SCOTUS to take the cake

[Jason Harvestdancer]

Don't be dense. Just make whatever point you want to make.

The point is "why is it unreasonable?"

 

[sharon45]

It ought to be reasonable, since Joe is an obvious snub of Joseph.

 

[Jimmy Higgins]

Don't be dense. Just make whatever point you want to make.

The point is "why is it unreasonable?"

With his attempt to demonstrate hypocrisy failed, our poster resorts back to making bad arguments.

 

[Jason Harvestdancer]

The point is "why is it unreasonable?"

With his attempt to demonstrate hypocrisy failed, our poster resorts back to making bad arguments.

There is a point to the question, just not one you would want to see made.

 

[laughing dog]

With his attempt to demonstrate hypocrisy failed, our poster resorts back to making bad arguments.

There is a point to the question, just not one you would want to see made.

Instead of failing at the Socratic method, why not simply make the actual point?

 

[sharon45]

There is a point to the question, just not one you would want to see made.

Instead of failing at the Socratic method, why not simply make the actual point?

The point was already made clear, it just hasn't been respectfully answered or countered yet.

 

[James Madison]

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-111_f314.pdf

I’ve posted the link to the transcription of the oral arguments.

The issues debated involve some of the same issues debated here.

1. Is custom cake making expressive speech?
2. Is custom cake making expressive speech when done for the purpose of the cake to be used in an expressive event?
3. If yes to either one or two, where is the line drawn? Are chefs engaged in expressive speech? Hair stylists?
5. Assuming expressive speech is present, is strict scrutiny the standard to be applied or the more lenient O’Brien test?
6. Whether, under these facts, the speech/religious beliefs of the baker can be accommodated by the fact there were/are dozens of other bakeries to make the cake?
7. Was the public accommodation law applied equally or applied in a disparate manner on the basis of the religious belief/speech?

I can see the Court, with Kennedy, espousing an opinion in favor of the cake maker on the basis of the context presented by the facts of the case.

It’s my impression, Kennedy wants to provide relief for the cake maker but without eviscerating public accommodation laws. The specific facts of this case allow him the opportunity to meet such an outcome.


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[Jimmy Higgins]

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-111_f314.pdf

I’ve posted the link to the transcription of the oral arguments.

The issues debated involve some of the same issues debated here.

1. Is custom cake making expressive speech?
2. Is custom cake making expressive speech when done for the purpose of the cake to be used in an expressive event?
3. If yes to either one or two, where is the line drawn? Are chefs engaged in expressive speech? Hair stylists?
5. Assuming expressive speech is present, is strict scrutiny the standard to be applied or the more lenient O’Brien test?
6. Whether, under these facts, the speech/religious beliefs of the baker can be accommodated by the fact there were/are dozens of other bakeries to make the cake?
7. Was the public accommodation law applied equally or applied in a disparate manner on the basis of the religious belief/speech?

I can see the Court, with Kennedy, espousing an opinion in favor of the cake maker on the basis of the context presented by the facts of the case.

It’s my impression, Kennedy wants to provide relief for the cake maker but without eviscerating public accommodation laws. The specific facts of this case allow him the opportunity to meet such an outcome.

Kudos for all that via Tapatalk!

I find this very interesting.

JUSTICE KAGAN: Not the same. Howabout if he objected to an interreligious?
MS. WAGGONER: Similar case, assumingthat the objection is to -*
JUSTICE KAGAN: Similar to what?
MS. WAGGONER: Similar to Mr.Phillips. That would be protected under theCompelled Speech doctrine if the objection isto the message being conveyed in thatexpression.

People aren't born gay argument. Therefore, a cake for their wedding is a wedding of approval is okay to block because they are being discriminated over who they choose to be.

Gorsuch even follows up on it.

JUSTICE GORSUCH: Well, actually,counsel, that seems to be a point ofcontention. The state seems to concede that ifit were the message, your client would have aright to refuse. But if it -- the objection isto the person, that's when the discriminationlaw kicks in. That's footnote 8 of theColorado Court of Appeals' decision. I knowyou know this.So what do you say to that, thatactually what is happening here maysuperficially look like it's about the messagebut it's really about the person's identity?

General Francisco steps in it with Sotomayor's trap on isolated populations and he says, 'well in that case the government can have a heightened protection'.

The liberals and Kennedy (even Gorsuch raises it) are asking, where is the line drawn? Is capitalism art just because a person says it is?

