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Tags gay rights issues , religious rights issues , supreme court cases

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Old 28th June 2017, 11:44 AM   #41
BobTheCoward
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Originally Posted by Darat View Post
Your opinion, and not one that is shared by a lot of other people. Governments arose as an effective solution to some of the many problems people experienced living as social species. There is no indication that human behavioural traits have changed significantly in the last 10 thousand years or so, therefore the same problems would arise again if we lost our current systems of governance.

You propose a solution that has repeatedly failed through all recorded history, empirical evidence is against your wants.
It isn't what I want. I want what you want. But what the people want seems like a terrible basis for what should be under government's power to regulate.
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Old 28th June 2017, 11:44 AM   #42
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Originally Posted by Fudbucker View Post
If someone goes into business as a portrait painter, can they refuse to paint black people? I'm thinking non-discrimination trumps artistic license, else a Subway employee can claim they're a "sandwich artist".

Exactly. Anyone, at that point, can tack 'artist' somewhere in their job title and do what they like.


Art, some will say, should have no other purpose than itself, meaning a cake that's going to be eaten cannot be art.

I'm not sure about that definition, but someone's going to have to come up with a better one for the litigation.
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Old 28th June 2017, 12:00 PM   #43
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Originally Posted by 3point14 View Post
Exactly. Anyone, at that point, can tack 'artist' somewhere in their job title and do what they like.
I contend that barbecue is art, and by that reasoning why should the owner of Piggie Park had to violate their religious ideals by letting them sit and eat in their resturant?

See 1968 supreme court case Newman vs Piggie Park. Having to seat black people in his resturant was against his religious sensibilities and as such he should have been able to be able to refuse them service just like refusing to serve gays.
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Old 28th June 2017, 12:00 PM   #44
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Originally Posted by sylvan8798 View Post
The problem I have is that all these "religious freedom" cases are basically about ONE religious belief set - a belief that marriage should be between one man and one woman, or that sex is reserved for married people (as recognized by God). What about the person who sincerely believes that races should not intermarry? That was also defended with the bible. Or other beliefs that would lead to discrimination of one sort or another? Why is your "religious" belief set more worthy than my atheist belief set? I don't see how it can be constitutional to hold up such a narrow belief set as exempt from the rules that apply to everything else.
And to me this is where it gets... odd.

In general my issue with where the "religious rights" debate has taken us is that it treats religious beliefs systems as distinct and separate from simple opinions, stances, and ideas and tries to create greater or at the very least different set of standards for them.

My opinion has always been that "I hold religious belief x" should never be given more protection or recognition under the law than "I hold opinion x." and this insane whining from religious folks that seem to think either the spirit or letter of religious freedom protections means either "I can do whatever I want if I just invoke religion" or "The government has a responsibility to ensure that my choice of religious beliefs and any other decisions I make in life never come into conflict" are stupid.

But as I said earlier this is the one case where we do hit the bizarro version of this. A product or service can be denied for no reason, but not a bad reason which is a untenable position legally and socially in my opinion.

I think we need to step back and have a real discussion about whether business practices remaining voluntary is tenable and logical if we're going to go down this road.
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Old 28th June 2017, 12:11 PM   #45
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Originally Posted by Fudbucker View Post
If someone goes into business as a portrait painter, can they refuse to paint black people? I'm thinking non-discrimination trumps artistic license, else a Subway employee can claim they're a "sandwich artist".
Suppose I buy one of the Christian Artist's paintings as a wedding gift for Adam and Steve. They hang it in their boudoir. Can Christian artist do anything about this travesty?
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Old 28th June 2017, 12:14 PM   #46
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Originally Posted by JoeBentley View Post
My opinion has always been that "I hold religious belief x" should never be given more protection or recognition under the law than "I hold opinion x." and this insane whining from religious folks that seem to think either the spirit or letter of religious freedom protections means either "I can do whatever I want if I just invoke religion" or "The government has a responsibility to ensure that my choice of religious beliefs and any other decisions I make in life never come into conflict" are stupid.
The "religious" will claim that, since their beliefs don't come from within but are dictated to them by whatever text to which they subscribe, they don't have a choice about believing them. Different from an opinion, which you have formed based upon whatever experiences you have had, and which you could subsequently change. And have the CHOICE to change.
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Old 28th June 2017, 12:14 PM   #47
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Originally Posted by JoeBentley View Post
And to me this is where it gets... odd.

In general my issue with where the "religious rights" debate has taken us is that it treats religious beliefs systems as distinct and separate from simple opinions, stances, and ideas and tries to create greater or at the very least different set of standards for them.

My opinion has always been that "I hold religious belief x" should never be given more protection or recognition under the law than "I hold opinion x." and this insane whining from religious folks that seem to think either the spirit or letter of religious freedom protections means either "I can do whatever I want if I just invoke religion" or "The government has a responsibility to ensure that my choice of religious beliefs and any other decisions I make in life never come into conflict" are stupid.
And that is pretty much what the courts found, in part because it gets away from the idea of having a court decide if something is legitimately a religious belief or not. But lots of people found that unacceptable.
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Old 28th June 2017, 03:53 PM   #48
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Originally Posted by ddt View Post
According to Snopes, the Knapps' chapel was registered both as a religious institution and a for-profit. When the law was passed, they immediately hired the liars of the ADF who made a lot of noise that they were threatened to go to jail - according to a city spokesman, at most a misdemeanor charge. The end result was that the law was changed and allowed religious for-profits also to discriminate.


Ocean Grove, not Grove City. According to ThinkProgress:

So they rightly lost their tax-exempt status because they violated the provisions.


According to the Boston Globe, they also hired the ADF, and the stance of the government was:
Sure. All of these have something in common. The church/preacher was engaging in commercial activity, so commercial rules applied.

Churches are organizations that maintain buildings, pay salaries, contract for services and purchase goods. They raise funds from their parishoners, and from outside sources. They are engaging in commercial activity.

