Supreme Court Sides with baker who turned away gay couple

[wufan]

I do have a problem with religious based discrimination. If you serve one, you need to serve all. That said, specialized, artistic services, which I believe creating a wedding cake should fall under, should have leeway. Even though the baker shouldn't be forced to create a one of a kind cake to celebrate a marriage that he personally views as sinful, he should be required to sell the gay couple any baked goods readily available in the display case.

What about a cake that says “Death to Infidels”? Is that a cake that a baker should be compelled to make?

I believe religion to be a set of beliefs or ideas. As such, I believe them to be worthy to discriminating dissent by non-government agencies.

What about, “God is dead”? That would be an atheistic stance. Although atheists reject religion, it’s self evident that such a message has religious implications. Would it be protected as religious freedom, or the freedom from religion?

[jdmee]

A baker shouldn't be compelled to make a cake that says "He is risen" or anything for that matter. However, a baker should have to sell the cake in their display to anyone. Even if they tell the baker they are going to write on it what the baker is refusing to write.

[wufan]

A baker shouldn't be compelled to make a cake that says "He is risen" or anything for that matter. However, a baker should have to sell the cake in their display to anyone. Even if they tell the baker they are going to write on it what the baker is refusing to write.

Why do they HAVE to sell a cake to anyone? What if the customer wishing to buy the cake was standing outside the shop all day with a sign that read, “this baker schtooped my wife!”

[MoValley John]

What about a cake that says “Death to Infidels”? Is that a cake that a baker should be compelled to make?

I believe religion to be a set of beliefs or ideas. As such, I believe them to be worthy to discriminating dissent by non-government agencies.

What about, “God is dead”? That would be an atheistic stance. Although atheists reject religion, it’s self evident that such a message has religious implications. Would it be protected as religious freedom, or the freedom from religion?

No. You shouldn't be able to compel a baker to write those messages on a cake. You, however, should be able to write whatever you wish on a generic cake you purchased from the bakery.

[wufan]

No disagreement.

[SB Shock]

This case was won because the Colorado Civil rights commission neglected its obligation to remain neutral.

“To describe a man’s faith as one of the most despicable pieces of rhetoric that people can use is to disparage his religion in at least two distinct ways: by describing it as despicable and also by characterizing it as merely rhetorical, something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment,” said Justice Kennedy, “Is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law, a law that,” said Kennedy, “Protects discrimination on the basis of religion as well as sexual orientation.”

Justice Kennedy reminded the court and the nation that the Free Exercise Clause of the First Amendment to the US Constitution “Bars even subtle departures from neutrality on matters of religion. Here,” said Justice Kennedy, “

Second, Kennedy also restated that the Government should have no constitutional right to decide whether or not an individual citizen’s conscience-based religious beliefs are legitimate or illegitimate. This is probably the part that may have a lasting effect on future cases.

Justice Kennedy said, “It hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate. On these facts, the Court must draw the inference that Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires.”

[jdshock]

I think most here understand that SCOTUS just punted on the issue.

As to the second portion, that's not really different from existing law. It's why I've been using the interracial marriage example because the government is not really in the business of telling people their beliefs aren't valid.

[WuDrWu]

jdshock, did they really "punt" on the issue, or did they just rule on the matter of law that they could widely agree on?

I don't claim to know the law so I defer to you and other more informed people. I will say I've heard many comments on this here and elsewhere, and there are 2 things I take from the ruling.

First, it appears to this layperson that Ginsburg and Sotomayor have little to no business on the bench. Ginsburg is simply too old, but both use politics almost exclusively to make their "rulings". I think Ginsburg once had a place on the bench but has long since outlasted her usefulness and needs to retire. Sotomayor, while certainly more prepared for the bench than say for instance, Kagan, has also proven to be almost strictly politically reactive to the vocal majority and is way too often far reaching in her opinions.

Second, just because this particular ruling was very narrow, that doesn't mean that the broader question would be ruled on any differently. However, it seems the prevailing thought is that's exactly what will happen, at least from the militant left....surprise surprise.

