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

[Analytics]

7 minutes ago, smac97 said:

I think his stance is demonstrably principled.  He draws a line where you do not, perhaps.  But he has drawn a line, and that line is based on principle.  Not on hatred.  Or malice.  Or prejudice.

Principle.

I disagree.

 

7 minutes ago, smac97 said:

Let's take a look at a few themed cakes:

Let's not. This is a total red herring. The lawsuit wasn't about refusing to sell a cake with an objectionable theme. It was about refusing to sell any cake that was to be served at a same-sex marriage.

Let's address the actual issue. If you were a baker that specializes in wedding cakes, would you be willing to sell somebody this cake?

If you are Mr. Phillips, you will gladly sell that cake to some people, but "out of principle" will not sell it to others.

That is the issue. When framed this way, it's easier to understand why people with basic American sensibilities regarding public accommodation laws have a lot of sympathy towards the plaintiffs in that case, and is also why Phillips lost all the way to the Supreme Court, and there only won through a narrow ruling that didn't really settle the issue.

 

[smac97]

13 minutes ago, Analytics said:

I disagree.

Okay.  You have nothing to back up you assessment.  I do.

I guess we'll agree to disagree.

13 minutes ago, Analytics said:

Let's not. This is a total red herring.

It totally is not.

I posted some images of cakes, all of which have controversial "themes" on them.  The controversy may vary in degree, but all are controversial.

You are refusing to answer the following questions about those themed cakes:

• Would you, as an individual, be reluctant to make any of the above cakes?  
• If so, would that reluctance be based on principle?
• Might that reluctance also be based, to a lesser extent, on a concern that your making of it might give others the impression that you endorse these messages?

I think the answers to these questions are pretty obvious ("Yes, as to some," "Yes" and "Yes").

We'll never know, I guess, since you refuse to answer them.

13 minutes ago, Analytics said:

The lawsuit wasn't about refusing to sell a cake with an objectionable theme.

Actually yes, it was.

13 minutes ago, Analytics said:

It was about refusing to sell any cake that was to be served at a same-sex marriage.

Right.  

And the refusal was based on the event, not the person ordering the cake.

If a heterosexual parent of one of the men involved in the wedding had ordered the themed cake, Mr. Phillips would have turned them down, too.

13 minutes ago, Analytics said:

Let's address the actual issue. If you were a baker that specializes in wedding cakes, would you be willing to sell somebody this cake?

If you are Mr. Phillips, you will gladly sell that cake to some people, but "out of principle" will not sell it to others.

No.  If you are Mr. Phillips, you will gladly sell it to anyone, but "out of principle" will not sell to anyone for use at a gay wedding.

But Mr. Phillips will sell cookies, brownies, etc. for that wedding.

That, I think, is what is called . . . a principled distinction.

13 minutes ago, Analytics said:

That is the issue. When framed this way, it's easier to understand why people with basic American sensibilities regarding public accommodation laws have a lot of sympathy towards the plaintiffs in that case, and is also why Phillips lost all the way to the Supreme Court, and there only won through a narrow ruling that didn't really settle the issue.

Meh.  I think people don't fully appreciate the dangers involved in weaponizing public accommodations laws to punish free speech, particularly free speech from religious people like Mr. Phillips.

How would you feel if you, as a baker, were asked to make one of the following cakes?

Would you capitulate?  Or would you refuse on moral/principled grounds?

And if the force of law could be brought to bear against you, what would you do?  

Would you make the same sorts of arguments that Mr. Phillips is making?

Thanks,

-Smac

[Amulek]

48 minutes ago, Gray said:

18 hours ago, Amulek said:

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? 

No, not in the way you're insinuating.

So, if you were to attend a peace rally and saw a cake with lettering which seemed to spell out something like "F The Draft" you wouldn't think that cake was communicating a message? Really? 

I'm sorry, but I think you are being willfully obtuse here.

 

Quote

It's not speech like artistic expression, or an article in a newspaper.

Well, it's not like them in the sense that it's not identical to them, but neither is nude dancing, or flag burning, or tattooing (all of which are protected by the first amendment). 

Seriously, it's really not that hard to understand. If you are communicating a message you are engaging in speech. And if you are participating in communicating as message you are also engaged in speech. 

Do all cakes communicate a message? Obviously not.

Can a cake be designed and decorated in such a manner that it does communicate a message though? Yes. Yes it can.

And if that message happens to be one that you disagree with then you don't have to contribute to its creation, and the government can't force you to do differently. 

 

[Gray]

2 hours ago, smac97 said:

Yes, I have.  But as you said, you aren't participating in the discussion of the law, so I won't bother to continue to address such things with you.

I doubt that.  In any event, no thanks.  I have stopped taking you seriously in this discussion.

In other words, you can't come up with a coherent argument for why cake is speech but a desk is not.

 

2 hours ago, smac97 said:

There are plenty of interesting points to address as to the legal issues here.  Instead, all you've got is facile and glib one-liners ("But a bakery doesn't sell artwork. It sells baked goods.").

No, that's not correct.

And whether it's "legal" is up in the air.  The Colorado "Civil Right" Commission is demonstrably biased, so we'll need to do better than that.

I'd explain further, but there's no point.  This is a serious discussion about complex legal concepts.  I don't think your comments are serious, and you apparently aren't interested in addressing the points I am making in any meaningful, constructive way, so I'll refrain from further efforts to engage you.

