SCOTUS to take the cake

[RavenSky]

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

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..

The number of sentences devoted to the topic by Kennedy isn’t illuminative of his view. Rather, the content of his remarks is compelling.

Given that many other comments/questions made by Justice Kennedy throughout the hearing seem to indicate a very different view, and - as I noted - the way Justice Kennedy made this specific remark seems to me to indicate he is summarizing the baker's pov rather than illuminating his own, I will have to again disagree with your opinion.

- - - Updated - - -

I stated previously not every custom made cake will be expressive but in certain contexts a custom made cake can be and is expressive.

Yes, you have stated this multiple times. What you have failed to do, however, is demonstrate why; or to provide any sort of measure by which any reasonable person could say "this cake is expressive but that cake is not"; or how this elusive claim of "expression" should supercede the public good of non-discrimination at public accommodations.

To the contrary, I’ve stated repeatedly how custom made cakes are expressive. Indeed, I’ve given examples of how a rainbow cake and a pink cake are expressive and how they aren’t.


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I am sure that you believe you have done so, but you haven't actually

Your examples were entirely dependent on the baker having knowledge of the end use of the cake - which means it is not the cake or his skill that is expressive in and of itself.

 

[Elixir]

Your examples were entirely dependent on the baker having knowledge of the end use of the cake - which means it is not the cake or his skill that is expressive in and of itself.

Bingo. Would JM have us believe that the baker would refuse to bake a rainbow cake for a 4 year old's birthday party, and be correct in doing so?

 

[RavenSky]

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.

According to you, this cake is or is not expressive ONLY dependent on whether the baker is told what the end use will be:



As such, it is no longer the baker's expression we are discussing, and therefore the claim of an exemption from public accommodation laws via a "freedom of speech" claim fails.

BTW, the text the accompanies that particular cake photo: "Full-spectrum fabulous is the order of the day when you serve this treat at a kid's birthday or half birthday celebration."

 

[RavenSky]

Your examples were entirely dependent on the baker having knowledge of the end use of the cake - which means it is not the cake or his skill that is expressive in and of itself.

Bingo. Would JM have us believe that the baker would refuse to bake a rainbow cake for a 4 year old's birthday party, and be correct in doing so?

Actually, if I am understanding him correctly, Madison's argument is that a baker would NOT be allowed to refuse a rainbow cake for a kid's birthday party because that would not be "expressive" but WOULD be able to refuse the exact same cake to a gay couple if the gay couple happens to mention that it is for their wedding reception because somehow the exact same cake becomes magically "expressive" if/when the baker is told what the end use will be.

I think that is a ridiculous argument, and shows just how empty the entire claim of "expressive speech" is in this case.

 

[RavenSky]

Because I do find the arguments in this case to be fascinating...

In fact, Phillips’s case is very strong... One argument for Phillips in particular survives the best objections leveled in briefs filed by the Colorado Civil Rights Commission, by the ACLU (on behalf of the couple who sought the cake), and by several constitutional law scholars.

That argument rests on the widely acknowledged principle that freedom of speech has to include the freedom not to speak.

They are assuming a premise not in evidence. Yes, it is accepted that "freedom of speech has to include the freedom not to speak" and it is accepted that "artistic expression" counts as “speech” - but what is NOT yet demonstrated is that a cake is "artistic expression".

Moreover, even IF a cake is "artistic expression", this article assumes their claim of "artistic expression" automatically supersedes state accommodation laws. It doesn't, and they have failed to show why it should.

Phillips argues that the Colorado Civil Rights Commission has compelled his artistic expression (which counts as “speech” under our law) by forcing him to create same-sex wedding cakes if he wants to stay in the wedding business. To be clear, Phillips serves all patrons, whatever their religion or sexual orientation. But he won’t design cakes celebrating themes that go against his religious beliefs as an evangelical Christian. So he takes a hit to his business to avoid designing cakes for Halloween parties, which are big sellers, as well as lewd bachelor parties, divorce parties, and much else. And he won’t design cakes that celebrate same-sex weddings since he believes that only a man and woman can form a true marriage.

I've seen this aspect repeated several times. Phillips points to his long-standing refusal to make Halloween-themed cakes because of his religious objections to the holiday. In his mind, he equates this with his refusal to sell a wedding cake to a gay couple.

