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  #1151  
Old 03-07-2018, 02:43 PM
sleestak sleestak is offline
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Originally Posted by Left Hand of Dorkness View Post
Huh. I think that case's reasoning is bullshit, but given that ruling, then yeah, absolutely it's consistent to require the swastika-baker to bake swastikas for Nazis. But I think that ruling should be reversed.
On what grounds? The plaintiff is an ass?

Slee
  #1152  
Old 03-07-2018, 02:54 PM
Left Hand of Dorkness Left Hand of Dorkness is online now
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Originally Posted by sleestak View Post
On what grounds? The plaintiff is an ass?

Slee
We're talking here about the asshole who expressed offensive racist beliefs and was fired for doing so, and how he successfully claimed that because his offensive racist beliefs were religious in nature, he couldn't be fired for them.

I think that's a bullshit ruling. If beliefs are offensive absent their religious nature, calling them religious beliefs should not magically protect them from being offensive.

And let's be clear on the beliefs we're talking about:
Quote:
Originally Posted by World Church of the Creator Ben Klassen
We gird for total war against the Jews and the rest of the goddamned mud races of the world — politically, militantly, financially, morally and religiously. In fact, we regard it as the heart of our religious creed, and as the most sacred credo of all. We regard it as a holy war to the finish — a racial holy war. Rahowa! is INEVITABLE. … No longer can the mud races and the White Race live on the same planet.
If my supervisor goes to a newspaper and says that he wants "total war" against me because he thinks I'm a member of a "mud race," I believe his boss ought to fire him, and ought to be able to fire him. If he says he's a member of an organization with those beliefs, he should similarly be fireable. If he says he holds these beliefs as religious beliefs, that shouldn't change anything at all.
  #1153  
Old 03-07-2018, 03:05 PM
Left Hand of Dorkness Left Hand of Dorkness is online now
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I just read that entire case. The fucker in question was a minister of this travesty of a "church," and in the newspaper article, he held up a T-shirt of a racist serial killer, commemorating the murderer for his contribution to the cause of the white race. There were complaints about him from black employees about racist discipline policies.

The judge nonetheless ruled that the complaints weren't specific enough, and that the guy's beliefs were protected, and that he'd engaged in no behavior that deserved firing.

Going to the media and praising a racist serial killer isn't behavior? Bullshit, I say.

The idea that horrific beliefs magically earn immunity because you slap a "religion" label on them is a very stupid idea, and we need to get rid of it.
  #1154  
Old 03-07-2018, 03:51 PM
sleestak sleestak is offline
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Originally Posted by Left Hand of Dorkness View Post
I just read that entire case. The fucker in question was a minister of this travesty of a "church," and in the newspaper article, he held up a T-shirt of a racist serial killer, commemorating the murderer for his contribution to the cause of the white race. There were complaints about him from black employees about racist discipline policies.

The judge nonetheless ruled that the complaints weren't specific enough, and that the guy's beliefs were protected, and that he'd engaged in no behavior that deserved firing.

Going to the media and praising a racist serial killer isn't behavior? Bullshit, I say.

The idea that horrific beliefs magically earn immunity because you slap a "religion" label on them is a very stupid idea, and we need to get rid of it.
So, from this I can conclude that you believe the following:

#1. It is ok for an employer to police an employees off duty time, including what they say about non-work related topics.
#2. Given that the court found the following:

'these statements suffer from several evidentiary maladies. First, if offered to show that plaintiff actually engaged in some act pursuant to his beliefs, i.e. treating African-American and white employees unequally, the first statement is hearsay and the second statement is double hearsay. Hearsay statements cannot be considered on motions for summary judgment. Logan v. Caterpillar, Inc., 246 F.3d 912, 925 (7th Cir.2001); Minor v. Ivy Tech State Coll., 174 F.3d 855, 856 (7th Cir.1999). .'

and

'Further, even if I considered the statements, they are so lacking in specificity that they fail to raise a genuine issue of material fact either as to whether plaintiff committed any acts or whether such acts caused his demotion.'

you believe that hearsay is acceptable and courts should act on it even if the hearsay statements are not incriminating.

#3. If the courts find a religions beliefs odious, the court should decide that the religion isn't valid.

Is that accurate?

There is no doubt Christopher Lee Peterson is an asshole*. However, people have the right to be assholes, believe assholish beliefs and say assholish things as long as they are in the right forum when they say it. If Peterson said those thing at work, fire his stupid ass. However, he did not say those things at work. Additionally, according to the court, there is no proof that he acted on his beliefs while working.

Slee

*I sorta wish people would stop finding cases where absolute assholes are in the right. I end up defending them while I find their beliefs to be horrid.
  #1155  
Old 03-07-2018, 04:16 PM
Left Hand of Dorkness Left Hand of Dorkness is online now
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Originally Posted by sleestak View Post
So, from this I can conclude that you believe the following:

#1. It is ok for an employer to police an employees off duty time, including what they say about non-work related topics.
Bad premise. If you supervise nonwhite employees, then what you say about what you want to do to nonwhite people is a work-related topic.
Quote:
#2. Given that the court found the following:

you believe that hearsay is acceptable and courts should act on it even if the hearsay statements are not incriminating.
Bad premise. The hearsay might not be acceptable to a court, but for an employment decision? Perfectly acceptable. Employers should have much broader leeway in what they consider than the courts should. So the court may not consider hearsay, but if the employer says, "Based on hearsay we concluded that this fucker is a terrible supervisor," the court shouldn't overrule the employer's decision.
Quote:
#3. If the courts find a religions beliefs odious, the court should decide that the religion isn't valid.
I believe that courts shouldn't be in the business of deciding whether religions are valid--which the law agrees with me on. However, I believe that a belief's religious nature should provide no protection to the belief, any more than it should provide an opening for attack. You can't fire someone because they have beliefs that are part of the Muslim religion; but if their belief is that all Americans should be murdered, the fact that it's part of their Wahabbi sect shouldn't protect them from the consequences of espousing those beliefs in public.

