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  #501  
Old 12-05-2017, 02:01 PM
Paranoid Randroid Paranoid Randroid is offline
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Originally Posted by puzzlegal View Post
I had a dry cleaner curse me out and refuse to give me my clothes back. It never occurred to me to report him to the municipality. I just stood there and said "give me back my stuff" loudly every time a new customer came in until he gave me back my stuff, and never went there again.
Okay, sorry, hijack, what was that about? Was it like in Seinfeld where the mechanic steals his car for not treating it properly?
  #502  
Old 12-05-2017, 02:13 PM
Whack-a-Mole Whack-a-Mole is offline
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Originally Posted by UltraVires View Post
But the plain text of the law implies a nexus between discrimination against a particular protected quality that one's customer has. IOW, I won't serve YOU lunch because you are black, but I would serve a white person lunch. I will not rent YOU a hotel room because you are Chinese, but I would rent one to a white or black person. The customer is the one being discriminated against.

In your hypo, the store is not discriminating against the race of the customer at all. He will not bake an interracial marriage cake whether the customer was white, black or otherwise. He would not make such a cake for ANY customer, without regard to the customer's protected class.
Extend this notion then.

Can a pharmacist refuse to dispense birth control as long as he/she refuses to do it equally?

What about a police officer who refuses to deal with a domestic dispute involving am interracial couple? Or same sex couple? (Remember the police do not have a constitutional duty to protect you from harm.)

Where do you draw the line?
  #503  
Old 12-05-2017, 02:34 PM
John Mace John Mace is online now
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Originally Posted by Whack-a-Mole View Post
Extend this notion then.

Can a pharmacist refuse to dispense birth control as long as he/she refuses to do it equally?

What about a police officer who refuses to deal with a domestic dispute involving am interracial couple? Or same sex couple? (Remember the police do not have a constitutional duty to protect you from harm.)

Where do you draw the line?
Well, government employees are subject to the 14th amendment, so that line is easy to draw. For instance, a state could decide not to operate any public schools at all, but if does operate them, it can't segregate them.

Last edited by John Mace; 12-05-2017 at 02:35 PM.
  #504  
Old 12-05-2017, 05:29 PM
Iggy Iggy is offline
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And not surprisingly the Washington Post reports that the justices seemed split and that it may all come down to how Kennedy votes. Kennedy apparently asked sharply worded questions of lawyers on both sides giving rise to some WaPo speculation that SCOTUS may remand this back to a lower court for further consideration given whatever guidance the high court might chose to impart.

This whole think may not be over yet.

Transcript here (pdf link)
  #505  
Old 12-05-2017, 05:43 PM
John Mace John Mace is online now
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Originally Posted by Iggy View Post
And not surprisingly the Washington Post reports that the justices seemed split and that it may all come down to how Kennedy votes. Kennedy apparently asked sharply worded questions of lawyers on both sides giving rise to some WaPo speculation that SCOTUS may remand this back to a lower court for further consideration given whatever guidance the high court might chose to impart.
So, maybe they don't think that they can bake it, huh?
  #506  
Old 12-05-2017, 08:37 PM
Trinopus Trinopus is offline
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Originally Posted by Trinopus View Post
It's a violation of business license rules, and can easily result in a judge taking away that license.
Okay, I may be wrong... I had thought business licenses came with a minimum set of professional standards, and can be taken away for abuses of those standards.

I know (I actually talked to a judge) that professional licenses can be taken away if there are enough complaints filed against the licence-holder. Beauticians, care repair techs, doctors, etc. I had thought the same applied to ordinary business licenses.
  #507  
Old 12-05-2017, 08:58 PM
Iggy Iggy is offline
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So I read the transcript. My gut reaction was the justices were searching for some sort of line that could be drawn or a means to accommodate both sides.

The lawyers for the respondents (the Colorado Civil Rights Commission and the aggrieved gay couple*) seemed to grant that an a particular line could be drawn that would allow some orders for custom cakes - those with written words on them - to be rejected on the baker's religious beliefs.

If that is the way the Court goes then it would seem to me that they would bounce this back to a lower court for trial. The case has reached the Supreme Court on a series of summary judgement so there has been no fact finding so far. This would be my guess, on a 6-3 vote in favor of Masterpiece Cakeshop.

