How is Equality Baked into Our Constitution?

By | 2017-06-02T18:30:05+00:00 December 5, 2017|
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The United States Supreme Court on Tuesday heard oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The case, and the specific legal questions surrounding Jack Phillips’s work, have been discussed at length elsewhere, and in any event can be expected to come to a practical conclusion in a few months.

But the controversy’s underlying moral, political, and philosophical questions no doubt will remain. What is at stake as we consider the shape of the debate moving forward?

The case embodies the clash between two fundamentally different conceptions of human equality and two corresponding notions of what we owe to one another as equals. To fully grasp the competing visions of equality, we must understand their implications and the moral obligations they suggest. Understanding this deep debate over equality allows us not only to grasp the free speech and free exercise aspects of the case but also reveals the looming threat to liberty and limited government before us.

Let’s begin with a question: How did Phillips harm Charlie Craig and David Mullins, the gay couple who filed the original complaint? What did Phillips do to them?

In one sense—in a literal sense—he did nothing to them or for them. Phillips denied their request to engage in a commercial transaction. That denial as such was not the harm—we could think of reasons why Phillips could refuse to design the wedding cake that would not have been perceived to be harmful. For example, if Phillips was going on vacation and couldn’t complete the cake on the date requested, or had too much business and wasn’t taking new orders or if he lacked the artistic skill to design the specific cake Craig and Mullins requested.

The harm wasn’t that he refused to design a cake; it was the reason he gave for his refusal—he refused to design the cake because it was for a same-sex marriage.

Articulating that reason—saying that he found same-sex marriage morally problematic—and then acting according to those beliefs was how Phillips “harmed” Craig and David.

Phillips’s violation, in this age, is regarded as a type of blasphemy. Respecting sexual orientation, he violated the state-enforced morally approved views of the state of Colorado. Like heretics of old, Phillips is being persecuted by authorities who seek to enforce their dogmas.

Blasphemy was persecuted because it was thought to offend God.

But we still have to ask: what is the harm in expressing a belief or a moral opinion followed by no action?

The answer reflects the new understanding of equality that progressive liberals have adopted.

Phillips in effect assaulted the dignity of Craig and Mullens. He assaulted their dignity by refusing to recognize the legitimacy of their marriage and the moral propriety of their sexuality. In our new religion, the self—the identity that we put forth to the world—is the new deity. Denying the “self” of others is heretical.

It is a violation of equality because equality in this view means having one’s identity affirmed by others. To be equal means to be recognized in one’s identity, whatever that identity may be. The act of recognition itself is necessary to the realization of equality. If one’s identity is not respected or recognized or affirmed—if one is “disrespected,” to use an awkward term—one is denied equality.

The older understanding of equality was different. The older understanding, the founders’ understanding that animated our original Constitution, held that we are equal in our natural liberty—we each equally possess dominion over our own lives and therefore over our own labor and faculties. And thus we can choose to labor or choose to contract with one another when we, the possessor of these things, see fit to engage them. We cannot be compelled to use them. Equality in this older understanding was realized, as Lincoln said in Peoria in 1854, by letting “each man do precisely as he pleases with all which is exclusively his own.”

The older understanding of equality included a presumption of liberty—an individual was free to employ his labor or not according at his own discretion—this was an essential aspect of what it meant to be free—the ability to own and control one’s own labor.

We’ve recognized certain exceptions to this freedom. In situations of monopoly or governmental licensing or privilege—then if one was generally open for business, one had to take all-comers. And, of course, there had to be an exception for race because of our original sin of slavery and continued denial of justice through legally enforced segregation—sins that involved denying black Americans the equal freedom to control their labor and enter freely into contracts with others. These were the exceptions to the presumption of liberty, a liberty that followed from our natural equality.

The older understanding of equality held that if you didn’t do anything to another person—if you just left him alone—then you did not harm him. Again, Americans have made certain exceptions, notably for race. But these were exceptions. True, expressing one’s opinions alone might offend someone. In the older understanding, however, as long as you did not interfere with another’s right to express his opinions or in some way interfere with his God-given natural and equal liberty, speech alone couldn’t harm another.

