Masterpiece Cakes thoughts

The consensus, with a few dissenters, is that the oral arguments Tuesday portend victory for Jack Phillips, proprietor of Masterpiece Cakes. I’m going to assume that for purposes of this blog.

What worries me now is how he will win. There are a number of options, but I’ll just mention three.

  1. The Colorado Civil Rights Commission (or whatever they call it) was biased against Phillips and its decision can’t stand. This has the benefit of being true; the bigotry of one commissioner was manifest. But by the time a case gets to the Supreme Court, who wins this particular case is barely relevant; the case now is about principles that are going to govern cases nationwide. The court never would have taken the case if it was only about Jack Phillips and the Colorado commissioners. It would be terrible if the only result of this case was “commissioners shouldn’t utter their bigotries aloud.”
  2. The Colorado Civil Rights Commission has applied its facially “neutral law of general application” (terms of art) with “an evil eye and uneven hand” (anachronistic terms of art), so the law is unconstitutional as applied to Phillips’ bona fide religious scruples. In other words, he wins under the free exercise of religion clause. This result would be mildly surprising, but the evil eye and uneven hand appear to be there. A provocateur asked another baker for a bible-shaped cake with some of the “clobber passages” inscribed on it. The baker refused. The provocateur filed a discrimination complaint, which he lost, partly because the baker had served other Christians (proving he’s not anti-Christian), though the Commission ignored that Jack Phillips served other homosexuals. (Transcript of Oral Arguments 58-59) This tends de facto to negate “general application,” so a subtle escape route of Employment Division v. Smith opens for Jack Phillips (and presumably for others in Colorado). I’d still hope against this outcome, which would sort of be limited to Colorado, with a cautionary note to other states to enforce their law equally, across-the-board. It’s an invitation to lots more litigation and to set-ups like the Christian provocateur with his clobber passage cake.
  3. Jack Phillips reasonably believed that Craig and Mullins were seeking one of his custom-designed wedding cakes, and the Colorado Civil Rights Commission denied him discovery from Craig and Mullins to prove that. A wedding cake is primarily a festive, celebrative central ornament in wedding receptions, only secondarily food. An artist or artisan cannot constitutionally be compelled to create fruits of his artistry in celebration of something he chooses not to celebrate for any reason. In other words, he wins under the free speech clause (which protects against compelled artistic expression).  This has seemed Phillips best shot since I first learned of the case. It was in the first sentence out of Kristen Waggoner’s mouth on Phillips’ behalf (although she noted that his objection to speaking was religious). One of the little ironies is that free speech has become a powerful protector of dissident Christians who may have weak free exercise cases thanks to our brother, the late Justice Scalia, who took leave of his senses one day and penned Employment Division v. Smith (which turned out to have some escape routes, so it wasn’t as bad as initially feared). The “problem” here is Justices agonizing, some probably insincerely, about “where to draw the line.” That will be the interesting analysis if Phillips wins on free speech/freedom from compelled expression, which I think is the best analysis, but then I’d probably draw the line very, very protectively against compelled speech—maybe further than most of my readers.

Update: I regret rushing this blog, because it made me forget my favorite way Jack could win.

The court could decide that Jack did not refuse service to anyone because of their sexual orientation, but because they wanted him to adorn a same-sex wedding reception (with a custom creation, Jack believed).

Like Option 1, above, this has the virtue of being true. But Colorado equated that with discrimination on the basis of sexual orientation because same-sex marriage is really, really closely correlated to sexual orientation. Thus did it refuse categorically to recognize a vital distinction, thus extending the legislature’s law beyond what it may have intended and setting up this constitutional clash.

There’s some reason to think that may be where pivotal Justice Kennedy is headed.

MR. COLE: … the public accommodations law does not say you must treat everybody; it says you cannot discriminate on the basis of protected categories.

JUSTICE KENNEDY: Well, but this whole concept of identity is a slightly — suppose he says: Look, I have nothing against — against gay people. He says but I just don’t think
they should have a marriage because that’s contrary to my beliefs. It’s not -­

MR. COLE: Yeah.

JUSTICE KENNEDY: It’s not their identity. It’s what they’re doing.

MR. COLE: Yeah.

