SCOTUS to take the cake

[James Madison]

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

It’s a hypothetical Kennedy came up with. It’s a hypo conjured up by Kennedy, a common tactic used by justices in oral argument.

You mistakenly attributed Kennedy’s hypo as a hypo by the baker or to be attributed to the baker or the baker’s view. This isn’t the baker’s view. Kennedy didn’t state this is the baker’s view.

It’s Kennedy’s hypo! It’s his view, he’s making his own point the argument is “facile” by use of his own hypo. He’s not expressing the baker’s view. It’s not a view made by the baker. No one else is speaking here but Kennedy for Kennedy to express his view the argument is “facile.”

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

That’s a euphemistic view but the context shows Kennedy isn’t persuaded.


Sent from my iPhone using Tapatalk

 

[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.

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.

OK, let's pretend, for the sake of discussion, that cakes are "expressive" in the exact same way as a painting is...

When someone goes to a gallery and purchases a piece of art, you are correct that the artist has already used his/her skills to express themselves in the medium. It is also true that the purchaser's interpretation of that expression may be completely different than what the artist had in mind, and that the purchaser's end use may be completely different from what the artist originally envisioned.

But the purchaser's intent does not change the artist's original expression. The paint on the canvas does not suddenly change, what the artist intended to express does not suddenly change, because of the purchaser's intended use.

Two Rothko abstracts have been hung both vertically and horizontally over the years. It is reasonable to assume that changing the direction the paintings are hung might change the feelings/artistic interpretations of those viewing the painting; but does that change what Rothko was expressing when he painted the canvasses?

And more to the point of this cake baker, IF cakes are "expressive works of art" (a highly dubious premise in my opinion), then your position has to be that the baker intends to express "this is a wedding cake for a gay couple". As such, you need to demonstrate how a cake can be made to express exactly that.

You tried to use the example of a rainbow cake, but your explanation fell apart because it was dependent on the end use - not the baker's "artistic expression". In other words, perhaps this baker has the skill and artistry to make the most beautiful rainbow cake the world has ever seen... there is still nothing in the cake itself that says "same-sex wedding reception" vs "4-year old's birthday". That is the point.

 

[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!

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.


Sent from my iPhone using Tapatalk

Which then goes to show that the claim of "expression" and objection to supposed "forced expression" in the current case is based entirely on knowledge of the end use and therefore not "artistic expression" in the cake itself.

 

[RavenSky]

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.

I can read a dictionary, too - and you just verified my point, thank you.

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

Yes... in other words, "It's more complicated than that"

If it weren't more complicated, it wouldn't be in front of the USSC.

“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

bolding mine. As I said, Justice Kennedy is speculating about the baker's position/pov

 

[James Madison]

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.

I can read a dictionary, too - and you just verified my point, thank you.

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

Yes... in other words, "It's more complicated than that"

If it weren't more complicated, it wouldn't be in front of the USSC.

“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

bolding mine. As I said, Justice Kennedy is speculating about the baker's position/pov

He isn’t speculating about the baker’s POV. Rather, he used his own hypo to express his own view the argument was “facile.”


Sent from my iPhone using Tapatalk

 

[RavenSky]

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

It’s a hypothetical Kennedy came up with. It’s a hypo conjured up by Kennedy, a common tactic used by justices in oral argument.

You mistakenly attributed Kennedy’s hypo as a hypo by the baker or to be attributed to the baker or the baker’s view. This isn’t the baker’s view. Kennedy didn’t state this is the baker’s view.

It’s Kennedy’s hypo! It’s his view, he’s making his own point the argument is “facile” by use of his own hypo. He’s not expressing the baker’s view. It’s not a view made by the baker. No one else is speaking here but Kennedy for Kennedy to express his view the argument is “facile.”

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

That’s a euphemistic view but the context shows Kennedy isn’t persuaded.


Sent from my iPhone using Tapatalk

That I am "mistaken" is purely your opinion. MY opinion is that YOU are mistaken.

Unless/until you can produce Justice Kennedy here to clarify his own position, or anything FACTUAL to support your opinion, I will stand by MY opinion over yours.

Quibbling over our opinions is a derail, in my opinion

 

[James Madison]

It’s a hypothetical Kennedy came up with. It’s a hypo conjured up by Kennedy, a common tactic used by justices in oral argument.

