Wedding Cakes Are Better with Love than Spite

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David Lat writes that the right to same-sex marriage is safe but that doesn’t (necessarily) mean we get to trample on other people’s first amendment rights.

10 Comments for “Wedding Cakes Are Better with Love than Spite”

  1. posted by Jorge on

    What a liar!

    Only one thing prevented that cake from being baked before Obergefell, and it wasn’t love.

    And it is with that, society’s acceptance of the belief that love can be legislated into or out of existence, that the fate of marriage in this country is sealed.

    Overall fascinating and strong analysis with a few weak points.

  2. posted by Tom Scharbach on

    It fascinates me that both David Lat (author of the linked article) and Mark Stern (the author of the article Lat links to and attempts to rebut) reach essentially identical conclusions about the future of Obergefell after Justice Kennedy retires and Chief Justice Roberts becomes the swing vote on the Court: Chief Justice Roberts is not likely to vote to directly overturn Obergefell in the near future, but will instead erode Obergefell over time to the point where the Obergefell principle of “equal dignity” will be wiped away.

    David Lat:

    Limiting but not overruling a precedent is, by the way, much more the Chief Justice’s style (reinforcing my first point). As noted by Adam Liptak of the New York Times, Chief Justice Roberts hates to overrule precedents — at least expressly, as leading SCOTUS advocate Paul Smith (of Lawrence v. Texas fame) told Liptak. Instead, for better or worse, the Roberts Court goes for what Professor Barry Friedman and other scholars have referred to as “stealth overruling.”

    As applied to Obergefell and marriage equality, however, “stealth overruling” is probably too strong a term. The term applies best when a precedent survives in name only. This will not be the case with Obergefell; gay couples will continue to get married in all 50 states because of that case and what it stands for.

    Instead, the war will be fought over what falls under the “constellation of benefits” that the States have linked to marriage,” to quote Justice Kennedy in Obergefell. Some benefits will be protected by SCOTUS — such as the right of gay parents to be listed on their children’s birth certificates, per Pavan — while others will not. But the most important benefits will be safe, and the benefits that might fall by the wayside will be minor.

    Mark Stern:

    But what happens if Kennedy is replaced by a Gorsuch-style conservative? At that point, Roberts would be free to rewrite Windsor and Obergefell however he wants. Roberts could remain faithful to the original text of both decisions. He could also reverse them. But the likeliest possibility is that Roberts first cuts them down to a single guarantee—the right for same-sex couples to receive a marriage license with no attendant privileges. In case after case, Roberts could vote to allow discrimination against same-sex couples but affirm their right to the license itself. He could, for instance, permit the denial of spousal benefits to same-sex couples, contending that so long as gay people can marry, their rights have not been abridged. One by one, he could pluck the stars out of Obergefell’s “constellation of benefits,” while insisting that he respected the decision’s bottom line. And then, once Obergefell has been mostly gutted, Roberts could drop this pretense and deliver the final death blow, asserting that the decision had already been lethally eroded. It’s a classic Roberts trick.

    Both describe the same result, but differ about the impact of that result.

    I think that both writers accurately predict the future of Obergefell — Chief Justice Roberts will preside over the emasculation of Obergefell. Stern sees this — government-sanctioned discrimination against same-sex marriage, differential benefits, and so on — as problematic and cause for alarm, particulary in light of Chief Justice Roberts’ opinion in Shelby County. Lat sees it as harmless at worst.

    Needless to say, I’m with Stern on this. Equal does mean equal. It does not mean “Equal, but …”

    Elections have consequences. President Trump shows every intention of nominating hard-core originalists — his first pick, Justice Gorsuch, is to the right of every Justice on the Court in that respect, with the possible exception of Justice Thomas — and we will have to live with that radical change in the Court for decades.

