Should bakers be forced to make gender transition celebration cakes?

[James Madison]

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.



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.

Therefore, it seems you should try to make a different argument or find a different ruling.

Maybe. Maybe not. What I can firmly say is nothing you’ve said shows my argument to be weak or flawed.

First, the issue of expressive speech--okay, perhaps one could make an effort to come to an agreement that this is expressive speech, maybe, but if so, it is not expressive speech by the employee. The employee is being paid to make a cake with designs and doodads and whatever that are known to belong to the customer in terms of their opinions/expressions, etc. A better analogy is as I gave before, a newspaper printing an obituary to some people's mother where the newspaper offers to do obituaries for a fee and has rules about cost of the words.

First, you can dispense with the “employee” analogy. The customer isn’t Phillips’ boss and Phillips isn’t an employee of Scardina. Phillips isn’t obligated to make a cake for anyone who walks into the door such that he is their employee and must submit to their demands like an employee does to their boss.

Second, your argument ignores the idea people are paid for their expressive talents and it is their expressive talents which is inherent int the final product. Hence, said person IS engaged in expressive speech.

A customer asking an artist to paint them a picture, and they tell the artist the colors they want, the setting, Notre Dame’s Administration building, AKA Golden Dome, in winter, with snowfall, etcetera. Indeed, these painting exist. Some are custom made at the request of fans, alumni, etcetera. The artists’ expressive talents are then used to paint the picture. The artist is engaged in expressive conduct and they were hired to do so.

The same is true of Phillips. Did the customer want a plain jane cake with blue on the outside and pink in the middle? No. Phillips, like other bakers, has a reputation for making not only quality cakes but also making the cakes visually appealing by use of their talents. In addition, his talents are requested to make a cake for an expressive purpose, a specific, expressive cake, with certain colors, to be an object used to celebrate a transition birthday. His act of making the cake has him engaged in the expressive speech. Phillips is engaged in expressive conduct should he have made the cake.

Everyone with a brain knows that the idea expressed comes from the customer, not the newspaper. Newspapers might or might not be public accommodations, but the point is more about who owns the manufactured item/printed item/expressed item.

Oh really? Awfully presumptuous to speak for “everyone with a brain.” You’ll forgive me if I am not wow’d by your god-like omniscient quality of what “everyone with a brain knows” and call BS. Maybe some people with a “brain” thinks as you do, but so the hell what?

Your printing example is a distinction without a meaningful difference. Both, Phillips example, and the printing example, involve speech. The fact speech is written as opposed to expressed doesn’t reduce the latter as both are speech. In both instances, Phillips and the printing company are engaged in speech when printing up/writing up an obituary or making the cake at issue. The paper by the printing company is the mouthpiece of the company, including the speech people paid to appear, as such people paid for the moupiece of the printing company to speak!

Now, second, the parade is also different because the people affected are actively participating in expression where they own the expression. There's too much of a conflation between their group as expressive actors and those they are organizing for a solid point to be made about one or the other in terms of a precedent. It's like as if the baker was also obligated to go to the celebration and sing when the candles were lit. That is not an actual thing that happened in the baker case and so that significant part of this ruling just isn't relevant by analogy to the case in question.

Then you have not properly understood Hurley and how I related Hurley to these facts. Hurley stands for the proposition those engaged in expressive speech, like a parade, cannot be compelled, through and by public accommodation law, to engage in expressive speech they do not want.

 

[Metaphor]

Alright then. Please amend my statement to read as follows:
"Regardless of whatever other motivation Scardina may have, at the very least she is pointing out injustice. Maybe she is just doing it so that the next transgender who wants to order a cake for their celebration, and lets it slip that it is for that purpose because they just didn't think to hide it, will not have to go through the <insert negative emotion that Metaphor feels is appropriate> that this baker would put them through."

Now maybe you can go back and address the argument I was making instead of devolving another discussion to semantics.



Why not? When it comes to birthday cakes in my family, there is only one place to go: La Bonne Bouchee. It's 45 minutes each way when traffic is good, but there will be heartbreak at many a birthday party if any other cake shows up.



