Not Just Off the Shelf


The Wall Street Journal opines:

At issue is whether baker Jack Phillips, who opposes same-sex marriage out of sincere religious beliefs, can be compelled to custom design a cake for a gay nuptial. …

While some on the left liken Mr. Phillips to hotel owners in the Jim Crow era, there’s no evidence of invidious discrimination. Mr. Phillips and others who have denied wedding services to same-sex nuptials have consistently served gays in other contexts. Mr. Phillips said he would sell the gay couple other baked goods—simply not a custom wedding cake.

As the editorial notes, the issue pits the government’s interest in social equality against an individual’s constitutional right to express his beliefs.

22 Comments for “Not Just Off the Shelf”

  1. posted by Doug on

    If you open a bakery to the general public you serve everyone that walks through the front door. Period, end of story.

    You are, of course, also able to open a ‘religious’ bakery and only serve those who share your particular bent.

    Reply
  2. posted by Tom Scharbach on

    Sure looks like creative expression to me.

    I’m sure that it does look that way to you, Stephen.

    The legal and constitutional questions aren’t quite as simple, though.

    The “freedom of expression” argument being put forward is inextricably linked to religious objection, and that’s the rub. The link is implicit in the CATO and DOJ briefs, briefs that attempt to present a pure “free expression” argument. The link is explicit in the main briefs and amicus briefs willing to tackle the issue head on.

    As a starting point in preparing to understand the religious objection considerations that will be presented to the Court in oral arguments, let me suggest Argument preview: Wedding cakes v. religious beliefs? at ScotusBlog.

    Reply
  3. posted by Tom Scharbach on

    I have to admit that the Smurfs wedding cakes shown in the Washington Post picture are unique designs, although Smurfs-themed wedding cakes seem to be so common as to be getting hackneyed. No accounting for bad taste, I guess.

    Reply
    • posted by David Bauer on

      Beyond the fact that Smurfs do not appear to be entirely heterosexual. Their is only one female Smurf in the village and well, I’m am not sure that the Smurfs are the best cultural icon for “traditional, Biblical marriage”.

      Reply
    • posted by Tom Scharbach on

      I’m am not sure that the Smurfs are the best cultural icon for “traditional, Biblical marriage”.

      There is that. A Biblical theme might be more on point.

      Reply
  4. posted by David Bauer on

    Again, will this exemption to public accommodation laws only apply to cases where someone objects to gay couples or gay weddings? The lack of basic consistency and honesty of most “religious unliberty” proponents is staggering.

    Reply
    • posted by Lori Heine on

      The anti-gay crowd is trying to get government to define–in terms limited by themselves–specifically what is or is not protected religious freedom.

      Hey, what could possibly go wrong?

      Of course this would actually destroy religious freedom. Something like bombing the village to save it. But then, pretty much the same crowd that believes in murdering huge numbers of people in other countries to make good Americans out of them are also down with letting religious extremists dictate the terms of “religious freedom” here.

      It’s kind of like conservatives have no genuine commitment to liberty of any sort, because they’re empty, abject frauds. Who knew?

      Reply
  5. posted by Tom Scharbach on

    Again, will this exemption to public accommodation laws only apply to cases where someone objects to gay couples or gay weddings?

    I don’t see how the Supreme Court could reach that conclusion as a matter of constitutional law. Whatever ruling comes down, the application is almost certain to extend well beyond providing goods and services for same-sex weddings.

    Reply
    • posted by Jim Michaud on

      Yep, this most likely will be a case of “be careful what you wish for” for soc cons. Karma will bite them in the butt if SCOTUS rules their way.

      Reply
    • posted by Tom Scharbach on

      Yep, this most likely will be a case of “be careful what you wish for” for soc cons. Karma will bite them in the butt if SCOTUS rules their way.

      As you say. And not just because a whole lot of business owners are going to have the ability to tell conservative Christians to bugger off it the ruling is a broad as I think it has to be in order to pass constitutional muster.

      The argument made for Phillips is remarkable. That is the only word I have for it. Remarkable.

      The argument claims that in baking a wedding cake, Phillips is not just honoring God, but actively participating in the wedding, not only expressing his unbounded love for Jesus as he adds Smurf decorations, but approving of the wedded couple, requiring him to stand in as God’s arbiter of which marriages are, and which are not, “sacred” and “legitimate” in God’s eyes.

