Gay Wedding Cake Baker Back in Court

Here we go again.

AP (“Colorado baker loses appeal over transgender birthday cake“):

The Colorado baker who won a partial U.S. Supreme Court victory after refusing to make a gay couple’s wedding cake because of his Christian faith lost an appeal Thursday in his latest legal fight, involving his rejection of a request for a birthday cake celebrating a gender transition.

The Colorado Court of Appeals ruled that that the cake Autumn Scardina requested from Jack Phillips and Masterpiece Cakeshop, which was to be pink with blue frosting, is not a form of speech.

It also found that the state law that makes it illegal to refuse to provide services to people based on protected characteristics like race, religion or sexual orientation does not violate business owners’ right to practice or express their religion.

Relying on the findings of a Denver judge in a 2021 trial in the dispute, the appeals court said Phillips’ shop initially agreed to make the cake but then refused after Scardina explained that she was going to use it to celebrate her transition from male to female. “We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker,” said the court, which also rejected procedural arguments from Phillips.

Phillips, who is represented by Alliance Defending Freedom, maintains that the cakes he creates are a form of speech and plans to appeal. “One need not agree with Jack’s views to agree that all Americans should be free to say what they believe, even if the government disagrees with those beliefs,” ADF senior counsel Jake Warner said in a statement.

John McHugh, one of the lawyers who represent Scardina, said the court looked carefully at all the arguments and evidence from the trial. “They just object to the idea of Ms. Scardina wanting a birthday cake that reflects her status as a transgender woman because they object to the existence of transgender people,” he said of Phillips and his shop.

So, I agree with the court that “creating a pink cake with blue frosting is not inherently expressive” and with Scardina’s attorney that, whatever the religious basis for the objection, it amounts to anti-trans bigotry. While it also seems reasonable to me that “any message or symbolism it provides to an observer would not be attributed to the baker,” that very argument was raised in the previous SCOTUS case and rejected. In that case, bakers who had refused to bake cakes with anti-gay messages were rightly permitted to make that determination so, mutatis mutandi, the reverse must be true as well. For that matter, it only goes so far. If a baker made a cake celebrating the anniversary of the Ku Klux Klan—or a person’s promotion to Grand Wizard—we would, not unreasonably, hold that against him.

In 2018, the U.S. Supreme Court ruled that the Colorado Civil Rights Commission had acted with anti-religious bias in enforcing the anti-discrimination law against Phillips after he refused to bake a cake celebrating the wedding of Charlie Craig and Dave Mullins in 2012. The justices called the commission unfairly dismissive of Phillips’ religious beliefs.

The high court did not rule then on the larger issue of whether a business can invoke religious objections to refuse service to LGBTQ people, but it has another chance to do so.

The fragmented 7-2 decision, with its web of concurrences, frustratingly kicked the can down the road, which is decidedly unhelpful for a high court that only adjudicates a relative handful of cases a year. But Phillips has maintained all along that he would sell non-expressive baked goods (cookies, brownies, etc.) and even birthday cakes, shower cakes, and the like for LGBTQ customers. He simply doesn’t want to celebrate things he abhors, which includes same-sex marriages and, apparently, transitions to other sexes.

Indeed, he happily agreed to make the pink and blue cake for Scardina until told that it was to convey a specific message. Which she did precisely to create a legal controversy:

Scardina, an attorney, attempted to order her cake on the same day in 2017 that the Supreme Court announced it would hear Phillips’ appeal in the wedding cake case. During trial, she testified that she wanted to “challenge the veracity” of Phillips’ statements that he would serve LGBTQ customers.

Before filing her lawsuit, Scardina first filed a complaint against Phillips with the state and the civil rights commission, which found probable cause that he had discriminated against her.

Phillips then filed a federal lawsuit against Colorado, accusing it of a “crusade to crush” him by pursuing the complaint.

In March 2019, lawyers for the state and Phillips agreed to drop both cases under a settlement Scardina was not involved in. She pursued the lawsuit against Phillips and Masterpiece on her own.

To the extent that a cake shop proprietor has 1st Amendment protections to not be forced to create messages he abhors, those protections are of little value if he has to litigate them all the way to the Supreme Court on an instance-by-instance basis.

Kennedy and company erred, in my view, by making the opinion too narrow and too focused on details specific to one particular case, the stakes of which were so low as not to merit on their own the time of the highest court in the land. The only reason to take the case was to establish precedent.

Indeed, I wrote this in the comments of the late Doug Mataconis’ write-up of the decision then:

My problem with the narrow ruling here is Why take the case then? SCOTUS has, over the past few decades, radically decreased its workload by nearly two-thirds. If you’re only going to issue 60-70 opinions a year, make ’em count. SCOTUS shouldn’t be in the business of rectifying individual wrongs unless they’re truly egregious; rather, they should be settling conflicts between circuits and major issues.

Frankly, if they were going to take this case, they should have ruled on whether mom-and-pop businesses have the right to discriminate in performative instances. It’s settled law that a public accommodation can’t refuse to sell items offered for sale to the general public on the basis of race, sex, etc. I’m not sure that it’s settled in the cases of made-to-order items that have expressive content. Why not rule on that, even while noting that this particular defendant deserves injunctive relief because of specific treatment by the board? Or take a case that’s ripe for a ruling on that issue, even if bundling them?

By being so timid, they settled nothing.

Kennedy’s opinion focused too much on Phillips’ religious views and the lack of neutrality in weighing them by Colorado authorities. Yet the Court, rightly, noted that Phillips had free expression rights at stake apart from his sincerely held religious views. That being the case, there really is no need to bring religion into the matter at all, as it just muddies the waters.

It seems obvious to me that, as a public accommodation, a cakeshop owner has no right to refuse to sell pre-baked goods to any customer on the basis of protected class.* At the same time, he should be free to refuse to make, for example, cakes with messages such as “Hitler Had the Right Idea”—or even “Fuck Trump” or “Let’s Go Brandon.” It’s just not that complicated.

The matter gets much harder with businesses larger than a sole proprietorship. The bake shop at the local Walmart or Safeway presumably has less leeway. Even there, though, I would be sympathetic to the manager, or even minimum wage employee, who refused to write “Abortion is Murder” or “Jews Killed Jesus” on a cake.


*Presumably, he has the right to refuse service to those who violate reasonable policies about attire (“No shoes, no shirt, no service”) or who are rude and obnoxious.

FILED UNDER: *FEATURED, Gender Issues, Law and the Courts, Supreme Court, , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. wr says:

    He agreed to make this pink and blue cake. Then, when he was informed what its purchaser meant by the color scheme, refused. Which means that the baker will sell certain cakes to customers he approves of, but not those he doesn’t. That’s no different from refusing to sell a Black customer a birthday cake after he explains he’s celebrating MLK’s birthday.

    If anyone’s freedom of speech is being squelched here, it’s that of the buyer, because that message existed only in the buyer’s mind.

    Mostly, though, the baker is just a dick and, I suspect, a publicity whore.

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  2. James Joyner says:

    @wr:

    Which means that the baker will sell certain cakes to customers he approves of, but not those he doesn’t.

    I don’t think that’s right. He would have sold the same customer the cake absent the explanation. He felt he was being tricked into celebrating the transition.

    That’s no different from refusing to sell a Black customer a birthday cake after he explains he’s celebrating MLK’s birthday.

    But why would you tell the baker that? Just buy the damn cake.

    If anyone’s freedom of speech is being squelched here, it’s that of the buyer, because that message existed only in the buyer’s mind.

    No, she verbalized it to the baker precisely to get him to not sell her the cake.

    Mostly, though, the baker is just a dick and, I suspect, a publicity whore.

    He may well be a dick but he’s not the one who initiated the suit. A trans lawyer initiated this case on the day that the previous SCOTUS ruling came down precisely to gin up a new case.

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  3. If a baker made a cake celebrating the anniversary of the Ku Klux Klan—or a person’s promotion to Grand Wizard—we would, not unreasonably, hold that against him.

    But being unwilling to promote a specific political message by a political group is not the same thing as systematically discriminating against a class of people. Being in the KKK and being gay or trans is not the same thing.

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  4. BTW: I agree that this appears designed to spark a controversy. Still, at the end of the day, the notion that the cake maker wouldn’t just sell the cake is discriminatory on its face, or so it seems to me.

    I know it is not a sophisticated position, but it sure would be nice if people could just be nice to one another for a change.

    I 100%. agree with this assessment of SCOTUS: “By being so timid, they settled nothing.”

