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Daniel2

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About Daniel2

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    Culturally-Mormon Gay Dad
  • Birthday 01/01/1973

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  1. Others beat me to the punch, so I think your question was answered already and won't elaborate further other than saying it's clear that the couple in question didn't start out by targeting or singling out Stutzman because of her beliefs; they simply anticipated the same amicable service they'd received from Arlene's flowers for the previous 9 years.
  2. Amulek, On 6/8/2019 at 1:51 PM, you said: Expressive conduct is generally considered to be protected by the First Amendment, even if the work in question can't be said to communicate any discernible message (e.g., a Jackson Pollock painting). On 6/8/2019 at 3:35 PM, Calm asked you a follow-up question: Could you please post a source for this as the legal commentary Daniel posted appears to view conduct differently. On 6/10/2019 at 8:27 AM, you responded to Calm's request to post a source for your legal commentary that refutes the case as quoted by myself by responding: HURLEY v. IRISH-AMERICAN GAY, LESBIAN AND BISEXUAL GROUP OF BOSTON, INC. Here, the court stated that "the Constitution looks beyond written or spoken words as mediums of expression. Noting that "symbolism is a primitive but effective way of communicating ideas," our cases have recognized that the First Amendment shields such acts as saluting a flag (and refusing to do so), wearing an armband to protest a war, displaying a red flag, and even "[m]arching, walking or parading" in uniforms displaying the swastika. As some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a "particularized message," cf. Spence v. Washington, would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll." [citations omitted, emphasis added] Which isn't terribly surprising. Art is generally considered to be inherently expressive and thus protected by the First Amendment. How does the WA court deal with the petitioner's claim that custom floral arrangements are art? By waiving their hand and declaring "that the regulated activity at issue in this case—Stutzman's sale of wedding floral arrangements—is not "speech" in a literal sense and is thus properly characterized as conduct." But I think that elides the point. The argument is that it is the creation of custom floral arrangements that should be considered art - and thus afforded speech protections - not merely the sale of already made goods. You even got a couple of "Likes" for your post above, courtesy of USU78 and Anijen. The great irony in your employment of Hurley as an example that is supposed to refute the legal case I quoted is that not only was Hurley already actually examined and employed by WA's Supreme Court in their ruling against Arlene's flowers, the rub is that I even quoted that portion--about Hurley and why the court found it different than the questions in Arlene's flowers--in the very same post that prompted Calm asked you to provide a citation that refutes the case I quoted! It's on page four of this thread and was posted at 9:25 AM this past Saturday. For some reason, when I try to repost it here, I keep getting a 403 Error message, but you're welcome to go back and read it. EDITING to add in the quote in question: Stutzman contends that her floral arrangements are "speech" for purposes of First Amendment protections because they involve her artistic decisions. Relying on the dictionary definition of "art," as well as expert testimony regarding her creativity and expressive style, she argues for a broad reading of protected speech that encompasses her "unique expression," crafted in "petal, leaf, and loam." Ingersoll and the State counter that Stutzman's arrangements are simply one facet of conduct—selling goods and services for weddings in the commercial marketplace—that does not implicate First Amendment protections at all. We agree that the regulated activity at issue in this case—Stutzman's sale of wedding floral arrangements—is not "speech" in a literal sense and is thus properly characterized as conduct. But that does not end our inquiry. The Supreme Court has protected conduct as speech if two conditions are met: "[(1)] [a]n intent to convey a particularized message was present, and [(2)] in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it." Recent cases have characterized this as an inquiry into whether the conduct at issue was "inherently expressive." Stutzman's floral arrangements do not meet this definition. Certainly, she argues that she intends to communicate a message through her floral arrangements. But the major contest is over whether Stutzman's intended communications actually communicated something to the public at large—whether her conduct was "inherently expressive." And her actions in creating floral arrangements for wedding ceremonies do not satisfy this standard. The leading case on the "inherently expressive" standard is FAIR. The plaintiffs in FAIR—an association of law schools and faculty members—challenged the constitutionality of a law that required higher education institutions to provide military recruiters on campus with access to facilities and students that was at least equivalent to that of the most favorably treated nonmilitary