We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

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Samizdata quote of the day

There is no inconsistency here. Just as we would support a gay baker’s right to decline to convey a homophobic message, we support this Christian baker’s right to decline to celebrate a same-sex wedding. That is because Masterpiece isn’t really about religious liberty – apart from claims that the Colorado Civil Rights Commission itself treats the religious and nonreligious differently, something that concerned the swing Justice Anthony Kennedy at oral argument – but about freedom of speech.

Marian Tupy

81 comments to Samizdata quote of the day

  • RRS

    From a comment of December 8, inst. on the cited libertylawsite.org:

    To continue with a line of thought in yesterday’s comments:
    http://www.libertylawsite.org/2017/12/07/phillips-likely-to-win-masterpiece-cakeshop-case-five-votes-to-four/

    If the Constitution, or its amendments, are relevant here, then the most relevant is not the First, but the Ninth Amendment.

    There are assigned functions of legislatures and legislation to provide for the organization and operation of governments.

    There are NO assigned legislative functions to impose rules of “Just Conduct.”

    When legislatures arrogate a power to impose rules of Just Conduct, for the objective of a concept of just conduct, rather than for a specific, limited, objective of public health, safety or security (police powers), they impact individual liberty – including those Ninth Amendment rights.

    The development of rules of just conduct through direct interactions of individuals in their relationships is a major factor in establishing and maintaining the cohesion of a social order. Interventions in those relationships, including through legislated rules, dilutes that process of cohesion. Consider what we have been observing from such legislation over at least the past 60 years.

    Humans must be free to err. Legislation can not direct them to succeed – or, even to “be better.”

    The issues here are not grounded in whether the conduct is “speech,” “religious conviction,” or something to be labeled “Dignity” or (pejoratively) “discrimination;” but, rather grounded in the various destructive impacts on individual liberty and social cohesion that result from the intrusion of legislation into the areas of private relationships and private law, which are outside the designated functions of organization and operation of governments.

  • Alisa

    Thank you RRS, I was just beginning to wonder what does any of that have to do with freedom of speech.

  • Paul Marks

    Actually the case is about PRIVATE PROPERTY RIGHTS.

    The baker is not being sued for his words – he is being hit for refusing to use his bakers shop (and his own labour) to bake a cake – i.e. for refusing to be a SLAVE.

    Contrary to the Emperor Diocletian (and, perhaps, to Mr John Stuart Mill) a business being “open to the public” does NOT make it a “public matter” – it remains PRIVATE PROPERTY.

    “But Paul that means a baker could refuse you as a customer because you are bald, or because you have a Jewish family name”.

    Yes I KNOW THAT – I support private property, I do not want to make the baker my SLAVE. I reject “anti discrimination law” in relation to a private business.

  • RRS

    Looking back at the December 8 citation; there are 67 comments. So, here is the one referred to:

    What has given rise to this issue and the way in which it impacts individual liberty? Is it really about “speech” or “religion” (just because there are judicial precedents or references in historic [Constitution, e.g.] documents)?

    If we look more carefully what will we find?

    Begin here:

    “. . . virtually everyone agrees that if a ** government** can demonstrate a compelling interest, it may override a liberty claim.”

    Move on to:

    “As Phillips’ attorney conceded, if a creative professional objects to serving someone on the basis of race, the **state** may well have a compelling interest in requiring such service.” [**added]

    People, individual human beings, have “interests,” the argument that the “government” or the State” may have a “compelling interest” is purely a judicial construct – implying (at best) that the Government and the State are synonymous with “Society” (comprised as it is of individuals).

    Those cases where large groupings within a society have a particular interest (whether economic, sociological, or otherwise) and seek to use the mechanisms of government for its advancement, do not create a “government interest.” Oligarchs or tyrants using the forces of a State to advance their interests do not create an interest of the State.

    In short, governments and states do NOT have interests – people do, and use governments and states for those ends. In our current conditions, this has been done chiefly through Rules of Policy (legislation, regulations, ordinances and their excrescences).

    So, if there are “compelling interests” directed through government action, they are generated by legislation, which in this case impacts a particular freedom that is being ignored at the peril of accelerating fissions in our social orders.

    That freedom is the freedom to associate, or freedom from association that constitute the individual liberty of freedom of association. That freedom rests upon individual determinations – selections, sometimes for objectives (commerce, e.g.) but upon other motivations as well.

    Historically (and by daily experience) human associations have been matters that have fallen under “Private Law ,” not related to the organization or functions of the “State” or governments (“Public Law”). Our legislatures have departed from that history with the creation of conditional constraints on private associations and impositions of obligations (coercions) for particular ends of particular interests. Much has been framed as providing for (designing) a “better society” or eliminating flaws in society as it has developed.

    It may seem strange to assert, but our society, has come more slowly into the “Open Access” to freedom of association and to the free formation of associations than many would think. Latterly, we appear to show signs of recession from that “Open Access,” and some actual suppressions.

    One sign may be seen in the failure to observe the effects of trying to “improve” society by the invasion of legislation into the areas of private law – as here; where this case arises as a matter of freedom of association – not as the “compelling interest of the State.”

  • Paul Marks

    Of course there is a religious connection – as the “liberal” activists are determined to drive Christians out of the “public square”. Pray on Sunday if you like – but do NOT live your Christian faith in ordinary life or the state will smash you, that is the message of these “liberals”.

    And what about Islam?

    The “liberals” (i.e. the totalitarian socialists who dominate the education system and “mainstream media”) will not touch Islam – because, unlike Christians, Muslims are not just shocked and sad when attacked. Muslims hit back. And the left also see Islam as an ally against the traditional West – at least for now.

  • RRS

    @ P M:

    We have to take the case as it falls [Coke]. Listening through the entire hearing might not take even you to considerations of an underlying issue of “Property Rights” (the latter with issues of its own).

    This is a “people” issue, about the relationships of people, not about the place or circumstance in which the relationship occurs (it follows upon a photographer being required to perform certain acts – bringing her into a relationship NOT of her free choice).

    Now, if it were a rental restrictions, or zoning case that PREscribed or PROscribed use of the property, we might be in your forum. Here it was the action of”decoration” – use of a skill; not property.

    Meanwhile we can chew on what is the concept of “Property.” Is it not a relationship?

  • Alisa

    This is a “people” issue, about the relationships of people, not about the place or circumstance in which the relationship occurs

    Property is an extension of “people” (persons), so I’m not sure the distinction is germane.

    Meanwhile we can chew on what is the concept of “Property.” Is it not a relationship?

    Indeed.

  • Mr Ed

    Could a gigolo be sued for refusing service to a male customer in jurisdictions where such conduct is otherwise lawful?

  • bobby b

    The right to free speech must necessarily include the right not to be compelled to make speech.

    As Kennedy and several other Justices pointed out in the hearing, they’re going to need to draw a very fine line if they are to find for the baker. (Here’s the transcript of the hearing. I find these fascinating to read. Others find them deathly boring.)

    The baker pointed out that he was willing to sell them any cake on his premises. He had finished cakes that he would sell to them. What he was not willing to do was to produce a cake and decorate it such that it celebrated a gay marriage. It’s that bespoked decoration – and what that decoration says – that provides the lever that will convince Kennedy to vote in favor of the baker. The baker does not wish to violate any nondiscrimination statute in the sale of his cakes – he just doesn’t want to have to say, with that cake, “here is a valid marriage between two men.” That would be compelled speech.

    But the Court is concerned that people will use such a ruling to figure out ways to cloak commercial products and services in speech, and thus find a way to use “freedom of speech” to cover for purely discriminatory sales of products or services. Plus, the line is tough to draw; when a pro photographer produces a portrait, using all of his skill of focus and shading and framing to make a statement, is there a speech component to it? Some say yes.

    This case does not concern freedom of religion because the line of cases on that subject has already carved out that, while the government may not promote or prohibit any religion, it may prohibit specific acts done in furtherance of a religion if those acts otherwise violate the law. For that reason, government may pass laws prohibiting some kinds of religion-required butchering of animals, or the use of illegal drugs as a religious sacrament.

    Thus, “freedom of religion” isn’t going to be of use in attempting to violate non-discrimination laws for the sale of goods or services. “Freedom of religion” gets you nowhere in this case. You remain free, as always, to believe in your heart that gay marriage is wrong; you simply cannot deal in commerce in a discriminatory manner in service to that belief.

  • Alisa

    But the Court is concerned that people will use such a ruling to figure out ways to cloak commercial products and services in speech, and thus find a way to use “freedom of speech” to cover for purely discriminatory sales of products or services.

    And that is precisely why this should have been framed as an issue of private property rather than free speech, and also precisely why it wasn’t.

  • Ferox

    Why should it make a difference anyway? If you don’t want to do business with someone because of their sexual orientation or the color of their skin, you are a foolish bigot … but why should anyone be able to force you to do other than your bigoted heart desires?

    Framing it as a free speech question for this specific case is simply avoiding the larger issue, which is: the state should not be able to compel people to participate in what should be a voluntary exchange. You should be able to say no for any reason, or for no reason at all.

  • bobby b

    “And that is precisely why this should have been framed as an issue of private property rather than free speech, and also precisely why it wasn’t.”

    I’m confused as to what you’re saying. What specific legal argument are you recommending? I see that Paul said this:

    “Contrary to the Emperor Diocletian (and, perhaps, to Mr John Stuart Mill) a business being “open to the public” does NOT make it a “public matter” – it remains PRIVATE PROPERTY.”

