In Narrow Ruling, Supreme Court Sides With Baker In Same-Sex Wedding Discrimination Case

In an exceedingly narrow ruling, the Supreme Court sided with a Colorado baker who refused to bake a cake for a same-sex wedding reception. However, the ruling did not address the broader issues raised by the case.

In a legally narrow ruling that ended up drawing a 7-2 vote, the Supreme Court ruled today in favor of a Colorado baker who declined to bake a wedding cake for a same-sex couple on the ground that it violated his religious beliefs. However, the ruling itself is narrow and applies largely only to the facts of this particular case rather than establishing any kind of general rule for such claims going forward:

WASHINGTON — The Supreme Court sided with a Colorado baker on Monday in a closely watched case pitting gay rights against claims of religious freedom.

Justice Anthony M. Kennedy, writing for the majority in the 7-2 decision, relied on narrow grounds, saying a state commission had violated the Constitution’s protection of religious freedom in ruling against the baker, Jack Phillips, who had refused to create a custom wedding cake for a gay couple.

“The neutral and respectful consideration to which Phillips was entitled was compromised here,” Justice Kennedy wrote. “The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”

The Supreme Court’s decision, which turned on the commission’s asserted hostility to religion, strongly reaffirmed protections for gay rights and left open the possibility that other cases raising similar issues could be decided differently.

“The outcome of cases like this in other circumstances must await further elaboration in the courts,” Justice Kennedy wrote, “all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer, Samuel A. Alito Jr., Elena Kagan and Neil M. Gorsuch joined the majority opinion. Justice Clarence Thomas voted with the majority but would have adopted broader reasons.

Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, dissented.

Though the case was mostly litigated on free speech grounds, Justice Kennedy’s opinion barely discussed the issue. Instead, he focused on what he said were flaws in the proceedings before the Colorado Civil Rights Commission. Members of the commission, he wrote, had acted with “clear and impermissible hostility” to sincerely held religious beliefs.

One commissioner in particular, Justice Kennedy wrote, had crossed the line in saying that “freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust.”

Justice Kennedy wrote that “this sentiment is inappropriate for a commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law.”

In dissent, Justice Ginsburg said that a few stray remarks were not enough to justify a ruling in Mr. Phillips’s favor.

“What prejudice infected the determinations of the adjudicators in the case before and after the commission?” Justice Ginsburg asked. “The court does not say.”

But Justice Ginsburg said “there is much in the court’s opinion with which I agree,” quoting several passages reaffirming gay-rights protections.

“Colorado law,” Justice Kennedy wrote in one, “can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”

Amy Howe summarizes the opinion at SCOTUSBlog:

The Supreme Court ruled today in favor of Jack Phillips, a Colorado baker who refused to make a custom cake for a same-sex couple because he believed that doing so would violate his religious beliefs. This was one of the most anticipated decisions of the term, and it was relatively narrow: Although Phillips prevailed today, the opinion by Justice Anthony Kennedy rested largely on the majority’s conclusion that the Colorado administrative agency that ruled against Phillips treated him unfairly by being too hostile to his sincere religious beliefs. The opinion seemed to leave open the possibility that, in a future case, a service provider’s sincere religious beliefs might have to yield to the state’s interest in protecting the rights of same-sex couples, and the majority did not rule at all on one of the central arguments in the case – whether compelling Phillips to bake a cake for a same-sex couple would violate his right to freedom of speech.

(…)

Kennedy, the author of some of the court’s most important gay-rights rulings, began by explaining that the case involved a conflict between two important principles. On the one hand, society has recognized that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” and their rights are protected by the Constitution. On the other hand, “the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” But even if those objections are protected, Kennedy explained, the Supreme Court’s precedents make clear that in some cases the right to the free exercise of religion is not absolute and can instead be limited by neutral laws that apply to everyone. It is clear, Kennedy continued, that in at least some scenarios sincerely held religious beliefs can trump such laws – for example, a member of the clergy who objects to same-sex marriage cannot be required to perform such marriages. But at the same time, Kennedy explained, the exception cannot be allowed to swallow the rule, with the result that “a long list” of people would be allowed to refuse to provide services for same-sex marriages.

In this case, Kennedy suggested, Phillips found himself on the horns of a dilemma: Because he regarded his craft as one in which he uses “his artistic skills to make an expressive statement,” making a cake for a same-sex couple would require him to convey a message that is inconsistent with his religious beliefs. This dilemma was further complicated, Kennedy noted, by the “background of legal principles and administration of the law in Colorado at that time”: Colorado did not recognize same-sex marriages, and state law also gave Phillips “some latitude to decline to create specific messages the storekeeper considered offensive.”

But the critical question of when and how Phillips’ right to exercise his religion can be limited had to be determined, Kennedy emphasized, in a proceeding that was not tainted by hostility to religion. Here, Kennedy observed, the “neutral and respectful consideration to which Phillips was entitled was compromised” by comments by members of the Colorado Civil Rights Commission. At one hearing, Kennedy stressed, commissioners repeatedly “endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.” And at a later meeting, Kennedy pointed out, one commissioner “even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.” “This sentiment,” Kennedy admonished, “is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.” Moreover, Kennedy added, the commission’s treatment of Phillips’ religious objections was at odds with its rulings in the cases of bakers who refused to create cakes “with images that conveyed disapproval of same-sex marriage.”

Here, Kennedy wrote, Phillips “was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.” Because he did not have such a proceeding, the court concluded, the commission’s order – which, among other things, required Phillips to sell same-sex couples wedding cakes or anything else that he would sell to opposite-sex couples and mandated remedial training and compliance reports – “must be set aside.”

