Prediction: Supreme Court Will Punt In Fake Marriage Cake Case

Stream — Prediction: Supreme Court Will Punt In Fake Marriage Cake Case.

A frisson of delight ran through the Christianity community when it was announced Monday the Supreme Court will hear the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission.

In 2012, Masterpiece Cakeshop owner Jack Phillips was asked to bake a fake marriage (or gmarriage) cake for two men. He refused. He told the men, “I’m sorry, but I can’t promote messages that violate my beliefs, though I’d be happy to sell you anything else.”

For his faith and via the machinations of the ACLU — Anti-Christian Liberals Union? — he was hauled in front of a tribunal and told he must bake the cake.

According to the Alliance Defending Freedom, the judge ordering the forced fondant “held that coercing Jack to participate in a same-sex ceremony did not ‘unduly abridge [his] right to the free exercise of religion.'”

It was a long legal rode from there to the Supreme Court, which said it will decide whether Phillips discriminated or not.

This is being interpreted as a kind of small victory because, of course, there is the chance the Court sees reason and does the right thing.

Don’t count on it. My prediction is the Court will punt.

The Court punts

When the two same-sex attracted men came to Phillips and demanded a cake, fake marriage was not legal in Colorado, and of course not yet in the United States as a whole. The homosexuals were going to go through a fake marriage ceremony in Massachusetts, where gmarriage was legal. And then the men were going to use the cake made by Philips in a reception to take place in Colorado.

There’s the out.

One guess is the Court will say Phillips didn’t really “discriminate” because fake marriage was not yet legal in Colorado. He was still, they might argue, within his rights to refuse to knead the dough. Why?
The cake was not legally a fake marriage cake, just an ordinary cake, and by law bakers are allowed to refuse to bake ordinary cakes.

This kind of decision will not be satisfactory. What Christians — and Muslims and others of orthodox faiths — want to know is if they are allowed to discriminate now.

Discrimination is necessary

Make no mistake: Phillips did discriminate against the two men, and God bless him for it. Religion by definition is discrimination. A religion eschews one belief and accepts another. A person following his religion acts on these defined beliefs. In other words, a religious man must discriminate if he wants to remain faithful.

Phillips knew the difference between real marriage and fake. His religion does not allow him to participate actively in fake marriages. He discriminated. He should have been allowed to discriminate.

[…]

Head on over and finish your slice.

34 Comments

  1. There is a Catch 22 in all of this: According to the current claims of the media and progressives, government failure to pay for something IS descrimination and prohibits the free exercise of the activity. People will DIE if the government does not pay for medical care. People will DIE if the government does not back all forms of marriage, animate, inanimate or otherwise. People will DIE…..You get the idea. But then there’s religion, where people will DIE if the government does not pay for religion, except that only applies to Muslims and no one else. The government should be paying for cakes for people who are gay and designating a baker for them lest they DIE from humiliation when the government has not yet perfected “you MUST believe” that everything is right if it’s what the government says is right and someone won’t bake them a cake. Then they would leave alone the person who did not want to bake a cake because it destroys their freedom of religion. At some point, it will become necessary for the government to pay for all versions of religion, let people DIE without government support thereof. It’s coming. Be ready. We can’t have people dying because the government wouldn’t pay for their activity, can we?

    There was no problem in the original version of the Constitution because the government was not the source of all life and not everyone DIED without government support. I would suggest going back to that, but I’m not sure there is enough room to bury all the bodies and cremating them would increase global warming.

  2. I take exception to several elements of this work. For example: it’s “road”, not “rode”, if the noun is intended, and I think it is; also, one does not knead dough to make a cake.

  3. ACLU — Anti-Christian Litigation Unit. The left-leaning courts have been their weapon for decades. To be fair, though, on occasion their defense of the 1st Amendment’s free-speech clause has benefited Christians as well as others.

  4. What if the happy couple (Remember when gay meant happy?) wanted their cake decorated with images of homosexual acts. Would the baker be forced to provide that? Or, is such already the case?

