SCOTUS to take the cake

[RavenSky]

He refuses to design custom cakes for Halloween, divorce celebrations, bachelor parties or other events that conflict with his religious views.

Since none of those are "protected classes", there is nothing anyone can do about it.

But what happens when his interpretation of his religion prompts him to refuse to bake cakes for a black child's birthday party or a Jewish Bar Mitzvah? How are those any different than a party for a newly married gay couple?

The bakery has turned away several other same-sex couples on the same grounds, including a lesbian couple who wanted to buy cupcakes for a commitment ceremony.

So much for the claim that it is all about the artistry of the wedding cake specifically

http://www.nybooks.com/articles/2017/12/07/let-them-buy-gay-wedding-cakes/

Likening its cakes to the art of Jackson Pollock and Piet Mondrian, Masterpiece Cakeshop claims that they deserve protection as free speech no less than Pollock’s canvases. But whether the cakes are artistic is beside the point. As an individual artist, Pollock would not have been subject to a public accommodations law and could have chosen his customers. But if he had opened a commercial art studio to the public, he, too, would have been barred from refusing to sell a painting because a customer was black, female, disabled, or gay.

The fact that a business’s products may be expressive does not give it the right to discriminate. Newspapers and book publishers, for example, are indisputably engaged in core First Amendment activity, but that does not mean that they can refuse to sell to (or hire) Mormons or women. As the Supreme Court stated in 1945, “The fact that the publisher handles news while others handle food does not…afford the publisher a peculiar constitutional sanctuary in which he can with impunity violate laws regulating his business practices.”7 If newspapers can be required not to discriminate, then surely bakeries can as well—no matter how artistic their confections may be.

Masterpiece Cakeshop invokes these cases, but they are plainly different. The St. Patrick’s Day parade organizers and the Boy Scouts are private groups that exist for the purpose of communicating ideas, not businesses serving the public in the commercial marketplace. Private organizations engaged in speech have a First Amendment right to choose their messages and their leaders. Businesses open to the public, by contrast, have no right to choose their customers.

 

[Jason Harvestdancer]

He refuses to design custom cakes for Halloween, divorce celebrations, bachelor parties or other events that conflict with his religious views.

Since none of those are "protected classes", there is nothing anyone can do about it.

But what happens when his interpretation of his religion prompts him to refuse to bake cakes for a black child's birthday party or a Jewish Bar Mitzvah? How are those any different than a party for a newly married gay couple?

As far as we know his interpretation of his religion doesn't prompt him to refuse birthday cakes, for people of any race. The Jehovah's Witnesses refuse to celebrate birthdays, so they would refuse birthday cakes, so they would refuse birthday cakes for minorities.

 

[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.

I disagree and you have provided no argument to support this claim

Indeed, I didn’t.

What facts illustrate expressive speech of the custom made rainbow cake?

1. The colors are associated with the same sex rights movement
2. The cake is to be used in an expressive event, such as a parade or wedding.
3. The colors chosen for the cake were undoubtedly the rainbow, colors associated with the movement. Choosing the rainbow colors, which is associated with the movement, was done to unequivocally express the message and views associated with the movement.
4. The cake was conceived with the intention to express a message in relation to an expressive event. The cake is expressive.

Let’s try a less controversial example:

1. Customer enters store and requests a custom made, pink cake.
2. Customer tells cake maker the cake is to be used in a breast cancer parade and the Susan Komen Race for the Cure event.
3. The color pink was chosen because the color pink is associated with the movement to treat and cure breast cancer.
4. The cake was conceived with the intention to express a message in relation to the parade.

The cake, pink, custom made cake, is expressive, just as the former cake.

The person creating the expressive product is speaking by engaging in conduct resulting in the expressive product.


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[James Madison]

I do not have sufficient time to address all your points, I will do so later, but I want to briefly address number one. Number one is false. "Expressiveness" is not entirely subjective. There are some unequivocal, unambiguous, factual scenarios in which undoubtedly there was express conduct/expressive message.

Agreed. The question is whether "this cake" or "that dress" are among those scenarios.

