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  #101  
Old 06-08-2018, 08:23 AM
SlackerInc SlackerInc is offline
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That strikes me as backward. This ruling, it seems to me, is saying you don’t have to promote ideologies you don’t agree with. If someone wants a communist cake and you’re anti-communist, you tell them to go find a baker who either likes communism or at least doesn’t feel so strongly about it as you do. If someone wants a cake that celebrates the Bible verses that denounce homosexuality, and you’ve got a rainbow pride sticker on your window, you can tell them to go hang. And if you believe homosexuality is morally wrong (or just that gay marriage is), you can tell a gay couple you’ll sell them any generic product they like, but not a specially commissioned one whose sole function is to celebrate the thing you consider a moral “abomination”.

If I were the baker, I’d not want to create a cake celebrating the child marriages I described upthread, or a genital mutilation (including routine circumcision of a baby boy, as at a bris), or one of those “promise ring” ceremonies evangelical Christian fathers do with their daughters. Those are just off the top of my head; I’m sure I could think of more over time. If the Court is going to rule that bakers do have to create custom works of art celebrating some of these things, they need to require they celebrate all of them, as long as they are legal. And that strikes me as a tougher pill for people to swallow, in the end, than just letting them refuse as the case may be.

The only other avenue I can imagine is for the courts (meaning the state in the sense of the government) deciding that among those ideologies and practices that are legal, some are good and some are only tolerated—and that bakers can be forced to create cakes to celebrate the good ones but not the only tolerated ones. That strikes me as deeply antithetical to the First Amendment, and to the kind of notions of free speech similarly advanced by great thinkers such as John Stuart Mill. And there is specific Supreme Court precedent on this point, probably from many decisions but certainly very eloquently from Justice Robert Jackson’s majority opinion in W. Virginia v. Barnette (1943):

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”
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  #102  
Old 06-08-2018, 08:24 AM
Annie-Xmas Annie-Xmas is offline
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As I posted above, I'm a store cashier and we always have to keep a man about who can work the register to accommodate the Jewish, Muslim and Christian men who ask for a male cashier. Apparently it's legal, but once again, I don't have to like it.
  #103  
Old 06-08-2018, 08:39 AM
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That strikes me as backward. This ruling, it seems to me, is saying you don’t have to promote ideologies you don’t agree with.
No, the ruling was excruciatingly narrow. It just said that the Commission, in making its decision, was open hostile towards religion. Kennedy explicitly said that had that not been the case, he might have ruled differently. The baker won this case, but not because the legislation was deemed bad. Only the way the Commission implemented it.
  #104  
Old 06-08-2018, 09:25 AM
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As I posted above, I'm a store cashier and we always have to keep a man about who can work the register to accommodate the Jewish, Muslim and Christian men who ask for a male cashier. Apparently it's legal, but once again, I don't have to like it.
I would certainly guess it's legal for your employer to make this accommodation, but the question in my mind is whether the store is required to make this accommodation for people. I would expect the answer to be no. I wouldn't think a business owner would have to have a male cashier available at all times just to serve a specific segment of the market who desire it. The fact that you owner/manager makes the effort seems to be a business and profit decision.

And the fact that you italicized Christian leads me to believe that you might think certain Jews and Muslims have a valid reason to request a male cashier but certain Christians do not. That doesn't make much sense to me, either.

As a non-religious person who finds all sorts of religious restrictions (dietary restrictions, prayer practices, clothing oddities) nonsensical (bordering on absurd), I struggle to understand how any of this is any different than plain old bigotry or personal preferences. Regarding a cake baker, for example, I think it's his right as a business owner to grant or refuse service to anyone, regardless of reason, and the issue shouldn't be tied up in terms of religious freedom or discrimination to protected classes. I realize this stance doesn't sit well with either side who wants to get worked up, but I tend to go with the live-and-let-live outlook.
  #105  
Old 06-08-2018, 09:26 AM
SlackerInc SlackerInc is offline
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No, the ruling was excruciatingly narrow. It just said that the Commission, in making its decision, was open hostile towards religion. Kennedy explicitly said that had that not been the case, he might have ruled differently. The baker won this case, but not because the legislation was deemed bad. Only the way the Commission implemented it.
It was a 7-2 ruling. I’m pretty sure not all the concurrences were so narrow.