As always IANAL and perhaps I have misread this all.



* David Cole, the lawyer for the aggrieved couple went way down a hypothetical from the Chief Justice about whether Catholic Legal Services could be compelled to provide pro bono advocacy in conflict with Catholic theology. Cole seemed to agree with the notion that government could compel such advocacy. Frederick Yarger , the lawyer for the Colorado Commission stopped just short of that. Chief Justice Roberts seemed to be pushing them to articulate a reason CLS could refuse such work but Masterpiece Cakeshop could not refuse an order for a same sex wedding cake.
  #508  
Old 12-06-2017, 02:49 AM
tim314 tim314 is offline
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I absolutely believe that baking a cake can, in certain circumstances, be a form of expression. And a baker could absolutely bake a cake that, even though it bore no writing or obvious imagery, was in his view an expression of his approval of one type of marriage or another. But what this baker seems to be saying is that it's not possible for him to bake a cake for this couple without expressing approval for their marriage. That it's somehow impossible for him to make a cake for a wedding-reception which expresses simply "I was legally obligated to make you a cake, and here it is", or which expresses "here's what I would want your wedding cake to look like if you were marrying someone of the opposite sex", or which simply expresses nothing in particular.

The act of baking a cake can be expressive, but it isn't inherently expressive, and a law that mandates the baker bake a cake, without mandating that he do so in an expressive way, ought to be Constitutional. If we start saying "compelling you to do something, even if that thing can be done in non-expressive ways, is automatically compelled speech" then there's really no reason to single out cakes.

Before sending my check to the IRS, I could write "taxes suck" as a form of protest. Or I could write "taxes are awesome". (And a law that prohibits me from doing the former or forces my to do the latter would, I believe, be an unconstitutional restriction on my right to free speech.) So clearly, paying my taxes can also be an expressive act -- but it doesn't have to be. Simply paying my taxes without comment isn't an expressive act, and if I were to refuse to follow a law mandating that I pay my taxes, on the grounds that its forcing me to express approval of the act of taxation, this would clearly be bullshit.
  #509  
Old 12-06-2017, 03:32 AM
tim314 tim314 is offline
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Originally Posted by Damuri Ajashi View Post
ISTM there is a federal constitutional right to free speech/religion and no state legislative declaration making homosexuals a suspect class can overcome that right.
I don't think that's really the relevant question here. There is precedent that you still have to follow a state law even if it conflicts with your religion, if the law itself doesn't specifically target your religion. (See Employment_Division_v._Smith, a case involving an Oregon state prohibition against using peyote.)

IANAL, but I think the relevant legal question here isn't, "Which counts more, state anti-discrimination law or the 1st Amendment?" It's "How far can you stretch the definition of freedom of speech or religious freedom to get out of following laws you don't like?" I'm not sure the legal analysis ought to change that much if this particular law were about something else instead of discrimination (like my taxation example in the previous post) -- although in practice I suspect the justices will be strongly influenced by their feelings about same-sex marriage.
  #510  
Old 12-06-2017, 09:19 AM
CurtC CurtC is offline
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Originally Posted by John Mace View Post
So, maybe they don't think that they can bake it, huh?
And they'll never have that recipe again.
  #511  
Old 12-06-2017, 09:23 AM
John Mace John Mace is online now
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Originally Posted by Iggy View Post
So I read the transcript. My gut reaction was the justices were searching for some sort of line that could be drawn or a means to accommodate both sides.

The lawyers for the respondents (the Colorado Civil Rights Commission and the aggrieved gay couple*) seemed to grant that an a particular line could be drawn that would allow some orders for custom cakes - those with written words on them - to be rejected on the baker's religious beliefs.

If that is the way the Court goes then it would seem to me that they would bounce this back to a lower court for trial. The case has reached the Supreme Court on a series of summary judgement so there has been no fact finding so far. This would be my guess, on a 6-3 vote in favor of Masterpiece Cakeshop.
But surely images are as much "speech" as words are. Flag burning, for instance. And what if the couple says "no words needed, but we want you to draw two men on the cake kissing each other"? How is that substantively different from "May you have a happy life together, Adam and Steve".

