In Colorado, The Cake is in the Supreme Court oven

[Michael Slusser]

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-111_f314.pdf
I'm reading it now.

Peace,
Michael

[Michael Slusser]

I have now read it. The arguments went on for 1:28. I'm no lawyer, but happily this Forum enjoys the participation of some of that profession.

I thought that both the Petitioner (pro-cake artist) and the Respondent (Colorado Civil Rights Commission) did their best to avoid making this a Free Exercise of Religion issue, and the Court was happy with that. What the Court wanted was help in drawing the line between the cake artist's right to control his own speech and the CCRC's concern to protect the equal access to the marketplace of all groups, specifically, protected classes.

I didn't think the Court got that help, at least in terms of reasoning they could run with.

We shall no doubt be deluged in the media with professional though not necessarily unbiased analyses of today's arguments.

Peace,
Michael

[Timothy Schenks]

 An interesting point there about halfway through, several Justices noted that same-sex marriage was illegal at the time the cake was requested.

[James_Gale]

I haven't yet read the argument.  I have read a bit about the argument.  It sounds unsurprisingly as if the lawyers devoted most of their energy to winning Justice Kennedy's vote.  Justice Kennedy, of course, wrote the Court's opinion in Obergefell.  Even among those who liked the outcome of that case, many agree that Justice Kennedy's reasoning was weak.  Even so, the state of Colorado certainly would like Justice Kennedy to conclude that a ruling against the baker flows from his "dignity" focused opinion in Obergefell.  The bakery's lawyers obviously argue otherwise.


The commentary that I read cautiously predicted that Justice Kennedy would side with the bakery, but likely will want to create a narrow category of those entitled on free exercise or free speech grounds to refuse to participate through sale of a good or service in a same-sex wedding.  Time will tell.

[Michael Slusser]

An interesting point there about halfway through, several Justices noted that same-sex marriage was illegal at the time the cake was requested.

Yes, I thought that was telling. Hard to know how the Court will use it, however.

Peace,
Michael

[James_Gale]

An interesting point there about halfway through, several Justices noted that same-sex marriage was illegal at the time the cake was requested.

Yes, I thought that was telling. Hard to know how the Court will use it, however.

Peace,
Michael

In Constitutional matters, the Supreme Court generally tries to decide cases on the narrowest grounds possible.  The Court generally does not want to "make" law except as actual cases require.  This, of course, is a guideline that the Court can ignore. 


In this case, the Court could decide that the bakery had no obligation to bake a wedding cake at a time when same-sex marriage was not available in Colorado.  That would leave open whether such an obligation came into being with Obergefell.  I personally don't think that the Court is likely to take this path, at least unless no broader ruling can attract five votes.  To the extent that the animus/dignity concerns underlying Justice Kennedy's Obergefell opinion ever were dispositive, that probably was true even before Obergefell.   

[Michael Slusser]

To me, the analysis by Amy Howe at SCOTUSblog http://www.scotusblog.com/2017/12/argument-analysis-conservative-majority-leaning-toward-ruling-colorado-baker/ makes a lot of sense.

It ends, "Even if there are five votes in favor of Masterpiece, those justices will face a dilemma: How do they draw a line that respects the religious beliefs of people like Phillips without, as Breyer put it, “creating chaos.” As the more liberal justices’ questions for Waggoner illustrate, that is easier said than done."

Peace,
Michael

[Dan Fienen]

If cake designers can be compelled to create special cakes to celebrate same sex weddings despite the beliefs of the baker or be guilty of discrimination.  Could a cake designer be compelled to create a special cake to celebrate the initiation of a sexual relationship with a cake decorated to show the couple in flagrante delicto in detail?  That is what the customer wanted, it's not illegal, wouldn't it offend the couples right to dignity to be turned away?  Would it matter if the couple were heterosexual or homosexual?

[James_Gale]

To me, the analysis by Amy Howe at SCOTUSblog http://www.scotusblog.com/2017/12/argument-analysis-conservative-majority-leaning-toward-ruling-colorado-baker/ makes a lot of sense.

