The Cake War Rages on After SCOTUS Punt

The Cake War Rages on After SCOTUS Punt

The US Supreme Court ruling in the Masterpiece Cakeshop same-sex wedding cake case was a clear, decisive, incontrovertible punt, and its inaction has had consequences.The baker who refused to bake the cake “won”, but only because of what the Court saw as blatant bias on behalf of the state in its openly hostile treatment of the bakery. The Court did not rule that sexual orientation discrimination based on religious beliefs is acceptable, nor did it reach a broader ruling on the free speech issues presented. The decision, if it could be called that, was neither a “victory for religious freedom”, as touted by some, nor a “devastating blow to civil rights”, as decried by others.

The Court had a chance to do what is expected of the highest court, ostensibly comprised of the greatest legal minds in the country: weigh the conflicting interests of religious liberty and the rights of LGBTQ persons to be free of discrimination in a public accommodation. It is a perilous gap to bridge, but those nine justices have been trusted with the knowledge and wherewithal to do it.

But they didn’t. They could have tackled the matter head on and settled it with a decision that would assuredly be considered a landmark ruling. Instead, they punted the ball back with an admonishment to be nice, both sides left to continue the game without any rules to guide their plays.

And so, Masterpiece Cakeshop finds itself once again on the offensive against accusations of discrimination. This time, the plaintiff is a transgender lawyer who, on the day the Supreme Court announced it would take up the gay wedding cake matter, asked the Cakeshop to design a cake for her that would celebrate her transition from male to female. As he had with the same-sex wedding cake order, owner Jack Phillips declined, citing his religious beliefs. The lawyer, Autumn Scardina, filed a discrimination complaint against the Cakeshop with the Colorado Civil Rights Commission, the same entity that SCOTUS ultimately found as unfairly hostile to Phillips. Shortly after the Court’s June 4 decision, the Colorado civil rights division found probable cause for Scardina’s civil rights complaint, prompting Phillips to file suit against the state for violation of his first amendment rights to freedom of religion and freedom of speech.

As this case works its way through the system and possibly back before the Supreme Court, one must note the damage caused by the Court’s failure to make a decision on the merits.

In addition to the ongoing indignity suffered by the LGBTQ community who continue to be refused service, the unsettled law also hurts businesses like Masterpiece who continue to grapple with complaints like that of Scardina and others.

And it looks at least on the surface like Scardina’s complaints are in bad faith, rather than a legitimate customer simply looking for service. According to Philips, Scardina has called repeatedly in the last year, asking for satanic themed cakes in addition to her request for the transgender celebration cake. Scardina has apparently set her sights on Masterpiece and its owner’s religious beliefs. The calls are not only a nuisance, but each one a potential civil rights complaint with which the baker must contend.

Had the Court done its job, both sides would know, for better or worse, what they are required to do. The shop would know it had to either bake the cake or make a decision to go out of the business of custom cakes, or the LGBTQ community would know they had no recourse but bad publicity and a visit to a friendlier merchant. And obvious opportunists like Scardina would be neutralized. Instead, we continue to operate in no man’s land, in which the LGBTQ community is freely discriminated against, and businesses are encumbered by litigation and complaints.

This ball is bound to land back in the hands of the United States Supreme Court. When it does, one can only hope an actual decision on the merits is reached. Then, we can argue about whether or not it was the right one.

 


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Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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153 thoughts on “The Cake War Rages on After SCOTUS Punt

  1. I’m firmly on the “just bake the darn cake Mr. Baker Person” but clearly aiming for a new case against this guy is not helpful or a good look. It’s just asking to drum up the exact same battle on the exact same battle field instead of finding more winnable ground.

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  2. To assist with your nose count, here’s the voting in the prior Masterpiece Cakeshop case, absent Anthony Kennedy who wrote the 7-2 punt

    C.J. John Roberts (Joined Kennedy’s punt in first case)
    Clarence Thomas (Concurs in judgment; would have decided on free speech grounds)
    Ruth Bader Ginsburg (Dissented from first case, would have found state interest in antidiscrimination law enforcement trumps claim of free exercise)
    Stephen Breyer (Joined Kennedy’s punt in first case; joined Kagan’s concurrence)
    Samuel A. Alito, Jr. (Joined Kennedy’s punt in first case; joined Gorsuch’s free expression concurrence)
    Sonia Sotomayor (Joined Ginsburg’s dissent)
    Elena Kagan (Joined Kennedy’s punt in first case; concurred to distinguish away other baker’s refusal to make anti-SSM cake)
    Neil M. Gorsuch (Joined Kennedy’s punt in first case; concurred to emphasize free expression; joined Thomas’ concurrence)
    Brett Kavanaugh (Not yet elevated to replace now-retired Justice Kennedy)

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    • Which suggests to me that should this go again before the SCOTUS, the likelihood of a finding for free expression will carry the day (unless CO is once again prone to allowing their bias to reflect strongly in the public record, thus giving the court another opportunity to punt).

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  3. Big discussion of this on FB yesterday.

    I’m firmly on the side that equal rights depends on having full access and participation in economic and civil life.

    A lot of people (mainly middle-aged white guys with libertarian or center-right politics) are doing impressive amounts of gymnastics in constructing arguments that support the baker but seem like they have animus towards LBGT people. I find this arguments totally unpersuasive.

    One argument is just find someone who will take your business. Easy enough I suppose but not always and there was a time when it wasn’t. The whole thing about hotels and motels not accepting Black or Jewish guests was a very real thing for many decades. We still exist in a world where people can be accused unjustly of shoplifting because of their race. One recent story I saw had a black, pregnant woman need to lift her shirt to prove she wasn’t shoplifting. I think this was at a big corporate store too.

    People also try and argue that this is a bespoke service but not a general service. So the couple should be able to buy a cake but not one with a message. I also find this unpersuasive. Consider this: Tim says he needs a birthday cake for his wife and it says “Happy Birthday Anna”. The baker does so gladly. Jessica says the same thing and the baker refuses. Is this different?

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      • To clarify, one need not engage in gymnastics or logic contortions. This is a straight up rights conflict where freedom of expression is pitted against public accommodation.

        If any of the Christians in question were refusing all service to any LGBT person (like, kicking them out the door and don’t come back for nothing), then it would be a simple question -they are wrong, PA wins.

        But it’s not that simple. It’s not even the performance of a custom service, since AFAIK the people twho have so far come to our attention would be fine with making a custom birthday cake or floral arrangement for an LGBT person. It’s performing a custom service for a specific thing that they have a sincere issue with (gay marriage).

        Should, say, a Muslim baker be forced to bake a Rum Cake for a person just because they requested it, even if the baker has a sincere belief against touching alcohol or providing alcohol to others? That question doesn’t even involve artistic expression, just a religious prohibition.

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        • I feel the same way as Oscar about this one and will continue to do so probably for an age. This isn’t even renting the wedding hall, for Pete’s sake!

          With a side of “trans people are going without food and shelter on the streets and this is what we’re raising money for, as a community of QUILTBAG people?” frustrations that Oscar probably doesn’t partake of, at least not in quite the same way. (NB that I did not, at all, feel like that about marriage equality. This is just so… who cares? There are no doubt 90-100 more bakeries in Denver that would make cakes just as good without having to trample someone’s freedom of expression/non-expression to do so.)

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            • If the precedent is set to be generally applicable, then yes, that would be a serious issue. However, PA laws are pretty clear about that, and I think things like housing and employment discrimination would be difficult to justify from a case (or cases) like this. You’d basically have to overturn PA laws.

              I.E. It’s not a slippery slope all by itself.

              That said, I do agree with your point down below that it is long past time for legislatures to get off their asses and provide something in the way of guidance. I suspect they don’t because it’s more politically advantageous to let Commissions or Judges who don’t have to face re-election try to sort this out, and if they come up with an answer the politicians don’t like, the politicians can ‘tsk-tsk’ all about it on the talk shows (likewise, if they do like the answer, they can be all supportive and what not).

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            • If that’s the precedent they are looking for, that’s the precedent they should be fighting for. And I wasn’t talking so much about switching to fighting different legal battles (though that is important!) as switching to friggin’ humanitarian care.

