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Daniel2

New Masterpiece Lawsuit: Cakes, Religion & Speech, Round 2–this time, a transgender birthday cake

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4 hours ago, smac97 said:

I agree.

If a non-transgendered friend of a transgendered person had called Mr. Phillps with a request for a "gender transition cake," Mr. Phillips would have refused that request as well.  It's not about the person ordering the themed cake.  It's the theme of the cake that Mr. Phillips does not want to convey.  He does not want to speak it.  And he should not be coerced by the force of law to speak in ways that violate his conscience.

Thanks,

-Smac

Just change the example to a Mormon themed cake (whether ordered by a Mormon or non-Mormon), and the bigotry should be clear where it was invisible to you before.

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Just now, Gray said:
Quote

I agree.

If a non-transgendered friend of a transgendered person had called Mr. Phillps with a request for a "gender transition cake," Mr. Phillips would have refused that request as well.  It's not about the person ordering the themed cake.  It's the theme of the cake that Mr. Phillips does not want to convey.  He does not want to speak it.  And he should not be coerced by the force of law to speak in ways that violate his conscience.

Thanks,

-Smac

Just change the example to a Mormon themed cake (whether ordered by a Mormon or non-Mormon), and the bigotry should be clear where it was invisible to you before.

I don't think that's "bigotry" at all.  Speech, including artistic speech, should not be compelled by force of law.  

That's my position.  I find it odd that people like you disagree with that.  I hope you'll take the time to answer my question.  Here it is again:

Quote

I am not speaking about copyright law.  Let's assume that copyright laws should be fully observed.  Let us further hypothesize that the Westboro Baptist Church wants to use a series of songs by Elton John at an anti-gay rally. Let us further hypothesize that Elton John wants to have the right to refuse the use of his songs in that way and in that venue. Do you think you should have that right?

Well?  

Thanks,

-Smac

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19 minutes ago, Daniel2 said:

I used the term ‘copyright law’ as a shorthand summary of what you wrote. Feel free to rebrand and call the group of points you made by whatever you wish—my question is the same:

Why do you think neither Liberty Counsel nor judges at any level, including SCOTUS, have referenced or accepted the points you made in any of their court submissions or legal rulings?

I think it is because these points are not current case Law.  Trump didn't sue any of these artist over discrimination just like Melania didn't sue the dressmakers for refusing to design her inauguration dress.  

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15 minutes ago, Gray said:

Just change the example to a Mormon themed cake (whether ordered by a Mormon or non-Mormon), and the bigotry should be clear where it was invisible to you before.

Yes! It would be bigotry to insist that any cake-maker create the Salt Lake Temple in Fondant.  

Or to ask a Muslim baker to create a Christus shaped cake.

It's all about the message.  

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3 hours ago, Daniel2 said:

Nope, I can’t. But I’d bet the ACLU and the Lexington Civil Rights Committee have probably explained why they are doing so, somewhere, if you wanted to find out why. 

Yeah, they say it's because the distinction you claim protecting expression does not and should not exist.  Further it should be legal for any printer to refuse to participate in the activity Hamba described, but that by nature of being a protected class, any and all reason for denying service should not be allowed.   

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36 minutes ago, smac97 said:

For the third time, my point isn't about copyright law.

I have no idea.  There are all sorts of ways to present all sorts of legal arguments and reasoning.

In any event, you are not addressing the substance of what I have said.  Can't say I'm surprised.  Here it is again:

Well?  

Thanks,

-Smac

If the high profile, highly paid, strongly motivated, exceptionally thorough Liberty Counsel lawyers arguing the case on behalf of the plaintiffs didn’t find the points you made compelling enough to make them at any point in their proceedings, and no judges at any appellate or Supreme Court level referenced them as legally compelling or salient to the proceedings over years of litigation, I don’t feel the need to address them, either.

Perhaps you can call Liberty Counsel and share your assertions and suggest they employ them in their defense of Masterpience’s current lawsuit and we’ll all see how well they fare in court...?  

Edited by Daniel2
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9 minutes ago, Daniel2 said:

If the high profile, highly paid, strongly motivated, exceptionally thorough Liberty Counsel lawyers arguing the case on behalf of the plaintiffs didn’t find the points you made compelling enough to make them at any point in their proceedings, and no judges at any appellate or Suprem Court level referenced them as legally compelling or salient to the proceedings over years of litigation, I don’t feel the need to address them, either.

There are many ways to illustrate a point of law.  And I have never communicated with Liberty Counsel lawyers, who have therefore not had the opportunity to consider "the points {I have} made."

You are, of course, at liberty to ignore and refuse/decline to respond to reasoned points and questions presented to you.  I will not press you on the matter.

Thanks,

-Smac

Edited by smac97
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16 minutes ago, kllindley said:

Yeah, they say it's because the distinction you claim protecting expression does not and should not exist.  Further it should be legal for any printer to refuse to participate in the activity Hamba described, but that by nature of being a protected class, any and all reason for denying service should not be allowed.   

