The wedding cake case

[Slacker]

What do you find?

Local residents, mostly.

 

[lcjjdnh]

Reversed 7-2 (in favor of baker) in what appears to be very narrow, fact-bound opinion, generating a number of concurrences and a dissent.

https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf

 

[Webster]

At very first glance, seems a relatively narrow decision. The whole issue is pretty fascinating. May have thoughts after I read through it later today.

 

[Amy]

At very first glance, seems a relatively narrow decision. The whole issue is pretty fascinating. May have thoughts after I read through it later today.

It was a narrow decision.

At very first glance, seems a relatively narrow decision. The whole issue is pretty fascinating. May have thoughts after I read through it later today.

It was.

The Court sidestepped the substantive issue, deciding the case on a procedural issue, in a 7-2 decision in favor of the Colorado baker who wouldn’t sell a wedding cake to a gay couple:

“[T]he delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be de termined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.”

It does not create a broad ability to refuse services because of religious objections to gay marriage:

“And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs say- ing “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case.””

Based on his opinion and questions at oral argument, I am not sure Kennedy would have found, on a substantive basis, that the baker's First Amendment rights were violated under the specific facts of this case, although he recognizes there are fact situations where those rights would be violated. The only way Roberts, Alito, Gorsuch and Thomas could get Kennedy's vote was on this narrow basis.

 

[Alma]

Wow, that's interesting, the 7-2 vote. Basically, the Colorado Civil Rights Commission acted like a bunch of assholes about the issue, no other court bothered to consider the tone of the CCRC's approach as being anti-religion, and SCOTUS picked up on the lack of sobriety and nailed them for it. Huh.

 

[Amy]

Wow, that's interesting, the 7-2 vote. Basically, the Colorado Civil Rights Commission acted like a bunch of assholes about the issue, no other court bothered to consider the tone of the CCRC's approach as being anti-religion, and SCOTUS picked up on the lack of sobriety and nailed them for it. Huh.

That’s not how I read the majority and concurrences together. I think Kennedy determined he could decide the case while avoiding actually making a decision by hanging his hat on an improper process. He clearly is bothered by how to draw a line because of the fact sensitive nature of each situation where there is a conflict between the 1st A and valid state laws protecting gay rights. He was also bothered that this case arose before Obergefell, at a time gay marriage was not legal in Colorado. That part of the decision read to me like “but it’s not fair”

Four of the justices would have given the baker a substantive win and four a substantive loss. It was a compromise decision since six of the justices wrote or joined concurring opinions. My feeling is that Kennedy was sympathetic to this particular petitioner so devised a relatively benign way to give him a win while giving some guidance in dicta for other cases - some in which religious beliefs will take precedence and others where they are not a defense allowing discrimination in violation of state law.

I wish the decision had squarely said it’s a case by case decision, we aren’t creating a bright line test, this is how we are applying the law to these specific facts.

And as a purely factual matter, the majority opinion did not find fault with the entire board except that some members remained silent in the face of remarks made by two members (I think it was two, I don’t feel like checking). The evidence of lack of neutrality regarding religion is not nearly as strong as you are assuming.

 

[QYFW]

So there’s still a good chance Christians can be run out of business by law?

 

[Alma]

And as a purely factual matter, the majority opinion did not find fault with the entire board except that some members remained silent in the face of remarks made by two members (I think it was two, I don’t feel like checking). The evidence of lack of neutrality regarding religion is not nearly as strong as you are assuming.

Well, shoot, silent can be read a lot of ways. It can be read as agreement. Bottom line is, I'm surprised that how the matter was discussed in a hearing figures so prominently in what was decided. (Even if not a lot was.) And I'm someone pretty comfortable with commercial bakers having to bake gay marriage cakes, or having someone on their staff who will do so.

 

[User 11148]

@Amy, it's nice hearing informed takes such as yours on this.

I would also suggest to whomever might be listening that it's a shame that a lack of reverence from other corners, similarly well-informed, makes those voices far too dangerous and upsetting to have around these parts.

 

[Buck]

You've just got to put up a 'we retain right to refuse service' sign.
Then you're good to go!

