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

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Old 3rd July 2017, 08:04 PM   #121
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Originally Posted by Delphic Oracle View Post
No, what I mean is that the government's regulation must happen in a way that ensures Equal Protection.



I'm resistant enough as it is with all of this corporation's are people nonsense, now they are citizens?
Masterpiece Cakeshop is a sole proprietorship owned by Jack Phillips. He's an independent, self employed, citizen who owns a bakery and decorates cakes.


He has rights, even when he's working.
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Old 3rd July 2017, 08:21 PM   #122
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Does it matter that the business owner is the object here? Suppose I merely worked for the dude (and in this case, he has no objection to same-sex anything) - should I get a pass because I am personally offended by the situation?
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Old 3rd July 2017, 08:48 PM   #123
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Originally Posted by Meadmaker View Post
Masterpiece Cakeshop is a sole proprietorship owned by Jack Phillips. He's an independent, self employed, citizen who owns a bakery and decorates cakes.


He has rights, even when he's working.
Masterpiece Cakeshop is licensed by a government to do business. He has the "right" to apply for a business license, appeal the rescinding of that business license, and defend the entity created from claims (as separate from himself individually, mind you).

He does not have the "right" to favorable outcomes.

He does not have the right, nor does the quasi-person-thing have the right to disregard civil rights laws or commercial business regulations. No amount of super-duper really seriously believing in sky faries should so easily wipe away fundamental human equality.

If the government allows businesses to openly discriminate while retaining their licenses, then they are party to -and agents of- that discrimination. Full stop.

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Old 3rd July 2017, 10:37 PM   #124
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Originally Posted by Meadmaker View Post
First, we aren't talking about "selling a cake". If we were, the baker's case would be far, far, weaker. Kennedy would never go along with it. There is no act of creation involved in selling a cake. There is an act of creation of baking and decorating one. I state again, there was a rainbow on the cake that the couple ended up getting. Clearly, that rainbow was an act of expression. How could one say that the rainbow was clearly an act of expression, but that a traditional wedding cake is not?
We may be talking a little bit about selling a cake. Masterpiece refused to make a wedding cake without any discussion of the type of cake. There was not even any discussion of whether the cake they wanted would be a pre-made cake (although I think it would be reasonable to presume that was not what they would have been asking for). So Masterpiece refused to make a cake for them, of any description, if it was going to be used to celebrate their same-sex marriage.

The couple may have asked for a rainbow cake, or a traditional wedding cake, or a cake shaped like a castle that is not associated with marriage in any way, or a small basic vanilla sheet cake with white frosting that doesnít really convey any message. Masterpiece claims that making a cake (and we have to assume any cake of any description) would violate his right to freedom of expression if he knew it would be used for the celebration of a same-sex marriage.

For all Masterpiece knew, the couple may have been to a wedding reception with a cake provided by Masterpiece and the couple liked it so much they were going to ask for an identical cake for their celebration. Does the expression of making an identical cake change based on knowledge of the sexual orientation of the customer purchasing the cake?

Similarly, ADF lawyers have said publicly that Masterpiece would sell any pre-made cake of any type to anybody for any purpose. That gets a bit muddied in the court documents because of the direction of the arguments each party is making. But we can consider that.

Wedding cake are not typically pre-made. It is not the type of thing someone pops in and picks up off the self on the way to the reception. But letís say a baker does make pre-made wedding cakes. Traditional style wedding cakes, three tiers with white frosting and flowers. HE makes two cakes each day. They are strawberry flavored. A couple wants an identical for next Tuesday except chocolate flavored. If it were for an opposite-sex wedding the baker would make the chocolate cake, but not if it were for a same-sex wedding. Is the expression of making a different flavored cake sufficiently expressive to warrant First Amendment protection against equal accommodation?

Or letís say the baker makes two identical pre-made wedding cakes every morning. The same cakes every day. Many times the cakes sell out before afternoon. A same-sex couple asks for a cake exactly like the pre-made ones in every way, but they want it next Tuesday. They are basically reserving a ďpre-madeĒ cake. But the baker hasnít made the cake when the order is placed. Would making that cake, knowing it was going to be used for a same-sex marriage celebration, then be an expression by which the baker could refuse to make the cake?
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Old 3rd July 2017, 10:41 PM   #125
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Originally Posted by BobTheCoward View Post
Which is why it is incumbent on the public to have good rules and not violate people's rights in the process. So we are right back in the same place asking the same questions.
Back to your argument about subjective good, at least try and be consistent.
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Old 3rd July 2017, 10:43 PM   #126
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Originally Posted by Meadmaker View Post
So, tyranny of the majority? If the public (as represented by their elected government) says you can't sell that book, then you can't sell that book. But if the government says you have to sell the book, you have to sell the book. Simple, eh?


But of course it doesn't work that way in the United States, nor in most of Europe. The US, where this case will be decided, has specific standards for when the government can place a restriction on a business or an individual. It has been codified under a general concept called "substantive due process". Simply put, the government can only tell you what to do if it's somehow the government's business. Meanwhile, the standard for deciding if it's the government's business can vary based on situations. If the restriction would place a restriction of freedom of speech or religion, there's a higher standard, referred to as the "strict scrutiny" test.

What that means is that in order to restrict someone's constitutionally protected rights, e.g. expression or religion, the government must show two things.

1. The government has a compelling interest in making the restriction
and
2. No lesser restriction would satisfy the compelling interest of the government.

