Supreme Court To Hear Appeal Of Baker Who Refused To Bake Cake For Same-Sex Wedding

The Supreme Court has accepted the appeal of a Colorado baker in a case that will determine if claims of religious liberty and free expression outweigh the application of generally applicable laws against discrimination.

Gay Marriage Wedding Cake Two Women

In addition to the decisions it issued yesterday dealing with President Trump’s Muslim Travel Ban, it’s opinion in a  major case on the First Amendment and religion, and the decision to decline to hear yet another Second Amendment case, the Supreme Court also decided to take up a case dealing with a baker in Colorado who declined to bake a cake for a same-sex wedding reception, claiming that to do so would violate his First Amendment rights, specifically the right to freely exercise his religion:

WASHINGTON — The Supreme Court agreed on Monday to hear an appeal from a Colorado baker with religious objections to same-sex marriage who had lost a discrimination case for refusing to create a cake to celebrate such a union.

The case will be a major test of a clash between laws that ban businesses open to the public from discriminating based on sexual orientation and claims of religious freedom. Around the nation, businesses like bakeries, florists and photography studios have said, so far with little success, that forcing them to serve gay couples violates their constitutional rights.

The Supreme Court’s decision, expected next year, will again take the justices into a heated battle in the culture wars. On one side are gay and lesbian couples who say they are entitled to equal treatment from businesses that choose to serve the general public. On the other are religious people and companies who say the government should not force them to choose between the requirements of their faiths and their livelihoods.

In a series of decisions culminating in its 2015 ruling establishing a constitutional right to same-sex marriage, the Supreme Court has consistently ruled in favor of gay rights. But it has also said that businesses run on religious principles may sometimes be exempted from generally applicable laws, as when it ruled in 2014 that some companies could not be required to provide free contraceptive coverage for their female workers.

The new case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111, started in 2012, when the baker, Jack Phillips, an owner of Masterpiece Cakeshop in Lakewood, Colo., refused to create a cake for the wedding reception of David Mullins and Charlie Craig, who were planning to marry in Massachusetts. The couple filed discrimination charges, and they won before a civil rights commission and in the courts.

“This has always been about more than a cake,” Mr. Mullins said. “Businesses should not be allowed to violate the law and discriminate against us because of who we are and who we love.”

Mr. Phillips, who calls himself a cake artist, argued that two parts of the First Amendment — its protections for free expression and religious freedom — overrode a Colorado anti-discrimination law and allowed him to refuse to create a custom wedding cake.

David Cortman, one of Mr. Phillips’s lawyers, said the case concerned fundamental rights. “Every American should be free to choose which art they will create and which art they won’t create without fear of being unjustly punished by the government,” he said.

In 2015, a Colorado appeals court ruled against Mr. Phillips. “Masterpiece does not convey a message supporting same-sex marriages merely by abiding by the law and serving its customers equally,” the court said.

In a Supreme Court brief, Mr. Phillips’s lawyers said “he is happy to create other items for gay and lesbian clients.” But his faith requires him, they said, “to use his artistic talents to promote only messages that align with his religious beliefs.”

“Thus,” the brief said, “he declines lucrative business by not creating goods that contain alcohol or cakes celebrating Halloween and other messages his faith prohibits, such as racism, atheism, and any marriage not between one man and one woman.”

In response, the couple’s lawyer wrote that “it is no answer to say that Mullins and Craig could shop somewhere else for their wedding cake, just as it was no answer in 1966 to say that African-American customers could eat at another restaurant.”

On some level, it’s surprising that the Court even agreed to hear the appeal in this case. As noted above, it declined to review the appeal of the New Mexico photographer and the issue has not been before the Court in any other context. Additionally, as I noted, the claims of business owners in these cases have generally not been accepted by any court, and especially not by any court of last resort. Because of this, there is no Circuit split or another disagreement on the issues presented here that would compel the Court to step in. The fact that it has strikes me as probably being an example of the impact of the addition of Justice Gorsuch to the case. When the Court turned down the cert request of that New Mexico photographer a few years back there were three Justices who dissented from the denial, specifically Thomas, Alito, and Roberts. Assuming that these were the only three Justices who believed the Court should hear the case, which is likely given that a fourth vote would have meant that the Court accepted the appeal, that means that both Justice Scalia and Justice Kennedy were against accepting the case for appeal. With Scalia gone, Gorsuch may have provided the fourth vote to take the case up, joining Thomas et al and the conservatives seem to be rolling the dice on the case.  In any case, there have been so many of these cases recently, and likely more to come in the future if the Court didn’t act, that it was seemingly inevitable that they’d take up an appeal eventually.