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I would certainly guess it's legal for your employer to make this accommodation, but the question in my mind is whether the store is required to make this accommodation for people. I would expect the answer to be no. I wouldn't think a business owner would have to have a male cashier available at all times just to serve a specific segment of the market who desire it. The fact that you owner/manager makes the effort seems to be a business and profit decision.
I agree, and furthermore a store policy like this is radically different from the issues involved in this case in multiple ways.
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Last edited by SlackerInc; 06-08-2018 at 09:30 AM.
  #106  
Old 06-08-2018, 09:30 AM
Annie-Xmas Annie-Xmas is offline
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And the fact that you italicized Christian leads me to believe that you might think certain Jews and Muslims have a valid reason to request a male cashier but certain Christians do not. That doesn't make much sense to me, either.
I italicized Christian because I was responding to md2000, whose post only mention Jewish & Muslim men. Believe it or not, some Christian men have the same belief about not interacting with women.
  #107  
Old 06-08-2018, 10:01 AM
md2000 md2000 is offline
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I italicized Christian because I was responding to md2000, whose post only mention Jewish & Muslim men. Believe it or not, some Christian men have the same belief about not interacting with women.
I had not actually heard of a Christian case or sect. (Except maybe the vice-president) Some treat women as not equal, but I hadn't heard they refuse to be served by a woman. I'm not in a hurry to meet any...

A private business may make whatever accommodations it might feel it wants to keep fussy customers. They should keep in mind, for example - that if a female clerk feels that they were not promoted to manager because those customers also interact with the manager from time to time - she may have a discrimination case. It's a tricky line to walk.

One key item here is the actions of "serve" vs. "create". The Supremes managed to bypass coming to a judgement on this issue. You cannot refuse to serve based on "protected class" - restaurant, hotel, store, taxi, bake shop, etc. The question is whether an artist can be compelled to create... and of course at which point it morphs from "serve" to "create". The clarify too for SlackerInc, I guess the other issue is to what extent the refusal of service is for specifically blanket refusal to accommodate a specific protected class (race or religion or preference, say) vs. refusal to celebrate an aspect of that situation that they find offensive.
  #108  
Old 06-08-2018, 12:50 PM
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It was a 7-2 ruling. I’m pretty sure not all the concurrences were so narrow.
It would only take only 2 other justices to agree with Kennedy to flip the decision, not all 6. So it doesn't matter that not all were so narrow.

Last edited by John Mace; 06-08-2018 at 12:50 PM.
  #109  
Old 06-08-2018, 08:56 PM
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Are you saying there’s majority support for protecting bakers who refuse to make a “Leviticus” cake (as long as it was worded more carefully), but not protecting those who don’t want to make one celebrating a gay marriage? That would seem to very clearly violate the “fixed star in our constitutional constellation” I cited above. Which is their right; but it would surprise (and yes, disturb) me very much.
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  #110  
Old 06-08-2018, 09:53 PM
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Are you saying there’s majority support for protecting bakers who refuse to make a “Leviticus” cake (as long as it was worded more carefully), but not protecting those who don’t want to make one celebrating a gay marriage? That would seem to very clearly violate the “fixed star in our constitutional constellation” I cited above. Which is their right; but it would surprise (and yes, disturb) me very much.
There is still a big difference between making a cake with a message plainly visible that you disagree with, and refusing to make anything you normally make, due to someone being in a protected class you disagree with.
  #111  
Old 06-08-2018, 11:54 PM
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There is still a big difference between making a cake with a message plainly visible that you disagree with, and refusing to make anything you normally make, due to someone being in a protected class you disagree with.
Sure, but this baker said he would gladly sell them any of his other items. He wasn’t saying “I don’t like gay people, so I refuse to sell them brownies” but rather “I think gay marriage is wrong, so I refuse to make a custom cake designed specifically to celebrate a gay marriage.”

If they showed him a picture of a cake they liked, and asked him to replicate it without anything “gay” (two men’s names, or a male-male topper) on it, I think they would be on much surer footing to report him for a civil rights violation if he refused solely because he knew who was buying it.
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  #112  
Old 06-09-2018, 07:41 AM
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Sure, but this baker said he would gladly sell them any of his other items. He wasn’t saying “I don’t like gay people, so I refuse to sell them brownies” but rather “I think gay marriage is wrong, so I refuse to make a custom cake designed specifically to celebrate a gay marriage.”

