What the NBA Can Teach Justice Kennedy

In the Masterpiece Cakeshop case, Justice Kennedy crafted an opinion that avoided the consideration of two bedrock constitutional principles: freedom of speech and the free practice of religion.  Instead, he went to the Fourteenth Amendment (referencing the First) and sought out the "equal protection of the laws" as the basis for his manifesto.  Some commentators suggest that he is unsure of how to apply the First Amendment in the public square, so he makes it up as he goes.  His decision in Obergefell is cited as support.

While this may be true, another theory seems equally valid.  Given the uproar over the 5-4 decision in Obergefell (redefining marriage) and the decisions legalizing Obamacare, it seems likely that Chief Justice Roberts looked for grounds that would allow a much larger majority on the Court.  The Colorado Civil Rights Commission supplied that rationale in spades.  As the Court describes, another customer (Jack) was denied bakery services because he asked for cakes with biblical verses and "God hates homosexuality" written on them.  Several bakeries refused because "the messages were offensive."  His complaints were summarily rejected by the commission.

But when the gay couple complained, "one commissioner suggested that Phillips [Masterpiece Bake Shop] can believe 'what he wants to believe,' but cannot act on his religious beliefs 'if he decides to do business in the state.'"  Others echoed this sentiment.  In short, Phillips's faith had to stop at the church door.  This is the core of why Jack's complaint was denied, since he asked for religious messages on cakes.  But the stated standard was "offensive content."  The commissioners did not express any hostility toward Jack.  They achieved an anti-Christian result in both cases, but as the Court noted, they had to change their methodology to penalize Phillips.  Roberts saw this unequal treatment as a way to get a large majority to agree with Phillips.  But that could happen only by dodging salient First Amendment issues.

It appears that Roberts was successful.  He even got Justices Kagan and Breyer, two reliably left-wing doctrinaires, to sign on to the opinion.  Elena Kagan wrote a separate concurrence in which she opined that, had the commission considered the case neutrally, the same-sex couple would have prevailed.  In other words, she also believes that religious practice is not protected outside of church walls.  This is troublesome.  Her dissenting liberal associates, Sotomayor and Ginsburg, are so doctrinaire that in their dissent they deny that the documented hostility of the commission to Phillips was of any judicial value.  In this, they demonstrate a hostility to the law.

Nowhere in the decision do we find consideration of the principle that the offense in this case was created by the actions of the same-sex couple.  Two facts demonstrate that they are clearly at fault.  First, in the local area, there were many bakers who had no compunction against making a cake for their ceremony.  To them, it would be just another cake.  So the couple had no difficulty finding a willing baker.  In fact, since the gay community is very small and interconnected, they knew who would be the preferred baker.

Second, since Phillips had a known record of declining to create wedding cakes for same-sex couples, he would not be their preferred baker.  In fact, they would avoid his shop in the normal course of events.  But they did not.  They sought out Phillips in order to deny him his right to exercise his faith in the public square.  That was their only purpose for coming to him.  They wanted him to either (1) give up his Christian faith and serve their sinful (to him) request or (2) be forced by the power of the state to give up his right to serve his God in public.  In either case, they wanted to force him into conformity with a pagan norm: "Support the LGBTQ... agenda or be destroyed!"  This is no overstatement.  Fortunately, the Court averted this outcome, but it completely missed the larger and more important point.

All rights stem from natural law and are freedoms of action, not guarantees of goods or services.  My right to be a Christian does not allow me to force you to convert the way some Catholics did in the Middle Ages or that Islam requires now.  The reverse is also true.  The couple has no right to compel agreement with its paganism.  And the fact that you want to say something with your wedding cake does not give you the right to force me to be your mouthpiece.

How does the NBA handle this question?  If I have the ball and am driving toward the basket, you can obstruct my progress in two ways.  Legal obstruction is done by taking up a proper defensive position in your path before you arrive.  At this point, you have two choices.  You can change your path to avoid me.  But if you do not change your path and run into me, you have committed a "charging" foul.  You initiated the injury.  And your team pays the penalty by loss of the ball.


