Yes; I read the ruling, concurrences, and dissent in their entirety and stand by what I said.
I agree, mostly. Buying an “off the shelf item” is quite different from buying a custom piece of art (if we assume that a cake qualifies as such).
The thing is, with the ruling, is that it was based on Free Exercise because of the alleged hostility the Commission had towards religion. The baker was claiming it was a Free Speech issue, but the ruling came down on the process of implementation, which was aFree Exercise issue.
Excellent post and the best explanation of the ruling I’ve read thus far.
Then I’m in full agreement with you. I was referring to the underlying claim that the Supreme Court did not address, which I think a lot of folks are confused about. As I see it, the free-speech argument would be the same even if the baker were opposed to same-sex marriage for reasons other than religion.
Perhaps but they use religion since it gets explicit protection that other reasons might not.
In your opinion. I prefer to go by what the Supreme Court actually ruled.
I hear one of the minor sports teams in Denver is considering changing their name to the Denver Bakers. Talk about multiple meanings!
just kidding!
Let’s see, is murder protected by the first amendment? No? Then, no.
Is refusing to bake a cake in Colorado for a same sex wedding protected by the First Amendment? Likely, no as well.
Perhaps not, but a process that respects constitutional rights and applies the law to all groups equally surely is.
Wrong thread!
This actually makes more sense, Mr. Mace.
Good post.
I wonder whether the reportedly “toothless” ruling here was treading lightly for a very good reason; perhaps it has backhandedly shown just how flimsy the religious exemption from justice is, and serves to hog-tie hardline religious judges in the future.
I suspect we’ve all spent more time thinking about the issue than the Supremes did.
I think that if push came to shove and the SCOTUS had to decide about gays and public accommodation, the current court would explicitly make sexual orientation a suspect class. Not strict scrutiny, but intermediate scrutiny like gender.
I honestly don’t see how this isn’t the case already.
If a woman asks that baker to make a wedding cake, explaining that it’s because she’s marrying the woman who’s standing right over there, said baker will explain right back that, no, he won’t do that. “oh, look, I’d totally do that if you were a man,” he’d say; “but, seeing as how you’re a woman, I won’t.”
Imagine that a black woman had asked to buy a wedding cake, and got told (a) no; but (b) if you were white, then that’d be a ‘yes’. That’s a time when strict scrutiny should be applied, right? So, given a woman who gets told (a) no; but (b) if you were a man, then that’d be a ‘yes’, then shouldn’t intermediate scrutiny kick in?
This line of thought has been discussed by several courts and in other threads. Some people agree with you. However, I think the more correct view is that the baker is not discriminating against that woman because of the reasons why gender was protected in the first place or because of hatred or animus towards women. He would have no problem serving her if she were single or married to a man.
So the determining factor behind his differential treatment is not that he hates women, or believes that she should be home cooking or giving birth, it is that he dislikes this particular’s woman’s romantic choices/orientation/lifestyle/biological sexual predilection. That is not gender discrimination, but discrimination against sexual orientation which the federal government and many states have known about and deliberately chosen not to criminalize.
Again: imagine a black person asks to buy a wedding cake, and gets an “uh, see, you’re marrying a white person, and so the answer is ‘no’. If you were white, I’d of course make you that cake — or, for that matter, if the person you’re marrying were black, I’d have no problem making you a cake! That said: I hereby refuse to make you a cake, though I’d do it if you were of a different race. [long pause] I’d also do it if the other person were of a different race, but I don’t know if that’s relevant.”
Is it relevant? Say that case goes to court: what happens?
Unlike with gender, the motivation behind the refusal to sell the wedding cake is animus towards the black person’s race. The motivation is the idea that the black man is inferior to a white man and should not be marrying a white woman. Thus the black man is denied a public accommodation because of the lingering idea that his race is inferior. No such hostility is felt by the women, because she is a woman, but because she is homosexual.
I mean, we can discuss hypotheticals all day long. What if a print shop is asked to reproduce a billboard with a picture of a black man after a lynching in the early 1920s? In the first instance, he learns that the caption below the picture will be “Promote Tolerance. Never Again!” so he makes it. In the second instance, he learns that the caption will be “Join the KKK! Bring back the good old days!” and he refuses.
An expert could come in with empirical studies showing that although there are plenty of whites in the diversity group, there are virtually (if any) zero blacks in the KKK, therefore percentage-wise, the print shop policy affects the white race more than the black race, so it is discrimination and illegal.
I think you get into a really fuzzy line when the law goes from refusal of service because of the protected class and into conduct of people in the protected class.