If they showed him a picture of a cake they liked, and asked him to replicate it without anything “gay” (two men’s names, or a male-male topper) on it, I think they would be on much surer footing to report him for a civil rights violation if he refused solely because he knew who was buying it.
As I understood it - they never got to the design phase of the project. When they told him who the cake was for, he said "no", or words to that effect. He would not make any cake design for a gay couple's celebration.

So there was no indication that he was being asked to create something identifiably gay - no rainbow flag, no Adam & Steve cake topper, etc. Just - the cake is for you two? Bugger off!

So the dispute is not about the design or message content, but that the customers were of a particular bent, so to speak. You last paragraph half applies - he refused solely because he knew who was buying it - and also that it was a wedding cake.

What he offered for sale instead was any non-wedding-cake products in his store.

Last edited by md2000; 06-09-2018 at 07:43 AM.
  #113  
Old 06-09-2018, 08:28 AM
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Are you saying there’s majority support for protecting bakers who refuse to make a “Leviticus” cake (as long as it was worded more carefully), but not protecting those who don’t want to make one celebrating a gay marriage? That would seem to very clearly violate the “fixed star in our constitutional constellation” I cited above. Which is their right; but it would surprise (and yes, disturb) me very much.
I'm saying exactly what I said. If conditions changed enough for Kennedy to flip, I think we can assume that the so-called liberal justices who concurred with him would also flip making it 5-4 against some future Colorado baker who received a non-hostile evaluation from the Commission.
  #114  
Old 06-09-2018, 02:40 PM
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So you won’t address my question, which is obviously going to continue to be an issue (people like that Leviticus guy aren’t going to give up).
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  #115  
Old 06-10-2018, 02:23 PM
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Are you saying there’s majority support for protecting bakers who refuse to make a “Leviticus” cake (as long as it was worded more carefully), but not protecting those who don’t want to make one celebrating a gay marriage? That would seem to very clearly violate the “fixed star in our constitutional constellation” I cited above. Which is their right; but it would surprise (and yes, disturb) me very much.
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So you won’t address my question, which is obviously going to continue to be an issue (people like that Leviticus guy aren’t going to give up).
To be perfectly honest, I answered the only part of your post that made any sense to me-- the part I underlined.
  #116  
Old 06-10-2018, 10:02 PM
md2000 md2000 is offline
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Sure, but this baker said he would gladly sell them any of his other items. He wasn’t saying “I don’t like gay people, so I refuse to sell them brownies” but rather “I think gay marriage is wrong, so I refuse to make a custom cake designed specifically to celebrate a gay marriage.”

If they showed him a picture of a cake they liked, and asked him to replicate it without anything “gay” (two men’s names, or a male-male topper) on it, I think they would be on much surer footing to report him for a civil rights violation if he refused solely because he knew who was buying it.
He refused to make a cake regardless of design... based on who was getting married.

As for the Leviticus question - places like Disneyland refuse to embroider names on mouse ears based on perceived offensiveness. If a black person asked for a hat labelled "Niggah!" (Because that's what his black buddies called him) I suspect that Disney would say no. Is that discrimination or simply good taste? How about no confederate flag symbols? Whereas some T-Shirt stores have no problem selling blatantly offensive shirts...

I have trouble imagining a Leviticus quote on topic that would not be somewhat offensive to the point where any business would be justified in refusing to make it... Even if it were simply "I don't want to be drawn into the middle of a religious dispute."
  #117  
Old 06-11-2018, 05:09 PM
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And if the gay couple wants it to say “God bless this union” or the like?

What about a baker who doesn’t want to make any kind of happy cake for a preteen girl marrying an adult man?
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  #118  
Old 06-12-2018, 08:51 AM
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Nm

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  #119  
Old 06-12-2018, 08:54 AM
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And if the gay couple wants it to say “God bless this union” or the like?

What about a baker who doesn’t want to make any kind of happy cake for a preteen girl marrying an adult man?
We don't need to worry about that one until and unless some state passes a law prohibiting discrimination against adults who marry minors. Don't see that happening anytime soon.