Quote:
There is no doubt Christopher Lee Peterson is an asshole*. However, people have the right to be assholes, believe assholish beliefs and say assholish things as long as they are in the right forum when they say it.
No, actually, people don't have the right to say assholish things and not be fired for them. If I speak out tomorrow to disparage my employer, my employer may fire me, even if I do it in a non-work environment. If I speak out tomorrow to say that I want to murder a lot of my co-workers, my employer may similarly fire my ass.

This case carves out an exception: my employer may fire my ass, unless I claim that my desire to murder a lot of my co-workers is part of my religion.

I think that's a bullshit exception.

Last edited by Left Hand of Dorkness; 03-07-2018 at 04:18 PM.
  #1156  
Old 03-07-2018, 04:22 PM
begbert2 begbert2 is online now
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My religion is that everything I say or do is right.

I am untouchable by the law.
  #1157  
Old 03-07-2018, 05:52 PM
octopus octopus is offline
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Originally Posted by Left Hand of Dorkness View Post
The idea that horrific beliefs magically earn immunity because you slap a "religion" label on them is a very stupid idea, and we need to get rid of it.
Ha. I’ve said similar. That said, religion is too powerful to attack in that fashion. Furthermore, religious differences are too great a political tool to discard.
  #1158  
Old 03-07-2018, 06:06 PM
WillReadmore WillReadmore is offline
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These baker cases are just the beginning of the effort of religious groups to excuse themselves from our law.

Does that sound extreme? Let's remember that Arizona's legislature passed their SB 1062, which would have been law if their governor had signed it. And, she was under tremendous political pressure to do so.

Here's a quick glimpse of Arizona's SB 1062.

It defines "Unreasonable burden to mean that "a person is prevented from using the person's property in a manner that the person finds satisfactory to fulfill the person's religious mission."

It defines "Exercise of religion" to mean the PRACTICE OR OBSERVANCE OF RELIGION, INCLUDING THE ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.

In other words, my religion can be any damn thing I want it to be and it still trumps state law except under certain conditions that it is up to the state to prove actually exist.

(Sorry for the caps - that came from copying the text from the bill. Bolding is mine.)

ACLU analysis:
https://www.acluaz.org/sites/default...on_sb_1062.pdf

In the SCOTUS case of Employment Division v. Smith (1990) the ruling was that a person may not defy neutral laws of general applicability, such as public accommodation laws, as an expression of religious belief.

In that decision, Justice Scalia wrote: "To permit this, would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."

These cake cases are about the supremacy of religion.

Public accommodation law and equality for LGBTQ, are barely the beginning of where this is going.
  #1159  
Old 03-07-2018, 06:12 PM
Whack-a-Mole Whack-a-Mole is offline
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Originally Posted by sleestak View Post
#1. It is ok for an employer to police an employees off duty time, including what they say about non-work related topics.
Obviously this one is fraught with problems.

My opinion is as long as you (general "you") keep your shitty opinions to yourself and do your job (which includes working well with your fellow employees) then fine. No problem.

Once you make your shitty opinions public though then the employer may have a cause to fire you.

So if you post some racial hatred on your Facebook page or you host a neo-Nazi podcast or participate on one and so on then as an employer I may have good cause to fire you. Particularly if you work with the sort of people you claim to hate.

No it does not matter if you come to work and are all smiles. If your co-workers know you go home and plot ways to kill them and their families then it will affect the work environment.
  #1160  
Old 03-07-2018, 08:38 PM
octopus octopus is offline
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Originally Posted by Whack-a-Mole View Post
Obviously this one is fraught with problems.

My opinion is as long as you (general "you") keep your shitty opinions to yourself and do your job (which includes working well with your fellow employees) then fine. No problem.

Once you make your shitty opinions public though then the employer may have a cause to fire you.

So if you post some racial hatred on your Facebook page or you host a neo-Nazi podcast or participate on one and so on then as an employer I may have good cause to fire you. Particularly if you work with the sort of people you claim to hate.

No it does not matter if you come to work and are all smiles. If your co-workers know you go home and plot ways to kill them and their families then it will affect the work environment.
Or go to a house of worship where they read from a book that talks about stoning and killing people. What place in modern society is there for that violence? Now, good luck firing that critical mass of people.
  #1161  
Old 03-07-2018, 08:41 PM
Snowboarder Bo Snowboarder Bo is offline
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Originally Posted by WillReadmore View Post
Does that sound extreme? Let's remember that Arizona's legislature passed their SB 1062, which would have been law if their governor had signed it. And, she was under tremendous political pressure to do so.

Here's a quick glimpse of Arizona's SB 1062.
You know that this is simply modeled after a 25 year old federal law, right? That 21 or so states have their own version already?
  #1162  
Old 03-07-2018, 11:39 PM
Whack-a-Mole Whack-a-Mole is offline
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Originally Posted by octopus View Post
Or go to a house of worship where they read from a book that talks about stoning and killing people. What place in modern society is there for that violence? Now, good luck firing that critical mass of people.
Huh?

This only makes sense if the people in the house of worship advocate stoning and killing more people and not just criminals but anyone who is a member of a disfavored group.

I went to Sunday school and I was never exhorted to go kill anyone regardless of what the Bible said.

But sure...if you belong to a group that advocates killing people for nothing more than their race or creed or hair color then yeah...you might have a problem at work.
  #1163  
Old 03-08-2018, 06:38 AM
Left Hand of Dorkness Left Hand of Dorkness is online now
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Or go to a house of worship where they read from a book that talks about stoning and killing people. What place in modern society is there for that violence? Now, good luck firing that critical mass of people.
There is a huge difference between reading from a book that talks about stoning and killing people, and joining a church that explicitly denies any divinity and that explicitly says its only purpose is to advance the cause of murdering all nonwhite people.

If you go to a church that exists purely to advocate for death camps for gay people, and if you get photographed holding up a t-shirt that honors Matt Shepard's murderers, and if you talk with a newspaper about your desires to murder gay people, I'm cool with your employer saying you can no longer supervise gay employees.
  #1164  
Old 03-08-2018, 09:36 AM
k9bfriender k9bfriender is offline
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Originally Posted by octopus View Post
Or go to a house of worship where they read from a book that talks about stoning and killing people. What place in modern society is there for that violence? Now, good luck firing that critical mass of people.
If people are for stoning and killing people, then yeah, that's a problem.

