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  #801  
Old 02-15-2018, 07:37 AM
Damuri Ajashi Damuri Ajashi is offline
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Originally Posted by Left Hand of Dorkness View Post
Are you under the understanding that federal law, unlike state law, can trump the first amendment? Are you under the understanding that federal law has an easier time trumping the first amendment?

If so, you need to explain yourself, because I think you're wrong on that.

If not, it's completely goddamned irrelevant whether it's a state protection or a federal protection, except that it determines where the suit is happening.
Show me a case where a state level "protected class" that was NOT a federal level protected class survived a valid first amendment challenge?

If federal protected classes are accorded more deference than state level protected classes then isn't it goddam relevant whether its a state protected class or federal protected class?
  #802  
Old 02-15-2018, 07:45 AM
Euphrosyne Euphrosyne is offline
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Originally Posted by Left Hand of Dorkness View Post
Uh, yeah, the problem isn't that I don't care about the legalities.
I'm certain that a person's disinclination to take interest in legalities would tend to make his or her participation in a conversation around the legalities of a thing, somewhat problematic.

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I note the continued lack of verses.
The precept regarding offering all to God is contained in Colossians 3:17.

As for the precepts regarding the sexual relationships under discussion, that's a can of worms I'm not going to open here.

You can easily find the relevant verses on Google: Bible man "lie with." You'll get two million plus hits.
  #803  
Old 02-15-2018, 07:56 AM
Damuri Ajashi Damuri Ajashi is offline
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Originally Posted by Whack-a-Mole View Post
I do not know why people keep going here. Cake is not the same thing as an original manuscript.

To be apples to apples it would be like going in to a store which had twenty paragraphs on display in a display case and then you ask the merchant to give you paragraphs 2, 3, 12 and 17. They then run to the back and print them out for you.

The cake maker is doing much the same. The case says the couple looked at options available in the display case and made their choice from that. The baker was not being asked to invent a whole new cake recipe and design from scratch. The baker is closer to a cake assembler than a cake artist.
Well I think that's because so many people have been approaching this case as "religion" vs "gay rights" as opposed to "free speech" vs "gay rights"

You're basically just saying that baking a custom cake is not art. This court disagrees and I suspect most courts will disagree. I think that you need protected class status to overcome that.

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Maybe the right size cake for the wedding was not on display.

Maybe they want a fresh cake for their wedding and not one sitting around a few days.

Maybe the exact cake was not on display. So they choose vanilla cake from one option and chocolate frosting from another option.

Maybe on their wedding day they do not want to be arsed running around collecting cakes and transporting them.

There are many possible reasons. They have other things on their mind that day.

The weird thing here is the judge says she would have to sell a display cake so the only difference is whether the baker knows ahead of time who will buy the cake. If she does she can refuse but if she only learns of it at the point of sale then she cannot. How does that make sense?
That is not what the judge said. If you read the part I cited above, you will see that it is only the creative process that is protected. If they have already completed the creative process, they cannot discriminate based on who the buyer is. (see catalog example). They cannot make a cake for me and refuse to make the identical cake for you.

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The couple did not ask for any message or anything that was not on offer from the baker on their cake.
That was just an example of something that the baker cannot be forced to do even with a cake in their display.
  #804  
Old 02-15-2018, 07:59 AM
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Originally Posted by Euphrosyne View Post
I'm certain that a person's disinclination to take interest in legalities would tend to make his or her participation in a conversation around the legalities of a thing, somewhat problematic.
Let's be clear: because I didn't explicitly mention "putting icing on a cake" when I talked about "baking a wedding cake," you decided it was worth correcting me. And when I said that was a stupid thing for you to do, you decided I must not be interested in the law.

Uh, okay. move over Ginsburg, we got a new legal eagle in town.
  #805  
Old 02-15-2018, 08:06 AM
Damuri Ajashi Damuri Ajashi is offline
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Originally Posted by k9bfriender View Post
Why not buy a display cake that is probably already stale from sitting in the case for weeks for a wedding that takes place in several more weeks? Is that really your question?

My understanding is that is exactly what happened. They asked for a cake that was identical to the one that was already made.
Then why would the court opinion read:

"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. For this court to force such compliance would do violence to the essentials of Free Speech guaranteed under the First Amendment."

If she has already made the cake, then hasn't she already conceived it? Or does conceived here mean actually make rather than conceive?

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Yeah that's what the judge said, and that was one of the main arguments of this thread is whether making something from a catalogue counts as artistic expression.
OK, well I haven't read all 800 posts but it seems to me that there is a difference between design and manufacture.

To me it is the design aspect the part that is protected not the manufacture part.

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I don't think that's the case.
Then it seems like you are ignoring the language you just cited in order to make a stronger argument against a judicial result you do not like.

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So, you are saying that the baker would have been happy to make them a cake if they had changed their orientation to something more acceptable?
No, I am saying that perhaps sexual orientation is not as immutable as you are claiming it is. I also don't think immutability is necessary for protected class (see religion and nationality).
  #806  
Old 02-15-2018, 08:08 AM
Damuri Ajashi Damuri Ajashi is offline
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Originally Posted by Whack-a-Mole View Post
Yeah...we know. We have discussed this earlier in this thread.

Yes the judge made it a free speech issue. Many here disagree with the judge and feel if this counts as speech then there is no meaningful limit. The guy making your sandwich at Subway is engaging in speech and can deny you service for whatever reason pops into his/her head.
I don't see how the judge is saying that. If you are ordering off a menu, you are entitled to get the sandwich. Even if you ask for things like extra mayo.

