The Supreme Court Is Likely To Rule For Jack Phillips While Dodging The Religious Liberty Question

The Federalist ^ | 12/8/17 | Margot Cleveland

[x1stcav]

While there is always a risk of reading too much into Supreme Court justices’ questions during oral argument, there is often much to be gleaned.

If Tuesday’s oral argument is any indication, the year-long anticipation for the Masterpiece Cakeshop Supreme Court showdown will result in a narrow opinion that provides little clarity in the continuing conflict between culture and religious liberty.

By now the basics are well-known: When a homosexual couple asked Jack Phillips, the owner of the Colorado-based Masterpiece Cakeshop, to design a wedding cake for them, Phillips informed the pair that he could not, in conscience, create a cake to celebrate a same-sex marriage. The men filed a complaint with the Colorado Civil Rights Division, claiming Masterpiece Cakeshop “discriminated against them in a place of public accommodation” because of their sexual orientation.

An administrative law judge (ALJ) found in favor of the couple and ordered Masterpiece to provide wedding cakes to same-sex couples. The seven-member Colorado Commission on Civil Rights upheld the ALJ’s decision. The Colorado Court of Appeals affirmed the commission’s conclusion that Masterpiece Cakeshop violated the state’s anti-discrimination law.

The state appellate court also rejected Masterpiece’s argument that compelling Phillips to use his artistic talents to create a cake for a same-sex marriage violated his free speech and free exercise of religion rights. Masterpiece Cakeshop then appealed to the U.S. Supreme Court.

[stylin19a]

as a sidebar...

and it was a fiasco, and he twisted like a pretzel to create law out of thin air, but many don't remember it also restricted congress under the Commerce Clause, essentially gutting it.

John Roberts opinion for the majority
Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.
Congress already possesses expansive power to regulate what people do.
Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do.
The Framers knew the difference between doing something and doing nothing.
They gave Congress the power to regulate commerce, not to compel it.
Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers.
The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”

The problem, here, is that the SCOTUS gave Congress license to mandate the public do things under penalty, disguised as a tax.

[Red Badger]

Notice the gays NEVER go to Muslim bakeries, only Christian ones, not Buddhist or Hindu ones, either..................

[mlo]

The core of the article:

"Rather, the court concludes that Colorado’s commission acted with hostility toward Phillips’ religious beliefs, as demonstrated by the commissioners’ anti-religion comments and refusal to sanction bakers who refused to sell cakes celebrating the traditional meaning of marriage."

The problem with this argument is that the bakers who were not sanctioned can't be said to have discriminated against gays or any other minority class. Therefore the different treatment is rational.

The court may still go this way, it's not always rational. But it would make no sense.

The real issue here is the free speech one, not the religious one. No person should be compelled to make speech they disagree with. A craftsman literally baking a message into a cake certainly applies. A makeup artist, although an "artist", is not making specific speech by their work. Even the baker offered to make a cake that didn't contain the message. This is actually much more straightforward than perhaps the justices saw. But maybe they did and just wanted to interrogate the lawyers.

[broken_arrow1]

Heaven help us if the ‘tards ever get a 5th SCOTUS judge.

[Alberta's Child]

We went down the wrong path decades ago when the Supremes upheld legislation requiring private owners to serve people they did not wish to serve.

That's exactly right. Nobody should have to fall back on a "religious freedom" argument to tell a prospective customer to get lost.

[RicocheT]

If it’s a weak opinion in favor of the baker, blame Justice Kennedy as the others for the baker had to water it down to get Kennedy on board. Kennedy may retire next year so let’s hope Pres. Trump will put in a strong and reliable conservative.

[SoCal Pubbie]

“The problem with this argument is that the bakers who were not sanctioned can't be said to have discriminated against gays or any other minority class.”

Refusing to bake a cake upholding the traditional definition of marriage while agreeing to bake a cake supporting gay marriage would be discrimination based on religious belief, unless it could be proved that the reason to create such a cake was not a religious one.

[Ancesthntr]

“We went down the wrong path decades ago when the Supremes upheld legislation requiring private owners to serve people they did not wish to serve.”

---

I think that you’re confusing 2 different things.