recruiter. The FAIR Court ruled that the law schools' conduct in denying military recruiters most-favorable-recruiter access to students was not protected by the First Amendment because it was not "inherently expressive." It explained that additional speech would be required for an outside observer to understand that the schools' reason for denying militaiy recruiters favorable access was to protest the military's "Don't Ask, Don't Tell" policy. Stutzman's refusal is analogous. The decision to either provide or refuse to provide flowers for a wedding does not inherently express a message about that wedding. As Stutzman acknowledged at deposition, providing flowers for a wedding between Muslims would not necessarily constitute an endorsement of Islam, nor would providing flowers for an atheist couple endorse atheism. Stutzman also testified that she has previously declined wedding business on "[m]ajor holidays, when we don't have the staff or if they want particular flowers that we can't get in the time frame they need." Accordingly, an outside observer may be left to wonder whether a wedding was declined for one of at least three reasons: a religious objection, insufficient staff, or insufficient stock. Stutzman argues that FAIR is inapposite and that we should instead apply Hurley. Hurley held that a state anti-discrimination law could not be applied so as to require a private parade to include marchers displaying a gay pride message. Stutzman claims Hurley recognizes her First Amendment right "to exclude a message [she] did not like from the communication [she] chose to make." The Court noted that the parade's "inherent expressiveness" distinguished it from the places traditionally subject to public accommodations laws—places that provide "publicly available goods, privileges, and services." Hurley is therefore unavailing to Stutzman: her store is the kind of public accommodation that has traditionally been subject to antidiscrimination laws. See Elane Photography, 309 P.3d at 68 (rejecting photographer's reliance on Hurley because state antidiscrimination law applies not to defendant's photographs but to "its business decision not to offer its services to protected classes of people"; concluding that "[wjhile photography may be expressive, the operation of a photography business is not").' United States Supreme Court decisions that accord free speech protections to conduct under the First Amendment have all dealt with conduct that is clearly expressive, in and of itself, without further explanation. See Hurley (parades); United States v. Eichman (burning the American flag), 2533, 105 L. Ed. 2d 342 (1989) (burning the American flag); United States v. Grace (distributing leaflets outside Supreme Court building in violation of federal statute); Nat'I Socialist Party of Am. V. Village of Skokie, ('"[m]arching, walking or parading'" while wearing Nazi uniforms); Smith v. Goguen (treating flag '"contemptuously"' by wearing a small American flag sewn into the seat of one's pants); Wooley v. Maynard (state motto on license plates); Spence (displaying American flag upside down on private property with peace sign superimposed on it to express feelings about Cambodian invasion and Kent State University shootings); Cohen v. California (wearing jacket emblazoned with the words "'F**k the Draft'"); Schacht V. United States (wearing army uniform in short play criticizing United States involvement in Vietnam, inasmuch as it does not tend to discredit the armed forces); Tinker v. Des Moines Indep. Cmty. Sch. Dist. (wearing black armbands to protest Vietnam conflict); Brown v. Louisiana (sit-in to protest "whites only" area in public library during civil rights struggle); Cox v. Louisiana (giving speech and leading group of protesters in song and prayer in opposition to segregation); Edwards v. South Carolina, (peaceful march on sidewalk around State House grounds in protest of discrimination); W. Va. State Bd.of Educ. V. Barnette (refusing to salute the American flag while saying pledge of allegiance); Stromberg v. California, (peaceful display of red flag as a sign of opposition to organized government). Stutzman's conduct—whether it is characterized as creating floral arrangements, providing floral an"angement services for opposite-sex weddings, or denying those services for same-sex weddings—is not like the inherently expressive activities at issue in these cases. Instead, it is like the unprotected conduct in FAIR. As others have suggested, it's puzzling that some seem to be continually weighing in on the matter without actually reading the case itself or even what's already been posted here in the thread. I don't understand that seemingly willful ignorance to a topic one participates in. 😳 To make a long story short, then, Calm, no.... despite Amulek's invocation of it as evidence that contradicts what I or the ruling are saying, Washington's Supreme Court rejected Hurley as applicable in this case. When a business owner chooses to engage in regulated commerce, such as either a) making and selling flower boquets (as in Arlene's Flowers, as decided currently by the Supreme Court of Washington State; TBD by SCOTUS) or b) of documenting a marriage as a wedding photographer (as in the case of Elane's photography, as decided by SCOTUS when they decline to intervene upon appeal) neither set of conduct classifies as First Amendment-protected speech.
