Ironically, the Colorado Civil Rights Commission actually defended another baker who refused to bake a cake that would convey a message. In 2015, the commission declined to take up an appeal involving Azucar Bakery, which refused to bake Bible-shaped cakes with messages against homosexuality. The bakery’s owner, Marjorie Silva, said she refused to bake the cakes because the writing and imagery were “hateful and offensive.” Christian Baker Again Under Fire for Refusing Transgender Cake Despite Supreme Court Win
I’m all for there being as many articles as possible exposing the Colorado commission’s ongoing war on free speech, but I do not think the word ‘irony’ means what this article thinks it does. I see not irony but consistency. When the Colorado commissioners treat the supreme court’s ruling on them as a joke, but expect the bakery to treat their new case against it as no joke, they’re not being ironic. They are consistently pushing their freedom-hating agenda.
Now if this were to help Trump and the GOP in the midterms, that would be ironic.
(One other thought: the she-it-he person who demanded the bakery bake a trans cake has apparently also demanded that it bake a satanist cake, but AFAICS the commission has not taken action over that. Is the commission prejudiced against satanists?)
FWIW, Niall, I actually think this is consistent with the law. Simply speaking, Christians and Satanists are not a protected class whereas homosexuals are. Which is to say, in law, homosexuals have protections that Christians and Satanists do not. The Masterpiece Cake decision did not change this and did not decide that the baker had a right to religious free expression (or non-expression) rather the decision was a procedural one — that the Colorado Civil Rights commission had shown hostility to his religious beliefs in the decision making process in contravention of the government’s obligation to be disestablished.
The idea that there are classes of people who have special protection under the law makes a mockery of lady Justice’s blindfold or Martin Luther King’s I Have a Dream speech.
Like MLK I also “have a dream that my .. little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.” However, we do not live in such a nation, de jure. In MLK’s day the de jure discrimination was called “Jim Crow”, in our day it is called “protected classes”. I think both are quite appalling.
Fraser Orr (August 15, 2018 at 1:52 pm), you may be right that, in order to appear coherent in their speech war against Christians, the commissioners were obliged to sacrifice the satanists. I’m sure it distressed them to do so, but, as the saying goes, you can’t make an omelette – or a cake – without breaking eggs. (It would seem the lawyer-person whose role is to demand messaged cakes did not get the memo in time.)
To the lay mind, the US constitution’s very explicit reference to freedom of religion and very implicit reference to these specific protected classes (so implicit as to need the eye of PC faith, methinks) would seem at first glance to give the satanists the advantage here, but I am not a lawyer. ( I would write IANAL, but in a discussion of alternative lifestyles, this might be construed as cultural appropriation.) The commission’s legal experts have doubtless studied these matters and will have their living-constitution explanations ready.
Readers may detect a certain note of sarcasm in my discussion of these matters. 🙂
As for our shared dream, it sure seems like a dream at the moment. But some things are better than in the past. I hope anyone in the appropriate area is giving the cake shop as much custom as their waistline can stand. History is full of people who had to fight for free speech in harder ways than eating cake for it. 🙂
Still waiting for Progressive bakers to refuse to bake a Hitler cake. Or a pure-quill Andrea Dworkin feminist photographer to refuse to photograph a bachelor party with hookers.
We engineers weep with laughter at the decadence:
You depend on us for everything you do, even the medium we are now using, the sciences created: you cannot switch on a light, turn on a tap or go to the lavatory without our leave.
What you pathetically regard as civilisation depends on Gong Farmers and you don’t even realise it.
But we engineers will carry on changing the world – whilst you just talk.
I wasn’t surprised to see this.
The USSC punted on (what everyone thought was) the main issue in the cake case, and ruled that the Colorado Commission wrote its findings wrong.* When overturning Constitutional guarantees of freedom, you cannot say “and we hate the effin’ Christians” within the body of your findings as your primary justification for enforcement.
The USSC opinion basically dared the Commission to try it all again, but without including explicit anti-religious bias in their written findings. The Commission members were enraged at losing, and the gay and transgendered people have been sending in test case after test case to the bakery since then, looking for the “perfect” case to restart their prosecution. There is nothing so unrelenting as a progressive spurned.
(* I should note that it’s a long-standing principle of law that the courts should always try to avoid vast pronouncements of constitutional law, and take whatever “easy way out” that a case might offer. I used the word “punted”, but that’s their job.)
I await with dread the not-too-far-in-the-future day, when one of these PC (Political Coercion) Commissars is found, battered and injured, with a note near the body, stating “In defense of the First Amendment and my own self defense.”
