SCOTUS to take the cake

[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.

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.

Abortion is about the biggest piece of personal privacy that can exist! More private than even sex!

I can not see how SCOTUS can rule the cake 'expression' without coming out with some sort of new test that isn't wildly arbitrary or even defensible. There is nothing that makes the cake expression, but not the dress, the bouquet, the photographer, etc...

 

[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.

Abortion is about the biggest piece of personal privacy that can exist! More private than even sex!

I can not see how SCOTUS can rule the cake 'expression' without coming out with some sort of new test that isn't wildly arbitrary or even defensible. There is nothing that makes the cake expression, but not the dress, the bouquet, the photographer, etc...

The argument is that once commerce is involved, which it is with an abortion, your rights get overwritten because you are performing commerce. If you came over to my house and asked, "Can you make me a cake for my gay wedding" I don't have to do it.

 

[RavenSky]

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 fully agree with you here, and truly hope that SCOTUS doesn't try to carve out some sort of exception for political/religious reasons.

Attorney Waggoner (for the bakery) tried making that argument and looked utterly ridiculous, in my opinion.

Further (and I would have to search for the exact discussion in the transcript) Waggoner acknowledged that even a landscape painter or other type of artist cannot claim "forced expression" on the basis of the views of the end buyer after he puts his paintings out for sale in a gallery.

Waggoner seems to be hanging her argument on the claim that baker Phillips said he would sell the gay couple anything else in the shop, just not a wedding cake; while simultaneously claiming that wedding cakes are "custom" and therefore "expressive" in a way that the cookies already sitting in the window are not.

I see at least three major problems with her argument:

1. The baker never even saw/discussed the design for this wedding cake. How could he know he would object to the "theme" of the cake if he never discussed it with the couple? How could he know they couldn't come to an agreement about the design - the "expressive" element - of the custom cake that would satisfy both sides?

In asking these questions, it becomes very clear that the baker cannot claim any inherent "free expression" contained in the cake itself, and his argument fails the same as Piggy Park BBQ's did.

2. This same baker refused to sell cupcakes to a lesbian couple for their commitment ceremony. This is further evidence that the baker was discriminating against the people, rather than holding any sort of genuine belief in the "expressive" content of wedding cakes at wedding receptions. Cupcakes are not wedding cakes, and commitment ceremonies are not wedding receptions. Cupcakes in the case are not custom-created wedding cakes either. The only thing the two incidents have in common is that both sets of customers were same-sex couples.

3. No one has yet been able to show that any cake anywhere is "expressing" any message in and of itself. I still challenge anyone to show me an example of a cake wherein the cake itself says "I exist to celebrate a same-sex marriage". I'm not talking about cake-toppers or messages written in the icing. I am talking about the cake itself. James Madison tried with his rainbow cake example. He failed.

 

[RavenSky]

The argument is that once commerce is involved, which it is with an abortion, your rights get overwritten because you are performing commerce. If you came over to my house and asked, "Can you make me a cake for my gay wedding" I don't have to do it.

Your argument is backwards.

No one can force a specific doctor to perform an abortion if that is not a part of his/her usual "commerce". What Roe v Wade says, however, is that a woman's (the customer in this analogy) privacy rights supercede government's ability to tell her and her doctor that the doctor CAN'T provide a particular service if said doctor wants to provide it.

To make it parallel to bakers, it would be as if the government came in and told bakers that they are not allowed to bake cakes for same-sex wedding receptions even though the baker was willing to do so and the customer wanted the product.

 

[Jimmy Higgins]

The argument is that once commerce is involved, which it is with an abortion, your rights get overwritten because you are performing commerce. If you came over to my house and asked, "Can you make me a cake for my gay wedding" I don't have to do it.

Your argument is backwards.

No one can force a specific doctor to perform an abortion if that is not a part of his/her usual "commerce". What Roe v Wade says, however, is that a woman's (the customer in this analogy) privacy rights supercede government's ability to tell her and her doctor that the doctor CAN'T provide a particular service if said doctor wants to provide it.

To make it parallel to bakers, it would be as if the government came in and told bakers that they are not allowed to bake cakes for same-sex wedding receptions even though the baker was willing to do so and the customer wanted the product.

[strawman mode]So you are saying the Government can compel McDonalds to perform abortions then.[/strawman mode]

 

[coloradoatheist]

The argument is that once commerce is involved, which it is with an abortion, your rights get overwritten because you are performing commerce. If you came over to my house and asked, "Can you make me a cake for my gay wedding" I don't have to do it.

Your argument is backwards.

No one can force a specific doctor to perform an abortion if that is not a part of his/her usual "commerce". What Roe v Wade says, however, is that a woman's (the customer in this analogy) privacy rights supercede government's ability to tell her and her doctor that the doctor CAN'T provide a particular service if said doctor wants to provide it.

