SCOTUS to take the cake

[coloradoatheist]

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.

But the argument is what is expressive then? Who decides? Or is it under the general guise of, "You'll know it when you see it?"

 

[James Madison]

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.

But the argument is what is expressive then? Who decides? Or is it under the general guise of, "You'll know it when you see it?"

Facts of the case. This isn't the first time the Court has encountered expressive speech. The Court has addressed expressive speech in O'Brien, Texas v. Johnson, Barnes v. Glen Theatre, Tinker v. Des Moines, several others, and a doctrine has been established for determining when conduct is expressive.

One factor is, "[T]he nature of activity, combined with the factual context and environment in which it was undertaken..."

There are other factors.

 

[Jimmy Higgins]

But cakes can express a message.

Other than "eat me" or "The baker clearly likes making and decorating cakes"? The weddings I've been to, I've never though, "Wow... the baker must have really approved of this wedding!"

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.

And not a single one of those swirls says "I bless and condone the wedding". It is undeniably a type of art. Decorating cakes as such takes lots of training and effort. But expression? The guy is selling cakes for a living. It is his trade. I'd presume no level of expression (which really is a wild and absurd gray area argument invented for this case by lawyers) of the baker for a cake that they are selling for hundreds (thousands?) of dollars. They are making a living off of it. That is why you pay them for their time and skill.

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.

Lots of money is spent on a cake, jewelry, the dresses. A ton of stuff that is hand crafted or made. Does that indicate anything other than a desire for something to look nice, not a desire to have the blessing of a seamstress?

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

It will allow for the gaming of the system. It creates a new branch of acceptable discrimination among a certain groups of people against a certain group of people. An "expressive event"? "Expression"?

How does SCOTUS say this wasn't discrimination without it covering all areas of artisan work for all "expressive events"? This goes beyond cakes, beyond weddings. Right now, "religious" people are clawing at any way they can deny gays their elevated status as equal human in the US. We saw this before in the 50s and 60s, given it was a tad bit more violent then.

 

[Jimmy Higgins]

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.

But the argument is what is expressive then? Who decides? Or is it under the general guise of, "You'll know it when you see it?"

Facts of the case. This isn't the first time the Court has encountered expressive speech. The Court has addressed expressive speech in O'Brien, Texas v. Johnson, Barnes v. Glen Theatre, Tinker v. Des Moines, several others, and a doctrine has been established for determining when conduct is expressive.

One factor is, "[T]he nature of activity, combined with the factual context and environment in which it was undertaken..."

There are other factors.

In any of those cases, was it decided in a vacuum? Finding for the baker will likely end the Colorado protections. Furthermore, could affect the Federal protection as well, unless a new test is available.

 

[Jimmy Higgins]

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.

And in which way is a cake expression any different between a straight and gay wedding ceremony? Does a Supreme Court justice have gaydar for wedding cakes? A wedding cake is about beauty, not heterosexuality.

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.

Funny, Jimmy Johns has contractual limitations for workers that they can't work for another sub maker due to being trained in the art of making their sandwiches.

 

[untermensche]

...2. The cake to be made must be used for an expressive event..

Cakes are made to be eaten.

Nobody looks to cakes for wisdom or reading material.

This whole thing is Alice in Wonderland. What else is new with Republican leaning judges?

Bending over backwards to protect the ignorant prejudices of deluded individuals who think they know what the desires of the gods are.

We turn any sense of justice on its head giving these religious delusions serious consideration.

People can have them sure, but only to the point they do not interfere in the slightest way with somebody else.

 

[Jimmy Higgins]

...2. The cake to be made must be used for an expressive event..

Cakes are made to be eaten.

I think it was Gorsuch who noted he hasn't eaten a wedding cake yet that tasted good. Wedding cakes are meant to be decoration, which is why people spending crazy money on them looking nice. Of course, people don't spend that money on a cake that expresses anything other than beauty.

Nobody looks to cakes for wisdom or reading material.