[jdshock]

WuDrWu - I definitely think they punted on the issue. I actually wasn't aware of anyone saying they didn't punt on the issue until your comment, though, which shows how easy it is to get into a bubble of sorts, but there are definitely a fair number of sites out there trying to explain why it's not a punt or narrow ruling. I think it's a punt because I just don't know how you can rely on it going forward. In these kinds of cases, you can really only rely on language that was crucial to the holding. Here, they held that the state agency screwed up, which--at least in my reading--means there isn't a whole lot new out there in terms of law to rely on if I wanted to argue this kind of case next week.

Ginsburg and Sotomayor - I have been a little taken aback by Ginsburg's politics over the last two years. I honestly don't really have a problem with Sotomayor. I also wish there were an age cap, but I'm just not sure how you do it without a full out amendment to the Constitution.

As to the broader question, yeah I think the left is putting their heads in the sand a little bit, but I think the right is also going about this the wrong way. I'm not out here publishing articles on this and I don't religiously track Supreme Court holdings, so my opinion isn't worth a whole lot here. But I think the free speech stuff is WAY more compelling than the free exercise of religion stuff, and I think a lot of legal scholars tend to talk about it in that way. We'll see. If a similar case made its way back to the court and the court said "yeah, this is a free speech issue because of the artistic nature of cakes, but you cannot use religion to discriminate" I'm not sure how either side would react.

In my opinion, the religion issue is a loser, and I would be surprised to see it see the court rule in favor of the baker on religious grounds. The free speech issue could probably go either way. If they sided with the baker, I'd be VERY interested to see if they attempt to define what types of services are artistic in nature. If they sided with the state, I'd be very interested to see if they concede the baker is doing artistic work and it just doesn't matter or how they deal with that issue.

[C0|dB|00ded]

Start eating the gays. Problem solved.

T


...:cool:

[Rocky Mountain Shock]

A lot of great discussion here the past few days.

In regards to the relationship of business entity type with the exercise of individual rights, I'll take it a step farther than jdshock. I'm not sure entity type matters at all in my opinion. Whether you have an LLC, corp, or even a sole proprietorship, if you're engaged in a commercial activity I think the good/service provider has an obligation to provide those services to others without discrimination. And I think consumers should have a reasonable expectation to not be discriminated against in a commercial activity.

Exceptions to that would be an endeavor which directly violates religious belief (an officiant cannot be compelled to conduct a gay wedding) or if one is compelled to make a statement that violates one's beliefs in providing the good or service. So a freelance writer should not be compelled to write an article advocating the concept that "God is Dead." Artistic endeavors may also fall under that. So while the cake is a creation of the baker, and there is an artistic element, I don't believe it is an artistic endeavor in the sense of a painting, a novel, or a sculpture. It is a edible product, and I don't believe that it being a custom-made cake makes it a purely artistic endeavor. Is a custom car more like a sculpture, or is it more like a Honda Accord? If the purpose of the car is to be on display and not be driven, then I think the answer is it's more like a sculpture. If the car is to be enjoyed by the consumer by being driven, it's more like an Accord. In the baker's case, the cake was to be eaten. It's a product, not a work of art.

In regards to my previous discussion with jdmee about the definition of "partaking in the wedding," the cake will not actually be used in the ceremony. It will be consumed by the wedding guests and participants at the reception, which I think is the important distinction. The baker is not directly participating in, condoning, or making a statement for/against gay marriage in the act of providing a cake. To use an above example, should a custom car maker be allowed to refuse to build a custom car for a gay couple who will use it to drive away from their wedding? He or she may not enjoy building it, but I find it hard to understand how doing so violates one's religious objections to gay marriage.

[ShockTalk]

What about a photographer? Is he partaking in the wedding?

You mentioned the freelance writer and should not be compelled to write. I believe the baker in this case said they would do the sheet cakes, but did not want to do the decorating of the wedding cake (you may not consider a wedding cake "art", but bakers do as well as others). I believe in this particular case, there was also something about them requiring the baker having to be there at the reception as well. Could be wrong about that as the story about this came out some time ago.