    As a statement of personal moral belief, this may well be true, but it has no foundation in Western legal thought, and in fact it specifically contradicts American law, which holds that placing your private property out into the stream of commerce places it into the jurisdiction of court and legislature.

    I’m not disagreeing with your moral/philosophical point. I just want to make sure you’re not claiming that this is an accepted legal argument in the environment of USA federal law. (Lawyers learn early that aspirational speech goes nowhere in a precedent-based courtroom.)

  • bobby b

    ” . . . the state should not be able to compel people to participate in what should be a voluntary exchange.”

    Okay, this clears up some confusion on my part about this conversation.

    There are two conversations going on here. One involves the current legal environment as defined by USSC precedent, provisions of the US Constitution, and the facts of the cake case.

    The second conversation . . . well, every statement in it ought to be preceded by “come the revolution . . .” 😆

  • Julie near Chicago

    The fundamental issue in this sort of case is the issue of whether A (or a bunch of guys operating together as Bunch A) may (not can) use force or the threat of it to assure that B (or a batch of guys operating together as Batch B) to do as he, A, requires.

    This is more fundamental even than “property rights.”

    The first and most important issue is the issue of self-determination. “Property rights” follow from the fundamental principle that it is never legitimate to treat a person as an object. (An object: a thing whose value lies, intrinsically and inseparably, in its usefulness to some person or group in attaining its ends.)

    That is why the baker, and (pace Richard) also the only railroad between Cuthakitchi and San Maladrino, may do business with such customers as wish to purchase their goods or services, whereas no one has a right to require them to sell to or to serve anyone at all.

    .

    Though however clear-cut this fundamental principle may be, putting together statute law that aims to ensure in actual practice the right of self-determination is the very devil.

    For most of us, most of the time, π = 3.14 is close enough. But it isn’t actually quite accurate, is it.

    If you insist on an absolute, unrestrained right of self-determination, then what about giving an accident victim a saline I-V without permission? Or insisting that your hospital patient is not permitted to do a header out the 10th-floor window?

    .

  • Alisa

    The second conversation . . . well, every statement in it ought to be preceded by “come the revolution . . .”

    🙂

  • Alisa

    Why should it make a difference anyway? If you don’t want to do business with someone because of their sexual orientation or the color of their skin, you are a foolish bigot …

    But the baker did not refuse to do business with the gay couple, he just refused to provide that specific decoration which they demanded. Private business owners refuse to do specific jobs or to fulfill specific requirements from clients all the time, this specific requirement should be no different.

    I’m confused as to what you’re saying. What specific legal argument are you recommending?

    See above.

  • the other rob

    …when a pro photographer produces a portrait, using all of his skill of focus and shading and framing to make a statement, is there a speech component to it? Some say yes.

    I’ll bite, bobby b. Surely this may answered by reference to copyright law? If a creative work fixed in a tangible medium of expression isn’t speech, what is? Other that unrecorded speech, of course.

  • Ferox

    But the baker did not refuse to do business with the gay couple, he just refused to provide that specific decoration which they demanded.

    But again, why should that make any difference?

    Let’s give the authoritarian Left their best case, and say that the baker is a horrible bigot who hate gays, refuses to do any business with them whatsoever, and subjected the gay couple to invective and ridicule as he threw them out of his shop.

    So f***in’ what? It’s a tactical mistake, and a cop-out, to plead a free speech right to refrain from artistic expression in support of disagreeable causes, when the argument should be one in support of the fundamental right to be free to do as you wish with your own labor, whether it is moral or not, whether it is bigoted or not, whether it is popular or not.

    That may not be the current state of U.S. law, but in my opinion it is the argument that should be made.

  • Fraser Orr

    That may not be the current state of U.S. law, but in my opinion it is the argument that should be made.

    I hope we don’t go down that road. The law is what the courts should decide, not some other standard such as their own sense of equity or moral outrage. Have not libertarians argued that for years?

    I am perhaps unique here in thinking that the USSC should actually come down against the baker. To be clear, I think that despite the fact that the behavior of the state of Colorado has been nothing short of a moral outrage. But courts don’t decide on the basis of moral outrage, they decide (or should decide) on the basis of black letter law. It is a slippery slope indeed to demand justices ignore the letter of the law in the name of their own moral sensibilities. In fact, such thinking has lead to all sorts of terrible things.

    In regards to the baker himself, let us be clear on what the case says. It does not force him to use his labor to make a cake, or force his store to support something which he doesn’t believe in. In fact what it says is that to engage in the business of cake making in Colorado you have to meet certain standards, such as hygiene, treat your workers fairly, provide for disabled customers and, yes, provide your services without discrimination.

    Now me? I don’t think any of those rules should be in place. Unfortunately I am in the tiny minority. This doctrine where the state can determine the rules under which you can do business, and determine them in a fairly arbitrary way, is pretty well established in the law. It might be stupid and oppressive, but it is the law, and courts decide what the law says, not what their moral sensibilities demand.

    The idea that am man or woman has absolute rights to the fruits of his labor, which idea I and many of my fellow libertarians agree with, is not one the general public agree with, and were it to be enforced everything the government does would collapse. That might be in some ways a good thing, but not something that is going to happen, not that way anyway.

    This is why the court case is about free expression, it is the only legal leg they have to stand on, and frankly I don’t think it is a strong one. No one is saying the baker may not make art, they are saying that to be a public accommodation like a store, he must offer his artistic services without discrimination. He can do whatever he likes outside of that commercial, putatively public, realm.

    So I don’t see how the court can, in good conscience, find in his favor. Even though the state has absolutely outraged moral decency in their actions. It is possible the USSC can dig something up out of the fourteenth amendment, that old catch all seems be usable to justify all sorts of stuff, much of it dangerous nonsense.

    In a sense I hope for this unfortunately baker they find wrongly in his favor. But I don’t see how the law supports his case.

    The solution, insofar as their is one, is not to demand that the justices undermine the law by ignoring it and finding based on some other standard of moral outrage or equitable treatment, but rather the solution is to change the outrageously oppressive public accommodation rules in Colorado (or, alternatively, move to a state where they are less onerous.)

    However, I do find it ironic that when Trump got in to office the constant buzz in the media was from a whole bunch of fashion designers saying that they would not design for Meliania Trump. Which seems to rather defeat the whole public accommodations argument. However, classy lady she is, she ignored them.

  • Ferox

    I am not specifically talking about arguing in front of a court, though. I am talking about the argument that libertarians should be making in the culture, to their neighbors and friends, to their co-workers.

    Our labor is ours. It is not a public commodity, even when we choose to sell it. Prostitutes should still get to pick which of their clients they will service. Tailors should get to choose which clothes they will make. Ditch diggers should be able to say yes or no to any job that is offered to them.

    That is why I said, in another comment thread (on Instapundit?) that laborers pressed into involuntary labor should simply do a shitty job. They tried to do it the honest way, and the fascists took their livelihood from them. But no court can compel a baker to bake a cake that isn’t chewy and dry. Ultimately we are all the captains of our own ships, whatever the courts may try to force us to do.

  • Julie near Chicago

    I figured Richard (Epstein) would write about this, and so he did, in one of his Defining Ideas columns. As is, unfortunately, so often the case, his piece goes on about the fact that the unhappy couple had a plethora of bakers within throwing distance who would have been delighted to make their cake, concluding that the situation is therefore different from that of “public utility” where perforce (because barriers to entry, too hard to compete, too expensive, impractical, yadayadayada) only one provider can be accommodated, so in the end there is only one provider, and it would be unfair/overly-burdensome to the unserved not to serve them.

    This is not my argument.

    But there are some interesting comments, such as the one which I’m quoting here, long as it is. I think it puts the issue (the real, moral issue, the issue that alone legitimatizes law — not the issue of what the actual law is, which bobby rightly notes is far from the same thing) particularly well.

    I do think commenter “ADM64” goes a little too far in the last sentence quoted.

    The meat is in the second para, and of course the entire point is made in the sentences I put in boldface.

    https://www.hoover.org/research/let-them-bake-cake#comment-3637666137

    ****

    “This is a good article, well-reasoned like many of Mr. Epstein’s other ones, but it suffers from a more fundamental point. An attempt to challenge the constitutionality of the anti-discrimination laws without a reference to the natural rights theory that underlies both it and the Declaration of Independence, relying instead on economic principles (however correct the latter may be – and Epstein is also right to note that “behavioral economics” does not in any way refute classical economics). This tends to reduce the First Amendment to a mere provision of the Constitution and not an expression of the need to protect the individual citizen’s natural rights from the government (and thus from minorities).

