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

[pogi]

26 minutes ago, smac97 said:

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

Not sure what you are suggesting here.  Are you saying that there should be nothing to distinguish between discrimination against a message (legal) vs discrimination against a person/identity (illegal)?

28 minutes ago, smac97 said:

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

That addresses a totally different argument having to do with the message being "attributed to the customer, not the baker".   Not my argument.  

34 minutes ago, smac97 said:

Again, it's hard to justify "this disparity in treatment."  

I agree.  The commission screwed up and showed a disparity in treatment.  Which is why the case had nothing to do with free speech vs discrimination.  Their screw up has nothing to do with my argument though. 

36 minutes ago, smac97 said:

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

Justice Ginsburg, at least, seems to disagree.   

Quote

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.

https://www.scotusblog.com/2018/06/symposium-the-first-amendment-protects-speech-and-religion-not-discrimination-in-public-spaces/

New Mexico's Supreme Court would also predictable disagree based on precedence found in the Elane Photography v. Willock case.

Not so cut and dry after all.

 

[pogi]

27 minutes ago, Scott Lloyd 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. 

Well, you asked specifically for "First Amendment".   This will be the first case where SCOTUS officially makes a ruling on the issue of free speech (or compelled speech) vs discrimination.  However, the New Mexico Supreme Court has rejected the idea that the state was “compelling” speech and ruled that the photography studio violated the state’s Human Rights Act in the Elane Photography v. Willock case.  So, yes, there is some legal backing to my argument.  It is not as absurd as some would paint it out to be. 

Edited March 8, 2022 by pogi

[Scott Lloyd]

39 minutes ago, pogi said:

A few more:

https://www.mtsu.edu/first-amendment/article/1515/hishon-v-king-spalding

https://www.mtsu.edu/first-amendment/article/40/new-york-state-club-association-inc-v-city-of-new-york

https://www.mtsu.edu/first-amendment/article/41/roberts-v-united-states-jaycees (already posted this one).

https://www.mtsu.edu/first-amendment/article/1453/equal-employment-opportunity-commission-v-abercrombie-fitch-stores-inc

 

Three of these, one of which is a repetition of the one you had previously cited in response to my post, pertain to freedom of association. The fourth actually upholds the First Amendment in that it favors the woman’s freedom of religion in wearing her headscarf to work. In that instance, I suppose the First Amendment actually complements rather than conflicts with anti-descrimination. 
 

Again, when considering the First Amendment, I am most apt to think of freedom of speech, of the press, of religion, and perhaps, of assembly. 

[Amulek]

1 hour ago, pogi said:

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."

Well, two points on that front:

(1) The Notorious RBG is no longer on the Court, and the only Justice who agreed with her in Masterpiece was Sotomayor. I suppose it's possible that she might try to go it alone with a full blown dissent in this case, but I doubt it - as she's arguably the weakest intellectual on the Court. I'm guessing we get a concurrence with the holding and maybe dissenting in part. 

(2) The 303 Creative case is markedly different from Masterpiece. In Masterpiece we were dealing with a good or service (i.e., decorating custom wedding cakes) that arguably doesn't even involve speech. That made it an especially poor candidate for the Court to take on. 303 Creative is much more straightforward and looks to be Hurley 2.0.

 

Quote

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. 

I think Elane Photography was pretty clearly wrongly decided (see, here for the amicus brief outlining the same). And denying cert doesn't necessarily mean that the Court agrees with the lower court's decision. SCOTUS has a history of waiting a bit and seeing how things shake out before intervening. I think cases like Elane Photography and Arlene's Flowers have shown that lower courts are willing to push public accommodation laws ahead of Constitutionally protected free speech rights, and 303 Creative presents an ideal test case to remedy that behavior.

 

[smac97]

1 minute ago, Scott Lloyd 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. 

The "Freedom of Association" referenced in the Jaycees case is derivatively found under the "Free Speech" clause of the First Amendment:

Quote

While the United States Constitution's First Amendment identifies the rights to assemble and to petition the government, the text of the First Amendment does not make specific mention of a right to association. Nevertheless, the United States Supreme Court held in NAACP v. Alabama (1958) that freedom of association is an essential part of freedom of speech because, in many cases, people can engage in effective speech only when they join with others.^[6] Other Supreme Court cases involving freedom of association issues include:^[7]

• Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964)
• United Mine Workers v. Illinois State Bar Association, 389 U.S. 217 (1967)
• Healey v. James, 408 U.S. 169 (1972)
• NAACP v. Claiborne Hardware Co., 458 U.S. 898 (1982)
• Boy Scouts of America v. Dale, 530 U.S. 640 (2000)
• Janus v. AFSCME, No. 16-1466, 585 U.S. ___ (2018)

The Jaycees case held that

A) The Free Speech clause under the First Amendment generally protects the right to associate in an expressive context, because many of the individual First Amendment rights lose their meaning if they cannot be expressed by a group.