Last edited by John Mace; 12-06-2017 at 09:24 AM.
  #512  
Old 12-06-2017, 09:47 AM
RitterSport RitterSport is offline
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Originally Posted by John Mace View Post
But surely images are as much "speech" as words are. Flag burning, for instance. And what if the couple says "no words needed, but we want you to draw two men on the cake kissing each other"? How is that substantively different from "May you have a happy life together, Adam and Steve".
The baker can definitely decline to do certain designs that offend him, and refuse to sell them to anyone. The couple in question was not asking for an offensive design. The baker claims that he can't make any specialty cake that would be used in a same-sex wedding. They hadn't even discussed the design yet.

So your hypothetical doesn't seem apt to this particular case.
  #513  
Old 12-06-2017, 09:50 AM
John Mace John Mace is online now
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Originally Posted by RitterSport View Post
The baker can definitely decline to do certain designs that offend him, and refuse to sell them to anyone. The couple in question was not asking for an offensive design. The baker claims that he can't make any specialty cake that would be used in a same-sex wedding. They hadn't even discussed the design yet.

So your hypothetical doesn't seem apt to this particular case.
My hypothetical was specifically in response to the poster I was quoting. Perhaps your issue is with him.
  #514  
Old 12-06-2017, 10:36 AM
Damuri Ajashi Damuri Ajashi is offline
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Originally Posted by tim314 View Post
I don't think that's really the relevant question here. There is precedent that you still have to follow a state law even if it conflicts with your religion, if the law itself doesn't specifically target your religion. (See Employment_Division_v._Smith, a case involving an Oregon state prohibition against using peyote.)
doped. Thanks

I actually knew about this case but hadn't thought hard enough.

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IANAL, but I think the relevant legal question here isn't, "Which counts more, state anti-discrimination law or the 1st Amendment?" It's "How far can you stretch the definition of freedom of speech or religious freedom to get out of following laws you don't like?" I'm not sure the legal analysis ought to change that much if this particular law were about something else instead of discrimination (like my taxation example in the previous post) -- although in practice I suspect the justices will be strongly influenced by their feelings about same-sex marriage.
Kennedy seemed to be pretty sympathetic to the baker and he was the deciding vote in the gay marriage case.
  #515  
Old 12-06-2017, 10:49 AM
ElvisL1ves ElvisL1ves is offline
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It's not that easy to read that into Kennedy's questions.
Quote:
He scrutinized both sides of Masterpiece Cakeshop v. Colorado Civil Rights Commission, making comments that appeared contradictory at times. "Tolerance is most meaningful when it's mutual," he said. "It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs." (Kennedy referred to a disparaging remark regarding religion by one of the commissioners in Phillips' case.)
Yet Kennedy's longstanding concern about animus toward gay people emerged throughout the session. Picking up on his earlier question to US Solicitor General Noel Francisco, Kennedy asked whether, if the Trump administration prevailed in its support for Phillips, a message then would then go out to "bakers all over the country ... 'Please do not bake cakes for gay weddings.'"
...

Yet Kennedy wondered whether Phillips was refusing to serve the two men not because of their gay identity but rather their marriage, which is contrary to Phillips' religious beliefs.
That distinction could help Kennedy decide the case, as could his acknowledgement that myriad services -- arguably expressive services -- surround contemporary wedding planning. Exempt all of those, he suggested at one point, and, "It means that there's basically an ability to boycott gay marriages."
  #516  
Old 12-06-2017, 01:34 PM
puzzlegal puzzlegal is online now
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Originally Posted by Paranoid Randroid View Post
Okay, sorry, hijack, what was that about? Was it like in Seinfeld where the mechanic steals his car for not treating it properly?
They had quoted me the wrong price. When I dropped it off, I said, "this is a comforter", but they quoted me the price for laundry. When I returned to pick it up, they said, basically, "you lied, this isn't laundry, this is a quilt. You owe us four times the price on that written receipt." I said I had told them what our was, and that didn't seem fair of them, and the proprietor started cursing me out in Korean. She never suggested they may have shared any blame for the misquote, or suggested a compromise price. She just cursed me and refused to return my quilt. It was pretty ugly.
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Originally Posted by John Mace View Post
But surely images are as much "speech" as words are. Flag burning, for instance. And what if the couple says "no words needed, but we want you to draw two men on the cake kissing each other"? How is that substantively different from "May you have a happy life together, Adam and Steve".
I assume a baker could not be compelled to draw two men kissing. The questing is whether he can be compelled to bake a plain wedding cake that would be suitable for a heterosexual wedding if it is to be used for a same sex wedding.
  #517  
Old 12-06-2017, 01:45 PM
adaher adaher is offline
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Something that was mentioned in a Vox article today was that "generally applicable" laws that have secular exceptions must accomodate religious exceptions as well. So unless it is illegal to discriminate against gay couples in all circumstances as part of a business, then someone doing it for religious reasons must also receive an exception. And the argument that the cake shop's lawyers are using is that cake shops were allowed to discriminate against Christians who wanted a Bible verse on their cake.