It seems that some people have gotten the issue twisted.
  #120  
Old 06-12-2018, 08:58 AM
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And if the gay couple wants it to say “God bless this union” or the like?

What about a baker who doesn’t want to make any kind of happy cake for a preteen girl marrying an adult man?
We don't need to worry about that one until and unless some state passes a law prohibiting discrimination against adults who marry minors. Don't see that happening anytime soon.

It seems that some people have gotten the issue twisted- it's not about whether the baker has to bake cakes he doesn't agree with , or bake them for people he doesn't like. It's about whether he is exempt from generally applicable laws which prohibit discrimination based on certain criteria. So he could refuse to bake a cake for a Republican that he would be willing to bake for a Democrat- unless a particular place prohibits discrimination based on political affiliation ( which few do )
  #121  
Old 06-12-2018, 10:33 AM
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And if the gay couple wants it to say “God bless this union” or the like?

What about a baker who doesn’t want to make any kind of happy cake for a preteen girl marrying an adult man?
Doreen best answered the second question.

For the first one

- should the baker be penalized if he refused to write "Allah bless this marriage!" on a straight couple's cake?

- Should the baker be penalized if he refused to write "God bless this union!" on an interracial marriage cake?

- should the baker be penalized if he refused to talk to any women who walked into his business? Or posted a sign at the door "no women allowed in"?

See the pattern? Protected classes under anti-discrimination law. At what point can a person operate a public business and say "I refuse to cater to XXXX protected class despite discrimination laws because God told me so"?

What if they were off-the-shelf cakes and the only addition was the writing (like from the local grocery store)?

The only allowance I see possible is that the decorator could delegate the job to some other employee (at the employer's discretion) to accommodate as best he can, as long as the end result is the customer gets served.

The Supreme Court pointedly refused to say the cake maker was in the right. they instead picked on the comments of the Colorado rights tribunal and said the religious point of view could not be completely ignored as a factor.
  #122  
Old 06-12-2018, 01:24 PM
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What if they were off-the-shelf cakes and the only addition was the writing (like from the local grocery store)?
But they are not. How about if we go the other way, and he hangs a sign saying “I am an artist who will do commissioned works of art if and only if I and the customer come to a meeting of minds”? But then gay couples find that he may meet with them and discuss designs, but he never ends up taking them as clients. However, there are also a few examples of straight couples he has declined to make cakes for as well. What then?
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  #123  
Old 06-12-2018, 03:12 PM
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But they are not. How about if we go the other way, and he hangs a sign saying “I am an artist who will do commissioned works of art if and only if I and the customer come to a meeting of minds”? But then gay couples find that he may meet with them and discuss designs, but he never ends up taking them as clients. However, there are also a few examples of straight couples he has declined to make cakes for as well. What then?
Which goes back to what I said... "that's why we have judges". In this grey world the black-and-white divide may often be in fuzzy location.

As for you most recent "what if..." it reminds of the cases where many older people who are laid off together say "do I have a case for age discrimination?" Unless HR has been really stupid, they fired a few youngsters along with the high paid older workers just to be sure the case is not obvious. Or when HR hires a few (token) black people to avoid race discrimination charges. But then, this would not be the artists standing on principle, this would be the artist deliberately hiding his principles - implicitly saying "I understand society would consider my actions wrong, therefore I'm going to camouflage them".

Again - the court does not force an artist to create against his wishes and inclination... it just assesses a tidy sum as a fine for being discriminatory. Then the artist must decide whether his principles are thicker than his wallet or a different line of business is called for.
  #124  
Old 06-12-2018, 10:58 PM
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Some of us remember businesses in the South that posted signs reading "We reserve the right to refuse service to anyone."

Didn't exempt them from the Civil Rights Act of 1964.
  #125  
Old 06-13-2018, 09:28 AM
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Some of us remember businesses in the South that posted signs reading "We reserve the right to refuse service to anyone."