Perhaps the most important thing to get out of the way here is to discuss what the Court did not rule, and what issues still remain open to being decided in future cases. At least in some of the initial reactions to this decision, I’m noticing that people on one side of this issue or the other are either hailing  for damning the ruling today because of the outcome and that largely mistaken belief that it establishes a general rule that will be applicable to similar cases going forward, and that it means that businesses would be free to discriminate against same-sex couples even in jurisdictions where such discrimination is clearly barred by applicable anti-discrimination laws. Ilya Shapiro at Cato’s @Liberty Blog, for example, seems to come away largely disappointed that the Court did not issue a broader ruling that addressed both the religious liberty and the free speech claims asserted by the baker. On the other side of the ideological divide, one of the best examples of this somewhat over-the-top reaction to the Court’s ruling comes from Ian Millhiser at Think Progress who is I would argue overly hostile to the Court’s opinion because it seems to give special protection to religious objections to generally applicable laws. As German Lopez notes at Vox, this is not what the Court ruled today, and in many respects, the outcome here is based on the specific case that was before the Court and the manner in which the claims were treated by the Colorado Civil Rights Commission. Because of this, the applicability of this ruling going forward is arguably quite limited, and it’s entirely possible that a future case will rule against a similarly situated business owner.

Specifically, the Court did not rule that religious freedom trumps public accommodation laws as a general rule. This would have been a broad ruling not unlike the Court’s previous rulings in cases impacting LGBT rights and other similar issues, and it would have likely meant that future efforts to charge a business operator who refused to provide goods or service for a same-sex wedding ceremony or reception would fail as a matter of law. Such a ruling would have required the Court to reach what seemed as though it was the central issue the case, the question of whether or not a religious liberty or free speech claim can be the basis for a special exception to a generally applicable law.

As I noted in my posts when the Court accepted this case for argument last June and when it heard oral argument in the case in December, on that specific issue the law did not appear to be on the side of the baker at all based primarily by Court rulings in three cases that stretch back nearly thirty years.

In the 1990 case Employment Division v. Smithfor example, the Court ruled against a Native American who tested positive for the use of peyote despite the claim 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. Then, in 2011 in Christian Legal Society v. Martinez, the Court upheld a policy by the University of California Hastings College of Law that barred officially sanctioned student organizations from discriminating based on a prospective member’s status or beliefs. In that case, Kennedy joined in a majority opinion written by Justice Ginsburg and backed by the Court’s liberal wing and filed his own concurrence. In that case, the student organization 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. Finally, just last year in Expressions Hair Design v. Schneiderman 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.” Based on these rulings, a broader ruling by the Court would seem to have likely come out against the baker.

In addition to the religious liberty issue, the Court also declined to address another issue that had been raised by the baker on appeal, namely the argument that creating a wedding cake was a form of expressive, artistic, expression that cannot be compelled pursuant to the First Amendment. This is a similar claim to the one raised by a New Mexico photographer who had declined to provide services to a same-sex couple. In that case, the photographer raised both religious-based objections and an objection based on the argument that photography is an art form protected by the free speech provisions of the First Amendment but that claim was rejected by the trial court and by the New Mexico Supreme Court. The photographer then sought review of the matter in the Supreme Court, but that petition was rejected and the ruling below still stands as the state of the law in New Mexico.

Instead of tackling these broader issues, the Court limited its ruling to the specific case before it and the finding that in issuing the ruling, the Court below, the Colorado Civil Rights Commission, made two fatal mistakes. The first was that it did not give due consideration to the baker’s religious liberty claims, to begin with. Instead, as Kennedy notes in his opinion, the Commission displayed an open hostility toward those beliefs that was inappropriate for what is supposed to be a neutral forum. As noted above one of the members of the Commission essentially equated the baker’s religious beliefs to a defense of slavery or the Holocaust. Justice Kennedy ruled that this was not the kind of neutral consideration that a forum such as the Commission, which it should be noted is composed of political appointees most of whom do not appear to have legal training, should take in cases such as this. Instead, it  showed “a clear and impermissible hostility toward the sincere religious beliefs [of the baker].” Second, and no doubt due to the aforementioned hostility, the Commission failed to properly weigh the baker’s interest in his religious liberty rights against the government interest in enforcing duly enacted and generally applicable laws against discrimination. Had it done so, it’s possible that the outcome of this case would have been different. Essentially, the Court ruled that Colorado can use anti-discrimination laws to protect LGBT citizens, but those laws ”must be applied in a manner that is neutral toward religion.” Since that did not happen here, the Court ruled that the baker’s rights had been violated and the ruling in the case was reversed.

Eugene Volokh notes that the resolution of the broader issue will have to await future cases:

Applying antidiscrimination laws to a baker simply because he violated those laws, the Court said, might be constitutional (depending on whether that violates the Free Speech Clause, a matter on which the majority did not opine). Applying them because you find discrimination generally to be “despicable” would likewise not be impermissible religious discrimination. (Most laws are based on a judgment that the forbidden actions are wrong, and some based on a judgment that the actions are despicable; that does not make them impermissible discrimination against the religious, even if many of those who engage in those actions belong to a particular religion or set of religions.) But applying the laws because you find the defendant’s religious views or statementsto be “despicable” may be impermissible religious discrimination, and 7 Justices so found, based on this statement and several others.

This is a legitimate basis, to be sure, for deciding the case (though Justices Ginsburg and Sotomayor disagreed that such discrimination against the religious was showin this particular case). But it is a basis that will have little effect on other such same-sex wedding service provider cases, especially when government commissioners realize they shouldn’t say more about religion than is necessary to deal with the particular religious objections raised in those cases. (In many such cases, there are religious exemption claims raised under state statutory or constitutional religious exemption regimes, such as state Religious Freedom Restoration Acts, and those require some discussion about whether the claimant’s religious beliefs are sincerely held, and whether the claimant’s beliefs forbid him from doing what the law requires.)