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It is possible a given person's sexuality may change over time but it is never a "choice". Assuming you are heterosexual do you think it is trivial for you to choose, right now, to be homosexual? Not that you could go engage in homosexual sex but that you could change your personal sexuality to be a homosexual on a whim?
So it isn't immutable? So maybe you want to rethink whether immutability is a necessary component of protected class status?
  #807  
Old 02-15-2018, 08:14 AM
Damuri Ajashi Damuri Ajashi is offline
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Originally Posted by Morgenstern View Post
No, it means the baker was within her rights to refuse to bake a wedding cake for this couple. That's all.
I disagree. This case is a first amendment case and if they hold themselves out to the public as making cakes for sale and they make cakes out of a catalog that they make for straight couples, they must also make it for gay couples or the COTFSM couple. They don't have to put a same sex topper or a colander on the cake but they have to at least make the same cake they already made at least once for that straight couple.
  #808  
Old 02-15-2018, 08:17 AM
Damuri Ajashi Damuri Ajashi is offline
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Originally Posted by Left Hand of Dorkness View Post
Yes, we're clear on what you, and the judge, said. That's not what's in question.

The question is, what non-arbitrary criteria, if any, do you offer to distinguish this from other efforts, such that we may establish a consistent legal principle? And can we establish a consistent legal principle by which anti-discrimination laws fail to meet the strict scrutiny test for overcoming first amendment protections?

Because I've let folks slide on claiming that federal or state law can't trump the first amendment, but depending on how you establish the principle, that becomes a significant instead of a technical error. Of course law can trump the first amendment, if there's a compelling state interest in doing so.

If you can establish such a narrow legal principle that baking custom wedding cakes is the only public accommodation covered, then you might be able to say that there's no compelling state interest in overcoming the first amendment. But I don't think there's a rational principle you can establish that makes that nice a distinction.

Instead, any legal principle that treats customized cake-baking for hire as free speech is, if reasonably applied, going to include such a wide swath of mercantile activity that anti-discrimination laws will be rendered obsolete. And the state can make a very powerful case that it has a compelling interest in keeping the teeth in anti-discrimination laws.

So it's not enough to refer to the judge's vacuous reasoning about why wedding cakes are speech, but other speech ("May I take your order?") isn't speech. If you want to defend this decision, you need to set out a legal principle far clearer than what this fool of a judge has set out.
Have you read the opinion or just the article?
  #809  
Old 02-15-2018, 08:29 AM
Damuri Ajashi Damuri Ajashi is offline
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Originally Posted by Left Hand of Dorkness View Post
This is a twiddlingly ridiculous objection. Obviously when I talk about baking a wedding cake, I'm talking about the icing and decorating of the cake. Don't be absurd.

Instead, consider this: for whatever pedantic hairsplitting definition you'd like to give for what the happy couple is asking the baker to do, there are no Bible "verses specifically, expressly forbidding" that behavior.

You've tried to duck and weave around what you said by going back to the "precept" business--but what you've not done is to show the verses that specifically, expressly forbid" baking that cake.
I once heard a weird religious dude once say "guy on guy sex is prohibited but girl on girl action is OK" and it is in fact trivially easy to see prohibitions against male gay sex in the bible but you have to at least make a small leap that "unnatural" sexual acts in women is referring to lesbianism rather than anal sex.
  #810  
Old 02-15-2018, 08:43 AM
Euphrosyne Euphrosyne is offline
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Originally Posted by Damuri Ajashi View Post
I disagree. This case is a first amendment case and if they hold themselves out to the public as making cakes for sale and they make cakes out of a catalog that they make for straight couples, they must also make it for gay couples or the COTFSM couple. They don't have to put a same sex topper or a colander on the cake but they have to at least make the same cake they already made at least once for that straight couple.
If to prepare and decorate such a cake would violate their consciences, then the legal protections of the First Amendment protect them from State coercion.
  #811  
Old 02-15-2018, 08:51 AM
Euphrosyne Euphrosyne is offline
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Originally Posted by Left Hand of Dorkness View Post
Let's be clear: because I didn't explicitly mention "putting icing on a cake" when I talked about "baking a wedding cake," you decided it was worth correcting me. And when I said that was a stupid thing for you to do, you decided I must not be interested in the law.

Uh, okay. move over Ginsburg, we got a new legal eagle in town.

Well, I'm nobody's idea of a "legal eagle."

But I'm interested in the law, and willing to think about as many aspects of it as necessary to show that a thing is either supportable or insupportable by current law.

If you're not interested in that, . . . well, then, you're not interested in that.
  #812  
Old 02-15-2018, 08:54 AM
ElvisL1ves ElvisL1ves is offline
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Originally Posted by Euphrosyne View Post
If to prepare and decorate such a cake would violate their consciences, then the legal protections of the First Amendment protect them from State coercion.
If the equal protection requirements of the Fourteenth Amendment, with the Civil Rights Act of 1964 requirements that stem from it, mean anything, then the bakers would have to do so. If their consciences absolutely do not permit that, then they don't have to be in a public-accommodation business.
  #813  
Old 02-15-2018, 09:03 AM
Damuri Ajashi Damuri Ajashi is offline
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Originally Posted by Euphrosyne View Post
If to prepare and decorate such a cake would violate their consciences, then the legal protections of the First Amendment protect them from State coercion.
Maybe but the opinion does not address freedom of conscience, its about artistic expression. The case is not based on whether they are offended by who will be using their cake, it is based on the creative process involved in making the cake itself.

