SCOTUS to take the cake

[James Madison]

Your quibbling over your OPINION vs my OPINION regarding Justice Kennedy's overall predetermined position in this case

Hmmm....this isn't accurate. I have never stated Kennedy's use of the word "facile" in regards to a single, specific line of reasoning to one attorney, reflected his "overall predetermined position in this case."

Rather, I have stated, repeatedly, Kennedy did not find as compelling or persuasive the specific argument of equating identity with the act of marriage. I did not ever say this was Kennedy's "overall" view of the entirety of the facts and case.

Then I don't see where we have much of a disagreement It appears that you and I and Justice Kennedy are all in agreement that this case is more complicated than it may appear to others. That's what makes it fun to discuss, imo.

Fun discussing with you? Yes.

Which, incidentally, I am increasingly inclined to think the expressive position is probably too problematic. I am increasingly inclined to think the 5 conservatives will likely find for the baker on narrower grounds other than speech.

 

[RavenSky]

3. No one has yet been able to show that any cake anywhere is "expressing" any message in and of itself. I still challenge anyone to show me an example of a cake wherein the cake itself says "I exist to celebrate a same-sex marriage". I'm not talking about cake-toppers or messages written in the icing. I am talking about the cake itself. James Madison tried with his rainbow cake example. He failed

The hypo only fails IF the custom cake maker is not engaged in any expressive conduct in making the custom made rainbow cake or in this case in making a custom wedding cake.

Again, your version of "expressive conduct" appears to be entirely dependent on the baker knowing the end use of the cake.

The end use is not, logically, any part of the baker's expressive conduct.

If the exact same cake could be used for two entirely different celebrations, but the baker is only objecting to one of the types of celebrations, then it is not a question of the cake being expressive in and of itself.

 

[Jimmy Higgins]

Then I don't see where we have much of a disagreement It appears that you and I and Justice Kennedy are all in agreement that this case is more complicated than it may appear to others. That's what makes it fun to discuss, imo.

Fun discussing with you? Yes.

Which, incidentally, I am increasingly inclined to think the expressive position is probably too problematic. I am increasingly inclined to think the 5 conservatives will likely find for the baker on narrower grounds other than speech.

Baker has no standing because 'He never gave them a cake, therefore he wasn't compelled by the state to express anything.' *Roberts shreds the case findings*

 

[RavenSky]

Then I don't see where we have much of a disagreement It appears that you and I and Justice Kennedy are all in agreement that this case is more complicated than it may appear to others. That's what makes it fun to discuss, imo.

Fun discussing with you? Yes.

Which, incidentally, I am increasingly inclined to think the expressive position is probably too problematic. I am increasingly inclined to think the 5 conservatives will likely find for the baker on narrower grounds other than speech.

What grounds?

 

[James Madison]

Oh, spare the bitter diatribe. You make this same point about any and every legal position you disagree with. It's played out man.

Naw, I don't drink alcohol. Reduced to its core, this is about using the law to legalize discrimination. Whether you want to be pragmatic about it is up to you. This about using the law to restrict accommodation to gays in as many ways lawyers can manage.

No, this is just your rationalizing away legal points you disagree with. You do it every time, in every thread devoted to a legal issue in which you disagree with. Your position above ignores any possibility of their actually being free speech claims involved or legitimate free exercise of religion claims involved.

 

[Jimmy Higgins]

Oh, spare the bitter diatribe. You make this same point about any and every legal position you disagree with. It's played out man.

Naw, I don't drink alcohol. Reduced to its core, this is about using the law to legalize discrimination. Whether you want to be pragmatic about it is up to you. This about using the law to restrict accommodation to gays in as many ways lawyers can manage.

No, this is just your rationalizing away legal points you disagree with. You do it every time, in every thread devoted to a legal issue in which you disagree with.

What I do is hold a pragmatic view of how law is dealt with in the real world, where winners and losers aren't often based on truth. Law is about litigation and proving a particular point, often with one side lying or neglecting the truth to try to win.

Your position above ignores any possibility of their actually being free speech claims involved or legitimate free exercise of religion claims involved.

The pragmatism tells me that the "expression" argument is a dart throw in the dark, an attempt to try and legitimize discrimination. It is the gay equivalent to 'medical office regulation restrictions' in states trying to eliminate abortion clinics. As I noted, this wouldn't work with inter-racial marriages for "religious" reasons. Yet, somehow we are supposed to believe that it is different with gay marriages for "religious" reasons?

 

[James Madison]

Oh, spare the bitter diatribe. You make this same point about any and every legal position you disagree with. It's played out man.

And it's true that the law is manipulated by lawyers like numbers by accountants. You seem to have this idealization that law is pure, but it isn't. Law is never about who is right, but who wins.

