SCOTUS gay rights case

[Oleg]

This again. Corporations are subjected to no specific penalties under the Constitution either. If you're arguing that the owners of corporations are making a bargain with the government to the effect that in exchange for limited liability they agree to forfeit their First Amendment rights, then your theory implies that while Katharine Graham may have been free to go and stand on a soapbox and read the Pentagon Papers aloud to passersby, Richard Nixon was entitled to impose prior restraint because Graham had no right to use her corporation to print 500,000 copies and sell them to the Washington Post's readership. Is that really how you think the law should work? You'd give up a free press, just for the sake of shutting down a few dickish small businesses that no rational gay customers would go to anyway unless they want a cruddy artwork the artist didn't put his heart into?

Why do you keep bringing up the press in these cases? The press holds a special place in the constitution. It is not an apt analogy to someone selling goods and services.

So then this lady can just call herself a journalist and all is good.

 

[Bomb#20]

What's "speech" and what's "stuff" is a continuous spectrum. There will always be disagreement among reasonable people about where to draw that line, and of course no court's caselaw is going to satisfy everyone. I can sympathize with someone arguing that a fancy cake doesn't qualify as "speech", even though it's hard to see how that doesn't clear a bar so low that setting a flag on fire counts as "speech".

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.

By that rule, when you type up a flyer saying Congressman Emmer is a misogynistic jerk who should be voted out of office for treating women as brood mares, that's a protest and clearly political speech. But pay Kinko's to run off the hundred copies you mean to hand out? According to you, making copies for money is not speech, it is commerce, which means it would be constitutional for Congress to pass a law banning Kinko's from doing anything of the sort.

If setting a flag on fire is speech, it's speech that says only "Country X is something to be ashamed of." Well, a wedding cake is an artwork that says "Person Y marrying person Z is something to be celebrated." If you want a cake for your wedding that's just food and not an artwork, you buy one at Safeway and you pay 90% less.

 

[Bomb#20]

This again. Corporations are subjected to no specific penalties under the Constitution either. If you're arguing that the owners of corporations are making a bargain with the government to the effect that in exchange for limited liability they agree to forfeit their First Amendment rights, then your theory implies that while Katharine Graham may have been free to go and stand on a soapbox and read the Pentagon Papers aloud to passersby, Richard Nixon was entitled to impose prior restraint because Graham had no right to use her corporation to print 500,000 copies and sell them to the Washington Post's readership. Is that really how you think the law should work? You'd give up a free press, just for the sake of shutting down a few dickish small businesses that no rational gay customers would go to anyway unless they want a cruddy artwork the artist didn't put his heart into?

Why do you keep bringing up the press in these cases?

I keep bringing it up because people keep bringing up their loony opinion that the First Amendment doesn't apply to corporations. This isn't rocket science. The Washington Post is a corporation.

The press holds a special place in the constitution.

Yes: the same special place speech holds. And freedom of speech doesn't vanish in a puff of corporationhood for exactly the same reason freedom of the press doesn't vanish in a puff of corporationhood: because the constitution doesn't say it does.

It is not an apt analogy to someone selling goods and services.

It is not an analogy of any sort. That New York Times Company v. United States goes away is a logical implication of JH's theory that freedom of speech doesn't apply to corporations because they're afforded no specific protections under the Constitution, not an analogy.

This is an analogy: you might as well propose blowing up a house to take out a terrorist, and when someone points out you'll also kill all the kids in the house, say "Kids are not an apt analogy to terrorists."

 

[Bomb#20]

Every cake is "bespoke" if ordered. That isn't relevant as to whether someone is allowed to deny arbitrary customers service.

Oh, Motte and Bailey, you. This isn't about a burger place saying that Scientologists can't come in for lunch. This is about forcing a person to make a product with a political message that the person disagrees with.

Marriage isn't political.

You and me probably wouldn't care; we'd just want the sale. But free speech and the 1st Amendment means we can't be forced to do it.

So don't have to sell to a black couple then? Where is the line between expression and violating civil rights?

People keep bringing up this specter. It isn't realistic. When some baker says he has a religious objection to helping profane the holy sacrament of marriage, the rest of us have every reason to believe him. We can all read his church's scriptures and see how homophobic they are and how seriously they take obedience to their imagined god's rules about religious rites. But there's nothing in those scriptures or in the traditions of Christianity suggesting their god would have a problem with black people getting married. So if some other baker were ever to claim black marriages are prohibited in his faith, the rest of us would have no trouble figuring out he's lying. Such a guy obviously objects to the people themselves, not to the informational content of the event they're holding.

 

[Jimmy Higgins]

Every cake is "bespoke" if ordered. That isn't relevant as to whether someone is allowed to deny arbitrary customers service.