Alito goes the extra mile to defend the baker:

Alito: So somebody comes to one of theseservices and says: You know, we're not goodwith words, but we want you to write wedding -*a vow -- vows for our wedding, and the generalidea we want to express is that we don'tbelieve in God, we think that's a bunch ofnonsense, but we're going to try to live ourlives to make the world a better place. Andthe -- the person who is writing this isreligious and says: I can't lend my owncreative efforts to the expression of such amessage.But you would say, well, it's too badbecause you're a public accommodation. Am Iright?

Gorsuch goes the Red Cross v KKK wrote... well, you made a cake for the Red Cross, why not the KKK? I mean you only disagree with the "message". *rolls eyes* Murders of black civil right activists too fuckwad.

Definitely a split decision. The trouble is, how could a 5-4 go against the State of Colorado without establishing some standard of acceptable discrimination against gays and whomever is deemed discriminatable down the road? SCOTUS hates micromanaging local organization decisions.

This court said bribery is free speech, corporations are people, so I have no problem believing they can say that capitalism is "art".

Can the state compel artisans to provide a product against their religious beliefs. The big issue against the pro side that it can is that the Government has done such a good job of providing religious institutions asterisks to get around restrictions on 'religious based' bigotry. Granted, in general, those are religious institutions under a churchish umbrella. I disagree with Alito talking about religious colleges not being "churches" as that is really being willfully ignorant. I went to a Catholic College, and while it was a College and not a church (it did have a Church), it was still under the control of the Catholic Church. This would place religious protections from the State and Feds to individual citizens, which seems wrong.

In general, if you sell a product, that is a business. You need to meet requirements in order to take advantage of plenty of business based benefits, such as personal liability. This is the price of doing business in a nation with freedom.

I'm interested in what James Madison thinks the fine tuned solution is here. I don't see it. The only possible option is the SCOTUS punt back to the Appeals Court.

 

[untermensche]

What's next?

What will be the next form of discrimination the Republican leaning part of the Court allows?

 

[southernhybrid]

I agree with Jimmy that SCOTUS needs to send this back to the appeals court. Otherwise, they are opening a huge can of worms, which could open the way for others to use religion as an excuse for discrimination against any group they don't like.

 

[Jon Osterman]

I'm not convinced this is as clear cut as you are all implying. If the baker was refusing to serve gay people in general then he is clearly being discriminatory. But it isn't so clear if he is refusing to provide a particular message. If, for example, a Christian were to request a cake with a cross on top, I think he would be within his rights to decline, without this being religious discrimination. (Refusing to serve Christians because they were Christian would be discriminatory though.) This is the point Gorsuch was (poorly) trying to make I think.

I also think a lot depends on what was advertised too. If gay marriage was legal in the state, then the baker advertising that he makes wedding cakes (without specifying the gender of the participants) then this is enough to make the refusal of the gay wedding cake discriminatory. If, however, it was not legal in the state, he could quite reasonably claim that his advert never implies he would make gay wedding cakes.

 

[Jimmy Higgins]

Can the state compel artisans to provide a product against their religious beliefs. The big issue against the pro side that it can is that the Government has done such a good job of providing religious institutions asterisks to get around restrictions on 'religious based' bigotry. Granted, in general, those are religious institutions under a churchish umbrella. I disagree with Alito talking about religious colleges not being "churches" as that is really being willfully ignorant. I went to a Catholic College, and while it was a College and not a church (it did have a Church), it was still under the control of the Catholic Church. This would place religious protections from the State and Feds to individual citizens, which seems wrong.

One other comment.

Placing businesses under a protective religious umbrella would seemingly defy the whole purpose of putting up protections in the first place. These rules are established so that consumers need not worry about discrimination at stores. It creates equal access for consumers and working grounds for corporations. Placing religious protections meant for churches onto small business individuals (which we've already seen done when SCOTUS said Corporations are people and can have religious convictions) almost makes it impossible to ensure equal access and SCOTUS would pretty much be building a wall against those it deems discriminatable... because... art. Sure, Target couldn't discriminate against gays, but anyone that can make an "art" claim could, and that umbrella is not small.

The ultimate question is does a person's religious right to discriminate against an individual supercede that individuals right to access. Knowing this Supreme Court, they could very well say yes... because being gay is a "choice".

 

[coloradoatheist]

Can the state compel artisans to provide a product against their religious beliefs. The big issue against the pro side that it can is that the Government has done such a good job of providing religious institutions asterisks to get around restrictions on 'religious based' bigotry. Granted, in general, those are religious institutions under a churchish umbrella. I disagree with Alito talking about religious colleges not being "churches" as that is really being willfully ignorant. I went to a Catholic College, and while it was a College and not a church (it did have a Church), it was still under the control of the Catholic Church. This would place religious protections from the State and Feds to individual citizens, which seems wrong.