Last edited by Damuri Ajashi; 02-15-2018 at 09:05 AM.
  #814  
Old 02-15-2018, 09:05 AM
Euphrosyne Euphrosyne is offline
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Originally Posted by ElvisL1ves View Post
If the equal protection requirements of the Fourteenth Amendment, with the Civil Rights Act of 1964 requirements that stem from it, mean anything, then the bakers would have to do so. If their consciences absolutely do not permit that, then they don't have to be in a public-accommodation business.
False.

As the Constitution now stands, the State is legally precluded from penalizing them for exercising or reserving their right to their First Amendment conscience protections, by prohibiting, or in any way interfering with their right to set up and operate any business, even a public-accomodation business, in accordance with those protections.

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  #815  
Old 02-15-2018, 09:07 AM
ElvisL1ves ElvisL1ves is offline
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Well, there's a bunch of Supreme Court rulings that say the Fourteenth's guarantees of non-discrimination take precedence. Go tell them.
  #816  
Old 02-15-2018, 09:23 AM
Euphrosyne Euphrosyne is offline
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Originally Posted by ElvisL1ves View Post
Well, there's a bunch of Supreme Court rulings that say the Fourteenth's guarantees of non-discrimination take precedence. Go tell them.
The Fourteenth amendment doesn't trump the First Amendment unless the class is federally protected.

Individuals of races other than Caucasian are in a federally protected class.

Individuals who identify as being of a sexual orientation other than heterosexual are not in a federally protected class.

Therefore the First Amendment conscience rights - under discussion - take precedence over the Fourteenth Amendment right of freedom from discrimination - under discussion.
  #817  
Old 02-15-2018, 09:25 AM
k9bfriender k9bfriender is offline
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Originally Posted by Damuri Ajashi View Post
You're right. It is a ludicrous idea to buy the one that is ACTUALLY in the display case. The cake would go bad before the wedding.

But what do you say to the notion that the article says that the opinion seems to be saying that you are entitled to a cake that is EXACTLY LIKE THE ONE in the display case?

Or are you just nitpicking?
Not sure you follow. The judge said that the baker did not need to make a new cake, even if it was exactly the same as the one on display.
  #818  
Old 02-15-2018, 09:27 AM
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Originally Posted by Euphrosyne View Post
{...} Individuals of races other than Caucasian are in a federally protected class. {...}
Cite?!

CMC fnord!
'Cause I really want to see you explain how "Caucasian" isn't a "race" that's part of the "federally protected class"!

Last edited by crowmanyclouds; 02-15-2018 at 09:27 AM.
  #819  
Old 02-15-2018, 09:32 AM
k9bfriender k9bfriender is offline
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Originally Posted by Damuri Ajashi View Post
Then why would the court opinion read:

"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. For this court to force such compliance would do violence to the essentials of Free Speech guaranteed under the First Amendment."

If she has already made the cake, then hasn't she already conceived it? Or does conceived here mean actually make rather than conceive?
That's a good question, and one that has been bandied about quite a bit in this thread.

The facts of the matter is that they were not asking her to make a unique cake, but one directly from their "catalogue" of cakes.

You'll need to ask the judge who made the ruling why he called following directions "designing and creating"
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OK, well I haven't read all 800 posts but it seems to me that there is a difference between design and manufacture.

To me it is the design aspect the part that is protected not the manufacture part.
And the design is already done. The couple was not asking for a new design. The manufacture was specifically the part that was being denied.
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Then it seems like you are ignoring the language you just cited in order to make a stronger argument against a judicial result you do not like.
No, it seems you are missing the entire point of this thread.
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No, I am saying that perhaps sexual orientation is not as immutable as you are claiming it is.
Take it you are a fan of gay conversion thearapy, then?
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I also don't think immutability is necessary for protected class (see religion and nationality).
People find their religions to be fairly important and immutable, and I have no idea how you think that national origin is something that you can change. You are born where you are born, you can't change that without a time machine.

Last edited by k9bfriender; 02-15-2018 at 09:35 AM.
  #820  
Old 02-15-2018, 09:48 AM
Really Not All That Bright Really Not All That Bright is offline
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Originally Posted by Euphrosyne View Post
The Fourteenth amendment doesn't trump the First Amendment unless the class is federally protected.

Individuals of races other than Caucasian are in a federally protected class.

Individuals who identify as being of a sexual orientation other than heterosexual are not in a federally protected class.

Therefore the First Amendment conscience rights - under discussion - take precedence over the Fourteenth Amendment right of freedom from discrimination - under discussion.
I don't think you understand what the 14th Amendment or federal civil rights laws do. Except for certain age groups and certain rights accorded to Native Americans, federal law does not create "protected classes." It creates suspect classifications. Caucasians receive the same protections as members of any other race.

Last edited by Really Not All That Bright; 02-15-2018 at 09:48 AM.
  #821  
Old 02-15-2018, 09:56 AM
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Euphrosyne, did you miss my post #800?
  #822  
Old 02-15-2018, 10:10 AM
Euphrosyne Euphrosyne is offline
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Originally Posted by crowmanyclouds View Post
Cite?!

CMC fnord!
'Cause I really want to see you explain how "Caucasian" isn't a "race" that's part of the "federally protected class"!
Civil Rights Act (1964) Title II, Section 201. (a) "ground of race, color, religion, or national origin."

