Hooray! Colorado Baker wins Supreme Court Decision

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Good news (for once) from the Supreme Court, which decided (7-2) in favor of the Colorado baker who refused to make a wedding cake for a same-sex couple  in 2012.

If you read the CNA-EWTN story about this (see here) it seems to rest on the Court’s support of an artist’s freedom to choose what and how he will express himself.  If you read the Fox News story (see here) the Court’s decision was based more on a technicality than the broad issue of religious freedom:  a principal argument for the baker was that members of the Colorado Civil Rights Commission made statements derogatory of the baker’s religious belief.

The majority opinion was written by Justice Kennedy (the fence-sitter) with Justices Ginsberg and Sotomayer dissenting (a not-unexpected dissent).   Justice Thomas concurred in the decision but wrote a dissenting opinion.

So, while we can be grateful for the decision, it does not seem to give a decisive step forward for freedom of relgious expression, that is to say:  does that state still have the right to over-rule freedom of conscience?  I’ll be interested to see what the legal beagles have to say about this.


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  1. Traditionally, Appellate Courts do try to tailor the opinion only to the specific facts before them, and technically, it should be binding only on those (or ver similar) facts. Of course that does not stop lawyers, and even the courts themselves, from building (or spinning, depending how you look at it) on those decisions. So yes, it is “narrow” giving that one of the facts was the disparaging remark. But it does give a sense of which way the wind is blowing, and how you would make essentially “forced speech in the absence of a disparaging remark” ok seems a rather big ask. But the SRCOTUS is not particularly known for sticking to reason when great social issues* are at stake.

    *Such as affirming people in their selected sexual perversions.

  2. A narrow opinion but also a seven to two opinion, which is not unimportant. Additionally the fact that it turned on hostility shown by the Colorado Civil Rights Commission towards the religious beliefs of the Baker is significant since such Orwellian bodies around the country usually operate on the principle that some animals are more equal than others. This decision makes that harder for them to do, at least when a disfavored religion is involved.

    Here is an example of the hostility the Court referred to:

    On July 25, 2014, the Commission met again. This
    meeting, too, was conducted in public and on the record.
    On this occasion another commissioner made specific
    reference to the previous meeting’s discussion but said far
    more to disparage Phillips’ beliefs. The commissioner
    “I would also like to reiterate what we said in the
    hearing or the last meeting. Freedom of religion and
    religion has been used to justify all kinds of discrimination throughout history, whether it be slavery,
    whether it be the holocaust, whether it be—I mean,
    we—we can list hundreds of situations where freedom
    of religion has been used to justify discrimination.
    And to me it is one of the most despicable pieces of
    rhetoric that people can use to—to use their religion
    to hurt others.” Tr. 11–12.

    I guess this decision puts ignorant bigots in positions of authority on notice that only so much of their bigotry will be tolerated. The overweening hatred that many Leftists have for Christianity will be hard for them to conceal.

  3. My husband’s email was pretty to the point: “news reporting had nothing to do with religion. Top of page three shows that’s BS.”
    Here’s the part in quote:
    Appeals’ brief discussion of this disparity of treatment does not answer
    Phillips’ concern that the State’s practice was to disfavor the religious
    basis of his objection. Pp. 12–16.
    (c) For these reasons, the Commission’s treatment of Phillips’ case
    violated the State’s duty under the First Amendment not to base laws
    or regulations on hostility to a religion or religious viewpoint. The
    government, consistent with the Constitution’s guarantee of free exercise,
    cannot impose regulations that are hostile to the religious beliefs
    of affected citizens and cannot act in a manner that passes
    judgment upon or presupposes the illegitimacy of religious beliefs
    and practices. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508
    U. S. 520. Factors relevant to the assessment of governmental neutrality
    include “the historical background of the decision under challenge,
    the specific series of events leading to the enactment or official
    policy in question, and the legislative or administrative history, including
    contemporaneous statements made by members of the decisionmaking


  4. I know certain people don’t like to admit it or try to downplay it, but in the end, it does matter whether we get more Gorsuches and Thomases on the SCOTUS rather than Ginsburgs and Sodamayors.

    (Incidentally, the spell-check for “Gorsuches” returns “Grouches.” Thought that was funny.)

  5. Tolerance…or I’ll have the government fine you right out of existence.
    I’m sick of the heathens trying to force their “lifestyle choices” upon good God fearing people. Gay? What’s gay about bullying a baker to make a cake he doesn’t want to make. Gay is supposed to be light hearted and whimsical.
    No. Gay means hatred. Poor buggers.

  6. “[D]oes that state still have the right to over-rule freedom of conscience?”
    As a native of Michigan, I’m wondering if the State (either State or Fed) has the right to forbid a religious expression–that particular one being what is known as Female Genital Mutilation. What of parental rights over their children’s medical concerns or religious upbringing?

  7. We’re fussing over ‘religious freedom’ and ‘freedom of expression’ because the culture is to addled to reach for principles such as ‘freedom of contract’ and ‘freedom of association’. It shouldn’t surprise us that the Colorado Civil Rights Commission is populated with sectaries who mix pretentiousness with stupidity with viciousness in equal measure. My parents’ contemporaries are largely deceased now. The quality of mind of those younger among the professional-managerial set has seen unrelenting cohort-by-cohort decline. Let’s hope this decision is a harbinger of improvement and not a speed bump on the road to rule by the snotty and the stupid.

  8. DJH wrote,” I’m wondering if the State (either State or Fed) has the right to forbid a religious expression–that particular one being what is known as Female Genital Mutilation.”