The deciding vote will likely be Kennedy, the same guy who has written all the Court’s landmark LGBT rights cases and who was in the majority in Employment Division v Smith along with Scalia. Anything’s possible, but I don’t see him siding with Alito et al on this one. This is true not only because of Kennedy’s role in deciding important LGBT rights cases such as Roemer v. Evans, Lawrence v. Texas,  United States v. Windsor, and of course Obergefell v. Hodgesbut also because of his position in a 2011 case called Christian Legal Society v. Martinez in which 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 discriminatioon outweighed the First Amendment rights of the student organization. If he’s consistent with his previous rulings with all these cases, it seems far more likely that Justice Kennedy will side with the state of Colorado than the baker.

Cases like this are not new, of course. Ever since same-sex marriage began being recognized at the state level and many states and localities have adopted laws adding sexual orientation to the list of those classes of people protected by anti-discrimination laws, there have been a series of cases dealing with wedding vendors who have refused to provide a service to a same-sex wedding based on their religious beliefs. In Washington State, a florist found herself in litigation when she refused to provide services to a same-sex couple’s wedding. In a New Jersey case that arose before that state had even legalized same-sex marriage a church that operated a beach venue generally open to the public for weddings and other events was told that it could not ban same-sex couples from renting the venue under the state’s anti-discrimination law. A New York couple was fined for refusing to allow a lesbian couple to use their farm for their wedding, an event which caused them to cease making the farm available for any wedding at all. An Idaho chapel that ran a for-profit business that made it available to the general public found itself in a showdown with the City of Cour d’Alene over enforcement of that city’s anti-discrimination law. And, perhaps most famously, the New Mexico Supreme Court ruled several years ago that an Albuquerque photographer had violated an anti-discrimination ordinance when he refused to provide services for a same-sex wedding. The photographer sought to appeal that case, but the Supreme Court declined to hear an appeal of that decision. That appeal was notable because it raised some of the same First Amendment claims that this case does, extending beyond the religious freedom issue to allege that compelling the photographer to perform services was a violation of his freedom of speech and expression rights in addition to forcing him to violate his religious beliefs. Perhaps most significantly, in none of those cases has a court of last resort ruled in favor of the religious liberty or freedom of speech claims made by the business owner.

Whether this is viewed as a religious freedom or a free expression case, the analysis is basically the same. The question is whether the First Amendment claims of the business owner outweigh the governmental interest at issue. In this case, the governmental interest at stake is one that the Court has generally found to be a compelling one,  namely the interest in protecting minority groups from invidious discrimination in public accommodations such as what’s at issue in the case. It also seems to me to be the case that the laws at issue are seeking to enforce that compelling interest through the least restrictive means possible. In many ways, then, the case is similar to the issues raised by Employment Division v. Smitha case that the Court decided in 1990 in which it rejected the argument of a Native American who tested positive for the use of peyote that the fact that using the drug was part of a religious ceremony should exempt him from a state policy that barred unemployment insurance to someone who was terminated due to an illegal act such as drug use. The Court’s majority opinion in that case, which was written by Justice Scalia and joined by conservatives such as William Rehnquist and Anthony Kennedy, essentially held that a claim of religious liberty was not sufficient to provide someone with an exemption from a generally applicable law that was not directed at a specific religious faith or at religious practice in general. Additionally, as Ian Millhiser notes, just this year in Expressions Hair Design v. Schneiderman that a law “does not violate the First Amendment because it has an effect on speech that is “only incidental to its primary effect on conduct.”” In this case, that would mean that even if there is a valid freedom of speech claim being made by the baker, it does not trump a generally applicable law barring discrimination that clearly has only an incidental mpact on those claims.

