Update on Masterpiece Cake Shop Case

[SeekingUnderstanding]

https://www.ericdsnider.com/snide/bake-me-to-church/
 

Always worth a revisit:

”

And now, on top of all that, you ALSO have to take time to meet with potential bakeries to see if they will sanction your union with a cake.

This is a new development in our culture. It used to be that when you went to a wedding, you admired the cake, you ate a slice of it, and that was the extent of your cake-related thoughts. But now evidently it is the trend to ask which bakery furnished the cake, and to construe that business transaction as a seal of approval on the marriage. It has led to conversations such as this:

“This marriage isn’t going to last. They’re too young, and they’ve only known each other a few months.”
“Right? I love them, but this is a mistake. Honestly, I’m surprised they were able to find a bakery that would condone it.”
“Which bakery was it, anyway? If they would grant their blessing to such an obviously misguided marriage, how can I trust them to make cream puffs?”

”

[rodheadlee]

What a waste of resources. Just thinking how many homeless you could feed with all the money spent on lawyers.

[The Nehor]

11 hours ago, rodheadlee said:

What a waste of resources. Just thinking how many homeless you could feed with all the money spent on lawyers.

Let them eat wedding cake!

[Daniel2]

15 hours ago, SeekingUnderstanding said:

https://www.ericdsnider.com/snide/bake-me-to-church/
 

Always worth a revisit:

”

And now, on top of all that, you ALSO have to take time to meet with potential bakeries to see if they will sanction your union with a cake.

This is a new development in our culture. It used to be that when you went to a wedding, you admired the cake, you ate a slice of it, and that was the extent of your cake-related thoughts. But now evidently it is the trend to ask which bakery furnished the cake, and to construe that business transaction as a seal of approval on the marriage. It has led to conversations such as this:

“This marriage isn’t going to last. They’re too young, and they’ve only known each other a few months.”
“Right? I love them, but this is a mistake. Honestly, I’m surprised they were able to find a bakery that would condone it.”
“Which bakery was it, anyway? If they would grant their blessing to such an obviously misguided marriage, how can I trust them to make cream puffs?”

”

Thanks for sharing this, SeekingUnderstanding! I hadn’t seen it before. Eric Snider was working for the Daily Universe and very popular when I was at BYU. I hadn’t realized his sins come out as gay. He makes some great points along with his typical humor. 

[SeekingUnderstanding]

10 minutes ago, Daniel2 said:

Eric Snider was working for the Daily Universe and very popular when I was at BYU.

We may have passed each other. I was there in 1996-7 and then 99-02.

 

Another quote from the article for those not clicking:

Quote

“Did you hear James and Susan split up?”
“No! They’ve only been married a year!”
“Yep. He was having an affair! It had been going on since before the wedding!”
“What?? How did that slip past the bakery?!”

 

Edited June 23, 2021 by SeekingUnderstanding

[Daniel2]

39 minutes ago, SeekingUnderstanding said:

We may have passed each other. I was there in 1996-7 and then 99-02.

 

Another quote from the article for those not clicking:

 

Looks like we overlapped just as you were starting…. I was there 91 to 97, with my mission between 92-94.

Edited June 23, 2021 by Daniel2

[Bob Crockett]

20 hours ago, rodheadlee said:

What a waste of resources. Just thinking how many homeless you could feed with all the money spent on lawyers.

The hallmark of a free society is a functioning legal system.   As stated by the Hoover Institution:  Freedom "is the presence of justice tempered with mercy. It is a rule of law based on fundamental moral truths that are easily understood and fairly and effectively administered."  https://www.hoover.org/research/moral-basis-free-society.  

That necessarily leads to the need to fund a legal system  and pay lawyers to operate in the legal system.  However, in a talk I attended given by Janet Reno, she pointed out that whereas the national defense costs more than 50% of the national budget, the cost of providing a federal legal system is less than one percent of the national budget.  

Classical libertarianism teaches that a properly administered tort law system will make nearly all the wealth adjustments necessary to provide a free society.  So, yes there are the homeless and they are troublesome, but on the other hand a free society guarantees one the right to be homeless.  In a free society, charitable institutions will help feed and house the homeless.  For instance, if one is a member of the church and seeks assistance from a bishop, that person will never be hungry or homeless.  When I was a bishop, I required only (1) that they attend church, and (2) that their requests meet their actual needs.  And when I was the transient bishop in my stake, I worked hand in hand with the Catholics and Lutherans to feed and house the homeless.  The reason charities work is because in a free society, people feel a need to be altruistic.  That altruism disappears with heavy social programs (which largely do not work; "why help; they have welfare or the homeless shelter") and a confiscatory tax structure.

