I was thinking what a good cake that sounded!
It had chocolate, of course it was good. This might be for the “interesting fact” thread, but the scientific/botanical name for the tree that grows the cocoa pods is a theobroma cacao, which means food of the gods.
I knew that. And it’s true. 
I am a non-observant (but educated) Jew. It is my understanding that it is common for observant Jews to hire a Gentile to perform restricted but necessary actions for them. The mildly offensive term for such a person is “Shabbos Goy.”
Would delivering a sold product qualify? I would think so.
I once attended a Sabbath dinner with some observant Orthodox Jews, friends I met at a language class at MSU in East Lansing, MI. One guy told me how modern tech was embraced by housewives who didn;t have to have someone else do certain tasks. They loved having ovens, or slow cookers, that had on/off switches to begin and end cooking during the restricted times. Or lights that could be timed to turn on or off, simple things like that.
You can buy appliances with a sabbath mode! (It sounds more rock and roll than it is)
Those are probably even more advanced than what was available forty years ago.
In 303 Creative, the proposed business only created custom website designs. They did not plan to sell stock website designs, and I don’t see how the decision could be construed as to open the doors for off-the-shelf products.
~Max
No, in 303 Creative, the proposed business didn’t do anything. We can’t draw any conclusions based on what the business does.
Key word proposed. They did, in fact, create one website design. Not for a real customer, mind you. It was submitted to the district court…
Here it is, starting on page 90 of the PDF.
http://files.eqcf.org/wp-content/uploads/2018/03/19917840-Appendix_Vol2.pdf#page=90
~Max
Gay people should unite and form a religion.
It will confuse the heck out of everybody.
After all this effort for changing legislation, only to end in complete chaos, haha!
nm
~Max
I’ve been meaning to follow up on this analogy to a “Whites only” sign.
So far as I can tell there is no case law directly on point, that is, holding that a sign saying “Whites only” is commercial speech beyond protection under the free speech clause. I read FAIR four times over. The central ruling in FAIR was that the speech being compelled was merely incidental and not expressive, which is a huge and relevant distinction from the 303 Creative case. But I looked for the Whites only example in the dicta, which might still be persuasive. This is the excerpt from 537 U.S. 47, 62, in context (emph. mine):
Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say. In West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), we held unconstitutional a state law requiring schoolchildren to recite the Pledge of Allegiance and to salute the flag. And in Wooley v. Maynard, 430 U. S. 705, 717 (1977), we held unconstitutional another that required New Hampshire motorists to display the state motto–“Live Free or Die”–on their license plates.
[…]
This sort of recruiting assistance, however, is a far cry from the compelled speech in Barnette and Wooley. The Solomon Amendment, unlike the laws at issue in those cases, does not dictate the content of the speech at all, which is only “compelled” if, and to the extent, the school provides such speech for other recruiters. There is nothing in this case approaching a Government-mandated pledge or motto that the school must endorse.
The compelled speech to which the law schools point is plainly incidental to the Solomon Amendment’s regulation of conduct, and “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 502 (1949). Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading “White Applicants Only” hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct. See R. A. V. v. St. Paul, 505 U. S. 377, 389 (1992) (“[W]ords can in some circumstances violate laws directed not against speech but against conduct”). Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto “Live Free or Die,” and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.
I re-read R.A.V. v. St. Paul. That’s the burning cross case - it has nothing to do with commercial speech or “whites only” signs. A teenager burned a cross on a Black family’s lawn in violation of a hate speech local ordinance. The central holding was that burning a cross was an exercise of free speech and the ordinance was struck down. The FAIR court was citing dicta. That being said dicta can be persuasive, so here it is in context, from 505 U.S. 377, 389 (emph. mine):
A State could, for example, permit all obscene live performances except those involving minors. Moreover, since words can in some circumstances violate laws directed not against speech, but against conduct (a law against treason, for example, is violated by telling the enemy the Nation’s defense secrets), a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct, rather than speech. See id., at 571 (plurality opinion); id., at 577 (SCALIA, J., concurring in judgment); id., at 582 (SOUTER, J., concurring in judgment); FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411, 425 -432 (1990); O’Brien, 391 U.S., at 376 -377. Thus, for example, sexually derogatory “fighting words,” among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices, 42 U.S.C. 2000e-2; 29 CFR 1604.11 (1991). See also 18 U.S.C. 242; [505 U.S. 377, 390] 42 U.S.C. 1981, 1982. Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.