Oddly, it was Alito that suggested if someone asked a decorator to put wedding vows, that the decorator comes up with (?), on it, and wondered if the decorator balked at that, if that was an issue? Talk about convoluted arguments!

 

[James Madison]

...2. The cake to be made must be used for an expressive event..

Cakes are made to be eaten.

Nobody looks to cakes for wisdom or reading material.

This whole thing is Alice in Wonderland. What else is new with Republican leaning judges?

Bending over backwards to protect the ignorant prejudices of deluded individuals who think they know what the desires of the gods are.

We turn any sense of justice on its head giving these religious delusions serious consideration.

People can have them sure, but only to the point they do not interfere in the slightest way with somebody else.

While food can be eaten, this doesn’t alter the fact food, although capable of being consumed, can constitute as expressing a message in certain contexts.


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[untermensche]

...2. The cake to be made must be used for an expressive event..

Cakes are made to be eaten.

Nobody looks to cakes for wisdom or reading material.

This whole thing is Alice in Wonderland. What else is new with Republican leaning judges?

Bending over backwards to protect the ignorant prejudices of deluded individuals who think they know what the desires of the gods are.

We turn any sense of justice on its head giving these religious delusions serious consideration.

People can have them sure, but only to the point they do not interfere in the slightest way with somebody else.

While food can be eaten, this doesn’t alter the fact food, although capable of being consumed, can constitute as expressing a message in certain contexts.


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What are we defending here if not the deluded prejudice of one individual? Somebody who knows what the gods like and do not like.

This is what the US Supreme Court sees as serious.

We are in trouble.

A fundamentalist nation on the level of Iran.

 

[James Madison]

Facts of the case. This isn't the first time the Court has encountered expressive speech. The Court has addressed expressive speech in O'Brien, Texas v. Johnson, Barnes v. Glen Theatre, Tinker v. Des Moines, several others, and a doctrine has been established for determining when conduct is expressive.

One factor is, "[T]he nature of activity, combined with the factual context and environment in which it was undertaken..."

There are other factors.

In any of those cases, was it decided in a vacuum? Finding for the baker will likely end the Colorado protections. Furthermore, could affect the Federal protection as well, unless a new test is available.

You can repeat the same claim to as nauseum, but repetition isn’t persuasive, other than causing the need for aspirin.

You’ve made no demonstration the apocalyptic event of “end Colorado protections” follows from a victory for the cake maker.


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[Elixir]

Facts of the case. This isn't the first time the Court has encountered expressive speech. The Court has addressed expressive speech in O'Brien, Texas v. Johnson, Barnes v. Glen Theatre, Tinker v. Des Moines, several others, and a doctrine has been established for determining when conduct is expressive.

One factor is, "[T]he nature of activity, combined with the factual context and environment in which it was undertaken..."

There are other factors.

In any of those cases, was it decided in a vacuum? Finding for the baker will likely end the Colorado protections. Furthermore, could affect the Federal protection as well, unless a new test is available.

You can repeat the same claim to as nauseum, but repetition isn’t persuasive, other than causing the need for aspirin.

You’ve made no demonstration the apocalyptic event of “end Colorado protections” follows from a victory for the cake maker.


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Next time I indulge in a gay marriage I'm going to forego the damn cake!

 

[James Madison]

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.

And in which way is a cake expression any different between a straight and gay wedding ceremony? Does a Supreme Court justice have gaydar for wedding cakes? A wedding cake is about beauty, not heterosexuality.

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.

Funny, Jimmy Johns has contractual limitations for workers that they can't work for another sub maker due to being trained in the art of making their sandwiches.

Jimmy John’s contract doesn’t make them artists or expressing a message. You really think such a contract rationally establishes someone as an artist or expressing a message?


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[untermensche]

Mr Madison what right of the cake maker is the SC considering?

The right to refuse service based on a delusion?

I see no other right here.

Talk of expression is a distraction if the person asked to express only refuses based on a delusion and not real harm.

 

[J842P]

Mr Madison what right of the cake maker is the SC considering?

The right to refuse service based on a delusion?