Edited June 23, 2021 by Bob Crockett

[rodheadlee]

3 hours ago, Bob Crockett said:

The hallmark of a free society is a functioning legal system.   As stated by the Hoover Institution:  Freedom "is the presence of justice tempered with mercy. It is a rule of law based on fundamental moral truths that are easily understood and fairly and effectively administered."  https://www.hoover.org/research/moral-basis-free-society.  

That necessarily leads to the need to fund a legal system  and pay lawyers to operate in the legal system.  However, in a talk I attended given by Janet Reno, she pointed out that whereas the national defense costs more than 50% of the national budget, the cost of providing a federal legal system is less than one percent of the national budget.  

Classical libertarianism teaches that a properly administered tort law system will make nearly all the wealth adjustments necessary to provide a free society.  So, yes there are the homeless and they are troublesome, but on the other hand a free society guarantees one the right to be homeless.  In a free society, charitable institutions will help feed and house the homeless.  For instance, if one is a member of the church and seeks assistance from a bishop, that person will never be hungry or homeless.  When I was a bishop, I required only (1) that they attend church, and (2) that their requests meet their actual needs.  And when I was the transient bishop in my stake, I worked hand in hand with the Catholics and Lutherans to feed and house the homeless.  The reason charities work is because in a free society, people feel a need to be altruistic.  That altruism disappears with heavy social programs (which largely do not work; "why help; they have welfare or the homeless shelter") and a confiscatory tax structure.

I was being sarcastic. 

[carbon dioxide]

On 6/22/2021 at 9:10 PM, rodheadlee said:

What a waste of resources. Just thinking how many homeless you could feed with all the money spent on lawyers.

Lawyers need to make a living.

[Bob Crockett]

12 hours ago, rodheadlee said:

I was being sarcastic. 

I don't think so.  But it is worth saying on my part.  The need for a viable legal system is critical to libertarian philosophy.

 

Edited June 24, 2021 by Bob Crockett

[Bob Crockett]

11 hours ago, carbon dioxide said:

Lawyers need to make a living.

No they don't.  But society needs lawyers.  

[Daniel2]

So, after the last several pages, it appears that no one is willing to support the position that Mr. Phillips is likely to prevail on the merits of any right to refuse to bake the cake in this case, whether on religious or free speech grounds.

Not even Smac has submitted his usual cut-and-paste post of bloody/swastika cakes in response, presumably because this case cuts through all the ‘but-what-about…?’ static of that post on the issue. And I can understand why this particular case deftly side-steps Smac’s oft-recycled post.... After all, this was just a generic pink and blue cake with no explicit wording or language which the bakery initially agreed to make in the first place, and the $500 fine isn't as excessicve as some have been in other similar cases.

It seems to me that this case is positioned to really clarify many of the more nuanced arguments we've discussed here over the last several years. I look forward to finding out its ultimate outcome should it make it to SCOTUS, either way...

Edited June 24, 2021 by Daniel2

[Calm]

13 minutes ago, Daniel2 said:

Not even Smac has submitted his usual cut-and-paste post of

Could be a time issue for him, what few posts he’s made this past week were relatively short. 

[T-Shirt]

3 hours ago, Daniel2 said:

After all, this was just a generic pink and blue cake with no explicit wording or language which the bakery initially agreed to make in the first place,

It doesn't matter what is on the cake or how it is decorated.  The owner simply doesn't want something he created to be used to promote something he finds objectional on religious grounds.  As I have said many times before, he is not discriminating against any person or group of people.  It is an event he finds objectionable not the person.  He does not want the event to feature a product he created.

[Daniel2]

3 hours ago, T-Shirt said:

It doesn't matter what is on the cake or how it is decorated.  The owner simply doesn't want something he created to be used to promote something he finds objectional on religious grounds.  As I have said many times before, he is not discriminating against any person or group of people.  It is an event he finds objectionable not the person.  He does not want the event to feature a product he created.

I understand the above is what you believe should be the case, but that isn’t what the law actually is, says, or requires… at least, not thus far.

According to the law, it doesn’t matter if bakers’ personal religious beliefs object to events (i.e. weddings) between atheists, or mixed-Faith marriages, or marriages of people of divergent religious beliefs that contradict theirs their own, or interracial marriages, or intergenerational marriages, or same-sex marriages. Same is true in providing a birthday cake for members of any protected class (i.e. gender, as in this current Masterpeice case). Businesses cannot deny some customers the same goods or services they sell to others for events related to or based on any of those protected classification grounds; that’s illegal discrimination.