I direct your attention to the last sentence just quoted, which belies a key distinction made by the Court in the R.A.V. case, the FAIR case, and the 303 Creative case (emph. mine):
Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.
In R.A.V., the State of Minnesota, via St. Paul’s hate speech ordinance, was found to have targeted conduct on the basis of its expressive content. “[T]he ordinance applies only to ‘fighting words’ that insult, or provoke violence, ‘on the basis of race, color, creed, religion or gender.’ Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects. See Simon & Schuster, 502 U.S., at 116 ; Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 229 -230 (1987).” 505 U.S. 377, 391 (emph. mine).
In FAIR, the federal government, via the Solomon Amendment, was found not to have compelled expressive speech. The government targeted conduct, but it didn’t compel expressive speech. “In this case, accommodating the military’s message does not affect the law schools’ speech, because the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade organizer’s choice of parade contingents, a law school’s decision to allow recruiters on campus is not inherently expressive. Law schools facilitate recruiting to assist their students in obtaining jobs. A law school’s recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper; its accommodation of a military recruiter’s message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school.” 547 U.S. 47, 64 (emph. mine).
Now in the 303 Creative case, you (Hamlet) appeal to the above line of case law cited in Sotomayor’s dissent as precedent that First Amendment’s speech clause does not extend to state laws compelling or proscribing expressive commercial speech. Having reviewed the cites, so far as I can tell, the case law not only has no precedential value (that is, there was no “whites only” case) but is explicit that it does extend to expressive speech.
Now, I am of the opinion that a whites only sign is not inherently expressive. I mean it doesn’t express a political idea, at least not necessarily. So such a case, if it existed, would be more similar to the facts of FAIR. I think the government would be able to prohibit such signage with a nondiscrimination statute. A manifesto about the benefits of segregation, posted by the door of a public business, would be more like R.A.V. If the state construed a nondiscrimination statute to prohibit such signage, on the basis that it amounted to de facto discrimination against customers on the basis of race, that statute (or at least that interpretation) should be stricken down as a violation of the First Amendment. If there was evidence of the business actually turning away a customer on account of his or her race, that would be a wholly different set of facts.
Which leads to 303 Creative, where a corporation plans on going into business and turning away customers not on account of their race or orientation but on account of the idea the corporation would have to express in order to fulfill the customer’s order. The State of Colorado, fatally in my opinion, stipulated that the state nondiscrimination law applied to those hypothetical facts, and would compel Ms. Smith to create custom websites promoting ideas she disagrees with. The facts of 303 Creative are directly opposed to FAIR and the nonexistent whites only case.
~Max
Colorado’s antidiscrimination law explicitly recognized sexual orientation as a protected characteristic. Colorado’s law was found to violate the Fourteenth Amendment. Because freedom of speech is a fundamental liberty and the State couldn’t convince the Court that its abridge freedom of speech was narrowly tailored to remove discrimination in places of public access (that the State met “due process of law”). What makes you think federal legislation will fare better? The First Amendment explicitly bars Congress from abridging the freedom of speech, and the Fifth Amendment’s due process clause is identical to the Fourteenth Amendment’s.
All the rationale in the 303 Creative decision applies with equal force to a hypothetical federal antidiscrimination law.
~Max
tl;dr:
- R.A.V.: Burning cross case. Government cannot target discriminatory conduct with the effect of prohibiting speech on basis of expressive content.
- FAIR: Force law school to host military recruiters on campus. Government can target discriminatory conduct with the effect of compelling speech, provided the compelled speech is not expressive.
- 303 Creative: Gay wedding website case. Government cannot target discriminatory conduct with the effect of compelling expressive speech.
~Max
What would help might be if businesses don’t want to serve gay people, they have to post that publicly with a sign so indicating, on the door.
In an ideal world straight people would be allies and enquire up front, ‘Do you serve gay people here?’
Well, I’d say the government is allowed to outlaw such signs. And the government is allowed to punish businesses that turn away gay people because they are gay.
Again, I think Colorado made a mistake in stipulating to some of the facts they did. In the 303 Creative case, Colorado admitted that their law applies even though Ms. Smith wouldn’t turn away people because they are gay, only if they want her to endorse a gay wedding.
~Max
Then how does any existing federal antidiscrimination law work?
So far as I can tell, Title II has never been challenged as an affront to the First Amendment’s freedom of speech clause. The case involving a ‘whites only’ sign, alluded to by previous posters, apparently doesn’t exist. (Unless I missed it, very possible.)
