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

[smac97]

6 minutes ago, Anijen said:

Scott, the above was your excellent response to california boy's post from the previous page. I just wanted to add my opinion that when SCOTUS did not address issue of the religious clauses of the First Amendment, it does not mean that the lack of ruling on those issues is still open to interpretation (like many think). What we have here is an example of  Judicial Restraint.

Judicial restraint (here, silence in a case with multiple issues and only one issue was ruled upon) as we have here, does not mean its open to further interpretation, (although all cases are technically open to further interpretation). The most prevalent meaning of judicial restraint means that they did not have to rule on that particular issue because the issue has a self authenticating answer already.  Here, in the Masterpiece decision SCOTUS did not have to bring into existence a further detailed opinion on the matter (the religious clauses of the First Amendment).  In other words, it allows the opinion of the Court to stand because the Court upholds all acts and laws of Congress and legislatures unless they oppose the Constitution.  Because the bakers right to abstain from compelled speech and his right not to go against his religious convictions are already upheld by the First Amendment, the Supreme Court Justices were not obligated to address that particular issue (not saying they will not in the future).

Thanks for your contributions, I really enjoy them.

Anijen

These are some very salient points.  However, I think the Court's holding was not that Mr. Phillips has a constitutional right (under the Free Exercise and/or Free Speech clause(s)) to refuse to make a "gay wedding"-themed cake.  Rather, the Court's holding was that the Colorado Civil RIghts Commission "in this case violated the Free Exercise Clause" because "[while] Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion."  The Commission failed to provide a "neutral" application of the law because its members "[publicly] 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."  Moreover, none of the members of the Commission "objected to the comments," nor were their prejudical statements "mentioned in the later state-court ruling or disavowed in the briefs filed [in the Supreme Court]."  These comments "cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case." 

Further doubt was cast by the Commission's "different treatment" of three subsequent cases in which the Commission allowed other bakers to refuse requests for them to create "cakes depicting anti-gay marriage symbolism."  SCOTUS therefore found that the Commission "violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint" (a violation of the Free Exercise Clause).

However, we are still left with no answer to the question of Mr. Phillips's "right to abstain from compelled speech."  He can (and likely will) be sued again.  And will end up before the same bigoted Civil Rights Commission, the members of which will decide . . . what?  And will that decision pass constitutional muster ("[R]eligious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.")?  

Impossible to say, since SCOTUS kicked the can down the road.  

Thanks,

-Smac

[Anijen]

2 hours ago, Scott Lloyd said:

I immediately had the same thought as you when I read the “within reason” phrase. Whose “reason” prevails when it’s a question of violating First Amendment freedoms?

Reason is one of the first things you learn in law school. Within reason simply means it has a reasonable person standard. basically, a hypothetical, here, a reasonable person who behaves in a way that is legally appropriate. Those who do not meet this standard (behaving like a reasonably prudent person in the same or similar circumstance would behave) would be considered liable for damages caused by their actions. 

Quote

Whose “reason” prevails when it’s a question of violating First Amendment freedoms?

For Mr. Phillips, to apply the reasonable person standard we would ask; Would another baker, with similar religious convictions feel like their artistic creation of a wedding cake designed in a manner that goes against ones deeply held religious view violate their First Amendment Rights? We would conclude that a reasonable person in the same or similar circumstances would respond the same way Mr. Phillips did.

For the gay couple, would another couple in the same or similar circumstances (looking for a baker for their wedding cake) respond as a reasonable customer would? Here, we would probably say no; a couple looking for a wedding cake who has been denied that service we would reasonably conclude that a similar couple would go to another baker and never patronize the first bakers shop again (law of the free market). However, we do have the issue that this isn't a normal customer looking for just a baker for their wedding cake. This couple actively searched other bakers until they found a baker that would expressly refuse their cake. This told the Court that although they did want their wedding cake they also wanted to use that occasion to force litigation on the matter.

In simpler terms this means a reasonable person would construe this as bullying. Because by having a biased court (Colorado Commission) side with the couple and in a manner grossly negligent in their duty to stay neutral in their judgment. 