Or it might be “Law Enforcement Officer”, in which case, substitute ‘Fourth’ for ‘First’.
@Fraser Orr,
On a point of law re: protected classes/groups, the Civil Rights Act 1964 specifically made discrimination based on religion unlawful. It is a “protected class”. I would note that the person behind this new complaint against Masterpiece Cakeshop specifically cited this fact in an email asking for a cake featuring “an upside-down cross, under the head of Lucifer”, as reported by David French.
@Ian
> On a point of law re: protected classes/groups, the Civil Rights Act 1964 specifically made discrimination based on religion unlawful.
Right, but Masterpiece cake was the discriminator, not the discriminatee (if such a word exists.) So this point is not relevant. In a sense the USSC took this point and found for Masterpiece cake because of the discrimination of the commission.
The first rule in imposing a state religion on a country is to never call it a religion. Call it a documented set of rights and privileges which unsurprisingly, come in conflict with most of the older established religions, then go after the established religions for being out of compliance with the rules. Back in the day, this was called Heresy. Can’t call it that now, but the effect is the same. The end result is for all religions to be free to call themselves anything they want as long as they comply with the state dogma. The Chinese are showing us how.
Further to what bobby b. wrote (all well-reasoned and well-taken) I think this is actually coming out quite well.
If the benighted Colorado Commission actually chooses to pursue this, and manages to craft a decision that punishes the cake shop for refusing to supply a cake which conveys a message at odds with their religious belief, they (the Commission) will have to make their decision either a) without reference to the religious beliefs of the cake-shop owner entirely or b) in a way which defines any religious basis for refusing to provide services as unacceptable – which I don’t think the Supremes will go for, based on their last ruling. After all, their decision bore upon the Commission’s open and unapologetic bias against religious belief, and it’s hard to see how they could argue that any religious-belief basis is unacceptable, but that that is somehow not a discrimination against any religion.
And, if they succeed in crafting a response like that – I will be fascinated to read it – that will open the floodgates to a thousand cases against Jewish bakers who decline to bake a cake with a black swastika in a red ground, or Muslim bakers who decline to bake a cake with a blue Star of David on a white ground, or Mormon bakers who decline to bake a coffee cake – you get the idea. And then the Commission will find itself on the horns of an exquisite dilemma, not so very different than that faced by the solons of Harvard in the case of Professor Ronell – what do we do when our favoured policy is used, absolutely-equally and absolutely-as-written, against those we favour?
In truth, I don’t know why the Commission is not already flooded with such charges. For a provocateur in the O’Keefe or Yiannopolous mould, it would be like shooting fish in a barrel.
llater,
llamas
@llamas, I don’t think your vision will come to reality. Nazis, Jews and coffee lovers are not protected classes under the law. The commission could simply have reasoned that the cake refusal was based on discrimination against a protected class, and, had they not mentioned the cause of that discrimination (namely the religious views of the owner) then the USSC would either have accepted their decision, or, perhaps rejected it on different grounds.
From what I understand, Masterpiece cake has indeed been flooded with many requests that are deliberately designed to provoke a refusal and consequently a lawsuit. In fact, I believe the cake shop is suing the commission right now because they are being crushed under the complaints.
It really is quite horrific, and shows what happens when you allow for this public accommodations doctrine or the idea that the right to run a retail store is somehow a privilege granted by the government under the name of “licensure” rather than a natural part of a free market.
FWIW, I think the cake shop’s refusal to make a cake for a gay wedding is part of an ugly bigotry, but legal recourse should be the last tool reached for. The couple could very easily have gone across the street and got their cake made there. Which gay couple wants a cake made by a person who finds their union objectionable anyway?
Wouldn’t it be great if there was a computer network information system that allowed you to search for cake shops so you could take your business elsewhere?
There are those who opine that the case was ginned up purposely to collect another win for the “homosexual rights” pushers and against a member of his particular religious out-group. (I think that Mr. Phillips would not be troubled by such lawsuits were he an avowed Mohammedan….)
I have to say I find that theory plausible; but then I don’t think persons in the “LGBTQ” groups have any more or different fundamental rights than anybody else, and I certainly think it absolutely appalling that they seem to have many symps who think that they either do, or at least should, have extra statute (legal) rights.
(Yes, sodomy should not be a criminal act. However, there are problems with that because of AIDS and so forth. But some heterosexual couples also engage in sodomy.
