*Another* Solid Win for Free Speech and Religious Liberty (Arizona State Case)

[The Nehor]

1 hour ago, Scott Lloyd said:

I was going to respond to this, but I think at this point, I can scarcely do better than Amulek and Anijen. 

That is kind of sad. I believe in you.

[The Nehor]

1 hour ago, Daniel2 said:

LOLOL....

Nehor, this was THE best response I’ve EVER read here...

I bow down to your superior intellect-and sense of humor!

Thanks, I was bored of that post which keeps showing up in these cake threads and had some spare time. It got more fun as I kept going.

[Scott Lloyd]

23 minutes ago, The Nehor said:

That is kind of sad. I believe in you.

Amulek and Anijen bested you so handily, I was reluctant to pile on. 

[The Nehor]

2 hours ago, Scott Lloyd said:

Amulek and Anijen bested you so handily, I was reluctant to pile on. 

Oh, how gracious of you.

Amulek accused me of saying something I did not say and ripped his straw man to shreds while Anijen elevated petty religious virtue signaling to holy piety and I lost? Wow, I must have been kicked in the head or something earlier to have been that bad. Did I just urinate on myself and hallucinate my responses? Either that or you got kicked in the head. Or we both got kicked in the head. Or we both kicked each other in the head and the damage made us both forget it.

I would add one thing to what I said earlier. I used the woman in adultery as an example of the Savior avoiding ostentation in what He stood for. It works but not that well. I realized that a better example would be when the apostles came to Jesus and asked about the temple tax. Jesus rightly pointed out that He is the Messiah and should not have to pay. So did he challenge it? Fight tooth and nail for His rights? No, He paid it. Did those around him point this out as an example of Jesus betraying His calling? That He was denying He was the messiah? No, and I think this situation falls into that category.

Edited September 19, 2019 by The Nehor

[smac97]

8 hours ago, The Nehor said:

Thanks, I was bored of that post which keeps showing up in these cake threads and had some spare time. It got more fun as I kept going.

I also enjoyed that post.  

It was unsubstantive and deflected issues that the Courts are addressing.  But at least there was some humor involved.

🙂

Thanks,

-Smac

[stemelbow]

20 hours ago, InCognitus said:

Wouldn't the true initial effort to divide be when individuals try to force people with religious beliefs to do things contrary to their beliefs?

So let's take the example of someone patronizing a business.  If a gay couple went into to a photography professional business and asked them to do their wedding photos, how is that gay couple trying to force people with religious beliefs do things contrary to their beliefs?  The gay couple likely does not even know the religious beliefs of the photography professionals.  And may even share the religious beliefs on the business owner.   The first act of division there is when the photography professionals tell them "no" based on their sexual orientation.  Obviously.  

20 hours ago, smac97 said:

I  dispute the characterization of, say, Phillips refusal to submit to efforts to compell speech from him as "the initial effort to divide."

whose Phillips?  I don't see that person mentioned in the OP or subsequent conversations I've had.  What I'm talking about is when a business denies a customer services due to the customers sexual orientation.  The religious beliefs of the business owner may compel the owner to discriminate, fine.  But doing so is doing nothing but causing division. It sounds like you rally behind such things.  I find it reprehensible, divisive and unhelpful to the goals of society.  

HOpe that helps clarify the point I was making.  

[Amulek]

9 hours ago, The Nehor said:

I agree that that that notion is completely outlandish. 

Excellent. Then we are in agreement.  

 

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I am confused why you felt the need to point that out because, as far as I can tell, no one advocated the notion. I know I did not.

Well, it kind of sounded like that's what you were hinting at. 

 

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I said that if the principle of freedom of conscience is given absolute priority over all other principles and considerations then any practice (no matter how vile) merely has to be declared a matter of conscience or religion to overturn any law or restriction. I was pointing out the logical conclusion of what would happen to counter the idea suggested that it should be inviolate. It is just one of many competing good principles that have to be balanced against each other.

Sure. If freedom of conscience were given absolute supremacy then we would all become laws unto ourselves. 

Except that’s obviously not how our country operates, and it isn’t what will happen if the calligraphers out there keep winning their free speech cases. So, aside from just stating the obvious, I’m not sure what pointing that out has to do with the subject of the thread. Maybe you and Scott just got off on a weird tangent, and I should have left it alone.  
 

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I did not state or suggest that any current court case would bring about the scenario.

You did not state it, but here’s how I read your comment as suggesting it: 

At the end of your description of what it would be like if conscience were to be inviolate, you talked about how people would go back to putting up “No Colored” signs and whatnot. You then ended by saying that you “think it is worth a little accommodation and inoffensive compromise to avoid living in that world.” 

Only we have already made changes to avoid living in that world. It isn’t the world we live in. So, again, what’s the point of talking about something that has long since been done? I assumed that you were suggesting that refusing to accommodate/compromise now would move us closer to a world like that. 

But if you don’t believe that, then (again) we are in agreement.

A victory for artists on free speech grounds isn’t some kind of slippery slope that is going to lead us back to the days of segregation.
 

[smac97]

10 hours ago, Daniel2 said:

Ahhhh..... you’ve kept that ‘drive-by cut-and-paste’ post on speed dial for those new to these discussions. 

Yes, well.  As long as the same arguments get trotted out, we may as well use the same responses.

"The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun."  (Eccl. 1:9)

10 hours ago, Daniel2 said:

For those of us who’ve been around awhile, that very same post, pics and all, has been addressed and answered in multiple threads, ad nauseum. 

But you already know that. 

Well, let's talk about what we "already know."

I don't recall you responding to the points I've raised previously.  Let's try again:

If a gay baker were asked to decorate a cake like this:

Do you think the baker should have the right to refuse to provide that service/product?

If a Jewish baker were asked to decorate a cake like this:

Do you think the baker should have the right to refuse to provide that service/product?

If a baker of any persuasion were asked to decorate a cake like this:

Do you think the baker should have the right to refuse to provide that service/product?

In the Masterpiece Cakeshop case, the Colorado "Civil Rights" Commission sought to punish Mr. Phillips for his refusal to engage in speech he found objectionable.

That same Commission thereafter excused gay bakers from being compelled to engage in speech they found objectionable:

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To Phillips, his claim that using his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation, has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. His dilemma was understandable in 2012, which was before Colorado recognized the validity of gay marriages performed in the State and before this Court issued United States v. Windsor, 570 U. S. 744, or Obergefell. Given the State’s position at the time, there is some force to Phillips’ argument that he was not unreasonable in deeming his decision lawful. State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive. Indeed, while the instant enforcement proceedings were pending, the State Civil Rights Division concluded in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. Phillips too was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case.
...
As noted above, on at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service. It made these determinations because, in the words of the Division, the requested cake included “wording and images [the baker] deemed derogatory,” Jack v. Gateaux, Ltd., Charge No. P20140071X, at 4; featured “language and images [the baker] deemed hateful,” Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X, at 4; or displayed a message the baker “deemed as discriminatory, Jack v. Azucar Bakery, Charge No. P20140069X, at 4.  

The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depicting Christian themes, to the prospective customers. But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brownies,” App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections.