              I’m so sick of no one caring about the members of the queer community that are struggling to survive, whilst other members want to have everything they want *just so*…. it’s a trickle-down theory of queer inclusion and I’m tired of it.

              I mean, I also realize it’s not either / or and there are probably people who give money both to bolster survival rates for queer people AND to fight legal or cultural battles over small things …. but way too often I see folks – even friends – focused on the latter and completely in denial about the former.

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              • Also, while I’m on this rammy-tam, the amount of classism that leaks into a lot of the “it’s not EXPRESSION, it’s just a CAKE” arguments (not saying anyone’s here) is downright gross.

                No doubt they’d spit the same bs about all kinds of creative self-expressions that don’t meet their bourgeois standards for what counts as self-expression too.

                *makes a profoundly irritated face*

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                • More generally, a matter of the enforceability of content restrictions.
                  So, I want a photo of my middle finger on a billboard, as part of my religious festival.
                  The billboard company has some amateur art critic running the place, who refuses my artistic and religious expression.

                  How interested could I be in this?

                  Doesn’t register on the outrage scale.

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          • I mean on the one hand it’s silly and probably a waste of time. And this in particular seems like a pointless provocation, and a much clearer issue of free speech than in the first Masterpiece decision.

            On the other hand, is half right, and I think the half he has wrong actually makes this a more, rather than less, important issue when corrected. The reason people make a big deal about this has a lot to do with the (entirely justified, IMO) perception that the Right is trying to turn religious freedom from a shield that protects religious minorities to a sword that allows the majority to discriminate despite civil rights laws.

            Not every state applies non-discrimination laws to LGB (and especially) T people, but social conservatives wants to set the precedent that if a state does do that, people have an out on the basis of their religion. And weirdly enough the SoCons [1] haven’t really put forth limiting principles that would make it clear that this doesn’t apply to housing, employment, or government services.

            Indeed, they’ve pretty much done the opposite at every turn.

            Again, this particular instance seems like very dumb activism, but the underlying cause doesn’t seem at all cleanly separable from the broader issues of housing and employment discrimination.

            [1] As opposed to civil-libertarian minded folk across the political spectrum who believe the bakers have at least half a point.

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            • The reason people make a big deal about this has a lot to do with the (entirely justified, IMO) perception that the Right is trying to turn religious freedom from a shield that protects religious minorities to a sword that allows the majority to discriminate despite civil rights laws.

              First of all, Yes, that is both the perception and the likely reality.

              2nd, given that, I have no clue why the LGBT community is trying to hand this issue to this supreme court.

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        • A lot seems to hinge on same vs. different.

          The Muslim baker does not do alcohol for anyone. It’s a service he does not provide. I can’t go into a subway and demand a hamburger, it’s not something they do.

          The baker here provides wedding cakes. Is a gay cake substantively different enough from a hetero cake that it is a different thing? It would seem that if they are actually the same thing, he is denying on basis of sex/sexual orientation, which seems to be disallowed by CO law. But, if gay cakes are somehow a different thing, it’s just service he does not offer. The sex/sexual orientation is not relevant.

          Personally, I can’t see a substantive difference between a gay cake and hetro cake. In times past, I have asked cake makers to make cakes with objectionable content. Every time they objected they offered a compromise. The would omit the offensive parts and we could add it ourselves. Sell the dudes a hetro cake, and let them find toppers that fit their purpose. I doubt that would satisfy either camp here though. There are folks that seem determined to keep having this battle though.

          I agree with OP, SCOTUS/Congress really needs to put on their referee hats here and start lining the field.

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          • It’s not the cake, as such. It’s performing a service for something they strongly object to.

            Let’s try a different baker. A baker who was once upon a time severely beaten by the police, and is now being asked to bake a cake for a police retirement party.

            Should he be forced to participate in that in any way?

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                  • I do, but I have seen serious talk about making police a protected class (because the social power of police is insufficient to keep people from being mean to them, and assaulting an officer needs to be a hate crime).

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                      • Protected class is for the most part based on immutable characteristics- things about one’s self that one cannot change. You cannot decide your age, your race (sorry, Rachel Dolezal), your nationality, or being disabled and should not be discriminated for what you do not control. I believe that applies as well to sexual orientation- it’s not a choice.
                        Religion is trickier, though I’m sure there are many who see their faith as intrinsic… but I fall on the side of protection mostly on constitutional principles.
                        I would not agree with placing members of a chosen profession into a protected class.
                        That said, we do already in many places have laws that provide a harsher penalty for crimes against police officers and first responders.

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                        • I think there’s a lot of validity to regarding “immutability” as a criterion for making an aspect of someone’s identity a protected class, but I also think it’s hard to avoid the fact that religion—sort of the Ur-protected class—really is mutable. People change religions fairly frequently.

                          It’s just that the horrors that occur when people refuse to change their religions were almost enough on their own to give us the Enlightenment.

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                          • I don’t think mutability is the right criterion. Firstly it get the settled cases right (it takes a lot of tenuous reasoning to get religion to count as an immutable characteristic, on the other hand AFAICT paedophilia is an immutable characteristic, but that’s not a protected class and it shouldnt be).

                            Also, it doesn’t get the basic theoretical underpinnings right either. We shouldn’t discriminate against people on the basis of race not because race is an immutable characteristic, but because race is fundamentally an irrelevant criterion for things like whether you ought to be admitted to college or whether you should get a certain job. Discriminating on the basis of race is wrong because it fails to respect people’s personhood or their individuality and treats them as an undifferentiated mass rather than as an individual with a will and mind of their own.

                            I don’t know how mutability even got into the equation in the first place.

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                            • A lot of it was the reaction to the wingnut argument that equal rights for gay people would encourage people to be gay. Since sexual orientation doesn’t seem to be a mutable thing, it was a natural argument to make, and one which was coherent with the still-fresh-in-people’s-minds civil rights movement and (mostly) Second Wave feminism.

                              But it still doesn’t reckon with religion, which is why it bugs me more than a convenient but possibly shaky argument would.

                              And you can make an argument that someone’s religion does reflect something about their character in a way that their race doesn’t. Indeed, that’s certainly something many religious people same to believe.

                              But discriminating against people on the basis of their religion is still bad. It seems to be a category where, for whatever reason, expecting people to change it is profoundly unjust, and indeed people preferring death to renouncing their religion isn’t exactly something that’s unheard of.

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                        • A few points.

                          1. I don’t see why Dolezal can’t be transracial.

                          https://onlinelibrary.wiley.com/doi/abs/10.1111/hypa.12327

                          As Tuvel notes, any argument that can be used to criticise Dolezal can and has been used against the transgendered.If they don’t work against the transgendered then they don’t work against transracial identity.

                          2. Political beliefs seem about as mutable and as central to lots of people’s identities as religious beliefs. You may marry out of your religion, but people are less likely to marry out of their political tribe or to change political beliefs to match their spouse’s etc.

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        • The rum cake example seems silly because a baker whom presumably finds alcohol abhorrent does not serve rum cake to anyone.

          But yes, civil rights does involve compelling people to do actions that they don’t want to do. Colorado, California, and several other states have civil rights laws that are more expansive than the Civil Rights Act of 1964. Many of these states have explicitly or implicitly declared that LBGTQ identity is part of the classes that they believe need civil rights protection.

          I just don’t see the way you can square the circle here without gutting Civil Rights Laws more broadly. The Jim Crow South was a system of formal and informal laws and arrangements to keep Blacks as second or third class citizens. Congress passed the Civil Rights Act in 1964 because it wanted to end the informal arrangements that enforced segregation and discrimination. Several landmark civil rights cases from the 1960s involved Defendants who believed there were religious reasons to discriminate against Blacks (Ollie’s BBQ and Heart of Atlanta). In Loving v. Virginia, the state court judge who denied the couple’s right to marry did so because “Almighty God” declared the races should be separate and Chief Justice Earl Warren cited this as a reason the decision was guided by racial animus.

