right to free speech (at least not according to current jurisprudence).

    Conservatives argued that burning a flag falls in the latter category–an objectionable action that is being banned regardless of what the flag burner is trying to say. For a number of reasons, this argument was not convincing.

    In the case of the bakers, the act of refusing to bake a cake for a gay couple isn’t just a way of expressing one’s views, it’s also an action that has clear discriminatory consequences for the couple who requested the cake. So I think it’s closer to the example of disturbing the peace than flag burning is, in that your right to express yourself doesn’t apply if the act of expression infringes on someone else’s rights.

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  14. KM says:

    @DrDaveT :

    unless the Court wishes to get into the business of (a) deciding which religions are sufficiently mainstream that their belief systems get protection, and (b) distinguishing orthodox from heterodox positions in every religion so protected. Good luck with that.

    This is EXACTLY what’s going to happen next. Since many Christian denominations are solely becoming more accepting of SSM and gays in general, we’re bound to see conflicts between who’s interpretation is right. At some point, it’s going to have to be ruled on in a court of law that one denomination is essentially right and others aren’t.

    My money’s on a liberal Christian employee doing a service for a gay couple only to be fired by their boss of the fundie persuasion. The argument will be the faith-based nonsense we see here: since it acceptable to the employee’s beliefs and an expression of their artistic speech, the employer violated their religious and 1st Amend rights. It’s possible we might start seeing denials to Catholics, JWs, Mormons and others fundies don’t consider “true Christians” but I think the number of people willing to do that is less then those who’s strike against LBGT.

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  15. Daryl's other brother Darryl says:

    Justice Kennedy is about to effectively end the era of civil rights.

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  16. Daryl's other brother Darryl says:

    @Daryl’s other brother Darryl:
    …and with Republicans packing the courts with far-right zealots at an unprecedented rate…it’ll be decades before we see any progress back towards equal rights.

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  17. CET says:

    @Kylopod:

    The question I have is: would the defenders of these laws want to allow a baker to refuse to bake a cake to an interracial couple, citing religious objections to race-mixing? I ask this not to be inflammatory, but simply because I’m curious how far they’d truly be willing to take their reasoning.

    I think that’s an excellent way to look at this. I would fall more or less where it sounds like Doug does on this issue, for pretty much that reason.

    That kind of analogy is also useful for elaborating the other side of the line though – which services should an avowed Christian be required to perform for a Satanist wedding? (I don’t know that the RCoS does ‘weddings’ per se, but I’m sure there’s some gathering that’s more or less equivalent. You could substitute in Asatru or something similar if the inaccuracy bothers you.)

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  18. CET says:

    @Daryl’s other brother Darryl:

    Justice Kennedy is about to effectively end the era of civil rights.

    Hyperbole much?

    Look, there’s clearly a line somewhere here (unless we’re going to start forcing priests to preside over a satanist ‘Black Mass’ in the name of preventing religious discrimination, which seems silly).

    We can argue a little about where exactly the line is, but this is ultimately an issue that’s going to be settled culturally rather than legally for a simple reason: You can’t really compel someone to do a good job. If you get a custom cake, or catering, or live music, or whatever else from someone who hates you for hiring them, they’re probably going to be a crap job. I’d bet the number of people who *want* part of their wedding to suck is pretty small, and this problem will basically sort itself out.

    If the court ends up extending this to routine services (bars, haircuts, etc), I’ll take that back, but only a little – even then, why go someplace where the waitstaff is going to spit in your food?

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  19. gVOR08 says:

    @KM: I have no doubt some inheritor of the Scalia mantle will be able to channel that the original intent of the writers of the constitution was to enshrine Evangelical Christianity.

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  20. MarkedMan says:

    There is another and very real life corollary: I believe some states have passed laws stating that pharmacists don’t have to dispense prescriptions they have a religious problem with. An example would be birth control for an unmarried woman. Or what about HIV medication for a homosexual? A lot of people say “but cakes are different, they can get a cake at lots of other places.” But you set a precedent. And many, many small towns do not have more than one pharmacy.

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  21. Daryl's other brother Darryl says:

    @CET:

    Hyperbole much?

    No. Not at all.
    This libertarian wet-dream that bigotry will largely take care of itself, thru cultural and societal pressures, is pure bunk.
    If Kennedy sides with the so-called cake-sculpturer then that ruling will be twisted up and used to justify discrimination of all types…just exactly as the Hobby-Lobby ruling over religious freedom and contraception has been bastardized and used to justify discrimination against LGBT’s.
    What Ginsburg said, when she dissented from the Hobby Lobby decision, applies equally to this case:

    “The court, I fear, has ventured into a minefield.”

