RE: Anyone know what the gay couple requested?
I know that Mr. Phillips offered to sell other baked goods. But what was never entirely clear from the record was whether he was only refusing to make a custom wedding cake, or whether he would have refused to sell them any wedding cake at all. It’s very hard to infer one way or the other. His statement in this particular NBC interview infers that he was asked to make a custom cake.
His website has said for several years now that he is not taking orders for custom wedding cakes. But many wedding cakes are shown pictured on his website, and I have seen photos of him in his shop where there are wedding cakes on display. It seems that he continues to sell “off the shelf” wedding cakes, although not custom ones.
Can a gay couple come in and purchase one of those off-the-shelf wedding cakes? If they cannot, that greatly increases the odds that Phillips has engaged in unlawful discrimination.
See, for example, Kagen’s concurrence, where she makes the logical argument that discrimination exists when a baker won’t sell to a gay couple the same product he sells to others.
But so long as Phillips has no objections to selling his off-the-shelf wedding cakes to both gays and straights, then his refusal to make custom cakes for gay weddings suddenly implicates the free speech arguments made by Thomas’s concurrence.
However, Thomas’ concurrence had no supporters other than Gorsuch, and all the other Justices focused only on the free exercise claim.
That may very well have been because of bad (or, to be more precise) uncertain facts on the record.
The SCOTUS’s jurisdiction is unique in that, more than most courts, it picks and chooses the cases it wants to hear.
In this Masterpiece case, the facts as briefed contained too many ambiguities for a majority to form on the Constitutional issues.
So they punted, and disposed of Mr. Phillips’ case by declining to provide him (or any other store owner) guidance whether claiming religion creates an exception to generally-applicable laws against discrimination.
Of course, one could say that the question was asked and answered over 40 years ago, in the Piggie Park case. There, shortly after the 1964 Civil Rights Act, a bigot claimed religion as the basis for not seating blacks in his restaurant. The Supreme Court quickly and without controversy held that what he did was not lawful.
So, for me, this issue is narrowly tailored only to Mr. Phillip’s case. It does not address the LARGER issues of religious liberty.
Yeah, the reason I ask is that this AM the baker was saying the ‘message’ of the cake was what he objected to, and he would not make a cake with an anti-gay message.
Makes me wonder what was the design or message of the cake.
Knowing this was a militant gay couple it might be something like: “Screw Straight People” or worse.
Jack Phillips told the homofascist couple he’d sell them a wedding cake off the shelf. He just refused to design one specifically for them.