Cakegate to be decided by supremes

Probably already a thread on this but I dont see it.

Short version is a Colorado baker would not bake a wedding cake for two men, citing religious convictions. They sued and won under a state anti-discrimination statute. He says "I never refused to SELL them a cake. I just won't decorate it, and that's my right."

Who should win, and who will win?

I say the baker should win and will win, probably 7-2.

 

I think the Supremes will balance it out fair, and let all have their cake and eat it too.

 

A number of questions are raised by this case.

What is or isn't a "public accommodation"? Is a private business, engaging in commerce, required to do business with anyone & everyone, absent something specific to a transaction that would place an undue burden on the operator? What would or wouldn't constitute such a burden?

What is or is not relevant to the ability of parties to engage in a commercial transaction? Is there a right to discriminate against an entire group of people, based one something irrelevant to their ability to pay or otherwise engage in and complete the transaction? If such a right exists, what is the basis of this alleged right?

What does or does not qualify as speech? What are the boundaries / limitations, if any exist?

What does or does not qualify as an exercise of religion? What are the boundaries / limitations, if any exist?

What are the benefits and detriments to rights, the rule of law, and to society if one side or the other prevails?

 

Somewhat live analysis of the oral arguments are available at this page by the Wall Street Journal; I haven't found anyone else providing something similar today, which is a bit surprising:

https://www.wsj.com/livecoverage/supreme-court-cake-gay-rights-same-sex-colorado

 

Can usually get the full coverage here:

http://www.scotusblog.com/

 

Dammit - such a stupid situation, with all stupid options being considered far more than necessary. I just can't pin which is the less stupid party in this story; Either one or the one who brought it to court.

[sight] The bakers are in their right - They can either accept or turn down business offers for whatever reason they chose, and I stress "whatever". The customers should simply have flipped him the bird, slammed the door on the way out for good measure and then find another baker - I wouldn't have trusted him with the ingredients in this particular case, anyway.

 

I wonder what the courts decision would be if someone came in wanting a cake with a swastika on it and the bakery owner refused.

 

Bakery can have a menu that excludes swastika cakes, but must not exclude people.

 

A few highlights from the WSJ coverage:

• The baker's lawyer is characterizing the creation of a wedding cake as artistic expression, but draws a distinction between working with a couple to create a cake, versus selling something already created. Justices seem a little perplexed at how one differs from the other as a form of artistic expression/protected speech. The baker's lawyer answers that something already created wouldn't be compelled speech.
• There are repeated assertions that race is different because federal and state governments have a compelling interest in eradicating racial discrimination, but no compelling interest in eradicating opposition to same-sex marriages.
• Asked whether others providing wedding-related services would also be able to assert similar claims, such as a hair stylist or makeup artist, the baker's lawyer answers that those services aren't speech. Same answer for tailors.
• Kagan asked about a cake created for a client, expressing an apology. She points out that this would be the expression of those buying the cake, not its maker. "How is this your client's expression?"
• Alito asks about the work of architects. The baker's lawyer says they aren't arguing that an architect's first amendment rights would be violated by a later use of their works.
• Kennedy seems skeptical of the state's case.
• The solicitor general asserts, "The case is important 'for a small group of individuals' in 'narrow circumstances', in an attempt to deny that a ruling in favor of the baker has the potential to "blow up public accommodations law." Ginsburg iexpresses skepticism, asking "how narrow is it?", and returns to questions about florists and wedding invitation designers.
• Kennedy asks whether the baker could post a sign saying "he won't make cakes for gay couples?" He then asks whether "business owners could use their speech objections to boycott service for certain customers."
• Sotomayer: "public accommodations laws have always stood for the proposition that in order to be part of the civic community, you have to agree to certain rules, like not denying service to people because of their race, gender or religion. And that also applies to sexual orientation."
• Ginsburg: "What about a chef who creates amazing meals but doesn’t want to serve a special dinner for a same-sex couple celebrating a wedding anniversary?"
• Breyer is concerned that there is no way that a victory for the baker could be narrow enough to avoid creating chaos in anti-discrimination law.
• Kennedy & Gorsuch ask "what the court should do with the case if it believed at least some members of the state civil rights commission had demonstrated hostility toward religion."
• Lawyer for the ACLU: “We don’t doubt the sincerity of Mr. Phillips’s convictions, but allowing them to take precedence over the antidiscrimination act would constitutionally relegate gay and lesbian people to second-class status.”
• Roberts raises the question of whether government has a compelling interest in eradicating discrimination against gay people, apparently with the intent of dispelling the idea that such an interest would override "religious or philosophical objections to the practice" (of same-sex marriage)

Editing to add a few more:

• Ginsburg asks the ACLU lawyer whether the baker would have to make a replica of an existing cake, where just the names are changed.
• Kennedy asks whether the baker could be compelled to attend the ceremony if "it was an extremely elaborate cake that required the baker himself to personally supervise its cutting so as to ensure it did not collapse." ACLU lawyer says the more a service requires participation rather than the mere sale of goods, the greater the implications for an infringement taking place.

 

I disagree. Providing a public service will be the paramount issue. For instance, Hobby Lobby was told how to spend their own money but the baker is spending the customers money for the customer. I believe it will be decided against the Baker.

