The Supreme Court decision in favor of the owner of the Masterpiece Bakery who refused to bake a custom designed wedding cake for a gay couple.  He had explained his refusal on religious and free speech grounds. His victory wasn’t based on any rights but turned on the animus of the commissioners. As such it settled nothing. This got us to thinking about our 4/2/15 post We’re Confused about Indiana.   Re-reading this post  relating to  a persecuted pizza shop, we still think we were on the right track but realized we had missed the major point.  Simply, the vast majority of these types of cases should-be been immediately tossed out of court.  Hear us out.  In April, New York attorney Steven Molo turned down a request to represent President Trump.  A top-notch attorney was needed to replace the then lead attorney John Dowd and the well credentialed Molo fit the bill, but he said no. He didn’t have explain.  Even the President couldn’t demand his personal service  No was sufficient. Now imagine if President Trump had approached clothing designer Calvin Klein to design his inauguration wardrobe and Calvin said no.  Could the President sue to compel  Klein’s performance in his service?  Obviously not!  There never was a “meeting of the minds” so no contract.  Further the 13th amendment precludes involuntary servitude and even if the President really pushed, coercion doesn’t work under our law. Simply in either case, you can’t demand personal performance.  They could just say no and that’s the end of it.  Did Molo and Klein have to give any reason for their refusal?  No, unless they wanted to but it would be immaterial. Even the President isn’t legally owed an explanation. No is no and that’s the end of it.  But what if either or both said they refused on religious grounds? Say, they’re Catholics and Trump  is unrepentant Presbyterian. Could the President then take his case to the local civil right commission?  Of course not.  This would mean people could be stripped of their right to say no simply because they mentioned 1st amendment rights.  This would lead to the absurdity of losing a right simply by bringing up another constitutional right.  This would be turning the law on its head. Yet, this is exactly where we are. Now, the President has every right to go to Amazon and purchase any book on the law or anything else Molo wrote or go into Macy’s and purchase Calvin Klein branded clothes.  These are offered to all for sale and cash payment completes the contract.  This is general commerce and Molo and Klein can do nothing legally to prevent these sales.  However,  general commerce is different from personal unique services and products and we have always recognized the difference.  One apples and the other oranges.

There are excellent reasons for this distinction. It protects both parties. It protects people from unwarranted demands for their personal skills.  Also, it protects people from foolishly forcing the produce of people who have less than their best interests at heart.  Imagine a President Trump on inauguration day realizing he’s being mocked for an ill-fitting ugly suit.  Worse being perp-walked out of the white house after impeachment and realizing Nolo just might not have given his best advice and efforts.  Further, it prevents the inevitable litigation that would arise and that certainly is in the courts interest.

So how in the world did we get to this unfortunate place. By the courts not doing their job.  Those bringing cases demanding personal performance should-be compelled to tell the court why those sued should be stripped of their right to simply say no.  You couldn’t compel Picasso to paint your portrait, Bobby Flay cater your function or Frank Lloyd Wright to build you a hotel.  They simply could say no.  But what if Bobby Flay went on to say he wouldn’t work with you because you have really bad body odor?  It wouldn’t change anything. It’s still no.  But what if he asserted it was on religious or free speech grounds, basic constitutional rights?  Under many of our jurisdictions  this would allow the litigation to go forward or worse produce an adverse verdict against him for simply mentioning constitutional rights.  In effect these jurists are punishing people for  mentioning some 1st amendment rights when they would prevailed by not offering any reason. You can’t sue over body odor but can sue over religion?  This borders on insanity, yet we are told these well-educated jurists know what they’re doing. Well, we want them to explain how just bringing up religion and free speech actually takes away your rights?  Is this what the 1st amendment is all about?

Of course, many would say,  we can’t make great talents work for us just because we demand it, but we’re talking about garden variety food purveyors, photographers, florists, lawyers, and other creative or professional types.  So the older Picasso once successful has rights but the young struggling Picasso not so much?  Rachael Ray now has the right to say no but not when she when she cooked in more than 30 minutes.  Ansel Adams didn’t have the right to say no until he became famous?  Since when are only the successful allowed rights while others are denied the same rights in America?  You have no right to demand anyone’s creativity or personal talents in any area unless they agree no matter who they are. Further, by just allowing people in these circumstances to just say no it eliminates any need to broadcast  a hurtful or inflaming explanation.  It would be superfluous to loudly proclaim I won’t create a cake because it’s a gay wedding or because you have B.O.  Some things are best said quietly or not at all.  The courts should  strive to reduce controversy or ugliness rather than encouraging it.

