SCOTUS to take the cake

[RavenSky]

Stitching thread together to form a garment isn’t expressive (again assuming no symbols or language). It’s not expressive in the wedding. Stitching thread together to make a garment certainly lacks the skill and talent of custom cake making involved here.

Quite to the contrary - the wedding dress is far more the centerpiece of a wedding. The cake is not even a distant second to the dress. Moreover, the wedding dress requires far more skill than a cake.

 

[RavenSky]

Let’s use an example from the oral argument.

A customer walks into the business and asks for a custom made, rainbow cake. No questions are asked about the cake by the cake maker. No statements are made by the customer as to the use of the cake. Expressive speech?

Customer enters cake shop and requests a custom made, rainbow cake. Customer tells cake maker the cake is for a gay pride parade and/or same sex wedding. Expressive speech?

The latter hypo is most certainly expressive speech by the cake maker.

I disagree and you have provided no argument to support this claim

 

[Elixir]

Stitching thread together to form a garment isn’t expressive (again assuming no symbols or language). It’s not expressive in the wedding. Stitching thread together to make a garment certainly lacks the skill and talent of custom cake making involved here.

Quite to the contrary - the wedding dress is far more the centerpiece of a wedding. The cake is not even a distant second to the dress. Moreover, the wedding dress requires far more skill than a cake.

My wife is (was, now retired) a seamstress and I can definitely support the notion that sewing (especially a custom wedding dress without any pattern) is - or can/should be - an art form. Far more so than throwing some stuff in a bowl, switching on the mixer and tossing it in the oven. Smearing it with colored sugar might involve a little more art - or not, as many decoration techniques are little more than rote repetition.

 

[RavenSky]

The wedding dress is not expressive (again assuming no words or symbols). The talent and skill to create a wedding dress isn’t the same as a custom made, wedding cake. In fact, the dress is assembled by use of thread, sewing machine, sewing the hems together, sewing ruffles, etcetera, at times done by a collection of people paid minimum wage at a sweatshop in Cambodia. That isn’t the type or kind of talent or skill parallel to a custom made wedding cake.

This is truly one of the worst arguments I have ever seen you make. Suspiciously so. Even when I disagree with you (which is most of the time) you make intelligent arguments that are interesting to read. Not this time. I'm not saying this as an ad hom non-argument. I am genuinely suspicious because your claim is so very far below your normal standards.

That said, I guess I will go ahead and walk on in to whatever linguistic trap you are setting.

Even if the dress is "off the rack" - someone designed it. That takes one heck of a lot more artistic skill than baking a cake does.

You attempt the dismiss the dress by belittling its components - the thread and fabric, etc. So a cake is made up of eggs and flour and sugar, etc. My daughter's dress included hand-made lace, and hand-sewn pearls and embroidery. The dress was made in California and the veil was custom made in Miami.

Some wedding dresses are heirlooms. Some are 100% designer custom. Some are designed and sewn by a family member or friend or the bride herself.

Even dresses made in China are substantially hand-sewn because of the beading and embroidery on a typical gown. And even when the dress is substantially made elsewhere, virtually every wedding dress is fitted and altered locally for the individual bride.

Did the baker grow his own wheat for the flour, and raise the chickens that produced the eggs? Even if he did (which he didn't), the work and skill going into a cake does not even remotely compare to that of the dress.

And that doesn't even address the fact that the dress is the centerpiece of the wedding ceremony... not the cake.

Every argument being made for the cake being an "expression" applies a hundred-fold to the wedding dress. That said, none of it is am "expression" of the maker. It is the "expression" of the couple getting married.

 

[Jon Osterman]

I think the cake/dress analogy would be more interesting if it were for a transgender wedding. The dressmaker could claim that their wedding dress couldn't be altered for a more masculine physique. However, in a marriage between two lesbians for example, the provision of the dress (and the artistic process of making it) is presumably identical to a dress made for a heterosexual wedding, and the dressmaker would have no grounds for refusal.

The cake request I think depends on what the couple asked for. Did they has for a specific decoration on the cake? I imagine the baker, for example, being uncomfortable with depicting two men on the cake. However, if the cake were generic, with a generic message, I don't see any grounds for refusal on artistic merit.

 

[James Madison]

I already did, regarding the potential banning of available wedding services for gays in certain areas of the country. You start to comment directly on them below.

Really?! The wedding dress costs much more than the cake, it is a critical staple of the wedding ceremony. Every poor argument used to describe the cake as being expression is applicable to the dress, but nice try.