Although the facts are different, the situation in Smith seems to be essentially the same situation we have here. The state of Colorado has a generally applicable law that bars discrimination in public accommodations against people that fall into certain categories, one of them being sexual orientation. The baker at issue here has refused to provide a cake to a member of the general public specifically because of their sexual orientation and therefore was found to have violated that law. Whether this is viewed as a matter of religious liberty or freedom of expression, it seems clear that the Court will most likely find that the compelling government interest at issue here outweighs the rights claimed by the business owner. I could end up being wrong, of course, but we’ll have to wait for briefing, oral argument, and the final opinion to find out. In the meantime, you can review the pleadings that have already been filed in this case, and those that will be filed in the future at the SCOTUSBlog information page for this case.

FILED UNDER: Law and the Courts, Religion, US Politics, , , , , , , , , , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. CSK says:

    So…Phillips will happily sell the couple a cake that, presumably, can be served as a wedding cake at their reception, but he won’t make them a wedding cake that will be served as a wedding cake at their reception.

    Does anyone follow Phillips’s logic here? Or am I having a stupid moment?

  2. CSK says:

    And…if the gay couple is being married in a church or synagogue, haven’t they already received a religious imprimatur of sorts that should obviate Phillips’s concerns?

    Or, if the couple is being married in a civil ceremony, then Phillips’s religious objections would be moot. Right?

  3. Janis Gore says:

    Last time we discussed this topic, about the florist, I cited an opinion from Russell Moore of the Southern Baptist Convention. He is head of ethics or some such thing. He advised a photographer not to photograph an ss marriage, even though he had earlier said that there was no way two women or two men could be married in the eyes of God.

    My question then was, so what’s the big deal? If it’s not a marriage, how can it be wrong to make the cake? Nothing sacred in a cake, even though my mother’s coconut was heavenly.

  4. Not the IT Dept. says:

    “My religious liberty is violated when I am forced to acknowledge that the law allows something that I would prefer didn’t exist. Oh, the oppression!”

  5. Daryl's other brother Darryl says:

    With Hobby Lobby and yesterdays decision on the Trinity Lutheran Church, in MO, it’s pretty clear the Roberts Court is willing to let religious zealots have it both ways. So based on that I fully expect the baker to win.
    In Hobby Lobby the SCOTUS decided the corporate veil could apply when the zealots want it to, and not apply when they don’t want it to.
    In Missouri they decided that churches can be tax free and yet are entitled to reap benefits from people who actually pay taxes.
    In this case they will decide that the baker is free to discriminate in his public accommodation.

  6. CSK says:

    @Janis Gore:

    I can’t speak for Moore, but I’m guessing he’d say that a ceremony united two gay people was blasphemous, and all the participants were therefore blasphemers.

  7. grumpy realist says:

    I predict that if this “cake artiste” is allowed, we’ll be seeing taxicab drivers claiming to be “transportation artistes”, and janitors claiming to be “cleaning artistes”

    It’s just a cake, you idiot. And if you don’t act just as picky about selling your supposed artistry to divorcees, you have no religious leg to stand on.

  8. Janis Gore says:

    @CSK: That’s not what I gathered. Here’s his opinion:

    He uses 1 Cor. 8: Abstain from eating meat that has been sacrificed to idols.

    His objectioin just doesn’t seem very substantial to me.

  9. CSK says:

    @grumpy realist:

    And atheist bakers refusing to bake wedding cakes for believers. And Druid photogs refusing to shoot non-Druid weddings.

    It’s interesting, but the same people who get outraged on behalf of Phillips were outraged by the Muslims cabdrivers who refused passengers with guide dogs or passengers carrying bottles of wine. What’s the diff?

    If it’s sauce for the goose, it’s sauce for the gander.

  10. Gavrilo says:


    It’s because he’s not discriminating against gay people. He’s discriminating against the act of two gay people getting married. That’s the distinction he’s trying to make. I bet he loses.

  11. anon. says:
  12. Paul L. says:


    atheist bakers refusing to bake wedding cakes for believers. And Druid photogs refusing to shoot non-Druid weddings.

    Ok..No problem
    But progressives can keep getting outraged over a Man attending a “women only” screening of Wonder Woman..

