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Could have been an Nth dimensional chess ruling there then? Something narrow enough to get conservatives to sign on but that actually provides precedent for clamping down on this kind of discrimination? Which would make it different from the use of Heller since what was just Scalia being 'clever' and trying to undercut his more liberal peers.
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Jun 8, 2018 08:33
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MrNemo posted:Could have been an Nth dimensional chess ruling there then? Something narrow enough to get conservatives to sign on but that actually provides precedent for clamping down on this kind of discrimination? The people with a long history of wanting to treat gays like subhuman filth or turn the US in to a Christian theocracy are not secretly trying to protect gays and prevent the religious right from gaining more power.
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Jun 8, 2018 13:56
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Evil Fluffy posted:The people with a long history of wanting to treat gays like subhuman filth or turn the US in to a Christian theocracy are not secretly trying to protect gays and prevent the religious right from gaining more power. Yeah but the decision was written by Kennedy (IIRC) and he's generally been pretty reliable as a gay rights court vote. It's quite possible that language was in there as something he was more comfortable with in a decision the conservative wing was happy to make. And the result is precedent setting in terms of 'it's wrong to discriminate against gay people when providing a service but the bodies dealing with it need to be super nice'. Setting up precedent that makes religious bigotry much less explicit than the city of Hayalea could be an extra fun bit. If someone says something negative about Islam in a public forum in a review of a mosque funding application I guess based on this standard the Mosque could sue for religious discrimination?
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Jun 8, 2018 14:36
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MrNemo posted:Yeah but the decision was written by Kennedy (IIRC) and he's generally been pretty reliable as a gay rights court vote. It's quite possible that language was in there as something he was more comfortable with in a decision the conservative wing was happy to make. And the result is precedent setting in terms of 'it's wrong to discriminate against gay people when providing a service but the bodies dealing with it need to be super nice'. Setting up precedent that makes religious bigotry much less explicit than the city of Hayalea could be an extra fun bit. If someone says something negative about Islam in a public forum in a review of a mosque funding application I guess based on this standard the Mosque could sue for religious discrimination? From the Opening Arguments/Serious Inquiries Only followup with Andrew Seidel, they really poo-pooed the idea that there was any sort of actual 'test' created here since "clear and impermissible hostility" doesn't really have a definition. BUT, on the positive side, since Christians are presently the majority, the real clear and impermissible hostility is currently actually aimed at minority religions and atheists, and Andrew was already writing amendments (not the right word) to his arguments in several cases to bring this argument to bear. Presently the standard for ruling something impermissible based on the statements of the legislators is Church of the Lukumi Babalu Aye v. City of Hialeah, where the facts were essentially that the City said "We are passing this law banning slaughter of animals to keep out that church of Santeria", which is an incredibly high bar that is rarely met. This ruling makes it very plausible to bring in a lower standard of 'hostility', although it obviously hasn't had a chance to solidify into a clear rule. As a side note, the Oyez site is really amazing for listening to old SCOTUS arguments. Really interesting to listen to the important cases, and the boring old cases about maritime law and application of the Railroad Act to work complaints of Stevedores and such are nice to listen to while going to sleep.
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Jun 8, 2018 14:52
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Devor posted:As a side note, the Oyez site is really amazing for listening to old SCOTUS arguments. Never listen to the arguments - read the transcripts instead. Listening to the arguments makes it obvious that your rights are ultimately decided by your (often clueless) grandparents.
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Jun 8, 2018 14:58
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ulmont posted:Never listen to the arguments - read the transcripts instead. Listening to the arguments makes it obvious that your rights are ultimately decided by your (often clueless) grandparents. That's one of the reasons I find the old arguments from the 50's and 60's soothing, a couple of them are dead ringers for my Granddad voice-wise. And Rehnquist is like the Voice of God when he gets angry, particularly when he's admonishing the crowd to be quiet.
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Jun 8, 2018 15:04
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VitalSigns posted:It wasn't about the baker being required to voice a particular opinion and rejecting it based on content, no one is ever required to put *any* message a customer asks for on anything. Also, the second part is not accurate: there is disagreement about what the baker said he would or wouldn't do. Mr. Nice! posted:No it isn't. It's about whether you can refuse service to gay people. The problem I have here is that people are trying to thread this needle where a gay couple can force a conservative Christian baker to design a wedding cake for their marriage, but a conservative Christian can't force a Muslim LGBTQ baker to design a cake for their "Christ is Life, Sin is Death" party for no reason other than their moral intuition that conservative Christians are assholes.