          In June, 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court [p3] of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia’s ban on interracial marriages. On January 6, 199, the Lovings pleaded guilty to the charge, and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that:
          Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.
          After their convictions, the Lovings took up residence in the District of Columbia. On November 6, 1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the Fourteenth Amendment. The motion not having been decided by October 28, 1964, the Lovings instituted a class action in the United States District Court for the Eastern District of Virginia requesting that a three-judge court be convened to declare the Virginia anti-miscegenation statutes unconstitutional and to enjoin state officials from enforcing their convictions. On January 22, 1965, the state trial judge denied the motion to vacate the sentences, and the Lovings perfected an appeal to the Supreme Court of Appeals of Virginia. On February 11, 1965, the three-judge District Court continued the case to allow the Lovings to present their constitutional claims to the highest state court.

          One argument I’ve seen is because gay marriage has been declared legal, we should just let this guy does as he does. I don’t think it is that simple based on previous civil rights cases and history. There is no way to rule narrowly for the baker without gutting the entirety of civil rights law.

          We wouldn’t even be having this discussion if the baker said something about refusing to bake a wedding cake for a couple that was interracial because he or she did not agree with interracial marriage and found it morally odious. I don’t see why LBGTQ is an exception.

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          • Yes, the rum cake was a bad analogy.

            We wouldn’t even be having this discussion if the baker said something about refusing to bake a wedding cake for a couple that was interracial because he or she did not agree with interracial marriage and found it morally odious.

            First off, don’t assume that just because I support the guys right to be a bigot means I don’t find his position to be morally odious. As to your hypothetical, I would continue to hold that racist baker should be allowed to be racist when asked to perform a bespoke service s/he is morally opposed to.

            Are people OK with compelling a doctor to perform an abortion when they are morally opposed to abortions? Should we be free to compel prison employees who strongly oppose the death penalty to participate in an execution? Or medical professionals who oppose suicide should be forced to help a person die with dignity? Or force them to pull the plug on the next Terry Schiavo? Wedding services are objectively LUXURY services, not essential services. These are not things necessary for full participation in society. They should be at the bottom of the list of what we are willing to compel people to do.

            Hell, my one carve out for this kind of thing is pharmacists and birth control, and that is only because A) that is the essence of their job (distributing medications which doctors prescribe), and B) to paraphrase , the government controls the distribution of BC and pharmacists have been granted the license to distribute drugs, thus they give up the right to object when they are acting as the primary agents for the government. They don’t want to distribute BC, lobby to make it OTC.

            Honestly, I continue to be at a loss as to why ANYONE would want a person to perform a cornerstone service for an important event when that person was not completely onboard with that event. More importantly, why would you want to legally compel such a person to be part of your event? Are you so absolutely trusting of their professionalism that they won’t find some way to make their displeasure known? I feel like a lot of this fight is being done solely out of spite, and I am more than willing to bet you will see a lot of that spite returned if this hill is defended to the bitter end.

            Would you want a known anti-Semite do key services for your wedding, or painting a family portrait, or some other important artistic service for you? Would you feel better if the law encouraged them to NOT be open about how s/he feels about Jews? Again, are you so certain of their professionalism that they won’t be able to find a way to exercise their spite in a not tortious manner?

            Frankly, I see a couple of options for how to deal with this that avoids the spite.

            1) Require that artisans who object to certain bespoke services are obligated to make such objections clear in all marketing materials. I like my odious people to be out & in the open about it. Put the burden of such choices on the artisan, and not on the customer.

            2) Require that artisans perform a given service for all, or for none. If they won’t do gay weddings, they can’t do straight weddings. This will annoy a lot of artisans, but it’s better than forcing them to participate in something they don’t want to participate in.

            In the end, forcing people to do something that goes against their beliefs needs to be measured against the potential good for society. Absent evidence of a growing movement of bigoted bakers taking root across the nation, I fail to see the good that such compelling people to provide luxury services will achieve.

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            • 2) Require that artisans perform a given service for all, or for none. If they won’t do gay weddings, they can’t do straight weddings. This will annoy a lot of artisans, but it’s better than forcing them to participate in something they don’t want to participate in.

              That was what CO ordered Philipps to do in Masterpiece I, for which he appealed to the SC. That he had to bake cakes for every type of wedding, or not at all. He (allegedly) stopped doing wedding cakes until the ruling in his favor earlier this year.

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    • Contrary to popular opinion, in Mastercake I, Phillips and the couple never got to discuss what the cake would say or how it will be decorated. Phillips didn’t object to placing two guys on top of the cake. He objected to bake any cake that would be used in a same sex marriage celebration.

      Which, to me, invalidates a lot of his argument, that cakes are bespoke creations that express something, something, specific and carry a message from the baker. His position is that any product baked by his shop that was consumed in a SSM celebration (or an anniversary of coming out) implied that he approved of SSM or transgenderism, and was compelled speech.

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      • He objected to bake any cake that would be used in a same sex marriage celebration.

        Do you have a cite for that, because that is not how I remember his objection? I recall his objection being that he would not bake a cake specifically for a gay wedding, but he had no problem selling (hypothetically) a cake that was made already and sitting in the display fridge.

        *I say hypothetically because I have no idea if the guy has a bunch of pre-made cakes in a display fridge in his shop.

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        • Do you have a cite for that, because that is not how I remember his objection? I recall his objection being that he would not bake a cake specifically for a gay wedding, but he had no problem selling (hypothetically) a cake that was made already and sitting in the display fridge.

          You can see it here in the factual discussion, page 16/70

          http://www.scotusblog.com/wp-content/uploads/2017/11/16-111_bs-cc-and-dm.pdf

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          • Thanks. I have it bookmarked and will read it this weekend.

            Assuming you are correct, that (IMHO) significantly weakens his position.

            I do recall that the florist from WA was quite explicit that she was happy to sell any of her stock arrangements to the gay couple, but she was unwilling to perform a custom/bespoke/’to spec’ arrangement for a gay wedding. That, to me, is a much stronger claim, because it maintains PA (they can purchase anything of the rack, so to speak), but addresses directly the artistic and religious claim of the florist.

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          • It should be point out that that’s a brief for the couple, so it’s going to present things in the worst possible light for Phillips. On the other side, the Gorsuch/Thomas concurrence says:

            Phillips is an active participant in the wedding celebration. He sits down with each couple for a consultation before he creates their custom wedding cake. He discusses their preferences, their personalities, and the details of their wedding to ensure that each cake reflects the couple who ordered it. In addition to creating and delivering the cake—a focal point of the wedding celebration—Phillips sometimes stays and interacts with the guests at the wedding.

            By this view, each cake is a unique creation that takes inspiration from the specifics of the buyers and the ceremony, whether or not the cake itself has any explicit references to the event. To me this seems rather silly for just a cake, but a lot of people do seem to take this stuff seriously.

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            • It should be point out that that’s a brief for the couple, so it’s going to present things in the worst possible light for Phillips

              True, but SC is not a court of first impression. Whatever is presented in the brief as summary of facts must be a fact proved by the record. You cannot claim in the brief things that not happened, even if you can omit things,

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            • Phillips is an active participant in the wedding celebration. He sits down with each couple for a consultation before he creates their custom wedding cake. He discusses their preferences, their personalities, and the details of their wedding to ensure that each cake reflects the couple who ordered it. In addition to creating and delivering the cake—a focal point of the wedding celebration—Phillips sometimes stays and interacts with the guests at the wedding.

              Wait a minute, wait a minute. The question isn’t how interactive he has to be with the customers while deciding what sort of cake to make. If that’s the threshold than hotels can claim the same exemption because they have front desk staff who will talk to you about what sort of room you want! You don’t get an exception from serving gay people just because you don’t want to talk to gay people about what they are buying from you.

              And the last sentence has a very suspicious ‘sometimes’ in it. Is that actually part of the services he is paid for? Does the other party even want him to do that in this specific instances? (I really wouldn’t want some random person I had not invited to my wedding, who disapproved of my marriage on religious grounds, just wandering around.)