    “The constitution, of course, also protects the freedom of contract, which is likewise a natural right. Indeed, the issue is not really religious freedom at all: it is that no one, gay or straight, has a right to anyone else’s time, labor, person, property or good opinion. Moreover, no one requires permission to enter a livelihood on the state’s terms, not if life and liberty have any meaning at all. The Court should instead be asked to consider the implications of arguing otherwise. They should be asked to consider that if the state can dictate who one must serve, and if rights are mere permissions that society grants, then it can restrict those rights as well. Indeed, if fashion changes, we could put gays back in the closet, women back in the kitchen, and blacks back in the fields. Which means that the state can’t argue why gays, blacks, women or other not fully enfranchised groups have any rights at all, and why discrimination is wrong, beyond the fact that at this point in history, a majority of people think otherwise. Well, southern racists thought Jim Crow system was fine, too, and it reflected society’s views. If the only thing wrong with that was that later on in time, the attitude of the majority changed and we declared it retroactively to be wrong, then no one’s rights mean anything. There is then only power, not justice, nor rights. Indeed, the only difference between our system and Saddam Hussein’s “the law is whatever appears two inches above my signature” is that we validate our particular injustices via the vote of a majority empowered to decide whatever it wants, or ratified by courts that make the law up as they go along. That may be many things, but it is neither justice nor the rule of law. Indeed, it is an utterly amoral system.

    “Relying on a positivist view of the constitution, arguing economics instead of principles of right, implies only that the government has the right to do what it wants…. [SNIP]”

  • Fraser Orr

    @Ferox
    Our labor is ours. It is not a public commodity, even when we choose to sell it.

    Oh, I agree, unfortunately the large majority don’t, except when you put it to them as a platitude. As soon as you use this as an axiom or foundation for an argument you quickly lose your audience.

    “Certainly,” they tell us, “your labor is your own, but you rich still have a duty to support the poor, and we will make sure you do it.” “Of course your labor is yours, but you have a civic duty to perform jury duty/serve in the army/be a doctor to people who can’t afford it etc.”

    It is the libertarian way… make a moral axiom which people agree with then build on it to establish a libertarian viewpoint. You don’t carry people along with such rational thinking, you lose them very quickly.

  • bobby b

    “In a sense I hope for this unfortunately baker they find wrongly in his favor. But I don’t see how the law supports his case.”

    His one hope stems from the fact that he offered to sell to the couple everything – cake, icing, tray, all assembled and ready – except for his own speech – meaning, everything except for his own personal touch in decorating the cake into one that said “here is a proper marriage.”

    I’m not sure exactly what this entails beyond the iconic bride-and-groom plastic figure on top of the cake, which would presumably be a groom-and-groom instead, or if there is other decoration or greetings or words written atop a wedding cake, but it sounds like that’s all he denied to the buyers.

    But it would be tough to narrowly define the communicative aspects of a cake such that future cases involving beef or rent or auto insurance could be guided by the legal principle they set out in their opinion.

  • Ferox

    If the only thing wrong with that was that later on in time, the attitude of the majority changed and we declared it retroactively to be wrong, then no one’s rights mean anything. There is then only power, not justice, nor rights.

    Precisely this. If we concede to the fascists the important point – that the state has the inherent right to compel the individual in the application of his own labor – in order to win a case for a Colorado baker on the technicality of some loophole for creative expression, we will have won the battle and lost the war.

  • the other rob

    I find these fascinating to read. Others find them deathly boring.

    I, too, enjoy reading USSC transcripts and decisions. Sotomayer is going to do what fascists do, but I got the sense that Kagan might be wavering. I’m not saying that it will go 6-3, but I wouldn’t rule it out.

    This made me chuckle. All it needs is “Mic drop.” at the end.

    JUSTICE ALITO: So if someone came in and said: I want a cake for — to celebrate our wedding anniversary, and I want it to say November 9, the best day in history, okay, sells them a cake. Somebody else comes in, wants exactly the same words on the cake, he says: Oh, is this your anniversary? He says: No, we’re going to have a party to celebrate Kristallnacht. He would have to do that?

  • Ferox

    But it would be tough to narrowly define the communicative aspects of a cake such that future cases involving beef or rent or auto insurance could be guided by the legal principle they set out in their opinion.

    Yes. And I agree with Fraser too, that this is a losing argument for libertarians. There is nothing the non-libertarian community loves more than putting their foot on someone else’s throat.

    That is why it is time for laborers who find themselves compelled to labor against their will to suddenly become poor at their jobs.

  • bobby b

    “For most of us, most of the time, π = 3.14 is close enough.”

    And there’s the rub. If the USSC decides this for the baker, they’re going to have to set out some legal statement that defines exactly what it is that allows the baker to refuse to decorate the cake in the face of the nondiscrimination statutes, and whatever they say is going to have to be usable in similar cases involving rent and beer and insurance, so two decimal places isn’t going to cut it, otherwise it will be misused and misunderstood and will come back to them for clarification over and over.

  • RRS

    No, the underlying issue here is not within the concept of “property.”

    Consider: One is a singer at ceremonies.
    Another is a composer of poems or lyrics. Another is a photographer. Another arranges flowers. Another does hand calligraphy (invitations, notes).

    We are observing kinds and degrees of associations.

    The Ad Damnum here is not a loss of any kind, it is disobedience to interpretation of legislation that purports to set Rules of Policy for Just Conduct in a form of conduct under the guise of “regulating commerce.”

  • Eric

    I hope we don’t go down that road. The law is what the courts should decide, not some other standard such as their own sense of equity or moral outrage.

    To a point. Congress certainly has the power to override the courts in this issue.

  • Alisa

    No, the underlying issue here is not within the concept of “property.”

    We are observing kinds and degrees of associations.

    Which is what the concept of property is all about; it is absolutely meaningless outside the context of society and of other people in general.

    As to your examples RRS, like I said (or meant to say?) earlier: one’s property is simply an extension of oneself in the societal context.

    Ferox, I was simply stating the facts for clarity – plus using that reply to make more or less the same point you are making, but also to address Bobby’s question.

  • Julie near Chicago

    bobby b — December 16, 2017 at 2:24 am:

    “For most of us, most of the time, π = 3.14 is close enough.”

    And there’s the rub. … two decimal places isn’t going to cut it….

    Aye. :>((

  • Julie near Chicago

    1. SCOTUS does have already the precedent of overturning, or weakening, earlier decisions it has made.

    .

    2. Presumably its job is to compare the statute law being questioned, at least in the context of a particular case, with the strictures set forth by the Constitution, to see if the latter support a government’s position that it is entitled to do whatever it’s trying to do, or has decreed shall be done. Or, as someone above hinted, the particular interpretation (and therefore the application) of it in the case in point.

    .

    3. Randy Barnett argues that SCOTUS, at least, should be commencing from “an assumption of liberty,” just as in criminal trials the defendant is supposed to enjoy a presumption of innocence. Gee, good point!

    .

    4. Randy also notes that in reality SCOTUS is reluctant to go against “precedent,” and in practice he’s fashioned his arguments in such a way as to avoid its having to do such a thing. Hence “This far and no farther” in the HealthFraud case of NFIB v. Sebelius. (He and others also note that SCOTUS is not immune to the tide of popular opinion when it considers cases.)

    .

    5. Some libertarians argue that persons have not merely a right but an actual duty to refuse to comply with unjust law. George H. Smith has made this argument, as have quite a few others.

    If this is correct — but on what grounds does the right to do so, if it exists (and I think it does; but in the real world, one must bear the consequences), become a positive duty — if there is such a thing?

    And if failure to comport with statute law is sometimes a duty, then if a judge refuses to base his judgment of a case on the sole or nearly sole grounds that legal precedence is no excuse for judicial complicity in a miscarriage of justice, isn’t he simply exercising his right, or duty, of something that is, given his field of action, at least analogous to “civil disobedience”?

    (As a matter of fact, SCOTUS judges do do this, when they write opinions dissenting from the majority decision/opinion to uphold what they believe to be an unConstitutional law or application; and when they assent to majority opinions striking down unConstitutional laws or parts thereof.)

    .

    6. Although it is true that we (libertarians and I hope most conservatives) do not want judges to pull decisions out of their personal inner stew of sensibilities and personal judgments of Right and Wrong, we also want judges to judge according to the strictures of written law; and some part of that judgment has to be based on whether the particular judge believes the law represents a legitimate (Constitutionally-approved) application of governmental power.

    It might seem a bit far a-field, but it is not, to note that Randy argues that is not, not, an example of “Judicial Activism” nor “Judge-made Law” for a judge to strike down a statute which he sees as allowing to government a power it does not have per the controlling Constitution.

    …But… what if your State Constitution does empower the state government to enact Jim Crow laws? Can a state’s highest appellate court legitimately refuse to uphold Jim Crow laws? (So we enacted Federal Constitutional amendments making such states’ laws unConstitutional, but what about when the Federal Constitution allows or can be argued to allow unjust laws?

    .

    There comes a point where Principle A and Reality B are going to collide. Which is why π = 3.14 is insufficiently accurate. Really, the only fully accurate statement is that π )

  • Julie near Chicago

    Above should end:

    There comes a point where Principle A and Reality B are going to collide. Which is why π = 3.14 is insufficiently accurate. Really, the only fully accurate statement is that π < 3.1416.

    Richard points out that the Common Law has proceeded by the method of successive approximations, just as mathematics proceeded to find ever-closer approximations to calculational accuracy of the area of a circle by the same method.

  • I have always casually assumed that the baker was deliberately targeted, so his efforts to accommodate the ‘customers’ as far as he could were always bound to be fruitless. (I know a similar case in Glasgow concerning a visiting US street preacher some years ago; he did what he could with “we are all sinners” and “forgiveness for all” but the PC heckler gang who targeted him were determined to get him legally for ‘hate speech’ and so did.)

    I’ve seen mainstream media coverage in which the fact that the two men just happened to visit this particular baker is presented very much as “it so happened that …”. If anyone thinks I am being too cynical, and it did indeed so happen that …”, by all means mention why you think so.

