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Married gay couple challenges UT's surrogacy law/Colorado Baker Heads to SCOTUS

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Amulek    196
2 hours ago, Daniel2 said:

For the life of me, I truly, genuinely, cannot understand how those defending the baker cannot see that granting businesses the ABILITY to discriminate on the basis of the "deeply-held religious beliefs" of business owners/clerks (even in the name of "creative freedom of speech") UNDERMINES protection AGAINST discrimination because OF religion.  By allowing people to discriminate on the basis of their religious views, you are destroying the very protections safeguarding against discrimination based ON religion.  No longer is religion protected in any realm where services can be linked to any sort of religious objection, because now anyone should be able to refuse services because they disapprove of someone else.  How is this not obvious? 

I agree that upholding the case in favor of the baker on 'free excise' grounds would be problematic. It would open the door to a ton of litigation and force courts to engage in a balancing test every time somebody makes a claim they they are refusing to serve someone based on their sincere religious beliefs. 

However, if the case is decided on 'free speech' grounds, then there will be little confusion about how courts are to proceed. They simply have to determine if the contested activity is artistic expression and then rule accordingly. So photographers, musicians, custom cake makers, etc. all make the cut. Caterers, limousine services, hotel rentals, etc. are not eligible for any special protections though because they aren't actually producing speech.

 

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Amulek    196
7 minutes ago, rockpond said:

It's sad to me that the Church's name will appear at the bottom of yet another amicus brief for the side of the argument that will be deemed unconstitutional.

I'm not sure how many of the amicus briefs you have read, but a casual perusing might convince you that the case isn't nearly as open-and-shut as many have made it out to be.

 

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kllindley    285
4 hours ago, Daniel2 said:

Kllindley,

This is not the first time you've accused me of "rudeness" and being "guilty of using inflammatory and emotion to shut out reasonable disagreement." (please note: my words in the post you were referring to were not directed at you, but were in regard to "The Alliance Defending Freedom," designated as a Hate Group by the Southern Poverty Law Center).

I've gone to great lengths to strive to be patient, respectful, rational, and reasonable in answering many of these same claims repeatedly spanning many years.  As I look back over my posts, despite being heartfelt (as in, "deeply and strongly felt") in my views, I don't believe I was being ill-mannered or inappropriate.

If you feel I'm being rude, as you've accused me of doing on multiple occasions, I'm happy to extend a friendly handshake, wish you well, and disengage from conversing further with you on these matters.

Another point comes to mind as I have been thinking about this thread.  I think part of what helped set the tone for my response was actually the article from Slate that you posted.  I read it carefully.  And although I can see how you might have meant to just point out the legal points, with the hyperlinks (which is valuable--Like I have tried to explain, I agree with the legal reasoning.) I think that the tone of the article is dismissive and mocking.  And I will own that I attributed that to you as well.  I tended to read it as though you were expressing those same opinions.  I apologize for that misattribution.  

 

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rockpond    5,080
4 hours ago, Amulek said:

I'm not sure how many of the amicus briefs you have read, but a casual perusing might convince you that the case isn't nearly as open-and-shut as many have made it out to be.

 

So you think the case will be decided in favor of the baker?

 

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Amulek    196
9 hours ago, rockpond said:

So you think the case will be decided in favor of the baker?

As I said before, the fact that the court took this case instead of the photography case tends to made me think that things don't look so good for the baker. 

However, that doesn't mean that the baker doesn't have a compelling argument; he does. And I think it is presumptuous to assume that he will clearly lose. 

For example, here is a link which outlines what a minimalist ruling in favor of the baker might look like. I can definitely see something like that happening. 

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rockpond    5,080
15 minutes ago, Amulek said:

As I said before, the fact that the court took this case instead of the photography case tends to made me think that things don't look so good for the baker. 

However, that doesn't mean that the baker doesn't have a compelling argument; he does. And I think it is presumptuous to assume that he will clearly lose. 

For example, here is a link which outlines what a minimalist ruling in favor of the baker might look like. I can definitely see something like that happening. 

Please don't misunderstand my position.  I think that the baker should be allowed to deny services to anyone for any reason.  How the court ought to decide the case isn't relevant to my comment.