The new progressive understanding is different. Speech and the expression of opinions that fail to recognize the self-chosen identity of another inflict what is now called “dignitary harms.” Speech that offends protected classes can be shut down—this is what we are seeing on college campuses all over the nation—and businesses like Masterpiece Cakeshop that refuse to engage in commerce for reasons associated with certain protected identities can be fined or sanctioned.

This new view of equality—that equality requires affirmation by others—is incompatible with our true understanding of freedom.  

If my equality requires your affirmation—in other words, that you recognize and accept and approve of me as I want to be affirmed and recognized and approved—then my demand for equality must necessarily direct and control and limit what you can say. It will also direct and control what religious beliefs you are allowed to embrace; at least if you mean to embrace them in any meaningful way.

This is what is at stake in the current case.

Jack Phillips may win his case. But whether freedom of speech and the free exercise of religion will be protected in the future depends on whether we as a nation recapture and rededicate ourselves to our Founding Fathers’ understanding of freedom and equality That fight is just beginning, and it will not be resolved when this case is over.

Editor’s note: This essay is a revised and updated version of a talk delivered at the Claremont Institute’s 2017 Constitution Day Celebration at Chapman University on September 23, 2017.  

About the Author:

Vincent Phillip Muñoz

Vincent Phillip Muñoz is the Tocqueville Associate Professor of Political Science and Concurrent Associate Professor of Law at The University of Notre Dame. He also serves as Director of Notre Dame’s Tocqueville Program for Inquiry into Religion and Public Life and the Potenziani Program in Constitutional Studies.

  • Frank Natoli

    Is the author suggesting that the blacks denied service at the Greensboro Woolworth lunch counter were in fact then and there treated constitutionally?

    • Rick

      Don’t think so. Skin color is a God-given or natural physical characteristic in human beings. Marriage is merely a legal status created by government. The religious objection goes to the status – not to the unalienable right of the two men to live together or to love each other.

      Marriage was deemed a fundamental right because the law of each State established the status and that status was much more central to society’s structure. (Not so much today.) But if marriage were truly an unalienable right, then the States could not have been permitted to abolish common law marriage in the middle of the last century.

      If a State abolished the entire status of marriage, the 14th Amendment would not require the State to create it. The two men could still live together and love each other. And there would be no constitutional right to force the baker to do anything to affirm their relationship because there would be no legal status conferring special rights or privileges upon heterosexual couples that flows from a marriage license issued by the State.

      As the author noted, skin color and race were exceptions to the general rule of labor. And they were deemed exceptions because race and color were traits endowed by the Creator or by nature – if you don’t believe in a Creator.

      • Frank Natoli

        Skin color is a God-given or natural physical characteristic in human beings.
        Indications are, so is homosexuality, at least in the sense of nature, as in God’s permissive will in contrast to God’s explicit will. God never explicitly willed children to be stricken by polio, but God did permit it. Otherwise Jonas Salk would have been defying the will of God when he isolated the virus and created a vaccine.
        Just because it’s “nature” doesn’t mean it’s “right”. I say we as a group should have the right to discriminate between “right” and “wrong” nature. Being black [or white] is not an offense against nature, and anyone making laws on that pretense is wrong. But being homosexual is a fundamentally sterile course, and nature at its most fundamental chooses harshly between survival and extinction, and wires the vast majority to instinctively be attracted to heterosexual intimacy and just as instinctively be repulsed by homosexual intimacy. No law of man is going to change that.

        • Kirkus1964

          If the “vast majority” are “repulsed” by homosexual intimacy, how do you explain the popularity of lesbian porn among straight people?

          • AnyGivenSaturday

            “If the “vast majority” are “repulsed” by homosexual intimacy, how do you explain the popularity of lesbian porn among straight people?”

            How do you explain the popularity of violent movies among straight people? Does that mean they also want it to occur in real life? Learn the difference between fantasy and reality.

      • AnyGivenSaturday

        “Marriage was deemed a fundamental right because the law of each State established the status…”

        If marriage was a fundamental “right” the states that license unions would be forced to license any arbitrary grouping people invent and demand it be recognized as a “marriage”. The Supreme Court utterly failed to articulate a limiting principle the moment they unconstitutionally fabricated their own constitutional amendment of a fake “right” to marriage.

