You placed a word in quotes to make it look like she used that word, when she did not use that word. That is a misquote. It is also misleading, as it does a terrible job of paraphrasing what was said. I will also note that the Scardina quote is bereft of context, unless one has access to the deposition mentioned in the article. We don't know what she was asked when she said that. We don't know what else she was asked, and how she responded. We are being presented only with what Fox News wants us to know.
That's great, but it doesn't tell me why you think I used the word 'forced', or what you though I meant when you though I used it.
And I fundamentally disagree with you here. Scardina telling Phillips to construct a particular colour scheme and also telling him that that colour scheme symbolised her gender transition is telling Phillips to express a message of support. It is more abstract than words written in English on top of the cake, but it is no less a message being conveyed.
Then we are at an impasse.
I would not, as I have made clear numerous times in this thread.
And I believe that telling Phillips to construct a cake with a certain colour scheme and vocalising the symbolism of that colour scheme was telling Phillips to convey a particular message. It was simply more abstract than words written in English.
Our beliefs are not in alignment.
In your example that I endorsed, the baker was not openly transphobic.
So, you would rather buy a cake from your 'preferred', transphobic baker (as long as she is silent about it at the point of transaction) than to get a cake from a baker who is
not transphobic?
Yes, because I prefer that cake, and I have no way of knowing the baker is transphobic if they are not openly transphobic. Please don't try to change your example with some new "at the point of transaction" bullshit.
Go try to be transgender in one of several Middle Eastern societies. I find it very hard to believe that anyone could be so blind to both history, and current events.
I thought we were talking about Colorado and America,
We were talking about societies that allow discrimination against transgenders to go unchecked.
but in any case, transgender people in Iran can get financial grants from the government to support gender transition. It happens, of course, not from widespread celebration of transgenderism but the shocking Islamic intolerance of homosexuality.
Is Iran the only country in the Middle East?
If the baker sells two color cakes, and two of the colors from which to choose are pink and blue, then he sells gender transition cakes as defined by transgender in question.
We fundamentally disagree on this point. The two colour cake was a gender transition cake
because Scardina imbued the symbolism on it and told Phillips
that's what he would be making. It is just more abstract than words written in English.
Yes we do, as it would be no different than refusing to bake a black and white cake for an interracial marriage and then claiming that the refusal has nothing to do with racial discrimination, but rather that one cannot be forced celebrate interracial marriage.
At any rate, I don't think the baker should be chained up, and put in a room, and disallowed to leave until they make a cake. That would be forcing them to make it. They should not be forced. They should always have the option instead to abdicate their public business license and let some other baker fill the niche in the community.
Perhaps there’s another alternative. Phillips remains open, is permitted to exercise his free speech right of not speaking, of not engaging in expressive conduct/speech, and another baker may do so.
At issue here are two possible 1st Amendment rights, and they are free speech and free exercise of religion.
Specifically at issue here is expressive speech. Expressive speech does, in certain contexts, merit the same protections as written or oral speech. There’s a two part test for expressive speech.
First, the speaker must intend to convey a particular message. Second, the message must be one likely to be understood by listeners. Spence v Washington and Texas v. Johnson.
These facts meet these elements. The cake was “a birthday cake commemorating her gender transition.” Phillips refused to make a pink cake with blue frosting to celebrate the anniversary of Scardina’s transition.
So, the context is a birthday cake to commemorate the date of Scarsina’s transition. To this end, the outside of the cake was to be adorned in the color blue, symbolically representing being a male at one time, and the middle of the cake was to be pink, symbolically representing her transition from male to female. The cake expresses a message consistent with the theme of the birthday party, a celebration of the specific date of her transition, and the cake symbolically recognizes and celebrates the importance of the date and her transition.
So, by making the cake for this purpose the baker has the intention to convey a particular message. The expressive message is not only that Scarsina is transgender, but it is also celebratory approval, acceptance, of being transgender and her transition.
Second, the message is likely one to be understood. Those who know she’s a transgender will understand the birthday cake, with the color arrangement, as symbolically representing her transition and approving of and acceptance of her transition and being transgender.
Now, can public accommodation laws compel speech by businesses?
The Court has had occasion to address this issue only once before, in the case of Hurley v Irish American Gay, Lesbian, and Bisexual Group of Boston.
In this case, the South Boston Allied War Veterans Council (from here on referred to as Council), an unincorporated association, had been vested by the city of Boston to organize and conduct the St. Patrick’s Day parade. The Council applied for and received a permit for the parade. GLIB, an organization created to march in the parade to express the members’ to not only being Irish but Irish and openly gay, lesbian and bisexual, requested of the Council a place to include gays, lesbians, and bisexuals in the parade to express such a message. The Council denied the request in 92 and 93 (they marched pursuant to a court order in 92, they sued in 93 alleging various state and federal violations, among the claims was violation of the state’s public accommodation law.
The trial court, after finding the parade had no specific expressive speech, held the public accommodation law required inclusion of GLIB members.
The Court, in reversing the trial court, first held the parade is expressive conduct, is expressive speech, and then held application of the public accommodation law to compel inclusion of Glib members in the parade, violated the free speech rights of the of the Council, specifically the right not to speak, not to be a part of specific, expressive speech, of specific expressive conduct.
If Phillips is engaged in expressive conduct by making a cake, and I think these specific facts show he is, then the public accommodation law cannot compel him to speak by requiring him to make the cake.
