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Update on Masterpiece Cake Shop Case

smac97

By smac97
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smac97 Grand Master

smac97

Posted
Posted (edited)

So we've had a number of discussions about the "Masterpiece Cake Shop" Case and similar cases:

Here's an update on the Masterpiece case:

Quote

Nine years ago, a gay couple went into Masterpiece Cakeshop and asked baker Jack Phillips to craft a cake to celebrate their same-sex wedding. Phillips refused, based on his Christian conviction that marriage is between one man and one woman, but he offered to sell the men anything else in the shop. They reported him to the Colorado Civil Rights Commission, sparking a six-year legal battle up to the Supreme Court. Shortly after the Supreme Court found in favor of Phillips, a transgender lawyer targeted the Christian baker, beginning the battle all over again.

On Thursday, the Denver County district court granted Phillips a partial victory, striking down one of the legal claims the transgender lawyer, Autumn Scardina, brought against him. Yet the court refused to drop Scardina’s other claim in the lawsuit, leading to protracted litigation, once again.

“The decision by the court to dismiss one of the claims against Jack Phillips is the first step towards final justice,” Kristen Waggoner, general counsel at Alliance Defending Freedom (ADF), the firm representing Phillips, said in a statement on Thursday.

“Jack has been threatened with financial ruin simply because he makes decisions about which messages to create and celebrate—decisions that every other artist in Colorado is free to make. Tolerance for different opinions is essential. We look forward to defending Jack—and ultimately prevailing—on the remaining claim,” Waggoner added.

Oi.  "Lawfare" like this can be pretty difficult and stressful.

Quote

According to ADF, Scardina first approached Masterpiece Cakeshop on June 26, 2017, the very day the Supreme Court agreed to hear Phillips’ case. Scardina, a biological male who identifies as a female, requested cake art celebrating his gender transition. The shop declined the request, since creating such a cake would violate Phillips’ religious beliefs about gender.

A few days later, another caller from a number associated with the name “Scardina” asked for a “birthday” cake for Satan, complete with a red and black theme and an image of Satan smoking marijuana. Phillips denied this cake as well.

Way to keep it classy, Scardina.

Quote

On June 4, 2018, the day the Supreme Court issued its decision, someone emailed Phillips claiming to be a “member of the Church of Satan.” The email requested a “three-tiered white cake. Cheesecake frosting. And the topper should be a large figure of Satan, licking a 9” black Dildo [sic]. I would like the dildo to be an actual working model, that can be turned on before we unveil the cake.”

Thoughts?  Should Mr. Phillips be compelled, by force of law and under threat of financial ruin, to make cakes with messages with which he disagrees?  Should he be forced to craft images of Satan smoking marijuana?  Of Satan licking a dildo?

If your answer is "Yes," I would like to hear your reasoning for this.

If your answer is "No," but if you think Phillips should be compelled to create other messages with which he disagrees (such as those referenced in the Masterpiece case), I would like to hear you reasoning for that position.

Quote

Scardina first went to the Colorado Civil Rights Commission, which found probable cause that Phillips had discriminated against the lawyer on the basis of sexual identity. Ultimately, the commission dropped the case, but Scardina himself filed a lawsuit against Phillips.

Scardina alleged that Masterpiece Cakeshop violated the Colorado Consumer Protection Act (CCPA) by engaging in deceptive advertising and that the bakery violated the Colorado Anti-Discrimination Act (CADA) by discriminating against him on the basis of his gender identity.

Scardina claimed that Phillips advertised his willingness to serve LGBT people in his shop, but he intended not to sell birthday cakes to them, in a bait-and-switch.

Yet Denver District Court Judge A. Bruce Jones ruled that Scardina had failed to show that Phillips even advertised this message. The transgender lawyer pointed to numerous press reports about Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), along with photographs of birthday cakes on the Masterpiece Cakeshop website.

Jones noted, however, that “Phillips was speaking on a matter of public concern: his legal case. … These materials are not commercial speech, and thus cannot be classified as advertisements under the CCPA.”

Scardina claimed that “Phillips and his bakery attempted to exploit the news coverage by stating they would sell birthday cakes to LGBT customers.” Jones rightly dismissed this preposterous argument. “If Defendants were engaged in such a stealth advertising campaign, they successfully disguised it within their speech on a matter of public concern,” he wrote.

As for the photographs, they qualify as advertisements but “are not deceptive standing alone.”

Jones ruled that “the Court sees no meaningful distinction between punishing Defendants for their noncommercial speech and punishing them for advertisements as contextualized by Plaintiff via reference to separate noncommercial speech. The First Amendment would not tolerate either circumstance.”

This is a good bit of legal analysis.

Quote

While the judge dismissed Scardina’s CCPA claim, he did not dismiss the CADA claim.

Phillips argued that Masterpiece Cakeshop would not make a cake celebrating a gender transition for anyone, yet Jones noted that the Colorado Court of Appeals dismissed a similar argument in Craig v. Masterpiece Cakeshop (2018).

“Making a pink cake with blue frosting, the design [Scardina] requested, would at most be symbolic speech. As such, the relevant inquiry is whether making Plaintiff’s cake would have been inherently expressive conduct,” Jones argued. “Whether making Plaintiff’s requested cake is inherently expressive, and thus protected speech, depends on whether Defendants would thereby convey their own particularized message, and whether the likelihood is great that a reasonable observer would both understand the message and attribute that message to Defendants.”

