On appeal, they certainly challenged the substance of the factual finding. They specifically argued that they told the couple that they would would design and create any other bakery product for them except a custom wedding cake. The cake shop also argued specifically on appeal that the CRHRC order forces them to create and convey a
celebratory message about same-sex marriage when making cakes for same-sex weddings, and the Colorado Court of Appeals decided, upon no factual record that spoke to the issue, that “…such conduct, even if compelled by the government, is not sufficiently expressive to warrant First Amendment protections.” There’s no factual finding here; the court merely repeats the ALJ’s conclusion that because Phillips refused to prepare a cake for the couple before any substantive discussion of the cake’s design, the ALJ could not determine whether Craig’s and Mullins’ desired wedding cake would constitute symbolic speech subject to First Amendment protections.
How in the world is that a sufficient factual record?
Most lawyers have little more than their opinions to guide them. Aside from a few constitutional types we have no better an opinion than you. I think it John is right on number 2 but number 1 is iffy. How do we know who the gay diners are and who the non-gay diners are?
I think there are a lot of people outside of liberal bubble America who think this as clear as some of the inside the bubble liberals on this site seem to think. They were cool with gays serving in the military. They were cool with gays getting married. They were cool with gays adopting orphans. They are cool with gays being coaches and teachers and all that stuff. But when gays are trying to force people to do things they don’t want to do and drag this baker through the courts after they got a cake down the street that they wanted. One that most people even on THIS site seem to think the baker should have been able to refuse making. I dunno…
Women only bars seems fine to me. Not just for lesbians but women who want to go grab a drink in a grope free, testosterone free environment, to watch Outlander with other women.
Oddly, women seem to be somewhat welcome at gay bars when travelling with gay men.
OK fine then a feminist artist who does not have to attend the inauguration.
Because you’re ordering off a menu and not making a request for special gay themed carrot flowers.
There is no artistry in renting a space. This would be a pure religious freedom case and as someone pointed out before, religious freedom rarely trumps neutrally applied laws.
I always thought that summary judgement without stipulated facts were supposed to view the facts in the light most favorable to the non-moving party. IOW, you can’t find for the gay couple on summary judgement unless you give the baker every benefit of you doubt, that includes accepting the baker’s version of the facts. That means the trial level court did not care whether the baker would have had to make a design incorporating gay buttsecks when they found for the couple.
It was a summary judgment with stipulated facts; the parties in fact filed cross-motions for summary judgment. The baker didn’t argue a contrary version of the facts until now. Had he done so, the ALJ would have been compelled to deny entry of a summary final order.
That is not a challenge to “the substance” of any factual finding (whatever that means). Whether they agreed to make other bakery products has nothing to do with whether they refused to make the wedding cake before or after discussion of the cake design. To challenge the underlying finding, Phillips would have to have argued that he did talk to the couple about the cake design. He never has. He has only challenged the conclusions of law.
The fact that Phillips refused before discussing the issue is a factual finding, and it was unchallenged by Masterpiece. I think you are confused by the term “factual finding” in this context. The ALJ (and CRC) did not have to weigh the parties’ evidence as to what was discussed, because the facts that underlay the conclusion of law were not (then) in dispute.
To analogize, let’s pretend Dan is suing John. Dan says that John punched him in the face. John says that he cannot be liable for the punch, because he had a syncopal episode and was unable to control his movements. Dan - for whatever reason - does not challenge these assertions. The court grants John summary judgment, as it concludes that John lacked the intent to commit a battery. Dan cannot argue for the first time on appeal that there was no seizure and John was just fine at the time of the punch - regardless of whether he should have. I don’t know if new issues can be raised for the first time on appeal in criminal proceedings, but they can’t in civil proceedings unless the case originates in an administrative tribunal which is permitted to hear and decide only certain issues (e.g., it may not rule on constitutional questions). Even in that case, parties are obligated to build whatever factual record they feel will be necessary to support the new issue on appeal during the administrative proceeding.