Take the first and third case together. The preacher was selling services, so he was subject to the non-discrimination laws. The third case has the government, in the person of the attorney general, insisting that anything as simple as a spaghetti dinner makes the church liable to those laws. The trend is clear. There is more and more interference in religion, and fewer exemptions for religious objections.

Quote:
Frankly, I think you're scratching the bottom of the barrel if you cite religious beliefs for not letting someone pee where they feel comfortable.
No doubt, and you are entitled to your opinion. Are they entitled to theirs?

Quote:
All of this overlooks that the US states still eagerly aids and abets discrimination when it comes to marriages. Each time an officiant signs a marriage certificate, they're an agent of the state. When that officiant is a pastor who refuses to do same-sex marriages, the state discriminates. All those officiants should be stripped of their licence. That should be the end game of gay marriage being legal.

I think the best thing to do would be to completely sever the link between religious and civil marriage. They just don't have anything to do with each other. I'm sure that most people on JREF would agree.

That would also help clarify the whole cake baking issue. If the couple is having a civil ceremony, then the baker couldn't credibly claim there was anything unholy. It's just a dinner. It happens to occur in conjunction with a legal occasion.

If it's a religious event, no one can be compelled to participate in a religious event they disagree with, so the baker is off the hook. If he only does religious ceremonies, he can pick and choose which ones to do. If, on the other hand, he caters civil celebrations, he can't discriminate.

Not everyone would agree with the above, but it seems to me like it offers a compromise a court could get behind.
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Old 28th June 2017, 04:12 PM   #49
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In the end, I tend to think of these cases in terms of the substantive due process doctrine. A person in the US can only be compelled to do something against his will if the government has a legitimate interest in that compulsion. If it involves infringement on a constitutionally guaranteed right, in this case expression and religion, the government must show that there is a compelling interest in doing so. Can they do that here?

For me, answering that question is difficult. As most readers no doubt understand, my sentiment is with the baker, because whatever you may think of him, his refusal to create cakes for gay couples getting married is of no real consequence to anyone. It just doesn't matter. He's a goofy guy who thinks Satan sends out kids to collect candy and the Ruler of All Creation worries about whose naughty bits contact each other, but he is of no real consequence when he tells people they will have to get their cake elsewhere. There's no compelling interest.

On the other hand, the statute used to fine the baker also protects gays against housing discrimination, employment discrimination, and non-religious commerce fo all sorts. I do think the government has a compelling interest in making sure that gay people can lead normal lives outside of their bedrooms. If you weaken the laws against discrimination, the consequences could be significant. The challenge for the court is to see if they can find a way to not gut civil rights protections, which have already been upheld repeatedly, while still providing reasonable protections of free speech and religion. I don't know if such a thing is possible. We'll find out what they do next year.

And that brings up the next point.

Originally Posted by sylvan8798 View Post
What about the person who sincerely believes that races should not intermarry?
This will come up when the case is argued. It always comes up in discussion. The people who bring it up always seem to think that it's just a killer argument. Frankly, they are probably correct, because it has a lot of force, but, taken logically, it shouldn't. In my opinion, it's quite telling that it always comes up, because it says a lot about the argument from the left.

For me, it goes back to compelling interest. Should the government care that a racist cake baker refuses to do a mixed race wedding cake? My answer is the same as for the homophobic baker. Who cares? It is of no real consequence. Most bakers will bake them a cake, so no harm is done. However, as with the gay case, it might weaken the overall civil rights protections, so unless it can be drawn very narrowly, allowing the racist baker to go about his business unfettered by discrimination laws might lead to bad things.

So, why does it always come up, and why do people think it's such a powerful argument?

The answer is that almost everyone in society today agrees that racism is bad. Racists are bad. If the law goes after bad people, we should be happy.

That's not the way the law is supposed to work, though.
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Old 28th June 2017, 04:30 PM   #50
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Originally Posted by Meadmaker View Post
For me, it goes back to compelling interest. Should the government care that a racist cake baker refuses to do a mixed race wedding cake? My answer is the same as for the homophobic baker. Who cares? It is of no real consequence. Most bakers will bake them a cake, so no harm is done. However, as with the gay case, it might weaken the overall civil rights protections, so unless it can be drawn very narrowly, allowing the racist baker to go about his business unfettered by discrimination laws might lead to bad things.
The more compelling argument can be framed like this: What if there's only one bakery in town? Or only one affordable bakery? Or restaurant? Or electrician? What if there's more than one but 90% of them choose to discriminate?

This is what these kinds of laws are designed to address. Once you let a moron discriminate, it's license for everyone else to do so. Will everyone do so? No, but it doesn't take very many to make life unnecessarily miserable for people who only want access to the same goods and services as their neighbors...and the government absolutely has a compelling interest in this regard.
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Old 28th June 2017, 04:36 PM   #51
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Originally Posted by Meadmaker View Post
The answer is that almost everyone in society today agrees that racism is bad. Racists are bad. If the law goes after bad people, we should be happy.
Okay but when various legal protection against racism was implemented that wasn't the case, racism was at the very least tolerated if not outright championed in our society.

Here look at it this way.

In 1967 when the Supreme Court came down on the side of interracial marriages public acceptance of interracial marriages in the US was about 20-30%. The majority of Americans didn't approve of interracial marriages until... 1995. Nearly 30 years later.

Right now the public acceptance of homosexual marriage is well above the majority tipping point, round about high 60 or low to mid 70 percentile depending on who you ask. If assuming there is some sort of "critical mass" of people that support something we should have been having the gay marriage debate in the late 70s or early 80s not now.

Interracial marriage was legal for 20 or 30 years before "most people" starting being okay with. Which sort of makes sense if most people are okay with something rarely do we need a law about it.

Sometimes laws are there to protect the minority from the majority opinion even in a Democracy.
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Old 28th June 2017, 04:40 PM   #52
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Originally Posted by JoeBentley View Post
Right now the public acceptance of homosexual marriage is well above the majority tipping point, round about high 60 or low to mid 70 percentile depending on who you ask.