I see no other right here.

Talk of expression is a distraction if the person asked to express only refuses based on a delusion and not real harm.

The state cannot compel you to express things, even if that refusal is based on a delusion.

 

[untermensche]

Mr Madison what right of the cake maker is the SC considering?

The right to refuse service based on a delusion?

I see no other right here.

Talk of expression is a distraction if the person asked to express only refuses based on a delusion and not real harm.

The state cannot compel you to express things, even if that refusal is based on a delusion.

But being in business to the public should compel you.

Either control your delusions or stop dealing with the public.

 

[J842P]

Mr Madison what right of the cake maker is the SC considering?

The right to refuse service based on a delusion?

I see no other right here.

Talk of expression is a distraction if the person asked to express only refuses based on a delusion and not real harm.

The state cannot compel you to express things, even if that refusal is based on a delusion.

But being in business to the public should compel you.

Why should it? I see no good reason to grant such authoritarian powers to the state, especially if it weakens already weak civil rights.

 

[untermensche]

But being in business to the public should compel you.

Why should it? I see no good reason to grant such authoritarian powers to the state, especially if it weakens already weak civil rights.

You are asking for the right to discriminate based on delusion.

I do not see that as a right anybody should have.

 

[James Madison]

Other than "eat me" or "The baker clearly likes making and decorating cakes"? The weddings I've been to, I've never though, "Wow... the baker must have really approved of this wedding!"
And not a single one of those swirls says "I bless and condone the wedding". It is undeniably a type of art. Decorating cakes as such takes lots of training and effort. But expression? The guy is selling cakes for a living. It is his trade. I'd presume no level of expression (which really is a wild and absurd gray area argument invented for this case by lawyers) of the baker for a cake that they are selling for hundreds (thousands?) of dollars. They are making a living off of it. That is why you pay them for their time and skill.

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.

Lots of money is spent on a cake, jewelry, the dresses. A ton of stuff that is hand crafted or made. Does that indicate anything other than a desire for something to look nice, not a desire to have the blessing of a seamstress?

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

It will allow for the gaming of the system. It creates a new branch of acceptable discrimination among a certain groups of people against a certain group of people. An "expressive event"? "Expression"?

How does SCOTUS say this wasn't discrimination without it covering all areas of artisan work for all "expressive events"? This goes beyond cakes, beyond weddings. Right now, "religious" people are clawing at any way they can deny gays their elevated status as equal human in the US. We saw this before in the 50s and 60s, given it was a tad bit more violent then.

Admitting the cake is art is likely a fatal admission. Such an admission puts the cake in the realm of expressive speech like pictures made by an artist/painter/sculptor, including those used in a wedding.

Admission this elaborate level of cake making involves a lot of training and effort is also likely fatal, and immediately distinguishes this type of cake making from mere sandwich making.

A great example of this kind of cake making as expressive speech is prominently displayed on the show Cake Boss. The cakes on Cake Boss are expressive. Looking at those cakes on Cake Boss it becomes readily apparent the type of cake making displayed is an art! Mr. Phillips cake making parallel to those artful and expressive cakes on Cake Boss. Both, Cake Boss and the cakes at issue in this case, involve the type of cake making requiring a lot of skill, creativity, training, practice, and is no ordinary cake one picks up from Dairy Queen to be consumed. Mr. Phillips is analogizing his cake making as tantamount to the expressive cakes of Cake Boss.

The expressive message is one of joy for the married couple, a congratulatory message, for the married couple, and their venture together.


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[untermensche]

You are just expressing some prejudice about what is and isn't art.

You like art that requires a lot of skill. And want to give that art special rights.

Nothing more.

 

[James Madison]

You are just expressing some prejudice about what is and isn't art.

You like art that requires a lot of skill. And want to give that art special rights.

Nothing more.

Nah...I particularly care about the 1st Amendment Free Speech Clause, believe Speech, which includes the right not to speak, is important. I also believe public accommodation laws are important. I see an opportunity to appease both interests without completely surrendering the entirety of one to the other.


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