To make it parallel to bakers, it would be as if the government came in and told bakers that they are not allowed to bake cakes for same-sex wedding receptions even though the baker was willing to do so and the customer wanted the product.

And that's it, in this case you are saying that the a persons rights supercede the governments, where in the bakers case the governments rights supercede the individual rights. There are lots of cases too of yours where it's not allowed. Drugs, prostitution, minimum wage, and more.

 

[Elixir]

[strawman mode]So you are saying the Government can compel McDonalds to perform abortions then.[/strawman mode]

Not perform them, just serve them, which I believe they already do. Went there yesterday for the first time in more than 3 years... not sure what it was, but it sure hurt afterward!

 

[RavenSky]

And that's it, in this case you are saying that the a persons rights supercede the governments, where in the bakers case the governments rights supercede the individual rights.

It appears that you still do not understand what is actually being examined in either of the cases. I will try to explain just once more because this is really a derail.

There are THREE parties involved in each of these cases:

The "customer": the gay couple in the bakery case and the woman seeking an abortion in Roe v Wade

The "vendor" or person selling the goods/services: Baker Phillips in the bakery case and the doctor in Roe v Wade

The "government", which in both cases is theoretically seeking to balance "public good" against individual freedoms

In Roe v Wade, we had a vendor willing to provide the service, and a customer seeking the service. The government stepped in trying to claim that a greater public good superseded the individual rights of both the vendor and the customer. The USSC upheld the individual right to privacy for the customer, ruling that there was no valid "greater public good" argument in a case where vendor and customer were in agreement regarding their transaction.

In the bakery case, the USSC is being asked to examine a dispute between the vendor and the customer. There is not an agreement regarding their transaction as there was in Roe v Wade. It is only because of this that the government's previous stance of "greater public good" and "public accommodation" comes into the discussion.

As such, the cases are completely different, and your attempts at equating them doesn't work.

/derail

 

[James Madison]

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.

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.

The expression is A.) A result of the custom cake maker's artistic talents in making the cake and B.)associated with the expressive event of the same sex wedding/wedding reception.

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

I perhaps did a very poor job of explaining my example, but my hypo involved, and was intended to involve, the "artistic expression" of the cake maker. In other words, a cake maker making a custom made rainbow cake to be used in a gay pride parade is engaged in artistic expression in making said cake.

 

[Jimmy Higgins]

The argument is that once commerce is involved, which it is with an abortion, your rights get overwritten because you are performing commerce. If you came over to my house and asked, "Can you make me a cake for my gay wedding" I don't have to do it.

Your argument is backwards.

No one can force a specific doctor to perform an abortion if that is not a part of his/her usual "commerce". What Roe v Wade says, however, is that a woman's (the customer in this analogy) privacy rights supercede government's ability to tell her and her doctor that the doctor CAN'T provide a particular service if said doctor wants to provide it.

To make it parallel to bakers, it would be as if the government came in and told bakers that they are not allowed to bake cakes for same-sex wedding receptions even though the baker was willing to do so and the customer wanted the product.

And that's it, in this case you are saying that the a persons rights supercede the governments, where in the bakers case the governments rights supercede the individual rights. There are lots of cases too of yours where it's not allowed. Drugs, prostitution, minimum wage, and more.

Oi! Fuck no. What is wrong with conservatives. The Government isn't who is wronged in the bakery case.

Abortion -> Woman has right to own body
Cake -> Gays have a right to unrestricted accomodations

 

[jonatha]

I perhaps did a very poor job of explaining my example, but my hypo involved, and was intended to involve, the "artistic expression" of the cake maker. In other words, a cake maker making a custom made rainbow cake to be used in a gay pride parade is engaged in artistic expression in making said cake.

Did you ever explain why cakes are expressive but wedding dresses aren't?

 

[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.

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.

There is no underlying principle here except the right of some to discriminate based on delusions.

Who else would you like to give the right to discriminate to?

That is what is at the core if this. The right to discriminate based on some delusion about gay weddings.

And if any lawyer tries to tell you differently they are full of shit.

Speaking from the midst of a thoroughly polluted legal system where judges have been selected by Republicans based on their religious delusions for decades.

 

[James Madison]

<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.

Your quibbling over your OPINION vs my OPINION regarding Justice Kennedy's overall predetermined position in this case

Hmmm....this isn't accurate. I have never stated Kennedy's use of the word "facile" in regards to a single, specific line of reasoning to one attorney, reflected his "overall predetermined position in this case."

Rather, I have stated, repeatedly, Kennedy did not find as compelling or persuasive the specific argument of equating identity with the act of marriage. I did not ever say this was Kennedy's "overall" view of the entirety of the facts and case.

 

[James Madison]

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 fully agree with you here, and truly hope that SCOTUS doesn't try to carve out some sort of exception for political/religious reasons.

Attorney Waggoner (for the bakery) tried making that argument and looked utterly ridiculous, in my opinion.