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  22. James Pearce says:

    @CET:

    this problem will basically sort itself out

    This. I’ve long been pro SSM marriage and very skeptical of just how religious these claims are; seems to me that it’s more of a political belief and a legal strategy to continue discriminating against gay people by other means, but with that said…..

    The anti-gay bakery is the soon-to-be-out-competed-and-closed bakery.

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  23. al-Ameda says:

    @Gustopher:

    I would much rather the bigot bakers have to let the rest of the world know about their bigotry, if they want an exception.

    I tend to agree with you on this.
    Trump’s ‘election’ has brought a lot of retrograde and reactionary thinking out into the open, and frankly, I’d rather know who and where these people are than not know.

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  24. Daryl's other brother Darryl says:

    @James Pearce:

    The anti-gay bakery is the soon-to-be-out-competed-and-closed bakery.

    Yeah sure…the lunch counters that wouldn’t allow African-Americans were near bankrupt before Rosa Parks.
    The election of Vagina-Neck proves that bigotry is alive a thriving in these United States.
    Just look at the regular cast of bigots we have posting here…TMo1, Jack, JKB, Guarneri, Bunge, J-E-N-O-S, John321, and of course the biggest of them all…Eric Florack.
    Don’t fool yourself. Bigotry is rampant, it is not going away, and this decision will just ratify and encourage it.

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  25. CET says:

    @Daryl’s other brother Darryl:

    No. Not at all.

    Ok…if drawing the line here is the slippery slope to gay/straight segregation in which LGBT people are forced into ghettos, made to sit in segregated public transit, etc, etc. that begs the question:

    Where should the line be drawn instead? What balance can be reached that will keep us from the hellscape you are so sure is upon us? Or are you asserting the maximalist position that any refusal of service on religious grounds is unprotected (the Priest/Satanic Wedding example)?*

    For the record, I think this case is just a little over the line – probably you want to limit the first amendment defense to somewhere in the region of a performer rather than a baker. I just think it’s silly to argue that a musician could refuse to play at a gay wedding and it would be fine, while a baker refusing the bake a cake for a gay wedding is the End of Days.

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  26. Daryl's other brother Darryl says:

    @CET:

    What balance can be reached

    The CRA of 1964; Public Accomodation…expanded to cover sexual orientation, as the CO statute does, covers it:

    (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

    We, as a nation, are falling victim to this right-wing victimization fantasy that white christian evangelicals are being discriminated against.
    They are not.
    The laws exist. Kennedy seems to want to subvert them.

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  27. James Pearce says:

    @Daryl’s other brother Darryl:

    the lunch counters that wouldn’t allow African-Americans were near bankrupt before Rosa Parks.

    Rosa Parks fought the bus system…

    Bigotry is rampant, it is not going away, and this decision will just ratify and encourage it.

    Bigotry is rampant. You’re right, it’s not going away. This decision gives anti-gay scoundrels a refuge.

    So what?

    “I want nothing to do with gay weddings” is a welcome change of heart from evangelicals who previously were “I want to stop gay weddings from occurring.” Give them their refuge. We have ours.

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  28. KM says:

    @Daryl’s other brother Darryl:

    We, as a nation, are falling victim to this right-wing victimization fantasy that white christian evangelicals are being discriminated against.
    They are not.

    I gotta say, if this passes, I’m looking forward to using this against conservatives. See, I’m a deeply religious person who thinks anyone who voted for Trump voted for the Anti-Christ. It would be a sin to hire or serve such false Christians and I greatly look forward to showing my dedication to the Lord by tossing this lukewarm fakes out on their asses. No Evangelicals, Baptists, Dominionist or Prosperity Gospel followers allowed.

    Religious freedom, baby!! Y’all are about to learn what discrimination really looks like if you let “deeply held beliefs” become a viable standard.

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  29. KM says:

    @CET:

    Where should the line be drawn instead?

    At verified facts. The thing with “deeply held beliefs” is we can’t prove them. I’m not talking about the veracity of the belief itself but the fact that you truly believe in them. What’s to stop someone from making something up on the spot to justify discrimination? If an atheist suddenly claimed a belief they never exhibited before, can you challenge them on it? What if they suddenly change their mind again after it’s all over, can you sue and on what grounds? Is the court just supposed to trust you or can they demand evidence of belief?