What all of this means, of course, is that it will take future cases that raise facts similar to those raised here to get close to an answer to the question of where the lines between anti-discrimination laws and religious liberty claims should be drawn. Until that time, though, the case does stand as something of an instruction book for forums that will be presented with these cases in the future about how they need to handle the religious liberty claims that a business owner may assert as a defense to a claim of discrimination, whether its based on sexual orientation or any other classification protected by the law. It may well turn out that, in one or more of those future cases, this Court or a future Court will decide that generally speaking, the government’s interest in enforcing these types of laws outweighs the religious liberty claims assert much as it did in the Smith and Christian Legal Society cases noted above. For now, though, the baker has been handed a victory that seems justified by the specific facts of this case.

FILED UNDER: *FEATURED, First Amendment, Law and the Courts, Supreme Court, U.S. Constitution, , ,
Doug Mataconis
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. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Kylopod says:

    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.

    Conservatives tend to hold a relatively restrictive view of the Free Exercise clause whenever it is applied to minority religions. They only begin to complain about incursions on religious freedom when it concerns the majority religion. When Jews or Muslims or Sikhs talk about “religious freedom,” what they usually have in mind is stuff like the right not to be fired for a beard or headcovering. When conservative Christians use the phrase, what they usually mean is the ability not to have to deal with something that personally offends them. My sense is that they have a poor understanding of what real religious discrimination looks like, and they seem unable to process the concept other than as a zero-sum game between themselves and some other group.

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  2. george says:

    Okay, I’m decidedly a non-lawyer. But I’m gathering from what you and others have written, that the SC simply said the gov’t isn’t allowed to be biased, rather than making a judgement about gay rights. That’s probably a good thing. For every time that the gov’t is openly biased towards minority rights, its been against them a hundred times.

    Basically, it seems that all Colorado has to do is to apply the law without the bias.

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  3. Kathy says:

    @Kylopod:

    When conservative Christians use the phrase, what they usually mean is the ability not to have to deal with something that personally offends them.

    I think they mean “Christian Supremacy.” The idea that others have to conform to their religion.

    Fortunately the courts have to take a different approach. Therefore all religions are equal before the law. And that’s why I absolutely love the activism, legal and otherwise, by the Satanic Temple (oh, it’s just an expression; it’s not really a temple 😛 ).

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  4. Tony W says:

    Of course, Trump Jr.’s response was to quip that 7-2 was not a narrow ruling.

    The nut doesn’t fall far from the tree.

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  5. Daryl and his brother Darryl says:

    The SCOTUS decided for the baker…but were cream-puffs when it came to ruling on religion or gay rights.

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  6. grumpy realist says:

    @Tony W: Trump Jr. thus showing a lack of knowledge of the term “narrow ruling.”

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  7. Kylopod says:

    @Kathy:

    I think they mean “Christian Supremacy.” The idea that others have to conform to their religion.

    That’s exactly what they mean in effect–and it’s a familiar pattern in which they fall back on the language and trappings of liberalism once they lose the battle of outright stopping whatever it is they oppose. Think of the way creationists first banned evolution from the classroom, then after that strategy got thrown out by the courts, they shifted to advocating “equal time” for evolution and creation, in which they cast themselves as the champions of free expression.

    But it takes a particularly perverse logic to look at a policy that objectively expands freedom and define it as a threat to freedom. That’s what opponents of SSM were doing from the very beginning. For instance, in 2016 Roy Moore claimed that the Obergefell decision “mandates submission in violation of religious conscience.” In fact the decision mandates nothing except that some people accept and adjust to other people’s ability to do something they previously were unable to do. It’s like defining a law against censorship as a reduction in people’s freedom not to be exposed to material that offends them.

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  8. Todd says:

    I support gay rights, but I always had a hard time trying to see what the actual harm to the plaintiff was in this case. A cake is not a necessity, and there are plenty of places to have one made. I could very well be wrong, but this always stuck me as a complaint in search of a defendant.

    Now if the SCOTUS had taken up this case https://www.nbcnews.com/news/us-news/supreme-court-declines-hear-pharmacy-s-religious-objections-case-n600261 (about pharmacies) and ruled in favor of a religious objection, that would have been a big deal.

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  9. Todd says:

    The worst thing about this ruling is how it will be misinterpreted by religious conservatives. I don’t think it would be going out on a limb to predict that there will now be more overt discrimination (of the type that may actually be struck down in the future) simply because religious business owners will think that they were just given permission to do so.

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  10. @george:

    Basically, yes.

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  11. Kathy says:

    @Kylopod:

    It’s like defining a law against censorship as a reduction in people’s freedom not to be exposed to material that offends them.

    We saw recently they’re still riding the porn hobby horse.

    I wonder if I could found the Church of the Holy Anti-Christ, and make it a tenet that my adherents should refuse to serve Christians in any way. Sincerely held, and meticulously spelled out, religious beliefs.

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  12. Kylopod says:

    @Todd: Would you support a baker’s “right” to turn away an interracial couple or a non-Christian couple?

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  13. Mikey says:

    @Kylopod:

    My sense is that they have a poor understanding of what real religious discrimination looks like, and they seem unable to process the concept other than as a zero-sum game between themselves and some other group.

    To the privileged, equality usually feels like discrimination.

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  14. gVOR08 says:

    Paul Campos at LGM goes to the heart of the matter.

