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

[smac97]

11 minutes ago, Daniel2 said:

I agree with the above.

I am glad to see there are grounds for people with disparate viewpoints to nevertheless find a consensus.

Last night my family had FHE (we do it on Sunday nights now because too many of our kids are gone on Monday evenings) we had a discussion about building relationships of trust.  One theme we addressed was "Détente," or "the relaxation of strained relations, especially political ones, through verbal communication."  We analogized this to familial relationships and suggested that sometimes we can build up "strained relations" with each other, which can and ought to be eased/relaxed "through verbal communication."  

I had, and have, some qualms about the Respect for Marriage Act (mostly pertaining to individual, as opposed to organizational, rights), but I am nevertheless glad it was passed.  Compromise is the name of the game in a pluralistic society, and I think the RFMA reflects that.

I strongly supported Jack Phillips' original action to challenge the state-court finding against him, but that was about "Free Speech" (more particularly, it was about resisting compelled speech).  I think the current case will help both sides start to see the boundaries between their respective positions.  LGBT folks are rightly entitled to the same things everyone else is, which is what some folks on my "side" of the debate need to acknowledge.  Conversely, notably absent amongst these "things" to which we are all entitled is any right to compel speech, which is what some folks on the other side of the debate need to acknowledge.

Thanks,

-Smac

[Amulek]

On 1/26/2023 at 7:23 PM, california boy said:

Someone made the statement recently "If you can eat what you produce, then it is not art."

Um...agree to disagree.

https://www.instagram.com/amauryguichon/?hl=en

 

[smac97]

34 minutes ago, Amulek said:

If you read Justice Thomas' concurring opinion in the Masterpiece decision, he mentions that "[t]o determine whether conduct is sufficiently expressive [to qualify as protected speech], the Court asks whether it was “intended to be communicative” and, “in context, would reasonably be understood by the viewer to be communicative.”

I think there's a colorable argument to be made that, in the context of a gender transition birthday party, a pink/blue cake might reasonably be understood by a viewer as being communicative.

Perhaps.  But here Jack Phillips apparently agreed that the cake was not "communicative," right?  If so, is that a disputed issue to be addressed on appeal?  Or is delineating between "cake-as-protected-speech" and "cake-as-non-protected-speech" something that will need to be addressed down the road?

34 minutes ago, Amulek said:

That being said, I think the facts were much more in Phillips' favor in the wedding cake case than in this one.

Yep.  Phillips has still largely succeeded in framing this issue as a matter of "compelled speech," and I think the appellate courts are going to generally err on the side of the First Amendment when disputes involving "speech" come up.  

Thanks,

-Smac

[Daniel2]

1 hour ago, Amulek said:

Um...agree to disagree.

https://www.instagram.com/amauryguichon/?hl=en

 

Yeah, although california boy and I agree on many things, in this case, I also disagree… Food CAN certainly be art, and some food can also be expressive speech (depending on the context). That said, not all food is art nor expressive speech. 

[Buckeye]

5 hours ago, smac97 said:

I think the more salient question is whether a cake can be "speech."  The answer is pretty clearly yes, it may qualify as speech (depending on the circumstances).

Thanks,

-Smac

Agreed. Cake can be art. And it can be speech. The test should be a reasonably objective community standard. So, IMO, a round white cake is not speech. But putting two groom statues on top turns it into speech. A square black cake is not speech. But combining a series of such cakes to form a swastika turns it into speech. A blue/pink cake is more grey area, but IMO is not speech because there’s no objective meaning. It could mean twins, transition, or most often absolutely nothing beyond the customer liking those colors. 

[Kenngo1969]

On 1/29/2023 at 1:07 PM, Benjamin McGuire said:

Kenngo1969 -

What you are doing is akin to what has been labeled as white fragility.

Oh, baloney.  I have never claimed I have been discriminated against on the basis of my skin color, but, rather, on the basis of other attributes over which I have no control.

On 1/29/2023 at 1:07 PM, Benjamin McGuire said:

There is no question that we are dealing with discrimination.

Thanks for clearing that up.  

On 1/29/2023 at 1:07 PM, Benjamin McGuire said:

Your response is all about protecting the person that is handing out the discrimination as opposed to the person who is experiencing.

If that is your conclusion based on what I have written, then, quite frankly, your reading comprehension is lacking.

On 1/29/2023 at 1:07 PM, Benjamin McGuire said:

White fragility refers to racial discrimination - where white people claim (in response to the issue of racial discrimination) that they too are discriminated against.

Again, I have never claimed that I have been the target of discrimination based on my skin color, but, rather, on the basis of other attributes about which I can do nothing.

