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Might Religious Liberty Actually Win This Round?

Well, Think Progress thinks things went regressively at the Supreme Court today [1], in oral arguments in the Masterpiece Cakeshop case. Excerpt:

Things quickly turned south, however, not long after Colorado Solicitor General Frederick Yarger stepped up to the podium to defend Colorado’s anti-discrimination law. Up until this point, everyone in the courtroom treated the case as a free speech case. Waggoner and Francisco’s arguments rested largely on claims that Phillips was being forced to express a view that he does not hold. The question of whether Phillips’ right to practice his faith was somehow implicated largely went unmentioned.

But this question sure mattered to Kennedy. Pointing to a state commissioner who claimed that the idea that religion could be wielded to justify discrimination is “despicable,” Kennedy all but demanded that Yarger disavow that statement. This one commissioner’s statement, Kennedy suggested, displayed such hostility to religion that it could justify invalidating the entire ruling against Mr. Phillips.

Chief Justice Roberts and Neil Gorsuch, who occupies the seat that Senate Republicans held open for a year until Donald Trump could fill it, quickly piled on. Gorsuch, for his part, claimed that a second commissioner showed improper bias when they said that a person with religious beliefs that conflict with a civil rights laws may have to compromise those beliefs.

And then things got even worse for Colorado and for supporters of anti-discrimination laws. “Tolerance is essential in a free society,” Kennedy lectured Yarger. The state, Kennedy continued, has not been particularly tolerant towards Mr. Phillips. “There are other shops,” Kennedy concluded, suggesting that same-sex couples should be forced to go door to door to other bakeries until they find one willing to serve them.

Well, gosh. If Think Progress, home of Zack Ford, the world’s screamingest meemie,  is upset, something good must have happened at the Court today.

Here, from the Supreme Court’s website, is a PDF file of the transcript of this morning’s oral arguments. [2] I encourage you to read it, for a couple of reasons. First, to get a sense for the challenge facing the Justices here; it is not an easy case when you get down to the nitty-gritty. Second, to get a sense of how anxiety-producing it must be to argue in front of the Supreme Court.

You know my own bias in this case, but it does seem to me that the conservatives had the better day (but that is by no means open-and-shut). Look at this excerpt of an exchange between Justice Anthony Kennedy and the lawyer for the State of Colorado, which attempted to punish the cakeshop owner:

JUSTICE KENNEDY: Suppose we thought that in significant part at least one member of the Commission based the commissioner’s decision on — on — on the grounds that — of hostility to religion. Can — can your -­ could your judgment then stand?

MR. YARGER: Your Honor, I don’t think that one statement by the commissioner,  assuming it reveals bias -­

JUSTICE KENNEDY: Well, suppose we -­ suppose we thought there was a significant aspect of hostility to a religion in this case. Could your judgment stand?

MR. YARGER: Your Honor, if — if there was evidence that the entire proceeding was begun because of a — an intent to single out religious people, absolutely, that would be a problem.

And:

JUSTICE KENNEDY: Well, but this whole concept of identity is a slightly — suppose he says: Look, I have nothing against — against gay people. He says but I just don’t think they should have a marriage because that’s contrary to my beliefs. It’s not-

MR. COLE: Yeah.

JUSTICE KENNEDY: It’s not their identity; it’s what they’re doing.

MR. COLE: Yeah.

JUSTICE KENNEDY: I think it’s — your identity thing is just too facile.

He also said later:

JUSTICE KENNEDY: Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.

Not sure where that has anything to do with the law, but it does indicate where Kennedy’s sentiments lie.

David Brooks had a good column this morning lamenting that this was even a court case. [3]Excerpt:

If you want to know why we have such a polarized, angry and bitter society, one reason is we take every disagreement that could be addressed in conversation and community and we turn it into a lawsuit. We take every morally supple situation and we hand it over to the legal priesthood, which by necessity is a system of technocratic rationalism, strained slippery-slope analogies and implied coercion.

Legal conflict is a clumsy tool to manage the holy messiness of actual pluralistic community. The legal system does not deal well with local and practical knowledge, the wisdom to know when a rule should be applied and when it should be bent. It does not do well with humility, tolerance and patience — virtues that are hard to put into a rule and can be achieved only in a specific situation. It inevitably generates angry reactions and populist uprisings.

Readers of this column know that I fervently support gay marriage, but I don’t think bakers like Jack Phillips are best brought along by the iron fist of the state. I don’t think the fabric of this country will be repaired through the angry confrontation of lawyers. In this specific situation, the complex art of neighborliness is our best way forward.

He’s right about that, but I don’t see how we turn back now. A Christian reader who works in the science-and-tech field e-mailed today to tell me about the atmosphere where he works. He asked me not to publish any of his e-mail, for fear of it being traced back to him. He talked about how anxious he is to hide that fact that he dissents from the dominant ideology. After the James Damore firing from Google, he believes that if he wants a career in his field, he cannot afford to be identified in any way with sentiments that could be construed as “anti-LGBT,” and censors himself in public all the time.

He said he is tired of people talking about the Benedict Option on the question of whether or not it is too retreatist. The reader explained that Christians like him in the tech world are staring down the barrel of serious, real-world consequences from institutional authorities eager to weaponize cultural difference to suppress what they consider to be intolerable evil. This is not theoretical. It’s really happening, and will continue to happen.

Remember a decade or so ago, when people raised these issues, and were met with the rejoinder, “I don’t see what my gay neighbors’ marriage has to do with me”? Today at the US Supreme Court, advocates for a small-town cakeshop owner had to defend not their client’s unwillingness to sell his wares to a gays — he’s perfectly willing to do that — but their client’s unwillingness to bake a wedding cake for them. Extremism in the hounding of religious conservative “bigots” is no vice for the left.

I hope that the Supreme Court rules in favor of the cakeshop owner, of course, but if it does, don’t for a minute think that this fight is over, or that your job and livelihood will be safe if you are known to dissent.

UPDATE: Don’t miss this comment from a lawyer reader:

I don’t know if people read the same oral arguments transcript. How do you get the idea that Kennedy is going to vote with Masterpiece Cake Shop?