Thanks,

-Smac

 

Your notion of a "serious argument" seems to be a gish gallop with misrepresented sources you hope no one will check.

[why me]

I have this impression that this baker is the only baker in the state.  Bill Maher has also said the same thing as I did. However, lets say that this was a muslim baker who refused service. I can assure you nothing would happen to the muslim baker. And most likely the gay community would not push the issue on the muslim. What is now happening is a persecution of a christian couple. It is christophobia being sponsored by the lbgtq community.

Edited August 21, 2018 by why me

[smac97]

Just now, Gray said:

In other words, you can't come up with a coherent argument for why cake is speech but a desk is not.

No, that's not what I'm saying.

Just now, Gray said:

Your notion of a "serious argument" seems to be a gish gallop with misrepresented sources you hope no one will check.

And yet you haven't pointed out any misrepresentations.

I'm not taking you seriously anymore.  I'll respond briefly, but not substantively.  I am interested in discussing the legal aspects of this issue.  You, on the other hand, are responding to the legal points I am making with stuff like "Who said anything about the law? Put your CFR away. I'm citing the art class I took  as an undegrad..."

Oh.  Art class.

Well, have at it.  Have fun discussing your undergrad art class.  I'll go with discussing the law.

Thanks,

-Smac

[Gray]

23 minutes ago, Amulek said:

So, if you were to attend a peace rally and saw a cake with lettering which seemed to spell out something like "F The Draft" you wouldn't think that cake was communicating a message? Really? 

I'm sorry, but I think you are being willfully obtuse here.

 

Well, it's not like them in the sense that it's not identical to them, but neither is nude dancing, or flag burning, or tattooing (all of which are protected by the first amendment). 

Seriously, it's really not that hard to understand. If you are communicating a message you are engaging in speech. And if you are participating in communicating as message you are also engaged in speech.  

Do all cakes communicate a message? Obviously not.

Can a cake be designed and decorated in such a manner that it does communicate a message though? Yes. Yes it can.

And if that message happens to be one that you disagree with then you don't have to contribute to its creation, and the government can't force you to do differently. 

 

If you like you can glue the declaration of independence to a cake. The words themselves would be speech. The cake is not.

[Calm]

Quote

 

In contrast, a "rainbow" cake that is specifically ordered for a gay wedding does convey a message, and one that Mr. Phillips does not want to be forced to speak.

But I was not contrasting brownies with a Themed wedding cake, but a generic wedding cake.  While the specific case dealt with a themed wedding cake, Phillips' quote seems to imply any wedding cake would not be made, no matter how generic, but brownies and other treats would be acceptable.

This quote seems to indicate you agree any wedding cake no matter how generic would be considered unacceptable.

Quote

No.  If you are Mr. Phillips, you will gladly sell it to anyone, but "out of principle" will not sell to anyone for use at a gay wedding.

But Mr. Phillips will sell cookies, brownies, etc. for that wedding.

That, I think, is what is called . . . a principled distinction.

I agree it is a principled distinction.  I just don't really get the significance between sending a blah, generic wedding cake to celebrate a gay wedding and sending brownies or anything else to celebrate a gay wedding.  Obviously wedding cakes have a significance to him that it doesn't to me.  To me wedding brownies (brownies to celebrate a wedding) has the same level of significance.

Edited August 21, 2018 by Calm

[The Nehor]

I would get the beheading cake and the BDSM cake.

There is probably something wrong with me.

[smac97]

19 minutes ago, Calm said:

But I was not contrasting brownies with a Themed wedding cake, but a generic wedding cake.  While the specific case dealt with a themed wedding cake, Phillips' quote seems to imply any wedding cake would not be made, no matter how generic, but brownies and other treats would be acceptable.

I'm not sure either way.

Quote

This quote seems to indicate you agree any wedding cake no matter how generic would be considered unacceptable.

To Mr. Phillips, possibly.  I don't know.

Mr. Phillips may just be opposed to the symbolism inherent in wedding cakes, symbolism that is not found in things like cookies or brownies.  See, e.g., here:

Quote

Wedding cakes have been present at wedding ceremonies for centuries. They were not always the focus of the event and often came in different forms, like pies or bread. There has always been a lot of symbolism associated with the wedding cake. The earliest known sweet wedding cake is known as a Banbury cake, which became popular in 1655.The white color has been attached to wedding ceremonies since the Victorian era when Queen Victoria chose to wear a white wedding dress at her wedding to Prince Albert in 1840. Queen Victoria accentuated an existing symbol, the color white is frequently associated with virginity and purity. The wedding cake was originally known as the brides cake therefore the color white became common because the cake needed to reflect the bride.

The cutting of the cake is a task full of symbolism. The cake was originally intended to be distributed among the guests by only the bride because consuming the cake would ensure fertility. As weddings grew and the number of guests increased this task became a joint venture, the groom needed to help cut the growing cake and distribute it among their guests. Layers of cakes began to pile up and the icing would need to support the weight of the cake making is very difficult for one person to cut. The groom would assist the bride in this process. Once this tradition began the bride and groom would share a piece of cake before distributing it to the guests to symbolize their union and their promise to forever provide for each other.

And here:

Quote

Wedding Cake

The tradition of a wedding cake goes back to Roman times when a cake of meal was crumbled over the bride’s head to provide good luck. The wedding cake symbolizes good fortune and fertility. It also brings good luck to everyone who eats it. The wedding cake should be made with an abundance of good quality ingredients to symbolize a long-lasting, rich, and happy marriage.

The bride cuts the first slice of cake to provide good fortune in the marriage. Nowadays, her groom helps in this task, to ensure that he shares the good fortune. This also shows they will share all their worldly goods in the future.

There are a number of pleasant traditions surrounding the wedding cake. One is that the bride puts aside a slice of cake to ensure that her husband remains faithful. A tier of the cake can be put aside for later use as a christening cake. This ensures future children. Any unmarried women at the wedding should take a piece of cake home with them and place it under their pillows. This may produce dreams in which they see their own future partners.

And here:

Quote

The history and significance of the wedding cake
The familiar ritual of cutting the cake embodies deep and powerful symbols

This essay attempts to explore the cultural meanings that underlie this tacit sense of the cake’s importance, by reviewing some of the relatively obscure history and scholarship about the significance of this particular confection in Anglo-American culture. By doing so, we may be able to articulate more clearly why the wedding cake is important, indeed central, to wedding celebrations in American life—and why it is uniquely conflictual in the case of a same-sex wedding.

The central argument runs as follows. As an artefact of material culture, the American wedding cake does not carry value primarily as food but as symbol. In the words of Simon Charsley, the foremost anthropological authority on the topic, the cake’s basic function is “marking the event at which it appears as a wedding.”

But the cake, with its associated rituals and roots in Victorian ideals, also signifies much more: Its primary symbolic referent is heterosexual fertility, focused on the body of the bride. For conscientiously opposed bakers, this heterosexual symbolism clashes with the celebration of same-sex weddings, particularly the wedding of two men.

...

In an essay titled “Food as an art form,” the anthropologist Mary Douglas points out that the fact that food serves a biological function, namely nourishment, does not negate the artistic possibility of cooking and baking any more than the fact that a building serves a biological function, namely shelter, negates the artistic possibility of architecture. Baking is no less art for being, like architecture or photography, one of the applied arts.

...

For Douglas, the wedding cake epitomizes food art that extends into ceremonial participation. She points out that a “researcher from Mars” who knew nothing of Anglo-American weddings, would perhaps be baffled to make up his mind whether the central focus of the ceremony was the marriage or the cake. . . . [T]he complexity of ritual [of the Kava ceremonial in Tonga or the tea ceremonial in Japan] would pale into insignificance compared with the ceremonial surrounding the cutting and distribution of the wedding cake. At military weddings he would see the bride try to cut the cake with a sword, unable to succeed without the help of her spouse. He would see in photographs the bride standing near the cake about to cut it. . . .

Asking about the mythology of the cake, he would hear that those young maidens who receive a portion should sleep with it under their pillow and dream of their future husband, and also that the top portion of this towering three-tier confection should be put aside and kept for the christening ceremony of the first child.[5]

I wonder if Mr. Phillips, as a baker, is more interested in the nuances of such symbolism than the average person.

Quote

I agree it is a principled distinction.  I just don't really get the significance between sending a blah, generic wedding cake to celebrate a gay wedding and sending brownies or anything else to celebrate a gay wedding.  

But Mr. Phillips might.

Some people would not get the significance between me declining to attend a same-sex wedding, but then proceeding to invite the same-sex couple to participate in any other family or social activity.  But participating in the wedding, or not, may well be significant to me.  So I want the right to choose.  And I don't want the government punishing me if I choose not to participate.

Thanks,

-Smac

Edited August 21, 2018 by smac97

[Gray]

1 hour ago, smac97 said:

No, that's not what I'm saying.

Thank goodness for that.

 

1 hour ago, smac97 said:

And yet you haven't pointed out any misrepresentations.

I've pointed out several. In this thread you claimed it had something to do with custom cakes. It turns out it didn't. In another thread you misrepresented GLAAD, the BBC and other sources.

 

1 hour ago, smac97 said:

I'm not taking you seriously anymore.  I'll respond briefly, but not substantively.  I am interested in discussing the legal aspects of this issue.  You, on the other hand, are responding to the legal points I am making with stuff like "Who said anything about the law? Put your CFR away. I'm citing the art class I took  as an undegrad..."

Oh.  Art class.

Well, have at it.  Have fun discussing your undergrad art class.  I'll go with discussing the law.

Thanks,

-Smac

Sorry, but my undergrad art class on the nature of what is art beats your complete lack of argument on a point that has no relevance the actual court case regardless.

[smac97]

10 minutes ago, Gray said:

Thank goodness for that.

I've pointed out several.

No, you haven't.

Quote

In this thread you claimed it had something to do with custom cakes. It turns out it didn't. In another thread you misrepresented GLAAD, the BBC and other sources.

No, I didn't.

Quote

Sorry, but my undergrad art class on the nature of what is art beats your complete lack of argument on a point that has no relevance the actual court case regardless.

Right.  Take your art class expertise about the legal definition of "art" to a judge and see what happens.

"Your honor, you must decide in my favor because way back in my undergrad days I had a discusson in my art class about what 'art' means.  You are bound by what we decided in that discussion."

Good luck!

-Smac

Edited August 21, 2018 by smac97

[Analytics]

1 hour ago, smac97 said:

Okay.  You have nothing to back up you assessment.  I do.

Yes I do. No you don't.

1 hour ago, smac97 said:

Meh.  I think people don't fully appreciate the dangers involved in weaponizing public accommodations laws to punish free speech, particularly free speech from religious people like Mr. Phillips.

The thing is, we are dealing with conflicting values that somehow need to be balanced in a fair way. Some cake speech crosses the line and can't be compelled. I don't think anybody disputes that. However, the "speech" in a generic wedding cake clearly does not cross the line. My point is pretty reasonable and was articulated by the Colorado Court of Appeals: if selling a generic wedding cake can be construed as protected free speech and the free exercise of religion, then all[/I] public accommodation laws are unconstitutional because anything[/I] can be construed as principle-based, religious, free-exercise of religion.

Example 1: My religious convictions tell me that whites are the master race, and my signature ribeye steaks are religious speech about how I value the superiority of my steak-eating customers. But I'm not a bigot--I'll still sell hamburgers to blacks.

Example 2: I sell gas out of a deep religious conviction that I should help people get to where they are going. The gas I sell represents this. I won't sell gas to Mormons going to the temple. But that isn't bigotry--that is based on principle: I'll sell gas to Mormons going elsewhere. And I'll sell snacks to Mormons. That proves I have nothing against Mormons! In fact, I won't sell gas to anybody if the gas is going to be used to take Mormons to the temple.

A flippant religious speech argument could be made as a justification for any violation of public accommodations. And the claim that a generic wedding cake can be sold to some people for some purposes but not to other people for other purposes because of religious free speech sounds like those types of flippant arguments.

1 hour ago, smac97 said:

How would you feel if you, as a baker, were asked to make one of the following cakes?

I'd feel that the person who asked me to bake that cake was in violation of Goodwin's Law and lost the debate.

[Storm Rider]

Well now, we have devolved into my art class definitions are infinitely better than all the law books. Hmmm, you either think like I do or you are wrong seems to the logic here. When social agenda trumps logic, law, truth, etc., I guess it depends on who gets to decide the social agenda. Well, in that case, I say that my social agenda is better than anyone else's and therefore each of you must bow down and worship my agenda without question.  Now, I feel better so each of you must also feel a lot better. Smile, be quiet and enjoy the ride. 

[smac97]

20 minutes ago, Analytics said:

Yes I do. No you don't.

I guess we'll agree to disagree.

Quote

The thing is, we are dealing with conflicting values that somehow need to be balanced in a fair way.

Indeed.  As between A) a gay couple using the goverment to punish and coerce a religious baker for declining, on religious and free speech grounds, to prepare a customized "gay wedding" cake (that they could get virtually anywhere else), and B) Mr. Phillips being able to exercise his constitutional rights of Free Exercise and Free Speech, which side should win?

For me, constitutional rights should win.  YMMV.

Quote

Some cake speech crosses the line and can't be compelled.

I'd be interested in understanding how you differentiate between speech which can be compelled and speech which cannot.

Quote

I don't think anybody disputes that. However, the "speech" in a generic wedding cake clearly does not cross the line.

First, I'm not persuaded that the wedding cake was "generic."

Second, a wedding cake has a long and deep tradition and meaning, such that that making the cake in and of itself, even without specific "gay"-themed flourishes, may still nevertheless be "speech."  And if Mr. Phillips of coerced, under threat of fine and other punishments, to "speak" in this way, then . . . Houston, we have a problem.

Third, if the Westboro Baptist Church were to ask Elton John to sing one of his "generic" songs (let's go with "Rocket Man" - I like that one) at an anti-gay rally, does that request "clearly ... not cross the line?"  After all, it's the same song as he has sung in a hundred other venues.  Should the Westboro folks be entitled to use the force of law to coerce Elton John into performing at their rally?  Or could the Westboro folks sue Elton John to force him to let them use his song at such a rally?

Quote

My point is pretty reasonable and was articulated by the Colorado Court of Appeals: if selling a generic wedding cake can be construed as protected free speech and the free exercise of religion, then all public accommodation laws are unconstitutional because anything can be construed as principle-based, religious, free-exercise of religion.

Again, I'm not sure the facts of the case were correct (I've already noted that previously).

Moreover, the parameters of "speech" and "compelled speech" would not, I think, comport with the assessment of the CO Court of Appeals.

And I think many applications of public accommodations laws are, in fact, unconstitutional.  The weaponization of such laws is a deeply disturbing development in our country.

Finally, as between public accommodations laws and First Amendment rights, the latter should win.  Every time.

Quote

A flippant religious speech argument could be made as a justification for any violation of public accommodations.

And flippant arguments would not carry the day.

On the other hand, well-reasoned and well-argued legal principles could, I think, strike a balance between public accommodations laws and Constitutional protections.

Quote

And the claim that a generic wedding cake can be sold to some people for some purposes but not to other people for other purposes because of religious free speech sounds like those types of flippant arguments.

I don't think it's flippant at all.  There is certainly a colorable argument to be made.  A customized wedding cake, even one open to multiple interpretations, may very well be construed as "art," and hence speech, and hence a person like Mr. Phillips could and should be protected from compelled speech.

Quote

How would you feel if you, as a baker, were asked to make one of the following cakes?

I'd feel that the person who asked me to bake that cake was in violation of Goodwin's Law and lost the debate.

Now that would be a good example of a flippant argument.  Godwin's law is online flotsam.  It has no bearing or application to real legal disputes.

And you dodged the question.  

Would you bake and decorate the above cake per the request of the customer, or would you refuse?

And this one:

Would you bake and decorate the above cake per the request of the customer, or would you refuse?

And this one:

If you found this cake to be in poor taste, or morally or religiously offensive/objectionable, would you nevertheless bake and decorate it per the request of the customer, or would you refuse?

Thanks,

-Smac

Edited August 21, 2018 by smac97

[Rock_N_Roll]

I’m still working on what I consider art and what I do not (I don’t consider Rap Music art, but that’s neither here nor there)

But regarding the cake images above – It seems to me that if I’m a baker and I make inappropriately themed cakes (like the examples above) for some people, it would or should be illegal for me to not make them for other people just because they are gay.  If I refuse to make them for anyone, then I’m good.  I guess it comes down to what you deem “inappropriate”. 

Edited August 21, 2018 by Rock_N_Roll

[Analytics]

53 minutes ago, smac97 said:

As between A) a gay couple using the goverment to punish and coerce a religious baker for declining, on religious and free speech grounds, to prepare a customized "gay wedding" cake (that they could get virtually anywhere else), and B) Mr. Phillips being able to exercise his constitutional rights of Free Exercise and Free Speech, which side should win?

Allow me to quote from the Colorado Court of Appeals:

Quote

The parties did not dispute any material facts.  Masterpiece and Phillips admitted that the bakery is a place of public accommodation and that they refused to sell Craig and Mullins a
cake because of their intent to engage in a same-sex marriage ceremony. Court of Appeals No. 14CA1351, page 3-4, emphasis added

According to the undisputed material facts of the case, Masterpiece is a public accommodation that refused to sell a cake because of their intent to engage in a same-sex marriage ceremony. From what you've quoted from news sources, it sounds like they wanted a "gay wedding cake." But according to what was said in court, Phillips refused to bake the cake because of their intent to engage in a same-sex marriage ceremony, regardless of how the cake was decorated. I find it totally bizarre that you won't concede this when according to the court and the legal arguments that were made in court, this is an undisputed fact.

 

Quote

For me, constitutional rights should win.  YMMV.

The claim that religious liberty gives somebody who runs a public accommodation the right to deny selling an identical product that it sells to others because of how it is intended to be used and justifying this discrimination as the constitutional right of free religion and free speech is abusing and weaponizing the constitution.

Frankly, I have little patience for either side here. If you are in the cake business and somebody asks for generic cake, then sell them the cake. And if they won't sell you the cake, go someplace else. If they would have demanded that the cake be explicitly gay and if Phillips would have refused because he didn't want to make a gay cake, I'd side with Phillips, and I think the courts in Colorado would have to. But Phillips didn't refuse to make a gay cake. He refused to make any cake.

 

Quote

I'd be interested in understanding how you differentiate between speech which can be compelled and speech which cannot.

 

The Colorado Court of Appeals articulated the point:

Because “it is possible to find some kernel of expression in almost every activity a person undertakes,” City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989),

the Supreme Court has rejected the view that “conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea,” FAIR, 547 U.S. at 65-66 (some internal quotation marks omitted).  Rather, First Amendment protections extend only to conduct that is “inherently expressive.”  Id.

 

¶ 53 In deciding whether conduct is “inherently expressive,” we ask whether “‘[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message  would be understood by those who viewed it.’”  Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974)).  The message need not be “narrow,” or “succinctly articulable.”  Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995).  The Supreme Court has recognized expressive conduct in several cases.  See, e.g., id. (marching in a parade in support of gay and lesbian rights); United States v. Eichman, 496 U.S. 310, 312-19 (1990) (burning of the American flag in protest of government policies); Johnson, 491 U.S. at 399 (burning of the American flag in protest of Reagan administration and various corporate policies); Nat’l Socialist Party of Am. v. Vill. of Skokie, 432 U.S. 43, 43 (1977) (wearing of a swastika in a parade); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969) (wearing an armband in protest of war).

  
¶ 54 However, other decisions have declined to recognize certain conduct as expressive.  See Carrigan, 564 U.S. at ___, 131 S. Ct. at 2350 (legislators’ act of voting not expressive because it “symbolizes nothing” about their reasoning); Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 419, 437-38 (9th Cir. 2008) (wearing of nondescript school uniform did not convey particularized message of uniformity). 30
 
¶ 55 Masterpiece’s contentions involve claims of compelled expressive conduct.  In such cases, the threshold question is whether the compelled conduct is sufficiently expressive to trigger
First Amendment protections.  See Jacobs, 526 F.3d at 437-38 (threshold question in plaintiff’s claim that school uniform policy constituted compelled expressive conduct is whether the wearing of a uniform conveys symbolic messages and therefore was expressive).  The party asserting that conduct is expressive bears the burden of demonstrating that the First Amendment applies and the party must advance more than a mere “plausible contention” that its conduct is expressive.  Clark v. Cmty. for Creative Non Violence, 468 U.S. 288, 293 n.5 (1984). 

 

¶ 56 Finally, a conclusion that the Commission’s order compels expressive conduct does not necessarily mean that the order is unconstitutional.  If it does compel such conduct, the question is then whether the government has sufficient justification for regulating the conduct.  The Supreme Court has recognized that “when ‘speech’ and ‘non-speech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms.”  O’Brien, 391 U.S. at 376.  In other words, the government can regulate communicative conduct if it has an important interest unrelated to the suppression of the message and if the impact on the communication is no more than necessary to achieve the government’s purpose.  Id.; see also Barnes v. Glen Theatre Inc., 501 U.S. 560, 567-68 (1991); Johnson, 491 U.S. at 407. C [emphasis added]

 

Edited August 21, 2018 by Analytics

[Analytics]

54 minutes ago, smac97 said:

First, I'm not persuaded that the wedding cake was "generic."

Right. Neither party of the court case disputes this, but you do.

 

54 minutes ago, smac97 said:

Second, a wedding cake has a long and deep tradition and meaning, such that that making the cake in and of itself, even without specific "gay"-themed flourishes, may still nevertheless be "speech."  And if Mr. Phillips of coerced, under threat of fine and other punishments, to "speak" in this way, then . . . Houston, we have a problem.

I don't think it expresses a particularized message that the recipient would have understood.

 

54 minutes ago, smac97 said:

Third, if the Westboro Baptist Church were to ask Elton John to sing one of his "generic" songs (let's go with "Rocket Man" - I like that one) at an anti-gay rally, does that request "clearly ... not cross the line?"

I don't think Elton John is a public accommodation.

 

54 minutes ago, smac97 said:

Moreover, the parameters of "speech" and "compelled speech" would not, I think, comport with the assessment of the CO Court of Appeals.

Why not? Do you think that any speech, regardless of how vague and how little it contains a particularized message that could be understood by anybody is protected free speech? Do you think the Supreme Court would agree with your analysis?

 

54 minutes ago, smac97 said:

And I think many applications of public accommodations laws are, in fact, unconstitutional.  The weaponization of such laws is a deeply disturbing development in our country.

As is the weaponization of freedom of religion and freedom of speech.

 

54 minutes ago, smac97 said:

Finally, as between public accommodations laws and First Amendment rights, the latter should win.  Every time.

Agreed. But not if it is a flippant argument such as the one made by Masterpiece.

 

54 minutes ago, smac97 said:

On the other hand, well-reasoned and well-argued legal principles could, I think, strike a balance between public accommodations laws and Constitutional protections.

If Masterpiece's arguments were valid, why didn't the Supreme Court simply say Masterpiece was right based on their arguments, rather than dodging the issue by ruling based on a technicality in a narrow ruling? I think it's because they didn't have a good argument, but the Supreme Court was afraid of the religious right and wanted to give them a win.

 

54 minutes ago, smac97 said:

Would you bake and decorate the above cake per the request of the customer, or would you refuse?

And this one:

 

Would you bake and decorate the above cake per the request of the customer, or would you refuse?

And this one:

 

If you found this cake to be in poor taste, or morally or religiously offensive/objectionable, would you nevertheless bake and decorate it per the request of the customer, or would you refuse?

I'm getting tired of this red herring. This case never would have made the news if Phillips would have been willing to sell to gay weddings the exact same designs he sells to others.

[Daniel2]

21 minutes ago, Analytics said:

Allow me to quote from the Colorado Court of Appeals:

According to the undisputed material facts of the case, Masterpiece is a public accommodation that refused to sell a cake because of their intent to engage in a same-sex marriage ceremony. From what you've quoted from news sources, it sounds like they wanted a "gay wedding cake." But according to what was said in court, Phillips refused to bake the cake because of their intent to engage in a same-sex marriage ceremony, regardless of how the cake was decorated. I find it totally bizarre that you won't concede this when according to the court and the legal arguments that were made in court, this is an undisputed fact.

 

The claim that religious liberty gives somebody who runs a public accommodation the right to deny selling an identical product that it sells to others because of how it is intended to be used and justifying this discrimination as the constitutional right of free religion and free speech is abusing and weaponizing the constitution.

Frankly, I have little patience for either side here. If you are in the cake business and somebody asks for generic cake, then sell them the cake. And if they won't sell you the cake, go someplace else. If they would have demanded that the cake be explicitly gay and if Phillips would have refused because he didn't want to make a gay cake, I'd side with Phillips, and I think the courts in Colorado would have to. But Phillips didn't refuse to make a gay cake. He refused to make any cake.

 

 

The Colorado Court of Appeals articulated the point:

Because “it is possible to find some kernel of expression in almost every activity a person undertakes,” City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989),

the Supreme Court has rejected the view that “conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea,” FAIR, 547 U.S. at 65-66 (some internal quotation marks omitted).  Rather, First Amendment protections extend only to conduct that is “inherently expressive.”  Id.

 

¶ 53 In deciding whether conduct is “inherently expressive,” we ask whether “‘[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message  would be understood by those who viewed it.’”  Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974)).  The message need not be “narrow,” or “succinctly articulable.”  Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995).  The Supreme Court has recognized expressive conduct in several cases.  See, e.g., id. (marching in a parade in support of gay and lesbian rights); United States v. Eichman, 496 U.S. 310, 312-19 (1990) (burning of the American flag in protest of government policies); Johnson, 491 U.S. at 399 (burning of the American flag in protest of Reagan administration and various corporate policies); Nat’l Socialist Party of Am. v. Vill. of Skokie, 432 U.S. 43, 43 (1977) (wearing of a swastika in a parade); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969) (wearing an armband in protest of war).