A charging foul in a Spanish basketball game (source).

Suppose I have not taken up a proper defensive position when you run into me.  I have committed a "blocking" foul.  I have improperly impeded your progress.  My team pays the penalty.

Notice the key difference.  In both cases, an offensive player has run into a defensive player.  But the assignment of the foul depends on compliance with the rules.  The player not acting within the rules is deemed to have created the foul.  He caused the injury that the rules remedy.  Let's apply this to our bake shop.

Masterpiece Cakeshop is a business created to do business with the public.  But it is a business owned and operated by a Christian.  The First Amendment gives him the right to exercise his faith inside and outside the church walls.  He can participate in the public square on an equal basis with anyone else.

The same-sex couple had its own, pagan religion.  When the two walked into Phillips's shop and asked for a cake, they were within the rules of public interactions.  Phillips was also within those rules when he exercised his First Amendment right to practice his religion.  He refused to make a symbolic object that celebrates paganism.  But by complaining to the Colorado Civil Rights Commission, the two prospective customers took a non-injury to themselves and made it an injury to Phillips.  This is crucial.  Phillips did not injure the couple in any way.  They had many other options open to them.  Instead, they fouled Phillips.  In the NBA, the team that fouls pays the price.  It doesn't have the option to force the other team to accept the injury.

Justice Kennedy never addressed this simple issue.  There was no harm when Phillips declined to create the cake with a message contrary to his faith.  In essence, he was in a legal defensive position on the court.  The couple chose to run over him.  The two should have been called for the foul.  Instead, they made a complaint, trying to get Phillips called for a foul he didn't commit.  As Justice Thomas notes, Phillips did not refuse to do business with the couple.  He refused to create a specific message for them.  The proper issue in the case was not baking.  It was promoting a message.  The cake was the issue, not the potential customers.

In conversation with liberals, I've been confronted with the Rosa Parks case.  She sat in the front of the bus when the law required her to sit in the back.  Supposedly, the fact that Rosa Parks was part of an action that sought a test case nullifies the argument I've just presented.  But in Rosa Parks's situation, she was subject to such discrimination every day of her life.  She did not have an opportunity to seek out another bus to sit on where she could sit in the front.  There were no such buses.  Thus, she had a real, unavoidable injury to be resolved.  The same-sex couple had no such injury.  The two men had every option to go elsewhere to get a cake, and, in fact, they did.  Thus, the only injury was the one they created.  Instead of changing course on the court, they ran over the defender.  The referee should have blown the whistle and called a charging foul on the couple.

Chief Justice Roberts declared during his confirmation hearings that the job of a judge is to "call balls and strikes, not to bat or pitch."  In other words, he saw the validity of sports metaphors in explaining the job of the Court.  It's obvious that Justice Kennedy should pay some attention to this.  No plaintiff who raises a complaint out of a situation he has intentionally created when a viable alternative exists ought to have standing to sue.  The two plaintiffs should have been summarily thrown out of court because their alleged harm was solely their responsibility.  Had the couple not chosen to make a baseless claim against Phillips, we would not know about Masterpiece Cakeshop.  It would have remained one of those millions of local businesses who serve a satisfied local clientele.

Justice Kennedy should have realized that the proper legal approach was to blow the whistle against the party that initiated the foul.  Instead, he found himself musing about gay persons being subject to "indignities when they seek goods and services in an open market."  One wonders if he would offer legal remedies to millions of others who "suffer indignities" at the hands of rude salespeople in the normal course of their daily lives.

Justice Kennedy did note that the First Amendment specifically protects offensive speech.  It is exactly that offensive speech that all of us encounter daily in the form or rudeness.  But most of us don't clog the courts with frivolous complaints over trivial indignities.  And no court ought to give the time of day to a plaintiff who deliberately initiated his supposed injury.  It's time to blow the whistle and call the charging foul.

