Supreme Court's Decision in Colorado "Gay Wedding Cake" Case

[RevTestament]

24 minutes ago, Scott Lloyd said:

I wondered that as well but have now had it explained to my satisfaction: “Narrow” refers to the scope of the ruling, not to the vote count. 

That is to say, the ruling would not disallow an administrative body in a future such case to rule against the baker where the administrative body was less blatantly anti-religious than in this case. 

Absolutely correct. The scope of this decision is narrow. It applies almost only to this particular case, and any future ones where the state court or commission seems to be blatantly anti-religious. It is not a case that can be cited to apply to all cases of religious free speech vs other civil rights. It does little to tell a state how it can constitutionally balance these rights so as to constitutionally decide against one party. However, in the long-term scope of things it informs us that the Court still will protect religious free speech or thought to some extent or maybe to a large extent so in that sense it is a win for conscientious objectors. In a sense in extending the separation of church and state so far outside of what I believe to be the intended federal jurisdiction, the Court is now stuck with having to apply that separation to cases like this involving state laws. In other words it will be tough for states to take actions which will limit actions of conscientious objectors.

[USU78]

7 minutes ago, Robert F. Smith said:

Once again, anti-religious bigotry has muddied the waters.  This case thus tells us nothing about the way the court will rule in the future.

[smac97]

1 hour ago, Robert F. Smith said:

Once again, anti-religious bigotry has muddied the waters.  This case thus tells us nothing about the way the court will rule in the future.

See page 10 of the decision (page 13 of the PDF):

Quote

When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.

So this provides at least some clarification on the Free Exercise issue.  And to be honest, it's not very good.  So a clergy can cite the Free Exercise clause to decline to participate in a gay wedding, but nobody else can?  How is it that a member of clergy enjoys more Free Exercise protections than anyone else (particularly since many members of clergy are paid for their services, thus putting their servcies that much closer to the "commercial" sphere which is used by the government to foist Public Accommodations laws on religious people)?

As for the Free Speech issue, the Court says this:

Quote

[Phillips] argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way consistent with his religious beliefs.

Well, yes, that is a key issue.  But SCOTUS's explanation for kicking this can down the road seems pretty weak:

Quote

Phillips’ dilemma was particularly understandable given the background of legal principles and administration of the law in Colorado at that time. His decision and his actions leading to the refusal of service all occurred in the year 2012. At that point, Colorado did not recognize the validity of gay marriages performed in its own State.  [] At the time of the events in question, this Court had not issued its decisions either in [] Obergefell. Since the State itself did not allow those marriages to be performed in Colorado, there is some force to the argument that the baker was not unreasonable in deeming it lawful to decline to take an action that he understood to be an expression of support for their validity when that expression was contrary to his sincerely held religious beliefs, at least insofar as his refusal was limited to refusing to create and express a message in support of gay marriage, even one planned to take place in another State.

Oh, come on, SCOTUS!  Do you really think Mr. Phillips's religious beliefs as to the morality of gay marriage hinge on whether gay marriage is legally recognized or not?

Quote

At the time, state law also afforded storekeepers some latitude to decline to create specific messages the storekeeper considered offensive. Indeed, while enforcement proceedings against Phillips were ongoing, the Colorado Civil Rights Division itself endorsed this proposition in cases involving other bakers’ creation of cakes, concluding on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. 

So in essence, we had the Commission saying something like "The government can compel speech based where the speaker deems the speech to contravene his religious beliefs," and yet also saying that "The government cannot compel speech that is 'demeaning [to] gay persons or gay marriages."  The former is obviously has a lot more constitutional history (and implicates not only Free Speech, but also Free Exercise).  And yet how does SCOTUS treat these disparate results of the Commission's constitutional assessment?  Well...

Quote

There were, to be sure, responses to these arguments that the State could make when it contended for a different result in seeking the enforcement of its generally applicable state regulations of businesses that serve the public. And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case. 

I hate to say it, but the translation of this appears to be: "Hey, Commission, there are, 'to be sure,' ways to justify the government in compelling a religious person to engage in speech offensive to his religious sensibilities, while also prohibiting the government in compelling secular-minded folks from engaging in speech they find offensive.  You just have to word it right.  Don't be so obvious in your bigotry."

