Prediction: Supreme Court Will Punt in Fake Marriage Cake Case

Every other option is unpalatable.

By William M Briggs Published on June 27, 2017

A frisson of delight ran through the Christian community when it was announced Monday that the Supreme Court will hear the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission.

In 2012, Masterpiece Cakeshop owner Jack Phillips was asked to bake a fake marriage (or gmarriage) cake for two men. He refused. “I’m sorry,” he told the men, “but I can’t promote messages that violate my beliefs, though I’d be happy to sell you anything else.”

What did he get for his faith? He was hauled in front of a tribunal and told he must bake the cake.

According to the Alliance Defending Freedom, the judge ordering the forced fondant “held that coercing Jack to participate in a same-sex ceremony did not ‘unduly abridge [his] right to the free exercise of religion.'”

It was a long legal road from there to the Supreme Court, which said it will decide whether Phillips discriminated or not.

This is being interpreted as a kind of small victory. Why? Because there is the chance the Court sees reason and does the right thing.

Don’t count on it. I predict that the Supreme Court will punt.

The Court Punts

When the two same-sex attracted men came to Phillips and demanded a cake, fake marriage was not legal in Colorado. Nor was it yet legal in the US as a whole. The two men were going to go through a fake marriage ceremony in Massachusetts, where gmarriage was legal. And then the men were going to use the cake made by Philips in a reception to take place in Colorado.

There’s the out.

The Court may say that Phillips didn’t really “discriminate” because fake marriage was not yet legal in Colorado. He was still, they might argue, within his rights to refuse to knead the dough. Why?

The cake was not legally a fake marriage cake, just an ordinary cake, and by law, bakers are allowed to refuse to bake ordinary cakes.

This kind of decision will not be satisfactory. What orthodox Christians — and others — want to know is if they can freely decline to participate now.

Discrimination is necessary

Make no mistake: Phillips did discriminate: against a ceremony, not the two men. Religion by definition is discrimination. A religion eschews one belief and accepts another. A person following his religion acts on these defined beliefs. In other words, a religious man must discriminate if he wants to remain faithful.

He did not (and would not) refuse service because his customers were homosexuals. Phillips just knew the difference between real marriage and fake. His religion does not allow him to participate in fake marriages. He discriminated against that ceremony. He should have been allowed to do so.

That commonsense conclusion will be as obvious to the Court as it is to you, dear reader. That’s why the court will avoid it. Don’t forget that Anthony Kennedy, author of gmarriage, is still on the bench. It was he who said opposition to gmarriage “motivated by animus” and not religious conviction.

Sweet-talking Justice Kennedy

Dissenting on the gmarriage ruling two years ago were Justices Thomas, Alito, Scalia, and Roberts. Scalia has passed on to his reward, and Justice Gorsuch has taken his place. How will he vote? Who knows? But recall Gorsuch has said gmarriage is “protected by the Constitution” and is “absolutely settled law.”

In order for Phillips — and us — to prevail, Gorsuch and at least one other member of the court will have to agree forced cake baking is not Constitutionally mandatory. The best bet for this other member is Kennedy, with the other members of the Court voting reflexively left. That means Kennedy will have to be sweet-talked into some sort of compromise.

An Artistic Out

There’s another possible out. Phillips is being called an “artist” by those friendly to him or his case. In a sense, this is true, though we have to wonder why Caravaggio and Rembrandt never used colored sugar as a medium.

Anyway, as an artist, the argument goes, Phillips somehow had greater leeway in the “pieces” he created. Thus, the “First Amendment” protected his “free speech.” Well, that same Amendment already allegedly protected both his freedom of religion and his freedom of association. Meaning Phillips (and we) are allowed discrimination in choosing who we associate with, and the sorts of events we participate in. But those Amendment-guaranteed freedoms have long been gutted.

Still, the Court may see this as an appealing compromise. Florists, bakers, dress makers, photographers and the like would be protected in their “artistic freedom.” But restaurateurs, caterers, rental outlets and everybody else would be forced to comply with gmarriage — or be forced to find new jobs.

Whichever punt play the Court chooses, it won’t be the last word. Nothing short of full-blown surrender will satisfy the left. Bake the cake or be thrown outside the gates where there is weeping and gnashing of teeth.

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  • Gary

    Gorsuch is said to be a “constitutional originalist”, much like Scalia. But Scalia voted against ssm in 2015. If Gorsuch thinks the US Constitution requires ssm to be legal, then he is not like Scalia, he is like all of the liberals on the court.

    The baker knew that Colorado had a law prohibiting discrimination against homosexuals. He chose to violate that law. He could have found a way to decline baking the cake in question that would have made it difficult to prove he was discriminating, but he chose to expose himself to prosecution instead. If the court finds for the baker, it will enrage every liberal in the world. Something I don’t believe five of the current members of the Supreme Court will want to do.

    • “If the court finds for the baker, it will enrage every liberal in the world.”

      True, and the justices are well aware of it.

    • Ye Olde Statistician

      Heck, locally here in PA a baker refused to bake a birthday cake for a little kid and not only did he prevail but… the kid was taken away from the parents. The parents were neo-Nazis and wanted the cake festooned with swastikas and the kid’s name. The kid was named “Adolf Hitler [Name]” and the baker refused to add the swastikas or the kid’s name. No one forced him to do it, either.

      • Gary

        Nazis are politically incorrect. But homosexuals are not.