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  5. drj says:

    Sex, including sexual orientation and gender identity, is a protected class.

    It would seem logical that this fact restricts the baker’s 1st Amendment rights.

    Except, of course, that some people (who should know better) still feel the need to appease the Christians.

    5
  6. Kylopod says:

    If it is legal to refuse to bake a cake for a same-sex couple, then it is legal to refuse to bake a cake for an interracial couple. Period–end of story.

    If it is legal to refuse to bake a cake celebrating someone’s gender transition, then it is legal to refuse to bake a cake for a black kid’s birthday. Period–end of story.

    Now, if defenders of the bakers in these cases would admit these implications, then we could have a conversation about the issue of rights not to be discriminated against vs. rights not to violate personal beliefs.

    But they don’t admit it. They avoid talking about the comparisons to racial discrimination, or they swat it away without addressing it. I’ve seen this over and over and over.

    And it’s obvious why. They’re hiding behind a certain level of social acceptability that they would be unable to maintain if they admitted the full implications of their legal arguments.

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  7. Mister Bluster says:

    @wr:..a dick and a whore

    Then they should have no objection to baking a penis cake for a prostitute…

    1
  8. Kathy says:

    But why would you tell the baker that? Just buy the damn cake.

    Don’t ask, don’t bake?

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  9. Stormy Dragon says:

    @James Joyner:

    But why would you tell the baker that? Just buy the damn cake.

    No. We’re here. We’re queer. Get used to it.

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  10. Rick DeMent says:

    @James Joyner:

    He may well be a dick but he’s not the one who initiated the suit. A trans lawyer initiated this case on the day that the previous SCOTUS ruling came down precisely to gin up a new case.

    While I honestly wish that these trolling legal cases that are ginned up for no other reason then to get a case to be reviewed by SCOTUS would stop. But frankly we are in the legal world we are in and I know for a fact the other side won’t stop at this sort of thing and frankly the “Christian” baker is doing the same thing. There is nothing in any Christian denominations creed or teachings that draws an explicit sanction for selling someone a cake even if it has the phase “God is Dead” one it.

    The baker will not be excommunicated, sanctioned, or even scolded for selling such a cake by any mainline denomination I know of in the US. Hell, you can’t even get thrown out of the SBC if you are divorced even though that particular “sin” is all over the New Testament like a rash. So my question for the cake backer is how is he harmed by selling a cake that objectively could no be “gay” or “trans”? Also where in the bible or in the creed of his denomination is selling things to sinners a sin?

    Romans 3:23-24 King James Version (KJV)
    … for all have sinned, and come short of the glory of God; being justified freely by his grace through the redemption that is in Christ Jesus

    This passage right here is why the Bakers argument is patent nonsense. The Bakers is a sinner according to the bible and he wants to refuse to “participate” in the celebration of someone else sin? Theologically it makes no earthly sense. What is happening here is a business person in a shop open to the public, is refusing to engage in commerce with an American citizen in the public square for “reasons”. What about the rights of the customer to not be discriminated against? Can I have a “sincerely held religious belief regarding people with certain hair styles (no cornrows)? Clothes? Because if you can deny service for some aspect of a parsons private life you are going to have a ton of backwash lawsuits. Is being “Pro life” a religious belief of a political stance? Can I dent service to someone because they are Republican?

    Are we rally going to to try to codify into law that business owners can refuse service to people for anything that upsets their worlds view? And if we are, how do you draw that line so the rights of everyone in the transaction is protected?

    I know it probably too much to ask people who identify as Christians to act like it. I would also like if gay people just ordered a cake without trying to make into into a test case. but I’m not willing to let Republican’s be the only ones filing bad faith test cases.

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  11. Jen says:

    He felt he was being tricked into celebrating the transition.

    This rationale mystifies me. He’s not been invited to celebrate the transition. He’s been asked to prepare food, with a specific color scheme, something bakers everywhere are accustomed to doing. Color schemes, themes, specific wording on said cakes–this is all part of providing cakes for events. (For a light-hearted diversion on this, I recommend perusing the Cake Wrecks site.)

    It’s not really any of his business why they were asking for the color scheme.

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  12. Kathy says:

    Someone should ask for a cake with black and red frosting. Then, the day after it’s delivered, they should thank the baker for his efforts, and mention everyone at the Satanic Temple loved it.

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  13. Flat Earth Luddite says:

    @Jen:
    @Steven L. Taylor:
    Yes, the idea that we should be nicer to each other seems to have gone the way of the dodo bird. Le sigh.

    Some years ago, I was asked to shoot a ceremony/reception for a couple of my acquaintance. When asked (by an “interested” party) if I objected to their choices, my response was, “why would I? They’re happy, and I got paid. Win-win!”

    Bake the dang cake! Shoot the dang wedding! Be happy and share in the trans person’s joy! People, it’s not that darned hard!!!

    ETA Jen, great link to cake wrecks. Thanks!

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  14. James Joyner says:

    @Steven L. Taylor:

    But being unwilling to promote a specific political message by a political group is not the same thing as systematically discriminating against a class of people. Being in the KKK and being gay or trans is not the same thing.

    For sure. But a cake celebrating a same-sex wedding, a gender transition, or a hateful racial message are the same in the sense that they’re all expressions of ideas.

    @drj:

    Sex, including sexual orientation and gender identity, is a protected class.

    It is. But free expression is also a protected right.

    @Stormy Dragon:

    We’re here. We’re queer. Get used to it.

    It’s not at all clear why the rights of LGTBQ+ individuals to celebrate their queerness trumps the rights of Christians (or even bigots) to refuse to endorse that celebration.

    @Rick DeMent:

    There is nothing in any Christian denominations creed or teachings that draws an explicit sanction for selling someone a cake even if it has the phase “God is Dead” one it.

    While I understand that it’s why these issues are treated so favorably by the current SCOTUS majority, which has treated—very unlike conservative courts of the past—religious expression as the foremost of all American rights, I would much prefer that these cases be instead framed on free expression grounds. There’s no obvious reason why being an asshole because of an interpretation of 2000-year-old religious texts should be favored over doing so just because you’re an asshole.

    @Jen:

    It’s not really any of his business why they were asking for the color scheme.

    Nor did he ask. He only objected at the moment the person told him it was to celebrate a gender transition, which he wanted no part of.

    There’s simply zero question that, had he had pink and blue cakes for sale (perhaps for birthday parties) and a trans customer came up to the register to ring it up and said that they were going to use it for a gender transition party, he would nonetheless have been obligated to sell it to them. The question is how far the state can go in compelling him to perform what he deems expressive speech in support of an agenda with which he disagrees. And, again, I think the Masterpiece Bakery case should have settled that question more clearly.

    4
  15. MarkedMan says:

    @Rick DeMent: The Evangelical branch of Christianity has virtually nothing to do with Christ. It is a sect of angry scolding busybodies looking everywhere to be offended and put upon.

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  16. MarkedMan says:

    Bemoaning test cases is naive. Rosa Parks was a deliberately engineered test case, and more power to her. The Scopes Monkey Trial was too, and thank god. Real life all but mandates that if you want to challenge a law you find or create a case that has as many complicating factors as possible peeled away.

    5
  17. gVOR08 says:

    Seems to me this all misses the point. Treatment of LGBTQ people generally is a major problem. Being able to buy cakes to celebrate gender transitions is not. And the number of bakers who have refused to sell such cakes has to be tiny, perhaps no more than one. In this case the lawyer customer and the Christian baker both seem over-eager to fight out this tempest in a teapot. It’s a shame the courts don’t have the option of deciding you’re both assholes, go away. The real problem is that our politics and our legal system have spawned a small industry of legal entrepreneurs trolling for, or even creating, cases on which they can draw donations. And getting a case to the Supreme Court, as they did with the earlier cake case, is their Holy Grail.

    1
  18. Kathy says:

    If a baker made a cake celebrating the anniversary of the Ku Klux Klan—or a person’s promotion to Grand Wizard—we would, not unreasonably, hold that against him.

    If I were asked to bake a cake like that, I totally would.

    When the customer came for it, I’d tell them “enjoy the cake. I assure it’s perfectly fine. No one poisoned it, no one used urine in making it, and I assure you the raisins are not rat feces. Thank you for your business. please come again. What? I am sorry, there are no refunds for special orders.”

    8
  19. Stormy Dragon says:

    @James Joyner:

    My comment wasn’t directed at the baker, it was directed specifically at you and your assertion that LGBTQ+ people ought to hide their existence and that failure to do so represents some sort of social offense.