      It is both an absurd and monumentally grandiose argument. If it were coming out of the mouth of a teenage boy, adult men would tell him to “get over himself”.

      Eugene Volokh and Dale Carpenter, both law professors often cited on IGF (Carpenter was an active contributor for years), did just that: In their amicus brief filed on behalf of the American Unity Fund, Volokh and Carpenter have this to say about the argument: “No one looks at a wedding cake and reflects, ‘The baker has blessed this union.’“. Enough said.

      As background, keep in mind that Phillips was never asked to bake a “message” cake, or even bake a “custom” cake. The discussion never got that far.

      As Phillip’s brief recites the facts, the couple came into the shop, sat down and started looking through the cake catalog (presumably off-the-shelf designs), and a few minutes later, Phillips came to the table. Phillips turned down the couple before he had a chance to learn whether or not the couple wanted a “custom” or “off the shelf” cake. All Phillips needed to know was that the cake was for a same-sex wedding, and that was the end of the discussion. In short, according to the facts set forth in Phillip’s brief, baking a cake — any kind of cake — was enough to trigger a refusal.

      Why? Because, according to Phillip’s argument, providing any cake blessed the union, and that he could not do as a Christian.

      Now think about the implications of Phillips’ argument taking into account that background

      Should Phillips’ argument prevail, even if the Court manages to somehow limit the scope of the ruling to wedding cakes, the ruling will create a hornet’s nest for Christian bakers. Are Christian bakers going to be required by their faith, lest they offend God, inquire into the moral sanctity of each and every union for which they bake a wedding cake? Will they have to recuse themselves in the case of the town drunk marrying a notorious whore? Or the case of a couple on their second and third marriages? Or the case of a couple that openly scoffs at the divinity of the man-God, non-believers and/or non-Christians?

      And, of course, even if the Court manages somehow to limit the ruling to cakes, it is not likely that the Court will be able to limit the scope of the ruling to wedding cakes alone. That raises another can of worms. Is Phillips endorsing Judaism if he bakes a cake for a Bar Mitzvah? Or Catholicism if he bakes a cake for a celebration of a priest’s twenty-fifth ordination anniversary?

      I think you are right. Conservative Christians are going to rue the day if the Court rules in their favor.

      Reply
      • posted by JohnInCA on

        I find your lack of faith… disturbing.

        To put it simply, you’re looking at the law, not the personalities. And I’d argue that, as with most high-profile SCOTUS cases, that’s the wrong approach. So look at the Justices and what you think they’d be down for.

        To put it simply, the court didn’t accept the case until after Gorsuch was appointed, while it did refuse similar cases over the last decade. This tells me that prior to Scalia’s death, there were two justices ready to roll-back (or at least limit) non-discrimination law, while there were seven that were happy with the status quo. Gorsuch came on and was a third “let’s hear the case”, and so here we are.

        So right out of the gate, I don’t think we’re going to see an across-the-board roll-back of non-discrimination in public accommodation laws. I just can’t see Roberts putting his name to the decision that killed the CRA (1964).

        But splitting the difference with a legally-questionable decision? Hey, we’ve seen Roberts do that before. And if it’s narrow or limited enough, I could see Kennedy signing on (his Obergefel decision did give “religious liberty” as one of his concerns).

        The fact that the legal argument is dubious is kind of irrelevant.

        Reply
      • posted by Tom Scharbach on

        John, it takes four votes for the Court to grant certiorari. I suspect that Justice Gorsuch was the fourth required vote, Alito, Roberts and Thomas being the other three.

        I don’t know how the Court is likely to rule, but I am dead certain that the Court cannot issue a ruling that creates a “free expression” or “religious objection” exception to public accommodations laws only with respect to same-sex marriage without opening the door to “free expression” or “religious objection” exceptions with respect to other forms of marriage.

        The thing that is so interesting about this case is that the two arguments are dependent upon one another. Given the entangled facts underlying the case, the “free expression” argument cannot be made without relying on a “religious objection” foundation, and the “religious objection” case cannot be made without tying “religious objection” to “free expression”.

        It is a tangled mess, constitutionally, with no clear lines. For that reason, this case is likely to create a plethora of problems for decades to come, however the case is decided.

        As to personalities, I’m wondering if Justice Kennedy is going to use the case to try to tie down protection of the “equal means equal” dicta expressed in Obergefell and Windsor as much as he can, in anticipation of his retirement and likely hostile 5-4 Court that will exist after the President nominates his successor.

