SCOTUS to take the cake

[untermensche]

[

Stunning, vacuous analysis!


Sent from my iPhone using Tapatalk

You mean like simply giving an opinion? You are a defender of insanity.

You are basically saying we should consider opposing the legal rights of others a legitimate form of speech or a legitimate form of religious practice.

The idea is absurd. if people are allowed to discriminate like this any legal right can be opposed on religious grounds.

That the case has any standing simply means it is US courts.

 

[James Madison]

[

Stunning, vacuous analysis!


Sent from my iPhone using Tapatalk

You mean like simply giving an opinion? You are a defender of insanity.

The idea is absurd.

That the case has any standing simply means it is US courts.

Oh no, I'm not deriding anyone, including you, for having an opinion. Many of us venture opinions, but not all opinions are equal. Some opinions are substantive, other opinions lack substance, essentially hey are empty.

I'm observing your last reply to me, while an opinion, was an empty opinion, a bitter diatribe.

You are basically saying we should consider opposing the legal rights of others a legitimate form of speech or a legitimate form of religious practice.

I've quite clearly not made thins argument since "legitimate form of religious practice" is non-existent in SCOTUS jurisprudence, and indeed I've repudiated in several posts any notion such a phrase or standard exists in the law.

It's ironic you accuse me of absurdity and defending insanity, when you persist in treating as real non-existent legal phrases and treat as real non-existent legal tests.

I've merely defended what the law actually says against your "insane" and "absurd" and fictional notions of what the law says.


Sent from my iPhone using Tapatalk

 

[untermensche]

I've quite clearly not made thins argument since "legitimate form of religious practice" is non-existent in SCOTUS jurisprudence, and indeed I've repudiated in several posts any notion such a phrase or standard exists in the law.

Again, you are full of it.

The decisions of the courts are full of opinions on what constitutes legitimate religious practice.

They claim it has something to do with sincerity. A completely arbitrary factor.

Can sincerity not be gained in an instant? What about the so-called "born again" experience?

The decisions the courts make about sincerity are really arbitrary decisions about legitimate practice.

The whole thing is a madhouse. Something from Alice and Wonderland.

 

[James Madison]

I've quite clearly not made thins argument since "legitimate form of religious practice" is non-existent in SCOTUS jurisprudence, and indeed I've repudiated in several posts any notion such a phrase or standard exists in the law.

Again, you are full of it.

The decisions of the courts are full of opinions on what constitutes legitimate religious practice.

They claim it has something to do with sincerity. A completely arbitrary factor.

Can sincerity not be gained in an instant? What about the so-called "born again" experience?

The decisions the courts make about sincerity are really arbitrary decisions about legitimate practice.

The whole thing is a madhouse. Something from Alice and Wonderland.

The decisions of the courts are full of opinions on what constitutes legitimate religious practice

So numerous you've cited none, and the one you did cite didn't say or do what you alleged.

They claim it has something to do with sincerity. A completely arbitrary factor.

Lol...okay, because you say so!

The decisions the courts make about sincerity are really arbitrary decisions about legitimate practice.

No they aren't, and the the above is your attempt to make your crow more palatable.

The whole thing is a madhouse. Something from Alice and Wonderland

Couldn't have said it better myself, which is why I quoted the above as an accurate characterization of your last several posts.




Sent from my iPhone using Tapatalk

 

[untermensche]

Again, you are full of it.

The decisions of the courts are full of opinions on what constitutes legitimate religious practice.

They claim it has something to do with sincerity. A completely arbitrary factor.

Can sincerity not be gained in an instant? What about the so-called "born again" experience?

The decisions the courts make about sincerity are really arbitrary decisions about legitimate practice.

The whole thing is a madhouse. Something from Alice and Wonderland.

The decisions of the courts are full of opinions on what constitutes legitimate religious practice

So numerous you've cited none, and the one you did cite didn't say or do what you alleged.

They claim it has something to do with sincerity. A completely arbitrary factor.

Lol...okay, because you say so!

The decisions the courts make about sincerity are really arbitrary decisions about legitimate practice.

No they aren't, and the the above is your attempt to make your crow more palatable.

The whole thing is a madhouse. Something from Alice and Wonderland

Couldn't have said it better myself, which is why I quoted the above as an accurate characterization of your last several posts.




Sent from my iPhone using Tapatalk

If I say I believe something sincerely how exactly does any court disagree?

With what meter do they judge sincerity?

This whole nonsense about sincerity is just a way to allow prejudices to make law.

 

[LordKiran]

You mean like simply giving an opinion? You are a defender of insanity.