[Rocky Mountain Shock]

Good question about the photography. That's when things really get gray. The photographer has to be physically present at the ceremony. And certainly there's an artistic element to the pictures. The pictures also just serve as a photographic record of the ceremony. So I struggle saying the act of taking pictures is a violation of the photographer's religious beliefs. But I am uneasy that being present at the ceremony is a requirement for taking those pictures. Perhaps that would be the grounds for a religious exception. A photographer taking a family portrait of a gay couple, for example, would not be able to claim the same exception.

I absolutely believe wedding cakes have an artistic element, but it's going to take a helluva sales pitch to convince me a wedding cake, the primary purpose of which is to be eaten by dozens or hundreds of people, is the same as a painting or a sculpture, the primary purpose of which is to convey an artist's expression in perpetuity. A chef creatively plates a meal--does that make your dinner a work of art?

[ShockTalk]

"A chef creatively plates a meal--does that make your dinner a work of art?"

So they say.

[wufan]

A lot of great discussion here the past few days.

In regards to the relationship of business entity type with the exercise of individual rights, I'll take it a step farther than jdshock. I'm not sure entity type matters at all in my opinion. Whether you have an LLC, corp, or even a sole proprietorship, if you're engaged in a commercial activity I think the good/service provider has an obligation to provide those services to others without discrimination. And I think consumers should have a reasonable expectation to not be discriminated against in a commercial activity.

Exceptions to that would be an endeavor which directly violates religious belief (an officiant cannot be compelled to conduct a gay wedding) or if one is compelled to make a statement that violates one's beliefs in providing the good or service. So a freelance writer should not be compelled to write an article advocating the concept that "God is Dead." Artistic endeavors may also fall under that. So while the cake is a creation of the baker, and there is an artistic element, I don't believe it is an artistic endeavor in the sense of a painting, a novel, or a sculpture. It is a edible product, and I don't believe that it being a custom-made cake makes it a purely artistic endeavor. Is a custom car more like a sculpture, or is it more like a Honda Accord? If the purpose of the car is to be on display and not be driven, then I think the answer is it's more like a sculpture. If the car is to be enjoyed by the consumer by being driven, it's more like an Accord. In the baker's case, the cake was to be eaten. It's a product, not a work of art.

In regards to my previous discussion with jdmee about the definition of "partaking in the wedding," the cake will not actually be used in the ceremony. It will be consumed by the wedding guests and participants at the reception, which I think is the important distinction. The baker is not directly participating in, condoning, or making a statement for/against gay marriage in the act of providing a cake. To use an above example, should a custom car maker be allowed to refuse to build a custom car for a gay couple who will use it to drive away from their wedding? He or she may not enjoy building it, but I find it hard to understand how doing so violates one's religious objections to gay marriage.

These are well reasoned arguments. My issue is with any compelled labor. Why must any individual or entrepreneurial endevour be forced into compelled labor? Also, while you propose a legit statement about what is art and what isn’t art based on purpose, I disagree. Finally, again while you argue convincingly that the reception is not part of the ceremony, it is surely part of the celebration. These are all difficult things to come to terms with, which is why I suggest that the gov stay out of compelled labor all together.

[jdmee]

A lot of great discussion here the past few days.

In regards to the relationship of business entity type with the exercise of individual rights, I'll take it a step farther than jdshock. I'm not sure entity type matters at all in my opinion. Whether you have an LLC, corp, or even a sole proprietorship, if you're engaged in a commercial activity I think the good/service provider has an obligation to provide those services to others without discrimination. And I think consumers should have a reasonable expectation to not be discriminated against in a commercial activity.

I think we can agree on a few things here.

1. An individual should not be compelled to provide a service. i.e. if the couple knocked on my door and said they wanted to borrow my car for the wedding, not as a business but as myself. I could say no.

2. A publicly traded company, i.e. McDonalds, does not have the rights of the individual. So if the couple, who doesn't seem to be really classy, wants McDonalds to cater their wedding, McDonalds would have to cater their wedding.


What the contentions are is where the individuals rights are granted to the business venture. Is it not at all? Is it based on the legal separation from the individual and the business, Sole proprietorship? Is it the structure of the business, single owner/running of the business vs corporation run? Or is it publicly owned vs privately owned?