Oh, Motte and Bailey, you. This isn't about a burger place saying that Scientologists can't come in for lunch. This is about forcing a person to make a product with a political message that the person disagrees with.

Marriage isn't political.

You and me probably wouldn't care; we'd just want the sale. But free speech and the 1st Amendment means we can't be forced to do it.

So don't have to sell to a black couple then? Where is the line between expression and violating civil rights?

People keep bringing up this specter. It isn't realistic. When some baker says he has a religious objection to helping profane the holy sacrament of marriage, the rest of us have every reason to believe him. We can all read his church's scriptures and see how homophobic they are and how seriously they take obedience to their imagined god's rules about religious rites. But there's nothing in those scriptures or in the traditions of Christianity suggesting their god would have a problem with black people getting married. So if some other baker were ever to claim black marriages are prohibited in his faith, the rest of us would have no trouble figuring out he's lying. Such a guy obviously objects to the people themselves, not to the informational content of the event they're holding.

Read up on Loving v Virginia. Religion was very much a cornerstone on prohibitions. Religion was used to back slavery as well.

 

[Jarhyn]

According to you, making copies for money is not speech, it is commerce, which means it would be constitutional for Congress to pass a law banning Kinko's from doing anything of the sort

Half points for being partially correct. It is commerce, but it is not representing the things said as being said by the copyists.

There is a difference between "I am Bob, and I believe what I am saying" in exchange for Jerry's money, versus printing out a hundred copies that say "I am Jerry and I believe what I am saying" by Jerry.

One is paid endorsement.

And no, I don't think paid endorsement should be protected as free speech.

But unendorsed copying? That's just common carrier protections.

One is renting a printer and buying paper and ink, and owning your own message yourself., and the other is renting an image of a whole person and prostitution to make a statement in possible conflict of interest.

You, as sharp as you occasionally seem, should have no trouble understanding this much... So why does it seem so difficult for you to get past?

 

[laughing dog]

What's "speech" and what's "stuff" is a continuous spectrum. There will always be disagreement among reasonable people about where to draw that line, and of course no court's caselaw is going to satisfy everyone. I can sympathize with someone arguing that a fancy cake doesn't qualify as "speech", even though it's hard to see how that doesn't clear a bar so low that setting a flag on fire counts as "speech".

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.

By that rule, when you type up a flyer saying Congressman Emmer is a misogynistic jerk who should be voted out of office for treating women as brood mares, that's a protest and clearly political speech.

It is. But in the real world, there are limits to "free speech". Slander and libel are limits on free speech. Lying under oath in a trial is a limit on free speech. As is speech such as shouting fire in a crowded movie theater or making terroristic threats.

But pay Kinko's to run off the hundred copies you mean to hand out? According to you, making copies for money is not speech, it is commerce, which means it would be constitutional for Congress to pass a law banning Kinko's from doing anything of the sort.

That would not bother me a bit.

If setting a flag on fire is speech, it's speech that says only "Country X is something to be ashamed of." Well, a wedding cake is an artwork that says "Person Y marrying person Z is something to be celebrated." If you want a cake for your wedding that's just food and not an artwork, you buy one at Safeway and you pay 90% less.

I am confident that this SCOTUS will employ such sophistry in the ruling even though I hope they have either the intelligence or the guts to do otherwise.

 

[laughing dog]

Every cake is "bespoke" if ordered. That isn't relevant as to whether someone is allowed to deny arbitrary customers service.

Oh, Motte and Bailey, you. This isn't about a burger place saying that Scientologists can't come in for lunch. This is about forcing a person to make a product with a political message that the person disagrees with.

Marriage isn't political.

You and me probably wouldn't care; we'd just want the sale. But free speech and the 1st Amendment means we can't be forced to do it.

So don't have to sell to a black couple then? Where is the line between expression and violating civil rights?

People keep bringing up this specter. It isn't realistic. When some baker says he has a religious objection to helping profane the holy sacrament of marriage, the rest of us have every reason to believe him.

No we don't.

We can all read his church's scriptures and see how homophobic they are and how seriously they take obedience to their imagined god's rules about religious rites. But there's nothing in those scriptures or in the traditions of Christianity suggesting their god would have a problem with black people getting married. So if some other baker were ever to claim black marriages are prohibited in his faith, the rest of us would have no trouble figuring out he's lying. Such a guy obviously objects to the people themselves, not to the informational content of the event they're holding.

We cannot know whether it is his religion drives his homophobia or if he is using religion to justify his homophobia.

 

[Jimmy Higgins]

Your argument appears to be a red herring anyway -- it doesn't seem to address your issues. You say "Corporations are afforded no specific protections under the Constitution"; but would it actually make the slightest difference to your opinion on the case if Ms. Smith's business weren't incorporated?

