Search Results for ‘cake discrimination’

Michael McConnell on the Masterpiece Cakeshop case

The Stanford law professor has penned “Dressmakers, Bakers, and the Equality of Rights” for the forthcoming volume “Religious Freedom, LGBT Rights, and the Prospects for Common Ground” (William N. Eskridge, Jr. and Robin Fretwell Wilson, eds. 2018). [SSRN, Volokh] Abstract:

Using recent examples involving dressmakers refusing to create designs for the First Lady at the Trump inauguration, this paper explains why Masterpiece Cakeshop should be decided in favor the baker who refuses to create a wedding cake for a same-sex wedding ceremony, and why this should be understanding as an equality of rights, rather than prioritizing free speech over nondiscrimination.

Earlier on Masterpiece Cakeshop here.

High Court debates wedding cakes and forced expression

“On the Left, some pine for a hard-line opinion that claims of religious liberty or free speech can never, ever provide an excuse for discrimination. But it’s not just the Alitos and Clarence Thomases who would oppose that outcome. All four liberal justices yesterday gave indications that even if they would not draw the line on compelled speech *here*, they would draw it *somewhere*.” My take on yesterday’s oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission is up at the New York Daily News.

The principles of free contract and association and the wrongness of compelled expression and participation will endure whether or not SCOTUS sees its way clear to recognizing them in this case. Earlier; Roger Pilon (“If there is intolerance here, it is from those who would force a man to choose between his religious beliefs and his livelihood”); Ilya Shapiro; Cato’s brief; Erica Goldberg. And I’m quoted in Brandon Ambrosino’s Washington Post coverage of the case (“the lasting influence is not primarily which side wins, but where to draw the line between what is and is not expression”) and by Chris Johnson in the Washington Blade (““Neither side [on the Court] wants to inflict a culture war on the country; they’re trying to work out something without culture war.”)

Dividing the cake: high court briefs show First Amendment split

Eugene Volokh and the Cato Institute amicus program hardly ever take opposite sides of a First Amendment case, but it’s happening in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. At issue is whether the concept of expression extends to cake decoration, and if so how far. (Only cakes bearing custom/unique messages or symbols?) It’s not an easy line to draw. [Adam Liptak, New York Times; Eugene Volokh/Dale Carpenter brief for American Unity Fund; Cato brief]

SCOTUSBlog has a symposium on Masterpiece Cakeshop. The exact couching of the facts — was Phillips being asked to create a cake or design one? — could be important to the outcome [Ronald K.L. Collins] There is a Cake Artists brief. [Althouse]

While on another note, “Christian Cake Bakers and Gay Coffee Shop Owners: Why Freedom of Association Is for Everybody” [Jonathan Rauch, National Affairs; Scott Shackford, Reason] Earlier here, here, etc.

Discrimination law roundup

  • Prof. Sam Estreicher proposes safe-harbor rule to overcome disincentives to hiring of costly or risky job seekers [SSRN via Workplace Prof]
  • “Muslim flight attendant for ExpressJet suspended, wouldn’t serve alcohol” [Detroit Free Press, earlier]
  • Profile of lawyer Joel Liberson, who’s talked many cities into suing banks for big bucks under Fair Housing Act [WSJ]
  • “Did the 7th Circuit finally kill McDonnell-Douglas?” [Jon Hyman on “burden-shifting” evidentiary framework in employment discrimination law]
  • U.S. Commission on Civil Rights believes law should defer to religious conscience claims “only to the extent that they do not unduly burden” bans on discrimination [Stephanie Slade, Reason; report with nonpartisan sections written by Lenore Ostrowsky] Anti-discrimination laws as applied to private actors restrict liberty and sometimes force conscience [David Harsanyi, The Federalist] “Massachusetts: Churches may be covered by transgender discrimination bans, as to ‘secular events'” [Volokh]
  • “Unfair ‘Fair Housing’: The new Obama administration policy to ‘deconcentrate’ poverty is a threat to communities” [Howard Husock, City Journal; Kurtz, NRO]

Discrimination law roundup

  • Another web accessibility settlement from the U.S. Department of Justice, this time Carnival cruise lines [Minh Vu and Paul H. Kehoe, Seyfarth Shaw, my warnings on legally prescribed web accessibility]
  • A topic I’ve often discussed: “Has The ADA Broken Its Economic Promises To People With Disabilities?” [Amelia Thomson-Deveaux, Five Thirty-Eight]
  • Nebraska meat-packer tried too hard to hire only legal workers, will now pay dearly for asking for too many documents [Department of Justice press release]
  • Owing to discrimination, a Colorado couple had to drive a few extra miles to get a cake, and fly 2000 extra miles to get a marriage license. So guess who’s now in legal trouble for inconveniencing them [Jacob Sullum, New York Post] Sen. Ted Cruz sounds as if he might be skeptical of religious discrimination laws as applied to public accommodation, and down that path might be found libertarian wisdom [Scott Shackford, Reason]
  • EEOC says University of Denver Law School must pay its female faculty more [Denver Post, TaxProf]
  • “Court Rejects The EEOC’s Novel Attempt To Impose Disparate Treatment Liability Without Any Injury” [Seyfarth Shaw; EEOC v. AutoZone, N.D. Ill.]
  • Because more coercion is always the answer: France considers ban on “discrimination” against poor [Frances Ryan, The Guardian]

An observation on the $135,000 cake refusal

Has anyone noted that the “Ferguson syndrome” of ruinously escalating fines for petty violations [covered widely in the liberal press, and here previously], and Oregon’s ordering of a couple to pay $135,000 for not complying with a request to bake a cake (being covered at AP, widely in the conservative press, and here previously, with related], might actually amount in part to the same issue?

