SCOTUS slip opinion here for those interested:
TL:DR - baking a wedding cake is a free speech issue. Some of the Colorado Commission hurt the fee-fees of the petitioner so were obviously biased and the decision has to be overturned.
But that doesn’t mean that refusing to bake a gay wedding cake is necessarily ok.
It depends on the circumstances - which we’re not going to narrow down or express any view on.
And wow, Gorsuch’s opinion is a piece of work.
I have a song for all the racists and bigots out there - with all the irony.
Watch out for the stampede of other bigots declaring their hatred to be art.
Gorsuch is, apparently, a fucking moron.
Taking his argument, you could prove that you didn’t refuse to sell a drink to a black person by saying that you also refused to sell a drink to a white person who was going to give the drink to a black person. That shows a higher degree of bigotry, not a lower one.
I read a lot about this case when it was at a lower court. Gorsuch is just doing motivated reasoning here and ignoring facts. The arguing as it is made makes sense, but only if certain conditions are met. For example, a baker could, under the argument Gorsuch presents, refuse to make a cake for any of these reasons:
These things have something in common: it’s the cake maker refusing to decorate a cake because of how you want it decorated, not because of who you are or what you will do with the cake. If the cake maker is using the first amendment, they are protecting their artistic expression, and they are only protected from expressing something they are deeply against.
The fact being ignored, the baker said “no” as soon as they found out the cake was for a gay wedding. If the baker said, “look, I’m firmly against same sex-marriages, and I won’t decorate a cake with any message that supports same-sex marriage” and the couple said, “Well, for some reason we are not insulted and still want to buy a cake from you, could we simply buy a wedding cake decorated with flowers?” The there is absolutely no freedom of expression argument why the baker can’t make a cake that is identical to one that would typically be used for a different-sex marriage. It’s only at the point that the couple says, “Could you put, ‘butt sex rules!’ on it” that the baker could say, “I’m not writing that.”
If through a discussion of how to decorate the cake the baker and the customer came to an impasse where the customer insisted the cake must have “Congratulations on getting gay-married” on it and the baker refused, then Gorsuch’s opinion would make some sense. No such effort was made.
I don’t think one could expect quite that level of discussion to be necessary, assuming one accepts the free speech point at all - and I do have some sneaking admiration for the argument.
The argument is that designing and baking a wedding cake is a particularly artistic process in which Mr Phillips invests a lot of himself (hopefully not literally) and therefore purely and simply the fact of being for a gay wedding means that he is unable to do that while complying with his religious views. Even if there is nothing on the cake that says anything about gay weddings or homosexuality in general, the act of making him design a cake for that purpose would be forcing him to express himself artistically in a way he does not consider he can.
That’s why the various majority opinions are very careful to state their decision is based on the finding that they wanted him to design a wedding cake for them not just buy a pre-made one.
There is mention of him refusing to sell cupcakes to a lesbian couple - it’s not clear to me whether those were pre-baked goods or were to be designed for the occasion. Either way theirs wasn’t the case under consideration here.
It’s one of those cases where the actual decision - overturn the conviction because of flaws in the reasoning of the lower body - is probably fine but all the obiter dicta really provide a shitshow of support for any idiot like Roy Moore who wants to impose their bigotry on the world.
I do quite like parts of Thomas’s opinion where he essentially says “Look, this court has happily allowed people to say ‘God hates Fags’, kick gays out of the Scouts, allowed the KKK to burn crosses, etc. etc. - does anyone really think we’re going to draw the line at declining to bake someone a cake?”.
Refreshingly honest.
The part that confuses me as a non-lawyer is that they didn’t decide the case on it’s original merits, but overturned the decision of the lower court based on their supposed biases. Doesn’t that simply mean the case can now be brought again to another court since there’s no precedent set by this one?
Yup. That is exactly what it means. FINALLY SOMEONE GETS IT!
Since they did not discuss the merits of the case and dismissed it on technical grounds it has no value as precedent. It means if the baker tries again, he will be in court and this decision won’t help one bit.
I was surprised they just overturned the decision. I’d expect a UK court to remit the case back to the lower tribunal for a do-over in front of a different panel for something like this.
I don’t know if that’s possible for cases like this.
I’d guess that even if it were possible to bring the case again, given the Supreme Court opinions, there’s no way the Colorado Civil Rights Commission would touch this case again unless it had to.
Well. He can certainly be brought to book if he does it again and a fresh tribunal would have to properly evaluate the case without violating their ‘obligation for religious neutrality’ and properly balancing his first amendment rights against the Colorado legislation.
If they can somehow manage to do that in a way that says he has to design cakes for gay weddings and satisfies the Supreme Court, it’s all good! But that’s a tall order.