....

Sometimes laws are there to protect the minority from the majority opinion even in a Democracy.
Right.

So, who is the minority today?
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Old 28th June 2017, 04:42 PM   #53
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Originally Posted by Meadmaker View Post
Right.

So, who is the minority today?
*Sighs* You don't magically get protection when you become the minority, that's not how it works.

We didn't start legally protecting the racists when they became the minority.
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Old 28th June 2017, 05:08 PM   #54
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Originally Posted by JoeBentley View Post
*Sighs* You don't magically get protection when you become the minority, that's not how it works.

We didn't start legally protecting the racists when they became the minority.
But we do. We can't censor their speech.

There are people with racist religions. We don't force them to allow white people to join their churches or covens or whatever the heck they have.

We do, on the other hand, force them to sell goods to black people, if they operate retail stores. The courts have found that there is a compelling interest to do that, and the courts will find that there is a compelling interest to have laws against that form of retail discrimination toward gay people as well. I am extremely confident that after this case is decided, gay people will still be able to go into any retail store in the United States and either be served, or sue the people who refused.

The only question is whether they will be able to get custom products produced for them, specifically if there is some sort of religious connection to that product.

Does anyone happen to know whether such things have ever been tested in court with regards to black people? I know that some people have tried to say it is against their religion to allow black people into their restaurants, and those people have lost. Have there been cases comparable to producing wedding cakes for interracial marriages?

I know there was a lot of fuss about Bob Jones University's interracial dating regulations. I don't remember how that turned out. Off to Wikipedia....
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Old 28th June 2017, 05:18 PM   #55
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Originally Posted by Meadmaker View Post
The only question is whether they will be able to get custom products produced for them, specifically if there is some sort of religious connection to that product.
I don't see how "custom product" changes anything, or "religious connection."

Claiming a wedding cake is a "religious good/service" isn't going to fly, nor should it.
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Old 28th June 2017, 05:41 PM   #56
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Originally Posted by Babbylonian View Post
The more compelling argument can be framed like this: What if there's only one bakery in town? Or only one affordable bakery? Or restaurant? Or electrician? What if there's more than one but 90% of them choose to discriminate?
But in the US today, none of that will happen. If you live in a small town, it's possible that there is only one baker. However, if that happens, you have a car, and towns aren't all that far apart- and, if worse comes to worst, maybe you can't get the shape of cake that you want.

As a matter of principle, lots of people will say that no matter what, no one should ever have to go to the next town, and some justices will agree. However, in deciding whether there is a compelling interest, other people will take those practical considerations into account. In this case, only nine people's opinions really matter, so we'll see what they say next fall.

I am confident that when it comes to restaurants and electricians, they won't overturn anti-discrimination statutes. Likewise, bakers providing off the shelf products won't be exempt. I don't know what they will say about providers of custom products, especially if those products are used in ceremonies.



Quote:
Once you let a moron discriminate, it's license for everyone else to do so.
Similarly, once you let a moron infringe on people's religious practice or freedom of expression, it's license for everyone else to do so. You may not be concerned about that, but the court will be. I don't know which they will say is the more important concern.
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Old 28th June 2017, 05:43 PM   #57
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Originally Posted by Meadmaker View Post
Right.

So, who is the minority today?
Straight marriage still outnumbers gay marriage.
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Old 28th June 2017, 05:45 PM   #58
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Originally Posted by lylfyl View Post
Straight marriage still outnumbers gay marriage.
But religiously motivated homophobes are a small minority among bakers.

I'm sometimes amazed by that. I never thought there would be such a huge change in attitudes toward homosexuality in such a short time, but it has happened.
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Old 28th June 2017, 05:47 PM   #59
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Originally Posted by Meadmaker View Post
Similarly, once you let a moron infringe on people's religious practice or freedom of expression, it's license for everyone else to do so.
No I'm pretty sure we can just go "Sorry your religion doesn't let you be a sexist, racist, or homophobic douchebag" and leave it at that.

If the argument is "If we don't let religious people be bigots today tomorrow they'll be banning our religions outright" I don't think its worth factoring in to the decision.

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Apropos of nothing it is just sort of weird to me on a meta, argumentative level that "cakes" became the hill that this war got fought over. I get that it's not about the cakes per se but broader legal protection and that other cases have happened it's just that the whole cake thing has become the go to metaphor for it, but it is just sort of odd on a surface level.
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Old 28th June 2017, 06:00 PM   #60
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Originally Posted by Meadmaker View Post
But in the US today, none of that will happen. If you live in a small town, it's possible that there is only one baker. However, if that happens, you have a car, and towns aren't all that far apart- and, if worse comes to worst, maybe you can't get the shape of cake that you want.


Yeah, the '50s were the best! When everyone had cars (except those who didn't) and shrugging at systemic discrimination was the norm.

"What's the big deal?" - enabling discrimination since pretty much forever.

"Hey, you can just drive a few miles down the road and get whatever you want. In fact, you could just move there and you'd be much happier."

Again,
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Old 28th June 2017, 06:41 PM   #61
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Couple of things (Bit of a rambling post and I am useless at readable long posts, so forgive me if a mess)

1) Discrimination happens all the time. The people involved just usually don't openly say why they refused something.

Bit of a different example, but when is the last time you saw a bloke get a job as a "Women's rights officer/manager" when applying, or any other job that involves sensitive issues?

Like anyone applying for a role that is based on dealing with a group they don't belong to. Be it based on minority race, sex, gender etc. The whole "But it is horribly discriminatory" thing seems to be conveniently forgotten.

The example of the women one. They don't say "It is because you aren't a chick", if you are a bloke. You obviously just don't get the job "because we don't think your qualified"

When is the last time you saw a bloke working as a female under wear fitter etc. There are heaps of examples of situations where the discrimination thing doesn't count.