B) However, the Jaycees' right to Free Speech could nevertheless be curtailed/constrained by a sex-discrimination law because the restriction

• served compelling state interests,
• did not relate to the suppression of ideas, and
• cannot be achieved through means significantly less restrictive of associational freedoms.

I would like to see Pogi explain how the law at issue in the Jack Phillips case "did not relate to the suppression of ideas."  Jack Phillips sure seems to have felt that his ideas about same-sex marriage were being suppressed, given that he was being compelled by law to say things about SSM that he did not want to say.

I would like to see Pogi explain how Jack Phillips' ideas about same-sex marriage were not "supressed" by compelling him, by force of law, to speak things about it he did not want to speak.

Thanks,

-Smac

[Amulek]

6 minutes ago, pogi said:

This will be the first case where SCOTUS officially makes a ruling on the issue of free speech (or compelled speech) vs discrimination.

Nope.

 

[pogi]

17 minutes ago, Scott Lloyd said:

Three of these, one of which is a repetition of the one you had previously cited in response to my post, pertain to freedom of association.

I noted the repetition.  You are being redundant.  

Quote

The Supreme Court has long held that the First Amendment's protection of free speech, assembly, and petition logically extends to include a “freedom of association." 

https://constitution.findlaw.com/amendment1/first-amendment-freedom-of-association.html#:~:text=The Supreme Court has long,%2C religious%2C or cultural beliefs.

18 minutes ago, Scott Lloyd said:

The fourth actually upholds the First Amendment in that it favors the woman’s freedom of religion in wearing her headscarf to work. In that instance, I suppose the First Amendment actually complements rather than conflicts with anti-descrimination. 

The ruling was based on a violation of Title VII of the Civil Rights Act vs the free speech ("look policy" which prohibited "caps") of the employer.  It was not based on a free speech argument from the employees perspective.  It was a clear case of Title VII vs free speech in which Title VII won. 

26 minutes ago, Scott Lloyd said:

Again, when considering the First Amendment, I am most apt to think of freedom of speech, of the press, of religion, and perhaps, of assembly. 

See above. 

[pogi]

31 minutes ago, Amulek said:

Nope.

 

Good point.  I think this one also applies:

https://www.mtsu.edu/first-amendment/article/1453/equal-employment-opportunity-commission-v-abercrombie-fitch-stores-inc

[Scott Lloyd]

18 minutes ago, pogi said:

I noted the repetition.  You are being redundant.  

The ruling was based on a violation of Title VII of the Civil Rights Act vs the free speech ("look policy" which prohibited "caps") of the employer.  It was not based on a free speech argument from the employees perspective.  It was a clear case of Title VII vs free speech in which Title VII won. 

See above. 

I’m being no more redundant than you were when you repeated your first example under the preamble “A few more”. 
 

Regardless of what the ruling was based on, it had the effect of upholding the woman’s religious liberty in wearing head garb that was in conformity with her religious faith. Do you not accept that in some instances religious liberty and anti-discrimination can be complementary? 
 

I accept (especially after reading Smac’s explanation) that freedom of association derives from freedom of speech, but it’s not the first thing that comes to mind when I think of freedom of speech. 

Edited March 8, 2022 by Scott Lloyd

[pogi]

38 minutes ago, Amulek said:

I think Elane Photography was pretty clearly wrongly decided (see, here for the amicus brief outlining the same).

Thanks for your opinion.  I happen to stand in good company though.  Ultimately, that is all this boils down to in the end...opinion based on personal interpretation of law. 

 

 

 

[Scott Lloyd]

9 minutes ago, pogi said:

Thanks for your opinion.  I happen to stand in good company though.  Ultimately, that is all this boils down to in the end...opinion based on personal interpretation of law. 