Kennedy’s opinion punted on any issue concerning discrimination and was so narrow as to be totally useless for those who want to use it to support anti-gay segregation in open commerce.
Gorsuch’s commentary was garbage which ignored the facts. The guy is useless.
I’m asserting that argument is nonsense. The exact same people could have come in and ordered the exact same cake and if they had done so without revealing they were gay, he would have made the cake for them. In order to determine whether making the cake violates his freedom of expression, he needs to know whether the cake is for gay people. That means he is refusing to make it because people are gay.
I think to make a case that it was not discriminatory he needs to have a reason other than the mere gayness of the people involved.
I think the arguments made would be laughed out of a supreme court that was full of judges rather than political hacks. In the US I’m pretty sure the first amendment analysis heavily involves figuring out which person is whiter and straighter and saying they are in the right.
Is it so unlikely a CO gay couple can be found to walk into his shop tomorrow, ask for a cake, and start the whole thing over? Isn’t that what the civil rights movement did every time they lost? I can’t imagine they would lack for funding the suit at this point!
I don’t think the Supreme Court can’t knock it down to a state level court/commission for retrial. If the case was entirely in the Federal Court system that could have happened. It is a state/federal system issue mostly.
If CO simply makes such issues a state court issue rather than use a Civil Rights Commission as a deciding body, it would neuter this case entirely. State courts are not going to be friendly to the baker’s arguments in any way.
That’s not the difficult part.
Just how is a tribunal going to be able to rule that Colorado law does require a person to make an artistic work which violates their religious belief in the face of the SCOTUS opinions?
How can one possibly approach such a decision in a “religiously neutral” way? Sufficient to satisfy the Supreme Court?
It’s a pretty tall order.
I don’t disagree with you. I think you are glossing over some of the aspects of the argument though.
The issue is not whether Mr Phillips was discriminating against gay people. That is accepted - he was.
The difficult issue for the courts (and it is genuinely a difficult issue regardless of whether one thinks the outcome is right or wrong) is how does one balance the law that says businesses cannot discriminate against gay people with the constitutionally guaranteed rights of freedom of expression and free exercise of religion.
This of course brings us straight round to the Freeze Peach (USA) thread and all the various arguments there.
Some interesting numbers:
And an observation:
Thank you for linking that - you always find the most interesting stuff.
I just know I’m going to regret this but what possible religious reasons for refusing to serve interracial couples could there be?
I just googled it and oh, dear…
There’s some bad news for wedding photographers hidden in the Verge article referred to.
In the version where the photographer was working for himself as opposed to a chain, 61 percent said it was okay to deny service. But, according to Lowell, nobody said that the photographer, like the baker, was an artist who should be protected under freedom of speech.
So people are prepared to accept that the person who bakes your wedding cake is an artist but think that the person who takes photos of your perfect day is just a soulless automaton pressing buttons - got it.
That’s gotta hurt any wedding photographers out there. Apparently people genuinely do think that Uncle Bob who’s got a camera can take just as good photos as a professional.
Well the most likely “religious reason” to refuse service to a gay couple is that your local preacher is homosexual and closeted. So probably the religious reason to refuse service to interracial couples would be that your local preacher has a fetish for interracial porn?
Jokes* aside, there were religious leaders who opposed the end of slavery, opposed the end of Jim Crow, preached about the evils of legalizing interracial marriage. People who are religious tend to think all beliefs about morality are religious convictions, they don’t need scripture to quote. It feels like a bit of a throwback to those of us who live in the city, but I’m sure there are plenty of anti-interracial-marriage preachers in the US (and Canada and the UK) today.
* Is it a joke, though?
There are, I did a bit of googling - I don’t recommend it 
Turns out that as you say, it’s mostly racist reasons expressed by religious persons rather than actual ‘religious’ reasons.
The Mormons did have a damn good go at it by having their religious text claim that black people are non-‘white’ as a sign of God’s disapproval but even the LDS have now stated that there is no religious reason against inter-racial marriage, they ‘just’ don’t recommend it.
I think most people who are religious don’t sort their important moral beliefs into religious and secular. Ouside a university philosophy or theology department, odds someone is thinking about that kind of distinction have to be south of 10%. For most people “That makes me really uncomfortable”, “It’s against God” and “It ought to be illegal” are three ways of saying the same thing.
I’m sure you’re right.
For legal purposes though that’s not really good enough. Also given that a lot of the people saying that sort of stuff are themselves theologians (at least in the sense of being priests or other preachers) they hold themselves out as being the very people who do make those kind of distinctions.
For Joe Schmoe in the street, sure “That’s icky” equals “God hates it”.
