Religious Liberty vs. Public Commerce


Here is a negative view:

Here is a positive view:

The Masterpiece Cakeshop case seems like one that should never have reached the Supreme Court. I read one analyst express that, given that a similar case was not accepted for review by the Supreme Court a few years ago (a 2014 case involving a photo studio that was found to have violated state law by refusing service for a gay wedding), it was surprising that certiorari was granted in this case without Scalia’s vote – you need four votes to get your case before the court, and their assumption was that Scalia would have voted to review and reverse this kind of case. I would not be surprised if that assumption is incorrect – that as much as Scalia might have personally wanted to reverse the case based upon his own beliefs, he might have withheld his vote due to the difficulty of actually creating a standard for evaluating “religious liberty” claims when people start using them as an excuse for discrimination.

The arguments in favor of the cake shop, to me, are not convincing.

I am not convinced that people viewing or eating cake at a wedding interpret the cake as in any way reflecting what the cake shop believes about gay marriage.

  • I am not convinced that this was about creative expression, as the cake shop took a position that would seemingly apply to a rectangular sheet cake frosted in unadorned white frosting, or even an unfrosted cake.

  • I don’t see this as equivalent to a cake shop declining to adorn a cake with symbolism that the shop owner found offensive (e.g., swastikas or confederate flags) as there is no indication that the couple seeking to purchase the cake wanted any unusual imagery on the cake; nor is that a religious freedom argument. The customers were denied a cake because they were gay, not because they wanted an unusual or potentially offensive cake.

  • The distinction that some have made, that it’s different than using religion to justify discrimination against (for example) interracial marriage because you can’t control your race are not likely to gain any traction in the Supreme Court, although they reflect a lingering anti-gay belief among some people that being homosexual is a “choice”.

  • I don’t agree with the slippery slope argument that if you require a cake shop that serves the general public to sell a cake to a couple for their gay marriage, then every creative enterprise and every professional can similarly be compelled to provide work or services for causes that they personally oppose.

The issue of artistic expression proved problematic for the cake shop’s lawyers:

Justice Elena Kagan led the charge, asking Waggoner whether a hairstylist or a make-up artist could cite his religious beliefs as the basis to refuse to provide services for a same-sex wedding. When Waggoner responded that they could not, Kagan pushed back. The make-up artist is an artist, she stressed, and could feel the same way about his craft as Phillips does. Waggoner countered that doing someone’s make-up is not speech, prompting Kagan to retort that “some people might say that about cakes.” And Kagan expressed disbelief that a baker’s craft is expression but a chef’s, according to Waggoner, is not.

Alito joined the fray with what seemed to be a softball question for Waggoner, asking her whether architectural designs would be protected even though people live in the buildings for which they serve as the basis. Waggoner said that they would not be, which seemed to surprise Breyer. So a masterpiece by Michelangelo would not be protected, but a cake without any message on it would be, he asked? “That really does baffle me,” Breyer said.

Justice Roberts seemed inclined to find Colorado’s law to be overly broad:

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.

While that argument suggests that Roberts intends to vote in favor of the cake shop, it could turn out to be a more modest decision than the cake shop’s fans desire. That is, it could turn out to be a finding that Colorado’s law is overly broad because it potentially extends to organizations like Catholic Social Services, but leave open the possibility that a revised law will be constitutional even if it continues to require businesses like the cake shop that are open to the public to serve the entire public.

Justice Kennedy focused on a single statement by a single member of the Colorado Civil Rights Commission “noted that religious beliefs had in the past been used to justify other forms of discrimination, like slavery and the Holocaust”, a comment that he characterized as carrying an anti-religious sentiment. Kennedy also joined in a line of questioning suggesting that he disagreed with the remedies ordered by the Civil Rights Commission. That raises the possibility that Kennedy prefers to kick the issue back to Colorado based upon the possibility that the commission made its decision as a result of anti-religious bias. Such a remand would allow the court to avoid addressing the difficult issues raised by the case.

In terms of the consequences of allowing this type of discrimination for businesses like a cake shop, the Justices who were skeptical of the law had the strongest arguments.

