Supreme Court's Decision in Colorado "Gay Wedding Cake" Case

[california boy]

28 minutes ago, smac97 said:

That.

I read it.  

The comparison is apt.  You are talking about "identical cakes."  I am talking about identical songs.  

For example, Donald Trump wants to use a recording of Aerosmith's "Dream On" during a rally.  Aerosmith has said no.  The song is the same, but the venue and way it is being used matters to Aerosmith.

The use of these artists' "speech" in a particular venue (a Trump rally) is - as you put it "speech [that is] saying something different" than if it were being used in other venues.  

The use of Mr. Phillips's "speech" in a particular venue (a gay wedding) is - as you put it "speach [that is] saying something different" than if it were being used in other venues.

-Smac

Donald Trump is not a protected class.  No one is saying that you can not discriminate against someone for rude behavior.  

[USU78]

4 minutes ago, california boy said:

Donald Trump is not a protected class.  No one is saying that you can not discriminate against someone for rude behavior.  

Tautology

[USU78]

41 minutes ago, smac97 said:

As between the Free Speech clause (which protects against compelled speech) and a bigoted application of a so-called "nondiscrimination" statute (as evidenced by the Colorado Civil Rights Commission), the former wins.

I think this article does a good job at providing an assessment of what is going on:

Sadly, Polycarp did not have constitutional protections against bullies and tyrants.  Fortunately, we do!

Yep.  Bigotry.  By the "gay rights" crowd (at least those that crow about the delights of using the coercive power of government to punish Christians who fail to bend the knee).  That is an entirely apt description, and I think we'll see it more and more.  Society doesn't like bullies, and that is just what the "gay rights" crowd has become.

Russell Berger.  Another casualty for speaking words verboten by our current crop of self-appointed thought police.

Aye, there's the rub.  Mr. Phillips declined to speak what others want to use the coercive power government to force him to speak.  He wanted the right to refrain from compelled speech, the same way the three subsequent secular bakers were allowed to refrain.  But because Mr. Phillips is a Christian, he was punished.  By the bigoted Civil Rights Commission, the same commission that then went to to protected secular refusals of compelled speech.

More to the point, Mr. Phillips didn't decline to serve gay customers.  He declined to produce a particular item, regardless of who was asking for it.

Yep.  The bigotry of the "Civil Rights Commission" is laid bare.  

Well, we are in agreement, then.  If Mr. Phillips finds gay marriage offensive, he cannot be compelled to speak in favor of it.

Or perhaps not.  Christians, it seems, are not to be allowed to "deny services ... on the basis of the ... offensiveness of any given message."  Because they are Christians.  They are to be punished.  By those gays and lesbians who cannot tolerate diversity of opinion, or Free Speech, or Free Exercise, and who enjoy using the power of government to destroy Christians do not bend the knee.

-Smac

P.S. I am referencing "Christians" particularly here because it is my perception that it is Christians who are being specifically targeted.  They are not a favored group, you see.  By way of example, can anyone point to instances where gay rights activists have targeted a Muslim business owner or entrepreneur and threatened to sue him/her unless he speaks in favor of gay marriage?  I haven't seen that, and I don't think we will.  Because Christians are the targets of this particular battlefield of the Culture Wars.

It's simply a question of "what," not "who."

[smac97]

9 minutes ago, USU78 said:

It's simply a question of "what," not "who."

Yep.  The "what" being endorsement of gay marriage.

The intolerance being shown against those who do not want to be coerced into endorsing gay marriage is pretty appalling.

Thanks,

-Smac

 

[USU78]

2 minutes ago, smac97 said:

Yep.  The "what" being endorsement of gay marriage.

The intolerance being shown against those who do not want to be coerced into endorsing gay marriage is pretty appalling.

Thanks,

-Smac

 

Question: if the objection to homosexual marriage is based upon the irrationality and junk science associated with its enshrinement and not religious scruples, can the objector then be compelled to bake offensive cakes?

[smac97]

19 minutes ago, california boy said:

Donald Trump is not a protected class.  