His reference to the possibility of bias on the part of one commissioner was meant as an “out” – to avoid deciding the case on the merits. It’s funny to see the Left erupting in worry and the Right with hope. Both sides are wrong. To begin with, remember that no one on the court, whether liberal or conservative, entertained the idea of a religious freedom exemption. That itself is worth pointing out. There is only one vote on the current Supreme Court for suspending generally applicable anti-discrimination laws for religious reasons, which is the only reason why this became a First Amendment argument. But this approach also inherently limits the scope of any “win” because most products and services that are being sold to gay couples for gay weddings (catered food, venues, dresses, suits) won’t be expressive enough under any standard to be counted as speech for the purposes of public accommodations. The worst case scenario for LGBT folks is actually pretty tame.

But there is actually no way Masterpiece Cake Shop will prevail, and the oral arguments show this if you read the questions closely.

For Masterpiece to prevail, the justices will have to find a principled way to limit this case to wedding cakes or a very small segment of wedding service providers. And if the justices really wanted to rule for the baker, then why did none of them, apart from Gorsuch, seem interested in exploring a specific standard for how to do this? Recall that in the gerrymandering case, Kennedy was all about specific standard-setting questions. Here, none of the conservative justices, save Gorsuch, was interested in exploring the specifics of what constituted compelled speech. Gorsuch seemed annoyed, in fact, that none of his colleagues was pursuing precisely the line of enquiry that would ground an opinion in favor of Masterpiece. He was not aided by Waggoner, who could not provide a principled way of what counted as coerced speech. She went so far as to suggest that chefs cooking a gay anniversary dinner would not be protected, but bakers baking a gay wedding cake ought to be. When Alito tried to be helpful by suggesting architectural art would also be covered, she swatted away the suggestion and said it wouldn’t because architecture was functional and not expressive! What?! Any guesses how many votes there are on the Supreme Court for protecting bakers but not chefs?

Second, if you look beyond the comments about the specific commissioner, all the substantive legal questions were thrown at the Christian baker. When it came to Masterpiece, Kennedy wanted to know how the line would be drawn, if siding with the Christian baker would send a signal of encouragement for a broader denial of services to gay couples. The justices were asking: even if we are sympathetic with your coerced speech arguments, how do we find for you without also finding for the baker who has black friends but doesn’t want to bake a cake for an interracial couple? No such line is possible.

Finally, and I don’t think people get this enough. All justices are human and mindful of how their biographies will be written when they are at that age. The Supreme Court justice who authored Lawrence, Windsor, Obergefell isn’t going to end his career by voting for Masterpiece.

Finally, remember that Kennedy concurred in Christian Legal Society v. Martinez, which presented an even greater affront to Christian objections to homosexuality than this baker case. (Schools aren’t even public accommodations.)

191 Comments (Open | Close)

191 Comments To "Might Religious Liberty Actually Win This Round?"

#1 Comment By A Libertarian Guy On December 6, 2017 @ 10:21 pm

@Phillip– for your post at 9:14 am on 12-6-17:

Thanks for the kind comment about my post. Also, your response to Hi DancerGirl was excellent.

Inclusiveness (non-discrimination) is a tenet of the religion of the left (progressivism), and many on the left take inclusiveness to an extreme– such as suing someone over a cake.

@notsobright– for your post at 9:56 am 12-6-17:

Thanks for the kind comment about my post. The points made in your post are spot-on.

There’s a lot of hypocrisy on the left concerning Muslim religious rights vs. Christian religious rights.

@everyone reading this:

Thumbs up to all those on this thread who are defending freedom of choice for entrepreneurs. Thumbs down to all who defend the bigotry of the gays who have sued entrepreneurs who chose to not provide services for a gay event.

Once again:

LIVE AND LET LIVE

It’s easy to do.

#2 Comment By Shannon On December 6, 2017 @ 11:24 pm

JWJ –

“These people are just after power like in all the totalitarianism societies in the past and present.
Fines, prison, re-education camps, death it is all fine as long as they have power over you.”

This is true for all values of $THESE_PEOPLE.

All people, regardless of their ideologies, who compete for and win power are after power, by definition. The only system for assigning political power that does not inevitably reward power-seekers with power is random selection. (Or, “Why we don’t elect jurors.”)

–Shannon

#3 Comment By Siarlys Jenkins On December 6, 2017 @ 11:48 pm

Religious liberty is a poor foundation for the baker winning this argument. But “Disillusioned Lawyer” really should study some constitutional jurisprudence, instead of rattling off public accommodation laws in a vacuum.

Let’s play Fantasy Supreme Court. I have just been assigned by the Chief Justice to write a synopsis for the non-lawyer general citizenry of the republic:

A commercial business may not discriminate against any customer on the basis of that customer’s race, creed, color, sex, sexual orientation, national origin, how they voted in the last election, what sign they keep on their lawn, or much of any other irrelevant nonsense. Public accommodations serve all who travel the road, period. Only illegal or egregiously actionable behavior that poses a material threat to the owner, manager, employees, customers, or passers-by, or disrupts others enjoyment of the public accommodation is a basis to refuse service.

Some businesses are engaged in creative endeavors that involved crafting or enhancing an expressive message. No person, merely because they are in commerce, may be coerced in the name of public accommodations law to participate in crafting, enhancing, displaying, or broadcasting an expressive message that said person prefers not to voice. That includes participation in a ceremony.

This is why the NPR affiliate in Missouri did not have to accept the Ku Klux Klan as a financial sponsor — because doing so would make the KKK’s message part of the radio station’s own expressive message.

Serving ribs over the counter, or delivering them to a table, is not an expressive message, no matter who is sitting at the table.

Any questions?

#4 Comment By Jonah R. On December 7, 2017 @ 12:10 am

Disillusioned Lawyer wrote:

“But if you are right, and the Court needs to step in and protect the minority unpopular opinion espoused by the Christian baker, why aren’t you willing, as a matter of principle, to also step in and defend the even more unpopular baker who believes in the immorality of interracial weddings? Why does the Christian baker, who is called a bigot by those on the Left, get a pass, and the racist baker, who is called a bigot by just about everybody, not get a pass? Isn’t the latter’s First Amendment protections much more on the line?”