In theory, christians who are following in the footsteps of christ take the story of the stoning and the "he who's without sin cast the first stone" bit to be a lesson to not stone and kill people.
  #1165  
Old 03-08-2018, 09:50 AM
Damuri Ajashi Damuri Ajashi is offline
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Originally Posted by k9bfriender View Post
I think you have utterly misunderstood the "argument for gay marriage" on pretty much every possible fundamental level.
No, I think you entirely dismiss part of the premise on which it was sold to the general public before SCOTUS stepped in.

Quote:
Well, I don't know what to tell you, but that is not correct, as has been covered multiple times in this thread.
From the opinion:

"The State asks this court to compel Miller to use her talents to design
and create a cake she has not yet conceived with the knowledge that her work will be displayed in
celebration of a marital union her religion forbids."

It is clear this court thinks that she must sell a cake to a couple even if she knows it will be used to celebrate a gay marriage. It is NOT clear that the court would force excuse the baker from making a cake that is identical to a previously made cake.

Quote:
Think you are getting this yet?
No I think there is still a disconnect on the facts of this case and what the opinion says.

Last edited by Damuri Ajashi; 03-08-2018 at 09:52 AM.
  #1166  
Old 03-08-2018, 12:40 PM
k9bfriender k9bfriender is offline
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Originally Posted by Damuri Ajashi View Post
No, I think you entirely dismiss part of the premise on which it was sold to the general public before SCOTUS stepped in.
Not really. They are two seperate things. One is the right to get married. That confers many benefits between the people in the relationship.

There is also anti-discrimination. That is where you cannot treat people differently because you just don't like something about them that is considered to be part of a protected class.

Gay marriage was never "sold" to the public on the premise that discrimination was just peachy.
Quote:


From the opinion:

"The State asks this court to compel Miller to use her talents to design
and create a cake she has not yet conceived with the knowledge that her work will be displayed in
celebration of a marital union her religion forbids."

It is clear this court thinks that she must sell a cake to a couple even if she knows it will be used to celebrate a gay marriage. It is NOT clear that the court would force excuse the baker from making a cake that is identical to a previously made cake.
Unless of course, that is exactly what the judge said.

He specifically said that it was the creation of a cake that was to be used in a wedding is the highest form of artistic expression, and therefore cannot be compelled.
Quote:

No I think there is still a disconnect on the facts of this case and what the opinion says.
Agreed, which is why we feel the judge's ruling is in error.
  #1167  
Old 03-08-2018, 04:54 PM
WillReadmore WillReadmore is offline
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Originally Posted by Damuri Ajashi View Post
No, I think you entirely dismiss part of the premise on which it was sold to the general public before SCOTUS stepped in.



From the opinion:

"The State asks this court to compel Miller to use her talents to design
and create a cake she has not yet conceived with the knowledge that her work will be displayed in
celebration of a marital union her religion forbids."

It is clear this court thinks that she must sell a cake to a couple even if she knows it will be used to celebrate a gay marriage. It is NOT clear that the court would force excuse the baker from making a cake that is identical to a previously made cake.



No I think there is still a disconnect on the facts of this case and what the opinion says.
This is one judge. There are at least two other cases working through the courts where one has been through the appellate court level and the other is before the SC right now.

The combined score of all the rulings on these cases has just this one win by a baker. And, there is nothing unique about this case. That ruling really does look ridiculous in light of the oral argument in the case before the SC on the CO case that is essentially identical.

Remember what Justice Scalia said about religious exceptions to public accommodation law:

He said: "To permit this, would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."
  #1168  
Old 03-08-2018, 05:37 PM
Iggy Iggy is offline
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Originally Posted by WillReadmore View Post
...
Remember what Justice Scalia said about religious exceptions to public accommodation law:

He said: "To permit this, would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."
That is the commonly related Scalia quote, however Scalia continued as follows:

Quote:
Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).
...
The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, or the right of parents*,
...
Some of our cases prohibiting compelled expression, decided exclusively upon free speech grounds, have also involved freedom of religion...
*internal citations omitted

Scalia did not argue for an absolute right of the state to compel actions that violate religious practice. He argued the strict scrutiny standard. And he acknowledged that the court has granted religious exemption to generally applicable laws when free speech was implicated.

The baker cases hinge on this precise pairing of Free Exercise of Religion and Free Speech. And given the emphasis on the importance of Free Speech in Scalia's writing in Employment Division v Smith, the attorneys for the bakers in both California and Colorado emphasized the Free Speech claims of their clients.


And, for the record, Employment Divsion v Smith was NOT a public accommodations case.

Last edited by Iggy; 03-08-2018 at 05:39 PM.
  #1169  
Old 03-08-2018, 06:53 PM
WillReadmore WillReadmore is offline
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Originally Posted by Iggy View Post
That is the commonly related Scalia quote, however Scalia continued as follows:


*internal citations omitted

Scalia did not argue for an absolute right of the state to compel actions that violate religious practice. He argued the strict scrutiny standard. And he acknowledged that the court has granted religious exemption to generally applicable laws when free speech was implicated.

The baker cases hinge on this precise pairing of Free Exercise of Religion and Free Speech. And given the emphasis on the importance of Free Speech in Scalia's writing in Employment Division v Smith, the attorneys for the bakers in both California and Colorado emphasized the Free Speech claims of their clients.


And, for the record, Employment Divsion v Smith was NOT a public accommodations case.
Yes, it wasn't a public accommodation case, but public accommodation was included in the statements of the decision.

I agree that it comes down to trying to argue that a cake designed to the specifications of a customer would be speech attributed to the baker even though the baker is not present or identified.

Remember, the customer wanted to order a cake as per their specifications with the intent of presenting it as part of THEIR speech at an event where the baker is not present and isn't even identified.

