I’m not scolding, but religion is a suspect class. Gays are not.
I think they should be, and I’m guessing you do, too. But currently, they are not.
I am aware of this. I’ve tried to be careful in my wording, that I am arguing how I believe the law of the land SHOULD be, not placing bets on PredictIt.com on how it will be interpreted. I am aware that setting up sexual preference as a suspect class would be at least somewhat new. I nonetheless argue that this should happen.
If your argument is that sexual orientation (and gender identity) should be a protected class, then I agree with you. I would do what the EEOC did and just file it under sex for now.
I didn’t think your argument was about protected classification until just now.
I don’t think you can. Absent an admission from the baker to the contrary, his conscience is HIS conscience. The more I think of it the more it seems like the baker wins unless the court expands the definition of protected class.
See Iggy’s post about November 9th. Context matters.
Are you saying that the state was discriminating against the baker’s religion when they allowed bakery to refuse to bake an antigay marriage cake but not a cake celebrating a gay marriage?
Remember that the Court will make the narrowest ruling it can, unless there is a strong majority on one side or the other, and will avoid striking the statute as unconstitutional. The easiest way to do that is simply to rule on the facts: the baker was never asked to engage in speech by the couple, only to make a cake for a gay wedding.
A cake bearing a particular message (such as the rainbow) might well qualify as speech, and thus the administrative order might well qualify as compelled speech. But things never got that far in this case. The baker refused to make a cake for a gay wedding regardless of what message - if any - the cake was intended to express. He discriminated against the couple based on who they were, not what they asked for.
It’s a bridge too far for the court to find that a wholly hypothetical cake design request infringed on the baker’s rights. To use one - somewhat inapposite - analogy that has been trotted out in this debate, he didn’t refuse to serve black people [insert fried chicken or stereotypically black foods here], he refused to serve them food.
Obviously, that sort of narrow ruling is a problematic because it likely means we’ll be back here in five years with a baker who actually has a colorable argument about speech, but it is what it is.
Kennedy has long been in “no fs to give” mode. If he’s the deciding vote he’s not going to be afraid to go big. He’s been the author of quite a few huge, broad opinions in recent years.
I agree that the statute won’t be struck down, what will be rebuffed is the arbitrary nature of the Colorado civil rights commission, which will need “reeducation” in basic matters of law and justice. They need to boot the SJWs and replace them with legal minds.
What will also be expanded, IMO, is that while businesses are a public accomodation, custom-made art is not part of that. It has never been true that you could get whatever you want made by someone, but it’s always been a little unclear just under what conditions you can be refused. I think the court will basically say, “Whenever the artist in question wants to.”
I think that’s where you misunderstand the court’s desire to make rulings as narrow as possible. A narrow ruling is desirable, unless the narrow ruling leaves major issues that are very likely to end up back on the court’s docket unsettled. I don’t think any of the justices want to deal with this exact same case next year. “So this baker said he’d make us a wedding cake, but only if the topper had a man and a woman on it!”
- You are right, they absolutely don’t want to revisit this.
- Anthony Kennedy is very old and doesn’t want to take a chance on his philosophy being overriden. He wants to set broad precedents and has been quite busy doing that in the last few years. The other conservative justices are eager to support him, except for occasionally Roberts.
I’d also note that the liberal justices have been eager to sign onto Kennedy’s broad opinions that THEY liked, such as Obergefell. Anthony Kennedy is going to go down in history as one of the most powerful justices of all time, and I think he’s very comfortable with that and wants to expand his legacy.
I bet they toss it back to the state based on the bigoted statement of one of the board members.
Did you see the article in the NY Times that there is a case (sort of) like this in the UK?
You guys keep saying that gay people aren’t a protected class. But isn’t the whole point that they essentially are so protected in Colorado, due to the Public Accommodation law? I am doubtful that the Supreme Court will rule in such a way as to make all such laws illegal.
I have not seen any arguments from the baker that he is allowed to discriminate against gay people because they aren’t a federally protected class. It’s all been based on freedom of speech and how that interacts with his freedom of religion. The argument is that he is not actually discriminating against gay people, but simply is refusing to use his speech to participate in a gay wedding due to his religious beliefs.
I think that religion being a protected class would only be relevant if he was being discriminated against for his religion. But the buyers weren’t doing that. They just went to him because they knew he had refused to make such cakes before. The state courts weren’t doing that: they would rule the same way whether he was religious or not. The law makes no mention of religion.
Where I would see a religious conflict would be with the RFRA, a Federal statute. I do not know how that interacts with state law, however.
I think the question will be whether or not the cake itself is speech. Since they had not even discussed what would go on the cake, I cannot see any good argument for saying speech was invoked here. Still, they took the case, which suggests they want to make some sort of ruling. Because of this, my hope is that they are going to clarify when speech is invoked.
