Euphrosyne, did you miss my post #800?
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.
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.
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.
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.
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.
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.
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.
This isn’t a free exercise case. It’s a free speech case. Her reasons for refusing are irrelevant.
I’ve read both, and have repeatedly referenced specific quotes from the opinion. Have you read the thread?
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.
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.”
“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” . . . ?
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?
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.
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.
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.
Which is why we allow religions to practice human sacrifice.
Does the Fourteenth Amendment have any meaning, Euphrosyne?
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!
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:
- Is cake-baking in this particular fashion expressing anything in a manner that would trigger first amendment protection; and
- If it is, is there a compelling state interest in circumscribing that expression that can’t be attained through a less restrictive manner?