So flowers, cakes, dresses, jewelry... are all free game thanks to this BS "expression" argument which can be used in areas to ban gays from holding weddings. Granted, this will save them lots of money, but that isn't the point.

You say a lot of things there but don't actually speak to my comment about the baker's expression never coming into play at a wedding. People look at the cake, admire the cake. It is [hulk]Cake pretty![/hulk] not [hulk]Baker must bless this holy matrimony[/hulk].

Really? You think you have a compelling argument on the basis X costs a lot and therefore, expressive speech is involved? Have you pondered the absurdity of the outcomes from such reasoning?

Renting X facility costs a lot of money, therefore, the facility itself is expressive. It’s non-sense but it’s a non-sense outcome of your argument.

The wedding dress is not expressive (again assuming no words or symbols). The talent and skill to create a wedding dress isn’t the same as a custom made, wedding cake. In fact, the dress is assembled by use of thread, sewing machine, sewing the hems together, sewing ruffles, etcetera, at times done by a collection of people paid minimum wage at a sweatshop in Cambodia. That isn’t the type or kind of talent or skill parallel to a custom made wedding cake.

And your point in the opening paragraph was already addressed by my first, most recent post to this thread about the oral arguments (or a post shortly afterward) The existence of competing cake shops limits the deluge of discrimination in rural areas because the lack of any alternative cake shop makes it compelling for the cake shop to comply.


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Why wouldn't the facility also be a work of artistic expression? Ever heard of architecture? Anything made by human hands is a work of art with the artists expressions built into it. From cakes to knives to custom hand built staplers; artistic expression is a natural part of everything man made.

Perhaps, but for purposes of legal doctrine not everything made with human hands is expressive. Some architecture may be expressive, depending on the architecture itself. But as a general matter, architecture is not expressive.

Ar New York City high rise condominium is not expressive speech.

 

[James Madison]

Justice Kennedy, perhaps the single, most important jurist ever in advancing rights for gays and lesbians, in his colloquy decimated the same argument you espoused. “What they are” is their sexual orientation, herea same sex couple, but what they are doing here, choosing to get married, is not their sexual orientation but what they are doing.

Kennedy’s astute legal reasoning illuminated a point often neglected or poorly phrased. Under the CO law, the protected class of sexual orientation is “who” or “what” they are but the act of marriage isn’t sexual orientation, and therefore, Phillips didn’t violate the statute.

Kennedy’s inference, not mine. But his inference is both logical and rational.


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It's a distinction with no difference.

He only objects to the activity because of the orientation. And for nothing else.

He objects to the "what" only because of the "who". And he only objects because of a serious delusion, not anything anyone should take seriously.

It is pure discrimination against the "who" and nothing else.

Despite the twisting that some try to do with it.

Justice Kennedy wasn't engaged in any "twisting." Justice Kennedy's distinction is certainly existential.

Their sexual orientation, which is protected under the Colorado law, is different from what they are doing, getting married. The law protects a characteristic associated with the person, in this instance sexual orientation, and does not protect something they wanted to do at the time, get married, or what they eventually did do, were married.

 

[Elixir]

The wedding dress is not expressive (again assuming no words or symbols). The talent and skill to create a wedding dress isn’t the same as a custom made, wedding cake.

Bullshit.
1) "expressiveness" is entirely subjective.
2) You have no means to quantify "talent and skill"
3) I can assure you that when a custom seamstress spends days designing, producing, fitting, modifying and finishing a wedding dress, the amount of "talent and skill" required dwarfs the requirements of any baking project, by any measure you can propose.

 

[Jimmy Higgins]

Justice Kennedy, perhaps the single, most important jurist ever in advancing rights for gays and lesbians, in his colloquy decimated the same argument you espoused. “What they are” is their sexual orientation, herea same sex couple, but what they are doing here, choosing to get married, is not their sexual orientation but what they are doing.

Kennedy’s astute legal reasoning illuminated a point often neglected or poorly phrased. Under the CO law, the protected class of sexual orientation is “who” or “what” they are but the act of marriage isn’t sexual orientation, and therefore, Phillips didn’t violate the statute.

Kennedy’s inference, not mine. But his inference is both logical and rational.


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It's a distinction with no difference.

He only objects to the activity because of the orientation. And for nothing else.

He objects to the "what" only because of the "who". And he only objects because of a serious delusion, not anything anyone should take seriously.

It is pure discrimination against the "who" and nothing else.

Despite the twisting that some try to do with it.

Justice Kennedy wasn't engaged in any "twisting." Justice Kennedy's distinction is certainly existential.

