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

[hope_for_things]

11 hours ago, Bernard Gui said:

Jordan Peterson got on the big map by refusing to acquiesce to government-mandated speech. Isn’t that closely related to this issue?

That event did put him on the map, but we can't reduce his positions on complicated issues in that kind of reductionist way.  Like I said before, people all over the spectrum, liberal to conservative are in favor of free speech.  The fact that the SCOTUS didn't rule on the free speech arguments in this case specifically is of note.  

[Bernard Gui]

34 minutes ago, hope_for_things said:

That event did put him on the map, but we can't reduce his positions on complicated issues in that kind of reductionist way.  Like I said before, people all over the spectrum, liberal to conservative are in favor of free speech.  The fact that the SCOTUS didn't rule on the free speech arguments in this case specifically is of note.  

Nevertheless, I strongly doubt Dr. Peterson would approve of government-forced participation in something against one’s religious or moral beliefs.

[Kenngo1969]

As I wrote back in 2015:

 

Quote

 

Gay marriage and religious conscience a tricky balance

By Ken K. Gourdin

It won't surprise the reader to learn that I adhere to a religious tradition which holds that: (1) sex outside of marriage is wrong, and (2) marriage between a man and a woman is ordained of God. As a legal matter, the First Amendment protects religious freedom, while the Fourteenth Amendment prohibits discrimination.

Religious convictions notwithstanding, if a same-sex couple asked me to provide services to celebrate their union, I would probably agree to do so: nothing in my religious tradition mandates that I force people to accept my paradigm, and I'm too practical to lose business in such a case.

That said, I understand the objection of those who believe that doing business in such a case would violate their religious conscience, and I support the right of business owners to refuse such business for that reason.

On the other hand, I would still allow couples refused such business to sue. However, I would require that the couple prove that their reasonable efforts to obtain a similar service at a similar price were unsuccessful.

Further, I would limit recovery to the difference between what the refusing business owner would have charged them and what the accepting business owner did charge them (along with such related expenses as travel). The couple refused business is free to seek a willing provider, while an unwilling provider's right of conscience still is respected.

The battle-lines are clearly marked. One side cheers, "Fourteenth-Amendment Equal Protection!" while the other cheers, "First-Amendment Free Exercise of religion!" But I don't believe any other solution than the one I have proposed would adequately protect such free exercise.

If the Fourteenth Amendment is interpreted to mandate that a business owner provide service even when doing so violates his religious conscience, then that renders First-Amendment supposed protection of free exercise moot.

To argue otherwise is essentially to say, in my view, that one's "free" exercise of religion is limited to within the walls of his church on his holy day. As messy as it is to try to suss out religion's proper role in public life, I don't think that's what those who crafted the First Amendment had in mind.

To borrow and slightly alter an old axiom, "A man forced to do business against his will, is of the same opinion, still."

To those who argue that such a solution is like a step back to the segregation and discrimination of the Jim Crow south, I would say that isolated, nonsystemic, discrimination in fact is different than the formerly widespread, systemic, legal discrimination that the Fourteenth Amendment now prohibits.

It's worth remembering, too, that however one feels about government and marriage, marriage was a religious institution for centuries before the government ever got involved. And theoretically, it's possible to confer most all of marriage's benefits upon a couple without marrying them.

One need not be a bigot, or to hate anyone, or to want to tear up the U.S. Constitution, to favor traditional marriage. Before one removes a fence, one would do well to ponder why it was erected in the first place.

Ken K. Gourdin is a certified paralegal. His opinions are his own, and do not constitute legal advice.

 

 

[california boy]

2 hours ago, Bernard Gui said:

 I have absolutely no animus toward the participants in a ss marriage or toward people sitting at a table with me. Being forced to participate in something I don’t support is the issue.

Derailing with personal insults again? These are false and vile accusations. Please stop.

First of all, YOU posted a personal post about how YOU would not perform at a gay wedding.  You did that. 

Second of all, i never mentioned your name in my response to your post. 

Third, what personal insult did I hurl at you?

If You don’t want anyone to comment on your very personal posts then don’t post personal posts. You are being very unfair. 

[hope_for_things]

2 hours ago, Bernard Gui said:

Nevertheless, I strongly doubt Dr. Peterson would approve of government-forced participation in something against one’s religious or moral beliefs.