It seems to me that it's pretty easy to decide this case. The reason we have anti-discrimination laws isn't so we can protect people from getting their feelings hurt. It's to create equality in the marketplace. As that pertains to buying cakes, it means that everyone should be able to buy a cake for their wedding. Having a religious exemption would not prevent any gay couple from getting a cake and it did not prevent this couple from getting a cake. So the religious exemption should be permitted.
  #518  
Old 12-06-2017, 01:52 PM
k9bfriender k9bfriender is offline
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Originally Posted by adaher View Post
Something that was mentioned in a Vox article today was that "generally applicable" laws that have secular exceptions must accomodate religious exceptions as well. So unless it is illegal to discriminate against gay couples in all circumstances as part of a business, then someone doing it for religious reasons must also receive an exception. And the argument that the cake shop's lawyers are using is that cake shops were allowed to discriminate against Christians who wanted a Bible verse on their cake.

It seems to me that it's pretty easy to decide this case. The reason we have anti-discrimination laws isn't so we can protect people from getting their feelings hurt. It's to create equality in the marketplace. As that pertains to buying cakes, it means that everyone should be able to buy a cake for their wedding. Having a religious exemption would not prevent any gay couple from getting a cake and it did not prevent this couple from getting a cake. So the religious exemption should be permitted.
Jim crow laws didn't mean that blacks couldn't use the bathroom, go to school, nor even sit at lunch counters. Segregation did not prevent them from doing any of those things.
  #519  
Old 12-06-2017, 01:57 PM
adaher adaher is offline
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Actually, it did mean they often had no access or poor access, which was the whole problem. And I'm sure you recognize that ending segregation had nothing to do with mere hurt feelings.
  #520  
Old 12-06-2017, 02:11 PM
ElvisL1ves ElvisL1ves is offline
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I'm sure you recognize the parallels to this case.
  #521  
Old 12-06-2017, 02:23 PM
k9bfriender k9bfriender is offline
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Originally Posted by adaher View Post
Actually, it did mean they often had no access or poor access, which was the whole problem. And I'm sure you recognize that ending segregation had nothing to do with mere hurt feelings.
So, just as long as it's just this one baker in town that won't serve a gay couple, that's fine, there are others to go to, right?

Even if there are half the bakers that refuse, there's still the other half, right?

I mean, really, what are they complaining about, as long as there is one baker within a 200 mile radius of them that will take their business, they aren't really being denied access, right?

We decided that we didn't want to paint these lines, of how much public accommodation is enough to serve a discriminated against group, and simply said, all of it.

You have a choice as a baker, you can choose as to whether or not you want to serve the public. If you want to serve the public, you serve all of it, no picking and choosing. You are free to not serve the public, in which case, you do not have to make a cake for a gay wedding.

And segregation, while it did some other things, did also hurt some feelings.
  #522  
Old 12-06-2017, 02:23 PM
adaher adaher is offline
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Not really, since I don't recall religious exemptions being requested in Civil Rights Act jurisprudence.
  #523  
Old 12-06-2017, 02:27 PM
ElvisL1ves ElvisL1ves is offline
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There were all kinds of excuses for bigotry offered then. That's nothing new. Humans are very good at thinking them up when it's convenient.