  3. posted by Tom Scharbach on

    … the right to same-sex marriage is safe but that doesn’t (necessarily) mean we get to trample on other people’s first amendment rights …

    So long as any exemption to public accommodations laws that is defined by the Court applies to religious/conscientious objection to marriages across the board (interracial marriages, interfaith marriages, interdenominational marriages, remarriages after divorce, and so on), I have no constitutional problem with the decision. In terms of public policy, I think that if the Court guts the Reynolds/Employment Division “substantial burden, rational basis” standard for laws of general application, then the Court will be opening a can of worms.

    However Masterpiece Cakeshop comes out, the decision (majority opinion and dissents) will give us an indication of whether Lat and Stern are right when they suggest that Chief Justice Roberts, after he becomes the swing vote, will embark on a strategy of eroding Obergefell over time.

    That’s the more serious problem, and the Chief will have plenty of opportunity over the next few years, given the cases that are almost certain to emerge from Texas (the rights of taxpayers who oppose same-sex marriage are trampled on when cities extend equal marital benefits to same-sex marriages) and other red states.

    The Texas case is likely to be heard and decided during the 2018-2019 term, after Justice Kennedy has retired Chief Justice Roberts becomes the swing. An interesting prospect.

  4. posted by Jorge on

    Needless to say, I’m with Stern on this. Equal does mean equal. It does not mean “Equal, but …”

    Equal also does not mean “equal protection of the laws.” Or should I be inverting the two?

    Elections have consequences. President Trump shows every intention of nominating hard-core originalists — his first pick, Justice Gorsuch, is to the right of every Justice on the Court in that respect, with the possible exception of Justice Thomas — and we will have to live with that radical change in the Court for decades.

    Oh, please. Obama did the same thing once. Only once.

    As did Bush. Bush, for crying out loud, even after his campaign for the Federal Marriage Amendment.

    And the other Bush before him, too.

    And Reagan.

    And even Clinton.

    I’m really, really not impressed that 150,000 marriage licenses changes the fate of gay America. Neither am I especially convinced anymore that the election of Trump has consequences (so far I cannot take my eyes away from the so much business as usual). I believe rather that elections are consequences.

    • posted by Tom Scharbach on

      Equal also does not mean “equal protection of the laws.”

      In the context of law and the Constitution, “equal protection of the laws” — the Constitutional principle that the law must guarantee the same rights, privileges, and protections to all citizens — is exactly what “equal means equal” means.

      I’m really, really not impressed that 150,000 marriage licenses changes the fate of gay America.

      No more so than the relatively small number of marriages between black and white changes the fate of either black America or white America.

      What does change the fate of gay America is that the Constitutional principle that the laws guarantee the same rights, privileges, and protections to all citizens applies to gays and lesbians who choose to marry, treating gays and lesbians on an equal footing with straights in that respect.

      • posted by Jorge on

        What does change the fate of gay America is that the Constitutional principle that the laws guarantee the same rights, privileges, and protections to all citizens applies to gays and lesbians who choose to marry, treating gays and lesbians on an equal footing with straights in that respect.

        I might buy that were it not for the spreading fiction of gays only choosing to marry now that the government says they can. I would think economic security is important, but people seem to care more about wedding cakes.

        Allowing one’s actions to be held hostage to what amounts to little more than government speech indeed changes the fate of gay America, and not for the better.

      • posted by Tom Scharbach on

        I might buy that were it not for the spreading fiction of gays only choosing to marry now that the government says they can.

        I have no idea to what fiction you are referring, but the choice to marry is irrelevant if the law prevents you from marrying.

  5. posted by Tom Scharbach on

    Wedding Cakes Are Better with Love than Spite

    I don’t know about Spite Cake, but Spit Cake (at least the version that my aunt used to make) was really good. Fun to watch in the baking, too.

  6. posted by tj 3 on

    defend religious freedom and civil rights.

  7. posted by TJ 3 on

    defending religious freedom by attacking religious freedom is sort of like a pimp referring to the women he trafficks, as being “independent contractors”.

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