  3. Anijen, If I understand you correctly, then, your comment that I am overlooking or only seeing what I want to see isn't based on any alleged misunderstanding of what the Washington ruling actually says or means, but is more based on your opinion that Washington's ruling won't stand/may be overturned....? If that's the case, a couple of things: I freely admit that any law may ultimately be overturned by the court system. But unless/until it is, the Supreme Court of the State of Washington is the latest and most recently binding word on the matter. I prefer to rely on the latest ruling, coupled with the preponderance of legal precident quoted in the ruling, rather than on unsubstantiated or unsupported assertions made by lay individuals that Washington interpreted the law wrong or didn't apply the law correctly. If/when SCOTUS overturns Washington, I will be happy to admit that Washington got it wrong. But until then, I don't think I'm overlooking anything---in fact, my practice and preference is to stay squarely within the bounds of the most recent court's ruling at the highest judicial level. From my perspective, to assert anything different is to ignore the current legal reality (albeit candidly admitting that it's subject to review by a higher judicial branch up and until SCOTUS overturns, sustains, or declines to hear the case).
  4. I have several thoughts about what you wrote above which I will space over a series of posts, since my first point will quote from the ruling itself and will be somewhat lengthy. I understand how the account about Rosa Parks, which occurred 64 years ago and galvanized the civil rights movement concerning racial equality and ultimately ended up in our history books, has been the subject of historical revisionism, with potential embellishments and omissions adding to and potentially white-washing some aspects of the story. After all, the event happened 64 years ago, and also occurred at a time when media exposure was far more limited than we've become accustomed to, today. I'm actually curious how aware the public and courts were at the time of Rosa Park's activism, and will be pursing that in my own further research now that it's piqued my own curiosity over the matter. That said, even if Rosa Parks was more of a conscious activist, how much does it change the narrative? Does it means she is worthy of vilification or nefarious motives? Was she any less sincere in her desire to bring about an end to unjust racial discrimination, segregation, et all? Do any of us today think that forcing blacks to sit at the back of the bus and allow whites to have the preferred seats should have continued or is something society should bring back? Is conscious activism in pursuit of equal treatment for a newly emerging protected class somehow 'worse' than accidental victimization? Is it wrong for those who feel they are denied justice to exercise their government-mandated right to seek redress through the court system...? I'm not so sure that conscious activists like Rosa Parks are worthy of scorn or derision. Is she any less a hero that she stood her ground, knowing the cause she was hoping to engage in? All of the above said, I still maintain that the two cases in this thread are not like Rosa Parks in any sense that Ingersol and Freed were NOT "innocent buyers sincerely wanting a specific provider to assist them," and they did NOT target Arlene's Flowers "because of who they are and their personal standards." Quoting once again from the ruling in the link I provided earlier, here's pages 5-9 that addresses your points (again, I've removed the legal citacions to make it more readable, but those citacions can be found in the link previously provided):
  5. I'm not sure what you think I'm ignoring or seeing only what I want to see....? I've been quoting from the ruling itself. Everything else that you wrote above is in keeping with what my understanding is and has been.... In fact, the portions of the ruling I quoted touch on the numerous SCOTUS rulings about conduct as speech, including your flag burning example. What part do you feel I'm not grasping?
  6. Not sure how it applies to performers. I’m not aware of any cases that have addressed this yet.
  7. While you are entirely entitled to your own opinion (as we all are), the courts and law disagree and the legal reality doesn't mesh with your view.
  8. The irony of your stance is that public accommodation laws protect and preserve religious tolerance and freedom from discrimination in the public realm based on religion, just as they do for race, color, gender, national origin, etc. For some strange reason, you see them as a threat when those same protections are afforded to sexual orientation as they are the other classes. Of course, maybe you object to their application to your religion as much as you do to gender or sexual orientation..... perhaps I just haven’t seen you be as vocally critical of the protections afforded to your religion. Either way, it’s clear that in so far as how those public accommodation protections have been applied to religion and race over the last several decades haven’t resulted in the religious or racial oppression you’re imagining and the fear mongering you seem to be hoping to inspire now that sexual orientation is being afforded the same equal protections. After all, even Ms. Stutzman acknowledged that arranging and selling flowers for Islamic or atheist weddings did not violate her religious convictions, nor was it an endorsement on her part of said ideologies. All other things being equal, government’s requirements holding business owners accountable to treat their diverse customers who’s religion, race, color, creed, sexual orientation, gender, or national origin are different from our own is not unconstitutional and is necessary to preserve equality and maintain freedom from oppression, and not diminish either.