(This raises the issue of governmental oversight of Public Health, and the propriety of laws pursuant thereto. However, that really is a subject O/T. Therefore, to be discussed another day.)
Hm, no Edit Function today.
–Well, I should note that Fraser made the same point as I did in my first para. :>)
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But to be clear, I don’t agree about the “ugly bigotry” charge. If Mr. Phillips’s religious beliefs prohibit him from acquiescing to the redefinition of “marriage” which is antithetical to the one-man-one-woman definition that most Americans and Westerners have accepted for centuries, that doesn’t strike me as bigotry, but rather as sticking to the conventional meaning — which is required by his religion.
He didn’t say he wouldn’t sell them a cake from the cooler, even knowing it would be used in their ceremony.
Which prompts me to wonder whether he’d have agreed to make a special cake specifically for the celebration of the ceremony celebrating their Civil Union.
Perhaps I should also say that I’m unimpressed by the argument that, because there are other bakeries readily available to them where they could buy a cake made and decorated specifically for their “marriage” ceremony, the couple has no brief against Mr. Phillips.
Mr. Phillips has the fundamental right to do business with whom he pleases, when and as he pleases, provided he and the other party agree to the terms. This goes to both “freedom of contract” and “freedom of association,” provided neither is exercised in pursuit of transgressing someone else’s right of self-determination; and both of those freedoms derive immediately from his own fundamental right of self-determination.
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(Were his the only bakery within a reasonable distance, this would surely provide an opportunity for an enterprising person to consider opening his own bakery, pointedly catering to same-sex couples as well as the more conventional public. But that’s really beside the point.)
. . .
ETA: The Edit Function has reappeared.
Fraser Orr, it seems to me that referring to the cake case as one of protected-class discrimination oversimplifies things a bit.
There are two other conflicting themes going on that need to be addressed if and when the USSC returns to the matter.
1. There remains, in the minds of many, a question of immutability. Is homosexuality an immutable setting, or is it a choice? (As my bit of personal virtue-signaling here, I’ll say that I fall on the “immutable” side.) If you have some religious objection to people choosing to perform some objectionable-to-you act, then refusing to sanction the performance of that act differs in quality from refusing, say, to serve breakfast to someone who has been born black, or female. To such people, there is a great difference between being born with a characteristic and choosing to perform an act.
2. This isn’t like the case where someone establishes a diner and then refuses to serve their normal food to a customer because of who that customer is. In this case, the customer is asking the proprietor to make a special food that celebrates an act that is objectionable to the proprietor. The proprietor has signaled a willingness to serve the customer a normal breakfast – but the customer is offended because the proprietor won’t use his expertise to craft special food that intrinsically says something that offends the proprietor. The proprietor has no issue with who the customer IS – he simply refuses to use his talents to say what the customer wishes him to SAY.
It is this second theme that the USSC studiously avoided so far. I can understand this, as the case as presented to them is decidedly not the “clean case” that presents one – and only one – issue for determination.
If the Colorado Commission can manage to craft a set of findings that does distill the issue down without the overlay of their own bigoted ramblings, then the USSC will be able to cleanly address this “free speech” element of the case that they avoided so far. I still believe that this argument has clear merit. There is a huge difference between “I won’t serve you because you’re gay” and “I won’t be the artist that draws your “yay for gay marriage!” banner.
@bobby b, I was hoping you would weigh in since you, being a lawyer, know what you are talking about, and me, not being a lawyer, am largely clueless. However, cluelessness never prevented me from weighing in before. So let me offer a counterpoint to your argument. It could well be said that the commission did not insist that the baker engage in speech he found offensive, rather they said that as a condition of running a retail store he must do so, and if he chooses not to do so he may no longer run a retail store. You have free speech to call me a moron, however, if you do so in my living room I may well ask you to leave. Freedom of speech does not mean freedom from the consequences of that speech.
Of course this is built on the assumption that the government has the right to impose conditions arbitrarily on retailers via their licensing regulations, it assumes that the Masterpiece is in the government’s living room, to overstretch the analogy. And fundamentally that is the problem. If you allow that the government has the right to arbitrarily license business, as it mostly does in most places, then you allow that they can make rules like “make the gay cake or get out”, or “make the ‘yay for gay’ banner or get out.”
At the heart of this matter is not really constitutional rights to religious expression or free speech, but the arbitrary power of the state government to regulate and license.
I am reminded of something I think I have mentioned here before. In China if you want to start a web site then you need a license from the government. To us in the UK and the USA such an idea is utterly horrifying. However, it really is no different than requiring a license to start a non online business, and most states and municipalities demand exactly that. It is just an example of how familiar tyranny doesn’t see so bad as unfamiliar tyranny.
