I read Amy Howe’s article on oral argument at SCOTUSblog. Normally she does a very good job of neutral unbiased coverage of SCOTUS proceedings, but I do have a bone to pick with her on this one...and will get to that later.
The crux of her article and my review of oral argument seem to confirm what I have expected the ruling in this case to be. It will be a 5-4 opinion in favor of the baker, handed down by the Court at the very end of the term as the custodial staff is emptying the wastebaskets and turning out the lights. As much as this will be a victory for Masterpiece Cake Shop, it will not be a broad victory in favor of opponents to the concept of same sex marriage. This case looks like it will be a very narrow ruling confined more or less to its facts. It will not contain language broad enough to allow Christians to generally opt out of participation in same sex weddings. The Court will not want to disturb its rationale for public accommodations civil rights enforcement laws. Masterpiece Cake Shop wins because it’s a two-fer argument; religious belief coupled with forced expression. You have to have both to win. Most cases only have the belief without the public endorsement/compelled expression aspect. And the conservatives on the Court don’t want to permit compelled expression.
This is why the Court has not taken up cases involving Christian photographers and florists. They don’t have the expression element to the same extent as the cakeshop (although a good friend of mine makes a compelling argument that the photographer has a better case than the baker).
The tug of war between public accomodation laws and expression is why the Court didn’t want to take this case; it passed something like 10 or 13 conferences before the Court granted certiorari. It does not like to have to rule between competing fundamental rights. But that’s the result of creating those rights through substantive due process. Sooner or later in that labyrinth of rights, they will come into direct conflict, and someone’s rights become licenses. They are granted, and revoked, by the state with less due process than a fishing license.
Now on to my bone to pick with Amy Howe. In her article she talked about the justices who sided with the gay couple. I’ve spoken to several people about this case, and they usually talk about whether the Court will uphold the rights of the gay couple. This premise is simply WRONG. The gay couple are NOT parties in this lawsuit. It is between the State of Colorado and an individual baker. It is an exercise of the power of the state to enforce a law against a private citizen. The gay couple are not parties, don’t have standing, and don’t stand to gain or lose from this suit. They already got their free cake. That is a fundamental issue people need to understand.
And that is perhaps ultimately the reason the baker should win. It’s not gay couple vs baker, it’s the State vs. the baker. It his his fundamental rights that are at issue, not the rights of the gay couple.
[[religious belief coupled with forced expression.]]
That goes along with what circlecity was saying- and put that way I can see that yep- free speech/expression is important to the case- ‘forced expression’
[[Christian photographers and florists. They don’t have the expression element]]
I would disagree with that- famous photographers are known for their artistic expression, and their fame and fortune is reliant on their unique artistic expression- It can also be argued that florists build their reputations on the ability to create a unique artistic expression in the floral arrangements (Granted- most photographers and florists are very creative, but they still develop their own unique ‘style’ that becomes their expression)
[[It will be a 5-4 opinion in favor of the baker,... The tug of war between public accomodation laws and expression is why the Court didn’t want to take this case]]
I hope you’re right- you make a strong case for it (because of the twofer) but with roberts on the panel- it’s a real crap shoot