Their sexual orientation, which is protected under the Colorado law, is different from what they are doing, getting married. The law protects a characteristic associated with the person, in this instance sexual orientation, and does not protect something they wanted to do at the time, get married, or what they eventually did do, were married.

That argument fails under race issues though. It isn't that they are a inter-racial couple, it's that they are getting married. The distinction between couple's right to non-discrimination and couple's right to non-discrimination while getting married lacks intellectual credibility.

 

[Jason Harvestdancer]

There are some odd features to this case.

At the time of the original incident, gay marriage was not recognized by the state of Colorado. Yet he was cited by Colorado for not participating in something Colorado didn't participate in.

He didn't refuse to sell them a cake, he refused to sell them a custom cake.

They didn't take their business elsewhere, they complained to the government.

That last one really confuses me.

 

[James Madison]

Justice Kennedy wasn't engaged in any "twisting." Justice Kennedy's distinction is certainly existential.

Their sexual orientation, which is protected under the Colorado law, is different from what they are doing, getting married. The law protects a characteristic associated with the person, in this instance sexual orientation, and does not protect something they wanted to do at the time, get married, or what they eventually did do, were married.

That argument fails under race issues though. It isn't that they are a inter-racial couple, it's that they are getting married. The distinction between couple's right to non-discrimination and couple's right to non-discrimination while getting married lacks intellectual credibility.

The nature of the protected characteristic doesn't matter for purposes of refuting Kennedy's point. And you have made it very clear you disagree with the distinction Kennedy made but haven't demonstrated why his distinction is fallacious.

To use an example to illustrate Kennedy's point. A person registered as a Democrat is who they are, it is a characteristic they have, the characteristic being they are a registered Democrat. However, the act of voting, even if voting for a Democrat, is not the same as their characteristic of being a registered Democrat.

 

[James Madison]

The wedding dress is not expressive (again assuming no words or symbols). The talent and skill to create a wedding dress isn’t the same as a custom made, wedding cake.

Bullshit.
1) "expressiveness" is entirely subjective.
.

I do not have sufficient time to address all your points, I will do so later, but I want to briefly address number one. Number one is false. "Expressiveness" is not entirely subjective. There are some unequivocal, unambiguous, factual scenarios in which undoubtedly there was express conduct/expressive message.

 

[untermensche]

Justice Kennedy, perhaps the single, most important jurist ever in advancing rights for gays and lesbians, in his colloquy decimated the same argument you espoused. “What they are” is their sexual orientation, herea same sex couple, but what they are doing here, choosing to get married, is not their sexual orientation but what they are doing.

Kennedy’s astute legal reasoning illuminated a point often neglected or poorly phrased. Under the CO law, the protected class of sexual orientation is “who” or “what” they are but the act of marriage isn’t sexual orientation, and therefore, Phillips didn’t violate the statute.

Kennedy’s inference, not mine. But his inference is both logical and rational.


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It's a distinction with no difference.

He only objects to the activity because of the orientation. And for nothing else.

He objects to the "what" only because of the "who". And he only objects because of a serious delusion, not anything anyone should take seriously.

It is pure discrimination against the "who" and nothing else.

Despite the twisting that some try to do with it.

Justice Kennedy wasn't engaged in any "twisting." Justice Kennedy's distinction is certainly existential.

Their sexual orientation, which is protected under the Colorado law, is different from what they are doing, getting married. The law protects a characteristic associated with the person, in this instance sexual orientation, and does not protect something they wanted to do at the time, get married, or what they eventually did do, were married.

It is like saying you won't serve blacks because they are uppity and have a lot of nerve mingling with whites.

You are not against them. You are against their uppity behavior.

Absolute nonsense.

 

[RavenSky]

...their sexual orientation is who they are but a wedding is not their identity but something they “do.” Kennedy stated the refusal of service was on the basis of what they “do” and not who they “are.”

So you are saying that Phillip's religious orientation is who his is but a wedding cake maker is not his identity. It is just something he "does", which then negates any basis for him to refuse to bake a wedding cake.

 

[James Madison]

Justice Kennedy wasn't engaged in any "twisting." Justice Kennedy's distinction is certainly existential.

Their sexual orientation, which is protected under the Colorado law, is different from what they are doing, getting married. The law protects a characteristic associated with the person, in this instance sexual orientation, and does not protect something they wanted to do at the time, get married, or what they eventually did do, were married.

It is like saying you won't serve blacks because they are uppity and have a lot of nerve mingling with whites.

You are not against them. You are against their uppity behavior.

Absolute nonsense.

No, your example isn’t parallel to these facts. First, the word “uppity” is ambiguous, certainly less discernible as an activity whereas the act of getting married is more concrete.

