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You asked how writing names on a cake is creative expression that shouldn’t be compellable. I’m saying it shouldn’t have to be creative expression for it not to be compellable; it should be sufficient for it to be an explicit message. That is a line I think should be kept very clear.
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Jun 18, 2019 19:02
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Do business' have any grounds to refuse service to whoever they feel like anymore? Obviously, they can't target gay/black/protected folks now, but do the "no shirt, no service" rules still fly?
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Jun 18, 2019 19:09
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Adlai Stevenson posted:Carpenter v Murphy is what I'm really waiting for. I don't think Murphy will win, as amazing as that would be, but I'm not sure what needle the court will thread to both maintain a precedent they're otherwise satisfied with but also prevent improper jurisdiction claims from popping up all across eastern Oklahoma. quote:The parties, the Solicitor General, and the Muscogee (Creek) Nation are directed to file supplemental briefs addressing the following two questions: Nissin Cup Nudist posted:Do business' have any grounds to refuse service to whoever they feel like anymore? Obviously, they can't target gay/black/protected folks now, but do the "no shirt, no service" rules still fly? Otherwise, yes. Same concept as "at-will employment" - you can't fire anyone for an impermissible reason, but absent that you can go nuts.
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Jun 18, 2019 19:13
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Nissin Cup Nudist posted:Do business' have any grounds to refuse service to whoever they feel like anymore? Obviously, they can't target gay/black/protected folks now, but do the "no shirt, no service" rules still fly? Sure. Businesses can discriminate in all kinds of ways, so long as that discrimination is not based on certain protected categories of people. Like, a store can refuse to allow in a known shoplifter, or people improperly dressed for health/cleanliness reasons, or whatever. "Because you're left-handed" is not a valid reason.
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Jun 18, 2019 19:15
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ulmont posted:https://www.scotusblog.com/wp-content/uploads/2018/12/Request-for-additional-briefing.pdf Thank you for the refresher, but golly, that was due January I get that this has potential massive impact but I'm impatient now
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Jun 18, 2019 19:16
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Deteriorata posted:Sure. Businesses can discriminate in all kinds of ways, so long as that discrimination is not based on certain protected categories of people. Like, a store can refuse to allow in a known shoplifter, or people improperly dressed for health/cleanliness reasons, or whatever. "Because you're left-handed" is not a valid reason. If Masterpiece's argument was something like "We're not discriminating because they're gay, we're discriminating for 'vaguely plausible cover reason,'" would that have been legally acceptable? Left-handedness is a protected class?
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Jun 18, 2019 19:23
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rjmccall posted:You asked how writing names on a cake is creative expression that shouldn’t be compellable. I’m saying it shouldn’t have to be creative expression for it not to be compellable; it should be sufficient for it to be an explicit message. That is a line I think should be kept very clear. So when you say "shouldn't be compellabe", you mean that the religious discrimination angle is superfluous and so long as you could interpret your product as having a message, you should be able to deny that product to anyone for any reason whatsoever? E: Can a business refuse to print a receipt for a customer they don't like? Nissin Cup Nudist posted:If Masterpiece's argument was something like "We're not discriminating because they're gay, we're discriminating for 'vaguely plausible cover reason,'" would that have been legally acceptable? This is a non-sequitur because they don't have a plausible cover reason and no blanket plausible cover reason exists. They can certainly refuse service to a lgbt couple or black couple or muslim couple that refuses to wear shirts into their shot. If you want to argue for protection under anti-discrimination laws, you have to argue that the discrimination has occurred on the basis of the protected attribute, which it certainly has here by the very nature of the owner's arguments. Stickman fucked around with this message at 19:40 on Jun 18, 2019 |
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Jun 18, 2019 19:24
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Nissin Cup Nudist posted:Do business' have any grounds to refuse service to whoever they feel like anymore? Obviously, they can't target gay/black/protected folks now, but do the "no shirt, no service" rules still fly? "Shirtless people" aren't a protected class under any federal or state law that I know of, but theoretically I don't see any reason why you couldn't write a law to ban "no shirt" rules
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Jun 18, 2019 19:44
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Stickman posted:So when you say "shouldn't be compellabe", you mean that the religious discrimination angle is superfluous and so long as you could interpret your product as having a message, you should be able to deny that product to anyone for any reason whatsoever? No, and I think I’ve been pretty clear about this. I think there’s a big difference between (1) being asked to make/do something generic that gains meaning when someone else uses/extends it in a particular way and (2) being asked to make/do something yourself that has independent meaning, even when it’s understood to be on behalf of other people.
