SCOTUS to take the cake

[ruby sparks]

But they aren't harming no one. They're harming the baker. untermensche already stipulated that turning somebody into a tool for your own ends qualifies as harming him.

Gay people who want to get married aren't harming anyone, and shouldn't therefore be equated with the KKK, was the point being made to me in that instance.

As to whether in this instance the couple who asked for the cake are harming or set out to harm this particular baker is a slightly different question, and as far as I'm concerned, you and untermensche can haggle over that.

 

[untermensche]

But they aren't harming no one. They're harming the baker. untermensche already stipulated that turning somebody into a tool for your own ends qualifies as harming him.

Gay people who want to get married aren't harming anyone, and shouldn't therefore be equated with the KKK, was the point being made to me in that instance.

As to whether in this instance the couple who asked for the cake are harming or set out to harm this particular baker is a slightly different question, and as far as I'm concerned, you and untermensche can haggle over that.

He is talking about a whole different subject.

My support of democratic control in the workplace as opposed to dictatorial control.

He finds my moral stance against dictatorship impenetrable.

All that is left are the occasional snide comments, that are meaningless.

 

[RavenSky]

Do you think it is reasonable to equate a hate group with two innocent people just wanting a cake for their wedding?

It may be reasonable to dislike KKK members. But there is no reason to dislike innocent people that just want to get married.

Steady on old chap, comparing and contrasting does not necessarily imply equating. I have tried a few scenarios, that one, at first glance, seems easier, which is partly why I tried it.

So, could I take it that you think I should have to make a bun with KKK on the top, or not?

If the latter, you might justify it by saying something along the lines of what you just said.

If the former, the the KKK customer might challenge me by saying his organisation is legal (I am assuming it is legal?) so what are my legal grounds to refuse?

We are assuming that I put text on buns for other customers.

Perhaps discriminating on grounds of thinking an organisation immoral is not an anti-discrimination law? I don't know. Perhaps groups like the KKK are not protected in the same way that other groups are.

In any case, after you've answered, try this one. I think it's less clear cut:

I am a strongly pro-choice banner-maker and I am asked to make a banner for an anti-abortion rally. Should I be obliged, by law, to make the banner (all other things being equal)?

I don't know the answer myself, so please don't think I'm trying to win a point.

The problem I see with your hypotheticals is that public accommodation laws apply to protected classes, which does not include the KKK nor pro/anti-abortion groups.

(At a federal level, and at some state levels, protected classes for purposes of public accommodation does not even include age, sex, sexual orientation, or gender identity.)

As such, afaik, while a baker would be in violation of (most) state law in refusing to bake a cake with a pro-gay message on it, the same baker would not be in violation for refusing to bake a cake with a pro-KKK message.

I would be interested in hearing James Madison's take on this, though.

 

[ruby sparks]

Do you think it is reasonable to equate a hate group with two innocent people just wanting a cake for their wedding?

It may be reasonable to dislike KKK members. But there is no reason to dislike innocent people that just want to get married.

Steady on old chap, comparing and contrasting does not necessarily imply equating. I have tried a few scenarios, that one, at first glance, seems easier, which is partly why I tried it.

So, could I take it that you think I should have to make a bun with KKK on the top, or not?

If the latter, you might justify it by saying something along the lines of what you just said.

If the former, the the KKK customer might challenge me by saying his organisation is legal (I am assuming it is legal?) so what are my legal grounds to refuse?

We are assuming that I put text on buns for other customers.

Perhaps discriminating on grounds of thinking an organisation immoral is not an anti-discrimination law? I don't know. Perhaps groups like the KKK are not protected in the same way that other groups are.

In any case, after you've answered, try this one. I think it's less clear cut:

I am a strongly pro-choice banner-maker and I am asked to make a banner for an anti-abortion rally. Should I be obliged, by law, to make the banner (all other things being equal)?

I don't know the answer myself, so please don't think I'm trying to win a point.

The problem I see with your hypotheticals is that public accommodation laws apply to protected classes, which does not include the KKK nor pro/anti-abortion groups.