        • Everett Brunson

          Agree. Already the poly-gams, poly-ams, and pedo-ams are screaming for their “right” to marry too. The redefinition of “marriage” by the courts have already opened this pandora’s box and by following the thread of logic soon marraige will be meaningless.

    • bdavi52

      Not at all. In fact, he specifically says otherwise: “We’ve recognized certain exceptions to this freedom. In situations of monopoly or governmental licensing or privilege—then if one was generally open for business, one had to take all-comers. And, of course, there had to be an exception for race because of our original sin of slavery and continued denial of justice through legally enforced segregation—sins that involved denying black Americans the equal freedom to control their labor and enter freely into contracts with others. These were the exceptions to the presumption of liberty, a liberty that followed from our natural equality.” He reiterates: “Americans have made certain exceptions, notably for race. But these were exceptions.”

      But your question is actually quite fascinating.

      Suppose we say, yes, the refusal of service (the exercise of the liberty to “choose to labor or choose to contract with one another when we, the possessor of these things, see fit to engage them”) was entirely Constitutional, even when exercised at the Greensboro Lunch Counter? What then?

      Suppose we take, very literally and very absolutely, the notion that freedom in a free society gives each one of us the freedom to ‘do business’ with another… or not, each according to our own wishes & desires? Where does that lead us?

      Obviously it takes us, potentially, back to Greensboro, 1960. But does it really? We live, now, in a world in which racism is loudly and quite generally despised. It is hunted by the Media and exposed wherever and whenever it rears its ugly head (and many times, unfortunately, when it’s not even really there). The Greensboro Lunch Counters have essentially ceased to exist. The world, in other words, has changed…and we’d find few, if any merchants out there who would be willing to sacrifice their revenue stream (and their reputation & brand name) just to indulge their hatred.

      Sure, there may be pockets of racism still out there. There may be particular racists who own particular lunch counters who may very deliberately exercise their right of refusal (even when that right demonstrates their own racism)… but so what? If someone hates me, because of the color of my skin, or my weight, or my sexual orientation, or my accent, or a million other things — do I really want to do business with them?

      We also must recognize a critical difference between the offer of a general, public service (like serving food at a lunch counter) and the employment of a craftsman/artisan to provide his particular & unique expertise for our, own, personal use. If we walk into a restaurant, we expect to be served if there’s a table available. But if I contact a Master Carpenter and ask him to build me a special kind of table, I expect only that he will consider it. He may decline my offer of employment…and he may decline it for any number of reasons: maybe he just doesn’t like me…maybe he doesn’t like my color or my accent….maybe he’s busy….maybe he doesn’t enjoy making the kind of table I require….maybe he doesn’t like my neighborhood (where he’d have to park his truck)…. maybe he prefers to work on something else? But in all those cases, clearly, he has the right of refusal.

      It would seem there are several critical points here:
      1) We might say Freedom is what Freedom is….and if we grant to all the freedom to serve or not serve, then we live with the consequences, even when they are distasteful. We wait, in other words, for our society & culture to change so significantly (as it has) that very few if any wish to exercise that freedom unjustly.

      2) There is a difference between the offer made by a business to provide a more or less generic public service or product (come one, come all — we’re serving hotdogs) to a customer….and the offer made by a customer to a craftsman of a specific, employment opportunity. [eg. Let’s say I design stained glass windows (they have my name on them). If you want one of mine, I may be interested in working for you…I may not. I naturally have the freedom to refuse. You can’t compel me to make your stained glass window according to your requirements.] On the one hand I have the freedom to buy or not buy what you are offering/selling as a generic (yes, I want a hotdog)… on the other hand I am the one offering (Do you want to work for me to give me what I specifically want?) and you are the one with the freedom to accept or decline.

      3) There is also a significant difference between the refusal of service to an individual because of WHO or WHAT that individual is (Black, White, Gay, Straight, Republican, Pro-Life, Pro-Choice, etc.)…..and the refusal of service for an event. In the Cake Bake Case, the baker very clearly offered to provide products to the individuals in question (if they wanted cookies, he’d sell them cookies)…he simply refused to provide a specific service/product (a custom-decorated wedding cake) for a specific event, the same-sex wedding (as he saw that event as sinful perversion).