One other comment.

Placing businesses under a protective religious umbrella would seemingly defy the whole purpose of putting up protections in the first place. These rules are established so that consumers need not worry about discrimination at stores. It creates equal access for consumers and working grounds for corporations. Placing religious protections meant for churches onto small business individuals (which we've already seen done when SCOTUS said Corporations are people and can have religious convictions) almost makes it impossible to ensure equal access and SCOTUS would pretty much be building a wall against those it deems discriminatable... because... art. Sure, Target couldn't discriminate against gays, but anyone that can make an "art" claim could, and that umbrella is not small.

The ultimate question is does a person's religious right to discriminate against an individual supercede that individuals right to access. Knowing this Supreme Court, they could very well say yes... because being gay is a "choice".

But that already occurs all the time now with stores. If I am quilter I don't go to Cabelas to get quilting supplies. If I want hunting equipment I don't go to Hobby Lobby. Hobby Lobby is discriminating against outdoor enthusiasts and Cabela is discriminating against quilters.

 

[Jolly_Penguin]

Can the state compel artisans to provide a product against their religious beliefs.

But that already occurs all the time now with stores. If I am quilter I don't go to Cabelas to get quilting supplies. If I want hunting equipment I don't go to Hobby Lobby. Hobby Lobby is discriminating against outdoor enthusiasts and Cabela is discriminating against quilters.

The difference is religious beliefs. Why should religious beliefs matter? What is the rational basis for that? Isn't the real question if the state can compel artisans to provide a particular product at all, for any reason? And as coloradoatheist noted, it seems to be answered.

 

[James Madison]

Kudos for all that via Tapatalk!


I'm interested in what James Madison thinks the fine tuned solution is here. I don't see it. The only possible option is the SCOTUS punt back to the Appeals Court.

Limited within the following facts:

1. There isn't evidence the cake maker discriminated on the basis of sexual orientation. This is demonstrated by the fact he sells all sorts of cakes to gays. Evidence in which the cake maker has made cakes for people belonging to the protected class is evidence the cake maker is not refusing service in a specific and particular instance on the basis of the protected characteristic of the person while using speech as a façade to deny service. This is especially so when there is speech involved, which is relevant to number two below.
2. The cake to be made must be used for an expressive event thereby permitting the cake maker to refuse to be compelled to speak by making a cake expressing a message by being a part of an expressive event. (Expressive event meaning an event which expresses/conveys a message/messages).

These two facts would not support the following:

1. Refusal of service to a member of a protected class on the basis of speech when/where speech is absent (in other words, someone ordering a custom made cake, devoid of any symbols/letters, to be consumed at home by the family)
2. Refusal of service to a member of a protected class for those custom made cakes already created by the cake maker
3. Refusal of any good/product which is not custom made, i.e. do not involve any significant artistic talent by the cake maker

Now, I'd like to know how exactly a ruling on the basis of these specific facts results in a Noah type deluge of discrimination against protected classes.

 

[James Madison]

I agree with Jimmy that SCOTUS needs to send this back to the appeals court. Otherwise, they are opening a huge can of worms, which could open the way for others to use religion as an excuse for discrimination against any group they don't like.

How exactly would a ruling closely limited to these facts constitute as "opening a huge can of worms"? The three liberal justices expended considerable time obsessing over this perceived outcome but did not convincingly make any demonstration such an outcome was imminent if the cake maker won.

Indeed, the 5 conservative justices, with their line of questioning, focused upon several facts in the case which would preclude any notion of opening a Pandora's box of discrimination if the cake maker won.

 

[Jimmy Higgins]

Kudos for all that via Tapatalk!


I'm interested in what James Madison thinks the fine tuned solution is here. I don't see it. The only possible option is the SCOTUS punt back to the Appeals Court.

Limited within the following facts:

1. There isn't evidence the cake maker discriminated on the basis of sexual orientation. This is demonstrated by the fact he sells all sorts of cakes to gays. Evidence in which the cake maker has made cakes for people belonging to the protected class is evidence the cake maker is not refusing service in a specific and particular instance on the basis of the protected characteristic of the person while using speech as a façade to deny service. This is especially so when there is speech involved, which is relevant to number two below.