I view these facts differently. The custom cake in this case isn’t obviously expressive and as a result, isn’t one of those “unequivocal, unambiguous” instance of expressive speech.

But I agree, the issue is whether the cake, on these facts, is expressive.


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[Elixir]

The Jehovah's Witnesses refuse to celebrate birthdays...

Heh - so they say. And it's BS. The JWs I know simply celebrate the day after, and deny the association. Just as they buy turkeys the day after Thanksgiving, and load up on candy the day after Halloween.

 

[RavenSky]

Oh noes... a rainbow cake!!

(So much for his artistry, too)

 

[Jimmy Higgins]

...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.”

So you are saying that Phillip's religious orientation is who his is but a wedding cake maker is not his identity. It is just something he "does", which then negates any basis for him to refuse to bake a wedding cake.

Well, I’m expounding upon Kennedy’s reasoning at oral argument. I hadn’t taken the nuanced view Kennedy espoused, although I did initially espouse a similar position that the baker was refusing service for a reason other than on the basis of a protected characteristic under the law.

However, your reasoning doesn’t lead to the conclusion the baker cannot engage in expressive conduct. After all, expressive speech is predicated upon “doing” something.

And Kennedy’s colloquy is based on the text of the Colorado law. The Colorado law protects the characteristic of sexual orientation, but not the conduct or act of marrying. You can read his remarks on page 86-87 at the link I provided.

If a cake without words on it can be expressive, what is a cake that says "XYZ Bakery Celebrates Your Gay Marriage"?

 

[RavenSky]

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.

I disagree and you have provided no argument to support this claim

Indeed, I didn’t.

What facts illustrate expressive speech of the custom made rainbow cake?

1. The colors are associated with the same sex rights movement
2. The cake is to be used in an expressive event, such as a parade or wedding.
3. The colors chosen for the cake were undoubtedly the rainbow, colors associated with the movement. Choosing the rainbow colors, which is associated with the movement, was done to unequivocally express the message and views associated with the movement.
4. The cake was conceived with the intention to express a message in relation to an expressive event. The cake is expressive.

Let’s try a less controversial example:

1. Customer enters store and requests a custom made, pink cake.
2. Customer tells cake maker the cake is to be used in a breast cancer parade and the Susan Komen Race for the Cure event.
3. The color pink was chosen because the color pink is associated with the movement to treat and cure breast cancer.
4. The cake was conceived with the intention to express a message in relation to the parade.

The cake, pink, custom made cake, is expressive, just as the former cake.

The person creating the expressive product is speaking by engaging in conduct resulting in the expressive product.

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And I still disagree with both your premise that there is any "expressive act" inherent in making a cake to the customer's specifications; and with the idea that this claim to "expressive act" should supercede public accommodation laws.

Is this cake for a wedding reception? Or a Quince party? Is the honoree(s) gay or straight? What message is this cake or its baker expressing?

 

[RavenSky]

Last to be heard Tuesday was David Cole, national legal director for the American Civil Liberties Union, who was representing Charlie Craig and David Mullins...

Cole said the dispute did not involve words or speech. "The only thing the baker knew about these customers was that they were gay," he said. "There was no request for a design. There was no request for message. He refused to sell any wedding cake. And that's identity-based discrimination."

http://beta.latimes.com/politics/la-na-pol-court-wedding-cake-20171205-story.html

 

[Jimmy Higgins]

Last to be heard Tuesday was David Cole, national legal director for the American Civil Liberties Union, who was representing Charlie Craig and David Mullins...

Cole said the dispute did not involve words or speech. "The only thing the baker knew about these customers was that they were gay," he said. "There was no request for a design. There was no request for message. He refused to sell any wedding cake. And that's identity-based discrimination."

http://beta.latimes.com/politics/la-na-pol-court-wedding-cake-20171205-story.html

But the expression is in the decorations on the cake by the baker... somehow.

 

[RavenSky]

And Kennedy’s colloquy is based on the text of the Colorado law. The Colorado law protects the characteristic of sexual orientation, but not the conduct or act of marrying. You can read his remarks on page 86-87 at the link I provided.

