Update on the "Cake Wars" - Re: Free Speech, Free Exercise, and Nondiscrimination Statutes

[Danzo]

59 minutes ago, Daniel2 said:

Indeed. This case, like many cases on both sides of the issue, are custom-engineered to both craft and challenge legal precedent (see here for one just so from the conservative side)

Mr. Phillips and his company certainly aren’t hurting for money, full financial and legal backing, business, or famous accolades/notoriety (depending on one’s viewpoint). 😉 

one thing I like about this case (as opposed to the case in Oregon) is that Colorado is only going after 500.00.  Which makes sense. If you want to change behavior a little prick is much better than hitting someone with a sledge hammer.

Personally I think the courts should only be getting involved where the stakes are a bit higher.  Otherwise it starts looking pretty petty.

[bluebell]

1 hour ago, Daniel2 said:

Agreed. I think this is a clear cut case of a custom-colored cake NOT being speech. Regardless of what a cake symbolizes to the recipient, if a baker is willing to make the exact same custom cake for someone else, I think it’s clear they can’t refuse service to another customer based on the meaning behind the occasion being celebrated.

A baker who’s happy to bake a custom white cake with white frosting to celebrate a Catholic’s first communion (or any other occasion) could not refuse to sell the very same custom white cake with white frosting to celebrate a Latter-day Saint’s baptism without violating public accommodation laws—and rightly so, IMO.

I'm not disagreeing but I don't know if I agree either.  I'm trying to decide how I feel about it.  Pondering what you said, I've asked myself, if a Black person was willing to make a white cake for a baptism, should they still be forced to make the exact same white cake if they learn it's for a KKK rally?

I'm asking myself, is the purpose of the cake relevant in these kinds of discussions?

I'm honestly not sure where I draw the line.

[Buckeye]

21 hours ago, bsjkki said:

Actually not. He would bake a birthday cake for a trans person. 

He will make a blue/pink cake for customer A but not for customer B. That’s discrimination based on the customer. 

[Kenngo1969]

On 12/15/2022 at 5:24 PM, smac97 said:

... Sue 'em, teach 'em a lesson without inflicting ruinous protracted litigation on 'em, then carry on with life.

Thanks,

-Smac

That's how I have proposed that the "Cake Conundrum" (and similar controversies) be resolved.  Does a gay couple wish to sue a cake baker for the baker's refusal to bake them a cake to celebrate their union?  Fine.  Sue away.  But the gay couple's recovery should be limited to the difference between what the declining cake baker would have charged if he or she had accepted the job and what the accepting cake baker did charge for accepting the job, along with related expenses such as travel.  No more lawfare.  No more driving people out of business just because disgruntled non-customers don't agree with them.  And so on.

[bsjkki]

13 minutes ago, Buckeye said:

He will make a blue/pink cake for customer A but not for customer B. That’s discrimination based on the customer. 

No. He will make a blue and pink birthday cake but not a blue and pink gender transition cake. 

[Benjamin McGuire]

Let's face it - the court has yet to make a real determination about the speech issue (and because of the issues described here about the discrimination as low hanging fruit, they may avoid it in this case too). Whose speech is represented by the cake? Is it the cake maker's speech or is it the buyer? Is making a custom cake more like work-for-hire than original art? If I get a graduation cake made for my kid, and I bring a photo with me that they copy on to the cake in edible ink, is this suddenly their speech? I think that we need to have the really difficult questions answered, and I am not sure that the court is ready to answer them yet.

In other words, if I buy a wedding cake, the cake maker isn't able to demand how I present it, how it is cut, how it is served. It isn't their message. I am not paying them for the right to provide their message to my friends and family. And because it isn't their message, it is hard to imagine that it can be labeled as compelled speech (which, at least historically, has to be seen by the courts as a public expression - an element that seems to be absent here).

[Buckeye]

29 minutes ago, bsjkki said:

No. He will make a blue and pink birthday cake but not a blue and pink gender transition cake. 

It’s the exact same cake. So it’s a commodity, not speech. He can’t discriminate based on what it means to the customer. 
 

The key is that blue/pink doesn’t mean “transition” to this cake maker. That is proven by the fact that he was originally willing to make the cake. It was only when he learned that it had a different meaning to the customer that he refused to make it. That shows the “speech” was not his (the cake maker) but the customer’s. 