P.S. On Twitter, colleague Jason Kuznicki and I discuss the issue a little further. He writes: “Can’t say I agree. Punitive fines are really hidden taxes. The bakery issue is about punishing crimethink.” I respond: “But with sensible damages calculation (i.e. circa zero) the bakery action would lose much of its power to intimidate. Also, there’s debate: are oppressive local fines ‘just’ a revenue abuse (typically our side’s view) or a wider #NewJimCrow? Or to put it yet another way: once you allow oppressive fines, don’t be surprised if they are used to oppress.”

Anti-discrimination law vs. associational freedom, again

Robert and Cynthia Gifford offer their Liberty Ridge Farm in Schaghticoke, N.Y. as a wedding venue. New York has now fined them $13,000 for politely declining to host a gay wedding. They’ll also have to train their employees in compliance. [LGBTQ Nation, WNYT, Village Voice] Earlier on cakes and more cakes, flowers, photographers, etc. etc. More on this topic: Scott Shackford, Reason.

Discrimination law roundup

  • Mayor de Blasio settles firefighter bias suit on terms sympathetic to plaintiffs [City Journal: Dennis Saffran and Seth Barron]
  • One way to dodge some Culture War fights: roll meaning of “public accommodation” back to travel, lodgings, places of public amusement, etc. [Andrew Kloster, Heritage] As original/creative expression goes, florists and cake-bakers sometimes outdo NYT’s Greenhouse [Ann Althouse] From Dixie Chicks to Hobby Lobby, few escape hypocrisy when commerce collides with convictions [Barton Hinkle]
  • Department of Education’s Office of Civil Rights investigating Florida’s popular Bright Futures college scholarship program [Orlando Sentinel]
  • Do EEOC mediators overstate risk of legal action to extract big settlements from employers? [Bloomberg BNA, Merrily Archer on survey] New Colorado expansion of employment liability bad news for large and small employers alike [Archer]
  • “Religious exemptions — a guide for the confused” [Eugene Volokh]
  • Washington Post columnist repeats myth that Lilly Ledbetter “did not know she was being paid less than male counterparts” until after statute of limitations had run; Hans Bader corrects [letter to editor]
  • If helping out local people was one reason your town decided to back public housing, you might have been played for suckers [AP on DoJ suit against Long Island town over local preference]

My letter in the WSJ: antidiscrimination law and religious liberty

I’ve got a letter in the WSJ:

In claiming that “Gay Marriage Collides With Religious Liberty” (Houses of Worship, Sept. 20), Mollie Ziegler Hemingway conflates the effects of antidiscrimination law with the effects of recognizing same-sex marriage. Many of the conscience cases she cites involving private businesses arose in jurisdictions that don’t recognize gay marriage, and most would reach the same legal result so long as local antidiscrimination laws remain in place, whether or not the law on marriage has changed….

I go on to note that anti-discrimination law for years now has been obliging some small businesspeople to enter business dealings inconsistent with their private conscience, as when bed and breakfasts are obliged to accommodate unmarried cohabitants, or owners of print or video-duplication shops are obliged to duplicate literature promoting causes they abhor, whether religious or secular. So far as I can tell, we libertarians are the only group that has consistently raised alarms over the years about this coercive effect; most social conservatives have tended to ignore the area until quite recently, and of course the typical position of modern progressives is to see few if any real issues of concern here. Mollie Ziegler Hemingway, I should note, says I wrongly assumed that she writes from outside the libertarian tradition; Twitter exchange on that here.

Some recent links on these controversies: Elane Photography (New Mexico) and followup; Oregon cake bakers; Arlington, Va. video-duplication shop, first, second, and third posts. I wrote about the relations between religious liberty, libertarianism, and social conservatism here (more, and yet more on Twitter with columnist Tim Carney). More: Bainbridge, Stephen Miller/Independent Gay Forum.

Latest liberty cake wreck

In Gresham, Oregon, it’s anti-discrimination law 1, free association 0 as a family business that cited religious beliefs in declining to make a wedding cake for a lesbian couple, and was hit by an enforcement action as a result, shutters its retail shop in favor of baking from home. Oregon does not recognize same-sex marriage, which (as in the parallel New Mexico wedding photographer case) makes clear that the intrusion on individual liberty here arises from anti-discrimination law as applied to so-called public accommodations, not from marriage law. [Shackford, Reason] Related: “Religious liberty depends on right-of-center gay marriage advocates” [Stephen Richer, Daily Caller]