Exceptions to that would be an endeavor which directly violates religious belief (an officiant cannot be compelled to conduct a gay wedding) or if one is compelled to make a statement that violates one's beliefs in providing the good or service. So a freelance writer should not be compelled to write an article advocating the concept that "God is Dead." Artistic endeavors may also fall under that. So while the cake is a creation of the baker, and there is an artistic element, I don't believe it is an artistic endeavor in the sense of a painting, a novel, or a sculpture. It is a edible product, and I don't believe that it being a custom-made cake makes it a purely artistic endeavor. Is a custom car more like a sculpture, or is it more like a Honda Accord? If the purpose of the car is to be on display and not be driven, then I think the answer is it's more like a sculpture. If the car is to be enjoyed by the consumer by being driven, it's more like an Accord. In the baker's case, the cake was to be eaten. It's a product, not a work of art.

But who decided "the purpose of the car"? If I make a custom car for the purpose of the car to be on display, but a person who wants to buy it wants to drive it. Do I, as the person who made the car, have to now consider my sculpture as plain old automobile? Or is it still a work of art to me?

How about the artist? If I want to commission an artist to make a pro-gay marriage wedding kindling in the form of a painting so I can burn it at an anti-gay wedding rally, does that change it from art to kindling? I don't think so.

In regards to my previous discussion with jdmee about the definition of "partaking in the wedding," the cake will not actually be used in the ceremony. It will be consumed by the wedding guests and participants at the reception, which I think is the important distinction. The baker is not directly participating in, condoning, or making a statement for/against gay marriage in the act of providing a cake. To use an above example, should a custom car maker be allowed to refuse to build a custom car for a gay couple who will use it to drive away from their wedding? He or she may not enjoy building it, but I find it hard to understand how doing so violates one's religious objections to gay marriage.

But the wedding reception is definitely part of the wedding celebration and thus part of the wedding.

[SB Shock]

I think most here understand that SCOTUS just punted on the issue.

I agree it was a partial punt, but they didn't entirely duck the question. They are making a strong statement that open prejudice against people on the basis of their religious beliefs is not acceptable.

[Kung Wu]

A business should have the right to punt anybody they want out of their doors for any reason they want. I'm not saying they should exercise that right, but it should be the sole decision of the business owners and managers who gets to frequent their establishment. Don't like it? Start your own.

[Kung Wu]

I don't think the average person espousing more laws that affect small businesses have a clue how difficult it is to start and maintain a successful business, let alone navigate the always increasing regulatory complexities out there. It sounds simple to just pile on another law -- because "hey, it seems obvious, right"? Yet all of these laws that are passed have unintended consequences, let alone they begin to interfere with each other to the point you simply have to choose which law you want to break, because it's impossible to comply with all of them when they are in conflict.

[jdshock]

I do not think you were ever running a business pre-Civil Rights Act. I also believe it is very likely in the next five to ten years we see sexual orientation covered by the prohibition on sex discrimination. If so, there will have been no new laws to deal with. This one is old and pretty set in stone. It's honestly not that hard to comply with.

[Kung Wu]

Nope, never ran a business pre-Civil Rights Act. And that's not the challenge we are faced with today, thankfully. Yes, even getting "sexual orientation" wrapped up under sex discrimination has additional unintended consequences and will damage businesses from that point forward.

[Rocky Mountain Shock]

These are well reasoned arguments. My issue is with any compelled labor. Why must any individual or entrepreneurial endevour be forced into compelled labor? Also, while you propose a legit statement about what is art and what isn’t art based on purpose, I disagree. Finally, again while you argue convincingly that the reception is not part of the ceremony, it is surely part of the celebration. These are all difficult things to come to terms with, which is why I suggest that the gov stay out of compelled labor all together.

I think it's easy to frame it as "compelled labor." Especially when the purpose of the argument is to paint the request in a negative light. But isn't the very purpose of laws to compel one to behave in a certain way? At a dark time in our history, some businesses were allowed to refuse service to African Americans--until we compelled them to. I would hope all of us agree that was the right thing to do. Some people used religion as the basis of their racism, and again I would hope all of us agree that was a distortion of the Christian faith. In a similar way, many people use their religious faith to discriminate against gay people--but one can use the same Bible to advocate for fair and equal treatment in all situations. I think that's @jdshock's concern in all of this--using government to determine which religious beliefs are appropriate. Race issues are easier than this--this is an incredibly tough issue and we're having a fantastic debate here on how to handle it.

