SCOTUS to take the cake

[hurtinbuckaroo]

I can tell you how it would result in a 'deluge of discrimination'.
1) People are stupid.
2) Most even reasonable people are extremely ignorant of how laws work wrt court rulings and fine lines.
3) Faux Noise, notsoBreitbart, and other right wing organizations and propaganda outlets would proclaim victory without any of the nuance which you (rightly) allude to here.
4) Wannabe xian martyrs/hypocrits think they can discriminate, well, indiscriminately.
5) It takes years and lots of money to settle all of the cases of above assholes discriminating against anyone they want to.

On the bright side, a lot of assholes would go out of business, due to legal fees and boycotts. It would help non-discriminating businesses.

 

[none]

did tump promise to reduce the ability for people to sue in his campaign?

 

[James Madison]

"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.

I can tell you how it would result in a 'deluge of discrimination'.
1) People are stupid.
2) Most even reasonable people are extremely ignorant of how laws work wrt court rulings and fine lines.
3) Faux Noise, notsoBreitbart, and other right wing organizations and propaganda outlets would proclaim victory without any of the nuance which you (rightly) allude to here.
4) Wannabe xian martyrs/hypocrits think they can discriminate, well, indiscriminately.
5) It takes years and lots of money to settle all of the cases of above assholes discriminating against anyone they want to.

None of those diatribes factually demonstrate a deluge of discrimination is imminent if Phillips wins.


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[James Madison]

I do agree with the others that if they use expression in this case, they need to define it again for the purpose of making products.

“Define it” how? The only rational way to “define it” is on a case by case basis, on the basis of the facts presented.

For instance, a black piece of cloth, tied tightly around the arm, likely isn’t expressive without more contextual facts. But add the contextual facts of an unpopular war, black armbands used to protest the war, and suddenly the ordinary, unexpressive piece of cloth is expressive in how it’s used.

Or simply, a custom made cake with the colors red, white, and blue involved, and nothing more, may not be expressive. However, the use of the cake at a July 4th party is expressive.

Same for some products.


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Which means it takes the knowledge that this specific cake is being made for a gay couple for it to be objectionable "expression" to the baker, which then means that the baker is discriminating against the individuals rather than having any valid claim to compelled "expression"

Justice Kennedy had a very compelling colloquy in which he explored, as he said, the “facile” allegation Phillips discriminated on the basis of their sexual orientation. As Kennedy stated, their sexual orientation is who they are but a wedding is not their identity but something they “do.” Kennedy stated the refusal of service was on the basis of what they “do” and not who they “are.”

And the compelled speech is in regards to the custom made cake to be used in an expressive event to convey an expressive message.

After another careful reading of the oral argument transcript, it has occurred to me Justice Kennedy may also be pondering a Free Exercise Clause resolution for Phillips. Kennedy’s characterization the civil rights commission/commissioner was “hostile” to Phillips’ beliefs, indicates a possible “animus” toward religion, and possible resolution under Church of the Lukumi Babalu Aye v. City of Hialeah, an opinion penned by Justice Kennedy.

Douglas Laycock, respected constitutional professor and lawyer at UVA law school, filed an amici curiae brief in support of Phillips arguing the public accommodation law was discriminatorily applied against religious beliefs and/or on the basis of religion. He cited evidence in his brief, which can be read here. http://www.scotusblog.com/wp-content/uploads 2017/09/16-111_tsac_christian_legal_socy.pdf

Kennedy could find the law was applied discriminatorily and issue an opinion under the free exercise clause and case of Lukumi v Hialeah.


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[James Madison]

And you’re ignoring the point under discussion. The expressive event in which the object is to appear is a limiting principle to preclude what you allege but cannot show will occur, an Armageddon, world ending discrimination. (Not talking about cakes with symbols or words).

The bouquet is an integral part of a wedding, as are the bride's dress and bridemaid's dresses. The jewelry, possibly the biggest? Photographer is a pretty big deal. In fact, a wedding is nothing but a lot of critical things that are expensive and require skill and can be considered art... and subject to this "expression" crap argument. So most of the big cogs in a wedding can become an issue for a gay couple.

And if a gay couple is located in a rural Trump voting area, it becomes possible that a wedding isn't even possible now because services can be legally restricted from them. We've already been here with the Civil Rights movement (the interstate commerce argument). The only difference here is that SCOTUS appears willing to pretend that homosexuality is a "choice", where as race isn't a choice.