Because in 2017, it’s easy to demonstrate that a principled opposition to same-sex marriage is a mainstream (if by no means unanimous) Christian position shared by countless millions of people and easily confirmed by religious authorities. But good luck finding more than a few fringe weirdos anymore who think interracial marriage is contrary to Christianity. I’m hard pressed to think of any religion that does oppose interracial marriage.

Your comparison doesn’t really hold up. Someone’s “feelz,” as my kids say, aren’t the same as one’s conscience as defined by clearly confirmable religious beliefs. (But hell, I might be convinced defend the racist baker on the grounds that his horrible opinion and the handful of people he may hurt or offend is the price we pay as a society for freedom for the rest of us.)

#5 Comment By A Libertarian Guy On December 7, 2017 @ 1:12 am

@Phillip– for your post at 9:14 am on 12-6-17:

Thanks for the kind comment about my post. Also, your response to Hi DancerGirl was excellent.

Inclusiveness (non-discrimination) is a tenet of the religion of the left (progressivism), and many on the left take inclusiveness to an extreme– such as suing someone over a cake.

@notsobright– for your post at 9:56 am 12-6-17:

Thanks for the kind comment about my post. The points made in your post are spot-on.

There’s a lot of hypocrisy on the left concerning Muslim religious rights vs. Christian religious rights.

@everyone reading this:

Thumbs up to all those on this thread who are defending freedom of choice for entrepreneurs. Thumbs down to all who defend the bigotry of the gays who have sued entrepreneurs who chose to not provide services for a gay event.

Once again:

LIVE AND LET LIVE

It’s easy to do.

#6 Comment By Erin Manning On December 7, 2017 @ 2:43 am

“It’s not about art and it’s not about expression, it’s about a baker who wishes to discriminate against gay people getting married, for what he claims are religious reasons.”

How many times, I wonder, does it need to be said that the baker isn’t discriminating against “gay people getting married” but is instead refusing to accept the totally idiotic redefinition of marriage that was imposed upon the nation by Obergefell? That, in fact, religious believers do not believe gay people can or do get married to each other no matter what polite fiction the state’s increasingly silly and meaningless civil marriage license creates?

Again and again, religious believers were told that letting Bill and Steve, or Ann and Eve, get “married” wouldn’t affect us. But some of us knew all along that it would, because society would give us three options: go along with the lie that gay people can actually in some real sense be “married” to their same-sex partners, be silenced and say nothing about marriage at all, or stand up and refuse to lie about marriage in which case you get punished, fined, and ordered to undergo state-imposed reeducation like Jack Phillips.

The idea that two men or two women can be “married” just exactly in the same way that a man and a woman can be is a specific and rather wicked philosophical position (not a benign, secular, neutral one) that the state has decided is far more important than any ancient faith’s philosophy of what marriage is and what it encompasses. Religious believers will be silenced, marginalized, and punished for any and every refusal to bow down before the LGTBQ gods America is currently worshiping–at least until the demographic implosion hits hard enough for a new crop of religious believers to become the new majority of our nation’s citizens.

#7 Comment By DEC01 On December 7, 2017 @ 6:38 am

To add to Austin Shaver’s lift of analogous situations that would bother the left…

What if a customer requested a custom wedding cake be designed to celebrate God’s hatred of “same sex marriage”?

The only out to these sort of objections the court could maybe take (and doesnt really work) is to basically affirm that in all these cases the First Amendment provides protection, but the right to “same sex marriage” in all aspects is more fundamental than First Amendment rights so wins when they come in conflict.

#8 Comment By The Professor On December 7, 2017 @ 7:04 am

Personally, I find the wedding cake (photographer…florist) issues really silly. I would not have wanted any hostile attitudes anywhere near my marriage. The deeper problem I believe, is that once you stretch that line around “religious freedom” to expand the practical application of those beliefs outside of the church environment into civic life, or outside of an expressly religious retail/business situation and into general business and services open to the public, you open the door for more vital public services to do the same: a pediatrician in Michigan who won’t treat a sick child who has a married lesbian couple as parents, a cop who won’t answer a call of threats at a gay bar, a public defender who won’t represent a gay person, a Kim Davis who won’t issue licenses and refuses those in her office to do the same. This is far more concerning to me. If left out of court, I suspect that any baker, florist, photographer, blah blah blah who refused services to gay people would have to set up shop somewhere extremely rural and extremely red if they expect their business to survive. And they should be required to publicly display their refusal to serve gay people. The Yelping and the free market forces alone would probably shut them down except in the most anti-gay areas of the country, of which sadly there are still many.

[4]

[5]

#9 Comment By E.J. Worthing On December 7, 2017 @ 7:30 am

mike wrote: “These PC enforcers know very well that they are evil.”

Do you personally know any of these “PC enforcers”? Have you spoken with them about this issue? If you haven’t, don’t be so quick to make this assessment.

This issue is charged because people in our society genuinely disagree about it. If you think that people who disagree with you are insincere about what they say, you are living in a bubble.

#10 Comment By William Tighe On December 7, 2017 @ 7:45 am

The Professor wrote:

“The deeper problem I believe, is that once you stretch that line around “religious freedom” to expand the practical application of those beliefs outside of the church environment into civic life …”

Was this portion of the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” (and particularly “prohibiting the free exercise thereof”) ever intended (as far as we can determine) to confine religious activity to “the church environment,” or ever construed thus judicially? It sounds to me that “the Professor” is propounding a version of the Obama/Clinton reduction of “religious freedom” to “freedom of belief and worship.”

#11 Comment By Phillip On December 7, 2017 @ 8:18 am

Hi John,

Thank you for your answer.

“In my mind, looking at this case strictly in terms of how the Court should rule, I would like to know if the Commission asked if the baker rejected to bake a cake based on any number of selections which he offers or if he was ordered to offer a cake that actually has a message on it. . .”

I’d to know this too. I agree with you. If they wanted a custom cake with two grooms on top, that’s one thing. If they just wanted generic Wedding Cake B3 from a list of choices, then that’s something else.

In the latter case, he’s not participating any more than the gas station they stop at on the way to the ceremony.

If he found out one of his generic cakes was going to end up in a gay wedding, I think he should still have to sell it.

