Masterpiece Cakeshop Is a Setback for Liberty

[HoustonSam]

Thanks for your response, @HoustonSam .   I do accept it as constructive criticism.  Keep in mind the dynamic of this board.  I am in the distinct minority here, and find it impractical to reply to all.  So I often provide responses that try to address points made by various posters.   

I don't believe your formulation works with respect to a restaurant or purveyor of food products that, by their nature, require fresh preparation.   Each posts a menu representing what the storeowner will make or prepare for the customer.   He's under no obligation to make something not on the menu.   (As an example, a kosher butcher is under no obligation to serve a customer's demand for pork).   But the crux of the non-discrimination rule is that that he will serve (in this context, make or prepare)  any item he's chosen to place on his menu to any customer who walks in the door to request it.   And why shouldn't a customer have the right to expect a restaurant or bakery to make what his menu says,  without regard to the color of the customer's skin, or gender, or religion, or (as here) sexual orientation?   Isn't the power dynamic with the storeowner?   

I am comfortable with the idea that "artistry" is inherently personal,  and that an artist can refuse a commission (indeed, that's hardly controversial, but here the context is the owner of a public accommodation, for which special rules apply,  who also portrays himself to be an artist).    The restaurant owner in Piggie Park thought he made the best BBQ in the South (indeed, the shop, still family owned, continues to this day).   But he still couldn't deny the sandwiches he prepared to black customers on the basis of his religious belief that the races should not mix.    A LAW OF GENERAL APPLICATION CANNOT BE AVOIDED BY CITING RELIGION.   That's not a controversial statement;  the Court has held that view for years and continues to do so.

What is unique, and which provides the basis for compromise,  is the idea that freedom of speech and expression (NOT the free exercise of religion)  may permit a baker serving the public to refrain from providing certain services to gay people.   But the idea only holds weight if the exercise of speech/expression, if forced by the state, is oppressive.   Asking the baker to provide the same non-custom menu items he advertises to the public to be provided to all is not oppressive.   But forcing him to use his artistic talents in an individualized manner to support a customer who he believes is acting sinfully may well be oppressive, and unconstitutional.

Thomas's opinion spells out a lot of this, but as of now only one other Justice has joined him.   I think that's because Phillips' commitment to obey the law with respect to his non-customized wedding cakes was unclear from the record.  Yes,  he "makes" such non-customized wedding cakes.  But he has advertised such cakes to the public.   Why shouldn't he be obliged to keep his word?   

Again - and I understand you haven't read the case - the immediate task is to distinguish Phillips from Piggie Park.   I have suggested a way to do so (sell non-customized wedding cakes to all;  exercise conscience with respect to custom orders where expressive conduct is involved).   Is that a compromise?  Sure - but it is respectful of the legitimate rights and expectations of both the baker and his customer.

I hope that helps, Houstonsam.   I appreciate your constructive criticism, and the comity you display.   

Thank you @Jazzhead for a gracious response.  I think a fair summary of your position is that a business owner doesn't have to offer any particular item or service, but if he does offer it, he must offer it to everyone.  That's not unreasonable, but of course the issue here is where the item or service inherently makes a value statement.

I think I can understand more clearly why you have cited the Piggie Park case - to make clear that the baker cannot rely on his religious beliefs to do something which would otherwise be illegal.  Of course this should not be a controversial idea, otherwise we could, in theory, be forced to tolerate human sacrifice.  Stated differently, Freedom of Religion in fact is not absolute.

And I recognize that you hold out the possibility that the baker's freedom of expression might allow him to exercise some degree of discrimination in the creative part of his work.

Your counter-example of the restaurant is well-chosen and forces me to think more carefully.  Indeed, a restaurant is in the business of making each item fresh for each customer; a "strict constructionist" interpretation of my suggested compromise might lead some to argue that a restaurant could therefore broadly deny service, at least to the extent the restaurant could argue that its product was fundamentally an expression.  It is not my intent here to find a way to enable Denny's to deny service to any class of people.  A Michelin 5 star chef certainly believes that his work is an expression, but neither it is my intent to give him legal protection in denying service to a class of people.