Public accommodation laws require private businesses to sell their goods and services to all members of the general public and do not allow them to refuse to offer the same goods and services to some members of the general public based on being a member of a protected class OR for an event specifically related to being a member thereof. Such discrimination is legally prohibited, regardless of the private business owners’ personal beliefs. 

Edited June 24, 2021 by Daniel2

[rodheadlee]

11 hours ago, Bob Crockett said:

I don't think so.  But it is worth saying on my part.  The need for a viable legal system is critical to libertarian philosophy.

 

Yes, thanks for posting that. 

[Bob Crockett]

7 hours ago, Daniel2 said:

I understand the above is what you believe should be the case, but that isn’t what the law actually is, says, or requires… at least, not thus far.

According to the law, it doesn’t matter if bakers’ personal religious beliefs object to events (i.e. weddings) between atheists, or mixed-Faith marriages, or marriages of people of divergent religious beliefs that contradict theirs their own, or interracial marriages, or intergenerational marriages, or same-sex marriages. Same is true in providing a birthday cake for members of any protected class (i.e. gender, as in this current Masterpeice case). Businesses cannot deny some customers the same goods or services they sell to others for events related to or based on any of those protected classification grounds; that’s illegal discrimination.

Public accommodation laws require private businesses to sell their goods and services to all members of the general public and do not allow them to refuse to offer the same goods and services to some members of the general public based on being a member of a protected class OR for an event specifically related to being a member thereof. Such discrimination is legally prohibited, regardless of the private business owners’ personal beliefs. 

I certainly understand public accommodation law.  But it is an affront to a free society and free market. People should not be coerced.  

Edited June 25, 2021 by Bob Crockett

[Amulek]

I've been on vacation for the past week (and still am today), so this will just be a quick drive-by posting so as to not get sucked into a much larger discussion.

This is the same case that was discussed previously here.

The state tried to take this case originally, but Phillips countersued and sought a permanent injunction to prevent the state from enforcing its anti-discrimination laws against him (along with punitive damages).  

Ultimately, the two parties agreed to drop their suits against each other and walk away. However, the agreement allowed Scardina, should she want, to pursue her own civil action against Masterpiece.

That's what is happening now. You can find the district court opinion here.

I haven't had time to go through it thoroughly, nor do I have time now to respond to it at length, but here are my quick initial thoughts:

1. When I read that "The Court specifically finds that Ms. Scardina’s request was a not “set-up” to initiate litigation." I could see how this was going to end. I'm sorry, but Scardina had previously submitted multiple requests to challenge Phillips. This was definitely a set-up.
2. The opinion leans heavily on Arlene's Flowers and Elane Photography, both of which I think were wrongly decided (and both would be better vehicles for the Supreme Court to use to address this issue).
3. I question the Courts application of the Spence test, and I suspect that we'll be seeing more of that on appeal (which ADF is pursuing).

Sorry, I would love to say more, but I've got to run. Have a good weekend everyone.  

 

Edited June 25, 2021 by Amulek

[Daniel2]

15 hours ago, Bob Crockett said:

I certainly understand public accommodation law.  But it is an affront to a free society and free market. People should not be coerced.  

A "free society" doesn't mean individuals can do whatever they want, unencumbered.  Laws are vital to preserve freedoms, order, and citizen's individual human rights and privileges.

If business owners in the USA find public accommodation laws regarding their chosen line of business to be untenable, they remain entirely free to pursue other vocational opportunities, or to continue to pay the required legal penalties, or to relocate to a society that allows them to practice their vocation and continue to discriminate.

In the United States of America, the law absolutely holds that there are more egregious things than merely being "an affront a free market," including discrimination against individuals or groups on the basis of race, color, national origin, religion, sex, age, or disability. 

These are an affront to basic human rights.  People should not be discriminated against because of their beliefs, their race, their national origin, gender, age, or disability.  

Edited June 25, 2021 by Daniel2

[Bob Crockett]

42 minutes ago, Daniel2 said:

A "free society" doesn't mean individuals can do whatever the want, unencumbered.  Laws are vital to preserve freedoms, order, and citizen's individual human rights and privileges.