  13. KM says:

    @grumpy realist:
    I would love for the whole cake-as-participation-in-the-act be questioned in court as to why they are fine with being party to marriages outside their faith. There’s no freaking way they have served only Christians in their time. If they have no problem baking a wedding cake for some Hindu couple, then their logic suggests they are a a part of the Hindu wedding ceremony. Since they are also arguing that “marriage” is a religious institution, how can they justify serving a false god with fondant and ganache? I’m pretty sure Moses had some stone tablets that said thou shalt not offer cupcakes to Ganesh…

    Make them demonstrate their sincere belief is pretty insincere 90% of the time.

  14. Daryl's other brother Darryl says:

    @Paul L.:
    Well if you read that far-right crap…it’s no wonder you are so mis-informed all the time.

  15. CSK says:

    @Paul L.:

    What are you taking about? The guy who wrote the article said he had no problems at all attending the screening.

  16. milprof says:

    Under what constitutional principle would it be OK to refuse outright to bake a cake for a same-sex wedding (even if the cake itself has no message), unless the business can also refuse to bake cakes for:

    — interracial couples
    — previously-married divorcees getting remarried
    — A couple of a religious faith they dislike / find heretical, e.g., Christian Evangelicals
    — A couple with high probability of passing on a genetic disorder (i.e., baker is a eugenicist / Nazi)

    I think I prefer a world where a sort of ‘public accomodations’ principle applies to businesses, but I am damn sure that if businesses may discriminate based on the creed or characteristics of prospective customers, with deeply held beliefs of the owner trumping legally protected class status, then that principle had better apply across the board to all such deeply held discriminatory beliefs.

  17. SenyorDave says:

    @Paul L.: And somehow this has the same level of importance as a Supreme Court decision?

  18. SenyorDave says:

    @milprof: I agree. That’s why I think he’ll lose. My guess he losses 6 – 3, with Kennedy and Roberts siding with the liberals on this one. I don’t think those two want to give their approval to legal discrimination, it opens up too many possibilities like your examples.

  19. MarkedMan says:

    There is something else going on here. It is typical of self-named religious-conservatives (aka fundamentalists) to say that the feds shouldn’t weigh in on such stuff and it should be left up to the States. But as soon as a State ruling goes against their beliefs (in this case, belief in their right to humiliate and excoriate gay people) they go running off to the Supreme court. I assume the fix was in with Gorsuch, so we’ll be in for a lot more of this.

    Just another example of what it means to be one of the modern Republicanss / Religious Conservatives / Family Values proponents. Whatever principles they say they espouse are just words coming out of their mouths. They don’t truly believe in anything but doing the opposite of whatever libruls want.

  20. CSK says:


    The thing with fundamentalists that never seems to occur to them is that the rights/freedoms/privileges they claim for themselves also extend to everyone else. Don’t want to bake a cake for a gay wedding because it violates your religious convictions? Fine. Just don’t start bitching when someone refuses to provide you with a good or a service because she or he finds your fundamentalism repugnant–and in direct contravention of his or her beliefs.

  21. Paul L. says:


    same level of importance as a Supreme Court decision

    Your Rules. Discrimination by Gender is still Discrimination.
    You missed this part

    By the reaction upon arrival, it became apparent how Twitter outrage is not real life (surprise) and as I had predicted, that no one in the theater would care

    No outrage over the act?
    Defiant hero defends Man’s World by buying ticket for women’s-only Wonder Woman screening

  22. Hal_10000 says:

    I don’t think you put a post up on the gay adoption case earlier this week, but what was interesting that the dissent by Gorsuch basically accepted Obergefell v. Hodges and disagreed only on technical grounds. I suspect that even if Masterpiece wins, we’ll see a similar sentiment in the majority: that Obergefell is now established law.

    I’m somewhat inclined toward Masterpiece’s position here, given my distaste for government coercion. The same principle of freedom that made me support same-sex marriage makes me want to side with the bakers in this instance. And I think it’s astonishing how fast the Democratic Party went from “gay marriage shall no be recognized” to “gay marriage MUST be recognized”.

    What I really wish we could have is a legal armistice on this issue. Gay marriage is legal. So, for the time being, conservatives will agree to lay down arms and liberals will agree not to advance it though these kind of suits. The pace of change on this issue has been astonishing and I think the culture conservatives just need a chance to catch their breath (in fact, a recent poll now showed a slim majority of conservative support gay marriage). Hillary Clinton got 65 years to “evolve” on the issue. Can’t the rest of the country be given something like 65 months?