You mistakenly attributed Kennedy’s hypo as a hypo by the baker or to be attributed to the baker or the baker’s view. This isn’t the baker’s view. Kennedy didn’t state this is the baker’s view.

It’s Kennedy’s hypo! It’s his view, he’s making his own point the argument is “facile” by use of his own hypo. He’s not expressing the baker’s view. It’s not a view made by the baker. No one else is speaking here but Kennedy for Kennedy to express his view the argument is “facile.”



That’s a euphemistic view but the context shows Kennedy isn’t persuaded.


Sent from my iPhone using Tapatalk

That I am "mistaken" is purely your opinion. MY opinion is that YOU are mistaken.

Unless/until you can produce Justice Kennedy here to clarify his own position, or anything FACTUAL to support your opinion, I will stand by MY opinion over yours.

Quibbling over our opinions is a derail, in my opinion

Sure.

Fact: Baker never used the word “facile.”

Fact: Baker’s attorney never used word “facile.”

Fact: Kennedy used the word “facile.”

Fact: Kennedy used the word “facile” in addressing counsel’s argument.

Fact: Kennedy used a hypo to make the point the argument was “facile.”

There is nothing in the transcript to support any notion Kennedy was speaking for, on behalf of, or expressing the view of the baker.

Kennedy said the argument was “facile” and this is supported by the transcript. Kennedy is expressing his view, no one else’s.

And it’s not a tangent but directly relevant to whether the baker violated the CO law.


Sent from my iPhone using Tapatalk

 

[RavenSky]

https://www.nytimes.com/2017/11/27/opinion/gay-wedding-cake.html

The reason the nation’s high court is giving the case a second glance is Phillips’s First Amendment claim that he was not, in fact, discriminating on the basis of sexual orientation, but on the basis of a particular message: endorsement of same-sex marriage. Phillips made it clear to the gay couple that he would happily sell them other items: birthday cakes, cookies, and so on. He welcomes LGBT customers; he is simply unwilling to use his artistic talents in the service of a message that he deems immoral.

ooooo... so, just like I have been saying, based on the baker's claim it would be "facile" to insist that this case is only about discrimination, and that is why the USSC is hearing it

One might better appreciate Phillips’s position by considering a second case. In 2014, not long after the commission announced its Masterpiece decision, William Jack attempted to buy a cake at Azucar Bakery in Denver, Colo. Specifically, he requested a Bible-shaped cake decorated with an image of two grooms covered by a red X, plus the words “God hates sin. Psalm 45:7” and “Homosexuality is a detestable sin. Leviticus 18:22.” The owner, Marjorie Silva, refused to create such an image or message, which conflicts with her moral beliefs. She did, however, offer to sell him a Bible-shaped cake and provide an icing bag so that he could decorate it as he saw fit. The customer filed a complaint alleging religious discrimination, which is also prohibited by Colorado’s public accommodations law. But the commission disagreed, arguing that Silva’s refusal was based not on the customer’s religion, but on the cake’s particular message.

Put aside the plausible objection that treating cakes as speech — especially cakes without writing, as in the Masterpiece case — abuses the First Amendment. And put aside the even more plausible objection that whatever “speech” is involved is clearly that of the customers, not of the baker: As law professors Dale Carpenter and Eugene Volokh explain in a Masterpiece brief, “No one looks at a wedding cake and reflects, ‘the baker has blessed this union.’ ” After all, that objection is arguably just as applicable to the Bible-cake case.

It is tempting to describe Marjorie Silva’s Bible-cake refusal as the moral mirror-image of Jack Phillips’s wedding-cake refusal: Neither baker was willing to assist in conveying a message to which they were morally opposed.

But that’s not quite right. For recall that Silva was willing to sell the customer a Bible-shaped cake and even to provide an icing bag, knowing full well what the customer intended to write. She was willing to sell this customer the very same items that she would sell to any other customer; what he did with them after leaving her store was, quite literally, none of her business.

and this is the same discussion we have had about cake toppers. I don't recall that anyone here ever suggested or agreed that bakers should be forced to sell same-sex wedding cake toppers, or forced to write any sort of same-sex message in the icing.