(At a federal level, and at some state levels, protected classes for purposes of public accommodation does not even include age, sex, sexual orientation, or gender identity.)

As such, afaik, while a baker would be in violation of (most) state law in refusing to bake a cake with a pro-gay message on it, the same baker would not be in violation for refusing to bake a cake with a pro-KKK message.

I would be interested in hearing James Madison's take on this, though.

Of course. It's a legal flaw.

On a personal level, I can't say I'm the world's greatest fan of only looking at these issues in terms of what is currently already written in law in any particular jurisdiction, though at the same time, what is in the laws is not irrelevant, and in fact arguably must be the most relevant issue when matters go to court.

I guess I am more interested in the moral issues, of which laws are a codified subset.

I don't know about where you are, but here, anti-discrimination laws cover sexual orientation, gender, race, disability and religion. As such, declining to write bible texts on a cake would seem to be on a par with declining to write a pro-gay marriage text on a cake.

 

[Bomb#20]

But they aren't harming no one. They're harming the baker. untermensche already stipulated that turning somebody into a tool for your own ends qualifies as harming him.

Gay people who want to get married aren't harming anyone, and shouldn't therefore be equated with the KKK, was the point being made to me in that instance.

So who equated gay people who want to get married with the KKK?

If the thread's moral question had been "Is it moral to refuse to serve gay weddings?", and someone were making the KKK analogy to suggest that that question must have the same answer as "Is it moral to refuse to serve KKK meetings?", then that would be equating gay people who want to get married with the KKK.

But that's not the moral question in dispute. What's in dispute isn't the morality of the baker but the morality of the government and the morality of the people trying to get the government to impose their will on dissidents. Someone who makes the KKK analogy is proposing that government-forced speech in general is wrong -- that it doesn't matter what cause is involved. He is making an appeal to the Golden Rule -- he is in effect asking "How would you feel if someone forced you to speak out in favor of a cause you think is morally outrageous?". He picks the KKK because he's pretty sure that's a cause his listener finds morally outrageous; he doesn't pick the KKK because the KKK is similar to gay marriage. So he is not in any sense equating gay people who want to get married with the KKK. He is equating people being ordered to serve as actors in their opponents' morality play with people being ordered to serve as actors in their opponents' morality play.

So "Gay people shouldn't be equated with the KKK" is perfectly true but it's not a substantive counterargument.

 

[Bomb#20]

But they aren't harming no one. They're harming the baker. untermensche already stipulated that turning somebody into a tool for your own ends qualifies as harming him...

The baker is not their tool.

When you treat someone as a tool, asserting that he is not your tool does not make him not your tool. All it does is add insult to injury.

They are a customer of a person open to the public.

Dealing with the public carries rules.

You cannot kick people out because they are a racially mixed couple.

You cannot refuse service because you have some delusion.

That's not "He is not their tool". That's "We're okay with making people tools if they won't willingly follow our orders."

He is talking about a whole different subject.

My support of democratic control in the workplace as opposed to dictatorial control.

He finds my moral stance against dictatorship impenetrable.

I don't find your stance impenetrable. I find your stance that capitalist workplaces are dictatorships to be many things -- stupid, and religious, and rationalized with double standards, and resulting from pathological malice against capitalists -- but impenetrable is not one of them.

 

[James Madison]

Actual speech/expression. Also, you are really bogging down on the technical gutter here. Ravensky is clearly making a distinction between flat out denial of service (no wedding cake for you) verses denial of a particular request, in general demeaning or seriously bad taste (I'll make you a bible shaped cake, I just don't want to put demeaning speech on it). You just keep jumping up and down saying "Haw! Haw! Service refused! Service refused!" It sounds petty.

Alleging some argument is technical isn’t a rebuttal. Ohs noes, whatever shall I do, there’s a technical component to my argument. Oh the horror and unfathomable terror of a technical aspect to an argument.


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Please reread the post or not. Your technical point is a false equivalence. As is Alito's.

No. No. No. Ravensky and I are discussing Alito expressing concern about the commission engaging in viewpoint discrimination. Your non-sense about “technical” points doesn’t address the topic of viewpoint discrimination.