It ends, "Even if there are five votes in favor of Masterpiece, those justices will face a dilemma: How do they draw a line that respects the religious beliefs of people like Phillips without, as Breyer put it, “creating chaos.” As the more liberal justices’ questions for Waggoner illustrate, that is easier said than done."

Peace,
Michael

Scotusblog is a great resource for anyone following the Supreme Court. 


The sentence you quote is not wrong, exactly.  But the Court's job is to draw lines like these.  The Court obviously prefers lines that are clear and easy for lower courts and other to respect.  That's not always possible.  The lines sometimes become clear only over time as courts consider application of the law to different facts.  Those who prefer that one right give way entirely to another almost always argue that any other solution would be too chaotic; too messy.  But that argument alone is rarely persuasive, especially where (as here) the Court has no compelling need to rush to draw a line that will settle all possible future disputes.

[James_Gale]

If cake designers can be compelled to create special cakes to celebrate same sex weddings despite the beliefs of the baker or be guilty of discrimination.  Could a cake designer be compelled to create a special cake to celebrate the initiation of a sexual relationship with a cake decorated to show the couple in flagrante delicto in detail?  That is what the customer wanted, it's not illegal, wouldn't it offend the couples right to dignity to be turned away?  Would it matter if the couple were heterosexual or homosexual?

The answer given by Colorado is that the baker in your hypothetical could refuse to bake the requested cake because the refusal is not discrimination against a protected class (e.g., sexual minorities).  Remember, this case involves the Constitutionality of sanctions imposed by Colorado against a baker for for violating Colorado civil rights laws, which expressly prohibit discrimination based on sexual orientation. 


Incidentally, I'd not use the phrase "guilty of discrimination."  We all discriminate all the time.  Much discrimination is good.  However, a very few kinds of discrimination are prohibited by law.

[Birkholz]

If cake designers can be compelled to create special cakes to celebrate same sex weddings despite the beliefs of the baker or be guilty of discrimination.  Could a cake designer be compelled to create a special cake to celebrate the initiation of a sexual relationship with a cake decorated to show the couple in flagrante delicto in detail?  That is what the customer wanted, it's not illegal, wouldn't it offend the couples right to dignity to be turned away?  Would it matter if the couple were heterosexual or homosexual?

The answer given by Colorado is that the baker in your hypothetical could refuse to bake the requested cake because the refusal is not discrimination against a protected class (e.g., sexual minorities).  Remember, this case involves the Constitutionality of sanctions imposed by Colorado against a baker for for violating Colorado civil rights laws, which expressly prohibit discrimination based on sexual orientation. 


Incidentally, I'd not use the phrase "guilty of discrimination."  We all discriminate all the time.  Much discrimination is good.  However, a very few kinds of discrimination are prohibited by law.

Basically, if the baker had agreed to make a certain type of cake for a heterosexual customer, he could not refuse to make a similar cake for a homosexual customer.  The issue here is that he had made wedding cakes for heterosexual marriages, therefore he should have to make a similar cake for a homosexual marriage.  If he did not make wedding cakes at all, then it would not be an issue (so the logic goes).

[MaddogLutheran]

If cake designers can be compelled to create special cakes to celebrate same sex weddings despite the beliefs of the baker or be guilty of discrimination.  Could a cake designer be compelled to create a special cake to celebrate the initiation of a sexual relationship with a cake decorated to show the couple in flagrante delicto in detail?  That is what the customer wanted, it's not illegal, wouldn't it offend the couples right to dignity to be turned away?  Would it matter if the couple were heterosexual or homosexual?

The answer given by Colorado is that the baker in your hypothetical could refuse to bake the requested cake because the refusal is not discrimination against a protected class (e.g., sexual minorities).  Remember, this case involves the Constitutionality of sanctions imposed by Colorado against a baker for for violating Colorado civil rights laws, which expressly prohibit discrimination based on sexual orientation. 

My glib response to this is: why does anyone presume that one needs to be a homosexual to enter into a same-sex marriage?  Especially since throughout history there have been homosexuals who have been traditionally married.  Since the baker will sell anything else other than a wedding cake to anyone, gay or straight, this line of argument sound bogus to me.