Didn't exempt them from the Civil Rights Act of 1964.
I still see those, and not in the South. But I still think there’s a huge difference between refusing to serve someone a burger or beer, vs. refusing to make a custom work of art for them. Another example that comes to mind is a stylist or dressmaker, as shown in the recent PT Anderson movie. There is a push in the fashion world to be less “size-ist”, led by Tim Gunn. But I would be shocked if the state ever forced designers to make red carpet looks for obese women, even if they aren’t coy and simply say “plus sizes are just not my brand”.
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  #126  
Old 06-13-2018, 11:15 AM
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I still see those, and not in the South. But I still think there’s a huge difference between refusing to serve someone a burger or beer, vs. refusing to make a custom work of art for them. ...
And this is where we come back to over and over. At what point does an activity change from being "serving a commodity" to being "creating a work of art"? That's why we have judges. A sculpture is art, hence first amendment protected. A burger, except in extreme circumstance, not. A cake? Ask the judge. This time, the judges dodged the question.

And again, you're missing the point about protected classes. "Fat" so far is not a protected class, but I imagine it will get there shortly as a form of disability. Meanwhile national origin, race, creed, age (over 18 under 65), and sex are generally protected. In some jurisdictions sexual orientation is protected. You cannot discriminate based on protected classes in commerce or government law.
  #127  
Old 06-13-2018, 12:13 PM
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So change my example to a protected class. “I dont make men’s clothes.”
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  #128  
Old 06-13-2018, 12:16 PM
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I still see those, and not in the South. But I still think there’s a huge difference between refusing to serve someone a burger or beer, vs. refusing to make a custom work of art for them. Another example that comes to mind is a stylist or dressmaker, as shown in the recent PT Anderson movie. There is a push in the fashion world to be less “size-ist”, led by Tim Gunn. But I would be shocked if the state ever forced designers to make red carpet looks for obese women, even if they aren’t coy and simply say “plus sizes are just not my brand”.
Here's my solution to the cake baking problem.

If you have a theological issue with the idea of baking a cake for a wedding that you disapprove of, who better to talk it out than with your pastor, minister, priest or other titled spiritual advisor.

Tell him that you have an order for a cake for a same sex wedding, and that you are conflicted on what to do.

The law states that you are supposed to make the cake, so it is either a legal fight or a fine or some sort of secular cost to following with your sincerely held beliefs.

He will probably nod in empathy for your situation, but not in agreement.

Then there is the social cost. People don't like bigots, and not just those effected by the bigots, so getting in the news and social media may cost you business.

He will further stroke his chin and look very serious, but still not agreeing with the solution to your plight.

Then you tell him that you will donate the proceeds of the cake to his church.

He will grant you permission.
  #129  
Old 06-13-2018, 12:17 PM
k9bfriender k9bfriender is offline
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So change my example to a protected class. “I dont make men’s clothes.”
Can I buy your women's clothes? If so, we have no problem here.
  #130  
Old 06-13-2018, 12:22 PM
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Can I buy your women's clothes? If so, we have no problem here.
That's what the baker offered... that the couple could buy cookies or other pre-made or generic baked goods. He just didn't want to create an artistic, custom-made cake for them.

This is a very complex case, and the SC decision is very narrow, and quite nuanced.
  #131  
Old 06-13-2018, 12:27 PM
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So change my example to a protected class. “I dont make men’s clothes.”
You can make what you want. But... you can't refuse to sell the women's clothes to men. You can make for example cosmetics in only one range of colours, but you still cannot refuse to sell them to someone who is off-colour or the wrong gender.

If the cake guy had said (legitimately) "my design of cakes are not appropriate for the celebration you plan" he might have been more in the right - but they didn't even get to cake design, and most wedding cakes are preference-agnostic if you leave off the words or cake toppers (which many do) so doesn't apply.

he refused to bake for them not because his designs would not fit but because he would not serve that product to gays.
  #132  
Old 06-13-2018, 12:32 PM
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So change my example to a protected class. “I dont make men’s clothes.”
Would you make a dress for a man?
  #133  
Old 06-13-2018, 12:44 PM
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Can I buy your women's clothes? If so, we have no problem here.
I’m talking about someone who makes individual (and very expensive) creations one at a time, designed specifically for the individual wearing them.

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Would you make a dress for a man?
I would (if I could make dresses at all, which I can’t even though I’m addicted to the show “Project Runway” and its spinoffs), but my read of the Constitution is that it wouldn’t pass muster to insist that a bespoke designer make a dress (or anything else) for a man if s/he didn’t want to. “I design for a certain silhouette” (or maybe even beyond that, only for beautiful women known for their style and class).
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  #134  
Old 06-13-2018, 01:41 PM
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I’m talking about someone who makes individual (and very expensive) creations one at a time, designed specifically for the individual wearing them.