  • Party of Lincoln

    Excellent question, Frank. When we revere the Constitution, Lincoln’s Frame of Silver, and the Declaration, Lincoln’s Apple of Gold, we must be sure to revere the entirety of the Constitution and not just the pieces we like. The Fourteenth Amendment guarantees the equal protection of the laws.

    But how should the Fourteenth Amendment be understood in this situation?

    On the one hand, it cannot be the case that a baker must bake a cake that praises Nazi Germany or a satanic cult-god. And if that’s true, or at least stipulated by all, how can a baker not be free to deny baking a cake for a gay couple? But if it’s accepted that a baker must be free to deny baking a cake for a gay couple, why should he be compelled to bake a cake for a black or a Latino, if for any reason it would offend his sensibilities that he do so?

    A condundrum, isn’t it? The same constitutional logic that would allow a baker, or innkeeper and so on, from to deny a customary service to a gay couple can easily be used to deny the same service to a black or Latino.

    If the proferred argument to establish a distinction between denying a service to a gay from denying service to a black on the basis of a religious belief, that would by necessity oblige the court to discern what is and what is not a bona fide religious belief. And lest anyone here think that’s an easy task, I would remind you that preachers in the slaveholding states in the 1850s that slavery was perfectly consistent with the teachings of Jesus Christ.

    Kennedy no doubt will split the baby on this one, writing something to the effect that a baker may not discriminate against gays in the performance of a customary business transaction, such as selling a cake already made; but allowing a baker to refuse to bake a cake on special order by a gay couple. All things considered, that’s a reasonable compromise.

    • czechlist

      Although I am acutely aware that the constitution and law are deeply embedded in the argument I am compelled to ask why only one side (conservative) of the seemingly never ending litigation is expected to be tolerant of the other’s beliefs/feelings/religion (progressive).
      To Wit: Do conservatives retain any rights if a progressive doth protest?

    • Malcolm Kirkpatrick

      “A condundrum, isn’t it?”
      Not to me. I deny the premise that race is a legitimate exception to the principles of freedom of association and freedom of contract. When government agents discriminate based on criteria not specified in law, the law is unclear. When non-government actors discriminate on the basis of their own silly, idiosyncratic criteria, that’s no cause for State action. If a business owner only hires, promotes, or serves gay vegetarian left-handed Chinese Methodists, that is, quite literally, his business. Not yours. Not mine. Freedom of association and freedom of contract were at one time common law. The cost of protecting and enforcing the exceptions far exceeds the benefits.

      • Party of Lincoln

        In this context, let’s restrict the meaning of “discrimination” to denying a service, such as selling a hamburger. The case at hand is more complicated in that the issue at hand is a customized service, the basis for which Kennedy will likely thread the constitutional needle.

        It appears that we agree that there is no freedom to discriminate on the basis of race. Terrific. Should there be a freedom to discriminate on the basis of political beliefs? To be specific, if you were a hamburger stand owner should you have the freedom to deny service to a Trump supporter? I hope your answer is no.

        But discriminating on the basis of political beliefs is not specifically prohibited by law, is it? Nope. I have no idea if this has ever been litigated but I’m quite sure that if a burger stand owner denied a Trump supporter a burger and the customer sued, he’d win in court. You can discriminate in a lot of ways (such as denying registered Democrats the right to participate in a meeting of Republicans and so on) but you generally cannot discriminate, in a public accommodation, on an arbitrary basis. Denying a Trump supporter a burger would be arbitrary discrimination and would be found unconstitutional.

        The path to an equitable resolution of this case is fairly straightforward.

    • Frank Natoli

      Kennedy no doubt will split the baby on this one, writing something to the effect that a baker may not discriminate against gays in the performance of a customary business transaction, such as selling a cake already made; but allowing a baker to refuse to bake a cake on special order by a gay couple.
      I had to read that several times to understand it, but you’re right, that’s just the kind of thing Anthony might do.

    • AnyGivenSaturday

      “Kennedy no doubt will split the baby on this one, writing something to the effect that a baker may not discriminate against gays in the performance of a customary business transaction, such as selling a cake already made; but allowing a baker to refuse to bake a cake on special order by a gay couple. All things considered, that’s a reasonable compromise.”

