From pp. 98-99 of the transcript:
MS. WAGGONER: . . . I have three brief points in rebuttal: First of all, the bias of the Commission is also evidenced in the unequal treatment of the cake designers, the three other cake designers who were on the squarely opposite sides of this issue. If — if the Court looks at the analysis that was provided by the Colorado court of appeals, line by line they take the opposite approach to Mr. Phillips that they do to those who are unwilling to criticize same-sex marriage
JUSTICE GINSBURG: And they say they wouldn’t — they would say no to anyone who came with that request?
MS. WAGGONER: No. The Colorado court of appeals said that they could have an offensiveness policy, and they said that those three cake designers were expressing their own message if they had to design that cake. In Mr. Phillips’s case, they said it wasn’t his message. It’s simply compliance with the law. In the other case, they said that the cake designers, because they served Christian customers in other contexts, that that was evidence it was a distinction based on the message, but in Mr. Phillips’s case, they ruled the opposite way.
Colorado found that if a baker who served Christians generally, but then declined to make a cake with a Biblical message because the baker found the message offensive, that baker was not discriminating. In contrast, a Christian baker who serves gay clients generally, but declines to accept an order for a specific event the baker finds offensive, does not receive conscience protection. (And note: The Christian baker in question was willing to sell an off-the-shelf cake to the gay clients.)
The Supreme Court argument she links to is here.
It should go without saying (but it may not in our current climate) that the issue of cake baking in and of itself is fairly trivial. What we're mostly seeing here is the result of opposite sides of culture war trolling each other to establish the limits of the law. However, the difficulties that the case outlines are real, and they point to the increasing difficulty of maintaining the principles of liberal democracy in an increasingly religiously and culturally fractured society.
The great compromise of classical liberalism is that we agree to give error rights. We allow some room for people to disagree with our deeply held beliefs without being punished with the full force of the law, while agreeing to enforce laws that provide all of us with basic common goods. Thus, for instance, we support laws punishing murder and theft, but we don't support laws punishing heresy. Sure, we might see that convincing someone to belong to some hair brained sect is damaging to that person, so there'd be an argument that it would be good for the government to protect its citizens from being the victims of wrong theology. But according to the compromise of liberalism we agree that the evils of stamping out error in some areas can be worse than the evils of allowing the error to exist and trying to use our own individual persuasion and influence to warn people way from error.
This works when there's some basic agreement in society about what's right and what's wrong. For instance, we agree enough that killing innocent people is wrong to ban murder even in cases some societies don't (dueling, honor killing, etc.) and yet we can tolerate dissent on other issues on which we disagree. Of course, even this example starts to show how our societal consensus is falling apart, as even the ban on murder is currently being argued about in cases such as euthanasia, infanticide, etc.
Tolerance of dissent worked so long as the issues dissented on were ones we were willing to leave up to people's individual discretion. What religion you belong to is not from a believer's point of view something trivial. It might be a point on which a person's salvation hinged. But there was at least some level at which we could argue it was something justly left to each person to decide. But as we come to disagree about more and more fundamental issues, the idea that we can leave issues up to individual conscience becomes more difficult to swallow. And as this tolerance according to the principles of classical liberalism becomes less attractive, the alternative will become more attractive: get control of the mean so power and then use that power to disenfranchise your opponents as much as possible so they never get the chance to turn the tables on you.
10 comments:
It's worth pointing out that the alternative doesn't exactly work. Not in the long term.
Remember back when LGBT people were the disenfranchised ones? When it wasn't uncommon for them to be badgered, bullied, beaten, or even killed for their sexuality? When even those who didn't stoop so low still strove to keep sexual nonconformity out of the public eye for the sake of the children?
Remember how well that worked? Hint: It didn't. Australia recently joined the US in legalizing gay marriage. And our having this discussion in the first place is at least in part due to the backlash from all those years of (real and perceived) oppression.
My point is, sooner or later, the opposing side will turn the tables. It's just a matter of how long it takes them to reach critical mass.
It's just really annoying to me that people who were so recently the beneficiaries of this principle are so oblivious to it.
You know what? Never mind.
When was it legal to do so.
Because this is a matter of law.
When, in the US, could you assault or kill someone for the sex of their sexual partner?
I doubt the Cake baker was "tolling" the Same-sex couple. It's the other side that purposely seeks out to destroy.
Tito,
No, I don't think that the bakery was out to troll the gay couple. They were the victims of people looking for a case to take to the courts. Where I do think that conservative advocates were clearly trolling secular bakeries in order to get fodder for a court case was in the bible quote cakes mentioned by the SCOTUS discussion of the Colorado Civil Rights Division. Here's a story about the incident:
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/07/legal-for-colorado-bakery-to-refuse-to-write-anti-gay-inscription-on-cake/?utm_term=.b30002e81a03
Now, as Jen Fitz points out, the Colorado Civil Rights Division is clearly biased in how it rules about what's discrimination and what's reasonable refusal to make a cake one doesn't like the message of. However, it's also clearly the case that these are all incidents what were intended to be litigated. None of the are really about cake.