The distinction I drew was making an item fresh *for a specific purpose*, and I can perhaps improve that expression by saying "for a specific purpose other than the intrinsic utility of the item."  The items already prepared in the baker's shop were prepared simply for their intrinsic utility, and certainly he would refresh those ready stocks for the same reason; a wedding cake carries additional meaning, which the baker necessarily affirms by creating the cake.  In the case of the restaurant I think a meaningful distinction would be between the normal walk-in business and catering a banquet.  It seems to me that the former would be considered within intrinsic utility, the latter would not.  So I would apply my compromise by arguing that the restaurant could not deny routine business to any class of people, but also could not be compelled to host a banquet the meaning of which was repugnant to the restaurant owner.

If we stick with your compromise that non-custom items must be offered in all cases involving expressive conduct, what would prevent that expressive 5 star Michelin restaurant from arguing that hillbillies like HoustonSam can only order the non-custom dish of liver burned black with brussel sprouts on the side, while all others can select their own main course and degree of seasoning and choose from a dazzling array of side dishes?  Honestly it seems to me that could lead to indignities much worse than what we're really talking about here.

[Maj. Bill Martin]

Because only two Justices appeared to warm to the free speech argument,  there can be only one of two conclusions - that the next Christian baker will be shot down, or that the facts in Masterpiece Cakeshop weren't clear enough to permit the free speech argument to be properly addressed.   

Your analysis was dead-on, but I wanted to suggest a third possible explanation - Roberts deliberately pushing for a narrow decision for internal SCOTUS reasons.

I think Kennedy may have been unwilling to reach the core issue unless it was absolutely necessary, so Roberts steered 7 justices to endorsing the more narrow ruling with which they ended up.  When Kennedy goes, they'll address the issue more squarely.

[Jazzhead]

Thank you @Jazzhead for a gracious response.  I think a fair summary of your position is that a business owner doesn't have to offer any particular item or service, but if he does offer it, he must offer it to everyone.  That's not unreasonable, but of course the issue here is where the item or service inherently makes a value statement.

I think I can understand more clearly why you have cited the Piggie Park case - to make clear that the baker cannot rely on his religious beliefs to do something which would otherwise be illegal.  Of course this should not be a controversial idea, otherwise we could, in theory, be forced to tolerate human sacrifice.  Stated differently, Freedom of Religion in fact is not absolute.

And I recognize that you hold out the possibility that the baker's freedom of expression might allow him to exercise some degree of discrimination in the creative part of his work.

Your counter-example of the restaurant is well-chosen and forces me to think more carefully.  Indeed, a restaurant is in the business of making each item fresh for each customer; a "strict constructionist" interpretation of my suggested compromise might lead some to argue that a restaurant could therefore broadly deny service, at least to the extent the restaurant could argue that its product was fundamentally an expression.  It is not my intent here to find a way to enable Denny's to deny service to any class of people.  A Michelin 5 star chef certainly believes that his work is an expression, but neither it is my intent to give him legal protection in denying service to a class of people.

The distinction I drew was making an item fresh *for a specific purpose*, and I can perhaps improve that expression by saying "for a specific purpose other than the intrinsic utility of the item."  The items already prepared in the baker's shop were prepared simply for their intrinsic utility, and certainly he would refresh those ready stocks for the same reason; a wedding cake carries additional meaning, which the baker necessarily affirms by creating the cake.  In the case of the restaurant I think a meaningful distinction would be between the normal walk-in business and catering a banquet.  It seems to me that the former would be considered within intrinsic utility, the latter would not.  So I would apply my compromise by arguing that the restaurant could not deny routine business to any class of people, but also could not be compelled to host a banquet the meaning of which was repugnant to the restaurant owner.