If you allow one baker to discriminate, you must allow all bakers to discriminate. So someone in rural Colorado may have to drive hours to get a cake for their celebration, if they could get one at all if Colorado did not ban transgender discrimination.

Negative feelings result from all kinds of interactions, public and personal. "Negative feelings" is not, I think, sufficient for the State to mandate some particular person to perform some particular action.

Intentionally causing those in a protected class by denying them commerce is, however, sufficient for the State of Colorado to revoke your business license.

If a party shop did not stock any 'gender transition celebration' banners, do you think somebody could be heartbroken and humiliated by that? I imagine if they are of exceptional emotional fragility they may be. But do you think a customer should be able to force the shop to stock the banner?

Of course not, that would be rather ridiculous, and nothing like what happened in this case.

Intentionally causing those in a protected class by denying them commerce is, however, sufficient for the State of Colorado to revoke your business license.

Phillips didn’t deny Scardina a cake because she is transgender. Just as William Jack was not discriminated against on the basis of his religious creed where he approached three bakers, asked them to prepare cakes with messages disapproving of same-sex marriage on the basis of his religious convictions, and all three bakers refused. Mr. Jack filed complaints with the Colorado Civil Rights Division. He alleged the refusal by the bakers to make his cake violated Colorado’s Anti-Discrimination Act, which prohibits discrimination against customers in public accommodations because of religious creed.

The CCRD determined there wasn’t a violation, reasoning the bakers didn’t deny Mr. Jack service because of his religious beliefs but because the cakes he requested were offensive to their own moral convictions, specifically the refusal was based on the message, the speech, and the speech was offensive to their own moral beliefs.

So too here, Phillips did not deny service because Scardina is a transgender but instead because cake she requested was offensive to his religious convictions, specifically the speech was offensive.

Only if we recognize an equality between color / decoration and actual words.

They don't have to be 'equal'. A specific colour combination imbued with a symbolic meaning is more abstract than words written in English, but it does not mean it cannot and does not convey a message.

 

[James Madison]

Alright then. Please amend my statement to read as follows:
"Regardless of whatever other motivation Scardina may have, at the very least she is pointing out injustice. Maybe she is just doing it so that the next transgender who wants to order a cake for their celebration, and lets it slip that it is for that purpose because they just didn't think to hide it, will not have to go through the <insert negative emotion that Metaphor feels is appropriate> that this baker would put them through."

Now maybe you can go back and address the argument I was making instead of devolving another discussion to semantics.



Why not? When it comes to birthday cakes in my family, there is only one place to go: La Bonne Bouchee. It's 45 minutes each way when traffic is good, but there will be heartbreak at many a birthday party if any other cake shows up.



If you allow one baker to discriminate, you must allow all bakers to discriminate. So someone in rural Colorado may have to drive hours to get a cake for their celebration, if they could get one at all if Colorado did not ban transgender discrimination.

Negative feelings result from all kinds of interactions, public and personal. "Negative feelings" is not, I think, sufficient for the State to mandate some particular person to perform some particular action.

Intentionally causing those in a protected class by denying them commerce is, however, sufficient for the State of Colorado to revoke your business license.

If a party shop did not stock any 'gender transition celebration' banners, do you think somebody could be heartbroken and humiliated by that? I imagine if they are of exceptional emotional fragility they may be. But do you think a customer should be able to force the shop to stock the banner?

Of course not, that would be rather ridiculous, and nothing like what happened in this case.

Intentionally causing those in a protected class by denying them commerce is, however, sufficient for the State of Colorado to revoke your business license.

Phillips didn’t deny Scardina a cake because she is transgender. Just as William Jack was not discriminated against on the basis of his religious creed where he approached three bakers, asked them to prepare cakes with messages disapproving of same-sex marriage on the basis of his religious convictions, and all three bakers refused. Mr. Jack filed complaints with the Colorado Civil Rights Division. He alleged the refusal by the bakers to make his cake violated Colorado’s Anti-Discrimination Act, which prohibits discrimination against customers in public accommodations because of religious creed.

