Thursday, June 28, 2018

The Colorado Bakery Case

The Supreme Court has come out with its decision on the Colorado bakery case. As expected, it ruled for the baker, a ruling which was inevitable after the hostile questioning heard in the oral argument.

The key to the 7-2 decision is the hostility shown by the Colorado Civil Rights Commission to the "sincerely held religious beliefs" of the baker. His beliefs were disparaged as despicable and derisively compared to defenses of slavery and the Holocaust.

The opinion makes clear that the government must apply the law in a manner that is "neutral toward religion". This is a rather straightforward application of the First Amendment. There is so much hostility toward religion in the way Colorado handled the case that there was no way the gay couple was ever going to win this case.

On the surface the decision appears to be so pedestrian as not to merit much commentary. However, there are some interesting nuances contained in the three(!) concurring opinions. Justice Gorsuch, joined by Justice Alito, filed a concurring opinion stressing that the Colorado Civil Rights Commission held the opposite way in another case. This was a case in which some joker went into three bakeries asking for a cake with messages disapproving of same-sex marriage. All three of the bakeries refused this request, and this guy likewise filed a complaint, which the CCRC denied.

Gorsuch felt the cases were similar and should have been treated the same. However, Justice Kagan, joined by Justice Breyer, field a concurring opinion showing that the two cases were different. Kagan, showing her usual good sense, pointed out that the three bakers in this latter case did not discriminate against the customer, "but instead treated him in the same way they would have treated anyone else." Kagan emphatically concludes that "A vendor can choose the products he sells, but not the customers he serves--no matter the reason. Phillips sells wedding cakes. As to that product, he unlawfully discriminates. He sells it to opposite-sex couples but not to same sex couples." Notwithstanding this strong statement that the baker Phillips acted unlawfully, Kagan still joined the majority opinion because the state's decision was "infected by religious hostility or bias".

Justice Thomas, joined by Justice Gorsuch, filed another concurring opinion, the thrust of which was to say that the Colorado decision was an abridgment of the baker's freedom of speech. Thomas thus articulates another, independent ground for overturning the Colorado decision.

Finally, Justice Ginsburg, joined by Justice Sotomayor, dissented from the decision. She stressed that "the proceedings involved several layers of independent decision making, of which the Commission was but one". She saw no reason why "the comments of one or two Commissioners" should be allowed to to overcome the basic fact that the baker's refusal to sell the wedding cake to the gay couple was an illegal act.

And what is the lesson we can take away from this case?  To me it is the fact that what is most important in our daily interactions with others is basic respect and tolerance of each other.  These are qualities that seem to be sadly lacking in our current polarized culture. The baker politely and respectfully told the couple that he couldn't provde what they ask. Instead of thanking him for his time and going on down the road to another bakery, they decided to pursue legal action. Unfortunately, this has become an all-too-regular occurrence in our sick society, in which people tend to resort to the courts for every perceived slight they encounter in life. (Just today news reports told of a Georgia man who has called 911 over 100 times for such  non-emergency requests as to get him a glass of milk, to bring him his cellphone, and to fetch his television remote.)

Obviously some kind of a line will have to be drawn, as is the case with many aspects of our civic life. With sales tax there is a line drawn in most states, basically between goods, which are taxed, and personal services, which are not taxed. Thus, your payments to doctors, lawyers, barbers, etc., do not have sales tax added on. Some sort of line such as this will need to be drawn.

Certainly, when I practiced law, I would have thought it outrageous if the government had come into my office and tried to dictate which cases I could and couldn't take on. Government coercion like this has no place under our Constitution.