If we stick with your compromise that non-custom items must be offered in all cases involving expressive conduct, what would prevent that expressive 5 star Michelin restaurant from arguing that hillbillies like HoustonSam can only order the non-custom dish of liver burned black with brussel sprouts on the side, while all others can select their own main course and degree of seasoning and choose from a dazzling array of side dishes?  Honestly it seems to me that could lead to indignities much worse than what we're really talking about here.

Thanks for your response, @HoustonSam

I don't personally have any quarrel with the compromise you propose - require a restaurant to serve all with respect to its regular menu items but allow it to pick and choose its customers with respect to its catering business.  I'm actually not sure whether a catering business is a "public accommodation" subject to non-discrimination rules, although I suspect it is (IIRC,  there's a case involving a Christian caterer that is winding its way through the courts).   

But I'm not convinced a court would buy it.  The $64,000 question, of course, is whether the conduct of a catering business represents "expressive conduct" that falls within the right of free speech.   Justice Thomas articulated the case quite well, I thought, with respect to Mr. Phillip's creation of custom cakes,  but I'm not so sure what aspects of catering are "expressive".   The menu is usually selected by the customer; and unless the customer is demanding something above and beyond the caterer's menu,  I'm not sure I quite see the "artistry" component.

But I think there may be another way to get to the result you want - based on the majority opinion in Masterpiece Cakeshop.   If I were to be hired (God forbid!) by Jack Phillips the next time he gets sued,  here's the argument I would make:

1.  Masterpiece stands for the proposition that a religious objection to performing a service is just as valid as a secular objection.  The religious objection must be taken seriously, and evaluated through the prism of the religious objector, not the government and its own priorities. 

2.  Masterpiece acknowledged the correctness of the decisions of the Colorado Commission in upholding the right of a baker (3 different bakers, actually) to refuse to bake a cake containing an anti-gay message deemed offensive by the baker.

3.  So a Christian baker could refuse to bake a cake containing a message deemed offensive to his religion.  That's clear.

4.  Now here's the leap:  If a baker can refuse to bake a cake with a message deemed offensive,  why could he not be equally justified in refusing to bake a cake for a use that he deems offensive?   Let's look at the secular situation first.   If a customer comes in and orders a cake, and tells the baker he intends to take the cake, place it in the town square,  drop trou and sit on it balls deep,  would not the baker be justified to tell him to go pound sand?  Cannot a baker refuse to bake a cake that he's been told will be "desecrated" in a secular sense?   And if the answer is yes,  then why cannot a Christian baker refuse to bake a cake that he knows will be "desecrated" in a religious sense by being used in a same-sex wedding ceremony?   

5.  Again - if there can be valid secular reasons to refuse to make a product for a particular use, then Masterpiece would appear to stand for the proposition that a court must also recognize the validity of a sincere religious reason to refuse to make a product for a particular use.  Such a holding would get to the root of the problem that many have alleged - why did the gay couple insist on buying a cake from this particular baker?  Why could they not have gone somewhere else?    If a Christian baker can validly deny his products for uses he deems offensive on religious grounds,  then the customer will just have to go somewhere else.

Thoughts?     

[INVAR]

This entire issue has NOTHING to do with equal protection or public accommodation.

It has everything to do with inflicting penalty and punishment for refusing to accept groupthink and the preferred caste's legalized behaviors.

Normal and healthy people go to where their business is welcomed, and patronize those businesses that serve their needs and treat them with quality service.

Normal and healthy people who get bad service or feel that their business is not wanted, find another store and go elsewhere to do business.  There is always another business who wants their money.

Unhealthy, sick and perverted people who have an agenda to push and people they want to punish to make examples of, are those who have lawyers claim they were harmed and humiliated by being told that their business is not welcome.

