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? :dubious:
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.
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.
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.
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.
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.
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.
Agreed, which is why we feel the judge’s ruling is in error.
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.”
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?
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.
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.
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.
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.
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:
- 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.
- 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.
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.
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.
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.