Claude Solnik
Long Island Business News
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Home > LI Confidential > Stop scratching on holidays
Stop scratching on holidays
Published: June 1, 2012
Off Track Betting in New York State has been racing into a crisis called shrinking revenue. Some people have spitballed a solution: Don’t close on holidays.
New York State Racing Law bars racing on Christmas, Easter and Palm Sunday, and the state has ruled OTBs can’t handle action on those days, even though they could easily broadcast races from out of state.
“You should be able to bet whenever you want,” said Jackson Leeds, a Nassau OTB employee who makes an occasional bet. He added some irrefutable logic: “How is the business going to make money if you’re not open to take people’s bets?”
Elias Tsekerides, president of the Federation of Hellenic Societies of Greater New York, said OTB is open on Greek Orthodox Easter and Palm Sunday.
“I don’t want discrimination,” Tsekerides said. “They close for the Catholics, but open for the Greek Orthodox? It’s either open for all or not open.”
OTB officials have said they lose millions by closing on Palm Sunday alone, with tracks such as Gulfstream, Santa Anita, Turf Paradise and Hawthorne running.
One option: OTBs could just stay open and face the consequences. New York City OTB did just that back in 2003. The handle was about $1.5 million – and OTB was fined $5,000.
Easy money.
In Wedding-Cake Case, Supreme Court Weighs Clash Between Gay Rights and Religious Views
Spotlight turns to Justice Anthony Kennedy as justices challenge both sides
Baker Jack Phillips working at Masterpiece Cakeshop in Lakewood, Colo., in this undated photo.PHOTO: ERIC BARADAT/AGENCE FRANCE-PRESSE/GETTY IMAGES
WASHINGTON—Supreme Court justices wrestled with competing visions of individual rights Tuesday, vigorously debating a legal collision between a baker whose Christian faith condemns same-sex marriage and a state law requiring him to sell wedding cakes without regard to sexual orientation.
The case was the first major dispute to reach the high court in the wake of its 2015 ruling extending same-sex marriage nationwide, forcing the justices to evaluate that decision’s impact on private parties who, typically for religious reasons, remain opposed to the practice.
While federal law doesn’t explicitly protect gay couples from discrimination, more than 20 states and hundreds of local jurisdictions outlaw discrimination based on sexual orientation, much as they forbid bias against customers for reasons of race, sex, religion, disability and other attributes.
Neither side’s attorneys yielded ground during the arguments, which left little clear other than the court’s recognition that both Jack Phillips, the Lakewood, Colo., baker, and the Denver couple he refused to serve, Charlie Craig and David Mullins, have significant rights at stake.
In a nod to the complexity of the case, several justices challenged lawyers representing the side they were expected to sympathize with.
Justice Neil Gorsuch, a Donald Trump appointee championed by conservatives, suggested that the administration’s argument favoring Mr. Phillips could open the door to wider discrimination. And liberal Justice Stephen Breyer voiced concern that Colorado had been too cavalier in its treatment of the vendor’s religious views.
But empathy rarely is enough to move justices off their ideological ground, leaving the spotlight on Justice Anthony Kennedy, the maverick conservative who embodies the legal conflict within the case.
Over the past two decades, Justice Kennedy has joined, and led, the court’s liberal wing in expanding gay rights, culminating in a 2015 decision extending same-sex marriage nationwide. But Justice Kennedy also has joined fellow conservatives in easing the strict separation of church and state that had been charted by precedents dating from the 1960s.
On Tuesday, he pressed both sides toward the uncomfortable extremes their arguments could portend.
The Trump administration joined the case on the side of the baker, and the U.S. solicitor general argued on his behalf at the court Tuesday. That marked another occasion when the administration has sided with social conservatives on a high-profile issue reversing a position taken by the Obama White House.
U.S. Solicitor General Noel Francisco, making his first argument as the Trump administration’s high-court advocate, suggested that regardless of antidiscrimination laws, the First Amendment’s free-speech guarantee should allow businesses to reject any customer seeking their product or services for “an expressive event like a marriage celebration to which they’re deeply opposed.”
“If you prevail, could the baker put a sign in his window, ‘We Do Not Bake Cakes for Gay Weddings’?” Justice Kennedy asked. “And would you not think that an affront to the gay community?”
“I would not minimize the dignity interests to Mr. Craig and Mr. Mullins one bit, but there are dignity interests on the other side here, too,” Mr. Francisco said.