No, you allege "manipulation" as a matter of convenience. You certainly are not alleging "manipulation" when and where the legal argument and legal interpretation is palatable to your own beliefs.

 

[James Madison]

3. No one has yet been able to show that any cake anywhere is "expressing" any message in and of itself. I still challenge anyone to show me an example of a cake wherein the cake itself says "I exist to celebrate a same-sex marriage". I'm not talking about cake-toppers or messages written in the icing. I am talking about the cake itself. James Madison tried with his rainbow cake example. He failed

The hypo only fails IF the custom cake maker is not engaged in any expressive conduct in making the custom made rainbow cake or in this case in making a custom wedding cake.

Again, your version of "expressive conduct" appears to be entirely dependent on the baker knowing the end use of the cake.

The end use is not, logically, any part of the baker's expressive conduct.

If the exact same cake could be used for two entirely different celebrations, but the baker is only objecting to one of the types of celebrations, then it is not a question of the cake being expressive in and of itself.

No. My version is that the custom cake maker is engaged in expressive conduct in making the custom cake. If there isn't any expressive conduct on behalf of the cake maker, then baker loses the expressive conduct argument.

 

[James Madison]

Then I don't see where we have much of a disagreement It appears that you and I and Justice Kennedy are all in agreement that this case is more complicated than it may appear to others. That's what makes it fun to discuss, imo.

Fun discussing with you? Yes.

Which, incidentally, I am increasingly inclined to think the expressive position is probably too problematic. I am increasingly inclined to think the 5 conservatives will likely find for the baker on narrower grounds other than speech.

What grounds?

Kennedy and Alito hinted at an alternative.

One alternative to the speech argument is the commission had displayed an "animus" towards religion and the religious beliefs of the baker. Kennedy hinted at the animus by focusing upon some apparently displeasing choice of words by one or two commissioners in relation to religion and discrimination. Justice Alito expressed some concern with alleged discriminatory treatment of religious beliefs/speech by the commission by citing to another case in which the commission concluded a cake maker had not a violated the law proscribing discrimination against a religious belief (religious belief is protected under the law) but found Mr. Phillips to have violated the same law, although Mr. Phillips did so because of his religious beliefs.

The relevant authority would be a case I cited to previously, Lukumi Babalu v. City of Hialeah.

 

[RavenSky]

Again, your version of "expressive conduct" appears to be entirely dependent on the baker knowing the end use of the cake.

The end use is not, logically, any part of the baker's expressive conduct.

If the exact same cake could be used for two entirely different celebrations, but the baker is only objecting to one of the types of celebrations, then it is not a question of the cake being expressive in and of itself.

No. My version is that the custom cake maker is engaged in expressive conduct in making the custom cake. If there isn't any expressive conduct on behalf of the cake maker, then baker loses the expressive conduct argument.

Then the first step would be to identify the "expressive conduct" vs artistic skill that is not "expressive conduct"

Can you show me a photo of a cake that prima facie expresses "I am a cake made for a same-sex wedding reception" - the symbolic cake of a same-sex wedding reception

 

[RavenSky]

What grounds?

Kennedy and Alito hinted at an alternative.

One alternative to the speech argument is the commission had displayed an "animus" towards religion and the religious beliefs of the baker. Kennedy hinted at the animus by focusing upon some apparently displeasing choice of words by one or two commissioners in relation to religion and discrimination. Justice Alito expressed some concern with alleged discriminatory treatment of religious beliefs/speech by the commission by citing to another case in which the commission concluded a cake maker had not a violated the law proscribing discrimination against a religious belief (religious belief is protected under the law) but found Mr. Phillips to have violated the same law, although Mr. Phillips did so because of his religious beliefs.

The relevant authority would be a case I cited to previously, Lukumi Babalu v. City of Hialeah.

I vaguely remember the Santeria case as it was a huge issue in general in Miami-Dade at the time. A lot of people were freaking out about to 'voo-doo religion'

One major difference between Lukumi Babalu v. City of Hialeah and the Colorado’s Civil Rights Commission in that the councilment in the City of Hialeah case were uniform and upfront about crafting a law very very carefully to target this specific religion in an emergency session. Their on-record comments about the religion were overt, and included statements that the bible doesn't allow for "this sort" of animal sacrifice and that in Cuba Sanitarians were justifiably put in prison.

One comment made by a member of the CCRC does not at all compare to the concerted efforts and statements of the councilmen in the City of Hialeah case.

As to

Justice Alito expressed some concern with alleged discriminatory treatment of religious beliefs/speech by the commission by citing to another case in which the commission concluded a cake maker had not a violated the law proscribing discrimination against a religious belief (religious belief is protected under the law) but found Mr. Phillips to have violated the same law

although oral arguments are maddening in that they talk over each other and the details often get lost, the case Justice Alito refers to was substantial different from this case. The New York Times article I cited earlier today referenced this other case, too.