Yeah. I agree that’s probably what they would likely say. 

I’m not the ACLU, and I disagree with their attempts to appeal that ruling. 

We’ll see how successful they are. In that case, it sounds like you and I would be in agreement. 

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I’m not sure where the line should be drawn on many of the examples used in this thread (on either side).  I’m a musician with recorded music available, but I’m not sure I agree that someone like Elton John should be able to dictate where or when or for whom his music can be played once it’s bought and paid for.  If someone purchases my CD and I later find that they are playing it at their church of Satan luncheon, can I demand that they desist? And if so, should I be required to refund their money?  In my opinion, once it’s paid for, it’s theirs to do with as they please. If I, as an artist, were to sell a painting, then later find that it was hung in a church of Scientology, should I be allowed to demand that they remove it? If I were to ask an atheist chandelier maker to fashion a chandelier for an LDS temple, should he have the right to refuse based on his non-religious convictions? How about if I ask an evangelical baker to make an all-white cake with the letters “Congratulations” across the top, but let it slip that the cake is to celebrate the sealing of an LDS couple.  Should he have the right to refuse?   I don’t know…I’m torn.

Edited by Rock_N_Roll
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1 hour ago, smac97 said:

You are, of course, at liberty to ignore and refuse/decline to respond to [the strawman argument I attempted to] present to you.  I will not press you on the matter.

Thanks,

-Smac

Fixed that for ya. ;)

D

Edited by Daniel2
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9 minutes ago, Daniel2 said:
Quote

You are, of course, at liberty to ignore and refuse/decline to [waste time and energy by] responding to [the strawman argument I attempted to] present to you.  I will not press you on the matter.

Thanks,

-Smac

Fixed that for ya. ;)

D

As you like.  It's a simple question that you refuse/decline to answer.  So be it.

I'll open the question to anyone else.  Here it is again:

Let us hypothesize that the Westboro Baptist Church wants to use a series of songs by Elton John at an anti-gay rally. Let us further hypothesize that Elton John wants to have the right to refuse the use of his songs in that way and in that venue. Do you think {Elton John} should have that right?

Thanks,

-Smac

Edited by smac97
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If a pink cake with blue frosting were presented to a group of people, what’s the message it’s conveying?

How is that cake a form of speech in any rational sense? 

 

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19 minutes ago, smac97 said:

As you like.  It's a simple question that you refuse/decline to answer.  So be it.

I'll open the question to anyone else.  Here it is again:

Let us hypothesize that the Westboro Baptist Church wants to use a series of songs by Elton John at an anti-gay rally. Let us further hypothesize that Elton John wants to have the right to refuse the use of his songs in that way and in that venue. Do you think {Elton John} should have that right?

Thanks,

-Smac

I personally believe Elton John should not have that right (I know he does now).  And if he does, he should be required to refund the purchase price of the album in question. And this coming from a musician.  

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Just now, Rock_N_Roll said:

I personally believe Elton John should not have that right (I know he does now).  And if he does, he should be required to refund the purchase price of the album in question. And this coming from a musician.  

Okay.  Could you explain your reasoning here?  Why should Elton John not have this right?

And here's a supplemental hypothetical: 

Let us hypothesize that the Westboro Baptist Church wants to hire Elton John to perform at an anti-gay rally.  Let us further hypothesize that Elton John wants to have the right to refuse to participate in that event.  He does not want to give the impression that he, through his participation, endorses the rally.  Do you think Elton John should have that right?

Thanks,

-Smac

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2 hours ago, Daniel2 said:

I’m not the ACLU, and I disagree with their attempts to appeal that ruling. 

And I'm not Liberty Counsel, and yet you insisted that I explain their position.

So I guess we can insist on you explaining the ACLU's position.  😀

Thanks,

-SMac

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1 hour ago, smac97 said:

And I'm not Liberty Counsel, and yet you insisted that I explain their position.

So I guess we can insist on you explaining the ACLU's position.  😀

Thanks,

-SMac

Oh, c’mon, Smac. I have not “insisted you explain Liberty Counsel’s position.”  

I asked you why you thought they didn’t include your rationale in their case.  

You said you didn’t know and haven’t talked to them.

I responded by saying that since the Liberty Counsel’s well-funded and highly organized and experienced legal team (who has spent years combing through legal precedent to try to apply to their case to help their client win) didn’t use any of the precedent you’re bringing up in defense of their their case, then I don’t feel a need to, either. 

Fuether, given that every other federal, appellate, and Supreme Court Justice didn’t bring songs up as comparable to cakes in any ruling I’m aware of, then I don’t feel the need to, either.

You’ve created a strawman arguement about songs and ownership thereof to being tantamount or at least analogous to baking a pink cake with blue frosting. The two issues are entirely different. Jack Phillips is on record saying he’s MORE than willing to bake cakes for anyone regardless of their identity. Customers in his shop can choose the color of their cake and frosting. 

