1. Did she refuse service? No. She was ready, willing and able to provide the bible-shaped cake he requested. What she was not willing to do was to write a specific message on the cake because she found it obscene.
Likewise, a New Jersey ShopRite refused to write "Happy Birthday Adolf Hitler Campbell" on a cake and Hands On Originals refused to print the Lexington Pride Festival logo on t-shirts. There is a strong argument for the separation of the product from the words/pictures on the product in these and many similar cases.
Another example in a different context would be t-shirts with obscene or political messages on them - do venues have the right to forbid "message" t-shirts? Again, there is a distinction made between the product and the words/images printed on the product.
It is only plausible IF we accept the premise that the product and the words/images printed on the product are one and the same.
Let’s be clear here, Alito’s comparison is in regards to speech and the commission’s treatment of the speech involved in both cases (in which he alleges viewpoint discrimination). This means Alito’s thought process is based on Phillips engaging in speech through expressive conduct.
Yes, I'm clear as to where he thinks he is going with it. He is trying to say that a "cake with written message/images on it" is exactly the same thing as a "cake with no written message on it".
The problem will be if they all choose to make that leap, they will be saying that "the product" is exactly the same as "the product plus the writing/images on it" - in which case, not only would Marjorie Silva be forced to write hateful anti-gay messages for William Jack, but Hands On Originals and all of the small Christian shops that are currently allowed to NOT print same-sex marriage or gay pride messages on their products will be forced to do so going forward.
Or conversely, SCOTUS will be gutting public accommodation laws just the same as ruling that "fondant is expression" without reference to the Silva case.
Alito’s inquiry is a entirely focused upon how the commission treated speech in two separate cases. As a result, the fact Marjorie wouldn’t ordinarily sell the requested cake to anyone is great for Marjorie to escape unscathed before the commission but tells us very little as to whether the commission is engaged in discriminatory treatment of speech, which is Alito’s focus.
If Alito's focus is the CCRC's potential anti-christian bias, then I think the test would be simple (though likely beyond the scope of what SCOTUS would normally do, I think) - has the CCRC ever ruled against a business owner in a case similar to Hands On Printing? In short, does the CCRC have any sort of history of ruling against Christians in cases involving written words on the product.
If Alito is trying to prove bias on the part of the commission, he can't do that via circular reasoning.
For Alito, both cases involved a message about the topic of same sex marriage, but in where a specific negative view of same sex marriage was requested, the commission did not find a violation of the law but where a positive message was involved, the commission found the law was violated. It’s this ostensible viewpoint discrimination Alito is focused upon.
You (or Alito) is assuming the conclusion. A cake in and of itself is not a positive or negative message on the topic of same-sex marriage.
In order to show the bias you think Aliton is looking for, they would need to find a case similar to Hands On Printing wherein the commission ruled against the Christian shop owner for refusing to print a pro-same-sex-marriage message. A few anti-Christian comments in this hypothetical other ruling would be helpful too.
Ravensky,
You are arguing alternative facts. She did refuse service. She admitted to refusing service. She doesn’t deny she refused service. The commission report is premised upon a refusal of service. This dialogue cannot progress if you persist to repeat this assertion which is contrary to the facts.
No. She was ready, willing and able to provide the bible-shaped cake he requested. What she was not willing to do was to write a specific message on the cake because she found it obscene.
He didn’t request a bible shaped cake. Your recitation above is not consistent with the facts. The customer’s request was a bible shaped cake with symbols and bible verses. The customer refused to make the cake requested because she wasn’t willing to place the symbols and verses on the cake. She refused service, i.e, she refused to make the requested custom cake.
Now, what your reply focuses upon is a justification for her refusal to make the cake requested.
There are two points here. 1.) Refusal of service by not making the cake requested and 2.) The reason to refuse to make the kind of cake requested.
Marjorie never argued she didn’t refuse service, wise choice since logically she did by not making the requested cake. The commission did not find as a fact that Marjorie had not refused service, another wise choice since the facts demonstrate she refused to make the requested cake.
Marjorie justified her refusal on the basis of speech and the commission ruled her refusal was on the basis of speech.
Likewise, a New Jersey ShopRite refused to write "Happy Birthday Adolf Hitler Campbell" on a cake and Hands On Originals refused to print the Lexington Pride Festival logo on t-shirts. There is a strong argument for the separation of the product from the words/pictures on the product
These are examples of 1.) service refused to the request and 2.) the reason for refusal was speech.
Yes, I'm clear as to where he thinks he is going with it. He is trying to say that a "cake with written message/images on it" is exactly the same thing as a "cake with no written message on it".
Yes. He’s assuming custom cake making, of the kind Phillips does, is expressive conduct, therefore speech. It’s on the basis of this assumption he raises the question of viewpoint discrimination in application of the law.
If Alito's focus is the CCRC's potential anti-christian bias...
His focus is viewpoint discrimination, which is prohibited under the 1st Amendment speech clause. Here’s what his argument would look like under viewpoint discrimination jurisprudence. So, the topic or subject is gay marriage. Two points of view is to favor same sex marriage and the other view is to oppose same sex marriage. Those are two points of view on the subject of same sex marriage.
The customer wanted a message denouncing same sex marriage in Marjorie’s case, and Marjorie’s personal belief discrimination against gays is wrong. In Phillip’s case, (assumed) expressive message in a custom cake for a same sex wedding and refusal because of his personal belief same sex marriage is wrong. Two viewpoints, two competing beliefs, on one topic of same sex marriage.
The prevailing viewpoint, when the commission has applied the law, is for the pro-same sex marriage view to prevail (Phillips case) and Marjorie’s personal belief, but the anti-same sex marriage view to lose, Marjorie’s case involving customer with requested anti-same sex marriage and Phillips personal belief same sex marriage is wrong.
By Alito’s logic, the commission is picking the winner and loser based on the viewpoint, pro-same sex marriage wins but anti-same sex marriage loses.
That’s the argument under view point discrimination jurisprudence.
The problem will be if they all choose to make that leap, they will be saying that "the product" is exactly the same as "the product plus the writing/images on it" -
Right. If the Court concludes expressive conduct was present, then Alito can argue for viewpoint discrimination. Here’s why Alito wants this argument.
The Court could do the following:
1. Fine, it’s speech, but the State has a compelling interest, narrowly tailored, and has satisfied strict scrutiny. Therefore, baker loses or
2. Fine, it’s speech, but it’s expressive conduct, the law regulates non-expressive conduct, the law is neutral on its fact towards expressive conduct, and therefore, the more forgiving O’Brien test is required. The state law meets the O’Brien test. Ergo, baker loses
But Alito May have a joker card to play if the Court goes either one or two above, which is:
1. Bravo! Court found speech was involved, and the law satisfies strict scrutiny, but the commission applied the law discriminatorily on the basis of the viewpoint. Therefore, law survives but baker wins here or
2. Bravo, it’s expressive speech, the law survives the O’Brien test, but the law was applied to discriminate against speech. Ergo, law survives, but baker wins here.
In other words, Alito sense the baker could still lose if speech/expressive conduct is present. So, Alito provides a possible winning, river card of the commission applying the law on the basis of discriminating against viewpoints.
FYI, I’d be shocked if Alito’s outcome is followed.
Sent from my iPhone using Tapatalk
)