On 1/29/2023 at 1:07 PM, Benjamin McGuire said:

It is purely a deflection - to avoid recognizing the real discrimination going on, and to claim equal victim status with those that are experiencing it. Here you are.

Oh, I feel entirely comfortable in asserting that I am much, much more familiar with my own history than you are, or than you ever are likely to be for that matter.  Further, you're engaging in a logical fallacy here.  If (W) claims to have been the target of discrimination on the basis of (X), while (Y) claims to have been the target of discrimination on the basis of (Z), neither the claim necessarily invalidates the other.  Both claims may be equally valid.  

On 1/29/2023 at 1:07 PM, Benjamin McGuire said:

If we want to deal with discrimination in a way that works to eliminate it from our society, then we need to treat discrimination as the problem of the discriminators and not those being discriminated against.

I don't necessarily disagree with this assertion in principle, but who is this "We" to whom you are referring, you and that mouse in your pocket?  It's the "Royal We," no doubt, while I, alas, am but a poor peasant who is desperately in need of the schooling that only your superior intellect and erudition can provide!  Could you possibly be any more patronizing and condescending?  Sheesh!  

On 1/29/2023 at 1:07 PM, Benjamin McGuire said:

If you have really experienced discrimination at this level, then your response should have been quite different.

I'm sure that Justice Clarence Thomas has experienced "discrimination at this level," yet his response to it is much different than you suggest it should be.  You probably should spend more time attempting to ferret out why that is, but I suspect that you wouldn't consider such an exercise to be an effective use of your valuable time and intellect, Alas!

On 1/29/2023 at 1:07 PM, Benjamin McGuire said:

We need (as a society) to help those who are being discriminated against to be able to have the voice to bring their claims forward, and we need to not punish them for doing so.

Okay.  I don't have any problem with anyone looking to obtain redress for genuine discrimination.  Until recently, I served on the Board of Directors of the Disability Law Center; was the Chairperson of the Utah Protection and Advocacy Council for Individuals with Mental Illness (and am a member of that body still); was a member of the National Advisory Council for the Center on Mental Health and Intellectual Disability for three years; serve currently on the state sister organization of that body in Utah; and am a member (and was appointed by the governor) of the Utah Developmental Disabilities Council. 

I am all for anyone who has a colorable case of discrimination seeking and obtaining redress. At the same time, if "everything is discrimination, then nothing is discrimination" (my phrase), all discrimination is not created equal, and not every single wrong (and not even every single legally cognizable wrong) known to humanity has a legal remedy.

On 1/29/2023 at 1:07 PM, Benjamin McGuire said:

The legal issue you were complaining about isn't about false accusations.

I never made any claims about false accusations.  See above.

On 1/29/2023 at 1:07 PM, Benjamin McGuire said:

It requires that the legal system finds that someone is discriminating.

Quite true.  I suppose I am concerned about the seemingly ever expanding nature of what constitutes discrimination, such that, for example, someone who takes umbrage at being referred to by the wrong pronoun is seen to have suffered discrimination akin to that  someone who is denied a product, service, or benefit on the basis of his or her race.  You will probably disagree, but I don't think the two cases are comparable.

On 1/29/2023 at 1:07 PM, Benjamin McGuire said:

And it makes them pay the cost of that legal process.  If your claim of discrimination fails, then you have to pay the costs (for both sides, if the court decides). This seems quite reasonable to me.

I was accused of harassment (a form of discrimination) by a fellow employee (female; "#BELIEVE WOMEN!"; "#METOO!": I'm not saying that sexual harassment never occurs or that it should not be dealt with severely, but, again, it's not as though no one ever cries "Wolf!") at one of my former workplaces.  I had barely even associated her name with her face.  I was aware of her only dimly, much less having any sort of a relationship with her beyond that at all.  I had not even so much as spoken to her (if I did, all we did was exchange the sort of small talk that is typical of people who have an arms-length acquaintance with one another).  Fortunately, our employer at the time investigated her claims and determined them to be without merit. 

I shudder when I consider how easy it was for her to lodge her claims, to prompt an investigation that consumed the longest ten days of my life and included searching questioning of a number of our fellow employees, and could easily have destroyed my reputation ...  If she had sued me civilly, had prevailed, and if I had been forced to pay her legal costs?  Not only would my reputation have been ruined, I would have been ruined financially, as well.

On 1/29/2023 at 1:07 PM, Benjamin McGuire said:

But what you are suggesting means that there is nothing to be gained by bringing forward claims of discrimination and a lot to lose (in terms of cost).