Further (and I would have to search for the exact discussion in the transcript) Waggoner acknowledged that even a landscape painter or other type of artist cannot claim "forced expression" on the basis of the views of the end buyer after he puts his paintings out for sale in a gallery.

Waggoner seems to be hanging her argument on the claim that baker Phillips said he would sell the gay couple anything else in the shop, just not a wedding cake; while simultaneously claiming that wedding cakes are "custom" and therefore "expressive" in a way that the cookies already sitting in the window are not.

I see at least three major problems with her argument:

1. The baker never even saw/discussed the design for this wedding cake. How could he know he would object to the "theme" of the cake if he never discussed it with the couple? How could he know they couldn't come to an agreement about the design - the "expressive" element - of the custom cake that would satisfy both sides?

In asking these questions, it becomes very clear that the baker cannot claim any inherent "free expression" contained in the cake itself, and his argument fails the same as Piggy Park BBQ's did.

2. This same baker refused to sell cupcakes to a lesbian couple for their commitment ceremony. This is further evidence that the baker was discriminating against the people, rather than holding any sort of genuine belief in the "expressive" content of wedding cakes at wedding receptions. Cupcakes are not wedding cakes, and commitment ceremonies are not wedding receptions. Cupcakes in the case are not custom-created wedding cakes either. The only thing the two incidents have in common is that both sets of customers were same-sex couples.

3. No one has yet been able to show that any cake anywhere is "expressing" any message in and of itself. I still challenge anyone to show me an example of a cake wherein the cake itself says "I exist to celebrate a same-sex marriage". I'm not talking about cake-toppers or messages written in the icing. I am talking about the cake itself. James Madison tried with his rainbow cake example. He failed.

3. No one has yet been able to show that any cake anywhere is "expressing" any message in and of itself. I still challenge anyone to show me an example of a cake wherein the cake itself says "I exist to celebrate a same-sex marriage". I'm not talking about cake-toppers or messages written in the icing. I am talking about the cake itself. James Madison tried with his rainbow cake example. He failed

The hypo only fails IF the custom cake maker is not engaged in any expressive conduct in making the custom made rainbow cake or in this case in making a custom wedding cake.

 

[RavenSky]

The expression is A.) A result of the custom cake maker's artistic talents in making the cake and B.)associated with the expressive event of the same sex wedding/wedding reception.

I disagree that a custom cake is "expressive" in a legal sense, but will temporarily stipulate to it for this moment while you address "B"...

you have completely failed to provide any support for your "B".

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

I perhaps did a very poor job of explaining my example, but my hypo involved, and was intended to involve, the "artistic expression" of the cake maker. In other words, a cake maker making a custom made rainbow cake to be used in a gay pride parade is engaged in artistic expression in making said cake.

Your conclusion is dependent on your "A" & "B" premises. Even if I allow for "A" (which I don't from a legal perspective), you have failed to support "B" either.

 

[James Madison]

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.

Oh, spare the bitter diatribe. You make this same point about any and every legal position you disagree with. It's played out man.

 

[Jimmy Higgins]

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.

Whine much?

Naw, I don't drink alcohol. Reduced to its core, this is about using the law to legalize discrimination. Whether you want to be pragmatic about it is up to you. This about using the law to restrict accommodation to gays in as many ways lawyers can manage.

 

[James Madison]

I disagree that a custom cake is "expressive" in a legal sense, but will temporarily stipulate to it for this moment while you address "B"...

you have completely failed to provide any support for your "B".

I perhaps did a very poor job of explaining my example, but my hypo involved, and was intended to involve, the "artistic expression" of the cake maker. In other words, a cake maker making a custom made rainbow cake to be used in a gay pride parade is engaged in artistic expression in making said cake.

Your conclusion is dependent on your "A" & "B" premises. Even if I allow for "A" (which I don't from a legal perspective), you have failed to support "B" either.

"B" is present in my hypo, the expressive event being the gay pride parade, or in this case the wedding/wedding reception.

The stronger objection is to A.

 

[RavenSky]

Your quibbling over your OPINION vs my OPINION regarding Justice Kennedy's overall predetermined position in this case

Hmmm....this isn't accurate. I have never stated Kennedy's use of the word "facile" in regards to a single, specific line of reasoning to one attorney, reflected his "overall predetermined position in this case."

Rather, I have stated, repeatedly, Kennedy did not find as compelling or persuasive the specific argument of equating identity with the act of marriage. I did not ever say this was Kennedy's "overall" view of the entirety of the facts and case.

Then I don't see where we have much of a disagreement It appears that you and I and Justice Kennedy are all in agreement that this case is more complicated than it may appear to others. That's what makes it fun to discuss, imo.

 

[Jimmy Higgins]

Oh, spare the bitter diatribe. You make this same point about any and every legal position you disagree with. It's played out man.

And it's true that the law is manipulated by lawyers like numbers by accountants. You seem to have this idealization that law is pure, but it isn't. Law is never about who is right, but who wins.