Yes, religion was one such cover story then, and it is one now.
  #524  
Old 12-06-2017, 02:30 PM
adaher adaher is offline
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Originally Posted by k9bfriender View Post
So, just as long as it's just this one baker in town that won't serve a gay couple, that's fine, there are others to go to, right?

Even if there are half the bakers that refuse, there's still the other half, right?
Whether or not discrimination is likely to be widespread is I'm sure something the justices are considering. Then it wouldn't be a religious exemption, which by definition is something meant to protect minority religious viewpoints.

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I mean, really, what are they complaining about, as long as there is one baker within a 200 mile radius of them that will take their business, they aren't really being denied access, right?
The reason for the Civil Rights Act was because there were substantial burdens on African-Americans trying to get jobs, medical care, and access to public accomodations. If it had just been a matter of one business owner in ten denying African-Americans equal access there probably would never have been a Civil Rights Act. The attitude would have been, "Screw it, those 10% of business owners who don't like money will just make less money."

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We decided that we didn't want to paint these lines, of how much public accommodation is enough to serve a discriminated against group, and simply said, all of it.
This is true. But the Civil Rights Act is not Supreme Law like the Constitution, it's a simple statute. Even the Civil Rights Act cannot require violations of basic constitutional rights. State laws especially cannot do that.

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You have a choice as a baker, you can choose as to whether or not you want to serve the public. If you want to serve the public, you serve all of it, no picking and choosing. You are free to not serve the public, in which case, you do not have to make a cake for a gay wedding.
That could very well be the thinking of the court in the end. And if so, the baker who discriminated against Christians will also have to serve all customers. I think Kennedy was rather peeved that Colorado was actively hostile to religious practice but was totally cool with secular discrimination.

Last edited by adaher; 12-06-2017 at 02:30 PM.
  #525  
Old 12-06-2017, 02:32 PM
adaher adaher is offline
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Originally Posted by ElvisL1ves View Post
There were all kinds of excuses for bigotry offered then. That's nothing new. Humans are very good at thinking them up when it's convenient.

Yes, religion was one such cover story then, and it is one now.
Religion was sometimes used to justify discrimination but I have never heard of a court case surrounding anyone asking for a religious exemption that would allow race discrimination.

The quite recent Obergefell decision foresaw that such conflicts would arise and the majority opinion did not call for forcing everyone to accept gay marriage. The court sounds like it really wants to balance these competing claims and probably will.
  #526  
Old 12-06-2017, 02:46 PM
Buck Godot Buck Godot is offline
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Not really, since I don't recall religious exemptions being requested in Civil Rights Act jurisprudence.
And if there were? Lets say, a Nation of Islam follower refuses to serve whites on the basis of religious belief, that would be OK?
  #527  
Old 12-06-2017, 02:49 PM
k9bfriender k9bfriender is offline
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Whether or not discrimination is likely to be widespread is I'm sure something the justices are considering. Then it wouldn't be a religious exemption, which by definition is something meant to protect minority religious viewpoints.
I think any reasoning fails if it starts with the idea that christianity is a minority religion.
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The reason for the Civil Rights Act was because there were substantial burdens on African-Americans trying to get jobs, medical care, and access to public accomodations. If it had just been a matter of one business owner in ten denying African-Americans equal access there probably would never have been a Civil Rights Act. The attitude would have been, "Screw it, those 10% of business owners who don't like money will just make less money."
Yes, the civil rights act was forced into being because the problems with discrimination were so bad that it caused congress to actually do something about them. That doesn't mean that that was the reason for it. The reason for it was because civil rights were not being protected.
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This is true. But the Civil Rights Act is not Supreme Law like the Constitution, it's a simple statute. Even the Civil Rights Act cannot require violations of basic constitutional rights. State laws especially cannot do that.
And what is the constitutional right that is being violated? Keep in mind, the religious freedom act is a law, not a part of the constitution.
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That could very well be the thinking of the court in the end. And if so, the baker who discriminated against Christians will also have to serve all customers. I think Kennedy was rather peeved that Colorado was actively hostile to religious practice but was totally cool with secular discrimination.
What baker that discriminated against Christians?
  #528  
Old 12-06-2017, 03:49 PM
D'Anconia D'Anconia is offline
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Originally Posted by k9bfriender View Post
What baker that discriminated against Christians?
AIUI, there was a person described has having Judeo Christian beliefs who wanted cakes made stating his opposition to same sex marriage, and the baker(s) refused to make the cakes. Three complaints were made to the Colorado Civil Rights Commission, who said it was okay for the bakers to refuse.