In 2014, not long after the commission announced its Masterpiece decision, William Jack attempted to buy a cake at Azucar Bakery in Denver, Colo. Specifically, he requested a Bible-shaped cake decorated with an image of two grooms covered by a red X, plus the words “God hates sin. Psalm 45:7” and “Homosexuality is a detestable sin. Leviticus 18:22.” The owner, Marjorie Silva, refused to create such an image or message, which conflicts with her moral beliefs. She did, however, offer to sell him a Bible-shaped cake and provide an icing bag so that he could decorate it as he saw fit. The customer filed a complaint alleging religious discrimination, which is also prohibited by Colorado’s public accommodations law. But the commission disagreed, arguing that Silva’s refusal was based not on the customer’s religion, but on the cake’s particular message.

It is tempting to describe Marjorie Silva’s Bible-cake refusal as the moral mirror-image of Jack Phillips’s wedding-cake refusal: Neither baker was willing to assist in conveying a message to which they were morally opposed.

But that’s not quite right. For recall that Silva was willing to sell the customer a Bible-shaped cake and even to provide an icing bag, knowing full well what the customer intended to write. She was willing to sell this customer the very same items that she would sell to any other customer; what he did with them after leaving her store was, quite literally, none of her business...

The cases are not similar in that Silva was perfectly willing to sell Jack a bible-themed (shaped) cake, just without a very specific written message. She was willing to provide the cake itself. Baker Phillips was not.

So IF it is the cake itself that is the "expressive conduct" component, the two cases do not compare because Silva agreed to provide the cake regardless what the customer did with it afterward. Baker Phillips, otoh, is insisting (as Jimmy Higgins noted before) on trying to control what happens with the cake after it leaves his shop.

I would assume that the justices would examine the facts of the various cases in detail before crafting a decision. So yes, while I agree with you that they did allude to these two possible alternative avenues, I don't see how either of them would actually hold up as a basis for a decision in baker Phillips' favor.

 

[Jimmy Higgins]

What grounds?

Kennedy and Alito hinted at an alternative.

One alternative to the speech argument is the commission had displayed an "animus" towards religion and the religious beliefs of the baker. Kennedy hinted at the animus by focusing upon some apparently displeasing choice of words by one or two commissioners in relation to religion and discrimination. Justice Alito expressed some concern with alleged discriminatory treatment of religious beliefs/speech by the commission by citing to another case in which the commission concluded a cake maker had not a violated the law proscribing discrimination against a religious belief (religious belief is protected under the law) but found Mr. Phillips to have violated the same law, although Mr. Phillips did so because of his religious beliefs.

The relevant authority would be a case I cited to previously, Lukumi Babalu v. City of Hialeah.

Alito's issue would be micromanaging the commission in Colorado. In the case you cite, that was a specific law that was passed. Alito raises questions regarding the findings of a commission in a case. SCOTUS would need to show that the commission repeatedly denies cases against Christians who were denied accommodation for it to parallel your cite. And even then, what is the remedy. Find that Colorado's law is unconstitutional, simply undo this one case?

 

[RavenSky]

Just to beat the dead horse a little bit more:

MS. WAGGONER: The test that this Court has used in the past to determine whether speech is engaged in is to ask if it is communicating something, and if whatever is being communicated, the medium used is similar to other mediums that this Court has protected. Not -*
*
JUSTICE SOTOMAYOR: So that begs the question, when have we ever given protection to a food? The primary purpose of a food of any kind is to be eaten...

MS. WAGGONER: No, but when we have someone that is sketching and sculpting and hand designing something, that is creating a temporary sculpture that serves as the centerpiece of what they believe to be a religious wedding celebration, that cake expresses a message.

JUSTICE ALITO: What would you say about an architectural design; is that entitled to -- not entitled to First Amendment protection because one might say that the primary purpose of the design of a building is to create a place where people can live or work?

MS. WAGGONER: Precisely. In the context of an architect, generally that would not be protected because buildings are functionable, not communicative.

Her arguments are really really bad, in my opinion.

So a baker is engaged in "expressive conduct" because he engages in "sketching and sculpting and hand designing something, that is creating a temporary sculpture", i.e. the creative work put in before the final product is created. This is something all architects do as well. But, according to Ms. Waggoner, because a building's primary function is to house people.

Just like a cake's primary purpose is to be eaten by people.

And round and round she goes...

 

[RavenSky]

Here is the part I was actually looking for:

JUSTICE KENNEDY: Well, the Chief Justice has introduced the question of the Free Exercise Clause in this case. We didn't talk about it earlier. And perhaps you want to get on to speech, but in this case, pages 293 and 294 of -- of the Petitioner appendix, the -* Commissioner Hess says freedom of religion used to justify discrimination is a despicable piece of rhetoric.