    3
  20. Beth says:

    @James Joyner:

    It’s not at all clear why the rights of LGTBQ+ individuals to celebrate their queerness trumps the rights of Christians (or even bigots) to refuse to endorse that celebration.

    You do realize that Jim Crow was a major part of this country’s history and that’s what this Baker is trying to take us back to. We decided, as a country, that if you are going to open your doors to the public and sell stuff, then you have to basically sell stuff to everyone. We set up whole classes of people that we consider protected because they were, and are, discriminated against. It’s not an endorsement of anything to bake a nazi cake, a gay cake, or take pictures at a wedding. Seriously, does anyone remember who took pictures at their wedding? I couldn’t even tell you what they looked like. The pictures are great*.

    The whole purpose of these Christians doing this is to dismantle anti-discrimination laws. Tell me, if a Black man walked into his shop and said he wanted a red, black and green cake for his kids birthday, could a Christian say no, that he believes that the bible tells him that Black people are inferior and he won’t endorse them. Is that acceptable?

    *I like most of the pictures, but the ones of me in a suit make me so sad and I hate looking at them.

    8
  21. drj says:

    @James Joyner:

    It is. But free expression is also a protected right.

    Not necessarily so in the context of commercial activities.*

    For instance, an employer can’t exclude certain ethnicities from being hired (because race is a protected class). For the same reason, a store can’t refuse to sell to the disabled. A landlord can’t refuse to lease to families with children, etc., etc.

    The only reason that sexual preference and gender identity are treated differently is because it is still acceptable (or even expected) in certain circles to treat the gays as icky.

    Legally, this should be an open-and-shut case.

    * Even though private individuals have the right to argue that the races should not be mixed on the workfloor or that the disabled should all be locked up.

    3
  22. DK says:

    @James Joyner:

    But a cake celebrating a same-sex wedding, a gender transition, or a hateful racial message are the same in the sense that they’re all expressions of ideas.

    As lazy (and possibly irrelevant) a comparison as suggesting killing a plant, killing a pet dog, and killing a human teenager are the same “in the sense” that they all involve killing living things.

    But free expression is also a protected right.

    “Free expression” includes the ability of commercial businesses offering public accommodations to discriminate against customers by cherry-picking from the Old Testament? I’m not so sure, but Alito will find a way.

    6
  23. DK says:

    @Beth:

    Tell me, if a Black man walked into his shop and said he wanted a red, black and green cake for his kids birthday, could a Christian say no, that he believes that the bible tells him that Black people are inferior and he won’t endorse them. Is that acceptable?

    If Trump’s Apartheid Court could get away with it, yes. SCOTUS did this before. By Alito’s logic, black inferiority is rooted in the — what did he call it when endorsing forced birth? — the “history and traditions” of the country.

    It’s just in the 21st Century SCOTUS can’t easily get away with openly making The Blacks second-class citizens like they used to and like they still can with queer folk.

    1
  24. Jay L Gischer says:

    It seems to me that symbolism is not universal, but we are trying to make it so. If asked to make a cake that says, “Kill All Jews!” I would expect a baker might refuse to make such a cake, and continue to do so even if I were to explain I’m Jewish and it’s ironic, and meant to be a joke. And I would support his refusal, not prosecute him.

    So, pink cake with blue frosting is a symbol. For some. For others, it’s just a pink cake with blue frosting, which means nothing. The meaning of it isn’t universal. It is not “inherently expressive” That’s what it means to the purchaser.

    ——–
    Now I speculate on SCOTUS inside baseball. Perhaps Kennedy want to vote against the baker, but discovered that if he voted for the baker, he would be the most senior justice and be able to write the opinion. So he did and wrote a very narrow opinion, which kind of sabotaged what some of the other justices voting for the baker wanted. This seems in line with the kind of role Kennedy played on the court in these days. But it’s baseless speculation, which I freely admit.

  25. Modulo Myself says:

    It’s not at all clear why the rights of LGTBQ+ individuals to celebrate their queerness trumps the rights of Christians (or even bigots) to refuse to endorse that celebration.

    Why do you think these individuals are celebrating their queerness? Are straight couples celebrating their straightness when they get married? Of course not. More importantly, giving legal rights to deny the rights of others based on the interpretation of behavior is dumb. You are literally creating a class of ‘normal’ gay stuff and then ‘gay’ gay stuff which anybody is free to apply at their leisure. Same with trans people or any other marginalized identity. Because after all it’s free expression.

    It really comes down to the fact that normie culture still believes that a little kid putting Ken and Barbie in a dollhouse is normal but Ken and Ken in the same house is about them having sex. That’s fine. I get it. It’s also free expression to think that Ken and Ken are automatically deviants. But taking this worldview and giving it the legal right to deny the rights of others is a disaster. And the Supreme Court knew this, which was why they hedged on drawing conclusions on a wedding cake.

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  26. @James Joyner:

    But a cake celebrating a same-sex wedding, a gender transition, or a hateful racial message are the same in the sense that they’re all expressions of ideas.

    I take the point, but I still think that it elides the issue of discriminating against an entire class of persons.

    There is also the problem that the cake maker, in baking a blue and pink cake, is not engaging in the same expression at the cake-buyer.

    Indeed, the idea that an artist can control what others see in their art/use their art to express, is kind of crazy. Should I ever be in a position to sell any of my photographs, it seems a bit nuts that I would have the right to control how others interpret what I thought I was trying to express in a given piece.

    The intent of the artist and the intent of the beholder are never guaranteed to be the same.

    6
  27. @MarkedMan: Good point.

  28. KM says:

    @James Joyner:

    He felt he was being tricked into celebrating the transition

    By coloring food a specific color scheme he literally didn’t comprehend was significant until told? How is that “celebrating” or even “tricking”? Blue and pink together can represent gender, yes but it can also stand for team colors (Miami Marlins come to mind), a favorite media characters’ color scheme or even if they had two people who’s fav colors were blue and pink and the cake was shared. The inherent pairing of blue and pink is meaningless unless you attribute meaning to it…. and the baker didn’t until he understood the customer did and that’s when he got offended. *Faith* isn’t the problem, the *cake* wasn’t the problem, the *artistry* in creating it wasn’t, the *effort* to make or sell it wasn’t but rather that the customer intended something he didn’t like. In other words, basic bigotry.

    Conservatives can’t really argue here that it’s trickery or deceit since you can never really know what the customer wants or intends; trolls can lie what a cake is for just like a customer can decline to mention the ultimate purpose. Even if they specifically says it’s for a trans celebration, if you weren’t there how can you really know what happened? You aren’t participating in something you have no idea exists. I’m not part of someone’s wedding halfway across the globe if I manufacture things used to decorate the hall, go on a dress or in a cake. Does the person who grew the wheat to make the cake get to object to the baker not using their product in an act of religious malfeasance? If not, how far back in the chain are you allowed to go and when does it stop being “tricked in participating”?

    The ego on some people is amazing. This is not nor has it ever been about something the baker’s been involved in. He fancies himself important and relevant to the celebration when he’s no more involved then the cashier that rung up the decorations or the guy that delivered the flowers. Maybe, instead of humoring nonsense religious claims designed to exclude we should be asking why these entrepreneurs think their legal or personal involvement in celebrations goes beyond a simple business transaction.

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  29. BTW: I am not unsympathetic to the expression rights in question. I just think that the baker’s claims to religious or expression rights are covers for bigotry (just as religious claims for opposing mixed-race marriage were in the past). Moreover, if we are weighing societal needs, the right to non-discrimination in commerce would seem to outweigh the right for some business owners from having to do business with people they don’t approve of.

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  30. Modulo Myself says:

    Also, I’ve never seen any line being drawn by people advocating for legalized discrimination. The same logic with cakes and weddings applies to a romantic restaurant with a famous duck a l’orange and a 10th wedding anniversary for two men. Are gay men allowed to eat at all restaurants except if they are celebrating something ‘gay’? Is this where any society wants to go? A billion legal cut-outs for bigots to say this is normal and this is gay?

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  31. James Joyner says:

    @MarkedMan:

    Bemoaning test cases is naive. Rosa Parks was a deliberately engineered test case, and more power to her.

    Yes and no. She wasn’t setting up an artificial situation but rather flouting a local law that was generally enforced. Here, the individual in question could easily have gotten the exact cake she wanted from this very baker—who had happily agreed to bake it for her!—until she made it clear she intended it as a political statement.

