{"id":16123,"date":"2018-06-06T21:21:43","date_gmt":"2018-06-07T02:21:43","guid":{"rendered":"http:\/\/huewhite.com\/umb\/?p=16123"},"modified":"2018-06-06T21:21:43","modified_gmt":"2018-06-07T02:21:43","slug":"when-selling-a-can-of-baked-beans-is-an-artistic-expression-ctd","status":"publish","type":"post","link":"https:\/\/huewhite.com\/umb\/2018\/06\/06\/when-selling-a-can-of-baked-beans-is-an-artistic-expression-ctd\/","title":{"rendered":"When Selling A Can Of Baked Beans Is An Artistic Expression, Ctd"},"content":{"rendered":"

The decision on the Masterpiece Cakeshop<\/em><\/a> has come down from SCOTUS<\/strong><\/em>, and the decision is 7-2 in favor of the baker who won’t make a cake for a same-sex couple’s marriage celebration. As I suspected, SCOTUS<\/strong><\/em> paid no attention to my argument that the baker mistakenly believes a civil wedding is a religious ceremony; their decision appears to have centered on the Colorado Civil Rights Commission’s comments when they had denied Masterpiece’s claim. Or, as several commentators note, including Kevin Drum notes<\/a>, they punted<\/em>:<\/p>\n

But it\u2019s also incomplete. I think it\u2019s pretty clear that the court simply didn\u2019t want to rule at all on this subject.<\/p>\n

Here\u2019s the thing: this is pretty much a no-win situation for the Supreme Court. On the one hand, it involves obvious questions of free speech and freedom of association that are pretty important. They\u2019re so important, in fact, that they apply even in cases of straight-up racism and sexism that have none of the subtleties of Masterpiece<\/em>. The Augusta National Golf Club\u2014a high-profile meeting place of the rich and famous that\u2019s featured on network TV annually\u2014refused to admit blacks until 1990. 1990! They refused to admit women until 2012. 2012! And that was perfectly legal. …<\/p><\/blockquote>\n

Kevin believes the Court will just ignore the entire issue until enough of that generation dies off that it doesn’t matter anymore. It’s really an ugly corner case in which a difficult case is made worse because it involves the arbitrary morality of a supernatural creature. That’s a real problem when trying to formulate societal logic that really works.<\/p>\n

The ACLU<\/strong><\/em> lawyer, David Cole, who lost the case proclaims<\/a> victory in WaPo<\/strong><\/em>:<\/p>\n

The court ruled Monday<\/a> in favor of the baker, but on the exceedingly narrow ground that the state civil rights commission\u2019s consideration was biased by hostility toward religion. Importantly, the court declined to adopt the baker\u2019s principal argument \u2014 and the only argument made by the Trump administration \u2014 that \u201cexpressive\u201d businesses that object to gay and lesbian weddings have a First Amendment right to discriminate. On the contrary, the court reaffirmed our main point: that there is no general First Amendment exception to laws protecting LGBT customers from discrimination. …<\/p>\n

Justice Anthony M. Kennedy, writing the majority opinion, could not have been more clear in rejecting the argument that there is a First Amendment right to discriminate. He wrote that \u201cit is a general rule that [religious and philosophical] objections do not allow business owners .\u2009.\u2009. to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.\u201d<\/p><\/blockquote>\n

But for some nasty language by the Commission, Masterpiece would have lost.<\/p>\n

Andy McCarthy on National Review<\/strong><\/em> is disappointed<\/a>:<\/p>\n

Finally, speaking of the First Amendment, this was a straightforward free-expression case, as Justice Thomas (joined by Justice Gorsuch) explained in separate opinion concurring in the judgment. A wedding cake is an implicit expression of approbation, and in Phillips\u2019s specific vocation, a form of artistic expression. As the Court recounted, the Colorado Civil Rights Commission has on at least three occasions protected bakers who \u2014 quite understandably, and I think admirably \u2014 refused to make cakes that abominated gay couples. That is, the commissioners recognized the palpable free-speech implications. Well, the First Amendment safeguards our right to refrain from expressing not only what the government condemns but what it endorses; indeed, it is the latter that cries out for First Amendment protection.<\/p>\n

The freedom of speech clearly embraces Phillips\u2019s right not to be compelled to engage in patently expressive conduct endorsing gay marriage. The state could easily recognize this right without disturbing its anti-discrimination act \u2014 even neutral laws of general application must accommodate protected speech.<\/p>\n

The Court could have resolved the case that way. But it preferred the consensus appearance of a 7\u20132 vote<\/em> to the faithful rendering of a 5\u20134 decision<\/em>. With due respect to my editorial colleagues, I believe the justices\u2019 obvious reluctance to defend liberty is a setback. The implication is plain: As long as the next \u201ccivil rights commission\u201d is fashionably demure, the next Jack Phillips will lose.<\/p><\/blockquote>\n

He doesn’t notice the Kennedy comment that ACLU<\/strong><\/em> lawyer David Cole quotes. He doesn’t wish to address the damage done to society when someone refuses to provide a service to a protected class. How would Andy feel if a cakeshop run by homosexuals refused to provide cakes to straight couples? Perhaps he’d have the same response: just move along to the next cakeshop<\/em>. Given the ugliness of this situation, it may not be that awful a suggestion.<\/p>\n

