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A Missed Opportunity: Masterpiece Cakeshop v. Colorado Civil Rights Commission

Twenty-eight states and the federal government currently permit business owners to discriminate on the basis of sexual orientation. That one rarely hears of them doing so is a testimony to the power of the free market. Businesses have profound incentives to serve customers, not turn them away.

Over the past decade, approximately twenty cases have arisen in which creative professionals have declined to participate in same-sex wedding ceremonies. These bakers, florists, and photographers do not dispute the validity of their states’ anti-discrimination laws, but have instead asked for their religious convictions to be accommodated. America has a long history of accommodating religious citizens, and in virtually all cases there is no reason to believe that doing so has hindered the common good.

The business owners in these cases all deny that they discriminate on the basis of sexual orientation per se. They all regularly served members of the LGBTQ community; their contention is simply that they should not be forced to participate in same-sex wedding ceremonies against their religious beliefs. They have also argued that they may not be compelled to communicate messages with which they disagree.

The United States Supreme Court had a wonderful opportunity to resolve these issues in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Alas, the justices refused to do so.

This particular case involved Jack Phillips, a baker who declined to bake a cake to celebrate a same sex wedding in 2012. Same sex marriages were not legally recognized in the State at the time, but the couple planned to get married in Massachusetts and celebrate their union in Colorado. They filed a complaint with the Colorado Civil Rights Commission (CCRC), which found probable cause of a violation and referred the case to an administrative law judge (ALJ). The ALJ ruled against Phillips, the Commission (which had referred the case to the judge—welcome to the bizarre world of administrative law!) upheld the ruling, as did the Colorado Court of Appeals.

(I attended the administrative law hearing for a virtually identical case in Oregon. According to Herb Grey, the Oregon bakers’ attorney, in this case “the original complaint went to the Bureau of Labor and Industry (BOLI), it was investigated by BOLI, ‘formal charges’ were brought by BOLI ‘prosecutors,’ the pretrial rulings and hearing were conducted by an ALJ employed by BOLI who did not have a law degree, BOLI ‘prosecutors’ presented BOLI’s case to the BOLI ALJ, and the ALJ’s findings and conclusions were then incorporated in a final order by the BOLI Commissioner, who had earlier expressed his opinion about the case in media and social media.”[1] Franz Kafka would be proud!)

In the Masterpiece case, seven justices agreed that the CCRC acted with such obvious animus against Phillip’s religious convictions that it violated the First Amendment’s Free Exercise Clause. In the majority opinion, Justice Kennedy noted that one Commissioner described Phillips’ “faith as ‘one of the most despicable pieces of rhetoric that people can use’” and explained that it was constitutionally problematic to “disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.” Kennedy also noted that at the time of Phillips’ hearing, other Commissioners made similar comments and that no one on the CCRC seemed to understand that bias against religious faith was inappropriate.

In contrast to the Phillips case, the CCRC found nothing amiss when three other bakeries declined to create cakes “with messages disapproving same-sex marriage on religious grounds.”

This sort of anti-religious bias, it is worth noting, is not just a state problem. In its 2016 report “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties,” the United States Civil Rights Commission displayed similar animus towards disfavored religious convictions. For example, Martin R. Castro, the Commission’s Chair, noted in his personal statement that: “The phrases ‘religious liberty’ and ‘religious freedom’ will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance.” A majority of the Commissioners recommended the repealing or curtailing laws passed by bipartisan majorities that have offered significant protection to persons of faith.

In Employment Division v. Smith (1990), the Court held that the Free Exercise clause requires merely that laws be neutral with respect to religion. If they inadvertently keep religious citizens from acting according to their convictions, legislatures may, but do not have to, accommodate them. But if a law, or in this case an administrative agency, discriminates against religion, the State must show that it has a compelling reason to do so. As Justice Gorsuch put it in his concurring opinion, the Commission’s “judgmental dismissal of a sincerely held religious belief . . . cannot begin to satisfy strict scrutiny.”

It is hard to image a law targeting a religious practice that would survive such scrutiny. The only statute I’m aware of that might survive this level of judicial scrutiny is Kentucky’s law against handling “any kind of reptile in connection with any religious service or gathering.” The statute is aimed at prohibiting the rare religious practice (primarily confined to Appalachia) of handling venomous snakes in church .

There is little question that Phillips properly won on these grounds, as evidenced by the fact that Court’s four conservatives (Roberts, Thomas, Alito, and Gorsuch) were joined by Justices Breyer, Kagan, and Kennedy. Only Justices Ginsburg and Sotomayor dissented.

It is usually prudent for the Supreme Court to decide cases on the narrowest possible grounds, but given the virtually identical cases that are currently being litigated a broader ruling would have been helpful. Advocates for religious liberty would have liked to have seen the Court overturn Employment Division v. Smith and return to its early requirement that laws impinging upon religious liberty must be subjected to strict scrutiny. Any fair-minded application of this test would result in a victory for Phillips and similarly situated business owners.

Alternatively, and more realistically, the Court should have ruled that States cannot compel creative professionals to communicate ideas with which they disagree. Justices Thomas and Gorsuch, in their concurring opinion, made it clear that they thought the case should be decided on these grounds.

I suspect few people reading this essay believe that men and women should be discriminated against because of their sexual orientation. It is, nevertheless, reasonable to question whether governments should be in the business of punishing religious objectors. The abusive actions of Kafkaesque administrative agencies like BOLI and the CCRC suggest that the free market provides a better remedy. One rarely hears of these cases arising in the 28 states that do not have laws banning discrimination on the basis of sexual orientation, and even in these states businesses that merely state that they would not participate in a same-sex ceremony have been forced to close their doors, due at least in part to negative publicity.[2] Acceptance of LGBTQ citizens is at an all-time high (and is growing every day), and virtually all businesses want to attract, not repel, customers.