    @Stormy Dragon:

    your assertion that LGBTQ+ people ought to hide their existence and that failure to do so represents some sort of social offense.

    Her declaration of the intent to celebrate her transition was specifically intended to offend his well-known religious sensibilities and thus provoke a lawsuit.

    @Jay L Gischer:

    Now I speculate on SCOTUS inside baseball. Perhaps Kennedy want to vote against the baker, but discovered that if he voted for the baker, he would be the most senior justice and be able to write the opinion.

    Chief Justice Roberts was the senior most justice and could easily have assigned himself or any other Justice in the majority the opinion, so, no, I don’t think that was it.

    @Beth:

    We decided, as a country, that if you are going to open your doors to the public and sell stuff, then you have to basically sell stuff to everyone. We set up whole classes of people that we consider protected because they were, and are, discriminated against.

    We’re really talking about a very narrow exception here. The maximalist interpretation only applies to special orders. He can’t deny ready-made baked goods to anyone on the basis of protected class. The question is only whether he can deny to do things which might conceivably fall under his own expressive rights.

    It’s not an endorsement of anything to bake a nazi cake, a gay cake, or take pictures at a wedding.

    I’m not so sure about that. But SCOTUS really should clarify that issue once and for all rather than nibbling at the edges.

    @Steven L. Taylor:

    The intent of the artist and the intent of the beholder are never guaranteed to be the same.

    Absolutely. But it doesn’t seem outrageous to me that the artist has a right to reject custom art that he believes is intended to convey a message he finds offensive. If you decided to retire from academia and become a professional photographer, you ought have a right to decline to photograph Klan rallies without putting your right to practice your craft in jeopardy.

    1
  32. Rick DeMent says:

    @James Joyner:

    … religious expression as the foremost of all American rights…

    And the ability participate in commerce in the public square isn’t? Look a right is a right. There are no “hierarchy of rights”. This is about what should happen when rights collide. And not to put too fine a point on it, The first amendment is about whether or not the government can tell you what you can and cannot believe from a religious perspective. It’s not about shielding an individual from everything in society that is contrary to their personal religious beliefs.

    6
  33. anjin-san says:

    @James Joyner:

    It’s not at all clear why the rights of LGTBQ+ individuals to celebrate their queerness trumps the rights of Christians (or even bigots) to refuse to endorse that celebration.

    I’ve been a vegetarian for a very long time. I can make a strong argument that my beliefs about eating meat are religious. When I was in the restaurant business, I served meat all the time. This does not in any way “endorse” the eating of meat, I was just doing the job I had chosen, and respecting the rights of others to live in a manner they see fit. One day I could not do it anymore, and I got out of that business. Pretty simple.

    7
  34. James Joyner says:

    @Modulo Myself:

    The same logic with cakes and weddings applies to a romantic restaurant with a famous duck a l’orange and a 10th wedding anniversary for two men. Are gay men allowed to eat at all restaurants except if they are celebrating something ‘gay’? Is this where any society wants to go? A billion legal cut-outs for bigots to say this is normal and this is gay?

    I don’t think anyone asserts a legal right to decline to serve gays, Blacks, or any other protected class in public accommodations. The chef would, however, have a right to decline to shape the duck into a giant penis.

    3
  35. James Joyner says:

    @anjin-san:

    I’ve been a vegetarian for a very long time. I can make a strong argument that my beliefs about eating meat are religious. When I was in the restaurant business, I served meat all the time. This dis not in any way “endorse” the eating of meat, I was just doing the job I had chosen, and respecting the rights of others to live in a manner they see fit. One day I could not do it anymore, and I got out of that business. Pretty simple.

    That’s an interesting example! As a server at a restaurant that serves meat, you’re almost certainly stuck with the option you have described: serve it or quit. As the proprietor of said restaurant, however, you have another choice altogether: offering only vegetarian options. A customer demanding meat could quite rightly be told to seek that accommodation elsewhere.

    1
  36. Stormy Dragon says:

    @James Joyner:

    Her declaration of the intent to celebrate her transition was specifically intended to offend his well-known religious sensibilities and thus provoke a lawsuit.

    That damn uppity trans woman, doesn’t she know it’s her job to keep things as comfortable as possible for transphobes? /sarc

    I don’t think anyone asserts a legal right to decline to serve gays

    Lots of people assert exactly that, and I’m pretty sure you’re well aware of that.

    7
  37. Modulo Myself says:

    @James Joyner:

    If you are saying that a normal cake can’t be made for a trans person because it is a ‘trans’ thing then the shape of the duck doesn’t matter. The duck is being served for a ‘gay’ thing and that is a violation of the rights of the chef/owner whose recipe it is, and who made the duck and whose definition of ‘gay vs normal’ we are relying upon.

    2
  38. James Joyner says:

    @Stormy Dragon: @Modulo Myself: Tepid as it was Masterpiece Cakeshop make it pretty clear that the basic tenets of public accommodations law are not in dispute. They made a very narrow exception and then, stupidly, hung it on the unlikely-to-be-repeated micro-details of the specific case in question rather than settling where the line on expressive speech should be drawn.

    3
  39. James Joyner says:

    @Steven L. Taylor:

    I just think that the baker’s claims to religious or expression rights are covers for bigotry

    I have no insights into this man’s heart but it wouldn’t shock me in the least. I don’t see much difference between religious belief and bigotry, anyway, in that it seems to me that the Establishment Clause should prevent government from privileging any belief set over another.

    2
  40. Jen says:

    On the vegetarian restaurant/restaurant owner offering just those options, there’s another aspect that is important. First, most vegetarian restaurants make that clear at the outset: we don’t serve meat, to anyone. Not so with the bakery–they make cakes. Presumably for people who order them and pay. There is no clarity beforehand (SCOTUS notoriety notwithstanding) who a baker will serve and who they will not. In the case of the vegetarian restaurant, the choice is the consumers’ to make. At the bakery, it’s the baker’s, and it’s fairly arbitrary given that the baker isn’t going to know unless specifically told what the cake is for.

    I still fail to understand how the production of a baked good translates into a lifestyle endorsement, rather than a business transaction.

    2
  41. Jay L Gischer says:

    @James Joyner: While the decision to write a narrow decision (!) has certainly had downstream consequences, and not clarified the matter, I decline to call it “stupid”. These are not stupid people. Several of them I find quite disagreeable, but they aren’t dumb. None of them. So this was a decision (about a decision) that was considered the best possible course for them.

    It’s likely that a stronger finding in favor of the baker would have had all sorts of problems, such as what we are discussing now

    This court has a problem in that it wants to do things that aren’t very consistent with the legal traditions of the country. So it either makes a very narrow decision that goes the way they want, or it issues a screed pretending to be a decision that is even worse law than the decision it purports to overturn, claiming that a 50 year-old precedent is not established enough, while giving no rule for deciding what *is* established enough.

    That’s the dilemma this Court finds itself in. It wants to do things that don’t fit. It is so very politically minded.

    My take on Kennedy is that, being the author of Obergefell, he’s probably more friendly to gay rights than other conservatives.

    1
  42. Turgid Jacobian says:

    @James Joyner:

    But a cake celebrating a same-sex wedding, a gender transition, or a hateful racial message are the same in the sense that they’re all expressions of ideas

    actually, it’s eggs, flour, sugar, and food coloring

    7
  43. Stormy Dragon says:

    @James Joyner:

    Tepid as it was Masterpiece Cakeshop make it pretty clear that the basic tenets of public accommodations law are not in dispute.

    Again, this is not true. First of all, only 19 states even consider LGBTQ+ people a protected class to begin with. And there are many conservative groups who do indeed dispute the basic tenets of public accommodations law trying to overturn the concept entirely.

    And again, I’m pretty sure you’re well aware of that.

    9
  44. KM says:

    @James Joyner:

    Here, the individual in question could easily have gotten the exact cake she wanted from this very baker—who had happily agreed to bake it for her!—until she made it clear she intended it as a political statement.

    And just as happily said Eff Off when told the formerly fine cake is now a Huge Problem specifically because they didn’t like that it involved being trans in some way. You are reinforcing the point that there is nothing inherently problematic with the entire transaction until the baker’s personal beliefs were brought inappropriately to play. He wasn’t tricked or deceived, it literally didn’t matter at any point in the process until he decided it did.

    It doesn’t matter if it’s “artificial” or not, the baker was cool until he had made the call that it was “political”.

    5
  45. anjin-san says:

    @James Joyner:

    As the proprietor of said restaurant, however, you have another choice altogether: offering only vegetarian options.