    This is dangerous territory because it can’t be held up to any kind of scrutiny or standardization. This is going to be abused heavily by immoral people in the name of “religious freedom”. How can you defend against the intangible? How do you separate the genuine from the fake?

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  30. CET says:

    @Daryl’s other brother Darryl:

    The CRA of 1964; Public Accomodation…expanded to cover sexual orientation, as the CO statute does, covers it:

    Sure, but if anything, I’d say that supports my point that losing this case isn’t going to give everyone carte blanche to discriminate in their businesses. It’s pretty clearly spelled out that a ‘public accomodation’ includes things like restaurants, hotels, etc.

    IANAL (nor am I familiar with the case law on this topic), but it isn’t obvious that a caterer or a musician for hire counts as a ‘public accomodation.’ That seems like it would insulate the overall law from a loss in this case.

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  31. CET says:

    @KM:

    At verified facts. The thing with “deeply held beliefs” is we can’t prove them. I’m not talking about the veracity of the belief itself but the fact that you truly believe in them.

    I’m not sure what that would look like in practice…but I’m getting the sense that the political angle of this (we all dislike fundie nutjobs, most of us probably have several LGBT friends or are LGBT ourselves) is a sticking point.

    I propose an analogy: Suppose a couple wanted a ‘Christian Identity’ wedding, which service providers could decline to hire themselves to the young Nazi couple? The venue would probably be stuck with them (unless it’s a private club or church), but if they want to hire a Jewish guy to cater the reception, can he decline or is that religious discrimination? (If anything, he seems to have a weaker case than Philips, since there’s not a specific prohibition against Nazi weddings in Judaism)

    You can play with the details, but the point of the exercise is to try and separate your opinion from your personal feelings about the parties involved by coming up with an analogous situation where those feelings are reversed, and asking yourself if you would come to the same conclusion.

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  32. Daryl's other brother Darryl says:

    @CET:

    I’d say that supports my point that losing this case isn’t going to give everyone carte blanche to discriminate in their businesses

    Why not? If I can use religious freedoms to discriminate against one group I can use it to discriminate against all groups. Hobby Lobby was about contraception…but it’s already been used to discriminate against LGBT’s. Un-intended consequences…

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  33. Daryl's other brother Darryl says:

    @KM:
    @CET:

    The thing with “deeply held beliefs” is we can’t prove them.

    The SCOTUS has a long-held policy of not questioning “deeply held beliefs”…which I think is the correct policy.
    But if your deeply held beliefs prevent you from following the laws regarding public accommodation then you need to find other work that doesn’t rely on public accommodation. Or, as in this case, find a Justice like Kennedy who is going to buy into the “white christian evangelical victimization” myth.

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  34. KM says:

    @Daryl’s other brother Darryl :

    The SCOTUS has a long-held policy of not questioning “deeply held beliefs”…which I think is the correct policy.

    That policy is going to have to go bye-bye if they side with the baker. It’s only a matter of time before a case gets dropped in front of them that will push the acceptability and credibility of “deeply held beliefs”. We live in a post-truth world and now what someone believes and actual fact can be light years apart. What happens when two “deeply held beliefs” conflict? With SSM becoming more accepted by certain denominations, does an employer have the right to force an employee’s “artistic” work for gay weddings or vice versa? What if my “deeply held belief” is it’s a sin to not treat all of God’s Children equally – did my anti-SSM boss violate my religious rights by demanding I not serve gays? I give it less then a month before something gets filed.

    Much like with Hobby Lobby and all the cases that came in on its coattails, religious nuts gonna keep pushing till they get *exactly* what they want. SCOTUS can tap dance all they want but if they open Pandora’s Box, they can’t keep ignoring that “deeply held beliefs” have no way to be verified in court. What idiots like the baker want want is primacy of religion, period. These cases will keep coming until they get SCOTUS to state religion takes precedence each time.

    Religious freedom only works when we don’t have a government asking if your beliefs have merit or worth in legal terms. Homophobes don’t understand that and will end up regretting it when they, by necessity, force the government to make pronouncements on their faith.