That's going to be the standard applied here. I really don't know how they will apply it. On the one hand, I can't see how to allow the baker to pick and choose which events he will support without opening up a really big can of worms. On the other hand, I can't see how the same court that said it was unconstitutional to force employers to provide birth control (Hobby Lobby case) will rule that it is acceptable to force self employed individuals to bake cakes or take photographs.
Depends on the governance system the public has set up. In the USA for example there are some controls on the issue of "tyranny of the majority" but in the end it is always the tyranny of the majority.
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Old 3rd July 2017, 10:49 PM   #127
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Originally Posted by Meadmaker View Post
I think most people, and every court, would agree that preventing human sacrifice constituted a compelling interest of the government.
And that is what you were concerned about "the tyranny of the majority".

Sincerely if it could be established that only people of sound mind and without coercion* were volunteering to be such sacrifices why should the majority dictate that they can't sacrifice themselves? Could be someone who wants to legally kill themselves, for example a person suffering a terminal disease, kills two birds with one rock.

*practically can't see how such a test could devised but we are talking hypothetically.
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Old 3rd July 2017, 10:55 PM   #128
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Originally Posted by shuize View Post
I don't really care for religious exception laws. But it's amusing to watch the disappointment and frustration evidenced by our friends on the left when they discover that religious freedom laws they helped pass to protect groups they favor (peyote smoking Native Americans) might actually apply to other citizens, too.
What has religious freedom got to do with "the left"? It is one of the foundations of the USA, it predates left or right, it goes back to the liberal bases for the original USA constitution etc.
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Old 3rd July 2017, 11:31 PM   #129
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Originally Posted by Darat View Post
And that is what you were concerned about "the tyranny of the majority".

Sincerely if it could be established that only people of sound mind and without coercion* were volunteering to be such sacrifices why should the majority dictate that they can't sacrifice themselves? Could be someone who wants to legally kill themselves, for example a person suffering a terminal disease, kills two birds with one rock.

*practically can't see how such a test could devised but we are talking hypothetically.
The courts are very clear that you need a compelling interest. They are very unclear about what constitutes a compelling interest. In the end, it's all a matter of opinion, perhaps guided by previous court decisions about some specific thing that was found or not found to be a compelling interest.

I think that every court in the United States would find that preventing human sacrifice was a compelling interest. I'm not sure they will feel the same way about cake.

They might. I'm sure that at least a few of them will insist that some variation of "fair treatment", "ending discrimination", or some variation thereof constitutes a compelling interest. I'm confident at least of few of them will say it does not. I would put money on it being a 5-4 decision, but I am not confident about which side will have the 5.
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Old 4th July 2017, 12:04 AM   #130
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Originally Posted by DevilsAdvocate View Post
We may be talking a little bit about selling a cake. Masterpiece refused to make a wedding cake without any discussion of the type of cake. There was not even any discussion of whether the cake they wanted would be a pre-made cake (although I think it would be reasonable to presume that was not what they would have been asking for). So Masterpiece refused to make a cake for them, of any description, if it was going to be used to celebrate their same-sex marriage.

The couple may have asked for a rainbow cake, or a traditional wedding cake, or a cake shaped like a castle that is not associated with marriage in any way, or a small basic vanilla sheet cake with white frosting that doesnít really convey any message. Masterpiece claims that making a cake (and we have to assume any cake of any description) would violate his right to freedom of expression if he knew it would be used for the celebration of a same-sex marriage.

For all Masterpiece knew, the couple may have been to a wedding reception with a cake provided by Masterpiece and the couple liked it so much they were going to ask for an identical cake for their celebration. Does the expression of making an identical cake change based on knowledge of the sexual orientation of the customer purchasing the cake?

Similarly, ADF lawyers have said publicly that Masterpiece would sell any pre-made cake of any type to anybody for any purpose. That gets a bit muddied in the court documents because of the direction of the arguments each party is making. But we can consider that.

Wedding cake are not typically pre-made. It is not the type of thing someone pops in and picks up off the self on the way to the reception. But letís say a baker does make pre-made wedding cakes. Traditional style wedding cakes, three tiers with white frosting and flowers. HE makes two cakes each day. They are strawberry flavored. A couple wants an identical for next Tuesday except chocolate flavored. If it were for an opposite-sex wedding the baker would make the chocolate cake, but not if it were for a same-sex wedding. Is the expression of making a different flavored cake sufficiently expressive to warrant First Amendment protection against equal accommodation?

Or letís say the baker makes two identical pre-made wedding cakes every morning. The same cakes every day. Many times the cakes sell out before afternoon. A same-sex couple asks for a cake exactly like the pre-made ones in every way, but they want it next Tuesday. They are basically reserving a ďpre-madeĒ cake. But the baker hasnít made the cake when the order is placed. Would making that cake, knowing it was going to be used for a same-sex marriage celebration, then be an expression by which the baker could refuse to make the cake?
Difficult questions, all.

With regard to what Masterpiece refused to do, I thin there was insufficient dialog to establish that. I don't think that the three sentences spoken before the couple walked out were adequate for anyone to say what Mr. Phillips was or was not willing to make and/or sell. The Colorado court weighed those statements heavily, but I think they did so in error.

The lawyer asserts that Masterpiece would sell any pre-made cake, and I think that is what we ought to assume that was part of his position. However, I don't know if he would have been willing to prepare a custom cake, but not one symbolic of weddings (e.g. the castle cake).

In my opinion, if it was a standard cake design that he made on a regular basis, or if it was a custom cake, but had no traditional marriage symbols, he should be required to make the cake. If, on the other hand, it was a custom design, with custom being any deviation from something in the catalog, and it was recognizable as a wedding cake, he should not be required to make it.