The judge ruled that making such a cake would not necessarily “convey a celebratory message about gender transitions likely to be understood by reasonable observers. Further, to the extent the public infers such a message, that message is far more likely to be attributed to Plaintiff, who requested the cake’s simple design.”

While I ultimately believe that compelled speech is a bad thing, particularly when it infringes on religious belief, this analysis makes some fair points.

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So Jack Phillips and his counsel at ADF face yet another court battle, in which they will work to prove that Masterpiece Cakeshop’s cakes are expressive speech and that being forced to bake a cake to celebrate transgender identity would violate Phillips’ free speech and religious freedom rights.

Even though the Supreme Court ruled in favor of Phillips, it did not rule on the central question at issue: whether or not the creation of cakes or other art celebrating same-sex weddings (or other events to which Christians like Phillips would object, such as a gender transition party) constitutes protected speech under the First Amendment.

Yes, SCOTUS kicked the can down the road.

Quote

Laws against discrimination on the basis of sexual orientation and gender identity have enabled LGBT activists to target dissenters like Phillips for prosecution in the service of ideological enforcement.

The same commission that hounded Phillips defended another baker’s right to refuse to create cakes that stated a message with which she disagreed. Worse, the commission compared Phillips’ actions to Nazi apologists, even though Phillips’ own father fought the Nazis and liberated a concentration camp in World War II.

Scardina’s lawsuit only underscores the fact that activists will seek ... to hound Christian artists out of existence.

I am concerned about this.

Thanks,

-Smac

Edited by smac97
3
Scott Lloyd Grand Master

Scott Lloyd

Posted
Posted
2 hours ago, smac97 said:

So we've had a number of discussions about the "Masterpiece Cake Shop" Case and similar cases:

Here's an update on the Masterpiece case:

Oi.  "Lawfare" like this can be pretty difficult and stressful.

Way to keep it classy, Scardina.

Thoughts?  Should Mr. Phillips be compelled, by force of law and under threat of financial ruin, to make cakes with messages with which he disagrees?  Should he be forced to craft images of Satan smoking marijuana?  Of Satan licking a dildo?

If your answer is "Yes," I would like to hear your reasoning for this.

If your answer is "No," but if you think Phillips should be compelled to create other messages with which he disagrees (such as those referenced in the Masterpiece case), I would like to hear you reasoning for that position.

This is a good bit of legal analysis.

While I ultimately believe that compelled speech is a bad thing, particularly when it infringes on religious belief, this analysis makes some fair points.

Yes, SCOTUS kicked the can down the road.

I am concerned about this.

Thanks,

-Smac

The Masterpiece Cake Shop case is one of the earlier instances of the cancel culture endemic that has come to plague our society. I wish Mr. Phillips success, and I hope SCOTUS hands him a resounding victory this time. 

2
Ahab Grand Master

Ahab

Posted
Posted
3 hours ago, smac97 said:

I am concerned about this.

Thanks,

-Smac

I hope the courts will eventually make righteous decisions on situations like this.  The solution is simple and yet so many judges and attorneys seem to lack the courage to do what is right.

Nobody should be compelled to make something for someone else as if someone must make something that person wants.  The question should simply be: Will you make this for me?  And the answer should be up to the person who is asked to make that.

If someone told me they would not make something I wanted I would either find someone else who would or learn how to make it myself.  Anyone who demands that others make something exactly like they want it has a warped sense of entitlement.

2
JustAnAustralian Mentor

JustAnAustralian

Posted
Posted
2 hours ago, Scott Lloyd said:

and I hope SCOTUS hands him a resounding victory this time. 

I'd like them to actually have the guts to set something down about whether people can or can't do it. The longer they come out with opinions saying that there were procedural issues upstream so it doesn't matter, then the longer people are going to be dragged through courts for things like this.

 

1 hour ago, Ahab said:

If someone told me they would not make something I wanted I would either find someone else who would or learn how to make it myself. 

That's pretty much what I figure. This isn't a case where they are the only pharmacist in the area, or the only lawyer in the area.

Surely if their actions are so bad then everyone will go elsewhere are the free market will sort out the issue for them.

2
Scott Lloyd Grand Master

Scott Lloyd

Posted
Posted
44 minutes ago, JustAnAustralian said:

I'd like them to actually have the guts to set something down about whether people can or can't do it. The longer they come out with opinions saying that there were procedural issues upstream so it doesn't matter, then the longer people are going to be dragged through courts for things like this.

 

That's pretty much what I figure. This isn't a case where they are the only pharmacist in the area, or the only lawyer in the area.

Surely if their actions are so bad then everyone will go elsewhere are the free market will sort out the issue for them.

The current SCOTUS seems to be chickening out a lot lately, deciding cases on procedural issues and such. 

Kenngo1969 Grand Master

Kenngo1969

Posted
Posted (edited)

I'll repeat what I've said on similar subjects.  Should a person (or a couple) be denied service in circumstances such as this be allowed to sue?  Sure.  Sue away!  (If I were the business owner, I would say, "Hey, I'll even make things easy for you: I will waive formal service and I will accept a PDF copy of your complaint attached to an email.  Here's my email address, and I'll look forward to reading your complaint.")  Here's the catch: I would require Plaintiffs to show that their efforts to obtain a similar service at a similar price elsewhere were unavailing, and I would limit recovery to the difference between what a refusing business owner would have charged if s/he had accepted the job and what an accepting business owner did charge, along with related expenses such as travel.