Yet, the judge thinks the baker's religious beliefs should override that on the grounds of speech by the BAKER!!

If this judge's ruling stands, then Scalia's worst nightmare is recognized, as it would surely have to broadly apply to any product where the business supplies anything that could possibly be considered fabrication.

For example, it would mean that chefs need not serve customers in a restaurant if the chef can claim religious objection to their perceived sexuality, religion, skin color, etc.

So much for DECADES of civil rights legislation!

Beyond that, there really is no reason for it to apply only to objects assembled by the public accommodation business. The Judge ruled that there is a difference between a cake on the shelf and the identical cake assembled to order. But, that is preposterous. NOBODY can distinguish which is which.

Surely any ruling in the baker's favor would be immediately extended to any product or service provided by the public accommodation business. I made the bed. I created that latte. I buttered that toast. I gift wrapped that tchotchke. I maintained that wedding registry in the department store. I sold a pillow.

And, that comes because some baker thinks he has a speaking role in some customer's wedding that he has not been invited to?
  #1170  
Old 03-08-2018, 07:04 PM
Iggy Iggy is offline
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Originally Posted by WillReadmore View Post
...
If this judge's ruling stands, then Scalia's worst nightmare is recognized, as it would surely have to broadly apply to any product where the business supplies anything that could possibly be considered fabrication....
Actually Scalia's nightmare was realized in 1993. After the Court's 1990 decision in Employment Division v Smith an upswell against that ruling resulted in a near unanimous vote in Congress to essentially overrule the Court's decision.

And thus was born the federal Religious Freedom Restoration Act which forced the courts to use strict scrutiny when evaluating religious freedom claims in federal matters. Many states passed similar laws in the ensuing years.

And yet the sky did not fall. All of prior Civil Rights rulings did not go by the wayside. And certain Native Americans had their right to use peyote in religious ceremonies preserved.

So hanging onto a Scalia quote from a case that was legislatively overruled is probably not the best hope of those supporting the state in these cases.
  #1171  
Old 03-08-2018, 07:38 PM
WillReadmore WillReadmore is offline
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Originally Posted by Iggy View Post
Actually Scalia's nightmare was realized in 1993. After the Court's 1990 decision in Employment Division v Smith an upswell against that ruling resulted in a near unanimous vote in Congress to essentially overrule the Court's decision.

And thus was born the federal Religious Freedom Restoration Act which forced the courts to use strict scrutiny when evaluating religious freedom claims in federal matters. Many states passed similar laws in the ensuing years.

And yet the sky did not fall. All of prior Civil Rights rulings did not go by the wayside. And certain Native Americans had their right to use peyote in religious ceremonies preserved.

So hanging onto a Scalia quote from a case that was legislatively overruled is probably not the best hope of those supporting the state in these cases.
Well, we have about a month or a month and a half to see if Scalia's view of public accommodation law is overturned by these bakers.

It's not very easy to bolt the SCOTUS to ideas they don't accept.
  #1172  
Old 03-09-2018, 09:11 AM
Iggy Iggy is offline
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Again, Scalia's words in Employment Division v Smith have already been overturned legislatively. Scalia had no problem voting for those seeking religious accommodation in Hobby Lobby as well as in other subsequent cases.

Scalia was not espousing some grand civil rights principle in Employment Division v Smith. He was arguing that it should not be the role of the courts to set the balance between religion and government in discrimination cases. He argued it was the role of the legislature to do so.

Indeed his writing in Employment Division v Smith stands in stark contrast to his votes in every other religious accommodation case to reach the high court in which he consistently voted to support religious accommodation. Scalia did not support a firm divide between church and state, and argued against the notion that the state must inherently take a non-religious viewpoint as the default. Instead his view was that government must simply not favor one religion over another.

A ruling for the baker would be much more consistent with the views of Scalia. The state of Colorado can hope that the court goes counter to Scalia's view.
  #1173  
Old 03-09-2018, 11:50 AM
Whack-a-Mole Whack-a-Mole is offline
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Originally Posted by Iggy View Post
Scalia did not support a firm divide between church and state, and argued against the notion that the state must inherently take a non-religious viewpoint as the default. Instead his view was that government must simply not favor one religion over another.
Ok but how can the state do that?

There are something like 4,200 religions in the world. What's more the same religion can be viewed many different ways. You can find Christians who are a-ok with homosexuals and Christians who think homosexuals are the work of the devil. Which one does the government say has the right of it?

How can the government possibly be expected to manage all that without favoring one religion over another? You will end up as Scalia feared where anyone's belief trumps the law.

So it seems to me the defacto government position has to be a non-religious one. Anything else is fraught with trouble.

Last edited by Whack-a-Mole; 03-09-2018 at 11:52 AM.
  #1174  
Old 03-09-2018, 02:07 PM
WillReadmore WillReadmore is offline
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Originally Posted by Iggy View Post
Again, Scalia's words in Employment Division v Smith have already been overturned legislatively. Scalia had no problem voting for those seeking religious accommodation in Hobby Lobby as well as in other subsequent cases.

Scalia was not espousing some grand civil rights principle in Employment Division v Smith. He was arguing that it should not be the role of the courts to set the balance between religion and government in discrimination cases. He argued it was the role of the legislature to do so.

Indeed his writing in Employment Division v Smith stands in stark contrast to his votes in every other religious accommodation case to reach the high court in which he consistently voted to support religious accommodation. Scalia did not support a firm divide between church and state, and argued against the notion that the state must inherently take a non-religious viewpoint as the default. Instead his view was that government must simply not favor one religion over another.

A ruling for the baker would be much more consistent with the views of Scalia. The state of Colorado can hope that the court goes counter to Scalia's view.
I agree to an extent. Scalia certainly was a man of his religion as well.

However, I disagree with your characterization of Burwell v Hobby Lobby. Hobby Lobby objected to the ACA law that corporations must include contraception in their health care package. Hobby Lobby didn't want to offer contraception. This had nothing to do with public accommodation. It had nothing to do with discrimination as they would still treat all employees equally and would not affect hiring. And, the decision was limited to closely held firms - not public firms.

