Having just written an article about my confusion regarding whether we should allow bakers to be bigots, I want to talk a little bit about the Supreme Court oral arguments concerning Obergefell v Hodges. The are two questions before the court. The first one is whether same sex marriage should be mandated nationwide. The second, should the court find against the plaintiffs in the first, is whether states that do not allow same sex marriage will be required to recognize same sex marriages in other states — this is called “reciprocity.” From the standpoint of the law, the second question is more important. From the standpoint of civil rights the first question is key.

The reason the second question is more important as a matter of law is because not doing so causes all kinds of legal issues. States must recognize the power of other states to run their affairs. If a same sex couple is married in California, that marriage is now accepted by the federal government. But it isn’t recognized by, for example, the state of Ohio. What happens if that couple has a child and then they move to Ohio? Suddenly the couple isn’t married and the child is the responsibility of… who? There are all kinds of less consequential issues that come up when states do not reciprocate in this matter.

The first question is a matter of civil rights because it involves equal protection. If the court finds for the defendants in the first question and for the plaintiffs in the second, they will be setting up a situation where rich members of the Ohio LGBT community can fly over to New York and get married. But lower income members can’t do that. So in effect, poor LGBT people will not have the same rights. Now one could argue — And I would! — that this kind of discrimination is everywhere in our society. But that’s hardly a justification for allowing it in this case. Same sex marriage in Ohio would be a kind of Animal Farm equality, “All LGBT people are equal, but some LGBT people are more equal than others.”

Having said all this, I tend to think that the Supreme Court is going to worm out of this — splitting the difference by just finding for the plaintiffs in the second question. But maybe not. At BuzzFeed News, Chris Geidner seems to think that Kennedy is going to go for full marriage equality, Supreme Court Appears Ready To Rule In Favor of Marriage Equality. The basis for this claim is something interesting that Kennedy did. The hearing was divided between the two questions. During the hearing for the first, Kennedy was dominant, asking many questions and making many comments. But during the hearing for the second question, all he did was ask if the court could rule differently on the two questions.

I don’t find this particularly heartening. This is because during the first question’s discussion, he asked about the history of marriage being between “one man and one woman.” As Huffington Post summarized it, Supreme Court Mulls How Marriage Equality Will Come About. So there doesn’t seem to be any question that Kennedy thinks that same sex marriage should be made legal nationally. I took his question in the second half of the hearing to mean that he thought that the plaintiffs had the better of the argument, but for the sake of social conservatives, we should go slow and just mandate reciprocity.

I still think this is a good outcome. But it will indicate just how political the Supreme Court really is. On the other hand, if the court decides to not ruffle the feathers of the social conservatives and then finds for the plaintiffs in King v Burwell (the current Obamacare case), it will mean that they are just a bunch of hacks. Let’s hope not.

I’ve been trying to get my head around the issue of wedding cakes and same sex weddings. And part of my problem is that it is all so silly. On the Christian side, it doesn’t make any sense at all. The Bible — the old testament anyway — is kind of down on same sex relations. But it doesn’t actually say anything about marriage. This is just the same old modern Christian nonsense, “This is the literal word of God and I know that because my pastor told me it was!” It is so insulting to religion itself. What incredibly weak theology.

Just the same, why would same sex couples want to do business with such vile people? I understand if there is only one bakery in town. But this most recent case was in Gresham, OR. That’s right next to Portland. There are a lot of bakeries in that area. The only reason I can see a problem here — and it does apply — is because the couple didn’t know that this was a bakery that reserves the right to discriminate against same sex couples. Overall, it is hard for me to get too upset about this. There are total jerks in the world, and a lot of them have always called themselves Christians.

The case in Oregon is very clear as a matter of law. The state has a non-discrimination law. Sweet Cakes by Melissa very clearly broke the law. A same sex couple sued them. The owners lost. Boo hoo. This is what happens when you decide your business should be used for moral grandstanding instead of making money. You lose. Check the law the next time you decide to do something like this. Above all, stop whining. See that picture of Melissa crying to all the true believers at the 2014 Values Voters Summit? This is what happens when you let your husband be a bigot behind the counter.

Of course, the bakery owners — like the Indiana pizza store owners — have seen donations following in from like minded Christians from across the country. But these things are only going to last so long. These are not customers chipping in to keep a well loved store afloat, like we saw with Borderlands Books. The donations will last only as long as Fox News is pimping the story. This is a thing, but it is not going to keep the bigot bakery industry afloat past next Thanksgiving. A better solution needs to be found.

This is where the push for all these “religious liberty” laws are coming from. But even they have a short self life. In a place like Portland, I suspect the problem could be solved simply by letting people like Melissa discriminate but require that she put up a sign that says, “We don’t serve same sex weddings.” I think that would put a pretty quick end of Sweet Cakes by Melissa. But that’s just it. I suspect Melissa and her husband would be upset at having to post such a sign. They would see it as persecution — like the Nazis making the Jews wear arm bands. It wouldn’t be. It would just be truth in advertising. They should be grateful that the sign didn’t read, “Warning: we are bigots.”

So the sign wouldn’t solve the problems in Oregon, much less rural Mississippi. But given that this isn’t a question of basic needs — food and lodging — I would like to find a free market solution to it. Maybe I’m just being naive, but I really don’t think this kind of prejudice is going to survive the cold light of day. I want to watch as places like Sweet Cakes by Melissa get wiped out as only the most hardcore bigots are willing to do business with them. But like I said, I’m still struggling with the issue. But one thing should be clear, “Christians: the end is nigh!”