  5. I just thought of something; What
    if a consenting adult wanted to marry himself (or herself or itself)? Actually, I do hear the suggestion made from time to time, though not quite in those words. And of course, one is reminded of the man from Nantucket . Speaking of Nantucket, perhaps now the good people of Martha’s Vineyard will want to change the name of those cliffs back to “Gay Head”…

  6. Briggs,

    Completely OT but what does a person without a job do for vacation? Work for several weeks?

  7. You just have to vacate to go on vacation, Doesn’t matter whether or not you have a job.

  8. The Thirteenth Amendment to the United States Constitution abolished slavery and involuntary servitude, except as punishment for a crime. The Federal courts have all ruled that you can’t force a person to work for you or penalize them if they refuse to work for you. This ought to be a slam dunk unless the court rules that refusing to bake a cake for a homosexual is now a federal crime.

  9. A tradesman or craftsman can refuse to accept a contract for a custom product. The cake could be a standard off-the-shelf product, but one-off additions requested by a customer are customisation.

  10. You just have to vacate to go on vacation, Doesn’t matter whether or not you have a job.

    The question was and still is: what is being vacated? The normal routine, yes? And if that is unemployment …?

  11. The normal routine, the habitual abode, the usual state of consciousness–yes any of these.

  12. Conservative really have no understanding of the law, which is why they lose at the end.

    First of all, the SCOTUS Judgment on gay marriage in 2015 only define marriage from the point of view of the government. It affect how the government can consider same sex marriage couple. Before the judgment same sex couple couldn’t have any of the advantages given to married couple. Married couple have a lot of advantages, mainly financial, but also medical and legal.

    Second, SCOTUS decision doesn’t effect how any church consider marriage. No Church is forced to perform same sex marriage. No Catholic Priest ever performed same sex marriage in a Catholic Church. If he acts as an employee of the city performing marriage ceremony he is either forced to perform them or have someone else performing them at his place.

    “One guess is the Court will say Phillips didn’t really “discriminate” because fake marriage was not yet legal in Colorado. He was still, they might argue, within his rights to refuse to knead the dough. Why?
    The cake was not legally a fake marriage cake, just an ordinary cake, and by law bakers are allowed to refuse to bake ordinary cakes.”

    Only an idiot could come up with something like that.

    No place of business are allowed to discriminate in the US since the Civil Right Act of 1964. So a baker cannot refuse to sell an ordinary cake if the customer is paying the asking price.

    Also, if the marriage is not real than the baker cannot use a religious exemption to bake the cake. Baking a cake doesn’t make the baker a participant of the ceremony. Just like the manufacturer of chair and table doesn’t participate in that same ceremony because its product are used in it.

    A company is a moral person, not a physical one. The owner of the business is not the business itself, which gives a lot of financial advantages. It has some legal right but not all the right that a physical person has, though the Hobby Lobby case muddled the water some in finding a way for them to not have their insurance cover contraceptive pills, which their employee still can get some other way.

    @brian (bulaoren)
    “What if the happy couple (Remember when gay meant happy?) wanted their cake decorated with images of homosexual acts. Would the baker be forced to provide that? Or, is such already the case?”

    You can look at the Hands on Originals (HOO), a Christian T-shirt company in Lexington, Ky. case below:

    https://www.washingtonpost.com/news/morning-mix/wp/2015/04/28/christian-t-shirt-company-doesnt-have-to-print-gay-pride-festival-shirts-court-says/?utm_term=.1808bd094636

    Or the Azucar Bakery case:

    http://www.thedenverchannel.com/news/local-news/denvers-azucar-bakery-wins-right-to-refuse-to-make-anti-gay-cake

    The huge difference is that they offered to make a cake in the form of a bible, while in the other case they refuse to provide any cake.

  13. A company is a moral person, not a physical one

    Where do you get your ideas?

    A corporation is a legal person. It is a fiction applied to a group of people to centralize actions such as taxation to one entity. The Supreme court has consistently upheld the First Amendment rights of corporations under the theory that a group of people have the same First Amendment rights as a single person.