In the Masterpiece Cakeshop case, Justice Kennedy crafted an opinion that avoided the consideration of two bedrock constitutional principles: freedom of speech and the free practice of religion.  Instead, he went to the Fourteenth Amendment (referencing the First) and sought out the "equal protection of the laws" as the basis for his manifesto.  Some commentators suggest that he is unsure of how to apply the First Amendment in the public square, so he makes it up as he goes.  His decision in Obergefell is cited as support.

While this may be true, another theory seems equally valid.  Given the uproar over the 5-4 decision in Obergefell (redefining marriage) and the decisions legalizing Obamacare, it seems likely that Chief Justice Roberts looked for grounds that would allow a much larger majority on the Court.  The Colorado Civil Rights Commission supplied that rationale in spades.  As the Court describes, another customer (Jack) was denied bakery services because he asked for cakes with biblical verses and "God hates homosexuality" written on them.  Several bakeries refused because "the messages were offensive."  His complaints were summarily rejected by the commission.

But when the gay couple complained, "one commissioner suggested that Phillips [Masterpiece Bake Shop] can believe 'what he wants to believe,' but cannot act on his religious beliefs 'if he decides to do business in the state.'"  Others echoed this sentiment.  In short, Phillips's faith had to stop at the church door.  This is the core of why Jack's complaint was denied, since he asked for religious messages on cakes.  But the stated standard was "offensive content."  The commissioners did not express any hostility toward Jack.  They achieved an anti-Christian result in both cases, but as the Court noted, they had to change their methodology to penalize Phillips.  Roberts saw this unequal treatment as a way to get a large majority to agree with Phillips.  But that could happen only by dodging salient First Amendment issues.

It appears that Roberts was successful.  He even got Justices Kagan and Breyer, two reliably left-wing doctrinaires, to sign on to the opinion.  Elena Kagan wrote a separate concurrence in which she opined that, had the commission considered the case neutrally, the same-sex couple would have prevailed.  In other words, she also believes that religious practice is not protected outside of church walls.  This is troublesome.  Her dissenting liberal associates, Sotomayor and Ginsburg, are so doctrinaire that in their dissent they deny that the documented hostility of the commission to Phillips was of any judicial value.  In this, they demonstrate a hostility to the law.

Nowhere in the decision do we find consideration of the principle that the offense in this case was created by the actions of the same-sex couple.  Two facts demonstrate that they are clearly at fault.  First, in the local area, there were many bakers who had no compunction against making a cake for their ceremony.  To them, it would be just another cake.  So the couple had no difficulty finding a willing baker.  In fact, since the gay community is very small and interconnected, they knew who would be the preferred baker.

Second, since Phillips had a known record of declining to create wedding cakes for same-sex couples, he would not be their preferred baker.  In fact, they would avoid his shop in the normal course of events.  But they did not.  They sought out Phillips in order to deny him his right to exercise his faith in the public square.  That was their only purpose for coming to him.  They wanted him to either (1) give up his Christian faith and serve their sinful (to him) request or (2) be forced by the power of the state to give up his right to serve his God in public.  In either case, they wanted to force him into conformity with a pagan norm: "Support the LGBTQ... agenda or be destroyed!"  This is no overstatement.  Fortunately, the Court averted this outcome, but it completely missed the larger and more important point.

All rights stem from natural law and are freedoms of action, not guarantees of goods or services.  My right to be a Christian does not allow me to force you to convert the way some Catholics did in the Middle Ages or that Islam requires now.  The reverse is also true.  The couple has no right to compel agreement with its paganism.  And the fact that you want to say something with your wedding cake does not give you the right to force me to be your mouthpiece.

How does the NBA handle this question?  If I have the ball and am driving toward the basket, you can obstruct my progress in two ways.  Legal obstruction is done by taking up a proper defensive position in your path before you arrive.  At this point, you have two choices.  You can change your path to avoid me.  But if you do not change your path and run into me, you have committed a "charging" foul.  You initiated the injury.  And your team pays the penalty by loss of the ball.