#12 Comment By E.J. Worthing On December 7, 2017 @ 8:23 am

@Jonah: The First Amendment does not distinguish religious beliefs that are well-established or popular from religious beliefs that are novel, rare, or eccentric. All religious beliefs get the same protection under the free exercise clause. Likewise, speech and refusal to speak gets the same protection under the free speech clause regardless of whether a widely-held religious belief motivates the speech or refusal to speak.

All of these motives for refusing to make a wedding cake stand or fall together:

1) The baker believes that only an opposite-sex couple can have a valid marriage, and that it would be wrong or sinful to make a wedding cake for a same-sex couple.

2) The baker believes that only a same-race couple can have a valid marriage, and that it would be wrong or sinful to make a wedding cake for an interracial couple.

3) The baker believes that remarriage after divorce is impossible (unless the ex-spouse is deceased), and that it is wrong or sinful knowingly to make a wedding cake for someone who is attempting to remarry after divorce.

4) The baker believes that only a man can officiate a valid marriage, and that it would be wrong or sinful to make a cake for a wedding that will have a female officiant.

5) The baker believes that a valid wedding requires the two people getting married to drink from the same cup at some point in the ceremony. The baker believes she has a duty to inquire about the details of a wedding ceremony before agreeing to provide a cake.

6) The baker believes that marriage is only valid if the institution that performs the marriage reciprocally recognizes other marriages, including same-sex marriages. He believes it would be wrong or sinful to provide a cake for a wedding to be performed at a house of worship that does not recognize both same-sex and opposite-sex marriage.