Of course I realize that's not how the law actually works--it can make assumptions that people on the receiving end of discrimination having a similar characteristic (like being gay) are being singled out because of it.

The only heartening thing out of this was Justice Kennedy's musings from the bench that the record contained evidence to support that the state of Colorado exhibited a recognizable animus towards the cake baker.  One of his worst decisions as far as I'm concerned (ironic because it took place in Colorado) was  Romer v Evans, where he somehow divined that a group of voters voted in favor of a constitutional amendment because of an "animus" against homosexuals.  But as with much of Kennedy's jurisprudence, sometimes you work backwards from the desired outcome and conjure up the best justification at hand.  How one determines such a collective state of mind is beyond me, but that laid the foundation for the Obergfell same-sex marriage decision.  It seems much more plausible to find animus in a single cause of state actions such as this.  Or the denial of voter registration in the South that led to the passage of the Civil Rights Acts of the 1950's and 60's.

Sterling Spatz

[James_Gale]

If cake designers can be compelled to create special cakes to celebrate same sex weddings despite the beliefs of the baker or be guilty of discrimination.  Could a cake designer be compelled to create a special cake to celebrate the initiation of a sexual relationship with a cake decorated to show the couple in flagrante delicto in detail?  That is what the customer wanted, it's not illegal, wouldn't it offend the couples right to dignity to be turned away?  Would it matter if the couple were heterosexual or homosexual?

The answer given by Colorado is that the baker in your hypothetical could refuse to bake the requested cake because the refusal is not discrimination against a protected class (e.g., sexual minorities).  Remember, this case involves the Constitutionality of sanctions imposed by Colorado against a baker for for violating Colorado civil rights laws, which expressly prohibit discrimination based on sexual orientation. 


Incidentally, I'd not use the phrase "guilty of discrimination."  We all discriminate all the time.  Much discrimination is good.  However, a very few kinds of discrimination are prohibited by law.

Basically, if the baker had agreed to make a certain type of cake for a heterosexual customer, he could not refuse to make a similar cake for a homosexual customer.  The issue here is that he had made wedding cakes for heterosexual marriages, therefore he should have to make a similar cake for a homosexual marriage.  If he did not make wedding cakes at all, then it would not be an issue (so the logic goes).

And indeed, I believe that the baker responded to Colorado’s ruling by refusing to bake any wedding cakes.

[David Garner]

The most interesting thing to me, though probably not dispositive, at least if my memory that it was Justice Gorsuch raising the issue rather than Justice Kennedy, "the decider," was the claim that it was viewpoint based discrimination, since Christians had subsequently gone into gay-owned bakeries and asked for themed cakes with Scriptures on them either overtly or implicitly opposing gay marriage, and the CCRC in each of those cases refused to impose any sanctions against the gay-owned bakeries.

I can live with a rule that we all have to bake each others' cakes and I can live with a rule that we don't.  But a rule that sets same sex couples apart as some sort of hyper-protected class and ignores that religion has been a protected class for much longer in the civil rights laws and that religious liberty is enshrined in the Bill of Rights essentially means our Constitution and laws are meaningless.  Either enforce this rule or don't, but the notion that it depends on what is being said is nonsense.

[James_Gale]

The most interesting thing to me, though probably not dispositive, at least if my memory that it was Justice Gorsuch raising the issue rather than Justice Kennedy, "the decider," was the claim that it was viewpoint based discrimination, since Christians had subsequently gone into gay-owned bakeries and asked for themed cakes with Scriptures on them either overtly or implicitly opposing gay marriage, and the CCRC in each of those cases refused to impose any sanctions against the gay-owned bakeries.

I can live with a rule that we all have to bake each others' cakes and I can live with a rule that we don't.  But a rule that sets same sex couples apart as some sort of hyper-protected class and ignores that religion has been a protected class for much longer in the civil rights laws and that religious liberty is enshrined in the Bill of Rights essentially means our Constitution and laws are meaningless.  Either enforce this rule or don't, but the notion that it depends on what is being said is nonsense.

My prediction is that Justice Kennedy will rule for the bakers, but may adopt a rationale that is well less than satisfying.