Sounds like unequal treatment.

It's in the argument transcript on pages 58-59.
  #529  
Old 12-06-2017, 04:02 PM
RitterSport RitterSport is offline
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Originally Posted by D'Anconia View Post
AIUI, there was a person described has having Judeo Christian beliefs who wanted cakes made stating his opposition to same sex marriage, and the baker(s) refused to make the cakes. Three complaints were made to the Colorado Civil Rights Commission, who said it was okay for the bakers to refuse.

Sounds like unequal treatment.

It's in the argument transcript on pages 58-59.
In the article I mentioned above, the difference seems to be that an service provider can refuse a certain design ("I won't make cakes with messages that disparage X for anyone"), but not a certain type of customer. In the lawsuit at hand, the baker refused even before discussing any designs. The baker claims that providing any custom cake to a gay wedding is forcing him to express himself in a manner that offensive to his religious beliefs.

So, design-based refusals seem to be OK in Colorado, but customer-based refusals are not.

It seems like this distinction comes up every 20 or 30 posts or so in this thread. It doesn't seem like a very subtle distinction to me, but there you go.
  #530  
Old 12-06-2017, 04:07 PM
ElvisL1ves ElvisL1ves is offline
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Sounds more like a stunt.

How about that, it was!
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The Court of Appeals distinguished its decision in Craig from another case in which three bakeries refused to create a cake with the message "Homosexuality is a detestable sin. Leviticus 18:2", because in the latter, the bakeries had made other cakes for Christian customers and declined that order based on the offensive message rather than the customers' creed, whereas Masterpiece Cakeshop's refusal to provide Craig & Mullins with a wedding cake "was because of its opposition to same sex marriage which...is tantamount to discrimination on the basis of sexual orientation."
  #531  
Old 12-06-2017, 04:18 PM
k9bfriender k9bfriender is offline
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Originally Posted by D'Anconia View Post
AIUI, there was a person described has having Judeo Christian beliefs who wanted cakes made stating his opposition to same sex marriage, and the baker(s) refused to make the cakes. Three complaints were made to the Colorado Civil Rights Commission, who said it was okay for the bakers to refuse.

Sounds like unequal treatment.

It's in the argument transcript on pages 58-59.
No, I asked about a baker that discriminated against christians. That's a different case.

Last edited by k9bfriender; 12-06-2017 at 04:19 PM.
  #532  
Old 12-06-2017, 04:25 PM
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That one argument by Kennedy is unpersuasive to me. The only difference between a straight marriage and a gay marriage is the sexuality of the people involved. Gay marriage is a right specifically because all people have a right to get married, including gay people. The whole concept is that it is the same thing as straight marriage. So refusing to make a wedding cake for a gay couple but being okay with it for a straight couple is discrimination because the potential customers' sexuality.

I'd also argue that any potential bias in the language used by the state should be irrelevant: what is under question is the legal analysis. Is the analysis flawed? If it is, it doesn't matter if bias caused it or not. If it's not, it doesn't matter whether they were also biased.

I really hope Kennedy is just feeling out different ideas to make sure he weighs all sides. I've seen cases before where people tried to determine what Kennedy thought from his questions and were ultimately wrong.
  #533  
Old 12-06-2017, 04:26 PM
D'Anconia D'Anconia is offline
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So, design-based refusals seem to be OK in Colorado, but customer-based refusals are not.
Right, but the Supreme Court might decide that Colorado's position is unconstitutional in some fashion.
  #534  
Old 12-06-2017, 04:29 PM
RitterSport RitterSport is offline
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Right, but the Supreme Court might decide that Colorado's position is unconstitutional in some fashion.
Definitely true, and they may even conflate the two types of refusals. I think they are different situations, but I was passed over for a SCOTUS nomination, so my opinion means nothing.
  #535  
Old 12-06-2017, 04:43 PM
CurtC CurtC is offline
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Originally Posted by k9bfriender View Post
You have a choice as a baker, you can choose as to whether or not you want to serve the public. If you want to serve the public, you serve all of it, no picking and choosing.
Sort of - you can pick and choose for many reasons, just not race, national origin, religion, and in some places, sexual orientation. It's perfectly legal for any business to refuse to serve skateboarders or people who drive Chevys.