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Jun 18, 2019 19:49
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Rigel posted:This is part of the reason why I take the coward's way out and think the constitution is silent on this. (Then states can then do whatever flies in their courts) Because I don't want to draw the line, but I also wouldn't put that line off the scale if I had to. Stickman posted:So when you say "shouldn't be compellabe", you mean that the religious discrimination angle is superfluous and so long as you could interpret your product as having a message, you should be able to deny that product to anyone for any reason whatsoever?
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Jun 18, 2019 19:55
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There's a whole other line of cases involving wedding photographers that would be better vehicles for resolving the core issues, but the Court keeps putting them off in favor of more and more servings of cake...
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Jun 18, 2019 20:01
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vyelkin posted:There's no difference between a gay wedding cake and a straight wedding cake, both are just wedding cakes because a wedding is a wedding. By refusing to make a wedding cake for a gay couple that the baker would have made for a straight couple, the baker discriminated against a protected class of people under Colorado law. It doesn't really matter though. If a choir is willing to perform Amazing Grace at a Unitarian Universalist picnic, but not the Southern Baptist Convention, because they disagree with their beliefs, they aren't engaging in impermissible religious discrimination.
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Jun 18, 2019 20:02
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rjmccall posted:No, and I think I’ve been pretty clear about this. I think there’s a big difference between (1) being asked to make/do something generic that gains meaning when someone else uses/extends it in a particular way and (2) being asked to make/do something yourself that has independent meaning, even when it’s understood to be on behalf of other people. How is the "meaning" of writing names on the cake any different than the meaning of baking a wedding cake itself for a same-sex wedding? If you're stretching that far for "expression", either one says "these gay, gay people are getting married".
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Jun 18, 2019 20:04
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Dead Reckoning posted:IIRC, the cake Craig and Mullens ended up with revealed a rainbow flag motif when cut, so slight differences there. I would hazard a guess that the baker in that case would have happily made a rainbow cake for a straight couple if the rationale was something like "we really like rainbows" or "we saw a rainbow on our first date and thought it was a sign from God that we should be together".
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Jun 18, 2019 20:05
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Nissin Cup Nudist posted:If Masterpiece's argument was something like "We're not discriminating because they're gay, we're discriminating for 'vaguely plausible cover reason,'" would that have been legally acceptable? If it's at least passably plausible and you don't have something that would suggest you're actually targeting a protected class and lying about it, sure. The problem comes when someone wears their bigotry on their sleeve/facebook page and even though they provide a faintly plausible fig leaf of cover there's plenty of evidence/posts proving they're intentionally discriminatory. Personally I'd prefer seeing courts treat disparate impacts as valid evidence of discrimination more often and deal with it more strongly but that's more about racial discrimination than sexuality.
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Jun 18, 2019 20:06
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Masterpiece Cakeshop didnt even hear the description of the cake before they refused. As soon as they heard it was for a gay wedding they said they wouldn't make a cake for it.
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Jun 18, 2019 20:10
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vyelkin posted:And no, religious freedom does not override the right to equal treatment, otherwise that would very rapidly become the One Weird Trick to overrule literally everything else in the constitution and allow people to recreate sundown towns because suddenly the entire town subscribes to the local branch of Christianity that says you don't believe in doing business with black people. Which is, of course, exactly the point. Thranguy posted:There's a whole other line of cases involving wedding photographers that would be better vehicles for resolving the core issues, but the Court keeps putting them off in favor of more and more servings of cake... A wedding photographer is providing an active service and is thus easily distinguishable from other forms of commercial activity. A cake is a good offered for sale, so bakeries open the door to deconstructing a wider swathe of business regulation generally. My religion says publishing the ingredient list of these prepackaged cakes would be forced expression against my religious beliefs. I have to sell my cakes un-labelled. Hieronymous Alloy fucked around with this message at 20:19 on Jun 18, 2019 |
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Jun 18, 2019 20:15
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Even photographers who want to discriminate against same-sex couples have the unenviable position of needing to support religion-based discrimination against people of color and miscegenation in order to secure their own right to public bigotry.
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Jun 18, 2019 20:25
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vyelkin posted:I would hazard a guess that the baker in that case would have happily made a rainbow cake for a straight couple if the rationale was something like "we really like rainbows" or "we saw a rainbow on our first date and thought it was a sign from God that we should be together". There is also the side question of whether making a custom wedding cake is expressive conduct, which seems like a really obvious yes.
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Jun 18, 2019 21:13
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Dead Reckoning posted:It's not relevant though. The issue is whether people who engage in expressive conduct as their business can be forced to express a message they object to if the potential customer can somehow tie it to membership in a protected class. I think the answer should be a firm "no", for all the reasons I outlined, and I think most people would agree if this case was about the Westboro Baptist Church, rather than a gay couple. That's not true. Masterpiece Cakeshop did not refuse to make a cake with a specific message supporting gay marriage, or a cake with two grooms on it, or a cake with rainbow filling. There wasn't a message they refused to put on the cake, because no message was discussed. They refused to make a cake because the people the cake was for were gay. Masterpiece Cakeshop refused them before any discussion of the cake design was made.
