SCOTUS gay rights case

[Bomb#20]

...Litigants can insist until they're blue in the face that some economic activity is a "business" because the state says so, and is "public" because the state says so, but none of that will magically transform the private citizens engaging in that economic activity into a state.

And neither will that transform the agreement the business made to serve the whole public,

I take it that's one of those agreements like our "agreement" to obey the King and our "agreement" to maximize the utility of the least well-off person, where the agreeing part was by proxy, performed by Hobbes or Rawls on our behalf, acting in the philosopher's role as loco parentis?

nor the real responsibility they have to do so on a philosophical level.

Is that the philosophical level where your philosophy identifies an objective, intrinsic, cut-nature-at-its-joints, reproducible-by-other-scientists, distinction between a "business" and a "job"? Or is that the philosophical level where your philosophy identifies a "real responsibility" all workers have "to serve the whole public" and do the bidding of any random member of the public who'd like to be their boss?

What is clear is that some folks wish to have a public facing business with an open door and then pick and choose who they do business with, throwing fair practice out the window.

What is also clear is that some folks wish to have a public facing business with an open door and then pick and choose which types of jobs they will do, and some folks who don't like the choice will try to coerce others into doing their bidding by making unsubstantiated accusations about the criteria they're using to make their choice.

Anyone who rides in on that horse can ride out on a rail for all I care.

Get on the rail then. You rode in on that horse the day you claimed it was okay for a person with a public facing write-your-message-for-you business to refuse to write "Judea and Samaria are Eretz Israel" because it was "Libel" against Arabs.

 

[Jarhyn]

...Litigants can insist until they're blue in the face that some economic activity is a "business" because the state says so, and is "public" because the state says so, but none of that will magically transform the private citizens engaging in that economic activity into a state.

And neither will that transform the agreement the business made to serve the whole public,

I take it that's one of those agreements like our "agreement" to obey the King and our "agreement" to maximize the utility of the least well-off person, where the agreeing part was by proxy, performed by Hobbes or Rawls on our behalf, acting in the philosopher's role as loco parentis?

nor the real responsibility they have to do so on a philosophical level.

Is that the philosophical level where your philosophy identifies an objective, intrinsic, cut-nature-at-its-joints, reproducible-by-other-scientists, distinction between a "business" and a "job"? Or is that the philosophical level where your philosophy identifies a "real responsibility" all workers have "to serve the whole public" and do the bidding of any random member of the public who'd like to be their boss?

What is clear is that some folks wish to have a public facing business with an open door and then pick and choose who they do business with, throwing fair practice out the window.

What is also clear is that some folks wish to have a public facing business with an open door and then pick and choose which types of jobs they will do, and some folks who don't like the choice will try to coerce others into doing their bidding by making unsubstantiated accusations about the criteria they're using to make their choice.

Anyone who rides in on that horse can ride out on a rail for all I care.

Get on the rail then. You rode in on that horse the day you claimed it was okay for a person with a public facing write-your-message-for-you business to refuse to write "Judea and Samaria are Eretz Israel" because it was "Libel" against Arabs.

When the policy is "we print nothing about Israel whatsoever" it's pretty easy to have a blanket policy.

By the business either refusing to take any side (the safest path) or by accepting all sides (and so truly accepting common carrier protections), they can be safe from whatever firestorm they choose by whichever policy.

What is clear is that businesses have a responsibility to fair practice.

You're trying to gin up a situation where someone has already stuffed their foot in their mouth and opened themselves up to either be hypocrites or say something they don't want to.

Their clear path forward is to just as.it they fucked up, apologize, set their policy in a sane way going forward, and agree to settle on their liability for violating fair practice.

Instead, businesses are deciding to not serve the public equally and to operate in a neutral manner, and doubling down on ASSHOLE.

 

[jab]

It isn't hard if you try. Setting a flag on fire is a protest - clearly political speech. Making ______ (fill in the blank) for money is not speech, it is commerce.

so Michaelangelo's painting the Sistine Chapel was not speech, but commerce, Madonna's "Like a Virgin' video was not speech, but commerce.

Those are both examples of art as expression... for money. It is speech. Making a pretty cake to sell is baking and decoration, not speech.

Michelangelo was decorating the Sistine Chapel, following his client's wishes.

 

[Jarhyn]

It isn't hard if you try. Setting a flag on fire is a protest - clearly political speech. Making ______ (fill in the blank) for money is not speech, it is commerce.

so Michaelangelo's painting the Sistine Chapel was not speech, but commerce, Madonna's "Like a Virgin' video was not speech, but commerce.

Those are both examples of art as expression... for money. It is speech. Making a pretty cake to sell is baking and decoration, not speech.

Michelangelo was decorating the Sistine Chapel, following his client's wishes.

Didn't he also draw a painting of one of his patrons getting bit in the dick by a snake?