 

 

 

Just curious as to whether you plan to address Smac’s challenge above:

“I would like to see Pogi explain how the law at issue in the Jack Phillips case "did not relate to the suppression of ideas."  Jack Phillips sure seems to have felt that his ideas about same-sex marriage were being suppressed, given that he was being compelled by law to say things about SSM that he did not want to say.

“I would like to see Pogi explain how Jack Phillips' ideas about same-sex marriage were not "supressed" by compelling him, by force of law, to speak things about it he did not want to speak.”

Edited March 8, 2022 by Scott Lloyd

[pogi]

20 minutes ago, Scott Lloyd said:

Regardless of what the ruling was based on, it had the effect of upholding the woman’s religious liberty in wearing head garb that was in conformity with her religious faith. 

Regardless of the effect, that is not what the intellectual argument of the court.   It was a discrimination vs free speech argument.  Discrimination won out. 

26 minutes ago, Scott Lloyd said:

Do you not accept that in some instances religious liberty and anti-discrimination can be complementary? 

Absolutely they can be complementary.  But religion, or gender , or race, etc. should all be treated equally under Title VII.  This was a case of Title VII vs the First Amendment.  Title VII won. 

 

[Scott Lloyd]

8 minutes ago, pogi said:

Regardless of the effect, that is not what the intellectual argument of the court.   It was a discrimination vs free speech argument.  Discrimination won out. 

Absolutely they can be complementary.  But religion, or gender , or race, etc. should all be treated equally under Title VII.  This was a case of Title VII vs the First Amendment.  Title VII won. 

 

Are you saying that in each and every instance Title VII trumps the First Amendment? I thought the Constitution had supremacy over statutes. 

[pogi]

21 minutes ago, Scott Lloyd said:

I would like to see Pogi explain how the law at issue in the Jack Phillips case "did not relate to the suppression of ideas."  Jack Phillips sure seems to have felt that his ideas about same-sex marriage were being suppressed, given that he was being compelled by law to say things about SSM that he did not want to say.

I would like to see Pogi explain how Jack Phillips' ideas about same-sex marriage were not "supressed" by compelling him, by force of law, to speak things about it he did not want to speak.

I Jack Philipps had every right to say what he thought about their marriage (no suppression whatsoever).  Selling them a cake has no intrinsic message of approval connected with it.   Where no message was communicated by the customer, the artist/creator/baker gets to decide the meaning of the cake. 

Fact - the cake was for a gay wedding.

Not a fact - the cake represents the bakers views of the gay wedding.  No suppression here. 

[Scott Lloyd]

2 minutes ago, pogi said:

I Jack Philipps had every right to say what he thought about their marriage (no suppression whatsoever).  Selling them a cake has no intrinsic message of approval connected with it.   Where no message was communicated by the customer, the artist/creator/baker gets to decide the meaning of the cake. 

Fact - the cake was for a gay wedding.

Not a fact - the cake represents the bakers views of the gay wedding.  No suppression here. 

For the sake of clarity it would help if you would attribute Smac’s words to Smac, not to me. 

[Stormin' Mormon]

21 minutes ago, pogi said:

Where no message was communicated by the customer, the artist/creator/baker gets to decide the meaning of the cake. 

Fact - the cake was for a gay wedding.

Not a fact - the cake represents the bakers views of the gay wedding.  No suppression here. 

I'm not following your logic here.  The bolded highlights above seem to contradict each other.  

On the one hand, you declare that the baker gets to decide the meaning of the cake.  But then when Jack Phillips decides the meaning of the cake, you say that the meaning he has assigned to it doesn't actually represent what he, the baker, thinks it represents.

I'm not trying to deploy one of those coy, "so what you're trying to say.." arguments.  I'm honestly not following the logic of your argument and would respectfully ask for clarification.

[Amulek]

17 hours ago, pogi said:

Thanks for your opinion.  I happen to stand in good company though.  

Not with respect to 303 Creative. Seriously, how many First Amendment scholars can you find who think the lower court's decision was right as a matter of law?

Because I can find a quite a few who think differently, including but not limited to: first amendment ninja Eugene Volokh and Dale Carpenter (note: Dale happens to specialize in LGBT rights as well); Richard Epstein et al.; and others.

 

Quote

Ultimately, that is all this boils down to in the end...opinion based on personal interpretation of law. 

Well, and precedent - that's kind of important too.

 

Edited March 9, 2022 by Amulek

[Stormin' Mormon]

12 hours ago, Amulek said:

Because I can find a quite a few who think differently, including but not limited to: first amendment ninja Eugene Volokh and Dale Carpenter ...