    Anthony Kennedy’s religion clause jurisprudence is based on two principles:
    (1) The government must remain strictly neutral towards religion.
    (2) Religious belief is not a valid basis for claiming exemptions from laws of general applicability.
    These two principles contradict each other on their face.

    Kennedy tries to wriggle out of this conundrum by claiming that, although religious belief does not excuse one from having to confirm with laws of general applicability, the application of this principle by the government can’t be based on “hostility” to the belief in question.

    But again, this idea is simply empty. Obviously any government action that refuses to grant a religious exemption to adherents of particular religion in regard to the operation of the law is in this respect “hostile” to that religion by definition, and conversely not “hostile” to religions whose beliefs don’t put their adherents in this particular bind.

    As more and more people check “none” as their religious preference, this privileging of certain religious beliefs is going to start looking sillier and sillier. Kennedy has dug a hole and it would be entertaining to watch him trying to dig out, if it weren’t impacting real people’s lives.

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  15. Todd says:

    @Kylopod: I think if we actually read Doug’s article (and those he linked) as well as Kagan’s concurrence https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf it should be obvious that this ruling wasn’t actually about answering that type of question. (note: my first comment was a bit irrelevant in that sense too).

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  16. Scott says:

    All in all this is pretty darn narrow. The usual Christian conservatives think this is a big deal. The real problem will come if there is a broad religious “freedom” ruling. There are a lot of “sincerely held beliefs” out there that are not Christian which could wreck havoc in many different areas. And the number of religions are multiplying like crazy. The army just allowed a guy following Norse to grow a beard. And the VA list of headstone emblems is about 67 (including the above Hammer of Thor).

    Good times.

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  17. Mister Bluster says:

    A cake is not a necessity, and there are plenty of places to have one made.

    This is the kind of lame ass excuse my wheelchair bound, quadriplegic friend Joe had to put up with when he was a very committed activist for access to public accommodations in San Francisco in the 70’s and later.
    “You can get to most of the storefronts in the plaza can’t you?”
    “There’s a coffee shop ten blocks up that hill that has a wheelchair ramp, why don’t you go over there.”
    “We don’t have a table that you can fit at. Please leave.” (I was with him to hear that one.)

    Next time the butcher, the baker or the candlestick maker or some other loser refuses service to earn points with Jesus take a page from Joe’s Crip playbook as he called it and occupy the place.

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  18. Guarneri says:

    So hard to get too exorcised, for as Todd basically said, this is a first world problem. Get your damned cake 1/10 of a mile down the road or whatever.

    I really wonder what would happen on the left, if a coffee house called Christine’s Coffee Clatch walked into a coffee cup maker and said, “I want you to print those cups with BIG RED K’s in front of each word?”

    No need to answer. You have no consistent principles.

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  19. An Interested Party says:

    I support gay rights, but I always had a hard time trying to see what the actual harm to the plaintiff was in this case. A cake is not a necessity, and there are plenty of places to have one made. I could very well be wrong, but this always stuck me as a complaint in search of a defendant.

    You later mention how this comment is irrelevant…now that’s true in this particular case because of the ruling, but what about the next case of this type that comes before the Supreme Court? Would that be a complaint in search of a defendant too? What does it mean if gay people can get married but can be denied services related to that marriage simply because they’re gay? Sounds a bit like second-class citizenship…and while I’m sure that Neanderthals like Gorsuch and Thomas would be happy with that, that sure does look like some people would be denied their constitutional rights…

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  20. KM says:

    @Todd :

    A cake is not a necessity, and there are plenty of places to have one made.

    Not to be rude, but who the hell are you to decide what’s a necessity at someone else’s wedding? It’s absolutely condensing to tell someone that a perfectly normal and ubiquitous social aspect of an important relationship milestone – ie the cake – is something they can live without. What’s next – not selling flowers for gay funerals since they’re “not necessary” to be buried?

    The “you can go somewhere else” BS assumes there *IS* somewhere else to go. Depending on where you live, there may not be somewhere else for hundreds of miles – it’s not like there’s dozens of bakeries in small towns, you know. Plus there’s no guarantee that guy won’t say the same thing!! Proponents know that and are counting on it. It’s a complete cop-out and we’ve seen that conservatives freak out when the logic gets applied to them. Remember Starbucks vs open-carry?

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  21. An Interested Party says:

    Could someone rescue my comment from the spam filter? Thanks…

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  22. KM says:

    @Guarneri:
    Listen city boy, not everybody has a bakery every block. Some towns don’t have any at all and make do with what the chain stores sell. Why are you so dismissive of rural gay Americans, hmmm?

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  23. Gustopher says:

    @Guarneri: Is that the talking point of the day? That we need to be tolerant to the KKK?

    Good fvcking lord…

    If you cannot figure out why gays and the KKK are different, you’re being willfully stupid.

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  24. Grumpy realist says:

    @Gustopher: well, this is Drew, the supposed Great Mind of Business who never demonstrates any big successes in any of his areas…

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  25. Andy says:

    Volokh’s three pieces on this are all quite good IMO.

    Also as a non-lawyer, it seems to me that there are two things in play:
    – The government must make decisions without bias – this seems pretty obvious and I think the argument that the Colorado Civil Rights Commision displayed unconstitutional bias in its decisionmaking is a compelling one.
    – It seems to me future cases will hinge on the reasons that people refuse service. This ruling indicates that refusal based on personal offense is perfectly fine, but a refusal based on the status of a customer (a religious or gay person) is not. I imagine that proving intent in future cases will be very difficult.

    Also, it’s really interesting how William Jack’s efforts were so decisive in this case. I think that going forward, activists will use such methods to buttress future court cases.