A charging foul in a Spanish basketball game (source).

Suppose I have not taken up a proper defensive position when you run into me.  I have committed a "blocking" foul.  I have improperly impeded your progress.  My team pays the penalty.

Notice the key difference.  In both cases, an offensive player has run into a defensive player.  But the assignment of the foul depends on compliance with the rules.  The player not acting within the rules is deemed to have created the foul.  He caused the injury that the rules remedy.  Let's apply this to our bake shop.

Masterpiece Cakeshop is a business created to do business with the public.  But it is a business owned and operated by a Christian.  The First Amendment gives him the right to exercise his faith inside and outside the church walls.  He can participate in the public square on an equal basis with anyone else.

The same-sex couple had its own, pagan religion.  When the two walked into Phillips's shop and asked for a cake, they were within the rules of public interactions.  Phillips was also within those rules when he exercised his First Amendment right to practice his religion.  He refused to make a symbolic object that celebrates paganism.  But by complaining to the Colorado Civil Rights Commission, the two prospective customers took a non-injury to themselves and made it an injury to Phillips.  This is crucial.  Phillips did not injure the couple in any way.  They had many other options open to them.  Instead, they fouled Phillips.  In the NBA, the team that fouls pays the price.  It doesn't have the option to force the other team to accept the injury.

Justice Kennedy never addressed this simple issue.  There was no harm when Phillips declined to create the cake with a message contrary to his faith.  In essence, he was in a legal defensive position on the court.  The couple chose to run over him.  The two should have been called for the foul.  Instead, they made a complaint, trying to get Phillips called for a foul he didn't commit.  As Justice Thomas notes, Phillips did not refuse to do business with the couple.  He refused to create a specific message for them.  The proper issue in the case was not baking.  It was promoting a message.  The cake was the issue, not the potential customers.

In conversation with liberals, I've been confronted with the Rosa Parks case.  She sat in the front of the bus when the law required her to sit in the back.  Supposedly, the fact that Rosa Parks was part of an action that sought a test case nullifies the argument I've just presented.  But in Rosa Parks's situation, she was subject to such discrimination every day of her life.  She did not have an opportunity to seek out another bus to sit on where she could sit in the front.  There were no such buses.  Thus, she had a real, unavoidable injury to be resolved.  The same-sex couple had no such injury.  The two men had every option to go elsewhere to get a cake, and, in fact, they did.  Thus, the only injury was the one they created.  Instead of changing course on the court, they ran over the defender.  The referee should have blown the whistle and called a charging foul on the couple.

Chief Justice Roberts declared during his confirmation hearings that the job of a judge is to "call balls and strikes, not to bat or pitch."  In other words, he saw the validity of sports metaphors in explaining the job of the Court.  It's obvious that Justice Kennedy should pay some attention to this.  No plaintiff who raises a complaint out of a situation he has intentionally created when a viable alternative exists ought to have standing to sue.  The two plaintiffs should have been summarily thrown out of court because their alleged harm was solely their responsibility.  Had the couple not chosen to make a baseless claim against Phillips, we would not know about Masterpiece Cakeshop.  It would have remained one of those millions of local businesses who serve a satisfied local clientele.

Justice Kennedy should have realized that the proper legal approach was to blow the whistle against the party that initiated the foul.  Instead, he found himself musing about gay persons being subject to "indignities when they seek goods and services in an open market."  One wonders if he would offer legal remedies to millions of others who "suffer indignities" at the hands of rude salespeople in the normal course of their daily lives.

Justice Kennedy did note that the First Amendment specifically protects offensive speech.  It is exactly that offensive speech that all of us encounter daily in the form or rudeness.  But most of us don't clog the courts with frivolous complaints over trivial indignities.  And no court ought to give the time of day to a plaintiff who deliberately initiated his supposed injury.  It's time to blow the whistle and call the charging foul.