 

The Volokh and Carpenter amicus brief you linked to does an excellent job of distinguishing between Hurley and Roberts (one of the cases that Pogi linked to earlier).
 

Quote

 

A few variations in the facts, however, demanded opposite conclusions. The Jaycees excluded women altogether from full membership regardless of what they did or said, while gay men, lesbians, and bisexuals were allowed to participate as individuals in the parade; what the Boston Council barred them from was marching behind a banner identifying their group as such. The Court thus found no basis to believe that admitting women as full members would impede the Jaycees’ own message or coerce them to display someone else’s message, but determined that forcing the Council to permit GLIB to march and carry a banner would affect its ability to control its own expression of “traditional religious and social values.” The Council’s parade was expressive and GLIB’s participation in the parade would have been expressive; giving women “full membership” in a group in which they were already participating was simply not expressive. 

Those distinctions made all the difference: the application of antidiscrimination laws in Roberts was consistent with the First Amendment; their application in Hurley was not.

 

 

[pogi]

19 hours ago, Stormin' Mormon said:

I'm not following your logic here.  The bolded highlights above seem to contradict each other.  

On the one hand, you declare that the baker gets to decide the meaning of the cake.  But then when Jack Phillips decides the meaning of the cake, you say that the meaning he has assigned to it doesn't actually represent what he, the baker, thinks it represents.

I'm not trying to deploy one of those coy, "so what you're trying to say.." arguments.  I'm honestly not following the logic of your argument and would respectfully ask for clarification.

I can see why that looks confusing.  Let me clarify.

1) Where no message was communicated by the customer, the artist/creator/baker gets to decide the meaning of the cake.  

2) Not a fact - the cake represents the bakers views of the gay wedding. 

I would suggest that a wedding cake does not necessarily represent the baker's approval or disapproval of any wedding or of his customers life choices (hetero or gay).  I don't think the baker would for a second agree that his cakes represent his personal views of his customers life choices in almost all cases.  I would guess that for most bakers it is viewed as a business transaction and not as a statement of approval/disapproval in almost all transactions.   

No cake can be said to represent a message of personal approval/disapproval by the baker of any individual's life choice - unless that is the bakers claimed intent.  In which case, #1 comes into play. 

 

Edited March 9, 2022 by pogi

[Stormin' Mormon]

27 minutes ago, pogi said:

  I would guess that for most bakers it is viewed as a business transaction and not as a statement of approval/disapproval in almost all transactions.   

 

I agree with this statement.  Most bakers probably feel exactly this way.  Maybe even most bakers who specialize in bespoke creations.  But there are (apparently) a significant (or at lest vocal) minority of bakers who view themselves as artists and view their bespoke creations as a unique works of art, reflecting not only their client's message, but their own passion and dedication and creativity. 

For such bakers, I don't think the government can compel them to NOT believe that their unique creations have a message, to mandate that they NOT speak through their art work.  That strikes at the very heart of First Amendment protections. 

[pogi]

20 hours ago, Scott Lloyd said:

Are you saying that in each and every instance Title VII trumps the First Amendment?

There are clearly limits to the first amendment, so I wouldn't say it is not a matter of "trumping" the first amendment, it is a matter of the first amendment not applying in certain situations.  Those situations are being worked out in the courts.  It appears that there is not much consistency.

20 hours ago, Scott Lloyd said:

I thought the Constitution had supremacy over statutes. 

I think it does.  But you are assuming a certain interpretation of the constitution here.  The courts do not always agree with your interpretation in some Title VII cases. 

[pogi]

31 minutes ago, Stormin' Mormon said:

But there are (apparently) a significant (or at lest vocal) minority of bakers who view themselves as artists and view their bespoke creations as a unique works of art, reflecting not only their client's message, but their own passion and dedication and creativity. 

What if there is no message communicated by the client?  Doesn't the artist get to decide the meaning of his/her creation?  "Passion and dedication and creativity" are not messages, but if the artist is using those elements to create a message, that message gets to be decided by the artist where no message is communicated to them by the client.  Where no message is communicated by the client there is no forced message on them.

35 minutes ago, Stormin' Mormon said:

For such bakers, I don't think the government can compel them to NOT believe that their unique creations have a message, to mandate that they NOT speak through their art work.  That strikes at the very heart of First Amendment protections. 

Who gets to decide that message? The artist.  No one is forcing a message on him/her. 