It would not surprise me if there was a connection (even conspiratorial) between judge on the Colorado Commission and the couple. I say this because of the couple actively seeking a baker who would expressly refuse that sell.

Edited June 12, 2018 by Anijen

[Scott Lloyd]

13 minutes ago, smac97 said:

These are some very salient points.  However, I think the Court's holding was not that Mr. Phillips has a constitutional right (under the Free Exercise and/or Free Speech clause(s)) to refuse to make a "gay wedding"-themed cake.  Rather, the Court's holding was that the Colorado Civil RIghts Commission "in this case violated the Free Exercise Clause" because "[while] Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion."  The Commission failed to provide a "neutral" application of the law because its members "[publicly] 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."  Moreover, none of the members of the Commission "objected to the comments," nor were their prejudical statements "mentioned in the later state-court ruling or disavowed in the briefs filed [in the Supreme Court]."  These comments "cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case." 

Further doubt was cast by the Commission's "different treatment" of three subsequent cases in which the Commission allowed other bakers to refuse requests for them to create "cakes depicting anti-gay marriage symbolism."  SCOTUS therefore found that the Commission "violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint" (a violation of the Free Exercise Clause).

However, we are still left with no answer to the question of Mr. Phillips's "right to abstain from compelled speech."  He can (and likely will) be sued again.  And will end up before the same bigoted Civil Rights Commission, the members of which will decide . . . what?  And will that decision pass constitutional muster ("[R]eligious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.")?  

Impossible to say, since SCOTUS kicked the can down the road.  

Thanks,

-Smac

After this much time has passed, I wonder if the makeup of the Colorado Civil Rights Commission is still substantially the same. More particularly, I wonder if the member who made the bigoted comments about religious faith is still on the commission. 

I just had an amusing thought: Should the commission now undergo sensitivity training to teach them not to say nasty things about religion in their rulings, similar to how they were going to make the baker have his employees undergo mandatory, Soviet style re-education?

Edited June 12, 2018 by Scott Lloyd

[Anijen]

4 minutes ago, Scott Lloyd said:

After this much time has passed, I wonder if the makeup of the Colorado Civil Rights Commission is still substantially the same. More particularly, I wonder if the member who made the bigoted comments about religious faith is still on the commission. 

I just had an amusing thought: Should the commission now undergo sensitivity training to teach them not to say nasty things about religion in their rulings, similar to how they were going to make the baker have his employees undergo mandatory, Soviet style re-education. 

The lawyer in me says no they shouldn't have to because we cannot force how a person should think. However, I admit, would find it amusing and a sentence worthy of the crime.

[smac97]

Just now, Anijen said:

Reason is one of the first things you learn in law school. Within reason simply means it has a reasonable person standard.

Yes.  However, the "reasonable person" standard applies in some contexts (such as the "duty of care" owed in a negligent tort dispute), but I'm not sure how applicable it is to constitutional theory relating to the Free Exercise Clause.  My sense is that Free Speech is constrained only by a very few limitations, and is otherwise unfettered by anything approaching a "reasonable person" or "within reason" standard.

The point of Free Speech, after all, is that were entitled to it precisely because people need to be able to dissent, to have and express unpopular views, to say things that other people might not think are "reasonable."

Freedom of speech and expression, "may not be recognized as being absolute, and common limitations to freedom of speech relate to libel, slander, obscenity, pornography, sedition, incitement, fighting words, classified information, copyright violation, trade secrets, food labeling, non-disclosure agreements, the right to privacy, the right to be forgotten, public security, and perjury."  None of these limitations apply to Mr. Phillips's case.  A corollary cosntitutional concept, "Compelled Speech," provides that "the First Amendment ... in many cases [] protects an individual from being required to utter or otherwise express a thought with which they disagree."

The questions in this matter, therefore, are

A) whether preparing custom-made "gay wedding"-themed cakes are to be considered "artistic speech" for First Amendment / "Free Speech" purposes,

B) whether a state "Public Accommodations" or "Anti-Discrimination" statute can be applied to compel a baker like Mr. Baker to prepare "gay wedding"-themed cakes, or whether such an application of such laws violate the Free Exercise and/or Free Speech Clauses of the Constitution.

