Well, IANAL and I’m not really sure I took a signal from it other than I think it’s a weird case to take and I don’t think the bakers have much of a shot. But we’ll see.
I don’t think that creativity and customization are enough to elevate cakemaking to some form of expressive speech. I think many skilled jobs involve both creativity and customization. I know my dentist has come up with some creative solutions for some of my dental problems and his work is certainly highly custom but that doesn’t make it some sort of protected speech.
My own work, which involves automation systems for custom homes, has strong creative elements and it’s certainly custom, but I can’t imagine what kind of reaction I’d get if I declined to program a romantic lighting scene for a gay couple and cited religious freedom (Well, actually I can imagine, I’d become an industry laughingstock and I’d never work again and that would be the free market making that decision, not a court).
But i really don’t see it. In fact,like the baker, I frequently do this custom work without meeting the couple face to face and if the first names are ambiguous sometimes I don’t even know the gender. I honestly don’t get what religion has to do with it.
But frankly, this is just light recreational outrage for me, and deep down I am happy that I live in a society that has progressed to the point where we are debating THIS. We’re not debating whether homosexuality should be legal, we’re not debating whether it’s a mental illness or a capital crime. Just this.
And so they passed the Fourteenth Amendment, which was in fact a quite substantive change to law. Now, I’m sure that it didn’t occur to them that by doing so they were legally protecting the rights of gay people, but then, it’s inherent in the nature of rule of law that laws sometimes have implications that aren’t obvious to those writing them.
The fact that it got relisted so many times and then granted cert after Gorsuch leads me to think either he was the vote to accept or a dissent from denying cert persuaded other members to switch their vote for cert.
Wait - what does this subject have to do with the 14th Amendment? This is the Civil Rights Act of 1964, like 100 years later, and then extended 40 or 50 years after that by some localities.
Uh, yeah, the extensions to civil rights protection were passed by legislators, so I’m not sure of your point.
Can the baker adopt a minor resistant stance by declaring that particular wedding figurines are now a signature artistic element of that bakery and that no cake will be sold without the combination of a Figurine A (a gender-neutral humanoid figure wearing a dark suit) and Figurine B (a gender-neutral humanoid figure wearing a white dress)? After all, there’s nothing gender-mandatory about wearing a dark suit or a white dress - any human of any gender can perfectly legally wear either outfit. The baker declares this figurine set is a mandatory element, design alteration requests will not be accepted, and all cakes will be delivered with this element. If the wedding party chooses to remove the figurines after the cake is delivered, that’s their choice.
Is there any reason this should not be legally acceptable? After all, one might have a deep-seated siderophobia, but can one then demand the right to purchase a Subaru built without their specific hood ornament?
One would think a lot of things were “solved” by the 14th. For some reason, though, it didn’t immediately give American women the vote. In fact, oddly, Section 1 refers to “all persons” and “citizens”, but Section 2 then says if a state abridges some portion of its male inhabitants right to vote, they lose congressional representation in proportion to that abridgment.
I suppose if Section 2 (or some other section) had specifically referred to protections for heterosexual Americans, one could infer that homosexual Americans were not assumed to get full “privileges or immunities” or “equal protection”, like women, who would have to wait for the 19th Amendment.
They didn’t add “…except for women…” either. But the Nineteenth Amendment was necessary to give women the constitutional right to vote, as opposed to merely pointing at the Fourteenth Amendment.
I think there are many – perhaps most – bakers for which this is true. They have basic designs, like “Three tiered cake,” and the customization is simply what frosting, color, lettering, or decorations are used; all of these options are presented to the customer and a cake is ordered.
But I also think that cake designer shops like this one don’t fit that model:
And the high-end architects and interior designers I work with design highly custom homes. Every little detail down to each door hinge is customized to the clients personal preference. But I still don’t see how this is protected speech or why an designer should get to refuse to design a bed because he doesn’t agree with what his customer might do in it. I’m just not seeing that as speech.
Yes, if a filmmaker were asked to make a documentary on how awesome gay marriage is, I think he should have the right to refuse. If Adam and Steve want to commission an grand opera based on the story of their love I think the composer ( opera maker?)should be able to refuse if he thinks the story of their love is icky. Frankly, I’m actually on the fence about wedding planners and photographers (mostly because of the participation level, not the level of artistry) -
if it were up for a vote I’d probably go against them but if they won I’d probably kind of see their point.
But bakers and cake makers? I don’t see it, no matter how custom and artistic the product is.
I thought Colorado legislators had already extended equal protection to gay people. Isn’t that what this lawsuit is about? Isn’t the baker asking the SCOTUS to override Colorado legislators on religious grounds?
The Colorado baker is exerting First Amendment Rights. The state is asserting that state law should override those First Amendment rights, in part by asserting 14th Amendment grounds.
Had Justice Kennedy used typical formulations in the Obergefell (legalizing same sex marriage nationwide) decision that homosexuality was a suspect class then this might be a bit different case. But he didn’t. As it stands sexual orientation is not a protected class under federal law - at least not clearly so. Perhaps the decision in this case could include such a ruling.
To use a rather pat truism, federal law takes precedent over state law. So if the only way to preserve one party’s rights guaranteed under state constitution and/or law is to use the power of the state to violate the federally constitutionally protected rights of the other party then how should a court balance that conflict of rights?
So what is a court to do it one party’s rights conflict with another party’s rights?
I don’t know, ask Bricker. He’s the one who (dismissively?) said that substantive changes to law should come from legislators. I was just pointing out this this law did come from legislators and it’s the baker who is asking SCOTUS to overturn it.
He’s asking that the Colorado legislators be overridden on compelled speech grounds, claiming that the First Amendment’s freedom of speech clause applies to expressive conduct and includes the right not to be forced to engage in expressive conduct.
If there was no 19th amendment and women still could not vote today I think it’d be a slam-dunk applying the 14th amendment to give them the right to vote.