    (I fear the point has no legal significance regardless.)

  • Alisa

    I have always casually assumed that the baker was deliberately targeted

    I’ve been pretty much taking it for granted all along.

    (I fear the point has no legal significance regardless.)

    Actually, I do wonder about that.

  • Paul Marks

    RRS – it is a “people” question in that it is an anti SLAVERY case, if someone can be made to work for someone else, by the threats of the state, then they are a SLAVE.

    If I was forced to bake a cake, say for the local Nazi party, I would make sure to put as much filth and mess in the cake as possible – or just get it from the kitchens where I will be in a few hours, where it is normal to mix clean stuff and dirty stuff (not out of malice – it is just the way things are done).

  • Paul Marks

    Under the 13th Amendment slavery is unconstitutional – so the demand that someone bake a cake for someone they do not wish to do business with, falls.

  • Fred Z

    “The freedman … exposed, in true and lively colours, the vices of a declining empire of which he had so long been the victim; the cruel absurdity of the Roman princes, unable to protect their subjects against the public enemy, unwilling to trust them with arms for their own defence; the intolerable weight of taxes, rendered still more oppressive by the intricate or arbitrary modes of collection; the obscurity of numerous and contradictory laws; the tedious and expensive forms of judicial proceedings; the partial administration of justice; and the universal corruption which increased the influence of the rich and aggravated the misfortunes of the poor.”

    Gibbon, via Derbyshire, bolding mine, on why Romans often defected to the Barbarians.

    The rule of law in western civ is dead, dead, dead. Sauve qui peut.

  • Fraser Orr

    @Niall Kilmartin
    I have always casually assumed that the baker was deliberately targeted,

    I have always assumed that too. After all, the normal reaction to a supposedly homophobic baker would be “f**k you, I wouldn’t want your f**king cake anyway” and then go to one of the many other fine baking establishments in Colorado Springs(?). And that solution I think would work well for everyone. Why would you want an alleged homophobe being a contributor to your wedding anyway?

    @Julie
    Julie near Chicago
    Presumably its job is to compare the statute law … with the strictures set forth by the Constitution, to see if the latter support a government’s position that it is entitled to do whatever it’s trying to do,

    I think it is weaker than that. The job is to see if the Constitution explicitly prevents the State’s action (and whether federal law, more generally, does so.) I see nothing in the Constitution promising free association or anything else that this law offends, aside from all sense of decency, equity, morality and fairness of course, but those aren’t in the constitution.

    Randy Barnett argues that SCOTUS, at least, should be commencing from “an assumption of liberty,”

    I don’t agree. They should proceed from the black letter of the law, and the ninth and tenth amendment which means if the law doesn’t say “don’t or do” then do whatever the heck you want… which might be what Barnett meant.

    Some libertarians argue that persons have not merely a right but an actual duty to refuse to comply with unjust law.

    I doubt I agree with that. The word “duty” is a tool used by tyrants to make others do their bidding. What are we to say, that all libertarian bakers should, by duty, discriminate against gay couples?

    I mean this is the flip side of the baker argument. He certainly shouldn’t have to bake the cake, and the state shouldn’t be involved. But really, refusing to bake a cake for people just because they are gay is a kind of ugly viewpoint. As others have argued it isn’t much different that refusing to bake a cake for a mixed race couple. You should be within your rights to do so, but, to me, you don’t make a very sympathetic defendant.

    The reality of common law and constitutional law is that our rights are often formed in the crucible of unsympathetic defendants.

  • Clovis Sangrail

    @Fraser Orr

    But really, refusing to bake a cake for people just because they are gay is a kind of ugly viewpoint.

    That is a legitimate point of view but I don’t see it that way (and I’m hoping I’m representing some others otherwise I should just shut up).
    I have assumed that it is what was said on the cake that mattered-otherwise off-the-shelf would have been fine. The baker offered them such cakes so he didn’t really “refuse to bake them a cake”, rather he refused (I assume) to apply his art or craft to making a visible public statement in support of something which he thought was immoral.
    You could say the same could apply to the mixed-race couple and you would be right in principle. The difference is that many of us are fairly anti gay marriage not because we disapprove of the association, not because we disapprove of homosexuals, but because we think that the institution has been promoted and procured as a deliberate attack on heterosexual marriage (a la Frankfurt School).

    At that point, it is the “compelled speech” issue that is anathema to me. I wouldn’t even want to do that to a communist (and believe me, that is an acid test).

  • Fraser Orr

    @Clovis Sangrail
    but because we think that the institution has been promoted and procured as a deliberate attack on heterosexual marriage

    There might be some Machiavellian forces pulling the strings in the background, but can’t you accept that the vast majority of people engaging in homosexual marriage are doing so for the same reason that people have always got married? To make a commitment in public and set of legal agreements in private to the person they love, and to have that love recognized as a valuable contribution to the stability of society. You might not agree with their viewpoint, but nobody is forcing you to marry someone of your own sex, they just don’t want their right to do so to not be interfered with.

    Perhaps the whole part of the government recognizing it for the stability of society is wrong, perhaps the government should just not be involved, however, I doubt the sincerity of people making that claim when they campaign exclusively to prevent homosexual marriage and campaign not one whit to eliminate the government from heterosexual marriage.

    It isn’t clear to me why it is destructive to traditional marriage, in fact I think it enhances it in a world with effective 70% divorce rates.

  • bobby b

    ” . . . perhaps the government should just not be involved . . . “

    Too late.

    So many of our laws use marriage as a defining point that “marriage” now has meaning far beyond which two people are allowed to be in a legally-defined permanent relationship.

    Marriage now defines entitlement in our health care and insurance law, it defines who may automatically inherit under probate laws, it entitles ownership interests in property, it affects legal concepts of privilege . . .

    We long ago passed the point where it only speaks to permanent relationships. For this reason alone, prohibiting the label of “marriage” to gay couples is decidedly unfair. For those who decry some undefined loss to the concept of marriage from allowing this expansion, understand that the concept was hijacked long ago for convenience. If someone truly wanted to defend some religious-based concept of “marriage”, they should have protested the first time someone passed a law transferring property interests automatically to a spouse.

  • Fraser Orr

    @bobby b
    Too late.

    Not really, we could go the opposite way, eliminate traditional marriage and replace it with domestic partnership. Perhaps even replace it with three or four different types of domestic partnership from which you can choose with different sets of rules and obligations, to give people a choice (plus a roll your own option.)

  • RRS

    Julie writes:

    5. Some libertarians argue that persons have not merely a right but an actual duty to refuse to comply with unjust law. George H. Smith has made this argument, as have quite a few others.

    If this is correct — but on what grounds does the right to do so, if it exists (and I think it does; but in the real world, one must bear the consequences), become a positive duty — if there is such a thing?

    And if failure to comport with statute law is sometimes a duty, then if a judge refuses to base his judgment of a case on the sole or nearly sole grounds that legal precedence is no excuse for judicial complicity in a miscarriage of justice, isn’t he simply exercising his right, or duty, of something that is, given his field of action, at least analogous to “civil disobedience”?

    At the risk of rousing the resting Laird, I will point out here again the need to consider the distinctions between Rules of Policy and LAW.

    LAW can be understood to define and describe the recognition, acceptance and requirements of performance (for “order”)of obligations by the members of a social order for the relationships within it – thereby establishing “rights” amongst the members.

    In our constant focus on “rights” (which generally rest on concomitant obligations of others)we should not lose sight of the vital individual capacity of Power.

    One thing that the label of “Democracy” fits, is as a process for the dispersal of power throughout the “Demos,” giving rise to needs for instrumentalities (including cooperation)for its exercise.

    Rather than some exrcise of “rights,” it is that exercise of power against (or countering) the sources that would impose (via Rules of Policy) particular obligations displacing the obligations known by experience to be concomitant to individual rights.

  • Julie near Chicago

    Fraser, December 16, 2017 at 3:38 pm:

    “The [Court’s] job is to see if the Constitution explicitly prevents the State’s action….”

    [Boldface mine.]

    That is indeed the Progressives’ and other legal positivists’ view. It assumes that what the State does is OK, unless the Constitution explicitly prohibits it. Or unless one can drum up a passable excuse for why the law might have looked good to the Legislature.

    But in fact we have inherited “a Constitution of enumerated powers,” powers that are explicitly named and listed. So, contrary to the quote above, I hold that:

    …. If the Constitution does not explicitly grant to government a particular power to achieve some end by means of enacting law that meets the criteria both of necessity and of appropriateness, then that law is Constitutionally illegitimate.

    This, in a nutshell, is the meaning of “the presumption of liberty.”

    Our Founders and Framers, looking at the examples of history, concluded that Government in general must be kept on a very short leash indeed, as its natural tendency is to assume all the power that it can at any given time, with the political liberty of those in its jurisdiction occurring, if at all, merely as a fortunate by-product of its laws rather than its very aim in enacting law in the first place. Therefore they set out a short list of what the Government could legitimately do; all else to be disallowed.

    Thus, the Constitution protects (in writing that is — all protection in the end is a matter of people, people acting) individual liberty. The Ninth and Tenth Amendments are just as much a part of the Bill of Rights and hence of the Constitution itself as any of other Constitutional restrictions on governmental power.

    .