Two points:

1.  As Mormons, I believe our faith demands that we make the cake.  That's loving thy neighbor as thyself.  So it is baffling to me why our church would sign on (yet again) to a political issue that is at odds with Christ's injunction.

2.  I think there is a high likelihood that ultimately, the baker's case will be deemed unconstitutional and the church will have argued on that unconstitutional side.  Certainly, the church can stand on principle and continue to claim that what the baker did was free exercise of religion or freedom of speech regardless of a court ruling.  But I still see it as the church getting too involved in politics and placing their name on something that isn't consistent with our religious ideals much like the church did in my state back in the 90's with Colorado's Amendment 2.

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Daniel2    1,599
6 hours ago, rockpond said:

1.  As Mormons, I believe our faith demands that we make the cake.  That's loving thy neighbor as thyself.  So it is baffling to me why our church would sign on (yet again) to a political issue that is at odds with Christ's injunction.

Just saw this and it made me smile and think of your post:

Quote

'Gayest Bake Sale Ever' challenges Mormon church support of baker refusing to make cake for gay wedding

By The Salt Lake Tribune, 9/18/2017

A group of Salt Lake City activists Monday protested the Mormon church’s support for a Colorado bakery shop owner who refused on religious grounds to make a cake for a same-sex wedding.

And they did it with cupcakes and cookies of their own at the “Gayest Bake Sale EVER!”

“Too often the church extends an olive branch in one hand while working local and national law against the queer community with the other,” said the event’s co-organizer Kat Kellermeyer in a statement. “I think it is important for youth to know there is a queer community that is here to support and love them, regardless of anything else.”

Proceeds from the sale at City Creek Park (on the corner of State Street and 2nd Avenue), are going to the Utah Pride Center to fund the LGBTQ+ Youth Survivors of Suicide Support Group, an initiative set to launch soon.

The Utah-based Church of Jesus Christ of Latter-day Saints and a majority of state senators signed on to a friend-of-the-court brief last week backing Denver baker Jack Phillips. His case — Masterpiece Cake Ltd. v. Colorado Civil Rights Commission — is pending before the U.S. Supreme Court.

 

Edited by Daniel2

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kllindley    285
On 9/18/2017 at 1:11 PM, Daniel2 said:

The answer is if a custom product is "inherently expressive," meaning, it contains letters or symbols which fall within the bounds of "inherently expressive" (words or symbols falling within the legal definition), a business owner does not have to provide that product (whether it's a cake baker, a printer, or a T-shirt manufacturer).

Additionally, businesses can decline to provide services for a variety of reasons, but not if it violates the protections of what the government deems "protected classes" (religion, race, age, gender, national origin, veteran status, etc.).  Political affiliation is not a protected class.

So, I know the pattern here is for me to make an argument, get called out/being told I am wrong/asked to substantiate a claim, me spending a lot of time doing additional research to document the claim, providing those references, and then never hearing back.  I'm not expecting the pattern to change here.  But I figure, since I've done a ton of additional reading, it still makes sense to relate what I have learned.

I wonder if anyone is familiar with how many Amici briefs have been filed in this case.  I'm counting 49 today.  I've now read through 4 in their entirety and scanned the arguments of 18 others.  This has significantly changed my opinion of the case.  It appears to be a clear case of religious discrimination on the part of the state of Colorado.  The idea that inherently expressive only applies to letters or symbols is not substantiated by case law.  It is a convenient dodge.  If that is what people think the law ought to say, then they need to make sure it says that.  

Further, the public accommodations law in Colorado is not being applied neutrally or generally.  There is documented evidence that businesses are allowed to discriminate against religious customers.

Has anyone else actually read the brief filed by the Church et. al.?  Because nobody is really responding to any of the claims and arguments there.  It seems like we're content to sit back and let critics say the Church is actively supporting anti-gay discrimination, when that is not at all what the brief argues. 

Also, I recommend the Amici Brief from 479 Creative Professionals and the one from Cake Artists (Not in support of either party) when trying to pretend that the idea of creative expression and speech is some settled issue.  

http://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/

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rockpond    5,080
4 minutes ago, kllindley said:

So, I know the pattern here is for me to make an argument, get called out/being told I am wrong/asked to substantiate a claim, me spending a lot of time doing additional research to document the claim, providing those references, and then never hearing back.  I'm not expecting the pattern to change here.  But I figure, since I've done a ton of additional reading, it still makes sense to relate what I have learned.