What the USSC did back in the ‘60s was to rule that no one could be denied entrance to, or service from, a place of business that is a public accomodation. So, for example, some store on Main Street, USA, or on the interstate, cannot decide to prohibit blacks from entering their store - on the theory that the store itself (and, thus, its owner) was deriving a benefit from being a public accomodation, and therefor had to take the “bad” (admitting blacks) with the “good” (those benefits).

This is in contrast to the present situation, where the 2 homosexuals wanted a special service. If they had come in and said, “Hey, we want to buy that pre-made cake there” or “Hey, we want to order one of your standard make-to-order cakes” then the cake shop (as a place of public accomodation) would have had no choice but to sell to them. HOWEVER, this particular case is distinguishable because the 2 people in question wanted a custom-made cake that offended the person who was asked to create it. It is analogous to 2 Jews or 2 Christians coming into a Moslem-owned bake shop and asking for a cake depicting Mohammed being screwed by a dog. I would not ever expect that shop to make such a cake, any more than I’d have expected Phillips to make the homosexual wedding cake. You CANNOT force someone to go out of their way to accomodate you or your particular beliefs - whatever those beliefs may be. Again, if they’d have asked for a cake off the shelf, he’d have had to sell it to them...but those are not the facts in this EASILY distinguishable case.

One thing that has NOT been explored (at least I don’t believe that it has) at the USSC level is the set of circumstances leading to this case. There was another case in Oregon, with almost identical facts, in which the 2 homosexuals PURPOSELY sought out a Christian-owned/operated bake shop, and when they found one they asked for a similar cake to this case. Oregon shut that place down...but the point is that those 2 particular gays in Oregon were LOOKING to create a case, it didn’t just happen at random. I believe that the facts are similar here, though I will be glad to admit my error if someone can point to some contrary facts. Another issue is the fact that there are other bake shops available fairly close by - these gays could have gone elsewhere, but chose to (quite literally) make a Federal case out of it. If the cake shop were a protected monopoly and there was no competition nearby, I’d say that the shop would have no choice but to make the cake as requested...but there was NO such monopoly. So, what is the real harm? What $0.50 of gasoline?

[Fireone]

Seems as if there’s a business opportunity here. This issue could be solved, if a couple of nancy boys would start baking.
“Cakes for Flakes”
“Cakes ‘N Buns”

[Harmless Teddy Bear]

Religious liberty is not the question here.

The question is, "Do I have to accept any job offer as long as they pay me?"

Do I have to do the yard work for the Church of Satan or the DNC? (Not much difference)

Must I design a dress for Hillary?

Do I have to make a "Drunk Girls Welcome" sign?

How about shine Jesse Jackson's shoes?

Where is my right to say no?

Once we have shrunk the right to say no to any service to "they have to pay you" we have become not free people but commodities.

This is a violation of the most basic of human rights.

The right to say, "I am not for sale."

[monkeyshine]

Indeed. If the court ruled the way described in the article it would be a cop out. As you suggest there is a much simpler way to rule on public accomodation grounds. If the baker makes a cake and puts it in his display case for sale, and a gay couple walks in and says “we want to buy that cake” he should have to sell it. But nobody has the right to walk in and insist that he make a special cake just for their own whimsy. This applies to everything. You could not demand he make a gluten free cake, or egg free cake, or a cake designed like a burning cross that says “congratulations Senator Byrd from your friends at the KKK” either. You can buy what he has for sale during the posted hours of open business. If you have a special request he is free to refuse accomodation on any grounds. You cannot force someone into a contract (at least you couldn’t until that stupid Obamacare ruling).

[PapaBear3625]

If Tuesday’s oral argument is any indication, the year-long anticipation for the Masterpiece Cakeshop Supreme Court showdown will result in a narrow opinion that provides little clarity in the continuing conflict between culture and religious liberty.

I think the conservative Justices are waiting for Kennedy and/or Ginsberg to be replaced (preferably both) before trying any sort of comprehensive ruling on this area. Accordingly, they will likely rule very narrowly on this case.

[savedbygrace]

Amendment I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The word respecting means having anything to do with. And if the Congress is forbidden, then because of the 14th Amendment, no government is allowed to pass any law respecting an establishment of religion, or prohibiting the free exercise thereof.

That means that the State law that was supposedly violated is in violation of the 1st Amendment. No citizen of the Unites States of America can violate the 1st Amendment because the amendment restricts government, not the people.