If states are going to remain in the business of policing these matters, they should remove them from the jurisdiction of bureaucratic administrative agencies and utilize real prosecutors and courts instead. As well, they should craft narrow accommodations to their civil rights laws to make it clear that creative professionals cannot be compelled to communicate messages to which they object. Such accommodations would burden few citizens, and it would protect the ability of artists to run their businesses according to their consciences.

Masterpiece Cakeshop is but a temporary victory for Jack Phillips. He is now free to run his business according to his religious convictions—until another couple files a complaint against him. Given this recent opinion, it is not clear that he would prevail once more, especially since one would expect the CCRC commissioners to be far more careful in their next review to hide their anti-religious bias. If individual liberty is to prevail, the Court cannot continue to rule on technicalities. It must address the more substantive issues at stake.

[1] Herb Grey to Mark David Hall, email, June 4, 2018.

[2] Of course, some instances of discrimination may not come to light precisely because they are not illegal. But one suspects that the media and activist groups would publicize widely such cases.

Reader Discussion

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on June 06, 2018 at 09:01:23 am

No one, most especially Justice Kennedy, could with a straight face claim that they did not anticipate that this confrontation would come, and it will undoubtedly, come around again until SCOTUS is forced to rule in definitive terms.

But, too, neither should anyone ever have anticipated that Kennedy would ever go out with bang, and not a whimper.

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Paul Binotto
on June 06, 2018 at 09:32:45 am

I agree. https://amgreatness.com/2018/06/06/having-your-cake-and-eating-it-too/

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Mark Pulliam
on June 06, 2018 at 13:13:10 pm

There is a large and discrete class of problems that cannot be effectively solved directly. This is so because the direct "solutions" are often accompanied by unintended consequences. One such example is curing inflation by the direct approach of price controls. This fix leads to product shortages and black markets. The problem can only be solved indirectly. If an airplane begins to plunge to earth because the wings have stalled, the pilot cannot remedy the situation by the direct approach of trying to initiate a climb by applying power and pulling back on the stick. He must do so indirectly by lowering the nose and breaking the stall. Again, the problem can only effectively be solved indirectly.

This concept appears to be largely lost on the activist population, with its preferences for mandates and bans, and its indulgence in kangaroo tribunals to root out wrong-think. Colleges and Universities that try to directly solve the problem of sexual impropriety by empaneling biased and inept boards to adjudicate rape claims, with woefully inadequate due process protections and a paucity of any argument for why such adjudications are a good idea in the first place, are accompanied by the unintended consequences of vague and sometimes fabricated claims, unjust discipline and the resultant civil rights lawsuits brought by accused against the schools. In the process, college and universities stoop to parody, undermine the seriousness of legitimate claims of sexual assault, pseudo-legitimize vengeful and capricious allegations and instill an atmosphere of confusion and suspicion.

Civil Rights Commission are also such ill-conceived attempts to directly solve a problem that can only be solved or mitigated, indirectly. These commissions tend to consist of appointed individuals, often "activists" with ideological axes to grind, and who are appointed as a reward for political support. They aften have a mistaken notion that society can be made to heel to their preferences by them seeking out examples to destroy with flawed procedures and stupid penalties. The complainants in the Masterpiece Cakeshop and their cheerleaders on the Colorado Civil Rights Commission, as well as the junior varsity administrative law judge are likely oblivious to the unintended consequences of their stunt. People decide for themselves the difference between bullying and legitimate grievance. They decide for themselves what is a civil rights issue and what is a petty dispute that merely pretends to invoke a universal injustice.

The infirmity consists precisely in the power of bureaucratic tribunals to play-act courtroom drama, with goal being not fairness, fact-finding and justice but "sending messages."

The Supreme Court indicated that some members of the Colorado Civil Rights Commission were hateful bigots. This is the judgment that people may notice and which will have long term consequences, unintended and unnoticed by the obsessive ideological zealots marching grimly to their imagined Nirvana.

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z9z99
on June 06, 2018 at 13:35:17 pm

“Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth...”

Our Constitution serves to secure and protect Religious Liberty; it does not serve to secure and protect the equality of sexual acts and sexual relationships. Human persons are not objects of sexual desire/inclination/orientation, but beloved sons and daughters.

Our Constitution does not serve to secure and protect the equality of sexual acts and sexual relationships because not all sexual acts and sexual relationships respect the inherent Dignity of the human person as a beloved son or daughter.

If it were true that “our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth“, then our society would not be condoning the engaging in or affirmation of sexual acts that demean the inherent dignity of all persons. The desire to engage in demeaning sexual acts of any nature, does not change the nature of the act. No one should be condoning and celebrating demeaning sexual acts of any nature, including between a man and woman, united in marriage as husband and wife, for to do so demonstrates a lack of respect for the dignity and worth of all our beloved.

To state that it is necessary that “sexual orientation” become a protected class in order that those men and women who have developed a same-sex sexual inclination night be protected, is, in essence, to discriminate against their inherent Dignity and worth by condoning and celebrating sexual acts that are demeaning.

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Nancy
on June 06, 2018 at 15:43:08 pm

Yours is a useful insight into the true nature of the process by which social harmony is achieved, a process which leads not just to reconciliation but to the development, ultimately, of mutual respect based on human dignity.