#13 Comment By Ali On December 7, 2017 @ 8:32 am

A DC Wonk wrote: I could see an argument that since the couple was presumably going to get married with or without a cake, then making the cake would not qualify as leading others to sin.

~~~~~~~~~

I think in the case of Catholicism, this would still be viewed as an issue. The couple and their decisions aside, baking the cake could scandalize just about anyone with knowledge of it. Essentially, baking the cake is still participation in the celebration, and anyone knowing you’re baking the cake (your children, your neighbors, employees, wedding attendees, whoever) may then be led to think such a celebration is warranted, and the behavior being celebrated not sinful.

#14 Comment By Siarlys Jenkins On December 7, 2017 @ 11:55 am

Thumbs up to all those on this thread who are defending freedom of choice for entrepreneurs.

Does that include us leftists?

The deeper problem I believe, is that once you stretch that line around “religious freedom” to expand the practical application of those beliefs outside of the church environment into civic life, or outside of an expressly religious retail/business situation and into general business and services open to the public, you open the door for more vital public services to do the same

Indeed. Arguing this on the basis of “religious liberty” is shooting the baker and the florist in the foot, or maybe in the heart. That’s not the legal issue, even if many talk about it that way.

The valid constitutional issue is “compelled speech.” And I’m afraid I have to save Erin Manning from herself. She believes what she says, but she’d make a terrible advocate in a constitutional case. It doesn’t matter whether two persons of the same sex being “married” is a perfectly valid concept, or idiotic. What matters is, the government can’t compel the artist to participate in crafting a message saying either one.

Because in 2017, it’s easy to demonstrate that a principled opposition to same-sex marriage is a mainstream (if by no means unanimous) Christian position shared by countless millions of people and easily confirmed by religious authorities.

That’s irrelevant. Even if only two people in the USA believed that, and everyone else thought they were nuts, the government can’t compel either of them to bake a cake or photograph a ceremony that offends their own beliefs.

Why does the Christian baker, who is called a bigot by those on the Left, get a pass, and the racist baker, who is called a bigot by just about everybody, not get a pass?

The racist baker does get exactly the same pass. They can’t refuse to sell a dozen cupcakes to a girl who happens to have a dark complexion, but they really don’t have to bake a cake for an inter-racial couple that wants dolls of different colors on the top, and the words to “We Shall Overcome” frosted on the cake. No, the racist baker does not have to custom-make that cake.

Most people of African descent, and most inter-racial couples, would not dream of spending their hard-earned savings at a bakery owned by an avowed racist. Nor would they hire a member of the KKK to make the photographic record of “the happiest days of our lives.” Its a peculiarity of the gay movement that a lot of same-sex couples would rather sue a florist, photographer, or baker to MAKE them be part of the happy event.

#15 Comment By wmwa On December 7, 2017 @ 1:18 pm

“I hope that the Supreme Court rules in favor of the cakeshop owner, of course, but if it does, don’t for a minute think that this fight is over, or that your job and livelihood will be safe if you are known to dissent.”

I don’t understand how you continue to be this alarmist when the New York Times is running pieces in favor of the baker’s religious freedom. I know we Christians have fantasies of being persecuted and being martyrs for our faith, but under actual persecution — you know, like not being allowed to congregate or serve in the military (sound familiar?) — we are not. We’re just not. Instead we are currently paying the price for the persecution of gay people of which that Christians themselves are guilty.

Trump is POTUS. Oligarchs control the vast majority of the world’s wealth and resources, and they do this out of greed, not to help the poor. Those are the greatest threats to Christians, and to us all. Not the fact that gay people sometimes buy wedding cakes.

And I say this as someone who hopes the baker wins. Similarly, I think people should be allowed to refuse to bake cakes for Christian weddings.

#16 Comment By EarlyBird On December 7, 2017 @ 2:02 pm

I’m with Brooks on his notion that the very fact that this legal action occurred is a sad thing. I am a strong proponent of marriage equality, and I believe that the legal win for it should be a poster child of how to achieve these kinds of things. It wasn’t just rammed through the courts. It was the crowning culmination of generations of work to show and stand up for the basic humanity of gay people.

This lawsuit however, and the attacks on people who merely hold a different view about gay people, from this baker, to Brendan Eich who was forced out of his tech job a couple of years back for being against gay marriage, and on and on, is Stalinist and corrosive to any goodwill that had been built over so many years. It’s mean and stupid and shameful.

#17 Comment By Thaomas On December 7, 2017 @ 5:47 pm

@John R

What kind of universe do you inhabit in which opposition to same sex marriage is a “mainstream” view of Christians. I agree that opposition is great than to inter-racial marriages, but it’s still a minority view. The correct answer, however is that the small-time racist baker/photographer SHOULD get a pass just like the small-time homophobe baker/photographer. Christians better not wish for exclusive rights to inflict harm others.

#18 Comment By MichaelGC On December 7, 2017 @ 7:10 pm

Disillusioned Lawyer says on December 6, 2017 at 7:09 am:

Finally, and I don’t think people get this enough. All justices are human and mindful of how their biographies will be written when they are at that age. The Supreme Court justice who authored Lawrence, Windsor, Obergefell isn’t going to end his career by voting for Masterpiece.

Assuming that is true, then it is a sorry commentary on the professionalism and ethics of Kennedy that he would be more concerned about how he is going to appear in the history books than anything else, that he would not want to besmirch his flawless record as Great Liberator of Gays by voting in such a way as to cause them offense as his last act on the bench. I hope he would rather be remembered as a fair jurist than as a partisan who always delivered for his fair weather friends.

#19 Comment By MichaelGC On December 7, 2017 @ 8:39 pm

Trimalchio says on December 6, 2017 at 1:53 pm:

Brooks is pretty late to the party.

“Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”

de Tocqueville 1831

Yes that. There is no infinitesimal triviality now that will not become a federal case, such as going to the bathroom, for example. Aston Whitaker v Kenosha Univied School District is such a case, and concerns a transgender boy (i.e. a girl) that wanted access to the boy’s room at school. 3 judges on the 7th Circuit ruled in her favor, and amicus briefs for a SCOTUS appeal are now being taken. What we have seen so far is just a trickle compared to the onslaught that is coming.

#20 Comment By MichaelGC On December 7, 2017 @ 8:41 pm

That should read Aston Whitaker v Kenosha Unified School District.

#21 Comment By MichaelGC On December 7, 2017 @ 9:12 pm

Potato says December 6, 2017 at 5:13 pm:

I’m putting “Artist” in quotes because before all this happened few people regarded cake bakers as artists.

Obviously, you have never watched Cake Boss or some of those other baking shows, with their gloriously elaborate creations requiring the skill, expertise, and talent of multiple specialists working with fondant, icing, and modeling chocolate to produce the centerpiece for a festivity, causing celebrants to break out in oohs, ahhs, and spontaneous cheers and applause when they first lay eyes on it. Fancy, highly decorated cakes has been the trend since before this case came up.

#22 Comment By David K On December 8, 2017 @ 2:28 am

I don’t see how anyone can argue that having such a divided and acrimonious nation is preferable to a velvet divorce where people can live in peace in separate nations.

Why does the logic of a no fault divorce not apply to a nation with irreconcilable differences between its citizens and little mutual trust?

#23 Comment By Robert On December 8, 2017 @ 10:50 am

@ Ken Zaretzke (The first comment in this thread)

Marriage is a particular bond between two people. It is no more right to say that one man can be married to multiple women (or vice versa) because heterosexual marriage than it is to say that group marriage because SSM. This is one reason why bigamy (multiple state-recognized marriages) has long been a crime, while having a mistress generally hasn’t been.