I was distracted - sorry - and wrote incohenrently. (The shooting yesterday happened several miles from relatives with itty bitties, and they finally called back.) What I should have written was it's extremely rare in the U.S. that Caucasian persons are denied the right to vote, the right to accommodation, etc. on the grounds of their race, the law as it pertains to "race, color" was clearly intended especially to protect people of non-white races, that is, people of color from discrimination.
  #823  
Old 02-15-2018, 10:12 AM
MaxTheVool MaxTheVool is offline
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I hope I'm not repeating something that has been said already, but... I think an illuminating analogy is to think about someone who is a professional poet-for-hire. That is, you come to me, pay me money, give me a topic, and I will spend a month writing you a poem on that topic. Want a poem to celebrate your parents' 50 years of wedded bliss? Tell me all about them, and blam, I'll write you a poem.

Now, assuming I advertise my services on the internet and pass some general I'm-providing-a-service-to-the-public-for-money qualifications, then (as I understand it) I am not allowed to discriminate based on the race of my proposed clients. But... it strikes me as totally reasonable that someone might come in and say "ok, I'd like you to write me a poem extolling the brilliance of our Aryan savior Adolph Hitler" or "I'd like you to write me a poem to help recruit people into the church of scientology", and for me to refuse. Writing a poem is a personal act. It's my art. The fact that I'm being paid to do it does not mean that it's not still my voice speaking through the poetry. That is, I believe, the heart of the "artistic expression" argument.

Now, is baking a cake at all like writing a poem? Well, for a sufficiently high-end personalized cake, I don't think that's an outright ridiculous claim. I'm sure there are really expensive personalized cake-makers who make extremely individualized cakes that they honestly view as including meaningful artistic messages. I would certainly put those individuals in the same category as poets.


Does this specific real life baker in this case qualify? Beats me. My guess would be not, based on what I've read... but, bearing in mind that I'm very strongly pro gay rights here, I'm not hugely outraged by a line that I view as reasonable to draw being drawn in somewhat the wrong place. Even if I disagree with this precise ruling (and I honestly haven't read enough about the topic, and am in no way a sufficient legal expert, to really have a firm opinion on it) I don't view it as something heinous and outrageous. Lines are hard to draw, and reasonable people can and do disagree with where they're drawn all the time.


Obviously the disaster is if this somehow becomes a precedent which leads to gays being denied basic services at all sorts of mundane businesses... so we clearly need to remain vigilant.
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  #824  
Old 02-15-2018, 10:23 AM
Really Not All That Bright Really Not All That Bright is offline
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Having read the injunction order, this case has many of the same problems as Masterpiece Cakeshop. Specifically, the baker doesn't point to any specific speech she is being compelled to engage in that violates her right to free expression. Her argument is that making a custom cake for a same sex couple is inherently counter to her beliefs. That is far too broad an objection to be sustained; it's not a speech argument, it's a free exercise one.
Quote:
Now, assuming I advertise my services on the internet and pass some general I'm-providing-a-service-to-the-public-for-money qualifications, then (as I understand it) I am not allowed to discriminate based on the race of my proposed clients. But... it strikes me as totally reasonable that someone might come in and say "ok, I'd like you to write me a poem extolling the brilliance of our Aryan savior Adolph Hitler" or "I'd like you to write me a poem to help recruit people into the church of scientology", and for me to refuse. Writing a poem is a personal act. It's my art. The fact that I'm being paid to do it does not mean that it's not still my voice speaking through the poetry. That is, I believe, the heart of the "artistic expression" argument.
This analogy doesn't work because the baker wasn't being asked to make a pro-Hitler cake or to make a Scientiology recruitment cake. She was being asked to make a cake, period. A custom one, but not one with any inherent message. The closest poetry analogy would a poet being asked to write a poem by a gay couple, without reference to its content.

Last edited by Really Not All That Bright; 02-15-2018 at 10:25 AM.
  #825  
Old 02-15-2018, 10:24 AM
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Max, no one is asking you to write a poem. The couple in question heard a beautiful poem you wrote, and want to pay you for a printed copy to have read at their wedding. Which in this analogy, is a service you offer, having poems in the display case.
  #826  
Old 02-15-2018, 10:33 AM
Euphrosyne Euphrosyne is offline
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Originally Posted by iiandyiiii View Post
On the face of it (and based on googling of biblical restrictions on marriage), this standard would appear to allow bakers to refuse service to intermarriages between Christians (or Jews) and idol-worshipers/unbelievers, to marriages involving women who do not intend to submit to their husbands, and to marriages between believers and the descendants of Moabites.

That does not seem reasonable to me.

Baking and frosting a cake is not a religious act by any definition that I can see. Wedding cakes exist as a cultural construct, not a religious one -- a couple can get married with or without a cake.

That doesn't mean that I think bakers should be forced to submit to any act -- rather, I think they must treat every respectful and law-abiding customer the same. If they would bake and frost a "standard" wedding cake for couple A, they must do so for couple B. If they would bake and frost a cake that said "Pat and Leslie" for couple A, they must do so for couple B. They can feel free to refuse to include imagery and artistry they find offensive, or ugly, or just prefer not to include, for all cakes and all customers, IMO.
That's what this case is about.

Many persons of faith do seek to offer all that they say and do as an offering to God. This precept may be found in the Bible, in Colossaians 3. And persons who do this cannot offer to God that which God has forbidden. And God has forbidden same-sex sexual acts, and by extension, same-sex marriages. (Multiple texts may be found in the Bible. Check Google.) Therefore persons of faith, in using their artistic expression to decorate a wedding cake for the union of two men or of two women, are being coerced by the State to undertake an act which may not legitimately be offered to the Name of God - thus, a clear coercion of conscience.

