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Article Re: SCOTUS Review of Gay Rights Case (Wedding Websites)


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42 minutes ago, pogi said:

Ok so if a digital clock is a form of speech because someone had to use their expressive talents in intentionally create them, I could say the same thing about an analog clock. 

I think the two are distinguishable, but I think I understand where you are coming from. In some sense, everything that gets created involves exercising some amount of human creativity - at least at some point in the process. 

 

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Is an analog clock a form of speech?

Like the kind you would find at Walmart? No.

 

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Seriously, at what point is something not speech?

There isn't a simple answer to that question. The Supreme Court has interpreted “speech” broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression - including symbolic expression.

Over the years the Court has developed various principles or tests which can be used to help decide whether or not something might be properly considered speech. Several of these have been referenced throughout the discussion. 

 

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Can I refuse an analog clock to be sold to a gay married couple, or a black couple, or a Jewish couple because you don't agree with those types of marriages and if it will hang in their home it is therefore forced speech?

No. 

 

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It says that video games qualify for protection, they are not guaranteed.  I think it depends on the game, as not all games are as described in your quote. 

Video games, as a medium of expression, are presumptively covered by the First Amendment. 

You are welcome to provide an opinion which says differently. 

 

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If it is communicating a message, it is speech.  Is a blank journal a book?

No, but a blank book is a book (see, e.g., here). ;) 

 

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1 hour ago, Vanguard said:

If I made glass/cup coasters and found out someone wanted to buy them for an activity that I objected to, would I be within my rights to deny them?

It depends. Do they want you to print something on the coasters? Cut them into a certain shapes or do something else which might be considered speech? If so, then yes - you could be within your rights to withhold your service.

However, if they just want a stack of pre-made coasters then no - you likely wouldn't be able to deny selling them. 

 

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On 3/3/2022 at 5:16 PM, rongo said:

Yes, they could, if the maker knew they were Mormon. If that happened to me, I wouldn't want it from them, anyway. I would go somewhere else.

I really don't get trying to force people to make something they are against making (for whatever reason). I wouldn't go around trying to entrap people with constant "test cases." I would simply go to someone who wanted my business and didn't disrespect me.

Do you get why Rosa Parks didn't sit in the back of the bus?  Do you get why black students sat at the counter at Woolworths?  

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13 hours ago, Stormin' Mormon said:

I'm not convinced that statutory law takes precedence over constitutional rights. That's kind of the point of a constitutionally enumerated right. 

And that would be consistent with the Court's unanimous decision in Hurley, where public accommodation laws lost out to free speech rights. 

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18 minutes ago, Amulek said:

And that would be consistent with the Court's unanimous decision in Hurley, where public accommodation laws lost out to free speech rights. 

Exactly!  Hurley is another case I was reading up on this week.

Here we have the Irish-American Gay and Bisexual Group of Boston with a message that they would like to convey, analogous to the gay couple in the 303 Creative case who likewise have a message that they would like to convey.

Then you have the South Boston War Veteran's Council, a private organization that uses public resources (the city streets) to facilitate messages through the medium of a parade.  Not exactly analogous to 303 Creative, though close.  303 Creative also facilitates messages using public resources (the free market, the internet, etc.), though the medium is different (websites)

Unlike Wooley and Dale (the other two cases I've mentioned in this thread) Hurley was a unanimous decision.  A unanimous decision from a court that included the Notorious RBG.

I predict a 7-2 decision, with Jackson and Sotomayor dissenting by saying that speech that is for sale can indeed be compelled.  Despite my disagreements with her judicial philosophy, Kagan is one of the sharpest and most principled members of the current court, and I see her joining her more conservative colleagues in the majority opinion.  Thomas might issue a concurring opinion in which he laments that the Court did not go far enough in protecting free speech in this case. 

 

Edited by Stormin' Mormon
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8 hours ago, Stormin' Mormon said:

Exactly!  Hurley is another case I was reading up on this week.

Here we have the Irish-American Gay and Bisexual Group of Boston with a message that they would like to convey, analogous to the gay couple in the 303 Creative case who likewise have a message that they would like to convey.

Then you have the South Boston War Veteran's Council, a private organization that uses public resources (the city streets) to facilitate messages through the medium of a parade.  Not exactly analogous to 303 Creative, though close.  303 Creative also facilitates messages using public resources (the free market, the internet, etc.), though the medium is different (websites).

