I think your impression is correct, but I don’t find this sort of argument from the baker at all compelling. First of all, wedding cakes are not (in my experience) part of the wedding ceremony. They’re a festive dessert for the party afterwards (I know there are some customs associated with the cutting and serving, but they are not presided over by the officiant.)
I’ve had occasion to deal with a particular custom cake maker over the years, though not for a wedding. She has a lot of stock decorating flourishes that she can do, so there are nearly infinite possibilities for any given cake–I’m quite certain that every single custom job she’s done for me was absolutely unique (and beautiful and delicious). Most of the cakes were for birthdays, one for a graduation, and one for my son’s bar mitzvah party (the party was not in our synagogue, so it didn’t need kosher-certification for our family’s needs). There was nothing particularly Jewish about the cake design (except that it said “Mazal Tov!” on top), but I would be shocked if the law allowed her to refuse to make the cake because it was for the initiation rite of a religion she considered to be heathen.
I struggle to see how any custom cake, that doesn’t involve decorations or slogans or colors that the baker can’t/won’t do for reasons of skill or aesthetic taste and for which there are no logistical barriers, can be refused for reasons that depend on who the customer is.
State law cannot extend the federal definition of protected class. State law cannot trump first amendment religious freedom. SCOTUS might make sexual orientation a protected class.
No, it was a court decision that ended segregation on bus lines in Montgomery. You are probably thinking of the sit-in movement, which did force voluntary change (though I think it’s a stretch to say that “the free market” caused the change in policy).
Of course state law can extend the definition of what a protected class is. Obviously state law cannot change federal law, but a state can offer greater protections as it wishes. Your second sentence is more accurate.
My prediction (wild ass guess) is that the court will establish a balancing test of some kind where free speech is weighed against equal protection and find that the baker doesn’t meet the burden to show their speech is being compelled and rule against the baker. This would leave unexamined other similar things like painting, lobbying, etc.
6-3 with Roberts and Kennedy voting with the liberal wing.
That’s a meaningless quibble. A state can offer greater protection that overlaps and extends beyond what the federal definition is. Of course a state can’t change federal law, but as long as it is not in conflict with other federal laws, a state can simply adopt and expand on the federal protections as it wishes.
Look at what he said (emphasis added), especially in relation to what he said afterwards (the basis of this lawsuit, and what the SCOTUS will be deciding in this case):
“State law cannot extend the federal definition of protected class. State law cannot trump first amendment religious freedom.”
As you say, as long as the state law does not violate federal law, but also as in this case, as long as it doesn’t violat the federal constitution. And that is what is at play here. A question of equal protection vs 1st amendment. A state law cannot violate the 1st amendment, and whether that is happening or not is what the SCOTUS will decide in this case.
It’s going to all come down to Kennedy, right? I suspect you are correct in terms of what his position will be. I’ll be surprised if Roberts, Thomas, Alito or Gorsuch agrees with him.
Yes, I thought it was pretty clear that I was saying that states cannot extend the federal definition of protected class. And that’s what you need to get past the religious freedom argument. I can discriminate against left handed people with moustaches all day every day if my religion dictates but I cannot do so if left handed people become a protected class. A state cannot prevent me from discriminating against left handed people with moustaches by extending them protected class status and overcome my claim of religious freedom claim.
I am similarly allowed to discriminate against homosexual marriages if my religion dictates unless it is a protected class. The EEOC has ruled that sexual orientation is an extension of sex so this might be an opportunity for to recognize sexual orientation and gender identity as a an extension of sex and tada homosexuality becomes a protected class.
But the plain text of the law implies a nexus between discrimination against a particular protected quality that one’s customer has. IOW, I won’t serve YOU lunch because you are black, but I would serve a white person lunch. I will not rent YOU a hotel room because you are Chinese, but I would rent one to a white or black person. The customer is the one being discriminated against.
In your hypo, the store is not discriminating against the race of the customer at all. He will not bake an interracial marriage cake whether the customer was white, black or otherwise. He would not make such a cake for ANY customer, without regard to the customer’s protected class.
What if a t-shirt maker refuses to make a “Black Lives Matter” shirt? Is that discrimination based upon race? I think this whole line of thought goes beyond providing someone a service on an equal basis to others and gets more into that the store owner will not only serve people he would rather not, but he must submit to thoughts and ideas that he does not like, or at least pretend he has to like them.
What if he makes the same sex wedding cake, but curses the couple loudly, flings their change on the floor and tells them that they are going to hell for what they are doing, but here’s your fucking cake, I hope your wedding is a disaster and you both find the Lord. Is that a violation of the law?
Business license rules are typically set at the municipal or county level, which may be why you can’t find them (though I’m also curious about what specific rule bars that conduct).
I had a dry cleaner curse me out and refuse to give me my clothes back. It never occurred to me to report him to the municipality. I just stood there and said “give me back my stuff” loudly every time a new customer came in until he gave me back my stuff, and never went there again.
Oral arguments should be over by now. We can expect the release of the transcript later today and audio on Friday. Later this afternoon I expect we will see reports from journalists in attendance at the oral arguments. And then pundits will try to read the proverbial tea leaves based upon how the justices questioned the attorneys all in time for the evening news.
Release of the final decision could be as late as June 2018, the end of the current term. Realistically we should expect a minimum of 3 months. It could be any day that the court has scheduled for orders. There will be no advanced notice that the opinion will be handed down on any given day or week.
And some might even remind us (again) that it’s tricky to figure out which side of the argument a particular justice is on based on the questions asked.