In general, the Supreme Court has been more likely to expand rights than to restrict them, but in this case, they'd be expanding the rights of individuals to discriminate and reduce the rights of gays. You seem to think this isn't that big of a deal because it is 'just weddings', but this will be used to game the system.

Breyer made the distinction between artist and artisan in the hearing. What the baker makes is definitely wonderful and nice, but this idea that it is "expression" is a lie. The cake expresses the ideal of beautiful or abstract or whatever the couple wants. No gives a rat's butt what the baker thinks about the wedding, it is just about the cake. No one sees to the cake for the baker's expression.

The allegation of “game the system” is not very compelling when you apparently cannot articulate how exactly this would transpire.

Photography, of the kind typically paid for to photograph weddings and the reception, is expressive. So you are right, they would also have a free speech claim.

Stitching thread together to form a garment isn’t expressive (again assuming no symbols or language). It’s not expressive in the wedding. Stitching thread together to make a garment certainly lacks the skill and talent of custom cake making involved here.

Breyer made the distinction between artist and artisan in the hearing. What the baker makes is definitely wonderful and nice, but this idea that it is "expression" is a lie. The cake expresses the ideal of beautiful or abstract or whatever the couple wants. No gives a rat's butt what the baker thinks about the wedding, it is just about the cake. No one sees to the cake for the baker's expression

This logically cannot be right. Based on this logic, a painting by a painter, at the request of a customer, necessarily means the painter isn’t engaged in expressive speech but instead the speech belongs to the customer. But this quite simply is not accurate. The customer is buying the expressive speech of the painter. The expressive speech isn’t the customer’s as the customer isn’t engaged in any expressive conduct that resulted in the expressive message. The fact someone is paying for an expressive product doesn’t change the fact the person making that expressive product is engaged in expressive speech in creating the expressive message in the product.




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[untermensche]

Justice Kennedy had a very compelling colloquy in which he explored, as he said, the “facile” allegation Phillips discriminated on the basis of their sexual orientation. As Kennedy stated, their sexual orientation is who they are but a wedding is not their identity but something they “do.” Kennedy stated the refusal of service was on the basis of what they “do” and not who they “are.”

Only compelling to those who don't think beyond one step.

Why is Phillips objecting to what they do?

Because of what they are.

And for no other reason.

 

[jonatha]

Stitching thread together to form a garment isn’t expressive (again assuming no symbols or language). It’s not expressive in the wedding. Stitching thread together to make a garment certainly lacks the skill and talent of custom cake making involved here.

I conclude you have never been involved in the planning of a wedding.

The bride's dress (and to a lesser extent those of the bridesmaids) commands much more attention in the ceremony than the cake. The bride's dress is likely to be more thoroughly personalized and customized than the cake, and to cost a good deal more.

ETA - Tell you what. Assuming you're married, dig out the photo album of the occasion and count the number of pictures in which the bride's dress figures prominently and compare that to the number of pictures in which the cake appears at all...

 

[James Madison]

Stitching thread together to form a garment isn’t expressive (again assuming no symbols or language). It’s not expressive in the wedding. Stitching thread together to make a garment certainly lacks the skill and talent of custom cake making involved here.

I conclude you have never been involved in the planning of a wedding.

The bride's dress (and to a lesser extent those of the bridesmaids) commands much more attention in the ceremony than the cake. The bride's dress is likely to be more thoroughly personalized and customized than the cake, and to cost a good deal more.

ETA - Tell you what. Assuming you're married, dig out the photo album of the occasion and count the number of pictures in which the bride's dress figures prominently and compare that to the number of pictures in which the cake appears at all...

I couldn’t care less about your frivolous, erroneous, non-sequitor of “never been involved...in planning a wedding.”

And my reasoning in the post above wasn’t predicated upon the adjective “custom” in describing the word “cake.” You focus upon everything but the essential reasoning of my argument in the post above.


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[James Madison]

Justice Kennedy had a very compelling colloquy in which he explored, as he said, the “facile” allegation Phillips discriminated on the basis of their sexual orientation. As Kennedy stated, their sexual orientation is who they are but a wedding is not their identity but something they “do.” Kennedy stated the refusal of service was on the basis of what they “do” and not who they “are.”

Only compelling to those who don't think beyond one step.

Why is Phillips objecting to what they do?

Because of what they are.

And for no other reason.

Justice Kennedy, perhaps the single, most important jurist ever in advancing rights for gays and lesbians, in his colloquy decimated the same argument you espoused. “What they are” is their sexual orientation, herea same sex couple, but what they are doing here, choosing to get married, is not their sexual orientation but what they are doing.