In light of 303 Creative, I think you will find the following passage from Hurley fairly poignant (emphasis in original) (citations omitted):

"Since all speech inherently involves choices of what to say and what to leave unsaid," one important manifestation of the principle of free speech is that one who chooses to speak may also decide "what not to say." Although the State may at times "prescribe what shall be orthodox in commercial advertising" by requiring the dissemination of "purely factual and uncontroversial information," outside that context it may not compel affirmance of a belief with which the speaker disagrees. Indeed this general rule, that the speaker has the right to tailor the speech, applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid, subject, perhaps, to the permissive law of defamation. Nor is the rule's benefit restricted to the press, being enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers. Its point is simply the point of all speech protection, which is to shield just those choices of content that in someone's eyes are misguided, or even hurtful. 


Speaking only for myself here, but I recognize that when discussing 1A rights in threads like these I don't always do a good enough job of acknowledging that last bit - that individuals' decisions to speak or withhold speech can, indeed, be quite hurtful. 

 

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Unlike Wooley and Dale (the other two cases I've mentioned in this thread) Hurley was a unanimous decision.  A unanimous decision from a court that included the Notorious RBG.

I predict a 7-2 decision, with Jackson and Sotomayor dissenting by saying that speech that is for sale can indeed be compelled.  Despite my disagreements with her judicial philosophy, Kagan is one of the sharpest and most principled members of the current court, and I see her joining her more conservative colleagues in the majority opinion.  Thomas might issue a concurring opinion in which he laments that the Court did not go far enough in protecting free speech in this case.

I'm predicting 9-0, with either Roberts or Kagan writing the majority opinion. I can see Sotomayor (and possibly one more Justice) agreeing with the holding but dissenting in part. And yeah, I agree that Thomas will try and give us his best Scalia impersonation with a scathing concurrence about how the Court wimped out by dodging the Free Exercise question entirely. 

 

Edited by Amulek
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On 3/4/2022 at 6:47 PM, Amulek said:

It depends. Do they want you to print something on the coasters? Cut them into a certain shapes or do something else which might be considered speech? If so, then yes - you could be within your rights to withhold your service.

However, if they just want a stack of pre-made coasters then no - you likely wouldn't be able to deny selling them. 

 

Looks like the thread has gone flat though I thought about it all weekend! Let's say they don't want anything printed on the coasters or cut into certain shapes (or variations on that theme). Questions -

1. How does "cutting them into a certain shape[s]" constitute speech that would make the difference?

2. If I were the manufacturer of said coasters, why aren't my pre-made coasters also expressions of my protected speech?

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1 hour ago, Vanguard said:

Looks like the thread has gone flat though I thought about it all weekend! Let's say they don't want anything printed on the coasters or cut into certain shapes (or variations on that theme). Questions -

1. How does "cutting them into a certain shape[s]" constitute speech that would make the difference?

Say the KKK wanted their coasters cut into swastikas, or the Adult Entertainment Expo wanted a batch of phallic shaped coasters, etc.

In other words, if the shape itself is symbolic then you could be justified in refusing to make it.

 

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2. If I were the manufacturer of said coasters, why aren't my pre-made coasters also expressions of my protected speech?

Back in the 70's the Court developed what we now refer to as the Spence Test as a way to help determine whether or not forms of expressive conduct are truly "expressive" enough to warrant First Amendment protection. Under the Spence test, in order to receive First Amendment protection there must be (1) an intent to convey a particularized message and (2) a reasonable likelihood that it would be understood.

So, if you are talking about generic, pre-made coasters, I believe those would most likely fail both prongs of the Spence test and not qualify for 1A protection.

 

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22 minutes ago, Amulek said:

Say the KKK wanted their coasters cut into swastikas, or the Adult Entertainment Expo wanted a batch of phallic shaped coasters, etc.

In other words, if the shape itself is symbolic then you could be justified in refusing to make it.

 

Back in the 70's the Court developed what we now refer to as the Spence Test as a way to help determine whether or not forms of expressive conduct are truly "expressive" enough to warrant First Amendment protection. Under the Spence test, in order to receive First Amendment protection there must be (1) an intent to convey a particularized message and (2) a reasonable likelihood that it would be understood.

So, if you are talking about generic, pre-made coasters, I believe those would most likely fail both prongs of the Spence test and not qualify for 1A protection.

 

Many thanks. Your responses were helpful. ; ) So then why would the cake maker be required to make a cake with a pink interior/blue exterior? It sounds like the Spence requirements are relevant. Is this where the debate becomes about whether free speech trumps potential discrimination against protected classes?

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On 3/4/2022 at 11:27 PM, california boy said:

Do you get why Rosa Parks didn't sit in the back of the bus?  Do you get why black students sat at the counter at Woolworths?  

For the same reasons Jack Phillips is doing what he is doing:

To fight an unjust law. 