The problem with my position, though, is that it splits hairs so finely that it's hard to articulate as a court finding, giving direction to lower courts on exactly when and where to allow people first amendment exceptions to discrimination law. Moreover, there's the problem of applying that to things other than cake. Every photography session is, by its nature, custom. Every musical performance. Florists, if they do anything beyond delivering flowers for someone else to arrange, or preparing standard arrangements at a shop, are also custom.

Going to other examples, ketubot are usually custom, though there is a standard formula that could be used without any illumination or special artistic touches. And....porn? I can't say I'm very familiar with the market, but does it matter if it's off the shelf, ordered from a distributor or.....I'm guessing, and I assure you this is only a guess, you can even get some custom made these days. At what point does refusal to provide a desired product constitute illegal discrimination?

The court will have to decide these things. In theory, they are only supposed to decide the case that is in front of them, but this is one case where the specifics of this exact case will be far less important in the ruling than the implications down the road.

I think if they can find a way to reasonably contain their ruling to this case and cases that are very similar, the baker will win. If they feel like there's no way for the baker to win without serious damage to discrimination laws, the baker will lose.
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Old 4th July 2017, 01:28 AM   #131
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Originally Posted by Darat View Post
What has religious freedom got to do with "the left"? It is one of the foundations of the USA, it predates left or right, it goes back to the liberal bases for the original USA constitution etc.

The Religious Freedom Restoration Act (RFRA) was specifically written in response to the Supreme Court's 1990 decision in Employment Division v. Smith (which said the state of Oregon did not have to pay unemployment benefits to conselors at a drug rehabilitation clinic who were fired for testing positive for the use of peyote). RFRA was passed with support by politicians on both the left and the right. Of course, the left loved the idea then when they thought religious freedom only applied to peyote smoking Native Americans. Using the very same law to protect the relgious freedom for other less favored groups now is, like, totally different and stuff, man.
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Old 4th July 2017, 04:06 AM   #132
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Originally Posted by shuize View Post
The Religious Freedom Restoration Act (RFRA) was specifically written in response to the Supreme Court's 1990 decision in Employment Division v. Smith (which said the state of Oregon did not have to pay unemployment benefits to conselors at a drug rehabilitation clinic who were fired for testing positive for the use of peyote). RFRA was passed with support by politicians on both the left and the right. Of course, the left loved the idea then when they thought religious freedom only applied to peyote smoking Native Americans. Using the very same law to protect the relgious freedom for other less favored groups now is, like, totally different and stuff, man.
Already exposed the blatant false equivalence in this one.

Plus the Peyote part came in 1994 amendments addressing that specific issue (not "Religious Freedom" broadly) and SCOTUS has struck down or upheld the law depending on its applicability in various cases.

Really an all-around horrible law to point to in trying to craft a defense.

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Old 4th July 2017, 05:48 AM   #133
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Originally Posted by Delphic Oracle View Post
Already exposed the blatant false equivalence in this one.

Plus the Peyote part came in 1994 amendments addressing that specific issue (not "Religious Freedom" broadly) and SCOTUS has struck down or upheld the law depending on its applicability in various cases.

Really an all-around horrible law to point to in trying to craft a defense.

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The point stands. The left loved RFRA when they helped pass it in response to Employment Division v. Smith.

They changed their tune when they discovered it might apply to less favored religious beliefs (e.g. Hobby Lobby).

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Old 4th July 2017, 06:19 AM   #134
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Originally Posted by shuize View Post
The point stands. The left loved RFRA when they helped pass it in response to Employment Division v. Smith.

They changed their tune when they discovered it might apply to less favored religious beliefs (e.g. Hobby Lobby).
The scope is entirely different in those claims, however.

I can't think of a way that smoking Peyote during observance of a ritual subverts anyone's civil rights.

At the same time, I can't think of a way for businesses to be allowed to discriminate based on immutable qualities (when the government is the license-issuing authority and thus complicit in the act), that doesn't inherently violate civil rights.

Just because the same law is invoked for both examples doesn't make them equivalent. One involves private acts of individuals, the other involves the policies and conduct of commercial entities backed by public institutions.

The real results of this sort of "hands-off" approach to discrimination in business (and labor policy since you bring up Hobby Lobby) are that targeted groups have restricted selections (or non-existent in their area). This directly translated to lower quality of life, greater costs for an equivalent product or service (artificially restricted supply tilting the cost curve), or some combination thereof.

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Old 4th July 2017, 06:33 AM   #135
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Originally Posted by Meadmaker View Post
An ordained minister in Couer d'Allene Idaho who ran a "wedding chapel" was informed he was in violation of antidiscrimination laws when he refused to perform a same sex marriage. (He was willing to let them use the facility, just not perform the service himself.)

A church in Grove City, New Jersey lost a tax credit when they refused to rent a building for a same sex commitment ceremony.

A church in Massachusetts was informed that because they ran occasional spaghetti dinners that were open to non-parishoners and a fee was charged, they were therefore a provider of "public accommodation" and subject to all anti-discrimination laws. (Don't know all the details, but somehow transgender bathrooms came into the picture.)

In all of those cases, some sort of legal machinations were made, and the final resolution wasn't all that bad, but any of those legal actions would have been unthinkable 20 years ago. What is going on in America now is that there are a group of activists trying to push the envelope as far as they can, and a group of conservatives trying to hold the line or push it back to where they think it ought to be. Everyone knows that each new exchange in the legal battles is an opportunity to move an agenda forward, or backward, depending on your perspective.

This is pretty much it. On the one hand, I don't begrudge gays and others from trying to push the line as far as they can -- the shoe has been on the other foot for thousands of years, and "that side" had no difficulty pushing things in nasty ways, including arresting, jailing, and executions.