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Jun 8, 2018 18:26
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Dead Reckoning posted:
A Muslim lgbtq Baker should be forced to bake a cake for that party if they'd make the exact same cake for another party.
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Jun 8, 2018 18:35
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Dead Reckoning posted:The problem I have here is that people are trying to thread this needle where a gay couple can force a conservative Christian baker to design a wedding cake for their marriage, but a conservative Christian can't force a Muslim LGBTQ baker to design a cake for their "Christ is Life, Sin is Death" party for no reason other than their moral intuition that conservative Christians are assholes. Huh. Dude this is textbook religious discrimination and would get slapped down in a heartbeat. E: They could say "we refuse to write this specific message on your cake" but if the Christians said "no we want the exact same cake you custom-made for that Gay Black Muslim Ramadan orgy" the baker could not legally say "no you can't have it because you're a Christian" VitalSigns fucked around with this message at 18:49 on Jun 8, 2018 |
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Jun 8, 2018 18:36
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Dead Reckoning posted:Also, the second part is not accurate: there is disagreement about what the baker said he would or wouldn't do. No there isn't Colorado Civil Rights Commission posted:Within moments, however, the couple was denied service. The bakery would sell them neither a custom-designed cake nor a cake identical to one the bakery had sold to its other customers. VitalSigns fucked around with this message at 18:44 on Jun 8, 2018 |
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Jun 8, 2018 18:39
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even for “a nondescript cake that would have been suitable for consumption at any wedding.”
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Like literally Kagan addressed this exact argument in her concurrence.quote:What makes the state agencies’ consideration yet more disquieting is that a proper basis for distinguishing the cases was available—in fact, was obvious. The Colorado Anti-Discrimination Act (CADA) makes it unlawful for a place of public accommodation to deny “the full and equal enjoyment” of goods and services to individuals based on certain characteristics, including sexual orientation and creed. Colo. Rev. Stat. §24–34–601(2)(a) (2017). The three bakers in the Jack cases did not violate that law. Jack requested them to make a cake (one denigrating gay people and same-sex marriage) that they would not have made for any customer. In refusing that request, the bakers did not single out Jack because of his religion, but instead treated him in the same way they would have treated anyone else—just as CADA requires. By contrast, the same-sex couple in this case requested a wedding cake that Phillips would have made for an opposite-sex couple. In refusing that request, Phillips contravened CADA’s demand that customers receive “the full and equal enjoyment” of public accommodations irrespective of their sexual orientation. Ibid. The different outcomes in the Jack cases and the Phillips case could thus have been justified by a plain reading and neutral application of Colorado law—untainted by any bias against a religious belief.
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Jun 8, 2018 18:40
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Dead Reckoning posted:If the baker refused to make a gay wedding cake for a straight customer, would you find that acceptable? There is no such thing as a straight or gay wedding cake. Refusing to sell a wedding cake to a gay customer is nakedly discriminatory. It's the same situation as if an ultra-orthodox jew refused to sell a Mazda to a woman because he didn't believe women should drive.
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Jun 8, 2018 18:41
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moths posted:There is no such thing as a straight or gay wedding cake.  No it's not sex discrimination if he refused to sell lady-driver cars to men too! It's just that coincidentally every car a man buys isn't a lady-driver car so it never comes up, but theoretically this is equal!I think the fundamental problem with this conversation might be that Dead Reckoning imagines homosexuals exclusively eat penis-shaped rainbow cakes with semen frosting instead of the same boring-rear end white fondant encrusted bullshit that straight people have at their weddings, and that therefore there's such a thing as "gay wedding cakes" which straight couples could buy too.
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Jun 8, 2018 18:54
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Btw before you argue that obviously the gay couple was just making it all up as part of their evil plan to persecute Christian bakers, the baker confirmed in his brief that he would not even sell them a nondescript white cake: http://www.scotusblog.com/wp-content/uploads/2016/12/16-111-pet-cert-reply.pdf "Masterpiece Cake Shop petition posted:Moreover, forcing Phillips to create a “nondescript” custom wedding cake for a same-sex couple would still compel him to speak a well-defined (unconscionable) message, which is “that a wedding has occurred, a marriage has begun, and the couple should be celebrated,” Literally a boring white cake with nothing on it magically becomes compelled speech if a gay couple eat it later.