If business owners in the USA find public accommodation laws regarding their chosen line of business to be untenable, they remain entirely free to pursue other vocational opportunities, or to continue to pay the required legal penalties, or to relocate to a society that allows them to practice their vocation and continue to discriminate.

In the United States of America, the law absolutely holds that there are more egregious things than merely being "an affront a free market," including discrimination against individuals or groups on the basis of race, color, national origin, religion, sex, age, or disability. 

These are an affront to basic human rights.  People should not be discriminated against because of their beliefs, their race, their national origin, gender, age, or disability.  

Well you accurate cite the thinking, from a lay perspective.

But isn't it rather socialistic and confiscatory to tell a doctor, for instance, that he must provide fertility services to a lesbian couple if his religious scruples forbid it?  (California law requires it unless the doctor can refer the matter to a partner.)  

[Calm]

26 minutes ago, Bob Crockett said:

But isn't it rather socialistic and confiscatory to tell a doctor, for instance, that he must provide fertility services to a lesbian couple if his religious scruples forbid it?  (California law requires it unless the doctor can refer the matter to a partner.)  

Is it socialistic and confiscatory in your view to require a doctor to provide blood transfusions for a dying patient if his religious scruples forbid it?

Edited June 25, 2021 by Calm

[Bob Crockett]

2 hours ago, Calm said:

Is it socialistic and confiscatory in your view to require a doctor to provide blood transfusions for a dying patient if his religious scruples forbid it?

Yes, but a Jehovah's Witness would not likely to ever be in the position of administering blood transfusions.   Not analogous to my point by any stretch.  "Is it socialistic and confiscatory to require a doctor to amputate a leg if his religous scruples forbid it?"  "is is socialistic and confiscatory to require a tattoo artist to tattoo somebody if his religious scruples forbid it?"  Not the same.

Edited June 25, 2021 by Bob Crockett

[Daniel2]

On 6/25/2021 at 11:41 AM, Bob Crockett said:

But isn't it rather socialistic and confiscatory to tell a doctor, for instance, that he must provide fertility services to a lesbian couple if his religious scruples forbid it?  (California law requires it unless the doctor can refer the matter to a partner.)  

Nope, it is not socialistic at all.

In fact, it’s entirely and absolutely American.

Just as it would be entirely UN-American to ALLOW a doctor to refuse to provide fertility services to an interracial couple because he religiously objects to interracial marriage. 

Just as it would be entirely UN-American to ALLOW a doctor to refuse to provide fertility services to a Jewish couple because he religiously objects to Judaism.

Just as it would be entirely UN-American to ALLOW a doctor to refuse to provide fertility services to an atheist couple because he religiously objects to atheism.

Just as it would be entirely UN-American to ALLOW a doctor to refuse to provide fertility services to a disabled couple because he religiously objects to disabled couples procreating. 

And yes, it would therefore be entirely UN-American to ALLOW a doctor to refuse to provide fertility services to a lesbian couple because he religiously objects to homosexuality. 

It’s American—not Socialist—to prohibit discrimination based on religion, race, gender, etc.

After all, America is a nation founded on freedom OF belief and on freedom FROM religious oppression and discrimination. 

Edited June 26, 2021 by Daniel2

[smac97]

On 6/24/2021 at 9:28 AM, Daniel2 said:

So, after the last several pages, it appears that no one is willing to support the position that Mr. Phillips is likely to prevail on the merits of any right to refuse to bake the cake in this case, whether on religious or free speech grounds.

Not even Smac has submitted his usual cut-and-paste post of bloody/swastika cakes in response, presumably because this case cuts through all the ‘but-what-about…?’ static of that post on the issue. And I can understand why this particular case deftly side-steps Smac’s oft-recycled post.... After all, this was just a generic pink and blue cake with no explicit wording or language which the bakery initially agreed to make in the first place, and the $500 fine isn't as excessicve as some have been in other similar cases.

It seems to me that this case is positioned to really clarify many of the more nuanced arguments we've discussed here over the last several years. I look forward to finding out its ultimate outcome should it make it to SCOTUS, either way...

On vacation

 

[Kenngo1969]

23 hours ago, smac97 said:

On vacation

 

@smac97

What, you mean you have better things to do than to hang out here 24/7/365, waiting, with 'bated breath, on the edge of your seat, all aquiver, for an appropriate opportunity to offer your next installment of penetrating, incisive, cogent legal analysis relative to current events?!! 

I'm shocked ... shocked, I tell you!!!

I hope you and yours are having a nice vacation.

Edited June 26, 2021 by Kenngo1969