I see nothing there that "decimates" anyone's argument that the baker engaged in pure discrimination based on the sexual orientation of the customers.

- - - Updated - - -

Last to be heard Tuesday was David Cole, national legal director for the American Civil Liberties Union, who was representing Charlie Craig and David Mullins...

Cole said the dispute did not involve words or speech. "The only thing the baker knew about these customers was that they were gay," he said. "There was no request for a design. There was no request for message. He refused to sell any wedding cake. And that's identity-based discrimination."

http://beta.latimes.com/politics/la-na-pol-court-wedding-cake-20171205-story.html

But the expression is in the decorations on the cake by the baker... somehow.

But the same apparently doesn't apply to the dressmaker or ring maker or florist... somehow

 

[Jimmy Higgins]

I see nothing there that "decimates" anyone's argument that the baker engaged in pure discrimination based on the sexual orientation of the customers.

- - - Updated - - -

Last to be heard Tuesday was David Cole, national legal director for the American Civil Liberties Union, who was representing Charlie Craig and David Mullins...

Cole said the dispute did not involve words or speech. "The only thing the baker knew about these customers was that they were gay," he said. "There was no request for a design. There was no request for message. He refused to sell any wedding cake. And that's identity-based discrimination."

http://beta.latimes.com/politics/la-na-pol-court-wedding-cake-20171205-story.html

But the expression is in the decorations on the cake by the baker... somehow.

But the same apparently doesn't apply to the dressmaker or ring maker or florist... somehow

Because making a dress is easy. It isn't like baking a cake. Do you use eggs to make a dress? No! Do you use fondant to make a dress? No! Do you use expression to make a dress? No!

The cake is the central part of the wedding. It is why it is on the alter next to the naked bride who isn't wearing her dress yet because that is a party thing.

I made a "custom cake" for my daughter's birthday.

I'm curious what the expression is here. Based on James Madison's take, it is whatever I claim it is.

 

[RavenSky]

The CCRD’s decision noted evidence in the record that Phillips had expressed willingness to take a cake order for the “marriage” of two dogs, but not for the commitment ceremony of two women,

His religious beliefs about the religious sanctity of marriage are so sincere, he was willing to make a cake celebrating the "marriage" of two dogs, but not the commitment ceremony (which is not a marriage ceremony) of two women.

and that he would not make a cake for a same-sex couple’s wedding celebration “just as he would not be willing to make a pedophile cake.”

https://aclu-co.org/court-rules-bakery-illegally-discriminated-against-gay-couple/

What is a "pedophile cake"? A cake shaped like Roy Moore?

 

[Jimmy Higgins]

The CCRD’s decision noted evidence in the record that Phillips had expressed willingness to take a cake order for the “marriage” of two dogs, but not for the commitment ceremony of two women,

His religious beliefs about the religious sanctity of marriage are so sincere, he was willing to make a cake celebrating the "marriage" of two dogs, but not the commitment ceremony (which is not a marriage ceremony) of two women.

and that he would not make a cake for a same-sex couple’s wedding celebration “just as he would not be willing to make a pedophile cake.”

https://aclu-co.org/court-rules-bakery-illegally-discriminated-against-gay-couple/

What is a "pedophile cake"? A cake shaped like Roy Moore?

I love the false equivalence bullshit. I wouldn't make a same-sex wedding cake, like I wouldn't make a cake celebrating Bill Belichick's (Satan's) birthday. They love equating civil rights to perversion.

 

[Worldtraveller]

There are some odd features to this case.

At the time of the original incident, gay marriage was not recognized by the state of Colorado. Yet he was cited by Colorado for not participating in something Colorado didn't participate in.

He didn't refuse to sell them a cake, he refused to sell them a custom cake.

They didn't take their business elsewhere, they complained to the government.

That last one really confuses me.

The part about thinking you're being discriminated against and seeking justice through the one entity (the courts) that is tasked to do that?

What part don't you understand?

 

[James Madison]

I see nothing there that "decimates" anyone's argument that the baker engaged in pure discrimination based on the sexual orientation of the customers.

Other than Kennedy’s distinction the act of marriage isn’t their identity under the Colorado law? This distinction hasn’t been adequately refuted.