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

    Although it says “Congress”, it has been applied to all governing bodies in the U.S.
    Using the same theory a partnership is also a group of people and therefore their First Amendment rights cannot be abridged.

  14. There’s a number of legal issues on the “gmarriage” theme I’ve yet to hear/read any good explanation for; one is very basic:

    – How does baking a wedding cake for a gay couple constitute an infringement on a baker’s religious principles [when the baker finds gay marriage theologically unsupportable)?

    To argue that baking the cake–for money–constitutes an endorsement of the marriage contrary to the baker’s religious beliefs (as opposed to merely being capitalistic transaction: cake exchanged for money) is a bit tenuous.

    If you accept that you’d have to accept that the baker could discriminate if/when s/he thought a given male/female marriage would violate their religious beliefs (and there are ample reasons where this could be invoked). In other words, accepting that premise opens up extraordinary opportunity to discriminate, with a ‘personal religious infringement’ becoming an unassailable rationale.

    Sylvan touched on the key them — in business, discrimination is illegal.

    What many on the religious right fail to grasp, or refuse to acknowledge, is that there are two very distinctly different forms of marriage:

    1. A state-granted set of rights that translate into a variety of legal benefits (e.g. the right of assets to convey after death of a partner [probate]);

    2. A religious sacrament.

    Those are two INDEPENDENT facets of marriage — neither necessarily conveys in tandem with the other, and very often they are irreconcilably separate. The Catholic Church, for example, will refuse to confer the sacramental marriage ceremony and what follows after many civil unions (e.g., if a divorcee [by the State] remarries when the Church sees the original sacramental marriage as remaining intact.

    Too many on the religious right try to pretend that a civil and sacramental marriage are somehow interchangeable.

    Consider a scenario whereupon distant cousins, say both males, decide to get married in a civil ceremony before one dies — solely to ensure property rights convey within the family. Is that really a “sin” or just legal brinkmanship to avoid taxes?

    (that scenario is inspired by the supposedly true story of a wealthy Roman who held a lavish funeral for a fly, asserted to be a cherished family pet, in order to escape certain taxes)

    Also consider that States have rights relative to the Federal Government — and those States that permit gay marriage are expected to receive reciprocity by other states and/or the Federal government. There’s some considerable legal nuances on this theme (Federal recognition of State laws) alone (e.g., the Feds cannot argue that one’s driver’s license is no good because it was issued by a given state). Where those kinds of boundary lines go is commonly the realm of the Supreme Court. Whatever they decide will likely be interesting.

  15. The Thirteenth Amendment to the United States Constitution abolished slavery and involuntary servitude, except as punishment for a crime.

    Apparently, being declared a “public accommodation” by an anti-discrimination law is tantamount to being duly convicted of a crime.

    … in business, discrimination is illegal.

    In other words, some believe that offering goods or services for sale means waiving one’s rights.
    I’m old-fashioned enough to subscribe to the notion that the only legitimate function of any government is to secure my God-given rights. If I have a God-given right to force someone else to do business with me, it is not self-evident.

  16. Dav,

    “Where do you get your ideas?”

    Apparently you have no idea or understanding of the laws.

    1) These are not my ideas. It is what the law is.

    Definition of corporation (or company)

    “A legal entity, created under the authority of a statute, which permits a group of people, as shareholders, to apply to the government for an independent organization to be created, which then pursues set objectives, and is empowered with legal rights usually only reserved for individuals, such as to sue and be sued, own property, hire employees or loan and borrow money.”

    http://www.duhaime.org/LegalDictionary/C/Corporation.aspx

    Incorporation offers the owner many advantages and protections. Mainly the owner of the business is not the business. They are 2 different legal persons.

    In this case, Masterpiece Cakeshop, Ltd. (meaning: Limited Liability) is a corporation. It is that corporation that has been sued, not the Baker Mr Phillips.