On the other hand, I'm unsettled by the historically novel idea of government declaring that business, i.e. earning money to buy food, to shove into your mouth, to stay alive, is something government has the honor of declaring an invalid area in which to practice your religion.

The religious life guides everything one does, regardless of "realm", and for government to declare a certain realm, patronizingly, as something you religious folk may not be religious in, is also historically novel and potentially an unwarranted, unconstitutional assertion of power.


As a virulent atheist, I'm not surprised people want to keep pushing well past where "live and let live" would end up, given the past thousands of years, but it just shows adhering to that principle is not something most people are willing to do when they get a taste of power.
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Old 4th July 2017, 06:34 AM   #136
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Originally Posted by Beerina View Post
On the other hand, I'm unsettled by the historically novel idea of government declaring that business, i.e. earning money to buy food, to shove into your mouth, to stay alive, is something government has the honor of declaring an invalid area in which to practice your religion.

The religious life guides everything one does, regardless of "realm", and for government to declare a certain realm, patronizingly, as something you religious folk may not be religious in, is also historically novel and potentially an unwarranted, unconstitutional assertion of power.
On the other hand people have been using religion as an excuse to engage in whatever activity, discrimination or evil they feel like doing for a long time.
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Old 4th July 2017, 06:36 AM   #137
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Originally Posted by Beerina View Post
This is pretty much it. On the one hand, I don't begrudge gays and others from trying to push the line as far as they can -- the shoe has been on the other foot for thousands of years, and "that side" had no difficulty pushing things in nasty ways, including arresting, jailing, and executions.

On the other hand, I'm unsettled by the historically novel idea of government declaring that business, i.e. earning money to buy food, to shove into your mouth, to stay alive, is something government has the honor of declaring an invalid area in which to practice your religion.

The religious life guides everything one does, regardless of "realm", and for government to declare a certain realm, patronizingly, as something you religious folk may not be religious in, is also historically novel and potentially an unwarranted, unconstitutional assertion of power.


As a virulent atheist, I'm not surprised people want to keep pushing well past where "live and let live" would end up, given the past thousands of years, but it just shows adhering to that principle is not something most people are willing to do when they get a taste of power.
As I've indicated in the aftermath of a ruling along these lines, the test cases for which religions get to do this and which protected classes can be targeted basically write themselves. The only two outcomes are to reverse the ruling or become a complete joke in terms of being an institution representing "justice."

A ruling like that is just the beginning of the quagmire this will become.

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Old 4th July 2017, 06:44 AM   #138
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Originally Posted by Delphic Oracle View Post
The real results of this sort of "hands-off" approach to discrimination in business (and labor policy since you bring up Hobby Lobby) are that targeted groups have restricted selections (or non-existent in their area). This directly translated to lower quality of life, greater costs for an equivalent product or service (artificially restricted supply tilting the cost curve), or some combination thereof.

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Weakly, perhaps, and fair enough. (This case itself mentions that having a different, willing baker nearby is not a good enough reason.) But is that, as a value judgement, more important than freedom of religion, which is to say, denying Congress the power to put the boot on the free exercise thereof?

"Congress shall pass no law" is a value judgement by The People, and it doesn't allow for roundabout arguments, nor bald assertions that in certain vital areas it is ok for government to declare you may not practice your religion, and therefore laws interfering with it are ok.
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Old 4th July 2017, 06:50 AM   #139
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Originally Posted by Trebuchet View Post
If the Supremes enshrine a religious exemption, I can't wait for the first Muslim baker to refuse to make a cake with a cross on it. Or better yet, a picture of Jesus.

I'd be fine with that. For both religious and freedom of speech reasons, government has no business requiring people to make statements with which they disagree.

More iffy is the general "expression" that the creativity of a (custom) cake, sans words or religious symbols, entertains under the first amendment.
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Old 4th July 2017, 06:53 AM   #140
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Originally Posted by Beerina View Post
Weakly, perhaps, and fair enough. (This case itself mentions that having a different, willing baker nearby is not a good enough reason.) But is that, as a value judgement, more important than freedom of religion, which is to say, denying Congress the power to put the boot on the free exercise thereof?
Not being able to exercise government-sanctioned bigotry in commercial activities is "the boot" now?

Save your dramatics for someone else.

Quote:
"Congress shall pass no law" is a value judgement by The People, and it doesn't allow for roundabout arguments, nor bald assertions that in certain vital areas it is ok for government to declare you may not practice your religion, and therefore laws interfering with it are ok.
Congress cannot show favor for, establish, abolish, or outlaw religions. I'm fine with the application of that in private affairs. Commercial affairs conducted by government-licensed businesses are not an individual's private affairs.

Another creative solution I might be willing to entertain is a new corporate designation. This one would allow you to operate as a private individual and discriminate to your heart's content. However, there will also be no liability shield. You are the business. No more of this crappy half human-half legal entity that allows the owner to impose personal mystical nonsense into the public sphere while remaining magically insulated from damages.

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Old 4th July 2017, 06:58 AM   #141
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Originally Posted by Delphic Oracle View Post
Not being able to exercise government-sanctioned bigotry in commercial activities is "the boot" now?

Save your dramatics for someone else.



Congress cannot show favor for, establish, abolish, or outlaw religions. I'm fine with the application of that in private affairs. Commercial affairs conducted by government-licensed businesses are not an individual's private affairs.

Another creative solution I might be willing to entertain is a new corporate designation. This one would allow you to operate as a private individual and discriminate to your heart's content. However, there will also be no liability shield. You are the business. No more of this crappy half human-half legal entity that allows the owner to impose personal mystical nonsense into the public sphere while remaining magically insulated from damages.