    It is immaterial whether the Government is or isn’t following the “black-letter,” statute law in a given case, if that law isn’t legitimate in the first place.

    This is another way of saying that the starting point is the “presumption of liberty”: If the government proposes to restrict individuals’ liberties, it must be prepared to show why doing so is necessary in the first place and is not an unnecessary or inappropriate infringement of individuals’ self-sovereignty.

    A law can only be legitimate if it is both necessary and proper — both required by a legitimate exercise of an enumerated (specified, listed), i.e. Constitutionally authorized, power, and appropriate to the end it’s supposed to achieve.

    .

    As for “duty,” George argues this, not I. For me, it gets too close to Kant’s Categorical Imperative and Hume’s complete refusal to conceptualize “ought” in a way that allows it to have any connection at all to the real world.

    However, for the Defense, one can argue that the “duty” in question is imposed not at the whim and edict of the Great Frog, but by one’s own conscience, which insists that slavery, however attenuated, is always and everywhere wrong and that therefore one must never participate in any activity nor support any position that might conceivably restrict individuals’ legitimate sovereignty. (π > 3.14159…)

    . . .

    Clovis — unless there was a exercise-of-power thing going on here, in which the would-be customers were going to dictate that the baker make their very own special cake, especially for them, never mind if the exact same (technically impossible, notes the Inner Pedant) cake is available in the cooler.

    So putting it in favor of the Terrible Twos, the baker did refuse to make a cake for them, and presumably for the purpose of enhancing the Specialness of the occasion.

    Your reading of the situation is of course the more charitable one. :>)

  • RRS

    @PM

    More importantly, Amendment XIII states that “involuntary servitude
    shall not exist.

    There is an exception for those “duly convicted’ of a “crime.”

    While this sounds small, this was about using the skill of decoration of a cake, not its baking. So the servitude would apply to the use of that skill.

    But, no matter where you slice it, it is not about “cake,” it’s baloney. It is about prescribing Rules of Just Conduct – not just the results of doing so in this case.

  • Mr Ed

    It seems to me that the issue is whether a Colorado court is acting constitutionally in the granting of the mandatory order against the Defendants. The couple themselves are simply specimens, not parties, and on their behalf the State of Colorado seeks the mandatory order. There is no claim in contract, there is no contract (that is, if you like, the basis of the case), there is no claim in common law tort, the claim in alien to the common law. The basis for the case was invented by Colorado in passing a law which creates a burden on the defendants not to have acted as they did.

    The Defendants will say that the law that the order is founded upon is repugnant to the Constitution.

  • Fraser Orr

    @Julie near Chicago
    But in fact we have inherited “a Constitution of enumerated powers,” powers that are explicitly named and listed.

    Yes, but that is only true for Federal action. Quite the opposite is true when we are dealing with state law, which we are here. The Constitution does, in fact, grant that “what the State does is OK, unless the Constitution explicitly prohibits it.” That is almost exactly what the tenth amendment means.

    It is immaterial whether the Government is or isn’t following the “black-letter,” statute law in a given case, if that law isn’t legitimate in the first place.

    What does “legitimate” mean? Are you suggesting that it was not enacted by the correct legal processes, or are you suggesting that there is some higher law that the judges to use to determine this baker is not being served fairly? If so, and if this law is not set in black letter elsewhere (and in fairness, black letter and the common law and stare decisis that actually form the basis of our law) then we are subject to the whims of judges, and I don’t much care for that at all.

  • Fraser Orr

    @RRS
    More importantly, Amendment XIII states that “involuntary servitude”

    Someone like me might think this is a good argument, however, no court would uphold such an argument since to do so would be to cause the complete collapse of the government. Plus the counter argument isn’t all that difficult. The bakers are not required to make the cake, only they may not sell any cakes unless they do so without discrimination. So there is no involuntary servitude here, only involuntary non servitude.

    @Mr Ed
    The Defendants will say that the law that the order is founded upon is repugnant to the Constitution.

    Repugnant in what way?

  • Julie near Chicago

    Fraser, your point boils down to a specific instance of the general question of what constitutes the basis for legitimacy of the Laws (statute laws, that is), which depends at least in part on what constitutes the proper end of law in general.

    I’m not sure I’m any more qualified to answer these questions than any of the other many thousands or maybe millions of people who have struggled with them over the last several millenia. But for now, I base my opinions first of all on the principle that no person is born with the right to arrogate to himself another person’s life nor any part of it. For short, all men have an inherent right of self-determination (insofar as they are competent — but according to what standard? — and honor the like right of every other person).

    Law, black-letter law, statute law, is legitimate to the extent that it supports each person’s right of self-determination.

    Our Constitution is legitimate because its first aim is to provide a set of ground rules for the government, that it must follow if its laws are to have any moral force.

    .

    Government also makes laws that aren’t directly required by this view of the (philosophical, not historical) basis of its proper function. Arguments in favor of such laws always claim that without them, such-and-such dreadful injustice will be done, or some horrendous disaster will ensue — Pluto will melt from AGW! The asteroid will hit because HAARP! Our children will all have two heads but no brains because trans-fats! and so forth.

    But who will care for the sick? And who will run the economy? And remember, The Roads ….

    And on and on …. Most people too much of the time, and I guess nearly everyone in government just about always, seem to believe that it’s well within The Gov’s remit to save us, at all — and I do mean all — cost, from these catastrophes.

    Most of us also realize that there really is some point where people have to compromise. I speak as one who naturally detests that word. I am not cut out for compromise. But the Great Frog gives me no choice, unless I’m prepared to nuke every man Jack who encroaches on my space. This strategy, of course, would have its own downside. It’s just possible that hemlock tea is still the best antidote to the Human Condition.

    In sum, Government is not reliably and safely constrained. “Eternal vigilance” and all that … although mere vigilance isn’t enough … occasionally one must DO something besides Watch.

    And we must go on discussing and arguing about what Gov should/must and shouldn’t/mustn’t be allowed to do in the name of promoting peace, justice, utter fairness, and perfect social harmony in all things.

    π > 3.14159, but still π < 3.1416.

    . . .

    The Masterpiece Cakeshop case is now a SCOTUS case, and I have been mostly talking about it as such.

  • Clovis Sangrail

    @Fraser Orr
    …You might not agree with their viewpoint, but nobody is forcing you to marry someone of your own sex, they just don’t want their right to do so to not be interfered with.

    A good point, very well made.
    The evidence you adduce to support it, sadly also supports my position but I admit mine sounds like a conspiracy theory. Indeed, it would be were it not for many public statements over many decades by many activists about what they actually seek to achieve.

  • Mr Ed

    Fraser,

    I don’t know what their pleadings are. Hopefully every basis that could apply.

  • […] a good discussion going on over at Samizdata regarding the case of Masterpiece Cakeshop which is currently before the […]

  • Julie near Chicago

    A piece on J. Oliver Wendell Holmes and Lochner v. New York, by Evan Bernick of the Institute for Justice, considers the questions of legitimacy in law at issue in our discussion here. Very interesting.

    https://www.huffingtonpost.com/evan-bernick/justice-holmes-big-lies-w_b_8384626.html

    (For those who aren’t acquainted with them owing to having spent the last 100 years at McMurdo Station, the About page for the Institute for Justice begins with this:

    The Institute for Justice is the National Law Firm for Liberty.

    IJ litigates to limit the size and scope of government power and to ensure that all Americans have the right to control their own destinies as free and responsible members of society.

    http://ij.org/about-us )

  • Refusing to bake a cake for people just because they are gay is a kind of ugly viewpoint (Fraser Orr, December 16, 2017 at 3:38 pm)

    The only ugliness I see in this case is the marriage of gay rights and hate speech laws (in the US, ‘with the obvious and intense desire for hate speech laws’ – lucky you, so far, but you should be worried and alert).

    When a certain Adolf sought to end the Jewish race, his evil plan was at least in theory practical – murder all the Jews and there will never again be any Jews. Obviously, this could never be true of gays. The very essence of the typical moral critique of homosexuality – that homosexual acts are of themselves incapable of producing life – means that no preaching, no penalties, no wild excess of horror and cruelty even, inflicted in one generation could ever prevent there being a fresh lot along in the next generation.

    It is the idiocy of political correctness not to see, or their crime not to care, that the same is true of (at least the baker’s kind of) ‘homophobia’. In any society in which the value of human life is not universally seen as absolute zero (i.e. in any society which has a next generation at all), there are certain to be people who think, “Well if human life has value, and one union can produce it and the other, of itself, cannot, then …”. If a society rejects using the force of law as an instrument of social agendas, then such people may not translate their thought into “… therefore the law should express my idea …”, but in a society where PC (ab)use of law is thrust in everyone’s face, some will of course move on to think (or just assume without thinking) that the law should express their opinion (i.e. no legal identity of gay marriage with straight, or at least a different word for it – ‘civil unions’, anyone?). Such people are as sure to appear in each generation as gays are, though their public visibility, like the past public visibility of gays, will be affected by law.

    The politically correct will have rebuttals to all un-PC arguments of course, but even when the quality of their arguments is not down at the level of most PC arguments and even when they are not presented so arrogantly that to agree seems to their target far more an act of cowardice than of understanding, some people in every generation will quite naturally and honestly reject or doubt the PC arguments.

    The baker tried to accommodate his clients as far as he could – whether from courtesy to them or from rational fear of them or both. His crime was not cringing to those who obviously targeted him. I see nothing ugly in that.

