Okay, sorry, hijack, what was that about? Was it like in Seinfeld where the mechanic steals his car for not treating it properly?
Extend this notion then.
Can a pharmacist refuse to dispense birth control as long as he/she refuses to do it equally?
What about a police officer who refuses to deal with a domestic dispute involving am interracial couple? Or same sex couple? (Remember the police do not have a constitutional duty to protect you from harm.)
Where do you draw the line?
Well, government employees are subject to the 14th amendment, so that line is easy to draw. For instance, a state could decide not to operate any public schools at all, but if does operate them, it can’t segregate them.
And not surprisingly the Washington Post reports that the justices seemed split and that it may all come down to how Kennedy votes. Kennedy apparently asked sharply worded questions of lawyers on both sides giving rise to some WaPo speculation that SCOTUS may remand this back to a lower court for further consideration given whatever guidance the high court might chose to impart.
This whole think may not be over yet.
Transcript here (pdf link)
So, maybe they don’t think that they can bake it, huh?
Okay, I may be wrong… I had thought business licenses came with a minimum set of professional standards, and can be taken away for abuses of those standards.
I know (I actually talked to a judge) that professional licenses can be taken away if there are enough complaints filed against the licence-holder. Beauticians, care repair techs, doctors, etc. I had thought the same applied to ordinary business licenses.
So I read the transcript. My gut reaction was the justices were searching for some sort of line that could be drawn or a means to accommodate both sides.
The lawyers for the respondents (the Colorado Civil Rights Commission and the aggrieved gay couple*) seemed to grant that an a particular line could be drawn that would allow some orders for custom cakes - those with written words on them - to be rejected on the baker’s religious beliefs.
If that is the way the Court goes then it would seem to me that they would bounce this back to a lower court for trial. The case has reached the Supreme Court on a series of summary judgement so there has been no fact finding so far. This would be my guess, on a 6-3 vote in favor of Masterpiece Cakeshop.
As always IANAL and perhaps I have misread this all.
- David Cole, the lawyer for the aggrieved couple went way down a hypothetical from the Chief Justice about whether Catholic Legal Services could be compelled to provide pro bono advocacy in conflict with Catholic theology. Cole seemed to agree with the notion that government could compel such advocacy. Frederick Yarger , the lawyer for the Colorado Commission stopped just short of that. Chief Justice Roberts seemed to be pushing them to articulate a reason CLS could refuse such work but Masterpiece Cakeshop could not refuse an order for a same sex wedding cake.
I absolutely believe that baking a cake can, in certain circumstances, be a form of expression. And a baker could absolutely bake a cake that, even though it bore no writing or obvious imagery, was in his view an expression of his approval of one type of marriage or another. But what this baker seems to be saying is that it’s not possible for him to bake a cake for this couple without expressing approval for their marriage. That it’s somehow impossible for him to make a cake for a wedding-reception which expresses simply “I was legally obligated to make you a cake, and here it is”, or which expresses “here’s what I would want your wedding cake to look like if you were marrying someone of the opposite sex”, or which simply expresses nothing in particular.
The act of baking a cake can be expressive, but it isn’t inherently expressive, and a law that mandates the baker bake a cake, without mandating that he do so in an expressive way, ought to be Constitutional. If we start saying “compelling you to do something, even if that thing can be done in non-expressive ways, is automatically compelled speech” then there’s really no reason to single out cakes.
Before sending my check to the IRS, I could write “taxes suck” as a form of protest. Or I could write “taxes are awesome”. (And a law that prohibits me from doing the former or forces my to do the latter would, I believe, be an unconstitutional restriction on my right to free speech.) So clearly, paying my taxes can also be an expressive act – but it doesn’t have to be. Simply paying my taxes without comment isn’t an expressive act, and if I were to refuse to follow a law mandating that I pay my taxes, on the grounds that its forcing me to express approval of the act of taxation, this would clearly be bullshit.
I don’t think that’s really the relevant question here. There is precedent that you still have to follow a state law even if it conflicts with your religion, if the law itself doesn’t specifically target your religion. (See Employment_Division_v._Smith, a case involving an Oregon state prohibition against using peyote.)
IANAL, but I think the relevant legal question here isn’t, “Which counts more, state anti-discrimination law or the 1st Amendment?” It’s “How far can you stretch the definition of freedom of speech or religious freedom to get out of following laws you don’t like?” I’m not sure the legal analysis ought to change that much if this particular law were about something else instead of discrimination (like my taxation example in the previous post) – although in practice I suspect the justices will be strongly influenced by their feelings about same-sex marriage.
And they’ll never have that recipe again.
But surely images are as much “speech” as words are. Flag burning, for instance. And what if the couple says “no words needed, but we want you to draw two men on the cake kissing each other”? How is that substantively different from “May you have a happy life together, Adam and Steve”.
The baker can definitely decline to do certain designs that offend him, and refuse to sell them to anyone. The couple in question was not asking for an offensive design. The baker claims that he can’t make any specialty cake that would be used in a same-sex wedding. They hadn’t even discussed the design yet.
So your hypothetical doesn’t seem apt to this particular case.
My hypothetical was specifically in response to the poster I was quoting. Perhaps your issue is with him.
doped. Thanks
I actually knew about this case but hadn’t thought hard enough.
Kennedy seemed to be pretty sympathetic to the baker and he was the deciding vote in the gay marriage case.
It’s not that easy to read that into Kennedy’s questions.
They had quoted me the wrong price. When I dropped it off, I said, “this is a comforter”, but they quoted me the price for laundry. When I returned to pick it up, they said, basically, “you lied, this isn’t laundry, this is a quilt. You owe us four times the price on that written receipt.” I said I had told them what our was, and that didn’t seem fair of them, and the proprietor started cursing me out in Korean. She never suggested they may have shared any blame for the misquote, or suggested a compromise price. She just cursed me and refused to return my quilt. It was pretty ugly.
I assume a baker could not be compelled to draw two men kissing. The questing is whether he can be compelled to bake a plain wedding cake that would be suitable for a heterosexual wedding if it is to be used for a same sex wedding.
Something that was mentioned in a Vox article today was that “generally applicable” laws that have secular exceptions must accomodate religious exceptions as well. So unless it is illegal to discriminate against gay couples in all circumstances as part of a business, then someone doing it for religious reasons must also receive an exception. And the argument that the cake shop’s lawyers are using is that cake shops were allowed to discriminate against Christians who wanted a Bible verse on their cake.
It seems to me that it’s pretty easy to decide this case. The reason we have anti-discrimination laws isn’t so we can protect people from getting their feelings hurt. It’s to create equality in the marketplace. As that pertains to buying cakes, it means that everyone should be able to buy a cake for their wedding. Having a religious exemption would not prevent any gay couple from getting a cake and it did not prevent this couple from getting a cake. So the religious exemption should be permitted.
Jim crow laws didn’t mean that blacks couldn’t use the bathroom, go to school, nor even sit at lunch counters. Segregation did not prevent them from doing any of those things.
Actually, it did mean they often had no access or poor access, which was the whole problem. And I’m sure you recognize that ending segregation had nothing to do with mere hurt feelings.
I’m sure *you *recognize the parallels to this case.