    And the bakery proprietor could simply remove custom cakes from his product offering, hence removing the possibility that he might have to create something that would – in his view – conflict with his religious beliefs.

    13
  46. Modulo Myself says:

    @James Joyner:

    But they clearly are because the logic behind the ruling is nuts, and the same people supporting the baker are happy to support a law banning gender-affirming health care. Both for kids and adults.

    Basically you are running with a nobody wants to overturn Roe v Wade argument. But it’s 2023 and they have and they want to take away the rights of anyone who isn’t straight.

    5
  47. anjin-san says:

    As the proprietor of said restaurant, however, you have another choice altogether: offering only vegetarian options. A customer demanding meat could quite rightly be told to seek that accommodation elsewhere.

    I think this argument has a pretty big flaw. A vegetarian restaurant – by definition – simply does not serve meat. It’s not on the menu, and it’s not on the premises. There are numerous non-religious reasons for not wanting to eat or serve meat. A customer who wants a meat dish and is being told to look elsewhere is asking for something that that restaurant does not prepare or sell – it’s completely reasonable to tell the prospective customer that he cannot be accommodated. The bakery in question does, however, make and sell cakes, in fact the making and selling of cakes is central to their business.

    6
  48. gVOR08 says:

    @MarkedMan:

    Bemoaning test cases is naive. Rosa Parks was a deliberately engineered test case, and more power to her. The Scopes Monkey Trial was too, and thank god.

    A valid point. The Scopes trial was a completely put up job, but it failed as a test case. The town fathers of Dayton TN saw an opportunity to get publicity for their town and asked Scopes to volunteer to say he taught evolution contrary to the new state law. IIRC under oath he couldn’t remember whether he actually did. The ACLU was looking for a case they could lose and appeal up to the Supremes. They ACLU got the conviction they expected, but the state Supreme Court overturned it. IIRC the State Supremes were able to overturn on a narrow technicality over the fine and the state AG declined to retry. So after all the trouble of bringing in Clarence Darrow to argue with William Jennings Bryan the ACLU ended up with nothing.

    I’ve read elsewhere that Bryan was generally pretty reasonable but had a thing about evolution based on the Germans claiming to be more evolved to justify their treatment of Belgium in WWI.

    I haven’t seen much about evolution lately. Have the holy rollers given up on it? Did the evolution of COVID variants confuse them? Or are they just laying low waiting to see which way the Federalist wind blows?

  49. Beth says:

    @James Joyner:

    We’re really talking about a very narrow exception here. The maximalist interpretation only applies to special orders. He can’t deny ready-made baked goods to anyone on the basis of protected class. The question is only whether he can deny to do things which might conceivably fall under his own expressive rights.

    I don’t think this is as narrow an exception as you think it is. Let me change the facts of this slightly. I am, as I’ve send many times before, a Trans woman. Unlike many (most?) Trans women I haven’t done anything to change my voice. No surgery, no vocal training, nothing. I hate it and I suffer with it because I don’t see a better alternative. So, on the phone, I sound like a dude. Say I call Mr. Bigot’s cake shop and ask for a pink cake with blue frosting. Lets say, for once, I’m not a chatty Cathy and don’t say what the cake is for.

    Mr. Bigot then goes and bakes the cake cause he doesn’t know. Now, when I walk in all visibly Trans with my fistful of cake money, he refuses to sell it to me. Say he realizes why I’d want a blue and pink cake cause bigots like him pay way too much attention to us. Would that fall under your narrow exception?

    Does it really make a difference if I don’t say anything? Or if I say it’s for my new vagina party? Your narrow exception really boils down to people shouldn’t have to provide products or services to Trans people, or Queers, or black people.

    What if he’s the only baker in town?

    4
  50. @James Joyner:

    If you decided to retire from academia and become a professional photographer, you ought have a right to decline to photograph Klan rallies without putting your right to practice your craft in jeopardy.

    Again, I think that being a member of the klan and being trans/gay are categorically different.

    I will say that if my practice was “I photograph rallies” I am probably setting myself up to get asked to photograph things I don’t like and perhaps I should consider than before I put together my business plan.

    If one becomes a wedding photographer, then being asked to photograph weddings is part of the gig. Likewise if I open a bakery.

    5
  51. @James Joyner:

    in that it seems to me that the Establishment Clause should prevent government from privileging any belief set over another.

    But, as it often the case, we have to balance rights. There are the baker’s rights and the purchaser’s rights and we have to figure out whose rights win out–and part of figuring that out does lead to weigh intent.

    Again, we wouldn’t let the baker to refuse service to a mixed-race couple, even if he claimed that he believed that the Bible forbade their marriage.

    3
  52. @James Joyner:

    A customer demanding meat could quite rightly be told to seek that accommodation elsewhere.

    But that is reasonable and non-discriminatory because the lack of meat would be universal to all customers.

    7
  53. Beth says:

    @Modulo Myself:

    Why do you think these individuals are celebrating their queerness?

    I just want to make this point fully explicit, because it goes to the heart of it. I suspect there is some linger doubt that being Gay or Trans is a choice. That’s a lie straight people tell us so they can feel better about shitting on us.

    I celebrate my Queerness because:

    I think to myself “Is this the time I get my teeth kicked in?” every time I use a public bathroom.

    Because I’m taking my kid to Indiana in a couple weeks and I’m FUCKING TERRIFIED that I’m going to get the police called on me for being a “Groomer”.

    Because there is an effort underway in West Virgina to make it a crime for me to EXIST in the same room as a child.

    Because the Nazis protesting drag shows don’t give a damn about the difference between Trans women and drag queens and they’d just as soon kill us both.

    I’m afraid to go to Florida for pretty much the same reason as Indiana (or WV).

    I get the pleasure of debating whether I have any rights with a person who will never, ever, ever, in his life have any one question his right to anything.

    I celebrate my queerness because I get to feel whole in my body, whole in my mind. I’m fucking magical and no one can take that away from me.

    8
  54. Beth says:

    @James Joyner:

    If you decided to retire from academia and become a professional photographer, you ought have a right to decline to photograph Klan rallies without putting your right to practice your craft in jeopardy.

    I wonder how other professions handle this?

    A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.

    IL R S CT RPC Rule 1.2

    From the notes:

    [5] Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client’s views or activities.

    My job is to literally talk. When I’m expressing, none of that is an endorsement of any of my clients. Some of whom are complete morons.

    Oddly enough, one of my best clients is a Black Baptist Church. When I came out to the Senior Pastor and the now head Pastor, they both hugged me.

    2
  55. Gustopher says:

    @James Joyner:

    Here, the individual in question could easily have gotten the exact cake she wanted from this very baker—who had happily agreed to bake it for her!—until she made it clear she intended it as a political statement.

    I’m not sure being queer is any more a political statement than being, say, Jewish.

    Both queer folks and Jewish folks have been persecuted, and both can choose how visible they are (Orthodox Jews obviously less so). There’s definitely a political element in visibility for minorities that isn’t there when a member of the majority says the same thing, but I think you would feel very queasy if you were to try to draw lines around it.

    If the cake was for a bar mitzvah, would it be “political” for the customer to mention that?

    The answer there is both yes and no. Yes in that visibility is a political act. No in that it’s just normal shit that you wouldn’t bat an eye it if it was mentioned that the cake was for a kid’s communion or something “normal.”

    Feel queasy yet? Can the baker turn down the order for a bar mitzvah cake?

    Black folks sitting at the whites-only lunch counter was also political. I know you would find refusing service there to be wrong.

    Being a minority is political. I don’t think “political” is where you want to draw the line on where people get to discriminate. There’s a huge difference between “I’m Black/Jewish/Queer” and “I’m the new grand wizard of the KKK!”, despite both those statements being political.

    3
  56. Kylopod says:

    @gVOR08:

    I haven’t seen much about evolution lately. Have the holy rollers given up on it?

    They gradually lost every important court case. In the late 1960s, SCOTUS prohibited public schools from banning the teaching of evolution. Then the creationists shifted to the idea that the schools should teach both evolution and creation. In the late 1980s, SCOTUS ruled against the teaching of creationism in public schools altogether, on the grounds that it violated the Establishment Clause. A few years later, the Intelligent Design movement was born, a watered-down form of creationism that avoided explicitly mentioning God or the Bible. SCOTUS struck down on that version in 2005.

    Of course, creationism of any kind can still be taught in private schools or homeschooling. Which is one of the reasons the religious right pushes vouchers. Over the years I’ve heard anecdotal stories of public schools outright teaching Christianity and authorities looking the other way. For the most part, though, creationists do seem to have given up the legal fight to have their views taught in public school. For now.