I am fine with group marriage personally, however a bunch of laws would have to be modified, as equality is not served by allowing the various spousal benefits codified in our laws and in employer policies to multiple people.

That is the real argument against government recognized group marriage.

Social groups are the appropriate institution for “group marriage” (by another name). Said groups (e.g. VFW, Masons) have legally enforceable bylaws, constitutions, and governments. I believe they already have a form of community property, so the important spousal rights that they lack are along the lines of family visitation. It’s far easier to fill this gap than to re-write the laws and policies which assume marriage is a two-party proposition.

It also allows for far more flexibility in that it allows one man to be married to many women without the women being married to each other (and vice versa). It allows one man and multiple women to all be married to each other. It allows multiple men and women to be married to each other. And every other variation based on the founding constitution of the group.

#24 Comment By Robert On December 8, 2017 @ 11:26 am

@Will Harrington

“No one has yet told me why the government, barring a draft or conviction in court, has a right to compel our labor.”

No labor is compelled here. The owner had the right to downsize his business in order to avoid baking wedding cakes for gays and chose to exercise that right. He is still making a living (though his former employees are not).

I hate this argument when people make it about taxes, too. Taxes do not compel labor, they simply take a percentage off of the top. They do not require particular kinds of labor or even any labor at all.

Compelled labor is something to be leery or angry about. Public accommodation laws are not it.

#25 Comment By Robert EV (there are multiple Robert’s posting here) On December 8, 2017 @ 11:41 am

@ Austin Shaver

1) What kind of creative services?

2) If you make that kind of art, then yes. If you don’t do nudes, or don’t do nudes of a particular sex, then you can keep on not doing that. If you don’t do war scenes then you can keep on not doing that. If you don’t do political messages then you can keep on not doing political messages.

3) Of course not. Employee-employer relationships (distinct from public accomodations under our laws) cannot be compelled to form on the part of the presumptive employee. I dare say that the various actors guilds would have a problem with this too.

4) Fines are not a compulsion. Jail time is. Closure is borderline.

Yes. It is okay for laws to mandate that photogs and etcetera who offer their services to the general public be compelled to follow through on this offer.

In my mind an acceptable alternative would be if the photog, etc… had a working relationship with another photog to take the work that they do not wish to do. If that other person/company cannot take the work for any reason, then the original photog, etc… must take the work if it fits into their schedule. This is the acceptable out for public accomodations.

Re: Donald Trump) Of course not. It would take all three branches of the government to compel such. And all three branches would have to toe the line drawn by existing higher laws.

#26 Comment By JonF On December 8, 2017 @ 2:02 pm

Re: The First Amendment does not distinguish religious beliefs that are well-established or popular from religious beliefs that are novel, rare, or eccentric.

Actually, the courts have ruled on whether claims of religious belief are valid or specious. And whether specific claims are in conflict with the public good. No less a orthodox Christian jurist as Antonin Scalia shot down the idea that freedom of religion establishes a right to use illegal drugs in rituals. We may disagree with him on that, but it does show that religious liberty is not a blanket claim to amnesty from all and any laws.

#27 Comment By Pavlos On December 8, 2017 @ 2:15 pm

“as a general rule, the art is separate from the artist” RD from other post – Garrison Keillor? Who He?
If that’s so, then it cuts both ways and Christian bakers need have no apprehension about decorating a cake with halloween or gay marriage motifs, or anything else they might not personally condone when they are not forced to participate in actual celebration of any of those events that violate their personal convictions.
While it is entirely plausible that a gay couple in CO didn’t just happen into the Masterpiece Bakery to request a cake decorated with gay marriage motifs, it’s also highly probable that they did so because the hook had been baited by the CO baker’s smug aesthetic, as American (socalled) Christian social conservatives have been doing for decades with anyone and everything they deem their enemy and capable of destroying their sacred cows – West, America and Christianity.
When there is no public outcry by Christians against the way (socalled) Christian conservatives make a political public spectacle of themselves in America, it’s no wonder then that nonChristians, who have no basis for distinguishing between the plethora of shades of Christian brands in America, come to hate all things Christian. IOW, the socio-political game that such conservatives have been playing is a self fulfilling prophecy.
The fact that there are such things in America as Christian amusement parks speaks volumes to the way (socalled) Christians think the way to Christianization is to externally slap a Christian meme on anything and everything culturally American (like pop music, cars, amusements, etc.), which they seem to think thereby makes it of Christ.
Then by the same socalled logic, decorating a cake with halloween or gay marriage memes must make such cakes unChristian, anti-Christian, evil and therefore the (socalled) Christian conservative must conscientiously refuse to bake such evil cakes in order to avoid violating their Christian conscience.
This twisted form of logic descends from the same source – evangelical Reformed Protestantism that is steeped in apocalyptic millennialism which sees things literally in b&w terms, Church Growth Movement which measures Christian success by the numbers no differently than a corporate capitalist CEO, and Contemporary Christian Music (CCM) which ignores that the media is the message in deducing that packaging Christianity in contemporary form makes it more effective to proselytization.
Take for example –
6 Christian Amusement Parks and Crazy Attractions That Have Actually Existed
[6]
One of those has now baited it’s hook with a huge LGBT worm –
A Christian theme parkclaims it is ‘taking back’ the
rainbow from the LGBTQ community
[7]
No doubt, many (socalled) Christian social conservatives are now envious of China and more than ever driven toward culture war, where winning will grant them all the spoils of having the government subsidize their special projects as the Chinese government has.
Christian theme park in China sparks outrage
[8]
When nonChristians see (socalled) Christians acting as just another American special interest group, especially one that is vocally opposed to certain other special interest groups, then it’s no wonder that those groups return tit for tat and oppose such Christians, with the opposite intended effect of wanting nothing to do with Jesus the Christ.
Camille Paglia, herself a lesbian, has often openly decried male homosexual assault on Christianity, but honestly, which came first? the homosexual anti-Christian agenda, or the anti-homosexual (socalled) Christian agenda?
Surely, if the NYC police hadn’t made a habit of raiding gay bars, and if (socalled) Christian social conservatives had continued to keep their mouths publicaly shut about homosexuality except in their own circles, there would never have been any Stonewall Riots or need for any Gay Pride movement, and America and Christianity wouldn’t be sitting in the mess it is today.
The only way out now is further government intervention through regulation defining how cake decorating must be done. IMO I’d keep it simple and split the baby – if you’re going to custom decorate cakes then you must decorate however any customer wants as long as it’s legal, including all religions, sexualities, etc., otherwise you can only sell non-custom ordered cakes from which customers choose (like in the grocery deli) and risk selling out or getting stuck with what doesn’t sell. If you want to take custom cake orders, but discriminate in the decoration theme, then you must only and everywhere only sell custom ordered generic cakes without any specific messaging decoration whatsoever. The shrewd business will no doubt seize on the first option, which is what they’re currently doing anyway.

#28 Comment By mike On December 8, 2017 @ 3:58 pm

David K (2:28am) – well done.
That is THE question.