See also this comment from one of the attorneys who represented the baker in the above case:

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Instead of respecting Phillips’ belief about marriage, the state labeled his beliefs discriminatory. One state official even said that using religious freedom “to justify discrimination” is “a despicable piece of rhetoric,” comparing Phillips’ efforts to protect his freedom to arguments raised by slaveholders and Nazis. And the government ordered Phillips to re-educate his employees, which even included his mother, and teach them that he was wrong to operate his own business consistently with his beliefs.

To make matters worse, the same commission that sidelined Jack’s convictions elevated the convictions of other Colorado cake artists, who were faced with requests for messages that they did not want to create, specifically messages that opposed same-sex marriage.

By so doing, the commissioners showed their bias and demonstrated a nearly poetic double standard concerning the cake artists’ expressive freedom and their willingness to sell other products to the same customers.

Yep.  "Freedom of conscience/speech for me and mine, but not for thee and thine."  That seems to be what the bullies and their execrable enablers (like the so-called Colorado "Human Rights" Commission) are expecting.

Nehor's comments were arbitrary and unreasoned.  He provided no argument, no reasoning, no analysis as to what does or does not constitute "speech."  

To be sure, his response was funny (sort of), but it ducked the substantive issues.  

But you already know that. 

10 hours ago, Daniel2 said:

Thankfully, the court will decide to take up the case (or consolidate several similar ones) that will eventually provide the legally definitive final answer to the issue.  

And when they do, I hope they will give due consideration to the Free Speech and Free Exercise clauses.

10 hours ago, Daniel2 said:

But as you of all people also know, the courts often intentionally glacial pace is intended to move with caution and care as the entire court system continues to build a preponderance of precedent upon which to make the final ruling. 

Well, not exactly.  SCOTUS analyzes, but is not bound by, the rulings of lower courts.

10 hours ago, Daniel2 said:

In the meantime, I expect you’ll continue to get a lot of mileage here with that cut-and-paste post.

Well, as long as folks like you and Nehor deflect and dodge previously-asked questions, I see no reason to expend much effort in formulating new ones.

Thanks,

-Smac

[smac97]

57 minutes ago, stemelbow said:

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Wouldn't the true initial effort to divide be when individuals try to force people with religious beliefs to do things contrary to their beliefs?

So let's take the example of someone patronizing a business. 

Okay.

Quote

If a gay couple went into to a photography professional business and asked them to do their wedding photos, how is that gay couple trying to force people with religious beliefs do things contrary to their beliefs? 

This is a very good question.

The legal analysis of these issues seems to center on a nexus between Free Speech and Free Exercise.  That is to say, under many public accommodations/antidiscrimination statutes, a religious person cannot use "religious beliefs" as a carte blanche to deny services to someone because of their sexual orientation.  

I'm quite apprehensive about the seeming weaponization of these statutes.  I am likewise concerned about the potential for "equal protection" under these statutes.  For example, it seems that a person like Mr. Phillips could not "discriminate" by refusing to decorate a wedding cake with a message he found objectionable, but gay bakers (three of them!) are perfectly at liberty to "discriminate" by refusing to decorate cakes they found objectionable.  Again, from the Masterpiece Cakeshop case:

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To Phillips, his claim that using his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation, has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. His dilemma was understandable in 2012, which was before Colorado recognized the validity of gay marriages performed in the State and before this Court issued United States v. Windsor, 570 U. S. 744, or Obergefell. Given the State’s position at the time, there is some force to Phillips’ argument that he was not unreasonable in deeming his decision lawful. State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive. Indeed, while the instant enforcement proceedings were pending, the State Civil Rights Division concluded in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. Phillips too was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case.
...
As noted above, on at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service. It made these determinations because, in the words of the Division, the requested cake included “wording and images [the baker] deemed derogatory,” Jack v. Gateaux, Ltd., Charge No. P20140071X, at 4; featured “language and images [the baker] deemed hateful,” Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X, at 4; or displayed a message the baker “deemed as discriminatory, Jack v. Azucar Bakery, Charge No. P20140069X, at 4.  

The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depicting Christian themes, to the prospective customers. But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brownies,” App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections.

And then there was the Bedlam Coffee incident:

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Jonathan Sutherland, a Christian abolitionist with a group promoting the outlawing of abortion, was visiting Seattle last week when he and the group he was with decided to visit Bedlam Coffee in Belltown.

They filmed their confrontation with the shop’s owner when the owner discovered their affiliation and asked them to leave.

According to Sutherland, the abolitionist group was in the coffee shop to do one thing: drink coffee.

“We came to Seattle because we are Christians who want to see abortions abolished,” he told KIRO Radio’s Dori Monson. “We want to show we are Christians who are not afraid to be seen acting like Christians in a culture where child sacrifice for the murder of children is legal.”

The “Dori Monson Show” has reached out to the owner of Bedlam Coffee for comment.

Sutherland says the group was not trying to disseminate information inside the business, he said. According to Sutherland, he and his friends were in the coffee shop for “about five minutes,” talking “about random stuff,” when an employee went into a back room. That’s when the owner of the business told them to leave.
...
Sutherland says the group did not know the coffee shop was owned by a gay man and that the literature the shop employee showed the owner was brought from outside.

Here's a video of the encounter (lots of language, so be forewarned).

The owner of the coffee shop, Mr. Borgman, has some interesting things to say:

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The incident has been likened to the Richland florist who refused to serve a gay couple. Borgman weighed in on that case, too, while talking to Dori.

“I don’t think she should have to (serve customers she doesn’t want to),” Borgman said. “I don’t think anybody should bake a cake or sell flowers to anybody they don’t want to. And apparently that is not what I’m supposed to think … my only real reaction to that is: Why would you want to force somebody, that doesn’t want to make you something, to make you a wedding cake? It doesn’t seem like they are going to make it really well. They are not going to give you their best work.”

Borgman said that members of the anti-abortion group have been back into Bedlam Coffee since the incident. He said that he will serve them. The reason he kicked them out was because it was clear who they were and what they were doing.

“I probably would not throw them out,” Borgman said. “If they held a meeting here to organize their action in the park, yes, I would throw them out. Not because they are Christian; not because they are any kind of protected class. Because they are a group of people spreading hate in my city.”

“If I have any regrets, it’s that I gave these people exactly what they wanted,” he said. “I was exactly the guy they needed to set off so they would have a video and they can stand around and say, ‘Look at what victims we are.’”

Fairly inconsistent, this fellow.

Anyway, I found this article on the Bedlam Coffee incident to be insightful:

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Washington State's public accommodation laws prohibit discrimination on the basis of "creed," so Borgman cannot simply boot people out of his coffee shop for having Christian religious beliefs. But over at The Stranger, a Seattle alt-weekly, Katie Herzog argues that this case isn't religious discrimination but a disagreement about political positions:

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Not believing that woman should have autonomy over their own bodies is not actually a protected class in America, much like…gays. Looks like these folks have more in common than they thought.

She's saying that Borgman isn't kicking them out because they're Christians, which would violate the state's laws; he's kicking them out because he finds their extreme anti-abortion positions offensive. The fact that these positions are informed by their religious beliefs is not relevant.

What's fascinating about that argument is how it so closely tracks the response from bakers and florists who don't want to offer their services for gay weddings. They say that they're not discriminating against gay people: Gay people are more than welcome to come into their shops and buy cakes and flowers. Rather, they object to the concept of gay marriage and to the position that it should be treated similarly to heterosexual marriage, and they do not want to be forced to produce goods that suggest that they support it.