              We keep talking about how there are first amendment implications here if the service is ‘artistic’ but…the argument here doesn’t seem to about that. It seems to be ‘I demand the right not to deal with gay customers at any significant level. Like, I’ll operate the register for them to buy something from the shelves, but I don’t want to actually speak to them in any manner about what they want.’

              That’s an entirely different argument being made, and doesn’t have anywhere near the specificity we’ve been imagining ‘People shouldn’t be compelled to create artistic speech they disagree with’. That is basically applicable to…anything. And it’s hard to see where there’s any line before ‘operating the register’…can businesses claim some sort of first amendment rights to ‘not speak’ to customers trying to rent hotel rooms?

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              • Or, to perhaps, clarify this:

                *gay couple walk into a real estate office*

                Gay couple: Hello, we would like to look at your houses.

                Them: While we do not discriminate based on sexual orientation, the Supreme Court has held that we don’t have to ‘work with you’. Thus we will not be interacting with you past this sentence.

                *real estate agent proceeds to sit there silently*

                Gay couple flip silently through some pamphlets, but purchasing a house rather obviously requires looking at it, and getting information, and, hell, working out a contract, and they can’t do any of that.

                Same with buying cars, or even purchasing online…a web site ‘talks’ to you. So it can make you say if you’re gay, and then…stops sending you web pages because the business has some moral objection to ‘talking to’ gay people.

                It’s not actually possible to buy a lot of things, and a great majority of services, if the business refuses to interact with you in any manner, and that seems to be arguing they _can_ refuse to interact with potential customers on first amendment grounds.

                That would basically rewrite any sort of civil rights protections to only apply to businesses where you walk in, pick up goods, and hand cash to the cashier.

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                • Your real estate agent would have to make the argument that acting as an agent for real estate transactions for a gay couple is somehow an activity that is somehow compelled speech.

                  All of this is truly a very specific PA carve out for persons arguably engaged in endeavors where the labor they are being asked to provide is considered artistic and expressive in nature.

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                  • Your real estate agent would have to make the argument that acting as an agent for real estate transactions for a gay couple is somehow an activity that is somehow compelled speech.

                    I mean, having bought a house, that seems like a much more obvious case of “compelled speech” than what we see in Masterpiece.

                    Also, issues of religious freedom and Constitutionality aside, the idea that participating in a wedding as a vendor of services is somehow an endorsement of the marriage is nucking futs.

                    How many bakers quiz the couples on their respective religions, what faiths their hypothetical kids will be raised in, whether he’s just marrying her for her money, whether she’s young enough to be his daughter, whether they’re cousins, whether they’re divorced, et c. and ad nauseam.

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                  • Your real estate agent would have to make the argument that acting as an agent for real estate transactions for a gay couple is somehow an activity that is somehow compelled speech.

                    Except, it isn’t compelled speech, per the blockquote Kenb provided above. The complaint outlined there is that the baker would have to “sit down with” the gay couple, learn their “preferences, their personalities, have to “interact with” the wedding party. Is being compelled to interact with people a speech issue? Only in a very corrupted sense of the term, seems to me.

                    This strikes me as a straight-up religious liberty issue.

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                    • This seems to be the disconnect here. I don’t see this as a religious exception to PA, I see it as an artistic exception to PA.

                      It’s not about the sitting down and talking with the gay couple, it’s about interrogating the gay couple such that the artisan can craft something that artistically expresses something about the couple. It’s akin to painting a portrait, or crafting a bust, or some other piece of art that is supposed to have meaning for the person commissioning it.

                      A real estate agent is facilitating a transaction between a buyer and a seller, not being commissioned to create and artistic purchase agreement between property owners.

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                      • On that view, the baker isn’t relying on religious liberty to exempt him from providing services to gays but instead he’s relying on pure bigotry. The argument would be that his animus towards gays prevents him from engaging in social interactions necessary to fulfill his artistic obligations as a cake-creator (should it be entered into) and because of that the state should not compel him to engage those types of commercial transactions.

                        I mean, that’s fine. It’s not what any of the participants have argued. I think for good reason. (Cuz this isn’t a speech issue but a religious liberty issue.)

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                        • It’s both speech and religious liberty.

                          I’m still not seeing a viable end state for this that doesn’t demand my 2nd option from up above. And frankly, I doubt that if forced to make a choice, most such people would accept the none option. They’ll do gay weddings, and basically phone it in, or be very clear with the people that they’ll do the work, but are strongly opposed to it in the hopes that the person just goes somewhere else.

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                          • If artistic expression were the fulcrum this case turned on, the baker would have no case: he *could* make a wedding cake which reflects his personal experience of gay people and their hopes and dreams, one which they most likely wouldn’t pay for due to the anti-gay animus so expressed. But the baker stopped the artistic process in advance of his normal interaction with clients due a religious belief regarding same sex couples. Speech has nothing to do with his decision to refrain from making the cake (since he was entirely free to make the gay couple a cake expressing his anti-gay views).

                            Free speech absolutists (that’s right, you heard me :) like to make everything about speech, but this baker’s freedom of expression – artistic or otherwise – isn’t compelled by having to make a cake for gay people. He could make them an anti-gay cake and take his chances on getting paid! The freedom he’s demanding is the right to deny them service and do so on religious grounds.

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                              • I suppose it’s technically possible, but their other actions have really curtailed my ability to extend the benefit of the doubt on the “hateful” front.

                                Indeed, one of the reasons I find them so detestable is I’m pretty sure that they want to be hateful, but have their hatefulness be perceived as pious and virtuous, rather than petty and cruel.

                                EDIT to add: I view the question of whether they’re detestable as largely orthogonal to the question of whether LGBT activists are acting wisely or justly in pursuing this issue with such vigor..

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                                • *shrug* There are enough people who super-hate me for being queer, and make no bones about saying so, that the idea of compelling people to say so is not appealing to me, regardless of what I think of said people.

                                  Also, I’ve actually *changed people’s minds* (according to their own self-reports) on the whole hating queer people thing, and every single one of those people was an evangelical Christian.

                                  Only 3 or 4 people, but since I think every one less hater in the world is a victory, I think those changes matter, and part of what I was doing (not expecting it to work) was to push them toward trust rather than increased antagonism.

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                            • this baker’s freedom of expression – artistic or otherwise – isn’t compelled by having to make a cake for gay people. He could make them an anti-gay cake and take his chances on getting paid! The freedom he’s demanding is the right to deny them service and do so on religious grounds.

                              Yes, exactly this.

                              He’s not refusing to make art at all. Or, at least, that’s not the grounds he is objecting on. He’s objecting on the grounds he, literally, would have to talk to gay people about their gay relationship. (Also that maybe he’d have to talk to guests at a gay wedding, also!)

                              Literally nothing in there is about the actual ‘cake speech’. It’s all about the pre-cake speech. The prep work for the art, not the art. (And then some possible speech after with hypothetical pro-gay marriage people!)

                              Which means the actual objection here is ‘compelled speech’. And it might seem reasonable, for about five seconds, to say ‘A person cannot be forced by the government to talk to gay people like they are real humans in a real relationship’. And…yeah, the government should, indeed, not be enforcing that in general.

                              But the entire premise of anti-discrimination law WRT to private business rather requires it. It requires dealing with protected classes that employees or even owners might find distasteful.

                              is arguing a point I could sorta see, that _art_ can somehow be carefully quantified and split off from anti-discrimination law, in the sense we shouldn’t demand people create specific sorts of art. I’ve even agreed with that before.

                              But it notable isn’t the argument these guys appear to making, and in fact what they’re trying to do actually shows just how dubious that entire premise is, and , I’m with you now…what we should actually do is say: You can’t compel people to make artistic choices you agree with…but you can, indeed, compel them to make art on a specific topic. It’s just, if you compel them to provide art on a topic they find _distasteful_, you’re probably going to get art reflecting that distaste, so that’s stupid to do…but you have a right to do that.

                              That way we a) don’t set the precedent apparently aimed at here, where people can just refuse to deal with gay customers _at all_ if they have to talk to them about their ‘gay situation'(1), and b) don’t have to figure out what art it.

                              1) Like I said, real estate agents talk about people’s situations all the time. ‘Are you married, how stable is your jobs, are you going to have kids?’ Same with car salemen, same with a lot of large purchases.