The idea is absurd.

That the case has any standing simply means it is US courts.

Oh no, I'm not deriding anyone, including you, for having an opinion. Many of us venture opinions, but not all opinions are equal. Some opinions are substantive, other opinions lack substance, essentially hey are empty.

I'm observing your last reply to me, while an opinion, was an empty opinion, a bitter diatribe.

You are basically saying we should consider opposing the legal rights of others a legitimate form of speech or a legitimate form of religious practice.

I've quite clearly not made thins argument since "legitimate form of religious practice" is non-existent in SCOTUS jurisprudence, and indeed I've repudiated in several posts any notion such a phrase or standard exists in the law.

It's ironic you accuse me of absurdity and defending insanity, when you persist in treating as real non-existent legal phrases and treat as real non-existent legal tests.

I've merely defended what the law actually says against your "insane" and "absurd" and fictional notions of what the law says.


Sent from my iPhone using Tapatalk

Because you have to draw the line somewhere. Like with drivers licences, or voting age. There's no logical reason for the voting age to be 18 as opposed to 17 or 19, but that line has to exist somewhere and 18 is where we as a society have drawn that line. So when is something that claims religious status not so? When would you consider a claim to religious practice illegitimate as it pertains to law?

 

[blastula]

Well, the other baker was allowed because it was determined it did not discriminate based on creed. Free speech wasn't directly cited as a reason

This may not be accurate. According to petitioner's brief, the commission cited the message as the basis of refusal:

The Commission reasoned

—(1) the bakeries declined the request because they objected to the particular message of the cake
​

This fact is essential to petitioner's argument since the Court has long recognized a free speech right not to be compelled to speak, i.e. cannot be compelled to utter, speak, or make a message. The fact the commission did not explicitly use the magical phrase "free speech" is not dispositive of whether free speech rights could have possibly been implicated if the commission held the other baker had to place the message on the cake.

I mean the decision didn't explicitly reference free speech rights. It's attached to the petition. Charlie Craig and David Mullins v. Masterpiece Cakeshop | American Civil Liberties Union

Citing that case doesn't help.

Well, you most assuredly have not cited to any facts or reasoning demonstrating a reliance on the case doesn't help. Your recent objection is a tenuous notion that unless the words "free speech" are specifically invoked, then there can be no possibly free speech rights involved that cannot form any basis under the law to justify the commissions outcome in regards to the other baker.

But citing to the case does help and it helps precisely because A.) As in the other case, in which the commission didn't find a violation because the bakery's refusal was on the basis of the particular message and they couldn't be compelled to speak, create, or make the message under the 1st Amendment, B.) here the baker engages in expressive conduct when making a custom wedding cake and cannot be forced to engage in expressive conduct under the 1st Amendment.

Whether he has first amendment protection does not depend on what those other cases said. If every case ever in Colorado ruled against bakers in similar cases, would that mean he had no case? It's irrelevant at this point. The Supreme Court isn't going to decide if free speech applies based on that other case.

And again, even if that other case were based on free speech, it was a more obvious instance of explicit speech, than the more ambiguous expression in this case.

And whether he has free speech in his case doesn't depend on the other case.

Undoubtedly but I never alleged otherwise.

You seem to think the other case helps.

The facts of their case make it a weak argument, since there was no specific speech or message or even a design requested by the customers before they were denied.

This reasoning rests upon the false assumption there cannot be a free speech right in the absence of speech or message requested by the customers. The reasoning above is flawed because it fails to take into consideration the existence of free speech rights not related to "speech" or a "message," such as expressive speech. The petitioner's argument is an expressive speech claim and as a result, obsessing over a lack of "speech" or "message" requested by the customer does not, in any measure, weaken or reduce their expressive speech claim.

No, I don't deny there can be protected expressive speech or conduct, but it's a harder case to make than more explicit speech.