I would (if I could make dresses at all, which I can’t even though I’m addicted to the show “Project Runway” and its spinoffs), but my read of the Constitution is that it wouldn’t pass muster to insist that a bespoke designer make a dress (or anything else) for a man if s/he didn’t want to. “I design for a certain silhouette” (or maybe even beyond that, only for beautiful women known for their style and class).
So, I have a (no I don't, I'm lying) rather feminine and petite figure. Are you saying that you won't make me a dress, because I'm a man?

That's discrimination.
  #135  
Old 06-13-2018, 02:43 PM
SlackerInc SlackerInc is offline
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So, I have a (no I don't, I'm lying) rather feminine and petite figure. Are you saying that you won't make me a dress, because I'm a man?

That's discrimination.
Definitionally, it’s a kind of discrimination, sure. Legally? I don’t think so.

We’ve been talking about a continuum between supplying commodities and being commissioned to make art. I assume, but will ask to make sure, that no one reading this would argue that it would qualify as legally prohibited discrimination if a modern-day da Vinci were to declare that he was available for hire to paint portraits of women (if they were beautiful enough, with the right pedigree, etc.) but that children, men, and the elderly need not apply? On the other end of the spectrum, I assume no one would deny that it’s illegal discrimination to refuse to allow women to stay in your hotel. As people have been pointing out, then, a lot of the wedding cake issue comes down to where on that spectrum of art vs. public accommodation bespoke cake baking lies. I think it is more on the “art” side, but I acknowledge it’s in a somewhat grey area.

But so to get back to your specific claim here of discrimination as regarding the dressmaker, I think that’s quite clearly further down the spectrum on the “art” side. I’m surprised you’d argue otherwise.
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  #136  
Old 06-13-2018, 05:32 PM
doreen doreen is offline
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I would (if I could make dresses at all, which I can’t even though I’m addicted to the show “Project Runway” and its spinoffs), but my read of the Constitution is that it wouldn’t pass muster to insist that a bespoke designer make a dress (or anything else) for a man if s/he didn’t want to. “I design for a certain silhouette” (or maybe even beyond that, only for beautiful women known for their style and class).
I'm actually kind of happy that you brought up the clothing designers. Because I think that's an almost perfect analogy for the cake bakers.


In clothing, you basically have three choices each of which has an equivalent in the baking world.

1) There's haute couture (women's) and bespoke (men's) clothing , which involve designing/making a pattern from scratch for a particular person. This would be the equivalent of going to the Cake Boss and ordering a one-of-a-kind cake which was not designed until I had a consultation with the baker.

2)There's made-to-measure clothing, which involves adjusting existing patterns to fit the customer. The suit or dress is not made until the customer orders it, and there is some choice of color or fabric involved, but the deign and pattern existed before the customer ever thought of buying suit or dress. This is the equivalent of ordering Wedding Cake #252 and choosing the filling flavor and the color of the flowers. (It's also the most common type of wedding cake.)

3)The last type is ready-to-wear clothing, which is also known as off the rack. This was both designed and produced before the customer ever walked into the store. The customers choices are limited to what has already been made and is already hanging on the rack. This is the equivalent of an off-the-shelf cake, where I can just walk into the bakery and choose from what's in the display case.

I don't think anybody would consider #3 an example of a commission to make art- they're off the shelf/rack and were designed created before there even was a customer/occasion to think of. When the baker makes that strawberry shortcake, s/he has no idea if it will be served at a birthday party, a tiny wedding or just for dessert tonight.

Plenty of people would consider #1 to be a form of commissioned art- even if I bring in a sketch of exactly how I want the cake to look, the baker will have to figure out how to translate that sketch into a cake.

It's #2 that's the problem - which is exacerbated by bakers referring to both #1 and #2 as "custom" or "customized" cakes. #2 is clearly not an off-the shelf cake, but it's also clearly not a design that didn't exist prior to the cake being ordered. It's hard to see how a wedding cake made from a pre-existing design with some customer choices is more artistic than a Baskin-Robbins cake made from a pre-existing design with some customer choices. In addition to bakers using "custom" to refer to #2 and #3, I believe that the parties in both sides in these court cases want to conflate #1 and #2 ( since they never define exactly what is meant by "custom"). Because neither side wants a decision that says the baker is not required to provide a #1 cake, but must provide a #2 cake ( which might well be the final answer after 5 or 10 or 15 years of these cases)
  #137  
Old 06-13-2018, 06:43 PM
md2000 md2000 is offline
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Definitionally, it’s a kind of discrimination, sure. Legally? I don’t think so.