 

[Jimmy Higgins]

It isn't hard if you try. Setting a flag on fire is a protest - clearly political speech. Making ______ (fill in the blank) for money is not speech, it is commerce.

so Michaelangelo's painting the Sistine Chapel was not speech, but commerce, Madonna's "Like a Virgin' video was not speech, but commerce.

Those are both examples of art as expression... for money. It is speech. Making a pretty cake to sell is baking and decoration, not speech.

Michelangelo was decorating the Sistine Chapel, following his client's wishes.

The Sistine Chapel has a message of representing Christianity. A wedding cake... has a message of wedding cake... probably.

 

[Jimmy Higgins]

What's "private discrimination"? Is "private discrimination" against individuals even possible to be done by a business open to the public?
That's where there's no unanimity among judges.

Absent a public accommodation law, yes. Public accommodation laws were conceived to prohibit certain kinds of private discrimination. The point, though, is the legislature had to pass legislation to prohibit certain kinds of private discrimination since such discrimination was not by default unlawful.

Yeah... and by the 1960s we (the courts and some government) saw a flaw in that. It seems that we are seeing an argument that this is okay because it ain't blacks, just gays.

 

[Jimmy Higgins]

It isn't hard if you try. Setting a flag on fire is a protest - clearly political speech. Making ______ (fill in the blank) for money is not speech, it is commerce.

so Michaelangelo's painting the Sistine Chapel was not speech, but commerce, Madonna's "Like a Virgin' video was not speech, but commerce.

Those are both examples of art as expression... for money. It is speech. Making a pretty cake to sell is baking and decoration, not speech.

a very narrow definition of "art as expression". So what about photography, quilts, clothing design, knitting, crochet, embroidery, other "handicrafts"?

When I made our wedding cake... the whole expression was "pretty", "elegant", "sharp", "clean". I assure you, I achieved none of those goals, but the one thing it clearly didn't express was the sexual orientation of the couple getting married.

Where do you draw the line. and then, of course, there's the issue of web design.

I draw the line at expression. Actual expression. If I show a picture of a wedding cake, it'd be near impossible to tell whether the couple was gay or straight.

And the “actual expression” in the Jackson Pollock art work below is what?

The expression is what comes across to the viewer. When walking in a bakery, I've yet to see expression in a croissant. And those take more time to make (if you include cooling down in between foldings). The wedding cakes I've seen, have that expression of "expensive wedding cake", and never seem to imply whether the baker approves of the marriage. My catholic cousin married a Jewish woman... and by looking at the wedding cake, I had no idea if the baker knew there was a mixed religion thing going on, and if they did, whether they approved of it.

 

[Elixir]

I've yet to see expression in a croissant.

Hard to believe.
When the ends curl upward, that’s a smile. When they curl downward, that’s a frown.

 

[Jimmy Higgins]

I've yet to see expression in a croissant.

Hard to believe.
When the ends curl upward, that’s a smile. When they curl downward, that’s a frown.

Croissants are flakey and therefore unreliable to ever maintain an expression.

 

[Elixir]

Croissants are flakey and therefore unreliable to ever maintain an expression.

What a half baked excuse.

 

[Jimmy Higgins]

Speaking of butter, the expression thing reminds me of Richard Jeni's thing on "I Can't Believe It's Not Butter" during his Bill the Belching Gourmet (late night cooking program for men) bit.

I can't believe its not butter....what the heck is that? You could call anything that if you are stupid enough. Hey look, a lawn chair... I can't believe its not butter! Why? Because I'm stupid!

One could consider anything expression, as long as they were willing to make that argument, regardless how stupid it was. Like a fucking cake... with no words, no specific decorations, just batter baked at a temperature (which isn't set by expression) and then coated in sweet goo. EXPRESSION!!!

Get a sheet cake with the message "happy birthday" on it. Person getting the cake going to think "Wow... the bakery really cares about me!"

And then get derailed into a Jackson Polluck painting. Where people in the know on art would be able to see meaning... where as bakers... not seeing a meaning in the cake. Can see craft, but not meaning.

 

[Jimmy Higgins]

Where do you draw the line. and then, of course, there's the issue of web design.

I draw the line at expression. Actual expression. If I show a picture of a wedding cake, it'd be near impossible to tell whether the couple was gay or straight.

And the “actual expression” in the Jackson Pollock art work below is what?

The expression is what comes across to the viewer. When walking in a bakery, I've yet to see expression in a croissant. And those take more time to make (if you include cooling down in between foldings). The wedding cakes I've seen, have that expression of "expensive wedding cake", and never seem to imply whether the baker approves of the marriage.

*looks up* Mmm-hmmm. Let's see what a Colorado Court of Appeals just ruled.