That is really cutting it fine. This isn't about gays, but gay marriage. Would that argument work with race (a question asked a bazillion times in the hearing)? Sexual orientation isn't the issue, except how it refers to the marriage. I.E. their identity is irrelevant, so no discrimination based on identity... except that their identity is wholly locked with the marriage.

I don't normally discriminate against gays... but when I do, I refuse to give them Dos Equis. A sort of 'once in a while discrimination is okay' argument.

2. The cake to be made must be used for an expressive event thereby permitting the cake maker to refuse to be compelled to speak by making a cake expressing a message by being a part of an expressive event. (Expressive event meaning an event which expresses/conveys a message/messages).

Which leads to the Ginsburg, etc... argument about "the line" to be drawn.

Cakes don't say anything... they are eaten. People seek the blessing of a priest, a Rabbi, parents, grandparents, maybe even get the rings blessed. No one goes to the bakery to get their wedding blessed. No one blesses a cake for a wedding. Its importance in a wedding is being misconstrued as something religious, when in fact, it is quite secular. Cakes don't have religion.

These two facts would not support the following:

1. Refusal of service to a member of a protected class on the basis of speech when/where speech is absent (in other words, someone ordering a custom made cake, devoid of any symbols/letters, to be consumed at home by the family)
2. Refusal of service to a member of a protected class for those custom made cakes already created by the cake maker
3. Refusal of any good/product which is not custom made, i.e. do not involve any significant artistic talent by the cake maker

Now, I'd like to know how exactly a ruling on the basis of these specific facts results in a Noah type deluge of discrimination against protected classes.

I'm not exactly certain what your standing is for the case regarding SCOTUS's action. Do they just micromanage and say this single act isn't discrimination or do they put a banner over artisans as a whole?

The right-wing argument seemed to be, 'well we allow for religious exemptions all the time, so why not here'. It is a compelling argument and harder to push aside. My argument, which matters not in this case as Ginsburg doesn't return my calls, is whether a cake is expression at all. Allowing this type of discrimination will allow "the gaming" of the system.

 

[jonatha]

Limited within the following facts:

1. There isn't evidence the cake maker discriminated on the basis of sexual orientation. This is demonstrated by the fact he sells all sorts of cakes to gays. Evidence in which the cake maker has made cakes for people belonging to the protected class is evidence the cake maker is not refusing service in a specific and particular instance on the basis of the protected characteristic of the person while using speech as a façade to deny service. This is especially so when there is speech involved, which is relevant to number two below.
2. The cake to be made must be used for an expressive event thereby permitting the cake maker to refuse to be compelled to speak by making a cake expressing a message by being a part of an expressive event. (Expressive event meaning an event which expresses/conveys a message/messages).

These two facts would not support the following:

1. Refusal of service to a member of a protected class on the basis of speech when/where speech is absent (in other words, someone ordering a custom made cake, devoid of any symbols/letters, to be consumed at home by the family)
2. Refusal of service to a member of a protected class for those custom made cakes already created by the cake maker
3. Refusal of any good/product which is not custom made, i.e. do not involve any significant artistic talent by the cake maker

Now, I'd like to know how exactly a ruling on the basis of these specific facts results in a Noah type deluge of discrimination against protected classes.

It has previously been argued (probably in a different thread) that #3 in particular would mean Subway's "sandwich artists" could deny service based on religious conviction.

If assembling a Subway sandwich is "art", surely assembling a McDonald's burger is also. "What is art" is a very slippery slope...

 

[James Madison]

That is really cutting it fine. This isn't about gays, but gay marriage. Would that argument work with race (a question asked a bazillion times in the hearing)? Sexual orientation isn't the issue, except how it refers to the marriage. I.E. their identity is irrelevant, so no discrimination based on identity... except that their identity is wholly locked with the marriage.

I don't normally discriminate against gays... but when I do, I refuse to give them Dos Equis. A sort of 'once in a while discrimination is okay' argument.

2. The cake to be made must be used for an expressive event thereby permitting the cake maker to refuse to be compelled to speak by making a cake expressing a message by being a part of an expressive event. (Expressive event meaning an event which expresses/conveys a message/messages).

Which leads to the Ginsburg, etc... argument about "the line" to be drawn.

Cakes don't say anything... they are eaten. People seek the blessing of a priest, a Rabbi, parents, grandparents, maybe even get the rings blessed. No one goes to the bakery to get their wedding blessed. No one blesses a cake for a wedding. Its importance in a wedding is being misconstrued as something religious, when in fact, it is quite secular. Cakes don't have religion.