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I see no way to determine whether your religious beliefs are more or less genuine than a baker who insists her religion bars her from making cakes (or a clerk from issuing wedding certificates, or florist from delivering flowers) for interracial couples.
I would support a law that provides for the requirement of legal tests for the basis of conscientious objections to the provision of some - not all - services. (Please see my post #793, in which I discussed this at some length.)

If business owners who assert their conscientious objections to the provision of some - not all - services based on the fact that one member of the couple is of race A, and the other member of the couple is of race B, can meet the tests decided upon by the Congress, then I would (very reluctantly) support them in doing so.

I doubt that Congress could come up with such a law. For which I am very glad.


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If businesses are allowed to refuse service based on sexual orientation, then what would stop the possible return of "sundown towns", except for gay couples, such that gay travelers could find themselves in a place in which they were unable to safely get a hotel room, a meal, automotive service, etc., just like so many black travelers were unable to safely get service from hundreds of places in America in much of the 20th century?

I think that the law can and should distinguish between the kind of accommodation that provides that people can "safely get a hotel room, a meal, automotive service, etc.," vs. the kind of accommodation that involves special ordering a confection for a party.

And I think there would be a great deal of merit in a law that required that no one face discrimination for any reason when seeking the former class of accommodations, as opposed to the latter class.

I hope one day to see a law that includes distinctions like that one.
  #827  
Old 02-15-2018, 10:35 AM
Really Not All That Bright Really Not All That Bright is offline
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Originally Posted by Euphrosyne View Post
That's what this case is about.

Many persons of faith do seek to offer all that they say and do as an offering to God. This precept may be found in the Bible, in Colossaians 3. And persons who do this cannot offer to God that which God has forbidden. And God has forbidden same-sex sexual acts, and by extension, same-sex marriages. (Multiple texts may be found in the Bible. Check Google.) Therefore persons of faith, in using their artistic expression to decorate a wedding cake for the union of two men or of two women, are being coerced by the State to undertake an act which may not legitimately be offered to the Name of God - thus, a clear coercion of conscience.
This isn't a free exercise case. It's a free speech case. Her reasons for refusing are irrelevant.
  #828  
Old 02-15-2018, 10:38 AM
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Have you read the opinion or just the article?
I've read both, and have repeatedly referenced specific quotes from the opinion. Have you read the thread?
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Originally Posted by Euphrosyne View Post
Well, I'm nobody's idea of a "legal eagle."

But I'm interested in the law, and willing to think about as many aspects of it as necessary to show that a thing is either supportable or insupportable by current law.

If you're not interested in that, . . . well, then, you're not interested in that.
What you're doing has nothing at all to do with the law--it has to do with playing a piss-poor game of Gotcha. No, I didn't mention putting icing on the cake. I also didn't mention creaming the butter with the sugar, choosing a low-gluten flour, adding the dry ingredients to the butter mixture alternated with the milk-and-egg blend, or preheating the oven--even though none of those are technically "baking" a cake (i.e., the specific process by which the batter is heated and dried in an oven), everyone knows that they're part of that process.

Back away from that ridiculous claim of yours, and especially from your condescending nonsense about how, because I didn't specifically mention putting frosting on a cake, I must be unconcerned about the legal niceties.

Last edited by Left Hand of Dorkness; 02-15-2018 at 10:39 AM.
  #829  
Old 02-15-2018, 10:40 AM
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I hope I'm not repeating something that has been said already, but... I think an illuminating analogy is to think about someone who is a professional poet-for-hire. That is, you come to me, pay me money, give me a topic, and I will spend a month writing you a poem on that topic. Want a poem to celebrate your parents' 50 years of wedded bliss? Tell me all about them, and blam, I'll write you a poem.
I'd argue that it's more like a professional sign painter. There's speech involved - he's putting words on a sign, after all - and creativity, because he uses his graphic design skills and maybe some illustration. But nobody who sees him painting a sign that says, "World's Best Coffee Served Here" is going to take that as his personal endorsement of the coffee being served. He's being hired to employ his technical skills to create a product, not to speak on someone else's behalf. Same with the cake. Nobody in history has gone to a wedding with a professionally made cake, and thought, "The baker who made this must really believe in Brad and Janet's relationship." This woman's cakes aren't speech, because nobody is going to see that cake and think it represents any sort of statement from the baker, except maybe, "Buy my cakes."
  #830  
Old 02-15-2018, 10:44 AM
Euphrosyne Euphrosyne is offline
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Having read the injunction order, this case has many of the same problems as Masterpiece Cakeshop. Specifically, the baker doesn't point to any specific speech she is being compelled to engage in that violates her right to free expression. Her argument is that making a custom cake for a same sex couple is inherently counter to her beliefs. That is far too broad an objection to be sustained; it's not a speech argument, it's a free exercise one.

This analogy doesn't work because the baker wasn't being asked to make a pro-Hitler cake or to make a Scientiology recruitment cake. She was being asked to make a cake, period. A custom one, but not one with any inherent message. The closest poetry analogy would a poet being asked to write a poem by a gay couple, without reference to its content.
-----------------------------------------------
"Her argument is that making a custom cake for a same sex couple is inherently counter to her beliefs."

Right. It's a problem of conscience.