Forcing everyone into accepting a deviant behavior or a protected class and status of skin color, religion and behavior is how this meddlesome tyranny is being imposed - and lawyers argue endless circles of explanation and hypothetical motives to arrive at what must be made into binding law to force a people into thinking the way they need to think, or suffer for it.

Normal and healthy people would simply walk out of a store and find another that wants their business if they are told that their business is not welcome.  Unhealthy, sick and tyrannical people seek to use the courts and government to force others to serve them and punish their thinking and beliefs as a signal to society that whom and what they say is supreme, must be accepted in thought and action by all - unless it conflicts with another government-protected caste.

[Jazzhead]

Unhealthy, sick and perverted people who have an agenda to push and people they want to punish to make examples of, are those who have lawyers claim they were harmed and humiliated by being told that their business is not welcome.

 

There's no one on this board who "pushes an agenda" more that you,  and who claims that Christians suffer from persecution even though they comprise a majority of folks in this nation.   Does that make you "unhealthy, sick and perverted"?   At a minimum,  you seem as much wrapped up in identity politics as any liberal.     

[INVAR]

There's no one on this board who "pushes an agenda" more that you,

You're projecting again as you are wont to do.

If I do have an agenda - it's liberty and putting people like you and your insipid ideas to impose a meddlesome tyranny in your place.

and who claims that Christians suffer from persecution even though they comprise a majority of folks in this nation.

That would be another one of your lies.  Christians in this country are not suffering real persecution as I've seen in the third world with my own eyes.   

But what they are having to endure here, is the institutionalized punitive efforts of secular humanists and the Homosexual Mafia using government and the courts as a weapon to punish their beliefs and exercise.

Does that make you "unhealthy, sick and perverted"?   At a minimum,  you seem as much wrapped up in identity politics as any liberal.   

Horseshit.  I'm not the one advocating the courts and government be used to force homosexuals to cater to my religion and lifestyle because I feel discriminated by their disdain of "Christian Breeder Bigots".  We just want to be left alone.  Get out of my face and my life.

That is healthy.  And an American value since the Establishment.

But you..... you are all about imposing 'community' and forcing everyone to comply with your meddlesome tyranny by the force of government.

I consider that sick, unhealthy and perverted.

[Maj. Bill Martin]

@HoustonSam   Then how do you distinguish the Court's decision in Piggie Park?    There,  refusing to serve black customers the items on the Piggie Park's menu was unlawful, notwithstanding the restaurant owner's claim that race mixing was against his religion.   I'm sure the restaurant owner was proud of his pork sandwiches, but they are non-custom menu items and preparing one for his customer did not amount to "free expression". 

Similarly,  the crux of the Masterpiece Cakeshop case should have been the free expression inherent in working with a customer on creating a custom cake.   Such customization can,  I think, justifiably be claimed to be expressive conduct that can be distinguished from the bigot who wouldn't serve his advertised menu items to black customers.   So long as Phillips will sell his non-custom wedding cake designs to any customer, they I would argue he is obeying the law even if he refuses to create custom orders for gay weddings.   

That may strike you as a compromise.  But is it one that recognizes the legitimate rights of both the baker and his customer.  If cats and dogs are every truly going to live together,  reasonable compromises that respect the rights of both parties, even if imperfectly, seem to be the place to start.     

Regardless of whether or not any of us judge that compromise to be reasonable, legitimate, or desireable, you are correct that it is the law.    If you want to give merchants the right to refuse to sell off the shelf items to someone because something about the customer offends their religious beliefs, that's someplace that the Court just won't go.  But when it becomes a custom item, that may (and should be) different.

Same with florists.  They likely aren't going to be given the right to refuse to sell flowers to gay people in states where being gay is a protected class.  However, if the customer wants the florist to participate personally in the planning/selection/displaying aspect, I think the florist should be allowed to refuse.