Sotomayor was also worried that a ruling for Masterpiece would not only violate the dignity of same-sex couples, but could also cause real hardships. Most military bases, she noted, are in isolated parts of the United States, many of which are predominantly Christian. That means, she said, that there might only be one or two bakers to provide cakes for same-sex weddings – and a couple could be out of luck if all the available bakers cite religious beliefs as a reason to refuse to make a cake. “We can’t legislate civility and rudeness,” she concluded, but we can legislate behavior.

But many of the more liberal justices’ questions seemed to focus on trying to convince their more conservative colleagues that, even if they might be inclined to vote for Masterpiece, it would be next to impossible to write a ruling for the baker that did not, as Justice Stephen Breyer put it, “undermine every civil rights law since year 2.” They peppered Waggoner with questions about what kinds of wedding services would or would not be protected under her rule, and they rarely appeared convinced by her efforts to draw distinctions.

If you care that a rule be protective of people who don’t fit into a traditionally protected class – and these issues extend far beyond gay weddings – it seems like it will be extremely difficult to create a standard by which it could be determined which merchants and service providers’ work contained a sufficient creative or expressive element that they could deny service on the basis of how the use of their work might ostensibly carry a message inconsistent with their religious beliefs.

On a final note, it is possible for a shop like Masterpiece to operate and discriminate without running afoul of the law – by not offering its services to the general public. It could, for example, limit sales to only those customers whose weddings were to be held at a specific list of churches, and select only churches that don’t perform gay marriages. It’s problem is that it wants the benefit of offering cakes for sale to the general public, but then to invoke religion to discriminate against some members of the public.


It’s about the person creating the cake, not the cake shop.
They could have bought a cake or anything in the store, h simply didn’t want to put 2 groom on the cake as his beliefs are 1 man, 1 woman.

A question, knowing the owner of the cake shop is a christian, could it be that the 2 gay people simply went there to mac a statement and instigate his lawsuit?

Did they seek out Jack Phillips hoping to get exactly the response he gave them, and then they proceeded to use him as a pawn to advance their political agenda and destroy the rights of Christians in America. They are activists parading themselves around as an aggrieved and innocent married couple. I think this is the more accurate characterization. And it is entirely in keeping with how the gay lobby usually operates.

If a couple came into the cake shop and wanted a special cake to celebrate the wife’s abortion, the owner would have refused. Should he be prosecuted for refusing to make their cake for their special day?


A question.

Should the supreme court rule in Masterpieces favor, the business has been harmed. Should the 2 people that brought the lawsuit pay reparations to the cake shop?

To the 6 people that were laid off and lost their jobs because of the lawsuit?


Leftists let kids choose their genders and their pronounce, yet forbid parents to choose their kids’ school, and forbid business owners to decide what to do with their creations. What a world we live in.

Shop owners can refuse service for people when they dont wear foot gears in their shos, how is this any different? Their properties, their choice.


Good post and a very good subject. As a person not educated in law, my views on subjects like these are organic. I.E. they come from what I have read and understand about the intent and what I glen as the plain text understanding of our founding documents.

To me, the discussion is not about, or at least should not be about, ‘Religious’ belief. … people universally have a right to their own creed and according to the principles by which we issued a declaration of our independence the definitions of … Life, Liberty and Pursuit of Happiness. That creed should not, under our constitution require government acknowledgement and some kind of 501 tax exemption to be valid. The erosion of individual rights and within that, the ability of the individual to freely associate with others as they choose, has pushed this discussion into the last bastion of being able to live out a person’s personal creed… Religious Rights and further because of a rather stretched and twisted redefinition of ‘public accommodation’, ‘Creative’ Religious Rights. Extending that thought we are now in a place where society is no longer guided by the millions of individual actions between people but by ever restricting law on the expression of those inalienable rights.

Individuals of power and institutions within government have worked from the inception of the nation’s founding to erode the individual and expand the power of the federal. Within the context of this discussion I would like to reduce the Civil War and its reasons to a simple… it happened. The result, regardless of your viewpoint is the elimination of the 3/5 compromise and the creation of the 13th, 14th and 15th amendments.

Within the context of this subject and the history that leads us to our current legal and indeed social dilemmas are, to me, are three very significant things that occurred after the civil war: 1. Plessy v Ferguson 2. Brown vs Board of Ed. and 3. 1964 Civil Rights Act specifically Title’s II and VII.