  57. MarkedMan says:

    @James Joyner:

    Here, the individual in question could easily have gotten the exact cake she wanted from this very baker—who had happily agreed to bake it for her!—until she made it clear she intended it as a political statement.

    This comes awfully close to what I used to hear 20 years or more ago: “Gays are free to do whatever they want to as long as they don’t shove it in our faces. Those who want to be ‘out and proud’ are just asking for trouble and so bring it out themselves”. (Ironic that at least a few who publicly professed those opinions turned out to be closeted gays themselves…)

    3
  58. MarkedMan says:

    @James Joyner: I think your chef is a pretty good example. A chef can say that their output is artistic expression in much the same way as a baker. Let’s take it as a given, for the sake of this argument, that writing “Congratulations on your Marriage, Doug and Bob” on a cake is legitimately an artistic expression. And the baker would be within his rights to reject it because the intent of that artistic expression is obvious. You give the analogy of a chef preparing duck, but I think you veer off track in equating “shaped like a penis” with “Congratualtions…” A more apt comparison would be if the chef had a signature dish, say Baked Alaska, and upon request would put some of the meringue in an icing tube and write a message on it.

    In the blue-pink cake however, we are really beginning to stretch the boundaries of artistic expression. “Make a normal cake with blue and pink icing”. Agreeing and then refusing once you know what it is for comes awfully close to our hypothetical chef saying, “I can’t fulfill your order for a regular baked Alaska because I hear you are celebrating a gay anniversary.”

    I think this is a very tough area. Some of the comments have come awfully close to saying, “Well the baker is a bigot and therefore they don’t deserve rights”, but to me that sentiment is profoundly wrong. As a society we respect the rights of people, not “good” people or “bad” people.

    2
  59. Beth says:

    @MarkedMan:

    I think this is a very tough area. Some of the comments have come awfully close to saying, “Well the baker is a bigot and therefore they don’t deserve rights”, but to me that sentiment is profoundly wrong. As a society we respect the rights of people, not “good” people or “bad” people.

    It’s not actually all that tough. People’s rights are constrained by their choices all the time*. The Baker chose to sell goods to the public, when he’s doing that, his religious rights are constrained by the rights of the public.

    Now, I have a deeply held religious belief that the Moon is my goddess patron and she keeps me safe. My religious rites include consuming specially prepared psychedelics and dancing at night with other people. The public in its infinite stupidity has decided that psychedelics are illegal no matter what. If that baker has a religious right to discriminate against queers, then I have a religious right to consume psychedelics and dance.

    I’m being dead serious about my beliefs. We both know where that argument is going to get me if the police find my psychedelics.

    *the only right that seems to be absolutely unconstrained is gun ownership. If I ever get the chance to, I’m going to straight faced argue in court that murder with a gun is a protected under the 2nd amendment.

    2
  60. James Joyner says:

    @Beth: @MarkedMan: We can certainly conjure up hypotheticals that are harder than this set of facts. I just don’t think this one is all that hard.

    @Gustopher: The Jewish case is particularly problematic in that it’s both, roughly, an ethnicity/identity group and a religious faith. I grant that similar arguments exist for denying a Bar/tmitvah cake and a transition cake.

    @Beth: But attorneys turn down clients they find repugnant all the time, no?

    1
  61. wr says:

    @James Joyner: “Her declaration of the intent to celebrate her transition was specifically intended to offend his well-known religious sensibilities and thus provoke a lawsuit.”

    So if someone ordered a blue and white cake from a baker, then informed him it was a Bar Mitzvah, the baker should be able to cancel the sale if he believes in the Protocols of the Elders of Zion?

    1
  62. Just nutha ignint cracker says:

    @Rick DeMent: I’ve been asking Christians to act like Christians since I left a congregation that was promoting a bill to allow landlords to refuse to rent to gays (IIRC, but it was some sort of anti-gay rights bill) back in the late 70s. Mostly, I’ve been told that I was wrong and that homosexuality was different from other sins. Oh well.

    ETA: Might have been the start of the gay marriage push. I can’t remember clearly anymore. They all start to blur together when you’ve been out of step with your “brothers and sisters in the Lord” for as long as I have.

    1
  63. wr says:

    @James Joyner: “A customer demanding meat could quite rightly be told to seek that accommodation elsewhere.”

    Of course. The restaurant is not required to serve something it doesn’t serve. On the other hand, what if a customer at a steak house ordered a steak and said he was eating it to celebrate his transition? Can the restaurant refuse to serve it to him?

    5
  64. Beth says:

    @James Joyner:

    We can certainly conjure up hypotheticals that are harder than this set of facts. I just don’t think this one is all that hard.

    That’s a dodge, and not a very good one. My hypothetical is directly on point with the discussion.

    But attorneys turn down clients they find repugnant all the time, no?

    I guess. But as I see myself as a mercenary/janitor I tend not to. Plus a lot of my clients are repugnant anyway. As long as they pay, I don’t care. Also, the issue is not turning down repugnant clients. The issue is whether or no, by virtue of accepting a commercial exchange, does that mean that one automatically endorses another’s position. The legal profession has explicitly says it does not. Also, if I turned down a client for being a nazi, not a protected class, I wouldn’t get in trouble. If I went around saying that I won’t represent Black people because I my religion says that Black people are inferior, I would certainly get a nasty ethics complaint.

    2
  65. Gustopher says:

    @MarkedMan:

    Some of the comments have come awfully close to saying, “Well the baker is a bigot and therefore they don’t deserve rights”, but to me that sentiment is profoundly wrong. As a society we respect the rights of people, not “good” people or “bad” people.

    As a society we balance the conflicting rights of people, pretty much all the time. Noise ordinances, zoning laws, etc.

    Freedom of association is right there in the bill of rights. I think it’s pretty straightforward to argue that based solely upon that, a business owner can choose to associate just with good, upstanding white folks, both in his customers and his employees.

    However, we find other rights far more compelling as a state interest and balance against the white supremacist business owners. If “separate but equal” was implemented more equal, I expect a lot of the Supreme Court decisions would have struck a very different balance.

    Which is all just a fancy way of saying “fuck that little bigot.” 😉

    (Whether there could be two separate but equal systems living intertwined but never interacting is an interesting question, similar to left-protein and right-protein based life coexisting. There would seem to be a race for resources in each case — without some way of non-whites making their land and property toxic to whites, I think it stops being equal pretty quickly.)

    1
  66. Just nutha ignint cracker says:

    It’s not at all clear why the rights of LGTBQ+ individuals to celebrate their queerness trumps the rights of Christians (or even bigots) to refuse to endorse that celebration.

    But the argument about it may explain why both sides of the issue are so willing to ‘throw down’ about it. Power struggles tend to be ugly and senseless.

    And unresolvable.

    1
  67. Just nutha ignint cracker says:

    @Kathy: I LIKE IT!!!

    1
  68. anjin-san says:

    I think we are on a pretty slippery slope here. I was in the hospitality business for some time in my younger days. I worked in trendy clubs, and I also worked in a very old-fashioned, old-time family restaurant. A coffee shop and several very famous places. A broad spectrum of experience. There was a common thread. Aside from unacceptable behavior on the premises, either current or a history of one, everybody got served. Clearly, there are people in our society that would like to return to Jim Crow. Personally, I am very aware that my marriage would have been illegal in my parent’s lifetime.

    3
  69. Just nutha ignint cracker says:

    “We’re really talking about a very narrow exception here.”

    The argument that “this only applies to/affects a few people [who probably should be used to having their rights trampled on anyway]” seems weak and disingenuous in this setting for some reason. I can’t put my finger on why, though.

    3
  70. Gustopher says:

    @James Joyner:

    The Jewish case is particularly problematic in that it’s both, roughly, an ethnicity/identity group and a religious faith. I grant that similar arguments exist for denying a Bar/tmitvah cake and a transition cake.

    When people compare you to the Good Germans, this is what they mean. (I don’t compare you to a Good German, but I’ve seen other people do just that. I think you get too caught up in the abstract and don’t consider the real world implications until they smack you in the face and then have trouble fitting it together.)

    Anyway, at a first degree approximation, the laws in this country treat established religious groups and ethnic groups roughly the same. We give religious groups a few extra rights to practice their faith, but that’s more a matter of the baker not the customer.

    And there are all sorts of asinine religious beliefs out there. We don’t accommodate the religious views of those who think brown folks are the mud people created by the devil without souls — the “No Mud People Bakery” isn’t going to fly.

