SCOTUS to take the cake

[coloradoatheist]

Your rights for be discriminated against are only for a right the government to not discriminate against you, not anybody else.

You think it is still legal to what whites only counters at a restaurant.

If I say I don't like peopled nammed Jimmy that is perfectly fine because there is no right for you from me. However if the government said we aren't going to give driver's licenses to people named Jimmy then you would have a case.

See, this is why that whole analogy thing I mentioned earlier is bullshit because that is a bullshit analogy. You not liking people named Jimmy has no affect on anything.

and in this case there are other bakeries in the city of Denver that would make them a cake, it's only one. It sucks when I go to a store and they don't have the right size shirt I want, but I am not guaranteed that every store has my size.

 

[Jimmy Higgins]

You think it is still legal to what whites only counters at a restaurant.

If I say I don't like peopled nammed Jimmy that is perfectly fine because there is no right for you from me. However if the government said we aren't going to give driver's licenses to people named Jimmy then you would have a case.

See, this is why that whole analogy thing I mentioned earlier is bullshit because that is a bullshit analogy. You not liking people named Jimmy has no affect on anything.

and in this case there are other bakeries in the city of Denver that would make them a cake, it's only one.

Only one? And in rural areas, only one means having to drive a while to find a bakery that will sell to them.

It sucks when I go to a store and they don't have the right size shirt I want, but I am not guaranteed that every store has my size.

A: Place refuses to service customer because of identity
B: Place doesn't have what I want in stock

How in the heck does your brain manage to see A and B as being reasonably congruent?

 

[Jolly_Penguin]

The question is who's rights matter more, the right to not be discriminated against or the right to discriminate (for religious purposes) or if capitalism is a form of expression that is protected beyond any reasonable standard.

You bring up issues that have absolutely no bearing on the case:
- hamsters used as food
- forcing religious institutions to perform acts that are counter to their religion

This is about a business entity trying to discriminate against a customer based on their identity.

See, now we are getting somewhere, because no, that isn't how the baker sees it. This isn't about not wanting to serve a gay man cake. It isn't about the identity of the buyer perse, but the use the buyer will make of the item.He'd be fine with selling a wedding cake to a gay man if he believed the gay man was going to use it for his straight friend's wedding. These analogies all examine that concept. They all put the same item/service the seller otherwise engages in to a use the seller objects to. if your answers are yes, that we should force some to sell, and no to others, that could be illuminating.

This is about a business entity trying to discriminate against a customer based on their identity.

You could also claim that Harry doesn't want to sell snakes to Sam because of his identity as a snake owner, who feeds hamsters to snakes.
You could also claim Mohammed doesn't want to sell Qurans to April because of her identity as an anti-Muslim apostate, who wants to burn Qurans.
You could also claim the mosque doesn't want to marry Harry to Hassan because of their identity as a gay couple.

 

[Jolly_Penguin]

I am seeing a 2 party analysis:

1. In the particular case can you infer a particular use of an item from a buyer's identity (In this wedding cake case it seems so)

If the answer is no, then the analysis stops there, and you can call it personal discrimination based on identity. If the answer is yes, we go to part 2.

2. Should we ban people from denying sale/service based on the use the item/service will be put to, even if it violates their deeply held beliefs/values?

If the answer is yes, then this cake maker has to sell the cake to the gay man for the gay wedding, Harry has to sell the hamsters to Sam to be eaten by snakes, and Mosques have to perform gay weddings, unless we have good independent reasons otherwise. Fairness demands that any such reasons be clear and reasonable.

 

[Shadowy Man]

What if every bakery in town refused to make a cake for a gay couple's wedding. Would you say there's no harm in not having a cake at your own wedding?

Is every baker in town going to forgo profits for a religious belief? I can list a lot of products that each town doesn't have. I live in Colorado. Am I harmed that there are no ocean beaches nearby?

You'd be harmed if there were beaches but you were denied entry to it because of your sexuality. You're not making the correct analogies.