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[untermensche]

When you treat someone as a tool, asserting that he is not your tool does not make him not your tool. All it does is add insult to injury.

They are a customer of a person open to the public.

Dealing with the public carries rules.

You cannot kick people out because they are a racially mixed couple.

You cannot refuse service because you have some delusion.

That's not "He is not their tool". That's "We're okay with making people tools if they won't willingly follow our orders."

The moral objection is to dictatorial power structures, not commerse.

Your objection is laughable.

It is desperate and irrational.

A person serving the public is not part of some hierarchical dictatorship.

You have no point.

 

[RavenSky]

The problem I see with your hypotheticals is that public accommodation laws apply to protected classes, which does not include the KKK nor pro/anti-abortion groups.

(At a federal level, and at some state levels, protected classes for purposes of public accommodation does not even include age, sex, sexual orientation, or gender identity.)

As such, afaik, while a baker would be in violation of (most) state law in refusing to bake a cake with a pro-gay message on it, the same baker would not be in violation for refusing to bake a cake with a pro-KKK message.

I would be interested in hearing James Madison's take on this, though.

Of course. It's a legal flaw.

On a personal level, I can't say I'm the world's greatest fan of only looking at these issues in terms of what is currently already written in law in any particular jurisdiction, though at the same time, what is in the laws is not irrelevant, and in fact arguably must be the most relevant issue when matters go to court.

I guess I am more interested in the moral issues...

That discussion is here: https://talkfreethought.org/showthr...s-of-Cake-Derail-from-SCOTUS-to-take-the-cake

 

[Jolly_Penguin]

Whenever I read somebody write SCOTUS I read SCROTUS.

 

[laughing dog]

Here is an article written by one of the ACLU lawyers taking this case to the SCOTUS (http://www.nybooks.com/articles/2017/12/07/let-them-buy-gay-wedding-cakes/)

Here are some (but not all) of the point that the the author, David Cole, makes :
1) the couple did not ask for any message on the cake,
2) the Colorado law in question dates back to 1885,
3) that this is the 1st time in history that the US gov't has supported an exemption to anti-discrimination laws,
4) the SCOTUS has an established history of ruling against 1st amendment arguments in favor of discrimination,
5) religious exemptions are generally not compatible with anti-discrimination laws ( From the article

As Justice Antonin Scalia wrote for the Court in rejecting a free exercise claim in 1990, laws of general applicability “could not function” if they were subject to such religious challenges. Quoting an 1878 decision, Scalia warned that such an exemption would “permit every citizen to become a law unto himself.”

",
6)

The reason First Amendment objections have failed in these cases is that the laws in question are not in any way targeted at expression.

, and
7) that a business's product/service may be expressive does not give it the right to discriminate (Cole cites newspapers as an example).

 

[James Madison]

Justice Kennedy wasn't engaged in any "twisting." Justice Kennedy's distinction is certainly existential.

Their sexual orientation, which is protected under the Colorado law, is different from what they are doing, getting married. The law protects a characteristic associated with the person, in this instance sexual orientation, and does not protect something they wanted to do at the time, get married, or what they eventually did do, were married.

It is like saying you won't serve blacks because they are uppity and have a lot of nerve mingling with whites.

You are not against them. You are against their uppity behavior.

Absolute nonsense.

More like saying you won't serve blacks in your restaurant not because of their race but because you, on religious terms, don't approve of interracial mingling. And that sort of claim in the USA was ruled against legally decades ago.

The above is most certainly not what Kennedy was saying.


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[James Madison]

Baker Phillips discriminates against gay couples by refusing to make them a wedding cake.

To be parallel, we need to agree that Baker Silva discriminated against her customer because of his religion and his free expression thereof. Here is another problem for Alito... Silva is Catholic.

Moreover,



So she is perfectly willing to create cakes with religious words and images on them, and to sell them (or anything else) to religious people. What she is not willing to do is to make cakes with hateful messages... for anyone.