It is indicative that the Constitution was primarily interested in assuming priority to the rights provided to the individual (the term individual has expanded since the founding). A company is a piece of paper. It exists in a bureaucratic hemisphere.

Is it okay with you for a website designer who's a sole proprietorship to decline gay wedding jobs? "Why should a gay couple have to drive 100 miles to get to a city to buy a wedding cake?", you say.
Well, the cake guy wasn't incorporated, and yet you evidently want the same restrictions on him as you'd put on the incorporated web designer.

You are hiding in the obfuscated folds of technicalities (much as we expect SCOTUS to do) instead of answering the question. How far does a gay couple have to drive to get a wedding cake before those restrictions being placed upon them by companies is deemed unconstitutional? We've already addressed this with African American Civil Rights. There is this untrue preconception that these pro-gay discrimination arguments are "different" than the ones used to support pro-black discrimination. These arguments aren't different, aren't new, aren't correct or Constitutional (in a US without a pro-Dred Scot decision SCOTUS). We've been here, done that. The difference is SCOTUS is so radicalized that they'll rubber stamp discrimination as a Constitutional Right... because that was why they were put on the court.

Why is there this desire to prioritize the withholding of the privilege to commerce to particular individuals, over those individuals' rights to privileges to commerce in America?

 

[Jimmy Higgins]

We can all read his church's scriptures and see how homophobic they are and how seriously they take obedience to their imagined god's rules about religious rites. But there's nothing in those scriptures or in the traditions of Christianity suggesting their god would have a problem with black people getting married. So if some other baker were ever to claim black marriages are prohibited in his faith, the rest of us would have no trouble figuring out he's lying. Such a guy obviously objects to the people themselves, not to the informational content of the event they're holding.

We cannot know whether it is his religion drives his homophobia or if he is using religion to justify his homophobia.

Reynolds v US already indicates that a person's religion as it applies to behaviors and actions do have limits.

 

[ZiprHead]

This again. Corporations are subjected to no specific penalties under the Constitution either. If you're arguing that the owners of corporations are making a bargain with the government to the effect that in exchange for limited liability they agree to forfeit their First Amendment rights, then your theory implies that while Katharine Graham may have been free to go and stand on a soapbox and read the Pentagon Papers aloud to passersby, Richard Nixon was entitled to impose prior restraint because Graham had no right to use her corporation to print 500,000 copies and sell them to the Washington Post's readership. Is that really how you think the law should work? You'd give up a free press, just for the sake of shutting down a few dickish small businesses that no rational gay customers would go to anyway unless they want a cruddy artwork the artist didn't put his heart into?

Why do you keep bringing up the press in these cases? The press holds a special place in the constitution. It is not an apt analogy to someone selling goods and services.

So then this lady can just call herself a journalist and all is good.

Yeah, that'll fix it all.

 

[ZiprHead]

I am confident that this SCOTUS will employ such sophistry in the ruling even though I hope they have either the intelligence or the guts to do otherwise.

This whole case is bullshit from the start. A religious organization sought out a plaintiff. The plaintiff itself has never had a web design business. There've been no lower court cases on this to create a dispute. It is extremely unusual for a court to choose such a case from amongst the hundreds of others they could have chosen. I think it's a foregone conclusion the Opus Dei members of court will side with the plaintiff.

 

[Oleg]

This again. Corporations are subjected to no specific penalties under the Constitution either. If you're arguing that the owners of corporations are making a bargain with the government to the effect that in exchange for limited liability they agree to forfeit their First Amendment rights, then your theory implies that while Katharine Graham may have been free to go and stand on a soapbox and read the Pentagon Papers aloud to passersby, Richard Nixon was entitled to impose prior restraint because Graham had no right to use her corporation to print 500,000 copies and sell them to the Washington Post's readership. Is that really how you think the law should work? You'd give up a free press, just for the sake of shutting down a few dickish small businesses that no rational gay customers would go to anyway unless they want a cruddy artwork the artist didn't put his heart into?

Why do you keep bringing up the press in these cases? The press holds a special place in the constitution. It is not an apt analogy to someone selling goods and services.

So then this lady can just call herself a journalist and all is good.

Yeah, that'll fix it all.

So why does one business get free speech and the other doesn't?

 

[T.G.G. Moogly]

Reynolds v US already indicates that a person's religion as it applies to behaviors and actions do have limits.

FWIW Jefferson held similarly a very, very, very long time ago.