Whether or not discrimination based on political affliation is illegal depends on the jurisdiction, and on the behavior.  See, e.g., here:

Quote

D.C. CODE § 2-1411.02

The purpose of the Office is to secure an end to unlawful discrimination in employment, housing, public accommodations, and educational institutions for any reason other than that of individual merit. The Office shall seek to eradicate discrimination on the basis of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression (as defined in § 2-1401.02(12A)), familial status, family responsibilities, matriculation, political affiliation, physical disability, source of income, and place of residence or business.

SEATTLE, WASH. MUN. CODE §§ 14.06.020(L)

L. "Discrimination" means any conduct, whether by single act or as part of a practice, the effect of which is to adversely affect or differentiate between or among individuals or groups of individuals, because of race, color, creed, religion, ancestry, national origin, age, sex, marital status, parental status, sexual orientation, gender identity, political ideology, honorably discharged veteran or military status, participation in a Section 8 program, the presence of any disability, the use of a service animal by a disabled person, or the right of a mother to breastfeed her child.

And here:

Quote

Unfortunately, no federal laws exist that provide protections to private sector employees from workplace discrimination based on political affiliation.  Many cities, states, and counties, however, do offer protections to employees on this basis.  For example, the District of Columbia Human Rights Act prohibits all employers in the District from refusing to hire, terminating, or otherwise discriminating against any individual with respect to his or her “compensation, terms, conditions, or privileges of employment” on the basis of the individual’s political affiliation.  D.C. Code § 2-1402.11.  Similar prohibitions exist in some neighboring Maryland counties, including Prince George’s and Howard Counties.  See Prince George’s County Code § 2-186(3); Howard County Code § 12.200(II).  An attorney may be able to help you determine whether such rights exist in your jurisdiction.

And here:

Quote

There are only three jurisdictions in the United States that explicitly bans political affiliation and activity discrimination, California, D.C., and New York. New York does not cover political affiliation discrimination, only political activity discrimination. Federal law discrimination law does not cover political affiliation or political activity. However, many states prohibit employers from influencing the votes of their employees. 

And here:

Quote

Not all states have laws prohibiting political affiliation discrimination or termination for political activities, but many do. So do some counties and cities. The Civil Service Reform Act of 1978 prohibits political affiliation discrimination against federal employees. In Michigan, the laws prohibit direct or indirect threats against employees for the purpose of influencing their vote. It also prohibits tracking of political activity. In Ohio, West Virginia, Pennsylvania and Kentucky, employers are prohibited from posting or handing out notices threatening to shut down or lay off workers if a particular candidate is elected. In Oregon, it’s illegal to threaten loss of employment in order to influence the way someone votes. In Washington State, it’s illegal to retaliate against employees for failing to support a candidate, ballot position or political party. Some states, like California, Colorado, New York, North Dakota and Louisiana, say it’s illegal to retaliate against an employee for their off-duty participation in politics or political campaigns. In Florida, it’s a felony to “discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people.”

In any case, my point is not about Donald Trump.  It's about Free Speech.

19 minutes ago, california boy said:

No one is saying that you can not discriminate against someone for rude behavior.  

Wearing a hat is not "rude behavior."  

And in any event, my point is not about "rude behavior."  It's about Free Speech.

Thanks,

-Smac

[smac97]

2 minutes ago, USU78 said:

Question: if the objection to homosexual marriage is based upon the irrationality and junk science associated with its enshrinement and not religious scruples, can the objector then be compelled to bake offensive cakes?

I don't think it is the province of the government to split that hair.  If a person opposes homosexual marriage, then he has the right to say as much.  He also has the right to not be coerced by the government into speaking in ways that contravene his beliefs.

Thanks,

-Smac

[USU78]

2 minutes ago, smac97 said:

I don't think it is the province of the government to split that hair.  If a person opposes homosexual marriage, then he has the right to say as much.  He also has the right to not be coerced by the government into speaking in ways that contravene his beliefs.

Thanks,

-Smac

So ... the free exercise clause is irrelevant to the Court's decision. Thus religiosity is irrelevant. It is solely a freedom of expression issue.

[Stargazer]

2 hours ago, Gray said:

We tried Jim Crow before. It was a terrible idea.

