The Great Supreme Court Wedding Cake Face Off - Should Be A No Brainer

It's safe to say that businesses across the wedding industry will be closely watching what happens today when the U.S. Supreme Court convenes to hear the case of a religious Colorado baker who refused to do work for a gay couple who were getting married.  At issue is whether Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, had the legal right to turn away fiancés Charlie Craig and David Mullins when they asked him to bake a wedding cake in 2012.

Phillips, a strict religionist,  contends his cakes were art and that doing a "gay cake"  would defile that art and so  violate his Christian values .  Also his right to free expression; Craig and Mullins counter that it’s discriminatory to refuse them a service offered to other customers for a business in the public domain..

Supporters of Phillips argue that if he loses his legal fight then like-minded entrepreneurs with a religious objection to same-sex marriage effectively would be "barred" from doing wedding work. (In fact it would be their choice not to do such work, i.e. opt out.)  The claim is that a loss would also “provide a road map for litigation against Christian photographers who are bound by religious conviction not to offer their artistic talents to photograph a same-sex wedding ceremony or celebration,” wrote the International Christian Photographers in a brief filed to the high court.

Of course, all of this is codswallop which mixes apples and oranges within a civil,  legal framework. At issue then, is whether the cake maker - and the assorted Xtian photographers for that matter- have entered into a business or not. If not, if they simply follow their art or self-expression - with NO public sales or commerce- then they are not obliged to do anyone's bidding. They are not in the commercial marketplace but operating in their own private domain.

If, however, they are businesses and operating in the public, commercial sphere, then no such rights apply. That's why this ought to be a no brainer for the Supreme Court. Consider the consequences if Phillips' argument and associated  memes were extended willy-nilly so that anyone could apply it. Pharmacies could refuse serving people they regarded as "violating God's  laws"   - say denying birth control pills to young, single women ..

Owners of football teams could well decide that they want no Jews, blacks, or gays entering their stadiums and they might put that into place. Private Catholic hospitals -operating as businesses - might decide that they want no Muslims, Jews or gays on their premises either. Restaurants would feel free to bar anyone they think is marginal, including those who look like 'thugs' - or  whoever doesn't fit flitty criteria like hair length, or quality of dress.

In other words, you'd invite a society bordering on chaos.  Thus,  attorneys aligned ideologically with Craig and Mullins argue that a ruling in favor of Masterpiece Cakeshop would open the door for widespread discrimination — starting with weddings and spiraling outward- as I described above. In the words of one of the lawyers for the Denver Metro Chamber of Commerce:

"It is not hard to imagine the claims that will follow this case: A jeweler may argue that his religion forbids him from selling wedding rings to an interfaith couple; a shop owner may refuse service to women customers to avoid contact prohibited by his religion,” 

What would there be to stop it? Well, nothing, if each little special "private business"  decides to whom it will sell and who will be rejected as miscreants. Here's the bottom line truth: The restaurateur, cake maker, photographer is afforded certain privileges (via a licensing) to trade or provide services (such as food) in the public domain. However, their so called "freedom" (to trade)  is limited. Hence,  that can't include refusal of service unless there are extenuating circumstances, i.e. the customers enter drunk and disorderly. The trader doesn't have the latitude to refuse service on basis of race, skin color, OR the customer perceived as violating the trader's religious predilections..

For his part, Phillips,  in one brief, argues the “market already provides existing means to address this (issue), such as private websites apprising consumers of professionals in a geographical area who will celebrate same-sex weddings,”.  But he totally misses the point. That is, the existence of these other special  or private "niche" services have nothing to do with his own setting up a business that is supposed to provide general services to the whole public. You can't say "I don't have to obey common trade practices because other businesses will".  That's not the way business works in this country,

The dueling arguments are what one wedding professional described as the “unfinished business” of an industry that’s had to rapidly adjust to shifting American attitudes toward same-sex marriage — support since 2001 has risen from 35 percent to 62 percent, according to the Pew Research Center — culminating with its 2015 legal blessing by the Supreme Court.

This is why the state Civil Rights Commission “declared Phillips’s religious beliefs about marriage to be discriminatory”.   

According to one expert  (and publisher) on the wedding cake business, Kathryn Hamm:

“The vast majority of the industry is on board with working with same-sex couples,” 

One big reason for this is to do with the clientele. Most weddings are for young people, and most young people accept same-sex marriage — an attitude that weddings vendors increasingly have adopted too, Hamm said.

But she added that acceptance is not universal and some same-sex couples still experience discrimination — which is why legal protections are necessary.

How will the Court ruling go? I don't know but it is safe to say if the justices truly adhere to the legal principles and aren't swayed by emotions (or "free speech" red herrings), they will side with Craig and Mullins.  Not because they are gay and gay people "deserve a break".  But because the operation of the law  in the commercial trade sphere cannot be a free for all where everyone does what he wants - selling services to some because they conform to one's notions of  "self expression", rejecting others out of a sense of violating their  religious faith or personal dignity. That is a prescription for economic anarchy.