The gay community has rejected that insight, choosing instead for personal gain to distort the science of biology and psychology, to exploit Leftist legislatures and bureaucrats, to deploy the media in order to bully and browbeat their religious and political opponents and to manipulate the courts in pursuit of special legal privilege. Having chosen the bully's path the gay community will ultimately pay the steep social price of greatly diminished community respect.

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Pukka Luftmensch
on June 06, 2018 at 16:38:53 pm

I disfavor government discrimination on the basis of religion. I’d like to see more accommodation for minority viewpoints (although, to grant accommodation solely to viewpoints labeled “religious” is, itself, a form of discrimination on the basis of religion). The mechanism I favor for granting accommodation is the Market Power Affirmative Defense. According to some accounts, Phillips actually offered his customers a referral to another baker who would presumably be happy to serve them; that is, he had already overcome the biggest hurdle in meeting the affirmative defense’s requirements.

Despite the many editorials on the subject, Masterpiece Cakeshop presented a variety of issues that involve non-obvious trade-offs. First, is discrimination on the basis of sexual orientation a form of discrimination based on sex? Would Phillips object when Mary and Pat ask him to make a wedding cake for them? If Phillips’s answer depends upon Pat’s sex, then this looks a lot like sex discrimination.

Second, how credible was Phillips’s religious objections? I don’t know if the trial record included a copy of the forms that people must submit to Phillips to order a cake, and the degree of disclosure required. After all, if Phillips regards each cake as a personal statement about each event, I would expect that he’d need to acquire rather detailed disclosure from each customer. If Phillips does not require such disclosure, that would call into question the sincerity of his claim.

A simple example: Has Phillips created cakes for a wedding of Jews—you know, people who deny the divinity of Jesus? If Phillips has no problem endorsing their outlook, that puts the nature of his objections in a new light. The objections may be religious, but not specifically Christian.

Third, did the couple ask Phillips to perform any especially “expressive” act? According to the couple, Phillips refused to sell them a wedding cake before any discussion of details had occurred. Thus, the question of whether Phillips was being asked to create something especially “expressive” was a factual one—and I have not heard anyone allege that the trier of fact was motivated by religious hostility.

Moreover, where religion is concerned, why should the law privilege “expressive” conduct over other conduct? Is this just a form of elitism? If a hotel managers doesn’t want to serve black people, and he professes membership in the Christian Identity Movement a/k/a the KKK—or even if he simply claims that serving blacks violates his own, idiosyncratic religious views—why should he not receive the same legal protections? Should his autonomy be held less sacred than other people’s, just because he doesn’t enjoy a fancy job?

But this leads to a sub-topic: Does the significance of the act depend upon objective considerations, or on subjective ones? Perhaps the relevant standard is whether PHILLIPS regards his services as expressive, regardless of whether anyone else would.

But if we go down that road, then we’ve pretty much eliminated civil rights laws. Any boss or worker can claim to regard his services as religious or expressive, regardless of whether anyone else would hold that view. And any act of discrimination could be justified on the purely subjective basis of a person’s personal religion.

I embrace Employment Division v. Smith: Civil rights laws are neutral with respect to religion, and thus should apply to all people equally—barring some affirmative defense.

And honestly, does anyone really think that the outcome of this case turned on religious animus? If some other baker refused to serve a gay couple without citing religion, but just because “gay people are icky,” do you really think the CCRC would have ruled differently? No. I find nothing suspicious about the idea that a civil rights commission might rule to uphold the civil rights of gay people. Nothing about the CCRC’s ruling strikes me as in any way out of keeping with the current state of the law as I understand it. And, indeed, the SCOTUS majority did not attack the decision’s substance. I might (and do) prefer that the law would be different, but that’s another matter.

The outcome I would be least enthusiastic to see is the outcome that most people think the Court vindicated: CONVENTIONAL forms of discrimination should be upheld, and UNCONVENTIONAL/STIGMATIZED forms of discrimination should be punished. Now, courts inevitably engage in this behavior to some extent, finding clever ways to defend arbitrary aspects of the status quo. But at its base, this practice is just government discrimination on the basis of the religious views of the justices.

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nobody.really
on June 06, 2018 at 16:50:19 pm

Justice Kennedy … explained that it was constitutionally problematic to “disparage his religion … by describing it as despicable….”
* *
[I]f a law, or in this case an administrative agency, discriminates against religion, the State must show that it has a compelling reason to do so. As Justice Gorsuch put it in his concurring opinion, the Commission’s “judgmental dismissal of a sincerely held religious belief . . . cannot begin to satisfy strict scrutiny.”

It is hard to image a law targeting a religious practice that would survive such scrutiny.

A minority of the members of the California Civil Rights Commission allegedly expressed animus about Phillips’ religious views. No one alleged ANY animus on the part of the ALJ who make the relevant factual findings. Nor on the part of the majority of the Commission. Nor on the part of any court that upheld the finding. Yet this mere scintilla of animus was sufficient to taint the ultimate decision, justifying reversal, regardless of the other merits of the case.

Now let’s compare the statements of this minority view of the CCRC with the statements of our president regarding a Muslim ban. From all the people who are crowing about Masterpiece Cake Shop, I look forward to reading passionate pleas about how any expression of animus must justify rejecting the government’s decision regardless of the other merits of the case, when the court rules in Trump v. Hawaii:

December 7, 2015 press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on. According to Pew Research, among others, there is great hatred towards Americans by large segments of the Muslim population…. Mr. Trump stated, ‘Without looking at the various polling data, it is obvious to anybody the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life. If I win the election for President, we are going to Make America Great Again.’”

