T shirt maker has gay customers, gay employees, still sued

[Analytics]

As far as I can tell, the real issue is whether baking a wedding cake is endorsing the specific marriage, expressing approval of what the couple might do in their honeymoon suite, or somehow serving as an integral part of the wedding. Or whether it is merely baking a cake.

In this case, the baker is arguing that when he creates a generic wedding cake, he is practicing his religion, not simply providing goods and services to society. Because he personally views what he does this way, he wants an exemption to non-discrimination laws.

That seems like a slippery slope. If a baker can refuse to bake a cake for a gay couple because of his religion, can he refuse to bake a cake to a Mormon couple because of his religion? If bakers are allowed to discriminate, how about the caterer? Fine chefs? Chain restaurants? e.g. Oh, your rehearsal dinner is for a Jewish wedding? Sorry--we prepare food in honor of the Lord Jesus Christ and it would be blasphemous to do so for Jews. How about gas stations? e.g. Sorry, providing people to travel to their destination is a religious exercise for us, and we feel like we are an integral part of your trip. Since you are driving to the Mormon temple, we can't provide you with fuel. But there is a station 20 miles down that would sell you gas. Good luck!

I could see a libertarian court throwing down all non-discrimination laws as being unconstitutional on the basis of the freedom of association. But it is really hard for me to imagine a strong, consistent ruling that says, "You are allowed to break the laws that apply to everybody else, provided you are doing so for a sincere religious motivation. So if you are a Christian who hates gays, you don't have to bake wedding cakes for gays, but if you are an atheist who hates gays, you have to bake it because your bigotry isn't religiously motivated."

[smac97]

4 minutes ago, Analytics said:

As far as I can tell, the real issue is whether baking a wedding cake is endorsing the specific marriage, expressing approval of what the couple might do in their honeymoon suite, or somehow serving as an integral part of the wedding. Or whether it is merely baking a cake.

Do you distinguish between "merely baking a cake" and decorating a cake?

For example, decorating a cake with as follows:

What about demanding, under threat of legal punishment, that a gay baker to decorate a cake like this:

Or demanding, under threat of legal punishment, that a Jewish baker bake something like this:

Or demanding, under thread of legal punishment, that a baker of any persuasion bake something like this:

I addressed this distinction (baking a cake v. decorating one) here.

4 minutes ago, Analytics said:

In this case, the baker is arguing that when he creates a generic wedding cake, he is practicing his religion, not simply providing goods and services to society. Because he personally views what he does this way, he wants an exemption to non-discrimination laws.

That seems like a slippery slope. If a baker can refuse to bake a cake for a gay couple because of his religion, can he refuse to bake a cake to a Mormon couple because of his religion? If bakers are allowed to discriminate, how about the caterer? Fine chefs? Chain restaurants? e.g. Oh, your rehearsal dinner is for a Jewish wedding? Sorry--we prepare food in honor of the Lord Jesus Christ and it would be blasphemous to do so for Jews. How about gas stations? e.g. Sorry, providing people to travel to their destination is a religious exercise for us, and we feel like we are an integral part of your trip. Since you are driving to the Mormon temple, we can't provide you with fuel. But there is a station 20 miles down that would sell you gas. Good luck!

But doesn't the "slippery slope" argument potentially go both ways?

4 minutes ago, Analytics said:

I could see a libertarian court throwing down all non-discrimination laws as being unconstitutional on the basis of the freedom of association. But it is really hard for me to imagine a strong, consistent ruling that says, "You are allowed to break the laws that apply to everybody else, provided you are doing so for a sincere religious motivation. So if you are a Christian who hates gays, you don't have to bake wedding cakes for gays, but if you are an atheist who hates gays, you have to bake it because your bigotry isn't religiously motivated."

But what about the libertarian argument that says: "So if you are a gay baker, you don't have to bake 'God Hates Fags' cakes for the Westboro Baptist Church?"

I think there is some tension between, on the one hand, public accommodations and nondiscrimination laws and, on the other, Free Exercise and Free Speech and Free Association laws.

What are your thoughts?

Thanks,

-Smac

[Scott Lloyd]

1 hour ago, Analytics said:

As far as I can tell, the real issue is whether baking a wedding cake is endorsing the specific marriage, expressing approval of what the couple might do in their honeymoon suite, or somehow serving as an integral part of the wedding. Or whether it is merely baking a cake.

In this case, the baker is arguing that when he creates a generic wedding cake, he is practicing his religion, not simply providing goods and services to society. Because he personally views what he does this way, he wants an exemption to non-discrimination laws.

