Wednesday, December 6, 2017

Cakes as Religious Freedom and Artistic Expression, and Rolling Civil Rights Back to Year Two: What Americans Love to Argue About in God's Name

Dana Milbank reporting on the first day in the current Supreme Court hearing about cakes as fetishes of religious freedom and artistic expression (yes, this really is happening; yes, this is what some of the finest judicial minds in our land are devoting their attention to right now):  

"The person who does floral arranging," asked Justice Ruth Bader Ginsburg. "Would that person also be speaking at the wedding?" 
Yes, Waggoner answered, "if they are custom-designed arrangements." 
"How about the person who designs the invitation to the wedding or the menu for the wedding dinner?" 
Justice Elena Kagan decided to play. "The jeweler?" 
Possibly, Waggoner reasoned. 
"Absolutely not." 
"The makeup artist?" Kagan persisted. 
Waggoner said that the makeup artist would not be speaking — neither, she replied to Kagan's further questions, would the wedding tailor or the chef. 
"Whoa!" Kagan pounced. "The baker is engaged in speech, but the chef is not engaged in speech?"  
And let's not even get into the butcher and the candlestick maker. . . . 
Justice Sonia Sotomayor wanted to know whether "sandwich artists" are First Amendment-protected. 
Justice Stephen G. Breyer asked whether tableside mole preparations at Mexican restaurants would enjoy free-speech protection. 
Kagan asked about a chef refusing to do an anniversary dinner for same-sex couples. 
Justice Samuel A. Alito Jr. asked about architects. 
"Generally that would not be protected," Waggoner ventured. 
Breyer interjected. "So," he said, "Mies or Michelangelo or someone is not protected when he creates the Laurentian Steps, but this cake baker is protected when he creates the cake without any message on it for a wedding?" 
This is important, Breyer said, because "we want some kind of distinction that will not undermine every civil rights law from the Year Two, including African Americans, including the Hispanic Americans, including everybody who has been discriminated against in very basic things of life, food, design of furniture, homes and buildings." 
Piece of cake: If you can't do it to racial and religious minorities, women and the disabled, you shouldn’t be able to do it to gay people.

Patrick Hornbeck on the question those arguing that cake-making = biblical belief = religious freedom = high artistry which must not be compromised could not answer as Justice Ginsberg pressed them on this point, attempting to cut through the bull get to the bottom of the argument that :  

If "the artist speaks" through his cake, as Waggoner said to Justice Ruth Bader Ginsberg, why only some kinds of artists? 

Charles Pierce on what it's really all about: 

This is about undercutting the freedoms established by the Supreme Court's Obergefell decision legalizing same-sex marriage in as many arenas as they can, including public accommodations. It is a strategy not dissimilar to the one pursued by the anti-choice movement, which gave up trying to get abortion banned at the federal level, but which used every tool in the shed to make it virtually impossible to get an abortion in the real world. This campaign was very much a factor in why the Congress kept Scalia's seat open, denying President Obama's nominee even the decency of a hearing, so that it could drop in Gorsuch, a reliable culture-war vote. 
(How do I know this? Because, on Monday, when nobody was looking, the Supreme Court refused to review a decision from the Texas Supreme Court that partly overturned the city of Houston's extension of government employees benefits to the spouses of same-sex couples. Ni shagu nazad, as we say around the shebeen.) . . . 
Make no mistake. This case is about whether or not public accommodations laws apply to gay Americans the way they apply to African-Americans or religious minorities. In fact, the deepest motivation behind this case may be whether or not public accommodations laws are valid at all—or, as Roberts ruled when he cut the guts out of the Voting Rights Act, whether or not public accommodations laws have served their purpose but are now obsolete here in the Day of Jubilee. 
That's a helluva long game, but it's far from out of the question. Justice Stephen Breyer saw it clearly when he told the lawyers for Phillips on Tuesday that he wanted to make sure the decision in this case didn't destroy civil rights legislation back to "the Year Two," and later when he predicted that, if the Court held for the cake shop, it would result in "chaos" in public accommodations statutes across the country. He said it like that would be a bad thing.

John Corvino on why religiously-driven cake artistry is very much like religiously driven barbecue-sandwich-artistry and Piggie Park: 

We've seen Jack Phillips's First Amendment argument before. Back in 1964, when Maurice Bessinger of Piggie Park BBQ fought public accommodations laws that required him to serve black customers equally, he invoked his rights to freedom of speech and freedom of religion. Bessinger noted that he was happy to sell black customers takeout food; he simply did not want to be complicit in what he saw as the evil of integrated dining. The Supreme Court unanimously rejected this argument.

A final word from Elliot Mincberg

Indeed, Waggoner admitted that Masterpiece could just as lawfully refuse to bake a cake for a mixed religion couple who wanted to get married.

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