Therein lies the crucial difference between the cases: Silva’s objection was about what she sold; a design-based objection. Phillips’s objection was about to whom it was sold; a user-based objection. The gay couple never even had the opportunity to discuss designs with Phillips, because the baker made it immediately clear that he would not sell them any wedding cake at all. Indeed, Masterpiece once even refused a cupcake order to lesbians upon learning that they were for the couple’s commitment ceremony.

The bolded is the key point, in my opinion. This baker cannot claim that the cake itself is the expression he is objecting to when he would not even discuss the proposed design of the cake, nor demonstrate how the finished cake would "express" anything different for any other cake he ever made for any other couple.

In his defense, Phillips has pointed out that he refuses to sell Halloween cakes or demon-themed cakes; he analogizes these refusals to his unwillingness to sell gay wedding cakes. In other words, he maintains that his turning away the gay couple was about what was requested, not who was requesting it.

The problem with this retort is that “gay wedding cakes” are not a thing. Same-sex couples order their cakes from the same catalogs as everyone else, with the same options for size, shape, icing, filling, and so on. Although Phillips’s cakes are undeniably quite artistic, he did not reject a particular design option, such as a topper with two grooms — in which case, his First Amendment argument would be more compelling. Instead, he flatly told Craig and Mullins that he would not sell them a wedding cake.

Very similar to the point I was making a few days ago

But wait: Isn’t there a difference between discrimination that’s user-based and discrimination that’s use-based? The winemaker in our example is not refusing to sell wine to Catholics, or even to priests; she is merely refusing to sell the wine for a particular purpose. Same with the fabric-store owner, who might happily sell to Muslims making curtains. In a similar vein, Jack Phillips is explicitly willing to sell LGBT people a wide range of baked goods, as long as they are not to be used for same-sex weddings.

This kind of sophistry has been rejected by the Court before. As the late Justice Scalia once wrote, “A tax on wearing yarmulkes is a tax on Jews.” Some activities are so fundamental to certain identities that discrimination according to one is effectively discrimination according to the other. That’s certainly true of wearing hijabs and religion, or celebrating mass and religion; likewise of same-sex weddings and sexual orientation. In such cases, use-based discrimination and user-based discrimination amount to the same thing.

This is a point the ACLU attorney could have made.

...the underlying principle from Piggie Park holds in the case at hand: Freedom of speech and freedom of religion do not exempt business owners from public accommodations laws, which require them to serve customers equally. The Court should uphold the commission’s decision and rule against Phillips.

 

[Jimmy Higgins]

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?

This is crucial, whether SCOTUS wants to agree with it or not as it points to identity.

Gay couple comes in to buy cake for their wedding - denied.
Gay couple comes in to buy cake for straight friend's wedding - sold.

The event hasn't changed. It is still a wedding. Granted, the baker is really making quite a big deal about himself and how important and crucial his blessing on the event is.

 

[untermensche]

Why is the baker discriminating in a public business?

Because his god told him to.

That should be enough for any adult to laugh this nonsense out of court.

That this delusion gets so far is because it is a delusion Republican leaning judges have been carefully selected for. Without these delusions you can't get nominated by Republicans.

Law made by delusion.

And don't let no lawyer tell you different.

 

[RavenSky]

<snipped>

Your quibbling over your OPINION vs my OPINION regarding Justice Kennedy's overall predetermined position in this case based on his use of a single word is a red herring.

I happily stipulate that this case is potentially more complicated than "just" a discussion about discrimination. If it were more complicated, it wouldn't be in front of the USSC and we wouldn't have a lengthy thread about it.

 

[Jimmy Higgins]

Why is the baker discriminating in a public business?

Because his god told him to.

That should be enough for any adult to laugh this nonsense out of court.

That this delusion gets so far is because it is a delusion Republican leaning judges have been carefully selected for. Without these delusions you can't get nominated by Republicans.

Law made by delusion.

And don't let no lawyer tell you different.

The big matter here is that this sort of excuse was used in the 60's with blacks and interracial couples. That it was against God's will. That was smacked down hard in Loving v Virginia. But gay is the new black, and it is okay to discriminate against gays because umm... Eureka!!! We'll say it is a form of expression! And the lawyer at that point laments... 'if only someone had thought of 'expression' in the 60s'.

 

[untermensche]

Why is the baker discriminating in a public business?

Because his god told him to.

That should be enough for any adult to laugh this nonsense out of court.

That this delusion gets so far is because it is a delusion Republican leaning judges have been carefully selected for. Without these delusions you can't get nominated by Republicans.