Kennedy’s astute legal reasoning illuminated a point often neglected or poorly phrased. Under the CO law, the protected class of sexual orientation is “who” or “what” they are but the act of marriage isn’t sexual orientation, and therefore, Phillips didn’t violate the statute.

Kennedy’s inference, not mine. But his inference is both logical and rational.


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[James Madison]

Let’s use an example from the oral argument.

A customer walks into the business and asks for a custom made, rainbow cake. No questions are asked about the cake by the cake maker. No statements are made by the customer as to the use of the cake. Expressive speech?

Customer enters cake shop and requests a custom made, rainbow cake. Customer tells cake maker the cake is for a gay pride parade and/or same sex wedding. Expressive speech?

The latter hypo is most certainly expressive speech by the cake maker. The former, less clear.

The facts of this case parallel the latter hypo.


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[Jimmy Higgins]

The allegation of “game the system” is not very compelling when you apparently cannot articulate how exactly this would transpire.

I already did, regarding the potential banning of available wedding services for gays in certain areas of the country. You start to comment directly on them below.

Photography, of the kind typically paid for to photograph weddings and the reception, is expressive. So you are right, they would also have a free speech claim.

Stitching thread together to form a garment isn’t expressive (again assuming no symbols or language). It’s not expressive in the wedding. Stitching thread together to make a garment certainly lacks the skill and talent of custom cake making involved here.

Really?! The wedding dress costs much more than the cake, it is a critical staple of the wedding ceremony. Every poor argument used to describe the cake as being expression is applicable to the dress, but nice try.

So flowers, cakes, dresses, jewelry... are all free game thanks to this BS "expression" argument which can be used in areas to ban gays from holding weddings. Granted, this will save them lots of money, but that isn't the point.

Breyer made the distinction between artist and artisan in the hearing. What the baker makes is definitely wonderful and nice, but this idea that it is "expression" is a lie. The cake expresses the ideal of beautiful or abstract or whatever the couple wants. No gives a rat's butt what the baker thinks about the wedding, it is just about the cake. No one sees to the cake for the baker's expression

This logically cannot be right. Based on this logic, a painting by a painter, at the request of a customer, necessarily means the painter isn’t engaged in expressive speech but instead the speech belongs to the customer. But this quite simply is not accurate. The customer is buying the expressive speech of the painter. The expressive speech isn’t the customer’s as the customer isn’t engaged in any expressive conduct that resulted in the expressive message. The fact someone is paying for an expressive product doesn’t change the fact the person making that expressive product is engaged in expressive speech in creating the expressive message in the product.

You say a lot of things there but don't actually speak to my comment about the baker's expression never coming into play at a wedding. People look at the cake, admire the cake. It is [hulk]Cake pretty![/hulk] not [hulk]Baker must bless this holy matrimony[/hulk].

 

[James Madison]

I already did, regarding the potential banning of available wedding services for gays in certain areas of the country. You start to comment directly on them below.

Really?! The wedding dress costs much more than the cake, it is a critical staple of the wedding ceremony. Every poor argument used to describe the cake as being expression is applicable to the dress, but nice try.

So flowers, cakes, dresses, jewelry... are all free game thanks to this BS "expression" argument which can be used in areas to ban gays from holding weddings. Granted, this will save them lots of money, but that isn't the point.

Breyer made the distinction between artist and artisan in the hearing. What the baker makes is definitely wonderful and nice, but this idea that it is "expression" is a lie. The cake expresses the ideal of beautiful or abstract or whatever the couple wants. No gives a rat's butt what the baker thinks about the wedding, it is just about the cake. No one sees to the cake for the baker's expression

This logically cannot be right. Based on this logic, a painting by a painter, at the request of a customer, necessarily means the painter isn’t engaged in expressive speech but instead the speech belongs to the customer. But this quite simply is not accurate. The customer is buying the expressive speech of the painter. The expressive speech isn’t the customer’s as the customer isn’t engaged in any expressive conduct that resulted in the expressive message. The fact someone is paying for an expressive product doesn’t change the fact the person making that expressive product is engaged in expressive speech in creating the expressive message in the product.

You say a lot of things there but don't actually speak to my comment about the baker's expression never coming into play at a wedding. People look at the cake, admire the cake. It is [hulk]Cake pretty![/hulk] not [hulk]Baker must bless this holy matrimony[/hulk].