I did some searching online and couldn't find anything where Dr. Peterson has commented on this specific topic.  But I do listen to his podcast and have read some of his writings and I don't think his views align with what was articulated in this thread.  I also don't think your characterization of someone baking a cake for a wedding as "government-forced participation."  

[Anijen]

7 hours ago, Calm said:

If one could get a guaranteed as high of quality a product elsewhere, I think I would have no problem with a recommendation  to a better or as good as with as good or better prices. To not allow a group access to the best quality product at a good price...that seems fundamentally wrong though.

 

I love competition it provides better service, better products at cheaper prices. However, I do not think competition is at issue here. 

Lets say Picasso was the best painter and his quality of work is never surpassed. Do you feel it would be right to force Picasso to make an artistic work and then force him to sell it to you?

[smac97]

13 minutes ago, hope_for_things said:

I also don't think your characterization of someone baking a cake for a wedding as "government-forced participation."  

Of course it's "government-forced participation."  It is nothing but "government-forced participation."  Mr. Phillips declined to decorate a gay wedding cake.  He was punished by the government for declining to decorate a gay wedding cake.

What are your thoughts about a Jewish videographer who is approached by a rabid anti-semitic group to record and roduce a promotional/recruiting video for their cause?  Do you think the videographer should have the right to decline to provide such a service?  

What about an artist who despises the LDS Church being approached by an observant Latter-day Saint to paint a portrait of Joseph Smith.  Do you think the artist should have the right to decline such a proposal?

What are your thoughts about the Colorado Civil RIghts Commission's trio of post-Phillips decisions, including the Jack case, which are discussed at some length in yesterday's SCOTUS decision?  Were those decisions rightly or wrongly decided, in your view?

Thanks,

-Smac

[JulieM]

2 hours ago, hope_for_things said:

 The fact that the SCOTUS didn't rule on the free speech arguments in this case specifically is of note.  

There was just a judge and attorney giving analysis of this decision on TV (FOX) and they both agreed that if this baker goes back to baking wedding cakes and refuses to sell an identical cake to a gay couple for their wedding that they sell to heterosexual couples getting married, that gay couple can sue him again and if he’s not treated with the same bias from the Colorado Civil Rights Commission, he would lose this time.

I’m trying to really figure this out!  Is that possibly true?

[smac97]

10 minutes ago, JulieM said:

There was just a judge and attorney giving analysis of this decision on TV (FOX) and they both agreed that if this baker goes back to baking wedding cakes and refuses to sell an identical cake to a gay couple for their wedding that they sell to heterosexual couples getting married, that gay couple can sue him again and if he’s not treated with the same bias from the Colorado Civil Rights Commission, he would lose this time.

I’m trying to really figure this out!  Is that possibly true?

Yes.  In fact, it's likely in my view.  SCOTUS all but told the Commission to hide its bigotry.  See here (from yesterday's decision):

Quote

There were, to be sure, responses to these arguments that the State could make when it contended for a different result in seeking the enforcement of its generally applicable state regulations of businesses that serve the public. And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case. 

As I observed earlier: "I hate to say it, but the translation of this appears to be: 'Hey, Commission, there are, "to be sure," ways to justify the government in compelling a religious person to engage in speech offensive to his religious sensibilities, while also prohibiting the government in compelling secular-minded folks from engaging in speech they find offensive.  You just have to word it right.  Don't be so obvious in your bigotry.'"

See also here (from another attorney's analysis):

Quote

Thus, a state human rights agency, for example, can get around the Court’s ruling by concealing its contempt for religious views like those of the baker and pretending neutrally to balance them against the imperative, as Justice Kennedy sees it, that “gay persons and gay couples [not] be treated as social outcasts or as inferior in dignity and worth.”

However, I think the Commission will have some real difficulty in doing this since they have, in three subsequent cases against bakers asked to decorate cases with anti-gay messages which they found offensive, found that bakers do have a right to refuse to decorate cakes based on the content of the message they are asked to convey.

So how can the Commission say "Yes, secular bakers can refuse to decorate cakes with messages they find offensive, but Christian bakers cannot refuse to decorate cakes with messages they find offensive"?