The "slippery slope" reasoning here is pretty crappy.  It's a nearly 100% hypothetical.  Gays are getting married left and right.  There is no actualized phenomenon like people "put[ting] up signs saying “no goods or services will be sold if they will be used for gay marriages.'"  Plenty of people have no objections to gay marriage, and even many of those who do are not going to start conditioning the sale of goods and services on some assurance that they will not "be used for gay marriages."  

But there will be some, including people like the clergyman, who has a clear Free Exercise right to not be compelled to participate in gay weddings.  And yet SCOTUS ominously hints - rather strongly - that the use of the Free Exercise clause in this way only works A) if "gay persons [] recognize and accept [that such an exercise can occur] without serious diminishment to their own dignity and worth," and B) if the category of persons entitled to such an exercise of the Free Exercise clause is - as SCOTUS puts it - "confined" ("Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws...").

So this creates a number of questions for me: 

1. Since when do "gay persons" and their subjective sense of "dignity and worth" get to define the parameters of how other people employ their rights under the Free Exercise / Free Speech clauses? 
2. Since when does SCOTUS hint that "gay persons" may have some sort of veto power over others' use of the Free Exercise / Free Speech clauses when that use subjectively "diminish[es]" the "dignity and worth" of "gay persons?"  
3. If the courts can require gay persons to respect the rights of a clergy member to not participate in a gay wedding, shouldn't the courts likewise require gay persons to respect the rights of all religious people to not participate in a gay wedding?
4. Can you imagine a Mormon successfully suing to shut down "The Book of Mormon" musical worldwide on the grounds that it "diminish[es]" the "dignity and worth" of Mormons? 
5. How can SCOTUS suggest that one (gay) person's internal and subjective sense of "dignity and worth" trumps another (religious) person's Free Exercise / Free Speech rights?
6. How can SCOTUS suggest that one category of religious people (clergy) have a right to not be compelled to participate in gay marriages, but that other categories of religious persons (all non-clergy persons engaged in commerce, I guess) can be so compelled? 
7. Since when does SCOTUS get to "confine" Free Exercise and Free Speech rights to clergy (in the context of participation in gay marriage ceremonies), and telling all other religious persons "Hey, tough luck, you shoulda gone to theology school"?

-Smac

Edited June 4, 2018 by smac97

[Kenngo1969]

2 hours ago, bluebell said:

The article I read quoted it at 7-2 and I thought the same thing.  How is that narrow?  

Narrow or broad refers to the scope of the decision.  For example, a broad ruling would have said, "No cake baker who objects on grounds of sincerely-held religious belief is required to violate such belief by using his artistry to support a cause with which he disagrees."  By contrast, the Court's holding here (from what little I have read, and I haven't read the decision yet) focused on the Colorado Civil Rights Commission's apparent ridicule of Phillips's religious beliefs.  Thus, even a decision that is 8-1 or 9-0 could be "narrow."

Edited June 4, 2018 by Kenngo1969

[LoudmouthMormon]

So, in countryism summary format:

"Today the Supreme Court found that various members of the Colorado Civil Rights Commission are a bunch of jerkwads, and enshrined their opinion forever in their ruling."

By the way, here's Anthony Aragon, one of the members of the Colorado Civil Rights Commision. He's on the left, in his wedding photo shortly after midnight in May 1 2013, where he become one of the first same-sex couples in Colorado to be issued a Civil Union license.  I wonder if he was the one who made the comments hostile to religion?

You ain't been smack talked, until you've been smack talked by the Supreme Court.  

(That's smack, not smac.)

 

 

 

Edited June 4, 2018 by LoudmouthMormon

[MorningStar]

Years ago I wanted to start a business performing for weddings, but then I don't want to be forced into participating in a ceremonies I'm not comfortable with, so I didn't pursue that route. It's one thing to sell a product to anyone who walks into your store, but another to actually participate in the ceremony. 

[Kenngo1969]

34 minutes ago, smac97 said:

See page 10 of the decision (page 13 of the PDF):

So this provides at least some clarification on the Free Exercise issue.  And to be honest, it's not very good.  So a clergy can cite the Free Exercise clause to decline to participate in a gay wedding, but nobody else can?  How is it that a clergyman enjoys more Free Exercise protections than anyone else?