You may not be aware, but the whole free speech argument was addressed by the appellate court and rejected. Excerpts:

However, because “t is possible to find some kernel of expression in almost every activity a person undertakes,” City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989), the Supreme Court has rejected the view that “conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea,” FAIR , 547 U.S. at 65-66 (some internal quotation marks omitted). Rather, First Amendment protections extend only to conduct that is “inherently expressive.”
....
The party asserting that conduct is expressive bears the burden of demonstrating that the First Amendment applies and the party must advance more than a mere “plausible contention” that its conduct is expressive. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984)

Your other replies in this thread appear to ignore this point that it's not enough to prove speech is being compelled:

Finally, a conclusion that the Commission’s order compels expressive conduct does not necessarily mean that the order is unconstitutional. If it does compel such conduct, the question is then whether the government has sufficient justification for regulating the conduct. The Supreme Court has recognized that “when ‘speech’ and ‘non-speech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in 31regulating the non-speech element can justify incidental limitations on First Amendment freedoms.”O’Brien, 391 U.S. at 376. In other words, the government can regulate communicative conduct if it has an important interest unrelated to the suppression of the message and if the impact on the communication is no more than necessary to achieve the government’s purpose. Id.; see also Barnes v. Glen Theatre Inc., 501 U.S. 560, 567-68 (1991); Johnson, 491 U.S. at 407

 

[James Madison]

This may not be accurate. According to petitioner's brief, the commission cited the message as the basis of refusal:

The Commission reasoned

—(1) the bakeries declined the request because they objected to the particular message of the cake
​

This fact is essential to petitioner's argument since the Court has long recognized a free speech right not to be compelled to speak, i.e. cannot be compelled to utter, speak, or make a message. The fact the commission did not explicitly use the magical phrase "free speech" is not dispositive of whether free speech rights could have possibly been implicated if the commission held the other baker had to place the message on the cake.

I mean the decision didn't explicitly reference free speech rights. It's attached to the petition. Charlie Craig and David Mullins v. Masterpiece Cakeshop | American Civil Liberties Union

Citing that case doesn't help.

Well, you most assuredly have not cited to any facts or reasoning demonstrating a reliance on the case doesn't help. Your recent objection is a tenuous notion that unless the words "free speech" are specifically invoked, then there can be no possibly free speech rights involved that cannot form any basis under the law to justify the commissions outcome in regards to the other baker.

But citing to the case does help and it helps precisely because A.) As in the other case, in which the commission didn't find a violation because the bakery's refusal was on the basis of the particular message and they couldn't be compelled to speak, create, or make the message under the 1st Amendment, B.) here the baker engages in expressive conduct when making a custom wedding cake and cannot be forced to engage in expressive conduct under the 1st Amendment.

Whether he has first amendment protection does not depend on what those other cases said. If every case ever in Colorado ruled against bakers in similar cases, would that mean he had no case? It's irrelevant at this point. The Supreme Court isn't going to decide if free speech applies based on that other case.

And whether he has free speech in his case doesn't depend on the other case.

Undoubtedly but I never alleged otherwise.

You seem to think the other case helps.

The facts of their case make it a weak argument, since there was no specific speech or message or even a design requested by the customers before they were denied.

This reasoning rests upon the false assumption there cannot be a free speech right in the absence of speech or message requested by the customers. The reasoning above is flawed because it fails to take into consideration the existence of free speech rights not related to "speech" or a "message," such as expressive speech. The petitioner's argument is an expressive speech claim and as a result, obsessing over a lack of "speech" or "message" requested by the customer does not, in any measure, weaken or reduce their expressive speech claim.

No, I don't deny there can be protected expressive speech or conduct, but it's a harder case to make than more explicit speech.

You may not be aware, but this free speech argument was addressed by the appellate court and rejected. Excerpts:

However, because “t is possible to find some kernel of expression in almost every activity a person undertakes,” City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989), the Supreme Court has rejected the view that “conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea,” FAIR , 547 U.S. at 65-66 (some internal quotation marks omitted). Rather, First Amendment protections extend only to conduct that is “inherently expressive.”
....
The party asserting that conduct is expressive bears the burden of demonstrating that the First Amendment applies and the party must advance more than a mere “plausible contention” that its conduct is expressive. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984)

Your other replies in this thread appear to ignore this point that it's not enough to prove free speech is being denied:

Finally, a conclusion that the Commission’s order compels expressive conduct does not necessarily mean that the order is unconstitutional. If it does compel such conduct, the question is then whether the government has sufficient justification for regulating the conduct. The Supreme Court has recognized that “when ‘speech’ and ‘non-speech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in 31regulating the non-speech element can justify incidental limitations on First Amendment freedoms.”O’Brien, 391 U.S. at 376. In other words, the government can regulate communicative conduct if it has an important interest unrelated to the suppression of the message and if the impact on the communication is no more than necessary to achieve the government’s purpose. Id.; see also Barnes v. Glen Theatre Inc., 501 U.S. 560, 567-68 (1991); Johnson, 491 U.S. at 407

I mean the decision didn't explicitly reference free speech rights. It's attached to the petition. Charlie Craig and David Mullins v. Masterpiece Cakeshop | American Civil Liberties Union

Yeah but so what.

