A Mild & Temporary Victory Over Gmarriage

A Mild & Temporary Victory Over Gmarriage

Well I’ll be dogged. The Supreme Court, led by (in)Justice Kennedy himself, said you don’t, at least sometimes, have to bake that cake. Here is the ruling (first printing).

Given this is (in)Justice Kennedy, the ruling is not a complete victory for sanity, reality, and religion. But it is a partial victory. And considering Kennedy’s unfamiliarity with rational reasoning, it is a delightful victory because few expected it.

I did not, predicting SCOTUS would punt and claim baker Jack Philips was in his rights refusing to bake a cake when gmarriage was at the time not recognized in his state. (Gmarriage is government-defined marriage, which is not actual marriage, which can only be between a man and woman.)

I was close, though. The court did say that “Given the State’s position at the time [of not recognizing gmarriages], there is some force to Phillips’ argument that he was not unreasonable in deeming his decision lawful.”

It All Depends on “Some”

That reason was not decisive, though. Instead the majority ruled that “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

Note carefully that “some”. Meaning, of course, that religious and philosophical objections to fictional marriages are in some cases not protected forms of expression.

And just what might these extraordinary cases be, monsieur Kennedy? He never says. This leaves a gap wide enough to slam your fist through. Kennedy’s watery language will encourage the bringing of suits by non-procreative-sex fanatics who are sure their situation is the exception that requires Christians to put a pinch of incense into the flames.

Kennedy’s feigned shock that non-procreative-sex fanatics used his original gmarriage decisions to disparage Christians is nauseating. All his talk of love and irrational animus guaranteed fanatics would fly at Christians with talons sharpened.

Of Two Minds

Thus his tut-tutting carries little weight when he writes that:

[S]ome of [Colorados’] commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.

It was Kennedy himself who in Obergefell—the gmarriage imposition ruling—implied that opposing gmarriage was hateful. You cannot blame State Commissions for following his lead. They thought they’d get away with it…

All We Need Is Wuv

Maybe this is Kennedy staying with his love theme. But the Supreme Court, though it can impose gmarriage, cannot impose love. He tries, though….

The Lack of Free Association

If the Court never abandoned freedom of association—with its implied freedom of disassociation—we’d never have to have these impossible debates. Now mine is a minority opinion, but consider that if there was true freedom of association, any baker could refuse any customer, and any citizen could refuse to buy any product (such as health insurance). The government would have never arrogated itself the “right” to impose gmarriage.

True freedom of association is dead. Even mentioning its revivification causes shrieks of terror….It means that you should click here to read the rest.


  1. Yup. Freedom of (dis)association is the key. And it was thrown out back in the ’60s.

    There is no freedom. By law.

  2. Sander van der Wal

    Businesses not selling stuff to particular customers is probably against the law. It is here.

    But businesses selling highly particular stuff and not selling other highly particular stuff to everybody is a business decision.

    So, the baker should only sell wedding cakes with a man figure and a woman figure on top. No customisation on that item possible. And we are very sorry too, but business is business.

    And if people want to put different figugers on top, that is after-market customisation. It is their cake, after the sale they can do to it what they want.

  3. DAV

    Meaning, of course, that religious and philosophical objections to fictional marriages are in some cases not protected forms of expression.

    The Constitution and its enumerated rights are slowly eroding and the erosion is being done by one of its primary safeguards.


  4. Gary

    SCOTUS left the cake out in the rain …

  5. Ken

    SCOTUS reviewed the case narrowly, relative to specific statutes, concluding: “The Commission’s actions in this case violated the Free Exercise Clause.”

    At issue was a matter of law, or perhaps more precisely, where the boundaries between relevant statutes lie relative to a given situation.

    Contrast that with the philosophical perspective, which Briggs is typical:

    “…the majority ruled that “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” Note carefully that “some”. Meaning, of course, that religious and philosophical objections to fictional marriages are in some cases not protected forms of expression. And just what might these extraordinary cases be, monsieur Kennedy? He never says.”

    EVERY [zero exceptions] Constitutional right has limits defined in case law. For example, freedom of speech does not protect telling “bomb” jokes at the airport (being detained/arrested is a price one might reasonably pay pending validation it was a poorly timed joke vs worse).

    Similarly, one’s right to religious freedom and freedom of expression necessarily has limits — a citizen cannot expect to exercise those to the point of forcefully changing the form U.S. governance (e.g. revolution/terrorism).

    Such limits are defined over time by multiple situation-specific cases. That’s a byproduct of the Common Law system used in the U.S. If the U.S. had a Civil Law system, the view that all scenarios need to be defined when the subject arises makes sense.

    To expect that a SCOTUS determination, which is supposed to always be centered on points of law consistent with a Common Law system, would extend beyond that to debate or define the boundaries of one facet of one particular Constitutional right (and one, not all such, involved in the case) — without specific context — is asking the Court to engage in an activity that is, arguably, beyond what it is authorized per the Constitution and other founding criteria.