As for the Free Speech issue, the Court says this:

Well, yes, that is a key issue.  But SCOTUS's explanation for kicking this can down the road seems pretty weak:

Oh, come on, SCOTUS!  Do you really think Mr. Phillips's religious beliefs as to the morality of gay marriage hinge on whether gay marriage is legally recognized or not?

So we have the Commission saying "The government can compel speech based where the speaker deems the speech to contravene his religious beliefs," and yet also saying that "The government cannot compel speech that is 'demeaning [to] gay persons or gay marriages."  The former is obviously has a lot more constitutional history (and implicates not only Free Speech, but also Free Exercise).  And yet how does SCOTUS treat these disparate results of the Commission's constitutional assessment?  Well...

I hate to say it, but the translation of this appears to be: "Hey, Commission, there are, 'to be sure,' ways to justify the government in compelling a religious person to engage in speech offensive to his religious sensibilities, while also prohibiting the government in compelling secular-minded folks from engaging in speech they find offensive.  You just have to word it right.  Don't be so obvious in your bigotry."

The "slippery slope" reasoning here is pretty crappy.  It's a nearly 100% hypothetical.  Gays are getting married left and right.  There is no actualized phenomenon like people "put[ting] up signs saying “no goods or services will be sold if they will be used for gay marriages.'"  Plenty of people have no objections to gay marriage, and even many of those who do are not going to start conditioning the sale of goods and services on some assurance that they will not "be used for gay marriages."  

But there will be some, including people like the clergyman, who has a clear Free Exercise right to not be compelled to participate in gay weddings.  And yet SCOTUS ominously hints - rather strongly - that the use of the Free Exercise clause in this way only works A) if "gay persons [] recognize and accept [such an exercise] without serious diminishment to their own dignity and worth," and B) if the category of persons entitled to such an exercise of the Free Exercise clause is - as SCOTUS puts it - "confined" ("Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws...").

So this creates a number of questions for me, the first of which is: Since when do "gay persons" and their subjective sense of "dignity and worth" get to define the parameters of how other people employ their rights under the Free Exercise / Free Speech clauses?  Since when does SCOTUS hint that "gay persons" may have some sort of veto power over others' use of the Free Exercise / Free Speech clauses when that use subjectively "diminish[es]" the "dignity and worth" of "gay persons?" 

Can you imagine a Mormon successfully suing to shut down "The Book of Mormon" musical worldwide on the grounds that it "diminish[es]" the "dignity and worth" of Mormons?  Since when does an individual's internal and subjective sense of "dignity and worth" trump another person's Free Exercise / Free Speech rights?

And since when does SCOTUS hind that one category of religious people (clergy) have a right to not be compelled to participate in gay marriages, but that other categories of religious persons (all non-clergy persons engaged in commerce, I guess) can be so compelled?  Since when does SCOTUS get to "confine" Free Exercise and Free Speech rights to clergy (in the context of participation in gay marriage ceremonies), and telling all other religious persons "Hey, tough luck, you shoulda gone to theology school"?

-Smac

Like it or not (and, like you, I don't much care for this trend) for more than the last quarter-century (at least since Employment Division, State of Oregon v. Smith, 494 U.S. 872 (1990)) the United States Supreme Court has been finding (or inventing out of whole cloth) ways to narrow the scope of Free Exercise far beyond the expansive conception the Framers had of it.

[smac97]

A preliminary analysis by Steve Hayward (an attorney on PowerLineBlog):

Quote

It appears the main focus of the decision, by Justice Kennedy, is the rank politicization of the Colorado Civil Rights Commission, which brought the enforcement action against Jack Phillips in the first place. (One suspects this whole thing was a set-up from the beginning; note that the case wasn’t a private lawsuit by the two gay customers, nor an enforcement action of the Colorado Attorney General.) This language from the opinion is fairly direct:

Quote

That consideration [of religious liberty] was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.

Essentially the Supreme Court is calling out the egregious behavior of the Colorado Civil Rights Commission. Of course, the Colorado Civil Rights Commission, like most state civil rights commissions, was set up not to be an impartial and fair enforcement and advisory body, but as a governmental advocacy center for the civil rights movement, which is today totally politicized in ways that depart markedly from the old civil rights movement of Martin Luther King. In other words, the Colorado Civil Rights Commission is the captive of the identity politics left, and that’s by design.