No more lawfare.  No more driving people with whom you disagree or whom you don't like out of business.  No more cancelling them.  Free religious exercise means exactly that, in all places and at all times, and it is not confined to within the walls of one's holy place on one's holy day.

Edited by Kenngo1969
1
The Nehor Grand Master

The Nehor

Posted
Posted
7 hours ago, Scott Lloyd said:

The current SCOTUS seems to be chickening out a lot lately, deciding cases on procedural issues and such. 

That is "working as designed". Courts generally refuse to rule on larger issues if the case can be decided on a more established precedent or a procedural point. It is why deliberate test cases are carefully designed.

Surely you do not want more judicial activism. ;) 

3
LoudmouthMormon Veteran

LoudmouthMormon

Posted
Posted (edited)

Ask any artist of any kind, who tries to make money by commissioning their work, and they will have stories about requests they've had to decline.  They have all had to find where they personally draw their lines, and what they simply won't do.

It's an almost universally understood concept in artistic circles.  Even 14 year old girls on Instagram understand it.  Check out what this random kid, one of hundreds of thousands, won't draw:

0bneO0Z.jpg

Edited by LoudmouthMormon
1
CV75 Grand Master

CV75

Posted
Posted
On 3/5/2021 at 11:37 AM, smac97 said:

So we've had a number of discussions about the "Masterpiece Cake Shop" Case and similar cases:

Here's an update on the Masterpiece case:

Oi.  "Lawfare" like this can be pretty difficult and stressful.

Way to keep it classy, Scardina.

Thoughts?  Should Mr. Phillips be compelled, by force of law and under threat of financial ruin, to make cakes with messages with which he disagrees?  Should he be forced to craft images of Satan smoking marijuana?  Of Satan licking a dildo?

If your answer is "Yes," I would like to hear your reasoning for this.

If your answer is "No," but if you think Phillips should be compelled to create other messages with which he disagrees (such as those referenced in the Masterpiece case), I would like to hear you reasoning for that position.

This is a good bit of legal analysis.

While I ultimately believe that compelled speech is a bad thing, particularly when it infringes on religious belief, this analysis makes some fair points.

Yes, SCOTUS kicked the can down the road.

I am concerned about this.

Thanks,

-Smac

There are many forms of art. Self-expression, ritual, supported by a patron, supported by consumers, commercial, etc. The cake seems to be a form of commercial art, in which case the right to free speech and religious expression, the origin of and basis for art, would have special protection over free trade (the commercial aspect), which is more the basis of consumerism and making a living. The expression drives the trade, not vice-versa.

Scott Lloyd Grand Master

Scott Lloyd

Posted
Posted
5 hours ago, LoudmouthMormon said:

Ask any artist of any kind, who tries to make money by commissioning their work, and they will have stories about requests they've had to decline.  They have all had to find where they personally draw their lines, and what they simply won't do.

It's an almost universally understood concept in artistic circles.  Even 14 year old girls on Instagram understand it.  Check out what this random kid, one of hundreds of thousands, won't draw:

0bneO0Z.jpg

She could have benefited from a good proof reader. 
 

But hey, she’s 14. I get it. 

1
Scott Lloyd Grand Master

Scott Lloyd

Posted
Posted
14 hours ago, The Nehor said:

That is "working as designed". Courts generally refuse to rule on larger issues if the case can be decided on a more established precedent or a procedural point. It is why deliberate test cases are carefully designed.

Surely you do not want more judicial activism. ;) 

Heh. Definitely not!

Analytics Grand Master

Analytics

Posted
Posted

It's important to remember that the Masterpiece Cakeshop case was not about somebody who wanted him to bake a cake that contained an artistic expression that the baker didn't want to express. It was about a baker who didn't want want to bake a cake for a wedding that he was personally against. He did not refuse to bake a cake that said, "God is dead!" or "Gay marriage is wonderful!" or whatever. He refused to bake a cake for Charlie Craig and David Mullins that was identical to the cakes he made for his other customers.

1
mrmarklin Experienced

mrmarklin

Posted
Posted
1 hour ago, Analytics said:

It's important to remember that the Masterpiece Cakeshop case was not about somebody who wanted him to bake a cake that contained an artistic expression that the baker didn't want to express. It was about a baker who didn't want want to bake a cake for a wedding that he was personally against. He did not refuse to bake a cake that said, "God is dead!" or "Gay marriage is wonderful!" or whatever. He refused to bake a cake for Charlie Craig and David Mullins that was identical to the cakes he made for his other customers.

Don’t force me to work for you. That’s slavery. 

1
smac97 Grand Master

smac97

Posted
  • Author
Posted
1 hour ago, Analytics said:

It's important to remember that the Masterpiece Cakeshop case was not about somebody who wanted him to bake a cake that contained an artistic expression that the baker didn't want to express. It was about a baker who didn't want want to bake a cake for a wedding that he was personally against.