Plessy v Ferguson was to me the most egregious reading and distortion of the constitution ever. Its basic premise said that the ‘state’ had the right to group and ungroup subsets of citizens as it sees fit. Clearly not keeping with any assumption of the individual’s right to choose who and how they associate. The ruling of course put blacks back in the social control box as administered by the national government. Some will cite Dred Scot but at least the Supreme Court looked at the original writing and the 3/ths compromise as the basis for its decision… Plessy had, as far as I am concerned, no grounding what so ever… Ironic that the opinion was written by Justice Brown.

Of course Brown v Board of Education righted the 60 year abomination that was Plessy. For the first time since Plessy and only the second time since the adoption of the 14th amendment (a mere 28 years), ALL people had the right to accept or reject the personal interaction with any other… this included private business which was not a publically funded or run enterprise.

After the brown decision individuals began challenging establishments. Some had always wanted to serve whoever wanted to be a customer but were restricted by state law. Those who maintained separate entrances were under pressure by communities to serve… most succumbed to the social or financial pressure that this newly reinstated freedom presented. Some… including some black clubs and theatres chose to remain segregated… and really no one cared because economics would either allow them to succeed or fail… If someone saw these places as bastions of bigotry… economics, not government would be the new equalizer.

Enter the cultural box builders. Rejected in 1957 by the very same people who pushed the 1964 civil rights act, they created a rather obtuse constitutional connection between commerce and civil rights and once again ended the right of free association. A span of another 12 short years before government once again reasserted its right to select and arranged groups of citizens to it simple majority heart’s content and then extend that with extrajudicial judicial agency powers. A keen example of this is the attempt to morph the word ‘Sex’ into the word ‘Gender’ as is the current reading.

Moral values of a nation … at least the United States we not the purview of government. Government was only meant to enforce natural and constitutionally guaranteed rights and not force society, the people’s society, to accept behaviour they choose to reject. The recognize the intentions of the Title II and VII, I truly do, but the fact of the matter is that after 60 of being under this pure antithesis of Plessy, many black are now calling for the right to establish exclusively black business and students are calling for the ability to segregate their dorms. The issue of whether a cake maker has the right to accept or reject business for ANY reason should reside with the business owner, not the government.

I think that we have come full circle with the government overreach and judicial masturbation that created Plessy v Ferguson… if a constitution CAN’T allow for force segregation by the state, how, in any reasonable reading, can it allow for the opposite?

Again, these are just the positions I have arrived at though my reading and understanding… I am sure law has been massaged, warped and ignored via judicial activism, judicial deference and precedent that anyone could conceivably make a case for anything…


Trumps position is to remove all ambiguity and allow the baker to hang signage that refuses service to people of the LGBT community. Maybe we can start hanging signage again differentiating between White and colored bathrooms. Maga


I would have thought you would have preferred anyone right of center in the back of the bus.


Precisely… a private business should be able to hire and cater to who ever they choose… their success or failure will be determined by those business decisions…


Yeah…fuckity fuck!!!


Nasty language earns you a flag.

grow up.


Lmao, well theres the problem with this board right there.


Well, at least since 1964 … got anything of value to add to the discussion?


Their is of course a distinction between protecting a ‘person’ as opposed to their ‘actions’. The person deserves equal protection under the law… the action is only as good as society thinks it is. When it is the ‘action’ that becomes the protected class, then we have the king deciding the moral future of the country and not ‘We The People’

This of course is playing out in the Moore election. It would appear that Washington is a club who feel they have a right to decide who will play and who will not… regardless of what the people say.


Of course ignoring the innocent until proven guilty, now guilty period because we don’t like you seems to be the new way in the USA.


Well… at least every civil rights law since 1964…


I think Sotomayer will find that most people around military installations are VERY mindful of the hand that feeds them… it was true in the 50’s and 60’s for black soldiers and it will be true today… which is why the 1964 Civil Rights act is so egregious to the right of citizens to interact with each other on their own terms… Where it not for Plessy v Ferguson and its antithesis, the 1964 Civil Rights Act, likely their would be far less racial intolerance than having government cram it down citizens thought using dubious readings of the intent of the Constitution. Who is this progressive liberalism going to protect next in the promotion of a healthy, equality based society… pedophiles?