By trying to come up with a justification as to why Borgman should allowed to boot these guys from his coffee shop without running afoul of state antidiscrimination laws, Herzog is essentially making the same argument: that this isn't discrimination against people for their identities, but discrimination against certain views.

That's the sort of weird semantic contortions that come when you try to police the circumstances in which people can decline to do business with someone else. People want to preserve their own right to refuse to associate with others while limiting the others' ability to shun them. Using government authority to do this gives people an incentive to look for ways to punish people with whom you have disagreements.

But it's more responsible, ethical, and most of all mature to suggest that both the coffee shop owner and the baker should be able to decide for themselves when they'll extend their hospitality. With neither the coffee shop nor the baker does a refusal to do business with these customers cause real, recognizable harms that justify government intervention.

Anyhoo, the Washington State Human Rights Commission was apparently going to send a letter to Mr. Borgman telling him that he cannot deny service to someone based on their religious beliefs.  If that happened, then Washington State is miles ahead of Colorado.

In any event, the risk for unequal treatment under public accommodations/antidiscrimination statutes seems both real and actualized.

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I  dispute the characterization of, say, Phillips refusal to submit to efforts to compell speech from him as "the initial effort to divide."

whose Phillips?  I don't see that person mentioned in the OP or subsequent conversations I've had. 

The appellant in the Masterpiece Cakeshop case.  We've discussed that case a lot.

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What I'm talking about is when a business denies a customer services due to the customers sexual orientation. 

Something Mr. Phillips didn't do.  He denied a service because he objected to the message he was asked to create.  See here (emphasis added):

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

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

And here (emphasis added):

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When they visited Phillips’ cake shop to ask him to provide a wedding cake for the event, he declined, explaining that his religious beliefs prevented him from participating in same-sex “weddings.”  Phillips said he would be happy to sell them brownies or other treats to serve at the reception, just not a wedding cake.

The two men reacted with angry disbelief.  “It was the most awkward, surreal, very brief encounter," Mullins told Denver Westword at the time. “We got up to leave, and to be totally honest, I said, ‘F--- you and your homophobic cake shop.’ And I may or may not have flipped him off.”

Keep it classy, Mr. Mullins!

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The religious beliefs of the business owner may compel the owner to discriminate, fine. 

And what about Mr. Borgman?  Should he be allowed to "discriminate?"

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But doing so is doing nothing but causing division.

Mr. Phillips was the one who was sued.  He was the defendant.

So who is it, really, that is "causing division?"

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It sounds like you rally behind such things. 

I strongly dislike the arbitrary application of public accommodation/antidiscrimination statutes to compel speech.  It does not matter who the person being compelled is.  It does not matter if their refusal to be compelled to speak is based on religious beliefs or any other reason.  I "rally behind" efforts to stop such compulsory efforts.

Thanks,

-Smac

Edited September 19, 2019 by smac97

[The Nehor]

1 hour ago, Amulek said:

Well, it kind of sounded like that's what you were hinting at. 

That is a radical interpretation of the text.

1 hour ago, Amulek said:

Sure. If freedom of conscience were given absolute supremacy then we would all become laws unto ourselves. 

Except that’s obviously not how our country operates, and it isn’t what will happen if the calligraphers out there keep winning their free speech cases. So, aside from just stating the obvious, I’m not sure what pointing that out has to do with the subject of the thread. Maybe you and Scott just got off on a weird tangent, and I should have left it alone.  

Scott was using freedom of conscience as a trump card over other considerations. I was pointing out what the results would be if that were implemented. I did not suggest that it would be. Only the most deranged of libertarians say they want that. I am not convinced they actually do want to live in such a world.

1 hour ago, Amulek said:

You did not state it, but here’s how I read your comment as suggesting it: 

At the end of your description of what it would be like if conscience were to be inviolate, you talked about how people would go back to putting up “No Colored” signs and whatnot. You then ended by saying that you “think it is worth a little accommodation and inoffensive compromise to avoid living in that world.” 

Only we have already made changes to avoid living in that world. It isn’t the world we live in. So, again, what’s the point of talking about something that has long since been done? I assumed that you were suggesting that refusing to accommodate/compromise now would move us closer to a world like that. 

But if you don’t believe that, then (again) we are in agreement.

A victory for artists on free speech grounds isn’t some kind of slippery slope that is going to lead us back to the days of segregation.
 

I was combating a hypothetical to undermine the idea that freedom of conscience is a trump card. As I said I have known extreme libertarians who do advocate for this kind of “freedom”. I was pointing out that the absurdly twisted would happen if we elevate one right as superior to all others to show that we should not argue that it is sacred and above all others and that if you invoke it the discussion is over.

[The Nehor]

1 hour ago, smac97 said:

Nehor's comments were arbitrary and unreasoned.  He provided no argument, no reasoning, no analysis as to what does or does not constitute "speech."  

Well, as long as folks like you and Nehor deflect and dodge previously-asked questions, I see no reason to expend much effort in formulating new ones.

I threw the substantive thoughts in there in the midst of the fun. Of course my designations of what I thought crossed the line were arbitrary. There is no hard and fast rule you can apply in every case that will make something unambiguously either speech or not speech. A racist could cogently argue that serving a meal to an Asian is speech because it suggests approval of Asians. The competing demands of freedom of conscience versus the public accommodation clauses of federal law are worth exploring but no one is going to be able to draw a line that all will agree on. Thus my prescription is civility, giving a little when it is not important to foster goodwill or at least not provoke unnecessary antagonism, and so on.

I admit I am curious how you see the Savior’s submission to the temple tax in this context. Isn’t that giving in on this point?

45 minutes ago, smac97 said:

I strongly dislike the arbitrary application of public accommodation/antidiscrimination statutes to compel speech.  It does not matter who the person being compelled is.  It does not matter if their refusal to be compelled to speak is based on religious beliefs or any other reason.  I "rally behind" efforts to stop such compulsory efforts.

It is not arbitrary application. Again, you show no tolerance for anti discrimination statutes. If someone of the Church of the Holy Master Race opened a bank or a restaurant or a store and refused to serve people or sell to people not of Nordic descent because there existence is a blight and they must be excised before Ragnarok lest the trolls and giants win what would your legal argument against that be? They argue that issuing a bank statement with a person’s name on it or their special individualized food presentation being given to “such people” violates their beliefs. Would you be for compelling that speech from them? Oh, also they view the handicapped as deserving of euthanasia so they refuse to install ramps under the argument that that would be forcing them to say the handicapped are welcome. Also they refuse to offer insurance to their employees because “the weak must perish”.

And to preempt you calling this argument absurd and saying it is dodging and deflecting as you keep accusing me of doing I actually want an answer. Do you think antidiscrimination and accommodation laws are unconstitutional because they conflict with your interpretation of free speech. 

I am stating what I believe about this case which is subject to disagreement and I can even respect those who see cake decorations as speech though I disagree with it. What I do not respect is the idea that freedom of conscience is a trump card argument that wins automatically and the condemnation of those who do not take what I see to be an extreme interpretation of what constitutes speech. I am genuinely curious how far you would let this argument hold sway. Should it mean that any business that does anything even vaguely artistic should have the right to discriminate at will? Or do you acknowledge that it is a fraught area with competing principles and judgement needs to be used.