62 The three cases cited by Masterpiece and Phillips arose out of requests to purchase cakes from three different bakeries. Each request was made by the same customer, William Jack, in March 2014. In each instance, Jack requested similar cakes: The Charging Party visited the Respondent’s store . . . and was met by [a pastry chef]. The Charging Party asked [the chef] for a price quote on two cakes made in the shape of open Bibles. The Charging Party requested that one of the cakes include an image of two groomsmen, holding hands in front of a cross, with a red “X” over the image. The Charging Party also requested that each cake be decorated with Biblical verses. On one of the cakes, he requested that one side read “God hates sin. Psalm 45:7” and on the opposite side of the cake “Homosexuality is a detestable 29 sin. Leviticus 18:2 [It appears the intended reference was Leviticus 18:22].” On the second cake, which he requested include the image of two groomsmen with a red “X” over them, the Charging Party requested that it read: “God loves sinners,” and on the other side “While we were yet sinners Christ died for us. Romans 5:8.” The Charging Party did not state that the cakes were intended for a specific purpose or event.

63 In each instance, the bakery declined to make the requested cakes. Jack filed a charge of discrimination with the CCRD, asserting that the denial was based on his religious beliefs. In each case, the CCRD found the bakery did not discriminate based on Jack’s religious beliefs, “but instead refused to create cakes for anyone, regardless of creed, where a customer requests derogatory language or imagery.”

64 Contrary to the arguments made by Masterpiece and Phillips, we conclude that the outcomes in Jack’s cases were not due to whether the proprietor or the Commission viewed the message as objectionable based on its religious content but, rather, because the cakes required the bakers to create a message that amounted to compelled speech.

Imagine that, finding speech as expression.

As previously noted, Phillips testified that a pink cake with blue frosting has no intrinsic meaning and does not express any message. Similarly, Masterpiece and Phillips concede they would gladly prepare and sell a custom pink cake with blue frosting to members of the general public. Given the depth and sincerity of Phillips’ religious beliefs concerning transgender identity, it is clear that he would not agree to make a pink and blue cake if he thought it was inherently associated with a pro-transgender message.

...

As Masterpiece and Phillips argue, in this specific context the pink cake with blue frosting may be perceived as conveying information. But the information is not derived from any artistic details or message created by the baker. Rather, the message in that context would be generated by the observer based on their understanding of the purpose of the celebration, knowing the celebrant’s transgender status, and seeing the conduct of the persons gathered for the occasion.

Anyone that writes satire knows this!

So long story not quite as long, the pink frosting, blue cake isn't expression of the baker.

We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to 39 an observer would not be attributed to the baker. Thus, CADA does not compel Masterpiece and Phillips to speak through the creation and sale of such a cake to Scardina.

Regarding the baker's right to their own religion.... as a business.

In the context of providing public accommodations, however, a proprietor’s actions based on their religious beliefs must be considered in light of a customer’s right to be free from discrimination based on their protected status. The Supreme Court has long held that the Free Exercise Clause does not relieve a person from the obligation to comply with a neutral law of general applicability. Emp. Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872, 879 (1990). Both our state and federal courts have concluded that CADA is a neutral law of general applicability. See, e.g., 303 Creative, 6 F.4th at 1183-88; Craig, ¶¶ 86-89. For a neutral law of general applicability to survive a free exercise challenge, it must be rationally related to a legitimate state interest. See 303 Creative, 6 F.4th at 1183-88; Craig, ¶¶ 79, 86-89.

So until we consider transgender to be delinquents or degenerates, that'll be hard to demonstrate until SCOTUS rulings discrimination is free speech.

 

[Jimmy Higgins]

Yes this is a transgender case, but there are obvious overlaps here.

 

[Gun Nut]

So if I am a Jewish sculptor and a Neo Nazi wants to hire me to make a statute of Hitler, Goebbels, and Himmler I can not refuse?

Not if you have previously made statues of Hitler, Goebbels, and Himmler for non-Nazi customers, no, you can't refuse.

If you haven't, then yes, you can refuse.

So, if you are commissioned to, say, draw a political cartoon where Hitler and Trump are eating Big Macs and you do it, then you can't refuse any cartoon that involves Hitler or Trump, since you drew them in a cartoon before?

Meanwhile in the world of throw every hypothetical at the wall and hope it sticks...

So, what was the answer to my question?

If I understand bilby's point, if you've taken a political cartoon commission that involves Hitler and/or Trump, you must take all such commissions. You have provided the 'I make political cartoons on commission' product, have you not?

The point is, in general, people aren't allowed to withhold services they offer to specific people. This is about to change thanks to a radical SCOTUS that feels the freedom to discriminate a client is more important than the right not be discriminated against.

What an "artist" may or may not do with their trademarks and / or "style" (which cannot be trademarked) is almost completely up to them. Simply stating that a "subject", "message" or, "style" is antithesis to their artistic approach is sufficient to deny service.
Such is not the case for services that do not involve the expression (copyright) of a trademark.. in that case (such as a service that repairs computers) where it would be difficult to articulate any artistic expression in the delivery of the service.
"Art" is speech. One cannot be compelled to engage in any particular speech, except in extremely rare circumstances where the 1st or 5th amendments do not apply.