I wonder if anyone is familiar with how many Amici briefs have been filed in this case.  I'm counting 49 today.  I've now read through 4 in their entirety and scanned the arguments of 18 others.  This has significantly changed my opinion of the case.  It appears to be a clear case of religious discrimination on the part of the state of Colorado.  The idea that inherently expressive only applies to letters or symbols is not substantiated by case law.  It is a convenient dodge.  If that is what people think the law ought to say, then they need to make sure it says that.  

Further, the public accommodations law in Colorado is not being applied neutrally or generally.  There is documented evidence that businesses are allowed to discriminate against religious customers.

Has anyone else actually read the brief filed by the Church et. al.?  Because nobody is really responding to any of the claims and arguments there.  It seems like we're content to sit back and let critics say the Church is actively supporting anti-gay discrimination, when that is not at all what the brief argues. 

Also, I recommend the Amici Brief from 479 Creative Professionals and the one from Cake Artists (Not in support of either party) when trying to pretend that the idea of creative expression and speech is some settled issue.  

http://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/

While the church's reasons for joining in the amicus brief may entirely be tied to the issue of religious freedom that doesn't change the fact that they are backing a baker who has discriminated against a gay couple.  That means that they are supporting anti-gay discrimination.  I'm not sure how you can say that's wrong... unless you are going to tell me that the brief argues that the baker should have baked the cake (which, IMO, would align with our religious beliefs).

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Jeanne    2,560
29 minutes ago, rockpond said:

While the church's reasons for joining in the amicus brief may entirely be tied to the issue of religious freedom that doesn't change the fact that they are backing a baker who has discriminated against a gay couple.  That means that they are supporting anti-gay discrimination.  I'm not sure how you can say that's wrong... unless you are going to tell me that the brief argues that the baker should have baked the cake (which, IMO, would align with our religious beliefs).

I so miss you Rockpond when you go away...haven't seen you around for a while.  Hope all is well with you and yours.

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Daniel2    1,599
1 hour ago, kllindley said:

So, I know the pattern here is for me to make an argument, get called out/being told I am wrong/asked to substantiate a claim, me spending a lot of time doing additional research to document the claim, providing those references, and then never hearing back.  I'm not expecting the pattern to change here.  But I figure, since I've done a ton of additional reading, it still makes sense to relate what I have learned.

I wonder if anyone is familiar with how many Amici briefs have been filed in this case.  I'm counting 49 today.  I've now read through 4 in their entirety and scanned the arguments of 18 others.  This has significantly changed my opinion of the case.  It appears to be a clear case of religious discrimination on the part of the state of Colorado.  The idea that inherently expressive only applies to letters or symbols is not substantiated by case law.  It is a convenient dodge.  If that is what people think the law ought to say, then they need to make sure it says that.  

Further, the public accommodations law in Colorado is not being applied neutrally or generally.  There is documented evidence that businesses are allowed to discriminate against religious customers.

Has anyone else actually read the brief filed by the Church et. al.?  Because nobody is really responding to any of the claims and arguments there.  It seems like we're content to sit back and let critics say the Church is actively supporting anti-gay discrimination, when that is not at all what the brief argues. 

Also, I recommend the Amici Brief from 479 Creative Professionals and the one from Cake Artists (Not in support of either party) when trying to pretend that the idea of creative expression and speech is some settled issue.  

http://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/

KLlindley,

It should surprise no one that reading the amici briefs (which are NOT law) which support your preconceived notions on the matter confirm your opinions. That's classic confirmation bias at work.

However, as mentioned above, amici briefs aren't legal rulings--they represent the lega arguements being asserted in support of whichever side on whose behalf the brief is filed.

Your accusation that my post explainging that "from a legal perspective,  conduct must be 'inherently expressive'" has no legal foundation and is a dodge implies to me that you actually haven't read the actual ruling--which IS the law--that is in dispute. Because THAT ruling DOES lay out exactly what I said about conduct being required to be "inherently expressive." 

In particular, I recommend pages 23-31 of the actual ruling itself. I'd post it here, but am on my phone.