  9. Hm. I appreciate that you’ve taught me something new.... Honestly, I hadn’t taken the time to study Rosa Parks’ story since what I learned in High School, so after this post, I did some research and found she clearly was more of a conscious activist that I was aware of (see: https://www.google.com/amp/s/time.com/4125377/rosa-parks-60-years-video/%3famp=true). With my gratitude for teaching me something new, I now understand I was wrong and agree with you: according to Ms. Stuzman and the Ingersoles themselves, as both parties proffered to the court, the Ingersole’s actions absolutely are far more innocent/less calculated than Ms. Park’s were. I’m not sure why you think I’m being “snotty.” I AM encouraging you to consider reading cases instead of relying on previous and potentially biased info before continuing to make unsubstantiated assertions about circumstances about which you haven’t taken the time or effort to read for yourself. That isn’t meant to be snotty—it’s simply a good practice and my own personal standard taught to me since I was a kid by both my parents and those responsible for my education. When I am introduced to a new idea or info about which I am unfamiliar, I find it best to acknowledge my mistake and be open to new info (case in point: what you’ve taught me about Rosa Parks, and my subsequent inquiry into information about her life and motives).
  10. I appreciate your candor in acknowledging you didn’t familiarize yourself with the two cases at hand in this thread before wrongly declaring that “Not a single one of these cases were pulled out of the hate i.e. innocent buyer sincerely wanting a specific provider to assist them.“ Clearly, these two cases certainly aren’t as you mistakenly claimed. And in the case involving Arleena’s flowers, I’d very much liken the innocence of the parties denied equal services to be similar to that of Rosa Parks, insofar as the men innocently expected the same services from a florist they had patronized and been friendly with for years.
  11. I can’t comment on your hypothetical scenario, but am happy to clarify and emphasize that I’ve tried to ensure that everything I have said is not my opinion; I’ve tried to keep my comments within the actual rule of law in the United States based on the legal cases I’m quoting. I’m happy to correct anything I’ve said if you can provide the current applicable legal citations that prove otherwise. Whatever your opinion means as expressed in your first sentence above, if one wants to understand what it means in the context of the actual legal realities of our nation, one has to consider the bounds established by the rulings in this thread.
  12. It appears you may not have read this recent ruling... Arleena’s Flowers most definitely was chosen by an innocent buyer who sincerely wanted her business—the couple in question had used her for years for all their floral needs, and they weren’t even the ones who brought the lawsuit—it was the State of Washington. Additionally, the case in the OP of this thread wasn’t and hasn’t even been sued by ANY same-sex couple; it’s the business owner preemptively seeking a license to deny services to same-sex couples. None of the above paragraph is disputed by the defendants or platiffs in the cases being discussed. With all of the above being undisputed facts, it’s puzzling you would say that “Not a single one of these cases were pulled out of the hate i.e. innocent buyer sincerely wanting a specific provider to assist them. They are targeted because of who they are and their personal standards,” since that is false with both the legal cases being discussed in this thread. What evidence or references do you have, if any, that suggests these businesses were targeted by same-sex couples because of their beliefs? What appears to be a blithe dismissal of public accommodation laws ignores the harsh reality faced by minorities throughout history that prompted their creation over half a century ago, and isn’t contested insofar as it relates to discrimination based on religion, race, ableness, etc., and only has become problematic when religious conservatives are forced to treat patrons’ gender and/or sexual orientation the same way that they’re legally required to treat their patrons’ race, religion, or status as a member of any of the protected classes.
  13. But an artist who creates and sells her/his own original works is different than one who hangs up her/his shingle accepting commissions to create non-inherently-expressive yet still-creative products like cakes, flowers, or documentary videos and/or photographs. The law is clear on this and has been settled for decades on the matter, whether or not you agree.
  14. Art created by an artist for her/his own sake is not regulated in the same way that commercially-regulated artistic creations for sale to the general public are. In the first context, you’re correct that an artist has a right to their own artistic expression, but the second must abide by public accommodation laws. Business owners offering creative services to the general public are different and must abide by the legal regulations in the business realm. Any business owner who incorporates inherently-expressive (explicit) derogatory messages into their product which normally doesn’t carry such derogatory messages (i.e. a baker baking a wedding cake that’s typically wordless with added words saying “XXX is sinful” for customers who are members of the XXX protected class) would be breaking the law, just as any business owners that refuse to sell goods or services.
  15. Per my post above and the ruling quoted therein, your first sentence above is accurate, and again, per the ruling, your second sentence is legally incorrect.
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