Wednesday, June 06, 2018


I walked out of the documentary "RBG" convinced not that Ruth Bader Ginsberg's legal arguments were on the right side of history, but that they were so soundly reasoned there were simply right (no mean feat, that).  But that conclusion can rest too easily on tautology:  what you want to believe true is true.

Her dissent in Masterpiece Cake Shop would be "Exhibit A" in my argument.  But before I get there, I have to point out that while Kennedy wrote the majority opinion, Kagan and Breyer signed a concurring opinion, as did Gorsuch and Alito.  A footnote in the Kagan/Breyer opinion points out Gorsuch disagrees with a point in their argument.  Gorsuch also joined Thomas' concurring opinion, in part.  This was not a decision, in other words, based on consensus, despite the 7-2 vote.  That interests me in part because it reminds me of the Bakke decision, which we studied in Con Law lo these many decades gone.  Bakke presented (if memory serves; corrections gladly accepted) a "reverse discrimination" claim that he was not allowed into a college because he was a white male.  The court kind of reached a decision on that issue, but wrote 8 different opinions trying to do it.  Non-lawyers latch onto the judgment; lawyers look at the legal reasoning.  There's a reason justices write out lengthy opinions, analyzing the facts and the law to justify their decision(s).  The more broken up the opinions (Bakke is the gold standard for this legal principle), the more uncertain the power of the conclusion.  The judgment matters to the parties in the case; the reasoning matters to the lawyers trying to use that opinion on behalf of their clients.  This case, in other words, is a mess.

In the concurring opinion he wrote,  Gorsuch tries to take on the Ginsburg dissent, which will serve as a prelude to that opinion.  I have to say that goes as well for him as it did for Ted Olsen in a case before Justice Ginsburg, referenced in the documentary.   Here is Gorsuch's argument, in brief:

Take the first suggestion first. To suggest that cakes with words convey a message but cakes without words do not—all in order to excuse the bakers in Mr. Jack’s case while penalizing Mr. Phillips—is irrational. Not even the Commission or court of appeals purported to rely on that distinction. Imagine Mr. Jack asked only for a cake with a symbolic expression against same-sex marriage rather than a cake bearing words conveying the same idea. Surely the Commission would have approved the bakers’ intentional wish to avoid participating in that message too. Nor can anyone reasonably doubt that a wedding cake without words conveys a message. Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it celebrates a same-sex wedding.
To put that in context, the words of the dissenting opinion, in pertinent part:

On March 13, 2014—approximately three months after the ALJ ruled in favor of the same-sex couple, Craig and Mullins, and two months before the Commission heard Phillips’ appeal from that decision—William Jack visited three Colorado bakeries. His visits followed a similar pattern. He requested two cakes

“made to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He] requested that one of the cakes include an image of two groomsmen, holding hands, with a red ‘X’ over the image. On one cake, he requested [on] one side[,] . . . ‘God hates sin. Psalm 45:7’ and on the opposite side of the cake ‘Homosexuality is a detestable sin. Leviticus 18:2.’ On the second cake, [the one] with the image of the two groomsmen covered by a red ‘X’ [Jack] requested [these words]: ‘God loves sinners’ and on the other side ‘While we were yet sinners Christ died for us. Romans 5:8.’ ”

In contrast to Jack, Craig and Mullins simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips would have sold.

One bakery told Jack it would make cakes in the shape of Bibles, but would not decorate them with the requested messages; the owner told Jack her bakery “does not discriminate” and “accept[s] all humans.”  The second bakery owner told Jack he “had done open Bibles and books many times and that they look amazing,” but declined to make the specific cakes Jack described because the baker regarded the messages as “hateful.”  The third bakery, according to Jack, said it would bake the cakes, but would not include the re- quested message.

Jack filed charges against each bakery with the Colorado Civil Rights Division (Division). The Division found no probable cause to support Jack’s claims of unequal treatment and denial of goods or services based on his Christian religious beliefs. In this regard, the Division observed that the bakeries regularly produced cakes and other baked goods with Christian symbols and had denied other customer requests for de- signs demeaning people whose dignity the Colorado Antidiscrimination Act (CADA) protects.  The Commission summarily affirmed the Division’s no-probable-cause finding.