To resist oppressive and unequal treatment by the government. 

To defend his constitutional rights. 

To stand up to bullies and tyrants.

Thanks,

-Smac

Edited by smac97
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3 hours ago, Vanguard said:

Many thanks. Your responses were helpful. ; )

That's kind of you to say.

 

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So then why would the cake maker be required to make a cake with a pink interior/blue exterior?

The argument would be that baker was illegally refusing to make the cake based on the identity of the customer rather than the message being communicated.

 

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It sounds like the Spence requirements are relevant.

They would be. To see how the district court handled the Spence test see here, starting on page 22, paragraph 23.

Note: The state of Colorado originally began this litigation, but Phillips counter sued in federal court claiming (reasonably) that he was still being persecuted for his religious beliefs. The two parties agreed to drop their cases against each other, but the customer who requested the pink/blue cake, Autumn Scardina, has continued to pursue litigation independently (see, e.g., here) and has thus far prevailed. Phillips has since appealed.

 

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Is this where the debate becomes about whether free speech trumps potential discrimination against protected classes?

Potentially, but you only get to that question after you determine that you are dealing with speech in the first place, and the trial court came down on the side of the cake not being symbolic speech.

 

 

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11 hours ago, Amulek said:

The argument would be that baker was illegally refusing to make the cake based on the identity of the customer rather than the message being communicated.

When the message is only determined by the identity of the customer, is that a distinction without a difference? 

 

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28 minutes ago, pogi said:

When the message is only determined by the identity of the customer, is that a distinction without a difference? 

 

Only if all gay people speak the same message, and no other message.  But there's plenty of gay people who don't want to get married, and plenty of non-wedding related messages that gay people wish to speak. 

Just because someone is gay, we cannot assume that they want to speak that particular message.  And just because they want to speak that particular message doesn't necessarily mean that they are gay. 

 

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15 hours ago, smac97 said:

To fight an unjust law. 

Are antidiscrimination laws "unjust"?  It is kind of ironic to juxtapose the unjust treatment of Rosa Parks with Jack Philipps when one is fighting against discrimination, and the other for it. 

15 hours ago, smac97 said:

To resist oppressive and unequal treatment by the government. 

Equal treatment would be nice.  

Compare these two cases:

 Roberts v. United States Jaycees (1984)

 Boy Scouts of America v. Dale (2000)

15 hours ago, smac97 said:

To stand up to bullies and tyrants.

Again, an ironic comparison. 

 

Edited by pogi
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On 3/5/2022 at 9:44 AM, Amulek said:

I'm predicting 9-0

I don't feel as confident as you do with Ginsburg making a powerful argument in the Masterpiece case that "the court should have squarely held that Phillips’ rights to free speech and the free exercise of religion did not allow him to violate Colorado’s anti-discrimination law."

Also considering the decisions of lower courts like when "New Mexico’s highest court rejected the idea that the state was “compelling” speech and ruled that the photography studio violated the state’s Human Rights Act in Elane Photography v. Willock, 309 P.3d 53 (2013)."  How that decision might influence SCOTUS is unknown, but it does show that legal opinion is not as cut and dry as some here would have us believe.  SCOTUS refused to hear that case, allowing that decision to stand. 

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53 minutes ago, pogi said:

Are antidiscrimination laws "unjust"? 

As applied to Jack Phillips?  Certainly.

To the extent they violate the First Amendment?  You bet.

53 minutes ago, pogi said:

It is kind of ironic to juxtapose the unjust treatment of Rosa Parks with Jack Philipps when one is fighting against discrimination, and the other for it. 

It is even more ironic that the people who are invoking Rosa Parks are, practically speaking, endorsing the application of the law in ways that Rosa Parks resisted.

The Montgomery Bus system sought to use unjust laws to punish black people in contravention of their rights.

People like you seek to use an unjust law to punish Jack Phillips in contravention of his rights.

53 minutes ago, pogi said:

Equal treatment would be nice.  

Oh, I totally agree.  Have you read the Masterpiece Cakeshop case?  See here:

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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. 

"{A}t least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages."

Was Jack Phillips given "equal treatment" to these other bakers?  No, he was not.

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At the time, state law also afforded storekeepers some latitude to decline to create specific messages the storekeeper considered offensive. Indeed, while enforcement proceedings against Phillips were ongoing, the Colorado Civil Rights Division itself endorsed this proposition in cases involving other bakers’ creation of cakes, concluding on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. See Jack v. Gateaux, Ltd., Charge No. P20140071X (Mar. 24, 2015); Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X (Mar. 24, 2015); Jack v. Azucar Bakery, Charge No. P20140069X (Mar. 24, 2015).
...
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.

