SCOTUS to take the cake

[James Madison]

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.

Not all "expressive conduct" is considered "protected"

This is undoubtedly true, just as it is true not all "speech" is protected. But if this is expressive conduct, then it isn't the kind and type of expressive conduct the Court has held would not receive protection by the 1st Amendment. Rather, this expressive conduct falls with the Court's prior cases of the kind of expressive conduct to receive 1st Amendment protection.

and not all conduct can be claimed as "expressive conduct"

This is true and whether the baker's conduct constitutes as expressive conduct will have to be determined by the Court. But the Court isn't operating with a tabula rasa, as they have several expressive speech cases to rely upon to guide them.

For instance, a New York appeals court ruled that recreational dancing is not an "expressive conduct" and therefore not protected.

Was this a state appellate decision?

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.

Well, petitioner makes an argument in his application for cert., articulating why making a custom wedding cake is expressive conduct. It is a decent argument. I am not entirely convinced but the argument isn't frivolous.

If we took the requested wedding cake and displayed it in an empty room with no other context - what *message* does the cake send?

Well, but the Court has in the past considered context and does consider context in determining whether the conduct is expressive speech. Indeed, they considered context in the flag burning case of Texas v. Johnson. The context greatly assisted the Court in arriving to the conclusion the act of burning the American flag was expressive conduct. Considering context, or a lack of it, in determining whether expressive conduct is present makes sense. After all, a lack of context may result in a lack of expressive conduct (someone wearing a black armband with a peace symbol on their arm, with no context to explain why or for what purpose, makes the expressive conduct non-existent, or so difficult to perceive as to practically be non-existent.) However, wearing a black armband with a peace sign to coincide with an event, such as the day the U.S. began bombing Iraq, makes the potential expressive conduct more discernible, thanks to context. As the Court noted:

In Spence, for example, we emphasized that Spence's taping of a peace sign to his flag was "roughly simultaneous with and concededly triggered by the Cambodian incursion and the Kent State tragedy."​

Texas v. Johnson.

It was the context which rendered Spence's conduct of "taping a peace sign to his flag" as expressive conduct, expressive speech, under the 1st Amendment. So,context is important and cannot and should not be ignored.

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.

The expressive conduct is the baker's actions of creating a custom cake, as the petitioner alleges in his application for cert. This is not to suggest the cake itself does not or could not have some expressive component.

As such, "expressive conduct" argument fails.

The argument may indeed be a failure, but the reasons you have espoused here do not demonstrate the expressive speech argument to be a failure.

 

[Jimmy Higgins]

This case is a potential loophole being exploited by conservatives to find a new way to discriminate those they feel are left available to be discriminated against. The trouble is, he is selling his expression and there are laws and regulations for companies that do this. There is a compromise when becoming a business, you obtain certain waivers of liability, however, you lose a little decision making, like you can't discriminate against your customer base.

The result of this case can't be anything but 9-0 or 8-1 (Thomas dissenting). This right-wing attempt to codify discrimination as a right of the people is devious.

 

[jonatha]

The alleged lack of a message on this cake will not and shouldn't preclude the Court from addressing the boundaries of free speech in relation to cakes with messages on them. The Court likely will not pretend no wedding cake has ever or will never include a message on it.

Not that it invalidates your point, but I don't think I've ever seen a wedding or groom's cake with writing on it. (My wife is a baker....)

 

[James Madison]

The alleged lack of a message on this cake will not and shouldn't preclude the Court from addressing the boundaries of free speech in relation to cakes with messages on them. The Court likely will not pretend no wedding cake has ever or will never include a message on it.

Not that it invalidates your point, but I don't think I've ever seen a wedding or groom's cake with writing on it. (My wife is a baker....)

I can't recall but I rarely pay attention to the wedding cake. The fact I do not eat the cake likely contributes to my ignoring the cake.


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[jonatha]

As long as I've started, I'll thrown in my two cents, being somewhat familiar with the bakery business.

Penny #1 - the baker should win this case, on the grounds that a wedding cake is a bespoke item (nobody stocks wedding cakes), and on the grounds that "who baked the wedding cake" is a common question at the reception. This ties the artist to his work, as it were.

Penny #2 - if the baker also routinely offers for sale cakes already prepared, and refused to sell one on hand to the couple after learning they intended to serve it at their reception, and was sued, the baker should lose on "public accommodation" grounds.