Still, whatever is left unresolved as a legal rule going forward, it is clear that these state advocacy agencies are on formal notice from the Supreme Court to conceal their anti-religious bigotry.

Yep.  

-Smac

[nuclearfuels]

Same games, different names

 

Alma 10:17 - O ye wicked and perverse generation, ye lawyers and hypocrites, for ye are laying the foundations of the devil; for ye are laying traps and snares to catch the holy ones of God.

 

[Gray]

1 minute ago, nuclearfuels said:

Same games, different names

 

Alma 10:17 - O ye wicked and perverse generation, ye lawyers and hypocrites, for ye are laying the foundations of the devil; for ye are laying traps and snares to catch the holy ones of God.

 

The holy ones of God are the ones who are meekly and humbly providing service to both gay and straight patrons.

[Kenngo1969]

36 minutes ago, LoudmouthMormon said:

... You ain't been smack talked, until you've been smack talked by the Supreme Court.  

(That's smack, not smac.)

Good point.  I rather like being '"smac"-talked by Smac97.  I find his contributions to the Board enlightening.  

[nuclearfuels]

Love how SCOTUS rulings establish precedent, except for when they don't 

[smac97]

3 minutes ago, Gray said:

The holy ones of God are the ones who are meekly and humbly providing service to both gay and straight patrons.

In most respects, I agree with this sentiment.  But it stops as soon as it becomes coercive, as soon as the government forces me to violate my religious beliefs, and/or to speak things I do not want to speak.

Free Exercise and Free Speech are important.

There is nothing "holy" about punishing people who do not want to participate in something they believe to be immoral, or who do not want to speak things that they do not want to speak.

-Smac

[nuclearfuels]

7 minutes ago, Gray said:

The holy ones of God are the ones who are meekly and humbly providing service to both gay and straight patrons.

So many good points made in your conflated sophistry.  Let me breathe them all in, slowly. 

I forgot that no judges (with agendas) nor lawyers (with agendas) were involved.

I also forgot that the humble are those who violate their religious beliefs and expression when hundreds of other bakers could provide the requested service.

--

Objective truth exists regardless of what we all think of it, no matter how offensive it might be, and regardless of what psychopaths are in political or judicial power. 

 

[Gray]

4 minutes ago, smac97 said:

In most respects, I agree with this sentiment.  But it stops as soon as it becomes coercive, as soon as the government forces me to violate my religious beliefs, and/or to speak things I do not want to speak.

Free Exercise and Free Speech are important.

There is nothing "holy" about punishing people who do not want to participate in something they believe to be immoral, or who do not want to speak things that they do not want to speak. 

-Smac

And if someone finds Jewish weddings immoral?

[smac97]

Just now, Gray said:

And if someone finds Jewish weddings immoral?

I have no desire to compel someone to attend or participate in a Jewish wedding.  Or a Mormon wedding.  Or a gay wedding.

Thanks,

-Smac

[Gray]

Just now, nuclearfuels said:

So many good points made in your conflated sophistry.  Let me breathe them all in, slowly. 

I forgot that no judges (with agendas) nor lawyers (with agendas) were involved.

I also forgot that the humble are those who violate their religious beliefs and expression when hundreds of other bakers could provide the requested service.

--

Objective truth exists regardless of what we all think of it, no matter how offensive it might be, and regardless of what psychopaths are in political or judicial power. 

 

The humble don't have to violate their religious beliefs in order to serve gay and straight customers equally. It's already built into their beliefs. But some people prefer the Rameumptom.

[Gray]

1 minute ago, smac97 said:

I have no desire to compel someone to attend or participate in a Jewish wedding.  Or a Mormon wedding.  Or a gay wedding.

Thanks,

-Smac

Then you're not in favor of religious liberty for Jewish people. Or Mormon people. Or gay people. All should have the right to practice their beliefs without being discriminated against.

Edited June 4, 2018 by Gray

[RevTestament]

6 minutes ago, MorningStar said:

Years ago I wanted to start a business performing for weddings, but then I don't want to be forced into participating in a ceremonies I'm not comfortable with, so I didn't pursue that route. It's one thing to sell a product to anyone who walks into your store, but another to actually participate in the ceremony. 