"Tried"Jim Crow?  What exactly were we "trying"?  It was terrible, yes, but it was not what you seem to think it was.

Jim Crow was not libertarian.  Jim crow was law. Jim Crow was the power of the state enforcing prejudice and segregation by law, and had to be obeyed under penalty of law.  When the bus driver tried to get Rosa Parks to move from her seat he was not volunteering his own prejudice, he was doing his job under the law as it then existed.  The law mandated that colored riders in the back of the bus give up their seats (and stand) as the whites-only section became full and there were no more seats for white riders.  She refused to do so, and was eventually arrested.  It was an act of civil disobedience, not a stubborn refusal to submit to the prejudicial whims of the bus driver.  Her heroic act led to the breaking of Jim Crow.  But it was law, not mere prejudice.

Allowing people to make choices of their own free will is not "Jim Crow". 

 

[smac97]

15 minutes ago, USU78 said:

Quote

I don't think it is the province of the government to split that hair.  If a person opposes homosexual marriage, then he has the right to say as much.  He also has the right to not be coerced by the government into speaking in ways that contravene his beliefs.

Thanks,

-Smac

So ... the free exercise clause is irrelevant to the Court's decision. Thus religiosity is irrelevant. It is solely a freedom of expression issue.

I think it's both.  It's also an Equal Protection issue (SCOTUS spent a lot of time faulting the Civil Rights Commission for its disparate treatment of Mr. Phillips as compared to the three subsequent bakers).  It's also a Freedom of Association issue (potentially).

SCOTUS did not really address the constitutional issues head-on.  And to the extent it did, the treatment focused on the Commission's animus to Mr. Phillips's religious (Free Exercise) beliefs.

Thanks,

-Smac

[kllindley]

2 hours ago, Daniel2 said:

Everyone,

All the attempts to compare this case to either denying cakes celebrating abortion, those in polyamorous relationships, or musicians denying the use of their copyrighted music to political rallies are entirely irrelevant because neither politicians, polyamorists, nor those who get abortions are legally held to be protected classes qualifying under anti-disscrimination protections (on the basis of their politics or experiences with polyamory or abortion alone).  

Gender does qualify, and, increasingly, so is sexual orientation as those cases continue to wind their way through the court system.

In exactly the same way that musicians can legally deny the use of their music to a broad variety of consumers they disagree with, Mr. Phillips can likewise deny services to politicians, or on the basis of abortion, or on the basis of the vulgarity or offensiveness  of any given message. 

But none of us can discriminate against members of a protected class. 

And I stand by my previous assertion that attempts to muddy the waters by drawing false equivalencies, no matter how eloquently stated or documented, definitely qualifies as sophistry, even when said individuals object to being called out on It.

 

I would agree that the comparisons are not equivalent if we are restricting the conversation to whether or not Masterpiece Cakeshop violated Colorado Law. 

However, they are extremely applicable to the question of whether or not anti-discrimination laws are being applied in a constitutional manner when they prioritize sexual orientation over other forms of identity. 

It seems like what you are saying is that because of it's protected class status, ultimately sexual orientation deserves more rights than political identity or other "acceptable" forms of discrimination, including against religious belief? Isn't that contrary to the mantra that the LGBT community doesn't want extra rights, just equal rights?

[USU78]

34 minutes ago, smac97 said:

I think it's both.  It's also an Equal Protection issue (SCOTUS spent a lot of time faulting the Civil Rights Commission for its disparate treatment of Mr. Phillips as compared to the three subsequent bakers).  It's also a Freedom of Association issue (potentially).

SCOTUS did not really address the constitutional issues head-on.  And to the extent it did, the treatment focused on the Commission's animus to Mr. Phillips's religious (Free Exercise) beliefs.

Thanks,

-Smac

Don't listen to what they say, watch what they do. That's how I figure out what the true holding is.

They're so afraid of the free exercise clause that they only talk about, but rarely if ever actually apply it. Sure, they'll make pious noises, but they never actually do anything when faced with a free exercise abridgement (except if Amerindians are involved).