2) Personally don't think refusing to make a cake for a gay couple is that big enough a deal to go to any court over, let alone Supreme court, but realise the USA is like the pointless legalistic capital of the universe.

Another different example

I read an article here about a woman who was (by the photo, pretty well kempt) denied a haircut at some old dudes barber shop because he didn't want to basically stuff it up. Some how this was seen as sexual descrimination by her and she vilified the bloke.

Now, knowing this forum some people will probably agree with her.

I don't. I think she was actually being a bit of a bitch and obviously the whole thing was pre-planned (not saying this is the case with the cake!)

It isn't 1960 where you could only go there. Buy one online that is probably better and it will be delivered tomorrow

It isn't like they are actually going to eat the thing if they win.

Would you eat a cake made by someone you dragged through the SC?

Their homophobes. Stupid. But it takes all types.

Personally just think they would have more sympathy if the showed their disdain by not buying there or any of the mates, and slag them of on their facebook or whatever the current fashionable thing is
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Old 28th June 2017, 06:43 PM   #62
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Originally Posted by Meadmaker View Post
That is part of what the court may decide. Is the act of personalizing a cake in a pre-determined manner actually an act of expression? The impression I got from earlier reading is that this particular baker did truly custom, unique, cakes, that required him to sit down with the client, discuss what they wanted, come up with a design, get it approved, and produce it. That, surely, is an artistic creation, which is expression. If, however, all that the "artist" did was fill in a blank with "Adam and Steve", and fill in frosting in a predefined manner, they might decide that there was no expression involved.
Iíve looked online at some of the wedding cakes produced by Masterpiece Cakeshop. They are not themed, artsy cakes with intimate personalized designs. They do some custom, artsy type cakes made to look like different things for other occasions, but all the wedding cakes I could find look like normal wedding cakes: round tiered cakes with white frosting and flowers or ribbons or squiggles or maybe some abstract circles. No written message other than maybe a single letter. The type of ďcustomĒ cake here is the type of customization any bakery would provide for a wedding cake: you chose the size, cake flavors, frosting color, type of flowers or bows or butterflies or whatever.

The ADF has taken on (and lost) similar cases for a wedding photographer and a florist and made similar arguments regarding expression.

Originally Posted by Meadmaker View Post
I also say "may decide", because they might express a general opinion that expression is protected, and may not be restricted by civil rights laws, and speak in some very general terms about what is and is not expression, and then send the case back to the lower court to decide whether this specific case meets the definition.
I down they will send it back down for that type of decision. The ruling was by a state court. The Supreme Court is taking this on because of the First Amendment issues raised. The Supreme Court has already written opinions about what constitutes expression protected by the First Amendment. They will decide whether this case constitutes protected expression and, if then necessary, whether that protection outweighs the right to accommodation and against discrimination.

Originally Posted by Meadmaker View Post
I'm pretty confident that they will not declare that the mere act of selling constitutes protected expression. I'm pretty confident that they will not declare that the mere act of being present at a celebration is either an expression or participation in a ritual. (i.e a venue that feeds people couldn't refuse a gay wedding reception, but they might be able to refuse to design custom table settings that are special for the wedded couple.) On the other hand, I think they will rule that a custom piece of work, whether a cake, a musical performance, a flower arrangement, or a staged photograph are all forms of expression, and they cannot be compelled as part of a condition for being in business. We shall see, but that's what I expect.
As I said, the weak spot in this case is that Masterpiece refused to make a cake before they knew what type of cake was being ordered. Itís going to be difficult to argue that the refusal to bake the cake was a matter of expression when for all the baker knew they were going to just ask for a plain three-tied white wedding cake. If the baker had let them say what type of cake they wanted and then refused based on the design we would have a much more challenging case regarding freedom of expression.
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Old 28th June 2017, 06:47 PM   #63
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Originally Posted by Meadmaker View Post
To be honest, I can't imagine anyone who would.

On the other hand, if the baker loses the case, I can just imagine militant Christians seeking out Muslim cake bakers and demanding that they produce a cake with a picture of Mohammed on it.
What those militant Christians already did was go into secular bake shops and ask for cakes with anti-gay marriage slogans. When their order was refused, they also filed complaints with the Colorado Commission. The Administrative Law Judge found in favor of the secular baker, and in ruling on this case the Colorado court supported that finding
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Old 28th June 2017, 07:28 PM   #64
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Originally Posted by Meadmaker View Post
Isn't the design process itself an act of speech? He knows they want a wedding cake, and it's for a same sex wedding. Is he compelled to sit with them and discuss details to determine whether or not there is something inherently supportive of same sex wedding in the particular cake that they come up with? If the cake itself looks like a wedding cake, but would be completely suitable for an opposite sex wedding, would it be said that the expression inherent in the cake is obviously acceptable to the baker? Is the context of the expression actually part of the expression itself?
In regards to the design process, the courts have distinguished between conduct and speech. The courts have also acknowledged that those two can be intertwined. The Colorado court (nor Masterpiece) didnít address that much. I think the court would find that such activity is conduct and not speech. Therefore, a person who provides a service of designing custom cakes to straights would be required to provide the same accommodation to gays.

I think the issue of a cake suitable for an opposite sex wedding being requested by a gay couple will be raised at trial. If one of the guys went in and worked with the baker to come up with the size/color/flavor/etc. of an typical type of wedding cake and never mentioned that it was a for a same sex wedding, the baker presumably would have agreed to make the cake. If the guy then says it is for a same-sex marriage, if the baker then refused to make the cake would that be discrimination? It sure seems like it.

But I can understand where the baker is coming from. Letís say a white customer requests a cake (specific size, flavor, and frosting) from a black baker. Itís just a basic cake. No images or message. The baker takes the order. But then the customer says it is for a KKK rally. So the baker refuses the order because he is against such a rally and doesnít want to be a part of the success of any such rally. Of course being a member of the KKK is not a protected class, so the baker is free to refuse the order. He would sell the customer a birthday cake for his sonís party or some cookies, but heís not going to make a cake for a KKK rally. That seems understandable. I think Masterpiece feels the same way. They wonít discriminate against any customer, but they donít want to provide something in support of an event that they disagree with in the same way a black baker would not want to be compelled to make a cake for a KKK rally.