Did the Commission ever disavow or disapprove of that statement?

MR. YARGER: There were no further proceedings in which the Commission disavowed or disapproved of that statement.

JUSTICE KENNEDY: Do you disavow or disapprove of that statement?

MR. YARGER: I would not have counseled my client to make that statement.

JUSTICE KENNEDY: Do you now disavow or disapprove of that statement?

MR. YARGER: I -- I do, yes, Your Honor. I think -- I need to make clear that what that commissioner was referring to was the previous decision of the Commission, which is that no matter how strongly held a belief, it is not an exception to a generally applicable anti-discrimination law.

And if -- if the assertion that what is engaging in is speech is enough to overcome that law, you're going to face a situation where a family portrait artist can say I will photograph any family but not when the father... is wearing a yarmulke because I have a sincere objection to the Jewish faith. That would be discrimination.

JUSTICE KENNEDY: Suppose we thought that in significant part at least one member of the Commission based the commissioner's decision on -- on -- on the grounds that -- of hostility to religion. Can -- can your -* could your judgment then stand?

MR. YARGER: Your Honor, I don't think that one statement by the commissioner, assuming it reveals bias -*

JUSTICE KENNEDY: Well, suppose we -* suppose we thought there was a significant aspect of hostility to a religion in this case. Could your judgment stand?

MR. YARGER: Your Honor, if -- if there was evidence that the entire proceeding was begun because of a -- an intent to single
out religious people, absolutely, that would be a problem.

JUSTICE SOTOMAYOR: How many commissioners -*

MR. YARGER: But this was a complaint filed by a couple -*

JUSTICE SOTOMAYOR: How many commissioners are there?

MR. YARGER: Excuse me, Justice Sotomayor.

JUSTICE SOTOMAYOR: I'd like you to answer Justice Kennedy's question. How many commissioners are there?

MR. YARGER: There are seven commissioners, Your Honor.

JUSTICE SOTOMAYOR: All right. If one -- if there was a belief, not yours -- stop fighting the belief; accept the hypothetical -*
that this person was improperly biased, what happens then? I think that's what Justice Kennedy is asking you.

MR. YARGER: If there is one person that's improperly biased?

JUSTICE SOTOMAYOR: One of the commissioners is improperly biased.

MR. YARGER: I think you're going to have to ask whether the complaint filed with the division, which was filed by a customer who was referred to a bakery to receive a product, and the ALJ and the commission in the appeal were all biased in the sense that this was a proceeding meant to single out a religious person for his views.

And that is not the fact here.

CHIEF JUSTICE ROBERTS: We've -- we've had this case before -*

JUSTICE GORSUCH: But you agree that would be a problem -*

CHIEF JUSTICE ROBERTS: -- in the context -- the context of courts, I think it's not just where you have a three-judge panel and it turns out one judge was -- should have been disqualified, whether -- for whatever reason, they don't say that, well, the vote, there were two still, so it doesn't change the result because it's a deliberative process, and the idea is, well, the one biased judge might have influenced the views of the other.

MR. YARGER: And, Your Honor, again, I don't think that this -- that particular phrase -- I wouldn't advise my client to make
that statement, but it was referring back to the previous decision -*

JUSTICE GORSUCH: Mr. Yarger, you actually -
*
MR. YARGER: -- where the commission fully debated the issue -*

JUSTICE GORSUCH: Mr. Yarger, you actually have a second commissioner who also said that he's -- if someone has an issue with the laws impacting his personal belief system, he has to look at compromising that belief system presumably, as well, right?

MR. YARGER: And, yes, Your Honor. That's the same principle that this Court recognized in cases -*

JUSTICE GORSUCH: But a second commissioner?

MR. YARGER: -- cases like United States versus Lee -*

JUSTICE GORSUCH: -- so we have two -* two -- two commissioners out of seven who've expressed something along these lines.

MR. YARGER: I don't agree that what was expressed in the record reveals the kind of bias that existed in cases like the Church of

JUSTICE GORSUCH: What if we disagree with -*

MR. YARGER: -- Lukumi Babalu Aye.

JUSTICE GORSUCH: What if we disagree with you; then what follows?

MR. YARGER: I think you have to do that analysis and decide whether this proceeding was engineered in a way to single
out people with a certain faith and they're not. This... law would apply to protect people with religious beliefs.

JUSTICE BREYER: I see that. The reason I want you to continue this is that many of the civil rights laws, not all public accommodations laws, though -- there are exceptions, like, for example, with housing, a person's own room, for example.