The idea that merely serving these people is itself speech is a horrible one, and would gut protections for even protected classes. It is my hope that this will not be done. If it does, we will need a new Civil Rights movement to undo it. It is that bad.
They may not have been at the time, but then the case would be moot now.
The issue of homosexuality not being a suspect class at the federal level may not matter, or not. But the issue is raised as there are federally protected rights under the First Amendment. Since federal law generally trumps state law then how can a state designation of suspect class provide rights the trump rights which are protected at the federal level?
As to the Asher’s Bakery case out of Northern Ireland, there is at least two issues not present in the Colorado case. First, there was a particular specific design requested by the customer. And second, that design included a trademarked image of Sesame Street characters Bert and Ernie for which the customer did not hold rights. Such details make it different case in some important ways.
While a court might rule to generally compel a baker to serve a customer without regard to sexual orientation, I would be surprised if that included to produce designs that misuse another’s trademark.
The baker has two arguments. One is that Colorado law discriminates against his religion. Since the law in question is facially neutral to religion, and Colorado does not have a state RFRA, pretty much everyone except Liberty Counsel agrees that argument will fail.
The second argument is that he is being compelled to engage in speech. This is a closer theoretical question, but as I’ve explained it’s not actually a close fact question because the cake design wasn’t discussed.
[My bolding]. Um, what? The couple were surprised to be turned away, by their own admission.
The federal RFRA only applies to interpretation of federal statutes. It originally purported to limit the power of state governments to legislate too, but that portion was overturned by SCOTUS years ago and has no effect.
That’s actually a fairly broad ruling. That is saying that you cannot object to the event itself, you can only object to design elements. IOW the baker would have been obligated to make a generic looking cake to celebrate an event he profoundly disagreed with.
So by that token if “political ideology” (or something like that) were a "Colorado protected class then Donald Trump could get a feminist band to perform at his inauguration if they were generally for hire.
A question for our legal experts. If the Supremes rule in favor of the baker, would we see this play out:
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Adam and Steve could not be turned away by a restaurant just because they were gay. They could eat dinner without fear of being kicked out. (Someone might try to kick them out, but Adam and Steve would have legal recourse.)
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If Adam and Steve wanted to host their wedding rehearsal dinner a the restaurant, they could be turned down, even if there were no “gay symbols” that were planned as part of the celebration.
I dunno, a gay couple sitting down and eating in a restaurant like a normal couple would seems to me to be the restaurant endorsing gay marriage. They aren’t being turned away because they are gay, if they want to come in individually, or come as a group, or sit at the bar, that’s fine. But allowing them to sit at a table, just the two of them, could be considered to be too violative of the sanctity of marriage for a religious owned restaurant to tolerate.
Especially when it comes to restaurants that are know to be romantic spots. Seems seating a gay couple there would be a very strong endorsement of gay marriage.
(Note, I am not endorsing this view, just pointing out that I see that as the next step if the SCOTUS rules in favor of the baker.)
Agreed.
ETA: Sorry, not a legal expert, just IMHO…
No worries. The distinction I was trying to draw was an endorsement of an actual wedding. People eating dinner at a restaurant isn’t tied to being in any kind of a relationship at all. I was thinking of this in light of the CO law, not in general across the US. I believe there are some states where you can be refused service just because you are gay.
I am just thinking that some bigoted restaurant owner may use this as an excuse to discriminate against a gay couple wishing to eat in his restaurant.
Dunno if it would hold up, but I am of the opinion that the current subject, the baker, was in the wrong. If SCOTUS sides with the baker, I don’t know where the right to discriminate will end.
That is quite correct, most of them in fact. I live in one of them.
First, IANAL. I did read the transcript of oral arguments.
Justice Breyer asked how, if the court were to rule in favor of the baker, a rule could be fashioned that would not undermine all of Civil Rights jurisprudence. They are taking the slippery slope seriously.
And Justice Sotomayor asked a series of questions about what sorts of professionals might be able to claim an exemption based on a compelled speech standard. Lawyer for the baker indicated that it would only be engaged where the product or service is an expressive conduct. She posited that certain professionals’ service is expressive conduct but others is not, including the chef.
So at least in the opinion of the lawyer for the baker a restaurant would still be compelled to provide service to a gay couple (as in scenario 1) and would be compelled to rent a private room (as in scenario 2) assuming they offered such a service generally. The reasoning is that a meal served in a restaurant or the renting of a private room is not expressive conduct, at least in the view of the baker’s lawyer. Photographers get an exemption, but chefs and makeup artists don’t in her view.
However that was a set of hypotheticals based upon a First Amendment compelled speech analysis. It is possible that a claim on Freedom of Religion or on Free Association grounds could be raised. If the court deals with the Masterpiece Cakeshop case without reaching Freedom of Religion or Free Association then such grounds would be fodder for any future case.
How would the restaurant owner know they were gay?