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  35. Daryl's other brother Darryl says:

    @KM:

    …they can’t keep ignoring that “deeply held beliefs” have no way to be verified in court. What idiots like the baker want want is primacy of religion, period…

    I don’t think those two things are in conflict.
    I accept anyone’s right to their deeply held belief, whatever that is. But your right to hold that belief does not trump my right to be treated equally. Imagine for a moment that in 1964 when the CRA passed in 1964 that there had been a religious exemption. It would have rendered the CRA toothless because every white business owner would have claimed one. The same thing will happen if the cake artist succeeds; a severe blow to equality in our culture. If the cake artist loses…meh…he has to make a cake. I’m betting he’s made cakes for all manners of sinners before and will in the future.

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  36. DrDaveT says:

    @KM:

    At some point, it’s going to have to be ruled on in a court of law that one denomination is essentially right and others aren’t.

    I’m hoping that the Court is intelligent enough to see that on the horizon, and to realize that it would be far better to establish NOW that this is a question of public policy where deference to personal prejudice (be it religiously-motivated or not) must yield to overarching principles of equity and justice. Just like it did with anti-miscegenation laws and plural marriage and a number of other deeply held religious beliefs.

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  37. Tyrell says:

    I thought a business owner had some say so in how they run their own business. When I call a heat/a.c. contractor, some will tell me they are too busy, call someone else. Or they don’t do that particular type of repair.

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  38. CET says:

    @Daryl’s other brother Darryl:
    Err…the point I’m trying to make is that not every business transaction is a ‘public accommodation.’ Some (lodging, eat-in restaurants, etc) clearly are, some (hiring a pastor for a wedding) clearly are not. This case will help define where that line is, but it won’t obliterate it. If the court sides with the baker, it doesn’t mean that restaurants can stop serving gays (nevermind the question of how they’d know). If the court sides with the couple, it doesn’t mean catholic priests will be forced to marry Muslims.

    I think there’s much less at stake here than most people want there to be.

    And also, you haven’t really addressed any of my questions.

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  39. Kylopod says:

    @Daryl’s other brother Darryl:

    I accept anyone’s right to their deeply held belief, whatever that is. But your right to hold that belief does not trump my right to be treated equally.

    One of the things I find insidious about conservative cries of “religious freedom” is that very often the same people hold a highly restrictive view of the Free Exercise clause when it is applied to other people’s religions. For example, Employment Division v. Smith (1990) concerned two men who had been denied unemployment benefits after being fired for the use of peyote in a Native American ritual. The majority opinion, written by Scalia and joined by Kennedy, held that religious people could not be exempted from a law with a general, secular purpose.

    Here, the Court conservatives chose to green-light restrictions on an essentially victimless crime that was part of a religious ritual. (As the dissent noted, during Prohibition the federal government did in fact make an exemption for the sacramental use of alcohol–a far more harmful substance than peyote.) But when it comes to religious belief with a clear discriminatory effect, not just Scalia but maybe also Kennedy step up as the supposed champions of religious freedom.

    What we need to realize is that when conservatives talk about “religious freedom,” they are almost always talking about the rights of the majority religion, and furthermore, it almost always concerns an attempt to impose their beliefs on others.

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  40. Jim Brown 32 says:

    @Daryl’s other brother Darryl: There it is…. White Liberal equivocating the Black Holocaust and struggle for human rights with the right to compel bakers to make custom wedding cakes and get marriage licenses from the State. White People problems…

    The white liberal will run all the way to the Supreme Court for suffering the indignity of an a$$h@le not selling a gay couple a cake they could’ve bought somewhere else….but I can remember them challenging any of the Courts ruling that underpinned the qualified immunity policies enjoy that allows them to kill people with no consequences.

    This is why Republicans run most of the state legislatures, both houses of Congress, and the Presidency. Liberals…forever tilting at windmills. Frankly I’m resigned to Trump being reelected. This party won’t have a real vision and mission until the Boomers are aged out.

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  41. DrDaveT says:

    @Jim Brown 32:

    .but I can [sic] remember them challenging any of the Courts ruling that underpinned the qualified immunity policies enjoy that allows them to kill people with no consequences.

    Then you haven’t been paying attention. You won’t find any White Liberals around here who don’t agree with your priorities there. But it’s not a zero-sum game — you can be for justice and against discrimination in all cases; there’s no finite pool of right to be distributed.

    […] a cake they could’ve bought somewhere else […]

    I’m guessing you don’t feel the same way about the sandwich you could have bought somewhere else, or the drinking fountain you could have used somewhere else, right?

