Bricker, you’re correct that, even after the Fourteenth Amendment was passed, the Nineteenth was still passed later. But all that proves is that, at the time of the Nineteenth Amendment, the courts believed that the Fourteenth Amendment did not apply to women. And they were wrong in that belief, because the Fourteenth Amendment applies to all citizens. The decision that the Fourteenth Amendment did not apply to women was in fact exactly the sort of judicial activism that you’re so fond of decrying.
Emphasis mine.
No! No! No! No! No!
The Supreme Court NEVER said that the 14th didn’t apply to women. Not once.
What they said was that women ARE undoubtedly citizens, and ARE therefore covered by the citizenship privileges and immunities of the 14th amendment, and by the due process and equal protection clauses of the amendment.
But they also argued that voting was NOT among the citizenship privileges and immunities. I might not agree with their conclusion, but that’s what they said.
I feel frustrated making this argument, because as i’ve noted above, i think that the historical justification they used for the Minor v. Happersett decision was problematic for a number of reasons. I think you could even make an argument that their historical reasoning was a form of sophistry, designed to cover for a sort of judicial activism. But, fertheloveofgawd, read what the decision actually says!
Nah, all good, I like to learn things, and your post was informative.
You know my general feelings on the issue, but I have trouble siding with this. If I am a custom cake maker, and someone hires me to create a cake, it is understood by everyone that it is not my speech that is expressed in the cake. It is the customer’s speech that I created for him/her in exchange for compensation.
In court, I have made left-leaning arguments because it favors my client, even though I personally disagree with every word coming out of my mouth. But it is not my speech, is it? It is speech made on behalf of my client.
How is this different?
You are bound by professional conduct regulations. And you have accepted instructions. If you fail to follow them then it’s professional misconduct.
Your example would have held water if the baker agreed to make a cake for a homosexual wedding and then made a different one.
Just a correction, voting is not a privilege or immunity as interpreted by SCOTUS. Slaughterhouse gutted this section of the 14th.
The Code of the Baker?
So how far does this religious conscience objection that the baker is asserting go?
Can the owner of a Chick-Fil-A refuse to serve a black customer, claiming that their chicken sandwich is a work of art and their religion prohibits them from serving other races?
I don’t really see the difference between that and the cake case.
It would be more like refusing a client, because in order to defend them, you would have to say some things that you personally disagree with.
I agree that you cannot compel someone to create a work of art. You cannot compel someone to express their creativity in a manner of your choosing. If I walked into your home and told you to bake me a cake, it doesn’t matter why you refuse me, you don’t have to do it.
Things change, IMHO, when you open a business. Then you are saying, “You want a work of art? I will make you a work of art in exchange for money.”, or, “You want me to express my creativity on your behalf? I will do so, in exchange for money.”
Once you have decided to sell these services to the public, then, once again IANAL and IMHO, you cannot then say, “I will sell my services of creating art and expressing creativity, but not to you. (when you is a protected class[and the reason for refusal is that you are in that protected class.])”
It seems to me that if you are offering a service to the public, then you have to offer it to everyone. If you cannot offer it to everyone, then you should not offer it to anyone. It is your choice as to whether to open a business, and when you do so, there are many strings attached as to things that you may or may not do. Discriminating against protected classes is one of the things that you have agreed to not do when you opened your business to the public.
Bricker:
The Hippo-size-me-cratic Oath.
Well, this is interesting. I’m not sure I agree when it comes to art, though. The Duc d’Urbino wasn’t anyone’s muse even though he was paying the bills.
But my larger point is that it is not the baker’s speech. It is not his beliefs contained in the speech. No reasonable person would believe that by virtue of the cake that the baker supports same sex marriage anymore than he supports the local soccer team. He is in the business to provide these messages for others.
I generally support other arguments against forcing business owners to accept specific business, but I don’t agree with the whole speech argument upon which the Court granted cert.
Could one of the lawyers posting here weigh in on this? IANAL; however, I’m fairly certain that a defending attorney is not supposed to do that.
A good point. No media company agrees with every message on their own media. A sign maker isn’t endorsing the message on every sign.
Why would there be an exception for art when an individual is in the business of creating art? If I am in the business of hanging drywall, selling vegetables, skinning deer, or repairing shoes, I must do so, at least in Colorado, without any regard for sexual orientation of the customers.
The argument is that art is creative and expressive conduct. If I am doing it for myself, to sell at auction, lets say, I can create what I want, and refrain from every making any pro-gay painting or other creation.
If I am in the business of creating things for others, it would seem that it is not my expressive conduct, but expressive conduct done for a fee so that others may express their beliefs.
ETA: If I take out an ad in the local newspaper saying “Come to the Ultravires car lot. He has the best deals in town” is the local newspaper vouching for me?
To take a simple example of this: Suppose you see a professionaly-made cake with the words “I love you, John” written on it. Would you conclude that this meant that the baker loves John? Of course not: It means that whoever commissioned the cake loves John.
Now let’s suppose that we have two couples, Mike and John, and Mary and John (two different Johns; it’s a common enough name). Mary comes in and asks for a cake for her husband, and the (male) baker makes her a cake that says “I love John”. Then Mike comes in and asks for a cake for his husband, and the baker says “No, my cakes are creative; I won’t create art for with a homosexual message”. But if we interpret the cake as being the baker’s own message, then the cake he made for Mary was a homosexual message, just as much as the one for Mike would be, because if it’s his message, then both cakes say that the baker loves John.
Possibly a legal definition for “cake” is called for. Is it “food”, or “sculpted art in the medium of batter”, because if the latter, one might be able to argue that cake-making is an artistic endeavor more than a commercial one.
Do what?
Not take the client, or not say something that he personally disagrees with? Not nitpicking, just not sure which way you were going with it.
I was also indicating that I did not believe that it would be appropriate for a lawyer to turn down a client for that reason.
I agree, and not to speak for Bricker, I believe that he agrees with this as well. If you are asked to make a cake that says “I love John” under the CO law, you must do so whether it is Mary who loves John or Mike that loves John.
I believe that Bricker’s objection goes further. Instead of just asking for a message on a cake, Mike and John go to the baker (who offers these services to the general public) and says something along the lines of “We are getting married next month. Please use your creative skills and create a cake that expresses our love for one another. We met on a beach in Aruba, so we would like something in a tropical them. We both like surfing, so mix that in as well.”
Then the baker uses his creative talent to come up with a themed cake and incorporates those elements to create a positive image of Mike and John and their upcoming wedding. This, presumably, is something offensive to the baker because he is opposed to same sex marriage.
Although I sympathize with the baker for other reasons, it is not his speech that is being used here. And as long as the police power of CO says that he must serve these customers, I’m not seeing the speech right that is being violated.
What if it’s a painted portrait? That clearly is expressive art, should that be compelled as well?