Second, the requested service here was in regards to specific activity, whereas “uppity” isn’t.


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[RavenSky]

But the court took a different tack in a case decided shortly after Chief Justice John G. Roberts Jr. joined the court. A coalition of leading law schools sued to challenge a federal law that required them to give military recruiters equal access on campus, even though the Pentagon then openly discriminated against gays and lesbians. Two lower courts agreed this policy violated their free speech rights because it forced them to engage in conduct that endorsed something they opposed — in this instance, discrimination based on sexual orientation.

The high court disagreed in an opinion written by Roberts. The law "regulates conduct, not speech," he wrote in 2006. It does not "require them to say anything." It just means law schools must open their doors to military recruiters on an equal basis, he said (Rumsfeld vs. FAIR).

The Colorado courts cited this decision and concluded Phillips was not being required to endorse same-sex marriage, but rather to open his doors and bake cakes on an equal basis.

http://beta.latimes.com/politics/la-na-pol-court-religion-gays-20170912-story.html

 

[RavenSky]

The cake request I think depends on what the couple asked for. Did they has for a specific decoration on the cake? I imagine the baker, for example, being uncomfortable with depicting two men on the cake. However, if the cake were generic, with a generic message, I don't see any grounds for refusal on artistic merit.

Mullins and Craig counter that it was certainly hurtful to turn them away, and they dispute their case involves free expression.

"We didn't have a chance to talk about the details of a cake or a message. We were turned away," Mullins said.

"Once he saw who we were," Craig added.

http://beta.latimes.com/politics/la-na-pol-court-religion-gays-20170912-story.html

What is perhaps even more interesting is that the cake was not even for a wedding. The wedding ceremony took place in Massachusetts. The cake was for a celebratory party in Colorado after the fact. So it seems to me to be even further removed from this "expressive act endorsing/condoning a gay marriage" claim.

The baker claims he would happily sell the gay couple a regular cake, just not a wedding cake. Since it wasn't actually for a wedding, what exactly was his objection? How is a wedding cake (and any artistry or skill involved in baking and decorating it) any different for a regular cake vs a wedding cake?

 

[James Madison]

...their sexual orientation is who they are but a wedding is not their identity but something they “do.” Kennedy stated the refusal of service was on the basis of what they “do” and not who they “are.”

So you are saying that Phillip's religious orientation is who his is but a wedding cake maker is not his identity. It is just something he "does", which then negates any basis for him to refuse to bake a wedding cake.

Well, I’m expounding upon Kennedy’s reasoning at oral argument. I hadn’t taken the nuanced view Kennedy espoused, although I did initially espouse a similar position that the baker was refusing service for a reason other than on the basis of a protected characteristic under the law.

However, your reasoning doesn’t lead to the conclusion the baker cannot engage in expressive conduct. After all, expressive speech is predicated upon “doing” something.

And Kennedy’s colloquy is based on the text of the Colorado law. The Colorado law protects the characteristic of sexual orientation, but not the conduct or act of marrying. You can read his remarks on page 86-87 at the link I provided.




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[RavenSky]

...their sexual orientation is who they are but a wedding is not their identity but something they “do.” Kennedy stated the refusal of service was on the basis of what they “do” and not who they “are.”

So you are saying that Phillip's religious orientation is who his is but a wedding cake maker is not his identity. It is just something he "does", which then negates any basis for him to refuse to bake a wedding cake.

Well, I’m expounding upon Kennedy’s reasoning at oral argument. I hadn’t taken the nuanced view Kennedy espoused, although I did initially espouse a similar position that the baker was refusing service for a reason other than on the basis of a protected characteristic under the law.

However, your reasoning doesn’t lead to the conclusion the baker cannot engage in expressive conduct. After all, expressive speech is predicated upon “doing” something.

Yes, the baker cannot be compelled to "celebrate, clap, salute, praise or otherwise support another’s religious event," to use the words from the Becket Fund's amicus brief in this case. It is a good thing the couple never asked the baker to the reception, then, isn't it?

 

[Elixir]

The wedding dress is not expressive (again assuming no words or symbols). The talent and skill to create a wedding dress isn’t the same as a custom made, wedding cake.

Bullshit.
1) "expressiveness" is entirely subjective.
.

I do not have sufficient time to address all your points, I will do so later, but I want to briefly address number one. Number one is false. "Expressiveness" is not entirely subjective. There are some unequivocal, unambiguous, factual scenarios in which undoubtedly there was express conduct/expressive message.

Agreed. The question is whether "this cake" or "that dress" are among those scenarios.