(We don't do wedding cakes at all because transportation, setup, and retrieval of the various posts and platters is too big a PITA....)

 

[Jimmy Higgins]

Penny #1 - Why should this not apply to inter-racial marriages or inter-religious marriages?

This has already been addressed in spirit of the law. The question being asked, is it still okay to discriminate against gays via this ridiculous mechanism?

 

[Jolly_Penguin]

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

Does it have to be commerce? For example, is it legal in your country for churches to have explicit "no blacks" policies and deny blacks into the building? Has there ever been a legal case there where two black people want to get married in a racist church? Did this come up during the time when inter-racial marriage was taboo?

 

[Jimmy Higgins]

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

Does it have to be commerce?

If selling a cake, yes, it is fucking commerce.

Did this come up during the time when inter-racial marriage was taboo?

You misspelled "criminalized".

 

[James Madison]

Penny #1 - Why should this not apply to inter-racial marriages or inter-religious marriages?

This has already been addressed in spirit of the law. The question being asked, is it still okay to discriminate against gays via this ridiculous mechanism?

What you are missing is that, in regards to the free speech claim, the discrimination isn't based on race or sexual orientation. They aren't allowed to refuse service because of race or sexual orientation. They must still serve blacks and gays generally.

The refusal here is based on an alleged free speech right in a specific and narrow sirusriom. An apparent subtle distinction for some but a fundamental distinction.


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[repoman]

Aren't teh gayz actually asking for them to make a de facto Satanic wedding cake?

It would be ironic it they made a wedding cake for a Satanic wedding but not for a gay christian wedding. By their definition a gay wedding can't be Christian, but I don't think that has legal standing.

This makes me have a strange aside enter my head, if the Amish were to be on the wrong side of anti-gay discrimination laws should they be treated like non-amish doing the same? They are a separatist community, so I would think it would take a very strong situation for the local, state or federal government to intervene.

 

[untermensche]

Penny #1 - Why should this not apply to inter-racial marriages or inter-religious marriages?

This has already been addressed in spirit of the law. The question being asked, is it still okay to discriminate against gays via this ridiculous mechanism?

What you are missing is that, in regards to the free speech claim, the discrimination isn't based on race or sexual orientation. They aren't allowed to refuse service because of race or sexual orientation. They must still serve blacks and gays generally.

The refusal here is based on an alleged free speech right in a specific and narrow sirusriom. An apparent subtle distinction for some but a fundamental distinction.


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What specific speech?

"Good luck Rex and Ronnie."

They are allowed to oppose that?

What words are giving this baker problems with his religion?

If he says baking a cake is a form of art I can claim cooking eggs is a form of art and I can't do it for people going to a gay wedding afterward. I can't contribute to their sin by feeding them with my art.

 

[jonatha]

Penny #1 - Why should this not apply to inter-racial marriages or inter-religious marriages?

It should, I suppose, (although this is of course odious) and would (I think) were it not for the fact that race is a protected category.

I'd be entirely in favor of adding sexual orientation to the list....

 

[laughing dog]

Penny #1 - Why should this not apply to inter-racial marriages or inter-religious marriages?

It should, I suppose, (although this is of course odious) and would (I think) were it not for the fact that race is a protected category.

I'd be entirely in favor of adding sexual orientation to the list....

It is in Colorado - hence the ruling in Colorado.

 

[LordKiran]

It should, I suppose, (although this is of course odious) and would (I think) were it not for the fact that race is a protected category.

I'd be entirely in favor of adding sexual orientation to the list....

It is in Colorado - hence the ruling in Colorado.

So now we also get to bring state's rights into this! Hurray!

 

[James Madison]

What you are missing is that, in regards to the free speech claim, the discrimination isn't based on race or sexual orientation. They aren't allowed to refuse service because of race or sexual orientation. They must still serve blacks and gays generally.

The refusal here is based on an alleged free speech right in a specific and narrow sirusriom. An apparent subtle distinction for some but a fundamental distinction.


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What specific speech?

"Good luck Rex and Ronnie."

They are allowed to oppose that?

What words are giving this baker problems with his religion?

