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Masterpiece Cakes v. Colorado’s Ministry of Love
Jack Phillips of Masterpiece Cakes.
This morning, the Supreme Court of the US granted cert to hear Jack Phillips’s suit against the Colorado Human Rights Commission (an Orwellian name appropriate to these loathsome apparatchiks of Cultural Marxism) in which that board held Phillips’s Masterpiece Cakes had violated the human rights of a gay couple by refusing to bake them a wedding cake.
The case in my opinion is, or ought to be, a slam dunk in favor of Phillips. While the Obergefell decision legalized gay marriage throughout the land, persons such as myself were not cheered at the fact that the right outcome was likely reached through the wrong process. The outcome in question has borne fruit of a similar nature, in that this judicial steamroller has been set loose throughout the land in a wave of forced tolerance, trampling of the First Amendment rights of various objectors.
Of interest in this case is not only the Religious Freedom aspect, but a potential for the restoration of some genuine freedom of association via the pushing back of the frontier of public accommodation laws.
Certainly, the usual suspects at the ACLU, GLAAD, and various other fronts of Cult Marx will squeal mightily should the conservatives on the Court rule (correctly) that people should not be forced to celebrate or engage in commerce with occasions they find offensive to their religious convictions, but it will be a step in the right direction for all involved. The protection of the law against State coercion and discrimination (as was upheld today 7-2 in the Trinity case) doesn’t end where homosexuality begins.
I am also not insensitive to the fact that Neil Gorsuch will play a large role in this process, for which I heartily congratulate the President and wish him many more successful SCOTUS appointments.
Published in General
Sometimes these things practically write themselves.
So it sounds like Kennedy will side with the left and it will make things worse, not better. Shame.
That is barring his retirement and replacement. However, it wouldn’t be out of character for him to want to place a cap on this out of respect for religious liberty.
Cato, my mom used to tell me hope in one hand and (you know the word) in the other. Considering what the Court has been doing for the past 100 years and how they teach this stuff now–build on previous rulings that have the approval of the law school–there is not much to hope for other than getting stealth Abel Upshurs nominated and approved to the SCOTUS.
Why not? Half of what would be in the litter box likely came from Obama.
That was the basis for Plessy. Louisiana mandated that all transit cars be segregated, even privately owned ones. That is the mistake behind that ruling. The Court should have struck down the state law mandating that private entities only serve a segment portion of society or that they serve one segment differently than another. It’s not the state’s business. Had the Plessy Court been more libertarian in their view, the entire civil rights course of history might have been different.
This concedes too much.
As @skipsul, the presumption should be of absolute freedom of association: citizens should be able to refuse to do business with others without having to justify themselves. Only under conditions that approach a monopoly should there be any question of the government interfering (e.g., the proverbial only supermarket in town that denies service to Blacks or Jews).
Shorter version: Citizens should not have to justify their choices with regards to whom they choose to associate. The government should be required to justify its intervention and the bar should be damnably high.
^This is why I’ve never liked RFRA laws. A Christian baker shouldn’t have to demonstrate or argue that his rights and conscience are violated; the state should be required to justify its intervention.
This. I’m bothered by the use of the “strongly held religious beliefs” language. What if I disagree for some other reason than religion?
Exactly.
Obviously, the Constitution specifically mentions Religious Liberty, but that should, philosophically, be considered a sub-set of Freedom of Conscience.
Destroying a person’s livelihood and bankrupting them because they objected to baking a wedding cake is ludicrous, beyond cruel and hopefully this will be settled once and for all in the courts.
As long as it is done through non-governmental means then I have no problem with it. If Christians really cared about it that much then they should exclusively use that business in order to support them when they are boycotted by other people.
The rainbow flag used to be put in front of businesses to show that, that business was gay friendly or gay owned. I guess now there needs to be the equivilant for Christian businesses. But the question with that is, will that then open up the Christian businesses to harrassment or vandelism for having that flag up in front of their businesses?
The biggest issue with these bakeries, florists, photographer, etc… cases is that the government has been weaponized against them. With these cases it is not necessarily the agrieved party doing this it is the state, and THAT is the scary part, and it is uncertain the Supreme Court will decide the right way.
Right, the problem is the government arrayed against the businesses not the people. People should be free to boycott or protest any business they wish – if you want to do so to Rainbow Flag businesses go ahead. As long as nothing illegal is being done like vandalism then let your freak flag fly so to speak.
I know that years ago I heard of a “Christian Yellow Pages”. These were usually put together by a group of churches to encourage members to support fellow Christians. I may be wrong, but I think some of these cases were started by troublemakers using them to identify “out-and-proud” Christians for the specific purpose of making examples of them.
EDIT: As to be expected, it is now online: Christian Yellow Pages
Not the best example, but I know that Scientology has a list of businesses in your area run by Scientologists for their parishioners to support.
Is it a list of movie theaters?
Depressingly not…
I don’t want to re-ignite the subject, but I’m just going to call BS on the claim that the right to get married is a “special” right.
We are speaking of the special right to have the State crush the Christians that annoy you, on your behalf.