The Court concludes that “the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of [the other bakers’] objections.”  But the cases the Court aligns are hardly comparable. The bakers would have refused to make a cake with Jack’s requested message for any customer, regardless of his or her reli- gion. And the bakers visited by Jack would have sold him any baked goods they would have sold anyone else. The bakeries’ refusal to make Jack cakes of a kind they would not make for any customer scarcely resembles Phillips’ refusal to serve Craig and Mullins: Phillips would not sell to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others. When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wed- ding—not a cake celebrating heterosexual weddings or same-sex weddings—and that is the service Craig and Mullins were denied. Cf. ante, at 3–4, 9–10 (GORSUCH, J., concurring). Colorado, the Court does not gainsay, prohibits precisely the discrimination Craig and Mullins encountered.   Jack, on the other hand, suffered no service refusal on the basis of his religion or any other protected characteristic. He was treated as any other customer would have been treated—no better, no worse.3

The fact that Phillips might sell other cakes and cookies to gay and lesbian customers was irrelevant to the issue Craig and Mullins’ case presented. What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple. In contrast, the other bakeries’ sale of other goods to Christian customers was relevant: It shows that there were no goods the bakeries would sell to a non-Christian customer that they would refuse to sell to a Christian customer.   Nor was the Colorado Court of Appeals’ “difference in treatment of these two instances . . . based on the government’s own assessment of offensiveness.” Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it. The three other bakeries declined to make cakes where their objection to the product was due to the demeaning message the requested product would literally display. As the Court recognizes, a refusal “to design a special cake with words or images . . . might be different from a refusal to sell any cake at all.”5  The Colorado Court of Appeals did not distinguish Phillips and the other three bakeries based simply on its or the Division’s finding that messages in the cakes Jack requested were offensive while any message in a cake for Craig and Mullins was not. The Colorado court distinguished the cases on the ground that Craig and Mullins were denied service based on an aspect of their identity that the State chose to grant vigorous protection from discrimination.   (“The Division found that the bakeries did not refuse [Jack’s] request because of his creed, but rather because of the offensive nature of the requested message. . . . [T]here was no evidence that the bakeries based their decisions on [Jack’s] religion . . . [whereas Phillips] discriminat[ed] on the basis of sexual orientation.”). I do not read the Court to suggest that the Colorado Legislature’s decision to include certain protected characteristics in CADA is an impermissible government prescription of what is and is not offensive. To repeat, the Court affirms that “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”
3JUSTICE GORSUCH argues that the situations “share all legally sa- lient features.” Ante, at 4 (concurring opinion). But what critically differentiates them is the role the customer’s “statutorily protected trait,” ibid., played in the denial of service. Change Craig and Mullins’ sexual orientation (or sex), and Phillips would have provided the cake. Change Jack’s religion, and the bakers would have been no more willing to comply with his request. The bakers’ objections to Jack’s cakes had nothing to do with “religious opposition to same-sex wed- dings.” Ante, at 6 (GORSUCH, J., concurring). Instead, the bakers simply refused to make cakes bearing statements demeaning to people protected by CADA. With respect to Jack’s second cake, in particular, where he requested an image of two groomsmen covered by a red “X” and the lines “God loves sinners” and “While we were yet sinners Christ died for us,” the bakers gave not the slightest indication that religious words, rather than the demeaning image, prompted the objection. See supra, at 3. Phillips did, therefore, discriminate because of sexual orientation; the other bakers did not discriminate because of religious belief; and the Commission properly found discrimination in one case but not the other. Cf. ante, at 4–6 (GORSUCH, J., concurring).
5The Court undermines this observation when later asserting that the treatment of Phillips, as compared with the treatment of the other three bakeries, “could reasonably be interpreted as being inconsistent as to the question of whether speech is involved.” Ante, at 15. But recall that, while Jack requested cakes with particular text inscribed, Craig and Mullins were refused the sale of any wedding cake at all. They were turned away before any specific cake design could be dis- cussed. (It appears that Phillips rarely, if ever, produces wedding cakes with words on them—or at least does not advertise such cakes. See Masterpiece Cakeshop, Wedding, wedding-cakes (as last visited June 1, 2018) (gallery with 31 wedding cake images, none of which exhibits words).) The Division and the Court of Appeals could rationally and lawfully distinguish between a case involving disparaging text and images and a case involving a wedding cake of unspecified design. The distinction is not between a cake with text and one without, see ante, at 8–9 (GORSUCH, J., concurring); it is between a cake with a particular design and one whose form was never even discussed.
This is pretty much the entirety of the factual recitation and argument based on it.  I removed most of the citations to the record, but included those to Justice Gorsuch's concurring opinion (thus does RBG use Gorsuch's argument against him) and two footnotes because I thought them important, too.

If you read Ginsburg's words carefully, you'll see one of the purposes of dissent, especially in a case with so many opinions:  she is analyzing (dissecting, really) the majority opinion and pointing the way to the proper legal conclusion in future cases.  So:

To repeat, the Court affirms that “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”
But the heart of her argument, and where she is so right despite Gorsuch's attempt (and failure) to rebut her, is here:

When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding—not a cake celebrating heterosexual weddings or same-sex weddings—and that is the service Craig and Mullins were denied. Cf. ante, at 3–4, 9–10 (GORSUCH, J., concurring). Colorado, the Court does not gainsay, prohibits precisely the discrimination Craig and Mullins encountered.   Jack, on the other hand, suffered no service refusal on the basis of his religion or any other protected characteristic. He was treated as any other customer would have been treated—no better, no worse.
Gorsuch's weak rebuttal is to claim cakes carry messages, with or without words.  As Ginsburg points out, that isn't the issue:  the issue is, can services offered to be public be denied to certain persons because they are perceived to be in a class the shop owner does not wish to do business with?  Had the baker declined to bake a cake for a Jewish wedding because he thought Jews "Christ Killers," or refused to make a cake for a black couple because he believed they bore the "Mark of Cain," would the Colorado Civil Rights Commission have been wrong to denounce his religious beliefs?  Would there have been no discrimination in that case?  As the dissent points out, the question of discrimination is not in what message you are forced to send, but in what services you deny to whom.    Jack was not discriminated against; Craig and Mullins were.  If Ginsburg's definition is not the definition of "discrimination," then civil rights law going back at least to Brown v. Board is completely undone.

She is not right because she is on the right side of public opinion or history; but simply because her argument is right.



  1. Thank you for so nicely condensing Ginsburg's argument and using it as a foil for Gorsuch's lackluster reasoning. I have been absolutely swamped with family and work responsibilities and had put aside the court decisions for later (which could be never given life). It is an intellectual pleasure to read such clear reasoning and drawing meaningful distinctions. Lower courts could readily follow her road map, Gorsuch provides no guidance at all other than peer into your crystal ball for the motivations of those that want to discriminate.

    In many ways though, Gorsuch's opinion is more in line with current culture. We are in an age where the story is more important that the object. If you will indulge me some examples. For most of history, luxury goods were more valued because of their superior craftsmanship or materials, rarity or high level of design (another form of craftsmanship). At some point, maybe starting in the 80's, luxury goods were no longer just those things, but instead became "branding". The $5 t-shirt with a luxury name emblazoned across the front could now be sold for $12. (Remember people wondering why you would buy a shirt that had a brand name? It was advertising, they should pay you! So naive to the modern ear). The $12 shirt was the same material, craftsmanship as the $5, and the rack was full, no rarity. A few years ago I read an article on mass market watches. Most come from one place in China. The $250 watch costs a few a dollars more to produce than the $20 watch, people happily pay for the name. The same is now true in the art world. Damien Hurst has conceptions and ideas, a factory in England churns them out for him. He doesn't even touch most of his art. My moment of awareness came when a piece Shed Boat Shed won the Turner Prize in 2005. A shed was dismantled, the pieces made into a crude boat, floated down the Thanks, then reassembled into a shed. It's a shed. Without the background story, it is a garden shed. There is no craftsmanship, the "artistry" is the story. In many ways the object is merely a place to attach the story, the value is almost purely the intellectual property of the story. I want to be careful here, I enjoy and value representational and abstract art. The Tate Modern is one of my favorite museums. I recognize the importance of context in art and value the expert that can bring context and meaning to a work. I recall standing in Prague looking at drawnings made by Jewish children imprisoned during WWII and eventually murdered during the Holocaust. They were some of the most moving art, and context mattered deeply. But Shed Boat Shed and Damian Hurst are most definitively not that.

    As a guy who likes working on old cars, it has more recently shown up in the collector world. One or two owner cars sell for more than the identical car with multiple owners. People will pay more for the story. The same goes for "barn finds", cars that sat abandoned for decades then dragged out into the sunlight. Don't dare wash off the thick layer of dust! The cars will sell for more than better running versions because they have a story. The premium for owning a car once owned by even the mildly famous has sky rocketed.

    As a patent attorney (anyone can call themselves an intellectual property attorney, which is a better description of my practice, but you need the separate bar admission to the USPTO to call yourself a patent attorney so I like to use that) I have a professional interest in this weird form of intellectual property that makes items suddenly worth more, the story that is attached creating value. In all the cases mentioned there is almost a need to glory in the brand new, the story, the context that will somehow rub off on you.


  2. To tie this back to Gorsuch and Ginsburg, the dissent sees the object and recognizes the object is the offense. We can see the words, the Bible, on the cake and recognize the issue. For Gorsuch, it is just a cake. We need a story. Is the cake for a straight or a gay wedding? Or a mixed faith wedding (I assume the baker would object to this too)? The cake is transformed by who buys it. Two identical cakes have different "values" depending on the story. One is just a cake, another is an infringement to a religious freedom. It's ridiculous. It's also bad law. If an action is prohibited, then it shouldn't be ambiguous. We shouldn't seenidentisee objects or actions and post fact decide if they are prohibited.

    As usual I have read, written far too much, and left myself with more questions to ponder than I started. Thank you for your patience.

  3. It is bad law. As I was telling my daughter today, I used to read the opinions of Hand and Cardozo just for the lucidity of the reasoning. I can confidently put Ginsburg in that small club.

    I especially like your discussion of narrative (for which I need more space and time). My daughter (who attended art school briefly) and I talk about how much of contemporary art is more about the explanation (the narrative) than the work itself. I hadn't thought about it the way you expanded it, before. Very interesting.