16-111-op-bel-colo-app.pdf

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kllindley    285
1 hour ago, rockpond said:

While the church's reasons for joining in the amicus brief may entirely be tied to the issue of religious freedom that doesn't change the fact that they are backing a baker who has discriminated against a gay couple.  That means that they are supporting anti-gay discrimination.  I'm not sure how you can say that's wrong... unless you are going to tell me that the brief argues that the baker should have baked the cake (which, IMO, would align with our religious beliefs).

 

The brief argues that the state does have a compelling interest to prohibit discrimination against same-sex couples (which is actually farther than I would have gone.)  The entire focus of the brief is that the wedding is an inherently religious context and that as enforced, the non-discrimination law targets religious belief, but allows for discrimination against religious individuals. 

 

Quote

II.A. This case is about assisting with a wedding. It does not involve any alleged right to generally refuse service to same-sex couples, or to act on conscience in purely commercial contexts. It involves a right to act on conscience in a religious context—in connection with a wedding.

B. Petitioner believes that a wedding is an inherently religious event, and that a same-sex wedding is religiously prohibited. Colorado demands that he assist in celebrating such a wedding. This demand burdens his free exercise of religion. Colorado’s countervailing interest is not its broad interest in preventing discrimination throughout the economy, but its much weaker, largely illegitimate, interest in regulating religious events. Requiring petitioner to assist with a religious ceremony also violates the Establishment Clause. Colorado has “in effect required participation in a religious exercise.” Lee v. Weisman, 505 U.S. 577, 594 (1992)

Quote

A. Colorado protected bakers who cannot in conscience create cakes that denounce same-sex relationships. But Colorado denied protection to petitioner, who cannot in conscience create a cake that celebrates a same-sex wedding. The state court applied flatly inconsistent reasoning to the two claims. This differing treatment cannot be explained on the ground that the message of the other bakers’ cakes would be explicit and the message of petitioner’s cake implicit.

Quote

D. Vigorous enforcement of the neutrality and general-applicability requirements is vital to preserving meaningful religious liberty. Exempting secular but not religious interests deprives religious minorities of vicarious political protection. And regulating religious conduct devalues religion as compared to the unregulated secular conduct.

Quote

IV. Colorado has no compelling interest in making this small business serve same-sex weddings, especially when it does not equally regulate bakers on the other side of the issue. The customers’ material interest in obtaining a cake is not at issue; there were ample willing providers. The insult or dignitary harm to same-sex couples cannot be considered in isolation. The Court must also consider the dignitary harm to the religious objectors, for whom “free exercise is essential in preserving their own dignity.” Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751, 2785 (2014) (Kennedy, J., concurring). Those bakers willing to turn away good business for religious reasons believe that they are being asked to defy God’s will, disrupting the most important relationship in their lives and tormenting their conscience. Religious liberty is meant to prevent such harms, and they cannot be justified by the desire of same-sex couples in a pluralistic society never to encounter disapproval. The argument from dignitary harm is ultimately an argument that petitioner’s religious practice must be suppressed because its communicative impact offends the customer turned away. That argument conflicts with the whole First Amendment tradition. The balance of hardships here tilts heavily in favor of petitioner. The same-sex couple who obtains a cake from another baker still gets to live their own lives by their own values, but petitioner does not. He must repeatedly violate his conscience or permanently abandon his occupation.

 

Quote

First, both religious believers and same-sex couples argue that a core aspect of their identity is so fundamental that it should be left to each individual, free of all nonessential regulation.

Second, both religious believers and same-sex couples argue that their conduct cannot be separated from their claim of protected legal rights so as to give government carte blanche to regulate the conduct. Courts have rejected a distinction between sexual orientation and marital conduct, finding that both the orientation and the conduct that follows from that orientation are central to a person’s identity. This protection for conduct as well as orientation is an essential and obvious part of the holding in Obergefell, which protected not just sexual orientation, but the extensive and continuing conduct that is essential to a marital relationship. Other courts have been more explicit in discussing the close link between orientation and conduct.

