The Supreme Court wedding cake case isn’t about cake at all

Dec 2006
26,829
12,082
New Haven, CT
The Supreme Court Wedding CakeCase Isn’t About Cake At All​

When this story first started making the rounds several years ago, I was one of the ones who said that I felt that the baker had the right to refuse the couple - but for purely pragmatic reasons. One, I couldn't figure out why somebody would want to eat food made by somebody who didn't like them (that's scary to me) and I didn't know what made them think if he did do it, it would be his best work - or even his second-best work! It just seemed silly to me. However, legally, it seemed that if you can't disciminate, you can't discriminate. I didn't fall hard on either side - though I argued in favor of the legalities of no discrimination or legal prejudice.

But, I always felt it was about more than just legalities and religious rights and prejudices. This morning's opinion piece in the Washington Post actually clarified and neatly solidified what had been nagging me in the back of my mind all this time.


The Supreme Court will hear arguments Tuesday in the case of a Colorado baker, Jack C. Phillips, who refused to make a wedding cake for a gay couple. Although Colorado law bans discrimination in public accommodations, some may feel tempted to sympathize with Phillips, who argues that the First Amendment protects both his religious and expressive freedom to choose who buys his cakes.

Most commenters have focused on whether baking a cake is, in fact, a religious or artistic exercise, which is likely a stretch. But even if the court agrees with such claims, Phillips should still lose the case.

The reason is that the Constitution guarantees a right to equal dignity, and turning people away from public accommodations — or slicing up the public by granting individuals a license to “opt out” of the public weal — denies people that dignity. No constitutional right is entirely unrestricted, but in deciding the balance between First Amendment and equal protection claims, the courts have already distinguished between the right to hold or espouse a belief — considered “absolute” — and the right to act on it with impunity. The “free exercise of one’s belief,” the courts have said, is “subject to regulation when religious acts require accommodation to a society.”

While Phillips’s lawsuit is, strictly speaking, a public accommodations case, the Supreme Court’s recent rulings on same-sex marriage bolster the argument against his right to opt out of the public. In his eloquent 2015 decision in Obergefell v. Hodges, Justice Anthony M. Kennedy wrote that gay people are entitled to marry because the Constitution guarantees them “equal dignity in the eyes of the law.”

Access to marriage, he reasoned, is as much about equal dignity and public recognition as tangible rights or benefits. It’s a key point that ties together public accommodations and access to marriage: Neither is solely about enjoyment of material things; both are also about the dignity that comes with fully belonging to the broad public.

This means not only that individuals can’t be denied access to public accommodations (in commerce) and recognition (in marriage) but also that individuals who offer such accommodations and recognition can’t selectively exempt themselves from belonging to that public based on who seeks their service. If the Supreme Court were to find a constitutional right to discriminate, virtually any business could claim exemption from federal and state civil rights laws, shattering protections not just for lesbian, gay, bisexual and transgender people, but also racial minorities, women, the disabled and others.

Indeed, Kennedy’s opinion rested on and expanded decades of legal reasoning that has made the right to equal dignity a central guarantee of our Constitution and has established the role of a robust public in making that possible. Congress passed the Civil Rights Act, declared a Senate committee, to prevent the “deprivation of personal dignity that surely accompanies denials of equal access to public establishments.” Discrimination, it continued, “is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public.” As a Supreme Court opinion stated in upholding the law, its main purpose was “the vindication of human dignity and not mere economics.”

The role of a cohesive public in conferring that dignity is especially pronounced when it comes to marriage. By definition, marriage is a private union that’s sealed by public action. Any two people can pledge a commitment to each other, but it’s the recognition of their community and state that makes it a marriage. Granting individual exemptions erodes that public recognition.

This is why the government’s approval was central to gay people’s quest for marriage equality — for reasons that went beyond simply financial and legal benefits. (Otherwise “civil unions” would have sufficed, offering the same rights without the word “marriage.”) Gay people sought legal marriage because full access to this fundamental American institution was integral to enjoying the equal dignity of first-class citizenship.

And this is why Jim Obergefell went to court: to ensure that his name appeared on his husband’s death certificate. He stood to gain nothing material — just the dignity of having his 20-year commitment recognized by the state instead of wiped into oblivion. It was a case, his lawyer said, about “love surviving death.”