The inescapable answer: this frankenstein monster of a country continues to be stapled and sewn and taped together for the benefit of one and only one group – the Greater State (i.e., the ruling class within the institutions of national power: Media-State, academia, legal ‘industry’, health care system, etc.)
Although the US and EU are different in many ways, they do share this in common: they are two unnatural and illogical unions held together by bribe and coercion for the benefit of a diabolical ruling class (tautology?).

#29 Comment By Ken Zaretzke On December 8, 2017 @ 4:44 pm

“Marriage is a particular bond between two people. It is no more right to say that one man can be married to multiple women (or vice versa) because heterosexual marriage than it is to say that group marriage because SSM.”

It seems surprisingly hard for many people to understand my simple point about equal protection for bisexuals. By group marriage I specifically mean bisexual marriage, although the question later would become why are people in bisexual marriages allowed to have multiple spouses–especially when not all people in those relationships must be bisexuals–when straights are not allowed to have multiple partners. That’s a completely separate problem, and so I’m not really talking about bigamy per se. You’re mistaking my point.

What I portrayed as a reductio ad absurdum that happens to be valid (not a fallacy) could more generally be described as an argument from consequences. In which case I could call SSM self-defeating rather than a reduction to absurdity, and for the same reason–namely, that SSM entails bisexual group marriage, and group marriage is repellent to all but a handful of academics.

But if I were to do that, I could no longer target equality as the agent of the wackiness in question. That’s because liberty, as a putative justification for SSM, works just as well as equality vis-a-vis the self-defeating logic of gender-neutral marriage. That route–”same-sex marriage is self-defeating because it entails group marriage a la bisexuals”–might dent Justice Kennedy’s mental armor and make him see that Obergefell was maybe not such a great idea. But I like the more edge-of-the-envelope argument that might knock some sense into Justice Breyer, who is the most thoughtful liberal on the Court. Ginsburg and Kagan are extremely smart but they are completely unreflective about liberalism. I don’t think that’s true of Breyer.

#30 Comment By Siarlys Jenkins On December 8, 2017 @ 5:08 pm

Why does the logic of a no fault divorce not apply to a nation with irreconcilable differences between its citizens and little mutual trust?

Because people of varying viewpoints are scattered all over the landscape. Red states and blue states are convenient myths that reflect voting majorities, not consensus.

Because every nation has competing viewpoints on everything, and every time some new nation splits off, the revolutionaries who won the war of independence split into rival parties that disagree on just about everything except the newly won independence and sovereignty.

Perhaps most of all, because several million people dead as tens of millions are uprooted from their homes for being on the wrong side of your previous no fault divorce line is a fate profoundly to be avoided.

#31 Comment By JeffK On December 8, 2017 @ 8:28 pm

“David K says:
December 8, 2017 at 2:28 am

I don’t see how anyone can argue that having such a divided and acrimonious nation is preferable to a velvet divorce where people can live in peace in separate nations.

Why does the logic of a no fault divorce not apply to a nation with irreconcilable differences between its citizens and little mutual trust?”

I cannot imagine that somebody would actually suggest we divide this country into ‘blue’ and ‘red’ areas where the majority color gets to push their agenda onto the minority color for that particular issue.

But then let’s just look at this from a pure combinatorial view. Assume there are 5 issues that have binary, yes/no options. Abortion, gun control, social welfare/justice issues, high/low tax, pro/anti immigration. That means there needs to be 32 (2 to the 5th) number of ‘regions’ to accommodate all possible combination of beliefs.

Is the poster proposing that somehow we identify those 32 regions, and then somehow manage the relocation of all individuals and businesses so that they exist within the region that reflects their beliefs? And what if they change one of their beliefs over time? Are they to move again?

I prefer we figure out how to live together without trying to jam each others morals down each others throats. I think the founding fathers actually had a pretty good idea on this. They authored the US Constitution and the Bill of Rights.

Seems to me one a foundational aspect of an accommodating approach is to quit trying to forbid behaviors based upon a religious perspective of morality.

If you don’t like abortion, don’t have one. If you don’t think marijuana is good for you, don’t smoke it. If you don’t find someone of the same sex appealing, then don’t hit on somebody of the same sex. Basically, if you feel you are the victim because two gays ask you to bake a cake for their wedding, then I think you need to get thicker skin. Or move to someplace where there aren’t any gays.

Good luck with that.

#32 Comment By JonF On December 9, 2017 @ 11:58 am

Re: Although the US and EU are different in many ways, they do share this in common: they are two unnatural and illogical unions held together by bribe and coercion for the benefit of a diabolical ruling class (tautology?).

For all our regional and individual differences the United States remains a single nation with a common history, language, and outlook. Comparing it to the EU, made up of distinct countries with their own languages, histories, cultures, etc, is ludicrous. We are, at most, like Germany or France which also feature unique regional subcultures, and some small ethnolinguistic minorities. Does anyone think Germany should separate into its Lander or that France should return to the medieval state of feudal disunity? Both nations after all suffered much at the hands of outside powers when they lacked political unity. Which is a risk for the US too: the world remains a dangerous place and the fact that the Pax Americana shields us now does not mean we could not become prey to other powers if we sacrificed the very things that have made us string. No, that is not a plea for the US running the world– I am very much opposed to that. But it is a pleas for us to remember the wisdom of Ben Franklin, that if we do not hang together we shall all hang separately.

#33 Comment By Kurt On December 9, 2017 @ 4:18 pm

Baker Philips may have certain rights, but please stop calling him “the Christian baker.” His view, however sincere, it totally outside Christian theology. Not his view on marriage, but his view that selling the cake is a sin. It is not a sin. It is remote material cooperation, which is not sinful and therefore God does not punish a baker who makes such a sale.

[NFR: Wrong. It is not your place to tell him what is and is not Christian theology. “Remote material cooperation” is a Catholic concept. He is not a Catholic. And even if he were a Catholic, if he sincerely believed that making this wedding cake would be sinful, I think we should respect that, even if we disagree. — RD]

#34 Comment By mike On December 9, 2017 @ 8:55 pm

Responses to: JonF, JeffK, Siarlys re David K, and Shannon(11:24pm)
1) I said the US and EU are VERY DIFFERENT but they have one major thing in common: “they are two unnatural and illogical unions held together by bribe and coercion for the benefit of a diabolical ruling class (tautology?).”
2) Shannon (11:24pm) mentioned that the only way to avoid having power-hungry psychopaths in control of your country is by lottery selection of national leaders. DEAD ON. That person has been paying attention.
We used to have that – the lottery of birth.
It was called monarchy/aristocracy. And it is not just a nice option to consider. It is the only thing that has ever worked.
The Ayn Rand libertarian clowns don’t even realize they are just a stage on the liberalism to marxism garbage chute. Pathological individualism always leads to State domination. Only strong communities can resist State power. (Isolated individuals eventually embrace it.)
You can’t just reject the State. You must have an Anti-State to fill the void. Liberty does not work as an end or as an idol. It must be understood as an essential means to the functioning of society – as oxygen is to the individual.
Nothing has ever performed the role of Anti-State better than a thoroughly Christianised hereditary monarchy-aristocracy – an incorruptible (relatively) guardian class.
They protect us from the State – not just from foreign ones, but the from the domestic one. That is the realy dangerous one.