On Slate<\/strong><\/em>, UCLA<\/strong><\/em> Law Professor Adam Winkler, on the other hand, rejects<\/a> the interpretation of a narrow ruling based on some close readings:<\/p>\n

Although the justices never explicitly said so, the court seems to have quietly established that business corporations have religious liberty rights under the First Amendment to the Constitution. If that is right, then Masterpiece Cakeshop <\/em>could be a groundbreaking decision with profound reverberations in American law. …<\/p>\n

Often overlooked in the controversy over the wedding cake was that the lawsuit was brought not only by the baker. It was also brought, as the name of the case indicates, by Masterpiece Cakeshop Ltd., a corporation chartered under Colorado law. That corporation was one of the \u201cpeople\u201d claiming its rights were violated. And the Supreme Court\u2019s decision in favor of the baker is also a victory for the corporation\u2014one that may enable future businesses to assert that they too have been victims of religious discrimination. .<\/p>\n

Over and over again, corporations have won rights through Supreme Court decisions that, like Masterpiece Cakeshop<\/em>, provide little or no justification for why corporations as such should be able to claim those rights. In the 1880s, the Supreme Court held that business corporations have equal protection and due process rights with no explanation; the court simply dropped a sentence in an opinion saying they did. In the 1930s, the court ruled that corporations have First Amendment press freedoms, again without offering any reasons for including corporations.<\/p><\/blockquote>\n

That’s just bloody unsettling. OTOH, while stare decisis<\/em> is the generally accepted norm concerning SCOTUS decisions, it’s not unknown to overturn such decisions, in whole or in part. And Professor Winkler writes, perhaps unconscious of the irony,<\/p>\n

Justice Neil Gorsuch, an avowed originalist, began his concurring opinion (in which Justice Samuel Alito joined) by calling Smith <\/em>\u201ccontroversial in many quarters\u201d and citing two law review articles making forceful originalist arguments against Smith<\/em>. It was a clear signal to lawyers that at least some of the justices are ready to read the First Amendment to require exemptions for businesses like the bakery here\u2014and presumably many other businesses whose owners have religious objections to things like same-sex marriage and birth control.<\/p><\/blockquote>\n

I doubt an originalist could possibly make a credible argument that a corporate entity has the same rights as a human being under the Constitution, which makes Gorsuch’s concurrence in this opinion dubious – in my uneducated opinion.<\/p>\n

Earlier in this thread, I had noted that the judiciary was nuts if they strayed into questions concerning who’s an artist and who isn’t, and Dahlia Lithwick, also on Slate<\/strong><\/em>, helpfully notes<\/a> this is something SCOTUS<\/strong><\/em> appeared to be avoiding:<\/p>\n

Consider the extraordinary fact that, as Eugene Volokh notes<\/a>, a case that was initially brought as a religious-liberty challenge, then briefed and argued almost entirely on free-speech grounds<\/a>, was decided Monday on religious-liberty grounds. This is likely because the court, after oral arguments, quickly realized that inserting itself into questions about whether bakers, florists, hairdressers, makeup crews, and busboys are all \u201cartists\u201d<\/a> for First Amendment purposes might be folly. Justices Clarence Thomas and Neil Gorsuch<\/a> seem to be the only justices game to try.<\/p><\/blockquote>\n

Dahlia believes this is primarily about Justice Kennedy:<\/p>\n

To the extent Masterpiece Cakeshop<\/em> resolved the issue it was granted to take on\u2014whether or not the dignitary interests of religious dissenters can override civil rights and public-accommodations laws\u2014the rule that emerged is simply that we must speak civilly toward one another. …<\/p>\n

But constitutionalizing major civil rights disputes based largely on who spoke more rudely to whom feels an awful lot like pandering to the Suffering Olympics discourse that serves only to convey that whoever feels the most dignitary injury will ultimately prevail. The reason the court agreed to hear Masterpiece Cakeshop<\/em> in the first instance was to resolve that impasse. Rooting a decision in whose words were most hurt-y to Kennedy\u2019s ears adds nothing but confusion.<\/p><\/blockquote>\n

Ouch.<\/p>\n

There’s lots more out there. Professor Winkler leaves me quite unsettled, as loopholes like the one he thinks he sees are fodder for lawyers everywhere. Otherwise, it’s a little hard to see this as much else than kicking the can down the road, hoping time will dissolve the problem for them.<\/p>\n","protected":false},"excerpt":{"rendered":"

The decision on the Masterpiece Cakeshop has come down from SCOTUS, and the decision is 7-2 in favor of the baker who won’t make a cake for a same-sex couple’s marriage celebration. As I suspected, SCOTUS paid no attention to my argument that the baker mistakenly believes a civil wedding \u2026 Continue reading → <\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"nf_dc_page":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-16123","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts\/16123","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/comments?post=16123"}],"version-history":[{"count":2,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts\/16123\/revisions"}],"predecessor-version":[{"id":16125,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts\/16123\/revisions\/16125"}],"wp:attachment":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/media?parent=16123"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/categories?post=16123"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/tags?post=16123"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}