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[James Madison]

I see nothing there that "decimates" anyone's argument that the baker engaged in pure discrimination based on the sexual orientation of the customers.

- - - Updated - - -

http://beta.latimes.com/politics/la-na-pol-court-wedding-cake-20171205-story.html

But the expression is in the decorations on the cake by the baker... somehow.

But the same apparently doesn't apply to the dressmaker or ring maker or florist... somehow

Because making a dress is easy. It isn't like baking a cake. Do you use eggs to make a dress? No! Do you use fondant to make a dress? No! Do you use expression to make a dress? No!

The cake is the central part of the wedding. It is why it is on the alter next to the naked bride who isn't wearing her dress yet because that is a party thing.

I made a "custom cake" for my daughter's birthday.

I'm curious what the expression is here. Based on James Madison's take, it is whatever I claim it is.

Do not resort to Strawman arguments. Nothing I’ve said permits the expressive message to be “whatever I claim it is.” My position is contrary to such a notion.

That’s an interesting example you invoke.

What’s the expressive message? Can this type of art be censored since, well, it’s expressive message isn’t discernible?


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[James Madison]

Well, I’m expounding upon Kennedy’s reasoning at oral argument. I hadn’t taken the nuanced view Kennedy espoused, although I did initially espouse a similar position that the baker was refusing service for a reason other than on the basis of a protected characteristic under the law.

However, your reasoning doesn’t lead to the conclusion the baker cannot engage in expressive conduct. After all, expressive speech is predicated upon “doing” something.

And Kennedy’s colloquy is based on the text of the Colorado law. The Colorado law protects the characteristic of sexual orientation, but not the conduct or act of marrying. You can read his remarks on page 86-87 at the link I provided.

If a cake without words on it can be expressive, what is a cake that says "XYZ Bakery Celebrates Your Gay Marriage"?

That is what the Court characterizes as “pure speech.”


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[RavenSky]

I see nothing there that "decimates" anyone's argument that the baker engaged in pure discrimination based on the sexual orientation of the customers.

Other than Kennedy’s distinction the act of marriage isn’t their identity under the Colorado law? This distinction hasn’t been adequately refuted.

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First of all, it was one sentence out of 113 pages. Justice Kennedy also said (to the attorney for the baker):

JUSTICE KENNEDY: But the problem for you is that so many of these examples -- and a photographer can be included -- do involve speech. It means that there's basically an ability to boycott gay marriages.

Second, it appears to me that Kennedy was suggesting what the bakery's argument it, not stating that it is his own position regarding the merits of the case:

JUSTICE KENNEDY: Well, but this whole concept of identity is a slightly -- suppose he says: Look, I have nothing against -- against gay people. He says but I just don't think they should have a marriage because that's contrary to my beliefs. It's not -* It's not their identity; it's what they're doing.

To which, Cole replies:

MR. COLE: Well, Justice Kennedy, this Court faced that question in Bob Jones University. Bob Jones University said we're not discriminating on the basis of race; we allow black people to come into the school. We just refuse to admit those who are engaged in interracial marriages or advocate interracial dating. And this Court said that's race discrimination. That's identity-based discrimination, even if you treat others similarly.

 

[James Madison]

I see nothing there that "decimates" anyone's argument that the baker engaged in pure discrimination based on the sexual orientation of the customers.

- - - Updated - - -

http://beta.latimes.com/politics/la-na-pol-court-wedding-cake-20171205-story.html

But the expression is in the decorations on the cake by the baker... somehow.

But the same apparently doesn't apply to the dressmaker or ring maker or florist... somehow

Because making a dress is easy. It isn't like baking a cake. Do you use eggs to make a dress? No! Do you use fondant to make a dress? No! Do you use expression to make a dress? No!

The cake is the central part of the wedding. It is why it is on the alter next to the naked bride who isn't wearing her dress yet because that is a party thing.

I made a "custom cake" for my daughter's birthday.

I'm curious what the expression is here. Based on James Madison's take, it is whatever I claim it is.

Why did you choose a paw patrol themed birthday and a cake with a dog face?


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