Here is the difference - he has every right to decide what kind of cakes (or other products) he will make, and no one can force him to produce a specific theme that he disagrees with. But as soon as he produces a specific theme, he cannot discriminate against which customer(s) he will sell that cake to.

To use his Halloween-themed cake as the example, since he doesn't make Halloween cakes for anyone ever, he cannot be forced to make a Halloween cake for the gay couple either. But since he DOES (or did) make wedding cakes for the general public, he cannot refuse to make a wedding cake for the gay couple. That is the point of "public accommodation".

The article goes on to list a bunch of examples of "freedom from speech":

Applying that principle, it has held that the government can’t force Jehovah’s Witnesses to salute the flag. It can’t force newspapers to carry columns by politicians criticized in their pages. It can’t force drivers to carry license plates with a state-imposed (though utterly banal) slogan (“Live Free or Die”). It can’t force companies to include third-party messages in their billing envelopes.

except that in every example there is actual speech or expression involved. The author is still skipping over the fact that he has not established that a wedding cake, in and of itself, expresses "gay wedding" vs "straight wedding"

A Halloween-themed cake will necessarily express "halloween" - which this baker objects to. As such, he is well within his rights to refrain from making a halloween-themed cake for anyone.

A wedding cake may possibly express "wedding" (or possibly quince or sweet 16 or debutante or just "really fucking fancy party"), but what it does not do is express "gay wedding" vs "straight wedding".

Forcing Phillips to custom-design and create same-sex wedding cakes is compelled speech: it forces him to create an expressive (artistic) product carrying a message he rejects.

There is no such thing as a "same-sex wedding cake". There is a wedding cake, period. Once you get to the "same-sex" part, you are necessarily discussing the customers, and the legal argument fails immediately.

I really am looking for any explanation of this argument that seems to hold any water, but so far no one has offered up anything that doesn't assume an unsupported premise.

 

[Jimmy Higgins]

The big issue here is that SCOTUS and plenty on the alt-right seem to think there is such thing as a "gay wedding", when in fact, it is just a "wedding". This clearly indicates that the identity of the people is all that matters here to the baker, when deciding to not sell a wedding cake to the gay couple.

 

[RavenSky]

In a different article

Abraham Hamilton III, general counsel to the American Family Association, is wary of arguments comparing Phillips’s refusal to make a wedding cake for gay people to racial discrimination. “As an African American man myself, I think to conflate issues concerning marital preferences as something as easily identifiable as skin color is offensive.” The reason Hamilton believes “the two are not remotely on the same page” is that skin color is a “readily discernible characteristic” and sexual orientation is not.

I would be curious to hear more from him as to what he thinks the differences are, and why those alleged differences should matter.

He seems to offer up two points for consideration:

1. marital preferences
2. sexual orientation

As to "marital preferences" he seems to be suggesting (similar to an argument James Madison offered up) that marriage is an "act" rather than who the person is. The implication seems to be that the baker (or hotelier or restaurant or photographer or florist) could refuse to provide their services for a couple engaged in an "act" they disagree with while claiming this denial has nothing to do with who the people are.

Sort of "love the sinner, hate the sin" as an exemption to public accommodation laws.

I am rather surprised that Abraham Hamilton would want to make this particular argument. Or would he agree that Loving v Virginia was all about the "act" of marriage (and thereby rightfully denied to the couple), or was it about discrimination against the people. We know which side the USSC came down on. I wonder what Abraham Hamilton's thoughts are.

His second comment says "skin color is a “readily discernible characteristic” and sexual orientation is not". OK, I will grant him that.

So?

If anything, observing that sexual orientation is not a "readily discernible characteristic" actually destroys the baker's claim of any inherent "expression" in providing a wedding cake to a gay couple. Unless the baker was specifically told who the cake is for, he would have no way to know it was for the celebration of a same-sex marriage.

I suspect that Abraham Hamilton was alluding to the erroneous belief that being gay is a choice - but that he knows this argument will not fly so he is trying to hide it in a jumble of words about "marital preferences" and "readily discernible characteristics". Unfortunately for him, he fails.

 

[Elixir]

Pretty interesting stuff. Now, let's say the baker wins this in court. I just CAN'T WAIT for the first time someone comes into a "Christian Bakery", orders a rainbow cake "for my kid's 4th birthday party", but then the baker sees the cake on FB or instagram, and it's at a gay wedding. So he sues the customer for the deception, which infringes on his religious beliefs by making him an unwillingly accomplice in a sinful act that places his immortal soul in jeopardy...
Popcorn time!