Thanks,

-Smac

[Anijen]

14 minutes ago, JulieM said:

There was just a judge and attorney giving analysis of this decision on TV (FOX) and they both agreed that if this baker goes back to baking wedding cakes and refuses to sell an identical cake to a gay couple for their wedding that they sell to heterosexual couples getting married, that gay couple can sue him again and if he’s not treated with the same bias from the Colorado Civil Rights Commission, he would lose this time.

I’m trying to really figure this out!  Is that possibly true?

Yes its sadly true. It is an invitation for more litigation on the same issue and if the Colorado Commission even feigns neutrality and words they use are not so mean it would appear from Justice KKennedy's opinion that the ss couple would prevail.

[Bernard Gui]

1 hour ago, california boy said:

First of all, YOU posted a personal post about how YOU would not perform at a gay wedding.  You did that. 

Second of all, i never mentioned your name in my response to your post. 

Third, what personal insult did I hurl at you?

If You don’t want anyone to comment on your very personal posts then don’t post personal posts. You are being very unfair. 

The issue is being forced to participate and that was stated from the start and is why I brought it up because it could affect me personally. You painting me as a bigot with an oblique but obviously personal jab...is sad and puerile. 

And you continue to derail and insult. Please stop. 

Edited June 5, 2018 by Bernard Gui

[Bernard Gui]

1 hour ago, hope_for_things said:

I did some searching online and couldn't find anything where Dr. Peterson has commented on this specific topic.  But I do listen to his podcast and have read some of his writings and I don't think his views align with what was articulated in this thread.  I also don't think your characterization of someone baking a cake for a wedding as "government-forced participation."  

I also have followed Dr. Peterson closely and have read his recent book. We'll have to disagree on how he might react to this kind of government coercion.

A government commission in Colorado used its regulatory authority to force a baker to offer a service or be shut down. I don't know how that can be interpreted other than "government-forced participation." We'll have to agree to disagree on that, too.

Edited June 5, 2018 by Bernard Gui

[Bernard Gui]

1 hour ago, Anijen said:

I love competition it provides better service, better products at cheaper prices. However, I do not think competition is at issue here. 

Lets say Picasso was the best painter and his quality of work is never surpassed. Do you feel it would be right to force Picasso to make an artistic work and then force him to sell it to you?

No. It's his work, not mine.

[hope_for_things]

1 hour ago, smac97 said:

Of course it's "government-forced participation."  It is nothing but "government-forced participation."  Mr. Phillips declined to decorate a gay wedding cake.  He was punished by the government for declining to decorate a gay wedding cake.

What are your thoughts about a Jewish videographer who is approached by a rabid anti-semitic group to record and roduce a promotional/recruiting video for their cause?  Do you think the videographer should have the right to decline to provide such a service?  

What about an artist who despises the LDS Church being approached by an observant Latter-day Saint to paint a portrait of Joseph Smith.  Do you think the artist should have the right to decline such a proposal?

What are your thoughts about the Colorado Civil RIghts Commission's trio of post-Phillips decisions, including the Jack case, which are discussed at some length in yesterday's SCOTUS decision?  Were those decisions rightly or wrongly decided, in your view?

Thanks,

-Smac

These are all good questions and possible scenarios that could come up in the courts in the future.  I think they are also all different.  For example the artist situation would probably be considered differently than the videographer situation.  I don't have easy answers for any of these scenarios.  This is part of the current discussion we're having a society that values free speech and also values freedom of choice.  We'll see what the future holds.  

As for the Colorado Civil Rights commission, I haven't read up on that yet and I'll see if I can get up to speed.  Do you have a link to the specific section you're referring to by chance?

[hope_for_things]

1 hour ago, JulieM said:

There was just a judge and attorney giving analysis of this decision on TV (FOX) and they both agreed that if this baker goes back to baking wedding cakes and refuses to sell an identical cake to a gay couple for their wedding that they sell to heterosexual couples getting married, that gay couple can sue him again and if he’s not treated with the same bias from the Colorado Civil Rights Commission, he would lose this time.

I’m trying to really figure this out!  Is that possibly true?

Yes, I think it is likely as well.  The court decision seems very carefully crafted to leave open this possibility for future cases.  

[Bernard Gui]

1 hour ago, JulieM said:

There was just a judge and attorney giving analysis of this decision on TV (FOX) and they both agreed that if this baker goes back to baking wedding cakes and refuses to sell an identical cake to a gay couple for their wedding that they sell to heterosexual couples getting married, that gay couple can sue him again and if he’s not treated with the same bias from the Colorado Civil Rights Commission, he would lose this time.