It is indeed quite possible in some towns that every baker might forgo profits in favor of religious belief.

 

[Shadowy Man]

It sucks when I go to a store and they don't have the right size shirt I want, but I am not guaranteed that every store has my size.

You know what sucks more: the store *has* your size but won't sell it to you because of your sexuality.

 

[Jimmy Higgins]

See, now we are getting somewhere, because no, that isn't how the baker sees it. This isn't about not wanting to serve a gay man cake.

Strawman. This is about a baker not wanting to sell a gay couple a wedding cake.

It isn't about the identity of the buyer perse,

It is extremely about the identity of the buyer.

...but the use the buyer will make of the item.

Weak!

He'd be fine with selling a wedding cake to a gay man if he believed the gay man was going to use it for his straight friend's wedding.

Spitting the hair much?

These analogies all examine that concept.

No, your analogies send the topic off course.

This is about a business entity trying to discriminate against a customer based on their identity.

You could also claim that Harry doesn't want...

Fuck imaginary Harry, fuck his imaginary snakes, and fuck Sam. They have fuck all to do with a baker who wants to pretend capitalism is "expression".

 

[Jolly_Penguin]

Fuck imaginary Harry, fuck his imaginary snakes, and fuck Sam. They have fuck all to do with a baker who wants to pretend capitalism is "expression".

That you refuse to distinguish from the analogies suggests to me that you don't actually see any meaningful distinction.If you did, you could point it out and we could possibly learn something. That you refuse to address the point of view I suggest the baker is coming from (and use expletives to express your refusal to do so) yet still reply to my post suggests to me that you are probably unable to.

 

[Playball40]

And you feel the same towards gays? blacks? women? et al.....

And do you think this should be perfectly legal?

He refused to answer my question.

Can the BIG N TALL store refuse to sell BIG N TALL clothes to you because you are bald or gay or blue eyed?

Yes, the BIG N TALL store is under no obligation to carry clothing that are sized 29SHORT, just like a baker can refuse to bake cookies if they so desire.

- - - Updated - - -

Sorry, but the right to a perfectly safe medical procedure had NO BUSINESS ever being illegal in the first place. The Constitution simply rectified/clarified that oversight.

What the hell are you talking about? Abortion never should have been 'illegal' in the first place.

It was never a protected constitutional right and to protect they put in a huge stretch to try and make it stay legal. Because of the interstate commerce law and that abortion exchanges either money or gifts, congress would have the Constitutional power to limit it or get rid of it.

to answer your question. Yes. if they don't want to sell a suit to someone they should have the right not to.

Yes! I favor liberty and freedom as opposed to such a broad and vast notion of equality that the flame of liberty is extinguished by a tidal wave of equality.

In this context, liberty and freedom shouldn't be limited without a compelling reason and no compelling reasons exist to preclude big n' tall stores from discriminating on the basis of eye color or balding. There isn't a societal or nationwide epidemic of people of a certain eye color effectively relegated to the status of second class citizens and the same is true of bald people. Hence, I cannot conceive of any compelling reason to extinguish this liberty to remedy a non-problem.


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[Elixir]

I figger that if you provide a service or good without using one bit of taxpayer-funded infrastructure, you should be allowed to refuse service/sales to anyone you want to. If you do use taxpayer-funded infrastructure, you should be obliged to serve taxpayers equally.
Can anyone think of a any provider of goods or services who doesn't use taxpayer-funded infrastructure to produce or deliver their services or goods?

 

[blastula]

I think that the argument would go that by it being for a gay couple it changes the nature of the cake as a work of art. The cake can be argued as an expression of support for the wedding. Yes, I'm stretching with that, but I think that is the logic. And an easy workaround would be just to not tell them it is for a gay wedding. They instead appear to have done the opposite, and gone out of their way to do so, just to make a point.