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                  • Your real estate agent would have to make the argument that acting as an agent for real estate transactions for a gay couple is somehow an activity that is somehow compelled speech.

                    ‘Somehow’?

                    It’s literally compelled speech. The government is requiring them to talk to someone about a specific thing.

                    If the government compels a business to provide services to people, then it is, ipso facto, compelling some employee to speak with them. (Not any particular employee, mind you, but that’s not particularly relevant unless we’re going to make the hotel call in replacement staff that will talk to gay people.)

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        • “Protected class” is irrelevant unless you deny service because of the customer’s class status. Jack Phillips did not deny service because of anyone’s class status. He denied service only because the requested service involved creating something that would celebrate a message he disagrees with.

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            • I’ve noticed a certain (perhaps American?*) tendency of people to confuse the moral question for the legal/constitutional one.

              It is true that the first amendment protects freedom of speech. It does not follow that the first amendment protects everything that might fall under freedom of speech. Just because an act is allowed by the first amendment doesn’t mean that a person’s moral right to freedom of speech wasn’t violated.

              Similarly just because US discrimination law does not designate political affiliation as a protected class does not mean that, it is not morally wrong to discriminate against people on the basis of political affiliation. (I’m not saying it necessarily is, only that legal facts about what the protected classes are have no bearing on the matter.)

              *I’m not sure that this tendency is necessarily a specifically American one. It may just be that I tend to get disproportionately involved in American discussion of politics.

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              • I don’t disagree with you, but the legal question is the one we are dealing with. I guess I should have said “without protected class, there is no illegal discrimination” to be clearer.

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                • I’ll say this, though: it’s true that freedom of association (and to a lesser but not totally trivial extent freedom of speech) is in tension with anti-discrimination law, and the underlying principle that people shouldn’t be subject to discrimination for dumb reason.

                  But that tension argues against endlessly generalizing the idea of anti-discrimination to any arbitrary category can dream up. We have the protected classes we do largely in response to actual widespread unjust discrimination on the basis of those classes, and that is proper. Whether something should be a protected class is a response to contingent facts of how members of those classes were treated historically, and are treated now.

                  There’s no such history of discrimination on the basis of political views, so there’s no need for that generalization.

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      • That is a specific message. The business isn’t legally beholden to provide a specific message. Jack didn’t allow the conversation to progress to customization.

        Jack did provide wedding cakes, which is what Dave and Charlie requested. To deny that service because they are a same sex couple is discrimination on the basis of sexual orientation. This really isn’t a difficult concept to grasp.

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  4. Hmm, if a baker who was a Seventh-Day Adventist refused to make a cake for Christmas, would we be ok with that?

    For the record, I would. I’d be a bit surprised, and maybe even irritated. But this has the majority-minority axis tilting the other way.

    Ok, so let’s say we have a trans person who is a baker, asked to make a cake celebrating the annual meeting of the Abomination Society (“abomination” is the typical description taken from the Bible by the sort of religious person who thinks a trans person is engaging in sinful behavior.).

    Would we be ok with that trans person refusing to make the cake? What if the baker were someone like me – I’m not trans, just trans-friendly, and I would really rather not make this cake. Can I do that? I’d like to be able to refuse. Would the law allow this? I suppose the difference is the Abomination Society does not consist of individuals from a protected class. I’m not a lawyer, I’m just trying to walk through this issue carefully.

    I love my (trans) daughter, and I know that she is careful to bring her business to people who actually, you know, want it. That’s always been my ethic, too. So I don’t feel that strongly about this issue, but I would like to walk through the issues.

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        • And notice how federalism is resurrected like Lazarus whenever states pass laws that progressives like?

          No one is a consistent federalist. And when you tread close to basic rights issues, people who claim that there is a basic right on their side is not going to be federalist about it. And for the sake of consistency, they shouldn’t. It’s hard for me to see how someone can square certain things as being basic rights that everyone should have with the thought that “let’s experiment with some places not having them”.

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    • I would think that a 7th Day Adventist would be required to bake a Christmas cake despite their religious beliefs based on my reading of Civil Rights Law. A Jewish baker would probably have to make one too.

      Now would a Jewish baker need to make a Nazi cake? Probably not because political ideology is not protected.

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  5. The spectrum of possibilites:

    1. You can refuse to sell standard cakes or cannolis to people against whom you have a religious objection. Allowing this would gut anti-discrimination law, though for some folk this is not a bug, but a feature.

    2. You can refuse to sell a custom cake with a specific message to which you object (“Happy Hitler’s Birthday”). Maybe you can be required to make the cake, but leave it to the Nazi to put the Hitler message on it himself. I think a lot of people could support this.

    3. You can refuse to sell a custom wedding cake, exactly like the one you’d sell to a couple of whom you approve, to any couple as to whom you have an objection — same-sex, racially-mixed, divorced nominal Catholics, or what-have-you. I don’t see how banning this is a religious freedom or free expression problem

    4. You can refuse to sell a custom cake (though not your standard cakes or cannolis) to anyone you damn please, just as you can refuse your ghost-writing services to anyone you damn please.

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    • The more words you need to justify or explain your position, the more likely it is that it’s bullshit situational ethics based mostly in aesthetic preference.

      How about: you can sell or not sell as you choose, regardless of who it is or what they want.

      Why is that too far a bridge to cross?

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      • Because the whole point of the Civil Rights laws (state and federal) is that whole classes of people were excluded from large factors of economic and civil life through informal, social and quasi-legalistic arrangements because of their race, religion, ethnicity, etc.

        The Negro Motorists Handbook was a thing because blacks needed to travel dozens if not hundreds of miles to find a place that would give them a room for the night or a meal. Being required to do so is not being a free and equal member of society. Since the passing of the original act, several states have passed their own and decided LBGTQ people deserve protection as a protected class. Colorado was one of these states and did so through the people voting for politicians who passed the legislation. There is nothing unconstitutional about the citizens and politicians of Colorado doing so. The Baker must follow the laws of Colorado if he wants the benefits, privileges, and immunities of residing and doing business in Colorado.

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  6. The National Review is saying the baker is being persecuted by Colorado. As an immigration lawyer who represented people who were really persecuted for being Christian I find this a bit rich. Persecution involves a lot more than having to bake a cake.

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  7. You can beat the rap but you can’t beat the ride.

    If you had baked the cake, you wouldn’t be sued right now.

    And if you had baked this one, you wouldn’t be sued 6 months from now.

    And if you will have had baked that one, you wouldn’t be sued a year from now.

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  8. Instead, we continue to operate in no man’s land, in which the LGBTQ community is freely discriminated against, and businesses are encumbered by litigation and complaints.

    So we have a business who cares more about God than money (probably rare) and some LGBTQ activists who apparently think this is the biggest source of discrimination left?

    Or am I missing something and they can leverage this into something bigger?

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    • per some arguments in this comment section, they’re afraid that their opponents *will* leverage this into something bigger (housing, employment) if they don’t get in there first.

      I personally think that attitude, and going after this stuff in full throat, is more likely to weaken, rather than strengthen, the average straight person’s conviction that housing and employment must be non-discriminatory… because it makes us QUILTBAG folks into “the antagonist” to a lot of people who otherwise wouldn’t see us that way, not just the folks who already do.

      But then, not being particularly average, nor straight, I do guess wrong about “the average straight person” from time to time.

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      • if they don’t get in there first.

        Thanks for the summation… and I think they’re running the risk of creating what they’re afraid of.

        IMHO They should wait and grow stronger.

        Anti-gay sentiment already looks old and dated, acceptance will continue as people meet married gays and realize they’re just people.

        I wonder if part of what’s going on is the pro-gay activists need an enemy to stay relevant. They’re running the real risk of having won so completely that they, personally, are now irrelevant and out of a job.

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        • I really doubt your suggestion in the last paragraph, see my comments above. There is PLENTY of activism to be done on behalf of queer people, particularly those at greatest risk to not survive to anything like a standard life expectancy …. granted it might not be the kind that pays really well (or much at all), and I would certainly guess that *some* (by no means all) activists care that they can make a lot more money stumping for the rights of the affluent than for the needs of the disproportionately poor and suffering, but a lack of relevance is not, in *real* terms, the problem.