  • Fraser Orr

    @Niall Kilmartin

    The production of life is hardly a hard or rare thing to do, just go down the local high school nursery if you doubt that. The production of good parents, who raise decent, productive, valuable adults is much harder, and something gay people are no less disadvantaged than any other couple. Although anecdote is not the singular of data, I can certainly testify that I know several gay couples at my kid’s school who are really wonderful parents, raising great kids.

    So the lack of either a sperm or an egg between a particular couple seems a rather minor matter in the raising of the next generation, to me at least. And insofar as society should be supportive of such an activity, then I see no reason why they should be less supportive of one technique or another. There are a lot of kids out there that start out with the disadvantage of only one parent, noble and dedicated though that singular parent might be. I think we should celebrate the fact that some kids are lucky enough to have two, even if the shape of the genitals doesn’t differ much.

  • Fraser Orr

    @Niall Kilmartin
    His crime was not cringing to those who obviously targeted him. I see nothing ugly in that.

    Sorry, I forgot this point at the end. As I have said I don’t think his behavior should be criminal at all, even though I think that it probably is. But there are lots of things that are ugly that aren’t criminal. In this case because, as you say, this is most likely a hit job, there is ugliness on both sides. But generally speaking the idea that you work in the marriage business and can’t celebrate the love of two people is definitely ugly. Not criminal, but not very nice.

  • Fraser Orr

    @Julie near Chicago
    A piece on J. Oliver Wendell Holmes and Lochner v. New York,

    Thanks for the article Julie (I read most of it but it was a bit tl;dr). Let’s discuss some of it though. The Lochner case where NY instituted rules about bakeries. Presumably, not stated in the article, there is some ethnic bias — that this disproportionately affected some group or other disfavored by the government, as was apparently the case in the San Francisco case of laundries.

    So what is the basis for the USSC to get involved? The tenth recognizes the states’ sovereignty to make whatever laws they deem fit. One must imagine that it pertains to the 14th and the “equal protection” clause. The 14th is actually quite a complicated sentence, saying four or five different things. But the interpretation of the courts has been that the laws must apply equally irrespective of who the person is. And these cases seem to be that although prima facie these laws seem to do so, that the mendacious intentions of the legislators indicate that they are not. That some groups are protected more than others.

    This reminds me a lot of the recent judicial activism with regards to the travel bans that President Trump has enacted, and, in a sense are the poster boy for what I don’t want judges doing.

    But in the baker case this doesn’t apply at all. On the contrary the law is designed to ENSURE the equal treatment of customers not try to discriminate. So I find Justice Holmes arguments bad on the face — he is basically advocating the exact type of judicial activism I hate — and even so, it cannot be made to apply to this situation even were we to stipulate that it was valid.

  • bobby b

    This is why I loved Scalia.

    So many times, he said (I’m paraphrasing here) that he was frequently called upon to review legislation that was stupid, poorly conceived, unfair, immoral, and just . . . bad.

    But, he said, so what? That wasn’t the criterion upon which Supreme Court review should depend. That Court, he said, should merely look to see if legislation comported with the words of the US Constitution, and there is no constitutional requirement to be smart.

    He said that state and federal legislatures should be free to be stupid – that the voters were the proper correction to that problem – and if they were, but if they otherwise complied with Constitutional requirements, his review was over.

    Bernick was wrong. He wants to substitute the judgement of the Court for the judgement of legislators as to the rightness of legislation, not merely the constitutionality of it.

  • Fraser Orr

    @bobby b
    This is why I loved Scalia.

    Yes, it was he, I think, that said any judge who didn’t approve a judgement that made him sick to his stomach was not doing his job right. Don’t remember the exact quote… anyone?

  • Alisa

    Turns out I have been grossly misinformed:

    In the case, Charlie Craig and David Mullins walked into Masterpiece Cakeshop, owned by Jack Phillips, and said they “wanted a wedding cake.” Phillips replied that he would make them a cake for other events like a birthday or a shower but would not make a cake for a same-sex wedding. The couple got up and left. There was no discussion of any words, symbols, or designs the couple might want. The entire exchange lasted twenty seconds.

    The briefing for the petitioners and some of their supporting amici assert that Mullins and Craig asked Phillips to “design and create” a wedding cake. The Colorado appeals court repeated that formulation without citing anything in the record to support it. But Phillips’ own account of the exchange, in his affidavit, says nothing about a request that he “design and create” a cake. Instead, he says the couple told him simply that they “wanted a wedding cake for ‘our wedding’” and that he replied, “I just don’t make cakes for same-sex weddings.”

  • Julie near Chicago

    Alisa, very interessting. I have just been reading the summary of the issue at Oyez: https://www.oyez.org/cases/2017/16-111

    Note: Audio of oral arguments at the site.

    Quoting in full:

    .

    “Facts of the case:

    “In July 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop in Lakewood, CO, and requested that its owner, Jack C. Phillips, design and create a cake for their wedding. Phillips declined to do so on the grounds that he does not create wedding cakes for same-sex weddings because of his religious beliefs. Phillips believes that decorating cakes is a form of art through which he can honor God and that it would displease God to create cakes for same-sex marriages.

    “Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division, alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act (CADA), §§ 24-34-301 to -804, C.R.S. 2014. After the Division issued a notice of determination finding probable cause, Craig and Mullins filed a formal complaint with the Office of Administrative Courts alleging that Masterpiece discriminated against them in a place of public accommodation in violation of CADA.

    “The Administrative Law Judge issued a written order finding in favor of Craig and Mullins, which was affirmed by the Colorado Civil Rights Commission. On appeal, the Colorado Court of Appeals subsequently affirmed the Commission’s ruling.”

    “Question:

    “Does the application of Colorado’s public accommodations law to compel a cake maker to design and make a cake that violates his sincerely held religious beliefs about same-sex marriage violate the Free Speech or Free Exercise Clauses of the First Amendment?”

  • Julie near Chicago

    bobby, your final paragraph reads:

    “[Bernick] wants to substitute the judgement of the Court for the judgement of legislators as to the rightness of legislation, not merely the constitutionality of it.”

    I think this completely ignores Mr. Bernick’s underlying point, reiterated throughout the piece, which is that for the Justices of SCOTUS, the “rightness” of legislation is (supposed to be) specifically dependent on whether the legislation is Constitutional.

    [If the legislation is Constitutional, then SCOTUS should not strike it down even if it is or seems to be wrongheaded. That is my theory at any rate, given the shabby design of the Universe that the Great Frog saddled us with; it seems to me that both Mr. Bernick and you, bobby, share it.]

    By the way, just above that you write:

    “[Scalia] said that state and federal legislatures should be free to be stupid – that the voters were the proper correction to that problem – and if they were, but if they otherwise complied with Constitutional requirements, his review was over.”

    I don’t see either Bernick’s position or my own as disagreeing with that in any way.

    But as I’m sure you well know, Richard has an awful lot to say about whether a given opinion of a SCOTUS Justice — even be he J. Scalia his own self — really does “comply with Constitutional requirements.”

    .

    Fraser, December 17, 2017 at 8:28 pm, QUOTE:

    “The tenth recognizes the states’ sovereignty to make whatever laws they deem fit.”

    The 10th A. certainly does not give the several States a blank check to legislate as they will. What it does try to do is to guarantee that the FedGov won’t make laws requiring them to do this or that unless the Constitution specifically authorizes (via Enumerated Powers) it to do so.

    Whether a State may be allowed to enforce some given one of its State laws, or if so by what means, is often at issue before SCOTUS, and SCOTUS may and has decided against the State and struck down that law.

    The powers (not “rights”) left to the States by the FedGov have been curtailed, of course, by various subsequent Amendments.

    . . .

    This has been interesting discussion and exchange of views. I think we’ve been talking past each other somewhat, but what else is new. And the fact clearly is that the various discussants tend not to be focussed on the same point or sub-issue at any given time. So when Y has his say, in which he thinks he’s responding to what was clearly X’s point, X doesn’t connect Y’s remarks with his own previous statement to which Y was actually replying.

    I suppose it’s another example of the impossibility of accurately specifying the number-name of π.

    Thanks. :>)

  • Julie near Chicago

    UPDATE.

    I’ve just found this paper, dated Oct. 9, 2017, by Randy Barnett and Evan Bernick:

    “The Letter and the Spirit: A Unified Theory of Originalism.”

    Read the Abstract, and download the paper, at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3049056 .

  • NickM

    “Phillips believes that decorating cakes is a form of art through which he can honor God and that it would displease God to create cakes for same-sex marriages.”

    Is it art? I would say “yes”. If so then surely the long history of art is full of artists refusing to take on commisions for any number of reasons?

  • Julie near Chicago

    Good point, Nick.

    Hi to Timmy.

    Also Merry Christmas.

  • bobby b

    Julie near Chicago
    December 19, 2017 at 1:13 am

    “I think this completely ignores Mr. Bernick’s underlying point, reiterated throughout the piece, which is that for the Justices of SCOTUS, the “rightness” of legislation is (supposed to be) specifically dependent on whether the legislation is Constitutional.”

    Julie, I’ll agree with you that Mr. Bernick is essentially on the right side of things, in that he is a Constitutionalist. He’s also on the side of angels, in that he believes that our Constitution mandates limited government.

    But I think that he goes too far in his quest. His critique of Holmes, to me, makes this clear.