      Baloney.

      Kennedy no doubt will rule in favor of the gays entirely. Other than a token rebuke to the bigoted anti-religious remarks of the Colorado commission, he will do whatever the gays want. His rulings in Lawrence, Windsor and Obergerfell are undeniable proof his unlimited sympathy for the gays and will rule in their favor no matter what every time.

      Your “split the baby” remarks are nonsense, since the baker already offered that very same proposal which the gays rejected and decided to make him suffer for it.

      On the contrary, Kennedy will also be ruling in favor of another gay who is suing for employment discrimination. How she will prove her homosexuality was the reason she didn’t get the job should be interesting.

      Not only will she win the case, but Kennedy will retire with a flourish by establishing a protected status for sexual orientation. His favorite cases (gays) are the only reason he didn’t retire already. He saw these cases coming and decided to hang on for one more year so he can go out with a bang and establish a legacy of fabricated “rights” out of thin air. His perverted redefinitions of liberty and dignity in the Obergerfell case illustrate just how far gone he really is when it comes to the gays.

  • Europa

    When it comes to our liberties and Freedoms Lincoln is not the best example. He used the Union army to brutally force 11 states to stay with the Union. That act of sheer brutality caused the lives of 1 million Americans (625 thousand soldiers and another 300 thousand odd civilians). The civil war removed the legitimacy of our Declaration of Independence and the natural freedoms of “Life Liberty and the pursuit of Happiness”. That war rendered obsolete the consensual agreement of the 13 colonies to enter into a Union and dissolve it if they want to.
    As for Christianity and God it is dead. Christianity is more dead in America than in Russia. It has been effectively killed by Cultural Marxism brought to the US after world war One. Those who use Christianity do it to deny liberties, promote their bigotry and oppress those who do not agree with them.

    • Jim Croft

      So you are in Europe where it it a crime to speak against government dogma. Hypocrite of the highest magnitude. Do you have children?

  • sestamibi

    Magnificent analysis, but one critical point not addressed: why is “the right not to be offended” not universally held? These issues are indeed a matter of power alone.

    • Europa

      “the right not to be offended” is supported by Politically Correct ideology

      • johnleehooker

        I have ONLY one thing to say: I’M OFFENDED

      • Jenny O’Brien

        and so? finish your thought….

        “….is supported by Politcally Correct ideology which is….

        CHOOSE ONE:

        a) schitt
        b) garbage
        c) killing our country

    • Jenny O’Brien

      hey libturrrd fool
      there is NO right ‘not be offended’

      • sestamibi

        Jenny, I think you need to take a course in critical sarcasm studies. Of course there’s no right not to be offended, which is why I put it in scare quotes. What I was asking is that our side start embracing the same tactic, and to show that if only THEIR side can shut down debate that creates a mirror image power imbalance: a war against men, black privilege, etc. Capisce?

    • Peta Johnson

      The so-called right “not to be offended” by private persons without a government granted monopoly is a purely statutory right – not a constitutional right.

      The discrimination statute is just that – an Oregon statute. Since there is no State action involved in the baker’s refusal, there is no constitutional right enforceable against the baker. The baker is arguing that the First Amendment which the Court has said is incorporated in the Fourteenth Amendment binds the State, so as to void the State statute in this case, because a custom made wedding cake with a rainbow flag is symbolic speech, which cannot be coerced in view of freedom of speech preserved by the First Amendment or a wedding is a rite that a person of dissenting religiosity may not be required to participate in, in view of the free exercise clause in the First Amendment.

      As to the 19th Amendment and the ERA, they were sought, in part, because what is “the equal protection of laws” rests in part on social norms. Differences in the treatment of women were not perceived as inherently unequal. The same with homosexuals.

  • Sam McGowan

    Activists and lawyers have gone nuts with the Fourteenth Amendment, specifically part of section one – No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. They make claims of rights that aren’t there.

    • vortex100

      That is your interpretation of the amendment. It is the job of judges, especially Supreme Court judges, to interpret the Constitution. It is their interpretation that counts. Your interpretation, on the other hand, does not count. Oh, well.