Americans don't have the right to freedom from the State coercing their conscience?

-------------------------------------------------------

'it's not a speech argument, it's a free exercise one."

Okey-doke.

----------------------------------------------------

"That is far too broad an objection to be sustained; it's not a speech argument, it's a free exercise one."

Free exercise of one's religion is "far too broad an objection to be sustained" . . . ?

I believe your objection that the free exercise of religion is "far too broad an objection to be sustained" is itself "far too broad an objection to be sustained."

In another, unrelated case in which the claimant seeks redress from State interference on the basis that his rights to freedom of the press are being violated, would that, also automatically trigger your objection that that is "far too broad an objection to be sustained" . . . ?

Last edited by Euphrosyne; 02-15-2018 at 10:45 AM.
  #831  
Old 02-15-2018, 10:44 AM
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Originally Posted by Miller View Post
I'd argue that it's more like a professional sign painter. There's speech involved - he's putting words on a sign, after all - and creativity, because he uses his graphic design skills and maybe some illustration. But nobody who sees him painting a sign that says, "World's Best Coffee Served Here" is going to take that as his personal endorsement of the coffee being served. He's being hired to employ his technical skills to create a product, not to speak on someone else's behalf. Same with the cake. Nobody in history has gone to a wedding with a professionally made cake, and thought, "The baker who made this must really believe in Brad and Janet's relationship." This woman's cakes aren't speech, because nobody is going to see that cake and think it represents any sort of statement from the baker, except maybe, "Buy my cakes."
That's a great analogy. And our sign painter may refuse to paint Urbanredneck's apocryphal "No Whites Allowed" sign, as long as he refuses to paint that sign irrespective of the race of the customer.

What he may not do is paint that sign for a white person but not for a black person.
  #832  
Old 02-15-2018, 10:48 AM
k9bfriender k9bfriender is offline
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That's a great analogy. And our sign painter may refuse to paint Urbanredneck's apocryphal "No Whites Allowed" sign, as long as he refuses to paint that sign irrespective of the race of the customer.

What he may not do is paint that sign for a white person but not for a black person.
Why does the race of a laundromat owner matter?
  #833  
Old 02-15-2018, 10:52 AM
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Why does the race of a laundromat owner matter?
That's EXACTLY THE POINT! If you hate laundromats, don't paint the freakin' sign--but then you can't paint it for some made-up group of black student activists either.
  #834  
Old 02-15-2018, 10:53 AM
Really Not All That Bright Really Not All That Bright is offline
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Originally Posted by Euphrosyne View Post
-----------------------------------------------
"Her argument is that making a custom cake for a same sex couple is inherently counter to her beliefs."

Right. It's a problem of conscience.

Americans don't have the right to freedom from the State coercing their conscience?
Sure they do. But not an absolute right. The state can require you to vaccinate your kids to send them to public school, regardless of what your conscience tells you about vaccination.
Quote:
'it's not a speech argument, it's a free exercise one."

Okey-doke.
I don't know what you mean by this.
Quote:
"That is far too broad an objection to be sustained; it's not a speech argument, it's a free exercise one."

Free exercise of one's religion is "far too broad an objection to be sustained" . . . ?

I believe your objection that the free exercise of religion is "far too broad an objection to be sustained" is itself "far too broad an objection to be sustained."
Yes. The right to freedom of belief is absolute. The right to freedom of expression is not. The judge in this case rejected a free exercise argument.
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In another, unrelated case in which the claimant seeks redress from State interference on the basis that his rights to freedom of the press are being violated, would that, also automatically trigger your objection that that is "far too broad an objection to be sustained" . . . ?
Of course not. The specifics of the argument would trigger my objection, if appropriate. If the claimant asserts that his freedom to publish is violated because the state is making him pay employees minimum wage, he is attempting to push the boundaries of the First Amendment beyond their limits.

If on the other hand the claimant is denied the right to publish an article because it is critical of the Church of Scientology (or whoever), I would enthusiastically support his case.

My point is that being forced to make a cake for a gay wedding is not compelled speech. It is compelled commercial activity. Being forced to make a cake that conveys a particular message is compelled speech; that didn't happen here. If the baker had objected to a particular aspect of the customers' cake design, that would be one thing. Objecting to making two people a cake because of who they are is another thing entirely. It's indistinguishable from refusing to make a cake for an interracial wedding, which is also prohibited by the Unruh Act.
  #835  
Old 02-15-2018, 11:21 AM
Euphrosyne Euphrosyne is offline
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Sure they do. But not an absolute right. The state can require you to vaccinate your kids to send them to public school, regardless of what your conscience tells you about vaccination.

I don't know what you mean by this.

Yes. The right to freedom of belief is absolute. The right to freedom of expression is not. The judge in this case rejected a free exercise argument.

Of course not. The specifics of the argument would trigger my objection, if appropriate. If the claimant asserts that his freedom to publish is violated because the state is making him pay employees minimum wage, he is attempting to push the boundaries of the First Amendment beyond their limits.

If on the other hand the claimant is denied the right to publish an article because it is critical of the Church of Scientology (or whoever), I would enthusiastically support his case.

My point is that being forced to make a cake for a gay wedding is not compelled speech. It is compelled commercial activity. Being forced to make a cake that conveys a particular message is compelled speech; that didn't happen here. If the baker had objected to a particular aspect of the customers' cake design, that would be one thing. Objecting to making two people a cake because of who they are is another thing entirely. It's indistinguishable from refusing to make a cake for an interracial wedding, which is also prohibited by the Unruh Act.
---------------------------------------------------------------

The First Amendment forbids Congress making any law which PROHIBITS the FREE EXERCISE of one's religion.