    Mr Phillips is only an employee of the corporation Masterpiece Cakeshop, Ltd. Although a corporation has first amendment rights like freedom of speech (as seen in the citizen united decision), it does not have religious belief. Although, I said before that the Hobby Lobby case muddled the water in giving closely held corporation some religious right; the Hobby Lobby case was between it and the government and was not about discrimination. This case is between a corporation and a couple. In this case, the gay couple do have religious belief protected under the law and constitution. The corporation doesn’t have that same right. Mr Phillips belief are of no effect in the case since he chose a legal form for is business that protected is personal liability. Mr Phillips is not the bakery.

    2) “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”

    A bakery is not an establishment or religion. It is not a Church and it doesn’t have any religious belief or practice. It cannot go to church, it doesn’t pray. Congress and SCOTUS cannot force the Catholic Church to perform a gay wedding.

  17. These are not my ideas. It is what the law is.

    Well not really.

    o) the most common form of business is a Sole Proprietorship which is NOT a company as it has only one owner. Legally, this type of business does not exist separately from its owner (a DBA must be filed if the business name is not the owner’s name)
    o) a corporation is a fictitious person and not a moral person.
    o) incorporation separates the owners from liability (designated by “inc.”) and allows the company to be treated as a single entity. No other form of business has personhood.
    o) a corporation is a company but not all companies are corporations. (A limited partnership for instance or a general partnership)
    o) The reason for a limited partnership is to minimize liability (vas opposed to that of a general parternership)
    o) You evaded the upholding of the First Amendment rights of corporations and the reasons for doing so
    o) You evaded the point that the reasons for upholding the also applies to companies in general.
    o) You apparently didn’t read the link you gave. You should try it
    o) … oh, what’s the point? You’ll merely continue to blather.

    A bakery is not an establishment or religion.

    A bakery IS an establishment. What are you trying to say? That pesky English language you claim to understand yet still find very difficult bite you again?

    No a bakery is not a religion and neither are citizens but both sole proprietors and joint owners of a business who ARE citizens have the right to freely exercise their religion and exercise freedom of speech. The Supreme Court has affirmed this multiple times.

  18. Dav,

    “o) the most common form of business is a Sole Proprietorship which is NOT a company as it has only one owner. Legally, this type of business does not exist separately from its owner (a DBA must be filed if the business name is not the owner’s name)”

    i) Mr Phillips created a corporation called Masterpiece Cakeshop, LTD. Which has nothing to do with what you describe. Also, the type of business you described means that the owner of the business is personally liable, and offer much less financial advantages.

    http://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/

    “o) a corporation is a fictitious person and not a moral person.”

    d) They are both synonymous!

    See this:

    “Artificial Person Law and Legal Definition

    Artificial person is an entity created by law and given certain legal rights and duties of a human being. It can be real or imaginary and for the purpose of legal reasoning is treated more or less as a human being.For example, corporation, company etc. An artificial person is also referred to as a fictitious person, juristic person, juridical person, legal person or moral person.

    “o) incorporation separates the owners from liability (designated by “inc.”) and allows the company to be treated as a single entity. No other form of business has personhood.”

    I)” Ltd means limited liability, and this designation is implemented when the company starts its processes. An Ltd format is commonly used for small companies that have a limited number of owners, and it can be similarly associated with a Limited Liability Company (LLC) or a corporation. This set-up allows for more flexibility for the owner(s), and the single owner can be treated as a disregarded entity.”

    Read more: Difference Between Inc and Ltd | Difference Between http://www.differencebetween.net/business/difference-between-inc-and-ltd/#ixzz4lSS5Uru2

    “A bakery IS an establishment.”

    o) instead of “or” it’s “of” as stated in the first amendment

    “No a bakery is not a religion and neither are citizens but both sole proprietors and joint owners of a business who ARE citizens have the right to freely exercise their religion and exercise freedom of speech. The Supreme Court has affirmed this multiple times.”

    t) provide one example that are between two citizen, or corporation vs citizen. Hobby Lobby was between a corporation and the government.