There IS validity to the Hobby Lobby decision in that our government does attempt to allow as much religious freedom as possible within certain bounds. So, we give churches exemptions from taxation, we allow them to override some aspects of property law, zoning law, etc.

Public accommodation law, on the other hand, DOES involve direct discrimination, and very importantly it is focused on how our free market capitalism delivers goods and services to citizens. THAT is not anywhere CLOSE to what Hobby Lobby asked for.

So, there is a significant difference between Burwell v Hobby Lobby and these public accommodation cases - which Scalia essentially calls out in his statement about public accommodation.
  #1175  
Old 03-09-2018, 02:39 PM
Left Hand of Dorkness Left Hand of Dorkness is online now
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Originally Posted by Whack-a-Mole View Post
Ok but how can the state do that?

There are something like 4,200 religions in the world. What's more the same religion can be viewed many different ways. You can find Christians who are a-ok with homosexuals and Christians who think homosexuals are the work of the devil. Which one does the government say has the right of it?

How can the government possibly be expected to manage all that without favoring one religion over another? You will end up as Scalia feared where anyone's belief trumps the law.

So it seems to me the defacto government position has to be a non-religious one. Anything else is fraught with trouble.
My understanding, from reading about the Church of the Creator dipshit, is that the government has gotten pretty good at that: they've even considered an atheist's rigorous and sincerely-held ethical principles as "religious" for the purposes of protection. Which is actually kind of cool.

My problem with that ruling is twofold:
1) On a lesser level, I think the judge didn't recognize the very real impact it would have on an employee to realize that a supervisor was, on his off hours, plotting to murder the employee. That is, after all, the explicit point of WCotC: they're extremely clear that they want a racial holy war that will wipe out all nonwhite people, and that the point of their church is to bring that about.
2) On a greater level, the idea that a statement outside of work hours can be a firing offense, unless it's a religious view, is intensely problematic. AFAICT the judge agrees that a similar statement by a guy at a Klan meeting could be a cause for firing. Allowing religion to act as a shield in this manner serves no public good that I can see. It's far better for the law to turn a blind eye toward religious beliefs.
  #1176  
Old 03-09-2018, 03:18 PM
Iggy Iggy is offline
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I agree to an extent. Scalia certainly was a man of his religion as well.

However, I disagree with your characterization of Burwell v Hobby Lobby. ...
The point is that Scalia was happy to apply the strict scrutiny standard in Hobby Lobby, as mandated by the RFRA. This was counter to his ruling in Employment Division v Smith where he allowed the government's neutrally applicable law to be enforced against a religious practice. He had no issue with the fact that this would have the result of allowing Hobby Lobby to be a law unto itself. So long as the legislature commanded the courts to use the strict scrutiny standard he was a-ok with that even if that required elevating religious belief over a neutrally applicable law.

Now maybe he would have viewed Masterpiece Cakeshop differently since the government did clearly have a less restrictive alternative to achieve their means in Hobby Lobby. After all the government was already paying for contraceptives for some people so it was hard for them to argue that having the employer's insurer pay for those particular employee's benefits was the least restrictive means of achieving the government's goal. But it is not so clear that there is a less restrictive means of achieving the government's goal in Masterpiece.
  #1177  
Old 03-09-2018, 05:00 PM
WillReadmore WillReadmore is offline
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The point is that Scalia was happy to apply the strict scrutiny standard in Hobby Lobby, as mandated by the RFRA. This was counter to his ruling in Employment Division v Smith where he allowed the government's neutrally applicable law to be enforced against a religious practice. He had no issue with the fact that this would have the result of allowing Hobby Lobby to be a law unto itself. So long as the legislature commanded the courts to use the strict scrutiny standard he was a-ok with that even if that required elevating religious belief over a neutrally applicable law.

Now maybe he would have viewed Masterpiece Cakeshop differently since the government did clearly have a less restrictive alternative to achieve their means in Hobby Lobby. After all the government was already paying for contraceptives for some people so it was hard for them to argue that having the employer's insurer pay for those particular employee's benefits was the least restrictive means of achieving the government's goal. But it is not so clear that there is a less restrictive means of achieving the government's goal in Masterpiece.
I don't believe strict scrutiny would save these bakers. So, I just ignored that aspect.

Scalia surely knew where this is going. The Hobby Lobby decision was the same year as Arizona SB 1026. I don't believe he saw Burwell v Hobby Lobby as anything close to the end to civil rights legislation - which the baker cases would surely be. And, I think one can see that in his statements.
  #1178  
Old 03-12-2018, 08:55 AM
Really Not All That Bright Really Not All That Bright is offline
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Strict scrutiny would absolutely save the bakers. But neither Colorado nor California have such a law.

Last edited by Really Not All That Bright; 03-12-2018 at 08:55 AM.
  #1179  
Old 03-12-2018, 03:02 PM
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Strict scrutiny would absolutely save the bakers. But neither Colorado nor California have such a law.
Well, strict scrutiny has to do with the SC of the US, which is where the CO case has already been heard, with a decision to come by spring. So, this isn't hypothetical anymore.

My own view is that the civil rights direction against discrimination is a legitimate government objective, especially since public accommodations represent how our system delivers goods and services to the populace. As such, I don't see a way for government to achieve legitimate goals without requiring public accommodation businesses to comply with public accommodation laws on discrimination. To declare a religious exemption from discrimination law like this would be a sweeping rejection of civil rights progress made over the last decades.

Still, with only a month or two left waiting, I'd be interested to hear your argument.
  #1180  
Old 03-12-2018, 11:32 PM
kaylasdad99 kaylasdad99 is online now
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No, I think YOU are misunderstanding the artistic expression argument. I don't care what some random anonymous poster said on this thread. The argument articulated by the judge in this case does NOT protect manufacturing.
It doesn’t protect manufacturing, as you point out. But the argument being advanced by your interlocutors here is that duplicating a pre-existing design is PRECISELY manufacturing, and nothing more. Furthermore, many posters have pointed out that in the case at hand, what the putative customers wanted to purchase was the product of a manufacturing process.