Whether he has first amendment protection does not depend on what those other cases said.

Haven't we, collectively, already agreed on this point? Yes, we have.

It's irrelevant at this point. The Supreme Court isn't going to decide if free speech applies based on that other case.

The other case is relevant but not controlling or dispositive for the Court. The Court doesn't have to decide anything based on the other case. Despite this, the case is relevant.

You seem to think the other case helps.

No, I think the other case is relevant. And I understand exactly how petitioner is arguing the case before the Court. The case is relevant.

You may not be aware, but this free speech argument was addressed by the appellate court and rejected. Excerpts:

It is widely accepted in the legal field, when an appellate court decision is appealed to SCOTUS, the lower court argument and decision isn't worth much at the moment.

But I'm aware of the appellate decision.

Your other replies in this thread appear to ignore this point that it's not enough to prove free speech is being denied:

I wouldn't say "ignore," I'm very much aware of the legal principle that rights, including free speech, can be limited when the law is narrowly tailored, there is a compelling interest, or in relation to expressive speech, a sufficient important governmental interest. The argument simply hasn't progressed past the point of whether there is expressive conduct to proceed to discussing under what circumstances even free speech, such as expressive conduct, can be limited if the legal test is satisfied.


Sent from my iPhone using Tapatalk

 

[blastula]

What happens at a mosque is protected by religious freedom. That's not commerce.

Does it have to be commerce? For example, is it legal in your country for churches to have explicit "no blacks" policies and deny blacks into the building? Has there ever been a legal case there where two black people want to get married in a racist church? Did this come up during the time when inter-racial marriage was taboo?

What happens in a church or mosque is about as clearly religious behavior as there is, they can discriminate as they like in their religious practice. There are Christian Identity churches that are avowedly racist and they're protected. Though there may be cases where say a church rents out property to the general public where outcomes could vary.

 

[blastula]

As long as I've started, I'll thrown in my two cents, being somewhat familiar with the bakery business.

Penny #1 - the baker should win this case, on the grounds that a wedding cake is a bespoke item (nobody stocks wedding cakes), and on the grounds that "who baked the wedding cake" is a common question at the reception. This ties the artist to his work, as it were.

Penny #2 - if the baker also routinely offers for sale cakes already prepared, and refused to sell one on hand to the couple after learning they intended to serve it at their reception, and was sued, the baker should lose on "public accommodation" grounds.

(We don't do wedding cakes at all because transportation, setup, and retrieval of the various posts and platters is too big a PITA....)

Subway Sandwich employees make their products on order and they call themselves "sandwich artists," but I think it's a stretch to say they should have exemptions to anti-discrimination laws in whom they sell their products to just because of those facts.

 

[jonatha]

As long as I've started, I'll thrown in my two cents, being somewhat familiar with the bakery business.

Penny #1 - the baker should win this case, on the grounds that a wedding cake is a bespoke item (nobody stocks wedding cakes), and on the grounds that "who baked the wedding cake" is a common question at the reception. This ties the artist to his work, as it were.

Penny #2 - if the baker also routinely offers for sale cakes already prepared, and refused to sell one on hand to the couple after learning they intended to serve it at their reception, and was sued, the baker should lose on "public accommodation" grounds.

(We don't do wedding cakes at all because transportation, setup, and retrieval of the various posts and platters is too big a PITA....)

Subway Sandwich employees make their products on order and they call themselves "sandwich artists," but I think it's a stretch to say they should have exemptions to anti-discrimination laws in whom they sell their products to just because of those facts.

And how often do you get asked which sandwich artist made your tuna on whole wheat?

- - - Updated - - -

And how often do you get asked which sandwich artist made your tuna on wheat?

 

[laughing dog]

Subway Sandwich employees make their products on order and they call themselves "sandwich artists," but I think it's a stretch to say they should have exemptions to anti-discrimination laws in whom they sell their products to just because of those facts.

And how often do you get asked which sandwich artist made your tuna on whole wheat?

- - - Updated - - -

And how often do you get asked which sandwich artist made your tuna on wheat?

I know people who ask "Where did you get that sandwich?" While I have heard people ask who made the wedding cake or where did it come from, I have never heard anyone ask "Which cake artist made your wedding cake?".

blastula's point is well-taken. As I pointed out earlier, surgery is as much an art as it is a science. And people do ask "Who performed your heart bypass?".
Should surgeons be permitted to refuse to perform surgery on someone because it would violate their freedom of expression or religious beliefs?