I would also argue that unless the artist views EVERY bespoke cake for EVERY client as a personal stamp of approval of their customers personal life choices in marriage, then it can't be said that their bespoke cakes have an unavoidable inherent message that the baker must believe he/she is speaking.  If he views bespoke wedding cakes as one way for straight couples (no message of personal approval) but another way for gay people (message of personal approval), then his argument that the message is unavoidable and that he can't not believe it is not compelling.  

 

[Stormin' Mormon]

12 minutes ago, pogi said:

 Where no message is communicated by the client there is no forced message on them.

Who gets to decide that message? The artist.  No one is forcing a message on him/her.

 

But the baker believes that there is a message, and does not wish to convey that message.  If the baker (as artist) gets to decide the message, then it appears he has already done so and therefore cannot be further compelled to convey it.  The government cannot compel a person to believe there is no message, and then to convey that message-less message.  I am trying to approach your point fairly, but I just cannot square this circle.

18 minutes ago, pogi said:

I would also argue that unless the artist views EVERY bespoke cake for EVERY client as a personal stamp of approval of their customers personal life choices in marriage, then it can't be said that their bespoke cakes have an unavoidable inherent message that the baker must believe he/she is speaking. 

 

I'm not sure that a baker needs to approve of every cake's message in order to retain the right to disapprove of some cakes' messages. 

20 minutes ago, pogi said:

  If he views bespoke wedding cakes as one way for straight couples (no message of personal approval) but another way for gay people (message of personal approval), then his argument that the message is unavoidable and that he can't not believe it is not compelling.  

 

I think this begs the question.  The very heart of this free speech controversy is that some people believe there are very real differences between a same-sex wedding and an opposite-sex wedding and those people want to be free to say so.  You can't base your argument on the assumption that those differences don't actually exist, and then conclude that because there's no difference between the two, there's no compelled speech.  

[pogi]

52 minutes ago, Stormin' Mormon said:

But the baker believes that there is a message

But if I can demonstrate that this is not about any message associated with bespoke wedding cakes, but about the identity of the client...

Again, he has demonstrated with other bespoke wedding cakes that they are not viewed as personal messages of approval by the baker.   It is a clear pretext for discrimination.  Not compelling whatsoever. No one is forcing anything on him. 

52 minutes ago, Stormin' Mormon said:

The government cannot compel a person to believe there is no message, and then to convey that message-less message. 

But if the government can demonstrate that a person does not believe that bespoke wedding cakes carry any message of approval for marriages, then it becomes about discrimination. 

52 minutes ago, Stormin' Mormon said:

I'm not sure that a baker needs to approve of every cake's message in order to retain the right to disapprove of some cakes' messages. 

 I think if one can demonstrate that the baker never views bespoke wedding cakes as carrying any message of approval in all contexts except when the client is gay and getting married, then it demonstrates that this is all just a mere pretext for discrimination in this case and has nothing to do with what the baker really believes about the messages of bespoke wedding cakes. 

52 minutes ago, Stormin' Mormon said:

The very heart of this free speech controversy is that some people believe there are very real differences between a same-sex wedding and an opposite-sex wedding and those people want to be free to say so.  

No one has demonstrably compelled him to say or believe otherwise.

52 minutes ago, Stormin' Mormon said:

You can't base your argument on the assumption that those differences don't actually exist, and then conclude that because there's no difference between the two, there's no compelled speech.  

That is not my argument. 

Edited March 9, 2022 by pogi

[Stormin' Mormon]

@pogiI think at this point, we're just bound to hash and rehash everything we've already said.  As my mama always says: "A man convinced against his will is of his own opinion still."

I'm convinced that current First Amendment law and precedent is squarely on the side of 303 Creative.  I think the precedents in Wooley, Hurley, Janus, and others will be upheld in the 303 Creative case when the Court takes up the issue in the fall. I'm confident enough to predict a 7-2 decision in favor of 303.    

But there is much more ambiguity about those precedents when they are applied to bakers and cakes.  Both of us have strong opinions about how those precedents SHOULD be applied in those more uncertain circumstances.  I've said what I said about those issue, you've responded and I've responded to your responses.  I don't see how this conversation progresses past a continued repeat of everything we've already said before.   

So, I thank you for a respectful dialogue, and commend you for engaging on the issues in a logical and level-headed manner and take my leave. 

Edited March 9, 2022 by Stormin' Mormon