For all of your (and Morgenstern’s) cold-blooded analysis in support of the judge’s opinion, I have yet to discern where either of you has coherently addressed either the argument or the observation.
  #1181  
Old 03-12-2018, 11:58 PM
kaylasdad99 kaylasdad99 is online now
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Or it was a custom cake and everyone (on this board at least) is reading the facts in the light most likely to make the judge's opinion seem stupid. It is not difficult to read the opinion to mean that the cake was a custom cake (in fact the opinion says they make specially designed custom cakes, that Miller participates in every part of the custom cake's design and creation process, she does not deny that she refused to design and create a custom cake for the wedding).

Aside from using the word "custom" several times to describe the cake, what else can they do to let you know that it was a custom cake? Should they have said "this was really truly a custom cake, we mean it. a real actual custom cake and not a cookie cutter generic wedding cake."

It seems like no one is willing to believe it was in fact a custom cake.

Lets all just assume for the sake of argument that this was a custom cake. What then?
Is “custom” to be distinguished from “made-to-order from selections in a catalog of available designs?” If it is, I’m not prepared to agree that it was to be a custom cake.
  #1182  
Old 03-13-2018, 09:34 AM
Really Not All That Bright Really Not All That Bright is offline
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Lets all just assume for the sake of argument that this was a custom cake. What then?
Then there is still the issue of what the objectionable message the baker was being "forced" to convey was.
  #1183  
Old 03-13-2018, 09:55 AM
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Then there is still the issue of what the objectionable message the baker was being "forced" to convey was.
I think that there is a difference between "compelled speech" in the sense of being forced to transmit an idea that the speaker objects to and the idea of compelled artistic expression, where we believe that "art" is a form of "speech" that is protected and, as an extension, includes the freedom not to engage in "art" that offends the artist's religious belief.
  #1184  
Old 03-13-2018, 05:34 PM
begbert2 begbert2 is online now
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I think that there is a difference between "compelled speech" in the sense of being forced to transmit an idea that the speaker objects to and the idea of compelled artistic expression, where we believe that "art" is a form of "speech" that is protected and, as an extension, includes the freedom not to engage in "art" that offends the artist's religious belief.
Define "art".

It's my understanding that, according the ruling, the following scenario could occur:

A person walks into the bakery, points at a cake in the display case and say, "I want to buy that exact cake."

The baker sighs and says, "I hate black people, but I do indeed have to sell that cake to you because of laws. Let me just get it out for you."

"No, you don't understand," the person says, shaking their head. "I don't want the cake now, I want it in two weeks, for my son's wedding. That exact cake, as close a copy as you can make it."

The baker brightens. "In that case, shove off! I don't have to make jack for you! Because speech! Ha ha!"


In that scenario, where is the art?
  #1185  
Old 03-13-2018, 07:24 PM
WillReadmore WillReadmore is offline
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I think that there is a difference between "compelled speech" in the sense of being forced to transmit an idea that the speaker objects to and the idea of compelled artistic expression, where we believe that "art" is a form of "speech" that is protected and, as an extension, includes the freedom not to engage in "art" that offends the artist's religious belief.
I don't accept this division at all.

These public accommodations sell cakes that are baked to the specification of the customer. Plus, the baker is neither present nor identified at the event. And, in none of the three cases (OR, CA and CO) has there been anything claimed to be inherently objectionable about the cake as specified by the customers. That is, the cakes were not known to include any element that would cause the baker not to want to display them.

At the event, the "speaker" is the couple, NOT the baker. The cake is of the couple's specification and is presented as the speech of the couple. THEY are the ones who speak both by word and deed.

Plus, the cake is only one of numerous objects created for the event - the invitations, the makeup, the hairdo, the catered menu, the flowers, etc. All these providers could claim to be artists at least as easily as could this cake baker. And, none of these people are identified or necessarily present nor do they have their work presented as the speech of anyone BUT the couple. Suggesting all these anonymous contributors are "speaking" for themselves is ridiculous.

Again, the components of the wedding and the reception were specified by the couple and were to be presented as the speech of the couple.



It might be different if the cake were made by Picasso (were he alive), or some other noted and identified artist. In that case, those in attendance would be aware of the artist and interested in what the cake "means" in its wondrous design. But, that is because it is an object specified by Picasso, not the couple.
  #1186  
Old 03-13-2018, 07:37 PM
Iggy Iggy is offline
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The judge's ruling in the California case hinged on made-to-order. It did not inherently require "custom" as the term is being used in this thread, which is being equated with singularly unique.

The US Supreme Court grappled with the issue of art as protected First Amendment speech in the 1952 case Joseph Burstyn, Inc. v. Wilson in which the New York state government attempted to prohibit the showing of a motion picture it deemed sacrilegious. The court overruled a prior decision from 1915 that movies were merely a business and not protected speech. Since the decision in Joseph Burstyn, Inc. v. Wilson there has been little doubt that many forms of art are protected speech.

And further, the First Amendment protection does not end as soon as the work of art has been displayed (play has been performed, song has been sung, etc...) once. It need not be a unique event to have protection. Showing the movie in question in Joseph Burstyn, Inc. v. Wilson was protected from government censorship each and every time it was shown.

Now, SCOTUS faces Masterpiece Cakeshop and will have to decide several questions, including whether such cakes are works of art worthy of First Amendment protection. There was a Amici brief which chose not to state a preference for whether the baker or the state should prevail, but simply argued the point that such cakes are works of art. And the justices seemed to take note of that during oral arguments. Realistically it seems unlikely that the court will uphold the lower court (decide for the state) on the basis that such cakes are not works of art. They may still rule for the state after further examination of the interests of anti-discrimination laws balanced against First Amendment protections of the baker.
  #1187  
Old 03-13-2018, 07:49 PM
WillReadmore WillReadmore is offline
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The judge's ruling in the California case hinged on made-to-order. It did not inherently require "custom" as the term is being used in this thread, which is being equated with singularly unique.