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Your service is the business.
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Old 4th July 2017, 07:42 AM   #142
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Originally Posted by Mike! View Post
Were the dogs the same sex?
I think it's safe to say that the dogs were neither men nor women.
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Old 4th July 2017, 07:51 AM   #143
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Originally Posted by applecorped View Post
Your service is the business.
That's a nice platitude.

Not really a great basis for tackling the kind of meat-and-bones issues the law has to consider.

Furthermore, I also posit that the kind of society we are (open, trusting, and tolerant or closed, suspicious, and hateful) is also a legitimate government interest.

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Old 4th July 2017, 08:21 AM   #144
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Originally Posted by Beerina View Post
This is pretty much it. On the one hand, I don't begrudge gays and others from trying to push the line as far as they can -- the shoe has been on the other foot for thousands of years, and "that side" had no difficulty pushing things in nasty ways, including arresting, jailing, and executions.

On the other hand, I'm unsettled by the historically novel idea of government declaring that business, i.e. earning money to buy food, to shove into your mouth, to stay alive, is something government has the honor of declaring an invalid area in which to practice your religion.

The religious life guides everything one does, regardless of "realm", and for government to declare a certain realm, patronizingly, as something you religious folk may not be religious in, is also historically novel and potentially an unwarranted, unconstitutional assertion of power.


As a virulent atheist, I'm not surprised people want to keep pushing well past where "live and let live" would end up, given the past thousands of years, but it just shows adhering to that principle is not something most people are willing to do when they get a taste of power.
Originally Posted by Argumemnon View Post
On the other hand people have been using religion as an excuse to engage in whatever activity, discrimination or evil they feel like doing for a long time.
I think that was exactly Beerina's point, and I think he is right.
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Old 4th July 2017, 08:29 AM   #145
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Originally Posted by Delphic Oracle View Post
Congress cannot show favor for, establish, abolish, or outlaw religions. I'm fine with the application of that in private affairs. Commercial affairs conducted by government-licensed businesses are not an individual's private affairs.
The problem with this is that, in practice, almost everything you do in the public eye somehow involves commerce. I'm sitting in my own home, not visible to anyone, right at this moment, but the reason you can read this is that I am paying a cable company and an electricity company.

When I interact with people, money will change hands. If Congress can regulate to their hearts content any time money is involved, there is no practical limit to their ability to regulate.

What we are seeing today in the examples I have cited is a tendency to push that definition of "commercial" as far as it can be pushed, so that a spaghetti dinner becomes license to regulate churches.

Be careful what you wish for.
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Old 4th July 2017, 08:46 AM   #146
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Originally Posted by Meadmaker View Post
The problem with this is that, in practice, almost everything you do in the public eye somehow involves commerce. I'm sitting in my own home, not visible to anyone, right at this moment, but the reason you can read this is that I am paying a cable company and an electricity company.
Which are not allowed to discriminate against you. Neither are commercial web sites allowed to filter user input different for one class than another, nor the hosting companies allowed to discriminate who can rent server capacity/bandwidth or price differently for certain classes, etc.

You benefit by having more freedom of choice in which entities to give your business to.

Quote:
When I interact with people, money will change hands.
Not always, and not always for commercial activity while acting as agent for a licensed business (the same reason you as owner or worker cannot be sued for that customer slipping on mop water). Again, I'm all for being discriminatory if you're willing to trade the liability shield and do it as a "private individual artisan."

But if you want that government license and access to commercial properties (requiring public accommodation), then Equal Protection applies.

It's equal because you are just as protected from discrimination as much as those you wish you could discriminate against.

Literally any deviation from that very simple balance becomes inherently hypocritical.

The only way to see that as some kind of diminished or oppressed status is to have come from a situation where one was allowed to piss on others from a great height while comfortably reassured that the reverse would not be tolerated for one instant.

God, the boot is just on your throats, how do you muster the will to go on in such a dystopic reality?

Quote:
If Congress can regulate to their hearts content any time money is involved, there is no practical limit to their ability to regulate.
No, they regulate commerce.

Don't twist my words.

Quote:
What we are seeing today in the examples I have cited is a tendency to push that definition of "commercial" as far as it can be pushed, so that a spaghetti dinner becomes license to regulate churches.

Be careful what you wish for.
Don't call it "public" if you want to pick and choose who comes in.

That's not government oppression of churches, that's a pastor who should have consulted his counsel.

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Old 4th July 2017, 09:08 PM   #147
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Originally Posted by Delphic Oracle View Post
big snip...

Quote:
What we are seeing today in the examples I have cited is a tendency to push that definition of "commercial" as far as it can be pushed, so that a spaghetti dinner becomes license to regulate churches.

Be careful what you wish for.
Don't call it "public" if you want to pick and choose who comes in.

That's not government oppression of churches, that's a pastor who should have consulted his counsel.
On the snipped stuff and the quoted part, well said Delphic Oracle.

As a MA resident who followed the "spaghetti dinner" case closely I'd like to point out that it was only a web site screw up. The AG's office corrected the poorly worded web page and the law suit was dropped. The actual intent was to remind churches (who for the most part were already aware) that when they have purely secular fund raising events they are subject to MA public accommodation laws that include non-discrimination based on sexual identity (unlike federal public accommodation law). It's actually a fairly common practice at some New England churches. By making some events purely non-religious, the churches my Dad was pastor for got much higher attendance than the similar religious events (e.g. secular May breakfast had profits of many thousands of dollars, religious pot luck earned a couple hundred or less).