From the Colorado Court of Appeals’ opinion:
In other words, from start to finish this litigation has been based on a stipulated record. As I explained, Waggoner is now trying to add facts that - if true - should have been adduced at the trial level.
Nothing about being forced to design cakes with same-sex themes - only a general challenge to being required to make cakes for same-sex weddings.
So, we’re back to whether simply having one’s cake present at a particular event is protected speech. The particulars of the cake are not relevant to this case.
I’m suggesting that the set of stipulated facts were insufficient to allow the ALJ to reach his conclusion of law. That is, while Masterpiece admittedly did not contest the claim about denial prior to discussing specific design, their contention is that they have NO “off-the-shelf” wedding cakes. Therefore, any cake done for a wedding would involve artistic creation.
Nothing in the couple’s alleged facts contradicts this.
Now, you tell me, because maybe my lack of civil procedure smarts is biting me in the ass, here: to preserve their record, was Masterpiece required to allege, specifically, their lack of cookie-cutter (if you’ll pardon the baking pun) vending of wedding cakes? Wouldn’t that be the industry standard? Must they allege that they do what ordinary high-end wedding cake designers routinely do? The very fact that the proprietor met with them at all supports this claim; if they were ordering a standard cake, how is a meeting necessary?
I guess I’m willing to accept that Masterpiece procedurally defaulted, if indeed they did. But that only means that Masterpiece II is on the horizon, with a factual record that addresses that failure. (Summary judgement not really a huge player in crim law ).
Their legal argument isn’t that they don’t offer “standard” wedding cakes, and as far as I can tell nobody considers that to be a determinative factor. Masterpiece’s argument is that making a custom cake inherently expresses approval of a same-sex wedding. The facts are not fatal to that argument.
What the facts don’t permit them to do is argue that they were effectively compelled to “speak” in favor of the wedding by making the cake the CraigMullinses wanted. That’s because they did not establish that there was any speech involved other than the presence of the cake at a wedding (since there wasn’t any discussion of cake design).
I wouldn’t call it a procedural default exactly. I think it’s more that whoever represented them at the time had a much more expansive view of speech protections, and didn’t think of Plan B.
And yes, I agree this probably means we are coming back for Masterpiece II - in fact, I alluded to that in post 1007:
As someone who makes a portion of my income in artistic endeavors, bullshit. I make glass beads, if they end up in a wedding ceremony, a funeral, mixed into a string of rosary beads, or some kid ends up choking to death on one, I don’t need to approve of their mate, become Catholic, or assume responsibility for the kids death.
Baking a cake is not dictated by religious practices, making frosting roses and garlands does not imply anything religious. Application of strands of little pearl looking sugar beads does not require Devine guidance. I seriously doubt any religious laws/texts have anything to say about wedding cake decorating.
And yet bakers have found secular reasons to refuse to decorate cakes a certain way. A Wal-mart refused to make a pro-police cake, another Colorado baker refused to make a cake with an anti-gay message.
So you’re argument is that they should have made the cakes as requested? Well, I’d think we’d agree on the Wal-mart, since that was rogue employees and not Wal-mart’s official policy.
The key question here is, “can bakers refuse to make custom cakes with decorations they object to?” The Colorado civil rights commission says yes. So even if the baker “loses” the case, he still doesn’t have to provide anything but pre-made cakes for gay weddings. Or a “custom” cake that’s indistinguishable from the cakes he makes for straight weddings.
Oh, then you should go tell that baker and the supreme court that.
On second thought, you may be implying that there is some religion or sect that has a problem using those words at all. If that is the case, why don’t you just go ahead and say that, rather than trying to get us to guess what religion you happen to be thinking of?
I think he means that there are some religious laws against incest or underage marriages or polygamy or stuff like that. Some even forbid “mixed” marriages between the correct religion and “those other folks”.
A baker could claim that “May our marriage be blessed by God” is against his religious beliefs, but in order to make that claim, he would have to deny that message to all customers, not just to some of them.
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