The senators.
Like I said, the GOP cannot complain if Democrats take the next opportunity to pack the court. Last time it was Democratic senators that balked at it. I don’t think they would balk this time around.
The Republicans could preempt that by putting 10000 on the court.
This is an extraordinarily silly line of argument.
Because their religion tell them to hate and fear gay people that are in relationships, so much so that they can’t so much as bake a damn cake that can even be seen in the same room as a gay relationship. If you can’t do that, you certainly can’t conduct a medical procedure that would possibly extend the life of a gay person in a relationship - that would increase the number of (surviving) gay relationships in the world!
In fact, you are so religious that you feel you must murder every person in a gay relationship you see. Murder is only illegal at the state level, right? By your argument, laws against murder are unconstitutional.
Because we want to win. You are adding an additional complication that might result in us losing, and discrimination being allowed. It’s better to test the more clear case, and then later bring forth your more risky case, where the people on the cake could be seen as compelled speech as an endorsement.
Religion is not something that allows you to violate the law. The law gives freedom of religion, but it doesn’t say that you can do whatever your religions says outside the law.
As long as the law in question does not treat people of one religion differently than another, then it does not violate freedom of religion. If the baker were a Jew or an Atheist or a Muslim, the rules would be the same, so he has no case on those grounds.
The compelled speech argument is available, but then you need to prove that it it is the speech that is at issue, not the person. Do you oppose making cakes that look like this, or do you oppose doing so for this person? The latter seems to be the case, and why we will not stand back.
Discrimination is not okay, and the people of Colorado made it against the law. They are the people who get to decide. And that is may answer to Bricker’s question. I just happen to be someone who agrees with the law.
But since the objective is not to punish this particular baker I don’t think it’s all-or-nothing win/lose on one particular type of cake so much as fighting for where the line is to be drawn more generally. For an efficient use of the judicial process, I’d hope that the Court will consider a spectrum of hypothetical designs, even if they are all cakes. One side argues for a line that carves out a very narrow “speech” exemption (which is what I’d favor) while the other side argues for a much broader exemption, and the Court decides where the line goes.
But since the last time they pretty much punted on any decision, who knows if they actually have any motivation to do this.
In accordance with court precedent it is actually more complicated than whether a law is applied equally. Strict scrutiny applies to an analysis of the law’s impact on religion. Laws passing this test may impose on religious beliefs.
To pass strict scrutiny review a law must further a “compelling governmental interest” and also be narrowly tailored to achieve that interest. Laws specifically targeting a religion are unlikely to pass constitutional muster. In United States v Carolene Products Co. the court applied strict scrutiny to legislation regarding specific constitutional rights such as the Bill of Rights and which affects “discrete and insular minorities”. So laws impacting on First Amendment religious practices freedoms are subject to this higher standard of review.
Obamacare’s contraceptive mandate passed the compelling interest test but failed on the narrowly tailored point, for example. That fact that the government was already agreeing to pay for contraceptives for many people proved fatal to the requirement of the PPACA which required private companies to pay for insurance to cover contraceptives to which a closely held corporation objected to on religious grounds. The court reasoned that a less restrictive means of the government achieving its goals was to extend such coverage at government expense.
As it applies to the baker’s case it would certainly help Colorado’s case if, at the federal level, the Supreme Court had already elevated sexual orientation to the suspect class designation as a discrete and insular minority. But as it stands on the federal level the baker’s claims are to be reviewed under strict scrutiny but the persons denied his services are not. The Supreme Court may change that in its inevitable ruling on the heart of the issue in a future case.
But even if sexual orientation is deemed a suspect class at the federal level the baker may raise the issues of targeting and of less restrictive means. He may prove unsuccessful, but time will tell.
In the Arlene’s Flowers case in Washington State the issue of targeting is likely to be a problem as the affected customer did not file a complaint, the state did. And further the state chose to sue the business as a corporation as well as the business owner as an individual. If the state cannot show a similar fact pattern in other cases then the court very well may decide that this was unconstitutional targeting. As it stands the Supreme Court vacated and remanded to the lower court to review this case in light of the high court’s Masterpiece Cakeshop decision.
This is late but you aren’t making sense.
What religious objection would they have to performing a D&C on a lesbian if they would otherwise be willing to perform one on a straight woman?
That is a pretty stupid argument. The constitution does not prevent the state from prohibiting murder even if that murder is absolutely required by some religion.
You asked for an argument that would allow bigoted shitbags to be able to use their religion to justify laws not applying to them. It’s hardly likely that any such argument would be good. (A fact which my escalation of the argument to murder was meant to highlight - reductio ad absurdum, yo.)