    He opens with this:

    “Holmes’ opinion is a rhetorical masterpiece. It is nearly unmatched for its concision and clarity of principle. And it is saturated with lies.”

    The lies he calls out have to do with Holmes’ statements pointing out that the majority is essentially making an “as applied” ruling in what has to be an “as written” decision. (“The purposes for the statute, as evidenced by the way in which the statute is applied, end up being unconstitutional” versus “the words of the statute are unconstitutional.”) Holmes says that he cannot go into the underlying motivations for the legislation because those motivations are not relevant to the case that has been presented to the Court.

    Bernick speaks of judges hewing to “the values” of the Constitution in order to decide if the motivation behind legislation conforms to those values. He says at one point:

    “But the Constitution’s structural limitations on government and its explicit protections for individual rights that precede government are designed to implement a particular, classically liberal, political philosophy.”

    He paraphrases on behalf of the Constitution what the Constitution calls for (” . . . a particular, classically liberal, political philosophy . . . “) and then goes on to explain that THAT is the concept that Holmes ought to have been serving.

    That’s where he loses me. This is what gives us “penumbras”: Justices making rulings based on the “values” that they see in the Constitution, not on the exact words of the Constitution.

    This is exactly where Scalia said the Court should never go, no matter what philosophy it is trying to serve. Bernick wants us to study the Constitution and derive from it its core values, and then serve those value. Scalia says, read the words, and then stop, because we may all derive different “core values” from the same words. This viewpoint has long been dominant; Lochner holds no weight anymore, and the entire “substantive due process” legal philosophy is generally out of favor. (As you know, SDP lies at the heart of this disagreement.)

    I’d rather we not have penumbras or emanations in either direction. The value of our Constitution historically arises because we’ve done well at sticking to its exact words, not allowing for people to interpret those words and then use them to serve some fuzzy “values” that they believe are inherent in the Constitution. I like Bernick’s “values” more than I like, say, Sotomayor’s, but I still don’t want them to substitute for the words. (Or, maybe, The Words.)

    (And, I don’t think we’re talking past each other.)

  • bobby b

    Julie near Chicago
    December 19, 2017 at 1:45 am

    “I’ve just found this paper, dated Oct. 9, 2017, by Randy Barnett and Evan Bernick:”

    I’ve read this paper. I love Barnett, but I hate this paper.

    Here’s the killer quote:

    “As fiduciaries, judges are morally and legally bound to follow the instructions given them in “this Constitution” in good faith. This means that judges engaging in constitutional construction or implementation must seek to give legal effect to both the Constitution’s “letter” (its original public meaning) and its “spirit” (the original function or purpose of the particular clauses and general structure of the text.)”

    This statement can only have effect once a Justice decides that the letter doesn’t comport with the spirit. It can have no application when the two agree. When the letter of some Constitutional provision is in accordance with “the spirit” of that provision, then one never need go beyond the letter.

    And so, this by definition must mean that a Justice must sometimes rule in favor of the values that she finds in the Constitution and against the plain words of that same Constitution. (Those bolded words might as well be published as the “tl;dr” version of the article.)

    Here be dragons penumbras and emanations.

  • Fraser Orr

    @Julie near Chicago
    The 10th A. certainly does not give the several States a blank check to legislate as they will.

    Not wishing to beat a dead horse, however, I think it worthwhile taking another whack here, since there is still a breath or two in the old nag. The constitution does not give the states this right, you are correct, the states have this right inherently, being the representative government of their citizens. Certainly the constitution, and possibly some other things (state constitutions for example) restrict what the states can do, but the relationship is the opposite in the tenth. The constitution says what the Federal government can do, and what the states cannot do (either because of delegation to the Federal government, or by restrictions, mainly from the bill of rights.) This is a dramatic difference.)

    State law cases come the the USSC when there is an issue either of state law being in violation of one of these restrictions, or, on occasion where there is conflict between the states of a state and the Federal government. The state appellate courts are not subordinate to the USSC, nor appointed by them. Only insofar as the constitution is the supreme law can it override state law. A litigant cannot appeal to the USSC and say “the state does not have the right to do this intrinsically” all they can do is say “the state’s action violates one of these enumerated restrictions.”

    In regards to the rest of the discussion, I entirely agree with Bobby B. All this penumbra nonsense is really just a pretext to allow judges to impose their own views over that of the legislature. I am in favor of keeping abortion legal in the USA, but I think the Roe vs Wade decision is an outrage to jurisprudence, and the plain good sense of being able to read what is written. At its core it is an attack on the very principle of federalism. If you want abortion legal do the work to convince each of fifty states to make it so rather than making something up and forcing it down everyone’s throat. It is a subversion of the very mechanisms that separate jurisdictions making them independent and sovereign, the core principle that is at the heart of the idea of federalism. (And I might add that the tenth amendment is one of the crucial mechanisms in federalism.)

  • Alisa (December 18, 2017 at 7:51 pm): “Turns out I have been grossly misinformed:”

    To be grossly misinformed by the media is not unusual, especially in cases in which the PC have an interest ( 🙂 – or do I mean 😡 ). That said, the difference between the account(s) and the lower court’s formulation does not seem huge in your quote. To far-too-commonsensical not-a-lawyer Niall Kilmartin, it seems that, if we accept the baker’s statement that any cake in the shop was available to them to buy (and then, being its owners, to apply to whatever purpose they chose), then “design and create” a cake targeting the specific stated purpose – and therefore obviously distinguishable from a standard cake – would seem to be the very essence of the disagreement. I’m not sure I could condemn the court for accepting that summary without debate if it were not challenged by the parties.

    Since they did, I conjecture it was indeed not challenged at that time. Which in turn suggests to me that the intent that the cake was to be an affirming one was so well understood by both parties that no-one thought of denying it during the lower court case and what we are hearing now is “lawyers’ bull” – someone seeing legal advantage in denying a specific, affirming character to the request that was so well understood at the time that this legal dodge has only now been thought of.

    I may of course, as I speculated in my first comment, be being cynical (or just grossly misinformed). That the exchange took just 20 seconds is interesting and tends to confirm me in my assumption it was targeted: rush in, get desired quote, rush out again before the target can expand on the ‘buy any cake in the shop’ bit. But in logic it’s not wholly incompatible with the version where two gays enter a cakeshop at random while full of themselves, prompt an unaffirming remark, and rush out in a rage – or even just because neither wants to appear unwoke to the other, though they might each have discussed longer if alone. Though crybullies are as common today as free-speech-haters, if the two had written a blog post on ‘our unpleasant moment in a cakeshop’ instead of going to law, they might have been able to distinguish themselves from such people.

    But I’d wager a lot on this being targeted. 🙂

  • Alisa

    Niall, the quote in the original post on which we all of us are commenting here specifically mentions and even stresses freedom of speech (1st A.). If you followed the link in my last comment, you saw that the authors (Dale Carpenter and Eugene Volokh) had filed an amicus brief specifically challenging the 1st A. premise of this case. So the difference may not be huge, but it seems to be quite material to this discussion.

    Also, this may be a rare case where the mis/disinformation is not the fault of the media, although one can never be entirely sure either way without the careful examination of the facts as to who said what and when from the very beginning, and who published what, where and when following that.

    All that said, I do agree with your common-sense remarks, including the targeting aspect of it all.

  • Fraser Orr

    One other point worth noting with regards to the Constitution… it used to be the case that many of the provisions of the bill of rights didn’t apply to state law at all. For example, the First Amendment says “congress shall make no law…” which obviously does not place a restriction on entities that are not “congress”. Many State constitutions have parallels to the bill of rights that apply the same restrictions on state legislatures, however, these provisions are not subject to the appellate jurisdiction of the USSC.

    However, the 14th amendment changed this to some extent, introducing the legal doctrine of incorporation where some (though not all) of the restrictions on the federal government were also applied to the states under the due process clause of the 14th. As in every other area of US history, one might well think of the 14th amendment as Constitution 2.0, so dramatic was its effect on government and legislation.

  • Julie near Chicago

    bobby, Fraser,

    Apologies for going AWOL for a couple of days.

    .

    Fraser:

    The 10th A., even before the “Incorporation” issue and the 14th A., did place some restrictions on the powers (not “rights”) of the several states, by granting to the FedGov certain powers over the states. Therefore the states certainly did not have a “blank check” to enact whatever statutes they wanted.

    .

    bobby,

    You are a better man and quite likely a better human being than I am, since you have read the Barnett-Bernick paper, which I have not. I am hoping to get to it sometime in the present century.

    You seem to think I know something about SDP. Yes, it’s additive they put into motor oil. It keeps the valves from getting fried, or something. 😆 [I would never swipe an allusion from Thurber.]

    I do wish to summarize my thoughts at this point.

    1. For me, the legitimacy of the Constitution rests on its core requirement that the Federal Government recognize, respect, and protect each individual’s right of self-determination.

    2. Given the existence of the SCOTUS, its members are there not to do or decide according to their own “sensibilities” of what is “right,” in the sense of either “just” or “fair” or “moral,” but rather according to their best and most conscientious understanding of what the Constitution says.

    3. For each Justice, this “best and most conscientious understanding” necessarily, inescapably exists within a set of views he already holds. (Consideration of the issue may alter these views a little or a lot, of course.) In other words, Reality itself forces each Justice to “interpret” or construe the text according to his own understandings or “beliefs” about the meaning of the words in the text.

