So there are blogs and people touting this as “the worst decision ever” (alright, I’m paraphrasing). But when I saw it was 7-2, I paused. I expected 5-4 if it was purely party-lines. It wasn’t.
And there were FOUR different opinions from the people who voted for it.
- Kennedy wrote the “official” opinion (Roberts, Breyer, Alito, Kagan & Gorsuch all joined in)
- Gorsuch and Alito filed a concurring (agreeing but wanting to put their own words to it) opinion
- Kagan and Breyer filed a concurring opinion
- Thomas filed his own opinion because he only kinda agrees (it’s only “partly concurring”) and Gorsuch joined this one too.
- Ginsberg and Sotomayor gave the dissenting opinion
TL;DR (Too Long; Didn’t Read)
Ok, so I decided to “live blog?” my reading of the opinions. By this I mean I read one of the opinions, copied out the 1-2 quotes I thought were notable and then wrote my thoughts on it. But it’s long. It’s LOOOOONG. So this section is my summary.
I ended up falling into agreement with a bazillion other commentators that I think SCOTUS’s made this a punt. They folded rather than bid on the game. They avoided making a real decision by holding up tiny imperfections in the arguments. Overall, a disappointing SCOTUS decision. I am disappointed in many of you. (but not RBG, she wrote my favorite opinion of the lot).
If you apply this same scenario to anything else (a black couple or a disabled person) there would be next-to-no argument it was discrimination. IF the asshat had said “I don’t make cakes for black weddings” we wouldn’t be having this conversation at all. But because a few comments on the record were less-than-respectful of Phillip’s religion (and there is an issue there) SCOTUS wrote:
The outcome of cases like this in other circumstances must await further elaboration in the courts
So can we start with the fact Gorsuch is on THREE of the 5 opinions (3 of 4 who voted together)? I didn’t like the man because he accepted a nomination that was at best dirty politics and at worst downright unconstitutional. But this? I am writing this bit before reading the actual opinions – but if the man is on three separate opinions… Anyway. Lemme go read now.
So Kennedy says there are 2 issues in his 18 page opinion: 1) the government’s authority to protect the rights of discriminated people (ie gays) and 2) free speech. Seriously, he says free speech before he ever mentions religion. He talks about the cake as an expression of art which is interesting and I can’t entirely argue with. That is what made me go look up what they ended up with -and I’m not sure how much “artistic expression” I’d give it. It’s a pretty cake! It sounds delicious. But art?
His biggest beef really comes down to the Colorado Civil Rights Commission and how they handled the case. Apparently, the commissioners were dismissive of Phillips (the cake artist) and his “sincerely held religious beliefs” to the point where THEY might have been discriminating against HIM.
I mean, honestly, the quote from the official record which Kennedy quotes is pretty terrible and biased: “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”
Ouch. Yeah, I gotta say that maybe the commissioners in this one were wrong. Kennedy says it at the end:
The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.
So it turns out this was a messier case then it originally sounded and (not shockingly) not a lot of the commission’s bias was being well-touted in the more liberal media sites. Even NPR was pretty heavily slanted towards Craig and Mullins. Were they discriminated against, yeah, I think they were. Did the government (Colorado Commission) handle it well? No. Not really. Ok, so Kennedy’s argument is pretty compelling. Lemme read Kagan’s.
This one was short. 4 pages.
So one of the arguments Phillips made in the case (apparently) is that there was this other case where a dude named Jack had 3 different bakeries refuse to make him a cake because the words/design(s) he wanted were offensive to them (anti-same-sex marriage messages). So the commission let those bakers off the hook – they literally would not have made that cake for anyone ever. But not Phillips. His objection had to do with a protected class.
The different outcomes in the Jack cases and the Phillips case could thus have been
justified by a plain reading and neutral application of Colorado law—untainted by any bias against a religious belief.
I don’t know why she felt the need to say it again except she was waaaay more succinct (granted, she didn’t have to do any of the “facts of the case stuff” but still.
Ok. Deeeeep breath. Gorsuch and Alito.
12 pages. Twelve. Almost as long as the original damn opinion.
Ok, I just have to start off that he immediately brings up “Employment Div., Dept. of Human Resources of Ore v. Smith” (the case of Native Americans being allowed to consume Peyote as part of their religion. He does it as a “religion is protected too!” thing and it just… let’s just say it set the tone for me. It didn’t help he felt some kind of …….$&#*! need to restate the “facts of the case” like he’s a special snowflake.
Gorsuch’s big argument was that the cake was for a same sex wedding. I.E. he wouldn’t sell a cake to a heterosexual couple celebrating a same-sex marriage (I think?). It got confusing in there for a minute. He did finally get to a quote that I bedrudgingly have to agree with:
Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom. (pg 7)
I disagree strenuously however with his statement on the next page:
It is no answer, for example, to observe that Mr. Jack requested a cake with text on it while Mr. Craig and Mr. Mullins sought a cake celebrating their wedding without discussing its decoration, and then suggest this distinction makes all the difference. (pg 8)
And then he went on to make a Goldilocks reference (I need an angry emoji here)
We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; understanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right. (pg 9)
He tries to make the argument that because in Jack’s case the Commission let people refuse cakes whose content/decoration they found offensive (after having a conversation about what would be ON the cake) was somehow the same as telling a couple that their entire lives are evil (before even finding out if there was something on the cake). Yeah. Like peppers and peppers there.
Ugh. UGH. Ok. Thomas. Not one of my favorites so let’s hope I can keep my eyes from getting too crossed.
Thomas goes off on the “free speech” aspect. For 14 pages. MORE than Gorsuch. And he doesn’t reiterate ANY of the facts of the case. So his beef is with Phillip’s claim of “free speech” and “artistic voice.” Which by the by is very poorly recorded in both Commission testimony and court appeals (according to Thomas). Thomas even admits this, but wants to get into it anyway! Part of the reason I don’t like Thomas-opinions is he’s hard to read. I feel like he likes “the sound of his own voice” and he rambles. He rambles on and on and repeats a sentiment. Like three times he feels the need to say it.
Ok, now to get to the dissent! RBG’s writing!
I love Ruth Bader Ginsburg. I love this woman. She argues that this process has gone through 4 previous court systems and to hold up the words of one or two specific “hostile” people doesn’t merit overturning the entire case.
She also points out that Craig & Mullins didn’t request any kind of special message – just a standard tiered cake; whereas Jack (the other case) actively sought customization that included judgmental language. Well, she says it better:
Change Craig and Mullins’ sexual orientation (or sex), and Phillips would have provided the cake. Change Jack’s religion, and the bakers would have been no more willing to comply with his request. (pg 5 footnote 3)
She argues that cherry-picking the statements of individuals does not merit judging against Craig & Mullins’ claims that their protected class (sexual orientation) was discriminated against. Jack was not discriminated against because he was Christian (or asking for Christian message/symbols). Craig & Mullins WERE discriminated against because of their sexuality.
So, as I understand her case: If you apply this same concept to anything else (a black couple or a disabled person) there would be next-to-no argument it was discrimination. IF the asshat had said “I don’t make cakes for black weddings” we wouldn’t be having this conversation at all.
For the reasons stated, sensible application of CADA to a refusal to sell any wedding cake to a gay couple should occasion affirmance of the Colorado Court of Appeals’ judgment. I would so rule.
Well, her pointing out that the court cherry-picked arguments is really damning. REALLY.