December 8, 2015, on MSNBC:
>Geist: Donald, a customs agent would then ask a person their religion?
>Trump: That would be probably—they would say, “Are you Muslim?”
>Geist: And if they said, “Yes,” they would not be allowed in the country?
>Trump: That’s correct.

December 12, 2015, on Fox News: “We can’t allow people to come into this country that have horrible thoughts in their mind.”

March 9, 2016, on CNN: “I think Islam hates us. There is something – there is something there that is a tremendous hatred there. There’s a tremendous hatred. We have to get to the bottom of it. There’s an unbelievable hatred of us…. we can’t allow people coming into this country who have this hatred of the United States and of people who are not Muslim.

May 11, 2016, on Fox News: “I’m looking at it very strongly with Rudy Giuliani heading it. I’ve spoken to him a little while ago. We’re going to put together a group of five or six people. Very, very highly thought of people, and I think Rudy will head it up, and we’ll look at the Muslim ban or the ‘temporary ban’ as we call it.…”

January 29, 2017, on Fox News:
>Jeanine Pirro: I want to ask you about this ban and the protests. Does the ban have anything to do with religion…?
>Rudy Giuliani: I will tell you the whole history of it. When he first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”

June 15, 2016 speech: “[W]e have to stop people from pouring into this country until we find out what the hell is going on…. [I]t’s a temporary ban, in particular for certain people coming from certain horrible—where you have tremendous terrorism in the world. You know what those places are.”

June 27, 2016, in an NBC phone interview: Trump said his Muslim ban would apply “in particular [to] the terrorist states.”

July 17, 2016, on CBS:
>Lesley Stahl: In December, [Mike Pence tweeted], “Calls to ban Muslims from entering the U.S. are offensive and unconstitutional.
>Trump: So you call it territories. OK? We’re gonna do territories….
* * *
>Stahl: So you’re changing your position?
>Trump: No. Call it whatever you want. We’ll call it territories, OK?
>Stahl: So not Muslims?
>Trump: You know, the Constitution, there’s nothing like it. But it doesn’t necessarily give us the right to commit suicide, as a country, OK? And I’ll tell you this. Call it whatever you want….

July 24, 2016, on NBC:
>Chuck Todd: The Muslim ban. I think you’ve pulled back from it….
Trump: I don’t think it’s a rollback….
* * *
>Todd: Should it be interpreted as that?
>Trump: I don’t think so. I actually don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territories. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim. But just remember this: Our Constitution is great. But it doesn’t necessarily give us the right to commit suicide, okay? Now, we have a religious, you know, everybody wants to be protected. And that’s great. And that’s the wonderful part of our Constitution. I view it differently. Why are we committing suicide? Why are we doing that? But you know what? I live with our Constitution. I love our Constitution. I cherish our Constitution. We’re making it territorial.

July 25, 2016, on Fox News:
>Hannity: What is your position? Because you were trying to explain yesterday [on NBC] that your position has not changed….
>Trump: No. I think my position’s gotten bigger now. I’m talking about territories now. People don’t want me to say Muslim. I guess I prefer not saying it, frankly, myself. So we’re talking about territories.

October 9, 2016, in a debate:
>Moderator: Your running mate said this week that the Muslim ban is no longer your position, and if it is, was it a mistake to have a religious test?
>Trump: …The Muslim ban is something that in some form has morphed into extreme vetting for certain areas of the world.
* * *
>Moderator: Why did it morph into that? Answer the question. Would you please explain whether the Muslim ban still stands?
>Trump: It is called extreme vetting.

December 21, 2016, in an interview:
>Reporter: Have you had cause to rethink or reevaluate your plans to create a Muslim register or ban Muslim immigration to the United States?
>Trump: You know my plans all along….

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nobody.really
on June 06, 2018 at 17:17:18 pm

Just one more part of the Constitution that Progressives would prefer to re-write or un-write, or should I say, "re-right", or "un-right" in order to right a wrong against a right that doesn't exist, huh, Nobody?

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Paul Binotto
on June 06, 2018 at 17:28:18 pm

I am guessing you meant to write, "Colorado" not "California", easy enough mistake, I know the two states are becoming rather inter-changeable....Only you would have these quotes on the tip of typing fingers...still you're sounding a little unhinged today, Nobody, but I must admit, you do make some bold statements ;-)

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Paul Binotto
on June 06, 2018 at 17:31:57 pm

Does the significance of the act depend upon objective considerations, or on subjective ones? Perhaps the relevant standard is whether PHILLIPS regards his services as expressive, regardless of whether anyone else would.

I recall the Spongebob episode As Seen on TV. After appearing in a TV ad for his restaurant, frycook Spongebob comes to regard himself as a performance artists. As the customers at the restaurant grow irate with his increasingly weird behavior, Spongebob tries every more desperate stunts to please them—eventually stumbling upon the insight that they react positively to a routine that involves preparing food. So Spongebob resumes his prior activities—but now understood as a form of performance art.

Query: Should Spongebob’s behavior be entitled to First Amendment protections, based on the theory that HE regards it as expressive conduct—even if nobody else does?

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nobody.really
on June 06, 2018 at 17:32:58 pm
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nobody.really
on June 06, 2018 at 17:37:28 pm

Right. Or un-right. Not sure what specifically you're discussing here.

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nobody.really
on June 06, 2018 at 17:40:49 pm

It all depends on whether or not his performance art produces expressive conduct in his patrons once they eaten...

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Paul Binotto
on June 06, 2018 at 17:48:43 pm

"Not sure what specifically you’re discussing here." - And the prize goes to Paul for creating the same amount of confusion as Nobody and for doing in it ten fewer paragraphs...just ribbing, nobody, I rarely agree with your position, but your position is always well articulated.

