The Supreme Court on Tuesday will hear arguments in what could be the consolidated cases that lead to the recognition of a right to same-sex marriage under the Fourteenth Amendment to the United States Constitution. I will be interviewed on the case on CNN around 9 am on Tuesday morning.
It was only two years ago that the Supreme Court struck down the denial of federal benefits to same-sex couples in United States v. Windsor. However, as in past cases, the Court struggled mightily to avoid recognizing a constitutional right to same-sex marriage.
It was only in 1986 in Bowers v Hardwick that Justice Lewis Powell told his clerk “I don’t believe I ever met a homosexual.” The clerk was Carter Cabell Chinnis, Jr., who was gay but Powell did not know it. In that disgraceful decision (which Powell added his vote as the fifth vote for the majority in upholding laws criminalizing homosexual relations), Chief Justice Warren Burger wrote “Condemnation of [homosexual] practices is firmly rooted in Judeao-Christian moral and ethical standards.”
Justice Anthony Kennedy may now be ready to cast the fifth vote to finally establish a constitutional right for same-sex marriage. The Court will hear two questions in Obergefell vs. Hodges (as well as three related cases from Kentucky, Michigan and Tennessee): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? and 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
Oral argument will last 90 minutes on the first question and 60 minutes on the second question.
A decision is expected in June.
DBQ
Public Accommodation Laws are about picking and choosing who to deny services to?
Annie
It’s never discrimination when my gawd says to discriminate in her name… So, how to make that law? That’s the angle. No Hijab, no service. Who needs to fear Sharia law when Christians are willing to carve the way
Annie
Does the Taylor know the wedding is at a nudist camp… Just a possibility pointing out that the tux may not be part of the ceremony…
DBQ
However, as many have pointed out the case of Loving v Virginia did find that it was unconstitutional to prohibit interracial marriages. So there is that precedent.
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First of all, since you’re against the Federalization of marriages, period, may I assume that you disagree with Loving V Virginia in the first place? Secondly, however, to refer to the case as you did, I can also assume that the decision is valuable enough to refer to? Lastly, as you point out, it discusses interracial marriages… Therefor I can also assume that if a black man seeks to marry a white man, they’re covered, just not two white men or two black men?
Is the tailor who makes the suit for the gay groom allowed to refuse to serve the gay man also, because it will be worn in the wedding ceremony?
Is the artisan who carves a beautiful bed that a gay couple buys also allowed to discriminate against the couple because of what they are going to do in that bed as a married couple? There is no message except for pretty scrolls and florets on the headboard. Same thing goes for a generic wedding cake.
A wedding cake without a written or photo or drawn message is a generic wedding cake. Doesn’t need to be a shelf cake.
True in some senses Mike. There is the implied contract of the baker that they will produce product and that people have the ability to buy the product. That is also a part of being a “public” establishment. “Here is a donut. I am charging .50 each. Take it or leave it.” There is not (usually negotiation)
A bakery shop open to the general public and selling the goods that the baker has decided to make. He/she might add additional items to their line up by popular demand but they are not compelled to do so. As a public establishment they must sell their product to all comers and at the same price for everyone without discrimination.
When you order a Wedding or other specialty cake, you actually sign a specific contract between the baker and the client. The client gets to specify what they would like and if the baker is able to supply the ingredients, has the skills……AND both are agreeable to the price, then they make a contract. If the baker doesn’t fulfill his end or the client decides not to pay the contract is still a contract.
You, as a contractor, have the right to refuse to be contracted. In the case of the T Shirt Company, they refused based on their First Amendment rights to not be compelled to make speech that they find objectionable or to which they disagree or to be forced to support something (Gay Pride Parade) that they do not wish to support.
Now you can debate on whether a work of art like a cake, photographs, or floral arrangements are speech because they may not have words on them. HOWEVER…..if you look at the case of the Piss Christ. That was deemed art and allowable under the freedom of expression or First Amendment, even though it was offensive to many. There were no written words, yet it and the burning of the American Flag are both protected “speech”
I think the same argument can be made for the cakes as a work of art that is an expression of speech. To force the cake maker to enter a contract and create something that expresses support of a belief that the maker finds offensive or in the case of the baker contrary to their religious beliefs, I believe will eventually be found unconstitutional based on the 1st Amendment.
DBQ
A good customized ice cream sundae is also a product that is purchased by special agreement and is a contractual event, instead of a routine business transaction. “Would you like sprinkles on that?”