Really? You think you have a compelling argument on the basis X costs a lot and therefore, expressive speech is involved? Have you pondered the absurdity of the outcomes from such reasoning?

Renting X facility costs a lot of money, therefore, the facility itself is expressive. It’s non-sense but it’s a non-sense outcome of your argument.

The wedding dress is not expressive (again assuming no words or symbols). The talent and skill to create a wedding dress isn’t the same as a custom made, wedding cake. In fact, the dress is assembled by use of thread, sewing machine, sewing the hems together, sewing ruffles, etcetera, at times done by a collection of people paid minimum wage at a sweatshop in Cambodia. That isn’t the type or kind of talent or skill parallel to a custom made wedding cake.

And your point in the opening paragraph was already addressed by my first, most recent post to this thread about the oral arguments (or a post shortly afterward) The existence of competing cake shops limits the deluge of discrimination in rural areas because the lack of any alternative cake shop makes it compelling for the cake shop to comply.


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[LordKiran]

I already did, regarding the potential banning of available wedding services for gays in certain areas of the country. You start to comment directly on them below.

Really?! The wedding dress costs much more than the cake, it is a critical staple of the wedding ceremony. Every poor argument used to describe the cake as being expression is applicable to the dress, but nice try.

So flowers, cakes, dresses, jewelry... are all free game thanks to this BS "expression" argument which can be used in areas to ban gays from holding weddings. Granted, this will save them lots of money, but that isn't the point.

You say a lot of things there but don't actually speak to my comment about the baker's expression never coming into play at a wedding. People look at the cake, admire the cake. It is [hulk]Cake pretty![/hulk] not [hulk]Baker must bless this holy matrimony[/hulk].

Really? You think you have a compelling argument on the basis X costs a lot and therefore, expressive speech is involved? Have you pondered the absurdity of the outcomes from such reasoning?

Renting X facility costs a lot of money, therefore, the facility itself is expressive. It’s non-sense but it’s a non-sense outcome of your argument.

The wedding dress is not expressive (again assuming no words or symbols). The talent and skill to create a wedding dress isn’t the same as a custom made, wedding cake. In fact, the dress is assembled by use of thread, sewing machine, sewing the hems together, sewing ruffles, etcetera, at times done by a collection of people paid minimum wage at a sweatshop in Cambodia. That isn’t the type or kind of talent or skill parallel to a custom made wedding cake.

And your point in the opening paragraph was already addressed by my first, most recent post to this thread about the oral arguments (or a post shortly afterward) The existence of competing cake shops limits the deluge of discrimination in rural areas because the lack of any alternative cake shop makes it compelling for the cake shop to comply.


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Why wouldn't the facility also be a work of artistic expression? Ever heard of architecture? Anything made by human hands is a work of art with the artists expressions built into it. From cakes to knives to custom hand built staplers; artistic expression is a natural part of everything man made.

 

[Jimmy Higgins]

I already did, regarding the potential banning of available wedding services for gays in certain areas of the country. You start to comment directly on them below.

Really?! The wedding dress costs much more than the cake, it is a critical staple of the wedding ceremony. Every poor argument used to describe the cake as being expression is applicable to the dress, but nice try.

So flowers, cakes, dresses, jewelry... are all free game thanks to this BS "expression" argument which can be used in areas to ban gays from holding weddings. Granted, this will save them lots of money, but that isn't the point.

You say a lot of things there but don't actually speak to my comment about the baker's expression never coming into play at a wedding. People look at the cake, admire the cake. It is [hulk]Cake pretty![/hulk] not [hulk]Baker must bless this holy matrimony[/hulk].

Really? You think you have a compelling argument on the basis X costs a lot... and therefore, expressive speech is involved?

I'm not certain how you finished the thought there. I didn't stop at cost.

For the cake you have stated: cost, skill, custom, commonality in weddings, everyone looks at it
For the dress: cost, skill, custom, commonality in weddings, everyone looks at it

Everything is as true, if not even more so, as the dress is truly artisan (hand stitching, customized, fitted). Along with the engagement ring, it is the most important thing in a wedding, the cake sits in the back seat to both of them.

Have you pondered the absurdity of the outcomes from such reasoning?

Yes, which is why I think recognizing the cake as "expression" is dangerous. Maybe you need to sit back and notice the absurdity as well.

The wedding dress is not expressive (again assuming no words or symbols). The talent and skill to create a wedding dress isn’t the same as a custom made, wedding cake.