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          • There is PLENTY of activism to be done on behalf of queer people, particularly those at greatest risk to not survive to anything like a standard life expectancy…

            Maribou: And I wasn’t talking so much about switching to fighting different legal battles (though that is important!) as switching to friggin’ humanitarian care.

            If Humanitarian care worked as an inspiring cause for activists then the Church wouldn’t have gone looking for an enemy and the abortion conflict would be less of a thing. IMHO the quest for relevancy is a big thing in certain circles.

            Having said that, everything I said was raw, uninformed, speculation.

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      • I personally think that attitude, and going after this stuff in full throat, is more likely to weaken, rather than strengthen, the average straight person’s conviction that housing and employment must be non-discriminatory… because it makes us QUILTBAG folks into “the antagonist” to a lot of people who otherwise wouldn’t see us that way, not just the folks who already do.

        I think it depends on what sort of average we’re talking about. The median straight person my well be easily swayed by such things, but I’m pretty sure the modal straight person is going to come to a judgement based on pre-existing partisan and cultural affinities.

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  9. I’m kinda on side “you don’t have to bake the cake” here. If he were refusing to serve gays or transgender people, I’d be on their side. But he’s refusing for a much more narrow reason. And I tend to err on the side of freedom in those cases. My general view of anti-discrimination law is that it should be applied cautiously when there are other options available. So hospitals don’t get to discriminate. But a baker might be able to refuse to bake a wedding cake. However, I’m aware that the issues is tricky. How far does that ability to refuse go? Could he refuse to bake a cake for a baby shower for an unmarried woman? That’s why I think the Court decided to punt.

    I also think the Court — rather wisely — is giving the American public some time to get used to the concept of SSM before the law comes barging in telling them what they can and can not do. Attitudes on this subject have changed so rapidly that it’s left a lot of Americans dizzy. This decision has a flavor of “OK, time out. Everyone go for a walk or something. Then we’ll discuss this.”

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  10. So I realized I was juxtaposing the two ‘Gay Wedding Services’; Masterpiece & Arlene’s Flowers. Personally, I feel Arlene’s has the stronger claim (at least as I understand the claim), and here is how I think it could play out if Arlene’s ever gets in front of the SCOTUS.

    The facts around Arlene’s, IIRC, is that she never denied service to people in the local LGBT community. She sold them stock arrangements, and custom arrangements for most everything, and she was frequented by the customer in question. It wasn’t until she was asked to do the custom arrangements for the man’s wedding that she balked for religious reasons (and she offered to provide a stock wedding arrangement).

    The way I read that is that in her case, it was never about the person, it was always about the event. She didn’t have a problem serving gay people, she had a problem providing custom artistic service for a gay wedding.

    Last I checked, events are not a protected class, so in order to bring the event into the realm of protection, you’d have to tie a gay wedding ceremony with custom floral arrangements intrinsically to gay identity. I think that is a hard sell. I think any kind of event getting tied to identity of a protected class is a hard sell. Maybe you could tie something like a bar or bat mitzvah to Jewish identity and have it stick, because there is a whole lot of history and tradition there, but even then, I’d have a hard time being critical of, say, a Palestinian person deciding not to provide custom services to such an event.

    Ergo, the exception would be very narrow. You can’t deny general service to a protected class, but you can refuse custom artistic service for specific events where the events are in conflict with personal morals.

    So, for example, a Stationary Designer who is also a staunch animal rights activist could not refuse a hunter’s request for invitations for her annual “We Killed It, Now Let’s Cook It!” BBQ, but they could not be obligated to create a custom stationary design for the event. They can suggest the customer choose a stock design, or they can recommend other designers who would be more willing to provide the custom service.

    TBH, I am certain should even that narrow of an exception become law, people will try to find ways to drive a truck through it, because don’t they always. So our hypothetical real estate agents could attempt to claim that A) all of their labor is custom artistic endeavors, and B) that helping black people buy houses in non-black neighborhoods is against their strongly held morals. But to me that comes down awful hard on the side of ‘it’s about the person, not the event’ (and that’s before we even address the nature of their work and what exactly is the artistic component). That all said, this is why we have courts and all that, isn’t it?

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    • So, for example, a Stationary Designer who is also a staunch animal rights activist could not refuse a hunter’s request for invitations for her annual “We Killed It, Now Let’s Cook It!” BBQ, but they could not be obligated to create a custom stationary design for the event. They can suggest the customer choose a stock design, or they can recommend other designers who would be more willing to provide the custom service.

      We have a real life example – Phoenix based Brush & Nib Studio. Brush & Nib, which was never asked to provide services for a gay wedding, sought to preempt such a request, alleged that Phoenix’s 2013 anti-discrimination law violated the First Amendment rights of its owners. The business sued for the right to post notices, including on its website, explicitly refusing services for same-sex weddings. The AZ Court of Appeals ruled that Brush & Nib had to provide the same services to both opposite & same sex wedding.

      I want to restate that the plaintiffs filed this lawsuit before a single gay person had requested any same sex wedding services from them. At some point I actually checked that the company existed before Obergefell, and had not been established just as a vehicle to sue against the Phoenix non-discrimination ordinances

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      • Is the case on appeal to a higher court, or did the company give up?

        Honestly, I’m OK with what they are asking for*. Not only are they asking for a narrow exception, they are doing so with the added request to be public about their desire to decline such events, which puts the burden upon themselves.

        *Assuming they were asking to decline custom work, and not just printing on stock stationary. I think that is a very important part of the exception. Stock work is already done and is being offered as is to all comers. I’d be quite explicit that the moral exception can not apply to stock designs, only to custom work, since that is provided as a unique offering for a specific event.

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        • Is the case on appeal to a higher court, or did the company give up?

          I think they are appealing to the AZ Supreme Court. They are represented by Alliance Defending freedom , which is why I some point i believed they were just a fake corporation established for the purposes of filing this lawsuit.

          ADF is of course representing also Philips and Arlene Flowers. ADF has a history of filing lawsuits “in anticipation of” being found in violation of anti discrimination laws

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          • Yeah, ADF is (IMHO) wrong more often than right, but I still think Arlene’s could make a case.

            What remains to be seen is if that is the case they make (artistic exception based upon moral conflict for a specific thing), or if ADF goes for a much broader general religious exception against a class of persons, which I would have a problem with.

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  11. If “it is far from resolved”, then the defendant, is supposed to have the benefit of the doubt according to our normal due process protocols. The burden of proof is on the accuser. There is no proof that Jack Phillips denied service to Craig and Mullins because they are gay. And there is no proof that Jack Phillips denied service to Autumn Scardina because she is transgender.

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    • As far as “burden of proof”, Phillips took it to SCOTUS, not the couple. So he was “the accuser”, and the State of Colorado Human Rights Commission was the defendant.
      Also, the Court did not issue a ruling as to whether it was discrimination or not. Thus, it is unresolved, in a LEGAL sense.
      You are arguing with no one. I have not asserted any conclusions as to whether he discriminated based on a protected class or not.
      You trotted out the tired straw man of the Hitler birthday cake and I just pointed out it was not analogous because there is no argument to be made that the refusal to make such a cake was discrimination under the law, because the law requires the refusal be based on protected class in order to be actionable.

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  12. Em Carpenter: As far as “burden of proof”, Phillips took it to SCOTUS, not the couple. So he was “the accuser”, and the State of Colorado Human Rights Commission was the defendant. Also, the Court did not issue a ruling as to whether it was discrimination or not. Thus, it is unresolved, in a LEGAL sense. You are arguing with no one. I have not asserted any conclusions as to whether he discriminated based on a protected class or not. You trotted out the tired straw man of the Hitler birthday cake and I just pointed out it was not analogous because there is no argument to be made that the refusal to make such a cake was discrimination under the law, because the law requires the refusal be based on protected class in order to be actionable.