That seems like a slippery slope. If a baker can refuse to bake a cake for a gay couple because of his religion, can he refuse to bake a cake to a Mormon couple because of his religion? If bakers are allowed to discriminate, how about the caterer? Fine chefs? Chain restaurants? e.g. Oh, your rehearsal dinner is for a Jewish wedding? Sorry--we prepare food in honor of the Lord Jesus Christ and it would be blasphemous to do so for Jews. How about gas stations? e.g. Sorry, providing people to travel to their destination is a religious exercise for us, and we feel like we are an integral part of your trip. Since you are driving to the Mormon temple, we can't provide you with fuel. But there is a station 20 miles down that would sell you gas. Good luck!

I could see a libertarian court throwing down all non-discrimination laws as being unconstitutional on the basis of the freedom of association. But it is really hard for me to imagine a strong, consistent ruling that says, "You are allowed to break the laws that apply to everybody else, provided you are doing so for a sincere religious motivation. So if you are a Christian who hates gays, you don't have to bake wedding cakes for gays, but if you are an atheist who hates gays, you have to bake it because your bigotry isn't religiously motivated."

Try as I might, I just can’t get spun up over the idea that, because I’m Mormon, somebody might decline to sell me a non-essential product or service such as a wedding cake or flowers or a photo portrait or a decorated T shirt. Because, thank God, we live in a free-enterprise economy, there will always be somebody waiting in the wings who will gladly provide the service for my money in the unlikely event some anti-Mormon bigot refuses to. 

[ALarson]

20 minutes ago, Scott Lloyd said:

Try as I might, I just can’t get spun up over the idea that, because I’m Mormon, somebody might decline to sell me a non-essential product or service such as a wedding cake or flowers or a photo portrait or a decorated T shirt. Because, thank God, we live in a free-enterprise economy, there will always be somebody waiting in the wings who will gladly provide the service for my money in the unlikely event some anti-Mormon bigot refuses to. 

I'd probably do the same (just  move on to someone who wanted to do business with me).  But that doesn't change the fact that the first merchant was a bigot and was wrong to discriminate against one of their customers.   I'm not one to sue, but I do support another's right to do so if they feel strongly against being treated in that manner.  Especially when it may just continue to happen to others if they don't stand up and try to correct it.

Edited October 3, 2017 by ALarson

[california boy]

1 hour ago, smac97 said:

Do you distinguish between "merely baking a cake" and decorating a cake?

For example, decorating a cake with as follows:

What about demanding, under threat of legal punishment, that a gay baker to decorate a cake like this:

Or demanding, under threat of legal punishment, that a Jewish baker bake something like this:

Or demanding, under thread of legal punishment, that a baker of any persuasion bake something like this:

I addressed this distinction (baking a cake v. decorating one) here.

But doesn't the "slippery slope" argument potentially go both ways?

But what about the libertarian argument that says: "So if you are a gay baker, you don't have to bake 'God Hates Fags' cakes for the Westboro Baptist Church?"

I think there is some tension between, on the one hand, public accommodations and nondiscrimination laws and, on the other, Free Exercise and Free Speech and Free Association laws.

What are your thoughts?

Thanks,

-Smac

How the cake was decorated is not relevant in this case.  Neither the couple nor the baker talked about any decoration on the cake.  the baker refused to bake the cake no matter how or what was written on the cake.

And yet once again, no business is forced to decorate or write anything on a cake that goes against their personal beliefs.  That is not discrimination.  Refusing to sell the customer a cake is the issue that is before the Supreme Court.

I do find it interesting that these non discrimination laws have been in effect for 50 years and during all that time, no baker ever have recorded any objection to baking a cake for ANY other sinner or ANY other event.  Is gay marriage the ONLY issue that christians have an objection to?  

[california boy]

7 minutes ago, ALarson said:

I'd probably do the same (just  move on to someone who wanted to do business with me).  But that doesn't change the fact that the first merchant was a bigot and was wrong to discriminate against one of their customers.   I'm not one to sue, but I do support another's right to do so if they feel strongly against being treated in that manner.  Especially when it may just continue to happen to others if they don't stand up and try to correct it.

Sometimes standing up for what is right is more important that what is easiest.  Certainly those college kids that sat at the Woolsworth counter were much more brave and stood by their convictions with much more courage that the guy that just took his business to the lunch counter down the road.  

[Analytics]

1 hour ago, smac97 said:

Do you distinguish between "merely baking a cake" and decorating a cake?