And what people are trying to do with exceptions is take the thing you're worried about, where they are genuine, sincere religious views or whatever it is, and minimize the harm it does to the principle of the statute while making some kind of compromise for people of sincere beliefs on the other side.

And we find that in -- in a lot of them, but that's primarily a legislative job. And my impression of this is there wasn't much
effort here in Colorado to do that.

My problem is can we do that in any way, or is there any way to get to a place that without harming the law, and its object, which is fine, you can have narrow kinds of exceptions for sincere, et cetera? Do you see -- do you see what I'm driving at?

MR. YARGER: I do.

JUSTICE BREYER: And I can't think of a way to do it. Maybe you can't think of a way to do it, but I thought it's worth asking.

MR. YARGER: Justice Breyer, I -- I do not agree that this law, which was passed in 2008, after literally a decade in the wake of Romer, was not an attempt sincerely to hear from all sides about a question of whether to grant the same protections to people who are discriminated based on race or faith to people of the LGBT community.

JUSTICE ALITO: One thing that's disturbing about the record here, in addition to the statement made, the statement that Justice Kennedy read, which was not disavowed at the time by any other member of the Commission, is what appears to be a practice of discriminatory treatment based on viewpoint.

Although, as I said above, I completely disagree with the implication that there is any resemblance between the facts of the City of Hialeah case and this one - I do agree that IF this majority conservative SCOTUS is trying to give a "win" to evangelicals and/or Trump, then this is where they will do it.

They will declare the initial ruling by the CCRC is void because of alleged anti-religious bias. This ruling will apply only to baker Phillips, will not set a general precedent (except possibly a vastly lower standard of "bias" than was genuinely shown in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah). It will allow baker Philips to feel vindicated and again discriminate against same-sex couples until the next complaint is filed against him and the CCRC is extraordinarily careful about how they handle it when they slap him down again.

 

[James Madison]

I vaguely remember the Santeria case as it was a huge issue in general in Miami-Dade at the time. A lot of people were freaking out about to 'voo-doo religion'

One major difference between Lukumi Babalu v. City of Hialeah and the Colorado’s Civil Rights Commission in that the councilment in the City of Hialeah case were uniform and upfront about crafting a law very very carefully to target this specific religion in an emergency session. Their on-record comments about the religion were overt, and included statements that the bible doesn't allow for "this sort" of animal sacrifice and that in Cuba Sanitarians were justifiably put in prison.

One comment made by a member of the CCRC does not at all compare to the concerted efforts and statements of the councilmen in the City of Hialeah case.

As to

Justice Alito expressed some concern with alleged discriminatory treatment of religious beliefs/speech by the commission by citing to another case in which the commission concluded a cake maker had not a violated the law proscribing discrimination against a religious belief (religious belief is protected under the law) but found Mr. Phillips to have violated the same law

although oral arguments are maddening in that they talk over each other and the details often get lost, the case Justice Alito refers to was substantial different from this case. The New York Times article I cited earlier today referenced this other case, too.

In 2014, not long after the commission announced its Masterpiece decision, William Jack attempted to buy a cake at Azucar Bakery in Denver, Colo. Specifically, he requested a Bible-shaped cake decorated with an image of two grooms covered by a red X, plus the words “God hates sin. Psalm 45:7” and “Homosexuality is a detestable sin. Leviticus 18:22.” The owner, Marjorie Silva, refused to create such an image or message, which conflicts with her moral beliefs. She did, however, offer to sell him a Bible-shaped cake and provide an icing bag so that he could decorate it as he saw fit. The customer filed a complaint alleging religious discrimination, which is also prohibited by Colorado’s public accommodations law. But the commission disagreed, arguing that Silva’s refusal was based not on the customer’s religion, but on the cake’s particular message.

It is tempting to describe Marjorie Silva’s Bible-cake refusal as the moral mirror-image of Jack Phillips’s wedding-cake refusal: Neither baker was willing to assist in conveying a message to which they were morally opposed.

But that’s not quite right. For recall that Silva was willing to sell the customer a Bible-shaped cake and even to provide an icing bag, knowing full well what the customer intended to write. She was willing to sell this customer the very same items that she would sell to any other customer; what he did with them after leaving her store was, quite literally, none of her business...

The cases are not similar in that Silva was perfectly willing to sell Jack a bible-themed (shaped) cake, just without a very specific written message. She was willing to provide the cake itself. Baker Phillips was not.

So IF it is the cake itself that is the "expressive conduct" component, the two cases do not compare because Silva agreed to provide the cake regardless what the customer did with it afterward. Baker Phillips, otoh, is insisting (as Jimmy Higgins noted before) on trying to control what happens with the cake after it leaves his shop.