  23. An Interested Party says:

    It’s because he’s not discriminating against gay people. He’s discriminating against the act of two gay people getting married. That’s the distinction he’s trying to make.

    And what a beautiful distinction that is…it’s like saying that it’s ok to be gay as long as one never falls in love and/or has sex with someone of the same gender…

    I bet he loses.

    As he rightfully should…

    I’m somewhat inclined toward Masterpiece’s position here, given my distaste for government coercion. The same principle of freedom that made me support same-sex marriage makes me want to side with the bakers in this instance.

    Oh? So it should be perfectly acceptable for anyone who owns a business to discriminate against anyone else based on his/her religious beliefs? I wonder where the line should be drawn with this “freedom”…

    What I really wish we could have is a legal armistice on this issue. Gay marriage is legal. So, for the time being, conservatives will agree to lay down arms and liberals will agree not to advance it though these kind of suits.

    Oh that’s lovely…the gays got marriage, now they should lay off on wanting any more rights for awhile…

  24. Modulo Myself says:

    Most if not at all gay people would be fine, I think, if in the end it’s just a few small things that are easily dealt with, such as wedding cakes.

    But there’s no guarantee it won’t be. Conservatives began talking about religious freedom in the middle of screaming that they should be able to tell other people what to do.

    Someone like Rod Dreher claims that everybody deserves the right to discriminate, but as a human being he is incapable of taking any criticism. I suspect he stands in for right-wing bigots at large–they want to discriminate more than anything in the world, and they can’t stand anyone doing anything against their word.

    Not much, as a whole, one can do with that s–t.

  25. Modulo Myself says:

    And let’s not forget these so-called Christians were happy to vote for a guy with three marriages and a confession of sexual assault. No human being should be expected to take them seriously.

  26. Gustopher says:

    There are two sets of rights in conflict here. The right of the businessman to free association with who he wants (and not who he doesn’t want), and the right of the public to not be discriminated against in private transactions.

    Again, I am reminded that if “separate but equal” had ever actually been equal, the courts would have likely balanced those rights very differently.

    Bigots screwed it up for themselves.

    (Fun game — tell the religious people trying to force their religion on the world that you don’t recognize their marriage, and refer to their spouse as boyfriend or girlfriend)

  27. Modulo Myself says:


    There wasn’t 65 months. There was five seconds before the religious right shifted from controlling marriage–including telling churches that married gays that their marriages were not authorized–to saying nobody can tell a religion what to do.

    Had the religious right really been trying to figure out a way to be true to their beliefs and to allow gay people equality, they would have waited, because only a maniac thinks that Christians are in a situation equal to that of gay people. But they are maniacs, bigots, and morons.

  28. Modulo Myself says:


    Actually, the idea that conservatives deserve a chance to catch their breath undercuts the entire argument. Conservatives aren’t arguing they need time to accept gay marriage; they are arguing that a book prohibits them from accepting it as moral forever.

    Huge difference. Most gay people would have been fine with ‘need time’. They aren’t fine with the switch from ‘gays have no rights’ to ‘my reading of the Bible says I can discriminate forever’.

  29. Kylopod says:


    And I think it’s astonishing how fast the Democratic Party went from “gay marriage shall no be recognized” to “gay marriage MUST be recognized”.

    It isn’t so astonishing when you consider how much of it was semantics. Prior to the Democratic acceptance of SSM, their previous position wasn’t so much opposition as it was support for just about every practical right for gay couples, stopping just short of legally calling their unions “marriages.” Indeed, in practice most Democratic politicians tended to oppose almost all attempts to stop SSM. For example, while Obama didn’t officially come out in support of SSM until 2012, for years he’d opposed DOMA, California’s Prop 8, and the Federal Marriage Amendment.

    The semantic element to the issue was captured during a moment from the 2008 vp debate when Biden stated that he backed benefits for “committed couples in a same-sex marriage.” The moderator Gwen Ifill (who seemed a little baffled) then asked him point blank “Do you support gay marriage?” He quickly responded, “No. [Neither] Barack Obama nor I support redefining from a civil side what constitutes marriage…. That is basically the decision to be left to faiths and people who practice their faiths the determination what you call it.”