Well, I'm not sure about that (emphases added):

Quote

A Lakewood man who refused to bake a custom wedding cake for a gay couple was merely invoking his constitutional right of free expression, his attorney told three judges of the Colorado Court of Appeals.
...
Craig and Mullins sued Phillips in 2012 after he refused to fill an order for a cake that included a depiction of a rainbow, a symbol that is supportive of gay marriage.

See also here:

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It all started when Dave Mullins, 28, and Charlie Craig, 31, went into the Masterpiece Cakeshop hoping to get a rainbow-layered cake with teal and red frosting for their wedding reception
...
Phillips informed the couple his business does not create cakes for gay weddings.
...
Phillips said he isn't a homophobe, and that he would gladly serve any other baked good to a gay couple -- just not a wedding cake.

The gay couple repeatedly assert in their brief that they "Phillips did not ask for, and Mullins and Craig did not offer, any details about the design of the cake."  However, contemporary news accounts seem to differ with that:

FoxNews Article (emphasis added):

Quote

Jack Phillips, owner of the Masterpiece Cake Shop in Lakewood, Colo., said he has received more than 1,000 angry messages — critics upset because he would not compromise his personal beliefs and bake a cake for Dave Mullins and Charlie Craig.

The couple, set to be married in Massachusetts in September, told television station KDVR they wanted a rainbow-layered cake with teal and red frosting.

They said the owner immediately informed the men that he does not create cakes for gay weddings.

“It was the most awkward, surreal, very brief encounter,” Mullins, 28, told Denver Westward. “We got up to leave, and to be totally honest, I said, ‘F**k you and your homophobic cake shop.’ And I may or may not have flipped him off.”

But Phillips defended his decision in an interview with television station KCNC in Denver.

“If gays come in and want to order birthday cakes or any cakes for any occasion, graduations, or whatever, I have no prejudice against that whatsoever,” Phillips told the television station. “It’s just the wedding cake, not the people, not their lifestyle.”

July 2012 KDVR Article:

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It all started when Dave Mullins, 28, and Charlie Craig, 31, went into the Masterpiece Cakeshop hoping to get a rainbow-layered cake with teal and red frosting for their wedding reception, which will take place in Denver this October after their wedding in Provincetown, Mass., which is set for September.

July 2012 Westword Article (apparently published one day after the incident):

Quote

Yesterday afternoon, 28-year-old Dave Mullins and 31-year-old Charlie Craig stopped by Lakewood's Masterpiece Cakeshop to order their wedding reception cake -- what they hoped would be a rainbow-layered masterpiece decked out in teal and red frosting (their ceremony colors).  Although they'll be reciting their vows in Provincetown, Massachusetts, in September, the couple plans to celebrate with a reception for friends and family in Denver in October. But after bakery owner Jack Phillips listened to their request, they say, he refused it. His business doesn't create cakes for gay weddings.

July 2012 Advocate Article:

Quote

A cake shop in Denver told a gay couple last week that they are refusing to make them a rainbow-layered wedding cake this fall. 

2013 Chicago Tribune Article (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.

Craig and Mullins apparently didn't have trouble finding another baker to make a cake, one with rainbow-colored filling, for their later out-of-state wedding. It's not as if Phillips prevented them from getting a cake from anywhere in America.

July 2012 Advocate Article (emphasis added):

Quote

A cake shop in Denver told a gay couple last week that they are refusing to make them a rainbow-layered wedding cake this fall. 
...
Mullins and Craig don't seem to be the only same-sex couple to encounter problems with Masterpiece Cakeshop. According to Westword, other previous customers like Yelp user Samantha S., have said the shop does not "participate in making cakes for 'illegal' things, such as a commitment ceremony." A Masterpiece employee did say, however, that they would be willing to make any other kind of celebratory cake for gay customers, as long as it was not for a wedding or commitment ceremony. 

Quote

http://i.dailymail.co.uk/i/pix/2013/06/07/article-2337480-1A3305FD000005DC-871_634x415.jpg

David Mullins, left, and Charlie Craig, right, successfully sued a Colorado bakery after their order for a rainbow wedding cake was turned down by the owner

June 2013 Fox Article:

Quote

The complaint stems from an incident on July 19, 2012, in which Masterpiece owner Jack Phillips declined to create a rainbow layer cake for the couple’s October wedding in Massachusetts, saying his business does not bake cakes for gay weddings.

December 2013 Westword article:

Quote

As our Kelsey Whipple reported, Mullins and Craig stopped by Masterpiece Cakeshop in Lakewood in the hope of ordering a rainbow-layered cake featuring teal-and-red frosting that would match their wedding colors. But according to them, Masterpiece owner Jack Phillips turned them down, saying his business doesn't make cakes for gay weddings.

"It was the most awkward, surreal, very brief encounter," Mullins told Whipple. "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."

December 2013 LifeSiteNews Article:

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.

Nevertheless, the findings of the fact in the original administrative court case appear to favor the gay couple's factual claim, which which included a statement that "{t}he whole conversation between Phillips and Complainants was very brief, with no discussion between the parties about what the cake would look like."

1 hour ago, Analytics said:

He did not refuse to bake a cake that said, "God is dead!" or "Gay marriage is wonderful!" or whatever. He refused to bake a cake for Charlie Craig and David Mullins that was identical to the cakes he made for his other customers.

Are you sure?