Why do you disagree on the definition of art? I'm just curious--perhaps I'm not taking something into consideration.

I appreciate your point on the reception being part of the celebration. I guess my hang up is only forcing someone to participate in the actual act of a gay marriage. Participating in the celebration of the act is a valid concern, though. And it's obviously the baker's. If indeed his presence was requested/required as ShockTalk alluded to, then in my view his case gets substantially stronger.

[jdshock]

2. A publicly traded company, i.e. McDonalds, does not have the rights of the individual. So if the couple, who doesn't seem to be really classy, wants McDonalds to cater their wedding, McDonalds would have to cater their wedding.

Getting lost in this discussion is a key point. I'm sure you are aware of it, but I just want to bring it back to the foreground. McDonald's would not have to cater the wedding. They can list any number of reasons. They just cannot deny service for reasons like race, sex, etc.

I believe this is relevant because it adds context to the idea of compelled labor. This is only about businesses that would have provided the same service if it had not been to an individual protected by some law.

[jdmee]

I agree and was just trying to simplify an example where a publically traded company could not claim a religious exemption as an individual. Thus a case where McDonald's would cater my wedding, but they could not deny a couples gay wedding due to religious reasons.

[Rocky Mountain Shock]

I think we can agree on a few things here.

1. An individual should not be compelled to provide a service. i.e. if the couple knocked on my door and said they wanted to borrow my car for the wedding, not as a business but as myself. I could say no.

2. A publicly traded company, i.e. McDonalds, does not have the rights of the individual. So if the couple, who doesn't seem to be really classy, wants McDonalds to cater their wedding, McDonalds would have to cater their wedding.


What the contentions are is where the individuals rights are granted to the business venture. Is it not at all? Is it based on the legal separation from the individual and the business, Sole proprietorship? Is it the structure of the business, single owner/running of the business vs corporation run? Or is it publicly owned vs privately owned?

Yeah, I'm advocating an approach where any time you are engaged in a commercial activity in any capacity--whether as a business owner under any legal structure, or as an employee-agent--you have a tougher road to claim a hypothetical religious exception to a hypothetical gay protected class.

So to use your analogies, any caterer using any entity structure, McDonald's, or the employees of McDonald's, all do not necessarily have the same rights of refusal as an individual. A person who is asked to lend their car--as long as they are not engaged in the business of lending cars for a profit--can refuse the request for any reason.

I realize this favors consumers of a protected class. But I think that's the point of a protected class.

But who decided "the purpose of the car"? If I make a custom car for the purpose of the car to be on display, but a person who wants to buy it wants to drive it. Do I, as the person who made the car, have to now consider my sculpture as plain old automobile? Or is it still a work of art to me?

How about the artist? If I want to commission an artist to make a pro-gay marriage wedding kindling in the form of a painting so I can burn it at an anti-gay wedding rally, does that change it from art to kindling? I don't think so.

Oh boy, that's the ***** in all of this, isn't it? I don't have a great answer to that. Obviously, the courts in hindsight can decide the purpose. A contract could define a purpose, but do we really want a society where we have to sign a contract just to buy a wedding cake?

You're good at giving me plenty to mentally chew on.

But the wedding reception is definitely part of the wedding celebration and thus part of the wedding.

Great point. As I said in another post, if physical presence is required I could see that as being a legitimate concern. But where do we draw the line? Could a third party beverage distributor refuse service to a gay wedding reception (assuming they did not provide bartenders)? Seems kind of ridiculous to me. But an event planner objecting to doing a gay wedding reception because he/she is required to be at the celebration as part of providing his service is not as ridiculous.

[ShockTalk]

Some businesses promote that they are a "Christian" business. That, in and of itself, does not necessarily mean they would refuse service to anyone, but that they are trying to attract business of other Christians. How do you all stand with those who target such businesses, forcing them into compromising positions with their faith or try to legally put them out of business if they won't compromise their faith.

[wufan]

I’m against that. Sounds like persecution in the scenario you present.