The purpose of his request, Jack explained to the evangelical publication, was to see if the Colorado Civil Rights Commission would handle what World characterized as “discrimination against Christians” the same as it had handled a previous charge that another Colorado bakery participated in “discrimination against gays.”

https://www.washingtonpost.com/news...ivil-rights-complaint/?utm_term=.1e8fc7c1732d

She did not discriminate against William Jack because of his religion (being a hateful asshole is not a protected class), whereas Baker Phillips did discriminate against his customers due to their sexual orientation.

Edifying but again misplaced. Alito is concerned with the conduct of the commission. Hence, once again, focusing upon what Marjorie and Phillips have done is a tangent to Alito’s concern the commission is picking and losing winners based on “viewpoint,” specifically he is invoking the doctrine of “viewpoint discrimination” on behalf of the commission.


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[James Madison]

Baker Phillips discriminates against gay couples by refusing to make them a wedding cake.

To be parallel, we need to agree that Baker Silva discriminated against her customer because of his religion and his free expression thereof. Here is another problem for Alito... Silva is Catholic.

Moreover,



So she is perfectly willing to create cakes with religious words and images on them, and to sell them (or anything else) to religious people. What she is not willing to do is to make cakes with hateful messages... for anyone.

The purpose of his request, Jack explained to the evangelical publication, was to see if the Colorado Civil Rights Commission would handle what World characterized as “discrimination against Christians” the same as it had handled a previous charge that another Colorado bakery participated in “discrimination against gays.”

https://www.washingtonpost.com/news...ivil-rights-complaint/?utm_term=.1e8fc7c1732d

She did not discriminate against William Jack because of his religion (being a hateful asshole is not a protected class), whereas Baker Phillips did discriminate against his customers due to their sexual orientation.

Edifying but again misplaced. Alito is concerned with the conduct of the commission. Hence, once again, focusing upon what Marjorie and Phillips have done is a tangent to Alito’s concern the commission is picking winners and losers based on “viewpoint,” specifically he is invoking the doctrine of “viewpoint discrimination” on behalf of the commission.


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[James Madison]

Justice Kennedy wasn't engaged in any "twisting." Justice Kennedy's distinction is certainly existential.

Their sexual orientation, which is protected under the Colorado law, is different from what they are doing, getting married. The law protects a characteristic associated with the person, in this instance sexual orientation, and does not protect something they wanted to do at the time, get married, or what they eventually did do, were married.

So, um, a commercial cakemaker who was racist and opposed to "miscegenation"on religious grounds could refuse to make an overtly interracial cake for an inter-racial wedding?

To understand Kennedy’s remarks about “identity” requires consideration of the context in which the remark was made.

To address your point within the context in which the “identity” argument was made and Kennedy opined.

Alito and Yarger have a colloquy as to whether the “identity” of the customer changed the message of the cake. Yarger is attaching identity of customer to the message, he has to for purposes of a violation of CO law. Alito expresses skepticism at the notion the identity of the customer changes message of the cake, and rightfully so, as a birthday cake is a birthday cake regardless of who is buying or asking for the birthday cake. (A decent argument by Alito but not ineluctable).

Cole continues with the “identity” argument, identical to Yarger’s portion. Cole and Gorsuch explore the rationality of the identity argument.

Kennedy then says the identity argument is “facile,” and introduces a hypo illuminating a weakness. The hypo included an objection to people of the same sex marrying, the act of marrying. The act of marrying isn’t their identity under the law and isn’t their identity at all but it’s “what they’re doing.”

Now, with that context, what’s your query?


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[James Madison]

http://www.scotusblog.com/wp-content/uploads/2017/09/16-111_tsac_christian_legal_socy.pdf

The amici brief at the link above articulates the discrimination argument under the Free Exercise of Religion Clause that the Court could adopt. It’s a cleaner argument.



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[RavenSky]

Justice Samuel Alito Jr. told Yarger during one exchange: “This is very odd. This took place in 2012″ when same-sex marriage was not legal in Colorado. “So if Craig and Mullins had gone to a state office and said, ‘We want a marriage license,’ they would not have been accommodated. If they said: ‘Well, we want you to recognize our Massachusetts marriage,’ the state would say: ‘No, we won’t accommodate that.’ Well, we want a civil union. ‘Well, we won’t accommodate that either.’ And yet when he goes to this bake shop and he says, ‘I want a wedding cake,’ and the baker says, ‘No, I won’t do it,’ in part because same-sex marriage was not allowed in Colorado at the time, he’s created a grave wrong.”