That issue was raised in the Colorado case. As I said previously, Masterpeice made rather weak arguments on that issue. The court found that because gays (almost) exclusive have gay weddings that refusal based on the event was equivalent to refusal based on sexual orientation. I think there is more to it than that. Thatís a tricky issue. But it appears Masterpeice is not refuting that decision and is instead going for the freedom of expression angle.
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Old 28th June 2017, 08:22 PM   #65
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Originally Posted by DevilsAdvocate View Post
In regards to the design process, the courts have distinguished between conduct and speech. The courts have also acknowledged that those two can be intertwined. The Colorado court (nor Masterpiece) didnít address that much. I think the court would find that such activity is conduct and not speech. Therefore, a person who provides a service of designing custom cakes to straights would be required to provide the same accommodation to gays.

I think the issue of a cake suitable for an opposite sex wedding being requested by a gay couple will be raised at trial. If one of the guys went in and worked with the baker to come up with the size/color/flavor/etc. of an typical type of wedding cake and never mentioned that it was a for a same sex wedding, the baker presumably would have agreed to make the cake. If the guy then says it is for a same-sex marriage, if the baker then refused to make the cake would that be discrimination? It sure seems like it.

But I can understand where the baker is coming from. Letís say a white customer requests a cake (specific size, flavor, and frosting) from a black baker. Itís just a basic cake. No images or message. The baker takes the order. But then the customer says it is for a KKK rally. So the baker refuses the order because he is against such a rally and doesnít want to be a part of the success of any such rally. Of course being a member of the KKK is not a protected class, so the baker is free to refuse the order. He would sell the customer a birthday cake for his sonís party or some cookies, but heís not going to make a cake for a KKK rally. That seems understandable. I think Masterpiece feels the same way. They wonít discriminate against any customer, but they donít want to provide something in support of an event that they disagree with in the same way a black baker would not want to be compelled to make a cake for a KKK rally.

That issue was raised in the Colorado case. As I said previously, Masterpeice made rather weak arguments on that issue. The court found that because gays (almost) exclusive have gay weddings that refusal based on the event was equivalent to refusal based on sexual orientation. I think there is more to it than that. Thatís a tricky issue. But it appears Masterpeice is not refuting that decision and is instead going for the freedom of expression angle.
The example I always have in mind is a ketubah (traditional Jewish marriage contract). The items are not inherently religious. The calligraphers are paid for their production. If a non-Jew comes to the calligrapher and asks for a ketubah, is the calligrapher obliged to produce one? What about a Jewish gay couple who are about to be married, and want a ketubah? Is the calligrapher required to produce one? Unlike certain Jewish ritual objects, there are no prescribed rituals that must be performed during the production of the ketubah. In some cases, they follow a standard formula, so there's no real creativity required. An "off the shelf" ketubah, with no customization, is certainly possible.

I know that if I were on the Supreme Court, I would not compel a calligrapher to produce a ketubah, even if the calligrapher made it very clear that his objection was based on the engaged couple being gay, or goy. I would not find that the civil rights of the couple were violated, and I would accept the religiously based refusal as an exception to non-discrimination statutes.

And I can't come up with anything that is very different between a ketubah and a wedding cake.
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Old 28th June 2017, 08:24 PM   #66
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Originally Posted by Meadmaker View Post
For something slightly analogous, a band is asked to play a song. They refuse, citing freedom of speech. Their music is an act of expression and they do not wish to express support for an activity by playing that song. Someone counters and says they are willing to play the song in a different context, so clearly the song itself has no expressive content to which they object. In the context of this case, this might apply to a band being asked to play "The Wedding Song" for a same sex wedding, but when I started writing the paragraph, the song I had in mind was actually "Hail to the Chief". They might be perfectly willing to play the song for one occasion, but not for another.
The issues of the sufficiency of the expression and the context are relevant. That falls under the Spence-Johnson test. The Spence case was about a peace sign on an upside-down American flag. Johnson was about flag burning. Under those cases the Supreme Court established test for when conduct becomes speech if there is (1) an intent to convey a particularized message, and (2) a great likelihood that the message would be understood by those encountering it. The first prong was softened by Hurley, a case where the court ruled that a private organization doing a St. Patrick’s Day parade did not have to include gay Irish-Americans who wanted to carry a gay message banner. In Hurley the court ruled that a that there does not need to be a particular articulate message to be considered protected speech, citing the works of Jackson Pollock, Arnold SchŲenberg, and Lewis Carroll’s Jabberwocky as examples.

Masterpice is petition the Supreme Court on the grounds that the Colorado court relied too heavily on Spence-Johnson and not enough on Hurley. But in Hurley (and other Supreme Court cases) the court has ruled that while any conduct may be interpreted as personally expressive in some way, the conduct must be considered sufficiently expressive in order to be considered as protected speech.

The Colorado court addressed this. Again, because the baker refused before any details of the cake were discussed the court had to rule on the basis of Masterpiece refusing any type of cake. The court ruled that simply making a cake was primarily conduct and not sufficiency expressive to warrant First Amendment protection.

The issue of context falls in the second prong of the Spence-Johnson test. The Colorado court ruled that simply providing a cake would not be likely understood as an expression of support of same-sex marriage, especially considering that a business would be compelled to provide equal accommodations for same-sex weddings.