Just now, Anijen said:

For Mr. Phillips, to apply the reasonable person standard we would ask; Would another baker, with similar religious convictions feel like their artistic creation of a wedding cake designed in a manner that goes against ones deeply held religious view violate their First Amendment Rights?  We would conclude that a reasonable person in the same or similar circumstances would respond the same way Mr. Phillips did.

I am not sure we would ask that, or that we would apply the "reasonable person standard" in the context of constitutional Free Exercise and/or Free Speech analysis.

Thanks,

-Smac

[Gray]

4 hours ago, Kenngo1969 said:

We're talking in circles, and this will be my last post to you: If it were about the people ("We don't serve your kind here") he would not have offered to sell them any other item in the shop.

There is no substantive difference between "we don't serve your kind here" and "we don't serve some things to your kind here".

[Gray]

3 hours ago, smac97 said:

I've read it.  Including the part where he says he "would gladly serve [the gay couple] any other baked good."

I invite you to research this point a bit more.  You'll find that Mr. Phillips refuses to make "gay wedding"-themed cakes for anyone, regardless of their sexual orientation.

Thanks,

-Smac

The quote speaks for itself. Let's respond to what it said, not what you wish it said.

[smac97]

Interesting:

Quote

Last week, The Supreme Court ruled that a baker in Colorado was not required by law to provide a cake for a gay wedding, citing the right of individuals to deny certain services based on religious beliefs. 

...

Wanting to know where college students stood on the issue, I headed to George Washington University in Washington, D.C.

The students I spoke with strongly opposed both the ruling and the actions of the baker himself, arguing that he should have been compelled to bake the cake regardless of his personal beliefs.

“If his job is to bake a cake for a wedding, even if he doesn’t agree with it, he should still have to do it,” said one student. 

“His ability to exercise his freedom of religion ends when that infringes on another person’s ability to be who they are,” insisted another. 

Wanting to know if students would still want the government to intervene if the baker were of a different religion or conviction, we asked students a new series of questions...

Watch the full video to see what they had to say:

 

I can't help but juxtapose the near-instantaneous condemnation by some of these students of Mr. Phillips, which students then resort to "Umms" and "Uhhhs" when asked about forcing someone to bake a cake in other contexts (like a forcing an African American baker to bake a cake for a KKK rally).

Hopefully these folks will give some further thought to their initial responses.  Some of the students at the end of the vid were a bit more reasonable and circumspect.  Good for them.

Thanks,

-Smac

[california boy]

1 hour ago, kllindley said:

Seriously? Are we intentionally muddying the waters or is it just that difficult to keep the facts straight?

I don't want religion to be a protected class. The idea of protected class started with the Civil Rights movement. For 150 years before that, the right to religious expression had been established and protected by the Bill of Rights. 

The case at hand has nothing at all to do with religion as a protected class in anti-discrimination law. 

Religion already is s protected class

[smac97]

2 minutes ago, Gray said:

There is no substantive difference between "we don't serve your kind here" and "we don't serve some things to your kind here".

But there is a very substantive difference between "we don't serve your kind here" and "We are happy to serve you anything in our store, but our inventory does not include what you are asking us to provide."

The former is a baseless slander of and false accusation against Mr. Phillips.  The latter is a paraphrase of what he has said many, many times.

Thanks,

-Smac

[smac97]

5 minutes ago, Gray said:

The quote speaks for itself. Let's respond to what it said, not what you wish it said.

Says the guy who is falsely characterizing Mr. Phillips's position as "We don't serve your kind here."

You are bearing false witness against him.  I hope you stop it.

-Smac

Edited June 12, 2018 by smac97

[Gray]

3 hours ago, USU78 said:

Judge much?