    Burden of proof on the accuser is what should have been the standard at the Colorado Equal Rights Commission – when Jack Phillips was indeed the defendant. That’s what I’m referring to. It should never have been necessary for Jack Phillips to appeal to the SC, and should never have been necessary to invoke the first amendment. The glaring absence of proof of discrimination should have resulted in a dismissal of charges before this case ever got outside the state of Colorado.

    The Adolf comment was in response the post by Saul Degraw, who raised the issue of the significance names on birthday cakes:

    “People also try and argue that this is a bespoke service but not a general service. So the couple should be able to buy a cake but not one with a message. I also find this unpersuasive. Consider this: Tim says he needs a birthday cake for his wife and it says “Happy Birthday Anna”. The baker does so gladly. Jessica says the same thing and the baker refuses. Is this different?”

    I’m sorry that I failed to make the connection clear. I see in the thread layout that my post is pretty far removed from the post I was responding to, so it’s probably not clear where I was coming from. In any event, I did not say “Hitler” – you inferred “Hitler” from “Adolf”. Most people do. To know whether the cake was honoring Hitler, one would need to know the context in which the cake was being used. Just as knowing what message is being celebrated by a wedding cake, requires one to know the context in which the cake is being used. Furthermore, it may sound absurd to claim that a refusal to make a cake honoring Adolf is discrimination just because the customer is German. But it is equally absurd to claim that a refusal to make a cake honoring SSM is discrimination just because the customer is gay. In either case, the law requires proof, not speculation.

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  13. Refusing to serve a gay couple the same way you would serve a hetero couple is likely to constitute a prima facie case of discrimination.
    Once a plaintiff establishes a) that they’re a member of a protected class; and b) that they were discriminated against under circumstances that appear to be based on their membership in that class, then the law actually DOES place the burden on the defendant to prove a different, non-discriminatory basis for the refusal to perform the service.

    Thank you for the clarification of your hypothetical.

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  14. Em Carpenter: Refusing to serve a gay couple the same way you would serve a hetero couple is likely to constitute a prima facie case of discrimination. Once a plaintiff establishes a) that they’re a member of a protected class; and b) that they were discriminated against under circumstances that appear to be based on their membership in that class, then the law actually DOES place the burden on the defendant to prove a different, non-discriminatory basis for the refusal to perform the service.

    Thank you for the clarification of your hypothetical.

    The defendant has the burden to explain (not prove) his reason for the denial of service. If the given reason is non-discriminatory, then the burden shifts back to the accuser to disprove the defendants explanation. I am getting this from the recent ruling for Autumn Sardina by the Colorado Department of Regulatory Agencies, which can be seen as Exhibit A of the lawsuit filed by ADF
    http://www.adfmedia.org/files/MasterpieceCakeshopComplaint.pdf

    The following is an excerpt:

    “The legal framework under which civil rights matters are examined is as follows: The
    Charging Party bears the burden of proving that discrimination has occurred. Each
    key or essential element (“prima facie”) of the particular claim must be proven,
    through a majority (“preponderance”) of the evidence. If the Charging Party meets
    this initial burden of proof, then the Respondent has the burden of explaining, with
    sufficient clarity, a non-discriminatory justification for the action taken. This is in
    response to the specifically alleged action named in the charge. In addition, the
    Respondent has the burden to produce documents and other information requested by
    the administrative agency during the civil rights investigation. If the Respondent
    offers a non-discriminatory reason, then the burden once again shifts back to the
    Charging Party to prove that this proffered legitimate reason is merely a pretext for
    discrimination. At this stage, the Charging Party must prove, again through sufficient
    evidence, that the true and primary motive for the Respondent’s actions is unlawful
    discrimination.”

    Surprisingly, although the judge gives a very good explanation of the legal framework, he fails to actually follow that protocol in arriving at the decision against Jack Phillips. The Colorado law itself seems to be a good one as written – including the LGBT protections. But the basic problem seems to be the roguish way it is being manipulated.

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      • Stillwater: If the given reason is non-discriminatory, then the burden shifts back to the accuser to disprove the defendants explanation.

        Hence the case, I imagine. The argument is that it’s not discriminatory, amirite?

        Yes, and it’s illegal discrimination only if it is “primarily based on the Charging
        Party’s asserted protected group or status.”
        In the case of Jack Phillips he denied service because the requested service would have entailed creating a cake celebrating a message he disagrees with. He did not deny service because the customer was gay.

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              • Homeland Security Investigations or Enforcement and Deportation Operations?

                Seriously, though, I don’t see why there would be, or should be, legally relevant differences between “gay wedding cake” and “interracial wedding cake”.

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                • Well, is it okay for a sex worker to say “oh, I refuse clients who are…” and then pick something. A certain racial make-up. Perhaps wheelchair bound. Perhaps over a certain age.

                  Is your attitude “they’re leaving money on the table! Their loss…” or is your attitude “the government should get involved and make them accept people who are (whatever) as clients!”

                  If you’re willing to say “okay, my inclination is to be on the side of the former…” then you understand the argument from the point of view of the baker and it’s just about where to draw the line.

                  If it’s the latter… well. I suppose that that would be an interesting conversation.

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                  • It is just about where to draw the line.

                    I can’t see how to draw a sensible line that lets homophobic bakers refuse to bake wedding cakes, but not racist bakers.[1]

                    The best line we can draw might be to let both racist bakers and homophobic bakers off the hook for wedding cakes, though. I lean towards, “Nyah, let’s not do that,” but I’m not leaning towards it very hard.

                    [1] “Religious objections” don’t cut it for many reasons, not least that some people object to “race mixing” on religious grounds.

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                    • Because the issue is about our priorities.

                      Is freedom of association to refuse service more important than inclusion?
                      When, and why?

                      Which is the greater injustice, forcing a baker to bake a cake decorated with messages he dislikes, or allowing gay people to be denied inclusion into the normal lives that everyone else enjoys?

                      Personally, I just don’t see an injustice in making the cake. By definition, a public business makes cakes for all sorts of messages on a hired gun basis- the baker doesn’t really celebrate a soccer team’s victory.

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                    • Well, we kinda got into this sort of thing with the pharmacist/birth control thing. If you are willing to take the license from the state, congrats! You get to be told to provide the product to anybody who shows up at your house.

                      That said, pharmacists just count pills and put them into bottles. (You’d think that this would be a job that could easily be automated.)

                      To what extent can we compel artists and creative types to create art and creative shit that they don’t want to create?

                      I mean, I’m down with “I don’t give a crap that this offends you!” as a general rule. But I’m also suspicious that this rule, generally applied, could get applied to the people upset that they can’t get a dong cake from the Christian baker.

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                    • “Religious objections” don’t cut it for many reasons, not least that some people object to “race mixing” on religious grounds.

                      This is my singular issue with religious objections, that the government treats them as all equally valid, whether it’s an accepted belief within an established religion that has some kind of reviewable basis for the belief, or whatever crazy shit just popped into some guys head 10 seconds ago.

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                      • or whatever crazy shit just popped into some guys head 10 seconds ago

                        Do they really do that, though?
                        I know that there is a long history of Constitutional law that defines what is a “real” religion and what isn’t.

                        Its not like I can just assert that my religion says I don’t have to obey traffic laws, for example.

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                        • There seems to be a legal line where on one side, your religious beliefs are not relevant, these laws must be followed; and on the other the courts are willing to entertain whatever crap you want to claim.

                          We should probably ask one the small legion of lawyers hereabouts if they can define that line.

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                      • I *like* treating all religions as crazy shit that just popped into some guys head. That limits the power of the larger religions.

                        Worse, the alternative is we need to define “established” and “accepted” in such a way that we can make a law out of that.

                        At some point we end up giving “power” to “established” religions at the expense of their rivals. There are lots and lots of places in this country where Islam (or atheism) is a minor player.

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                        • Seeing as how I am agnostic and have no such convenient fall backs, personally, I’d prefer that religious beliefs be utterly null and void whenever they conflict with law.

                          But if we are going to play that game…

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                          • I’d prefer that religious beliefs be utterly null and void whenever they conflict with law.

                            We’re headed that way, that’s why there’s pushback from the religious groups.