A customer asked for a pink and blue cake. No expressive or offensive symbols, no song lyrics, not a shred of anything even closely resembling “inherently expressive speech.” A flippen’, fetchin’ pink cake with blue frosting. Until, of course, the client mentioned what the cake symbolically means to her, and Jack Phillips/his staff disagrees with her interpretation. Then they wouldn’t. The nature or expressiveness of the pink cake with blue frosting didn’t change—it’s the SAME dang cake he’d happily bake for anyone else—but Jack Phillips refuses because of what that cake means to someone else. I believe that’s clearly discrimination, and predict the courts will, too. 

Edited by Daniel2
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2 hours ago, Amulek said:

To be considered symbolic speech under the Spence test, conduct must: 

  1. be intended to communicate a message (although the message can be a general one and not a specific one: "a narrow, succinctly articulable message is not a condition of constitutional protection"); and
  2. be likely, in the circumstances, to be understood by its intended audience.

The specific language from Spence v. Washington is as follows: "An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it."

Did the customer intend to communicate a message by requesting a cake which was blue on the outside and pink on the inside? It seems to me, based on the customer's own words in the article you posted, that the answer is "yes." The woman is quoted as saying, "I explained I am a transexual and that I wanted my birthday cake to celebrate my transition by having a blue exterior and a pink interior [...]," so it seems like she wanted the cake to communicate a message. You know...like how she's a girl on the inside but was born a boy on the outside. 

First test: check.

Now for the second: Would the cake - blue on the outside / pink on the inside - be likely, in the circumstances, to be understood by its intended audience? Again, it seems to me that the answer would be "yes." The cake was going to be used at a party to celebrate "the 7th year of [her] transition from male to female," and I believe the people at that party (i.e., the intended audience) would understand the symbolism which was to be communicated.

Second test: check.

So it seems that this cake would pass the Spence test and be considered symbolic speech. As such, Mr. Phillips is under no obligation to make the cake if he doesn't want to.

Forcing him to do so would impinge on his right to not participate in speech he disagrees with.

 

I don’t believe your analysis is quite how the law will view the answer to those same questions and will find that a pink cake with blue frosting isn’t inherently expressive under the actual legally-interpretations of the qualifications and definitions you listed.

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Just now, Daniel2 said:

I don’t believe your analysis is quite how the law will view the answer to those same questions and will find that a pink cake with blue frosting isn’t inherently expressive under the actual legally-interpretations of the qualifications and definitions you listed.

Curious. Pink and Blue are traditional colors for Female and Male. For a trangender person or group of transgenders, would pink and blue convey a message?  I am not trying to argue, I am just thinking out loud with my fingertips.

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42 minutes ago, Daniel2 said:

isn’t inherently expressive under the actual legally-interpretations of the qualifications and definitions you listed.

No one that I've heard is claiming that the cake is inherently expressive. It's the context that matters. Not just to Phillips, but to the customer as well. 

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4 hours ago, Daniel2 said:

Then they wouldn’t. The nature or expressiveness of the pink cake with blue frosting didn’t change—it’s the SAME dang cake he’d happily bake for anyone else—but Jack Phillips refuses because of what that cake means to someone else.

Doesn't the same thing apply to the same dang dress that a designer would make for anyone else? Or the same dang song that the artist would allow to be used by anyone else?

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6 hours ago, Daniel2 said:

If a pink cake with blue frosting were presented to a group of people, what’s the message it’s conveying?

How is that cake a form of speech in any rational sense? 

 

Sorry, working backwards. "Any rational sense" is a very polarizing phrase. Is it just a rhetorical device? Do you realize how that also sends the message that you believe anyone who sees the argument differently is irrational? 

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7 hours ago, Daniel2 said:

Perhaps you can call Liberty Counsel and share your assertions and suggest they employ them in their defense of Masterpience’s current lawsuit and we’ll all see how well they fare in court...?  

What does Liberty Counsel have to do with Masterpiece?

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7 hours ago, Daniel2 said:

... ...

I responded by saying that since the Liberty Counsel’s well-funded and highly organized and experienced legal team (who has spent years combing through legal precedent to try to apply to their case to help their client win) didn’t use any of the precedent you’re bringing up in defense of their their case, then I don’t feel a need to, either. 

Common Daniel, give it a break, Smac does not have to give a reason why Liberty Counsel does not use Smacs legal strategy. It is a silly question. There are thousands and thousands rules of law and even more exceptions, (hearsay alone has like 4 exclusions and 27 exceptions).  It is like saying why doctors should only look for a cure for diabetes when there is cancer, measles, gum disease, etc..

Smac's legal reasoning is sound and in future litigation his legal ideas will surely be brought up, because it has not been brought up yet in no way diminishes his argument.

Edited by Anijen
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18 hours ago, Daniel2 said:

Fixed that for ya. ;)

D

Altering quotes is against board rules, which you should know as a long-time poster.  

~Mods

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