        Reply
        • posted by JohnInCA on

          Eh, so I got the numbers wrong. The point remains: I have no reason to believe that the legal arguments matter. As the SCOTUS has proved, over and over again, when it comes to contentious issues they’re just as guilty of justifying the conclusion they want (as opposed to coming to the conclusion the law leads them to) as the rest of us.

          Reply
  6. posted by Tom Scharbach on

    Well, here’s a kick in the head.

    Expect a rush of proposed legislation in the red states next year designed to create two standards for treatment of married couples under state law, one standard for straight couples and another, lesser standard for same-sex couples.

    Reply
  7. posted by Tom Scharbach on

    A comment on a WSJ comment: But Colorado’s public accommodation law is not neutrally applied. It is applied selectively to dictate ideological conformity. For instance, the commission has allowed three bakers to deny service to religious customers who requested a cake criticizing same-sex marriage. Thus the state is punishing forms of speech it dislikes.

    I’m surprised (maybe I shouldn’t be, but I am) to see the WSJ, a respected, mainstream media outlet, regurgitating this tired conservative Christian meme without examination or reflection.

    Colorado’s anti-discrimination statute has an explicit exemption for “messaging”, prohibiting the non-discrimination authorities from compelling a baker to bake and decorate a cake that contains an explicit message offensive to the baker.

    It is that exemption under which Colorado “allowed three bakers to deny service to religious customers who requested a cake criticizing same-sex marriage”. The exemption would have similarly allowed Phillips to refuse to bake a cake supporting same-sex marriage.

    Had the couple asked Philips to bake a cake explicitly supporting same-sex marriage, or even their marriage in particular, he would have been off the hook.

    That is not what happened. Phillips did not refuse to bake a “message” cake. Phillips refused to bake a cake, period, because the cake was to be created for a same-sex couple and eaten at a reception following a same-sex wedding.

    In his legal argument, Phillips is desperately trying to bootstrap the act of baking a cake for a same-sex wedding into a “message”, arguing that the mere presence of the cake at a reception following the wedding constitutes a message that Phillips supports same-sex marriage, involving Phillips as a celebrant of the marriage.

    I think that Phillips’ bootstrapping is hooey, and dangerous hooey, for the reasons stated in an earlier comment.

    In any event, oral arguments are today, and it willing interesting.

    Reply
    • posted by Doug on

      The Wall Street Journal is owned by Rupert Murdoch. The Editorial page of the WSJ is just an extension of Fox News. The news half of the WSJ is still a relatively clean news reporting organization but Editorial page not so much, just a mouth piece for Murdoch.

      Reply
  8. posted by MrBill30560 on

    Seriously!
    If baking a cake for a gay wedding is endorsing homosexuality, then voting for a pedophile is endorsing pedophilia.

    Reply
    • posted by JohnInCA on

      According to Republicans, that doesn’t apply in Alabama.

      Reply
    • posted by Tom Scharbach on

      If baking a cake for a gay wedding is endorsing homosexuality, then voting for a pedophile is endorsing pedophilia.

      Conservative Christians loudly proclaimed that if same-sex marriage became legal, public acceptance of pedophilia would inevitably follow. I guess they were right. It is odd, though, to see conservative Christians leading the parade.

      Reply
  9. posted by Paul M on

    Well, isn’t the same sex wedding, in and of itself, a civil matter, and not religious?

    Reply
    • posted by Tom Scharbach on

      Well, isn’t the same sex wedding, in and of itself, a civil matter, and not religious?

      All marriages contracted in the United States are, as a matter of law, civil marriages.

      The civil marriage may be contracted in a religious setting, with a priest, minister, rabbi, mullah or other religious officiant presiding, but the marriage contract itself is a civil contract, governed by civil law. The officiant, whether a non-religious officiant such as a judge or justice of the peace, or a religious officiant such as a priest, minister, rabbi, mullah or other, is acting as an agent of the government when officiating at the wedding.

      Marriages are “religious” only in the sense that assorted religions will celebrate or not celebrate, and/or accept or don’t accept particular civil marriages as valid for the purpose of that religion. Religions and the practitioners of those religious have that right, and can do as they please. However, the doctrines/actions of various religions with respect to the religious validity of marriage does not affect the validity or invalidity of the civil marriage.

      Reply
  10. posted by Tom Scharbach on

    For those interested, the transcript of the oral arguments has been released by the Court.

    We’ll have a decision in June.

    Reply

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