Reynolds remains good law: free exercise always gives way to political convenience.

Edited June 8, 2018 by USU78

[Gray]

4 hours ago, Stargazer said:

"Tried"Jim Crow?  What exactly were we "trying"?  It was terrible, yes, but it was not what you seem to think it was.

Jim Crow was not libertarian.  Jim crow was law. Jim Crow was the power of the state enforcing prejudice and segregation by law, and had to be obeyed under penalty of law.  When the bus driver tried to get Rosa Parks to move from her seat he was not volunteering his own prejudice, he was doing his job under the law as it then existed.  The law mandated that colored riders in the back of the bus give up their seats (and stand) as the whites-only section became full and there were no more seats for white riders.  She refused to do so, and was eventually arrested.  It was an act of civil disobedience, not a stubborn refusal to submit to the prejudicial whims of the bus driver.  Her heroic act led to the breaking of Jim Crow.  But it was law, not mere prejudice.

Allowing people to make choices of their own free will is not "Jim Crow". 

 

A distinction with no meaningful difference. Private segregation was rampant at the same time as public segregation. It was a bad chapter in America's history. Most Americans are glad it's over.

[Stargazer]

47 minutes ago, Gray said:

A distinction with no meaningful difference. Private segregation was rampant at the same time as public segregation. It was a bad chapter in America's history. Most Americans are glad it's over.

As am I.  But I disagree about the distinction.  If the law hadn't existed, artificially supporting the system, it would have lessened over time -- though not soon enough in my opinion.  As it is, repeal didn't eliminate it, and just for the reason you cite.  But having the law in place provided artificial support for the attitude -- and those who did not adhere to the attitude but who were law-abiding, had to keep quiet.  Just like all those who really don't want to participate in or condone gay marriage must now keep silent, or face the wrath of the law.

 

[Daniel2]

8 hours ago, kllindley said:

[The comparisons] are extremely applicable to the question of whether or not anti-discrimination laws are being applied in a constitutional manner when they prioritize sexual orientation over other forms of identity. 

It seems like what you are saying is that because of it's protected class status, ultimately sexual orientation deserves more rights than political identity or other "acceptable" forms of discrimination, including against religious belief? Isn't that contrary to the mantra that the LGBT community doesn't want extra rights, just equal rights?

I don't see any prioritization of sexual orientation over other forms of identity, nor do I believe I am advocating for such.

I am advocating in favor of the concept that sexual orientation in so far as it relates to the gender between spouses be treated equally as other protected classes such as religion and gender.

I also don't see how I am advocating that sexual orientation "deserves more rights" than religious belief.  Can you elaborate on how you believe that's what I'm suggesting?

[Kenngo1969]

Apologies if this has already been posted.  I've just gotten back from a rather enjoyable three-day vacation with family during which we went to see extended family whom we see all too rarely.  (The three-day part of it actually is a miracle: It's virtually impossible to get three consecutive unscheduled days off from my employer, and the irony is that I got two days off, worked a day, took another three days off, work tomorrow, and then get another two days off ... Now, if I'd only been able to get the previous Thursday and tomorrow off, I could've gotten something like nine consecutive days off, if my math is right ...   Go figure!)

Agree with Professor McConnell or disagree with him, but he is one of the foremost constitutional thinkers publishing today: One ignores him at that person's own peril.

https://www.poseidon01.ssrn.com/delivery.php?ID=164026089095086067064107069066126106103071022042063039098083019018007029098098087104027098125022121046105081110011108097111027010025046089088009003015119082091002127077010044119003084103026114127020087001005120121071022067069087084006099087021087103091&EXT=pdf

 

[kllindley]

On 6/8/2018 at 6:07 PM, Daniel2 said:

I don't see any prioritization of sexual orientation over other forms of identity, nor do I believe I am advocating for such.

I am advocating in favor of the concept that sexual orientation in so far as it relates to the gender between spouses be treated equally as other protected classes such as religion and gender.

I also don't see how I am advocating that sexual orientation "deserves more rights" than religious belief.  Can you elaborate on how you believe that's what I'm suggesting?

I think I can understand that you don't see it. We've beat that horse to death before. 