Edited January 28 by Buckeye

[Benjamin McGuire]

20 minutes ago, Kenngo1969 said:

That's how I have proposed that the "Cake Conundrum" (and similar controversies) be resolved.  Does a gay couple wish to sue a cake baker for the baker's refusal to bake them a cake to celebrate their union?  Fine.  Sue away.  But the gay couple's recovery should be limited to the difference between what the declining cake baker would have charged if he or she had accepted the job and what the accepting cake baker did charge for accepting the job, along with related expenses such as travel.  No more lawfare.  No more driving people out of business just because disgruntled non-customers don't agree with them.  And so on.

This was all considered when the original Civil Rights laws were passed. In one of the earlier challenges to the law, the plaintiff (a black family who experienced discrimination) had to take their request for attorney costs to the Supreme Court, who wrote:

Quote

When a plaintiff brings an action under that Title, he cannot recover damages. If he obtains an injunction, he does so not for himself alone, but also as a "private attorney general," vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees -- not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II. It follows that one who succeeds in obtaining an injunction under that Title should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.

This sort of situation (the whole cake thing) is envisioned in this process. It is important to remember that even if the cake baker is found to have the right to refuse to make the cake, the cake maker is still engaged in discrimination (albeit legal discrimination). If we force those who are being discriminated against to bear the cost of their litigation, then we are left in a position where the system itself favors those who discriminate. Congress did not want this to be the situation. The intent was to encourage discrimination to go away.

[The Nehor]

1 hour ago, Kenngo1969 said:

That's how I have proposed that the "Cake Conundrum" (and similar controversies) be resolved.  Does a gay couple wish to sue a cake baker for the baker's refusal to bake them a cake to celebrate their union?  Fine.  Sue away.  But the gay couple's recovery should be limited to the difference between what the declining cake baker would have charged if he or she had accepted the job and what the accepting cake baker did charge for accepting the job, along with related expenses such as travel.  No more lawfare.  No more driving people out of business just because disgruntled non-customers don't agree with them.  And so on.

No one is getting forced out of business by this. If anything it is a fundraising opportunity.

[Kenngo1969]

1 minute ago, The Nehor said:

No one is getting forced out of business by this. If anything it is a fundraising opportunity.

Okay.  I'll be sure to tell Jack Phillips that.  I'm sure he'll be relieved to hear it.

Thanks,

-Ken

[The Nehor]

1 minute ago, Kenngo1969 said:

Okay.  I'll be sure to tell Jack Phillips that.  I'm sure he'll be relieved to hear it.

Thanks,

-Ken

The tales of poor persecuted Jack Philips at risk of losing everything are echoed on fundraising sites where he gets mid-six figures at least in donations. He is fine.

Save your pity for people who actually suffer from the legal machinations of others without a faucet of financial support running to them the whole time. They are legion.

[Daniel2]

5 hours ago, bluebell said:

I'm not disagreeing but I don't know if I agree either.  I'm trying to decide how I feel about it.  Pondering what you said, I've asked myself, if a Black person was willing to make a white cake for a baptism, should they still be forced to make the exact same white cake if they learn it's for a KKK rally?

I'm asking myself, is the purpose of the cake relevant in these kinds of discussions?

I'm honestly not sure where I draw the line.

While I empathize that any of us may question or struggle with where we personally may draw the line, as I understand it, the law makes the distinction by naming protected classes. A business may refuse goods or services as long as the refusal doesn’t fall within discriminating against a protected class.

I don’t believe the KKK falls within a protected class.

Edited January 28 by Daniel2

[Kenngo1969]

1 hour ago, Benjamin McGuire said:

This was all considered when the original Civil Rights laws were passed. In one of the earlier challenges to the law, the plaintiff (a black family who experienced discrimination) had to take their request for attorney costs to the Supreme Court, who wrote:

This sort of situation (the whole cake thing) is envisioned in this process. It is important to remember that even if the cake baker is found to have the right to refuse to make the cake, the cake maker is still engaged in discrimination (albeit legal discrimination). If we force those who are being discriminated against to bear the cost of their litigation, then we are left in a position where the system itself favors those who discriminate. Congress did not want this to be the situation. The intent was to encourage discrimination to go away.

As much as I respect Congress's intent in passing Civil Rights legislation, The situation today is vastly different than it was when Civil Rights legislation was passed in the 1950s and 60s.  Back then, rightly, the "what's-the-big-deal-just-find-a-willing-provider?" argument didn't carry a lot of weight because discrimination was very well entrenched, discrimination against certain groups was the rule more than it was the exception, and such discrimination was tolerated by a wide cross section of society.  By contrast, today, the chances that someone who is discriminated against by one provider not being able (easily) to find some other provider who is willing are much greater.