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Jun 8, 2018 19:14
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moths posted:There is no such thing as a straight or gay wedding cake. Chin Strap posted:A Muslim lgbtq Baker should be forced to bake a cake for that party if they'd make the exact same cake for another party. VitalSigns posted:Btw before you argue that obviously the gay couple was just making it all up as part of their evil plan to persecute Christian bakers, the baker confirmed in his brief that he would not even sell them a nondescript white cake: Thomas points out in his concurrence that, in Hurley v. GLIB, the justices allowed parade organizers to exclude a gay group from marching with them, because the state court held that the parade, an act of speech itself, was a public accommodation. If making custom cakes is speech, the same should apply. Dead Reckoning fucked around with this message at 20:38 on Jun 8, 2018 |
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Jun 8, 2018 20:27
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Dead Reckoning posted:No, I'm asking if a heterosexual customer came in and said, "I want you to design and create a cake to celebrate my son's same-sex wedding," would the baker be unable to refuse because it would violate equal protection? quote:So if Masterpiece Cake Shop made a cake for a straight wedding that said, "God Bless This Union", would they also be compelled to make that exact same cake for a gay couple? quote:The word "custom" is important there. When you're asking someone to design something for you, it's speech. From that reply: "the Colorado Court of Appeals acknowledged that Craig and Mullins 'requested that Phillips design and create a cake to celebrate their same-sex wedding.'" Even if the cake doesn't have any particular gay themes, the fact that the artist is doing original design work makes it speech. edit: Dead Reckoning posted:Thomas points out in his concurrence that, in Hurley v. GLIB, the justices allowed parade organizers to exclude a gay group from marching with them, because the state court held that the parade, an act of speech itself, was a public accommodation. If making custom cakes is speech, the same should apply.
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Jun 8, 2018 20:41
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Dead Reckoning posted:No, I'm asking if a heterosexual customer came in and said, "I want you to design and create a cake to celebrate my son's same-sex wedding," would the baker be unable to refuse because it would violate equal protection? Dead Reckoning posted:So if Masterpiece Cake Shop made a cake for a straight wedding that said, "God Bless This Union", would they also be compelled to make that exact same cake for a gay couple? Dead Reckoning posted:The word "custom" is important there. When you're asking someone to design something for you, it's speech. From that reply: "the Colorado Court of Appeals acknowledged that Craig and Mullins 'requested that Phillips design and create a cake to celebrate their same-sex wedding.'" Even if the cake doesn't have any particular gay themes, the fact that the artist is doing original design work makes it speech. quote:The bakery would sell them neither a custom-designed cake nor a cake identical to one the bakery had sold to its other customers. It wasn't the "original design" part that was the problem (it was who would be eating it)
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Jun 8, 2018 20:43
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DR: but what about the owner's we reserve the right to refuse service to anyone sign?! They don't need a reason! The government's forcing them to do the thing they do for all of their other customers! [Ignores the fact that the reason was given] [Ignores the fact that the reason was that the customers were two men and not a man and a woman] [Ignores the fact that that sign doesn't apply to the reasons that involve race, color, national origin, gender, or sex] [Ignores the fact that the government forcing you to treat customers equally without discrimination according to the above classes is part of the remedy, and not the injustice here]
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Jun 8, 2018 21:02
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I don't know how many ways this needs to loop on itself before the point sinks in that you can not refuse service to a member of a protected class on the basis of their membership in that protected class for a service you give to people outside that protected class. It is almost like you are refusing to argue in good faith about this.
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Jun 8, 2018 21:04
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twodot posted:If the refusal was based on the fact that a person in a protected class would derive benefit from their sale of goods or services then obviously yes? twodot posted:Yes obviously? Like they have demonstrated an ability and a willingness to produce and sell an item, refusing to produce and sell that exact same item on the basis the customer is in a protected class is like the definition of illegal discrimination. twodot posted:Caring about speech here is stupid, if you create a business which is a public accommodation where you sell speech to people, you don't get to refuse to sell speech to people on the basis that they're a member of a protected class. That's just a requirement of being a public accommodation. twodot posted:Do you really think "Thomas had a bad opinion" is going to be a tough hurdle for people who disagree with you to clear?
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Jun 8, 2018 21:05
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Dead Reckoning posted:The refusal isn't on the basis that gay people might eat the cake, it's on the basis of refusing to endorse a gay wedding. Hmmmm, yes, how is allowing a group to determine membership into its group different than producing a generic wedding cake. I dunno this one sure will require some 
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Jun 8, 2018 21:11
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There is no such thing as a non-custom wedding cake from this baker and most others. He would not make them the same cake he made another couple. It has nothing to do with messaging. That was the baker’s argument and both colorado and the SCOTUS rejected it.
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Jun 8, 2018 21:13
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Dead Reckoning posted:The refusal isn't on the basis that gay people might eat the cake, it's on the basis of refusing to endorse a gay wedding. It's a cake shop, not a wedding endorsement shop. Could you answer me whether a shop should be allowed to refuse "Happy Birthday" cakes to black people on the basis of refusing to endorse a party for a black person?
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Jun 8, 2018 21:16
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Dead Reckoning posted:The refusal isn't on the basis that gay people might eat the cake, it's on the basis of refusing to endorse a gay wedding. No it's not Dead Reckoning posted:That's the thing though, he's not refusing to sell to them because they're gay, Yes, he is. He says this. This is what he says. This is what he did. His argument is that he wants to keep doing this. El Mero Mero fucked around with this message at 21:40 on Jun 8, 2018 |
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Jun 8, 2018 21:18
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Dead Reckoning posted:The refusal isn't on the basis that gay people might eat the cake, it's on the basis of refusing to endorse a gay wedding. quote:This is textbook compelled speech though. If Joe Bob sells some business a sign saying "Joe Bob Approved!" with his smiling face on it, he doesn't have to sell the same sign to the Westboro Baptist Church on demand. quote:That's the thing though, he's not refusing to sell to them because they're gay, the bake shop was willing to provide brownies, cookies, etc. to the couple. He wasn't willing to do custom work for an event whose message he disagreed with. Also, my understanding is that the Supreme Court has held that people who sell their speech can in fact refuse to perform on the basis of conscience. Just because a Christian music group makes themselves available for event bookings does not mean they are required to play the Church of Satan Black Mass. quote:My question would be, how is a Masterpiece Cake Shop custom cake different from the Boston War Vets parade then? Why is one speech, and the other not?
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Jun 8, 2018 21:21
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Even if we assume that the CCRC is lying in their brief because they hate Christians and are in on the secret gay plot to persecute religious bakers everywhere, and the baker totally would have just copied a cake he did for someone else rather than do an original design just for them, then "actually I never said that and I will make them a non-custom wedding cake come on by" would have been his best legal defense super-weird that instead of making it he submitted a petition saying he wouldn't make them any kind of wedding cake no matter what was on it Super weird that his legal team didn't suggest this sure-fire strategy!
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Jun 8, 2018 21:25
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Dead Reckoning posted:The refusal isn't on the basis that gay people might eat the cake, it's on the basis of refusing to endorse a gay wedding. The first amendment doesn't allow you to deny services to an individual counter to anti-discrimination law on the basis of your religion, sorry.