I also stand by this whole thing being petty. It is a cake. I also agree that the people who are suing the Cakeshop are petty and I would argue more petty then the Cakeshop. One more reason to long for the Millenium when the petty shall be burned and it shall be said to all: “Let them eat cake!”

[stemelbow]

1 hour ago, smac97 said:

Okay.

This is a very good question.

The legal analysis of these issues seems to center on a nexus between Free Speech and Free Exercise.  That is to say, under many public accommodations/antidiscrimination statutes, a religious person cannot use "religious beliefs" as a carte blanche to deny services to someone because of their sexual orientation.  

I'm quite apprehensive about the seeming weaponization of these statutes.  I am likewise concerned about the potential for "equal protection" under these statutes.  For example, it seems that a person like Mr. Phillips could not "discriminate" by refusing to decorate a wedding cake with a message he found objectionable, but gay bakers (three of them!) are perfectly at liberty to "discriminate" by refusing to decorate cakes they found objectionable. 

You've misunderstood me.  I have not spoken out about the legal issues here.  I am saying the division begins when the religious use their religion to discriminate based on sexual orientation.  If you feel good that the law should be behind the business owner, great.  I have no issue with that.  I find the divisiveness disappointing and it all begins with the business owner.  I think my point is clear here.  

Quote

Again, from the Masterpiece Cakeshop case:

And then there was the Bedlam Coffee incident:

Here's a video of the encounter (lots of language, so be forewarned).

The owner of the coffee shop, Mr. Borgman, has some interesting things to say:

Fairly inconsistent, this fellow.

Anyway, I found this article on the Bedlam Coffee incident to be insightful:

Anyhoo, the Washington State Human Rights Commission was apparently going to send a letter to Mr. Borgman telling him that he cannot deny service to someone based on their religious beliefs.  If that happened, then Washington State is miles ahead of Colorado.

In any event, the risk for unequal treatment under public accommodations/antidiscrimination statutes seems both real and actualized.

The appellant in the Masterpiece Cakeshop case.  We've discussed that case a lot.

Something Mr. Phillips didn't do.  He denied a service because he objected to the message he was asked to create.  See here (emphasis added):

THat's the same in my view.  He created the divisiveness because he objected to what they were doing--he discriminated, if you prefer the language, because "he would not bake a cake for their wedding. He said as a long-practicing Christian he believed God intended marriage to be for one man and one woman".  I'm not concerned about anything but the fact that this topic shows the religious causing division amongst our people (citizens of the US)."  Indeed, when it comes to the legality they can couch their discrimination in any way they like.  THat has nothing to do with the point I'm raising.  

Quote

And here (emphasis added):

Keep it classy, Mr. Mullins!

And what about Mr. Borgman?  Should he be allowed to "discriminate?"

Mr. Phillips was the one who was sued.  He was the defendant.

So who is it, really, that is "causing division?"

I strongly dislike the arbitrary application of public accommodation/antidiscrimination statutes to compel speech.  It does not matter who the person being compelled is.  It does not matter if their refusal to be compelled to speak is based on religious beliefs or any other reason.  I "rally behind" efforts to stop such compulsory efforts.

Thanks,

-Smac

Fine, dislike whatever you like.  Complain about people taking these issues to the courts.  I don't care.  But that's not really addressing my point.  As I said I don't support taking legal action for these discriminating and divisive acts.  But I do think it's good these business owners are called out, no matter which side they are discriminating against, because people need to be clear who is causing the division.  

Edited September 19, 2019 by stemelbow

[Amulek]

9 minutes ago, The Nehor said:

I was combating a hypothetical to undermine the idea that freedom of conscience is a trump card. [...] I was pointing out that the absurdly twisted would happen if we elevate one right as superior to all others to show that we should not argue that it is sacred and above all others and that if you invoke it the discussion is over.

I agree that freedom of conscience isn't an automatic trump card. However, if freedom of conscience is going to mean anything in the real world, then it has to be able to trump some things, at least some of the time - even if it means that someone might feel slighted every now and then. 

In my opinion, when an artist refuses to make use of her talents to convey a message contrary to her conscience, the dignitary harm imposed on the potential client is much less severe than the harm associated with having the government compel that artist to speak contrary to her will. 

I think that's a pretty sensible position to take, and with a little discussion I think it's one that most people could probably come to agreement on. 

 

[The Nehor]

15 minutes ago, Amulek said:

I agree that freedom of conscience isn't an automatic trump card. However, if freedom of conscience is going to mean anything in the real world, then it has to be able to trump some things, at least some of the time - even if it means that someone might feel slighted every now and then. 

In my opinion, when an artist refuses to make use of her talents to convey a message contrary to her conscience, the dignitary harm imposed on the potential client is much less severe than the harm associated with having the government compel that artist to speak contrary to her will. 

I think that's a pretty sensible position to take, and with a little discussion I think it's one that most people could probably come to agreement on. 

 

I agree.

I also believe we differ on what constitutes a message.

[smac97]

10 minutes ago, The Nehor said:

I threw the substantive thoughts in there in the midst of the fun. Of course my designations of what I thought crossed the line were arbitrary.

"Arbitrary" and "substantive" don't really play well together.

10 minutes ago, The Nehor said:

There is no hard and fast rule you can apply in every case that will make something unambiguously either speech or not speech.

There are, however, guidelines and reasoning and analytical frameworks under which such issues can be evaluated.  See, for example, here (summarizing case law regarding compelled speech) and here / here / here and here (summarizing case law regarding symbolic speech). 

I think this is a serious topic, and deserves some real attention and effort to understand.  Humor and sarcasm have a place, but I don't think they should replace substantive, thoughtful, informed, and reasoned analysis.

10 minutes ago, The Nehor said:

A racist could cogently argue that serving a meal to an Asian is speech because it suggests approval of Asians. The competing demands of freedom of conscience versus the public accommodation clauses of federal law are worth exploring but no one is going to be able to draw a line that all will agree on. Thus my prescription is civility, giving a little when it is not important to foster goodwill or at least not provoke unnecessary antagonism, and so on.

First, I think Mr. Phillips is an excellent example of that.  See here (emphasis added):

Quote

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

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

And here (emphasis added):

Quote

When they visited Phillips’ cake shop to ask him to provide a wedding cake for the event, he declined, explaining that his religious beliefs prevented him from participating in same-sex “weddings.”  Phillips said he would be happy to sell them brownies or other treats to serve at the reception, just not a wedding cake.

The two men reacted with angry disbelief.  “It was the most awkward, surreal, very brief encounter," Mullins told Denver Westword at the time. “We got up to leave, and to be totally honest, I said, ‘F--- you and your homophobic cake shop.’ And I may or may not have flipped him off.”

Does this satisfy your proposal of "giving a little?"

10 minutes ago, The Nehor said:

I admit I am curious how you see the Savior’s submission to the temple tax in this context. Isn’t that giving in on this point?