JUSTICE KENNEDY: I think it’s – –  your identity thing is just too facile.

(Transcript of Oral Arguments 86-87)

I like this possibility because it seems to me that:

  • It leaves intact the core protection of persons against discrimination because of their sexual orientation. (I’ve never been convinced that’s more that a vanishingly rare problem in the realm of public accommodations, but if it is a problem, this covers it.)
  • It gets to the nub of Jack Phillips’ objection and validates it. Jack’s sincere professions of willingness to serve all people, and history of serving all people, got lost in the politics of this issue, with him getting branded just another Christianist homophobe. That was false and, yes, facile. Jack deserved better.
  • It avoids all the parade of horribles and slippery slopes that attend the “what’s artsy enough and what isn’t?” questions. Nobody, artist or not, is discriminating against persons as person if they decline to help provision an event they find objectionable.

Yes, in a few corners of the country, it may be hard for same-sex couples to get vendors for their celebrations, as an amicus argued. But custom cakes, floral arrangements, wedding invitations, photographers and such are “not goods or services like lodging or transportation necessary for full participation in public life,” as Rabbi Dovid Bressman argued in a friend of the court brief.

That gets us back to the heart of this case: the couple’s sense of entitlement. I don’t think that sense commands validation men and women of goodwill.

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I would a thousand times rather have dinner with secular liberals of a certain temperament than with a group of religious conservatives who agreed with me about most things, but who have no sense of humor or irony.

(Rod Dreher)

Some succinct standing advice on recurring themes.

 

Once more, slowly, for the idiots

David French tries to set the record straight on Masterpiece Cakes, scheduled for argument in the Supreme Court Tuesday.

Forgive me for starting a piece with the oldest cliché in the practice of law. As the saying goes, “If the law is on your side, pound on the law. If the facts are on your side, pound on the facts. If neither are on your side, pound on the table.” In the run-up to the oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission on December 5, we’re seeing a lot of table-pounding from the Left. In fact, I’ve never seen a case more mischaracterized in my entire legal career.

The actual facts of the case are crystal clear. Jack Phillips, owner of Masterpiece Cakeshop, refused to custom-design a cake to help celebrate a gay wedding. As a Christian, he finds same-sex unions to be unbiblical and immoral, and he wasn’t willing to use his artistic talents to advance a message he holds to be wrong. In fact, he’d frequently declined to design cakes that advanced messages he found to be offensive. But he never, ever — not once — discriminated against any customers on the basis of their identity. He baked cakes for people of all races, creeds, colors, and sexual orientations.

Two years ago, in the Obergefell opinion, [Justice Anthony Kennedy] wrote this:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.

If Justice Kennedy holds to this view, then not only does the First Amendment win, nondiscrimination laws won’t lose. Phillips isn’t discriminating on the basis of sexual orientation. If Kennedy changes his mind, then he’ll erode vital American constitutional traditions and doctrines. The sexual revolution, not the Constitution, will be the supreme law of the land.

That old cliché explains why it will be hard to set the record straight. Neither the law nor the facts favor what Colorado has done to Jack Phillips, the proprietor. Only the inexorable demand of the sexual revolution to eradicate all wrongthought and wrongthinkers supports it.

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“Liberal education is concerned with the souls of men, and therefore has little or no use for machines … [it] consists in learning to listen to still and small voices and therefore in becoming deaf to loudspeakers.” (Leo Strauss)

There is no epistemological Switzerland. (Via Mars Hill Audio Journal Volume 134)

Some succinct standing advice on recurring themes.

A new take on Masterpiece Cakes

Professor Steven Smith has very skillfully laid out what the Masterpiece Cakes case in the Supreme Court is really all about. It has a helpful review of he evolution of anti-discrimination laws, about which more later.

Then in his second part, Smith adds an angle from the academic literature of free speech to add a dimension that I, a very interested amateur, had not appreciated:

In a thoughtful essay entitled “Who Cares Whether Cake-Baking is Expressive?” NYU Professor Rick Hills argues that the expressive quality of Jack Phillips’s cakes should be constitutionally irrelevant. Appealing to writings of (then) Professor Elena Kagan and Yale Professor Jed Rubenfeld, Hills contends that what should matter for First Amendment purposes is “governmental purpose, not private burdens.” …

And so we have to ask: why is government (in collaboration with and on behalf of same-sex couples) going after the bakers and florists and photographers in the marriage cases?