 

[Jimmy Higgins]

This again. Corporations are subjected to no specific penalties under the Constitution either. If you're arguing that the owners of corporations are making a bargain with the government to the effect that in exchange for limited liability they agree to forfeit their First Amendment rights, then your theory implies that while Katharine Graham may have been free to go and stand on a soapbox and read the Pentagon Papers aloud to passersby, Richard Nixon was entitled to impose prior restraint because Graham had no right to use her corporation to print 500,000 copies and sell them to the Washington Post's readership. Is that really how you think the law should work? You'd give up a free press, just for the sake of shutting down a few dickish small businesses that no rational gay customers would go to anyway unless they want a cruddy artwork the artist didn't put his heart into?

Why do you keep bringing up the press in these cases? The press holds a special place in the constitution. It is not an apt analogy to someone selling goods and services.

So then this lady can just call herself a journalist and all is good.

Yeah, that'll fix it all.

So why does one business get free speech and the other doesn't?

Washington Post wasn’t stopping. gay couples from buying it.

 

[Oleg]

This again. Corporations are subjected to no specific penalties under the Constitution either. If you're arguing that the owners of corporations are making a bargain with the government to the effect that in exchange for limited liability they agree to forfeit their First Amendment rights, then your theory implies that while Katharine Graham may have been free to go and stand on a soapbox and read the Pentagon Papers aloud to passersby, Richard Nixon was entitled to impose prior restraint because Graham had no right to use her corporation to print 500,000 copies and sell them to the Washington Post's readership. Is that really how you think the law should work? You'd give up a free press, just for the sake of shutting down a few dickish small businesses that no rational gay customers would go to anyway unless they want a cruddy artwork the artist didn't put his heart into?

Why do you keep bringing up the press in these cases? The press holds a special place in the constitution. It is not an apt analogy to someone selling goods and services.

So then this lady can just call herself a journalist and all is good.

Yeah, that'll fix it all.

So why does one business get free speech and the other doesn't?

Washington Post wasn’t stopping. gay couples from buying it.

Neither is the cake or website maker. You just can't compel them to promote a political or religous message they disagree with.

 

[Jimmy Higgins]

Yeah, that'll fix it all.

So why does one business get free speech and the other doesn't?

Washington Post wasn’t stopping. gay couples from buying it.

Neither is the cake or website maker. You just can't compel them to promote a political or religous message they disagree with.

Yes they are. They are prohibiting the sale of something that they sell to other people. You asked the difference in the Washington Post case, which isn't remotely related to this, and that is it.

Some people want to withhold their services to some people that come to them to purchase services that they sell. This isn't compelling people to do things that they feel are wrong. Baking a cake for a wedding between a gay couple is the same as baking a cake for a wedding of a not gay couple. Designing a website for a wedding of a gay couple involves pretty much nothing different than a wedding for a not gay couple. The processes are the same. There is no messaging, there is no promotion of any event. It is a website, it is a cake... for a wedding. There is no such thing as a "gay wedding". There is no "gay marriage certificate".

So if they sell cakes for weddings, they need to sell cakes for all weddings.

 

[Oleg]

Yes they are. They are prohibiting the sale of something that they sell to other people.

No, they're not. That's the point. The sexual preference of the customer doesn't matter if they want a generic product. If they want a bespoke product, that's different. Can you force a Jewish baker to make a Hitler cake? Or a "Nickelback is the Best Band E'er" cake?

 

[Tharmas]

Is turnabout really fair play?
I believe this article is germane to the topic of this thread.

Restaurant refuses service to Christian group, citing staff ‘dignity’
The article from the Washington Post (probably behind a pay wall) describes a situation where restaurant management has refused to serve a group of conservative evangelicals because the restaurant staff numbers some gay members and pro-choice women..

A restaurant in Richmond last week canceled a reservation for a private event being held by a conservative Christian organization, citing the group’s opposition to same-sex marriage and abortion rights.

“We have always refused service to anyone for making our staff uncomfortable or unsafe and this was the driving force behind our decision,” read an Instagram post from Metzger Bar and Butchery, a German-influenced restaurant in the Union Hill neighborhood whose kitchen is helmed by co-owner Brittanny Anderson, a veteran of TV cooking shows including “Top Chef” and “Chopped.” “Many of our staff are women and/or members of the LGBTQ+ community. All of our staff are people with rights who deserve dignity and a safe work environment. We respect our staff’s established rights as humans and strive to create a work environment where they can do their jobs with dignity, comfort and safety.”

The Family Foundation is based in Richmond and advocates for “policies based on biblical principles.” It has lobbied against same-sex marriage and abortion rights.

While it’s illegal to discriminate against someone because of their race or religion, the restaurant’s refusal had to do with the group’s actions, said Elizabeth Sepper, a professor at the University of Texas. “It’s about the overall positions and policies the group has taken — it’s not about Christian vs. non-Christian,” she said.

 

[crazyfingers]

You beat me to it Thomas! Of course it's not about religion for the Restaurant. It's about not exposing their staff to hate.