Neglecting the fact that you are not describing a protected class, which completely makes your hypothetical irrelevant to the question of whether you can discriminate against protected classes… to add to your hypothetical so that it has any relevance, we will assume that being pro-death penalty is a protected class.
Does Bill make cakes celebrating upcoming executions for non-death penalty advocates? If not, then he wouldn’t have to make one that is specifically designed to celebrate such, however, if they are ordering a cake that is in the catalogue, with standard customizations, that he would make for anyone else then yes, he should be making their cake.
Now, in the real world, where such political affiliations are not protected, he could refuse.
The two “gotchas” you keep trying to use are “What if the person is being made to make something that they wouldn’t ever make”, and “What if the person is being made to make something for someone that is not a protected class.” Nearly every post you have made has been some variation on one of those two, and you will continue to get the same answers.
Not nearly as meaningless as all the uninformed blather you’ve crapped out all over this thread. Good luck with your ignorance; I’m done with you here.
Using religious belief to trump law isn’t something with a rational limitation. See Arizona’s bill that passed the legislature but was vetoed.
It seems like it boils down to whether there is a “soup Nazi” law - “no cake for you”, with no explanation. And, I don’t see how that works, as it ends up being a cheap cover for all the other acts of discrimination that have been legislated to be illegal.
The free speech/expression of an artist includes the right not to express. Substitute expression for speech and it all makes more sense. And yes, Freedom of Expression is inherent in the 1st. ( Freedom of the Press for example also = FoE)
I think that’s just an example of a “soup Nazi” law - “no soup for you”
So, on noticing the customer is same sex oriented the baker says, “Sorry, I don’t serve people who … uh … uh … wear scarves. It’s against my religion.”
Frankly, I think the public accommodation laws we have are somewhat redundant. It’s like having a constitutional amendment for the case that your black or female, or whatever. It shouldn’t be necessary to enumerate each characteristic that some idiot might possibly think makes a person NOT equal.
I think that might apply if the artist is somehow seriously notable.
For example, some couple might commission Picasso (were he alive) to make them a wedding cake.
Obviously, those at the reception would know this is the expression of Picasso. It wouldn’t be assumed that the elements of the cake were the choice of the couple.
The distinguishing characteristic is that the artist is present - if in name only.
In the cases before the court today there is no indication at all that the elements of the cake were to be other than the choice of the couple whose speech is the dominant theme of the reception.
That’s exactly what I’m saying: does it also include the right not to speak to customers you want to discriminate against? Is it your claim that I may refuse to speak to black customers if I want to discriminate against them–refusing to ask for their order, refusing to tell them the specials, refusing to ask any question?
If not, how can you justify compelling my speech, but not my expression, based on the first amendment?
Edit: note that the “artist” part is totally irrelevant. Artists don’t have any heightened speech protection.
I haven’t seen anyone suggest the judge is a bigot.
Sorry if you’re offended by my social reference, but it is an iconic case of declining without claiming a justification.
And, that is an important element of this case, I think, as the law in question is careful to identify particular classes of those who may not be discriminated against, which might appear to some as an opportunity to decline service by claiming OTHER grounds.
Well, as a business, you do need to have the ability to discriminate based on some characteristics of your customers. If they are asshole, and the come in, yelling at you to make them a cake, then you can deny them service because they are being rude. If they don’t have the money to pay for the cake, or if they have stiffed you on invoices in the past, you can discriminate against them on that. You do need to have some limitations on the “customer is always right” theory.
So, it is better, in some ways, to explicitly enumerate the things that you are not allowed to discriminate on, rather than the things you may.
As far as your example, people do sting operations from time to time on such operations that give flimsy excuses. I go into that baker with my fiance wearing a scarf, and even bring to the baker’s attention how nice of a scarf it is, and then, when they don’t turn down my business, you see that the reason that they denied the previous couple was not because of the scarf.
Really, were I a bigoted baker, I would just say that I am swamped and cannot take any new customers at this time.
But, if someone has achieved a level of fame or notoriety that is identifiable or is featured, I do believe the contribution would be perceived by the guests to include the expression of that individual - not just the couple being married.
The oral argument for the case before the SCOTUS includes this, but they pretty much dodge it as it has nothing to do with the case before them.
See that bolded part? That is what the judge had a problem with, forcing the baker (who is a jackass, btw) to*** celebrate a marriage*** that goes against her religious views. he says it twice (at least), though I do agree the judge could have been a little more clear on the point.