The US Supreme Court grappled with the issue of art as protected First Amendment speech in the 1952 case Joseph Burstyn, Inc. v. Wilson in which the New York state government attempted to prohibit the showing of a motion picture it deemed sacrilegious. The court overruled a prior decision from 1915 that movies were merely a business and not protected speech. Since the decision in Joseph Burstyn, Inc. v. Wilson there has been little doubt that many forms of art are protected speech.

And further, the First Amendment protection does not end as soon as the work of art has been displayed (play has been performed, song has been sung, etc...) once. It need not be a unique event to have protection. Showing the movie in question in Joseph Burstyn, Inc. v. Wilson was protected from government censorship each and every time it was shown.

Now, SCOTUS faces Masterpiece Cakeshop and will have to decide several questions, including whether such cakes are works of art worthy of First Amendment protection. There was a Amici brief which chose not to state a preference for whether the baker or the state should prevail, but simply argued the point that such cakes are works of art. And the justices seemed to take note of that during oral arguments. Realistically it seems unlikely that the court will uphold the lower court (decide for the state) on the basis that such cakes are not works of art. They may still rule for the state after further examination of the interests of anti-discrimination laws balanced against First Amendment protections of the baker.
Yes, I'm guessing there will be separate opinions on both sides of the final decision in the CO case before the SCOTUS at present. There seems to be room for separate lines of logic on both sides.

And, I agree that the harm to civil rights law of a decision in favor of these bakers seems serious enough to play a central role in the final decision.
  #1188  
Old 03-14-2018, 08:54 AM
Falchion Falchion is offline
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Define "art".

It's my understanding that, according the ruling, the following scenario could occur:

A person walks into the bakery, points at a cake in the display case and say, "I want to buy that exact cake."

The baker sighs and says, "I hate black people, but I do indeed have to sell that cake to you because of laws. Let me just get it out for you."

"No, you don't understand," the person says, shaking their head. "I don't want the cake now, I want it in two weeks, for my son's wedding. That exact cake, as close a copy as you can make it."

The baker brightens. "In that case, shove off! I don't have to make jack for you! Because speech! Ha ha!"


In that scenario, where is the art?
There are a number of steps here. (1) Is "artistic expression" a form of protected speech? (2) Can a person be compelled, under an anti-discrimination law, to engage in "artistic expression"? (3) Is recreating (or reproducing) a piece of art itself an exercise in artistic expression? (4) Is this particular thing we're talking about an example of "artistic expression"?

There are probably more. It seems to me that your scenario presents question 3. If we assume that the creation of the cake in the display was "artistic expression", is making a replica of it also artistic expression? (If we assume it isn't artistic expression in the first instance, then the analysis ends, I think). I don't know the answer to that. I'm not sure what the answer should be.

Now, I think that you're right that a logical extension of the California ruling would protect the baker in your hypothetical. I think that the ruling contemplates a custom design that is made to order, but there's nothing that suggests that those things need to happen simultaneously. (i.e., I can make a bunch of custom designs, and then you can pick one, and I make it to order). Should that be protected? I don't know. I have trouble thinking it through without veering off into the question of whether the creation of a wedding cake should ever be protected.


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Originally Posted by WillReadmore View Post
I don't accept this division at all.
I don't see anything in the rest of your response that seems to support this statement. It seems to me that your point is that you don't think that a wedding cake (or perhaps just these wedding cakes) fall into either category.
  #1189  
Old 03-14-2018, 09:55 AM
Whack-a-Mole Whack-a-Mole is offline
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There are a number of steps here. (1) Is "artistic expression" a form of protected speech? (2) Can a person be compelled, under an anti-discrimination law, to engage in "artistic expression"? (3) Is recreating (or reproducing) a piece of art itself an exercise in artistic expression? (4) Is this particular thing we're talking about an example of "artistic expression"?
#1 is clearly a "yes" but I do not think that applies to the baker in this case.

If an artist, in whatever medium, creates something that is speech.

In this case the baker is being paid by someone else to create a specific thing. It is no longer the speech of the baker/artist.

Besides, the cake is closer to a manufacturing line than artistic speech. The cake was chosen from a book of available cakes. There was nothing unique about this cake. There was no message to be written on the cake. It was just a cake.

Further, there is NO WAY the cake would be considered an endorsement by the baker of whatever use it was put to. Is a sign maker personally endorsing that Bob's Burgers are indeed the "Best Burgers in the World" when they make that sign? Of course not. So too with the baker. Making a cake is in no way the baker endorsing the message it sends (whatever that is).

If we assume #1 is put to rest I think the follow-on questions are more easily answered.

Last edited by Whack-a-Mole; 03-14-2018 at 09:57 AM.
  #1190  
Old 06-17-2018, 03:07 PM
Find Friends Find Friends is offline
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I don't have anything against the christian lifestyle. I just don't see why they have to flaunt it in public for everyone to see.
I see what you did there. I think.
  #1191  
Old 06-17-2018, 05:54 PM
Iggy Iggy is offline
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...
In this case the baker is being paid by someone else to create a specific thing. It is no longer the speech of the baker/artist.....
SCOTUS has ruled on a somewhat analogous issue.

Many (all?) states have customized license plates including specialty designs for affinity groups. So you might see a car with a University of MyState license plate design. Texas, for example, has designs showing presumed affiliation with private groups such as the 4-H, the American Legion, the Houston Astros, and so on.

Eventually this led to an application for a specialty plate design from a group that the state did not want to approve - the Sons of Confederate Veterans. Texas refused to issue such plates. The group sued. And it ended up at the high court.

The Supreme Court ruled* in Texas v. Texas Division, Sons of Confederate Veterans, that the speech was that of government, not the person buying and displaying the plate. As the issuer of the plate the government was considered the speaker and acted properly in declining to issue the requested design.

If the court holds to the same logic then the baker would be the speaker, not the person buying the cake.