Exercise is not simply holding one's inner beliefs in silence WHILE ALLOWING ONESELF TO BE COERCED BY THE STATE TO BEHAVE IN A MANNER WHICH VIOLATES THOSE RELIGIOUS BELIEFS.

"Exercise" is "exercise" night or day. At home or at work. In church or out of church.
  #836  
Old 02-15-2018, 11:35 AM
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Oh, fuck! Caps and bold text!

You're screwed now, Really Not All That Bright. There's no coming back from that sort of rhetorical power move.
  #837  
Old 02-15-2018, 11:39 AM
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Originally Posted by Euphrosyne View Post
---------------------------------------------------------------

The First Amendment forbids Congress making any law which PROHIBITS the FREE EXERCISE of one's religion.

Exercise is not simply holding one's inner beliefs in silence WHILE ALLOWING ONESELF TO BE COERCED BY THE STATE TO BEHAVE IN A MANNER WHICH VIOLATES THOSE RELIGIOUS BELIEFS.

"Exercise" is "exercise" night or day. At home or at work. In church or out of church.
Which is why we allow religions to practice human sacrifice.
  #838  
Old 02-15-2018, 11:44 AM
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Does the Fourteenth Amendment have any meaning, Euphrosyne?
  #839  
Old 02-15-2018, 11:48 AM
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Which is why we allow religions to practice human sacrifice.
My religion says I am not allowed to let witches live. Preventing me from striking them is a clear violation of my religious exercise. It also tells me that polygamy is AOK, and even commanded in many cases. So, thank goodness for that 1st Amendment that prevents the state from restricting my exercise!
  #840  
Old 02-15-2018, 11:49 AM
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Originally Posted by Euphrosyne View Post
---------------------------------------------------------------

The First Amendment forbids Congress making any law which PROHIBITS the FREE EXERCISE of one's religion.

Exercise is not simply holding one's inner beliefs in silence WHILE ALLOWING ONESELF TO BE COERCED BY THE STATE TO BEHAVE IN A MANNER WHICH VIOLATES THOSE RELIGIOUS BELIEFS.

"Exercise" is "exercise" night or day. At home or at work. In church or out of church.
You mentioned before not being a legal eagle, and boy howdy.

That's not how it works. That's not how any of this works.

The first amendment does have limits in its constraint on government. You seem to think that the limits are based on how explicit the sacred texts are, or how old the religious organization is, or how large or well-organized the religious organization is--factors that, entirely coincidentally, favor your religion over most others.

But that's not how any of this works.

The nature or existence of sacred texts, the size or organization or age of the religious bureaucracy, are irrelevant. There are two relevant factors, one of which you sometimes acknowledge, and the other of which you repeatedly ignore.

The one you sometimes acknowledge is that the sincerity of the believer is important. I can't just say, "I have a religious objection to obeying the sped limit, hee hee hee" and get away with it. I gotta genuinely believe whatever folderol I offer.

The one you repeatedly ignore is that the state can absolutely impinge on first amendment rights, given a good reason for doing so. You can't engage in honor killings. You can't conduct violent exorcisms. You can't beat your children. In all these cases, the state is imposing on reliigous freedom, even matters of conscience.

The relevant question here isn't, what arcane theolegal doctrine can you devise that says icing a cake is sinful. The question is twofold:

1) Is cake-baking in this particular fashion expressing anything in a manner that would trigger first amendment protection; and
2) If it is, is there a compelling state interest in circumscribing that expression that can't be attained through a less restrictive manner?
  #841  
Old 02-15-2018, 11:54 AM
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Originally Posted by Euphrosyne View Post
---------------------------------------------------------------

The First Amendment forbids Congress making any law which PROHIBITS the FREE EXERCISE of one's religion.

Exercise is not simply holding one's inner beliefs in silence WHILE ALLOWING ONESELF TO BE COERCED BY THE STATE TO BEHAVE IN A MANNER WHICH VIOLATES THOSE RELIGIOUS BELIEFS.

"Exercise" is "exercise" night or day. At home or at work. In church or out of church.
May the state prohibit a baker from refusing to make a cake for an interracial wedding if her religious beliefs are incompatible with interracial marriage? If so, how is that distinguishable from a same-sex wedding with regard to the First Amendment?
  #842  
Old 02-15-2018, 11:54 AM
MaxTheVool MaxTheVool is offline
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Max, no one is asking you to write a poem. The couple in question heard a beautiful poem you wrote, and want to pay you for a printed copy to have read at their wedding. Which in this analogy, is a service you offer, having poems in the display case.
No analogy is perfect. If there's a continuum where on one side is writing poems, and on the other side is taking a pre-written poem and printing it out, then somewhere in between them you have things like:
-I have some rough ideas for a poem, but want a professional poet to help flesh them out
-I have a poem written, but want a professional graphic designer to help me choose the art and layout and other visual artistic elements which will best enhance and enforce the message of the poem
etc.

Even if we all agree that writing a poem is art and printing a poem is not art, there's no reason to think that everyone will agree exactly where the line needs to be drawn between them.