I can feel readers swelling in indignation all the way across an ocean.
It does, when you deal with certain kinds of speech. Speech has categories, and the categories get more or less constitutional protection than the others. Kiddie porn gets less protection than regular porn. Libel and slander get little protection, as do threats and “fighting words”.
Commercial speech gets some limited protection. If a government can show a rational relationship between its proper duties and the regulation, then the government may regulate commercial speech. It may ban speech (you can’t claim medicinal properties for many untested substances) or it may compel speech (to the chagrin of cigarette manufacturers, who really hate having to stamp “this will kill you, slowly” on their packaging.)
Political speech – of which “yay for gay marriage!” is one example – gets the most protection. A government can almost never regulate political speech without meeting some very strict tests, including content neutrality (meaning, the regulation must not depend upon what the person is saying – it can’t end up favoring one viewpoint over another.) Without typing reams here, let me just assert that compelling a cake-artiste to say through his art “yay for gay!” fails those tests. (This would be a contested point, obviously.) If any speech should be granted constitutional protection, it is this speech.
So, since the US Constitution trumps everything including State Commissions and state law, the “we won’t license you if we don’t want to” approach fails (if the USSC follows existing con law, which you can’t always assume.)
Good post Niall.
Fraser – bobby b is correct, a “law” that violates the United States Constitution is void, it is NOT law.
Stuff that violates the First Amendment (freedom of speech and – freedom of religion) is not law. Freedom of religion NOT “freedom of worship” as the left try and “reinterpret” the Constitution. The whole point of coming to America for many immigrant groups even before the United States was to live their religion in their DAILY LIFE (not just when they went to church). That is what the First Amendment is about.
And the Constitution also recognises Freedom of Contract (traditionally the “obligations of contract” meant VOLUNTARY contracts – no one could be forced to agree to something against their will, if they were the “contract” was VOID in law) – the question is how far does one take Article One, Section Ten. In the late 19th century it was normal for the Supreme Court (in a tradition that went back all the way to Chief Justice Sir Edward Coke in the early 1600s – for example Dr Bonham’s Case of 1610) to strike down Federal and State statutes that violated the obligations of (voluntary) contracts, but in the early 1900s Harvard Law School turned against that – and a struggle set in that ended with the 2nd World War (various World War II judgements held that the government could do anything – even tell a farmer what he could grow and what he could sell on is own farm).
The problem that a lot of moderate free market people have with going back to Freedom of Contract (to declaring that FORCING people to bake cakes and so on is “servitude” – which would, for example, violate the 13th Amendment) is that a such a stance would destroy the 1964 Civil Rights Act which is held to be sacred.
“Surely you are not saying that a shop owner should be allowed to refuse service to someone on the basis of the colour of their skin?”
At this point one is supposed to cry out for forgiveness for the sins of Jim Crow – but as there NEVER WERE Jim Crow laws in the United Kingdom, I am not prepared to cry out for forgiveness.
YES – if someone is a horrible bigot and wishes not to do business with someone because they are white (or green – or purple with orange spots) they SHOULD be allowed to throw away money. If one uses the power of the state to FORCE people to trade – then the trade is not voluntary.
However, my position is too “extreme” for many people so they would prefer to say the following….
“The religious freedom of the baker is protected by the First Amendment – the Colorado statute violates this religious freedom and is, therefore, void”.
And that is fair enough, as far as it goes.
Thanks for the education @bobby b. Let me ask a follow up question though. It seems that there are restrictions on the free exercise of religion that have been allowed as constitutional. For example, the use of peyote buds in certain religious ceremonies are illegal if these buds are use to induce hallucinations. In nearly every state snake handling is illegal despite its deep religious significance to the worshipers. And, to take a more extreme example, were I a adherent of Aztec religions and another adherent, wishing to sacrifice himself so that the sun would come up tomorrow, willingly walked the top of the pyramid with me, plainly my religious freedom would not allow me to legally cut out his beating heart.
Along the same lines, if I were a religious bigot, would it be consitutionally acceptable for me to run a “white people only” church, or a “black people only” church?
So if these restrictions are ok, why not others? What criteria are used to determine this? Or should I go to law school rather than the Internet for my answer.
I have heard it suggested that maybe this whole silly cake thing is a deliberate sham to divert attention away from whatever other scams the local/federal guvmint are quietly slipping behind our backs with. All based on artificial and competing principles of what is truth.