Other forms of 3rd party expression may also change based on who the project/work is for. For example, imagine a woman's rights group buying a cake shaped like a woman (presumably to celebrate women), and then imagine a group of misogynists buying the exact same cake (presumably to "eat" a woman). Who buys it changes the nature of the work.

Once you sell something, you no longer own it. What use the buyer puts it to is none of your business.

You mean no baker can stop this?

 

[blastula]

Harry loves hamsters. He has opened a specialized pet shop that sells hamsters, hamster food, hamster exercise wheels, and everything else a hamster needs to have a long and happy life. Many of his customers send him photographs showing their happy moments with their hamsters. He treasures them and posts them on the wall by the cash register. Sam loves snakes. He wants to buy hamsters from Harry to feed to his snakes. Should we force Harry to sell hamsters to Sam?

Mohammed is Muslim and very devout. He runs a Muslim book store and sells Qurans to the local Muslim community. April used to also be Muslim, but now April is an Apostate and is passionate about her opposition to Islam. She wants to buy Qurans from Mohammed so she can burn them in protest. Should we force Mohammed to sell Qurans to April?

Mohammed's estranged son, Hassan, is Homosexual. He believes that Islam more liberal than his father does and that it is or should be accepting of homosexuality, including gay marriage. He has fallen in love with Harry, who has converted to Islam following his traumatic experience of having to sell his beloved hamsters as food to Sam. Hassan and Harry want to get married in the local mosque, with the same ceremony that is performed for all Muslim couples. Should we force the mosque to perform the ceremony?

Mohammed, an elder at the mosque, objects to the mosque performing the marriage. He says that this is not discrimination. He says that the mosque will not marry Harry to a man, but would be happy to marry him to a woman, so it is not discrimination. He suggests that maybe April could convert back to Islam and marry Hassan, and then he would be happy to sell Qurans to April for her use in prayer. Likewise, Harry would be happy to sell hamsters to Sam, if Sam wasn't feeding them to snakes.

What happens at a mosque is protected by religious freedom. That's not commerce.

 

[blastula]

The question is who's rights matter more, the right to not be discriminated against or the right to discriminate (for religious purposes) or if capitalism is a form of expression that is protected beyond any reasonable standard.

You bring up issues that have absolutely no bearing on the case:
- hamsters used as food
- forcing religious institutions to perform acts that are counter to their religion

This is about a business entity trying to discriminate against a customer based on their identity.

Your rights for be discriminated against are only for a right the government to not discriminate against you, not anybody else. If I say I don't like peopled nammed Jimmy that is perfectly fine because there is no right for you from me. However if the government said we aren't going to give driver's licenses to people named Jimmy then you would have a case.

You've never heard of non-discrimination laws?

 

[Elixir]

Harry loves hamsters. He has opened a specialized pet shop that sells hamsters, hamster food, hamster exercise wheels, and everything else a hamster needs to have a long and happy life. Many of his customers send him photographs showing their happy moments with their hamsters. He treasures them and posts them on the wall by the cash register. Sam loves snakes. He wants to buy hamsters from Harry to feed to his snakes. Should we force Harry to sell hamsters to Sam?

Mohammed is Muslim and very devout. He runs a Muslim book store and sells Qurans to the local Muslim community. April used to also be Muslim, but now April is an Apostate and is passionate about her opposition to Islam. She wants to buy Qurans from Mohammed so she can burn them in protest. Should we force Mohammed to sell Qurans to April?

Mohammed's estranged son, Hassan, is Homosexual. He believes that Islam more liberal than his father does and that it is or should be accepting of homosexuality, including gay marriage. He has fallen in love with Harry, who has converted to Islam following his traumatic experience of having to sell his beloved hamsters as food to Sam. Hassan and Harry want to get married in the local mosque, with the same ceremony that is performed for all Muslim couples. Should we force the mosque to perform the ceremony?