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  42. Jim Brown 32 says:

    @DrDaveT: There are many establishments today that Blacks aren’t (officially) welcome…They either don’t stay open long or scrape by. That’s the way it should be. Screw em. I’ve accepted that many white people at best, don’t want to be around blacks…at worst, believe us to be inferior. Screw them too. The important part of the Civil Rights Movement is the right to make a living in the economy and buy and sell houses, property, and othe appreciable assets. Lunch counters, water fountains, etc those were side projects for the kids to take ownership is the movement.

    Yes yes…the old “injustice anywhere…” slogan. Probably the most disorganizing principal the Party faithful have ever internalized (and the most quoted out of context) Any army has limited resources and therefore must prioritize. If EVERYTHING is a priority NOTHING is a priority. Any army that has no priorities in INCAPABLE of a long strategic fight which requires battlefields to be selected, retreats to be made, ambushed to be set, forces to be moved and prepositioned.

    The Democrats use civil war military tactics against an opponent that is waging guerilla warfare. Excuse me if I’m not enamored by a team that cowers from the big fight but rushes headlong into petty skirmishes with Peasants. That haircut of Black support Clinton took…it’ll grow if this party can’t find a direction and message that appeals to real people

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  43. Monala says:

    @Daryl’s other brother Darryl: yup. A group of reporters made several undercover calls to the Oregon bakery that refused to bake cakes for SS weddings. Posing as potential customers, the reporters found they had no problem making cakes for a divorce party and a pagan solstice celebration, among others.

    http://www.wweek.com/uncategorized/2013/05/29/the-cake-wars/

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  44. Monala says:

    @Tyrell: and a bakery can say they don’t make donuts, only cakes. But if they do make wedding cakes, they can’t deny them to a specific group of people.

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  45. KM says:

    @Kylopod :

    What we need to realize is that when conservatives talk about “religious freedom,” they are almost always talking about the rights of the majority religion, and furthermore, it almost always concerns an attempt to impose their beliefs on others.

    Precisely. That’s why I brought up the denomination dispute. Evangelicals are slowly but surely trying to define Christianity in America as *their* version of the faith – that’s why this case even exists despite the fact that quite a few denominations do not consider SSM to be a sin. They are trying to get their objections coded into law when they do no speak for everyone.

    Think about it this way: Fundies traditionally don’t like Catholics due allied with them due to abortion. What happens when we see some hardcore Baptist start refusing service for Catholics because they truly believe they are the Whore of Babylon? Who’s religious rights get protected then? Does anybody think Kennedy might rule differently in that case? What happens if the gays are Catholic – how does he jump then? There’s too many variables within Christianity for this to not turn into a intercene fight the government will have to take sides on.

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  46. Kylopod says:

    @KM:

    Evangelicals are slowly but surely trying to define Christianity in America as *their* version of the faith

    I almost the get the impression that American Protestantism tends to be so light on ritual that they have trouble comprehending the concept of religious liberty as concerning anything but these cultural hot-button issues. As a lifelong kashrut-observant Jew, I have to shake my head every time I hear the tiresome question “Would you force a Jewish merchant to sell pork?” Besides the category error here (the bakers, florists, etc. aren’t being forced to sell a particular product, just to sell what they do have to particular customers), kashrut is exactly the sort of religious practice that these other examples aren’t–a personal choice that doesn’t affect anyone else. That’s why it’s important to understand how deeply insulting it is to see this compared with the “right” to discriminate against gay people. It suggests their entire understanding of religious identity is defined in negative, hostile terms, where it’s a zero-sum game between themselves and some other group. They don’t have a clue what actual religious discrimination looks like and can only process the concept when it involves discrimination against someone else.

    Think about it this way: Fundies traditionally don’t like Catholics due allied with them due to abortion.

    I think of the Religious Right alliance between evangelicals and Catholics (as well as the “Judeo-Christian” business) as being sort of like the one between Hitler and Japan–a marriage of convenience where they know they’ll eventually duke it out with each other after disposing of the common enemy.

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  47. An Interested Party says:

    There it is…. White Liberal equivocating the Black Holocaust and struggle for human rights with the right to compel bakers to make custom wedding cakes and get marriage licenses from the State. White People problems…

    Oh? There are no black or Hispanic gay folks who don’t want to be treated as second-class citizens? Is theirs a “White People problem” too?

    There are many establishments today that Blacks aren’t (officially) welcome…They either don’t stay open long or scrape by.

    Really? I wonder how many country clubs and similar places are doing just fine without admitting any ethnic minorities or just admitting the token one here and there…

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