I sense that this is going to be one of those articles that I'm going to be editing afterwards, so you might want to check back and see what I change. I do edit my blogs -- BTW. They're not cast in stone. I change them. That's one thing I like about this blogging service. I can edit what I've written.
I try to be supportive of LGBTQ rights. I feel strongly about that topic.
On the other hand, this recent SCOTUS case is so intriguing.
I went to law school a long time ago. I took two semesters of constitutional law. I haven't practiced in that area, but it always intrigued me. I think it intrigues everyone -- especially the Bill of Rights.
Here you have two competing constitutional principles.
On the one hand, there is free speech. I think most people would agree that no one should be compelled to undertake a creative effort in support of a cause that person doesn't agree with. For instance, a person who is socially conservative should not be compelled to write a song or a creative sculpture extolling the virtues of marriage equality, when that is the opposite of what that person believes. I think most liberals would agree that that concept would be repugnant, even if they want this baker to be compelled to make LGBTQ wedding cakes.
On the other hand, there is the need to make sure that socially unpopular groups are not denied public accommodations, which is related to the 14th amendment. We saw this most clearly in the Jim Crow laws. African Americans were impeded in their ability to travel and to get food, because so many hotels and restaurants would not serve them. That was a huge social stigma. It significantly impacted their quality of life and their sense of personal safety. I think most Americans agree that this was a bad thing.
So there are two issues here.
1. Are LGBTQ people the same kind of group as African Americans?
I would personally say, "yes." I do not believe that these characteristics are a lifestyle choice. I believe that they stem from a physiological difference in people. I believe that God made these people this way.
I do not believe that LGBTQ characteristics constitute sin. I believe that Biblical and other scriptural pronouncements to that effect are historical errors, like believing that the Earth is flat. Those errors should not be propagated into the law of the USA.
2. Is making a cake more like writing a song/scupture or is it more like renting a hotel room?
I would say that making a cake is less creative than writing a song or making a sculpture and more creative than renting a hotel room. It's somewhere in between
Also, it's not entirely clear to me that a wedding cake is a public accommodation, like a hotel room or a restaurant. It hasn't been alleged that LGBTQ people cannot go into a public bakery and buy a donut that was pre-made. The issue is whether they can demand that a cake be custom made specially to celebrate their marriage.
A lot of people don't really understand what lawyers do. Lawyers are not there merely to tell you what is and what is not legal. Lawyers are most useful in these areas of ambiguity -- being creative in coping with ambiguity and complexity.
In fact, the law is full of ambiguity. It's a fundamental deficit in the nature of rational human thought and human language not to be able to perfectly model reality. There was an intriguing book on this topic that I read when younger called "Goedel, Escher, Bach."
Law libraries become larger and larger, as people explore these ambiguities. It gets to the point where the law is overwhelmingly cluttered with the writings of so many people discussing these issues, with greater and lesser legal authority.
I believe that we have reached the point here in the USA where it is impossible not to break the law, not to get into legal trouble. It's impossible not to get into legal trouble, because the law is so complicated and prolix that no one knows it entirely and no one can follow it entirely. The only people who do not get in trouble legally are people who do not stick their heads up above the crowd, so they're not noticed. As soon as you stick your head up, you can be shot down.
However, I digress. I still love these constitutional amendments: especially the Bill of Rights and the ones that came into being as a result of the Civil War. I still want there to be free speech and free press. I still want to protect stigmatized social groups from unwarranted discrimination.
Still, this situation is not entirely clear to me. I'm not immediately angry at SCOTUS for siding with the baker, even though I'm sort of a knee jerk liberal.
A baker who refuses to use black frosting, because he does not like the color black. He clearly states that this has nothing to do with race, but just that particular color. -- My guess is that this is probably ok.
A baker who refuses to use orange frosting, because he does not like the color orange, even though his customers request orange. -- I think is even more likely to be ok.
A baker who refuses to decorate a wedding cake with little statues of people having African American appearance, because he does not like the way they look, but he's willing to put on statues of people who look "Caucasian" (not that I like that term), but he's willing to sell wedding cakes to African Americans either with Caucasian statues or with no statues. -- My guess is that this is probably not ok.
A baker who refuses to make a wedding cake for an interracial couple, because he says his religion prohibits interracial marriage: I wonder if this case would have come out differently. What if the Colorado tribunal made derogatory remarks about the baker's religious beliefs? Would SCOTUS in such a case still decide that those remarks were relevant to whether the case should be overturned?
A baker who refuses to make a cake for Democrats, because he is a Republican. My guess is that this is probably ok, because he is an individual, not the government, and Democrats are not a protected class for purposes of anti-discrimination law.
A government owned bus service that posts political ads for Republicans and not for Democrats. Definitely not ok