    • Christine Wright

      First, the baker wasn’t discriminating against the couple on the basis of their homosexuality or the way they chose to live their lives. This is born out by the fact the baker had made other (non marriage oriented) cakes for the couple prior to this one instance. So, they weren’t simply discriminating against the couple for being gay. Discrimination is saying, your homosexual so I won’t work for you in any capacity. This however is not the case. The baker had done other work for these people before, they said no in only one instance, and that is the instance of the wedding cake.

      We can debate whether or not it’s against Christianity all day long to bake a cake, but the fact is that is not the point. The point is that clearly the baker believed that baking the cake was tantamount to approval of, as well as participation in the wedding and thus against his religion. It’s not to anyone to dictate what someone’s religious beliefs SHOULD be, it is to the government to protect people’s right to have them, and follow those beliefs as they see fit so long as they are not harming an other human being (and saying I can’t make this wedding cake is not harm, let’s be clear)

      The government shall make no law is just that, neither for nor against, nor prohibiting anyone’s free exercise thereof. It’s not to the government to determine what anyone can or should believe, it is to them to make certain people can practice how they choose.

      Homosexuals can be angry, but the matter is quite clear. The only thing I see, are a bunch of people angry that there IS religious freedom in this country.

  • Jennifer Hartline

    Oh, I hope you’re wrong.

  • Charles Burge

    There’s actually precedent in Mr. Phillips’ favor. A printing company in Kentucky won a case with similar circumstances. This isn’t just a freedom of religion issue – it’s also (and more so, in my opinion) a freedom of speech issue. Compelled speech is every bit as odious to the American tradition as government censorship, yet that’s exactly what the LGBT camp is seeking. I have faith that the court will find it unconstitutional to force people to engage in speech that they disagree with.

    • Tom Rath

      I would posit that the New Mexico photographer case (Elane v Willock) is a closer analogy/precedent, as the Kentucky printer case was more about product than customer. The tee shirt requested of the printer was one with a message the printer was unwilling to produce for *any* customer. (i.e., a Kosher deli isn’t guilty of discrimination by refusing to sell you bacon, because they don’t sell bacon to anyone).

      The customers who came to the NM photographer wanted wedding photography, which…while it would also be considered ‘artistic expression’…is substantially the same service the photographer offered to the public and provided to other customers.

      The product requested of Phillips was a wedding cake… a product Phillips had made for hundreds of other customers.

      In each of these latter cases, the differentiation was in the identity of the customers, much moreso than the product/service requested.

      The NMSC finding in Elane was denied review by SCOTUS 4 sittings ago, without dissent.

      • GPS Daddy

        Tom, the change in the definition of marriage is the fundamental issue. It’s not OK to up and declare a new meaning of a word and then force others to bow to it. This is a power play pure and simple.

        We have this notion that the 1st amendment covers ALL worldviews. It does not. There is a basis of understanding that must exist in order for the Republic to function. The LGBT movement made a category mistake in associating attitudes against SSA with race. The courts were fulish enough and fearful enough to cave to it.

        So the baker and the photographer should have never been put in that position to begin with. That is the root error.

        • Jason Todd

          No, what you have are courts who are going outside legal and constitutional authority by granting rights guaranteed by the Constitution to sexual behavior. Such decisions should be thrown out for obvious reasons but for four judges on SCOTUS, led by a homosexual sympathizer named Anthony Kennedy.

          • GPS Daddy

            Yes, Todd, I did leave out that there have been judges that are in agreement with the LGTB views. But I am still correct in my statement.

      • Marcos464

        I think where I differ with you is that the differentiation was in the occasion that the photography services were requested for, not the identity of the requesters. They could have requested photography for another occasion or purpose and the service would have been provided. The refusal was not based on ‘who they were.’

  • Az1seeit

    These so called “anti-discrimination” laws are selectively enforced since Christians freely exercising their faith are discriminated against. Sorry. That fake AD law IS unconstitutional at that point, and SCOTUS was charged with deciding those things…last I heard in Civics 101.

  • Patmos

    “In order for Phillips — and us — to prevail…”

    We’ve already prevailed, the rest of the world just hasn’t found out about it.

  • meamsane

    The true violation here was the idiotic ruling in Obergefell! It was a ruling contrary and damaging to the first Amendment.
    I believe in Scalia’s dissent that he said it was something like a thin veneer of legal reasoning. And John Roberts said it had nothing to do with the Constitution. They made it up as a Constitutional right. It is a self-evident truth that the very nature of Marriage is only a relationship between a man and woman. Let’s not pretend that the SC rules on the basis of the Constitution! It doesn’t!!!!
    I believe that this article is right. They will punt!

  • Jim Walker

    When you give them an inch, they want a mile, and now they are coming for your kids.

    • We ARE your kids.

      • Jason Todd

        In other words, you know Jim is correct, but you don’t want to admit it, just as you do not want to admit any part of your disgusting, perverse agenda.

        Of course, if you did admit you wanted to bugger our kids, long range rifles would suddenly get a whole lot of use.

        • Johndoe

          So scary…..not

      • Jim Walker

        What do you mean We ? Your legion ?
        I wish you were my kid because I would protect you from the perversion you were exposed to.

  • AvgJoe

    I think the Court will do much better if they analyze it and write the opinion by using structural analogies. This case doesn’t even have to be about religious conviction or homosexuals at all. The Court can avoid those hot button issues as viewing it as a simple case of government-compelled speech. If, for example, the baker was a Hillary Clinton supporter and was asked to bake a cake celebrating Trump’s victory, he would have been within his rights to decline to bake that cake and the government shouldn’t be able to force him to do so against his convictions because that is compelling speech. The gay wedding cake issue is no different structurally.

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