I don't see that as analogous.  A more apt example would be Moroni 1:

Quote

1 Now I, Moroni, after having made an end of abridging the account of the people of Jared, I had supposed not to have written more, but I have not as yet perished; and I make not myself known to the Lamanites lest they should destroy me.
2 For behold, their wars are exceedingly fierce among themselves; and because of their hatred they put to death every Nephite that will not deny the Christ.
3 And I, Moroni, will not deny the Christ; wherefore, I wander whithersoever I can for the safety of mine own life.

Moroni resisted coercion to speak things that he did not believe.

10 minutes ago, The Nehor said:

It is not arbitrary application. Again, you show no tolerance for anti discrimination statutes.

That's not so.  As I noted previously:

Quote

I think "public accommodations" laws should be limited to essential goods and services (food, clothing, housing, medical care, communications, etc.).  Otherwise, I think the free market will provide for everything else.  This would, I think, largely resolve Justice Keller's (reasonable) concern, while still (mostly) preserving individual constitutional rights (free exercise, against compelled speech, etc.).

Meanwhile, you seem to show no tolerance for diversity of opinion, or Free Speech, or Free Exercise.

10 minutes ago, The Nehor said:

And to preempt you calling this argument absurd and saying it is dodging and deflecting as you keep accusing me of doing I actually want an answer. Do you think antidiscrimination and accommodation laws are unconstitutional because they conflict with your interpretation of free speech. 

No.  I think they can be unconstitutional (or unconstitutionally applied), but not on the grounds you propose.

10 minutes ago, The Nehor said:

I am stating what I believe about this case which is subject to disagreement and I can even respect those who see cake decorations as speech though I disagree with it. What I do not respect is the idea that freedom of conscience is a trump card argument that wins automatically and the condemnation of those who do not take what I see to be an extreme interpretation of what constitutes speech.

I don't recall condemning anyone.  And I've been speaking mostly about the Free Exercise and Free Speech clauses of the First Amendment to the Constitution.  To a lesser extent, I have also spoken of the "Right of Association" (which is not an enumerated right).

10 minutes ago, The Nehor said:

I am genuinely curious how far you would let this argument hold sway.

You should first accurately state my argument, and then we can discuss how for it could "hold sway."

10 minutes ago, The Nehor said:

Should it mean that any business that does anything even vaguely artistic should have the right to discriminate at will?

I see the value of public accommodations and antidiscrimination statutes.  I am nevertheless concerned about how they are being weaponized.

From the AZ Supreme Court's decision:

Quote

The dissenters engage in unfortunate hyperbole when they invoke shameful historical examples of discrimination. Infra ¶¶ 217–18 (Bales, J. (Ret.), dissenting). Plaintiffs do not seek to employ the coercive apparatus of government to impose disabilities on others. They do not discriminate against patrons based on their sexual orientation (indeed, it remains unlawful for them to do so), but instead object to conveying certain messages regardless of who the patron is. Plaintiffs seek merely to vindicate their right not to engage in speech that offends their deeply held religious beliefs, a right not only protected by the Arizona Constitution and the Free Exercise of Religion Act, but also one of our nation’s most cherished civil liberties—one that, as Justice Robert H. Jackson declared, is “beyond the reach of majorities and officials.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 629, 638, 642 (1943) (striking down law that required Jehovah’s Witnesses to salute the American flag). As the Court’s opinion abundantly illustrates, that right does not evaporate upon enactment of a public accommodations law, no matter how beneficently inspired.
...
There is a reciprocity and universality to these rights of speech and conscience that give us all a direct stake in protecting them regardless of the circumstances of a particular case. For instance, Phoenix could lawfully prohibit a gay calligrapher from discriminating against Christian patrons whatever their beliefs but could not force the calligrapher to create a program for a church that preached against same-sex marriage.  Likewise, if Michelangelo were alive, the City could require that he sell his sculptures free from discrimination but could not compel him to paint a chapel ceiling in a way he deemed blasphemous. That distinction is the fair accommodation required in a pluralistic society bounded by constitutional protections of individual rights.

Perhaps the more apt question is how far do folks on the other side of this issue want to go in weaponizing public accommodations and antidiscrimination statutes.  The AZ Surpeme Court is quite right to emphasize "reciprocity and univerality to these rights of speech and conscience."

10 minutes ago, The Nehor said:

Or do you acknowledge that it is a fraught area with competing principles and judgement needs to be used.

Um, I'm the one who started the thread.  I've started or heavily participated in many, many threads of this sort.  I've repeatedly spoken of my appreciation for the U.S. legal system as a means of resolving these disputes.

10 minutes ago, The Nehor said:

I also stand by this whole thing being petty. It is a cake.

And a flag is just a flag.  But is burning it "speech?"

And what about armbands?  Is wearing them "speech?"

The U.S. Supreme Court is not really in the business of addressing "petty" disputes.  Only the tiniest fraction of legal disputes end up there, such that such cases are almost always of significant legal importance.

Thanks,

-Smac

[smac97]

37 minutes ago, stemelbow said:

You've misunderstood me.  I have not spoken out about the legal issues here. 

Ah.  Well, that's my primary focus.

37 minutes ago, stemelbow said:

I am saying the division begins when the religious use their religion to discriminate based on sexual orientation. 

And I am saying that the division begins when anti-religion zealots weaponize the law to punish Christians for failing to bend the knee and speak things they do not want to speak.

37 minutes ago, stemelbow said:

Fine, dislike whatever you like.  Complain about people taking these issues to the courts.  I don't care.  But that's not really addressing my point. 

That is not what I am saying.

37 minutes ago, stemelbow said:

As I said I don't support taking legal action for these discriminating and divisive acts.  But I do think it's good these business owners are called out, no matter which side they are discriminating against, because people need to be clear who is causing the division.  

You are blaming the Christian (who is resisting compelled speech), and apparently absolving the other side (which sued him for his refusal to say things they wanted him to say).

This from the same person complaining about "causing ... division."

🤨

Thanks,

-Smac

[The Nehor]

3 hours ago, smac97 said:

"Arbitrary" and "substantive" don't really play well together.

There are, however, guidelines and reasoning and analytical frameworks under which such issues can be evaluated.  See, for example, here (summarizing case law regarding compelled speech) and here / here / here and here (summarizing case law regarding symbolic speech). 

I think this is a serious topic, and deserves some real attention and effort to understand.  Humor and sarcasm have a place, but I don't think they should replace substantive, thoughtful, informed, and reasoned analysis.

First, I think Mr. Phillips is an excellent example of that.  See here (emphasis added):

And here (emphasis added):

Does this satisfy your proposal of "giving a little?"

I don't see that as analogous.  A more apt example would be Moroni 1:

Moroni resisted coercion to speak things that he did not believe.

That's not so.  As I noted previously:

Meanwhile, you seem to show no tolerance for diversity of opinion, or Free Speech, or Free Exercise.

No.  I think they can be unconstitutional (or unconstitutionally applied), but not on the grounds you propose.

I don't recall condemning anyone.  And I've been speaking mostly about the Free Exercise and Free Speech clauses of the First Amendment to the Constitution.  To a lesser extent, I have also spoken of the "Right of Association" (which is not an enumerated right).

You should first accurately state my argument, and then we can discuss how for it could "hold sway."

I see the value of public accommodations and antidiscrimination statutes.  I am nevertheless concerned about how they are being weaponized.