On the contrary.  However, all cases of discrimination are not created equal.  Someone who sues someone else for failing to use a proper pronoun hasn't suffered nearly the same injury as someone who has been denied an essential service on the basis of his or her race.

On 1/29/2023 at 1:07 PM, Benjamin McGuire said:

You want to protect those who are discriminating against others by adding to the difficulty of those who are being discriminated against. There is not justice there.

No, I'm simply questioning whether fairness and justice are advanced all that much by driving someone out of business and attempting to ensure that he or she cannot make a living doing anything else, driving someone off of campus and attempting to ensure that he or she cannot get an education anywhere else, and so on, potentially ad infinitum.

On 1/29/2023 at 1:07 PM, Benjamin McGuire said:

On top of this, I have yet to have anyone tell me how baking a cake prevents someone from practicing their religion (this is not the same as say forcing a Catholic doctor to perform an abortion). I know of no religion that makes cake baking a sin (no matter what the context in which it would be eaten). Certainly it isn't an issue for Mormonism.

Yes, well, thankfully, how someone chooses to manifest his deeply-held religious beliefs in his life (including in his workplace) is not up to you.  While many would prefer that one's "Free" Exercise of Religion" be confined to what one does within the walls of one's holy place on one's holy day, fortunately, the Founders had a much wider conception of that principle than those who wish it were so limited.

On 1/29/2023 at 1:07 PM, Benjamin McGuire said:

These lawsuits are no different from the ones we had following the civil rights movements when racial discrimination was slow to go away. I really have no expectation that you will respond to this with anything more than cynicism or (as you and bsjkki have done, in calling me an ***) for voicing this opinion.

No one called you an *** for voicing your opinion.  We merely insinuated, as that old saying goes, that that opinion was ill-informed and based on entirely insufficient information, and, as such, the person voicing such an opinion would be revealing his own ignorance.

On 1/29/2023 at 1:07 PM, Benjamin McGuire said:

But in response, I will suggest that your view of what it means to live the Gospel is far different from what I read in the scriptures.

Patronizing, condescending, and now moralizing!  Quite a trifecta you have going there, Brother McGuire!   

On 1/29/2023 at 1:07 PM, Benjamin McGuire said:

As Jesus said: "If someone wants to sue you in court and take your shirt, let him have your coat also. If someone forces you to go with him one mile, go with him two miles."

ROFLMREO, ROFLMREO, ROFLMREO, ROFLMREO, ROFLMREO, ROFLMREO, ROFLMREO [Gaaaaaaaasp!] ROFLMREO, ROFLMREO, ROFLMREO!!!  Somehow, I don't think the opinions of several members of the Twelve who are lawyers read that scripture quite the same way as you do.  https://deseretbook.com/p/lords-way-dallin-h-oaks-2997?variant_id=108461-paperback*

On 1/29/2023 at 1:07 PM, Benjamin McGuire said:

We shouldn't even have to have these discussions in a moral society over how to legally justify discriminatory behavior.

Confucius say, "Man on such high horse better be careful.  Higher horse, longer fall."  

____________

*See the chapter on litigation.

Edited January 31 by Kenngo1969

[Benjamin McGuire]

10 hours ago, Kenngo1969 said:

Oh, baloney.  I have never claimed I have been discriminated against on the basis of my skin color, but, rather, on the basis of other attributes over which I have no control.

What difference does that make Kennego? You compared your discrimination to the discrimination being discussed. That was your characterization, not mine. I really don't care what the discrimination is that you think you have faced. It is largely irrelevant to the issue.

10 hours ago, Kenngo1969 said:

If that is your conclusion based on what I have written, then, quite frankly, your reading comprehension is lacking.

I think that my reading comprehension is just fine, thank you.

Look, I am sorry that you feel the need to get so defensive when these issues of discrimination come up. But it remains that your suggestions are aimed at making things easier for those who are discriminating and harder for those who are experiencing discrimination. It is that simple. Why do you feel the need to protect someone who is engaged in discrimination? Do you think it is appropriate for the cake maker to refuse to make the cake?

[provoman]

On 1/30/2023 at 6:17 AM, Benjamin McGuire said:

Not at all. There is something ironic here in your suggestion. Kennego essentially claimed that his own experience with discrimination was equivalent to all of these other types of discrimination and that they should just "suck it up buttercup." I called him on it. As a white, straight man, whatever his issues may be, he has never had to deal with the types of discrimination that we are dealing with here. I will stand by that statement. I am simply reversing the statement that Kennego made along with it's implications. Whenever we have discrimination, we should be discouraging barriers that are erected to keep those being discriminated against from being able to challenge that discrimination. Our society needs to confront discrimination in all of its forms - it is good for us to deal with these issues and to make it clear that discrimination is bad for us.

Yes you dictating how someone "should" respond. You posted "If you have really experienced discrimination at this level, then your response should have been quite different."  That is a "No true Scottsman" and in essence you demanding how someone "should have" responded.

 

[Amulek]

On 1/30/2023 at 4:20 PM, smac97 said:

But here Jack Phillips apparently agreed that the cake was not "communicative," right?

Did he? I thought he only conceded that a pink/blue cake is not inherently expressive - not that a pink/blue cake couldn't, given the right context, be considered symbolic speech.

I think that's probably a finer (and harder) point to argue though - one that I'm not convinced would (or even ought) to win.

 

[The Nehor]

I have a simple solution. Ban cakes and eat more pies. Pies are better anyways.

[bluebell]

13 minutes ago, The Nehor said:

I have a simple solution. Ban cakes and eat more pies. Pies are better anyways.

I've always thought that a good solution would be to decentivize the clientele you don't want.

If you really don't want to back a cake for any events that celebrate lgtbq stuff, then advertise that all proceeds from the sale of such cakes will be directly donated to an organization that fights against SSM or something like that.  

(To be clear, I'm not advocating doing this, only saying that doing so would probably keep you from having to use your "speech" to support something you don't agree with without having to get the courts involved).

[The Nehor]

16 minutes ago, bluebell said:

I've always thought that a good solution would be to decentivize the clientele you don't want.

If you really don't want to back a cake for any events that celebrate lgtbq stuff, then advertise that all proceeds from the sale of such cakes will be directly donated to an organization that fights against SSM or something like that.  

(To be clear, I'm not advocating doing this, only saying that doing so would probably keep you from having to use your "speech" to support something you don't agree with without having to get the courts involved).

Works for Chik-fil-a.

[bluebell]

34 minutes ago, The Nehor said:

Works for Chik-fil-a.

Exactly!  And it comes with the bonus of getting the business of everyone who would be really excited about a policy like that. 

[Amulek]

17 hours ago, The Nehor said:

Works for Chik-fil-a.

I loves me some hate chicken.

Reminds me of that episode from Silicon Valley...

Satanist Leader: Hail Satan, it is done. Well, thanks for coming, everyone. Brother Jason was kind enough to furnish this week's food. It's Chick-fil-A. I know, they're on the Christian right, but darned if that chicken isn't good. I think the Dark Lord would understand.

 

[The Nehor]

4 hours ago, Amulek said:

I loves me some hate chicken.

Reminds me of that episode from Silicon Valley...

Satanist Leader: Hail Satan, it is done. Well, thanks for coming, everyone. Brother Jason was kind enough to furnish this week's food. It's Chick-fil-A. I know, they're on the Christian right, but darned if that chicken isn't good. I think the Dark Lord would understand.

 

Nah, I think they are going to hell so it makes sense.

[Daniel2]

On 1/30/2023 at 3:09 PM, smac97 said:

I am glad to see there are grounds for people with disparate viewpoints to nevertheless find a consensus.

Last night my family had FHE (we do it on Sunday nights now because too many of our kids are gone on Monday evenings) we had a discussion about building relationships of trust.  One theme we addressed was "Détente," or "the relaxation of strained relations, especially political ones, through verbal communication."  We analogized this to familial relationships and suggested that sometimes we can build up "strained relations" with each other, which can and ought to be eased/relaxed "through verbal communication."  

I had, and have, some qualms about the Respect for Marriage Act (mostly pertaining to individual, as opposed to organizational, rights), but I am nevertheless glad it was passed.  Compromise is the name of the game in a pluralistic society, and I think the RFMA reflects that.

I strongly supported Jack Phillips' original action to challenge the state-court finding against him, but that was about "Free Speech" (more particularly, it was about resisting compelled speech).  I think the current case will help both sides start to see the boundaries between their respective positions.  LGBT folks are rightly entitled to the same things everyone else is, which is what some folks on my "side" of the debate need to acknowledge.  Conversely, notably absent amongst these "things" to which we are all entitled is any right to compel speech, which is what some folks on the other side of the debate need to acknowledge.

Thanks,

-Smac

I've been meaning to circle back and thank you for the above post, Smac.  After the isolation inflicted on the world due to a global pandemic, the last few years have certainly seemed strained, both socially and politically. Disconnection is corrosive to unity at all levels, it would seem. 

I love the imagery of easing and relaxing strained communication through respectful dialogue and building relationships of trust.  It's always a breath of fresh air when people of disparate viewpoints find that consensus.

Thanks for the positive post encouraging dialogue in that direction.

Best,

Daniel

Edited February 15 by Daniel2