I started law school in 1974. I’ve thought the “freedom of association” cases were travesties the whole time since. At times I felt a ‘lone voice, crying in the wilderness.”
Yes, there’s that. But, up until about two minutes ago it was common sense and objectively true that the compelling state interest in marriage was to support and promote biological parents raising their children in a stable union. Everyone (even gays) seemed to agree that marriage is a social good for that purpose. And, everyone had the expectation that any couple seeking state recognition of their union would be male/female, of a certain minimum maturity, of a minimum genetic separation, and a maximum of two persons.
I would expect nothing less of Cato to contest my assertion, but once the special exception is made for same sex couples, I don’t see how the other “discriminatory” standards can stand for long. On what basis? You can’t tell incestuous couples that they risk giving birth to children with birth defects (the risk may be doubled, but only from 1% to 2% for first cousins, e.g.), since they have the option, just like gays, of not having biological children at all by using contraceptive technology or surgical sterilization. Besides, what business is it of ours anyway? And, why limit marital unions to two people? Etc, etc.
No, I see SSM as special pleading, over and above the interests of polygamists, polyandrists, incestuous couples, same or multi-sex groupings (up to 57 genders?), interspecies coupling… whatever. As long as there’s “love” involved, why should the state be allowed to impose limitations?
If anyone can marry, marriage is stripped of its purpose. Women and children hurt worst.
That justification went out the window when nofault divorce was legalized.
I think that this is going to be a tough case for the bakery to win. I’ve just reviewed the petition for writ of cert, and the Colorado Court of Appeals decision.
The challenge is the SCOTUS decision in Employment Division v. Smith, the peyote case that led Congress to enact the Religious Freedom Restoration Act (RFRA). Smith essentially says that a neutral law of general application does not violate the Free Exercise Clause, even if it has serious implications for the exercise of religion. Think of a law prohibiting wine, with no exception for Catholic Mass. Smith would say that is OK as a matter of Constitutional law (absent evidence that it was specifically targeting Catholics). RFRA essentially overturned Smith by statute, with respect to federal laws burdening religion.
RFRA does not apply to state laws, like the Colorado law at issue in the Masterpiece Bakery case. It appears that Colorado does not have a state-level RFRA (at least, it’s not cited in the petition or opinion).
The bakery makes a clever argument that this is compelled speech, by characterizing the making of custom cakes as art. This might allow SCOTUS to finesse the issue, with a narrower “hybrid” decision, and not have to decide whether or not to overrule Smith.
Overruling Smith may seem an easy way out, but it could create other problems. Is a religious exception required to a law prohibiting female genital mutilation? Honor killings?
I don’t know (or care) what you’re talking about MJ, but the comment to which I responded referred to the right to marry as a special right. See the highlighted text above.
Thank you for pointing out that MJ wasn’t paying attention. And like I said, I’m not going to re-ignite the subject. Suffice it to say I know your views and I’m pretty sure you know mine. Never the twain shall meet.
Overruling Smith (and let me put down a marker right now and predict that the Court will) wouldn’t pose a problem for FGM laws or honor killing prohibitions. It would simply submit those laws to strict scrutiny. Not normally an easy bar to get over I grant you, but barely a speed bump to upholding laws prohibiting an act of violence like those two. Smith was a terrible decision. The overwhelming political support for the federal RFRA (at the time) is pretty good evidence that everyone (right and left) knew that. Smith was a classic case of “hard cases make bad law.” The eighties drug warrior mentality clouded Scalia’s judgment. Given the same structural fact pattern but something other than a hallucinogen at issue, and it would have gone the other way. The Court has taken religious liberty more seriously in other more recent cases. It’s high time Smith was overruled and this case looks to me like the perfect vehicle to do it.
This is a case of two wrongs don’t make a right.
Pardon me; I did miss the parenthetical.
Ms. Western C., I agree with you that the unfortunate re-definition of what the word “marriage” means is unfortunate. It is bad for America’s children.
We predicted outcomes like the Masterpiece Cakeshop four years ago here at Ricochet. We were mocked for our efforts.
The Masterpiece Cakeshop case is not trying to take on the SSM argument. They are arguing for religious liberty. SSM is not on the table.
Right, and my original point was about the First Amendment — that freedom of conscience (more expansive than religious liberty) must necessarily give way when the government makes capricious rulings such as Obergefell, Sandra Day O’Conner’s ruling on college admissions on the theory that another 25 years of race-based affirmative action is needed to compensate blacks for previous generations of discrimination, and the Obama administration’s and popular culture’s attempts to erase male/female distinctions.
SSM isn’t on the table; truth is, and one’s freedom to express it and live by it. Marriage is a reality that, by definition, excludes same sex couples. Candidates for college admission, employment, etc, should be judged on their merits, not their skin color. And men and women are not interchangeable and are biologically determined by their chromosomes, no matter how a person may feel about his or her sexuality. These notions are rapidly becoming thought crimes. It’s bad enough when society loses touch with reality. It’s worse when government imposes unreality by discriminating in favor of minority groups. The people are no longer sovereign.