  
¶ 54 However, other decisions have declined to recognize certain conduct as expressive.  See Carrigan, 564 U.S. at ___, 131 S. Ct. at 2350 (legislators’ act of voting not expressive because it “symbolizes nothing” about their reasoning); Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 419, 437-38 (9th Cir. 2008) (wearing of nondescript school uniform did not convey particularized message of uniformity). 30
 
¶ 55 Masterpiece’s contentions involve claims of compelled expressive conduct.  In such cases, the threshold question is whether the compelled conduct is sufficiently expressive to trigger
First Amendment protections.  See Jacobs, 526 F.3d at 437-38 (threshold question in plaintiff’s claim that school uniform policy constituted compelled expressive conduct is whether the wearing of a uniform conveys symbolic messages and therefore was expressive).  The party asserting that conduct is expressive bears the burden of demonstrating that the First Amendment applies and the party must advance more than a mere “plausible contention” that its conduct is expressive.  Clark v. Cmty. for Creative Non Violence, 468 U.S. 288, 293 n.5 (1984). 

 

¶ 56 Finally, a conclusion that the Commission’s order compels expressive conduct does not necessarily mean that the order is unconstitutional.  If it does compel such conduct, the question is then whether the government has sufficient justification for regulating the conduct.  The Supreme Court has recognized that “when ‘speech’ and ‘non-speech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms.”  O’Brien, 391 U.S. at 376.  In other words, the government can regulate communicative conduct if it has an important interest unrelated to the suppression of the message and if the impact on the communication is no more than necessary to achieve the government’s purpose.  Id.; see also Barnes v. Glen Theatre Inc., 501 U.S. 560, 567-68 (1991); Johnson, 491 U.S. at 407. C [emphasis added]

 

A thousand times this. Thank you, Analytics. Smac likes to play this seemingly as a skirmish of semantics which he twists to try to make a compelling point, but refuses to acknowledge or accept the basic findings of the case. Thank you for taking the time to point out the actual law, especially given that not all of us have the time to do so.

 

[smac97]

12 minutes ago, Analytics said:

Right. Neither party of the court case disputes this, but you do.

I don't dispute it as far as the Court of Appeals decision.  But I dispute it based on the news articles that speak of a customized "rainbow" cake - which you yourself read.

12 minutes ago, Analytics said:

I don't think it expresses a particularized message that the recipient would have understood.

But Mr. Phillips might.

12 minutes ago, Analytics said:

I don't think Elton John is a public accommodation.

But that's simply a matter of finding a pliant legislature.  If baking a cake for a gay wedding falls within the parameters of public accommodations laws, then other forms of art, other forms of speech, can pretty easily be added into those parameters.

12 minutes ago, Analytics said:

Why not? Do you think that any speech, regardless of how vague and how little it contains a particularized message that could be understood by anybody is protected free speech? Do you think the Supreme Court would agree with your analysis?

Vagueness and ambiguity in speech does not, I think, turn speech into non-speech.

Nevertheless, you may have a point.  I'll think on it.

12 minutes ago, Analytics said:

As is the weaponization of freedom of religion and freedom of speech.

Oh, brother.

12 minutes ago, Analytics said:

If Masterpiece's arguments were valid, why didn't the Supreme Court simply say Masterpiece was right based on their arguments, rather than dodging the issue by ruling based on a technicality in a narrow ruling? I think it's because they didn't have a good argument, but the Supreme Court was afraid of the religious right and wanted to give them a win.

I literally laughed when I read this.

12 minutes ago, Analytics said:

I'm getting tired of this red herring. This case never would have made the news if Phillips would have been willing to sell to gay weddings the exact same designs he sells to others.

Then make it prospective, rather than retrospective.  That resolves the "red herring" issue.  Just consider it as a hypothetical.

How would you feel if you, as a baker, were asked to make one of the following cakes?

And my questions again:

• Would you, as an individual, be reluctant to make any of the above cakes?  
• If so, would that reluctance be based on principle?
• Might that reluctance also be based, to a lesser extent, on a concern that your making of it might give others the impression that you endorse these messages?

Put aside how this would apply to the Phillips case.  Put aside the legal arguments, even.  Let's just use the hypothetical to explore a potential set of facts.

Thanks,

-Smac

[Amulek]

2 hours ago, Gray said:

If you like you can glue the declaration of independence to a cake. The words themselves would be speech. The cake is not.

Once you put words on the cake the words become part of the cake - you know, just like how once you put images on a canvas the canvas becomes part of a painting. 

I'm sorry, but this is just getting ridiculous. If you can't accept the obvious fact that cakes can be designed and decorated in a manner that conveys a message, then there's really no point in continuing the conversation. 

Please feel free to put your fingers in your ears and enjoy the echo chamber of your choosing. 

 

[california boy]

48 minutes ago, Analytics said:

Allow me to quote from the Colorado Court of Appeals:

According to the undisputed material facts of the case, Masterpiece is a public accommodation that refused to sell a cake because of their intent to engage in a same-sex marriage ceremony. From what you've quoted from news sources, it sounds like they wanted a "gay wedding cake." But according to what was said in court, Phillips refused to bake the cake because of their intent to engage in a same-sex marriage ceremony, regardless of how the cake was decorated. I find it totally bizarre that you won't concede this when according to the court and the legal arguments that were made in court, this is an undisputed fact.

 

The claim that religious liberty gives somebody who runs a public accommodation the right to deny selling an identical product that it sells to others because of how it is intended to be used and justifying this discrimination as the constitutional right of free religion and free speech is abusing and weaponizing the constitution.

Frankly, I have little patience for either side here. If you are in the cake business and somebody asks for generic cake, then sell them the cake. And if they won't sell you the cake, go someplace else. If they would have demanded that the cake be explicitly gay and if Phillips would have refused because he didn't want to make a gay cake, I'd side with Phillips, and I think the courts in Colorado would have to. But Phillips didn't refuse to make a gay cake. He refused to make any cake.

