Wedding cake cut five ways

I’ve got a piece up at the Weekly Standard on yesterday’s Masterpiece Cakeshop decision, on which a Supreme Court uniting 7-2 on result — but split five ways as to particulars — found the Colorado Civil Rights Commission to have operated unfairly, thus managing to dodge a substantive decision about the limits of forced expression. “Next time you run this process, skip the religious animus” is not the same as proclaiming a First Amendment right for the baker to turn down the wedding, though it may convey a significant message for the future in its own right.

More commentary: Ilya Shapiro (“the real action is foreshadowed by the concurring opinions”), Eugene Volokh (“will have little effect on other such same-sex wedding service provider cases, especially when government commissioners realize they shouldn’t say more about religion than is necessary”), John Corvino (opinion could put a brake on “rushing to dismiss our opponents as ‘despicable'”), David French (Kennedy’s emphasis on comparing the case with cake inquiries that offend other bakers bodes well for religious service providers), and Richard Epstein (“the worst kind of judicial minimalism”; what does the not-yet-legality of gay marriage at the time have to do with anything? and can Colorado reopen the case?), and earlier here. And you can listen to my guest appearance yesterday on the popular Clarence Mitchell IV (C4) show on Baltimore’s WBAL.


  • The real issues:

    Apparently, Ginsburg and Sotomayor don’t care about religious bigotry on the part of state officials imposing punishment on a religious person. Sad.

    The Colorado commissioners expressing (or acquiescing to) such views will continue on their merry way. When government officials abuse their power like this, the societal bargain that underpins immunity becomes less and less justifiable from a moral standpoint.

    One thing to watch out for–given that SSM etc. is a court creation, courts have skin in the game so to speak and will be incented to tilt the playing field. This has been the case with abortion rights and the First Amendment. A smaller example can be found with Missouri v. Siebert–getting around Miranda (palpably not a constitutional right) could not be tolerated.

  • So, a secular or atheist baker would almost certainly NOT have the right to decline cake-baking to a gay couple about to be married. Even if he or she had powerful, well-reasoned and deeply felt reasons for opposing gay marriage. It still feels wrong to use government force to make that person decorate a cake for a gay couple.

    A larger point might be, if your actual goal is warm acceptance by everyone else, is government force really the way to achieve that?

    • That’s not how I read the decision, which so far as I can see did not reach that issue.