Thanks,

-Smac

smac97 Grand Master

smac97

Posted
  • Author
Posted (edited)
32 minutes ago, mrmarklin said:
Quote

It's important to remember that the Masterpiece Cakeshop case was not about somebody who wanted him to bake a cake that contained an artistic expression that the baker didn't want to express. It was about a baker who didn't want want to bake a cake for a wedding that he was personally against. He did not refuse to bake a cake that said, "God is dead!" or "Gay marriage is wonderful!" or whatever. He refused to bake a cake for Charlie Craig and David Mullins that was identical to the cakes he made for his other customers.

Don’t force me to work for you. That’s slavery. 

There must be some middle ground.  Consider, for example, Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), summarized here:

Quote

Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), was a landmark decision of the US Supreme Court holding that the Commerce Clause gave the U.S. Congress power to force private businesses to abide by Title II of the Civil Rights Act of 1964, which prohibits discrimination in public accommodations.[

This important case represented an immediate challenge to the Civil Rights Act of 1964, the landmark piece of civil rights legislation which represented the first comprehensive act by Congress on civil rights and race relations since the Civil Rights Act of 1875. For much of the 100 years preceding 1964, African Americans in the United States had been dominated by racial segregation, a system of racial separation which, while in name providing for "separate but equal" treatment of both white and African Americans, in deed provided inferior accommodation, services, and treatment for African Americans.
...
The Heart of Atlanta Motel was a large, 216-room motel that opened on September 5, 1956 in Atlanta, Georgia. In direct violation of the terms of the Civil Rights Act of 1964, which banned racial discrimination in public places, largely based on Congress's control of interstate commerce, the motel refused to rent rooms to African-American patrons. The owner, Moreton Rolleston, filed suit in federal court, arguing that the requirements of the Act exceeded the authority the Commerce Clause granted to Congress over interstate commerce. Rolleston specifically argued against Title II of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, religion, or national origin in places of public accommodation. Hotels and motels are included as types of public accommodation in the Act, and so are restaurants that serve food substantially to those who participate in interstate travel.
...
The United States District Court for the Northern District of Georgia ruled in favor of the United States and issued a permanent injunction requiring the Heart of Atlanta Motel, Inc. to refrain from using racial discrimination when providing services or goods to guests or the general public on its premises.
...
The opinion of the court, announced on December 14, 1964, was delivered by Justice Tom C. Clark, with concurring opinions by Justice Arthur Goldberg, Justice Hugo Black, and Justice William O. Douglas.

The U.S. Supreme Court held that Congress acted well within its authority under the Commerce Clause in passing the Civil Rights Act of 1964, thereby upholding the act's Title II in question. While it might have been possible for Congress to pursue other methods for abolishing racial discrimination, the way in which Congress did so, according to the Court, was perfectly valid. It found no merit in the arguments pursuant to the Thirteenth Amendment, finding it difficult to conceive that such an amendment might be applicable in restraining civil rights legislation. Having observed that 75% of the Heart of Atlanta Motel's clientele came from out-of-state and that it was strategically located near Interstates 75 and 85 as well as two major Georgia highways, the Court found that the business clearly affected interstate commerce. Accordingly, it upheld the permanent injunction issued by the district court and required the Heart of Atlanta Motel to receive business from the clientele of all ethnicities.

I am in favor of the Civil Rights Act prohibiting discrimination on the basis of race, religion, or national origin in places of public accommodation.

However, there are additional considerations in play.  See, e.g., here:

Quote

What do Adele, The Rolling Stones, Twisted Sister, Steven Tyler, R.E.M., Elton John, Luciano Pavarotti, Queen and George Harrison have in common?

They are all musicians who, either directly or through representatives, have told Donald Trump to stop using their music at his campaign rallies and events.

Quoth Dee Snider: 

Quote

“When Donald started running for office, he asked me, he called me. He says, 'Can I use the song?' And he's a buddy. And I said, 'Yeah. Go ahead.' But as the months went on, I heard a litany of his beliefs that I'd never discussed with him,” Dee Snider told CNN. "I finally called him and I said, 'Man, you've gotta stop using the song. People think I'm endorsing you here. I can't get behind a lot of what you're saying.' And that night. He has not used it since.”

Quoth an attorney for Aerosmith:

Quote

"Lawyers for Aerosmith wrote a cease and cease-and-desist letter to the Trump campaign claiming the Republican 'did not have our client's permission to use Dream On' or any of Tyler's other songs and that it 'gives the false impression that he is connected with or endorses Mr. Trump's presidential bid.'"

Quoth representatives of the Pavarotti estate:

Quote

“As members of his immediate family, we would like to recall that the values of brotherhood and solidarity which Luciano Pavarotti expressed throughout the course of his artistic career are entirely incompatible with the world view offered by the candidate Donald Trump."

Quoth Queen:

Quote

"Queen does not want its music associated with any mainstream or political debate in any country. Nor does Queen want ‘We are the Champions’ to be used as an endorsement of Mr. Trump and the political views of the Republican Party."

Quoth Elton John:

Quote

"I’m British. I’ve met Donald Trump, he was very nice to me, it’s nothing personal, his political views are his own, mine are very different, I’m not a Republican in a million years."

The songs being used by Donald Trump are "exactly the same" as they are when used in other venues, and yet these various artists do not want Donald Trump to use their music in his campaign rallies.  Now why is that?  Well...