      • Chris

        And the SCOTUS at one time voted 7-2 that black people were property (they later voted 7-2 that unborn children were also property), and that the Obamacare penalty was a tax, despite the fact that BOTH sides argued that it wasn’t. The SCOTUS has been less than persistent in correctly interpreting the U.S. Constitution.
        Nice try though, kid.

        • vortex100

          Irrelevant. The court decides, not you. That’s just the way our system works.

          • Chris

            That doesn’t mean We the People don’t have a right to express our opinion on the matter. And our opinions translate into votes, which elect presidents, who appoint Supreme Court Judges. So….yes, We the People DO ultimately decide. That’s just the way our system works. You’re 0-2. Keep trying though, something is bound to stick, kid.

          • vortex100

            Yes, we the people do ultimately decide. However, that doesn’t mean your individual opinion is important or means anything at all. Your attempt at scoring our discussion like it is some sort of competition is pathetic, but I suppose it makes you feel better. Wow, you’re winning 2-0. How exciting for you! I suppose it’s 3-0 now. [eyeroll] Grow up.

    • Peta Johnson

      See Raoul Berger “Government by Judiciary: The Transformation of the Fourteenth Amendment” (1975) ISBN 978-0-674-35795-2

      Berger thought the same and he was a liberal. Robert Bork agreed.

  • BurkeanMama

    Excellent analysis. It is proof of the weakness of the same sex marriage argument that they require the recognition of others. If a homosexual union was truly equal it would not require universal validation.

    • Peta Johnson

      In my lifetime, the Roman Catholic Church refused to recognize Protestant rite marriages, in determining whether a person was adulterous in seeking to marry a second time.

      So apparently, it is permissible for the State of Oregon to mandate that such a marriage be recognized OR NOT and prosecute accordingly, for discrimination, if a priest will not perform the wedding, because he takes his own view of the validity of the original Protestant marriage.

      That is the case made by the homosexuals in Masterpiece Cake Shop Case.

  • E. T. Bass

    The reason religious objections to deviant sexual behavior arose in the first place was because religion was the only vehicle through which the observations of men could be expressed. We now know that aberrant sexual proclivities are the result of psychosexual disorders that spread disease, result in a higher incidence of suicide and have a greater propensity for domestic violence among those with the affliction who live as a “couple”. . . . not to mention the effect of homosexual propaganda on kids who are just plain trying to grow up.

    Probably too late now, but it would have been smarter to fight the insidious spread of this sick lifestyle on public health grounds, rather than religious beliefs.

  • rwisrael

    If the current holding that the 14th Amendment guarantees equality is correct, why was there a need for the 19th Amendment and why was the ERA thought necessary? This is obviously a relatively new interpretation without much historical basis.

    • Peta Johnson

      The discrimination statute is just that – an Oregon statute. Since there is no State action involved in the baker’s refusal, there is no constitutional right enforceable against the baker. The baker is arguing that the First Amendment which the Court has said is incorporated in the Fourteenth Amendment binds the State, so as to void the State statute in this case, because a custom made wedding cake with a rainbow flag is symbolic speech, which cannot be coerced in view of freedom of speech preserved by the First Amendment or a wedding is a rite that a person of dissenting religiosity may not be required to participate in, in view of the free exercise clause in the First Amendment.

      As to the 19th Amendment and the ERA, they were sought, in part, because what is “the equal protection of laws” rests in part on social norms. Differences in the treatment of women were not perceived as inherently unequal. The same with homosexuals.

      • rwisrael

        At the time of their passing/ proposal , the “social norms” which are now considered incorporated into the 14th Amendment did not exist. Your casual dismissal of the original meaning is based on new interpretations which were never before imagined. The current interpretation of the 14th Amendment has been constructed since the 60s and has no historical basis.

        • Peta Johnson

          I referred the person interest to Raoul Berger’s book – “Government by Judiciary”, which says that and to Robert Bork. But I stand by what I have written as a correct exposition of the decisional law.

          • rwisrael

            Unfortunately, the current interpretation is as you have stated. I strongly disagree with its validity, as did Justice Scalia.