Yeah, not a whole lot of "equal treatment" from the "Civil Rights Division."

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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 Court partly relies on the “disparate consideration of Phillips’ case compared to the cases of [three] other bakers” who “objected to a requested cake on the basis of conscience.” Ante, at 14, 18. In the latter cases, a customer named William Jack sought “cakes with images that conveyed disapproval of same-sex marriage, along with religious text”; the bakers whom he approached refused to make them. Ante, at 15; see post, at 3 (GINSBURG, J., dissenting) (further describing the requested cakes). Those bakers prevailed before the Colorado Civil Rights Division and Commission, while Phillips—who objected for religious reasons to baking a wedding cake for a same-sex couple—did not.

(Emphases added.)

In other words: "Conscience-based objections for me and mine, but not for thee and thine."

"Equal treatment?"  Not for Jack Phillips.

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What makes the state agencies’ consideration yet more disquieting is that a proper basis for distinguishing the cases was available—in fact, was obvious. The Colorado Anti-Discrimination Act (CADA) makes it unlawful for a place of public accommodation to deny “the full and equal enjoyment” of goods and services to individuals based on certain characteristics, including sexual orientation and creed. Colo. Rev. Stat. §24–34–601(2)(a) (2017). The three bakers in the Jack cases did not violate that law. Jack requested them to make a cake (one denigrating gay people and same-sex marriage) that they would not have made for any customer. In refusing that request, the bakers did not single out Jack because of his religion, but instead treated him in the same way they would have treated anyone else—just as CADA requires.

Conscience-based objections and refusals of service for some, but not for others.

"Equal treatment?"  Not for Jack Phillips.

There are several more portions of the decision that address this point.

53 minutes ago, pogi said:

Compare these two cases:

 Roberts v. United States Jaycees (1984)

 Boy Scouts of America v. Dale (2000)

Again, an ironic comparison. 

I think the irony is far more on your side of things.

I want Jack Phillips to receive "equal treatment" as the other bakers in the "Jack cases" did.  Do you?  If yes, then you must condemn the maltreatment of Jack Phililps by the "Civil Rights Division."  If no, then you are advocating for unequal treatment under the law, which would be . . . ironic.

Thanks,

-Smac

Edited by smac97
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1 hour ago, Stormin' Mormon said:

Only if all gay people speak the same message, and no other message.  But there's plenty of gay people who don't want to get married, and plenty of non-wedding related messages that gay people wish to speak. 

Just because someone is gay, we cannot assume that they want to speak that particular message.  And just because they want to speak that particular message doesn't necessarily mean that they are gay. 

But if someone is gay and wants to get married, then discrimination is partly and inseparably based on the identity of the customer.  

The customer is 1) gay, and 2) wants to get married.  

One can either discriminate based on 1, 2, or both.   I think we can safely remove # 2 as a sole deciding factor here, so we are left with discriminating against #1 or both #1 and #2 combined.  Either way, #1 (the identity of the customer) is a deciding factor.    

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On 3/4/2022 at 6:13 PM, pogi said:

Yes.  It is not always as cut and dry as many here make it seem.  Despite what I have heard, the first amendment doesn’t automatically allow for discrimination 

By way of illustration, can you cite one, maybe two, examples in which the First Amendment does not allow for discrimination? 

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51 minutes ago, smac97 said:

As applied to Jack Phillips?  Certainly.

To the extent they violate the First Amendment?  You bet.

It is even more ironic that the people who are invoking Rosa Parks are, practically speaking, endorsing the application of the law in ways that Rosa Parks resisted.

The Montgomery Bus system sought to use unjust laws to punish black people in contravention of their rights.

People like you seek to use an unjust law to punish Jack Phillips in contravention of his rights.

Oh, I totally agree.  Have you read the Masterpiece Cakeshop case?  See here:

"{A}t least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages."

Was Jack Phillips given "equal treatment" to these other bakers?  No, he was not.

Yeah, not a whole lot of "equal treatment" from the "Civil Rights Division."

(Emphases added.)

In other words: "Conscience-based objections for me and mine, but not for thee and thine."

"Equal treatment?"  Not for Jack Phillips.

Conscience-based objections and refusals of service for some, but not for others.

"Equal treatment?"  Not for Jack Phillips.

There are several more portions of the decision that address this point.

I think the irony is far more on your side of things.

I want Jack Phillips to receive "equal treatment" as the other bakers in the "Jack cases" did.  Do you?  If yes, then you must condemn the maltreatment of Jack Phililps by the "Civil Rights Division."  If no, then you are advocating for unequal treatment under the law, which would be . . . ironic.