How does this apply to the Masterpiece Bakery Case?  What if  when he was approached by the engaged couple about his designing their custom wedding cake and he simply said no.  No explanation. After all, none was required.  Could they take this refusal to the Colorado Civil Rights Commission for punishment?  On what grounds? You asked for a custom personal service and he said no as was his right.  Maybe the couple then found out the baker attended a traditional church not known for favoring to gay marriage?  Could the commission infer  animus to  gay marriage and therefore punish him for belonging to that particular church?  Wow! What was the 1st amendment about if you could be punished for just attending a church?  In this case Phillips not only refused but volunteered his reasons which were on religious and free speech grounds.  According to the Colorado Civil Rights Commission and the courts the mere mention of  1st amendment rights made him liable to prosecution.  Can’t we all agree this is simply ludicrous.  Good grief, James Madison must be turning over in his grave.

So what did the Supreme Court actually do?  Nothing much. Instead of deciding these cases where personal creativity and talents are demanded by the complainants on the simple basis the defendant has the inherent right to just say no, the court went in the most divisive direction possible.  The Baker made unique custom  cakes. Custom by definition requires a meeting of the minds.  Ask any builder how much more difficult it is to build a custom home vs. a tract or spec house.  Why?  Because the builder and buyer must agree on everything.  Anyone offering custom or personal services has to have the right to say no to people they don’t find agreeable no matter what the reason. Had the courts just allowed this commonsense principle to prevail they would’ve avoided the divisive rat hole they went down.  At a time our institutions are under unprecedented attack, the courts right up to the top turned their backs on the common law principle to decide cases on the simplest least harmful basis. They just needed to say you can’t demand a unique product or service. The baker had the right to say no. The reason was immaterial.  Instead, they have allowed a continuing  fight between other competing rights, in this case gay vs. religious and free speech.  The court fell into the trap set by warring tribes to stir up their adherents. Just look at which tribes are backing either side in the Masterpiece Case.. Had the Justices decided the case on long acknowledged commonsense principles they would’ve avoided contributing the nations widening divide. Instead they chose to decide cases affecting a minuscule amount of oranges in the sea of transactions overwhelmingly dominated by apples in a way allowing warring tribes to use the courts inflame the nation.

Worse, they created a right available only to “protected classes”. Let’s say Nasty Ned has three neighbors he hates and they for good reason return the sentiment.  His neighbors, left, right and rear are the custom baker, a prominent lawyer and well-known artist. To torment his neighbors he demands the baker bake him a custom cake, the lawyer represent him in a legal case and the artist paint his portrait.  They all say no.  Nasty Ned sues.  It would be a rare judge that would find any merit here and let the cases go forward. But now Nasty Ned reveals and his spouse are gay and claims he is being discriminated against by his neighbors.  On this basis he heads to the nearest civil rights commission. Does simply being gay confer greater rights than those available to others?  Can we command involuntary servitude where those not in a protected group can not? The idea behind national, state and local civil rights legislation is to level the playing field.  This actually gives some protected groups greater rights.  This flies in the face of equal protection. This allows the government to go down a Orwellian road of all People are equal, but some people are more equal than others. The principle of the government having  the ability to create  groups with special  rights over others ultimately threatens everyone.

How did the courts  let public accommodation laws allow some people to commandeer a person’s creativity and personal service by denying them the right to just say no?  We’ve always been able to distinguish between general commerce apples and uniquely created  products and services oranges so  there is little reason to believe this orange defense would bleed over into general commerce.  Just go to Amazon’s website, arguably America’s largest marketplace, pick any category and find  a product or purveyor among these apples that could suddenly claim to be an orange in order to discriminate against anyone for any reason.  We tried and couldn’t find any.  Unless you can, so much for the slippery slope argument that claims certain people would lose market access if we protected the rights of oranges. After all, if not Amazon where? Why then is the court suddenly blind to this distinction. Often times things become difficult if not impossible when you follow the wrong principles. Here the simplest and logical would’ve served us best. The courts should have forced these cases to be brought on the proper grounds and handled them accordingly.  Instead it fostered division and allowed the canyon to grow. The possibility tribalism has invaded our courts has to be considered. How else do you explain their viewing this as a clash between two group rights rather than the  individual’s right to their own creativity? At least this would explain their inane reasoning.

While we think the Supreme Court allowed  justice to continue down a wrong  unproductive and ultimately dangerous path, maybe there was some possible good  in the decision.  Not the idea religious objections should be heard without rancor by civil rights commissions. Being pleasant while making the wrong decision doesn’t do much for the rights of these unique personal service and products defendants. However, the idea of personal animus not being allowed gives some hope.  Not the animosity of the commissioners but of the complainants. Was Masterpiece a really case  about wanting a great cake for a gay wedding or using the law to punish someone for their religious beliefs? The commissioners should have asked themselves, would anyone attending  the wedding knowing the facts actually eat the cake?  Indeed, would they themselves eat the cake? (if you saw the movie “the Help” the reason why they wouldn’t would be evident) A truthful answer would  have given them their answer and they could act accordingly.  We don’t expect this to happen but we still hoped something worthwhile would come out of this otherwise abysmal decision.