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  26. Mister Bluster says:

    Common Errors in English Usage:..coffee clatch

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  27. MarkedMan says:

    @Todd:

    A cake is not a necessity, and there are plenty of places to have one made.

    Hmm. So “Separate But Equal” accommodations are acceptable for public businesses? “Hello, 1960? This is a collect call from 2018 for the Woolworth’s Lunch Counter…”

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  28. Franklin says:

    @Tony W: Did he really? What a maroon.

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  29. Franklin says:

    @Guarneri: If there was a law that you couldn’t discriminate against racists, you might be close to an analogy. But there isn’t. In this case, there was a law against discriminating against gay people. Try to keep up with at least the very basics.

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  30. Todd says:

    So it appears that my first instinct (on twitter) to just not comment on this issue at all, as it’s not really a high priority on my personal radar, and thus whatever I said was bound to be “wrong” in one way or another. I probably should have followed that instinct here too. 🙂

    That said, this is also an example of how everything on the Internet gets blown out of proportion. I am an agnostic atheist (I’m pretty sure there’s not a god, but I’m not going to be a dick about it) who supports (and has for my entire adult life) gay rights for marriage, employment, housing, etc. I simply don’t see a wedding cake as the right mountain to fight this sort of court battle on.

    If that makes me “insensitive” on the Internet, so be it.

    I understand the importance of the concept of anybody being denied service in a big picture sense. But taken in isolation, it (a wedding cake from one specific baker) is just not that big a deal (IMO). I always wonder, what if the baker had simply just said he was too busy and couldn’t complete their order? Or maybe he could say (without elaborating) that he didn’t think he’d be able to come up with the design they wanted? In the absence of the baker specifically stating his religious objection, the couple likely would have just gone to a different baker with little complaint … as happens all the time, to any of us who go out shopping for specialty type items.

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  31. Mister Bluster says:

    …what if the baker had simply just said he was too busy and couldn’t complete their order? Or maybe he could say (without elaborating) that he didn’t think he’d be able to come up with the design they wanted? In the absence of the baker specifically stating his religious objection, the couple likely would have just gone to a different baker with little complaint …

    You should start a support group for Christian Cake Makers. I think you can provide them with a guilt free technique to avoid future lawsuits.
    If they inquire about your credentials just tell them you are a Free Thinker. That should keep them confused long enough for their checks to clear.

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  32. KM says:

    @Todd:

    I simply don’t see a wedding cake as the right mountain to fight this sort of court battle on.

    Because it’s not just the cake. Flowers, venues, rentals, pictures – all of them have come up in the last few years and all using the same excuse. At this point, there’s virtually nothing about SSM ceremonies that they haven’t tried to deny to someone under the flimsiest of excuses. I wasn’t kidding about the flowers at the funeral either; I fully expect to hear about a florist deciding they can’t sell flowers to gays for a memorial service on religious grounds any day now. After all, it’s “art” for a gay person (aka sinner in their eyes) in a religious ceremony at a church so why in the world would it be any different?

    The problem with conceding ground is you have to be damn sure it’s not ground you need and can afford to lose. Now that they think they have a win under the belt, watch this kind of thing increase. Much like with abortion, conservatives will whittle away at a legal right they don’t like and others like you will sigh about it not being the right hill to die on. If you wait too long, the hill you die on is the one you cornered yourself on-top of with no retreat and no allies to save you. I’d rather fight a small fight then have to claw back years of lost rights and dignities.

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  33. An Interested Party says:

    I simply don’t see a wedding cake as the right mountain to fight this sort of court battle on.

    And what would be? Housing discrimination? Employment discrimination? Adoption discrimination? I’m sure to a lot of people this cake issue seems like nothing, buy why should gay people be second-class citizens, entitled to get married but then allowed to be discriminated against with everything involving getting married…

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  34. Kylopod says:

    When the SCOTUS in 1983 upheld the denial of tax-exemption to Bob Jones U. for its ban on interracial dating, Jerry Falwell called the decision a “blow against religious liberty.”

    This is the real litmus test: I believe that anyone who sides with the bakers, florists, etc. in these cases should have to answer the question of who they’d side with legally if it were an interracial couple being denied service. I have never seen the bakers’ defenders seriously address this question. Without exception, they either swat the question away or they get offended by it. But I don’t intend it as an attack. I’m not saying the defenders are opposed to interracial relationships. All I’m saying is that, from a legal and constitutional perspective, I literally don’t see any difference at all between refusing service to a same-sex couple because it conflicts with your religious beliefs, and refusing service to an interracial couple because it conflicts with your religious beliefs. If you side with one, you should side with the other. If you don’t, you don’t. Otherwise, you’re being inconsistent.

    When the Kim Davis case was going on, Ted Cruz was asked whether he’d defend a county clerk’s right to refuse to marry an interracial couple. He just curtly replied “There’s no religious backing for that.” Once you start declaring which beliefs have “religious backing” and which don’t, you aren’t talking about freedom of religion. Even if you don’t believe the Bible advocates the separation of the races (and let me be clear, I most certainly don’t), it is a fact that many people do hold that belief, and from a constitutional perspective, that’s all that matters. American law has no business deciding which religious beliefs are valid and which aren’t. As long as it’s a part of someone’s religious beliefs, that person has the right to their beliefs–within the normal limitations that have always been placed around such rights. The relevant question isn’t whether the belief has “religious backing”–a question no US court has the authority to settle–but whether it interferes with someone else’s rights. But Ted Cruz and others seem to have decided that freedom of religion is virtually unlimited as long as it’s a belief they happen to approve of–a complete distortion of the concept of freedom of worship.

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  35. michilines says:

    @Tony W: This was all over talk radio this morning. My local wingnut got schooled about the narrow ruling not being about the number of votes and moved on to Bill Clinton of course.