We’ve been talking about a continuum between supplying commodities and being commissioned to make art. I assume, but will ask to make sure, that no one reading this would argue that it would qualify as legally prohibited discrimination if a modern-day da Vinci were to declare that he was available for hire to paint portraits of women (if they were beautiful enough, with the right pedigree, etc.) but that children, men, and the elderly need not apply? On the other end of the spectrum, I assume no one would deny that it’s illegal discrimination to refuse to allow women to stay in your hotel. As people have been pointing out, then, a lot of the wedding cake issue comes down to where on that spectrum of art vs. public accommodation bespoke cake baking lies. I think it is more on the “art” side, but I acknowledge it’s in a somewhat grey area.

But so to get back to your specific claim here of discrimination as regarding the dressmaker, I think that’s quite clearly further down the spectrum on the “art” side. I’m surprised you’d argue otherwise.
Well of course. If you want a portrait as a man, call Michelangelo. (And if you want a portrait of your child, call Donatello).

But I think Doreen has provided the definitive answer. Much as there's a set of guidelines for "fair use" in copyright, how much s too much copying is determined by considering a set of criteria based on SC guidelines in test cases. There will probably be a similar set of criteria, including how much value is placed on the "artist" input vs. materials, time required, artist reputation, number of competing requests, etc. to determine whether the person is truly an "artist" and therefore protected.

Haute couture for example, pick and choose many of their "billboard" customers for red carpets and other galas - a definite example of artist-ness. But someone had to do Ru Paul's dresses...

All this artist discussion ignores the other aspect - religion.

Last edited by md2000; 06-13-2018 at 06:45 PM.
  #138  
Old 06-13-2018, 08:23 PM
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I agree with both of you.
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  #139  
Old 06-13-2018, 08:49 PM
D'Anconia D'Anconia is offline
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The law states that you are supposed to make the cake, so it is either a legal fight or a fine or some sort of secular cost to following with your sincerely held beliefs.
Which federal law requires that a baker must make a cake?
  #140  
Old 06-13-2018, 11:23 PM
md2000 md2000 is offline
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Which federal law requires that a baker must make a cake?
As I said in an earlier post...
Again - the court does not force an artist to create against his wishes and inclination... it just assesses a tidy sum as a fine for being discriminatory. Then the artist must decide whether his principles are thicker than his wallet or a different line of business is called for.

Eventually the "artist" will decide that paying to create instead of earning is probably not his calling.

Last edited by md2000; 06-13-2018 at 11:24 PM.
  #141  
Old 06-14-2018, 07:21 AM
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Which federal law requires that a baker must make a cake?
21 USC §461 & 9 CFR §381.171(d)
  #142  
Old 06-14-2018, 07:27 AM
ElvisL1ves ElvisL1ves is offline
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Which federal law requires that a baker must make a cake?
The If I Knew You Were Coming Act of 1950.
  #143  
Old 06-14-2018, 09:31 AM
k9bfriender k9bfriender is offline
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Which federal law requires that a baker must make a cake?
Please cite where I said anything about a federal law.
  #144  
Old 06-14-2018, 10:09 AM
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21 USC §461 & 9 CFR §381.171(d)
<Slow clap>

Murder of Turkey Ham?
  #145  
Old 06-14-2018, 04:07 PM
jjakucyk jjakucyk is offline
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Here's a way I try to approach situations like this. The easiest first check on morality is to substitute gay people with black people because we have more history in dealing with that sort of discrimination. So "baker won't make wedding cake for gay couple" becomes "baker won't make wedding cake for black couple." Try to say your "deeply held religious belief" that all black people are inferior means you don't have to make them a wedding cake and see how far you get. Protected class or not, that's discrimination and it's morally repugnant. It's also hypocritical to selectively apply such religious beliefs only to gay couples but not divorcees, interracial couples, or any number of other groups that are supposed to be just as bad if not worse according to religious doctrine.