I frankly don't think Alito makes decent arguments about much of anything. In the above, he seems to be considering the idea that it was fine for the baker to deny the couple the purchase of a wedding cake because same-sex marriage was not yet recognized in Colorado.

So by that argument, if I wanted to purchase a wedding cake for my birthday because I needed a big cake and think the wedding cakes are prettier, baker Phillips could refuse because I'm single and not getting married before I serve the cake?

Alito seems to be trying to create arguments that the baker and his council never even claimed and that don't conform to the facts of the case.

 

[RavenSky]

So, could I take it that you think I should have to make a bun with KKK on the top, or not?

If the latter, you might justify it by saying something along the lines of what you just said.

If the former, the the KKK customer might challenge me by saying his organisation is legal (I am assuming it is legal?) so what are my legal grounds to refuse?

We are assuming that I put text on buns for other customers.

Perhaps discriminating on grounds of thinking an organisation immoral is not an anti-discrimination law? I don't know. Perhaps groups like the KKK are not protected in the same way that other groups are.

In any case, after you've answered, try this one. I think it's less clear cut:

I am a strongly pro-choice banner-maker and I am asked to make a banner for an anti-abortion rally. Should I be obliged, by law, to make the banner (all other things being equal)?

I don't know the answer myself, so please don't think I'm trying to win a point.

The problem I see with your hypotheticals is that public accommodation laws apply to protected classes, which does not include the KKK nor pro/anti-abortion groups.

(At a federal level, and at some state levels, protected classes for purposes of public accommodation does not even include age, sex, sexual orientation, or gender identity.)

As such, afaik, while a baker would be in violation of (most) state law in refusing to bake a cake with a pro-gay message on it, the same baker would not be in violation for refusing to bake a cake with a pro-KKK message.

I would be interested in hearing James Madison's take on this, though.

bumping this

 

[RavenSky]

Edifying but again misplaced. Alito is concerned with the conduct of the commission. Hence, once again, focusing upon what Marjorie and Phillips have done is a tangent to Alito’s concern the commission is picking and losing winners based on “viewpoint,” specifically he is invoking the doctrine of “viewpoint discrimination” on behalf of the commission.

I understand what Alito appears to be concerned about, but his concern assumes that a cake is a viewpoint in and of itself... a premise that is far from agreed upon.

Requests for cakes with stuff written on them (anti-gay, pro-little-boy-named-Adolf, pro-gay-pride, Merry Christmas, etc.) clearly express a viewpoint. We can have a completely separate debate as to whether public accommodation should supercede a shop owner's refusal to write certain words or depict certain images; but that is not the case at hand.

You wrote:

Alito expresses skepticism at the notion the identity of the customer changes message of the cake, and rightfully so, as a birthday cake is a birthday cake regardless of who is buying or asking for the birthday cake.

If a birthday cake is a birthday cake regardless of who is buying or asking for the birthday cake, then why isn't a wedding cake is a wedding cake regardless of who is buying or asking for the wedding cake?

And if a wedding cake IS a wedding cake regardless of who is buying or asking for it, then it is not a viewpoint to be discriminated against.

 

[ruby sparks]

http://www.scotusblog.com/wp-content/uploads/2017/09/16-111_tsac_christian_legal_socy.pdf

The amici brief at the link above articulates the discrimination argument under the Free Exercise of Religion Clause that the Court could adopt. It’s a cleaner argument.



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From that document:

"Viewed in purely secular terms, we have intangible
emotional harms on both sides of the balance.
The emotional harm to same-sex couples cannot compellingly
outweigh the emotional harm to believers.
Reciprocal moral disapproval is inherent in a pluralistic
society; the desire of same-sex couples never to
encounter such disapproval is not a sufficient reason
to deprive others of religious liberty."