  • "People think I'm endorsing you here.  I can't get behind a lot of what you're saying."
  • "[Using Aerosmith songs at Trump rallies] gives the false impression that he is connected with or endorses Mr. Trump's presidential bid."
  • "[Pavarotti's values] are entirely incompatible with the world view offered by the candidate Donald Trump."
  • "Queen does not want [its music] ... to be used as an endorsement of Mr. Trump."
  • "[H]is political views are his own, mine are very different, I’m not a Republican in a million years."

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

More to the point, it's their music.  It's their artistic expression.  It's their speech.  Since when are Americans in Group X in the habit of coercing other Americans in Group Y to speak in ways that contravene the beliefs and values of Group Y?

If Elton John doesn't like the way his artistic expression is to be used in a particular venue, in ways that he feels give the impression of his endorsement, then he should be entitled to refuse permission for such use.  That's not bigotry.  That's Elton John recognizing the reality that the use of his artistic speech at a Trump rally gives the impression that he is endorsing that event.

Likewise, if Mr. Phillips doesn't like the way his artistic expression is to be used in a particular venue, in ways that he feels give the impression of his endorsement, then he should be entitled to refuse permission for such use.  That's not bigotry.  That's Mr. Phillips recognizing the reality that the use of his artistic speech at a gay wedding gives the impression that he is endorsing that event.

The Masterpiece case addresses an important legal and civic issue, namely, an increasing conflict between, on the one hand, the civil rights afforded to gay persons, and, on the other, the use of anti-discrimination and public accommodations laws to compel private citizens and businesses to engage in conduct and speech that contravened their civil rights.

Here's an example:

Quote

Ann Arbor Could Fine Conservatives $500 Per Day for Not Parroting Left-Wing Talking Points

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A law in Ann Arbor could force a Democrat to write speeches for President Donald Trump or a pro-life artist to create a mural for Planned Parenthood.

On Tuesday, Alliance Defending Freedom (ADF) filed a lawsuit on behalf of a conservative political consulting firm, warning that an Ann Arbor non-discrimination law would force that firm to parrot liberal messages and help Democrats get elected. If they refuse, they could get hit with fines of $500 per day. ADF is representing Grant Strobl and Jacob Chludzinski, founders of the company ThinkRight Strategies.

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The Ann Arbor non-discrimination law is extremely broad and open to abuse. The law defines a "place of public accommodation" to include any "business ... whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold or otherwise made available to the public." Any such company is prohibited from discriminating on the basis of political beliefs.

"Ann Arbor's law is quite broad," the ADF lawyer noted. "It even prohibits Grant and Jacob from putting a statement on their website that they will only advance conservative beliefs and from having internal policies saying that."

According to section 9:155, "No person shall adopt, enforce or employ any policy or requirement, publish, post or broadcast any advertisement, sign or notice which discriminates or indicates discrimination in providing housing, employment or public accommodations."

While it might be defensible to prevent a company from posting a sign reading "no blacks allowed" or "no gays allowed" or "no conservatives allowed," this law also prevents ThinkRight Strategies from posting a sign or even an online message reading, "ThinkRight Strategies advocates for conservative causes and will not promote liberal causes."

Worse, section 9:156 even prohibits ThinkRight Strategies from having an internal policy restricting its services to conservative candidates or causes.

"No person shall adopt, enforce or employ any policy or requirement which has the effect of creating unequal opportunities according to ... political beliefs ... for an individual to obtain housing, employment or public accommodation, except for a bona fide business necessity. Such a necessity does not arise due to a mere inconvenience or because of suspected objection to such a person by neighbors, customers or other persons," the law states.

"Regardless of where people stand on the political divide, all of them should be supporting Grant and Jacob in this lawsuit because people should be able to determine for themselves which political causes they promote," Green said. "If Grant and Jacob were to post an explanation on their website of the political beliefs they can and cannot advance or to decline to write a speech for a Democrat’s campaign, they could face fines of up to $500 per day."

I am glad to see such lawsuits being filed.  We need to stop this assault on civil liberties.  By constantly falsely accusing people of good conscience and good character of horrible things, by seeking to punish other people because they have opinions which do not jibe with theirs, by distorting both the form and intent of "public accommodations" laws to go after religious people, the militant gay rights crowd have burned bridges.  Opportunities for mutual understanding and love and cooperation and tolerance are being diminished or destroyed.  

In short, nobody likes a bully.  And sooner a later, the bullying ceases to have its intended effect.

Thanks,

-Smac

Edited by smac97
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Amulek Grand Master

Amulek

Posted
Posted (edited)
4 hours ago, smac97 said:

The gay couple repeatedly assert in their brief that they "Phillips did not ask for, and Mullins and Craig did not offer, any details about the design of the cake."  However, contemporary news accounts seem to differ with that:

This is one of the elements that was frequently misreported. Or, at a minimum, I would say that the reporting was misleadingly confusing.

The couple ultimately obtained a rainbow cake from another bakery, and many news organizations simply assumed (and reported) that this was the cake Phillips refused to make. 

 

Edited by Amulek
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smac97 Grand Master

smac97

Posted
  • Author
Posted
6 minutes ago, Amulek said:
Quote

The gay couple repeatedly assert in their brief that they "Phillips did not ask for, and Mullins and Craig did not offer, any details about the design of the cake."  However, contemporary news accounts seem to differ with that:

This is one of the elements that was frequently misreported. Or, at a minimum, I would say that the reporting was misleadingly confusing.