  • johnleehooker

    Baker: N O…NEXT

  • Jenny O’Brien


    this is the BEST ARTICLE that i’ve read on this SCOTUS case.

    and i’ve read scores…

  • Fred Friedman

    The court could have avoided all of this nonsense by refusing to legalize gay marriage and allow the states to do so through the legislative process. The court must butt out of trying to resolve social issues and allow people to govern themselves through the compromises and accommodations inherent in self government. The courts did the same thing regarding abortion. Judges are ill suited to deal with these issues because they are shielded from any degree of public accountability. Furthermore judges are not philosopher kings and their judgments deserve no more deference or consideration than the judges of any reasonably informed and civic minded citizen. I am a gay man and do not support gay marriage because men and women marrying is the only way for a properly ordered society to function. Biology is destiny and at the end of the day marriage is implicated with rearing and nurturing children and children need a mother and mother to insure their proper moral, psychological and intellectual development. Society had a right to survive and perpetuate itself and only men and women are capable of producing a child even one who ultimately turns out to be gay. What the court in its arrogance did with the Obergfell decision was to invalidate centuries of human history, common sense and deep rooted moral and social traditions. Phillips deserves to win this case and the gay community needs to show the sort of tolerance toward others that they expect for themselves. There are plenty of other caterers who would be able to cater their weddings. This couple deliberately chose this caterer knowing he would refuse. The couple should be made to pay monetary damages to the caterer and apologize for threatening his livelihood. Gay people need to stop shoving their agenda down the throats of religious people and take their business elsewhere.

    • Headliner

      I completely agree with your first sentence. That Supreme Court decision was a mutation – possibly a violation – of the Tenth Amendment. Where in our Constitution does one read the phrase “gay marriage” or even “marriage?”

    • ahad_ha_amoratsim

      Not entirely. If a state had legalized same sex marriage absent federal mandate, the same form of religious persecution could have occurred. In fact, when Mr. Phillips declined to make the cake at issue in this case, the US Supreme Court had not yet mandated recognition of same sex marriages, and those marriages were not recognized by the state where the supposed offense occurred.

    • Peta Johnson

      I generally agree with you. The impetus for the world of Obergefell is footnote 4 in United States v. Carolene Products Company, 304 U.S. 144 (1938).

      “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth….

      “It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation….

      “Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious… or nations… or racial minorities…: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry…. ”

      However, the marriage statutes were not discriminatory. There is not and will never be the equivalent of coverture for 2 “husbands” in a gay marriage.

      Marriage is a heterosexual institution at Common Law.

  • Scott Williams

    I suppose this means we have the right to be a dick.

  • underwearbomber

    This leftist view of “equality” depending upon social acceptance of any deviancy is incompatible with human freedom and dignity. It is what has allowed them to abort children and abuse women at will and manage to feel superior about it.

    The lawyers arguing Phillips case as one of freedom of speech are misguided. This is not about free speech, but about whether even choosing to do nothing or say nothing at all can be tolerated in modern America, since even withholding approval is now considered a criminal act to the pro-regressive thought police.

    • BigZim

      I still say simply grab yawls a Baseball Bat and run them Weido’s out of yawls Cake Decorating Shop and be done with it PERIOD….

  • IssacNewton

    Great article. The implication is that all protected classes require state enforcement of their dignity against all other citizens. If Bruce Springstein can deny his services to the people of NC; cake bakers should be able to deny their services to gays (or Christian, muslims, etc.). Race and monopoly services are the only possible exceptions.

  • Deon Van Zyl

    What about my dignity? What about my sanctity for refusing to marry the gay little couple? What about my right to question the invasion of the cultural sphere by the State on behalf of gayhood? Show me one religion that has ever promoted homosexuality.

  • Deon Van Zyl

    I must now embrace your Identity Fascism or face State sanction: what was the Old School response? Go fuck yourselves.

  • Peta Johnson

    Careful and intelligent analysis. The problem for homosexual advocates is that once one accepts partial incorporation theory, so far as the Bill of Rights and the Fourteenth Amendment are concerned, then their claim is merely a claim that a State can curb conduct because it is neither speech, nor symbolic speech, nor the free exercise of religion. Their “rights” are statutory rights that can be curbed by legislative action. The homosexuals deserve to lose this case, because a custom made wedding cake may not always be symbolic speech, but one with a rainbow flag is.