Actually, it is not. With an off-the-shelf cake, the bakers work is already done. There is no need for further input from the baker. At that point the baker cannot discriminate on religious grounds.
My bet is that there is a significant amount of disgusting discrimination going on where it’s under cover as you mention or where the individuals on the receiving end just aren’t ready to start suing people.
I have no idea what I would do. But, I’d sure hate it!
In your tortured hypothetical, yes. I am of the opinion you would be forced to make the cake, because it is a cake you are demonstrably willing to make (because you did) and because Nazis are a protected class (in the tortured hypothetical) and thus you can’t legally tell them to just piss off.
And you know what? This doesn’t bother me. This attempt at reductio ad absurdum doesn’t work because in your hypothetical Nazis aren’t bad people. Or at least they’ve been determined by the state to be sufficiently not bad that their naziness has an extreme level of protection against predjudice from mean old bigots who have an irrational aversion to mass murder.
When you torture a hypothetical you get tortured results, and those results are reasonable.
I assume that you realize that argument overrides literally all of anti-discrimination law regarding business interactions. All of it. Because, as you make very clear, it’s not about the product or creativity anymore. It’s about the sale itself being protected speech. So you can’t make me sell you so much as a Twinkie, because the words I would exchange with you during the sale and write on the receipt are protected speech.
Now, in the case at hand, the judge was actually quite restrained in his ruling, arbitrarily limiting it to non-stale wedding cakes on the power of them being, quite literally, magic. There is no other aspect of his argument that limits it to wedding cakes other than magic. Because, as you say, it has jack-all to do with the creativity or speech imbued in the physical cake - it’s the speech involved in the sale.
And if you presume the judge’s argument wasn’t stinky bullshit, then it could be applied to sales of other goods or services as well. Any goods or services. The logic (or “logic”) applies equally to all.
There’s no way he would have fronted this nonsense without a reason. And that reason certainly isn’t because the argument is compelling or a reasonable interpretation of law. The dude quite clearly thinks that anti-discrimination laws should not be a thing.
Switch the Buddhist and KKK example to Buddhist and member of the World Church of the Creator. Then it is religion #1 vs religion #2.
Those asshole in the Creativy movement religion have been to court and been recognized as a religion.
The whole theme of whether a creation must be unique to be protected expression keeps coming up. Placing that argument in other context… the foundation that manages MLK Jr’s estate must now license recordings of his speeches to any organization of members of a suspect class regardless of whether the foundation agrees with the overall message of that organization, right? After all those speeches were given 50-60 years ago and multiple copies of the recordings of those speeches have been made over the years. Nothing creative involved anymore.
That’s nonsense.
An artistic work need not be singularly unique to afford the artist First Amendment protection. Otherwise singers, authors, painters, sculptors, and actors would lose First Amendment protection as soon as they make a copy/repeat a performance of any of their works.
Whether the process involved in producing a wedding cake qualifies as artistic expression is a matter the SCOTUS is weighing as a part of the Masterpiece Cakeshop case. Oral arguments seemed to make it clear that there are at least 5 members of the court that think this is artistic expression. But the members of the court do seem troubled about how to fashion a test that would protect the baker but not undo all of the Civil Rights case law that has developed over the years.
And it is not a given that the court will rule for the baker. The court may decide that the baker is engaging in artistic expression, which courts have previously equated with speech, and yet rule against the baker. The government can, at times, compel action. If government is seen to be pursuing a legitimate government interest, does so neutrally without targeting a suspect class, and there is no less intrusive means to accomplish that goal then courts have at times ruled to restrict some sort of act that would normally be protected by the First Amendment. After all we can ban human sacrifice even if someone professes that it is a required tenet of their religion.
My own take from the oral argument is that it may be artistic expression, but in the context of the wedding it doesn’t seem to be the expression of the baker.
Again, those at the wedding surely see the flowers, the makeup, the cake, the invitation, etc., etc., as the choices of the couple being married - the ones who are at the root of the expression that is the reception, the ones who made each of the numerous choices contributing to that event. No guest could presume to know whether any of the numerous and unidentified artists was attempting to “say” something.
And, I agree with you that if such an exception is made then it would seem to blow a large hole in civil rights law and perhaps going further than that, as the exemption the baker desires is fundamentally a religious exemption.
This case was explicity a free speech argument and not a religious objection - a very generous move to people who wish to deny business to people but don’t have a plausible religion-based claim. For example I don’t think many religions are opposed to interracial marriages anymore.