As for the rest, it’s been far too long since this conversation occurred for me to want to reassemble it from the scattered posts. What point did you want to argue, again?
Update.
"This week a Denver District Court sided with Scardinia and ordered Phillips to pay a $500 fine for violating Colorado’s anti-discrimination laws. "
"“Defendants admit that they were willing to make the requested cake until Ms. Scardina identified that she chose the colors to reflect and celebrate her identity as a transgender female,” judge A. Bruce Jones wrote in his ruling. “Defendants are, however, willing to make cakes for non-transgender individuals that reflect that person’s gender. And Defendants would ‘gladly’ make an identical-looking cake for other customers.”
I’d be pleasantly surprised if this holds up on appeal, but I expect the bigot will eventually win on Free Speech grounds.
I’ve got to admit I have mixed feeling about this, on the one hand discrimination is bad, nothing wrong with Transgender, religion isn’t a shield one should be able to use to disobey laws, etc…
On the other hand, I think its naive to believe that Autumn Scardina didn’t specifically chose this bakery in order to get a court case out of it. I am sure that she didn’t mention what the cake was for until after they agreed to bake it, and then made sure to reveal its purpose so the baker would then refuse. Which puts her on the spectrum somewhere between trolling and entrapment.
So I guess I come down on wishing for the fine to be upheld on the grounds of precedent setting and the advancement of equality, while not feeling particularly sympathetic to Ms. Scardina ,
Actually, I felt the article on CNN had a bit more info on Autumn’s POV.
“I was very hurt at the time, but as things progressed, I kept hearing him say that this wasn’t about the individual, it was about the religious nature of the marriage ceremony,” Scardina said. “So when I heard him say he would be happy to make a birthday cake, I decided to take him up on that offer.”
So, yes, they were targeted, because his original defense was narrow - his personal religious beliefs about marriage (which can be a religious circumstance, as well as a social/contractual construct). Autumn’s challenge is about making a birthday cake customized to their trans identity. Now the baker in question has to say he doesn’t make cakes for trans (or other protected groups) because his religion doesn’t support it - even if it’s a NON-RELIGIOUS matter involved. [ and yes, I know one of his arguments is that he doesn’t want his store’s Logo involved, and that’s a trivial matter to fix or dismiss ]
And I think it’s a far different kettle of fish. Because otherwise, you’re making a very broad argument. Do I want Jewish Delis refusing to serve gentiles because they refuse to wear a kippuh in the store? Or a Muslim retailer refuse to sell to a Christian because he believes they are unclean? Or any of a thousand different sects or beliefs?
This is an interesting case, because it really makes it very clear that the design of the cake is not the issue, but the kind of customer is.
Originally, lots of people conflated the two (should he have to make cakes with a Nazi symbol? And so on), but here the baker was happy to make the design. So, hopefully, all of that conflation can be avoided this time.
I think we are mostly on the same page about this. I agree that this case more clearly demonstrates discrimination beyond what might be required by religion, and that getting this bounrdary nailed down is a good thing (at least if they are nailed down on the right (which is to say left) side of things).
But the tactics of taking an action specifically to force a law suit seems sort of jerkish to me. Yes, I know its how these cases are done and its all for the greater good, but it still rubs me the wrong way on a personal level, so sue me. 
No argument there B_G. Mostly just wanted to show that per the CNN article I linked, it was indeed targeted. If you go with the piece I quoted from Autumn, in a good faith effort to see if Mr. Phillip would stand by his previously stated intent. Or in bad faith, where they were already certain what the response would be and use it as a tool to force the issue back into the courts.
Good faith or bad faith, it’s certainly needed. And if it rubs you the wrong way, that’s perfectly fair - I often wish we could all (whether Americans / The World / the Board) be upfront and argue things out with just reason. But people don’t seem to work that way. Sometime we have to get dirty for what we want. Doesn’t have to make us like it!
AFAIK this has been the case in every incident we know of. The people supporting the baker(s) et al couldn’t support this kind of discrimination with an argument and that’s the reason ‘we’ve’ been chasing after their entirely irrelevant hypotheticals.
ETA: I swear I recall someone making the argument, maybe not here, that photographers shouldn’t be forced to service gay weddings because an orgy might break out.
That’s correct, but that didn’t stop all the irrelevant hypotheticals (can you force a Jewish deli to sell ham? blah blah blah). This case seems clear enough that those can be avoided.
I loved that one the most because to make it equivalent you’d have to frame it as “Can you force a Jewish deli that sells ham to also sell it to Jews that want to buy ham?”