I’m trying to really figure this out!  Is that possibly true?

Which is why I would prefer the people through their free participation in the market to solve the problem rather than the government. 

Edited June 5, 2018 by Bernard Gui

[Bernard Gui]

I pay self-employment taxes from money I receive providing music for weddings and receptions. We also have business cards that we use to advertise our services. If I declined to play for a service, regardless its nature, would this make me liable for lawsuits and legal sanctions, or would it just be for a ss ceremony? Would I be subject to punishment if I asked up front about the nature of the event and then declined, or if I accepted and then learned the nature and backed out? Theses are sincere questions, and I don't want to derail by having to defend myself against false charges of bigotry.

[smac97]

13 minutes ago, hope_for_things said:

These are all good questions and possible scenarios that could come up in the courts in the future.  I think they are also all different.  For example the artist situation would probably be considered differently than the videographer situation. 

Why is that?  Both are involved in commerce.  Both forms of commerce involve artistic expression.  

13 minutes ago, hope_for_things said:

I don't have easy answers for any of these scenarios.  This is part of the current discussion we're having a society that values free speech and also values freedom of choice.  We'll see what the future holds.  

I understand.

13 minutes ago, hope_for_things said:

As for the Colorado Civil Rights commission, I haven't read up on that yet and I'll see if I can get up to speed.  Do you have a link to the specific section you're referring to by chance?

Just do a search for "Jack" in the PDF of the decision.  These other cases are referenced several times.

Thanks,

-Smac

[hope_for_things]

28 minutes ago, Bernard Gui said:

I also have followed Dr. Peterson closely and have read his recent book. We'll have to disagree on how he might react to this kind of government coercion.

A government commission in Colorado used its regulatory authority to force a baker to offer a service or be shut down. I don't know how that can be interpreted other than "government-forced participation." We'll have to agree to disagree on that, too.

How is this coercion any different than all the other laws we have to obey as a civilized society.  Are you morally outraged about taxes, or about civil rights, or how about the DMV?  I can get behind some DMV outrage.  

[smac97]

1 minute ago, hope_for_things said:

Quote

I also have followed Dr. Peterson closely and have read his recent book. We'll have to disagree on how he might react to this kind of government coercion.

A government commission in Colorado used its regulatory authority to force a baker to offer a service or be shut down. I don't know how that can be interpreted other than "government-forced participation." We'll have to agree to disagree on that, too.

How is this coercion any different than all the other laws we have to obey as a civilized society. 

Other laws are compatible with the Constitution.  All laws are ultimately subordinate to the Constitution and the rights recognized within it.  So a law that violates rights arising from the Free Exercise clause, or the Free Speech clause, or the Free Association clause, or the Equal Protection clause, is invalid.

1 minute ago, hope_for_things said:

Are you morally outraged about taxes, or about civil rights, or how about the DMV?  I can get behind some DMV outrage.  

This is why I posed my previous set of questions to you.  If and when you answer them, I think you'll start to better understand our position.

Thanks,

-Smac

[california boy]

38 minutes ago, Bernard Gui said:

The issue is being forced to participate and that was stated from the start and is why I brought it up because it could affect me personally. You painting me as a bigot with an oblique but obviously personal jab...is sad and puerile. 

And you continue to derail and insult. Please stop. 

I never even mentioned you in my post.  RATHER than making it personal I referred to all Mormons.  My comment was directly related to what you posted, so it was not a derail.  You made a personal post about how you personally would never play at a gay wedding and then you took my post as personal.  The problem is entirely yours.  You keep accusing me of doing something that I am not doing.  I asked you what insult I hurled at you.  You came up empty handed.  What should stop is your continued false accusations that you seem to easily hurl at me without any basis for them.  

You got two options here.  Quit posting personal posts, so others won't comment on what you wrote.  Or ignore my responses to your posts.  But to continually telling me to stop posting in a forum that is designed to do exactly that is something you should not be doing.  If you think someone is making this personal, the first place you should look is in the mirror.  Re read my post.  I said nothing about you personally, nor did I post an insult to you.  Now look at both of your posts directed at me.  BOTH of them are personally directed at me for something I never said or did.   It is getting annoying.   I am moving on.  I will continue to reply to this thread and the discussion that is being addressed.  Further posts directed personally at me will be ignored by me.  