    4. These “beliefs about the meaning of … the text” must perforce include, for each Justice, whatever theory he may hold as to the purpose of the Const.

    Also, I will point out that both Richard and Randy refer to the presumption of liberty. And both of them hold that the Const. was written out of a “classical liberal” position. Recall also that Richard has a book out … something about The Classical Liberal Constitution. Which also I haven’t read, but I’ll bet you have. 😉

    So both of these phrases and both of these concepts are a part of the libertarian-legal discourse, and since, like it or not, any interpretation of any written passage, let alone of any passage in the Const., HAS to come from SOME sort of contextual understanding on the part of the reader;

    and since in this case, the contextual understanding cannot help but include attitudes/beliefs/understandings or even knowledge of what the document was trying to do;

    therefore it’s better that Bernick & Barnett take that aim as being grounded in Classical Liberal political philosophy than, for instance, one grounded in the “all against all” idea of Hobbes, or any of the varieties of socialism or Communism or dictatorship-ism — or today’s Progressivism.

    .

    Actually, I agree with Holmes that the words in a text have emanations and penumbras (although I’ve never seen the exact quote, so I lack the precise context necessary (!!!) to assure that Holmes meant what it seems to me he meant.

    In the words of an online pal, “words don’t have crisp edges.” In other words, sometimes (often!) a text may be interpreted as implying more than it actually says. This causes all sorts of mischief, of course, but the fact remains.

    Some of the apparent implications really do lead to valid inferences and relatively benign or even helpful real-world policies. And some do not.

    .

    I wish to inform Prof. Barnett that “original public meaning” is not a term that can be well-defined. I imagine it was just as true in 1789 as it was ca. 1500 and as it is today that there are widely varying ideas of what words mean. Famously, who knows what “nice” means or meant in any era. In fact a very great many of our public controversies today arise from the fact that the same words mean different things to different people. And as a specific example, there are all the regional differences in the way people interpret a word or a phrase or a paragraph. Or for instance, two books with titles that beg for misinterpretation, and I myself for a very long time misinterpreted both: Winning through Intimidation and The Selfish Gene. (Not to mention The Virtue of Selfishness).

    . . .

    Again, excellent discussion. Occasioned repeated trips to the cyberstacks and the A-V room, and far from done. Thanks!

    . . .

    bobby, one last question. Above, on the 19th, you wrote,

    “[A] Justice must sometimes rule in favor of the values that she finds in the Constitution and against the plain words of that same Constitution.”

    Can you explain why this would only apply to female Justices?

    😆 😆

  • bobby b

    Julie near Chicago
    December 22, 2017 at 2:13 am

    “You seem to think I know something about SDP. Yes, it’s additive they put into motor oil.”

    Substantive Due Process really lies at the heart of all of this. We all know about Procedural Due Process. Substantive Due Process is a similar concept, but dealing (roughly, and remember that I’m biased here) with enforcing notions of the rightness and fairness of laws versus working via the actual words of the Constitution. The Lochner era represented the birth and expansion of the SDP doctrine. Justice Breyer is a big proponent of SDP – it colors most of his opinions. Scalia hated SDP.

    “In other words, Reality itself forces each Justice to “interpret” or construe the text according to his own understandings or “beliefs” about the meaning of the words in the text.”

    Agreed that we all filter the meaning of words through our own contexts and histories and emotions, etc. We do need to keep this in mind always. But Prof. Barnett doesn’t merely recognize this difficulty – he embraces it and uses it as an excuse to drift one level further from the strict reading that (I think) the words call for. He recommends that we embrace our emotions and biases, and to consciously let them drive our interpretations of words, and then feel good about it because we’re being true to ourselves.

    I love that instruction when he gives it to me. I hate it when he also gives it to J. Ginsberg or J. Sotomayor or J. Breyer. But you cannot give this instruction to me without giving it to them, and, for that reason, I think he’s wrong to give it to anyone. It’s simply a way to say “the Constitution says to do good things, and I think “X” is a good thing, so the Constitution supports my interpretation of its words.”

    “Also, I will point out that both Richard and Randy refer to the presumption of liberty. And both of them hold that the Const. was written out of a “classical liberal” position. Recall also that Richard has a book out … something about The Classical Liberal Constitution.”

    He’s described how he reads the Constitution. That’s fine. But to go one step further and treat his own interpretation as an actual Constitutional holding and concept to be served by a USSC Justice – that, I think, is too loose. Someone else might read it a slightly different way, and call it a Classically Equalizing Constitution, and then make decisions based on that overall label. (Actually, I think two or three of them already do.)

    We could end up with nine different Constitutions that way, and nine diverging sets of precedent depending on who writes opinions. If J. Ginsberg decides that the main thesis of the Constitution lies in making outcomes equal for all – based on her interpretation of the Constitution’s theme – how would that be any less valid than Justice Barnett ruling from his Classically Liberal Constitution?

    “In the words of an online pal, “words don’t have crisp edges.””

    Yes, but Prof. Barnett’s recommendations don’t do anything to make the words of the Constitution any better defined – in fact, they just make them fuzzier. We can’t ever – as you pointed out above – hit perfectly understood and accepted definitions – but that doesn’t mean we need to embrace the fuzziness and celebrate our own biases. We need to work towards the impossible goal of clarity, not welcome outcome-based interpretation.

    ” “[A] Justice must sometimes rule in favor of the values that she finds in the Constitution and against the plain words of that same Constitution.””

    “Can you explain why this would only apply to female Justices?”

    Habit dies hard. I’ve had many many more judges ask me why I used “he” in a brief than I’ve had judges ask me why I used “she.” Think of it as a craven survival skill in the PC legal profession. 😀

  • bobby b

    From above, where it reads:

    “The Lochner era represented the birth and expansion of the SDP doctrine.”

    . . . should instead read:

    “The Lochner era represented the expansion of the SDP doctrine which originated shortly after the Civil War.”

    Oops.

  • Julie near Chicago

    bobby, thanks very much for your reply. Informative and helpful, as always.

    I see that I really will have to read the B-&-B paper. Appearances to the contrary, I have problems of my own with Prof. Barnett, but they’re hard to articulate. And I still think he and Richard are the Two at the Top.

    And I have problems with Richard, too.

    I understand your general point, of course. And I don’t want J. Holmes nor any other benighted person forcing me to abide by his/her/its foul program. But it does seem to me that, while there are various, fundamentally different answers to “what does the Const. mean by what it says” (which, IMO, is the way the question should be phrased), some of the answers are closer to the mark than others.

    But I really can’t go farther than that, because it all rests on my own fundamental premise (or predisposition, if you like), which is that the thing has legitimacy and therefore that we “should” adhere to it in virtue of the fact that its fundamental purpose is to protect our self-determination as individuals.

    It took me a lot a lot of tooth-grinding mental agony to accept this idea, namely the idea that the Const. gets its “legitimacy” differently in the minds of different people, according to the criteria each of these individuals sets up for him- or herself. So there is just about no likelihood that all of us are going to agree on what makes it legitimate, if indeed it is legitimate. Of course the standard answer is “consent,” which is the idea I was brought up with, but … there is the objection … just how do I go about retracting my consent, and if I did, does that mean I wouldn’t be bound (whether morally or practically) to follow the laws?

    But Randy pointed out that consent and acquiescence are not the same thing. And he dragged in this “binding in conscience” phrase — whattheheck does that mean, unless you’re a — Catholic, aha !!!, nailed it! — and out of all this stürmy mental stew the idea of “legitimacy” as not being a concept instilled in us by the Great Frog hisself took shape and I have to accept that what is “legitimate” in this context is going to be judged by each individual person according to his own criteria.

    I know that probably sounds “relativist” or something, but it just seems to me that that’s the reality. Thus our job, insofar as we choose to accept it, is to persuade other people to see the awesome wonderfulness of our criteria for legitimacy.

    This is definitely like what one might, as a metaphor, call “the indeterminacy of π.” It’s there, and we can devise a notation for it and a definition of it, π = c/d ; but there is no accurate number-name for this important constant mathematical construct. “Close” is as good as it gets.

    Or, as Professor von der Vogelweide put it, “Philosophers can tell you lots of things that [the Universe] isn’t, but zey can’t tell you vhat it iss. Und ziss bugs zem!”

    https://en.wikipedia.org/wiki/Severn_Darden#The_Metaphysics_Lecture

  • bobby b

    “And I don’t want J. Holmes nor any other benighted person forcing me to abide by his/her/its foul program.”

    No, no, he was the good guy! 😀

  • Julie near Chicago

    😀

  • Laird

    Sorry for my extended absence. There is already far too much water over this particular bridge for me to dive in now, but I couldn’t let this comment go unremarked:

    “No, no, he was the good guy!”

    This about the man who wrote:

    “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. * * * Three generations of imbeciles are enough”.

    [Buck v. Bell, 274 U.S. 200 (1927).]

    Sorry, but I have never thought of Holmes as a “good guy.”

  • bobby b

    You’re correct, of course. I should have said that, in this particular fight, he was the good guy.

    As he was in many specific fights – but not all of them.

    (Although, I do need to say that I’m in some agreement that Buck really shouldn’t have been a due process case. Remember, the vote was 8-1 on Holmes’ side. It was probably a stronger equal protection argument. But to phrase his opinion as he did was more than a bit horrifying.)