I would never want to hire someone to perform for me, who doesn't really want to or has some objection. I would want nothing but positive feelings at my wedding. I assume the gay couple involved went to some other baker or maybe just ended up buying a more generic cake and adding their own words and design. Yet they still sued this baker. Damages? Hurt feelings? It seems the real point is to spearhead a crusade of gay rights. What next? Now that sodomy is legal, can they force the baker to decorate with pornographic images? I can see some gays laughing at the idea. I find this kind of thing repugnant. By forcing businesses to cater to people, I believe the court has stepped way beyond the bounds of governmentally protected rights into our private lives. Maybe it is time for a separation of government and people. In the future everyone will strive to be in some sort of protected class in order to get SCOTUS to play daddy. America needs to grow up. If businesses won't service their customers, form your own. Fill the niche. Applying laws which were originally intended to limit government powers to businesses is bad law imho.

[smac97]

Just now, Gray said:

The humble don't have to violate their religious beliefs in order to serve gay and straight customers equally.

Says someone presuming to speak on behalf of others.

For me, I think the government compelling people to engage in commerce has some problems with it.  Apart from some basics (food, clothing, housing, medical care, etc.), I have some real reservations about how Public Accommodations laws are being used to subvert constitutional liberties.

Thanks,

-Smac

[Gray]

Just now, RevTestament said:

I would never want to hire someone to perform for me, who doesn't really want to or has some objection. I would want nothing but positive feelings at my wedding. I assume the gay couple involved went to some other baker or maybe just ended up buying a more generic cake and adding their own words and design. Yet they still sued this baker. Damages? Hurt feelings? It seems the real point is to spearhead a crusade of gay rights. What next? Now that sodomy is legal, can they force the baker to decorate with pornographic images? I can see some gays laughing at the idea. I find this kind of thing repugnant. By forcing businesses to cater to people, I believe the court has stepped way beyond the bounds of governmentally protected rights into our private lives. Maybe it is time for a separation of government and people. In the future everyone will strive to be in some sort of protected class in order to get SCOTUS to play daddy. America needs to grow up. If businesses won't service their customers, form your own. Fill the niche. Applying laws which were originally intended to limit government powers to businesses is bad law imho.

There's already a half century of precedent on this in the law. It's worked out great so far. It's part of what makes America a great place to live.

[provoman]

5 minutes ago, Gray said:

The humble don't have to violate their religious beliefs in order to serve gay and straight customers equally. It's already built into their beliefs. But some people prefer the Rameumptom.

Really? How so does humility require celebrating, participating in, or require conduct that gives an approving knod, to conduct that violates religious beliefs

Edited June 4, 2018 by provoman

[Gray]

Just now, smac97 said:

Says someone presuming to speak on behalf of others.

For me, I think the government compelling people to engage in commerce has some problems with it. 

No one is compelled to engage in commerce. But those who do should serve the public without prejudice.

 

Just now, smac97 said:

Apart from some basics (food, clothing, housing, medical care, etc.), I have some real reservations about how Public Accommodations laws are being used to subvert constitutional liberties.

 

There is no constitutional liberty to subvert other people's constitutional liberty.

[smac97]

2 minutes ago, Gray said:

Then you're not in favor of religious liberty for Jewish people.

I am very much in favor of religious liberty for Jewish people.

2 minutes ago, Gray said:

Or Mormon people.

I am very much in favor of religious liberty for Mormon people.

2 minutes ago, Gray said:

Or gay people.

I am very much in favor of religious liberty for gay people.

2 minutes ago, Gray said:

All should have the right to practice their beliefs without being discriminated against.

Unless their "right" involves coercing others into violating their Free Exercise and Free Speech rights.

If I decline to participate in an event, I am not "discriminating" against it in any material sense.  I can and should be able to make that choice.  I should not be coerced by the government into participating, or punished by the government for failing to participate.

Thanks,

-Smac

[provoman]

1 minute ago, Gray said:

There's already a half century of precedent on this in the law. It's worked out great so far. It's part of what makes America a great place to live.

but there is not half a century of precedent that address how religion, artistic express, free speech interact with public accomadation laws