For example, decorating a cake with as follows:

What about demanding, under threat of legal punishment, that a gay baker to decorate a cake like this:

Or demanding, under threat of legal punishment, that a Jewish baker bake something like this:

Or demanding, under thread of legal punishment, that a baker of any persuasion bake something like this:

I addressed this distinction (baking a cake v. decorating one) here.

But doesn't the "slippery slope" argument potentially go both ways?

But what about the libertarian argument that says: "So if you are a gay baker, you don't have to bake 'God Hates Fags' cakes for the Westboro Baptist Church?"

I think there is some tension between, on the one hand, public accommodations and nondiscrimination laws and, on the other, Free Exercise and Free Speech and Free Association laws.

What are your thoughts?

Thanks,

-Smac

To clarify, whether I, personally, distinguish between baking a cake and decorating a cake is irrelevant. I'm not an attorney, much less a judge.

Having said that, the Colorado Court of Appeals does make a distinction between the freedom of expression and freedom of religion. According to them, "the government may not require an individual to host or accommodate another speaker’s message.” (Here is their opinion, for your reference: https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2015/14CA1351-PD.pdf). They go into quite a bit of detail affirming that in general, the freedom of speech includes the freedom not to express something they disagree with. So if a couple were to ask that the baker write, "God really doesn't hate fags" on a cake, the baker would in fact have the legal right to refuse. They talk for several pages about this, and how to distinguish whether an activity is only vaguely and peripherally expressive or whether it is clearly expressive and thus deserving of first-amendment protections in the context of anti-discrimination laws.

In the case of Masterpiece Cake Shops v. Colorado Civil Rights Commission, it wasn't a matter of asking for a rainbow cake or a "support gay marriage" cake or whatever. Quoting the court's opinion:

Quote

We recognize that a wedding cake, in some circumstances, may convey a particularized message celebrating same-sex marriage and, in such cases, First Amendment speech protections may be implicated.  However, we need not reach this issue.  We note, again, that Phillips denied Craig’s and Mullins’ request without any discussion regarding the wedding cake’s design or any possible written inscriptions.

That seems quite reasonable to me, and I'm satisfied with where they drew the lines. From what I recall, Daniel2 and California boy agree with the court's sensibilities and interpretations of the law as well. This case is about whether a baker has the right to refuse to bake a generic wedding cake for a gay couple that is indistinguishable from the ones he bakes for straight couples. It is not about whether he can be forced to write the words in frosting, "Gay Marriage is Legal Now! Suck on That!"

 

Edited October 3, 2017 by Analytics

[smac97]

8 minutes ago, california boy said:

How the cake was decorated is not relevant in this case.  

I'm not sure which specific case we are speaking of.  In any event, the larger question is, I think, quite relevant.  I think there is a legal distinction to be made between refusing to sell a cake to a gay person (there are no legitimate "compelled speech" concerns in such a situation) and refusing to decorate a wedding cake with a celebratory "gay wedding" motif (where "compelled speech" is very much a concern).

8 minutes ago, california boy said:

Neither the couple nor the baker talked about any decoration on the cake.  the baker refused to bake the cake no matter how or what was written on the cake.

We discussed the Colorado baker case last December.  In that case the gay couple suing the baker repeatedly asserted in their brief that they "Phillips did not ask for, and Mullins and Craig did not offer, any details about the design of the cake."  However, contemporary news accounts seem to differ with that:

FoxNews Article (emphasis added):

Quote

Jack Phillips, owner of the Masterpiece Cake Shop in Lakewood, Colo., said he has received more than 1,000 angry messages — critics upset because he would not compromise his personal beliefs and bake a cake for Dave Mullins and Charlie Craig.

The couple, set to be married in Massachusetts in September, told television station KDVR they wanted a rainbow-layered cake with teal and red frosting.

They said the owner immediately informed the men that he does not create cakes for gay weddings.

“It was the most awkward, surreal, very brief encounter,” Mullins, 28, told Denver Westward. “We got up to leave, and to be totally honest, I said, ‘F**k you and your homophobic cake shop.’ And I may or may not have flipped him off.”

But Phillips defended his decision in an interview with television station KCNC in Denver.

“If gays come in and want to order birthday cakes or any cakes for any occasion, graduations, or whatever, I have no prejudice against that whatsoever,” Phillips told the television station. “It’s just the wedding cake, not the people, not their lifestyle.”