[HoustonSam]

Thanks for your response, @HoustonSam

...  but I'm not so sure what aspects of catering are "expressive".   The menu is usually selected by the customer; and unless the customer is demanding something above and beyond the caterer's menu,  I'm not sure I quite see the "artistry" component.

You raise a fair point, it's not clear that catering is necessarily expressive.  But to be clear, I'm not trying to find a compromise within current law, I'm trying to find a compromise that seems fair.  That's not to say that current law is unfair necessarily, just that I'm thinking about what ought to be, not what is.  To that end, my suggested compromise is not necessarily about creativity, it's about making something for a purpose beyond the intrinsic utility of the thing made.  The work of the maker might or might not be "expressive."  In the restaurant example, a banquet usually has some significance beyond just a meal, so catering the banquet could be argued as beyond the intrinsic utility of the meal itself.  Now in fairness people will certainly come into a restaurant and order off the menu to celebrate a special occasion; one can fairly argue that situation is not a banquet but the meal serves a purpose beyond its intrinsic utility.  That's at best an example of incompletion in my thought.

But I think there may be another way to get to the result you want - based on the majority opinion in Masterpiece Cakeshop.   If I were to be hired (God forbid!) by Jack Phillips the next time he gets sued,  here's the argument I would make:

1.  Masterpiece stands for the proposition that a religious objection to performing a service is just as valid as a secular objection.  The religious objection must be taken seriously, and evaluated through the prism of the religious objector, not the government and its own priorities. 

2.  Masterpiece acknowledged the correctness of the decisions of the Colorado Commission in upholding the right of a baker (3 different bakers, actually) to refuse to bake a cake containing an anti-gay message deemed offensive by the baker.

3.  So a Christian baker could refuse to bake a cake containing a message deemed offensive to his religion.  That's clear.

My legal ignorance is thrown into sharp relief here.  Doesn't the Piggy Park decision mean the opposite?  I suppose the distinction is about a message, not conduct.  Perhaps the baker can't be forced to make a statement which offends his faith, but he is not exempt from normal prosecution if he carries out an illegal act in the name of his faith.  So the argument you propose does hinge on expression, while the compromise I've suggested does not, or at least does not as clearly.

At the risk of further muddying the water, I've never understood the rationale behind calling flag burning an expression and striking down laws against it.  It seems to me that implicitly allows for an action to be called an expression.  I've reached the conclusion that property rights should allow the owner of a flag to burn it, but I still can't get square on the equation of burning the flag with expression.  Why can't I call any conduct expression?

4.  Now here's the leap:  If a baker can refuse to bake a cake with a message deemed offensive,  why could he not be equally justified in refusing to bake a cake for a use that he deems offensive?   Let's look at the secular situation first.   If a customer comes in and orders a cake, and tells the baker he intends to take the cake, place it in the town square,  drop trou and sit on it balls deep,  would not the baker be justified to tell him to go pound sand?  Cannot a baker refuse to bake a cake that he's been told will be "desecrated" in a secular sense?   And if the answer is yes,  then why cannot a Christian baker refuse to bake a cake that he knows will be "desecrated" in a religious sense by being used in a same-sex wedding ceremony?

Yes I can see that is a bit of a leap.  Of course I'm biased, but I think it's a reasonable leap.

5.  Again - if there can be valid secular reasons to refuse to make a product for a particular use, then Masterpiece would appear to stand for the proposition that a court must also recognize the validity of a sincere religious reason to refuse to make a product for a particular use.  Such a holding would get to the root of the problem that many have alleged - why did the gay couple insist on buying a cake from this particular baker?  Why could they not have gone somewhere else?    If a Christian baker can validly deny his products for uses he deems offensive on religious grounds,  then the customer will just have to go somewhere else.

Thoughts?   

Thanks @Jazzhead for some interesting dialog here.  I appreciate you critically thinking through my proposal and constructing a legal argument for it, or for something much like it, the more so since it's not really in line with your conclusions.  I hope I can be as fair to your thought as you've been here to mine.