And I have heard the question – paraphrasing a question that Hillary Clinton once asked – “Whoever said that principles matter anyway?”, but in the context of gun manufacturers presumably having no duty of care and neither knowing nor wanting to know who might be ultimately buying/using their guns purchased from retailers and arms dealers – and “nor should they – right?”. It seems to be only the guvmint that imposes the arms control regulations, to stop the guns falling into the “wrong” hands or stop buyers/users from pointing the guns in the “wrong” direction, but where the definition of “wrong” tends to be a shifting grey area.
Some people (not me, you understand) might say that cake makers should similarly stick to their cake-making and stop mucking customers about and trying to direct them to only use the cakes in some peculiar principled, or ritualistic, or prescribed/official manner, but I couldn’t possibly comment.
I was mindful of this the other day when I was sticking 8 candles on my son’s delicious “death-by-chocolate” birthday cake and I wondered whether anyone could be or had been harmed/killed by being hit over the head with a properly-cooked chocolate birthday cake, or actually been killed by eating some of it. A profoundly risk-conscious thought, maybe, but one to which we may never know the answer.
“Religious freedom” has been transformed into a largely toothless right. There’s an old saying that “your freedom stops at the end of my nose”. This concept has informed the USSC’s rulings on religious freedoms for decades.
The First Amendment says, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Court has made the word “exercise” into as small a concept as possible.
In short, the government may not favor one religion over another, and it may not stop you from thinking, in your own mind, any deity-related thought you may wish to think, but anything you might wish to do related to religion that might affect other people is subject to regulation. (The tax-exempt status of churches is an exception to this, primarily because of its huge symbolic import.) Thus, you can’t use peyote in your religious rites because it would weaken the government’s protection of society from drugs, you can’t sacrifice goats in your backyard because it would weaken government oversight of sanitation laws, etc.)
So, quoting a religious holding such as “homosexuality is bad” in order to justify violating civil rights laws and constitutional protections just isn’t going to work in this case. The government may not order the baker to violate his inner religious beliefs and think approving pro-gay thoughts while decorating the “gay marriage” cake, but the baker’s claim to “religious freedom” isn’t going to keep the government from ordering him to bake that cake. Not baking that cake because it’s for a gay marriage falls too close to the buyer’s Constitutionally-protected nose.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
In other words, Congress shall not enact a law that sets up a State religion, such as, for instance, the Church of England.
At least, that’s the exegesis I’ve seen on the first clause of the sentence.
But Mr. Phillips’s refusal to design a cake that sends a message which is against his religious beliefs “neither picks the [offended gents’] pockets nor breaks their bones.” His freedom to reject their custom therefore stops long before he gets anywhere near the beginning of their noses.
Hmmm…so by the same clause, Congress may not enact a prohibition of state religion. In other words, Gov has nothing to say about religion (except where necessary to protect fundamental freedoms).
You’re trying to read this clause as if it were simply a discrete group of words to be rationally deconstructed and explained. But in our legal system, these words that appear in the Constitution must be read in conjunction with all of the words found in all USSC decisions that deal with, and explain and interpret, those Constitutional words. Our true Constitution is defined by the words contained within the original documents plus all USSC opinions since the beginning of the USSC.
The Constitution’s first amendment contains the words “Congress shall make no law . . . abridging the freedom of speech . . . ” Pretty straightforward, right? But because the USSC has issued many many rulings amending those words, they now mean that we can abridge our freedom to libel, to lie in advertisements, to falsely yell “fire” in a crowded theater, to pay for political speech . . .
I agree with you that those few words in the Constitution do support your argument. But the Supreme Court has ruled such that those words now mean something else. This is why ConLaw is so much fun!
bobby,
Hmph. That may be your true Constitution, but it ain’t mine. 😈
I know that’s how the American common law is commonly said to work, but as a technical matter, the Const. “plus all USSC opinions since the beginning of the USSC” leads flatly and immediately to a contradiction, because once in awhile the Supremes take it into their heads to rule in a way that flatly contradicts earlier decisions. E.g., Plessy is no longer “good law.” So you have to admit that per your phrasing, Plessy both is and isn’t the law.
(I know perfectly well that you didn’t mean it that way. I’m just teasing you as a matter of principle. I am a very principled girl. 😀 )
I honestly don’t know whom to clerk for when I finish my legal studies … I plan to sit for the bar exam any century now. –Or do you “clerk” before you pass the Bar? Never mind. I think I s/take 2 aspirin and lie down.
Happy Sunday.