The CCRD determined there wasn’t a violation, reasoning the bakers didn’t deny Mr. Jack service because of his religious beliefs but because the cakes he requested were offensive to their own moral convictions, specifically the refusal was based on the message, the speech, and the speech was offensive to their own moral beliefs.

So too here, Phillips did not deny service because Scardina is a transgender but instead because cake she requested was offensive to his religious convictions, specifically the speech was offensive.

Only if we recognize an equality between color / decoration and actual words.

Expressive conduct can be every bit as actual words and where it is, it’s entitled to protection. Burning the U.S. flag in proper context can express as strongly, poignantly, and loudly the message of “Go to hell U.S.A.,” as speaking or writing the phrase.

These facts support a reasonable belief the cake is expressive and Phillips is engaged in expressive conduct.

 

[untermensche]

A person fulfilling the desires of customers is not expressing their own ideas anymore than a stenographer in a court room is.

 

[ZiprHead]

^^^ This.

 

[Metaphor]

^^^ This.

Then why didn't Scardina ask for the writing 'Happy Gender Transition' on the cake? If you really believe 'fulfilling customer wishes' is all that would be, why not ask the baker for this?

Indeed, if that's the case, no baker should be able to object to writing anything on any cake. After all, it's not the baker expressing himself, is it?

Should a baker be required to bake and place the words "Kykes and Faggots burn in Hell" on a cake?

 

[untermensche]

^^^ This.

Then why didn't Scardina ask for the writing 'Happy Gender Transition' on the cake? If you really believe 'fulfilling customer wishes' is all that would be, why not ask the baker for this?

Indeed, if that's the case, no baker should be able to object to writing anything on any cake. After all, it's not the baker expressing himself, is it?

Should a baker be required to bake and place the words "Kykes and Faggots burn in Hell" on a cake?

The baker can refuse to spell out with icing an expression from a customer that can be seen as reasonably offensive or profane or criminal.

 

[Metaphor]

^^^ This.

Then why didn't Scardina ask for the writing 'Happy Gender Transition' on the cake? If you really believe 'fulfilling customer wishes' is all that would be, why not ask the baker for this?

Indeed, if that's the case, no baker should be able to object to writing anything on any cake. After all, it's not the baker expressing himself, is it?

Should a baker be required to bake and place the words "Kykes and Faggots burn in Hell" on a cake?

The baker can refuse to spell out with icing an expression from a customer that can be seen as reasonably offensive or profane or criminal.

Ah. And you're the arbiter of 'reasonably offensive' or 'profane'. Gotcha.

 

[untermensche]

The baker can refuse to spell out with icing an expression from a customer that can be seen as reasonably offensive or profane or criminal.

Ah. And you're the arbiter of 'reasonably offensive' or 'profane'. Gotcha.

You think there is some question with Kike and Faggot?

If you are attacking somebody there is no question.

A celebration cake is not an attack cake.

 

[Metaphor]

The baker can refuse to spell out with icing an expression from a customer that can be seen as reasonably offensive or profane or criminal.

Ah. And you're the arbiter of 'reasonably offensive' or 'profane'. Gotcha.

You think there is some question with Kike and Faggot?

I think if a baker wants to refuse a cake with those words he ought to have every right.

And to refuse a cake with any other words he does not care for as well.

 

[laughing dog]

The baker can refuse to spell out with icing an expression from a customer that can be seen as reasonably offensive or profane or criminal.

Ah. And you're the arbiter of 'reasonably offensive' or 'profane'. Gotcha.

You think there is some question with Kike and Faggot?

Doesn't really matter because it ought to be obvious there is a difference between a written expression that is obvious and an intended use of a cake with no writing on it.

 

[untermensche]

Doesn't really matter because it ought to be obvious there is a difference between a written expression that is obvious and an intended use of a cake with no writing on it.

Hard to claim a color combination is offensive or profane or criminal.

 

[Metaphor]

Doesn't really matter because it ought to be obvious there is a difference between a written expression that is obvious and an intended use of a cake with no writing on it.