Mohammed, an elder at the mosque, objects to the mosque performing the marriage. He says that this is not discrimination. He says that the mosque will not marry Harry to a man, but would be happy to marry him to a woman, so it is not discrimination. He suggests that maybe April could convert back to Islam and marry Hassan, and then he would be happy to sell Qurans to April for her use in prayer. Likewise, Harry would be happy to sell hamsters to Sam, if Sam wasn't feeding them to snakes.

What happens at a mosque is protected by religious freedom. That's not commerce.

Right. And in the other cases, yes - if Harry's shop is on a public thoroughfare, or uses any sort of taxpayer-funded infrastructure, he should be compelled to offer his goods/services to any taxpayer.

 

[starwater]

What happens at a mosque is protected by religious freedom. That's not commerce.

Right. And in the other cases, yes - if Harry's shop is on a public thoroughfare, or uses any sort of taxpayer-funded infrastructure, he should be compelled to offer his goods/services to any taxpayer.

In this particular case, the shop is in a strip mall, with sidewalks and parking. Presumably not paid for by the public but some other entity that built the strip mall and parking lot and is either renting out the space to tenants or selling to retailers.

 

[James Madison]

What happens at a mosque is protected by religious freedom. That's not commerce.

Right. And in the other cases, yes - if Harry's shop is on a public thoroughfare, or uses any sort of taxpayer-funded infrastructure, he should be compelled to offer his goods/services to any taxpayer.

Well, the people who make too little to pay any taxes are screwed under your scheme.

Your proposal is a logistical nightmare, possibly requiring people to carry on their person a document verifying the local and state taxes they paid.

Yet, I'm not sure why taxation matters? Some businesses pay local and state taxes, thereby paying for the very infrastructure they utilize. Shouldn't they then be allowed to discriminate under your rationale?


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[blastula]

Yes, I know that's their argument, but it's a bad argument considering the difference in facts.

The difference in facts doesn't address whether the conduct is expressive. If there is expressive speech, then there is a first amendment free speech interest, as with the Bible baker, and an ostensible paradox as one baker's conduct was allowed on the basis of their free speech rights but the other wasn't.

Well, the other baker was allowed because it was determined it did not discriminate based on creed. Free speech wasn't directly cited as a reason.

The difference in facts doesn't address whether the conduct is expressive.

Yes, they would have to make that argument separately. Citing that case doesn't help. And whether he has free speech in his case doesn't depend on the other case. The facts of their case make it a weak argument, since there was no specific speech or message or even a design requested by the customers before they were denied.

 

[Toni]

If this is about religious liberty then we have to accept that part of religious practice is denying gay people products.

We accept the practice that most churches have rules in place that dictate their faith. For example, the government can't force the Catholic church to have females priests and clergy.

If people feel that strongly about this issue, open a cake store that caters to gays and lesbians.

It's not at all the same thing. There is no such thing as a gay cake.

Any baker can have a portfolio of designs that the baker is willing and able to provide. This may or may not include verbiage. Most wedding cakes I have seen have had no verbiage and could as easily have been for a gay couple as a straight couple. At most, a change of the topper could change the cake from celebrating a wedding between a man and a woman to a man and a man or a woman and a woman. Actually, except for when my Baptist cousin got married in the 70's (before gay marriage), I don't think I've been to any wedding with a bride/groom topper. Usually, it's been some kind of floral design. None have had any verbiage on them, as far as I can recall.

I don't think that the law should force any baker to provide verbiage that it finds abhorrent or not aesthetically pleasing in the opinion of the baker. After all, if I were a baker and a customer came in and demanded that I bake a pink cake decorated in pink icing, with purple frosting, I should be allowed to decline to decorate a cake in those colors. I would lose the business of that customer but I am allowed to have aesthetic standards, as well as to limit the choices of flavorings, decorative styles, etc. I can offer or decline to offer gluten free cakes, vegan cakes, chocolate cakes, kosher cakes, etc. based on whatever limits I felt my bakery was equipped to handle. I would lose business for those wishing to purchase such cakes. But it is not inherently discriminatory for me to place a limit on what I offer as a baker.