* Coincidentally this decision was handed down on June 18, 2015, the day after the June 17, 2015 mass shooting at a Charleston, SC area church. Background investigation of the shooter in that incident showed he had a specialty license plate with a Confederate flag design. Governors of Maryland, Virginia, and North Carolina all moved to cease their state's Confederate flag license plate design citing the SCOTUS decision as the legal authority to do so.
  #1192  
Old 06-17-2018, 08:45 PM
DavidwithanR DavidwithanR is offline
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Originally Posted by Iggy View Post
SCOTUS has ruled on a somewhat analogous issue.

Many (all?) states have customized license plates including specialty designs for affinity groups. So you might see a car with a University of MyState license plate design. Texas, for example, has designs showing presumed affiliation with private groups such as the 4-H, the American Legion, the Houston Astros, and so on.

Eventually this led to an application for a specialty plate design from a group that the state did not want to approve - the Sons of Confederate Veterans. Texas refused to issue such plates. The group sued. And it ended up at the high court.

The Supreme Court ruled* in Texas v. Texas Division, Sons of Confederate Veterans, that the speech was that of government, not the person buying and displaying the plate. As the issuer of the plate the government was considered the speaker and acted properly in declining to issue the requested design.

If the court holds to the same logic then the baker would be the speaker, not the person buying the cake.




* Coincidentally this decision was handed down on June 18, 2015, the day after the June 17, 2015 mass shooting at a Charleston, SC area church. Background investigation of the shooter in that incident showed he had a specialty license plate with a Confederate flag design. Governors of Maryland, Virginia, and North Carolina all moved to cease their state's Confederate flag license plate design citing the SCOTUS decision as the legal authority to do so.
Not necessarily, because it's well known that licence plates belong to the government, and they usually have government logos or symbols on them.

Quick, without asking anyone: Last three weddings you attended that you weren't involved in paying for and weren't your own wedding, exactly who made the cakes?
  #1193  
Old 06-18-2018, 08:24 AM
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The Texas case ruling was in line with earlier court precedent in Wooley v. Maynard which also held that messages on license plates were government speech AND that citizens could not be compelled to display design elements (a New Hampshire plate with the slogan "Live Free or Die") with which the citizen had a religious objection.


You disagree that this series of rulings on license plate designs is analogous to the baker situation. And indeed a lawyer would need to differentiate the cases and provide a convincing argument as to why enough difference exists to warrant a different ruling. But based on court precedent it seems that an argument that it is not really the baker's speech would be an uphill argument to make.

Last edited by Iggy; 06-18-2018 at 08:26 AM.
  #1194  
Old 06-18-2018, 09:22 AM
Whack-a-Mole Whack-a-Mole is offline
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And indeed a lawyer would need to differentiate the cases and provide a convincing argument as to why enough difference exists to warrant a different ruling. But based on court precedent it seems that an argument that it is not really the baker's speech would be an uphill argument to make.
Easy.

To be the same it would be like the government telling the baker they have to write, "I like dick" on all their cakes and that the baker must display "I like dick" cakes in their window.

That is not happening here. Someone is asking for a cake and then taking the cake away for their own use. No one else is having a given message foisted on them which is what the government does when it says you have to display a given license plate design.
  #1195  
Old 06-18-2018, 10:24 AM
Iggy Iggy is offline
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That is an issue in Wooley, but not in Texas v Sons of Confederate Veterans.

In the Texas case it was the citizen customers who demanded the production of a specialized product. And the producer refused. And the Supreme Court upheld that refusal on First Amendment grounds.

And it still remains that at its core the high court has case precedent that the producer of goods is the speaker when it comes to First Amendment protection claims.

There may be other ways to attack the Masterpiece decision in future cases, but ISTM claiming the cake is not the baker's speech is not in line with prior precedent.

But, alas, the Masterpiece decision never reached the core First Amendment free expression claim. That means future cases already working their way through the system might be the deciding precedent.

The most likely on deck case to address similar issues, Baronnelle Stutzman's case out of Washington (aka Arlene's Flowers Inc v Washington) holds a couple distinguishing issues that were not present in Masterpiece. There is no doubt that Stutzman was willing to sell other items as the customer in that case was a long time customer. She just was not willing to do the flowers for his same-sex wedding. In Masterpiece there had been some discussion here on the Dope as to whether Phillips was actually willing to follow through on his statements that he would have sold other goods to the Craig and Mullins.

And, as far as I can tell, the customers in Arlene's Flowers never were a complaining party. Instead the state filed on its own behalf. And the state sued not just her business but her as an individual.

The Arlene's Flowers case has been distributed for conference at the Supreme Court. A decision on a grant of cert may be forthcoming before the end of the month. I suspect the court may order the case remanded per curiam to exam whether the state's actions in suing Stutzman as an individual demonstrate undue hostility demanding redress in accordance with their decision in Masterpiece.

Last edited by Iggy; 06-18-2018 at 10:28 AM.
  #1196  
Old 06-18-2018, 10:32 AM
Whack-a-Mole Whack-a-Mole is offline
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Originally Posted by Iggy View Post
That is an issue in Wooley, but not in Texas v Sons of Confederate Veterans.

In the Texas case it was the citizen customers who demanded the production of a specialized product. And the producer refused. And the Supreme Court upheld that refusal on First Amendment grounds.
In the case of the license plates a message "I like dick" is attached to the state. The state's name is on the plate and the message is paraded around in public and the plate is a formally issued government document. It is reasonable to think the state approves of that message.

In the case of the cake no one knows who made it and it is intended for a private event. No one would ever think the message on the cake is approved of (or not) by the cake maker or represent the cake maker's opinion/feelings. If you have the baker make a cake with a message "Jimmy's BBQ - World's Best Ribs!" are we to assume the cake maker is endorsing the message that Jimmy's BBQ does, in fact, have the world's best ribs?

Of course not. No one would think that. However, if your license plate said "World's Best Ribs" then I would think that is a message the state has endorsed. The Idaho plate says "Famous Potatoes" which I take to mean the state is saying they have famous potatoes. If a baker put "Famous Potatoes" on a cake I wouldn't even think to wonder what the baker's opinion of that is and I cannot see where anyone else would either.

Last edited by Whack-a-Mole; 06-18-2018 at 10:37 AM.
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