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  36. Daryl and his brother Darryl says:

    RIP Dwight Clark.
    The Catch…

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  37. Fergus says:

    7-2 is a narrow ruling in your viewpoint? Tell us were you a math major at Amherst or a pyshics major at Columbia?

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  38. Andy says:

    @Kylopod:

    I literally don’t see any difference at all between refusing service to a same-sex couple because it conflicts with your religious beliefs, and refusing service to an interracial couple because it conflicts with your religious beliefs.

    The obvious answer is that opposition to same-sex marriage is a long-standing religious doctrine that goes back centuries and across, until recently, all the various flavors of Christianity as well as most (if not all) of the world’s other major religions. It is based around the notion of not just a material/legal union, but a spiritual union as God intended for the first two people – a man and a woman. Other religions take similar views.

    By contrast, opposition to interracial marriage was never a recognized religious doctrine outside of the racist communities that used it as an excuse to maintain a racist social order. In other words, the opposition to interracial marriage isn’t religious-based at all, it’s simply an attempt by racists to use religion to validate their pre-existing racism.

    Now, I’m a supporter of gay marriage, but I also realize there is no way to convince many devoutly religious people (and this isn’t just Christians) when it comes to the spiritual component of marriage.

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  39. MBunge says:

    The most interesting thing about this decision is that the Freakin’ Supreme Court of the United States has just called out the Colorado Civil Rights Commission for blatant anti-Christian bigotry. The way they avoid ruling on the bigger issues of religious freedom vs. public accommodation is by stating that the Commission’s behavior in this matter was so egregious that there’s no need and, implicitly, deciding to wait for another case where one of the parties isn’t so obviously in the wrong.

    And what’s interesting is the Justices treating the bias of the Commission as so overt and obvious when I can’t recall a SINGLE story in the mainstream media that even vaguely referenced either the existence of or evidence for such bias. Maybe there have been a few here and there but the overwhelming majority of mainstream coverage of this case completely ignored/whitewashed the open hostility upon which the Court based its ruling.

    What a massive failure of both journalism and basic citizenship.

    Mike

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  40. James Joyner says:

    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?

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  41. @Fergus:

    Did you take time to ready the post?

    If you did you’d understand that the reason this is a narrow ruling is that the court essentially limited its ruling to the facts of this specific case rather than establish a general rule that would apply to similar cases going forward. In his opinion, Justice Kennedy made it clear that the reason for holding was due to the fact that the baker ‘s religious liberty claim was not given their proper deference and due consideration that the forum should have given to them. Instead, the record below is replete with statements by the members of the Colorado Civil Rights Commission (who are political appointees without specific legal training like a Judge would have) that were openly hostile to the baker’s arguments even before they had issued their ruling. Had the forum given those beliefs that deference and still ruled against the baker, it’s entirely possible, indeed probable that the outcome would have been different. Justice Kennedy makes this clear in his opinion and states that the Court’s ruling does not preclude the possibility that a vendor in a future case could not end up on the losing side of the argument. Therefore, the ruling was legally narrow and my headline and characterization of the ruling are entirely accurate.

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  42. @James Joyner:

    My problem with the narrow ruling here is Why take the case then?

    It’s often the case that the Court doesn’t always know how it will ultimately rule in a case when it takes a case for oral argument. That’s why, sometimes, you will see the Court dismiss a case as “improvidently granted” after it has had the chance to review the briefs filed in the case. In other cases, the briefing reveals a procedural flaw in the case that wasn’t apparent from the initial petition for review, thus making it appropriate if not necessary for the Court to punt the case back to the lower courts for further action. In this case, I suspect the narrow ruling was the result of the discussions the Justices had after the case was argued.

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  43. @MBunge:

    If you read the opinion you’d note that Justice Kennedy quoted directly from the record below, specifically from the transcript(s) of the hearing before the CCRC.

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  44. TM01 says:

    @Kylopod:

    Would you support a baker’s “right” to turn away an interracial couple or a non-Christian couple?

    I would, when it came to the exercise of his art.

    I would support a Muslim baker’s right to refuse to make an Easter cake celebrating the rise of Christ, and of a gay baker to make a cake stating marriage is between one man and one woman, and of a Christian baker to not make a Halloween cake.

    Obviously, I hope, public accommodation is an entirely different subject.

    One can, or should be able to, refuse to enter into a contract with someone for any reason.

    I take it that most here would force every business to accept any client that walks in the door.

    Does that apply to lawyers? Does the ACLU now need to accept every free speech case that someone brings to them, whether they agree with said speech or not (because they’ve said they will no longer defend “offensive” speech)?

    I guess the lesson is to just never state your reasons for refusing a contract.

    Which I suppose is really all the Left wants really: for all dissenters to just STFU.

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  45. TM01 says:

    The Lesson for the Left here:
    Hide your anti Christian bigotry next time.

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  46. Kylopod says:

    @Andy:

    In other words, the opposition to interracial marriage isn’t religious-based at all, it’s simply an attempt by racists to use religion to validate their pre-existing racism.

    Are you really going to use that criteria for what religious beliefs should be constitutionally recognized? Plenty of religious doctrines could be described as confirming some preexisting belief that wasn’t religious in origin; indeed that describes much of the history of religion.

    The only relevant question from a constitutional perspective is: are there religious people who hold such a belief? The simple fact, in the case of interracial relationships, is that there are. Bob Jones held that the Tower of Babel story meant that God mandated the separation of the races. Again, I need to be clear that I think this interpretation is utterly absurd. (Indeed, Numbers 12:1 seems to imply that Moses was married to an Ethiopian woman–a verse that racist religionists spent centuries trying to explain away.) On the other hand, racist readings of the Bible did not start with the Antebellum South; they pretty much go back to the notion, which arose early in the first millennium CE, that Ham’s son was cursed with black skin and became the progenitor of the African race.

