Genuine question: who SHOULD be deciding, then?
I think the point was - nobody. That (in this respect) religious beliefs should be subsumed under freedom of speech. The motivation for the beliefs should not be relevant.
Yeah, well, given the role of religion in daily life and lawmaking, I’m kind of skeptical that this question can be limited to “this respect.” IE I think the answer will inevitably spill over into every other respect and facet of American life that religion even remotely touches. (Spoiler: I believe there’s very little that does not match this description.)
ISTM that freedom of religion necessarily entails freedom FROM everybody else’s religion. It also necessarily entails tolerating their religious beliefs. (Something I am not necessarily in favour of, because IMO many people’s religions are not worthy to be tolerated, but that’s my problem.)
No self-respecting hard-line Christian baker can in good conscience endorse a bar mitzvah. Nor can he be extremely pleased with making a cake for me, a Christian who is so liberal that I hardly even count as Christian at all. In fact making a cake for me is probably more offensive to him than the gay guys’ cake, if he took a few minutes to talk with me. 
But he has to make cakes for Jews if they’re willing to pay for it, and he has to make a cake for me if I hand over the cash as well.
How is this issue any different than making a cake for a bar mitzvah - or for an ancient atheist ritual involving a pizza, a cake, and a case of beer?
I missed the window, but part of my point was that just as the baker doesn’t want to deal with my religion, I don’t want to deal with his either, and we clearly find each other’s religious points of view distasteful. But that doesn’t give either of us the right to discriminate against each other.
Expressly Christian businesses that serve only Christians or people who want to buy Christian goods and services have a right to exist. Masterpiece Cake Shop was not such a business, but I think any business that advertises itself as expressly Christian would have no problem winning a case against serving people in ways that are not Christian. After all, if you don’t want Christian services, why would you go to a Christian goods or service provider? It’s like going to a kosher restaurant and demanding pork and then claiming discrimination. Christian bookstores don’t have to order “50 Shades” books for customers, or sell Korans.
I’m confused by those who are having trouble with what Justice Kennedy did here. Kennedy said,
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You can’t discriminate against gays, but when deciding whether or not someone is doing that, the state has to consider the claim of discrimination in a way which is neutral toward religion.
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You can’t be neutral in such consideration if you are clearly and “impermissibly” hostile toward religion.
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The Colorado CRC was clearly hostile toward the religion of the person accused of discrimination, in ways which are impermissible (specific examples noted).
This isn’t particularly difficult to follow, and please note that 5 other justices signed on to the opinion, including J. Kagan. It would be perfectly possible for the Colorado CRC to discuss the claim of discrimination without making comments that showed hostility toward the religion professed by the person accused of discrimination. For example, some members of the CRC “disparaged Phillips’ faith as despicable”; clearly it’s possible for the commission to determine whether or not discrimination occurred without making such disparaging remarks, n’est-çe pas? Finally, Justice Kennedy clearly sets forth the factors that precedent establish should be followed in determining of impermissible hostility occurred, and then measures the noted hostility against those factors. Where, then, is this claimed touchy feely behavior that lacks clear precedents?
Finally, I will note for the record that this decision had NOTHING to do with “due process” except to the extent that the First Amendment’s freedom of religion guarantees are only applied to the states via the concept of “due process”. It’s not a due process case (the decision isn’t based upon a decision that the Colorado CRC denied the baker a proper process), but rather a First Amendment Free Exercise case.
Well, no, unless you misstated what you meant to say. You are conflating the product sold and the customer you are selling it to. Of course you can run a business that only sells Christian products - a Christian bookstore, say. But you cannot run a “public accommodation” business (a term that includes retails stores) that will serve only Christian customers.
This is a deliberate misstatement of the
case. The issue was not what was on the cake. The discrimination occurred because of who the customers were. All they wanted was a wedding cake like everyone else. Not an anal sex cake, or an ass-less chaps cake. Quit making up irrelevant hypotheticals.
But if gay men and Jews come in wanting Bibles, they have to serve those customers.
Can almost hear the Whoosh.
UltraVires was replying to a point raised by jsyjay ans was making a general analogy about Civil Rights laws, not an analogy about the particulars of the Masterpiece Cakeshop case.
Can I open a store that refuses to serve anyone taller than five-foot-six?
Or anyone wearing gloves?
The issue I have is that Kennedy is saying that the CRC could have taken the IDENTICAL action it took here if only it had used softer words. If a state has made a decision to outlaw the refusal of sale of a SSM wedding cake, it has already decided that such a policy outweighs an individual’s religious belief against it. In a sense, it is already “hostile” towards that belief, but Kennedy seems to say that the main factor in the analysis is how nice the administrative comments are during the process. I know of no precedent for that.
I’ll have to read it again, but I thought Kennedy punted on whether the First Amendment applied, it’s just that Phillips had a right to a non-hostile committee to decide whether it applied in the first instance.
Yes. Kennedy punted.
I think the closest he came to the actual underlying issue was language that seems to agree that the baker’s work is speech worthy of First Amendment analysis. Some have disputed that the baker’s work counts as speech for the purposes of 1st amendment protection. If the Baronell Stutzman case goes forward the court can then decide if floral arrangement is speech. Or choose a more straightforward plaintiff such as a photographer whose profession has tended to be recognized as one of artistic endeavor.
It’s not “softer words”. It’s not displaying an overt hostility to the constitutional rights of the defendant. I don’t think it’s controversial to say that government officials need to take constitutional rights seriously.
I think it’s unfortunate that the SCOTUS punted on the core issue, but the ruling does address another important issue. Different speech and different groups were getting different protection under the law based on the commission’s personal beliefs. That’s something ripe for judicial review.
But that just begs the question. The question was were Phillips’ constitutional rights infringed at all by a law providing that public accommodations must serve people who are in protected classes. If the answer to that is “Yes” then the committee was wrong whether they were mean or nice to him. If the answer is “No” then it likewise doesn’t matter how nice or mean they were.
Several other points arise. Kennedy mentioned twice that since SSM was illegal in Colorado in 2012, then Phillips had a reasonable view that he could likewise refuse to bake SSM cakes. Does that change now that SSM is legal? If not, why mention it?
Kennedy didn’t say this. It seems to me he went out of his way to avoid saying this.
As much as this is framed as an LGBT/civil-rights issue, I can’t help but suspect that another, underlying motive beneath much of this is a desire to see religious people squirm. Like a “let’s see how this Muslim reacts in the presence of pork” curiosity. Sure, some are genuinely in this for gay rights, but some others are motivated by “His religious views object to LGBT, therefore, let’s FORCE him to promote LGBT to see the contorted expression on his face!”
Well, maybe, but there may also be an element of “He’s claiming a religious belief to cover for his bigotry, so let him explain how he came to believe it and where he found it in his faith’s teachings”. I don’t see the problem with the Commission or anyone else challenging that sort of claim; it’s certainly common enough.
Well, I could maybe see that sort of inquiry being permissible if some guy is claiming that his religion requires him to throw darts at customers walking into his store.
But the traditional Judeo-Christian opposition to homosexuality is so well known that we can take judicial notice of the belief, even if we disagree with it.
Or are you saying that the committee should grill the guy and prove that he really, really opposes homosexuality due to his religious beliefs? What if he just got “saved” last night? Not good enough? Is there a sufficient time period one has to hold a religious belief?