July 2012 KDVR Article (emphasis added):

Quote

It all started when Dave Mullins, 28, and Charlie Craig, 31, went into the Masterpiece Cakeshop hoping to get a rainbow-layered cake with teal and red frosting for their wedding reception, which will take place in Denver this October after their wedding in Provincetown, Mass., which is set for September.

July 2012 Westword Article (apparently published one day after the incident) (emphasis added)

Quote

Yesterday afternoon, 28-year-old Dave Mullins and 31-year-old Charlie Craig stopped by Lakewood's Masterpiece Cakeshop to order their wedding reception cake -- what they hoped would be a rainbow-layered masterpiece decked out in teal and red frosting (their ceremony colors).  Although they'll be reciting their vows in Provincetown, Massachusetts, in September, the couple plans to celebrate with a reception for friends and family in Denver in October. But after bakery owner Jack Phillips listened to their request, they say, he refused it. His business doesn't create cakes for gay weddings.

July 2012 Advocate Article (emphasis added):

Quote

A cake shop in Denver told a gay couple last week that they are refusing to make them a rainbow-layered wedding cake this fall. 

2013 Chicago Tribune Article (emphasis added):

Quote

Here's the story: Jack C. Phillips, co-owner of Masterpiece Cakeshop in Denver, in July 2012 told Charlie Craig and David Mullins that he would not bake a cake for their wedding. He said as a long-practicing Christian he believed God intended marriage to be for one man and one woman.

He also told the couple, "I'll make you birthday cakes, shower cakes, sell you cookies and brownies, I just don't make cakes for same-sex weddings." He believed he was protected in this because the Colorado Constitution defined marriage as between one man and one woman.

Craig and Mullins apparently didn't have trouble finding another baker to make a cake, one with rainbow-colored filling, for their later out-of-state wedding. It's not as if Phillips prevented them from getting a cake from anywhere in America.

July 2012 Advocate Article (emphasis added):

Quote

A cake shop in Denver told a gay couple last week that they are refusing to make them a rainbow-layered wedding cake this fall. 

...

Mullins and Craig don't seem to be the only same-sex couple to encounter problems with Masterpiece Cakeshop. According to Westword, other previous customers like Yelp user Samantha S., have said the shop does not "participate in making cakes for 'illegal' things, such as a commitment ceremony." A Masterpiece employee did say, however, that they would be willing to make any other kind of celebratory cake for gay customers, as long as it was not for a wedding or commitment ceremony. 

June 2013 AP Article (emphasis added):

Quote

David Mullins, left, and Charlie Craig, right, successfully sued a Colorado bakery after their order for a rainbow wedding cake was turned down by the owner

June 2013 Fox Article (emphasis added):

Quote

The complaint stems from an incident on July 19, 2012, in which Masterpiece owner Jack Phillips declined to create a rainbow layer cake for the couple’s October wedding in Massachusetts, saying his business does not bake cakes for gay weddings.

Huffington Post Article:

Quote

Dave Mullins and Charlie Craig, who are set to tie the knot in Provincetown, Mass. this fall but are planning a Denver-based reception for later in the year, said they were stunned and humiliated by their experience with Phillips.

“It was the most awkward, surreal, very brief encounter,” Mullins, 28, told Denver Westword. “We got up to leave, and to be totally honest, I said, ‘F**k you and your homophobic cake shop.’ And I may or may not have flipped him off.”

Classy!

Nevertheless, the findings of the fact in the original administrative court case appear to favor the gay couple's factual claim.  Those findings, however, are a bit at odds with the couples public statements:

Quote

4. On July 19, 2012, Complainants Charlie Craig and David Mullins entered Masterpiece Cakeshop in the company of Mr. Craig’s mother, Deborah Munn.

5. Complainants sat down with Phillips at the cake consulting table. They introduced themselves as “David” and “Charlie” and said that they wanted a wedding cake for “our wedding.”

6. Phillips informed Complainants that he does not create wedding cakes for same-sex weddings. Phillips told the men, “I’ll make you birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.”

7. Complainants immediately got up and left the store without further discussion with Phillips.

8. The whole conversation between Phillips and Complainants was very brief, with no discussion between the parties about what the cake would look like.

9. The next day, Ms. Munn called Masterpiece Cakeshop and spoke with Phillips. Phillips advised Ms. Munn that he does not create wedding cakes for same-sex weddings because of his religious beliefs, and because Colorado does not recognize same-sex marriages. 

Note the omission of any description of the decoration.  That, I think, is important.