Back when Epiphanes was G-d/King in the Levant, a couple of things happened:

First, in order to "get along" among the body-worshiping Greeks and Hellenists, Jewish men were getting circumcision reversal surgery so they could hang out nude in the baths and the gyms.  Zeus forbid that the body he had created perfect in every way should be marred by local superstitionists, and, worse yet, that men would have to look at the marred members of subject peoples.  There wasn't particularly any law enjoining such behavior, but societal "norms," brought about through blessed changes in outlooks among the superstitionists, who otherwise couldn't do business with their betters, held sway.

But mens sana in corpore sano wasn't enough, as the G-d/King Epiphanes came to the conclusion for whatever reason that uniformity of worship was a worthy societal goal.  And thus a campaign to require all superstitionists to sacrifice before the altar whereon stood an effigy of the G-d/King Epiphanes was launched throughout the lands where the G-d/King Epiphanes' writ ran.  And it ran into Jerusalem.  Into the Second Temple.  The one built by guys with trowels in one hand and swords in the other because of the unceasing attacks by neighbors hoping the Jews would fail and go running back to Babylon.

That effigy, called the Abomination of Desolation, caused a revolt by civilized and tolerant Jews who had finally had enough.  Bad enough to be subject peoples.  Bad enough to be cut out of commerce unless outward shows of rejection of superstitionism were made.  But to be compelled to participate in an abominable rite upon the desecrated altar scant yards from the Debir was a step too far.  The Hellenes and Hellenists were met with blood and horror as it became too expensive in men and materiel to hold onto Judaea. 

And thus were the Jews made free to worship in their own temple as they chose.

To compel someone to participate in a sacrifice by making him sacrifice a pig upon a desecrated altar is a bad thing when pigs are particularly unclean to him, no?

To compel someone to raise pigs for sacrifice upon a desecrated altar is a bad thing when pigs are particularly unclean to him, no?

To compel someone to drive pigs to the temple precincts for sacrifice upon a desecratedan altar is a bad thing when pigs are particularly unclean to him, no?

To compel someone to sell or be taxed on his grain for feeding the pigs to be driven to the temple precincts for sacrifice upon a desecrated altar is a bad thing when pigs are particularly unclean to him, no?

Just so is compulsory participation in an abominable rite a bad thing.

Because homosexual marriage, to the believer, is as abominable a thing as participation in any particular in the sacrifice of pigs before the effigy of Epiphanes on the desecrated altar of the Second Temple.

The culture of professional victimhood on the extremes of the religious right is something to behold. A king putting an idol in a temple is somehow the same as a businessman being obliged to follow civil rights laws in his public place of business. But I do appreciate the reiteration of the story of Epiphanes, it's fascinating.

[Gray]

3 hours ago, smac97 said:

No, they don't.  Mr. Phillips is willing to sell anything his store produces to a gay couple.  "Gay wedding"-themed cakes are not in his inventory.  He refuses to make them for anyone.

Thanks,

-Smac

He said he wouldn't sell them to gay couples.

[Gray]

3 hours ago, smac97 said:

SCOTUS reversed the decision of the Colorado Civil Rights Commission and the Colorado Court of Appeals.

So technically no, he didn't act unlawfully.  We're back to square one.

Thanks,

-Smac

That wasn't the finding.

[Gray]

2 hours ago, Calm said:

I am not arguing for right and wrong, but accuracy

and again you imply he wouldn’t have sold anything for a gay man while it is not selling one thing.

I don’t agree with him, but I do not see that as a reason to misrepresent him.

I don't see a substantive difference. The intent is just as malicious either way.

[smac97]

2 minutes ago, Gray said:

Quote

No, they don't.  Mr. Phillips is willing to sell anything his store produces to a gay couple.  "Gay wedding"-themed cakes are not in his inventory.  He refuses to make them for anyone.

Thanks,

-Smac

He said he wouldn't sell them to gay couples.

He has repeatedly wouldn't sell a "gay wedding"-themed wedding cake to anyone.

Thanks,

-Smac

[Gray]

2 hours ago, kllindley said:

You stated that it's okay to discriminate against people who are not a protected class, i.e. on political grounds. That means that classifying sexual orientation as a protected class gives them additional protections not granted to other individuals.