When Frederick Yarger, the Colorado solicitor general, took the lectern, Justice Kennedy upbraided the state with equal force. “Counselor, tolerance is essential in a free society, and tolerance is most meaningful when it’s mutual,” he said. “It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’s religious beliefs.”
Where Justice Kennedy questioned Mr. Francisco over the possibility of a nationwide campaign pressuring bakers to refuse service to gay couples, he told Mr. Yarger that “accommodation is quite possible” because “other good bakery shops” presumably would welcome business from engaged couples of the same sex.
The dispute arose in 2012, when Messrs. Craig and Mullins came to Mr. Phillips’s Masterpiece Cakeshop, only to be turned away within moments of expressing their interest in a wedding cake. The couple filed a complaint with the Colorado Civil Rights Division, where an administrative law judge and then a seven-member commission found the bakery must offer wedding cakes to same-sex couples on the same terms as other customers.
When a state appellate court upheld the commission’s decision, Mr. Phillips stopped selling wedding cakes altogether rather than make them for same-sex couples.
The case poses several levels of legal questions, starting with whether baking a custom wedding cake counts as speech under the Constitution.
Kristen Waggoner, an attorney with the advocacy group Alliance Defending Freedom that represented Mr. Phillips, painted her client as an artist with expressive rights equal to that of any sculptor or painter.
Mr. Phillips would have no choice but to sell an off-the-shelf cake to a gay couple but he can refuse to bake a cake to order, she contended. The difference, she said, was that “his speech has been completed” when the cake is placed on the retail rack before the same-sex couple enters the store.
David Mullins, left, and Charlie Craig in Washington on Tuesday. PHOTO: GETTY IMAGES
The case raised issues that could affect a range of small businesses, some of the justices suggested.
Justice Ruth Bader Ginsburg asked if a floral-shop owner, or “the person who designs the invitations” would be considered to be “speaking” at the wedding.
Yes, if they produced “custom-designed” products with “artistic expression,” Ms. Waggoner said.
Justice Elena Kagan picked up the thread: “The jeweler?” she asked. Maybe, Ms. Waggoner said.
“Hair stylist?” Justice Kagan asked.
“Absolutely not,” said Ms. Waggoner.
“The makeup artist?”
“No,” said Ms. Waggoner.
“It’s called an artist. It’s the makeup artist,” Justice Kagan said, prompting laughter in the courtroom.
David Cole, an American Civil Liberties Union attorney representing Messrs. Craig and Mullins, argued that siding with the baker would undermine broad anti-discrimination laws, including those passed to protect African-Americans.
Chief Justice John Roberts didn’t buy it.
“The racial analogy obviously is very compelling, but when the court upheld same-sex marriage in [2015], it went out of its way to talk about the decent and honorable people who may have opposing views,” said Chief Justice Roberts, who dissented from that opinion. “And to immediately lump them in the same group as people who are opposed to equality in relations with respect to race, I’m not sure that takes full account of that concept.”
That may be so, Mr. Cole said, but the 2015 decision also “did not say that businesses who make a choice to open themselves to the public can then turn away people because they are gay and lesbian.”
Justice Samuel Alito turned the issue around, suggesting that the Colorado commission had singled out Mr. Phillips’s beliefs for unfavorable treatment.
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He noted that the commission declined to take action against three other bakeries that refused to make cakes with messages hostile to same-sex marriage.
“The commission said, ‘That’s okay, it’s okay for a baker who supports same-sex marriage to refuse to create a cake with a message that is opposed to same-sex marriage,’” Justice Alito said. “But when the tables are turned and you have the baker who opposes same-sex marriage, that baker may be compelled to create a cake that expresses approval of same-sex marriage.”
That line of the argument suggested a potential way out if the court wants to avoid confronting the larger issues: finding flaws in the specific way Colorado handled the complaint against Mr. Phillips.
Justice Kennedy cited remarks by one of the members of the state commission suggesting that religion had sometimes been used to justify discrimination.
“Suppose we thought there was a significant aspect of hostility to a religion in this case,” Justice Kennedy asked Mr. Yarger. “Could your judgment stand?”
Chief Justice Roberts and Justice Gorsuch echoed those concerns, suggesting at least a small chance the court could produce a narrow decision that leaves the larger clash for another day.
A decision in the case is expected by June.
—Louise Radnofsky contributed to this article.