    When the conflict is about competing equal right between two citizens. The court always sides with the party that suffer the greater damage. The baker who bake a cake and get paid for it suffer no damages. The customer who is refuse a service that he can legally buy (unlike alcohol for kid) is the one suffering the greater damages. 1) his money doesn’t have the same value than that of other citizens, 2) his need are denied.

  19. Quite a mishmash you’ve provided with lots of non-sequitur. The usual blather.

    Not at all sure why you are mentioning Hobby Lobby or what you think it does for your position.

    The Supreme Court argued that the purpose of extending rights to corporations is to protect the rights of shareholders, officers, and employees. It said that “allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.” (https://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf p24). The court held that the HHS contraception mandate substantially burdens the exercise of religion.

    Note the affirmation of the First Amendment rights of Hobby Lobby here and why it applies.

    The baker who bake a cake and get paid for it suffer no damages.

    As if money solves everything. The bakery owners see providing the cake as participation in an immoral act and are under threat by the state for not participating. Such an action by the state effectively is prohibiting the free exercise of religion.

    This obviously is what the Supreme Court will be considering. The precedent given by Hobby Lobby along with other First Amendment issues such as campaign contributions (freedom of speech) suggests the free religious exercise of the owners will be upheld. OTOH, they could punt on a technicality as Briggs suggests. We’ll have to see the actual arguments presented.

  20. Dav,

    Then what will be the SCOTUS ruling?

    My prediction is that they will withhold the lower court ruling by at least 5-4 or by as much as 7-2, Thomas and Gorsuch, for whom corporation are gods, being the dissenting voice. Roberts and Alito will probably join them.

    Kennedy who timidly supported the Hobby Lobby case because there was an alternative to the mandate and that the ruling was very limited in application.

    The mention of Hobby Lobby is to provide the difference between cases that are between to citizen with equal right (i.e. the one we are discussing) versus cases that are between a citizen and the Government. The government having no religious right at all.

  21. Dav,

    “This obviously is what the Supreme Court will be considering. The precedent given by Hobby Lobby along with other First Amendment issues such as campaign contributions (freedom of speech) suggests the free religious exercise of the owners will be upheld. OTOH, they could punt on a technicality as Briggs suggests. We’ll have to see the actual arguments presented.”

    I was at work so I didn’t have time to respond to this.

    It is obvious that SCOTUS won’t be considering the Hobby Lobby case or the Citizen United case. These cases where between the government and citizens. The government doesn’t have rights. it applies law. The Court is there to determine if the government applies the law according to the constitution.

    This Colorado case is between a corporation and a couple of individual. The only case ever to give a corporation religious right is the Hobby Lobby case which is very limited in scope. And this limit was that it was possible to accommodate Hobby Lobby and have its employees get contraceptives coverage. Kennedy would have swing the other way if it meant that the employee would have lost all contraceptives coverage.

  22. “Bake the cake or be thrown outside the gates…”

    Just a small change in procedure, and all is well.
    Customer MUST specify EXACTLY before quotation.
    No problem with that, right?
    Business can then quote ridiculous amount that is non-negotiable – say, $500,000,000 for a single cupcake with decoration. Terms may also be specified – for example, 75% deposit IN CASH before commencement. Or perhaps, a delivery date up to 50 years hence. Or all three. None of these is refusing service. Neither is all three. Neither is accepting other orders as priority service at operators discretion – provided stated up-front as terms of service, of course.
    It will start to happen – silly, but if that is the only way…

  23. The mention of Hobby Lobby is to provide the difference between cases that are between t[w]o citizen[s] with equal right (i.e. the one we are discussing) versus cases that are between a citizen and the Government.
    This Colorado case is between a corporation and a couple of individual.

    ???
    What two citizens might that be? The case title is Masterpiece Cakeshop v. Colorado Civil Rights Commission. The Colorado Civil Rights Commission is a citizen and not a government agency enforcing a law or regulation? It’s the state abridging the First Amendment rights.

    The only case ever to give a corporation religious right is the Hobby Lobby case which is very limited in scope.

    Even if the only one, it sets a precedent.

