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Old December 4th, 2017, 09:35 AM   #1
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Masterpiece Cakeshop: Colorado court errors

Tomorrow SCOTUS hears oral arguments in the Masterpiece Cakeshop case. The owner, Jack Phillips was ruled by Colorado courts to have discriminated against gays for not making a wedding cake for a celebration of same sex marriage. Although this has been framed as a 1st amendment issue, it is more fundamentally a judicial error issue. The Colorado courts erred. The discrimination verdict against Jack Phillips was based on the false premise that the correlation between same sex marriage and sexual orientation is somehow relevant. It’s not. Because Masterpiece Cakeshop does not service (or decline to service) marriages. It services (or declines) festivities that celebrate marriages. Declining to service festivities for same sex marriage affects more than just same sex couples. It affects parents, other family members, friends, etc. It’s a diverse group, not a protected class.
Despite lack of relevance, this correlation underlies all the key arguments against Phillips. The principal argument invokes a Colorado judicial standard by which discrimination can be proven by impact alone – even without intent. In applying this standard, the Colorado court erred in arguing that Craig and Mullins wouldn’t have been denied service if they weren’t gay:

“But for their sexual orientation, Craig and Mullins would not have sought to enter into a same-sex marriage, and but for their intent to do so, Masterpiece would not have denied them its services.” ((Mullins v. Masterpiece Cakeshop, Inc, 2015 COA 115, Colorado Court of Appeals, Aug 13 2015, paragraph 34)

That argument is obviously wrong. Yes, if they weren’t gay, Craig and Mullins almost certainly would not have married – that part is valid. But the second part is absurd. There are other circumstances under which they might have requested (and been denied) a wedding cake for a celebration of same sex marriage. Anyone requesting a cake for festivities celebrating same sex marriage, would have been turned down by Masterpiece. The Colorado court clearly erred in presuming that “but for their intent to [enter into a same-sex marriage], Masterpiece would not have denied them its services.” The correct statement would have been “but for their intent to engage in festivities that celebrate same sex marriage, Masterpiece would not have denied them its services.” Of course, that statement would have killed the discrimination charge, because the protected class status of those who engage in same sex marriage does not bestow a protected class status on those who engage in festivities that celebrate same sex marriage.

The same basic error occurs again in paragraphs 38 and 39. In paragraph 39, the court appeals to the yarmulke example from Bray v. Alexandria Women's Health Clinic:

“. . . some activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed. 506 U.S. at 270. The Court provided, by way of example, that a tax on wearing yarmulkes is a tax on Jews. Likewise, discrimination on the basis of one’s opposition to same-sex marriage is discrimination on the basis of sexual orientation.”

The standard in the Bray’s case entails 3 conditions:
1) An activity is targeted
2) That activity is “engaged in exclusively or predominantly by a particular class of people”.
3) It is so irrational to disfavor that activity that “an intent to disfavor that class can readily be presumed.”
Not so for the Masterpiece case. Basic analysis shows that only one of the conditions is met:
1) Yes, an activity is targeted. So, the first condition is satisfied. But let’s be clear about what that activity is. It’s not the marriage itself (which the baker has nothing to do with). It’s the festivities celebrating the marriage.
2) The festivities that accompany same sex marriage are not “engaged in exclusively or predominantly” by gays, but rather by a diverse group of people - family and friends, gay and straight alike. So, condition 2 is not met.
3) If you disagree with a festivity, there is nothing irrational about the passive act of simply refusing to create any symbolism in support of it. So condition 3 is not met either.

I predict SCOTUS will overturn the verdict based on such errors by the Colorado courts. This would be the best result for all sides. It would not be a precedent for any 1st amendment right to discriminate. It would merely clarify that declining to express a message does not constitute discrimination.
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