Law made by delusion.

And don't let no lawyer tell you different.

The big matter here is that this sort of excuse was used in the 60's with blacks and interracial couples. That it was against God's will. That was smacked down hard in Loving v Virginia. But gay is the new black, and it is okay to discriminate against gays because umm... Eureka!!! We'll say it is a form of expression! And the lawyer at that point laments... 'if only someone had thought of 'expression' in the 60s'.

I think that having more than half the judges sitting out there sitting there because of their specific religious delusions is the worrisome part.

Did anyone see that last person Trump put up to be a judge? He did not know even the basics of the law. Not a laughing matter. What is he making decisions based on? Only Trump knows.

That this stupid stupid easy case can see the SC is just the tip of a very big insane iceberg and we are all prey to it. Especially anyone who is not a deluded Christian.

 

[RavenSky]

Why is the baker discriminating in a public business?

Because his god told him to.

That should be enough for any adult to laugh this nonsense out of court.

That this delusion gets so far is because it is a delusion Republican leaning judges have been carefully selected for. Without these delusions you can't get nominated by Republicans.

Law made by delusion.

And don't let no lawyer tell you different.

The big matter here is that this sort of excuse was used in the 60's with blacks and interracial couples. That it was against God's will. That was smacked down hard in Loving v Virginia. But gay is the new black, and it is okay to discriminate against gays because umm... Eureka!!! We'll say it is a form of expression! And the lawyer at that point laments... 'if only someone had thought of 'expression' in the 60s'.

They did.

 Piggie Park Enterprises was, in 1964, a drive-in BBQ chain with four restaurants, created and operated by Maurice Bessinger, the Baptist head of the National Association for the Preservation of White People.[2][3] Bessinger's restaurants did not allow African-Americans to eat in the restaurant.[4] Following Bessinger's refusal to allow Anne Newman,[5] an African-American minister's wife into his restaurant, then-lawyer Matthew J. Perry filed a class action lawsuit against the chain.

The defendant Bessinger denied the discrimination... and argued that the Civil Rights Act violated his freedom of religion as "his religious beliefs compel him to oppose any integration of the races whatever."

Apparently Bessinger argued (much like baker Phillips is today) that he was totally willing to provide take-out BBQ to black people (and therefore could not be accused of discrimination ) but that his religious expression would be violated by being forced to allow races to co-mingle in his restaurant.

He lost.

 

[Jimmy Higgins]

Why is the baker discriminating in a public business?

Because his god told him to.

That should be enough for any adult to laugh this nonsense out of court.

That this delusion gets so far is because it is a delusion Republican leaning judges have been carefully selected for. Without these delusions you can't get nominated by Republicans.

Law made by delusion.

And don't let no lawyer tell you different.

The big matter here is that this sort of excuse was used in the 60's with blacks and interracial couples. That it was against God's will. That was smacked down hard in Loving v Virginia. But gay is the new black, and it is okay to discriminate against gays because umm... Eureka!!! We'll say it is a form of expression! And the lawyer at that point laments... 'if only someone had thought of 'expression' in the 60s'.

I think that having more than half the judges sitting out there sitting there because of their specific religious delusions is the worrisome part.

You might have missed the part where religious delusions are protected in the Constitution. What shouldn't be protected are discriminatory acts against people, regardless the alleged reason. That people like James Madison are trying to make this 'expression' argument about a cake seriously, just shows how intellectually bankrupt law really is. It seems never to be about what is right or truly an obvious intent, but the limits of what the law will let you get away with. This argument is almost as void of reasoning as the Ontological Argument.

 

[Jimmy Higgins]

They did.

 Piggie Park Enterprises was, in 1964, a drive-in BBQ chain with four restaurants, created and operated by Maurice Bessinger, the Baptist head of the National Association for the Preservation of White People.[2][3] Bessinger's restaurants did not allow African-Americans to eat in the restaurant.[4] Following Bessinger's refusal to allow Anne Newman,[5] an African-American minister's wife into his restaurant, then-lawyer Matthew J. Perry filed a class action lawsuit against the chain.

The defendant Bessinger denied the discrimination... and argued that the Civil Rights Act violated his freedom of religion as "his religious beliefs compel him to oppose any integration of the races whatever."