These two facts would not support the following:

1. Refusal of service to a member of a protected class on the basis of speech when/where speech is absent (in other words, someone ordering a custom made cake, devoid of any symbols/letters, to be consumed at home by the family)
2. Refusal of service to a member of a protected class for those custom made cakes already created by the cake maker
3. Refusal of any good/product which is not custom made, i.e. do not involve any significant artistic talent by the cake maker

Now, I'd like to know how exactly a ruling on the basis of these specific facts results in a Noah type deluge of discrimination against protected classes.

I'm not exactly certain what your standing is for the case regarding SCOTUS's action. Do they just micromanage and say this single act isn't discrimination or do they put a banner over artisans as a whole?

The right-wing argument seemed to be, 'well we allow for religious exemptions all the time, so why not here'. It is a compelling argument and harder to push aside. My argument, which matters not in this case as Ginsburg doesn't return my calls, is whether a cake is expression at all. Allowing this type of discrimination will allow "the gaming" of the system.

That is really cutting it fine. This isn't about gays, but gay marriage. Would that argument work with race (a question asked a bazillion times in the hearing)? Sexual orientation isn't the issue, except how it refers to the marriage. I.E. their identity is irrelevant, so no discrimination based on identity... except that their identity is wholly locked with the marriage.

"Work with race," as in, a KKK cake maker refuses to make a custom cake for an interracial marriage?

Cakes don't say anything... they are eaten. People seek the blessing of a priest, a Rabbi, parents, grandparents, maybe even get the rings blessed. No one goes to the bakery to get their wedding blessed. No one blesses a cake for a wedding. Its importance in a wedding is being misconstrued as something religious, when in fact, it is quite secular. Cakes don't have religion.

But cakes can express a message. The limiting principle would be custom made cakes to be used in an expressive event, such as a wedding ceremony, are part of the expressive event and express a message along with the expressive event. A custom made wedding cake is certainly expressive as a work of art and the evidence for this is the elaborate layers, design, swirls, thickness, use of colors, etcetera. Brides and people to be married spend a lot of time selecting a wedding cake and spend a lot of money for a custom made cake. People are not walking into a Dairy Queen and picking up a cake from the freezer as their wedding cake.

But you really did not articulate how a ruling, on the basis of these facts, results in a deluge of discrimination.

 

[James Madison]

Limited within the following facts:

1. There isn't evidence the cake maker discriminated on the basis of sexual orientation. This is demonstrated by the fact he sells all sorts of cakes to gays. Evidence in which the cake maker has made cakes for people belonging to the protected class is evidence the cake maker is not refusing service in a specific and particular instance on the basis of the protected characteristic of the person while using speech as a façade to deny service. This is especially so when there is speech involved, which is relevant to number two below.
2. The cake to be made must be used for an expressive event thereby permitting the cake maker to refuse to be compelled to speak by making a cake expressing a message by being a part of an expressive event. (Expressive event meaning an event which expresses/conveys a message/messages).

These two facts would not support the following:

1. Refusal of service to a member of a protected class on the basis of speech when/where speech is absent (in other words, someone ordering a custom made cake, devoid of any symbols/letters, to be consumed at home by the family)
2. Refusal of service to a member of a protected class for those custom made cakes already created by the cake maker
3. Refusal of any good/product which is not custom made, i.e. do not involve any significant artistic talent by the cake maker

Now, I'd like to know how exactly a ruling on the basis of these specific facts results in a Noah type deluge of discrimination against protected classes.

It has previously been argued (probably in a different thread) that #3 in particular would mean Subway's "sandwich artists" could deny service based on religious conviction.

If assembling a Subway sandwich is "art", surely assembling a McDonald's burger is also. "What is art" is a very slippery slope...

Not at all. The question isn't whether X or Y is "art." The question is whether X and/or Y are expressive. A Subway sandwich maker could not deny service to a person ordering a sandwich for lunch, on the basis of free speech, in which the sandwich is to be consumed by the purchaser and nothing more.

The same may be said for the porous McDonald's example. Making a McDonald's burger, for a person purchasing the burger to consume the burger and nothing else, does not involve any speech and therefore, denial of service on the basis of speech is not possible.

In addition, as Justice Alito noted through his questioning, merely doing the same, easy, mundane task of assembling food together to make a sandwich is not speech. Throwing a burger on bread, with cheese, lettuce, and tomato, is not speech. Neither is such conduct tantamount to the kind and type of elaborate wedding cake making involved in the case.