Originally Posted by Meadmaker View Post
One of the difficulties of this case will be trying to come up with a ruling that is comprehensible. If there's too much legal hair splitting, it ends up being a bad ruling. Will they address, in this ruling, the weighty issue of whether a cake can be considered a wedding cake if there is no overt symbol of weddings, or verbal reference to marriage spelled out in frosting?
That’s not going to happen. Nobody has raised those types of issues. The Supreme Court doesn’t want to get into those type of issues. The closest it may come is the exact words used to request the cake. Did the baker interpret the request as a gay-marriage-themed cake when the couple actually just asked for a cake for a gay marriage? There could be an interesting argument there, but it wasn’t raised in the lower courts or the petition. Neither party wants to get into that. The court isn’t going to make a ruling that baker’s can refuse service for gay wedding unless the customer uses some magical words by hiring a team of lawyers to carefully craft a document in legalese simply for a cake order. That’s not going to happen.
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Old 28th June 2017, 08:56 PM   #67
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Originally Posted by DevilsAdvocate View Post
The issue of context falls in the second prong of the Spence-Johnson test. The Colorado court ruled that simply providing a cake would not be likely understood as an expression of support of same-sex marriage, especially considering that a business would be compelled to provide equal accommodations for same-sex weddings.
Was the hilited part actually part of the ruling? That seems rather circular. Your conduct cannot be considered expression because you are compelled to do it. Therefore, it is not protected expression, so it's ok to compel you to do it.

I'll have to go back and read the Colorado ruling.

To me, I would accept the argument that the cake itself, if it were a cake that "looks like a wedding cake", constituted an expression, and I am certain some of the Justices will, as well. I just don't know if five of them will.

As for not waiting to find out what sort of cake they wanted, I remember reading that some time back. As I recall, the conversation between the parties lasted for only a few seconds. It was basically, "We want a cake for our wedding." "I don't do same sex wedding cakes." [exit] I think there was a one sentence offer about some other sort of baked goods, but the next thing they did was file a complaint with the equal rights commission, and there was never any further communication between the parties.

To be honest, I remember wondering if this wasn't actually a "sting" operation of some sort. Did they truly want a wedding cake from Masterpiece, or was their goal to be turned down so they could sue and drive him out of business? I am absolutely certain that has occurred in other cases.
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Old 28th June 2017, 09:18 PM   #68
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I would advertise traditional wedding cakes instead of custom wedding cakes. That way if anyone came in requesting something you weren't comfortable doing you could simply say, " I don't know how to make that in cake form".
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Old 28th June 2017, 09:55 PM   #69
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Originally Posted by Meadmaker View Post
The example I always have in mind is a ketubah (traditional Jewish marriage contract). The items are not inherently religious. The calligraphers are paid for their production. If a non-Jew comes to the calligrapher and asks for a ketubah, is the calligrapher obliged to produce one? What about a Jewish gay couple who are about to be married, and want a ketubah? Is the calligrapher required to produce one? Unlike certain Jewish ritual objects, there are no prescribed rituals that must be performed during the production of the ketubah. In some cases, they follow a standard formula, so there's no real creativity required. An "off the shelf" ketubah, with no customization, is certainly possible.

I know that if I were on the Supreme Court, I would not compel a calligrapher to produce a ketubah, even if the calligrapher made it very clear that his objection was based on the engaged couple being gay, or goy. I would not find that the civil rights of the couple were violated, and I would accept the religiously based refusal as an exception to non-discrimination statutes.

And I can't come up with anything that is very different between a ketubah and a wedding cake.
I am not at all familiar with a ketubah, so I am at a bit of a loss to answering your questions. Off the cuff, I would say it appears that if the calligrapher provides ketubah to Jewish straights then he would be required to provide the same accommodation to Jewish gays.

There certainly could be a significant difference between providing a ketubah and a wedding cake. A cake is just a cake (provided it has no significant messages or images). The magnitude of the expression of the cake is very limited. Limited enough to be considered not protected expression. A ketubah has words and is specific to a religion. And apparently (maybe) inherently expressive of certain religious beliefs. That makes it much more expressive than a cake, and possibly ďsufficientlyĒ expressive to constitution the conduct of its creation to be considered protective speech.

As I said, I think the issue of providing a product or service to someone who will use it for a specific purpose is perhaps a legitimate reason for refusal of accommodation even to a protected class. I think that is the real nut of the issue, even though Masterpiece seems to be going after the much weaker (in my opinion) argument of First Amendment freedom from expression. They have too many hurdles of precedent to jump through to win that argument, and the court is going to be reluctant to open the Pandoraís Box of issues that would result from a favorable ruling. Unless some unexpected issues are raised or the justices find some weird backdoor, a ruling in favor of Masterpiece would be entirely based on politics rather than sound legal judgment.

I understand the concern raised by Masterpiece. As I said, I think they feel being compelled to provide a wedding cake (of any type) for a same-sex marriage is requiring them to support an event they donít; believe in the same way a black baker would feel if he were required to provide a cake for a KKK rally.

Letís say I run a party shop that rents tent for big events. Someone comes in to rent a tent. No problem. But then they say it is a for a KKK rally. I refused. That is understandable. And legal. But then someone comes in to rent a tent for a feminazi rally promoting the idea that all men are rapist pigs who must be destroyed. I refuse on the same grounds that I refused the KKK. But under the Colorado courtís logic a feminazi rally is essentially exclusive to women and therefore refusal of accommodation would be discrimination based on gender.

I think Masterpiece feels that way. And they may be right to some degree. But there is a difference. As the tent renter I could show that I provide tents for essentially exclusively womenís events all the time. I donít discriminate against women or womenís events, just certain events that I donít support just I as I donít rent o the KKK.