But neither should the law allow a baker to refuse to provide a wedding cake for a gay couple if it also provides cakes for weddings of straight couples any more than it should be allowed to refuse to provide a cake for a couple of any particular race or religion or mixture of races and/or religions. A number of bakeries have neatly side stepped the issue by not providing male or female figures for the tops of cakes. Those are purchased separately by whoever is purchasing the cake.

 

[RavenSky]

No, he is clearly asserting that making "custom" wedding cakes is an art, an art involving expressive conduct, and expressive conduct is protected by the speech clause of the 1st Amendment.

He is also making a religious freedom claim under the 1st Amendment, which I believe is legally untenable since Scalia's opinion of Employment Division v. Smith.

Not all "expressive conduct" is considered "protected" and not all conduct can be claimed as "expressive conduct". For instance, a New York appeals court ruled that recreational dancing is not an "expressive conduct" and therefore not protected.

I don't see any rational way this baker can claim that baking a wedding cake is an "expressive conduct" worthy of legal protection. I think the simplest test of this is to ask what message the cake itself is sending. If we took the requested wedding cake and displayed it in an empty room with no other context - what *message* does the cake send? Unless the couple demanded that the baker write "this cake is for a gay marriage" all over it, no one is going to be able to tell the difference between a wedding cake for a same-sex marriage vs one for a hetero-marriage. As such, "expressive conduct" argument fails.

 

[James Madison]

The difference in facts doesn't address whether the conduct is expressive. If there is expressive speech, then there is a first amendment free speech interest, as with the Bible baker, and an ostensible paradox as one baker's conduct was allowed on the basis of their free speech rights but the other wasn't.

Well, the other baker was allowed because it was determined it did not discriminate based on creed. Free speech wasn't directly cited as a reason.

The difference in facts doesn't address whether the conduct is expressive.

Yes, they would have to make that argument separately. Citing that case doesn't help. And whether he has free speech in his case doesn't depend on the other case. The facts of their case make it a weak argument, since there was no specific speech or message or even a design requested by the customers before they were denied.

Well, the other baker was allowed because it was determined it did not discriminate based on creed. Free speech wasn't directly cited as a reason

This may not be accurate. According to petitioner's brief, the commission cited the message as the basis of refusal:

The Commission reasoned

—(1) the bakeries declined the request because they objected to the particular message of the cake​

This fact is essential to petitioner's argument since the Court has long recognized a free speech right not to be compelled to speak, i.e. cannot be compelled to utter, speak, or make a message. The fact the commission did not explicitly use the magical phrase "free speech" is not dispositive of whether free speech rights could have possibly been implicated if the commission held the other baker had to place the message on the cake.

Citing that case doesn't help.

Well, you most assuredly have not cited to any facts or reasoning demonstrating a reliance on the case doesn't help. Your recent objection is a tenuous notion that unless the words "free speech" are specifically invoked, then there can be no possibly free speech rights involved that cannot form any basis under the law to justify the commissions outcome in regards to the other baker.

But citing to the case does help and it helps precisely because A.) As in the other case, in which the commission didn't find a violation because the bakery's refusal was on the basis of the particular message and they couldn't be compelled to speak, create, or make the message under the 1st Amendment, B.) here the baker engages in expressive conduct when making a custom wedding cake and cannot be forced to engage in expressive conduct under the 1st Amendment.

And whether he has free speech in his case doesn't depend on the other case.

Undoubtedly but I never alleged otherwise.

The facts of their case make it a weak argument, since there was no specific speech or message or even a design requested by the customers before they were denied.

This reasoning rests upon the false assumption there cannot be a free speech right in the absence of speech or message requested by the customers. The reasoning above is flawed because it fails to take into consideration the existence of free speech rights not related to "speech" or a "message," such as expressive speech. The petitioner's argument is an expressive speech claim and as a result, obsessing over a lack of "speech" or "message" requested by the customer does not, in any measure, weaken or reduce their expressive speech claim.