Search Results for ‘gay cake’

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.

Oregon appeals court upholds $135,000 cake fine

An Oregon appeals court has upheld the oppressive $135,000 fine levied on bakers Melissa and Aaron Klein, who turned away a gay couple’s wedding cake order [Whitney Woodworth, Salem Statesman-Journal] As I observed two years back, the use of ruinous fines to punish non-ruinous conduct is a wider problem in our law, not just here. The Oregon court did reverse one state finding related to the Kleins’ supposed announcement of a future intent to discriminate, to which I and others had taken particular exception.

As my colleague Roger Pilon put it about the Colorado case, “If there is intolerance here, it is from those who would force a man to choose between his religious beliefs and his livelihood.”

P.S. Eugene Volokh on the court’s main ruling and on the “threat to discriminate” sub-issue.

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.

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]

Just not in frosting

“Printing business has First Amendment and RFRA right to refuse to print gay pride festival T-shirts” [Eugene Volokh] The Lexington Human Rights Commission had ordered employee training for a t-shirt printer that had objected to printing messages it disagreed with, but a Kentucky trial court judge threw out the order citing both the First Amendment to the U.S. Constitution and Kentucky’s version of the Religious Freedom Restoration Act, here applicable to a corporation as defendant since it was an incorporated business that had been the target of the discrimination complaint. Compare the bake-my-cake cases, which have generally come out the other way. And see in the U.K., “Patrick Stewart backs bakery after ‘gay cake’ court battle”: Independent, Telegraph, Katherine Mangu-Ward/Reason.

Free speech roundup

  • Repercussions of Supreme Court’s Janus ruling on bar associations’ compulsory extraction of dues from nonmembers [Maxine Bernstein, Oregonian] “State Supreme Court calls a ‘timeout’ for Washington Bar Association to review its rules” [Steve Miletich, Seattle Times] “ABA Model Rule 8.4(g) Cannot Survive the Supreme Court’s Recent Decisions in NIFLA and Matal” [Kim Colby, Federalist Society, earlier on rule banning some types of speech and expression by lawyers on anti-discrimination grounds]
  • Pardoned former sheriff Joe Arpaio sues New York Times for libel [Quint Forgey, Politico; Joe Setyon, Reason; over the years]
  • When may governments boycott private companies’ output because those companies promote disapproved ideas? [Eugene Volokh, more]
  • First Amendment has consistently foiled Donald Trump’s designs against critics’ speech [Jacob Sullum; related, David Henderson] “The culture of free speech has been deteriorating for long enough that politics, sadly and predictably, is catching up.” [Matt Welch] “Threats of violence discourage people from participating in civic life. This is an unusually good opportunity to deter them.” [Conor Friedersdorf during Ford-Kavanaugh episode]
  • “Fighting Words and Free Speech” [John Samples] “A New Podcast on Free Speech: Many Victories, Many Struggles” [same on Jacob Mchangama podcast series]
  • “U.K. Supreme Court: Baker Doesn’t Have to Place Pro-Gay Marriage Message on Cake” [Dale Carpenter, Peter Tatchell, Lee v. Ashers]

Obergefell overturned?

My opinion piece in Monday’s Wall Street Journal offers eight reasons why, no matter who is the next justice, the Supreme Court will not overturn Obergefell v. Hodges, its 2015 same-sex marriage decision.

2. In deciding whether to respect stare decisis and follow a precedent deemed wrongly decided, justices apply standards that can appear wobbly and uncertain. But whatever else is on their minds, they always claim to take seriously the practical dangers of upending a decision on which many people have relied.

Few legal strokes would be as disruptive, yet fully avoidable, as trying to unscramble the Obergefell omelet. Large numbers of marriages would be legally nullified in a moment, imperiling everyday rights of inheritance, custody, pensions, tax status and much more. These effects would hit on day one because an earlier generation of social conservatives managed to write bans on same-sex marriage and equivalents into many state constitutions. Those bans would prevent elected officials from finding legal half-measures to avert massive dislocation for innocent persons.

The piece is paywalled, but Jonathan Adler has a write-up briefly summarizing some of its other points. I’ve discussed Pavan v. Smith here and Masterpiece Cakeshop here.