Period.

[theBuckwheat]

The justice’s refusal to accept the “free expression” argument is rooted in how much they have invested in the abridgment of the unalienable right to property and free association that was necessitated by the doctrine that a business was a “public accommodation.”

This also illustrates the limits of government. The civil rights theory that a private business must serve all customers comes at a high cost to liberty. It enables the current theory of “protected classes” of people, and thus enables government to enforce “gender equality” laws. This is how we were moved from the “land of the free” to #BakeTheCake.

When government can force the artist’s hand to coerce him into artistic expression on a topic that is odious to him, we have a form of enslavement. This is a “taking” of the most egregious kind, where government has grossly exceeded its enumerated and limited powers, all of which were put in place to restrain government. Now government declares that the citizen is the one being restrained.

Time for an Article V Convention to restore the proper relationship between the government and the People.

I recently saw a complaint on twitter about how difficult it is for Same Sex Marriage “couples” to find vendors willing to accept their business. I can validate this through one of my clients, who is in that exact business. She told me that her clients sometimes cry when they find that she will in fact help them with their “marriage”. This tells me that the overwhelming majority of Americans are opposed to same sex marriage despite what we are being told by the post-modern media.

The solution for this is to reaffirm the inalienable right to private property and freedom of association. A business owner must have the right to politely and peacefully decline to do business with anyone. If someone feels that they are discriminated against, let them take their case to the public. Let them start their own business. Let them go somewhere else in peace.

But it is clear that the LGBT community does not want peace. They demand approval from people who cannot give approval, let alone be an enabler. When gays cannot get approval, they will grind anyone who finds their personal morality to be odious into the ground. That is not how we build a peaceful society, where out of many, one. I am afraid that this will not end well for anyone.

[ExTxMarine]

I think you are being delusional in your parsing of the SCOTUS ruling of the 60's.

What the USSC did back in the ‘60s was to rule that no one could be denied entrance to, or service from, a place of business that is a public accomodation. So, for example, some store on Main Street, USA, or on the interstate, cannot decide to prohibit blacks from entering their store - on the theory that the store itself (and, thus, its owner) was deriving a benefit from being a public accomodation, and therefor had to take the “bad” (admitting blacks) with the “good” (those benefits).

In a truly FREE society, built on FREE Capitalism, with a true understanding of FREEDOM OF ASSOCIATION, any store on Main Street, USA could put up a sign that read, "No red heads allowed." And no red head could ever enter that place of business - PERIOD! It's their store; they should be allowed to include or exclude anyone they wish!

Before you ask: YES, I think if a store wanted to put a sign that read, "No blacks allowed!" Then they should be allowed to do that! I would never shop there, and I'm pretty certain the store would go out of business PDQ, but hey - in a free, truly Capitalistic society that would be allowed! The ONLY exception to this thought process is in monopolistic businesses: if you are the only ISP in town, you can't discriminate.

THAT IS FREEDOM OF ASSOCIATION and the Civil Rights Laws has been a tool with which the Liberal leftists have BLUDGEONED America, almost to death (which is what this particular case PROVES)!!!

[liberalism is suicide]

In calling people “bigots” who refuse to cater to their immoral activities the sodomites should be asked this question:”are you condemning me or trying to give bigots a good name?”

[marktwain]

What the USSC did back in the ‘60s was to rule that no one could be denied entrance to, or service from, a place of business that is a public accomodation.

---

Calling a private business that is not a monopoly, a public accomodation, and that the private owners give up their right to free association, was the crux of the problem.

[Joe Bfstplk]

“Never ever predict how the Supremes will go...”

<<>>

Roberts taught us this.

[Dr. Sivana]

They’ll give you pastrami instead and tell you it’s better for you.

And if you ask for Swiss cheese with your pastrami, they'll throw up their hands, mutter something low about goyim, and give you directions to the nearest Arby's.

[publius911]

You can’t just tell a homosexual to get his cake from someone else. Instead, you are compelled to endorse and celebrate his “marriage” to another male. Otherwise you are a bigot. [criminal, and can lose your livelihood!

Simple justice would justify a civil suit, reimbursement of legal costs and monetary award. The entire process was an arbitrary, capricious, unnecessary and malicious whim by the perverts.