Now consider the results from the case (from the Petitioner's brief):

Quote

The ALJ {Administrative Law Judge} ordered Phillips to (1) create wedding cakes celebrating same-sex marriages if he creates similar cakes for one-man-one-woman marriages, (2) retrain his staff to do likewise, and (3) report to the Commission every order he declines to fill for any reason for the next two years.

I don't see how this is not a Free Speech issue.  If making movies, music, sculptures, paintings, etc. are forms of speech, then so is making customized wedding cakes.  If flag burning is a form of speech, then so is making customized wedding cakes.

The government is compelling Mr. Phillips, against his will, to engage in speech which he finds morally/religiously objectionable.  

So with respect, I disagree that the issue I am raising is "irrelevant."

8 minutes ago, california boy said:

And yet once again, no business is forced to decorate or write anything on a cake that goes against their personal beliefs.  

See above.  

8 minutes ago, california boy said:

That is not discrimination.  Refusing to sell the customer a cake is the issue that is before the Supreme Court.

Well, I will take your word on that.

But my question remains.

8 minutes ago, california boy said:

I do find it interesting that these non discrimination laws have been in effect for 50 years and during all that time, no baker ever have recorded any objection to baking a cake for ANY other sinner or ANY other event.  Is gay marriage the ONLY issue that christians have an objection to?  

If your question was posed in good faith, I would attempt a response.  But it clearly isn't ("ANY other sinner" gives you away), so I won't.

Thanks,

-Smac

[Analytics]

14 minutes ago, smac97 said:

We discussed the Colorado baker case last December.  In that case the gay couple suing the baker repeatedly asserted in their brief that they "Phillips did not ask for, and Mullins and Craig did not offer, any details about the design of the cake."  However, contemporary news accounts seem to differ with that...

Assuming the contemporary news accounts are accurate, perhaps the Colorado baker should sue his attorney? In the ruling, the court said, "The parties did not dispute any material facts." Are you now claiming that the material facts are actually different than the facts upon which the appeals court made its ruling?

Edited October 3, 2017 by Analytics

[california boy]

13 minutes ago, smac97 said:

I'm not sure which specific case we are speaking of.  In any event, the larger question is, I think, quite relevant.  I think there is a legal distinction to be made between refusing to sell a cake to a gay person (there are no legitimate "compelled speech" concerns in such a situation) and refusing to decorate a wedding cake with a celebratory "gay wedding" motif (where "compelled speech" is very much a concern).

We discussed the Colorado baker case last December.  In that case the gay couple suing the baker repeatedly asserted in their brief that they "Phillips did not ask for, and Mullins and Craig did not offer, any details about the design of the cake."  However, contemporary news accounts seem to differ with that:

FoxNews Article (emphasis added):

July 2012 KDVR Article (emphasis added):

July 2012 Westword Article (apparently published one day after the incident) (emphasis added)

July 2012 Advocate Article (emphasis added):

2013 Chicago Tribune Article (emphasis added):

July 2012 Advocate Article (emphasis added):

June 2013 AP Article (emphasis added):

June 2013 Fox Article (emphasis added):

Huffington Post Article:

Classy!

Nevertheless, the findings of the fact in the original administrative court case appear to favor the gay couple's factual claim.  Those findings, however, are a bit at odds with the couples public statements:

Note the omission of any description of the decoration.  That, I think, is important.

Now consider the results from the case (from the Petitioner's brief):

I don't see how this is not a Free Speech issue.  If making movies, music, sculptures, paintings, etc. are forms of speech, then so is making customized wedding cakes.  If flag burning is a form of speech, then so is making customized wedding cakes.

The government is compelling Mr. Phillips, against his will, to engage in speech which he finds morally/religiously objectionable.  

So with respect, I disagree that the issue I am raising is "irrelevant."

See above.  

Well, I will take your word on that.

But my question remains.

If your question was posed in good faith, I would attempt a response.  But it clearly isn't ("ANY other sinner" gives you away), so I won't.

Thanks,

-Smac

So are you asserting that Masterpiece Bakery would have made a wedding cake for a gay wedding, just not one that was rainbow layered?

[kllindley]

So, is this to be the new norm then?

http://theliberator.news/2017/homosexual-coffee-shop-owner-evicts-peaceful-christians/

 

[california boy]

3 hours ago, kllindley said:

So, is this to be the new norm then?

http://theliberator.news/2017/homosexual-coffee-shop-owner-evicts-peaceful-christians/

 

I think there are a lot of christians who have not really thought through where this whole "I don't serve your kind" religious freedom will lead to.  They see it only as their right to not serve gays.  I wouldn't be surprised at all to see this kind of behavior become commonplace in some communities if the Supreme Court rules in favor of the ability for shop owners to refuse customers because of personally held religious beliefs.  There may very well be places in the United States where they become the ones persecuted and discriminated against.  Is this really what we want in this country?  Is refusing to serve someone really Christian behavior?  Is refusing to serve someone really an American value that we want to legalize?