Unfortunately, the fact that so many people just aren't able to see it is exactly why so many religious people support-or at least tolerate-Trump. 

That it is acceptable to simultaneously claim that the action of same-sex marriage is so fundamental to an entire "class" of people that it falls under equal protection, and but that religious conduct can appropriately be infringed at the whim of the State is frightening. 

 

[california boy]

I wonder if all those fighting for the baker that is asserting his right to discriminate based on his religious beliefs ever think about where this is all going.  Let's say that eventually the Supreme Court rules in favor of religion, and they now have the right to discriminate against ANYONE based on their beliefs.  Then what?

This is kind of like the whole Prop 8 thing.  The church had every right to support a political proposition that took away the civil rights of gay couples.  They even won the battle.  But the consequences of that choice have been pretty severe.  What kind of consequences do you think will happen if religion starts to discriminate?  Will animosity towards religion only increase?  Will more people will leave organized religion, disgusted with such behavior, once again, in "The Name of God".  When you tell someone you are Christian, are you prepared to be looked upon as a bigot and someone who threats others unkindly even if you are not and would gladly serve anyone?  The exercising of this right is going to label all Christians whether they like it or not and no matter how unfair that label is.  Be careful what you wish for.  

I think Christ taught us great wisdom when He addressed this very subject.  

"And whoever shall force you to go one mile, go with him two” (Matt. 5:41). By law, Roman soldiers could force citizens of Israel or any foreigner to carry their backpacks for a mile.  Christ taught, not to just go a mile, but do more than is asked of you.  Why did He teach such a principle?  What was He trying to tell us?  I think Christians would be wise to follow the teachings of those whom they claim to follow.  

Perhaps some here are fighting on the wrong side of this issue.  Perhaps you have much more to loose if this "right to discriminate" is granted than the gay couple looking for a wedding cake.

Edited June 11, 2018 by california boy

[Hamba Tuhan]

2 hours ago, california boy said:

What kind of consequences do you think will happen if religion starts to discriminate?  Will animosity towards religion only increase?

Your worries are misplaced. As we (should) have learnt from history, people do not like being forced to act in opposition to their consciences, and when the breaking point is reached, it almost always results in bloodshed. This is the exact milieu from which the concept of freedom of conscience (along with thought and expression) emerged in early modern Europe, eventually resulting in the peace-creating acknowledgement that sincerely held differences of opinion must be accommodated.

You, on the other hand, desire to compel a man to act in a way that validates you personally but violates his conscience because, at heart, you despise his freedom to disagree with -- and disapprove of -- you. This is the essence of the totalitarian impulse. That way lies the greatest danger.

[california boy]

1 hour ago, Hamba Tuhan said:

Your worries are misplaced. As we (should) have learnt from history, people do not like being forced to act in opposition to their consciences, and when the breaking point is reached, it almost always results in bloodshed. This is the exact milieu from which the concept of freedom of conscience (along with thought and expression) emerged in early modern Europe, eventually resulting in the peace-creating acknowledgement that sincerely held differences of opinion must be accommodated.

You, on the other hand, desire to compel a man to act in a way that validates you personally but violates his conscience because, at heart, you despise his freedom to disagree with -- and disapprove of -- you. This is the essence of the totalitarian impulse. That way lies the greatest danger.

It is not my decision, and I will be happy however the courts rule.  Like I said, gay couples wanting a cake have much less to loose than those using religion as a reason to discriminate.  So you are reading a lot into what I never said.  But hey, I am used to the personal attacks coming from Mormons.  People on this board have done far worse than you.  It will be interesting to see how this all plays out.

[Gray]

1 hour ago, Hamba Tuhan said:

Your worries are misplaced. As we (should) have learnt from history, people do not like being forced to act in opposition to their consciences, and when the breaking point is reached, it almost always results in bloodshed. This is the exact milieu from which the concept of freedom of conscience (along with thought and expression) emerged in early modern Europe, eventually resulting in the peace-creating acknowledgement that sincerely held differences of opinion must be accommodated.