    Limited how? The Hobby Lobby decision was that a the owners of a corporation have First Amendment rights which were abridged by the HHS mandate to support what the owners saw as an immoral act. Since the business is a fictitious person, it too has First Amendment rights. The key is that the owners do not lose their rights when acting through a corporation. By extension, the owners of other businesses also have unbridgeable, inviolate First Amendment rights The only difference between these two cases is the specific immoral act being supported.

    In the Colorado case, the administrative judge ruled that [quoting sort of] 1) the cake was not free speech and 2) participate in a same-sex ceremony did not unduly abridge [the] right to the free exercise of religion.

    The Hobby Lobby ruling further stated that federal courts should not answer religious questions because they would in effect be deciding whether certain beliefs are flawed. This alone would be sufficient precedent for rejecting assertion (2).

  24. Dav,

    They appealed the decision that the commission did in the favor of the gay couple.

    It is still all about the gay couple.

    “Limited how?”

    Limited to: Closely held company.
    True: Masterpiece is closely held company.
    Limited to: RFRA cases: Hobby Lobby was a RFRA case.
    False: Masterpiece is not a RFRA case. It is a discrimination case.
    Limited to: undue burden on a company. Mandate to provide contraceptive while there was an easy alternative. Hobby Lobby doesn’t to pay for contraceptive, but they can’t prevent their employee to access contraceptive coverage.
    False: baking a cake when it is the business to bake a cake is not undue
    burden.

    ” 1) the cake was not free speech”
    No a cake is not free speech. Customize wording on a cake might be, see Hands off T-Shirt above and Azucar Bakery.

    “2) participate in a same-sex ceremony did not unduly abridge [the] right to the free exercise of religion.”

    Selling a cake does not make one participate in a ceremony of marriage.

    What is your prediction, you have mine?

  25. People bake cakes, not companies.
    “The law is an ass”.
    In the end there will be a fine because anyone taking this to that extreme will not bake the cake for all the tea in China. Nor should they if it doesn’t please them to do so. All finished.

  26. What is your prediction, you have mine?

    Predicting what the Supreme Court of the United States will do in any given case can be a difficult task.

    Much of it depends on what Mister Justice Argle-Bargle (Anthony Kennedy) decides to do in such a case. Some days he gets up on the sane side of his bed, and some days he gets up on the argle-bargle side.

    I think Yogi Berra once said something about predicting the future.

  27. No a cake is not free speech. Customize wording on a cake might be

    Which is what the administrative judge actually said when declaring it was not free speech. I apologize for compressing the wording of the ruling; completely forgetting your comprehension and language challenges and your propensity to converge on minutiae and tangential items to sidetrack the subject. The issue, as the Alliance Defending Freedom has said, is the freedom to express yourself artistically without endorsing a view with which you disagree.

    Selling a cake does not make one participate in a ceremony of marriage.

    It’s possibly the only argument the administrative judge could have made that would have had a chance of being upheld. However he ruled participation was not an undue burden on exercising religious freedom. Even ignoring the Hobby Lobby ruling which said courts should not do this, it was an odd thing to say if creating the cake was not in itself participation.

    Actually, it was more than merely selling a cake. It was designing and creating it. Far more activity than pulling a cake down off a shelf to sell it. Your attempts at minimization are transparent and ludicrous.

    They appealed the decision that the commission did in the favor of the gay couple.

    But it’s the government commission which is the named party — much as you’d like it to be something or someone else. It’s a baker v. a government agency.

    What is your prediction, you have mine?

    What purpose would it serve?
    If you don’t know what it is then you haven’t been paying attention.

  28. And what will your reaction be once they have rejected your psycho interpretation ?

    That they are politically motivated?

  29. Hmmm … Should have known better. You’ve run out of any semblance of sensible argument so we’re done.

  30. You’ve run out of any semblance of sensible argument …

    I’m amused that someone who communicates in Lower Slobbovian pidgin purports to be an expert in U.S. constitutional law.

Leave a Comment

Your email address will not be published. Required fields are marked *