No, it is much greater. Takes much longer, is much more personal, as usually there are multiple sittings to ensure the dress is a perfect fit. The seamstress is much more personally involved with the wedding than the cake baker ever is.

And your point in the opening paragraph was already addressed by my first, most recent post to this thread about the oral arguments (or a post shortly afterward) The existence of competing cake shops limits the deluge of discrimination in rural areas because the lack of any alternative cake shop makes it compelling for the cake shop to comply.

No it doesn't. This was argued before with the Civil Rights movement, and you know it.

 

[untermensche]

Justice Kennedy had a very compelling colloquy in which he explored, as he said, the “facile” allegation Phillips discriminated on the basis of their sexual orientation. As Kennedy stated, their sexual orientation is who they are but a wedding is not their identity but something they “do.” Kennedy stated the refusal of service was on the basis of what they “do” and not who they “are.”

Only compelling to those who don't think beyond one step.

Why is Phillips objecting to what they do?

Because of what they are.

And for no other reason.

Justice Kennedy, perhaps the single, most important jurist ever in advancing rights for gays and lesbians, in his colloquy decimated the same argument you espoused. “What they are” is their sexual orientation, herea same sex couple, but what they are doing here, choosing to get married, is not their sexual orientation but what they are doing.

Kennedy’s astute legal reasoning illuminated a point often neglected or poorly phrased. Under the CO law, the protected class of sexual orientation is “who” or “what” they are but the act of marriage isn’t sexual orientation, and therefore, Phillips didn’t violate the statute.

Kennedy’s inference, not mine. But his inference is both logical and rational.


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It's a distinction with no difference.

He only objects to the activity because of the orientation. And for nothing else.

He objects to the "what" only because of the "who". And he only objects because of a serious delusion, not anything anyone should take seriously.

It is pure discrimination against the "who" and nothing else.

Despite the twisting that some try to do with it.

 

[jonatha]

Stitching thread together to form a garment isn’t expressive (again assuming no symbols or language). It’s not expressive in the wedding. Stitching thread together to make a garment certainly lacks the skill and talent of custom cake making involved here.

I conclude you have never been involved in the planning of a wedding.

The bride's dress (and to a lesser extent those of the bridesmaids) commands much more attention in the ceremony than the cake. The bride's dress is likely to be more thoroughly personalized and customized than the cake, and to cost a good deal more.

ETA - Tell you what. Assuming you're married, dig out the photo album of the occasion and count the number of pictures in which the bride's dress figures prominently and compare that to the number of pictures in which the cake appears at all...

I couldn’t care less about your frivolous, erroneous, non-sequitor of “never been involved...in planning a wedding.”

And my reasoning in the post above wasn’t predicated upon the adjective “custom” in describing the word “cake.” You focus upon everything but the essential reasoning of my argument in the post above.


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Do pardon me.

Your unsupported assertion that the seamstress who creates the dress isn't doing something that's equivalent to the baker who creates the cake simply left me at a loss for words....

 

[Loren Pechtel]

Let's use designing an antenna for a spacecraft... Here's one that works better than any other design, and barely resembles any other preceding design. The developmental methodology is different... is it art? (It's cute, but that's not the question.)

It's certainly a creative process but since the objective isn't looks we generally would not put the label "art" on it. However, you do sometimes see "art" used for such non-asthetic disciplines.

Example: https://www.amazon.com/Art-Software-Architecture-Methods-Techniques/dp/0471228869

 

[Loren Pechtel]

ETA - Tell you what. Assuming you're married, dig out the photo album of the occasion and count the number of pictures in which the bride's dress figures prominently and compare that to the number of pictures in which the cake appears at all...

Unfair test--our wedding was so simple there was no cake.

(And the only reason there was a wedding dress is her parents mailed her one.)

 

[jonatha]

ETA - Tell you what. Assuming you're married, dig out the photo album of the occasion and count the number of pictures in which the bride's dress figures prominently and compare that to the number of pictures in which the cake appears at all...

Unfair test--our wedding was so simple there was no cake.

(And the only reason there was a wedding dress is her parents mailed her one.)

Perfectly fair test.

You had a dress...

 

[Jimmy Higgins]

ETA - Tell you what. Assuming you're married, dig out the photo album of the occasion and count the number of pictures in which the bride's dress figures prominently and compare that to the number of pictures in which the cake appears at all...

Unfair test--our wedding was so simple there was no cake.

(And the only reason there was a wedding dress is her parents mailed her one.)

*sigh*

TF Bingo