 

 

The Colorado Court of Appeals articulated the point:

Because “it is possible to find some kernel of expression in almost every activity a person undertakes,” City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989),

the Supreme Court has rejected the view that “conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea,” FAIR, 547 U.S. at 65-66 (some internal quotation marks omitted).  Rather, First Amendment protections extend only to conduct that is “inherently expressive.”  Id.

 

¶ 53 In deciding whether conduct is “inherently expressive,” we ask whether “‘[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message  would be understood by those who viewed it.’”  Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974)).  The message need not be “narrow,” or “succinctly articulable.”  Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995).  The Supreme Court has recognized expressive conduct in several cases.  See, e.g., id. (marching in a parade in support of gay and lesbian rights); United States v. Eichman, 496 U.S. 310, 312-19 (1990) (burning of the American flag in protest of government policies); Johnson, 491 U.S. at 399 (burning of the American flag in protest of Reagan administration and various corporate policies); Nat’l Socialist Party of Am. v. Vill. of Skokie, 432 U.S. 43, 43 (1977) (wearing of a swastika in a parade); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969) (wearing an armband in protest of war).

  
¶ 54 However, other decisions have declined to recognize certain conduct as expressive.  See Carrigan, 564 U.S. at ___, 131 S. Ct. at 2350 (legislators’ act of voting not expressive because it “symbolizes nothing” about their reasoning); Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 419, 437-38 (9th Cir. 2008) (wearing of nondescript school uniform did not convey particularized message of uniformity). 30
 
¶ 55 Masterpiece’s contentions involve claims of compelled expressive conduct.  In such cases, the threshold question is whether the compelled conduct is sufficiently expressive to trigger
First Amendment protections.  See Jacobs, 526 F.3d at 437-38 (threshold question in plaintiff’s claim that school uniform policy constituted compelled expressive conduct is whether the wearing of a uniform conveys symbolic messages and therefore was expressive).  The party asserting that conduct is expressive bears the burden of demonstrating that the First Amendment applies and the party must advance more than a mere “plausible contention” that its conduct is expressive.  Clark v. Cmty. for Creative Non Violence, 468 U.S. 288, 293 n.5 (1984). 

 

¶ 56 Finally, a conclusion that the Commission’s order compels expressive conduct does not necessarily mean that the order is unconstitutional.  If it does compel such conduct, the question is then whether the government has sufficient justification for regulating the conduct.  The Supreme Court has recognized that “when ‘speech’ and ‘non-speech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms.”  O’Brien, 391 U.S. at 376.  In other words, the government can regulate communicative conduct if it has an important interest unrelated to the suppression of the message and if the impact on the communication is no more than necessary to achieve the government’s purpose.  Id.; see also Barnes v. Glen Theatre Inc., 501 U.S. 560, 567-68 (1991); Johnson, 491 U.S. at 407. C [emphasis added]

 

I would like to thank you as well.  Now if we can just get SMAC to stick to what was actually said in a court of law rather than a newspaper, perhaps the discussion on this case can die a deserved death.

[Gray]

11 minutes ago, Amulek said:

Once you put words on the cake the words become part of the cake - you know, just like how once you put images on a canvas the canvas becomes part of a painting. 

I'm sorry, but this is just getting ridiculous. If you can't accept the obvious fact that cakes can be designed and decorated in a manner that conveys a message, then there's really no point in continuing the conversation. 

Please feel free to put your fingers in your ears and enjoy the echo chamber of your choosing. 

 

What's the message here? Other than "Wedding cake" I mean.

 

[Gray]

2 hours ago, smac97 said:

No, you haven't.

No, I didn't.

Yes you did. Over and over again.

 

2 hours ago, smac97 said:

Right.  Take your art class expertise about the legal definition of "art" to a judge and see what happens.

"Your honor, you must decide in my favor because way back in my undergrad days I had a discusson in my art class about what 'art' means.  You are bound by what we decided in that discussion."

Good luck!

-Smac

A college level discussion on the nature of art vs your total lack of argument? I think mine wins. When the opposing team doesn't show up, they lose by default.

[Analytics]

19 minutes ago, smac97 said:

I don't dispute it as far as the Court of Appeals decision.  But I dispute it based on the news articles that speak of a customized "rainbow" cake - which you yourself read.

My comments are limited to the Court of Appeals decision.

19 minutes ago, smac97 said:

But Mr. Phillips might.

Irrelevant because "the Supreme Court has rejected the view that “conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea,” FAIR, 547 U.S. at 65-66 (some internal quotation marks omitted).  Rather, First Amendment protections extend only to conduct that is “inherently expressive.”  Id."

19 minutes ago, smac97 said:

But that's simply a matter of finding a pliant legislature.  If baking a cake for a gay wedding falls within the parameters of public accommodations laws, then other forms of art, other forms of speech, can pretty easily be added into those parameters.

I can't comment upon a hypothetical universes with different laws.

 

19 minutes ago, smac97 said:

• Would you, as an individual, be reluctant to make any of the above cakes?  
• If so, would that reluctance be based on principle?
• Might that reluctance also be based, to a lesser extent, on a concern that your making of it might give others the impression that you endorse these messages?

Fine. I'll let you make your point with this. Here are my answers.

• Maybe
• I guess
• Not really; when I see a cake, I never think to myself, "the baker obviously endorses this message."