    The high court addressed an issue of law that happened to involve a religious freedom factor. To argue & whine that the court did not address a philosophical theme associated with a particular religious factor shows a stunning lack of understanding of how the U.S. branches of government work.

  6. John B()


    Aaah yes, richard harris, one of my favorites … I’ve linked it on Briggs before (for some reason)

    Spring was never waiting for us girl …

  7. Plantagenet

    Every year round about this time me and my better students of law come together to have a last look at what we have covered over the year and, sometimes, any big decisions that have come down from the Canadian Supreme Court, the House of Lords, or SCOTUS. The general opinion among my students is that Masterpiece Cakeshop is mostly notable for what it did not do. Both sides seem to be claiming a minor victory, and both await future cases (most notably Arlene’s Flowers v Washington) assuming the court will address the wider issues. In this view Masterpiece will be a seven days wonder of no especial note. However it might contain one very important item, that is the suggestion that any tribunal which does not approach a case with neutrality ( I believe is the word they used) will see it’s results quashed. Leaving aside the very obvious question of how any tribunal can be neutral, and just how neutral will be interpreted, there is some scope for Masterpiece to take on a life of its own. The defendant in AF v W is already claiming the Washington Supreme Court violated this. But I doubt it will achieve much. As Ken points out there are no rights which cannot be limited and even if a future case was decided along the exact lines those who defend the baker would wish it would just be the start of another round, not the end of a fight. Not that such a decision is forthcoming because it isn’t. The climate of the times. Ten generations from now everything may have changed. Only the most dogmatic adherents of a Whig view of history thinks these things disappear. Anyways my thanks to SCOTUS for being so kind as to release the ruling a day before my last meeting of the year, it was a lot more fun than the Probate stuff we were going to do.

  8. DAV

    there are no rights which cannot be limited

    Presumably only when they would otherwise cause harm. So human sacrifice is off the table when exercising your right to freely practice your religion.

    What harm was done when the baker exercised his religion? Somebody’s feelings were hurt? They were disappointed by not getting what they wanted? Gosh! I want a $1M/week but have been sorely disappointed. Who should I sue?

    The SCOTUS ruling was a copout. Apparently if the Commission were more “neutral” (applied the same rule in all cases) then everything would have been fine. Really? Hurt feelings outweigh a First Amendment right? Which part of the Constitution guarantees that?

  9. Ye Olde Statistician

    Locally, a supermarket baker refused to decorate a birthday cake to the customer’s specifications and no one said boo. The customer was a Neo-Nazi and he had given his kids thinly-disguised Nazi names, which the baker declined to inscribe. The principle is the same. It doesn’t matter WHY the baker declines.

  10. Plantagenet

    YOS and Dav;
    Well this is it I suggested could an atheist baker refuse to decorate a cake that celebrated Easter be within their rights. The ensuing argument illuminated the fact that some view the law as nothing more than the vindication of their side of a disagreement. I try to point out that this (apart from being a blatant double standard) was not in the spirit of the Common Law. Then came the usual suspects…Patriarchy invented the system…It all benefits those with power…and so on and so forth…but ya know I think that regardless of that those who framed the system…and you can blame/reward Henry II for a lot of it…it is an enviable attempt to produce a system that is evolutionary rather than revolutionary. The law moves slowly most of the time, it is intended to. Believe it or not fewer people get hurt when it functions this way. Thankfully most of my students understand this. Like I said it was fun.

  11. DAV

    Moves slowly indeed. In this case, not a millimeter. They chose to rule on the capriciousness of application by the Commission but not a word on the constitutionality of that being applied. So it’s still in limbo. Essentially a waste of time.

    Gotta wonder why. They don’t exactly have a constituency to answer to. Maybe they wanted to still be able to face their friends at Clyde’s on M Street or maybe one of the places along K street. Who knows?

  12. Mactoul

    I agree with Sander van der Wal that a business may simply refuse to undertake a particular job like making same-sex wedding cake. This principle is, perhaps, even more basic than freedom of association. For otherwise it is slavery if a business was not free to decide on what it would undertake or not.

    For OP is decidedly wrong about freedom of association being pertinent here. The baker in question had no objection to doing business with gays.

  13. John Moore


    SCOTUS can and does go beyond the narrow confines you describe. It should have in this case. The first two clauses in the Bill of Rights are religious liberty protections. And yet, they get far, far less deference than the free speech clauses. That isn’t a point of law, it is a result of long bias in the Supreme Court against religious expression.

    This is the same SCOTUS that found a virtually unlimited right to abortion in the Bill of Rights – and manufactured that our of vapor – well, okay, a penumbra!

    In Kennedy’s Obergefell decision, he implicitly define religion as worship, which is a narrowing of the concept to irrelevance. This decision expands it slightly, but not nearly what it deserves.

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