From the AZ Supreme Court's decision:

Perhaps the more apt question is how far do folks on the other side of this issue want to go in weaponizing public accommodations and antidiscrimination statutes.  The AZ Surpeme Court is quite right to emphasize "reciprocity and univerality to these rights of speech and conscience."

Um, I'm the one who started the thread.  I've started or heavily participated in many, many threads of this sort.  I've repeatedly spoken of my appreciation for the U.S. legal system as a means of resolving these disputes.

And a flag is just a flag.  But is burning it "speech?"

And what about armbands?  Is wearing them "speech?"

The U.S. Supreme Court is not really in the business of addressing "petty" disputes.  Only the tiniest fraction of legal disputes end up there, such that such cases are almost always of significant legal importance.

Thanks,

-Smac

Too hard to break this up on tablet.

I deny that I was arbitrary. I am not sure you know what arbitrary means as you suggest that federal nondiscrimination laws are being brought into the discussion arbitrarily when they are very relevant to this discussion.

I disagree that Philips is an excellent example of that,

I do not equate the persecution of “recant or die” that Moroni was talking about to be at all equivalent to the purported cake message. I chose the Savior’s temple tax story because it is an example of a much less extreme situation where the Savior bent to common practice due to convenience even though the demand was wrong. Acceding to it though was not sinful, which is also very important.

I have shown tolerance to diversity of opinion and have admitted that I can respect someone who sees a cake as a message even though I disagree with it and will ridicule it a bit and that my main gripe is with the ultimatum people are making. With your inflexible stance on this are you arguing that you have shown tolerance for diversity of opinion? I would love to hear how you would justify that.

Public accommodation laws and antidiscrimination statutes were meant to be weaponized. They were meant to hurt bigots who were creating underclasses in society by denying minority groups equal access to goods and services.

You acknowledge the legal system is for this stuff. I do not deny it. I do think you give undue privilege to “freedom of conscience” over other important principles which is what I said. I have no problem with this going to court though I think everyone involved could have made wiser choices and avoided it.

A cake is not a flag or an armband (presumably with a swastika) and the cake creator was not required to wear the cake or be associated with its use.

And yeah, the Supreme Court has taken up many petty cases. Usually the issues behind those petty disputes are controversial or unsettled but the original dispute can still be petty.

Edited September 19, 2019 by The Nehor

[Daniel2]

3 hours ago, smac97 said:

Yes, well.  As long as the same arguments get trotted out, we may as well use the same responses.

"The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun."  (Eccl. 1:9)

Well, let's talk about what we "already know."

I don't recall you responding to the points I've raised previously.  Let's try again:

If a gay baker were asked to decorate a cake like this:

Do you think the baker should have the right to refuse to provide that service/product?

If a Jewish baker were asked to decorate a cake like this:

Do you think the baker should have the right to refuse to provide that service/product?

If a baker of any persuasion were asked to decorate a cake like this:

Do you think the baker should have the right to refuse to provide that service/product?

In the Masterpiece Cakeshop case, the Colorado "Civil Rights" Commission sought to punish Mr. Phillips for his refusal to engage in speech he found objectionable.

That same Commission thereafter excused gay bakers from being compelled to engage in speech they found objectionable:

See also this comment from one of the attorneys who represented the baker in the above case:

Yep.  "Freedom of conscience/speech for me and mine, but not for thee and thine."  That seems to be what the bullies and their execrable enablers (like the so-called Colorado "Human Rights" Commission) are expecting.

Nehor's comments were arbitrary and unreasoned.  He provided no argument, no reasoning, no analysis as to what does or does not constitute "speech."  

To be sure, his response was funny (sort of), but it ducked the substantive issues.  

But you already know that. 

And when they do, I hope they will give due consideration to the Free Speech and Free Exercise clauses.

Well, not exactly.  SCOTUS analyzes, but is not bound by, the rulings of lower courts.

Well, as long as folks like you and Nehor deflect and dodge previously-asked questions, I see no reason to expend much effort in formulating new ones.

Thanks,

-Smac

Good grief, Smac.  I haven't dodged your questions, and it's disappointing to see you trying to spin the circumstances as if I am.  You may not recall (selective amnesia, perhaps?) that I've responded to them, but I have.  On MANY occasions.

But since you've accused me of not responding, I'll recap my views in response to your assertions above, as previously repeatedly expressed in past discussions, once again:

There is a difference between inherently expressive speech vs. artistically-creative yet not-inherently expressive speech.  The law has made this distinction on several occasions, and since those baking cakes and creating floral arrangements seem to feel they should be exempt from public accommodation laws, the courts will apparently continue to have to split the hair even further.

To be clear: I don't believe anyone should have to write words or symbols which the law states are or defines as "inherently expressive."  I also agree that certain images that are considered to be obscene or offensive may fall into that category.  That's why I agree with and support the ruling which found that the t-shirt manufacturer did not have to print gay pride messages on it's t-shirts.

Additionally, I don't believe any business can or should be forced to 'order in' a product that it doesn't already carry in inventory and already sell to the general public.  Therefore, a baker who doesn't carry same-sex couple wedding toppers can't and shouldn't be forced to start carrying them or selling them.  

Finally, I believe that any artistic cake/artistic creation/floral arrangement which is offered to members of the general public cannot be refused to anyone on the basis of their religion, race, gender, national origin, disability, sexual orientation, veteran status, etc.  

In case my comments above aren't clear to you and you continue to presume I'm dodging anything:

No, I don't believe cake makers of any stripe should be forced to create cakes that say "All fags go to Hell," that have a swastika, or that have violent imagery (i.e. the headless groom cake) on them.  Just as I don't believe t-shirt manufacturers should be forced to print gay pride t-shirts, or printers should be forced to write same-sex invitations (not that any gay couples have asked anyone to, that I'm aware of, despite Brush & Nib's pre-emptive strike).

Mr. Phillips didn't win his case because of the nature of the product he was creating; he won based on SCOTUS' finding that the Commission treated his religion with contempt.  The court declined to rule on whether his cake was expression.  I would presume you know this, but leave it unsaid in your comments, hoping it isn't noticed.

The other bakers that the Colorado Commission found in favor of was because the messages those other bakers were asked to put on the cake fall into the same category of speech that is "inherently expressive," as I explained above.  Ironically, though you wrongly classify them as "gay bakers," I know at least one was a straight Christian baker who refused to write anti-gay messages on their cakes. 

In sum, I believe we all should live by the same rules.  I claim no special privileges for gays over straights; I claim no special privileges for my religious views (or lack thereof) over the religious views of others (or lack thereof); I am not inconsistent with how I want the law to apply to others vs. how I want the law applied to me.

If anyone can show how I'm being inconsistent, I invite you to do so.

Edited September 19, 2019 by Daniel2

[smac97]

8 minutes ago, The Nehor said:

I do not equate the persecution of “recant or die” that Moroni was talking about to be at all equivalent to the purported cake message.

I don't "equate" them, either.  Phillips life was not at stake.  But he was being coerced by the State to speak things he did not want to speak.  And you have repeatedly demeaned him as being "petty."  I don't think that's correct.

8 minutes ago, The Nehor said:

With your inflexible stance on this are you arguing that you have shown tolerance for diversity of opinion? I would love to hear how you would justify that.

I disagree with punishing an individual for fighting against compelled speech, regardless of the opinions held by that individual.