    I don’t mean to imply the distinction was purely one of symbolism. “Civil unions” never held the same legal status as marriages. I’m simply pointing out, when you consider the relevant policy details, Democrats’ embrace of SSM was more of a final step than a giant leap.

  30. Kylopod says:

    @Modulo Myself:

    Most if not at all gay people would be fine, I think, if in the end it’s just a few small things that are easily dealt with, such as wedding cakes.

    One irony is that their struggle for acceptance in many ways parallels that of religious minorities. In the history of this country, Jews, Muslims, and others have had to deal with being treated as second-class citizens, and sometimes this has involved matters that might look to outside observers as just “a few small things.” My mother remembers being forced to learn Christian hymns in public schools in the early ’60s, and I can tell you she wasn’t happy about it. On the other hand, Norman Podhoretz had the same experience and he thought it was a small price to pay for being Jewish in America. Just because people can live with something doesn’t mean it’s ideal or that it’s a waste of time to fight back against it.

    Of course, most of the people crying about “religious freedom” here don’t have a clue what it’s actually like to live as a religious minority in the US, so it’s not surprising they don’t see the analogy.

  31. MarkedMan says:

    Here’s a truly conservative way of looking at this: as a society we all too often confuse things sanctioned by ngovernment with things sanctioned by religion. In this instance we confuse citizens need for laws concerning children, inheritance, medical power of attorney, etc, with religious people’s desire for their marriage to be blessed within their church. The former is what we as citizens demand from our government to insure that major life events are dealt with fairly and in a predictable fashion. The latter, in the USA, should have nothing to do with government. The baker in this case belongs to a religion that doesn’t believe their god would sanction a union between people of the same sex. They have every right to believe that and I’m not going to judge them for that belief (others might, but I don’t, even if they judge me for the contrawise opinion). The reason the baker’s position is problematic is that they confuse their church with the US government. Participating in the weeding insofar as baking a cake makes them a witness to a legal contract, not a marriage sanctioned by their church. In a way, they are commiting a fundamental religious error by confusing that which they render to Caesar with that which they render to god.

  32. Modulo Myself says:


    I agree. I think there are small annoying things like letting an idiot baker have a fit over a wedding while the rest of the world moves on. The Christian right has no desire to let the world move on, though, and that’s the problem.

  33. Not the IT Dept. says:

    Paul, the Good Lord gave you a brain; time to stop sitting on it and start using it the way He intended. One single screening of a movie for a private audience just before the movie opens on thousands of screens around the world is hardly as scary as you find it. Movies often have private screenings for charities to raise funds by selling the tickets, or can be booked by organizations for particular audiences. That you are apparently unaware of these practices doesn’t make it some kind of crime. That there are pathetically insecure men who go into hysterics about women doing almost anything is something to be despised, not encouraged.

  34. george says:

    @grumpy realist:

    On the other hand there were designers who refused (and went out of their way to make it public) a dress for Trump’s wife because it went against their morals. And I say this as someone who thinks the guy should have baked the cake, and is inconsistent to not do so.

    Businesses often find a way to discriminate, whether because of sexual orientation, religion, race, politics. It’d be nice to have a ruling that either never allowed discrimination or always allowed it (I vote for never, but make it across the board).

  35. MarkedMan says:

    @george: I may be mistaken but I believe those designers were refusing to Donate a dress, not sell one.

  36. Janis Gore says:

    @MarkedMan: This is a coherent expression of thoughts I’ve had since the inception of this argument years ago. Thank you.

  37. Andre Kenji says:

    There is nothing in the Bible saying that you can’t assist people that are doing a same sex marriage. One could argue that in fact the Gospels bans Christians from doing these kind of judgement. Religion can’t be a excuse for bigotry.

    To me, a better justification for this speech, that refusing to bake a cake would be protect speech.

    I’m pretty liberal on matters of religion, but this kind of reasoning can(And it is) be used to protect child genital mutilation, for instance. Religion can’t be used to protect bigotry.

  38. gVOR08 says:


    On the other hand there were designers who refused (and went out of their way to make it public) a dress for Trump’s wife because it went against their morals.

    I have no idea if this story is true. If it is, Trump’s wife is not a protected class under state public accommodation laws. Gay people are.