I've also noticed the ocean side wedding place in NJ being brought up again. A few years ago on this forum I linked the actual documents from the legal proceedings. A summary from memory, the church begged the town to explicitly allow them to forego their religious exemption so they could receive a tax payer funded benefit. The church promised to never discriminate since they were making the facility a place subject to public accommodation law. All was well for years then NJ legalized same sex marriage. The church knew they could no longer keep their word but rather than ask to use their religious exemption and give up the tax payer funded service they decided to wait. No same sex couple asked to use the facility for a year or two then it finally happened and they refused service to the couple. The church was reported by the couple and then confronted by the authorities. In the end the church was let off with no fine and began using their religious exemption so they could legally say no to same sex couples wishing to rent the facility. Of course they also no longer get the tax funded benefit that is meant only for facilities that are public accommodations.

I've also previously pointed out that it is a near certainty that no clergy will ever be required to marry a same sex couple. My list of marriages that clergy could be required to perform as a prioritized list is:
  1. People of faiths different than the clergy
  2. Divorced people
  3. Interracial couples
  4. Same sex couples
For both #2 & 3 when those things became legal and more common, people wailed and moaned that clergy would now be required to go against their faith. Catholics were sure that Priests would have to marry divorced Catholics but nope. Racists were certain clergy would be forced to marry interracial couples but it hasn't happened. Until we force clergy to act in the first three situations I'm certain the fourth situation won't happen.

All that said I'm a huge supporter of absolute freedom of conscience in religious maters. Whenever actual religious liberty is infringed I'm right there sending money to support the ACLU and others organizations taking on those cases. But for the silly faux persecution that so many US citizens like to claim, I pay them little attention.
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Old 5th July 2017, 03:34 AM   #148
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Originally Posted by Meadmaker View Post
Masterpiece Cakeshop is a sole proprietorship owned by Jack Phillips. He's an independent, self employed, citizen who owns a bakery and decorates cakes.


He has rights, even when he's working.
Was Piggie Park wrongly decided then? It stomped all over, Lloyd Maurice Bessinger's religious christian views.
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Old 5th July 2017, 03:41 AM   #149
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Originally Posted by Meadmaker View Post
The problem with this is that, in practice, almost everything you do in the public eye somehow involves commerce. I'm sitting in my own home, not visible to anyone, right at this moment, but the reason you can read this is that I am paying a cable company and an electricity company.
And if those companies decide it is in the religious beliefs of the company to no longer offer you service that is their rights, for any reason they choose.
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Old 5th July 2017, 03:44 AM   #150
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Originally Posted by paulhutch View Post
I've also noticed the ocean side wedding place in NJ being brought up again. A few years ago on this forum I linked the actual documents from the legal proceedings. A summary from memory, the church begged the town to explicitly allow them to forego their religious exemption so they could receive a tax payer funded benefit. The church promised to never discriminate since they were making the facility a place subject to public accommodation law. All was well for years then NJ legalized same sex marriage. The church knew they could no longer keep their word but rather than ask to use their religious exemption and give up the tax payer funded service they decided to wait. No same sex couple asked to use the facility for a year or two then it finally happened and they refused service to the couple. The church was reported by the couple and then confronted by the authorities. In the end the church was let off with no fine and began using their religious exemption so they could legally say no to same sex couples wishing to rent the facility. Of course they also no longer get the tax funded benefit that is meant only for facilities that are public accommodations.
And now blocking that tax payer benefit from churches is unconstitutional anyway.
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Old 5th July 2017, 08:37 AM   #151
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Originally Posted by ponderingturtle View Post
And now blocking that tax payer benefit from churches is unconstitutional anyway.
Have cake?

Check.

Eating cake?

Check.

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Old 5th July 2017, 10:10 AM   #152
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Originally Posted by Delphic Oracle View Post
God, the boot is just on your throats, how do you muster the will to go on in such a dystopic reality?
In terms of the dystopian nature of our society, and whether we are living in a nightmare world, I don't think that either fundamentalist Christians nor homosexuals have much reason to complain, and that will remain true regardless of the outcome of this court case.

That feeling explains my sentiment that lies with the baker in this case. He is the one who is facing the heavy hand of government interference in this case. If he wins, gay couples might have to go with their second choice of bakeries or even, in some areas of the country where there are no open minded cake decorators, they might have to put up with off the shelf cakes. If the baker loses, he has to make a choice between his religious beliefs and his livelihood. In many of these cases, he might actually already be facing a massive fine, so it isn't even a case that he can avoid consequences if he changes his evil ways in the future. Some cases involve punishment, in the form of tens of thousands of dollars, for past misdeeds. That's a little bit more consequential than not getting your favorite sort of cake.


It all comes back to compelling interest. Is the issue of equal access to cake decorations sufficiently compelling to justify curtailing of first amendment rights?
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Old 5th July 2017, 10:29 AM   #153
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Originally Posted by marplots View Post
Does it matter that the business owner is the object here? Suppose I merely worked for the dude (and in this case, he has no objection to same-sex anything) - should I get a pass because I am personally offended by the situation?
There are a few different questions here.

First, with respect to the interaction of the customer and the business, you will "get a pass". If the customer feels his rights are violated, his legal complaint will be against the business, not with the staff that committed the actual offense.

There are still a few questions, though.