[Kenngo1969]

12 minutes ago, The Nehor said:

The tales of poor persecuted Jack Philips at risk of losing everything are echoed on fundraising sites where he gets mid-six figures at least in donations. He is fine.

Save your pity for people who actually suffer from the legal machinations of others without a faucet of financial support running to them the whole time. They are legion.

Whose fault is it that Jack Phillips is doing so well, if, indeed, that is the case?  Did the Colorado Civil Rights Commission overreach?  Did at least one of its members kick a hornet's nest?  One really shouldn't complain about getting stung if one knows the potential consequences of kicking a hornet's nest and does so anyway.  The legal machinations against Jack Phillips smack of opportunism.  I think they were less about getting any measure of "justice" for any allegedly-aggrieved plaintiffs than they were about simply targeting someone with whom one happens to disagree and attempting to make an example out of him, just as the Plaintiffs and the Colorado Civil Rights Commission did with Mr. Phillips.

[bluebell]

10 minutes ago, Daniel2 said:

While I empathize that any of us may question or struggle with where we personally may draw the line, I understand it, the law makes the distinction by naming protected classes. A business may refuse goods or services as long as the refusal doesn’t fall within discriminating against a protected class.

I don’t believe the KKK falls within a protected class.

But haven’t the courts also declared that under some circumstances a company can refuse service to someone in a protected class?

[The Nehor]

1 minute ago, Kenngo1969 said:

Whose fault is it that Jack Phillips is doing so well, if, indeed, that is the case?  Did the Colorado Civil Rights Commission overreach?  Did at least one of its members kick a hornet's nest?  One really shouldn't complain about getting stung if one knows the potential consequences of kicking a hornet's nest and does so anyway.  The legal machinations against Jack Phillips smack of opportunism.  I think they were less about getting any measure of "justice" for any allegedly-aggrieved plaintiffs than they were about simply targeting someone with whom one happens to disagree and attempting to make an example out of him, just as the Plaintiffs and the Colorado Civil Rights Commission did with Mr. Phillips.

Are you under the impression I work for the Colorado Civil Rights Commission and that I was “stung” by this?

All I am said is that it is disingenuous to pretend Jack Philips is some put upon victim at risk of losing everything. Both the people who brought the case and those defending against it are organized and well-funded. These cases didn’t happen by accident. The ramifications of these cases are important. They are not important because it is going to make or break Jack Philips. That he is a put upon victim is untrue but the myth is useful for fundraising.

[Kenngo1969]

32 minutes ago, The Nehor said:

The tales of poor persecuted Jack Philips at risk of losing everything are echoed on fundraising sites where he gets mid-six figures at least in donations. He is fine.

Save your pity for people who actually suffer from the legal machinations of others without a faucet of financial support running to them the whole time. They are legion.

So, with a straight face, you're telling me that Jack Phillips's business and livelihood never were threatened, he never was targeted, he has never been the subject of venom, and vitriol, and opprobrium?  I'd like to take a look at that bridge you have for sale.  Just because Jack Phillips is doing OK now (accepting, arguendo, that that's the case) says nothing about what he had to go through in order to reach that point.

[Calm]

37 minutes ago, The Nehor said:

That he is a put upon victim is untrue

Given the fundraising, etc, I don’t see it as a financial drag on him though he probably had some panic moments before donations started rolling in (pretty quickly if I remember the reports), but he didn’t ask for the semi celebrity status and my guess is he has gotten a ton of death threats and likely in person harrassment, nasty things sent to his home, etc.  Emotional wear and tear could be high for him or someone in his family, who really didn’t ask for all of this.

Edited January 28 by Calm

[The Nehor]

14 minutes ago, Kenngo1969 said:

So, with a straight face, you're telling me that Jack Phillips's business and livelihood never were threatened, he never was targeted, he has never been the subject of venom, and vitriol, and opprobrium?  I'd like to take a look at that bridge you have for sale.  Just because Jack Phillips is doing OK now (accepting, arguendo, that that's the case) says nothing about what he had to go through in order to reach that point.

He was flooded with money when it first began. This wasn’t some upward climb.

6 minutes ago, Calm said:

Given the fundraising, etc, I don’t see it as a financial drag on him, but he didn’t ask for the semi celebrity status and my guess is he has gotten a ton of death threats and likely in person harrassment, nasty things sent to his home, etc.  Emotional wear and tear could be high for him or someone in his family, who really didn’t ask for all of this.

He sure leaned into it though when he wrote a book and took up paid speaking engagements.

[Calm]

36 minutes ago, The Nehor said:

 

He sure leaned into it though when he wrote a book and took up paid speaking engagements.

Yes.  I wonder if the rest of the family has embraced their new status or not.

added:  according to him they have…

https://dailycitizen.focusonthefamily.com/an-interview-with-jack-phillips-of-masterpiece-cakeshop-christian-baker-author/

I just found out this shop is just a couple of miles from where my sister lives, same city, two lefts and a right.  I will have to ask her what she hears about it.

Edited January 28 by Calm

[Benjamin McGuire]

7 hours ago, Kenngo1969 said:

As much as I respect Congress's intent in passing Civil Rights legislation, The situation today is vastly different than it was when Civil Rights legislation was passed in the 1950s and 60s.  Back then, rightly, the "what's-the-big-deal-just-find-a-willing-provider?" argument didn't carry a lot of weight because discrimination was very well entrenched, discrimination against certain groups was the rule more than it was the exception, and such discrimination was tolerated by a wide cross section of society.  By contrast, today, the chances that someone who is discriminated against by one provider not being able (easily) to find some other provider who is willing are much greater.

What difference should this make? You seem to be arguing that because not all of our society discriminates that we should simply ignore those that do?

Discrimination in our country is still entrenched, discrimination against certain groups is certainly still the rule more than the exception, and this discrimination is tolerated by a wide cross section of society. So things may be better in terms of certain forms of discrimination, we still haven't eliminated it, and we have replaced some types of discrimination with others as we struggle to become a more open society. So I don't think that anything has really changed in terms of the intentions of our anti-discrimination laws.

[Daniel2]

8 hours ago, bluebell said:

But haven’t the courts also declared that under some circumstances a company can refuse service to someone in a protected class?

When it’s a matter of a competing right to protect free speech, yes.  But companies cannot deny selling their routine commodities (i.e. a nondescript, non-communicative cake or meal or any other regularly sold item) if it’s on the basis of protected-class discrimination.

And therein lies the difference, from a legal perspective. 

Edited January 28 by Daniel2

[Daniel2]

9 hours ago, Kenngo1969 said:

As much as I respect Congress's intent in passing Civil Rights legislation, The situation today is vastly different than it was when Civil Rights legislation was passed in the 1950s and 60s.  Back then, rightly, the "what's-the-big-deal-just-find-a-willing-provider?" argument didn't carry a lot of weight because discrimination was very well entrenched, discrimination against certain groups was the rule more than it was the exception, and such discrimination was tolerated by a wide cross section of society.  By contrast, today, the chances that someone who is discriminated against by one provider not being able (easily) to find some other provider who is willing are much greater.

Your point focuses on the concept of the availability of goods and services as it relates to public accommodation law. If that were the sole intent of this type of law, you may have a point. 

However, beyond merely having access to goods and services, the Supreme Court has also repeatedly held that the Government has a compelling interest in ensuring the elimination of discrimination on the basis of select enumerated protected classes.

Edited January 28 by Daniel2

[Benjamin McGuire]

I want to add one more comment here -

This discrimination is supposed to be justifiable because of the practice of religion. In Mormonism, would you be called in to your Bishop's office and have your temple recommend questioned if you made a cake for a transgender celebration? No. There is nothing in our religion which makes the baking of a cake a sin (except perhaps if you did it on Sunday). My personal opinion is this - the bar shouldn't be at whether we think the thing that we are selling represents something that we find morally wrong, the bar should be at the level of an action actually impacting how we practice our religion. And our guideline within Mormonism should be the golden rule, right? If we are willing to substitute Mormonism for whichever group is being discriminated against and be comfortable with it, then okay, go ahead and support it. But if you would be offended by a cake baker's discrimination when they refuse to bake a cake because it would be used in an after baptism celebration for someone joining the Mormon Church, then I think you should be less willing to simply accept the discrimination as something we should be completely tolerant of.

[Dario_M]

8 hours ago, The Nehor said:

Are you under the impression I work for the Colorado Civil Rights Commission and that I was “stung” by this?

.

You sound a bit defensive though.