Status and conduct are equally intertwined for the religious believer. “[T]he ‘exercise of religion’ often involves not only belief and profession but the performance of (or abstention from) physical acts.” Employment Division v. Smith, 494 U.S. 872, 877 (1990)

Quote

Religious exemptions that touch on the commercial sphere must be carefully defined. The government has important interests in ensuring that all persons can participate in the commercial marketplace and that businesses do not “unduly restrict” that participation. Hobby Lobby, 134 S. Ct. at 2786-87 (Kennedy, J., concurring). But religious believers too have an interest in participating in commerce, and they do not shed all rights of religious exercise at the entrance to the marketplace. Protection for core elements of that right, like declining to assist a wedding, is not forfeited the instant an individual offers commercial services. 

Third, both religious dissenters and same-sex couples seek to live out their identities in all aspects of their lives, including those that are publicly visible. Obergefell recognized same-sex couples’ right not just to live together in private, but to participate in the public institution of civil marriage. 135 S. Ct. at 2600 (“while Lawrence [v. Texas, 539 U.S. 558 (2003)] confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there”). Religious believers likewise claim the right to follow their faith, and not just in the “intimate” setting of worship services. They claim the right to live with integrity in the institutions of civil society: the right “to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.” Hobby Lobby, 134 S. Ct. at 2785 (Kennedy, J., concurring)

Quote

Resistance to civil marriage or other new rights for same-sex couples will be deepest and longest if religious dissenters perceive an existential threat to their own community. Government can calm the storm by swearing off any such threats, as this Court has long recognized. “Assurance that rights are secure tends to diminish fear and jealousy of strong government, and by making us feel safe to live under it makes for its better support.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 636 (1943).

I think that the quote bolded above is very important to the issue at hand. 

 

Quote

Respondents portray this case as simply about economic regulation of a commercial business, where individual rights are at a minimum and the state’s power to regulate is at a maximum. But Colorado here demands not just any commercial transaction; it demands that petitioner assist with a religious ceremony.

Quote

Requiring petitioner to assist with an event he understands as religious also violates the Establishment Clause. In Lee v. Weisman, 505 U.S. 577 (1992), this Court held that when a public school called on persons to stand silently for a brief prayer at graduation, it “in effect required participation in a religious exercise,” thus violating the Establishment Clause. Id. at 594. The Court found that a “reasonable dissenter” could view the coerced act of standing, or even just remaining silent, as participation in the prayer. Id. at 593. The coercion on petitioner here is unquestioned: a governmental order that he either create cakes for weddings he believes are sinful or stop creating wedding cakes altogether. Pet. App. 57a. And here, as in Weisman, a “reasonable dissenter” could view the coerced act of creating and providing a cake as participation in the wedding.

 

Quote

2. When religious conduct is regulated and analogous secular conduct is not, the state implies a value judgment about religion. The religious conduct is more objectionable, less deserving of protection, not important enough to overcome the state’s regulatory interests, as compared to the protected secular conduct.

Case law regarding the Establishment Clause is pretty clear.  

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kllindley    285
17 minutes ago, Daniel2 said:

KLlindley,

It should surprise no one that reading the amici briefs (which are NOT law) which support your preconceived notions on the matter confirm your opinions. That's classic confirmation bias at work.

I was actually also swayed by those which did not support my preconceived notions.  Maybe you missed the part where I said that these briefs "changed my opinion on the matter."  

But maybe that's how confirmation bias really works, psychology degrees not withstanding.

 

Edited by kllindley

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kllindley    285
19 minutes ago, Daniel2 said:

Your accusation that my post explainging that "from a legal perspective,  conduct must be 'inherently expressive'" has no legal foundation and is a dodge implies to me that you actually haven't read the actual ruling--which IS the law--that is in dispute. Because THAT ruling DOES lay out exactly what I said about conduct being required to be "inherently expressive." 

In particular, I recommend pages 23-31 of the actual ruling itself. I'd post it here, but am on my phone.

16-111-op-bel-colo-app.pdf

mmmmk.  So I'm supposed to give precedence to the lower court's ruling while ignoring the mountains of precedent in other courts as well as Supreme Court precedent to the contrary?  

I didn't say it has no legal foundation.  I said it isn't supported by case law.  I'm arguing that it isn't as black and white as you are trying to make it sound.  That illusion of the issue being settled is a dodge.  

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