You, on the other hand, desire to compel a man to act in a way that validates you personally but violates his conscience because, at heart, you despise his freedom to disagree with -- and disapprove of -- you. This is the essence of the totalitarian impulse. That way lies the greatest danger.

 

Is there anything more distasteful than using religion as a cover for lawlessness? A few extremists and apostates should not hold the whole nation hostage.

[JAHS]

4 hours ago, california boy said:

I wonder if all those fighting for the baker that is asserting his right to discriminate based on his religious beliefs ever think about where this is all going.  Let's say that eventually the Supreme Court rules in favor of religion, and they now have the right to discriminate against ANYONE based on their beliefs.  Then what?

The question that pops into my head is, how many business owners are actually going to refuse to serve a customer because of their religious beliefs? Most business owners would want to get and keep as many customers as they can.
I know if I had the cake baking business I would sell to anyone. Doesn't mean I support or approve of their lifestyle choice, it just means I want their money. I should be confident enough in my religious beliefs that I don't have to force what I believe on someone else. My friends and fellow church members would know where I stand on the subject and therefore would not see my serving certain people means that I approve of how they live; It just means I want to run a successful business. Thousands of church members work in and even own businesses that sell alcohol, but it doesn't mean they support the drinking of it. 

[kllindley]

4 hours ago, california boy said:

I wonder if all those fighting for the baker that is asserting his right to discriminate based on his religious beliefs ever think about where this is all going.  Let's say that eventually the Supreme Court rules in favor of religion, and they now have the right to discriminate against ANYONE based on their beliefs.  Then what?

This is kind of like the whole Prop 8 thing.  The church had every right to support a political proposition that took away the civil rights of gay couples.  They even won the battle.  But the consequences of that choice have been pretty severe.  What kind of consequences do you think will happen if religion starts to discriminate?  Will animosity towards religion only increase?  Will more people will leave organized religion, disgusted with such behavior, once again, in "The Name of God".  When you tell someone you are Christian, are you prepared to be looked upon as a bigot and someone who threats others unkindly even if you are not and would gladly serve anyone?  The exercising of this right is going to label all Christians whether they like it or not and no matter how unfair that label is.  Be careful what you wish for.  

I think Christ taught us great wisdom when He addressed this very subject.  

"And whoever shall force you to go one mile, go with him two” (Matt. 5:41). By law, Roman soldiers could force citizens of Israel or any foreigner to carry their backpacks for a mile.  Christ taught, not to just go a mile, but do more than is asked of you.  Why did He teach such a principle?  What was He trying to tell us?  I think Christians would be wise to follow the teachings of those whom they claim to follow.  

Perhaps some here are fighting on the wrong side of this issue.  Perhaps you have much more to loose if this "right to discriminate" is granted than the gay couple looking for a wedding cake.

I see the as fundamentally missing the point that most of "us" are trying to make. The issue in our view is not a "right to discriminate" especially not against gay people. As I've said repeatedly, I would have zero problem with baking the cake. So much so, that I don't even see this case as a "Christian" issue.  Just to be explicit: I think the baker's behavior was wrong from my moral judgement. 

But it's BS to try to frame it as a right to discriminate. It is pretty telling when you need an organized media campaign to control the message and avoid the real substance of the issue. Most people I know of "defending the baker" are actually opposing the State's intrusion on religious exercise. Even when that religious exercise is something we personally disagree with.  You know. Pluralism. 

[Hamba Tuhan]

25 minutes ago, california boy said:

I will be happy however the courts rule. 

I sincerely doubt that. You've certainly repeatedly demonstrated you endless unhappiness with any previous outcome not in your express favour.

Quote

But hey, I am used to the personal attacks coming from Mormons.  People on this board have done far worse than you.

As a rule, I'm not bothered by attempts at emotional blackmail perpetrated by oppressors pretending to be victims, so I hope you'll forgive me if I decline to let you redefine my comment as a 'personal attack'.

[Hamba Tuhan]

15 minutes ago, Gray said:

Is there anything more distasteful than using religion as a cover for lawlessness?

I think your obvious abhorrence of and intolerance for those whose consciences won't allow them to bow before your idols is certainly one candidate.