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Eugene Volokh: The Masterpiece Cakeshop Decision Leaves Almost All the Big Questions Unresolved
{Eugene Volokh} The Masterpiece Cakeshop Decision Leaves Almost All the Big Questions Unresolved http://dlvr.it/QW8d0y
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The Masterpiece Cakeshop Decision Leaves Almost All the Big Questions Unresolved
Eugene Volokh|Jun. 4, 2018 10:49 am
Do bakers have a First Amendment right to refuse to bake cakes for same-sex weddings, even if there's a state law banning sexual orientation discrimination by such businesses?
Do they have a First Amendment right to refuse to bake such cakes that contain text or symbolism (e.g., rainbow striping) that the bakers disapprove of?
How about wedding photographers or videographers, who create products that (unlike most cakes) are traditionally seen as speech? How about calligraphers or graphic designers, who have an objection to personally writing or typing certain messages?
The Supreme Court's 7-to-2 Masterpiece Cakeshop decision answers none of these questions (not even the first, which seemed to be most squarely raised on the facts of this case). Rather, the decision concludes that, in this particular case, Colorado government agencies unconstitutionally discriminated against the plaintiff based in part on his religiosity; the Court concludes this based on particular statements made in the record, such as the statement by one member of the Colorado Civil Rights Commission that,
....
Finally, the careful reader might be asking: Does all this talk about government officials' statements showing religious bias foreshadow the result in the so-called (rightly or wrongly) "Trump Travel Ban" case, where the challengers are arguing that various statements by candidate Trump or President Trump show that the restrictions on travel from certain countries were motivated by religious hostility? Your guess is as good as mine.
Eugene Volokh|Jun. 4, 2018 10:49 am
Do bakers have a First Amendment right to refuse to bake cakes for same-sex weddings, even if there's a state law banning sexual orientation discrimination by such businesses?
Do they have a First Amendment right to refuse to bake such cakes that contain text or symbolism (e.g., rainbow striping) that the bakers disapprove of?
How about wedding photographers or videographers, who create products that (unlike most cakes) are traditionally seen as speech? How about calligraphers or graphic designers, who have an objection to personally writing or typing certain messages?
The Supreme Court's 7-to-2 Masterpiece Cakeshop decision answers none of these questions (not even the first, which seemed to be most squarely raised on the facts of this case). Rather, the decision concludes that, in this particular case, Colorado government agencies unconstitutionally discriminated against the plaintiff based in part on his religiosity; the Court concludes this based on particular statements made in the record, such as the statement by one member of the Colorado Civil Rights Commission that,
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.
....
Finally, the careful reader might be asking: Does all this talk about government officials' statements showing religious bias foreshadow the result in the so-called (rightly or wrongly) "Trump Travel Ban" case, where the challengers are arguing that various statements by candidate Trump or President Trump show that the restrictions on travel from certain countries were motivated by religious hostility? Your guess is as good as mine.