 

[RavenSky]

Pretty interesting stuff. Now, let's say the baker wins this in court. I just CAN'T WAIT for the first time someone comes into a "Christian Bakery", orders a rainbow cake "for my kid's 4th birthday party", but then the baker sees the cake on FB or instagram, and it's at a gay wedding. So he sues the customer for the deception, which infringes on his religious beliefs by making him an unwillingly accomplice in a sinful act that places his immortal soul in jeopardy...
Popcorn time!

I think your point illustrates exactly how absurd the baker's "artistic expression" argument really is. Basically, he is suggesting that there needs to be a "don't ask, don't tell" policy for cakes

 

[blastula]

But if they just wanted a cake why didn't they go to the multitude of other places that make cakes? They could have gone to Dairy Queen, Albertsons, King Soopers, etc any of which have a variety of cakes.

"If they wanted to eat dinner, why didn't they go to another restaurant?" Though even that scenario may not be a problem for you.

 

[Jimmy Higgins]

But if they just wanted a cake why didn't they go to the multitude of other places that make cakes? They could have gone to Dairy Queen, Albertsons, King Soopers, etc any of which have a variety of cakes.

"If they wanted to eat dinner, why didn't they go to another restaurant?" Though even that scenario may not be a problem for you.

Be prepared for the "well, if they want something the restaurant doesn't serve..." false analogy.

 

[blastula]

The baker is essentially demanding control over what you do with the product after purchase.

Not really, not in this case and the facts of this case do not support your characterization.

You mean if the same gay person came in and wanted to buy an exact same wedding cake but it was going to be used for a different person's straight wedding, the baker would have also denied it?

 

[Elixir]

I can't wait for homo/hetero specialty bakeries, where you have to perform a homo or heterosexual act in front of the proprietor before they'll bake you a cake.

 

[untermensche]

It's bad enough to be a demented sick fuck that won't make a cake for a gay wedding but to take this creature's delusions seriously.

We have a worthless polluted failing legal system.

Corrupted more and more everyday by Republican leaning judges that have no principles and are seriously deluded themselves and are promoting their religious delusions in the public space.

 

[James Madison]

Given that many other comments/questions made by Justice Kennedy throughout the hearing seem to indicate a very different view, and - as I noted - the way Justice Kennedy made this specific remark seems to me to indicate he is summarizing the baker's pov rather than illuminating his own, I will have to again disagree with your opinion.

- - - Updated - - -

I stated previously not every custom made cake will be expressive but in certain contexts a custom made cake can be and is expressive.

Yes, you have stated this multiple times. What you have failed to do, however, is demonstrate why; or to provide any sort of measure by which any reasonable person could say "this cake is expressive but that cake is not"; or how this elusive claim of "expression" should supercede the public good of non-discrimination at public accommodations.

To the contrary, I’ve stated repeatedly how custom made cakes are expressive. Indeed, I’ve given examples of how a rainbow cake and a pink cake are expressive and how they aren’t.


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I am sure that you believe you have done so, but you haven't actually

Your examples were entirely dependent on the baker having knowledge of the end use of the cake - which means it is not the cake or his skill that is expressive in and of itself.

Kennedy’s other questions did not repudiate his view the equivocation of identity to the act of marriage was “facile.” In fact, nowhere else does Kennedy contest or address the equivocation of getting married to identity. So, relying upon his other remarks which do not address the equivocation of identity to the act of getting married is misplaced.

Further, the text is devoid of any hint Kennedy is presenting the baker’s view in challenging the equivocation of identity to the act of marriage. Kennedy didn’t say, “Petitioner alleges, argues, asserts.” Kennedy is speaking for himself and the facts and context demonstrate Kennedy is expressing his own view. The baker didn’t characterize the opposing argument as “facile,” Kennedy did.

You can absolutely disagree, but the facts and logical inferences from those facts do not support your disagreement. There is nothing, nothing, in the transcript supporting any notion Kennedy did not believe the argument of equivocating identity to the act of marriage was “facile.”

Kennedy clearly did not find as persuasive the equivocation of identity to getting married and labeled the argument “facile.” Kennedy’s words, no one else’s.

Your examples were entirely dependent on the baker having knowledge of the end use of the cake - which means it is not the cake or his skill that is expressive in and of itself.

