From the Tom Woods Letter:
This is a long one, folks, but the ideas in here are important.
Remember poor Jack Phillips, the guy who declined to bake a cake celebrating a homosexual wedding?
He eventually got relief from the Supreme Court, but on extremely weird and narrow grounds that I explained on the Tom Woods Show were not anything really to celebrate.
Well, now a Colorado court has ruled against him once again, this time for declining to bake a cake celebrating a “gender transition.”
The person involved, who goes by the name Autumn Scardina, obviously didn’t even really want a cake, and instead simply sought to “challenge the veracity” of Phillips’ claims that he would indeed serve LGBTQ customers.
Scardina ordered the cake on the same day that the Supreme Court agreed to hear Phillips’ appeal in the case involving the wedding cake — just a coincidence, right?
Here is the problem Phillips faces. Because of the untouchable “civil rights” apparatus, the Court cannot allow reasoning along the lines of, “I should not be required to transact business with anyone I do not wish to transact business with.” You don’t have that freedom, so you can’t use that argument.
That means that in order to rule in favor of Phillips back in 2018, the Supreme Court (particularly in the concurring opinions of Gorsuch and Thomas) had to go on all sorts of bizarre tangents about cakes, wedding cakes, their history, etc.
That 2018 decision went on interminably with dissenting voices, with concurring voices that had different arguments leading to the same conclusion, with inane arguments about the cultural meaning of a wedding cake, whether it makes a difference if the cake had been decorated or not, etc.
The thing dances all around the relevant point over and over, and spends scores and scores of pages evading the fundamental issue because of the bind in which anti-discrimination law has placed the sensible people on the Court. So they have to instead spend their time investigating different types of cakes and what they mean, and whether a decoration on a cake is expression, and is expression speech, and how this touches on the First Amendment.
As I said in Tom Woods Show episode #2218:
You would think that what we’re dealing with is a matter of private property versus somebody’s demand for public accommodation. And the argument would be something like this: Jack Phillips owns this bakery, and as the owner, he gets to decide what happens inside that bakery. He gets to decide what cakes are baked, and he gets to make the various decisions about what products he offers, what the store’s hours will be, and all these issues, because it’s his store and it’s his property.
Against this, we balance the claim that people have a right to expect public accommodations to be nondiscriminatory, that if you’ve opened your doors to the general public then the general public ought to be able to go through those doors and equally get the goods and services that they request.
And then you pit these two claims against each other and you see which one wins out.
But that’s not what’s going on here, because Congress decided decades ago that it doesn’t matter that the store is your private property. When the state has an interest in particular outcomes, that absolutely overrides your having private property in your business.
The opinion of the court was delivered by Justice Anthony Kennedy, who in fact avoided all the cake nonsense and chose a different ground (though a quite weak one) on which to argue.
On the one hand, said Kennedy, the state wants to defend the free exercise of religion on the part of any person, including Jack Phillips, the baker. At the same time, the state has an interest in protecting certain protected groups from discrimination. So we have to bring these two concerns into balance.
(Notice that private property never even enters the picture.)
In his ruling for the Court, Kennedy said that the Colorado Civil Rights Commission did not observe the necessary balance here because it exhibited an anti-religious bias in the way it heard and responded to the Phillips case. Phillips was entitled to a respectful treatment of his arguments, said the Court, and he did not get that.
So although Phillips emerged victorious in 2018, it was hardly a home run victory — because what the Court’s decision was really telling left-wing ideologues in the states was, “Avoid being openly belligerent and moronic towards somebody who is religious, and you’ll probably get what you want.”
As it happens, the Colorado Civil Rights Division does allow bakers to decline to decorate cakes with offensive messages — such as slurs against homosexuals.
Think about what that means. Is Jack Phillips allowed to say that a cake celebrating a homosexual wedding is offensive to him, or is he allowed only to be offended by those things that the Colorado Civil Rights Division thinks he should be offended by? Is it up to the state to determine for everybody what’s offensive and what’s not?
Jack Phillips is being hounded and persecuted by truly vile people, who tricked Americans into thinking all they wanted was tolerance.
Well, as a reward for reading that rather dreary analysis, I’ll leave you with a gift: my free eBook Your Facebook Friends Are Wrong about Guns: