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

[Gray]

16 minutes ago, Amulek said:

This is a non sequitur. If you don't understand why, then you obviously don't understand the underlying issue. 

A cake is a commercial product, like a defibrillator or a desk or a shoe. Craftsmanship does not transform a commercial product into a work of art.

Edited August 20, 2018 by Gray

[kllindley]

6 minutes ago, Gray said:

A cake is a commercial product, like a defibrillator or a desk or a shoe. Craftsmanship does not transform a commercial product into a work of art.

Would you also classify a dress as a commercial product?

 

[Gray]

12 minutes ago, kllindley said:

Would you also classify a dress as a commercial product?

 

Yes.

[Anijen]

7 minutes ago, Gray said:

No, that doesn't follow.

Yes, it does, but as I mentioned before you are blind. It is hard for a blind person to see the way. You said Phillips is a bigot because his beliefs are bigoted, your actual words were; "No, he's a bigot because his beliefs are bigoted."  Thus, you are a bigot against Christians because you believe Christian beliefs are bigoted.

 

Quote

You don't seem to understand their ruling. They reversed based on prejudice from the commission, not based on the defendent's innocence.

My belief is that I understand it much better than you do. Yes it was reveresed based on prejudiced. Prejudice of what? From the Colorado Commission making regulations (IOW laws) against discrimination that the Commission believe Mr. Phillips disobeyed. In which he was punished (you cannot be legally punished w/out violating some law). Please follow.

 

Quote

not based on the defendent's innocence.

Based on the Defendant's guilt of the regulation (another word for law) against discrimination. Furthermore you spelled defendant wrong (I learned to spell it correctly while I was taking my Constitutional Law and First Amendment classes in law school. I do understand the ruling, believe me

 

Quote

This is word salad.

Yeah, so?

[smac97]

56 minutes ago, Gray said:

The test for artistic expression isn't whether or not it's free (all good artists charge for their work).

Okay.  What, in your view, is the "test?"

Quote

But a bakery doesn't sell artwork. It sells baked goods.

And Elton John doesn't sell artwork.  He sells songs.

Quote

Perhaps the baker would care to register as an art gallery instead if he really believes in good faith that his desserts are "art"?

Perhaps we could attempt to have a substantive, meaningful discussion about this topic, without veering into sneers and sarcasm.

Quote

https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964

His argument is transparent sophistry. He's using rhetorical trickery to try to get around the law.

I encourage you to give this matter some further thought and study.

The law is replete with analogies.  With judges using a case or series of cases to develop a legal principle, which principle can then be deployed in ways that are quite factually distinct from the original applications.

For example, consider Pierson v. Post, one of the most famous property law cases in American history.  Here are the facts:

Quote

Lodowick Post, a fox hunter, was chasing a fox through a vacant lot on December 10, 1802, when Pierson came across the fox and, knowing it was being chased by another, killed the fox and took it away. Post sued Pierson on an action for trespass on the case for damages against his possession of the fox. Post argued that he had ownership of the fox as giving chase to an animal in the course of hunting it was sufficient to establish possession. The trial court found in favor of Post.

On appeal after the trial, the issue put to the Supreme Court of Judicature of New York was whether one could obtain property rights to a wild animal (Ferae naturae), in this case the fox, by pursuit. The Supreme Court case was heard by Chief Justice James Kent, then one of the nation's preeminent jurists, and associate justices Daniel Tompkins (who would later become Vice President of the United States) and Henry Brockholst Livingston (who would go on to serve as a Justice of the U.S. Supreme Court).

Here's the majority opinion:

Quote

If we have recourse to the ancient writers upon general principles of law, the judgment below is obviously erroneous. Justinian's Institutes, and Fleta, adopt the principle, that pursuit alone vests no property or right in the huntsman; and that even pursuit, accompanied with wounding, is equally ineffectual for that purpose, unless the animal be actually taken. The same principle is recognized by Bracton.

Puffendorf defines occupancy of beasts feræ naturæ, to be the actual corporeal possession of them, and Bynkershoeck is cited as coinciding in this definition. It is indeed with hesitation that Puffendorf affirms that a wild beast mortally wounded, or greatly maimed, cannot be fairly intercepted by another, whilst the pursuit of the person inflicting the wound continues. The foregoing authorities are decisive to show that mere pursuit gave Post no legal right to the fox, but that he became the property of Pierson, who intercepted and killed him.[Citations omitted]

Pierson ended up creating or introducing "a coherent principle on how property can be first possessed by a human being."  "Determining the rightful ownership of the fox involved the essence of the human notion of 'property' itself and how it is created, and for this reason Pierson v. Post is included in nearly all Anglo-American property casebooks."

Pierson is used to establish basic principles of property ownership for all sorts of things, including oil and natural gas (which, like the fox, is ferae naturae, and hence subject to the "Rule of Capture," which is that the person who captures the wild thing is entitled to ownership of it).

So if Pierson v. Post, an 1805 case from New York about two hunters chasing a fox, can be used by oil and gas attorneys in Houston in 2018 to make a legal point about an oil well in the Gulf of Mexico, then perhaps it is possible that analogies to one form of speech and the rights associated therewith (the right of an artist like Elton John to not be coerced into participating or letting his music (speech) be used in, an anti-gay rally) can be applied to another form of speech (the right of an artist like Mr. Phillips to not be coerced into participating or letting his bespoke cakes (speech) be used in a gay wedding or a transgender-themed party).

Thanks,

-Smac

Edited August 20, 2018 by smac97

[Anijen]

The government, consistent with the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520. As quoted in the Masterpiece Cake decision.

[Amulek]

37 minutes ago, Gray said:

A cake is a commercial product, like a defibrillator or a desk or a shoe. Craftsmanship does not transform a commercial product into a work of art.

You seem to be hung up on the 'art' angle. What we are really talking about, however, is speech. 

It seems obvious that a cake can be designed and decorated in a way that will communicate a message. Do you disagree? Or are cakes always just widgets in your view?

So, for example:

        Can a black cake maker refuse to make a cake depicting the confederate flag?

        Can a NY baker refuse to make a cake depicting an airplane flying into the twin towers?

        Can a conservative baker refuse to make a cake for Playboy depicting nude models?

If not, why not?

If a cake is really a "commercial product, like a defibrillator or a desk or a shoe," then all of those cakes ought to get made, correct?

After all, a commercial business who makes defibrillators, desks, or shoes would be required to sell their products to racists, provocateurs, and pornographers. 

So if the black cake maker refuses (on principle) to make a confederate flag, then we should use the force of government to either compel him to do otherwise or force him to close up shop, right?

Edited August 20, 2018 by Amulek

[smac97]

37 minutes ago, Gray said:

A cake is a commercial product, like a defibrillator or a desk or a shoe. Craftsmanship does not transform a commercial product into a work of art.

Elton John's songs are a commercial product, like a defibrillator or a desk or a shoe.  Craftsmanship does not transform a commercial product into a work of art.

We could go on like this all day.

Thanks,

-Smac

[Storm Rider]

43 minutes ago, Gray said:

A cake is a commercial product, like a defibrillator or a desk or a shoe. Craftsmanship does not transform a commercial product into a work of art.

You might want to talk to a cake designer before you start making these types of declarations from your lofty position of ignorance. Ask them if they are creative or artists or could anyone do what they do. 

[Storm Rider]

20 minutes ago, Anijen said:

The government, consistent with the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520. As quoted in the Masterpiece Cake decision.

Hey, hey, hey - you stop that this instant! We only use the constitution if it meets our objectives and social agenda. Or, maybe if we want to twist it out of shape to meet our needs.  This is not allowed and it will not be tolerated any longer. If you persist we will shut your business down, shame you in restaurants or wherever else you shop and brand you so that all will hate you or at least the all that matter. 

[kllindley]

33 minutes ago, Gray said:

Yes.

So a dressmaker should not be allowed to discriminate against any potential customer, correct?

[smac97]

So this is an interesting summary of "compelled speech" cases:

Quote

In 1935, the flamboyant leader of Jehovah's Witnesses, Joseph Rutherford, declared that saluting the American flag violated the Biblical command against worshiping graven images, and urged his followers not to do so.  Rutherford's call would lead to two U. S. Supreme Court decisions considering whether states could demand flag salutes from public school children.  In 1941, in the midst of World War II, the Court announced its 8-1 opinion in Minersville School District vs Gobitis, upholding a Pennsylvania school district's decision to expel three Jehovah's Witnesses who refused to salute the flag.  The Court's decision was criticized by Eleanor Roosevelt and over 170 newspaper editorialitst. Then, just two years later in West Virginia vs Barnette, the Court reversed itself and ruled 6-3 that West Virginia's decision to expel students who refused to salute the flag violated the First Amendment.  (The startlingly quick overruling of Gobitis came as the result of three justices--Douglas, Black, and Murphy-- switching their votes and two new justices, Robert Jackson and Wiley Rutledge, joining the Court.)  Justice Jackson's opinion for the Court saw inconsistency in an interpretation of the First Amendment that "guards the individual's right to speak his own mind, but left it open to public authorities to compel him to utter what is not on his mind."

Quite so.  Similarly, the execrable and ironically-named Colorado "Civil Rights" Commission should not be allowed to use the ofrce of law to compel Mr. Phillips "to utter what is not on his mind," even if the "uttering" comes in the form of cake decorations.

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In 1977, the Court considered another compelled speech claim, this one brought by a New Hampshire couple who had three times been prosecuted for covering up the motto "Live Free or Die" on their New Hampshire license plate.  The Maynards, also Jehovah's Witnesses, objected on religious grounds to the ideological message conveyed on the state license plates.  Writing for the Court, Chief Justice Burger enjoined enforcement against the Maynards of New Hampshire's law prohibiting the obscuring or defacing of license plates.  The law, the Court said, compelled individuals to be "couriers for ideological messages" and "mobile billboards."

Yep.  Similarly, the Colorado "Civil Rights" Commission seeks to force Mr. Phillips and people like him to be "couriers for ideological messages" and "mobile billboards" for ideas with which they disagree.

Quote

In 1980, in Pruneyard Shopping Center vs Robins, the Supreme Court rejected the argument of the owner of a California Shopping Center that a California Supreme Court decision finding a state constitutional right of third persons (in this case, high school students) to pass out political leaflets on the shopping center grounds violated the federal Constitution's First Amendment.  The owner argued, relying on Wooley and Barnette, that his property was being used in such a way as to suggest his endorsement of a political message that he may not have agreed with.  The Court disagreed, concluding under the circumstances of the case that no one was likely to conclude that the shopping center was a sponsor or an endorser of the political message being presented in the shopping center parking lot.

This brings up the issue of compelled speech that could be construed as "sponsoring" or "endorsing" a message that is objectionable to the speaker.

Could a custom cake specifically designed to celebrate a same-sex marriage or gender transition be construed as "sponsoring" or "endorsing" same-sex marriage or gender transition?

Quote

The Court extended the compelled speech doctrine in the important 2018 case of Janus v American Federation of State, Local, and Municipal Employees.  In a 5 to 4 decision, the Court overruled a precedent case from 1977 that held that public employee unions could require employees who chose not to join the union to make a financial contribution (less than the normal union dues) to cover the cost of the union representing the employee in collective bargaining.  The fee was said to be justified as a measure designed to keep union peace and avoid the "free-rider" problem of employees getting the benefit of union negotiations without paying for any of the cost.  Writing for the Court in Janus, Justice Alito said that forcing employees to subsidize speech (union positions regarding negotiation and what state fiscal policy with respect to employees should be) is a form of compelled speech.  The Court held that neither of the main justifications for the fees were sufficiently compelling to support the policy.  Unions worried that the effects of Janus will be very harmful to the union movement.

Hmm.  If compulsory union dues are construed as subsidizing speech, and if compulsory subsidization of speech is a form of compelled speech, then can the definition of "speech" extend to the customizing of a cake to include a specifically-intended message?

Thanks,

-Smac

[Gray]

1 hour ago, Anijen said:

Yes, it does, but as I mentioned before you are blind. It is hard for a blind person to see the way. You said Phillips is a bigot because his beliefs are bigoted, your actual words were; "No, he's a bigot because his beliefs are bigoted."  Thus, you are a bigot against Christians because you believe Christian beliefs are bigoted.

What does the baker have to do with Christians in general? His extremist views are in the minority. To point out that someone is bigoted is not bigotry.

 

1 hour ago, Anijen said:

My belief is that I understand it much better than you do. Yes it was reveresed based on prejudiced. Prejudice of what? From the Colorado Commission making regulations (IOW laws) against discrimination that the Commission believe Mr. Phillips disobeyed. In which he was punished (you cannot be legally punished w/out violating some law). Please follow.

My observation is that you have not clearly understood the ruling. The prejudice was not in Colorado's laws, it was in one of the member's attitude toward the baker.

 

1 hour ago, Anijen said:

 

Based on the Defendant's guilt of the regulation (another word for law) against discrimination. Furthermore you spelled defendant wrong (I learned to spell it correctly while I was taking my Constitutional Law and First Amendment classes in law school. I do understand the ruling, believe me

 

Yeah, so?

As long as we're making spelling corrections, you spelled "reversed" wrong.

[Gray]

1 hour ago, smac97 said:

Okay.  What, in your view, is the "test?"

And Elton John doesn't sell artwork.  He sells songs. 

 

Music is a form of artistic expression. Skilled craftsmanship is not the same thing as art.

 

Quote

 

Perhaps we could attempt to have a substantive, meaningful discussion about this topic, without veering into sneers and sarcasm.

Perhaps you could go a day without you using the word "sneer" to describe people who disagree with you? As if no one could disagree with you without being a kind of sneering snobbish villain caricature.

 

Quote

I encourage you to give this matter some further thought and study.

The law is replete with analogies.  With judges using a case or series of cases to develop a legal principle, which principle can then be deployed in ways that are quite factually distinct from the original applications.

For example, consider Pierson v. Post, one of the most famous property law cases in American history.  Here are the facts:

Here's the majority opinion:

Pierson ended up creating or introducing "a coherent principle on how property can be first possessed by a human being."  "Determining the rightful ownership of the fox involved the essence of the human notion of 'property' itself and how it is created, and for this reason Pierson v. Post is included in nearly all Anglo-American property casebooks."

Pierson is used to establish basic principles of property ownership for all sorts of things, including oil and natural gas (which, like the fox, is ferae naturae, and hence subject to the "Rule of Capture," which is that the person who captures the wild thing is entitled to ownership of it).

So if Pierson v. Post, an 1805 case from New York about two hunters chasing a fox, can be used by oil and gas attorneys in Houston in 2018 to make a legal point about an oil well in the Gulf of Mexico, then perhaps it is possible that analogies to one form of speech and the rights associated therewith (the right of an artist like Elton John to not be coerced into participating or letting his music (speech) be used in, an anti-gay rally) can be applied to another form of speech (the right of an artist like Mr. Phillips to not be coerced into participating or letting his bespoke cakes (speech) be used in a gay wedding or a transgender-themed party).

Thanks,

-Smac

I don't seen any relevance to the topic at hand.

Edited August 20, 2018 by Gray

[Gray]

1 hour ago, Amulek said:

You seem to be hung up on the 'art' angle. What we are really talking about, however, is speech. 

It seems obvious that a cake can be designed and decorated in a way that will communicate a message. Do you disagree? Or are cakes always just widgets in your view?

So, for example:

        Can a black cake maker refuse to make a cake depicting the confederate flag?

        Can a NY baker refuse to make a cake depicting an airplane flying into the twin towers?

        Can a conservative baker refuse to make a cake for Playboy depicting nude models?

If not, why not?

If a cake is really a "commercial product, like a defibrillator or a desk or a shoe," then all of those cakes ought to get made, correct?

After all, a commercial business who makes defibrillators, desks, or shoes would be required to sell their products to racists, provocateurs, and pornographers. 

So if the black cake maker refuses (on principle) to make a confederate flag, then we should use the force of government to either compel him to do otherwise or force him to close up shop, right?

Your examples miss the mark. Any craftsman or businessman can refuse serviced for any reason, except as it applies to legally protected categories, like race, gender, religion, vet status, and increasingly sexual orientation. The baker has attempted to use sophistry to get around the fact that he he discriminates based on legally protected categories, not just based on speech.

[Gray]

1 hour ago, kllindley said:

So a dressmaker should not be allowed to discriminate against any potential customer, correct?

Dressmakers can discriminate all they like, so long as it's not based on a legally protected category.

[Gray]

1 hour ago, Storm Rider said:

You might want to talk to a cake designer before you start making these types of declarations from your lofty position of ignorance. Ask them if they are creative or artists or could anyone do what they do. 

Being creative is not the same thing as being an artist. Commercial products with a practical use (food, furniture, etc) are not the same thing as art.

Edited August 20, 2018 by Gray

[kllindley]

2 minutes ago, Gray said:

Dressmakers can discriminate all they like, so long as it's not based on a legally protected category.

So, if I understand you, you're saying that a defibrillator manufacturer can likewise discriminate all they like, just not based on protected class. It that correct?

[Gray]

12 minutes ago, kllindley said:

So, if I understand you, you're saying that a defibrillator manufacturer can likewise discriminate all they like, just not based on protected class. It that correct?

Sure. For example, they can choose not to sell to any clown schools. Clowns are not a protected category, thank heavens.

 

You can choose not to sell something to someone because they're rude. Or smelly. Or a member of a political organization you don't like. But you can't refuse to sell based on them being black or white or Mormon or Jewish or a veteran or a parent or single or married or (increasingly) gay or straight.

[smac97]

1 hour ago, Gray said:

Music is a form of artistic expression. Skilled craftsmanship is not the same thing as art.

It's not?  Okay.  CFR, please.  Please cite case law supporting your assertion that custom-designed cakes are not "art."

I suspect you are just making things up as you go along, but I'm willing to listen to what you have to say.

Quote

Quote

 

Quote

Perhaps the baker would care to register as an art gallery instead if he really believes in good faith that his desserts are "art"?

Perhaps we could attempt to have a substantive, meaningful discussion about this topic, without veering into sneers and sarcasm.

 

Perhaps you could go a day without you using the word "sneer" to describe people who disagree with you? As if no one could disagree with you without being a kind of sneering snobbish villain caricature.

Your comment about "an art gallery" was not serious.  It was dismissive and contemptuous.  It was a sneer.

If you want to participate in a serious discussion about the legal issues about "art" and "speech" and "artistic speech" and "compelled speech" and "free speech," then let's have at it.  But sneering at Mr. Phillips' because his "art" comes in the form of custom-made cakes rather than a carved stone or a painted canvass only makes me take you less seriously.

Quote

Quote

I encourage you to give this matter some further thought and study.

The law is replete with analogies.  With judges using a case or series of cases to develop a legal principle, which principle can then be deployed in ways that are quite factually distinct from the original applications.

For example, consider Pierson v. Post, one of the most famous property law cases in American history.  Here are the facts:

Here's the majority opinion:

Pierson ended up creating or introducing "a coherent principle on how property can be first possessed by a human being."  "Determining the rightful ownership of the fox involved the essence of the human notion of 'property' itself and how it is created, and for this reason Pierson v. Post is included in nearly all Anglo-American property casebooks."

Pierson is used to establish basic principles of property ownership for all sorts of things, including oil and natural gas (which, like the fox, is ferae naturae, and hence subject to the "Rule of Capture," which is that the person who captures the wild thing is entitled to ownership of it).

So if Pierson v. Post, an 1805 case from New York about two hunters chasing a fox, can be used by oil and gas attorneys in Houston in 2018 to make a legal point about an oil well in the Gulf of Mexico, then perhaps it is possible that analogies to one form of speech and the rights associated therewith (the right of an artist like Elton John to not be coerced into participating or letting his music (speech) be used in, an anti-gay rally) can be applied to another form of speech (the right of an artist like Mr. Phillips to not be coerced into participating or letting his bespoke cakes (speech) be used in a gay wedding or a transgender-themed party).

I don't seen any relevance to the topic at hand.

You are arbitrarily designating Mr. Phillips' customized cakes as not-art (and, consequently, not speech, and hence not protected under the First Amendment).

I am pointing out that the law often develops based on analogies between two comparable but otherwise dissimilar things.  Hence the "Rule of Capture" that pertains to oil and gas formations in the Gulf of Mexico in 2018 originated in an 1805 case about two hunters arguing over ownership of a fox.

Ownership of oil/gas versus ownership of a dead fox.  These do not seem particularly similar, and yet the same principle of law governs both.

I have been positing a scenario regarding Elton John that, I think, has quite a bit of "relevance to the topic at hand," but which you are not addressing (along with Daniel, who likewise sidestepped it).  Here it is again:

Quote

Elton John's "Rocket Man" is a song describing "a Mars-bound astronaut's mixed feelings at leaving his family in order to do his job."  And yet the use of that song in certain ways, and in certain venues, may nevertheless be objectionable to Elton John.

For example, let's say that Westboro Baptist Church wants to hire Elton John to sing that song at an anti-gay rally, during a video depicting rockets being launched and aimed at San Francisco, with the idea being that homosexuals there would be wiped out.

Elton John, understandably, I think, would not want to participate in such an event, nor would he want his song used in such a venue.  Not only would the use of the song in this way and in this venue convey a message contrary to his ethics and beliefs, it would also likely convey a message that Elton John supports and endorses the ideas espoused by the Westboro Baptist Church.  Consequently, Elton John wants to have the right to refuse to perform or otherwise participate in this anti-gay rally.  He also wants to have the right to refuse the use of his songs at this rally.  His songs are a form of art.  They are a form of speech.  He does not want to be seen as potentially allowing his speech to connote endorsement of the ideas promulgated by the Westboro Baptist Church.

What are your thoughts on this?  

Should Elton John have the right to refuse to participate in the above-described rally?  

Should Elton John have the right to refuse to allow his songs to be used in the above-described rally, even if he does not personally participate?

And what if the Westboro folks wanted to commission Elton John to write an original song for them?  A theme song for their rally that sings the praises of the Westboro Baptist Church and condemns gays and lesbians to hell?  Should Elton John have the right to refuse to write such a song?  Or should the Westboro folks be allowed to use the force of law to coerce him into doing it?

I'm genuinely interested in hearing what you have to say.  But if you are going to refuse to respond to reasoned (and legally relevant) arguments, then I guess we're done.

Thanks,

-Smac

Edited August 20, 2018 by smac97

[smac97]

7 minutes ago, Gray said:

You can choose not to sell something to someone because they're rude. Or smelly. Or a member of a political organization you don't like.

But you can't refuse to sell based on them being black or white or Mormon or Jewish or a veteran or a parent or single or married or (increasingly) gay or straight.

Mr. Phillips refuses to make customized "gay wedding"-themed cakes for anyone, regardless of their sexual orientation.

Do you acknowledge this?

It's not the customer.  It's the message.

Thanks,

-Smac

[Amulek]

27 minutes ago, Gray said:

Your examples miss the mark.

Not really. You're evading the central question. I'll ask it again:

It seems obvious (to me, at least) that a cake can be designed and decorated in a way that will communicate a message. Do you agree or disagree? 

 

Quote

The baker has attempted to use sophistry to get around the fact that he he discriminates based on legally protected categories, not just based on speech.

Well, from the baker's perspective, this is a case where the other side is attempting to use sophistry to get around the fact that this is a speech issue and doesn't have anything to do with invidious discrimination. 

 

[Gray]

3 hours ago, smac97 said:

It's not?  Okay.  CFR, please.  Please cite case law supporting your assertion that custom-designed cakes are not "art."

Who said anything about the law? Put your CFR away. I'm citing the art class I took as an undegrad, where we had a lively discussion about the arts vs craftsmanship.

 

3 hours ago, smac97 said:

I suspect you are just making things up as you go along, but I'm willing to listen to what you have to say.

Your comment about "an art gallery" was not serious.  It was dismissive and contemptuous.  It was a sneer.

It was serious. Art is sold in art galleries. Cake is sold in cake shops.

 

3 hours ago, smac97 said:

If you want to participate in a serious discussion about the legal issues about "art" and "speech" and "artistic speech" and "compelled speech" and "free speech," then let's have at it.  But sneering at Mr. Phillips' because his "art" comes in the form of custom-made cakes rather than a carved stone or a painted canvass only makes me take you less seriously.

It's not art. It's a cake. Sorry.

 

3 hours ago, smac97 said:

You are arbitrarily designating Mr. Phillips' customized cakes as not-art (and, consequently, not speech, and hence not protected under the First Amendment).

It's food. You eat it. If the baker's cakes qualify as art, then absolutely anything else can as well.

 

3 hours ago, smac97 said:

I am pointing out that the law often develops based on analogies between two comparable but otherwise dissimilar things.  Hence the "Rule of Capture" that pertains to oil and gas formations in the Gulf of Mexico in 2018 originated in an 1805 case about two hunters arguing over ownership of a fox.

Ownership of oil/gas versus ownership of a dead fox.  These do not seem particularly similar, and yet the same principle of law governs both.

I have been positing a scenario regarding Elton John that, I think, has quite a bit of "relevance to the topic at hand," but which you are not addressing (along with Daniel, who likewise sidestepped it).  Here it is again:

What are your thoughts on this?  

Should Elton John have the right to refuse to participate in the above-described rally?  

Should Elton John have the right to refuse to allow his songs to be used in the above-described rally, even if he does not personally participate?

And what if the Westboro folks wanted to commission Elton John to write an original song for them?  A theme song for their rally that sings the praises of the Westboro Baptist Church and condemns gays and lesbians to hell?  Should Elton John have the right to refuse to write such a song?  Or should the Westboro folks be allowed to use the force of law to coerce him into doing it?

I'm genuinely interested in hearing what you have to say.  But if you are going to refuse to respond to reasoned (and legally relevant) arguments, then I guess we're done.

Thanks,

-Smac

As usual, you keep coming up with irrelevant comparisons. Elton John does not do commissions - it's not a service he offers. But as the Colorado fundamentalist offers custom wedding deserts, he should have to offer them freely to both gay and straight patrons.

[Gray]

3 hours ago, smac97 said:

Mr. Phillips refuses to make customized "gay wedding"-themed cakes for anyone, regardless of their sexual orientation.

Do you acknowledge this?

It's not the customer.  It's the message.

Thanks,

-Smac

He won't sell any kind of wedding cakes to gay people for their weddings. That's a clear violation of the law. If he offers wedding cakes for straight clients, he must also do so for gay ones.

[Gray]

3 hours ago, Amulek said:

Not really. You're evading the central question. I'll ask it again:

It seems obvious (to me, at least) that a cake can be designed and decorated in a way that will communicate a message. Do you agree or disagree? 

 

Well, from the baker's perspective, this is a case where the other side is attempting to use sophistry to get around the fact that this is a speech issue and doesn't have anything to do with invidious discrimination.  

 

The fundamentalist baker in question offers a product to straight people that he will not sell for use by gay people. That's illegal discrimination.