    Bakers provide a service to the community. People of all stripes celebrate life events with cake. I don’t see why bakers should get to pick and choose which life events in a manner that discriminates against protected classes — and in this case, queer and trans folks are a protected class.

    Whether LGBTetc folks should be a protected class or not (they should) is separate from this case. The Colorado government, in its wisdom, has declared them to be a protected class. I don’t believe they were declared to be a second-class protected class.

    (Were there NIMBYs in Nazi Germany? People who objected not to the death camps themselves, but to the placement of the death camps? People who complained to the local board of whatever about having to clean ash from their car windows? I think there’s a potential for a really dark comedy here that pits some of the worst people in the world against each other)

  71. Just nutha ignint cracker says:

    @Jen: “I still fail to understand how the production of a baked good translates into a lifestyle endorsement, rather than a business transaction.”

    Just my ignint crackerness at work, for sure, but in this case, it think it translates because both parties decided to make lifestyle an issue in the transaction.

    1
  72. MarkedMan says:

    @Beth:

    The Baker chose to sell goods to the public, when he’s doing that, his religious rights are constrained by the rights of the public.

    I’ve been responsible, in whole or in part, for deciding what the fair applications of written policy are. It has made me very cognizant of unintended consequences. James’ example of, “Should a Jewish baker have to decorate a cake to say “Heil Hitler” is getting close to the original lawsuit, and I am as profoundly uncomfortable with laws that say they do. OTOH hand, this case is, as you say, not hard. A Jewish baker, open to the general, public should have to sell their wares to anyone off the street.

  73. Just nutha ignint cracker says:

    @Kylopod: “For now.”

    I think that’s the key phrase. These disputes are multigenerational within the fundamentalist/evangelical communities with evolution going all the way back to before I was born. Seventy-mumble years ago. And to paraphrase Dr. King, the moral arc of the universe bends toward us–at least in our worldview.

    1
  74. MarkedMan says:

    @gVOR08: I wasn’t aware of that in the Scopes trial. Thanks

  75. MarkedMan says:

    @Steven L. Taylor:

    Again, we wouldn’t let the baker to refuse service to a mixed-race couple, even if he claimed that he believed that the Bible forbade their marriage.

    I wouldn’t be so sure. The Liberty University case was basically “Protection against racism vs. Religion”, and it wasn’t all that long ago. If, in this current case, the Republican Justices once again side with the baker, I think it is pretty clear they would side with Liberty University.

  76. MarkedMan says:

    @James Joyner:

    We can certainly conjure up hypotheticals that are harder than this set of facts.

    FWIW, I wasn’t attempting to come up with a harder example. I was striving for an equivalent example, but with an illustrative twist. I would be interested in hearing why you think the examples aren’t equivalent (chef vs baker, I mean)

  77. Mister Bluster says:

    @anjin-san:..illegal marriage

    What did you do? Marry a Dodger fan?

    1
  78. anjin-san says:

    @Mister Bluster: @Mister Bluster:

    What did you do? Marry a Dodger fan?

    Yikes, my dad’s ghost would haunt me if I had done that. But thanks for reminding me to update my photo.

    2
  79. Flat Earth Luddite says:

    @Beth:

    *I like most of the pictures, but the ones of me in a suit make me so sad and I hate looking at them.

    Beth, I’ll be happy to do an anniversary-type reshoot of this and your sweetie, in the outfits of your choice, if you’re ever in town.

    1
  80. HarvardLaw92 says:

    @MarkedMan:

    A Jewish baker, open to the general, public should have to sell their wares to anyone off the street.

    And as a Jew I agree with that sentiment, but is that what is happening here? Is the baker saying “LGBTQ persons are not welcome in my establishment and I will not sell anything to them”, or is the baker saying “I will not contract to produce unique items which explicitly conflict with my beliefs, irrespective of who is asking me to do so”? Is the problem inherent in the purchaser or in the item?

    They are most assuredly not the same scenario. I can’t help but think that we are getting dangerously close here to stretching both the history and the context of public accommodation laws to punish belief, and that can get problematic in a hurry.

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  81. HarvardLaw92 says:

    @MarkedMan:

    And before anyone goes down that road, let’s pose a hair splitting hypothetical (since that seems to be a popular approach above):

    A Jewish baker is asked to produce a custom cake with swastika decorations by a Hindu client. Is he compelled by public accommodation laws to do so? The symbolism carries an entirely different context for the producer (grossly negative) and the buyer (decidedly positive), so whose context is controlling of the encounter?

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  82. drj says:

    @HarvardLaw92:

    Is the problem inherent in the purchaser or in the item?

    The baker will functionally not sell certain items (e.g. wedding cakes) to certain people.

    For instance, it is obviously discriminatory to accept a commission that has the depiction of a heterosexual couple on top of the cake, but to not accept it if there is a same-sex couple.

    In which case the same-sex couple would receive a lesser level of service because they are a same-sex couple. Hence, the purchaser is definitely an issue here.

    But there is a very, very simple solution. If the baker doesn’t want to contribute to the celebration of a same-sex wedding, all he has to do is not to accept commissions for any wedding cake. Nobody gets discriminated against and the baker doesn’t have to create messages that conflict with his beliefs.

    The baker should consider this the price of doing business. In much the same way as he is not allowed to discriminate in his hiring practices. The right to engage in commerce generally comes with strings attached.

    A Jewish baker is asked to produce a custom cake with swastika decorations by a Hindu client.

    If the Jewish baker produces custom cake with other religious symbols, it is an obvious case of discrimination.

    However, as a lawyer you should know that rights are hardly ever absolute. Conflicting rights (e.g., of expression and protection against discrimination) are always balanced against each other. In this case, it could be reasonable to give priority to the baker’s rights. (Contrary to the first case, as I can’t seem to recall an example of the gays systematically murdering 6 million Christians.)

    The Holocaust may be useful for testing the limits of one’s assumptions or beliefs (as you just did), but due to its unique horror it is hardly suitable as a general precedent.

  83. drj says:

    @HarvardLaw92:

    I notice that you significantly edited the comment that I responded to.

  84. James Joyner says:

    @Gustopher:

    Bakers provide a service to the community. People of all stripes celebrate life events with cake. I don’t see why bakers should get to pick and choose which life events in a manner that discriminates against protected classes — and in this case, queer and trans folks are a protected class.

    There’s a balancing at work here. Again, he’s not refusing to sell cakes but rather refusing to perform expression in variance with his avowed religious beliefs. Could he refuse to bake a cake for a Black or interracial couple? No. Could he refuse to make a BLACK LIVES MATTER cake? Or a LOVE IS LOVE cake? I think he could.

    @MarkedMan:

    I would be interested in hearing why you think the examples aren’t equivalent (chef vs baker, I mean)

    Because simply preparing a dish isn’t expressive art. If the trans lawyer had come to this baker and said “I want cake #7 from your catalog,” he would have been obligated to sell her cake #7. Instead, she ordered a custom cake and then told him the purpose of said cake. In his mind, creating a custom cake in that instance constituted an implicit endorsement.

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  85. drj says:

    @James Joyner:

    Could he refuse to bake a cake for a Black or interracial couple? No.

    Please explain why it would be OK to refuse to bake a cake with a same-sex wedding cake topper, but not OK to refuse to make such a cake with a mixed-race wedding cake topper.

    Both sex and race are protected classes.

    What is the difference?

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  86. HelloWorld! says:

    Per Leviticus 19:28, “You shall not make gashes in your flesh for the dead, or incise any marks on yourselves.” If he refused to sell a cake to someone with tattoos would it be viewed by the Supremes the same as refusing to bake a cake for someone who is gay? The important thing here, I think, is how can we exist as a polyamorous society if we allow all these lines to be drawn that restrict even 1 persons right to exist. If you are not going to serve the public, than you should sell your cakes as a private club. Its that simple, then no ones rights are violated.

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  87. HarvardLaw92 says:

    @drj:

    I actually didn’t edit a word. Whether someone else did, I have no idea.

  88. HarvardLaw92 says:

    @drj:

    Again though, we are not discussing selling per se. We are discussing the acceptance of a contract to produce a unique item which serves as a symbol. It is not a generic item, but instead is an unique expression of opinion / belief / sentiment. We are essentially telling this person (who I disagree with, but rights aren’t inherent on whether you or I agree with someone) that he must engage in an act of expression of belief, through the production of iconography, with which he disagrees. If a painter executes original paintings on a commission basis as a business act, must he then accept a commission to depict, say, pornographic imagery to which he objects simply because that is what the client wants? (and don’t go there – you know that I am not equating the two. I’m simply saying that it is not as simple as saying that one side of that proposition is right just because we happen to support their viewpoint).