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Paul Binotto
on June 06, 2018 at 17:57:59 pm

"Nobody's" modus operandi reminds me of a high school classmate who was forever trying to show his smarts by taking a straightforward question and converting it into multiple additional questions, most of which were immaterial. The tactic wasn't mere hairsplitting; rather it was simply manufacturing multiple extraneous questions whenever the issue involved one or a few basic questions.

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Pukka Luftmensch
on June 06, 2018 at 18:06:10 pm

Existing in relationship as husband and wife, is not a form of sex discrimination as a husband is a male, and a wife, is a female, and if children are involved, a father is a male, and a mother is a female.

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Nancy
on June 06, 2018 at 18:40:17 pm

I think what you may perceive as a desire to show his/her "smarts" is actually that nobody is a complex thinker, one in which he/she must necessarily arrive at and demonstrate a position by tackling it from every angle, simultaneously.

Unfortunately, as you observe, this approach often obfuscates the original question.

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Paul Binotto
on June 06, 2018 at 19:15:26 pm

Offering a referral so that someone else will be directly involved with condoning and affirming acts that demean the dignity and worth of a beloved son or daughter does not release someone of their obligation to desire that all our beloved sons and daughters are treated with Dignity and respect in private as well as in public, and is a form of proximate, formal, cooperation.

It is not forThe Court to decide the credibility of Mr. Phillip's Religious objections.

In regards to “Animus and Adjudicatory Bodies”, one could make the argument that the 7-2 vote is reflective of the degree to which the Supreme Court Justices believe The Word of God Has overstepped His reach when reflecting The Will Of God The Father, in regards to The Sacrament of Marriage and thus, the degree to which The Supreme Court Judges affirm that God, The Most Holy And Undivided Blessed Trinity, (Treaty of Paris), The Author Of Love, of Life, and of Marriage, Is The Author and thus Endower of our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness.

Five Supreme Court Justices appear to have no animus towards The Will of God in regard to Marriage and voted in the affirmative, two appear lukewarm with some degree of animus towards The Will of God in regards to Marriage, and two appear to have enough animus towards The Will of God, that they deny The Author and Endower of our unalienable Right to Life, to Liberty, and The Pursuit of Happiness, rendering onto Caesar, what belongs to God.

"When the freedom to be creative becomes the freedom to create oneself, then necessarily the Maker himself is denied and ultimately man too is stripped of his dignity as a creature of God, as the image of God at the core of his being. The defence of the family is about man himself. And it becomes clear that when God is denied, human dignity also disappears. Whoever defends God is defending man."
Pope Benedict, Christmas Address, 2012

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Nancy
on June 06, 2018 at 19:45:49 pm

Yep, that is nobody. He must have been the class "hand-raiser" / regurgitator.

BTW: Nobody gives a rip if nobody.really is comfortable with something or not. His is the art of obfuscation or as another commenter has sometimes claimed the "art of the spurious."

What is important here is that the Supreme (Overlods) once again failed to do their duty to a) read and b) interpret the LAW - not seize the opportunity to express their policy preference while concealing their real game.
1) The Supremes wanted to continue to protect the newly discovered right to cut off your wanker and become a lady
and
2) while not upsetting the host of deplorable citizens who have sincere and historical / religious / biological objections to this new "freedom."

Thus, the Supremes willfully avoid the true constitutional issue of religious expression (free exercise thereof...) and instead further embed The Mystery Man Kennedy's "animus doctrine" into constitutional interpretation.

Just wait until the immigration cases come up for decision. Will Trump lose because he violated the Mystery Man's "animus doctrine."

Time to rein in these buffoons!

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gargamel rules smurfs
on June 06, 2018 at 20:47:57 pm

I agree with your dour assessments on all fronts.

"Jump Ball" Kennedy (aka the "Mystery Man") has now disingenuously read "animus" into the First Amendment as a procedural device for the Court to evade the constitutional issue. His creativity seems unbounded since in Casey he switched his earlier vote in conference and disingenuously created the Fourteenth Amendment's right to explore the mystery of the universe as a rationale for continuing (by one vote, Kennedy's) the Court's fictionalized legalization of prenatal infanticide.

The Cakeshop Court might as well have remanded the case back to the Colorado Commission for reconsideration (after "animus" counselling) for all the relief it offered Masterpiece Cakeshop's owner. After his initial confrontation with Colorado's statists, the owner was forced to forego making signature wedding cakes in order to protect himself from further government prosecution. Now, after his arduous trek to the Supreme Court, he's in the same position. If he offers signature wedding cakes, he will be solicited again by the gay community, he will refuse their offer of business (a Corleone-like offer he cannot safely refuse) and then he'll be right back in court. Thus, to address this ongoing legal dilemma the poor man will be forced to (continue to) relinquish a significant part of his business/livelihood.

Now, there's justice delivered by the Supreme Court and justice denied by the Supreme Court, all the while disingenuously professing to have sustained the appellant's First Amendment right.

We must hope that Kennedy will retire this summer, opening the door to a fifth Justice and ridding the nation of this meddlesome Jesuitical priest.

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Pukka Luftmensch
on June 06, 2018 at 21:10:14 pm

The problem with any form of ideology (including religion) being a protected class is that this protection can conflict with the general law. For example, suppose my religion tells me that I should go around and smack people in the heads, because this way I instill a part of the God in them - which law should triumph here, my right to exercise my right for religious expression, or their right to not have physical violence applied to them? While in this case the ruling of the law is clear, it is not so clear in more tricky cases, such as the Masterpiece Cakeshop.