Whereas my personal opinion is that such a sign could be prohibited, but a posted manifesto promoting segregation (but not actually prohibiting minority customers from entering the premises) could not be censored. I just can’t find a case that’s on point.
~Max
I’m following up on the commercial speech angle, and rely on the Hudson Court’s primer to commercial speech. The Court must balance the State’s interests against the interests of the speaker - purely commercial interests are not afforded so much weight, and lead to intermediate scrutiny. Colorado’s antidiscrimination law would certainly pass intermediate scrutiny - prohibiting businesses from discriminating against people on the basis of protected characteristics is substantially related to the goal of removing such discrimination from places of public access.
Assuming for the sake of argument that 303 Creative’s website designs are “commercial” speech, I suggest that the speech involved in the promotion and endorsement of a particular marriage is “inextricably intertwined” with otherwise fully protected endorsement of that type of marriage. Riley v. Nat’l Fed’n of the Blind of N. Carolina, Inc., 487 U.S. 781, 796 (1988). 303 Creative’s right to freedom of speech is equally implicated when compelled to endorse a type of marriage. Therefore it does not retain its commercial character for First Amendment purposes, and is fully protected. Colorado should have to meet strict scrutiny - to show that their law is narrowly tailored to further a compelling government interest. (Gorsuch conceded, and I agree, that the interest of nondiscrimination in places of public access is compelling.)
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 562–64 (1980)
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Nevertheless, our decisions have recognized “the ‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455–456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978); see Bates v. State Bar of Arizona, supra, 433 U.S., at 381, 97 S.Ct., at 2707; see also Jackson & Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 Va.L.Rev. 1, 38–39 (1979).5 **2350 The *563 Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. 436 U.S., at 456, 457, 98 S.Ct., at 1918, 1919. The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.
The First Amendment’s concern for commercial speech is based on the informational function of advertising. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 783, 98 S.Ct. 1407, 1419, 55 L.Ed.2d 707 (1978). Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, Friedman v. Rogers, supra, at 13, 15–16, 99 S.Ct., at 896, 897; Ohralik v. Ohio State Bar Assn., supra, at 464–465, 98 S.Ct., at 1923–1925, or *564 commercial speech related to illegal activity, Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376, 388, 93 S.Ct. 2553, 2560, 37 L.Ed.2d 669 (1973).6
If the communication is neither misleading nor related to unlawful activity, the government’s power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State’s goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government’s purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.
Riley v. Nat’l Fed’n of the Blind of N. Carolina, Inc., 487 U.S. 781, 795–96 (1988) (emph. mine):
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We turn next to the requirement that professional fundraisers disclose to potential donors, before an appeal for funds, the percentage of charitable contributions collected during the previous 12 months that were actually turned over to charity. Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech. We therefore consider the Act as a content-based regulation of speech. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256, 94 S.Ct. 2831, 2839, 41 L.Ed.2d 730 (1974) (statute compelling newspaper to print an editorial reply “exacts a penalty on the basis of the content of a newspaper”).
The State argues that even if charitable solicitations generally are fully protected, this portion of the Act regulates only commercial speech because it relates only to the professional fundraiser’s profit from the solicited contribution. Therefore, the State asks us to apply our more deferential commercial speech principles here. See generally Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976).
It is not clear that a professional’s speech is necessarily commercial whenever it relates to that person’s financial motivation for speaking. Cf. *796 Bigelow v. Virginia, 421 U.S. 809, 826, 95 S.Ct. 2222, 2235, 44 L.Ed.2d 600 (1975) (state labels cannot be dispositive of degree of First Amendment protection). But even assuming, without deciding, that such speech in the abstract is indeed merely “commercial,” we do not believe that the speech retains its commercial character when it is inextricably intertwined with otherwise fully protected speech. Our lodestars in deciding what level of scrutiny to apply to a compelled statement must be the nature of the speech taken as a whole and the effect of the compelled statement thereon. This is the teaching of Schaumburg and Munson, in which we refused to separate the component parts of charitable solicitations from the fully protected whole. Regulation of a solicitation “must be undertaken with due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech …, and for the reality that without solicitation the flow of such information and advocacy would likely cease.” Schaumburg, supra, 444 U.S., at 632, 100 S.Ct., at 834, quoted in Munson, 467 U.S., at 959–960, 104 S.Ct., at 2848. See also Meyer v. Grant, 486 U.S. 414, 422, n. 5, 108 S.Ct. 1886, ––––, n. 5, 100 L.Ed.2d 425 (1988); Thomas v. Collins, 323 U.S., at 540–541.
~Max