lundi 26 juin 2017

Cakes are going to the Supreme Court

The Supreme Court announced today that they will take up the case of a Colorado baker next term. The baker, who makes custom cakes for weddings, refused to make a cake for a same sex marriage. The Colorado Civil Rights Commission determined that the baker was in violation of the Colorado civil rights laws, which bar discrimination based on sexual orientation.

The baker's case is that the cake is an artwork, and therefore an act of expression. You cannot be compelled against your will to participate in an expressive act that violates your religious beliefs. In similar cases it has also been argued that creating something for use in a ceremony is equivalent to participating in the ceremony, so compelling someone to do something for the ceremony would be to compel someone to participate in a ceremony that violates their religious beliefs. I don't know if the baker's lawyer's used that line of reasoning, or whether they stuck with the freedom of expression angle. (I haven't read the appeal's court briefs or opinions.)

The question before the court will be at what point commercial activity becomes protected speech. The baker has to convince the court that his interest to avoid being compelled to participate in expression that is against his will is not overridden by state law which is written to protect people from discrimination.

I don't know where the court will stand on this issue. There are a lot of factors at work here. The specific case at work here is less significant than a general principle. If they rule in favor of the baker, people might claim that cooking a meal or even setting a table setting is an act of expression, and they can't be compelled to take part. This would effectively eliminate the protections that the civil rights laws are meant to protect. On the other hand, if they rule against the baker, the great fear among the religious right is that preachers or clergy might be compelled to participate in same sex marriages, the theory being that since they accept a fee for their services, they are effectively a business, and cannot turn away people because of their sexual orientation. Similar cases have actually already occurred in some cases, so the fear is not groundless.

Regardless of which way the court rules, the implications will be far greater than just this baker.

For those on the left side of this case, there was a great sigh of relief when, after announcing that they would take this case, Justice Kennedy did not announce his resignation. Kennedy could once again provide the swing vote, but a Trump appointed replacement could be assumed to vote in favor of the baker.

via International Skeptics Forum

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