The baker refused to serve a couple because they were gays and serving them violated his religious views. Is this a valid excuse? It should not be: whether he is allowed to refuse service to them should be defined by the general law, not by his religious views, as illustrated above. So the question we should ask legally here in the assumption of a self-consistent legal system is: was the baker allowed to refuse service to the gay couple simply because he didn't want to serve them?

Here, we enter the land of a multitude of very complicated laws regulating how publicly advertised businesses should operate. If I walk into a grocery store, get some groceries, tell the cashier "Hi! How are you?" and the cashier does not like my voice - are they legally allowed to refuse me service? In practice, grocery store administrations will never allow their cashiers to act this way - but are they allowed to, technically? I do not know the answer, and I would assume that only very experienced lawyers understand the intricacies of the legal situation well enough to know the answer and to understand where that answer comes from.

As a libertarian, I definitely agree with the sentiment that private businesses are allowed to interact with their customers however they want, as long as they abide by the law applied to private individuals. However, businesses publicly advertising their service take on certain responsibility for the consequences of such advertisement, and while free market is powerful enough to correct its actions in order to make discriminatory business practices in general unsustainable, it might not be powerful enough to resolve the cases when implied business contract and actual business contract differ significantly.

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May
on June 06, 2018 at 23:26:15 pm

Nice essay. But I prefer Aziz Huq’s essay in which he clarifies:

Kennedy’s opinion blocks Colorado from penalizing a baker who refused to serve a same-sex couple. On Kennedy’s telling, members of the Colorado Civil Rights Commission disparaged the baker’s sincerely held religious views while finding that he had violated state anti-discrimination law.

But this was not the argument the baker’s brief had foregrounded—and for good reason....

The Supreme Court was not reviewing a decision of the Commission. It was reviewing a decision of the Colorado Supreme Court. But that state court didn’t rely on the Commission’s legal conclusions or factual findings. Instead, the Colorado Supreme Court said that its decision was entirely fresh—or “de novo,” in lawyer speak. Rather than leaning on the Commission’s reasoning, the Colorado Supreme Court repeatedly cited an administrative judge’s findings. And there is no allegation that this judge was moved by animus. The allegedly biased Commission, that is, was arguably irrelevant to the state court’s decision to impose sanctions on the baker.

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nobody.really
on June 06, 2018 at 23:55:02 pm

It is not forThe Court to decide the credibility of Mr. Phillip’s Religious objections.

I agree--as did the SCOTUS in issuing Employment Division v. Smith. The right to free exercise of religion does not grant a person carte blanche to violate “neutral laws of general applicability.” You may claim a religious belief that conflicts with laws forbidding polygamy, child labor laws, Sunday closing laws, laws requiring citizens to register for Selective Service, laws requiring the payment of Social Security taxes, or whatever. But as the Court held back in 1878, "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." To the contrary, so long as government has a legitimate reason for its neutral laws of general applicability, then the law applies to all. The sincerity of a person’s religious objection is irrelevant to the legal analysis.

Civil rights laws are neutral laws of general applicability. Thus, they apply to all—religious objections notwithstanding.

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nobody.really
on June 07, 2018 at 00:16:25 am

Thoughtful response.

1. Yes, in Employment Division v. Smith, the SCOTUS concluded that states may enforce neutral laws of general applicability, even if those laws conflict with someone's professed religious views. Professing a religion does not put you above the law.

2. Businessmen have the discretion to refuse to do business with an individual for any reason or no reason--except for a FORBIDDEN reason, such as a desire to discriminate against a member of a protected class. So, could a businessman discriminate against you because he didn't like the sound of your voice? Yes--UNLESS, for example, he objected to the sound of your FEMALE voice as a pretext for objecting to doing business with WOMEN generally. In short, some facially neutral excuses may simply be covers for forbidden excuses. This becomes a factual dispute at trial.

3. While businessmen have the discretion not to interact with you, under some circumstances they may do things that cause others to rely on them--and in that case, businessmen can become liable if they don't follow through. In general, you have no duty to swim out to save a drowning man--but if you start, you may discourage others from going to the man's aid. In that case, your act of starting a rescue, but then quitting, would make a drowning man WORSE OFF--and you could be held liable.

Likewise, the legal scholar Blackstone observed that an innkeeper could be held liable if he refused to house travelers without reason--again on the theory that the innkeeper's conduct had led people to rely to their detriment on the innkeeper.

I'm not aware that anyone made the detrimental reliance argument in the Masterpiece Cakeshop case, but it's worth pondering. (But I make that argument in support of my Market Power Affirmative Defense.)

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nobody.really
on June 07, 2018 at 01:01:50 am

The Supreme Court was not reviewing a decision of the Commission. It was reviewing a decision of the Colorado Supreme Court.

Wrong. The Colorado Supreme Court declined to hear the case. The decision was from the Colorado Court of Appeals

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z9z99
on June 07, 2018 at 09:04:44 am

"Kennedy’s opinion blocks Colorado from penalizing a baker who refused to serve a same-sex couple."

That's not the case. The Colorado Commission is free to renew (and most assuredly will do so) the case against the owner of Masterpiece Cakeshop if he resumes his sale of signature wedding cakes and refuses to serve an about- to- be betrothed gay couple (who will most assuredly order a cake if Masterpiece resumes offering wedding cakes.) The owner's only option is either to follow his conscience and forego a significant portion of his livelihood or to violate his religious conviction and accede to the extortionist demands of cultural/political bullies.

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Pukka Luftmensch
on June 07, 2018 at 11:17:23 am

No one, most especially Justice Kennedy, could with a straight face....