I said it was legal, I didn't comment on whether it's okay.

Giving gay people protected class status puts them on equal ground with other innate identities (religious, ethnic, gender, etc)

[Gray]

2 hours ago, Kenngo1969 said:

By that same logic, he's treating my hypothetical poor, aggrieved, Goth-and-Occult loving Halloween celebrator for whom he refuses to make a custom Halloween-themed cake as a second-class citizen as well.  (Or, as I and others have been saying in this thread repeatedly, perhaps Mr. Phillips' refusal in both cases really is a principled stand which is about the event and not about the potential patron(s).) 

That's a really bad and irrelevant hypothetical.

[Gray]

1 minute ago, smac97 said:

He has repeatedly wouldn't sell a "gay wedding"-themed wedding cake to anyone.

Thanks,

-Smac

You're doing a considerable amount of creative reinterpretation.

[Gray]

7 minutes ago, smac97 said:

Says the guy who is falsely characterizing Mr. Phillips's position as "We don't serve your kind here."

You are bearing false witness against him.  I hope you stop it.

-Smac

I hope you stop personally attacking me. Especially since you are the one misrepresenting Phillips, not me.

[Gray]

3 hours ago, smac97 said:

When people like you add a caveat like "within reason," people like me get nervous.

Free Speech doesn't work that way.  There are a very few exceptions to the protections of the Free Speech claus.  Speaking "'within reason,' as that phrase is subjectively and arbitrarily defined by Gray" is not one of them.

As a lawyer, I'm sure you're aware that freedom of speech is not unlimited. You're aware of that, correct?

 

3 hours ago, smac97 said:

I am not speaking of "food" generally (nor is Mr. Phillips, who will sell anything to anybody except themed cakes that contravene his religious beliefs (which he will not sell to anybody).

This issue is not about "food," any more than Cohen v. California was about clothing.  The issue is about artistic speech, which is plainly within the parameters of the First Amendment.  See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569 (1995) (painting, music and poetry are "unquestionably shielded" by First Amendment); Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989) ("Music, as a form of expression and communication, is protected under the First Amendment"); Schad v. Mount Ephraim, 452 U.S. 61, 65 (1981) ("Entertainment, as well as political and ideological speech, is protected: motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment's guarantee"); Burstyn v. Wilson, 343 U.S. 495, 501 (1952) ("[M]otion pictures are a significant medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression."). 

Nevertheless, I think we will have to wait and see whether custom-designed "themed" wedding cakes fall within the parameters of "artistic speech."  I think they do.

Thanks,

-Smac

Yeah, it's food.

[smac97]

3 minutes ago, Gray said:

Quote

SCOTUS reversed the decision of the Colorado Civil Rights Commission and the Colorado Court of Appeals.

So technically no, he didn't act unlawfully.  We're back to square one.

Thanks,

-Smac

That wasn't the finding.

Yes, it was.  See page 3 of the decision (page 3 of the PDF).  It's right there: "370 P. 3d 272, reversed" (emphasis added).

See also this (from page 1 of the PDF):

Quote

Held: The [Colorado Civil Rights] Commission’s actions in this case violated the Free Exercise Clause. 

And this (from page 21 of the PDF) (emphasis added):

Quote

The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. 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. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.

The outcome of cases like this in other circumstances must await further elaboration in the courts, 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.

The judgment of the Colorado Court of Appeals is reversed.

Thanks,

-Smac

[smac97]

Just now, Gray said:

As a lawyer, I'm sure you're aware that freedom of speech is not unlimited. You're aware of that, correct?

Having just itemized the limitations on Free Speech in this very thread, yes.

Just now, Gray said:

Yeah, it's food.

And the jacket in Cohen v. California was clothing.  And yet that clothing carried a message.  And that message was construed as protected "speech."

What are your thoughts about the Colorado Civil Rights Commission's treatment of the three subsequent cases about bakers being asked to prepare cakes with messages they found incompatible with their personal convictions?  Was it just "food" when those bakers were involved?

Thanks,

-Smac