Linebyline,
Maybe I spend too much of my history reading focusing on the darker parts of history, but the oppress-the-opposition-enough-they-can-never-get-you-back approach is actually at times startlingly effective. Turkey is pretty well free of potential retaliation from its Armenian population, because 95% of the population has been wiped out. Serbia is likewise unlikely to be disrupted by its Bosnian minority, because they were all ethnically cleansed.
That's the sort of history making that I'd like to see out country not resort to, and yet as people edge closer to the conviction that the only way to "win" in for the opposition to cease to exist, I fear it's an approach that will become more appealing to people.
Darwin, I have been fearing this for a while also. It is progressives who have sought campus speech codes and hate crime laws, on the basis that hateful words and thoughts can incite harmful actions. So what are we to make of the sustained and pervasive hate campaign on the left and in the media (but I repeat myself) against Christians? Since Obergefell they seem to have stopped talking about the need for tolerance and diversity. My oldest friend, who is on the left, went from advocating self-censorship if our words might possibly offend someone, to now advocating that churches be stripped of tax exemption and arguing (he is a lawyer) that churches maintaining the traditional definition of marriage does real harm and thus poses a public danger. The truth is that the culture war has not been entirely a cold one for a while. An already-existing trend is vandalism and arson of churches. Instances get covered in local media but national media say nothing about it as a trend. A church near me had Satanic graffiti spray painted on it, and law enforcement announced with a straight face that there was no evidence that it was a hate crime. Equal protection indeed.
I just read the article and nowhere was there an implicit or explicit reference to their motives. There is clearly no political motive.
It's not that important. :)
The key point is really the fragmentation of social consensus. Since the confronting ideas in this case aren't reconcilable (i. e. idea that gayness is quite normal and acceptable at all levels vs the idea that gayness is morally wrong and against God's will), there isn't a way to make a law that protect everyone's personal beliefs and values. (I read a bit into the transcript, and at one point a judge says, what if it is a small community with a limited number of bakers or florists etc., and they are all against gay marriage, and yet there is a gay couple who want to get married in that small community?).
Even commenters here reflect the fragmentation. If I understand correctly, Linebyline says it was a wrong (less bad than outright persecution but still discriminative) practice to keep sexual nonconformist behavior out of the public eye for the sake of the children - and I, for example, think it is essential to protect children from encountering nonconformist sexual behavior.
Also, there is the question of how much the opposing sides are allowing the other side to exist. I'm not familiar with the actual details of the case, but usually, these court cases and other public scandals serve to make a point, to force those with religious opposition to homosexuality to be punished for expressing those beliefs (and to intimidate others into not expressing them either). I doubt there wasn't any other cake baker, or any other variation of cake that did not expressly endorse the gayness aspect, so it's not as if the gay couple was not able to celebrate because of the religious opposition of this particular baker.
We can't find a solution unless there is a will in the majority to find a way to let everyone live and practice their personal beliefs. Of course this leaves the question what should be left to personal discretion based on moral/religious beliefs and values, and what must be enforced by law.
Nonsense. There is plenty of room for the idea that X is morally wrong but also legal, and that therefore X can be protested against but not stopped (except voluntarily).
There is also plenty of room for the idea that "If you don't want my business, I'll give my money to somebody else."
We live in a world where you can order cakes or decorations sent from thousands of miles away. If everybody in town disagrees with you, you just get your stuff from another town. Duh.
The problem here is that there are many people who feel that, if you are for hire, you are their personal slave. Your policies or your corporation's policies are less important than their wishes. Your ability to make a profit or keep a job is not as important as their five second desire.
We recently had a case in my town, at one of those cookie cake places, where an employee generously paid for a cookie cake for a servicemember. The next person in line then demanded, seriously, to have his cookie cake also be free (he wasn't a servicemember); and that if it wasn't given free, it was racist. The employee respectfully demurred, and was physically attacked and beaten up by this customer; other customers had to rescue the guy. The cookie cake place has now moved into a new location which provides more physical protection for employees.
Fortunately, security footage and voice recording showed that the employee was totally blameless. But this is the sort of thing that all sorts of people do. My coworkers have had things thrown at them, and have had other tantrums happen around them, when customers wanted things that are not permitted by policy at any place of business. People have often demanded that a store reopen when the doors are already closed and locked.
The whole gay wedding cake thing is just another special snowflake customer tantrum, but one with activists and lawyers behind it. If this stuff is allowed to go on, most businesses will have to stop serving the public altogether.
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