Please--the sexual orientation of Justice Kennedy's face is not at issue here. Nor the extent of his banging.

Let's try to be civil.

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nobody.really
on June 07, 2018 at 11:26:20 am

Oh, dear, yes of course, you are quite right, I must try and be more civil - ha!!

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Paul Binotto
on June 07, 2018 at 11:28:30 am

Are objections to civil rights for gays any different than the objections to civil rights for blacks? Recall:

W. Chester & Phila. R.R. Co. v. Miles, 55 Pa 209, 214 (1867) reversed a judgment in favor of a black woman who refused to sit in “colored” section of train car, stating that “the Creator” made two distinct races, which “God has made . . . dissimilar,” and “the order of Divine Providence” dictates that the races should not mix.

Green v. State, 58 Ala. 190, 195 (1877) upheld a conviction for interracial marriage, reasoning God “has made the two races distinct.”

Scott v. State, 39 Ga. 321, 326 (1869) upheld a conviction of a black woman for cohabitating with a white man, holding that no law of the State could “attempt to enforce[ ] moral or social equality between the different races . . . The God of Nature made it otherwise.”

State v. Gibson, 36 Ind. 389, 405 (1871) upheld the constitutionality of conviction of a black man who married a white woman, declaring right “to follow the law of races established by the Creator himself.”

Kinney v. Commonwealth, 71 Va. 858, 869 (1878) upheld a criminal conviction of an interracial couple, reasoning that the two races should be kept “distinct and separate, and that connections and alliances so unnatural that God and nature seem to forbid them, should be prohibited by positive law, and be subject to no evasion.”

Berea College v. Commonwealth, 94 S.W. 623, 626 (Ky. 1906), aff’d, 211 U.S. 45 (1908), upholding sanction on integrated college for acting contrary to divine order.

• In 1963, former president Truman stated that interracial marriage was counter to the teachings of the Bible. “The Lord created it that way. You read your Bible and you’ll find out….”

Loving v. Virginia, 388 U.S. 1 (1967), rejecting the holding of the trial court that “Almighty God created the races white, black, yellow, malay and red and he placed them on separate continents. . . . The fact that he separated the races shows that he did not intend for the races to mix.”

Newman v. Piggie Park Enter., Inc., 377 F.2d 433, 438 (4th Cir. 1967), rejecting the argument that integration of private restaurants “contravene[d] the will of God.” The court rejected this argument, holding that while a businessman “has a constitutional right to espouse the religious beliefs of his own choosing . . . he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens.”

Bob Jones Univ. v. United States, 461 U.S. 574, 580–82 (1983), rejecting the argument that colleges should be exempt from civil rights laws on the theory that “the Bible forbids interracial dating and marriage” and “[c]ultural or biological mixing of the races [is] a violation of God’s command.”

The issue in Masterpiece Cakeshop pertained to the application of Colorado civil rights law, and I don’t know much about the legislative intent behind that law. But the legislative intent behind the federal 1964 Civil Rights Act is better known. At one point, the bill that would become the Act included a provision to exempt religiously affiliated employers from its terms banning discrimination in employment, but Congress eventually rejected that provision. There were various later efforts to amend the Act to grant broad religious exemptions, but Congress ultimately rejected those, too.

In short, the interest of freedom and equality will always conflict at some point. This includes freedom of religion and equality of civil rights. And, at least at the federal level, Congress had been clear about the appropriate balance between these competing interests.

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nobody.really
on June 07, 2018 at 11:53:24 am

In short, the interest of freedom and equality will always conflict at some point. This includes freedom of religion and equality of civil rights. And, at least at the federal level, Congress had been clear about the appropriate balance between these competing interests.

Exactly right. The discord arises because the interested parties are not so much concerned with balancing competing interests as with prioritizing them.

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z9z99
on June 07, 2018 at 13:22:28 pm

I also like Linda Greenhouse’s essay, quoting Justice Kennedy in Town of Greece v. Galloway (2014).

There, Kennedy observed that government officials may make public statements revealing that that they do not share a citizen’s religious views. But, while this may make the citizen “feel excluded and disrespected, …. adults often encounter speech they find disagreeable, and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum.”

Admittedly, Masterpiece Cakeshop addressed statements made in an adjudicative forum, not a legislative forum, which arguably justifies a stricter standard. But this illustrates how finely the courts are slicing the issues.

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nobody.really
on June 07, 2018 at 15:48:48 pm

"Are objections to civil rights for gays any different than the objections to civil rights for blacks? "

There is no correlation between discriminating against someone due to Race/Ethnicity, which is unjust discrimination, and discriminating between appropriate and inappropriate sexual acts, which is necessary if someone desires to respect the inherent Dignity and worth of every human person.

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Nancy
on June 10, 2018 at 14:20:52 pm

Clearly, "animus" is Justice Kennedy's new favorite word.

Apparently it no longer suffices to judge cases on laws, authority, rights, and duties. What we have, here, gentlemen, is the business of identifying and prosecuting Thought Crime.

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CHRIS LYNCH
on June 10, 2018 at 15:27:56 pm

Plausible speculation would hold that Kennedy concocted the notion of "animus" as an animating principle because it is of a hortatory piece with the pious moralizing of his reconciliation jurisprudence (Kennedy being to the constitution what Pope Francis is to Catholicism) and that it was accepted by the four conservatives as the only means by which they could muster a majority vote for Masterpiece Cakeshop.

The decision could easily have gone 5-4 for Colorado, and Kennedy's opinion, for me, all but says so.

"Animus" as a dispositive constitutional principle is extremely worrisome because it will make the Court's decision-making, already awash in subjectivism, even more personalized.