[Benjamin McGuire]

LittleNipper writes:

Quote

No one should be made to attend or visit or deliver something to somewhere they find abhorrent and disgusting.

Actually, I think that they should under certain circumstances (and I think that most people would agree with me). It already happens all the time. Postal delivery persons and UPS drivers regularly have to deliver things that the might find abhorrent and disgusting. And yet we don't have any real issues with this - it is the nature of the job. If we put a ten commandments monument up in front of a courthouse, should we force non-Christians to go there? What about monuments to civil war leaders who resisted the loss of their slaves? What should we do for blacks who feel that those monuments are abhorrent and disgusting reminders of slavery? How far do you want the line moved just to support your own personal views?

I think that despite our best efforts to minimize conflicts of this sort, there are always going to be circumstances where this occurs. The laws that we try to produce are aimed at avoiding the greater of two evils. We don't want to have circumstances where there is a way for people to bypass our normal conventions on discrimination. And as the cake maker points out, all he has to do is to stop doing something more generally - as long as he does it for no one, he doesn't have to do it for someone. This is a choice that he can make to avoid being forced to do something that he may find abhorrent or disgusting.

[kllindley]

4 minutes ago, Benjamin McGuire said:

LittleNipper writes:

Actually, I think that they should under certain circumstances (and I think that most people would agree with me). It already happens all the time. Postal delivery persons and UPS drivers regularly have to deliver things that the might find abhorrent and disgusting. And yet we don't have any real issues with this - it is the nature of the job. If we put a ten commandments monument up in front of a courthouse, should we force non-Christians to go there? What about monuments to civil war leaders who resisted the loss of their slaves? What should we do for blacks who feel that those monuments are abhorrent and disgusting reminders of slavery? How far do you want the line moved just to support your own personal views?

I think that despite our best efforts to minimize conflicts of this sort, there are always going to be circumstances where this occurs. The laws that we try to produce are aimed at avoiding the greater of two evils. We don't want to have circumstances where there is a way for people to bypass our normal conventions on discrimination. And as the cake maker points out, all he has to do is to stop doing something more generally - as long as he does it for no one, he doesn't have to do it for someone. This is a choice that he can make to avoid being forced to do something that he may find abhorrent or disgusting.

And yet from a perspective of truly trying to promote peace and good will, I don't think the current ruling is the most helpful. The court literally said that one of the baker's available avenues of recourse is to post signage stating their beliefs. So  along with a statement that they cannot discriminate let's post something stating that the business believes gay marriage is an abomination. Along with the videographer case, the idea is that business owners are told that you are being compelled to do this, but you can say other nasty things. Is this really the best way to promote tolerance and civility?

[kllindley]

5 hours ago, california boy said:

I think there are a lot of christians who have not really thought through where this whole "I don't serve your kind" religious freedom will lead to.  They see it only as their right to not serve gays.  I wouldn't be surprised at all to see this kind of behavior become commonplace in some communities if the Supreme Court rules in favor of the ability for shop owners to refuse customers because of personally held religious beliefs.  There may very well be places in the United States where they become the ones persecuted and discriminated against.  Is this really what we want in this country?  Is refusing to serve someone really Christian behavior?  Is refusing to serve someone really an American value that we want to legalize?

But we aren't living in a post-pro-masterpiece world. This is what is going on now. While the rulings against discrimination still stand. It is exactly this double standard where the law protects one worldview and turns a blind eye to discrimination against religious beliefs that has people so afraid.

[Benjamin McGuire]

Smac writes:

Quote

I'm not sure which specific case we are speaking of.  In any event, the larger question is, I think, quite relevant.  I think there is a legal distinction to be made between refusing to sell a cake to a gay person (there are no legitimate "compelled speech" concerns in such a situation) and refusing to decorate a wedding cake with a celebratory "gay wedding" motif (where "compelled speech" is very much a concern).

The courts have for decades insisted that compelled speech is perfectly acceptable when the laws are generic, and where there is a discrimination claim. Free speech cannot be used to treat one class differently than another. The cake case isn't about this more generally, it is about the entanglement of free speech with the free exercise clause. Can the government compel speech that infringes on the free exercise of religion? That is the question here.