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Originally Posted by adaher View Post
Religion was sometimes used to justify discrimination but I have never heard of a court case surrounding anyone asking for a religious exemption that would allow race discrimination.
I have some hope that this was said in jest, but in case you're too young to remember, When ‘Religious Liberty’ Was Used To Justify Racism Instead Of Homophobia.
  #536  
Old 12-06-2017, 05:09 PM
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The fact that this involves a baker muddies a couple of the issues, IMO. If instead it were a lobbyist firm the issues would be more clear. In that example, should they be compelled to lobby for something they oppose? If the alt-right wants to hire someone to push their agenda in Congress, can they be refused? Sure it's not marriage but it's political speech.

What if the pro prop 8 folks (anti SSM) wanted to hire the lobbyist, can they be refused based on the positions they espouse?

And that to me is why I think the first hurdle the court will need to address is whether cake making in this example constitutes speech first, and even if it does, does commercial speech accrue a level of protection to overcome the interests of the aggrieved party.
  #537  
Old 12-06-2017, 06:27 PM
ElvisL1ves ElvisL1ves is offline
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A lobbying firm is not a public-accommodation business. A bakery is.

The "cake baking is actually art" stuff was invented for the purpose of creating this suit.
  #538  
Old 12-06-2017, 06:39 PM
Velocity Velocity is online now
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Kennedy must love this. Being the linchpin, the swing vote. The other 8 justices added up don't matter as much as Kennedy the lone man. Who would ever retire with that much attention lavished on him?
  #539  
Old 12-06-2017, 10:43 PM
Damuri Ajashi Damuri Ajashi is offline
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Quote:
Originally Posted by ElvisL1ves View Post
A lobbying firm is not a public-accommodation business. A bakery is.

The "cake baking is actually art" stuff was invented for the purpose of creating this suit.
I'm pretty sure its not the bakery bringing the suit.
  #540  
Old 12-06-2017, 11:31 PM
OldGuy OldGuy is offline
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Originally Posted by Damuri Ajashi View Post
I'm pretty sure its not the bakery bringing the suit.
In the sense that a Colorado judge ordered the baker to comply and the baker is "appealing" upwards, then yes it is the baker who is bringing suit. The baker could have just complied and it would have been over.
  #541  
Old 12-07-2017, 12:36 AM
Ibn Warraq Ibn Warraq is offline
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Originally Posted by ElvisL1ves View Post
A lobbying firm is not a public-accommodation business. A bakery is.

The "cake baking is actually art" stuff was invented for the purpose of creating this suit.
Even if it is deemed art, a position I'm sympathetic to, I'm not sure it helps them.

Tattoo artists and hair stylists can't refuse to service gay people after all.
  #542  
Old 12-07-2017, 01:06 AM
John Mace John Mace is online now
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Originally Posted by Ibn Warraq View Post
Even if it is deemed art, a position I'm sympathetic to, I'm not sure it helps them.

Tattoo artists and hair stylists can't refuse to service gay people after all.
Which federal statute or federal court ruling are you thinking of? Don't you think if your last sentence were true, that the SCOTUS wouldn't need to have taken this case?
  #543  
Old 12-07-2017, 01:16 AM
cmkeller cmkeller is offline
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Ibn Warraq:

Quote:
Tattoo artists and hair stylists can't refuse to service gay people after all.
No, but they can probably refuse to tattoo into skin or shave into hair the words "Hooray for Marriage Equality" or "Congratulations on Adam's and Steve's wedding"
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  #544  
Old 12-07-2017, 01:27 AM
Ibn Warraq Ibn Warraq is offline
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Originally Posted by John Mace View Post
Which federal statute or federal court ruling are you thinking of? Don't you think if your last sentence were true, that the SCOTUS wouldn't need to have taken this case?
Perhaps I’m wrong but I thought hair stylists and tattoo artists were like other self-employed small businessmen bound by anti-discrimination laws.