I would assume that the justices would examine the facts of the various cases in detail before crafting a decision. So yes, while I agree with you that they did allude to these two possible alternative avenues, I don't see how either of them would actually hold up as a basis for a decision in baker Phillips' favor.

The fact Marjorie was willing to make and sell a cake, but not specifically the cake the customer had requested, is a refusal of service. The fact the customer is getting something other than what they requested, and the business is purposefully giving the customer something other than what the customer requested because they declined to make what was requested, is to decline service.

The customer wanted a bible shaped cake with X, Y, and Z on the cake. Marjorie declined to make the cake requested but instead offered to make a bible shaped cake. She refused service to make a bible shaped cake with X, Y, and Z. Hence, she refused to make the cake but instead offered to make a different cake. Declining to make the cake requested by the customer is to refuse service to the customer. The consolation prize of a cake not requested is still refusal of service for the requested cake.

Furthermore, Marjorie didn’t deny she refused service. The commission’s order ruling in her favor is based on her refusal of service. The commission ultimately found her refusal of service didn’t violate the law.

So, Marjorie refused service and so did Phillips, and like Marjorie, Phillips was willing to sell them a cake they hadn’t requested.

So, from this perspective the two cases are parallel.

The difference is the commission ruled in favor of Marjorie, a case which involved a religious message against same sex marriage, but ruled against Phillips, which according to Alito also involved speech. For Alito, these two outcomes could perhaps result in a ruling in which the Court could find speech was involved, that the law passed strict scrutiny and was therefore lawful to compel service, but the different treatment of the speech by the commission in applying the law can result in a victory for Phillips.

I’ll have to save for later how the reasoning of Lukumi could be applied here. I do not think it was a coincidence that Kennedy, who wrote the Lukumi opinion, inquired as to any hostility towards this religious belief, and specifically referenced less than flattering language by a commissioner.


Sent from my iPhone using Tapatalk

 

[James Madison]

Here is the part I was actually looking for:

JUSTICE KENNEDY: Well, the Chief Justice has introduced the question of the Free Exercise Clause in this case. We didn't talk about it earlier. And perhaps you want to get on to speech, but in this case, pages 293 and 294 of -- of the Petitioner appendix, the -* Commissioner Hess says freedom of religion used to justify discrimination is a despicable piece of rhetoric.

Did the Commission ever disavow or disapprove of that statement?

MR. YARGER: There were no further proceedings in which the Commission disavowed or disapproved of that statement.

JUSTICE KENNEDY: Do you disavow or disapprove of that statement?

MR. YARGER: I would not have counseled my client to make that statement.

JUSTICE KENNEDY: Do you now disavow or disapprove of that statement?

MR. YARGER: I -- I do, yes, Your Honor. I think -- I need to make clear that what that commissioner was referring to was the previous decision of the Commission, which is that no matter how strongly held a belief, it is not an exception to a generally applicable anti-discrimination law.

And if -- if the assertion that what is engaging in is speech is enough to overcome that law, you're going to face a situation where a family portrait artist can say I will photograph any family but not when the father... is wearing a yarmulke because I have a sincere objection to the Jewish faith. That would be discrimination.

JUSTICE KENNEDY: Suppose we thought that in significant part at least one member of the Commission based the commissioner's decision on -- on -- on the grounds that -- of hostility to religion. Can -- can your -* could your judgment then stand?

MR. YARGER: Your Honor, I don't think that one statement by the commissioner, assuming it reveals bias -*

JUSTICE KENNEDY: Well, suppose we -* suppose we thought there was a significant aspect of hostility to a religion in this case. Could your judgment stand?

MR. YARGER: Your Honor, if -- if there was evidence that the entire proceeding was begun because of a -- an intent to single
out religious people, absolutely, that would be a problem.

JUSTICE SOTOMAYOR: How many commissioners -*

MR. YARGER: But this was a complaint filed by a couple -*

JUSTICE SOTOMAYOR: How many commissioners are there?

MR. YARGER: Excuse me, Justice Sotomayor.

JUSTICE SOTOMAYOR: I'd like you to answer Justice Kennedy's question. How many commissioners are there?

MR. YARGER: There are seven commissioners, Your Honor.

JUSTICE SOTOMAYOR: All right. If one -- if there was a belief, not yours -- stop fighting the belief; accept the hypothetical -*
that this person was improperly biased, what happens then? I think that's what Justice Kennedy is asking you.

MR. YARGER: If there is one person that's improperly biased?

JUSTICE SOTOMAYOR: One of the commissioners is improperly biased.

MR. YARGER: I think you're going to have to ask whether the complaint filed with the division, which was filed by a customer who was referred to a bakery to receive a product, and the ALJ and the commission in the appeal were all biased in the sense that this was a proceeding meant to single out a religious person for his views.

And that is not the fact here.