    In the context of today’s debate, I think the distinction between opposing SSM and opposing interracial marriage is mostly about the fact that the latter is at present a far more deep-seated taboo in our culture.

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  47. Kylopod says:

    @TM01:

    @Kylopod:

    Would you support a baker’s “right” to turn away an interracial couple or a non-Christian couple?

    I would, when it came to the exercise of his art.

    Thank you. At least you’re being consistent on the matter in a way that virtually none of the conservative politicians and pundits are.

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  48. Mikey says:

    @Todd:

    But taken in isolation

    If only discrimination actually happened that way.

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  49. Daryl and his brother Darryl says:

    @Fergus:

    7-2 is a narrow ruling in your viewpoint?

    So you are about as smart as President Dennison’s son, Fredo.

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  50. @Daryl and his brother Darryl:

    The Trump Family is a family of Fredos.

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  51. Daryl and his brother Darryl says:

    @TM01:

    I would, when it came to the exercise of his art.

    A guy running a storefront business accepting walk-in traffic is not an “artist” doing commissioned work. Holy aggrandizement, Batman. This bigoted zealot is in the business of public accommodation. Open for business in America means open to all, at least it used to. If you were right we would be right back to lunch counters and drinking fountains for whites only; yes, i know that’s what you would like. Religion, as it is a belief in nothing but myth and magic (prove to me it is not), is not an excuse to discriminate.
    It’s too bad the CO Comission f’ed up and let this ignorant clown off the hook.

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  52. KM says:

    @TM01:

    The Lesson for the Left here:
    Hide your anti Christian bigotry next time.

    Some of us are Christian and proud of it, idiot. How about you hide your religious bigotry that Christian can’t be liberals? Or do you just assume that liberal’s Christian faith is somehow not real or not as justified as your own?

    I’m absolutely appalled that my faith is being used to deny others simple things. Christ NEVER excluded anyone, especially those considered sinners. He would absolutely NOT approve of turning someone away over a damn pastry because you consider them living in sin. He would tell you *everyone* has sinned and you have no right to judge the splinter in their eye while the log’s still in yours. Christ commanded us to “All things whatsoever ye would that men should do to you, do ye even so to them.” Then on top of watching my faith be used to cut out others for no reason that people that another’s sin is somehow worse then their own, people like you turn around and sneer that it must be because we hate Christians.

    Like the only kind of faith that matters is your own. I’d have made the same call as the commission and gone to church with a clear conscious.

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  53. Andy says:

    @Kylopod:

    Are you really going to use that criteria for what religious beliefs should be constitutionally recognized?

    Rereading your post, I see now you were only talking about the legal aspect. As a non-lawyer, my understanding is that accommodation of religious beliefs when they conflict with anti-discrimination laws must pass some kind of reasonableness test. In that case, it really depends on the situation.

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  54. KM says:

    @Kylopod:

    Interestingly, the Church’s obsession with marriage came later in the game. The idea that the Church had to sanction marriage is old but the actual follow through wasn’t enforced till a couple of centuries later. Early Christianity was a political and economic movement as much a religious one and thus didn’t particularly care about things like who was marrying whom. It wasn’t until they became the premiere social institution and began to conquer the world that details became important. It’s why trying to find Biblical justifications for things today are so hard – it just wasn’t a concern back then. Marriage was a legal contract to ensure legitimate heirs to pass property to so all the laws back then were geared towards those concerns.

    This is a case of applying modern sensibilities out of context. To the early Church, SSM would have been as inconceivable as a bastard legally inheriting property or a mamzer being allowed to marry whomever they choose – 404 error, not found. Ridiculous to us because modern marriage is not the same creature and thus doesn’t have the same worries.

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  55. Andy says:

    @Doug Mataconis:

    Instead, the record below is replete with statements by the members of the Colorado Civil Rights Commission (who are political appointees without specific legal training like a Judge would have) that were openly hostile to the baker’s arguments even before they had issued their ruling.

    I didn’t realize they were political appointees. To me, that’s a recipe for biased decisions and pushing agendas which explains why this commission acted in an uneven and biased manner. Given the authority these commissions wield, I think it would be better if they were professionalized.

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  56. george says:

    @TM01:

    I would support a Muslim baker’s right to refuse to make an Easter cake celebrating the rise of Christ, and of a gay baker to make a cake stating marriage is between one man and one woman, and of a Christian baker to not make a Halloween cake.

    Obviously, I hope, public accommodation is an entirely different subject.

    One can, or should be able to, refuse to enter into a contract with someone for any reason.

    I take it that most here would force every business to accept any client that walks in the door.

    Does that apply to lawyers? Does the ACLU now need to accept every free speech case that someone brings to them, whether they agree with said speech or not (because they’ve said they will no longer defend “offensive” speech)?

    I guess the lesson is to just never state your reasons for refusing a contract.

    That’s actually an interesting question. What are the allowable reasons for not accepting a contract (whether a baker, a musician, an artist, a lawyer, an engineer etc). Not being a lawyer, I have no idea, but in practice engineering firms will turn down contracts just on a gut feel (ie don’t trust the person offering the contract, typically because of their professional reputation), and I’ve never heard of legal problems from doing so.

    So perhaps your cynical reading of it is correct – you can refuse anything so long as your given reason is acceptable. So while a baker might in fact be forced to make a pro-KKK cake, they could probably come up with an acceptable reason for not doing so.