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Pukka Luftmensch
on June 10, 2018 at 16:07:31 pm

Isn't that the rub with subjective relativism; if there is no objective morality, when all is subjective to the individual, and there can be neither definitive or categorical right or wrong, how can anyone be accused of "animus", if what's wrong to you is right to the other?

In that case, isn't a characterization of "animas" an objectification of a morality that can only be characterized subjectively? Sounds like wanting one's cake and eating it, too...

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Paul Binotto
on June 10, 2018 at 20:23:42 pm

Yes, it's important to understand that Masterpiece Cakeshop is a procedural not a substantive law decision and Kennedy's opinion, with its newly-created First Amendment "animus" standard of lawful procedure, stands squarely for the proposition that the Left's ubiquitous thought and speech police can "have their cake and eat it too'' so long as they proceed in such a manner as to impose their anti-Christian demands politely and disguise their rejection of free speech behind a mask of civility.

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Pukka Luftmensch
on June 10, 2018 at 21:28:03 pm

Good comments, all, above!
I do note with some satisfaction that Kennedy now recognizes "philosophical" opposition to same sex marriage as not only existing (which he denied in Obergefell), but of being protected!
Too bad he didn't think of this in 2012.

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CHRIS LYNCH
on June 11, 2018 at 08:47:20 am

It strikes me that the corollary of Kennedy's "animus" doctrine is this: If a law may be struck down due to the animus of its proponents, then, surely, another law MUST be upheld because of the good intentions of it's proponents.

I expect that in the next session of SCOTUS now that the Robes have further enhanced their "mystic" mind reading powers.

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gabe
on June 11, 2018 at 10:58:22 am

Gabe's formulation of Kennedy's Law and its corollary:
" When one law is struck down due to the animus of its proponents, then another law MUST be upheld because of the good intentions of it’s proponents."

"Gabe's formula" combines physics and philosophy; it embodies both the conservation of matter and utopian idealism. ( Old Testament precepts about Yahweh's destruction of evil and the principle of Christian love may also be at work in Gabe's political formulation, but the First Amendment would bar official acknowledgement of their motivating force.)

Gabe's may be the most utilitarian political solution since Bentham as implemented by Robespierre: in effect, kill that which fails to yield to the power of love.

"Gabe's formula" (may I call it that?) would mean Death by Jurist for approximately fifty-percent of all Secular Progressive legislation, since what they fail to mandate out of malice the Democrats would regulate out of good intentions.

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Pukka Luftmensch
on June 11, 2018 at 12:46:57 pm

It strikes me that the corollary of Kennedy’s “animus” doctrine is this: If a law may be struck down due to the animus of its proponents, then, surely, another law MUST be upheld because of the good intentions of its proponents.

I sense gabe is just making a joke. But just for the hell of it: Whatever we may think of Kennedy’s reasoning, we shouldn’t criticize it using the logical fallacy of affirming the consequent.
Gabe suggests that if A implies B, then NOT A implies NOT B. But think about it: If I’m in Kansas, that fact implies that I’m in the US. But if I’m NOT in Kansas, does that fact imply that I’m NOT in the US? Only if you've taken this whole "real America" argument too far....

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nobody.really
on June 11, 2018 at 13:30:21 pm

nobody:

And just what the hell is wrong with Kansas? why would YOU not want to be there?
Oops, somebody already wrote about that. Was it you?

"...using the logical fallacy of affirming the consequent." Actually, the fear is that the Proggies, enamored of the mystical reasoning of the Mystery Man would employ this form of fallacious logic.

And for nobody: Bill Gates does own Fort Knox (or is it Fort Knocks - HA!) Good catch BTW!!!

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gabe
on June 11, 2018 at 13:36:13 pm

And just what the hell is wrong with Kansas? why would YOU not want to be there?

Have you tried a Topeka Cabernet?

'Nuf said.

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nobody.really
on June 11, 2018 at 14:28:02 pm

"And just what the hell is wrong with Kansas? " - nothing, if you're into Progressive Rock, I suppose....otherwise, its only 'dust in the wind'....

'Carry on wayward son'...

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Paul Binotto
on June 11, 2018 at 15:54:28 pm

"Have you tried a Topeka Cabernet? "

Nope - and the Canadians haven't tried it either UNLESS they are willing to pay for the cost of Canada's 125% tariff on american wines.
Now gee, how did that come up?

Perhaps, we should ask, Why would you want to live In Brit Columbia?

seeya

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gabe
on August 15, 2018 at 21:51:50 pm

No sexual act was planned at the wedding reception, so his cake was not going to be involved in any inappropriate sexual acts.

Is he also planning to refuse a straight couple who is known to use something other than the missionary position when not at their wedding reception?

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Image of James
James
on August 16, 2018 at 07:49:54 am

weird comment
really angry

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Pukka Luftmensch
on October 23, 2018 at 06:30:13 am

[…] British case strongly resembles—though not exactly—a case our own Supreme Court decided in May, Masterpiece Cakeshop v. Colorado Civil Rights Commission. But while the American court sidestepped difficult questions, the British court addressed them […]

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Image of Wedding Cake Wars Take an Interesting UK Turn
Wedding Cake Wars Take an Interesting UK Turn
on April 29, 2019 at 07:44:08 am

[…] explanation that is not hateful is rejected. Hence intolerance toward the Colorado cake maker, Jack Phillips, all in the name of equalitarian […]

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Image of Tocqueville and the Rigorous Logic on Egalitarian Conformity
Tocqueville and the Rigorous Logic on Egalitarian Conformity

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