That is why I hope that the SCOTUS makes a definitive and clear ruling on this issue, regardless of how they find.

 

[Jolly_Penguin]

Should surgeons be permitted to refuse to perform surgery on someone because it would violate their freedom of expression or religious beliefs?

How would that come up? A Jewish or Muslim surgeon being asked to transplant a pig's heart into a human?

 

[Jimmy Higgins]

Should surgeons be permitted to refuse to perform surgery on someone because it would violate their freedom of expression or religious beliefs?

How would that come up? A Jewish or Muslim surgeon being asked to transplant a pig's heart into a human?

Good question. I'm curious how it is applicable to selling cakes myself.

 

[Jolly_Penguin]

Does it have to be commerce? For example, is it legal in your country for churches to have explicit "no blacks" policies and deny blacks into the building? Has there ever been a legal case there where two black people want to get married in a racist church? Did this come up during the time when inter-racial marriage was taboo?

What happens in a church or mosque is about as clearly religious behavior as there is, they can discriminate as they like in their religious practice. There are Christian Identity churches that are avowedly racist and they're protected. Though there may be cases where say a church rents out property to the general public where outcomes could vary.

Really? I wasn't aware of this. There are religious groups that explicitly discriminate against particular races? Are there signs on church buildings saying something along the lines of "No Blacks Allowed"? I know the boyscouts used to (maybe still do) explicitly discriminate against gays.

 

[Jimmy Higgins]

And how often do you get asked which sandwich artist made your tuna on whole wheat?

- - - Updated - - -

And how often do you get asked which sandwich artist made your tuna on wheat?

I know people who ask "Where did you get that sandwich?" While I have heard people ask who made the wedding cake or where did it come from, I have never heard anyone ask "Which cake artist made your wedding cake?".

I remember being at my cousin's wedding. He is Catholic, the Bride is Jewish. It never ever occurred to me to think that the cake maker, it was a nice cake, supported the marriages between Catholics and Jews because their cake was at the wedding. I just thought, wow, nice cake.

Now the Priest and Rabbi... they clearly had to support the inter-religious marriage. And when another cousin read from the Tanakh and the Bride's brother read from the New Testament, clearly they had to support the marriage. The fucking cake?! Never came to my mind to give a fuck what the baker thought.

 

[coloradoatheist]

I know people who ask "Where did you get that sandwich?" While I have heard people ask who made the wedding cake or where did it come from, I have never heard anyone ask "Which cake artist made your wedding cake?".

I remember being at my cousin's wedding. He is Catholic, the Bride is Jewish. It never ever occurred to me to think that the cake maker, it was a nice cake, supported the marriages between Catholics and Jews because their cake was at the wedding. I just thought, wow, nice cake.

Now the Priest and Rabbi... they clearly had to support the inter-religious marriage. And when another cousin read from the Tanakh and the Bride's brother read from the New Testament, clearly they had to support the marriage. The fucking cake?! Never came to my mind to give a fuck what the baker thought.

If the Jewish side of that wedding had to be kosher and the wedding party required cakes to be Kosher would you consider a bakery that doesn't provide Kosher cakes as discriminating against the Jewish religion?

 

[Jimmy Higgins]

I remember being at my cousin's wedding. He is Catholic, the Bride is Jewish. It never ever occurred to me to think that the cake maker, it was a nice cake, supported the marriages between Catholics and Jews because their cake was at the wedding. I just thought, wow, nice cake.

Now the Priest and Rabbi... they clearly had to support the inter-religious marriage. And when another cousin read from the Tanakh and the Bride's brother read from the New Testament, clearly they had to support the marriage. The fucking cake?! Never came to my mind to give a fuck what the baker thought.

If the Jewish side of that wedding had to be kosher and the wedding party required cakes to be Kosher would you consider a bakery that doesn't provide Kosher cakes as discriminating against the Jewish religion?

Like I said, the cake maker never came to mind.

 

[coloradoatheist]

If the Jewish side of that wedding had to be kosher and the wedding party required cakes to be Kosher would you consider a bakery that doesn't provide Kosher cakes as discriminating against the Jewish religion?

Like I said, the cake maker never came to mind.

Except the bridge and groom would have had to make the decision whether or not to get a Kosher cake. They might have even wanted to get a gluten free cake.

 

[Jimmy Higgins]

Like I said, the cake maker never came to mind.

Except the bridge and groom would have had to make the decision whether or not to get a Kosher cake. They might have even wanted to get a gluten free cake.

Interesting. Because the issue never came to mind to think about what the baker of their cake thought.