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Masterpiece Cakeshop Theater

Masterpiece Cakeshop Theater

My interview about the landmark case involving religious freedom and free speech.

I have to admit, I fell asleep at the baker’s wheel.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission was argued to the Supreme Court earlier this month and I, didn’t cover it. Not out of lack of interest, but more feeling like we’re chasing a swarm of daily dust ups created by (1) Trump Derangement Syndrome in all its many and varied forms, (2) Trump on Twitter, (3) media reacting to Trump on Twitter, (4) Alabama, (5) War on Women and #MeTwo, (6) Men at Work, (7) the End of the World. Plus, it was end of the semester, and things were busy.

Excuses, I’ve had a few.

But it’s obviously an interesting and important case, and I’ve been reading along even if not writing about it.

This video from The Daily Signal has good background on the Cakeshop owner, and the controversy:

I was interviewed on the Jack Riccardi Show in San Antonio, where I’ve appeared many times before. I find that Jack really is up to speed on the law on a variety of topics, and I always enjoy the segments.

At the time of the interview, the case was in the process of being argued, and I had not heard any reports about how the argument went.

Here is my segment.  It’s short, about 10 minutes. (Click here if doesn’t load.)

David French at National Review found oral arguments clarified a key point, that this was about the state trying to compel artistic speech:

Kristen Waggoner, the ADF attorney arguing for Jack Phillips strongly and clearly made the most vital point — the issue was the artistic message, not the identity of the customer. Here’s a key part of the transcript:

JUSTICE GINSBURG: What if — what if it’s — if it’s an item off the shelf? That is, they don’t commission a cake just for them but they walk into the shop, they see a lovely cake, and they say we’d like to purchase it for the celebration of our marriage tonight. The Colorado law would prohibit that. Would you claim that you are entitled to an exception?

MS. WAGGONER: Absolutely not. The compelled speech doctrine is triggered by compelled speech. And in the context of a pre-made cake, that is not compelled speech.

In other words, Masterpiece Cakeshop not only serves gay customers, it would sell a gay couple a wedding cake. What he won’t do is use his artistic talents specifically and intentionally for the purpose of celebrating a same-sex union. That’s the vital distinction. That’s what implicates the compelled speech doctrine. Good on Waggoner for making the distinction up front.

Amy Howe at Scotusblog finds a likely conservative majority in favor of the Cakeshop, Argument analysis: Conservative majority leaning toward ruling for Colorado baker:

Chief Justice John Roberts seemed to be squarely in Phillips’ corner. He asked Colorado Solicitor General Frederick Yarger, representing the state, whether Catholic Legal Services, which provides legal services to all different faiths, could refuse to take on a case involving same-sex marriage on the ground that it violated the group’s religious beliefs. Under Colorado law, Roberts suggested, the group would face an unpalatable set of choices: It could either stop providing any legal services at all or it could provide services that include same-sex marriage. And he reminded David Cole, representing Craig and Mullins, that, in its 2015 decision establishing a right to same-sex marriage, the court went “out of its way” to note that “decent and honorable people” may oppose same-sex marriage.

Justice Samuel Alito also seemed to be on board with Phillips’ arguments. He was concerned that, according to the state, another baker could decline to create cakes opposing same-sex marriage, but Phillips could not refuse to make a cake celebrating a same-sex marriage. Later he suggested that it was “very odd” that, in 2012, Craig and Mullins could not have gotten married in Colorado or had their Massachusetts wedding recognized by the state, but Phillips could get in trouble for refusing to make them a cake to celebrate their same-sex marriage.

Justice Neil Gorsuch, who until recently lived in Colorado, seemed to object to part of the state’s order in Phillips’ case, which required him to provide “comprehensive training” to his employees. Why wouldn’t the training be compelled speech, Gorsuch asked, when it would require Phillips to tell his staff that his Christian beliefs are discriminatory?

This is hopeful, but I’m not celebrating until we get the Opinion. Remember John Roberts in Obamacare I?

The oral argument full transcript is here. Here is the full audio:


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How can anyone forget Roberts? He’s a shame and disgrace.

Formerly known as Skeptic | December 15, 2017 at 9:02 pm

“Under Colorado law, Roberts suggested, the group would face an unpalatable set of choices: It could either stop providing any legal services at all or it could provide services that include same-sex marriage.”

Reminds me of Catholic Charities of Boston who gave up adoptions services since they were not allowed to limit adoptions to traditional heterosexual couples.

Suppose there were a Muslim baker who was asked to produce pastry for a Christian Easter celebration with the inscription, “Jesus the Lord is risen.” This would violate the Muslim’s religious beliefs. Would the court require this? Or a Mormon baker is asked to produce a cake that says, “Joseph Smith was a fraud.” Does he have to do this? And if not, why must Christians be required to do things which violate their faith?

    NavyMustang in reply to tarheelkate. | December 16, 2017 at 5:42 am

    Not an exact match, but this is pretty darn close.

      dunstvangeet in reply to NavyMustang. | December 16, 2017 at 12:26 pm

      I’ve seen that Youtube before, and it actually doesn’t show what you think it shows. At least 3 of the bakeries have directly said that they were misrepresented in that video, including one that actually said that they did accept the order, but the video was deceptively edited to make it look like they refused it. But anyways, let’s get down to the actual bakeries.

      One of the bakeries is Golden Bakery. That bakery doesn’t do wedding cakes for anybody. So, it’s not discrimination to not do wedding cakes for gay people. They told him as much, but it seems to have been edited out.

      The second bakery is Hallab Bakery. Again, according to at least one source, Hallab Bakery doesn’t do wedding cakes. Employees at the bakery also said that

      And the third bakery is Dearborn Sweets. The person there said that they actually did accept the order, but Mr. Crowder deceptively edited the video to make it look like they didn’t.

      All three bakeries actually said that they have no policies about treating gay weddings any differently from straight weddings.

      Here are my sources:

      So, please stop trying to use that Youtube Video to bolster your case. It doesn’t actually show what you think it shows.

        Crowder says in the video some of the Muslim bakeries did accept his order. I think he even said (without rewatching to confirm) that more Muslim bakeries than Christian bakeries accepted.

conservative tarheel | December 16, 2017 at 10:06 am

I like the muslim one … or a muslim baker
asked to produce a wedding cake for a gay
couple …

or a black baker asked to produce a KKK themed
wedding cake …

I have a hypothetical that I haven’t seen others mention. Suppose a straight couple came in and ordered a gay themed wedding cake? Would he have refused them? The answer, of course, is “yes.” Is that not proof positive that this whole case has nothing to do with discrimination.

And as an aside, isn’t the whole notion of “protected classes” unconstitutional?

I’m always amazed when people can’t imagine a situation where they might refuse to do something legal in good conscience or against their principles and wish to protect that right.

Say you are a photographer and a 65 year old man comes in and wants you to shoot sexual pictures with an 18 year old girl. Would you like to be able to say no?

I can think of many examples. Sad some people can think of none.

    Semper Why in reply to elle. | December 21, 2017 at 2:43 pm

    With the notion of “protected classes” thrown into the works, it’s entirely possible that yes, the photographer would be within his rights to refuse to take those pictures.

    However, it’s also possible that the photographer would not be within his rights if the 65 year-old man asked the photographer to take erotic pictures of him and his 18 year-old grandson. What a world.