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Jun 8, 2018 21:27
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El Mero Mero posted:[Ignores the fact that the reason was that the customers were two men and not a man and a woman] Dameius posted:I don't know how many ways this needs to loop on itself before the point sinks in that you can not refuse service to a member of a protected class on the basis of their membership in that protected class for a service you give to people outside that protected class. Stickman posted:The first amendment doesn't allow you to deny services to an individual counter to anti-discrimination law on the basis of your religion, sorry. Mr. Nice! posted:There is no such thing as a non-custom wedding cake from this baker and most others. He would not make them the same cake he made another couple. It has nothing to do with messaging. That was the baker’s argument and both colorado and the SCOTUS rejected it. Raldikuk posted:Hmmmm, yes, how is allowing a group to determine membership into its group different than producing a generic wedding cake. I dunno this one sure will require some Also: here's a Stanford professor and former Circuit Judge making an argument that is basically what I am trying to say. People are tying themselves in knots because were this any other compelled speech question, the answer would be obvious. Dead Reckoning fucked around with this message at 21:45 on Jun 8, 2018 |
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Jun 8, 2018 21:43
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Dead Reckoning posted:This is the part where you are wrong. It is uncontroversial that the baker was in fact willing to sell food to gay people. No he wasn’t. They wanted a wedding cake. He categorically refused to make them a wedding cake. He was refusing to do so because they were gay. They didn’t want cookies or a birthday cake. quote:I already addressed the "identical cake" question. Even if two pieces of art are otherwise physically identical, they are still both speech. If Joe Bob sells some business a sign saying "Joe Bob Approved!" with his smiling face on it, should he have to sell the same sign to the Westboro Baptist Church on demand? That doesn’t address the question as you’re not comparing two of the same things. In one case you have a sign maker being asked to put something they find personally offensive on a sign. On the other you have someone asking for the exact same cake someone else walked out with. If someone from WBC went to Joe Bob’s sign and was denied the ability to purchase the exact same sign someone else just walked out with because of their religious affiliation this would run afoul any anti-discrimination law.
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Jun 8, 2018 21:48
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Dead Reckoning posted:I already addressed the "identical cake" question. Even if two pieces of art are otherwise physically identical, they are still both speech. If Joe Bob sells some business a sign saying "Joe Bob Approved!" with his smiling face on it, should he have to sell the same sign to the Westboro Baptist Church on demand? quote:Also: here's a Stanford professor and former Circuit Judge making an argument that is basically what I am trying to say. People are tying themselves in knots because were this any other compelled speech question, the answer would be obvious. Your article posted:Using recent examples involving dressmakers refusing to create designs for the First Lady at the Trump inauguration, this paper explains why Masterpiece Cakeshop should be decided in favor the baker who refuses to create a wedding cake for a same-sex wedding ceremony
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Jun 8, 2018 21:49
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The baker argued that he shouldn’t have to bake the cake because of the message. This was rejected by every legal body he attempted this defense. You’re arguing for something that every level of court disregarded.
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Jun 8, 2018 21:50
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twodot posted:Which is still refusing to provide a service which you provide to the public to people of a protected class on the basis they are in that protected class. If making a cake for a wedding endorses that wedding, then these people have decided to run a business which provides a service of endorsing weddings to the public, and they don't get to discriminate against people on the basis they're a member of a protected class. twodot posted:This is clearly a distraction. twodot posted:You're asking how a storefront that sells a service to public effectively anonymous people is different from one-off parades? Like I'll go ahead and say that any activity that requires a city permit should be subject to city anti-discrimination laws, but if I wanted to distinguish a shop from a parade you don't think I could? twodot posted:Well known protected class: The First Lady of the United States of America. Dead Reckoning fucked around with this message at 22:03 on Jun 8, 2018 |
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Jun 8, 2018 21:53
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Please explain how the following sentences are substantively different and if any of them should be constitutionally protected: 1. I refuse to bake you a cake of any kind because you are a gay couple getting married and I refuse to provide service to gay couples wanting to get married due to my religion. 2. I refuse to bake you a cake of any kind because you are a black couple getting married and I refuse to provide service to black couples wanting to get married due to my religion. 3. I refuse to bake you a cake of any kind because you are an interracial couple getting married and I refuse to provide service to interracial couples wanting to get married due to my religion. Edit: Before you try and weasel this, the speaker here has prior history and stated intent of future action to bake wedding cakes for straight couples. Dameius fucked around with this message at 21:57 on Jun 8, 2018 |
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Jun 8, 2018 21:54