Thanks,

-Smac

If you are going to ignore the cases I bring up, ok.  I guess we are at a stale mate. 

51 minutes ago, smac97 said:

"{A}t least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages."

In these 3 cases the decision to not bake the cake was incontrovertibly based on what the cake said, and not who the cake was for.  It is impossible to dissect the "who the cake is for" factor in the Masterpiece case.  See my last response to Stormin Mormon. 

I think that to date, the case which most closely resembles this case is Elane Photography v. Willock case where "New Mexico’s highest court rejected the idea that the state was “compelling” speech and ruled that the photography studio violated the state’s Human Rights Act."  SCOTUS refused to hear that case, but it does show legal thought of lower courts (not as cut and dry as you make it seem) and creates legal precedence in that state. 

Edited by pogi
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16 minutes ago, Amulek said:

People have identities - messages don't. 

See:

The customer is 1) gay, and 2) wants to get married.  

One can either discriminate based on 1, 2, or both.   I think we can safely remove # 2 as a sole deciding factor here, so we are left with discriminating against #1 or both #1 and #2 combined.  Either way, #1 (the identity of the customer) is a deciding factor.    

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21 minutes ago, pogi said:

If you are going to ignore the cases I bring up, ok.  I guess we are at a stale mate. 

You'll need to do more than simply provide a link.  What is it about these cases that you feel support your arguments?

21 minutes ago, pogi said:

In these 3 cases the decision to not bake the cake was incontrovertibly based on what the cake said, and not who the cake was for.  It is impossible to dissect the "who the cake is for" factor in the Masterpiece case.  See my last response to Stormin Mormon. 

Special pleading.  Big time.  "It's not discrimination when I do it."

Can you point out where SCOTUS drew this distinction in its Masterpiece Cakeshop?  I'm not seeing it.  Instead, I see this:

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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.

Hmm.

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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.

"Phillips' willingness to sell 'birthday cakes, shower cakes, [and] cookies and brownies, {} to gay and lesbian customers..."

"{T}he Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections..."

Kinda hard to square these with your characterizations above.

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Before the Colorado Court of Appeals, Phillips protested that this disparity in treatment reflected hostility on the part of the Commission toward his beliefs. He argued that the Commission had treated the other bakers’ conscience-based objections as legitimate, but treated his as illegitimate—thus sitting in judgment of his religious beliefs themselves. The Court of Appeals addressed the disparity only in passing and relegated its complete analysis of the issue to a footnote. There, the court stated that “[t]his case is distinguishable from the Colorado Civil Rights Division’s recent findings that [the other bakeries] in Denver did not discriminate against a Christian patron on the basis of his creed” when they refused to create the requested cakes. 370 P. 3d, at 282, n. 8. In those cases, the court continued, there was no impermissible discrimination because “the Division found that the bakeries . . . refuse[d] the patron’s request . . . because of the offensive nature of the requested message.” Ibid.

Again, it's hard to justify "this disparity in treatment."  The Colorado Court of Appeals justified the Three Bakers' refusal based on the "nature of the requested message," but refused to let Jack Phillips interpose a refusal based on the "nature of the requested message."  That seems like unequal treatment.

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A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. See Matal v. Tam, 582 U. S. ___, ___–___ (2017) (opinion of ALITO, J.) (slip op., at 22–23). The Colorado court’s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs. The court’s footnote does not, therefore, answer the baker’s concern that the State’s practice was to disfavor the religious basis of his objection.

For the reasons just described, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

"The Colorado court’s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs."

Yep.

21 minutes ago, pogi said:

I think that to date, the case which most closely resembles this case is Elane Photography v. Willock case where "New Mexico’s highest court rejected the idea that the state was “compelling” speech and ruled that the photography studio violated the state’s Human Rights Act."  SCOTUS refused to hear that case, but it does show legal thought of lower courts (not as cut and dry as you make it seem) and creates legal precedence in that state. 

I think bespoke wedding cakes as expressive/symbolic speech is pretty "cut and dried." 

I further think that Jack Phillips was treated unequally under the law is pretty "cut and dried."

Thanks,

-Smac

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1 hour ago, Scott Lloyd said:

By way of illustration, can you cite one, maybe two, examples in which the First Amendment does not allow for discrimination? 

 

1 hour ago, pogi said:

This pertains to freedom of association which, I suppose, relates in some respect to the First Amendment. What I had in mind, though, is freedom of speech, which, along with freedom of the press and of religion, is what I most often associate with the First Amendment. 

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