I think though that in this case, the question of speech also exists. It isn't simply speech, it is speech-for-hire (and that is not the same sort of animal). On top of this, it is quite clear that there exists the problem of perspective. How do we determine that it is speech at all? Does anyone eating the cake recognize it as speech on the part of the baker? Or has it been co-opted as speech on the part of those getting married? What if we buy a custom wedding cake and there is no wedding? Does this make that speech nonsensical? There is this philosophical problem of whose speech the cake represents - and it is not art in the sense of a piece of artwork meant to be communicative in and of itself. People who buy these cakes are not looking for a piece of art representing the artist, but something representing themselves. So I think it is a more open question than some here think.

Earlier you posed several questions like this:

Quote

What about demanding, under threat of legal punishment, that a gay baker to decorate a cake like this:

It would fail. Why? Because you can discriminate quite legally on issues like this. The problem only occurs (as was pointed out by another federal judge just a little over a week ago) when the issue defines a suspect class in a way that is virtually inseparable. The belief that Jews are evil, and that the Nazis were right isn't a belief that identifies any specific group that we would recognize as a protected class. So the free speech argument would be compelling (in the absence of an identifiable instance of illegal discrimination). But, those buying a cake for their own same-sex marriage find themselves in that exact circumstance - you can't really separate the issue of the wedding cake from the protected class. And so the two situations aren't analogous.

By the same token, the arguments would be quite different if someone wanted a "same-sex marriage" cake but not for a same-sex marriage (let's say a photo-shoot).  And at the same time, would the cake be seen as making a specific kind of speech if it wasn't being used in a wedding? I am not sure that his speech when he claims that he is being compelled to say that he agrees with same-sex marriage - still exists in that circumstance in the same way. There are all sorts of interesting distinctions that could be raised - and probably we will see some of these kinds of questions during oral arguments. I am certainly looking forward to it (I am a bit of a fan follower of SCOTUS myself so .... I like the arguments as much as I am interested in the outcomes).

[Gray]

17 hours ago, Analytics said:

As far as I can tell, the real issue is whether baking a wedding cake is endorsing the specific marriage, expressing approval of what the couple might do in their honeymoon suite, or somehow serving as an integral part of the wedding. Or whether it is merely baking a cake.

In this case, the baker is arguing that when he creates a generic wedding cake, he is practicing his religion, not simply providing goods and services to society. Because he personally views what he does this way, he wants an exemption to non-discrimination laws.

That seems like a slippery slope. If a baker can refuse to bake a cake for a gay couple because of his religion, can he refuse to bake a cake to a Mormon couple because of his religion? If bakers are allowed to discriminate, how about the caterer? Fine chefs? Chain restaurants? e.g. Oh, your rehearsal dinner is for a Jewish wedding? Sorry--we prepare food in honor of the Lord Jesus Christ and it would be blasphemous to do so for Jews. How about gas stations? e.g. Sorry, providing people to travel to their destination is a religious exercise for us, and we feel like we are an integral part of your trip. Since you are driving to the Mormon temple, we can't provide you with fuel. But there is a station 20 miles down that would sell you gas. Good luck!

I could see a libertarian court throwing down all non-discrimination laws as being unconstitutional on the basis of the freedom of association. But it is really hard for me to imagine a strong, consistent ruling that says, "You are allowed to break the laws that apply to everybody else, provided you are doing so for a sincere religious motivation. So if you are a Christian who hates gays, you don't have to bake wedding cakes for gays, but if you are an atheist who hates gays, you have to bake it because your bigotry isn't religiously motivated."

Paying taxes is against my religion. Why is uncle sam trying to take away my religious freedom?

[Benjamin McGuire]

Quote

And yet from a perspective of truly trying to promote peace and good will, I don't think the current ruling is the most helpful. The court literally said that one of the baker's available avenues of recourse is to post signage stating their beliefs. So  along with a statement that they cannot discriminate let's post something stating that the business believes gay marriage is an abomination. Along with the videographer case, the idea is that business owners are told that you are being compelled to do this, but you can say other nasty things. Is this really the best way to promote tolerance and civility?

The court's interest is not in promoting tolerance and civility, it is in promoting equality and preventing discrimination. By making these views public, the public can then exert the necessary pressure to deal with the situation. It's one thing for members of society to make bigoted statements. It's another thing for them to try and brand one group and treat them as less than the rest of us. The first is allowed. The second isn't.