First, if you, as an employee, refused to decorate a cake for a gay couple, could you be fired as a result? If fired, could you claim a wrongful termination based on religious discrimination? I'm no expert on this, but I'm almost certain that the answer is that you could be fired. As I understand it, courts have ruled that employers must make "reasonable accommodations" of an employee's religion, but that doesn't extend to allowing the employee to choose not to do certain parts of the job. A common case, these days, of "reasonable accommodation" is a company whose dress codes do not allow head gear, and a woman gets hired and wants to wear a hijab. (Muslim head covering) Generally, the courts would rule that the woman cannot be fired for dress code violations, unless there's a health or safety issue.

If the employee who refused to bake the cake was following company policy, he is free from liability concerns, but those concerns fall onto the company owner.

A final question is whether the company and/or owner could be found liable for civil rights violations if the employee was acting on his own, in opposition to company policy. Generally, the company would have to demonstrate that they had, and enforced, policies in place to guarantee compliance with civil rights laws. In that case, they might be able to get free from the consequences of the rogue employee, but this is America, so anything is possible.
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Old 5th July 2017, 11:21 AM   #154
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Originally Posted by Meadmaker View Post
In terms of the dystopian nature of our society, and whether we are living in a nightmare world, I don't think that either fundamentalist Christians nor homosexuals have much reason to complain, and that will remain true regardless of the outcome of this court case.

That feeling explains my sentiment that lies with the baker in this case. He is the one who is facing the heavy hand of government interference in this case. If he wins, gay couples might have to go with their second choice of bakeries or even, in some areas of the country where there are no open minded cake decorators, they might have to put up with off the shelf cakes. If the baker loses, he has to make a choice between his religious beliefs and his livelihood. In many of these cases, he might actually already be facing a massive fine, so it isn't even a case that he can avoid consequences if he changes his evil ways in the future. Some cases involve punishment, in the form of tens of thousands of dollars, for past misdeeds. That's a little bit more consequential than not getting your favorite sort of cake.


It all comes back to compelling interest. Is the issue of equal access to cake decorations sufficiently compelling to justify curtailing of first amendment rights?
Why not, we already have found that equal access to barbecue curtails ones first amendment rights, so why not cake?
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Old 5th July 2017, 02:26 PM   #155
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Originally Posted by Meadmaker View Post
In terms of the dystopian nature of our society, and whether we are living in a nightmare world, I don't think that either fundamentalist Christians nor homosexuals have much reason to complain, and that will remain true regardless of the outcome of this court case.

That feeling explains my sentiment that lies with the baker in this case. He is the one who is facing the heavy hand of government interference in this case. If he wins, gay couples might have to go with their second choice of bakeries or even, in some areas of the country where there are no open minded cake decorators, they might have to put up with off the shelf cakes. If the baker loses, he has to make a choice between his religious beliefs and his livelihood. In many of these cases, he might actually already be facing a massive fine, so it isn't even a case that he can avoid consequences if he changes his evil ways in the future. Some cases involve punishment, in the form of tens of thousands of dollars, for past misdeeds. That's a little bit more consequential than not getting your favorite sort of cake.


It all comes back to compelling interest. Is the issue of equal access to cake decorations sufficiently compelling to justify curtailing of first amendment rights?
I think the concern is that a ruling in favour of the baker may have wording that generalizes. If homosexuality is confirmed as not protected from religious discrimination, would an employer be allowed to fire homosexuals ("I'm technically supporting their lifestyle, by paying wages into their household"), would a landlord be allowed to evict gay couples ("I'm technically supporting their lifestyle by selling them a bedroom").

I think it's realistic to be concerned that this is not about a cake. It's about Christian license.
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Old 5th July 2017, 06:03 PM   #156
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Originally Posted by blutoski View Post
I think the concern is that a ruling in favour of the baker may have wording that generalizes. If homosexuality is confirmed as not protected from religious discrimination, would an employer be allowed to fire homosexuals ("I'm technically supporting their lifestyle, by paying wages into their household"), would a landlord be allowed to evict gay couples ("I'm technically supporting their lifestyle by selling them a bedroom").

I think it's realistic to be concerned that this is not about a cake. It's about Christian license.
It's a legitimate concern, but one that the Court has already dealt with.

Devil's Advocate alluded to it. Although one can claim that anything you do is some sort of expression, the Supreme Court won't buy the argument. They have standards for what actually counts as expression that is entitled to first amendment protection, and hiring, renting, or plain old commerce (selling off the shelf products) don't count.

In this case, the baker would sell them an off the shelf cake, but not a wedding cake. What's the difference? Same ingredients. Same flavor. Different message. It's the expression inherent in a wedding cake that the baker objected to. Cake decorations really do express thoughts, which is why the cake the couple eventually got had a rainbow on it.

With regard to freedom of expression, the Court has two questions to answer. First, does the cake constitute an expression? I think in this case, they will say yes. Second, is there a compelling government interest in limiting the baker's right of free speech in this case? On that point, I don't know the answer. I think it will be 5-4.

As for religion, there's a similar set of arguments. In the past, the courts have held that race based discrimination laws had sufficient compelling interest to justify limiting religious freedom when, for example, someone wanted a pulled pork sandwich. Some of the justices will undoubtedly say that same precedent applies here, but they might not.

A wedding cake is both "more expressive" and "more religious" (my own terms, not anything out of law) than a pulled pork sandwich. Forcing the baker to prepare a wedding cake is more intrusive than forcing someone to serve a sandwich. They may find that the government's interest is insufficiently compelling to justify limiting the baker's first amendment rights to freedom of speech and/or religion.

I think they will be very mindful of going down the path you fear. They will not want to overturn discrimination laws generally. Thomas might be willing to do that, but even the other conservatives I think would balk at too much of a rollback. I don't think Kennedy would even entertain the idea, and the four liberals definitely wouldn't.

