A “Narrow” Victory for the First Amendment


Pundits are referring to the Supreme Court’s reversal of Colorado Civil Rights Commission ruling punishing a baker for his refusal to bake a wedding cake for a gay couple as “narrow.” Well, the justice’s relied on the fact that the Commission was clearly biased against and hostile to the baker’s religious beliefs in ruling that such hostility ran afoul of the First Amendment’s free exercise clause. Every justice noted that states may protect homosexuals from discrimination in the marketplace, but the 7-2 majority ruled that that other persons’ sincere religious beliefs must be given due regard as well. Call that “narrow” if you wish, but it’s still a win for the First Amendment.

Because the record below was unclear on the baker’s free speech claims, the Court’s majority opinion didn’t address them in its decision. The justices didn’t need to in order to rule on the case. However, Justice Thomas did address that issue in his concurring opinion. He noted that public accommodation laws govern acts of discrimination, and that when they attempt to regulate speech, they run up against the full force of the First Amendment’s free speech clause. Boy Scouts of America v. Dale, 530 U. S. 640, 657–659 (2000). Justice Thomas noted that the Colorado Court of Appeals finding that the baker’s refusal to speak (i.e., create the wedding cake as Civil Rights Commission had ordered) amounted to illegal conduct was clearly wrong:

Even after describing his conduct this way, the Court of Appeals concluded that Phillips’ conduct was not expres­sive and was not protected speech. It reasoned that an outside observer would think that Phillips was merely complying with Colorado’s public-accommodations law, not expressing a message, and that Phillips could post a dis­claimer to that effect. This reasoning flouts bedrock prin­ciples of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak.

Today was a good day for the First Amendment.

UPDATE—

8 thoughts on “A “Narrow” Victory for the First Amendment

  1. So, narrowly speaking, if you want a cake for a gay wedding, find a baker who bakes and decorates cakes for gay weddings. It’s a lot easier to accomplish this goal (cheaper, too!) than to try to twist the arm of an unwilling participant.

    By the way, I will happily bake a cake for a gay wedding. My Religious Principles Violation Surcharge is a very affordable $300,000, payable in advance. Cash only, please.

  2. So…what happens now? Does the case get remanded back to Colorado Kangaroo Civil Rights Commission for the baker to get another hearing in which his religious claims are presumably heard fairly? Or does this let the baker off the hook and end the proceedings against him?

    If all this means is that the baker is supposed to get a new “fair” hearing, then presumably the Commission could just rule the same way while pretending to respect his religious beliefs but declaring that they don’t outweigh the homosexual consumers’ demand for whatever goods and services.

    • Reading between the lines, the Supreme Court has issued the CKCR a strong hint that it simply does not want to hear the case on its merits, ever. It can’t possibly rule against the baker because he has won decisively in the court of public opinion, and, it simply doesn’t want to rule for him. The hint is for Colorado to drop the matter.

      • There may be another message between the lines. Justice Kennedy is headed toward retirement. If the case comes back to a Supreme Court which includes his replacement nominated by President Trump (and possibly Justice Ginsburg’s replacement), then some of the 5-4 pro gay rights decisions could be overturned, perhaps by a 6-3 vote. He may be saying: Read the Gorsuch and Thomas concurring opinions, think about the Court’s likely make up a couple of years from now, and minimize your loss.

  3. I don’t even understand why this is an issue. Capitalism doesn’t care about your race, orientation, or any other superfluous trait. If someone chooses not to make a cake its only their bottom line that’s affected. If you feel that strongly one way or another then either buy or don’t buy from them. If you’re an employee either work or don’t work for them. Vote with your dollars or your major and let the market decide. If this really is a big deal to the public tbeir bottom line will be severely hurt and/or they will go out of business. Trying to use the government to put a gun to someone’s head is not what this country should be about.

    Until the bakery says “no, and I’m going to stone you to death besides” (i.e. advocate violence) the govt needs to gtfo. Some of my views are unpopular but unless I defend those I disagree with I’m screwed in getting mine protected.

  4. Here in NZ, there is a pizza chain called “hell”. Due to its business being premised on mocking my beliefs, I do not patronise it.

    If you don’t like a business, don’t go there.

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