The continental model was Austria-Hungary. The global model was the British Empire.
Countries, regions, city-states, micro-cultures – without a central government – just rule-of-law and mutual defence. That’s what it’s all about. That is the garden of Christian Civilisation. That is where humans thrive.
The State is the Death-God.
As the old saying goes: “War made the State, and the State makes war.”
And there is no group of humans more vulnerable to this death machine than the ones over which it directly rules.

#35 Comment By Erin Manning On December 9, 2017 @ 10:05 pm

Just as an aside, really: I love how people are sure that changing marriage from “one man and one woman” to “any two people of any sexes” wasn’t a big deal, but that changing marriage from “any two people of any sexes” to “as many people as want to sign up together” is somehow practically a sacrilege. Newsflash: if the sexes of the people involved in a marriage didn’t matter, then the number doesn’t matter either, except to bigots who don’t think three or four or twelve people can truly and sincerely love each other. Remember, Love Wins!

#36 Comment By Ken Zaretzke On December 10, 2017 @ 6:01 pm

“Newsflash: if the sexes of the people involved in a marriage didn’t matter, then the number doesn’t matter either, except to bigots who don’t think three or four or twelve people can truly and sincerely love each other. Remember, Love Wins!”

Erin Manning is right, and especially as it pertains to bisexuals. Even if a specific liberty that justifies SSM can be identified, and a positive case made out, there remains the hurdle of bisexual group marriage as proof that SSM is self-defeating. If gay guys Bob and Thomas have a liberty right to marry, why don’t heterosexual Dave and bisexuals Sue and Anna have a liberty right to marry as a threesome? Or bisexuals Joe and Rachel and homosexuals *or* bisexuals Jill and Robert as a foursome? The answer can’t be that the liberty to marry is restricted to pairs, because that same liberty cannot be restricted (says Obergefell) to opposite-sex pairs. If the right to marry is a specific liberty that is indifferent to opposite-sex pairings, why isn’t it also indifferent to whether the pairings are in twos or threes or fours? Nothing in the idea of liberty answers that in any way. However it is constitutionally construed, SSM is untenable.

#37 Comment By JonF On December 11, 2017 @ 1:01 pm

Re: If gay guys Bob and Thomas have a liberty right to marry, why don’t heterosexual Dave and bisexuals Sue and Anna have a liberty right to marry as a threesome?

Number is a more profound category than gender. Gender is an accident of biology; we can imagine a world without gender. Number is basic to the foundations of reality. Could there be a world without number?
Or on a more practical scale, a store which posts a sign “No______served here” (referring to some group, including a gender group) will speedily be called to legal account for such discrimination. A store which posts a sign for a sale reading “One to a customer” will not end up in any legal contretemps.

#38 Comment By JonF On December 11, 2017 @ 1:09 pm

Re: It was called monarchy/aristocracy. And it is not just a nice option to consider. It is the only thing that has ever worked.

If you think monarchy “worked” then your knowledge of history can be fitted between the quarks in a proton. I could go on at vast length concerning the many failures, both practical and moral, of monarchy, beginning at least as far back as the Pharaoh of Exodus and continuing right down to the Saudi monarchy today.

Re: they are two unnatural and illogical unions held together by bribe and coercion for the benefit of a diabolical ruling class (tautology?).

No, the US is an organic nation that evolved through historical processes. Sure, there are subpolities in our nation– but that is true of every nation larger than Monaco. And yes, every nation has a ruling class and its sins are easy to criticize as they are often very public and well-broadcast. Yet above you endorsed monarchy as if history is not full of the sins and follies of kings. I rarely cite Aristotle, but in this he was right: while monarchy may be the best theoretical form of government, in actual history it is usually the worst, with constitutional government being the best practical form.

Re: Nothing has ever performed the role of Anti-State better than a thoroughly Christianised hereditary monarchy-aristocracy – an incorruptible (relatively) guardian class.

Incorruptible!?! That’s like calling a brothel a holy convent! As I said above, your knowledge of history is badly defective.

#39 Comment By mike On December 11, 2017 @ 3:55 pm

To JonF (1:09pm)
By definition, an aristocracy – people born into the top level of wealth and status – are infinitely less corruptible (as a class) than the pathologically ambitious unprincipled scum found in political “systems”, who are self-selected and then distilled down to the one-percent of one-percent most corrupt and amoral segment of the population.
The history books show us that a THOROUGHLY Christianised monarchy/aristocracy are the best (actually the only) effective anti-State – the only class capable of fulfilling the roles of upholders of rule-of-law and guardians against the rise of political beings (i.e, the one-percent of one-percent mentioned above).
Again, please refer to the British Empire (before the steady politicization that followed the 1867 reform act), and to the Habsburg Empire, which was so successful at ingraining rule-of-law, and in preserving ancient, deep-rooted local communities and cultures.

#40 Comment By Ken Zaretzke On December 11, 2017 @ 5:53 pm

“Number is a more profound category than gender. Gender is an accident of biology; we can imagine a world without gender. Number is basic to the foundations of reality.”

That might be a good way of arguing against polyamorous group marriage. But even if it is, it says nothing about bisexual marriage. It ignores the logic of equal protection vis-a-vis bisexuals, **insofar as Obergefell is the law of the land**. That is, if the Constitution forbids discrimination against homosexuals by allowing them to marry in a **homosexually relevant** way, i.e., someone of the same gender, then it should forbid discrimination against bisexuals by allowing them to marry in a **bisexually relevant** way–threesomes and foursomes.

In fact, if “animus” against certain groups is a sticking point, then that should count in favor of bisexuals, since they are perhaps the most stigmatized group in the LGBT community. (Lesbians famously detest bisexual women, going so far as to commonly deny the authenticity of bisexual women’s identity.)

How can such nuttiness possibly be thought to be constitutionally required? Obergefell must be overruled on grounds of constitutional sobriety. The sooner it is overruled, the less extensive the damage to law’s integrity.

#41 Comment By Ken Zaretzke On December 14, 2017 @ 4:27 pm

@JonF: After thinking about it, I’ve concluded that your argument is a way of rejecting polygamy *as opposed to* polyamory, while also of course accepting SSM. It still has nothing to do with bisexual marriage. And it gives no positive reason for accepting SSM, only a reason for not rejecting it on slippery-slope grounds.

In your plausible view, gender isn’t a big deal in the ultimate order of things, and so the gender neutrality of SSM is also no big deal. At the same time, the primacy of numbers in the universe (as in mathematics and physics), combined with the invariable pattern of a numerically even sex ratio in the human population, shows that polygamy may be objectionable even if SSM is not. That’s what you’re saying. However, nothing follows for polyamory, much less bisexual marriage.

You’re providing support for my belief that opponents of SSM should forget about polygamy and slippery slopes and start worrying about bisexual marriage and logico-constitutional implications. Just as numbers are more real than gender, implications are more real than slippery slopes.

You’re also giving support to Reynolds v. United States, which affirmed the legality of Congress’s prohibition of Mormon polygamy, in the days when Mormons officially embraced it. For roughly the same reason that mathematics and physics are privileged over economics and psychology, so can monogamy be rightly privileged over polygamy, to the extent of banning polygamy.

As for SSM, it’s defective regardless of any skepticism about the absoluteness of gender. Traditional marriage relies on the absoluteness of dimorphism–the sex difference between male and female being an aspect of the nature of things. Funny people with funny educations–I’m not referring to you–can argue that gender is the mole on the behind of an elephant, and that moles are socially constructed. But other people, free from crazy ideology, know that dimorphism is a philosophical-anthropological foundation for exclusively opposite-*sex* marriage.