[california boy]

7 hours ago, Storm Rider said:

Cal, you and I both agree that it would be wonderful if individuals would only say, "Your (insert your descriptor of choice) speech is not welcome here".  The problem is that there are those, which seem to be only on the Left, that believe others have no right to speak at any time.

Yes, I don't think a child who is manipulated to say things in a testimony meeting is the best of choices for her parents. A child of 12 does not know anything, does not comprehend sexuality to any degree.  A child of 16 does not either; they may understand the mechanics, but they don't comprehend what human sexuality is to any significant degree.  

Cal, I have never felt you were the type of person that would not listen to the other side, but you also know that the Left is notorious for not any allowing others to speak with whom they disagree.  It just has never occurred to me that our response to hearing that a speaker, with whom we strongly disagree, is to violently prevent them from speaking.  My response is to just not attend their event.  I wish they would teach that type of response to college students; they appear to be in dreadful need of a proper understanding of free speech.

I agree that there are SOME on the left that handled the issue in Berkeley wrong in my opinion.  But I don't think I would label it as a problem with the entire left.  Does that seem fair?

My response would be similar to yours.  I would simply not attend a speech by someone who spews hatred.

[hope_for_things]

24 minutes ago, smac97 said:

Other laws are compatible with the Constitution.  All laws are ultimately subordinate to the Constitution and the rights recognized within it.  So a law that violates rights arising from the Free Exercise clause, or the Free Speech clause, or the Free Association clause, or the Equal Protection clause, is invalid.

I think reasonable protections for the LGBT community are compatible with the constitution, just like civil rights protections.  I anticipate that future rulings by the SCOTUS will continue to trend in that same direction as well.  

[california boy]

5 hours ago, smac97 said:

I believe businesses and individuals have constitutional rights to Free Speech, Free Exercise, Free Association, and Equal Protection.  All of those are implicated in this discussion.

So do I.

5 hours ago, smac97 said:

What are your thoughts about a Jewish videographer who is approached by a rabid anti-semitic group to record a promotional/recruiting video for their cause?  Do you think the videographer should have the right to decline to provide such a service? 

My thoughts?  Pretty easy.  I follow the teachings of Christ.  He clearly taught about this very thing.  

Quote

 

Matthew 5:41

 And whosoever shall compel thee to go a mile, go with him twain. 

 

Christ is teaching us that when the law of the land compels us to do something, our responsibility  is to do more than we are compelled to do by law.  So if a Jewish videographer is approached by a rabid anti-semitic group to record a promotional/recruiting video for their cause, if he wants to follow the teachings of Christ, he should do even more than is asked of him to do.  He should absolutely put his best work forward.

5 hours ago, smac97 said:

What about an artist who despises the LDS Church being approached by an observant Latter-day Saint to paint a portrait of Joseph Smith.  Do you think the artist should have the right to decline such a proposal?

Same applies.  The person who despises the LDS Church if he is a disciple of Christ, he should paint the very best portrait of Joseph Smith that he can possibly paint.  Given what Christ said on this very subject, how could he do differently?

5 hours ago, smac97 said:

What are your thoughts about the Colorado Civil RIghts Commission's trio of post-Phillips decisions, including the Jack case, which are discussed at some length in yesterday's SCOTUS decision?  Were those decisions rightly or wrongly decided, in your view?

Thanks,

-Smac

I think the Colorado Civil Rights Commission treated the baker unfairly.  The Supreme Court decision was right on the mark.  But it doesn't answer my question, and neither did you.  

Quote

Do you believe that a business has a constitutional right to know and control what happens to their product once it leaves the store?

 

[smac97]

11 minutes ago, hope_for_things said:

I think reasonable protections for the LGBT community are compatible with the constitution, just like civil rights protections. 

Agreed.  The question here, though, is whether nondiscrimination and public accommodations laws, as applied to Mr. Phillips, run afoul of the Free Exercise clause, the Free Speech clause, the Free Association clause, and/or the Equal Protection clause.

I would also hope that "reasonable protections for the religious community" would likewise be on your radar.

Thanks,

-Smac