So the question is whether Kennedy, and maybe one or two others, feel that they can carve out a special subset of commerce that is either "more expressive" or "more religious" than ordinary commerce that protects the religious a little bit, while not losing meaningful ground in established areas of discrimination like employment, housing, or plain old retail sales.
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Old 6th July 2017, 09:59 AM   #157
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I'm sure the Supreme Court won't try to judge the validity of the religious arguments, but it still seems to me like they would be carving out too narrow a niche in terms of what beliefs qualify or don't qualify for this expressive discrimination. For example, the Catholic Church holds that God doesn't recognize a marriage between a Catholic and a non-catholic. If God doesn't recognize their marriage, then they are "living in sin and hell-bound".

Is it up to me as a baker to verify that all marriages for which I'm making cakes are approved by God in one fashion or another? If the underlying idea is that God isn't tolerating my approval of sin, then fornication gets the same slapdown as homosexuality. Would this same baker make a cake for a baby shower for an unwed mother? ...
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Old 6th July 2017, 01:03 PM   #158
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Originally Posted by sylvan8798 View Post
I'm sure the Supreme Court won't try to judge the validity of the religious arguments, but it still seems to me like they would be carving out too narrow a niche in terms of what beliefs qualify or don't qualify for this expressive discrimination. For example, the Catholic Church holds that God doesn't recognize a marriage between a Catholic and a non-catholic. If God doesn't recognize their marriage, then they are "living in sin and hell-bound".

Is it up to me as a baker to verify that all marriages for which I'm making cakes are approved by God in one fashion or another? If the underlying idea is that God isn't tolerating my approval of sin, then fornication gets the same slapdown as homosexuality. Would this same baker make a cake for a baby shower for an unwed mother? ...
I think this would circle back more to a question about expectations of due diligence. The baker would not be expected to investigate any marriages, but if information is brought to his attention, the state may support his choice to act on it.

Consistency over time is also probably not important. "I believe this is wrong, but I didn't last week. What does it matter that my religious beliefs are relatively new to me? Are you saying that Born Agains are excluded from these rights?"
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Old 6th July 2017, 01:36 PM   #159
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Originally Posted by Meadmaker View Post
It's a legitimate concern, but one that the Court has already dealt with.

Devil's Advocate alluded to it. Although one can claim that anything you do is some sort of expression, the Supreme Court won't buy the argument. They have standards for what actually counts as expression that is entitled to first amendment protection, and hiring, renting, or plain old commerce (selling off the shelf products) don't count.

In this case, the baker would sell them an off the shelf cake, but not a wedding cake. What's the difference? Same ingredients. Same flavor. Different message. It's the expression inherent in a wedding cake that the baker objected to. Cake decorations really do express thoughts, which is why the cake the couple eventually got had a rainbow on it.

With regard to freedom of expression, the Court has two questions to answer. First, does the cake constitute an expression? I think in this case, they will say yes. Second, is there a compelling government interest in limiting the baker's right of free speech in this case? On that point, I don't know the answer. I think it will be 5-4.

As for religion, there's a similar set of arguments. In the past, the courts have held that race based discrimination laws had sufficient compelling interest to justify limiting religious freedom when, for example, someone wanted a pulled pork sandwich. Some of the justices will undoubtedly say that same precedent applies here, but they might not.

A wedding cake is both "more expressive" and "more religious" (my own terms, not anything out of law) than a pulled pork sandwich. Forcing the baker to prepare a wedding cake is more intrusive than forcing someone to serve a sandwich. They may find that the government's interest is insufficiently compelling to justify limiting the baker's first amendment rights to freedom of speech and/or religion.

I think they will be very mindful of going down the path you fear. They will not want to overturn discrimination laws generally. Thomas might be willing to do that, but even the other conservatives I think would balk at too much of a rollback. I don't think Kennedy would even entertain the idea, and the four liberals definitely wouldn't.

So the question is whether Kennedy, and maybe one or two others, feel that they can carve out a special subset of commerce that is either "more expressive" or "more religious" than ordinary commerce that protects the religious a little bit, while not losing meaningful ground in established areas of discrimination like employment, housing, or plain old retail sales.
The expression angle is a tough one.

For example, the suite I rent to tenants, I personally decorated the bedroom and chose and even built some of the furniture (it's a furnished suite). That feels like I have invested my personal beliefs and expression into it, with an intention for its purpose. It feels like it's much more a product of my expression than a simple cake.

And pulled pork sandwiches may or may not be a demonstration of expression, depending on the chef, right? A po' boy made with ancestral craft and a family recipe dating back to my Creole ancestors perhaps can be refused on 'expression' grounds to any Protestant who took for granted that once again, he could just muscle in on my culture because he has the money to buy it.

This is the source of my concern: the case can generalize quite nicely from what I can see.
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Old 6th July 2017, 05:26 PM   #160
Meadmaker
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Originally Posted by blutoski View Post
The expression angle is a tough one.

For example, the suite I rent to tenants, I personally decorated the bedroom and chose and even built some of the furniture (it's a furnished suite). That feels like I have invested my personal beliefs and expression into it, with an intention for its purpose. It feels like it's much more a product of my expression than a simple cake.

And pulled pork sandwiches may or may not be a demonstration of expression, depending on the chef, right? A po' boy made with ancestral craft and a family recipe dating back to my Creole ancestors perhaps can be refused on 'expression' grounds to any Protestant who took for granted that once again, he could just muscle in on my culture because he has the money to buy it.

This is the source of my concern: the case can generalize quite nicely from what I can see.
Certainly, the case can generalize, either way.

At this point in history, which side of the slope is more slippery?
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