If he says baking a cake is a form of art I can claim cooking eggs is a form of art and I can't do it for people going to a gay wedding afterward. I can't contribute to their sin by feeding them with my art.

Man, I do not want to repeat what you are capable of reviewing from my prior posts. I've already stated, in prior posts, the potential speech involved and referenced specifically to petitioner's brief. Petitioner's brief explicitly states the alleged speech involved. You can read it here. http://www.scotusblog.com/wp-content/uploads/2016/08/16-111-cert-petition.pdf

Petitioner's speech claim isn't frivolous and more nuanced than someone merely cooking eggs.


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[Jimmy Higgins]

Penny #1 - Why should this not apply to inter-racial marriages or inter-religious marriages?

It should, I suppose, (although this is of course odious) and would (I think) were it not for the fact that race is a protected category.

I'd be entirely in favor of adding sexual orientation to the list....

As ld notes above, it is the law in Colorado, just like it is with inter-racial (though inter-racial is also protected federally). Which is why I'm having a hard time understanding how this bullshit case is making it this far.

 

[repoman]

couldn't some group of any race (white power, black power, Atzlan...) make up a racial identitarian religious doctrine and be officially a religious organization and then not make cakes for interracial marriages if this works?

Can new racial separatist religions be recognized?

Essentially the religion would be a fig-leaf for being able to be racist/separatist.

 

[James Madison]

It should, I suppose, (although this is of course odious) and would (I think) were it not for the fact that race is a protected category.

I'd be entirely in favor of adding sexual orientation to the list....

As ld notes above, it is the law in Colorado, just like it is with inter-racial (though inter-racial is also protected federally). Which is why I'm having a hard time understanding how this bullshit case is making it this far.

Because you continue to be remiss in failing to acknowledge the free speech claim.

- - - Updated - - -

couldn't some group of any race (white power, black power, Atzlan...) make up a racial identitarian religious doctrine and be officially a religious organization and then not make cakes for interracial marriages if this works?

Can new racial separatist religions be recognized?

Essentially the religion would be a fig-leaf for being able to be racist/separatist.

The religious claim would likely fail, as I stated previously, under the standard announced in Employment Division v. Smith.

However, a potential free speech claim may permit them to engage in the conduct you referenced.

 

[Jimmy Higgins]

Penny #1 - Why should this not apply to inter-racial marriages or inter-religious marriages?

This has already been addressed in spirit of the law. The question being asked, is it still okay to discriminate against gays via this ridiculous mechanism?

What you are missing is that, in regards to the free speech claim, the discrimination isn't based on race or sexual orientation. They aren't allowed to refuse service because of race or sexual orientation. They must still serve blacks and gays generally.

The refusal here is based on an alleged free speech right in a specific and narrow sirusriom. An apparent subtle distinction for some but a fundamental distinction.

I'm most certainly hoping that the justices aren't stupid enough to fall for this.

Any legal filing that includes text that reads: "Cake making dates back to at least 1175 B.C." can't be taken too seriously. I'm surprised they didn't cite the rainbow as a symbolic gesture of a new covenant with man in the write-up.

In addition, Phillips argued that CADA should beread narrowly to avoid a constitutional violationbecause requiring him to create custom weddingcakes to celebrate a same-sex wedding ceremonywould violate the compelled speech doctrine and hisright to the free exercise of religion under the Firstand Fourteenth Amendments of the United StatesConstitution.

I don't see how this claim is not applicable to inter-racial couples as well.

 

[Jimmy Higgins]

As ld notes above, it is the law in Colorado, just like it is with inter-racial (though inter-racial is also protected federally). Which is why I'm having a hard time understanding how this bullshit case is making it this far.

Because you continue to be remiss in failing to acknowledge the free speech claim.

This is a non-issue for inter-racial marriage. If he denied an inter-racial couple a cake, he'd be refuted, and we wouldn't be here. The only reason why this case exists is that it is within the margins that potential discrimination against gays is still acceptable. I quite understand that his lawyers are claiming that his art/expression is speech. I don't care about if it is speech. Expression is protected by the Constitution. What isn't protected is discrimination. His lawyers claim he is being compelled to exert some speech that isn't his, and therefore being wronged by the State. The problem is that this can apply to any number of things that he may think is wrong for religious reasons. Paying blacks, inter-racial marriage, any number of things that used to be status quo in America.