CHIEF JUSTICE ROBERTS: We've -- we've had this case before -*

JUSTICE GORSUCH: But you agree that would be a problem -*

CHIEF JUSTICE ROBERTS: -- in the context -- the context of courts, I think it's not just where you have a three-judge panel and it turns out one judge was -- should have been disqualified, whether -- for whatever reason, they don't say that, well, the vote, there were two still, so it doesn't change the result because it's a deliberative process, and the idea is, well, the one biased judge might have influenced the views of the other.

MR. YARGER: And, Your Honor, again, I don't think that this -- that particular phrase -- I wouldn't advise my client to make
that statement, but it was referring back to the previous decision -*

JUSTICE GORSUCH: Mr. Yarger, you actually -
*
MR. YARGER: -- where the commission fully debated the issue -*

JUSTICE GORSUCH: Mr. Yarger, you actually have a second commissioner who also said that he's -- if someone has an issue with the laws impacting his personal belief system, he has to look at compromising that belief system presumably, as well, right?

MR. YARGER: And, yes, Your Honor. That's the same principle that this Court recognized in cases -*

JUSTICE GORSUCH: But a second commissioner?

MR. YARGER: -- cases like United States versus Lee -*

JUSTICE GORSUCH: -- so we have two -* two -- two commissioners out of seven who've expressed something along these lines.

MR. YARGER: I don't agree that what was expressed in the record reveals the kind of bias that existed in cases like the Church of

JUSTICE GORSUCH: What if we disagree with -*

MR. YARGER: -- Lukumi Babalu Aye.

JUSTICE GORSUCH: What if we disagree with you; then what follows?

MR. YARGER: I think you have to do that analysis and decide whether this proceeding was engineered in a way to single
out people with a certain faith and they're not. This... law would apply to protect people with religious beliefs.

JUSTICE BREYER: I see that. The reason I want you to continue this is that many of the civil rights laws, not all public accommodations laws, though -- there are exceptions, like, for example, with housing, a person's own room, for example.

And what people are trying to do with exceptions is take the thing you're worried about, where they are genuine, sincere religious views or whatever it is, and minimize the harm it does to the principle of the statute while making some kind of compromise for people of sincere beliefs on the other side.

And we find that in -- in a lot of them, but that's primarily a legislative job. And my impression of this is there wasn't much
effort here in Colorado to do that.

My problem is can we do that in any way, or is there any way to get to a place that without harming the law, and its object, which is fine, you can have narrow kinds of exceptions for sincere, et cetera? Do you see -- do you see what I'm driving at?

MR. YARGER: I do.

JUSTICE BREYER: And I can't think of a way to do it. Maybe you can't think of a way to do it, but I thought it's worth asking.

MR. YARGER: Justice Breyer, I -- I do not agree that this law, which was passed in 2008, after literally a decade in the wake of Romer, was not an attempt sincerely to hear from all sides about a question of whether to grant the same protections to people who are discriminated based on race or faith to people of the LGBT community.

JUSTICE ALITO: One thing that's disturbing about the record here, in addition to the statement made, the statement that Justice Kennedy read, which was not disavowed at the time by any other member of the Commission, is what appears to be a practice of discriminatory treatment based on viewpoint.

Although, as I said above, I completely disagree with the implication that there is any resemblance between the facts of the City of Hialeah case and this one - I do agree that IF this majority conservative SCOTUS is trying to give a "win" to evangelicals and/or Trump, then this is where they will do it.

They will declare the initial ruling by the CCRC is void because of alleged anti-religious bias. This ruling will apply only to baker Phillips, will not set a general precedent (except possibly a vastly lower standard of "bias" than was genuinely shown in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah). It will allow baker Philips to feel vindicated and again discriminate against same-sex couples until the next complaint is filed against him and the CCRC is extraordinarily careful about how they handle it when they slap him down again.

It’s one option, yes.

If the conservatives cannot agree on the issue of whether speech is involved, they could find for the baker under Lukumi.

It’s just my impression, could be wrong, Kennedy wants to find a way for the baker to win without necessarily eviscerating public accommodation laws.


Sent from my iPhone using Tapatalk

 

[Jimmy Higgins]

One thing I don't understand about SCOTUS taking this case is that the conservative judges seemed to be arguing another case, not this one. They took a case where no viable sense of expression was requested for the wedding cake... and they ask questions about what if the cake has baker scripted vows on it. In general, SCOTUS tries to only take the case at hand, and usually only when they seemed forced to have to address it. It got so partisan, the right-wing Justices started making arguments for the baker's lawyers, bringing up issues for them.

This case was about a "custom" cake in the sense of a decorated wedding cake, with no sense of requested expression... and right-wing justices are trying to shoehorn a much larger case into this... and only so that Kennedy can give this baker a little relief and nothing else?