    They are both right, and they are both wrong, which is the basis of this dilemma.

    We are well beyond public accommodations here, and instead into the intersection between the client’s rights to express their beliefs and the baker’s right to refuse to express beliefs which he disagrees with. It’s a conflict between the same right on equal but opposite sides of an issue, so whose rights rule? The one seeking to express or the one effectively being coerced to express against their will?

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  89. HarvardLaw92 says:

    @drj:

    Both sex and race are protected classes.

    Not in the same way. Race is a suspect class. Neither sex / gender nor sexual orientation are protected as suspect classes. The applicable standard (strict vs. intermediate scrutiny) is different.

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  90. Chip Daniels says:

    The larger point I see here is the Paradox of Tolerance, that is, the stance by conservatives is that trans people by their very existence cannot be tolerated or allowed to function as members of the community.

    Forcing people to tolerate trans people is a compelling societal interest and overrides the baker’s freedom about who he wishes to serve.

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  91. HarvardLaw92 says:

    @drj:

    In this case, it could be reasonable to give priority to the baker’s rights. (Contrary to the first case, as I can’t seem to recall an example of the gays systematically murdering 6 million Christians.)

    Not did I equate the two situations. I simply gave another example of the conflicting intersection between two equal but opposite rights. Why is it reasonable to give priority to the baker’s rights in that instance, when the sentiment being expressed by the client is one of positivity and joy? Are we to accept the viewpoint of the baker here, but the client in this case, simply based on which of those equal, but opposite, viewpoints we happen to prefer? That’s what is happening – you’ve decided that the client is right in one scenario, but the baker is right in the other, based on your own disassociated opinion about their particular viewpoint. Do rights hinge on the popularity of a particular viewpoint?

    I am not staking out turf so much as I am saying that this is a great deal more complex than simply invoking the concept of public accommodations.

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  92. Modulo Myself says:

    I think it seems insane for any person who sells something normal to the public to expect a validation of their beliefs in their customers. There’s simply a difference between a cake depicting an orgy and a regular cake ordered by the guy who is hosting the orgy. Any merchant worried about the latter case is an idiot. If you have these problems with life, you should not go into business or you should become like the soup nazi and make it your thing. The only reason we are talking seriously about this issue is because right-wing homophobic bigots are childish morons, not because there’s a deeper legal meaning about what it means to make a cake.

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  93. drj says:

    @HarvardLaw92:

    We are essentially telling this person […] that he must engage in an act of expression of belief, through the production of iconography, with which he disagrees.

    We are not.

    The baker is free to not offer any wedding cakes to anyone.

    Similarly, if you believe that women belong in the home you should not want to be an HR professional. It comes with the territory.

    As a society, we have decided that in the context of public commerce the expressions of certain discriminatory viewpoints are not permissible. That is (and has been) widely accepted for a long, long time now. Why relitigate this?

    Why is it reasonable to give priority to the baker’s rights in that instance

    Because the circumstances are different. That’s what judges do, right? They issue rulings based on law as well as circumstances. That’s why there can be such a thing as justifiable homicide, for instance. Or why certain depictions of nudity are pornographic while other ones are not.

    Can a same-sex wedding cake topping reasonably be construed as a symbol of hate and mass murder similar to a swastika? No? Why then pretend that these symbols should be legally treated the same?

  94. Chip Daniels says:

    Part of what I was alluding to in my first comment, is that society is not an indifferent and detached observer in this case, so discussing it in rarefied abstract terms isn’t appropriate. The specific circumstances and facts matter.

    Toleration of intrinsic differences such as race or gender identity is a powerful compelling interest.
    The harm to the baker here is negligible but the harm of exclusion is immense.

  95. Gavin says:

    Following on modulo:
    It’s fun to see all the conservative pundit expressions that they think are so snappy [F your feelings, go to your safe space, etc] actually apply only to themselves.

    As always with conservatives, every accusation is a projection. And that old standby.. IOKIYAR.

    My money says nothing from this baker tastes any good and so all he’s got is the performative nonsense to keep from bankrupting.

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  96. Andy says:

    One thing I’d point out is that Scardina and Phillips have a long history. Scardina has contacted Phillips on multiple occasions in person, via phone, and email to lambast Phillips personally and “order” certain types of cakes to test what he will refuse to make. In one case, Scardina posed as a Satanist and wanted a cake for Satan’s birthday. Apparently, there wasn’t enough meat on that for a successful lawsuit, so Scardina tried other strategies before finding this one.

    If it were me, I would have refused to provide any service to Scardina long ago for trollish and arguably harassing behavior, but Phillips has maintained he will serve anyone in his shop, including Scardina, but that he won’t make cakes with certain designs or for certain types of events.

    And that seems to be an important distinction. Phillips did not, even after her harassing behavior, refuse to serve Scardina with a bespoke cake – he refused to make certain types of cakes and cakes for specific occasions. In my view, it’s a stretch to suggest that is, to use Steven’s language, “discrimination against a class of people” because his objection is about the design and purpose of a cake and not about what class of person is ordering it. Phillips has also gone on record that he would refuse to make any cake with a hateful or harassing message, including against the LGBTQ community.

    @HarvardLaw92:

    You are bringing up the points I intended to address, but in a better way.

    Phillips also refuses to make Halloween-themed cakes. One might argue that Wiccans or pagans might want a Halloween cake or even a Halloween-themed wedding cake. By refusing does that mean that Phillips is discriminating against another religion? What if someone wants to have a cake celebrating their abortion, is it discrimination against women to refuse to make a cake celebrating that? What about a Muslim baker who is asked to bake a cake celebrating the religious conversion of someone who converted from Islam to another religion? What if the convert wants the cake to have a picture of the prophet Muhammed with an X over it to signify their break from their former religion? Is the Islamic baker legally required to put aside his religious views because doing so would religiously discriminate against the convert?

    There are lots of hypotheticals that one could come up with if we are going to equate refusal to make cakes for specific types of events or specific purposes or with specific design elements with discrimination against an entire class of people under public accommodation.

    Secondly, on the argument that if someone offers wedding cake services, they have to provide those services to everyone, it seems to me there has to be a limiting principle here. If someone sells custom wedding cakes does that mean that it is illegal for them to ever refuse a client’s request or reject design elements they personally object to? If a baker agrees to make a cake for a gay wedding, but refuses to agree to a design with a certain type of gay iconography, is that discrimination against gay people as a class?

    At the end of the day, I don’t have particularly strong feelings one way or another about this case, and tend to think both sides have some valid points.

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  97. anjin-san says:

    I’d like to hear more about the actual religious objection to transgender folks. Is there some sound Biblical basis? Or is this just “my religion makes it ok to discriminate against people that I don’t like? I asked my wife – a devout Christian who reads the Bible daily – if she knows of a sound religious objection to a transgender identity. Her answer was “nope”…

  98. anjin-san says:

    @Andy:

    Phillips has maintained he will serve anyone in his shop, including Scardina,

    I can’t imagine allowing harassment & personal attacks to go on if that indeed is the case. It’s no way to run a business. You permanently 86 the offending party. Period. That that has not happened makes me think both sides want to keep this thing going.

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  99. HarvardLaw92 says:

    @drj:

    The baker will functionally not sell certain items (e.g. wedding cakes) to certain people

    Again, no. the baker will functionally not sell certain items to anyone. We have to presume that if, say, the heterosexual parent of a homosexual child came in to purchase a cake celebrating their child’s same sex wedding, that the baker would equally refuse to sell them that cake no differently than he would to the child. We also have to presume that the baker would sell standard items in his display case to a gay person no differently than he would a straight person, so it’s a stretch to say that he’s being discriminatory. He’s refusing to engage in what he sees as speech he disagrees with, and we can’t simply say that his right to do so evaporates just because we disagree with his viewpoint. He gets to determine what’s objectionable for himself, and as long as he applies that viewpoint selectivity on an equal basis, he’s not discriminating. After all, is there anyone here who truly believes he would refuse to custom make a straight wedding cake for a homosexual client?

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  100. HarvardLaw92 says:

    @Andy:

    Indeed. The more I read into the history of this matter, the less I felt any sense of solidarity with the supposed victim. She’s on a vendetta and she’s using the courts to carry it out.

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