 

[Guy_Incognito]

That’s not how I read the majority and concurrences together. I think Kennedy determined he could decide the case while avoiding actually making a decision by hanging his hat on an improper process. He clearly is bothered by how to draw a line because of the fact sensitive nature of each situation where there is a conflict between the 1st A and valid state laws protecting gay rights. He was also bothered that this case arose before Obergefell, at a time gay marriage was not legal in Colorado. That part of the decision read to me like “but it’s not fair”

Four of the justices would have given the baker a substantive win and four a substantive loss. It was a compromise decision since six of the justices wrote or joined concurring opinions. My feeling is that Kennedy was sympathetic to this particular petitioner so devised a relatively benign way to give him a win while giving some guidance in dicta for other cases - some in which religious beliefs will take precedence and others where they are not a defense allowing discrimination in violation of state law.

I wish the decision had squarely said it’s a case by case decision, we aren’t creating a bright line test, this is how we are applying the law to these specific facts.

And as a purely factual matter, the majority opinion did not find fault with the entire board except that some members remained silent in the face of remarks made by two members (I think it was two, I don’t feel like checking). The evidence of lack of neutrality regarding religion is not nearly as strong as you are assuming.

I haven't read it yet, but based on your summary, it sounds like Kennedy's transformation into O'Connor is complete.

 

[lcjjdnh]

I haven't read it yet, but based on your summary, it sounds like Kennedy's transformation into O'Connor is complete.

I've always thought the Kennedy-O'Connor comparisons were a bit misplaced. Kennedy isn't a centrist. He has pretty strong views on a number of issues--it just so happens those positions aren't consistently liberal or conservative so he happens to be the swing vote. (This contrasts with O'Connor, who I think did try to take positions down the middle.)

This case posed a particular challenge for Kennedy, because it pitted his strong support for gay rights against his strong support for free speech.

 

[Guy_Incognito]

I've always thought the Kennedy-O'Connor comparisons were a bit misplaced. Kennedy isn't a centrist. He has pretty strong views on a number of issues--it just so happens those positions aren't consistently liberal or conservative so he happens to be the swing vote. (This contrasts with O'Connor, who I think did try to take positions down the middle.)

This case posed a particular challenge for Kennedy, because it pitted his strong support for gay rights against his strong support for free speech.

I meant in the wishy-washy-ness and case specific decisions.

 

[Guy_Incognito]

This case posed a particular challenge for Kennedy, because it pitted his strong support for gay rights against his strong support for free speech.

Well, yeah. Life and law is easy when it's right or wrong. Competing values are why we need a court to begin with.

 

[lcjjdnh]

Well, yeah. Life and law is easy when it's right or wrong. Competing values are why we need a court to begin with.

Don't disagree--just saying it explains why Kennedy in particular was interested in reaching a narrow, context-specific result.

 

[WriteThinking]

I've read about this case and am still not sure where I stand on it. I see the merits in both arguments.

This is where I'm at.

At this point, I don't care that much because I'm sure there was someplace else the gay couple could've gone to get their cake. This was not, or should not have been, a national case involving a circumstance -- be it race, sexual orientation, or anything else -- in which all people of that persuasion were being treated wrongly by all other people and needed government intervention because of it.

From the get-go, my feeling about this case was that it involved one business owner expressing (and imposing) his morals and beliefs on his business in the way and to the extent that he thought was right and that remained in accordance with his beliefs. Christians, and others, do this all the time as they try to discern what to do, when it comes to both little things and big things.

This, to me, was more about the tenor of the refusal. This should have been, and apparently was, taken into account, rather than considered an outright expression of legal discrimination, or worse, hate, toward gays, even though, yes, it is discriminating.

That, however, is exactly what the ability to recognize and the willingness to decide right and wrong is: discriminating. And, again, people do it all the time. It is the very crux and nature of that decision.

 

[Slacker]

No pardons!

 

[YankeeFan]

No pardons!

How about a simple commutation?

Or are we going to need to wait for a new administration?

 

[Slacker]

This one's hilarious ...

 

[qtlaw]

As much as I'd want SCOTUS to protect the minorities and those targeted, in this case common sense tells me, "you want a cake, just find one that will do what you want." I don't want to do business with those who don't like me anyways. However, when it gets to an extreme, what if no one will bake the cake because of who you are? That's troubling.