Selection of people who benefit from your "art" works is only allowable if the cake makers, photographers etc. are merely pursuing hobbies with no entry in the commercial domain, and no profits. Hobbies are private matters and certainly each person can pursue them as modes of self expression, as he or she sees fit. No law obliges a hobbyist to cede his interest, art or craft to others for their benefit. But - if he's out to make money in a pubic trade, that is a no go. 

When the two sides appear today for oral arguments at the Supreme Court, much of the focus will be on Justice Anthony Kennedy — a frequent swing vote on the nine-member court. According to Alan Chen, a professor at the University of Denver’s Sturm College of Law, Kennedy’s longtime support of free speech could come into play.  According to Chen:

"That suggests that he might be open-minded to the baker’s claim that there is some expressive component to baking a wedding cake that distinguishes it from other businesses,”

Expressive component? Give me a break. That would be a dangerous path to take indeed and one sincerely hopes that Justice Kennedy has enough sense to see it.  If we willy nilly allow every business to run according to "expressive components" we can be sure bedlam will be the result- utter and total. This is a slippery slope no justice ought to be going on - especially Justice Kennedy.

Blockbuster Rulings: The Court Giveth and the Court Taketh Away

Chris Hayes last week predicted accurately that the Supreme Court would split on two blockbuster issues: the Voting Rights Act and the right to gay marriage – hamstrung by the federal defense of marriage act. Yesterday one ruling came down which still has the liberal base in a fit, which is that the Court struck down key provisions (based on ‘preclearance) in the 1965 Voting Rights Act. The ruling was described as “shameless” by the Washington Post and a terrible step back by others. Make no mistake, the law was and is needed in the once Jim Crow South which is still Jim Crow in many areas.


As one Court watcher put it last night on Hayes’ ‘All in’ (MSNBC), it is “like taking an umbrella and throwing it away because you don’t believe it will ever rain again”. In many respects she’s correct. And nearly all the recent electoral problems - looking at the last presidential election – were only resolved because of the provisions that were struck down yesterday. This means that minus those ‘preclearance’ provisions we can expect an unseemly surge in voter ID laws across the nation and especially in the states of the former Confederacy. Those laws will be as formidable an obstacle to African –American voting rights as the literacy and other tests once administered in the South to blacks before the Voting Rights Act was passed.


To see more on this, gain deeper insights into the role of the corporatocracy, check out:

http://www.smirkingchimp.com/thread/richard-eskow/50279/the-court-the-corporate-coup-and-the-call-to-struggle


Basically, Chief Justice Roberts (in league with his coterie of conservative clowns) was saying that: “Hey, we have had enough change and progress on this issue, we don’t need any more!” Which is daft and stupid. Because make no mistake 48 years has not been sufficient to alter enough minds in the Deep South to ensure African –Americans' voting rights aren’t eroded. We have also seen in the 2012 election all the ruses and tactics used to try to suppress African-American votes. One case in  (Shelby) Alabama was especially prominent, as well as another in Texas. Thanks to the VRA’s provisions, attorney General Eric Holder was able to challenge the state decisions and come down on the side of voters. Without such DOJ intercessions Obama may well have lost back in November, who knows?

What feasible responses are there? One judicial watcher also appearing on Hayes’ show noted there are two: 1) Getting congress to re-establish the key provisions of the VRA, which is about as likely as aliens landing from Tau Ceti and helping Ed Snowden escape this surveillance planet, and 2) An affected person of color with “standing” bringing the case again before the courts. Of course, that would portend a long drawn out court battle just to get back to the Supremes, and there’s no assurance that its composition would change to be more liberal or disposed to retain the provisions.


On the other hand, this morning’s just released ruling has seen a 5-4 decision that overturns the Federal ‘Defense of Marriage Act’- which has been ruled unconstitutional. Swing Justice Anthony Kennedy was again the pivot vote as he was in the Voting Rights Act, but his language didn’t mince words, writing:


“DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”


He added that it also “demeaned” those in same sex marriage or aspiring to such, depriving them of rights, benefits that are conferred on others.

The court said DOMA violated equal protection to provide benefits to heterosexual couples while denying them to gay couples in the 12 states plus the District of Columbia where same-sex couples may marry. The law passed by bipartisan majorities in Congress and signed by President Bill Clinton recognized marriage as only between one man and one woman.


Same sex couples will now be able to draw on the same benefits that attend to hetero –couples, including access to estates- property, pension and joint tax filing benefits, as well as health care benefits.


For any true American dedicated to the ideal of liberty and freedom, this is a ruling that ought to be extolled, together with the Court basically punting on the Proposition 8 issue  - because of "lack of standing" - meaning California same sex couples will now be empowered to pursue their goals there.


Whether this DOMA ruling compensates for the repeal of the 1965 Voting Rights Act remains to be seen. My take is that if you erode one segment of the population's liberties you ultimately erode all others. You can't have "cafeteria style" dispensing of liberties or rights, and let us recall that voting is not assured under the Constitution, amazingly enough.