(Although, again, my instinct is to say that the court drew the line in the wrong place in this particular case.)
__________________
This post is merely corroborative detail, intended to add artistic verisimilitude to an otherwise bald and unconvincing narrative
  #843  
Old 02-15-2018, 12:12 PM
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No analogy is perfect
Yeah, but you know how you offered this one without reading the thread first? Analogies very like this one have been discussed, and pretty well refuted, over the pages that you didn't read. It may be worth reading the previous discussion around it before asking everyone to rehash it.
  #844  
Old 02-15-2018, 12:14 PM
Morgenstern Morgenstern is offline
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Originally Posted by Euphrosyne View Post
---------------------------------------------------------------

The First Amendment forbids Congress making any law which PROHIBITS the FREE EXERCISE of one's religion.

Exercise is not simply holding one's inner beliefs in silence WHILE ALLOWING ONESELF TO BE COERCED BY THE STATE TO BEHAVE IN A MANNER WHICH VIOLATES THOSE RELIGIOUS BELIEFS.

"Exercise" is "exercise" night or day. At home or at work. In church or out of church.
The Constitution does not concern itself with your religious beliefs, it merely protects your right to those beliefs and practices. Claiming God made me do it, or God prevented me from doing it, is going to be really hard to prove. Miracle on 34th Street hard to prove.

If it was up to God to decide, I'm pretty sure he'd be all for it provided it was red velvet cake with sour cherry frosting. Don't fucking try sneaking devils food past him.
  #845  
Old 02-15-2018, 12:23 PM
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Whack-a-Mole Whack-a-Mole is offline
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Quote:
Originally Posted by Euphrosyne View Post
---------------------------------------------------------------

The First Amendment forbids Congress making any law which PROHIBITS the FREE EXERCISE of one's religion.

Exercise is not simply holding one's inner beliefs in silence WHILE ALLOWING ONESELF TO BE COERCED BY THE STATE TO BEHAVE IN A MANNER WHICH VIOLATES THOSE RELIGIOUS BELIEFS.

"Exercise" is "exercise" night or day. At home or at work. In church or out of church.
You keep going back to this.

Do you realize that the judge in this case decided the case on Free Speech grounds and NOT Free Exercise grounds right?

Yes the baker has religious reasons but the argument was a free speech one.

Last edited by Whack-a-Mole; 02-15-2018 at 12:24 PM.
  #846  
Old 02-15-2018, 12:31 PM
k9bfriender k9bfriender is offline
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No analogy is perfect. If there's a continuum where on one side is writing poems, and on the other side is taking a pre-written poem and printing it out, then somewhere in between them you have things like:
-I have some rough ideas for a poem, but want a professional poet to help flesh them out
-I have a poem written, but want a professional graphic designer to help me choose the art and layout and other visual artistic elements which will best enhance and enforce the message of the poem
etc.

Even if we all agree that writing a poem is art and printing a poem is not art, there's no reason to think that everyone will agree exactly where the line needs to be drawn between them.

(Although, again, my instinct is to say that the court drew the line in the wrong place in this particular case.)
It's more like:

You have written a poem about weddings. You will print that poem to anyone for a fee. I want you to print me a copy of that poem to use in my gay wedding. You refuse, based on you not wanting to use your artistic expression for something you disapprove of.

There was nothing new or unique being asked for in this cake. There was no fleshing out. There was not asking the baker to help with layout or other artistic elements.
  #847  
Old 02-15-2018, 01:25 PM
Euphrosyne Euphrosyne is offline
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Originally Posted by Morgenstern View Post
The Constitution does not concern itself with your religious beliefs, it merely protects your right to those beliefs and practices. Claiming God made me do it, or God prevented me from doing it, is going to be really hard to prove. Miracle on 34th Street hard to prove.

If it was up to God to decide, I'm pretty sure he'd be all for it provided it was red velvet cake with sour cherry frosting. Don't fucking try sneaking devils food past him.

Morgenstern,

I'm a little surprised at this from you.

I had the impression, that you were . . . well,
sort of a class act.
  #848  
Old 02-15-2018, 01:35 PM
Euphrosyne Euphrosyne is offline
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Oh, fuck! Caps and bold text!

You're screwed now, Really Not All That Bright. There's no coming back from that sort of rhetorical power move.
Miller. Steady on.
  #849  
Old 02-15-2018, 01:37 PM
Euphrosyne Euphrosyne is offline
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Which is why we allow religions to practice human sacrifice.
Your phrase of the day: "Unless there exists a compelling government interest in . . . "

Study it. Learn it.
  #850  
Old 02-15-2018, 01:38 PM
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I feel it needs to be reiterated again, while the judge did speak of things like art and creativity, the details of the case being tried make it clear that he was NOT talking about art or creativity from the standpoint of art and creativity. He was talking about the mechanical process of baking a cake according to a recipe and applying frosting to it according to the plan from the standard pre-existent cake book. Creation, not creativity.

The ruling was written to apply to all wedding cakes, regardless of design, presumably because the judge wanted to eliminate the possibility of christians having to sell things to gay people as much as he possibly could. He quite explicitly stated that wedding cakes are not speech because of their content or design, but rather simply because they are wedding cakes, because wedding cakes are inherently speech because wedding cakes are sacred. Or something like that.

So the argument is a free speech one that explicitly doesn't concern itself with either the content of the speech or the reasons for the speech - the medium is the speech here, not the message. Wedding cakes can be denied to anyone, for any reason, because speech, because sacred. That's the argument.

Unless the cake is pre-made and in a display case, at which point it magically stops being speech, because the judge has a personal vendetta against his argument making logical sense. Or because he thinks a bigoted argument isn't complete without "separate but equal".
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