Equal access to the public sphere means equal access to the full public. Nothing less guarantees full dignity. Yet Phillips seeks to opt out of the public in “public accommodations,” something not essential to expressing a religious belief or artistic impulse. Marriage, like commerce, requires a public, and the public is all of us.

By Nathaniel Frank December 4 at 6:08 PM
https://www.washingtonpost.com/opinions/the-supreme-court-wedding-cake-case-isnt-about-cake-at-all/2017/12/04/84b69364-d92d-11e7-b1a8-62589434a581_story.html?utm_term=.c98b73dc62be&wpisrc=nl_opinions&wpmm=1
 
Sep 2017
102
18
Houston TX
I don’t think a free speech case should be decided on the basis of whether or not what is expressed offends someone’s dignity. If a vendor refused to create something that expressed an opinion I cherish, I might feel humiliated, but I would support his right to express or not express whatever he wishes.
 
Nov 2017
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To me this seems like a trivial situation. If someone starts a business, and they put signs up and advertisements stating they make custom cakes and they're open for business, they can't just arbitrarily refuse a customer who is simply requesting something they're already offering.

I've tried to find exact details about what actually happened in this situation, but haven't, so some of what I'm bringing up is assumptions, hypothetical interpretation of the situation (I don't know if it actually happened the way I'm going to describe it or not).

From what I understand about the case, it's essentially - or analogous to - false advertising, and that's illegal. They're putting out an offer for a custom cake, then taking it back because they decided they don't like the customer or what they do in private. This custom cake business owner is essentially trying to stick his nose in his customer's business; they have no right or business doing that.

A person who was refused a custom cake by a business that offers custom cakes is a victim, because they were lied to, they went through the trouble of scheduling a time to go to this cake shop , and spent time and money in gas driving there (or money for a taxi, Uber, whatever).

The cake business owner claims that it's because of his religious beliefs. I'm fine with someone having whatever religious beliefs they want, until they use them to victimize others. Furthermore, once they've extended an offer to make custom cakes to the public, their religious beliefs are no longer relevant. If they're religious beliefs entail a prohibition from making certain cakes, they've willingly chosen to forgo the right to refuse to make such cakes by offering to make custom cakes to the public.

If they don't want to make certain types of cakes, they need to stop offering custom cakes and instead say what they do offer. Or, they need to make their business so that it's not open to the public and only open to, for example, members of their religious group. Simple fix; that's all they have to do.

Personally, I have been curious about where does it actually say anything in their religious texts or beliefs about not making a cake. I've never heard of religious texts having requirements or restrictions on decorating a cake with some icing & plastic pieces. It won't change anything about my position, I'm just wondering about that.

If we let any business renege on an offer, we'd be setting the precedent that anyone can break a contract; that would be disastrous.
 
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Jul 2008
19,064
12,953
Virginia Beach, VA
I’m confused.

If making a cake for a same sex wedding is “endorsing” homosexuality. Then isn’t voting for a sexual predator “endorsing” his behavior?
 
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Nov 2017
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Yes, an artist or anyone in general should never be forced to offer a good or service if they don't want to, but once they open a business and put signs saying they offer custom cakes, what they've done is to say that they want to offer a good or service. So, the claim that they don't want to offer that good or service no longer applies.

They can't bring up religious beliefs because that's irrelevant; they chose to make it irrelevant. The government is not forcing them to be members or participants of the religion they freely chose to have on their own.
 
Nov 2017
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The claim that it has to do with freedom of religion is not true; it's a red herring.
 
Jul 2008
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Virginia Beach, VA
It would certainly be excusing his behavior.
What's the connection?
The connection is that the very people claiming that making a wedding cake for a same sex couple would violate their religion by “endorsing” homosexuality are going to be the ones voting for Roy Moore but are going to ignore the fact that they are “endorsing” a sexual predator.
 
Oct 2017
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The connection is that the very people claiming that making a wedding cake for a same sex couple would violate their religion by “endorsing” homosexuality are going to be the ones voting for Roy Moore but are going to ignore the fact that they are “endorsing” a sexual predator.

These bakers are voting for Moore?

Factually speaking, your red herring stinks.
 
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