  39. george says:


    It might be a refusal to donate a dress, in which case the whole thing about Trump’s wife is moot.

    However, why should it be allowable to discriminate against non-protected classes? The simplest thing – and I say this as a very visible member of a protected class (first nation) – is to simply not allow it, period. It’d make life simpler for everyone, especially for those of us in protected classes.

    In Canada there’s (finally) some inquiry into missing and murdered aboriginal women. There shouldn’t have to be an inquiry into this – missing and murdered women (or men) should have been cause enough to have set off police action. Apply the same standard across the board and we’re happy.

  40. Just 'nutha ig'nint cracker says:

    @CSK: No, you pretty much nailed it. I got nuthin’.

  41. Just 'nutha ig'nint cracker says:

    @Daryl’s other brother Darryl: That’s my take, too. The court got enough votes to hear this case because that number of justices are amenable to siding with the appellant.

  42. Just 'nutha ig'nint cracker says:

    @Kylopod: Good point. I remember how the discussion went in the State Legislature of Washington back in the 90s (IIRC). The GOP caucus stated an opposition not to civil unions but to using the title “marriage” to describe them. When the Democrats offered that the legal status could be called “civil unions,” the Republicans opted for no–because they didn’t want “civil unions” with the same legal status and rights as “marriages.” It took 15 or so more years, but lesson learned.

    For the GOP all of these discussions are about some animals being more equal than the others.

  43. Just 'nutha ig'nint cracker says:

    @MarkedMan: On the other hand, no, they’re not because they truly believe that this nation was formed by (their) GOD.

  44. James Pearce says:

    I don’t want to force people to bake cakes for gay weddings they want no part of.

    But I also think if you don’t want to bake cakes for gay weddings you should pick another business.

  45. KM says:


    However, why should it be allowable to discriminate against non-protected classes?

    Is that a legal or moral question?

    If legal, the whole point of protected classes is because you can’t just write a law that says “No discriminating against anyone ever”. It’s just not feasible in terms of functionality. You can write the protected classes to be a lot broader or more vague but that just invites a challenge. In practical terms, nothing about Melania’s lack of a dress could serve as discrimination because she wasn’t actively seeking them out for a service – they just preemptively said walk on lady.

    If moral, then you are correct. Discrimination of any stripe should be looked down upon as unfavorable by society at large and business in particular. The point of business is to make money, not worship or profess belief. Evil people need to eat too and you aren’t being any more moral then they are deliberately starving them. If you can’t accept you might have to do business with generally unpleasant people at least once in your career, you are not in the right job. The position of ascetic is still available out in the desert.

  46. george says:


    If legal, the whole point of protected classes is because you can’t just write a law that says “No discriminating against anyone ever”. It’s just not feasible in terms of functionality.

    I was thinking of both legally and morally. Now, I’m going to come across like what I am (a decidedly non-lawyerish individual), but what functional problems would you run into that wouldn’t also be there with just not allowing it against protected classes?

  47. An Interested Party says:

    I don’t want to force people to bake cakes for gay weddings they want no part of.

    Do you also not want to force people to bake cakes for interracial weddings they want no part of? Or weddings of another religion they want no part of?

  48. DrDaveT says:


    given my distaste for government coercion

    I’ve been trying to figure out what this could possibly mean, and failing. Government is almost entirely about coercion. You’re not allowed to kill just anyone; you’re not allowed to just take their stuff, by stealth or by violence or by threat. You’re not allowed to hunt or fish without a license. You must pay the following taxes. You must send your kids to school, and get them vaccinated. 47 rules about under what circumstances you may drive a car, and how you must behave while doing it. No rape.

    These rules are enforced, stringently. 99% of what government does, it does by coercion. And that’s a good thing.

    Your invocation of “Freedom!” as a principle seems entirely ad hoc — it’s never an issue at all until suddenly it becomes an overriding concern in specific cases where you don’t like the outcome but don’t have an actual argument. It seems to me that the question here is the same as the question in all of those other cases — namely, are people generally happier and safer and less injured (and yes, freer) with or without the coercion? In this case, the harm to the victims by the perps clearly outweighs the harm to the perps, were they to be barred from victimizing the victims. That’s pretty much the definition of “good law”.