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No miss you can't buy this Happy Graduation cake because I refuse to endorse women getting an education. Why no, this isn't on the basis of your sex, I also won't sell it to a man if he's buying it for a woman's graduation, perfect equality 
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Jun 8, 2018 22:01
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Dead Reckoning posted:Endorsements are speech, it doesn't matter if you get paid to do them. quote:Why? Religion is a protected class. If a musical performance is speech, and can be refused for moral reasons, why is artistic creation different? quote:That's the thing, the supreme court issued a unanimous opinion in 1994 that the parade organizers could discriminate on what messages they were willing to include. I want an explanation of why designing and creating a custom dress or cake or sculpture isn't speech, but a parade is. If it's speech, then there is first amendment protection. edit: quote:Protected class doesn't factor into it: if someone is a member of a protected class, you aren't required to endorse their message. twodot fucked around with this message at 22:12 on Jun 8, 2018 |
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Jun 8, 2018 22:05
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twodot posted:If you sell endorsements to the public, then you get to obey anti-discriminations laws regarding your endorsements. I don't care whether you call it speech or not... twodot posted:Because a band that does one off private engagements is clearly different from a store selling cakes to the public? twodot posted:The Supreme Court was dumb. Parades (and any other activity permitted by the government and held in public) should obey local anti-discrimination laws. If this interferes with people's ability to run anti-gay parades, so be it. Dead Reckoning fucked around with this message at 22:22 on Jun 8, 2018 |
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Jun 8, 2018 22:20
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Dead Reckoning posted:Sofia Vergara has made $90 million+ endorsing various companies. It is unarguably a business for her and her agent. Are you seriously arguing that she could not refuse to endorse the Westboro Baptist Church on the basis of their beliefs? quote:Why are one off wedding cakes different from one off performances? quote:So if the Westboro Baptist Church wishes to march in the S.F. Pride Parade, the organizers should have no right to deny them? twodot fucked around with this message at 22:41 on Jun 8, 2018 |
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Jun 8, 2018 22:28
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twodot posted:Is she selling her endorsements to the public? I can walk up to Sofia Vergara and say "I am an anonymous member of the public here's 1 million dollars now endorse me" and she will? quote:Phillips tailors that message to each “specific couple” through an artistic design process that includes an in-depth “consultation with the customer(s) in order to get to know their desires, their personalities, their personal preferences and learn about their wedding ceremony and celebration.” Only then is he able to “sketch out the cake on paper,” “bake a sheet cake and then sculpt the desired shape or design,” mix “the desired colors for frosting and decorations,” “actually create the cake itself and decorate it” through painting and other artistry, and then determine which “symbolic items” to place “on the top.” twodot posted:Because they are selling one off wedding cakes to members of the public from a storefront. If this is a band where during posted studio hours I can walk up to them say "Here's 20 bucks write and play me a song" and they will, then I will agree they should have to follow anti-discrimination laws. twodot posted:They should have no right to deny them on the basis of their status as protected class. Valid reasons to deny them would include but not be limited to: safety concerns, the parade is already full, their float/whatever does not follow whatever rules they have (edit: which would presumably include not being overtly hostile).  Sorry, the "your speech might incense a hostile crowd and we can't afford security" method of roundabout censorship of unpopular views has already been litigated:Forsyth County v. Nationalist Movement posted:The costs to which petitioner refers are those associated with the public’s reaction to the speech. Listeners’ reaction to speech is not a content-neutral basis for regulation. See id., at 321 (opinion of O’Connor, J.); id., at 334 (opinion of Brennan, J.); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 55-56 (1988); Murdock v. Pennsylvania, 319 U. S. 105, 116 (1943); cf. Schneider v. State (Town of Irvington), 308 U. S. 147, 162 (1939) (fact that city is financially burdened when listeners throw leaflets on the street does not justify restriction on distribution of leaflets). Speech cannot be financially *135 burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.[12] See Gooding v. Wilson, 405 U. S. 518 (1972); Terminiello v. Chicago, 337 U. S. 1 (1949).
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Jun 8, 2018 22:44
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hmmm wonder why far-right homophobes bankrolled masterpiece's case and supported them with briefs. must just be they love free expression so much.
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Jun 8, 2018 22:44
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Dead Reckoning posted:I've never tried to secure a celebrity endorsement, but my understanding is that, yes, you call their agent, who will determine if the celebrity wants to endorse your product or service, and then negotiate a fee. Seems very similar to: quote:Even in your example, you cannot say "Sing me a song about the glory of Jesus Christ our Lord and Savior" and then sue them if they don't. If Masterpiece did not have a storefront and did wedding cakes by appointment only, would you be OK with them refusing to design and create cakes celebrating gay weddings? Your entire argument seems to hinge on the idea that nothing is a "public accommodation" unless it has a storefront and hours. quote:
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Jun 8, 2018 22:55
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