A deeper look at the SCOTUS cake decision

http://cdn.cnn.com/cnn/2018/images/06/04/16-111_j4el.pdf

In typical SCOTUS fashion, the justices waffled. The majority decision by Justice Kennedy states in part: "One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all. In defining whether a baker’s creation can be protected, these details might make a difference."

The word "might" appears twice. As SCOTUS decisions are parsed down to the kerning, focusing on the word "might" as mentioned twice in the same paragraph is significant.

The next 'graph adds to the consternating confusion. 

In short, SCOTUS did not rule on the First Amendment Freedom of Speech issues in this case. All it did was say the Colorado Commission was hostile toward religion and so the decision was invalidated. Other Commission cases presented as evidence and actual commissioners' testimony during their hearing clearly back this up.

PRECEDENT

Justice Kennedy says the right to religion is not absolute. Duh. Human sacrifice is not allowed. More pertinently, "The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws."

In other words, your freedom of and from religion can be stopped by government, according to the court. Some past examples:

A church rents out its social hall to the public. By setting precedent, the church has to rent it to anyone who meets the rental agreement. Renting property is subject to anti-discrimination laws.

MUST SERVE

The majority decision is packed with references and past SCOTUS cases that say a business must serve the public. "Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law."

I have a fundamental objection here. Government should not have the ability to force a business to serve anyone. If a business refuses to serve any customer for whatever reason, that is the business owner's right. If people do not like it, they should take their money elsewhere. If the denial of service is egregious enough, then society forces should force a change, not government. In other words, boycott the business and encourage others to do so. Put enough economic and social pressure on the business to either force a change or drive it out of business.

SCOTUS admits that preachers cannot be forced to perform religious ceremonies that go against their beliefs. However, the religious belief exemption should have limits, the High Court said, "Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations."

FREE SPEECH

Too many people believe 1A only covers what someone says. I have seen people who believe the written word is not subject to free speech nor copyright. In fact, freedom of and from speech applies to the written word, spoken word, sign language, images, dance, architectural renderings and so on. A good way to know if it is free speech is to look at copyright. Can you copyright it? If so, it is almost guaranteed to be free speech. May be an exception to this rule; I cannot find one. 

CONCURRING OPINION

"I join the Court’s opinion in full because I believe the Colorado Civil Rights Commission did not satisfy that obligation. I write separately to elaborate on one of the bases for the Court’s holding." "I accordingly concur."

Kagan's opinion, joined by Breyer, runs back to three other cake cases brought to the Colorado Commission. Bakers refused to make cakes demeaning of same gender marriage. She says that was appropriate because the bakeries would refuse to bake a cake demeaning anyone. She does not supply proof that the other bakeries would deny demeaning cakes. The dissent does provide that proof.

Suppose she is right. If so, that is equal treatment under the law. It is also discrimination, which is illegal under Colorado law. Or is it? An opinion may be changed. Colorado law and federal says everyone must be treated equally under the law irrespective of things they cannot change like sexual orientation, race, handicap and gender. Discrimination based on a customer's opinion or other matters which can be changed (pull your damn pants up) is allowed.

Some people believe a gender can be changed. Some see race as equally malleable. If so, discrimination based on gender and race must also be allowed.

Let's make this more clear. This is a legal matter. The High Court specifically did NOT use the word gender. It used the word sex. As this is a legal matter, we MUST stand on the words used. 

In the opinion, Kagan wrote: "As this Court has long held, and reaffirms today, a vendor cannot escape a public accommodations law because his religion disapproves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait."

That being said, and leaning on other court decisions, sex can be changed. If it can be changed, it may be discriminated against, or we have a contradiction in the law.

NO FREE SPEECH

Kagan also sees this as not a 1A speech issue. "It was simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike." The cake baker said he was being called on to create a special, unique cake for the event that required him to use his developed decorating skills.

I wonder if the couple would have accepted a plain sheet cake with plain icing and no decoration.

Other judges also wrote separate opinions splitting legal hares and hairs. Not going into them.

Much was made of the 7-2 decision with some calling it narrow. The decision was narrow in scope, but not in the justice's view of what happened.

DISSENT

Ginsberg and Sotomayor were the standouts. Ginsberg's opinion leans heavily on the refusal to sell the cake. She pretty much dismisses the overt hostility as displayed by the Colorado Commissioners as irrelevant, even though one compared the baker's religious views to views on slavery and the Holocaust. She says "nor do the comments by one or two members of one of the four decision making entities considering this case justify reversing the judgment below."

The Colorado Commission is an appointed body of 7 people. It does not have the power to fine anyone it finds guilty of a violation.

Ginsberg: "Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decision making, of which the Commission was but one."

Except the binding decision was made by the Commission. Courts were later asked to rule if the decision was legal or not.