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  57. Just nutha... says:

    @KM: Beyond the issues you raise is an even more elemental question that we no longer consider: exactly how many young men and women had any control over choosing who they married in most ancient societies?

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  58. wr says:

    @Guarneri: “No need to answer. You have no consistent principles.”

    You might be right — if the case in question concerned a baker being asked to bake a cake decorated with obscene images of men having sex with each other. But of course that isn’t the case — the baker refused to do business with people because he disapproved of their private lives.

    The equivalent would be a KKK member going into your fictional store and asking for cups to be made that said “We have great coffee.”

    I now return you to your daily period of conservative self-pity.

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  59. An Interested Party says:

    The Lesson for the Left here:
    Hide your anti Christian bigotry next time.

    The Lesson for the Right here:
    Hide your homophobia next time.

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  60. Mister Bluster says:

    Hide your homophobia next time

    They can’t. They are too proud of their execrable theology!

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  61. KM says:

    @george:

    So while a baker might in fact be forced to make a pro-KKK cake, they could probably come up with an acceptable reason for not doing so.

    This happens every minute of every day. Don’t want to work with a customer? Find a polite excuse not to. Notice that the argument liberals are making isn’t that everyone must take every job any customer demands – that’s the strawman conservatives have built out of the point that you can’t refuse people for discriminatory reasons. You can absolutely refuse the KKK order but you can’t tell them it’s because it’s against your morals. Same goes for the baker as in he literally made this a federal case because he *had* to drag his faith into it. I can think of 10 reasons off the top of my head that would have passed muster, not offended anyone and saved him face, faith and financial consequences. You can absolutely hold onto your morals and not be an offensive and discriminatory person – hell, this guy pointed out he sells them pastries all the times so he’s clearly reconciled the two concepts somewhere!

    The problem is lately conservatives don’t feel trying to do that small bit of social jujitsu. They can’t be bothered with social niceties or polite cover anymore. It’s straight up “I don’t want to do this because my personal belief or feelings about this is X”. It’s snowflakes in action – the world must conform to their *personal* worldview, damn the rest of us. He could have saved everyone a whole lot of trouble because he had to use Jesus as an excuse instead of having a “booked calendar”.

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  62. James Joyner says:

    @Daryl and his brother Darryl: @wr: I’m not as up on Con Law as I was 15 years ago, so the needle may have moved. It’s abundantly clear, though, that a shop that sells ready-made cakes can’t refuse to sell on the basis of race, sex, religion, etc. If the baker in question were refusing to sell ready-made cakes to gays, this wouldn’t even be an interesting question. Ditto, I think, if someone came in to order Cake #17 from the bakery catalog. I think it’s possible, though, that being forced to write “Congratulations Adam and Steve on the occasion of your wedding” on some such might be something to which religious objections are permissible, since it’s performative and carries with it an implied endorsement in a way that simply selling a ready-made cake doesn’t.

    I more-or-less agreed with the reasoning in Hobby Lobby. My objection was that, once the business went from a mom-and-pop to a national franchise—indeed, long before that—-the personal religious objections of the owner become less compelling. Typically, once a business reaches a certain size (50 employees, maybe?) it loses some of the rights that attach to an individual.

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  63. george says:

    @KM:

    You can absolutely refuse the KKK order but you can’t tell them it’s because it’s against your morals.

    Yup, as I said, that’s what I thought was the case. However, I was asking if that’s actually legally true, or just what a non-lawyer like myself assumed to be true. As I said, in engineering its pretty common to refuse contracts on gut feelings (ie don’t trust the person), but I don’t think many (if any) engineers would give that as the official reason . Thought truth be told, often there’s no reason given – its often just a “not interested, thanks for considering us”. As far as I know, there’s no need to justify refusing a contract offer, any more than there would be in refusing offered employment of any kind.

    Which I’d guess is true for most contracts by most professions.

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  64. Kylopod says:

    @KM: It’s interesting you bring up the word “snowflake.” That’s part of what I find ironic about all this: it’s the left that always gets tarred with the “politically correct” brush, even though there are many areas in which it is the right crying about lack of sensitivity–and still somehow implying they’re the victims of suppression. Despite the apparent inconsistency, I fear they’re winning the narrative even as they lose most of the legal battles. Regardless of the ultimate outcome of the bakers-and-florists matter, they do seem to have convinced a lot of people that they’ve raised serious concerns over religious freedom, when the reality is that they’re just fighting a cultural battle against the increasing acceptance of groups they abhor, and the legal arguments are just a pretext.

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  65. DrDaveT says:

    @James Joyner:

    Typically, once a business reaches a certain size (50 employees, maybe?) it loses some of the rights that attach to an individual.

    How about, when it becomes a corporation or LLC instead of a sole proprietorship?

    On what basis do you defend the idea that you can simultaneously get the benefits of not being an individual (for purposes of liability), but retain the benefits of being an individual (for purposes of imposing your religion on your employees)?

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  66. James Joyner says:

    @DrDaveT:

    On what basis do you defend the idea that you can simultaneously get the benefits of not being an individual (for purposes of liability), but retain the benefits of being an individual (for purposes of imposing your religion on your employees)?

    We offer people who start businesses certain legal protections to encourage them to start businesses. An LLC is, by definition, a hybrid that’s part corporation and part individual.

    I don’t think starting a business should take away one’s First Amendment rights, especially in terms of performative speech. But Hobby Lobby, for example, isn’t anything like a mom and pop. I don’t know exactly where that line is but there are countless statutes that set size limitations of that sort—once a business gets to a certain number of employees, it has to comply with, say, the Americans with Disabilities Act and various OSHA regulations from which a mom and pop is exempted.

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