I have said nothing advocating for, and in fact I would strongly oppose, any effort to censor viewpoints with which I disagree.

8 minutes ago, The Nehor said:

Public accommodation laws and antidiscrimination statutes were meant to be weaponized.

Apparently not, since the Arizona Supreme Court and the U.S. Supreme Court have both spoken against such misuse.

8 minutes ago, The Nehor said:

They were meant to hurt bigots who were creating underclasses in society by denying minority groups equal access to goods and services.

Sigh.

I invite you to read the decisions under discussion.

8 minutes ago, The Nehor said:

You acknowledge the legal system is for this stuff. I do not deny it. I do think you give undue privilege to “freedom of conscience” over other important principles which is what I said.

Said, but not explained.

Asserted, but not demonstrated.

8 minutes ago, The Nehor said:

I have no problem with this going to court though I think everyone involved could have made wiser choices and avoided it.

Oh, same here.

8 minutes ago, The Nehor said:

A cake is not a flag or an armband (presumably with a swastika) and the cake creator was not required to wear the cake or be associated with its use.

I encourage you to give this matter more study.  I think you need to get more up to speed on how the legal system works.

Nobody is saying that "[a] cake is ... a flag or an armband."  Rather, the courts are addressing the issue of whether flag-burning, and armband-wearing, and cake-decorating, are forms of "symbolic speech" (and, in the Phillips case, religious exercise) that merit the protections of the Free Speech and Free Exercise clauses.

You are free to dismiss discussions about relevant case law, but I encourage you not to.  The principles by which flag-burning and armband-wearing were evaluated for Free Speech purposes are applicable here, but you just keep insisting that they are not.

By way of illustration, here is a summary of a well-known case (well-known to lawyers, anyway):

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.

The 1802 dispute between Messrs. Pierson and Post ended up creating a principle of law that carries huge ramifications pertaining to . . . oil and gas and water rights.  There are literally hundreds of billions of dollars at stake in disputes over such rights.  How is it that an argument over a fox from over 200 years ago has any relevance to legal disputes about such rights in 2019?

Well . . . "{o}n 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."  

In property law, "ferae naturae {a Latin term meaning "nature {wild} animals} residing on unowned real property are not predisposed to one party or another in regards to possession."  The legal question, then, was the legal ownership of the fox.  The ultimate determination was "that to give an individual right in wild animals, the claimant must capture them."

Fast-forward to 1900, and we have a separate case, Ohio Oil Co. V. State of Indiana, 177 U.S. 190 (1900), in which the U.S. Supreme Court "classified oil, gas and water as 'ferae naturae,' the appropriation of which was subject to the same rationale as fish and game 'propter privilegium'" (this last phrase meaning "one of the grounds of a qualified property in wild animals, consisting in the special privilege of hunting, taking and killing them, in a given park or preserve, to the exclusion of other persons").  Here's the key bit:

Quote

Petroleum gas and oil are substances of a peculiar character, and decisions in ordinary cases of mining for coal, and other minerals which have a fixed situs, cannot be applied to contracts concerning them without some qualifications. They belong to the owner of the land, and are a part of it, so long as they are on it or in it, or subject to his control, but when they escape and go into other land, or come under another's control, the title of the former owner is gone. If an adjoining owner drills his own land and taps a deposit of oil or gas, extending under his neighbor's field, so that it comes into his well, it becomes his property.

To sum up:

• 1. Person A wounded a fox and gave chase.
• 2. Person B found the fox, killed it, and took it.
• 3. The fox was wild ("ferae naturae"), and hence was A) able to move from one place to another, and B) not owned by anyone until "captured."
• 4. Person B won because he "captured" the fox.
• 5. Oil and gas, when found in subterranean formations, are analogous to the fox in Pierson in that they are A) able to move from one place to another, and B) not owned by anyone until "captured."
• 6. If two parties both own land located over a common deposit of oil or gas, the first one to "capture" the oil/gas by extracting it wins.  

Back in law school it blew my mind to think that a lawsuit about a fox in New York in 1802 could end up providing the decisive legal principle for oil and gas deposits worth billions, even trillions, of dollars in Texas, the Dakotas, etc.  But there you are.

So if our legal system can analogize from fox to oil/gas (as to "law of capture"), it can also analogize from flag-burning to cake-decorating (as to "symbolic speech").

8 minutes ago, The Nehor said:

And yeah, the Supreme Court has taken up many petty cases. Usually the issues behind those petty disputes are controversial or unsettled but the original dispute can still be petty.

With respect, I disagree.  The legal issues in such cases are seldom "petty."

Thanks,

-Smac

[smac97]

20 minutes ago, Daniel2 said:

There is a difference between inherently expressive speech vs. artistically-creative yet not-inherently expressive speech. 

For the purposes of analyzing government regulation of speech under the First Amendment, you are not correct.  The difference is immaterial.

20 minutes ago, Daniel2 said:

To be clear: I don't believe anyone should have to write words or symbols which the law states are or defines as "inherently expressive."  I also agree that certain images that are considered to be obscene or offensive may fall into that category.  That's why I agree with and support the ruling which found that the t-shirt manufacturer did not have to print gay pride messages on it's t-shirts.

Additionally, I don't believe any business can or should be forced to 'order in' a product that it doesn't already carry in inventory and already sell to the general public.  Therefore, a baker who doesn't carry same-sex couple wedding toppers can't and shouldn't be forced to start carrying them or selling them.  

Sounds like we agree on many of these things.

20 minutes ago, Daniel2 said:

Finally, I believe that any artistic cake/artistic creation/floral arrangement which is offered to members of the general public cannot be refused to anyone on the basis of their religion, race, gender, national origin, disability, sexual orientation, veteran status, etc.  

Generically, yes.  Bespoke, though...

20 minutes ago, Daniel2 said:

Mr. Phillips didn't win his case because of the nature of the product he was creating; he won based on SCOTUS' finding that the Commission treated his religion with contempt.  The court declined to rule on whether his cake was expression.  I would presume you know this, but leave it unsaid in your comments, hoping it isn't noticed.

Actually, I don't think there is much in the way of a dispute that at least some bespoke cake-decorating is "symbolic speech."

Thanks,

-Smac

[stemelbow]

2 hours ago, smac97 said:

Ah.  Well, that's my primary focus.

And I am saying that the division begins when anti-religion zealots weaponize the law to punish Christians for failing to bend the knee and speak things they do not want to speak.

The fact that you resort to name calling to define a group of people speaks quite nicely to my point.  I find this a ridiculous assertion, completely missing the point.  

2 hours ago, smac97 said:

That is not what I am saying.

You are blaming the Christian (who is resisting compelled speech), and apparently absolving the other side (which sued him for his refusal to say things they wanted him to say).

You are so far off what I'm saying, this has gotten silly.  Have fun misrepresenting people.  I've said repeatedly I didn't absolve anyone.  

2 hours ago, smac97 said:

This from the same person complaining about "causing ... division."

🤨

Thanks,

-Smac

Oh brother.  

[The Nehor]

1 hour ago, smac97 said:

I don't "equate" them, either.  Phillips life was not at stake.  But he was being coerced by the State to speak things he did not want to speak.  And you have repeatedly demeaned him as being "petty."  I don't think that's correct.