Another way to look at it is to ask if someone is being denied service because of what they "are" or because of what they "do." This is where I think we need to make the distinction between what's ok to refuse and what's not. Saying no erotic cakes, no hate cakes, no violence cakes applies to everyone equally. That's an example of "do" cakes. Even religion is choice, so no religious cakes would be legitimate IMO, because again it applies to everyone and to what they do, not what they are.

For "are" cakes, these are the things that are inherent and unchangeable, and also which have little to no bearing on the cake either. This is "I won't make a cake FOR YOU," regardless of the cake itself. It's no cakes for black people, no cakes for Muslims, no cakes for Nazis. That's discrimination plain and simple. Where I think this case gets into the weeds is perhaps because the baker (and maybe some of the SC justices) think being gay is a choice, and thus a "do" rather than an "are." That makes a gay wedding cake a thing distinct from a straight wedding cake. Of course, to make that argument you'd have to say there's such a thing as gay wedding photographs, gay houses, gay couture, etc.

So anyone should be able to order any of the types of cakes being offered. However "gay wedding cake" isn't a thing any more than "black wedding cake" is a thing.
  #146  
Old 06-14-2018, 04:34 PM
SlackerInc SlackerInc is offline
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Jjacucyk, since it’s apparently going to be the “Arlene’s Flowers” case that really decides this more deeply, and lower courts have ruled that she needs to actually go to the wedding and coordinate things there: do you believe it’s possible to support rights for gays but still feel like “I don’t want to see it”? I would not be surprised if Anthony Kennedy feels that way.
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Last edited by SlackerInc; 06-14-2018 at 04:34 PM.
  #147  
Old 06-14-2018, 04:43 PM
Lance Turbo Lance Turbo is offline
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That's what the baker offered... that the couple could buy cookies or other pre-made or generic baked goods.
No he didn't.
  #148  
Old 06-14-2018, 05:36 PM
Iggy Iggy is offline
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No he didn't.
Jack Phillips has been quoted extensively stating he would agree to sell pre-made goods to Mullins and Craig, the gay couple in this case.
From Denver channel 7 news from June 2017
Quote:
...He [Phillips] says in the particular case that landed him in court, he told the couple he “would gladly sell them birthday cakes, shower cakes, cookies brownies…but I couldn’t design a cake promoting an event in conflict with my beliefs.”
The Chicago Tribune and Vox, and the Huffington Post in December 2017 all report on Phillips' willingness to sell other pre-made goods to the couple.

The decision Justice Kennedy wrote in Masterpiece Cakeshop begins
Quote:
Masterpiece Cakeshop, Ltd., is a Colorado bakery owned and operated by Jack Phillips, an expert baker and devout Christian. In 2012 he told a same-sex couple that he would not create a cake for their wedding celebration because of his religious opposition to same-sex marriages—marriages that Colorado did not then recognize—but that he would sell them other baked goods, e.g., birthday cakes.
It seems, in fact, that Phillips asserted, and the court agreed, that he was willing to sell other pre-made goods to Mullins and Craig but he was not willing to sell a wedding cake for their same sex wedding.
  #149  
Old 06-14-2018, 05:55 PM
Lance Turbo Lance Turbo is offline
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He never offered to sell them pre-made goods. There are no pre-made goods to sell. Mastepiece Cakeshop does NOT have pre-made goods laying around to sell.

Last edited by Lance Turbo; 06-14-2018 at 05:59 PM.
  #150  
Old 06-14-2018, 06:10 PM
Lance Turbo Lance Turbo is offline
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Jack Phillips has been quoted extensively stating he would agree to sell pre-made goods to Mullins and Craig, the gay couple in this case.
From Denver channel 7 news from June 2017

The Chicago Tribune and Vox, and the Huffington Post in December 2017 all report on Phillips' willingness to sell other pre-made goods to the couple.

The decision Justice Kennedy wrote in Masterpiece Cakeshop begins


It seems, in fact, that Phillips asserted, and the court agreed, that he was willing to sell other pre-made goods to Mullins and Craig but he was not willing to sell a wedding cake for their same sex wedding.
Or let me put it this way. The word 'pre-made' appears three times in your post, but not once in the Phillips or Kennedy quotes.
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