                            As they get closer and closer to just being a social club they draw finer and finer lines. They used to be able to say “no marriage”, now they have to say “no cake from Baker X”.

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                            • Good comment. I think lefty/atheist types look at the religious right’s specific “lines in the sand” as trivial, like a can to be kicked over, and think “is that all you got?” But they’re not really lines in the sand. They’re breaking points.

                              I wish it were not that way. I think there are very few things in this world more destructive than the force of Christianity in its various iterations.

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                                  • That’s your experience of post-Christians, is it? They become Hindus?

                                    (For that matter, that’s your take on the 20th Century? That it was a particularly Hindu one?)

                                    To answer your question: no. And not only no, I have no idea how you reached the conclusion that that was what I was talking about when I talked about post-Christianity.

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                                    • @jaybird

                                      I’m assuming you all are talking about Hinduism with a full knowledge of the massacres of Partition, the current religious violence of BJP, the ways in which Hinduism was distorted by forceful choices of the British empire (much as Christianity has been distorted by forceful choices of myriad previous empires), etc ad infinitum.

                                      Except that when I assume that you are, I find the comments made even less easy to understand…

                                      (NB that I mean no antagonism toward any Hindus or Christians reading this – I do not blame individuals – many of whom are wonderful, moral people – for the violence done by other people in the name of their religious beliefs.)

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                                      • Heard and fair point.

                                        To more seriously answer Jaybird’s question about the 20th century, tho, not much of the violence he’s citing* can be attributed to “post-Christianity”, since only the Russians/Soviets claimed to be such, and they weren’t really post-Christian as much as very consciously anti-Christian. So all of that violence is either embedded within Christianity’s influence on the world (the world wars) or existed despite any Christian influence and can’t be viewed as post-Christian (all the other atrocities).

                                        At best, his argument would be that Christianity had nothing to do with it….

                                        * Not citing, but vaguely referring too…

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                              • I think there are very few things in this world more destructive than the force of Christianity in its various iterations.

                                Even in the context of dealing with the church standing behind Priests raping children/people, I disagree.

                                Other religions still have armies and are holding destroy-country religious wars.

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                          • I’d prefer that religious beliefs be utterly null and void whenever they conflict with law.

                            Only if the law is doing some absolutely essential function, there is no less intrusive means of achieving said function, and carving out an exemption will gut the law. Otherwise you can just say no minarets or no hijabs just because you don’t like them and religious beliefs become null and void. Secularism is not liberalism and people think that being hyper-secular is the same as being liberal. Being hyper-secular can take you into deeply illiberal waters.

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                    • I can’t see how to draw a sensible line that lets homophobic bakers refuse to bake wedding cakes, but not racist bakers.[1]

                      Anyone know what we do now? Has this issue just not come up for racist bakers?

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                      • Racist bakers didn’t have multi-million dollar foundations backing lawsuits to determine their right not to sell racist cakes in 1974.

                        So, the racists either started selling cakes or sold their business, if it was too much to make a cake for Bob & Martha’s wedding.

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                        • Maybe Maribou and Jaybird could chime in here, but I’ve been to CoSprings. It’s not a small city. There *must* be more wedding cake bakers than the poor guy who keeps having to lawyer up because folks want to prove he’s a bigot.

                          I’m not sure who started it, but it seems effed up for lefties to keep picking on this guy. (Unless there ain’t any other bakers in town, and even then….)

                          The first time around I was one of the people who said, about the baker!, it’s just a wedding cake, yo. Well, that applies to lefties too. It’s just a wedding cake. Get one from Safeway and leave the guy alone. :)

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                          • It’s not in Co Springs, it’s in Lakewood (Denver suburb, largest in Jefferson County).

                            But there are far more bakers in Denver than just this one guy. I think (could be misremembering) that the Masterpiece guy made a point of being explicit on his website about what he would or wouldn’t do, in the aftermath of ANOTHER fight, which also involved a Denver bakery, in the opposite direction – that one, the bakery, refusing to do anti-gay-marriage messages (I believe the word “abomination” may have been involved) on their cakes, got sued by some jerk making a point. (Jaybird used to know said jerk, a million years ago.) But I might’ve gotten the order of events wrong.

                            Anyway, Colorado Springs is so far legal-battle-over-cakes-free.

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                          • Masterpiece Cakeshop is in Lakewood, suburb west of Denver, not Colorado Springs. At least several high-end custom cake shops. Also non-shop bakers — I fence with a woman who does custom cakes in her kitchen, goes to the customer for design/consultation, no storefront.

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                        • Racist bakers didn’t have multi-million dollar foundations backing lawsuits to determine their right not to sell racist cakes in 1974.

                          The idea of racism, and resisting integration and equal rights, owned the political establishment of several states.

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                          • !!

                            I mean, racists (if we’re good lefties or historically literate) controlled business and politics, government and the courts. They didn’t need outside money back in the day. Trump’s trying to Make America Like That Again. :)

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            • I was responding to you saying he would have been making a cake “celebrating a message”.

              No. It would be a cake celebrating a marriage.

              Not same sex marriage in general; one couple’s nuptials. He would have done it if they were a straight couple- that’s the argument for it being discriminatory, obviously.

              And I don’t agree that providing a cake for which you are paid is “celebrating”. The couple and the guests are celebrating. Not the caterer or the dj or the photographer.

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              • Em Carpenter:
                No. It would be a cake celebrating a marriage.

                Not same sex marriage in general; one couple’s nuptials. He would have done it if they were a straight couple- that’s the argument for it being discriminatory, obviously.

                If you are going to be specific about the customer characteristics (gay) upon which the alleged discrimination is based, then you have to apply the same level of specificity to the explanation for the denial of service. His reason for the denial of service is that the requested service entailed creating a wedding cake celebrating same sex marriage.

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            • The idea that people providing wedding services are endorsing the wedding is… just plain loopy.

              Like, seriously, people disapprove of marriages all the time for all sorts of reasons, and generally speaking the providers of these services don’t quiz you to see if your marriage is going to be worthy of their approval.

              He just immediately decided he wouldn’t approve of their marriage because they were gay, and decided that in this instance it really mattered that he doesn’t approve of their marriage.

              It’s far from obvious why that’s not discriminating against them on the basis of sexual orientation.

              Maybe he should win his case anyway, and “frankly loopy” describes a lot of behaviors that are protected as free exercise of religion, but again it’s far from obvious.

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              • pillsy: The idea that people providing wedding services are endorsing the wedding is… just plain loopy.

                I didn’t say anything about “endorsing the wedding” . He denied service only because the requested service entailed creating a cake celebrating SSM. Whether creating such a cake constitutes “endorsing the wedding” is irrelevant.

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                  • No, a cake for a same sex wedding is not “celebrating SSM”, it’s celebrating a wedding.

                    Well, not to trivialize this discussion, but that’s precisely what’s at issue here, isn’t it? The cake maker objected to contributing to a sacrament, revealed in the ceremony, his religious commitments preclude him from engaging in.

                    I mean, I’m with you Pillsy. A cake is a cake is a cake. But that view of cakes cuts both ways, doesn’t it?

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                    • Yes, that is what is at issue here, and my argument is essentially that:

                      1. The idea that baking a cake for a wedding is an endorsement of that particular marriage as spiritually or religiously licit seems to have been invented in response to gay marriage.
                      2. If they’re singling out marriages for extra scrutiny on the basis of membership in a special class, that seems to be prohibited discrimination.

                      Now maybe that sort of discrimination should be allowed because prohibiting it really would be infringing on First Amendment rights around speech or free exercise of religion. But that is a different argument, and one that has implications that are worth considering.

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                  • pillsy: No, a cake for a same sex wedding is not “celebrating SSM”, it’s celebrating a wedding. They weren’t having a party to celebrate, I dunno, the anniversary of Obergefell or something.

                    It’s a celebrating a marriage between two people of the same sex – if you prefer that terminology.

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  15. Mike Schilling: So if he refused to make a graduation cake for a black student to express his opposition to affirmative action in higher education …?

    Is the cake celebrating his graduation? Or is it celebrating affirmative action?

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