I disagree with punishing an individual for fighting against compelled speech, regardless of the opinions held by that individual.

I have said nothing advocating for, and in fact I would strongly oppose, any effort to censor viewpoints with which I disagree.

Apparently not, since the Arizona Supreme Court and the U.S. Supreme Court have both spoken against such misuse.

Sigh.

I invite you to read the decisions under discussion.

Said, but not explained.

Asserted, but not demonstrated.

Oh, same here.

I encourage you to give this matter more study.  I think you need to get more up to speed on how the legal system works.

Nobody is saying that "[a] cake is ... a flag or an armband."  Rather, the courts are addressing the issue of whether flag-burning, and armband-wearing, and cake-decorating, are forms of "symbolic speech" (and, in the Phillips case, religious exercise) that merit the protections of the Free Speech and Free Exercise clauses.

You are free to dismiss discussions about relevant case law, but I encourage you not to.  The principles by which flag-burning and armband-wearing were evaluated for Free Speech purposes are applicable here, but you just keep insisting that they are not.

By way of illustration, here is a summary of a well-known case (well-known to lawyers, anyway):

The 1802 dispute between Messrs. Pierson and Post ended up creating a principle of law that carries huge ramifications pertaining to . . . oil and gas and water rights.  There are literally hundreds of billions of dollars at stake in disputes over such rights.  How is it that an argument over a fox from over 200 years ago has any relevance to legal disputes about such rights in 2019?

Well . . . "{o}n 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."  

In property law, "ferae naturae {a Latin term meaning "nature {wild} animals} residing on unowned real property are not predisposed to one party or another in regards to possession."  The legal question, then, was the legal ownership of the fox.  The ultimate determination was "that to give an individual right in wild animals, the claimant must capture them."

Fast-forward to 1900, and we have a separate case, Ohio Oil Co. V. State of Indiana, 177 U.S. 190 (1900), in which the U.S. Supreme Court "classified oil, gas and water as 'ferae naturae,' the appropriation of which was subject to the same rationale as fish and game 'propter privilegium'" (this last phrase meaning "one of the grounds of a qualified property in wild animals, consisting in the special privilege of hunting, taking and killing them, in a given park or preserve, to the exclusion of other persons").  Here's the key bit:

To sum up:

• 1. Person A wounded a fox and gave chase.
• 2. Person B found the fox, killed it, and took it.
• 3. The fox was wild ("ferae naturae"), and hence was A) able to move from one place to another, and B) not owned by anyone until "captured."
• 4. Person B won because he "captured" the fox.
• 5. Oil and gas, when found in subterranean formations, are analogous to the fox in Pierson in that they are A) able to move from one place to another, and B) not owned by anyone until "captured."
• 6. If two parties both own land located over a common deposit of oil or gas, the first one to "capture" the oil/gas by extracting it wins.  

Back in law school it blew my mind to think that a lawsuit about a fox in New York in 1802 could end up providing the decisive legal principle for oil and gas deposits worth billions, even trillions, of dollars in Texas, the Dakotas, etc.  But there you are.

So if our legal system can analogize from fox to oil/gas (as to "law of capture"), it can also analogize from flag-burning to cake-decorating (as to "symbolic speech").

With respect, I disagree.  The legal issues in such cases are seldom "petty."

Thanks,

-Smac

The last line there sums up my frustration. I said the cases themselves were petty even though the issues underlying them are complex or unsettled so I did not disagree. This is why this discussion is so dull. I am constantly called out for positions I do not hold. When I throw up a hypothetical to show a point I am assumed to believe the hypothetical is imminent.

When I share my opinion on the petty nature of the case I get solemn pronouncements about the courts disagreeing with me. When I talk about legal reasoning I get accused of betraying my faith for not agreeing on this issue. There Is no discussion, just categorical pronouncements about how wrong I am to say things I did not say or legal rebuttals to my moral reasoning and moral rebuttals to my legal reasoning. No one is actually talking. I feel like I am talking to someone who is reading my posts through a caricature filter that imputes all the evils of their supposed enemies to anything I say.

My view on this dispute is “a plague on both your houses” but somehow I have been transformed into a partisan opponent supporting the opposition and slandering our poor hero. What is the point of communicating with people whose minds are unable to see views beyond categorizing them as “ally” or “enemy” and whose minds appear to return an “invalid data” error when you try to explain it.

[smac97]

2 minutes ago, The Nehor said:

The last line there sums up my frustration. I said the cases themselves were petty even though the issues underlying them are complex or unsettled so I did not disagree. This is why this discussion is so dull. I am constantly called out for positions I do not hold. When I throw up a hypothetical to show a point I am assumed to believe the hypothetical is imminent.

Mr. Phillips was threatened with fines (and possibly imprisonment?) unless he spoke in a way that violated his sincerely-held religious beliefs. 

You disparage that because the compelled speech would be in the form of a cake.  You call this "petty."

I disagree.  I think compelling speech is wrong.  Using the force of government to do this is wrong.  Doing so to punish religious people is wrong.

2 minutes ago, The Nehor said:

When I share my opinion on the petty nature of the case I get solemn pronouncements about the courts disagreeing with me.

It sure would be nice if you could allow for other people to find these issues to be non-petty.  How 'bout it?

2 minutes ago, The Nehor said:

When I talk about legal reasoning I get accused of betraying my faith for not agreeing on this issue.

I don't recall saying anything like that.  And I'm not even sure what your faith is.

2 minutes ago, The Nehor said:

There Is no discussion, just categorical pronouncements about how wrong I am to say things I did not say or legal rebuttals to my moral reasoning and moral rebuttals to my legal reasoning. No one is actually talking. I feel like I am talking to someone who is reading my posts through a caricature filter that imputes all the evils of their supposed enemies to anything I say.

If anything, I am usually criticized for talking too much.  Not talking enough?  That's a new one.

2 minutes ago, The Nehor said:

My view on this dispute is “a plague on both your houses” but somehow I have been transformed into a partisan opponent supporting the opposition and slandering our poor hero. What is the point of communicating with people whose minds are unable to see views beyond categorizing them as “ally” or “enemy” and whose minds appear to return an “invalid data” error when you try to explain it.

I went to some effort to provide some information in support of my position.  I've said nothing to discourage you from explaining yours.

Thanks,

-Smac

[Calm]

10 minutes ago, smac97 said:

You disparage that because the compelled speech would be in the form of a cake.  You call this "petty

I believe what Nehor meant was he found the refusal to bake and decorate the cake petty as well as the overreaction of the couple.

I also believe Nehor was complaining that others weren’t talking about his actual ideas instead of the misinterpretations of them, not that there was no talking at all.

I have been somewhat frustrated myself on that and have several times considered posting “that’s not what he said”, but figured best for Nehor to explain it himself. 

Edited September 19, 2019 by Calm

[smac97]

1 minute ago, Calm said:

I believe what Nehor meant was he found the refusal to bake and decorate the cake petty and the overreaction of the couple.

"Refusal to bake and decorate the cake" = "Refusal to speak in ways he did not want to speak."

I understood him as disparaging someone who resists government-compelled speech, and the disparagement is based solely on the form of the "speech" (decorating a cake).

I think disparaging Mr. Phillips as being "petty" for this is an unfair characterization.

Thanks,

-Smac