The couple ultimately obtained a rainbow cake from another bakery, and many new organizations simply assumed (and reported) that this was the cake Phillips refused to make. 

I suspect that the gay couples lawyers recognized that admitting to having discussed "details about the design of the cake" would move the case uncomfortably toward "Free Speech" and "Free Exercise {of Religion}" territory, so they massaged the narrative, even though contemporary news accounts make it pretty clear that the "details and design of the cake" were, in fact, discussed.

Thanks,

-Smac

2
Amulek Grand Master

Amulek

Posted
Posted
1 hour ago, smac97 said:

I suspect that the gay couples lawyers recognized that admitting to having discussed "details about the design of the cake" would move the case uncomfortably toward "Free Speech" and "Free Exercise {of Religion}" territory, so they massaged the narrative, even though contemporary news accounts make it pretty clear that the "details and design of the cake" were, in fact, discussed.

Perhaps. But I don't remember any first hand accounts from Phillips saying they talked about the details / design of the cake either. The couple may very well have wanted a rainbow cake (as that is what they ultimately purchased), but I'm not certain the initial conversation with Phillips ever got that far.

I think the contemporary news accounts stating otherwise are basically a journalism version of the telephone game on that point - where one report interprets or rephrases another report, which was summarized from a previous report, etc.

 

1
smac97 Grand Master

smac97

Posted
  • Author
Posted
49 minutes ago, Amulek said:
Quote

I suspect that the gay couples lawyers recognized that admitting to having discussed "details about the design of the cake" would move the case uncomfortably toward "Free Speech" and "Free Exercise {of Religion}" territory, so they massaged the narrative, even though contemporary news accounts make it pretty clear that the "details and design of the cake" were, in fact, discussed.

Perhaps. But I don't remember any first hand accounts from Phillips saying they talked about the details / design of the cake either. The couple may very well have wanted a rainbow cake (as that is what they ultimately purchased), but I'm not certain the initial conversation with Phillips ever got that far.

I think the contemporary news accounts stating otherwise are basically a journalism version of the telephone game on that point - where one report interprets or rephrases another report, which was summarized from a previous report, etc.

You may have a point.  This 2017 article posits as follows:

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There's a lot of confusion, some of it intentional, over what this case is about. Here are the basic facts. Charlie Craig and David Mullins visited the Masterpiece bakery and looked through a photo album of custom-designed cakes. When the owner, Jack Phillips, greeted them, they told him (according to his own testimony) that they “wanted a wedding cake for ‘our wedding.'” Phillips told them that he did not create wedding cakes for same-sex weddings. They left immediately without discussing any details of their proposed wedding cake. The entire exchange lasted 20 seconds. Craig and Mullins then sued Phillips for violating Colorado's antidiscrimination statute. Phillips claimed that he was protected by freedom of speech and freedom of religion.

To clarify the issues in Masterpiece Cakeshop, it helps to contrast it with a case now pending in the United Kingdom Supreme Court. Ashers Bakery in Belfast, Northern Ireland, refused on religious grounds to make a cake iced with the slogan “Support Gay Marriage in 2014.” It was sued for discrimination. The bakers testified, and the trial court accepted, that they would have supplied the cake if there had been no message and that they would have refused to produce the message even if the customer had been heterosexual. The court nonetheless found that refusing to write words supporting same-sex marriage was itself discrimination based on sexual orientation. The Northern Ireland Court of Appeals thinks you can commit antigay discrimination against a heterosexual customer, by refusing to produce a message supporting same-sex marriage.
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Unlike Northern Ireland, Colorado is not telling Phillips what words he must put on his cake. It is merely telling him that if he sells any products to heterosexual couples, he must sell the same products to same-sex couples. He is free to refuse to write “Support Gay Marriage” on any cakes that he sells, so long as he refuses that to both gay and heterosexual customers.

Much of the argument on behalf of Phillips mischaracterizes the facts to make his case look more like Ashers Bakery. He cites evidence that Craig and Mullins wanted a “rainbow-layered” cake. “Given the rainbow’s status as the preeminent symbol of gay pride, Craig and Mullins’s wedding cake undeniably expressed support for same-sex marriage.”

But Phillips did not know that. He had no idea what they were going to ask for. He refused service before he found out anything about what Craig and Mullins wanted to buy. His arguments are a series of elaborate pirouettes around this inconvenient fact.

I wonder if this is accurate (factually).

On the legal side, I think this sort of gets to the nexus between the antidiscrimination and Free Exercise/Speech considerations.  A generic "wedding cake" with no particular messaging is harder to characterize as "expressive speech" than, say, a rainbow-festooned cake.  So let's hypothesize the following conversation between Phillips and Craig/Mulllins:

  • Craig/Mullins: "We want a wedding cake for our wedding."
  • Phillips: "Okay.  I can do a generic wedding cake."
  • Craig/Mullins: "Actually, we want a rainbow-layered cake with teal and red frosting."
  • Phillips: "Teal and red frosting is fine, but I won't do the 'rainbow-layered' thing.  I have religious beliefs regarding same-sex marriage, and I do not want to create cakes that convey a message I feel is incompatible with my personal and religious beliefs."

How do you think Craig/Mullins would have responded?