I think in many ways, this is an issue that has some kinship with the civil rights issues of the past. We (collectively) as simply slow to change. But social justice moves forward, even if part of that process involves the passing of a generation (which takes a lot of time). Our young people (again speaking collectively) are far less racist than our parents were. These same sorts of thing will happen over issues like this. But that doesn't mean that there won't be those who are aggressively pushing both for and against these kinds of changes.

[Gray]

9 hours ago, kllindley said:

So, is this to be the new norm then?

http://theliberator.news/2017/homosexual-coffee-shop-owner-evicts-peaceful-christians/

 

100:1 odds this is completely made up.

[kllindley]

30 minutes ago, Gray said:

100:1 odds this is completely made up.

You want to put money on that? Did you watch the video? Bedlam Coffee has been active on Facebook defending himself. I'm comfortable it's not made up. 

[Gray]

3 minutes ago, kllindley said:

You want to put money on that? Did you watch the video? Bedlam Coffee has been active on Facebook defending himself. I'm comfortable it's not made up. 

The article you posted, from a right wing blog, read like a Christian persecution wish fulfillment novella. Anything's possible, but based on the source and content I'm very skeptical.

Edited October 4, 2017 by Gray

[kllindley]

38 minutes ago, Benjamin McGuire said:

The court's interest is not in promoting tolerance and civility, it is in promoting equality and preventing discrimination. By making these views public, the public can then exert the necessary pressure to deal with the situation. It's one thing for members of society to make bigoted statements. It's another thing for them to try and brand one group and treat them as less than the rest of us. The first is allowed. The second isn't.

I think in many ways, this is an issue that has some kinship with the civil rights issues of the past. We (collectively) as simply slow to change. But social justice moves forward, even if part of that process involves the passing of a generation (which takes a lot of time). Our young people (again speaking collectively) are far less racist than our parents were. These same sorts of thing will happen over issues like this. But that doesn't mean that there won't be those who are aggressively pushing both for and against these kinds of changes.

Just like the younger generation are fine with the behavior of the coffee shop owner above. Ah, the forward motion of social justice. 

[smac97]

15 hours ago, california boy said:

So are you asserting that Masterpiece Bakery would have made a wedding cake for a gay wedding, just not one that was rainbow layered?

Not really.  I am asking a question.  Do you see a difference between baking and selling a cake and decorating one?  It seems that the former behavior (baking/selling a cake) does not involve "speech," whereas the latter does (or can).

If burning a flag, or wearing a "F*** the Draft" jacket, or singing an anti-war song, or making a movie critical of a political figure, are all forms of expressive (and also constitutionally protected) speech, then so is custom decorating a cake with a "gay rainbow" and Groom-and-Groom topper.

I am not comfortable with ceding to the government power to force me to engage in speech against my will.  I don't want to be forced by the government, under threat of fine and/or imprisonment, to speak things I do not want to speak.  

But that is where the "Shut up and decorate my gay wedding cake, or else I'll sue you into oblivion"-style "gay rights" activism seems to be headed.  With the full-throated support of . . . some.

Thanks,

-Smac

Edited October 4, 2017 by smac97

[kllindley]

3 minutes ago, Gray said:

The article you posted, from a right wing blog, read like a Christian persecution wish fulfillment novella. Anything's possible, but based on the source and content I'm very skeptical.

I agree. That's why I researched and actually watched the video before assuming my preconceived ideas were the truth. 

[Amulek]

47 minutes ago, kllindley said:

The court literally said that one of the baker's available avenues of recourse is to post signage stating their beliefs.

Not exactly. The court didn't say  they could post a sign stating their beliefs. The court said that they could post something like a disclaimer stating that "the provision of its services does not constitute an endorsement or approval of conduct protected by CADA" [Colorado Anti-Discrimination Act]. 

As Professor David Bernstein points out, "The essential problem here is raised by this hypothetical: Masterpiece agrees to bake same-sex wedding cakes, but puts up a sign that says they are doing so only because the state is requiring them do so. However, says the sign, the owners are morally opposed to same-sex marriage and would prefer not to bake such cakes. Everyone on the anti-MB side I've raised this with has agreed that this would be illegal, and that they oppose this just as much as they oppose not baking the cakes at all, because of the dignitary harm to the same-sex (and overwhelmingly gay) couples. The fact that the same objection applies when the good is being provided, albeit with public reluctance, shows that the underlying issue is not the provision of commercial services, but the expression through such expression of an ideology, and the suppression of a counter-ideology. So it really is a compelled speech case, after all."