Hard to claim a color combination is offensive or profane or criminal.

So: force bakers to write whatever a customer wants (or else lose his business license). Bakers may refuse if untermensche thinks the writing is offensive, or profane, or criminal.

 

[untermensche]

Making a cake for someone is writing what THEY want on the cake.

It is not a personal expression. EVER.

They can refuse if what a customer wants is reasonably offensive, profane, or criminal.

People can debate that but something that is definitely NOT offensive profane or criminal is a gender transition.

 

[Metaphor]

Making a cake for someone is writing what THEY want on the cake.

It is not a personal expression. EVER.

They can refuse if what a customer wants is reasonably offensive, profane, or criminal.

People can debate that but something that is definitely NOT offensive profane or criminal is a gender transition.

I thought people could debate it? By 'offensive', you mean 'offensive to untermensche'. You don't mean 'offensive to the baker'.

Why is your judgment more important than the person being asked to bake the cake?

Why do you want to force bakers to write things they don't want to write?

 

[James Madison]

A person fulfilling the desires of customers is not expressing their own ideas anymore than a stenographer in a court room is.

A few problems.

The “own ideas” theme ignores that people can be engaged in speech or expressive conduct although thr speech or expressive conduct is not “their own ideas.” People can engage in speech and expressive conduct of other people’s ideas. I can plagiarize every chapter of Robert Nozick’s book, “Anarchy, State, and Utopia,” and doing so would constitute as speech on my behalf, despite the fact none of what I said or wrote was my “own ideas.” Similarly, Phillips is engaged in expressive conduct, regardless that his expressive conduct is expressing someone else’s speech, he’s still engaged in expressive conduct, just as I’m still engaged in speech despite my plagiarization.

And the exchange of money doesn’t change the situation. Phillips could offer free cake making for one month out of the calendar year and for free he would fulfilling someone else’s “ideas” but he would be engaged in expressive conduct of someone else’s ideas.

The courtroom stenographer examples ignores the fact A.) the stenographer is engaged in speech, is speaking and B.) the speech is government speech, the government is speaking.

An individual writing down what someone else said, or orally repeating verbatim what someone else says, is still speech by the human parrot or the expert verbatim note taker.


Sent from my iPhone using Tapatalk

 

[none]

Making a cake for someone is writing what THEY want on the cake.

It is not a personal expression. EVER.

They can refuse if what a customer wants is reasonably offensive, profane, or criminal.

People can debate that but something that is definitely NOT offensive profane or criminal is a gender transition.

I thought people could debate it? By 'offensive', you mean 'offensive to untermensche'. You don't mean 'offensive to the baker'.

Why is your judgment more important than the person being asked to bake the cake?

Why do you want to force bakers to write things they don't want to write?

like checks?

 

[untermensche]

Making a cake for someone is writing what THEY want on the cake.

It is not a personal expression. EVER.

They can refuse if what a customer wants is reasonably offensive, profane, or criminal.

People can debate that but something that is definitely NOT offensive profane or criminal is a gender transition.

I thought people could debate it? By 'offensive', you mean 'offensive to untermensche'. You don't mean 'offensive to the baker'.

Why is your judgment more important than the person being asked to bake the cake?

Why do you want to force bakers to write things they don't want to write?

The cake had no writing.

Bakers are in the business of writing what other people want.

Nobody forced them to be in that business.

But in business you can't discriminate illegally.

Even if you say Jesus told me to.

 

[Metaphor]

Making a cake for someone is writing what THEY want on the cake.

It is not a personal expression. EVER.

They can refuse if what a customer wants is reasonably offensive, profane, or criminal.

People can debate that but something that is definitely NOT offensive profane or criminal is a gender transition.

I thought people could debate it? By 'offensive', you mean 'offensive to untermensche'. You don't mean 'offensive to the baker'.

Why is your judgment more important than the person being asked to bake the cake?

Why do you want to force bakers to write things they don't want to write?

like checks?

No, not like checks.

 

[none]

like checks?

No, not like checks.

why not?