Am I wrong?
  #545  
Old 12-07-2017, 02:41 AM
adaher adaher is offline
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Originally Posted by Buck Godot View Post
And if there were? Lets say, a Nation of Islam follower refuses to serve whites on the basis of religious belief, that would be OK?
Does the Nation of Islam require its members to not serve whites? If so, the exemption might be justified. Far be it from me to make people take my money. It's only a concern if I can't go to the restaurant across the street.

I'd also note that the Obergefell decision itself, as well as Presidential statements at the time, acknowledged the legitimacy of religious opposition to gay marriage and called for compromise, not submission.
  #546  
Old 12-07-2017, 02:45 AM
adaher adaher is offline
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Originally Posted by RitterSport View Post
In the article I mentioned above, the difference seems to be that an service provider can refuse a certain design ("I won't make cakes with messages that disparage X for anyone"), but not a certain type of customer. In the lawsuit at hand, the baker refused even before discussing any designs. The baker claims that providing any custom cake to a gay wedding is forcing him to express himself in a manner that offensive to his religious beliefs.

So, design-based refusals seem to be OK in Colorado, but customer-based refusals are not.

It seems like this distinction comes up every 20 or 30 posts or so in this thread. It doesn't seem like a very subtle distinction to me, but there you go.
The problem with the discrimination against the Christians is that the Colorado commission stated that if they had to write that on a cake that it could be construed as endorsement of the views in question. Then they tried to say that a baker baking a cake for a gay marriage was not an endorsement of gay marriage.

Also, if you allow customized messages you can't discriminate on content unless you have generally applicable policies against things like obscenity, profanity, hate speech, etc. If this is a company that was willing to put cuss words, boobs, middle fingers and such on cakes it's hard for them to argue that a Bible verse is a problem.
  #547  
Old 12-07-2017, 02:50 AM
adaher adaher is offline
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Originally Posted by Velocity View Post
Kennedy must love this. Being the linchpin, the swing vote. The other 8 justices added up don't matter as much as Kennedy the lone man. Who would ever retire with that much attention lavished on him?
It's not Kennedy's fault he's the only guy who goes into cases actually unbiased. The other justices would matter if they approached cases in similar fashion.
  #548  
Old 12-07-2017, 06:00 AM
crowmanyclouds crowmanyclouds is offline
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Quote:
Originally Posted by adaher View Post
The problem with the discrimination against the Christians is that the Colorado commission stated that if they had to write that on a cake {...}
I'm sure that you have a cite for that, right?

It's my understanding that there was no request for "writing" or a "gay" cake topper. A typical, custom, wedding cake was requested and service was refused purely on the grounds that the wedding being celebrated was a same-sex one. I'd have hoped that by this point what was requested, and what and why it was refused, would be absolutely clear . . . I should have had no hope.

CMC fnord!
  #549  
Old 12-07-2017, 07:57 AM
adaher adaher is offline
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The Colorado commission ruled in the secular cake maker's favor that if they had to write a Bible verse on a cake that it was an endorsement of the view expressed. That is also the argument the Christian cake maker is making. That one of his cakes at a gay wedding would imply an endorsement of gay marriage.

That seems to be Kennedy's issue. Kennedy HATES differential treatment of different kinds of speech by the government. That's the whole reason he ruled as he did in Citizens United. If governments would just not engage in viewpoint discrimination the government might win his vote more often.

If a government entity rules that cakes are expression and that they can refuse service on the ground of "compelled speech" then that applies to ALL cakes.

Last edited by adaher; 12-07-2017 at 07:59 AM.
  #550  
Old 12-07-2017, 08:04 AM
adaher adaher is offline
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Also, in regards to the writing on the cake issue, was there anything about the cake that denoted that it was for a gay marriage, such as a cake topper with two men, or writing on it like, "Doug and Greg", or something like that?
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