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Masterpiece Cakeshop v. Colorado Civil Rights Commission

Yesterday, December 5th, oral arguments were made before the Supreme Court of the United States (SCOTUS) regarding the case Masterpiece Cakeshop v. Colorado Civil Rights Commission. (SCOTUSblog) Although I'm interested in this case (and similar cases), I haven't posted much about it. Tonight, I want to organize my thoughts without trying to guess what the outcome will be.


A cake is just a cake; it's not a "message" until you write something on it

Or put images or symbols on it; otherwise, it's just food. At least in the eyes of the law. (I'm using "write" as shorthand for explicit messaging.) The pragmatic "purposes" of a wedding cake are: To have a pleasing appearance, to be large enough that everyone can have a slice, and to taste good. That's it. Yes, the "end users", the couple and their guests, may assign some emotional significance to it but I think that's a result of the context and the moment. I've attended plenty of weddings, and most of them had cakes, but I don't remember one of them. It's dessert.

From a business perspective, it's a product; and the manufacturing of that product is a service. No matter how pretty, fancy, or "custom" it may be (or how expensive), if you're a professional cake-maker then it's business. If you're in the business of making and selling cakes to the public, then you have to play by the same rules as everyone else.

Now, if potential clients want you to write something on a cake, and you disagree with that message, then you shouldn't be forced to write it. However, that doesn't mean you should refuse to make the cake. See the distinction I'm making here? If Phillips had said: "I'll make a wedding cake for you but I won't write the names of two men on it; you can do that yourself", then I don't think he'd be in the situation he's in now. And there's precedent for that:

An anti-gay activist, who was apparently trying to "make a point", went to a bakery and requested a cake in the shape of a book (I.E.: The Bible), and wanted it inscribed with anti-gay messages. The proprietor said she would make the book-shaped cake but declined to attach those messages. He filed a complaint with the Civil Rights division of the Department of Regulatory Agencies (yes, this also occurred in Colorado), and the baker won the case. See, she didn't unilaterally refuse his request (as Phillips did), she just drew the line at the "message" aspect.

A cake is not a message until you explicitly make it so.


The SCOTUS case is about more than just a cake

Both sides of the public debate, for or against the baker, acknowledge the potentially far-reaching ramifications of a SCOTUS ruling on this case. It's really not about just a cake anymore; when SCOTUS "speaks", that's precedent.

My opinion, delineated above, makes clear my hope that SCOTUS does not try to carve out a "narrow" ruling in favor of the baker (which is what his legal team has argued). Such "religious liberty" arguments can just as easily be applied to other situations (services, accommodations, etc.), and against other groups. Although religious beliefs and practices are constitutionally protected against unnecessary government interference or proscription, that doesn't mean that subjective faith beliefs supersede all civil law. "I think God said so" does not excuse all behaviors, especially when such actions cause harm to others. You can believe whatever you like, and practice your faith as you see fit, so long as you don't tread on the rights of others, because then the government has a compelling interest to intervene.

A ruling against Phillips would mean that he (and others) must observe the same rules as everyone else when conducting business in the public marketplace. A ruling in favor of Phillips would embolden all sorts of invidious behaviors.


Other possible outcome

Justice Kennedy made note of comments by a member of the Colorado Civil Rights Commission, who likened Phillips' use of religious belief to slavery and the Holocaust, and referred to rhetoric supporting him as "deplorable". Kennedy rightly wondered whether Colorado had given Phillips fair hearings. So, a possible outcome is that SCOTUS will punt this back to state, essentially saying: "You didn't do it right; try again".

Although anti-climactic, that wouldn't bother me. I want this case to be excruciatingly correct; and if there's any reasonable question about treatment, then it needs to be resolved. It doesn't necessarily mean that Colorado would change its ruling, just that the process would be more inarguably fair.


Speaking of fairness

It's only fair that I mention my dislike of Phillips' legal team, notably the Alliance Defending Freedom (ADF). I'm very familiar with this group, they feature prominently in what I call the "Anti-Gay Brigade" (AGB); and based on their actions, the SPLC has designated them as an anti-LGBT hate group.

None of that matters before the bench, and courts must rule based on the arguments and evidence presented. If judges were to make decisions based on their opinions of the ideological leanings of legal representatives practicing before them, then none of us could be guaranteed a fair trial.
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2 Comments On This Entry

Businesses used to lose business if they didn't discriminate (e.g. some white people who didn't want to eat around "colored folk" wouldn't go to the diner if they'd be eating in a mixed-race environment). So some people though anti-discrimination laws were the only way to force integration. Nowdays business lose money if they do discriminate. Are laws still needed, or should we allow people the freedom to do business or not do business with whoever they want and let society figure things out with out the force of the government butting in?
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To a Christian, a marriage is a sacrament between a man and a woman before God. Forget that people and governments have put their paws all over the institution because that is secondary to the religious commitment of the couple before God.

In that case, a "Wedding Cake" already has meaning. Period. Through it's very purpose...to be served at a wedding...it has meaning. This was not some couple who came in to buy a cake that they would then serve at a wedding. The came in to special order, i.e. contract for, a "Wedding Cake" to be made specifically for their...wait for it...wedding.

The baker did not want to make them a "Wedding Cake" because of his religious convictions on what constitutes marriage. He chose not to enter into a contract to custom produce that cake specifically for them and their WEDDING. He did not refuse to simply sell them a cake, which is what you are disingenuously implying.

We used to be free in this country. Every time a homosexual activist decides that he (or they) are simply incapable of going to another service provider and lunatic courts uphold their complaints, we become less free.

Way to go!!
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