This logic cannot be correct. It’s illogical to suggest, as you do, a lack of knowledge of the end use of the product determines whether the cake was a product of the maker’s skill. To use an example, the fact the painter knows his painting is to be used by the customer for some “end use” doesn’t negate the fact the expressive talents of the painter are required to create the expressive product. The painter is most assuredly engaged in expression when creating a painting for a customer and this is true regardless of whether the painter knows how the painting is to be used.

Similarly, the cake makers expressive talents are required to make the expressive product to be used.


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[James Madison]

Pretty interesting stuff. Now, let's say the baker wins this in court. I just CAN'T WAIT for the first time someone comes into a "Christian Bakery", orders a rainbow cake "for my kid's 4th birthday party", but then the baker sees the cake on FB or instagram, and it's at a gay wedding. So he sues the customer for the deception, which infringes on his religious beliefs by making him an unwillingly accomplice in a sinful act that places his immortal soul in jeopardy...
Popcorn time!

I think your point illustrates exactly how absurd the baker's "artistic expression" argument really is. Basically, he is suggesting that there needs to be a "don't ask, don't tell" policy for cakes

Well, Elixir’s hypo was based on religious belief, which involves the free exercise of religion clause, and not expression and the free speech clause.

And it’s possible, given Kennedy and Alito’s remarks, the cake maker could win under the free exercise of religion clause under the theory of Lukumi Babalu v City Of Hialeah, a point I made previously.


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[RavenSky]

Given that many other comments/questions made by Justice Kennedy throughout the hearing seem to indicate a very different view, and - as I noted - the way Justice Kennedy made this specific remark seems to me to indicate he is summarizing the baker's pov rather than illuminating his own, I will have to again disagree with your opinion.

Kennedy’s other questions did not repudiate his view the equivocation of identity to the act of marriage was “facile.” In fact, nowhere else does Kennedy contest or address the equivocation of getting married to identity. So, relying upon his other remarks which do not address the equivocation of identity to the act of getting married is misplaced.

I do not think the word "facile" means what you think it means... or perhaps you are purposely equivocating.

All Justice Kennedy said with that specific word is that the situation may be more complicated than just discrimination. That's all. Justice Kennedy did not state any personally held view in that exchange.

 

[James Madison]

Pretty interesting stuff. Now, let's say the baker wins this in court. I just CAN'T WAIT for the first time someone comes into a "Christian Bakery", orders a rainbow cake "for my kid's 4th birthday party", but then the baker sees the cake on FB or instagram, and it's at a gay wedding. So he sues the customer for the deception, which infringes on his religious beliefs by making him an unwillingly accomplice in a sinful act that places his immortal soul in jeopardy...
Popcorn time!

The manner in which you phrased the facts would very likely result in the court dismissing the complaint under at 12(b) (6) motion, failure to state a claim upon which relief can be granted.


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[RavenSky]

Further, the text is devoid of any hint Kennedy is presenting the baker’s view in challenging the equivocation of identity to the act of marriage. Kennedy didn’t say, “Petitioner alleges, argues, asserts.” Kennedy is speaking for himself and the facts and context demonstrate Kennedy is expressing his own view. The baker didn’t characterize the opposing argument as “facile,” Kennedy did.

Wrong. I even quoted the specific passage wherein Justice Kennedy made it clear that he was speculating the baker's position, and not stating his own:

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.

Justice Kennedy's view is simply that "it's complicated" - nothing else

 

[James Madison]

I do not think the word "facile" means what you think it means... or perhaps you are purposely equivocating.

All Justice Kennedy said with that specific word is that the situation may be more complicated than just discrimination. That's all. Justice Kennedy did not state any personally held view in that exchange.

I’m very familiar with the meaning of the word. In this context, Kennedy is telling counsel the argument “ignoring true complexities of the issue; lacking depth; superficial.” Webster and Oxford dictionaries.

Kennedy said counsel’s treatment of identity to the act of marriage is “facile.” Those were his words.

“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 -*

JUSTICE KENNEDY: It's not their
identity; it's what they're doing

JUSTICE KENNEDY: I think it's -- your
identity thing is just too facile.”

Kennedy’s hypo. Kennedy’s choice of wording. He didn’t attribute this view to any one else. Kennedy is not endorsing counsel’s argument of the act of marriage to identity. He called it “facile.”



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