The problem with the Masterpiece case is that the wedding events are binary. They are either same-sex or not same-sex. The tent renter can claim to provide to all womenís events with certain exceptions. In the case of weddings, Masterpiece is making the same claim to provide for all wedding with a single exception. But with only two options, that exclusion necessarily does not allow for other inclusions of the same class. It completely eliminates accommodation for the other class, which has to be interpreted as discriminatory even if the actual reason is based on opposition to the event rather than discrimination. Thatís a tough nut to crack without opening a whole can of worms.
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Old 28th June 2017, 10:12 PM   #70
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Originally Posted by Jodie View Post
I would advertise traditional wedding cakes instead of custom wedding cakes. That way if anyone came in requesting something you weren't comfortable doing you could simply say, " I don't know how to make that in cake form".
I think that if it was shown that you said this to all gay or mixed-race couples but not to white, straight, couples then you'd still be in trouble......
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Old 28th June 2017, 10:38 PM   #71
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Originally Posted by Meadmaker View Post
Was the hilited part actually part of the ruling? That seems rather circular. Your conduct cannot be considered expression because you are compelled to do it. Therefore, it is not protected expression, so it's ok to compel you to do it.

I'll have to go back and read the Colorado ruling.
It starts at paragraph 64 on page 35. The relevant text is below.

It is not circular. I am required to put a license plate on my car. Iíll use Iowa as an example. The license plate depicts a farm scene. Letís say Iím an urban Iowan who has nothing to do with farming and maybe even hates the redneck farmers. I feel that displaying a license plate with a farm scene is an expression of supporting farms or farmers that is wholly against my beliefs. The court has to look at the second prong of the Spence-Johnson test to determine whether it is likely that displaying the license plate would reasonably be perceived as a personal expression. Because all cars driving on public roads are compelled by law to display the state-issued license plate depicting a farm scene, it is not reasonably to conclude that it is likely that anyone would assume that such a depiction is personal expression rather than simply a matter of using a standard issue required license plate. (I know this isnít a very good example because Iowa offers many alternative plate designs and there have been First Amendment cases over slogans on license plates, but I hope you get the general idea.)

Quote:
As in FAIR, we conclude that, because CADA prohibits all places of public accommodation from discriminating against customers because of their sexual orientation, it is unlikely that the public would view Masterpieceís creation of a cake for a same-sex wedding celebration as an endorsement of that conduct. Rather, we conclude that a reasonable observer would understand that Masterpieceís compliance with the law is not a reflection of its own beliefs.

The Elane Photography court distinguished Wooley and Barnette, and similarly concluded that New Mexicoís public accommodations law did not compel the photographer to convey any particularized message, but rather ďonly mandates that if Elane Photography operates a business as a public accommodation, it cannot discriminate against potential clients based on their sexual orientation.Ē It concluded that ď[r]easonable observers are unlikely to interpret Elane Photographyís photographs as an endorsement of the photographed events.Ē We are persuaded by this reasoning and similarly conclude that CADA does not compel expressive conduct.

We do not suggest that Masterpieceís status as a for-profit bakery strips it of its First Amendment speech protections. See Citizens United v. Fed. Election Commín, 558 U.S. 310, 365 (2010) (recognizing that corporations have free speech rights and holding that government cannot suppress speech on the basis of the speakerís corporate identity). However, we must consider the allegedly expressive conduct within ďthe context in which it occurred.Ē Johnson, 491 U.S. at 405. The public recognizes that, as a for-profit bakery, Masterpiece charges its customers for its goods and services. The fact that an entity charges for its goods and services reduces the likelihood that a reasonable observer will believe that it supports the message expressed in its finished product. Nothing in the record supports the conclusion that a reasonable observer would interpret Masterpieceís providing a wedding cake for a same-sex couple as an endorsement of same-sex marriage, rather than a reflection of its desire to conduct business in accordance with Coloradoís public accommodations law. See FAIR, 547 U.S. at 64-65.
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Old 29th June 2017, 03:39 AM   #72
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Originally Posted by Meadmaker View Post
Sure. All of these have something in common. The church/preacher was engaging in commercial activity, so commercial rules applied.

Churches are organizations that maintain buildings, pay salaries, contract for services and purchase goods. They raise funds from their parishoners, and from outside sources. They are engaging in commercial activity.

Exactly there is no difference between churches and any other business. This is why they should have to pay taxes. And why religious based businesses like Piggie Park should have been able to choose to not follow anti discrimination law. Which really anti discrimination laws are fundamentally undermining to the freedom of religion.

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I think the best thing to do would be to completely sever the link between religious and civil marriage. They just don't have anything to do with each other. I'm sure that most people on JREF would agree.

That would also help clarify the whole cake baking issue. If the couple is having a civil ceremony, then the baker couldn't credibly claim there was anything unholy. It's just a dinner. It happens to occur in conjunction with a legal occasion.
So clearly they wouldn't make one for the wrong religion having a wedding, that would be unholy as well. They have the right and duty to discriminate based on religion too.
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If it's a religious event, no one can be compelled to participate in a religious event they disagree with, so the baker is off the hook. If he only does religious ceremonies, he can pick and choose which ones to do. If, on the other hand, he caters civil celebrations, he can't discriminate.
Exactly discriminating based on religion is also protected by the first amendment and any religion that a business wants to ban is good. Just like the No muslim gun stores. As placed of worship they are free to ban who ever they choose.
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Old 29th June 2017, 03:44 AM   #73
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Originally Posted by Meadmaker View Post
In the end, I tend to think of these cases in terms of the substantive due process doctrine. A person in the US can only be compelled to do something against his will if the government has a legitimate interest in that compulsion. If it involves infringement on a constitutionally guaranteed right, in this case expression and religion, the government must show that there is a compelling interest in doing so. Can they do that here?
Hence anti discrimination laws are unconstitutional.
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On the other hand, the statute used to fine the baker also protects gays against housing discrimination, employment discrimination, and non-religious commerce fo all sorts. I do think the government has a compelling interest in making sure that gay people can lead normal lives outside of their bedrooms. If you weaken the laws against discrimination, the consequences could be significant. The challenge for the court is to see if they can find a way to not gut civil rights protections, which have already been upheld repeatedly, while still providing reasonable protections of free speech and religion. I don't know if such a thing is possible. We'll find out what they do next year.
And that is wrong as we have been shown that there is no such thing as non religious commerce. That is a fundamental point of the new religious freedom protection acts.