@Mike A
You are correct that every COMPLETED transaction is a contract, but the problem here is that you have a failure of offer and acceptance, and no “meeting of the minds” —thus a contract is never actually formed.
Most wedding cakes are not pre-made and set on a shelf, ready for sale to whoever. If they were, Christian bakers would be on much shakier ground. Wedding cakes are made to order. This would tend to reinforce the concept that this is an “invitation to treat”, and not a contract which can be formed by unilateral acceptance.
Squeeky Fromm
Girl Reporter
DBQ:
Every commercial transaction is a contract. Distinctions for things such as wedding cakes will require an analysis that incorporates notions of creativity and is based on constitutional doctrine relating to “compelled” speech.
Mike Appleton’s article is interesting, so it’s most definitely not Constitutional to prohibit anyone from entering a contract?
Yes. Mike’s articles are informative.
It is definitely not Constitutional to force anyone to enter a contract either.
DBQ should point out which part of the Constitution legalizes heterosexual marriages, first. Shouldn’t she?
I will. No where does it specify the Constitutional right for marriage. I amof the opinion that the government should not be in the business of determining marriages.
However, as many have pointed out the case of Loving v Virginia did find that it was unconstitutional to prohibit interracial marriages. So there is that precedent.
So a generic wedding cake WITHOUT a message on it should be sold to gay couples, it could be seen this way too.
IF there were such a thing as a generic wedding cake, which there is not, then I would agree. Sell them a blank sheet cake and let the clients decorate it to their heart’s content.
HOWEVER…..a wedding cake is a product that is purchased by special agreement and is a contractual event, instead of a routine business transaction. Wedding cakes are designed and ordered specifically for that event and take many many hours and often days to create. Special order just like the T Shirts.
@DBQ
Good link to that HOO case! Thank you for linking it here!
Squeeky Fromm
Girl Reporter
That would help Max.
Mike Appleton’s article is interesting, so it’s most definitely not Constitutional to prohibit anyone from entering a contract? A marriage contract.
Annie
DBQ should point out which part of the Constitution legalizes heterosexual marriages, first. Shouldn’t she?
So a generic wedding cake WITHOUT a message on it should be sold to gay couples, it could be seen this way too. Those t shirts were printed T-shirts. However, I wonder if this will make it to the SC.
It might be wise to reflect upon the fact that the Constitution and the laws of this land are living things. They evolve with American society. Some may miss the tail and some may not. But, the tail evolves away along with prejudices and other once thought ‘truths’. We stand upright, unafraid, and accepting of all who mean us no harm.
This is an opportune time to reflect also on why it is necessary for others to believe as one does, when it is of no concern to one.
issac, I see you cannot answer the arguments, so have to resort to other reasons to promote gay marriage. I quite agree that the Constitution is very adaptable to modern times, but the provision for such change is done by the legislature, not the courts making new laws or using opinion polls. THAT is how a democratic society changes things and laws.
I have no problem with homosexuals doing their thing at all. The problem is that when they ask for gay marriage licenses THAT does affect me since it asks me to create a new legal form for them, and thus puts the family courts into the mix now. I know the family courts are so bored and not used much, so I suppose that the additional cases that will be generated will cost nothing. Right? I can care less what happens in anybody’s bedroom, but when they come out and demand something from the rest of us, THEN they ARE affecting us all.
Another interesting facet of this is going to occur later on various state levels when the very common provision in most Special Gay Snowflake marriage pre-marital agreements which permit and set the ground rules to “cheat” —- runs headlong into traditional jurisprudence, which holds that adultery is grounds for divorce. Particularly in thsoe states where “fault” plays into the distribution of marital assets. This article explains that a little bit, the prohibition of limitations of a state’s grounds for divorce, on page 24 of the article:
http://www.aaml.org/sites/default/files/MAT210_1.pdf
I am eagerly awaiting the gay argument, “but we have a civil right to be able to cheat on our spouses!” case when it goes to SCOTUS one day. Because, if states may not discriminate against gays, how can they discriminate against the traditional gay practice of sexual promiscuity??? Which, if you doubt this is the case, you can read about it here:
http://gawker.com/master-bedroom-extra-closet-the-truth-about-gay-marri-514348538
Squeeky Fromm
Girl Reporter
Exactly.
A First Amendment right to NOT be coerced into speech that they did not support by being forced to print T shirts with a message that offended their beliefs.
Same as the bakers or florists who routinely served their homosexual customers but didn’t want to be forced to support same sex marriage by creating works of art or being forced to enter into a contract to do so.
Nice to see that you picked up on that point too 🙂