Apparently Bessinger argued (much like baker Phillips is today) that he was totally willing to provide take-out BBQ to black people (and therefore could not be accused of discrimination ) but that his religious expression would be violated by being forced to allow races to co-mingle in his restaurant.

He lost.

I don't know whether that falls under "expression". That was more of a simple compelling to provide service.

 

[untermensche]

I think that having more than half the judges sitting out there sitting there because of their specific religious delusions is the worrisome part.

You might have missed the part where religious delusions are protected in the Constitution. What shouldn't be protected are discriminatory acts against people, regardless the alleged reason. That people like James Madison are trying to make this 'expression' argument about a cake seriously, just shows how intellectually bankrupt law really is. It seems never to be about what is right or truly an obvious intent, but the limits of what the law will let you get away with. This argument is almost as void of reasoning as the Ontological Argument.

Just because delusions are protected is not a reason to specifically choose judges based on the delusions they hold.

That is insanity.

 

[RavenSky]

I think that having more than half the judges sitting out there sitting there because of their specific religious delusions is the worrisome part.

Did anyone see that last person Trump put up to be a judge? He did not know even the basics of the law.

That this stupid stupid easy case can see the SC is just the tip of a very big insane iceberg and we are all prey to it. Especially anyone who is not a deluded Christian.

While I agree with your basic point that - in this case and too many similar cases - we run the risk of being held hostage to other people's religious delusions, I do think the underlying principles are important regardless of the religious trappings of the specific cases.

For example, we have quite a few atheists on this board that are rabidly anti-palestinian. What if one of them ran a bakery, and they refused to bake a cake for an event honoring Julie Samara's work with the Addameer Prisoner Support and Human Rights Association. The cake itself would have no writing on it, just a cake selected from the big book of cake designs at that bakery.

In this example, it isn't a question of the hypothetical baker's religious belief because he has none. His claim would be the same as baker Phillip's... that "creating" a cake for an event he sincerely disagrees with would be "forced expression" in violation of his first amendment right to free speech.

This claim would be in conflict with "public accommodation" laws that were enacted for the greater public good - to prevent discrimination against specific "protected" types of individuals by the owners of businesses serving the general public.

At least one Libertarian here would argue that "free association" and "free expression" always supersedes any individual's ability to purchase products and services - even if that means a particular individual would be unable to purchase any goods or services anywhere. The Libertarian's answer to that is "move somewhere else".

In general, however, society (and the USSC) has concluded that when a business owner opens their business to sell products or services to the general public, that means ALL of the public... not just the parts of it they agree with. That said, "public accommodation" does NOT mean that a business owner must sell a product they don't ordinarily produce - so all of the exceedingly stupid posts about forcing McDonald's to sell a pizza to a particular customer are strawmen.

But the question in front of us is whether a baker can refuse to sell a product they DO produce because they disagree with the "message" of the event it is being baked for. Does the cake somehow absorb the "message" of the pro-palestinian event - making it a different "expression" from the exact same cake design served at a child's birthday party, and thereby means that the baker was somehow forced to express that message via his cake.

I think my opinion on that question is clear, but to also be clear - the question is not inextricably tied to the baker's religion and thus has implications far beyond anyone's religious delusions.

 

[Jimmy Higgins]

I believe the greatest delusion is the "expression" of the cake in the first place, as it applies to the attendees at a wedding.

And in order to protect this delusion, we've already seen a ridiculous statement that a seamstress working on a dress isn't expressive (or hard), because those making the argument, at least though allowing for the lying to themselves but still having enough pragmatism remaining, understand that this does restrict access to a good deal of services. Hence... 'making a dress ain't hard' crap arguments.

 

[coloradoatheist]

I believe the greatest delusion is the "expression" of the cake in the first place, as it applies to the attendees at a wedding.

And in order to protect this delusion, we've already seen a ridiculous statement that a seamstress working on a dress isn't expressive (or hard), because those making the argument, at least though allowing for the lying to themselves but still having enough pragmatism remaining, understand that this does restrict access to a good deal of services. Hence... 'making a dress ain't hard' crap arguments.

I agree with you there and if they do rule it's expression, they will need to define it better. And from Raven's summary, on the other side, abortion was thrown under the weird concept of privacy so that it would avoid the public accomodation/interstate commerce clauses so governments can't regulate abortion. Everybody has their pet projects for which they like the rules in some cases, and find protections in others.