Thanks,

-Smac

Analytics Grand Master

Analytics

Posted
Posted
3 hours ago, smac97 said:

Well, I'm not sure about that (emphases added):

See also here:

I didn't know about this. Thanks for the update.

3 hours ago, smac97 said:

The gay couple repeatedly assert in their brief that they "Phillips did not ask for, and Mullins and Craig did not offer, any details about the design of the cake."  However, contemporary news accounts seem to differ with that:

Nevertheless, the findings of the fact in the original administrative court case appear to favor the gay couple's factual claim, which which included a statement that "{t}he whole conversation between Phillips and Complainants was very brief, with no discussion between the parties about what the cake would look like."

If Masterpiece would have said, "I'd be glad to bake you a generic wedding cake but I don't do rainbows," things likely would have turned out differently.

smac97 Grand Master

smac97

Posted
  • Author
Posted
52 minutes ago, Analytics said:

I didn't know about this. Thanks for the update.

If Masterpiece would have said, "I'd be glad to bake you a generic wedding cake but I don't do rainbows," things likely would have turned out differently.

I dunno.  Do you think Craig/Mullins would have said "Oh, okay" and walked out?  Or would they have sued him based on the "I don't do rainbows" thing?

Thanks,

-Smac

2
The Nehor Grand Master

The Nehor

Posted
Posted
On 3/10/2021 at 12:57 PM, smac97 said:

You may have a point.  This 2017 article posits as follows:

I wonder if this is accurate (factually).

On the legal side, I think this sort of gets to the nexus between the antidiscrimination and Free Exercise/Speech considerations.  A generic "wedding cake" with no particular messaging is harder to characterize as "expressive speech" than, say, a rainbow-festooned cake.  So let's hypothesize the following conversation between Phillips and Craig/Mulllins:

  • Craig/Mullins: "We want a wedding cake for our wedding."
  • Phillips: "Okay.  I can do a generic wedding cake."
  • Craig/Mullins: "Actually, we want a rainbow-layered cake with teal and red frosting."
  • Phillips: "Teal and red frosting is fine, but I won't do the 'rainbow-layered' thing.  I have religious beliefs regarding same-sex marriage, and I do not want to create cakes that convey a message I feel is incompatible with my personal and religious beliefs."

How do you think Craig/Mullins would have responded?

Thanks,

-Smac

What if they sued for religious discrimination as the happy couple first met each other in a huge flood and they used the rainbow and its Noah association as a symbol of their relationship because of that event?

Amulek Grand Master

Amulek

Posted
Posted (edited)
On 3/10/2021 at 12:57 PM, smac97 said:

You may have a point.  This 2017 article posits as follows:

I wonder if this is accurate (factually).

As to the initial conversation, I think that is likely what happened (based on everything I've read about the case over the years, including, particularly when it was active) - namely, they only had a brief, 20 second or so conversation and never got around to discussing any sort of details about what was ultimately wanted. 

 

Quote

On the legal side, I think this sort of gets to the nexus between the antidiscrimination and Free Exercise/Speech considerations.  A generic "wedding cake" with no particular messaging is harder to characterize as "expressive speech" than, say, a rainbow-festooned cake.

Apparently, rainbow themed layered cakes are always out - even if you're a straight little girl who just wants all the colors of the rainbow. (link)

Quote

A Littleton mom is slamming the Lakewood bakery at the center of a Supreme Court case, after she said the bakery refused to make her daughter a rainbow-themed birthday cake.

[...]

In February, the woman said she called Masterpiece Cakeshop to order a 17-layer birthday cake with rainbow frosting, only to be told the owner doesn't make rainbow cakes.

"She's not gay, or anything, but she is an artist and she's really good at what she does and she uses every color and she wanted a rainbow birthday cake and he wouldn't do it," the woman said.

Instead, the woman ordered a peach cake after she said the bakery also refused to make her a plain white one.

The bakery owner, Jack Phillips, told Denver7 while they don't have a problem putting rainbows on the outside of a cake, they will not make a rainbow themed layered cake. He then directed further questions to his attorney who had not returned our call by the time of this publishing. 

That being said, I don't know that Phillips actually sells "generic" wedding cakes. And I think that's probably where things start to break down.

I believe he's more than happy to sell any pre-made cake (or any other pre-made pastry/cake/etc. that he sells) to anyone who walks into his store - regardless of who they are or how they intend to use it. 

But when it comes to custom cakes, "If asked to design a cake that celebrates an event or expresses a message in conflict with my faith, I’m obliged as a matter of conscience to decline." (link)

 

Quote

So let's hypothesize the following conversation between Phillips and Craig/Mulllins:

  • Craig/Mullins: "We want a wedding cake for our wedding."
  • Phillips: "Okay.  I can do a generic wedding cake."
  • Craig/Mullins: "Actually, we want a rainbow-layered cake with teal and red frosting."
  • Phillips: "Teal and red frosting is fine, but I won't do the 'rainbow-layered' thing.  I have religious beliefs regarding same-sex marriage, and I do not want to create cakes that convey a message I feel is incompatible with my personal and religious beliefs."

How do you think Craig/Mullins would have responded?

 

Not well. But they would have had a much harder time attempting to litigate - especially if Phillips could demonstrate (as it seems he could) that he doesn't sell rainbow layered cakes to anyone at all.

 

Edited by Amulek
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