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For me, it goes back to compelling interest. Should the government care that a racist cake baker refuses to do a mixed race wedding cake? My answer is the same as for the homophobic baker. Who cares? It is of no real consequence.
Which is why piggie park was wrongly decided, who cares if the blacks can't eat in the restaurant? Sure you had those horrible disruptive counter sitters but really no one likes are respects them, they are almost as bad as that illegal march on selma blocking traffic.
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Old 29th June 2017, 03:47 AM   #74
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Originally Posted by JoeBentley View Post
I don't see how "custom product" changes anything, or "religious connection."

Claiming a wedding cake is a "religious good/service" isn't going to fly, nor should it.
Look at Hobby Lobby there is no such thing as a non religious business. All businesses have religious beliefs and violating them is wrong. You need to catch up with modern though. Of course the custom product changes nothing, it is wrong to force all businesses to violate their religious beliefs, that is the new model.
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Old 29th June 2017, 03:49 AM   #75
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Originally Posted by Meadmaker View Post
But in the US today, none of that will happen. If you live in a small town, it's possible that there is only one baker. However, if that happens, you have a car, and towns aren't all that far apart- and, if worse comes to worst, maybe you can't get the shape of cake that you want.
Exactly you can just live somewhere else, just like in the good old days when we blocked the wrong sorts of people from living in proper neighborhoods. America was great then, it will be great again.
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Old 29th June 2017, 03:52 AM   #76
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Originally Posted by Meadmaker View Post
But religiously motivated homophobes are a small minority among bakers.
At what level does this sort of discrimination need to be acted against? And that means that the individual actions of the businesses to discriminate legality depends on how many nearby businesses also function in the same fashion. Your rights to your religious practices are only allowed if they are a local minority.

What is the standards for this, when does this discrimination hit a local level of being pervasive enough to mean that the businesses lose their religious rights?
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Old 29th June 2017, 04:00 AM   #77
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Originally Posted by Meadmaker View Post
Was the hilited part actually part of the ruling? That seems rather circular. Your conduct cannot be considered expression because you are compelled to do it. Therefore, it is not protected expression, so it's ok to compel you to do it.

I'll have to go back and read the Colorado ruling.

To me, I would accept the argument that the cake itself, if it were a cake that "looks like a wedding cake", constituted an expression, and I am certain some of the Justices will, as well. I just don't know if five of them will.
And as barbecue is an art, forcing Piggie Park to seat black people is an unconstitutional imposition on their free speech about their religious beliefs of the appropriate rolls of the races.

Fundamentally all antidiscrimination laws violation the first amendment protections for free speech and free religion.
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Old 29th June 2017, 04:29 AM   #78
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Originally Posted by ponderingturtle View Post
And as barbecue is an art, forcing Piggie Park to seat black people is an unconstitutional imposition on their free speech about their religious beliefs of the appropriate rolls of the races.

Fundamentally all antidiscrimination laws violation the first amendment protections for free speech and free religion.

In the same way that anyone at all, anywhere, regardless of status, criminal or mental history being denied access to firearms violates the second?

Or in the way that accusing "Ten thousand dollars in cash" of committing a crime violates the fourth?


The constitution is extensively violated daily.
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Old 29th June 2017, 04:40 AM   #79
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The Constitution was asking for it, just look how it was dressed.
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Old 29th June 2017, 04:40 AM   #80
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Originally Posted by DevilsAdvocate View Post
I am not at all familiar with a ketubah, so I am at a bit of a loss to answering your questions. Off the cuff, I would say it appears that if the calligrapher provides ketubah to Jewish straights then he would be required to provide the same accommodation to Jewish gays.
That's what it would appear to me as well, if Masterpiece loses.

Quote:
There certainly could be a significant difference between providing a ketubah and a wedding cake. A cake is just a cake (provided it has no significant messages or images). The magnitude of the expression of the cake is very limited. Limited enough to be considered not protected expression. A ketubah has words and is specific to a religion.
It's specific to a culture, but not a religion. The ketubah has no religious function. It's just like a wedding cake in that regard. Because it has words and sometimes pictures on it, and those words can vary, it could be said to be more expressive than a cake (which might also have words, and sometimes pictures, and other symbolic elements). On the other hand, the words are chosen by the couple to be married, not the calligrapher. Since the expression involved is the expression of the couple, rather than the calligrapher, does the calligrapher have no rights to refuse to comply with the intended expression of those who contract her work?

Quote:
They have too many hurdles of precedent to jump through to win that argument, and the court is going to be reluctant to open the Pandora’s Box of issues that would result from a favorable ruling.
I think there are Pandora's Box issues on both sides of the ruling. As noted before, there's a real fear that people will be compelled to do things which violate their religious beliefs, and that even churches will be compelled by law to cave to secular demands. After all, spaghetti sellers are places of public accommodation.

Among the general public, there is a real fear of where this slippery slope ends. If the government can demand that you make a wedding cake that you don't want to make, and take away your livelihood if you refuse, where does it stop? I don't know if the nine people who matter will think along those lines, but the people of Michigan, Wisconsin, and Pennsylvania certainly do.


Quote:
The problem with the Masterpiece case is that the wedding events are binary. They are either same-sex or not same-sex. The tent renter can claim to provide to all women’s events with certain exceptions. In the case of weddings, Masterpiece is making the same claim to provide for all wedding with a single exception. But with only two options, that exclusion necessarily does not allow for other inclusions of the same class. It completely eliminates accommodation for the other class, which has to be interpreted as discriminatory even if the actual reason is based on opposition to the event rather than discrimination. That’s a tough nut to crack without opening a whole can of worms.

The one thing that I think mitigates against this interpretation is that Masterpiece also refused other business when it violated his religious beliefs. He can credibly claim consistency on those grounds, and if they rule against him the court will be forced to say that his religious beliefs don't really matter.
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Last edited by Meadmaker; 29th June 2017 at 04:48 AM.
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