 

After reading the WSJ summary of justices questions, I'm expecting a narrower margin in the justices' votes than I might have at first glance. I tend to think it will be 5-4 in favor of the baker, based on Kennedy's skepticism toward the state's application of its anti-discrimination laws. It could be the narrowest of rulings in that case, in order to avoid as much as possible blowing up states' anti-discrimination laws. I don't dare to hope for better than that.

 

But not in the form of live updates from today's arguments. Post-argument analysis is here:

http://www.scotusblog.com/2017/12/a...ing-toward-ruling-colorado-baker/#more-264747

 

The case could turn on Kennedy's asking whether "business owners could use their speech objections to boycott service for certain customers." It appears that he might be trying to ascertain whether the baker's speech rights override government's compelling interest in protecting groups of people from undue discrimination. (And you can certainly feel free to debate whether such a compelling interest even exists.)

The solicitor general's response was that a baker may be able to place a sign in his window that says no custom-made cakes for same-sex couples, because custom cakes involve speech by the baker. This was followed up with a statement that seems to indicate the court will have to weigh the "dignity interests" of both sides, emphasizing that while same-sex couples have such interests, so does the baker.

 

It seems possible that Kennedy's chastisement of the state's actions might be something more in the way of a public warning to state actors to be very careful what they say and do, rather than something that will decide this case in favor of the baker.

 

I believe Kennedy will decide against the baker. He asked many questions about discrimination. The only question he asked against the case was the state forcing the baker to retrain his staff.

 

Here's a couple of things to chew on:

From the ACLU's lawyer: “If religious motivation exempted businesses from anti-discrimination laws, government would be powerless to protect all Americans from the harms of invidious discrimination.”

Ginsburg brought up a case in which the owner of a barbecue chain had denied service to black customers, citing his religious belief that there should not be “any integration of the races whatsoever.” The district court's response in that case may be informative:

“Undoubtedly defendant Bessinger has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens.”

The case eventually reached the Supreme Court, which dismissed Bessinger's assertion of a religious freedom to discriminate as "patently frivolous".

But there's nothing to say this will be binding on the justices' in ruling on the Masterpiece Cakeshop case.

 

Little doubt on which side the other justices are likely to fall. I suppose Thomas could be a wildcard. Roberts, Alito, and Gorsuch seem likely to rule for the baker; Ginsburg, Sotomayor, Kagan, and Breyer seem likely to rule for the state.

It really does look like Kennedy could again be the swing vote.

 

I think it will be more than a 5-4 vote against the baker. Gorsuch is a constitutional judge which means he will follow the law of the land and same sex marriage is the law of the land and so are anti-discrimination laws. Time will tell.

 

Well, I agree with the baker's stance in this case, but I don't agree with your statement in bold... there are limits to business owners, but as I understand this case, he's well within his limits on this one...

 

What? He didn't refuse to serve them. He refused to make a cake celebrating their marriage. He has pointed out that he has many gay customers.

 

Heh, I thought something similar. What if here were to "accidentally" misspell their names on the cake.

Or wrote: "Love Froever!!" ?

Or ... what if he got just clumsy enough with the piping so that it looked slightly amateurish, or layered the cakes such that they looked ever so slightly lopsided ... but not to the point where you could prove it was intentional OR that it rendered the cake valueless? "Hey, does that cake look lopsided?" "I don't know ... maybe ... a little ...."

Again, what would your "damages" be?

 

So a gay Jewish couple walk in to a Muslim bakery a week before their wedding and ...

you get the idea.

 

i don't see how the right to be free of discrimination on the basis of sexual orientation, or even gender, can possibly trump the right to freedom of expression. The first is a state statutory right, the second a federal constitutional right.

Does anyone know if the customers asked for a special confection or message or decoration here? The baker would surely have sold them a cake with no message, or a cake that was already baked and decorated but with no message.

 

I don't see what the problem is here, with having the right to not make a cake for a gay wedding. Of course, some people will equate this to what happened in a segregated south, a refusal to sell to black folks, and yet most places would sell to them, from the back door and not the front. So, white merchants would still take their money, just would not mix in the blacks with the whites. Stupid, racist, no doubt.

But this incident here involves a religious belief, which is why the baker turned down a gay person. Now, IMO, I think this might be kinda stupid, but surely religious people can be stupid, without being punished for the stupidity, since no one was really injured, and since in capitalism, it provides a way around this. Just go to the next baker who is not bound by a religious belief, and he or she will be very happy to do work for you in exchange for money. If a religious baker wants to limit his market, we should allow that to happen.

I was once, when young, turned down by this nutty used car dealer. He had a Hemicuda for sale, and when I tried to buy it, he an old man, told me I would kill myself in it, and refused to sell it to me!! So, I went to another lot and bought a Road Runner, with a 440 Magnum in it, and came close to killing myself in it. lol. Of course, taking the first dealer to court was not even in our consciousness in those days, and the general move was to just go to the next dealer who wanted to sell his cars. I got a better deal anyways from the second dealer. lol And plus, I loved the horn on the RR....beep, beep, just like my favorite cartoon character at the time.

 

According to the ACLU (whose lawyer appeared before the Supreme Court on behalf of the couple):

"The case centers on Charlie Craig and David Mullins, a gay couple who entered Denver bakery Masterpiece Cakeshop in 2012 hoping to buy a cake for their wedding reception. But before any specifics of design or other details could be discussed, baker Jack Phillips informed the couple that Masterpiece would not sell products to same-sex couples."

Does that mean just wedding cakes, or is it any products? I'm frankly inclined to distrust this framing of events by the ACLU & the couple.