    In Reynolds v US 98 US 145 (1878) – the Mormon polygamy case – the court cited with approval the words of Thomas Jefferson, ‘Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions…”

    The court also cited the preamble to the Virginia statute, drafted by Mr Jefferson, “that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty…”

    The prohibition of polygamy, like the prohibition of female genital mutilation deals precisely with “actions only, and not opinions.”

  9. In assessing the imprortance of any SCOTUS decision, one should bear in mind Roberts J’s complaint in Jones v Opelika [319 US 584 (1942)] that, in some six years, the court had fourteen times reversed one or more of its earlier decisions, many of them recent. He observed that such decisions tended “to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance, in view of current decisions, that the opinion announced today may not shortly be repudiated and overruled by justices who deem they have new light on the subject.”

    As one particularly egregious example, a case, Minersville School District v Gobitis [310 US 586 (1940)] that was decided by a majority of eight to one, was overruled three years later in West Virginia School Board of Education v Barnette [319 US 624 (1943)] by a majority of six to three. Of the six, three of the Justices (Black, Douglas & Murphy JJ) had changed their minds, two (Jackson & Ritledge JJ) were new appointments and one was the former lone dissident (Stone CJ, formerly Stone J)

  10. “[D]oes that state still have the right to over-rule freedom of conscience?”
    Has the Supreme Court permit, allow, sanction the states to over rule Roe v. Wade, Obergefel v. Hodges, Lawrence v. Texas? The rest is censored as only the individual might censor his own speech.

  11. for the courts to eradicate our freedom of conscience, the courts must eradicate our First Amendment, ratified by every state even as they became states. To change our Constitution three fourths of the states need to ratify any change. Still censored.

  12. The Supreme Court redefined the sovereign personhood of the human being in Roe v. Wade, Obergefell v. Hodges, Lawrence v. Texas and Dred Scott. When the Court redefined the sovereign personhood of the human being, the Court preemptively eradicated our First Amendment without three fourths of the states ratifying the change.
    Before the Supreme Court can decide what is Justice, the Court needs to find the human person for whom it decides Justice. I submit that our Supreme Court is not predicated on the sovereign personhood of the human being but on ideology and current trends. The perjury of a female husband and a male bride, the perjury of the lie about human sexuality that it called free speech in pornography, the perjury of Dred Scott not being a fully human being with sovereign personhood, the perjury of not defining the newly begotten human person as a sovereign being with unalienable human rights endowed by the Creator of his rational, immortal human soul. The imposition of atheism by the Supreme Court is perjury and it is appalling. The Supreme Court needs to go back and read, study and live our Constitution…or go where everything is censored.

  13. Jack Phillips had become a celebrity. The Court could not find against him because the people would have rebelled. The next little guy will be nailed to the wall. Wait for it.

  14. “The prohibition of polygamy, like the prohibition of female genital mutilation deals precisely with “actions only, and not opinions.”” Polygamy treats the female person as chattel, somebody to be owned by a male supremacist. Female genital mutilation again treats a sovereign person as a convenience for some non-mentionable, censored horror.

  15. Perhaps one way to enhance the meager protections offered by Masterpiece is to have an alleged Neo Nazi group ask a Jewish bakery to bake a cake in celebration of a holocaust denial rally. I would like to see how the SCOTUS would treat the baker’s refusal in that case – it is one thing to analyze it as a hypothetical, but when those are the actual facts it is harder to dismiss as far fetched (why does it seem only the left does these “set-up” cases, and therefore they always get to control the facts to a large extent).

  16. I suspect in this case that the nut is about status hierarchies as understood among the elite bar and those in their circle of friends. Law is an idiom in which these arguments are expressed and demands certain rubrics, but the semantic content of the law has only light influence on the decision-makers. I’m not speaking of Thomas, Gorsuch, or Alito (about whom I know nothing disagreeable. Homosexuals are high status in those circles, evangelicals are low status. That’s not all you need to know. My guess would be that the behavior of the Colorado commissioners was sufficiently crude and abusive that it offended Kagan and Breyer on aesthetic grounds. Sophistication is also valued among intellectuals. As for Kennedy, I’m guessing that Roberts was the last person who talked to him before he made up his mind.

  17. An interesting article in First Things declares that this decision is NOT a victory for religious freedom,

    If academics say conventional things, they’re tagged as ‘pedestrian’ and regarded with disrespect, no matter how often they make the right calls. What is the function of intellectuals, but to tell us things are not as ordinary people perceive them?

  18. C Matt wrote, “Perhaps one way to enhance the meager protections offered by Masterpiece is to have an alleged Neo Nazi group ask a Jewish bakery to bake a cake in celebration of a holocaust denial rally.”

    Are Neo-Nazis a “protected class”?

  19. f academics say conventional things, they’re tagged as ‘pedestrian’ and regarded with disrespect, no matter how often they make the right calls.

    Since the ‘conventional’ thing has been set by the media– the same media who insisted that the anti-religious motivation had nothing to do with it, the same media that previously routinely used ‘narrow’ to mean number of votes, not scope of ruling, the same media that carefully did not quote the ruling– being unconventional simply indicates that someone probably actually read the ruling.

    The funny thing is, I’ve seen a lot of lawyers/scholars (who make a living at it) who are looking at the ruling and coming up with an ‘unconventional’ interpretation. The same interpretation….

  20. C Matt-
    there were at least four cases where people went in and requested cakes with “offensive” Bible verses, or “Marriage is the union of one man and one woman” type script, where the Colorado thought police upheld the baker’s right to not get involved. That’s part of what established the open religious bias.

  21. Since the ‘conventional’ thing has been set by the media–

    No, Foxfier, the ‘conventional thing’ is that a ruling in favor of the baker against the Colorado commission is of benefit to the baker and his well-wishers.

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