 

[untermensche]

If the conservatives cannot agree on the issue of whether speech is involved, they could find for the baker under Lukumi.

Explain the connection to Lukumi.

In Lukumi you have people wanting to engage in an established religious ritual.

Here you have a guy who doesn't like gay marriage for some reason and refused to sell a cake for one.

It takes a real imagination to draw any connection.

The imagination of lawyery. It defies any reason.

 

[RavenSky]

It is tempting to describe Marjorie Silva’s Bible-cake refusal as the moral mirror-image of Jack Phillips’s wedding-cake refusal: Neither baker was willing to assist in conveying a message to which they were morally opposed.

But that’s not quite right. For recall that Silva was willing to sell the customer a Bible-shaped cake and even to provide an icing bag, knowing full well what the customer intended to write. She was willing to sell this customer the very same items that she would sell to any other customer; what he did with them after leaving her store was, quite literally, none of her business...

The cases are not similar in that Silva was perfectly willing to sell Jack a bible-themed (shaped) cake, just without a very specific written message. She was willing to provide the cake itself. Baker Phillips was not.

So IF it is the cake itself that is the "expressive conduct" component, the two cases do not compare because Silva agreed to provide the cake regardless what the customer did with it afterward. Baker Phillips, otoh, is insisting (as Jimmy Higgins noted before) on trying to control what happens with the cake after it leaves his shop.

The fact Marjorie was willing to make and sell a cake, but not specifically the cake the customer had requested, is a refusal of service. The fact the customer is getting something other than what they requested, and the business is purposefully giving the customer something other than what the customer requested because they declined to make what was requested, is to decline service.

The customer wanted a bible shaped cake with X, Y, and Z on the cake. Marjorie declined to make the cake requested but instead offered to make a bible shaped cake. She refused service to make a bible shaped cake with X, Y, and Z. Hence, she refused to make the cake but instead offered to make a different cake. Declining to make the cake requested by the customer is to refuse service to the customer. The consolation prize of a cake not requested is still refusal of service for the requested cake.

The difference is that Silva declined to make a product she does not ordinarily offer, but was willing to make a product she does offer. Phillips declined to make a product he does offer.

No one has faulted Phillips for not making a Halloween-themed wedding cake because he does not ordinarily offer Halloween-themed cakes of any kind. He DOES, however, make colorful wedding cakes (as evidenced by the photo used in multiple news articles) - and even that point is mute because Phillips refused to even discuss the design of the wedding cake. He refused service altogether.

Furthermore, Marjorie didn’t deny she refused service. The commission’s order ruling in her favor is based on her refusal of service. The commission ultimately found her refusal of service didn’t violate the law.

Shopkeeper's can refuse service for all sorts of reasons without violating Colorado law. "No shoes, no shirts, no service" comes to mind as an example.

What they cannot do is refuse to sell a product to one specific customer that they ordinarily provide to others. Silva did not refuse to sell the bible-themed cake. Phillips did refuse to sell a wedding-shaped cake.

So, Marjorie refused service and so did Phillips, and like Marjorie, Phillips was willing to sell them a cake they hadn’t requested.

Not correct. Silva's customer wanted a bible-shaped cake, and that is what she was willing to provide. Phillip's customer wanted a wedding-themed cake, and Phillips refused to provide that even though his speciality to other customers was wedding-themed cakes.

IF Phillips had been willing to provide a wedding cake but refused to write a message on the cake and/or to provide a same-sex cake topper, then we would have a similarity between the cases worth noting.

So, from this perspective the two cases are parallel.

I disagree. You seem to be taking the cake itself (flavor, filling, color, shape) as inseparable from any writing on the cake and/or any add-on decorations (such as the wedding cake topper). They are not inseparable.

Most wedding cakes do not have any writing on them, so there can be no claim of "expressive content" on that basis, whereas that was exactly the issue with the bible-themed cake. The cake (flavor, filling, color, shape) is a separate issue from the writing on the cake. Silva was willing to provide the cake, but not write the messages herself. She was even willing to provide the tools for the customer to write whatever he wanted on the cake she provided.

Phillips refused to provide the cake at all, and he wasn't even asked to write anything.

 

[RavenSky]

It’s just my impression, could be wrong, Kennedy wants to find a way for the baker to win without necessarily eviscerating public accommodation laws.

I agree with you here, but I think they will have an extremely difficult time doing so with this specific case. Even trying to reverse using Lukumi would, in my opinion, open a major can of worms for public accommodation laws. If a plain red Starbucks cup can be declared a "war on Christmas", I can just imagine what completely innocent acts/comments will be taken into court as *evidence of animus* against the Christian religion in future public accommodation cases.