The Centrality of Expression

The question takes us back to the argument of yesterday’s essay. We saw there that in the litigated cases, the states and the same-sex complainants have not primarily relied on the contention that a Christian merchant’s refusal to assist with a same-sex wedding has deprived the couple of any needed product, service, or opportunity. In Masterpiece Cakeshop, another baker supplied complainants with a wedding cake for free; in Arlene’s Flowers, the case of the Washington florist that is currently on appeal to the Supreme Court, the same-sex couple claimed and received $7.91 in damages for the cost of driving to another florist. That was not why the couple and the state brought the lawsuit.

So why were these suits brought? Advocates are often forthright in explaining that these cases are not mainly about material deprivations, which are likely negligible or nonexistent, but rather about the “dignitary harm” or offense suffered when a same-sex couple is in effect told that a merchant regards their marriage as morally wrong or contrary to God’s will.

That claim may be perfectly sincere. But it amounts to a complaint that the couples feel injured by the communication of a message of disapproval. The injuries, in short, are primarily or exclusively expressive in nature. And the remedies sought by the plaintiffs and granted by the courts have likewise been expressive in their content and purpose. Objecting merchants have been ordered to assist with same-sex weddings in the future—not because their services are needed, but because complainants and the states seek to compel them to participate in, to borrow language from the Colorado court, “celebrat[ing] . . . same-sex wedding[s].”

The title of part 2 is “Why the Government Shouldn’t Force Bakers—Or Anyone—to Express Support for Same-Sex Marriage,” and I agree that the government’s purpose in applying nondiscrimination laws to these baker has been, precisely (and unconstitutionally) to compel them to express a message of approval of same-sex marriage. That must not be allowed to stand.

Do read both parts, because part 1 helps to show how an early non-discrimination purpose of assuring that people are not denied needed services has morphed into assuring that people don’t hear a message of disapproval before readily getting their needed services elsewhere.

 

* * * * *

“Liberal education is concerned with the souls of men, and therefore has little or no use for machines … [it] consists in learning to listen to still and small voices and therefore in becoming deaf to loudspeakers.” (Leo Strauss)

There is no epistemological Switzerland. (Via Mars Hill Audio Journal Volume 134)

Some succinct standing advice on recurring themes.

American Churches’ Persecution

While conservative Christians have long complained about worsening societal hostility and persecution for their beliefs, there’s been little empirical evidence to gauge such claims—until now.

Sociologist George Yancey analyzed 30-plus years of data to track approval ratings for evangelical and fundamentalist Christians. His big takeaway: What has changed is not the numberof Americans who dislike conservative Christians, but which Americans.

According to American National Election Studies (ANES) questionnaires, the people who rated evangelical and fundamentalist Christians most negatively over the decades have consistently—and unsurprisingly—been politically liberal, highly educated, and less religious. But in recent years, particularly 2012 and 2016, they’ve shifted to become richer.

This trend means the people pushing back against conservative Christians now have bigger budgets to bankroll their viewpoint, argues Yancey.

American evangelicals “are clearly incorrect in the notion that hostility towards conservative Christians has increased over the last few decades,” the University of North Texas professor wrote in the latest issue of the Review of Religion Research. “But if those with anti-Christian hostility have gained economic power, then Christian activists may be correct in that they now pay a stiffer price for that animosity.”

(Kate Shellnutt, Christianity Today) The teaser for the article says this “nuances the American Church’s ‘persecution complex’,” which seems fair.

Nobody who thinks Russia bought the White House for Donald Trump with some advertising on social media should dismiss out of hand the increased risk when one’s enemies now can buy their ink by the barrel. The Battle of Indiana was the test case; “Chamber of Commerce” hostility to Christianity is now in full production.

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“Liberal education is concerned with the souls of men, and therefore has little or no use for machines … [it] consists in learning to listen to still and small voices and therefore in becoming deaf to loudspeakers.” (Leo Strauss)

There is no epistemological Switzerland. (Via Mars Hill Audio Journal Volume 134)

Some succinct standing advice on recurring themes.