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Jun 18, 2019 21:18
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Dead Reckoning posted:
One possible distinction would be between custom, prior order work (a true custom cake) as expressive conduct, while off the shelf purchases of previously crafted work is not such expressive conduct, but just business. Are you selecting from predetermined designs, or ordering a new custom creation? The court doesn't want the case to be decided on those grounds though, especially since the factual record wasn't clear as to which side of that divide the cake in MBS fell on. Hieronymous Alloy fucked around with this message at 21:21 on Jun 18, 2019 |
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Jun 18, 2019 21:18
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Piell posted:Masterpiece Cakeshop didnt even hear the description of the cake before they refused. As soon as they heard it was for a gay wedding they said they wouldn't make a cake for it. The courts in Colorado really screwed this part up which eventually gave the SCOTUS a way out. From what I understand there was a dispute of the fact in Colorado where the baker (probably lying) said "oh no, I would have sold them a cake off the shelf, but they wanted a really gay cake", and the court basically said "you know what, we'll just believe you, but you still lose." Then the SCOTUS said "hey, according to the record, he was willing to bake them a normal wedding cake".
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Jun 18, 2019 21:29
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IIRC, he wasn't willing to do any custom cakes for a gay wedding, but would sell them a birthday cake or off the shelf cake. Piell posted:That's not true. Masterpiece Cakeshop did not refuse to make a cake with a specific message supporting gay marriage, or a cake with two grooms on it, or a cake with rainbow filling. There wasn't a message they refused to put on the cake, because no message was discussed. Hieronymous Alloy posted:One possible distinction would be between custom, prior order work (a true custom cake) as expressive conduct, while off the shelf purchases of previously crafted work is not such expressive conduct, but just business. Are you selecting from predetermined designs, or ordering a new custom creation?
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Jun 18, 2019 21:34
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Dead Reckoning posted:
The masterpiece cake shop website states "Select from one of our galleries or order a custom design. " So they do both. I don't think this Court wants a narrow ruling on the special ordering of custom artworks. What they want is to muddy the waters between "special ordered custom artworks" and "any commercial sale of anything with a design element in it," so that they can deconstruct the various civil rights cases and effectively re-legalize discrimination via One Weird (1st amendment!) Trick. Hieronymous Alloy fucked around with this message at 21:42 on Jun 18, 2019 |
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Jun 18, 2019 21:40
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Dead Reckoning posted:It's not relevant though. The kind of cake they eventually got isn't relevant either because he refused before he even heard what they wanted. It wasn't content-based discrimination ("I won't make a rainbow wedding cake for anybody") it was class-based discrimination ("I won't make any wedding cake for you, even if it's a copy of one I made for someone else"). That's why the reasoning in the decision couldn't be what you're claiming here because it contradicts the facts of the case. So they had to use the pretext that Colorado enforced it in a "mean" way instead of ruling that the baker didn't violate the law or that the law itself was unconstitutional.
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Jun 18, 2019 21:50
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Dead Reckoning posted:IIRC, he wasn't willing to do any custom cakes for a gay wedding, but would sell them a birthday cake or off the shelf cake. I literally quoted you all of the relevant language from the majority opinion, concurrence, and dissent, since you seem unwilling to read what the Court wrote. https://forums.somethingawful.com/showthread.php?threadid=3590854&userid=0&perpage=40&pagenumber=532#post496017770
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Jun 18, 2019 21:51
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VitalSigns posted:
Honestly, I'm kinda surprised they didn't just revoke cert as improvidently granted. The whole point was to address the 1st amendment issue, and they couldn't reach that.
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Jun 18, 2019 21:56
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Hieronymous Alloy posted:I don't think this Court wants a narrow ruling on the special ordering of custom artworks. VitalSigns posted:The kind of cake they eventually got isn't relevant either because he refused before he even heard what they wanted. ulmont posted:I literally quoted you all of the relevant language from the majority opinion, concurrence, and dissent, since you seem unwilling to read what the Court wrote.
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Jun 18, 2019 22:08
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Dead Reckoning posted:I don't see how "I won't make a cake that celebrates a gay marriage" isn't content based. Consider the following: The gay couple gets gay married, and decide to build a house to their own specification. So they sit down with the architect, the electrician, the contractors, etc, and plan out the building. Then they go to a plumber. "Hey, we just got married, and we'd like to hire you to set up the plumbing for our new home. Can we sit down and make some plans?" "Oh, I'm sorry, I have to refuse, because providing you this service would mean endorsing the fact that you're gay married and it's against my religion." Is this discrimination, yes or no? If yes, how does it differ from the cake shop case? If no, would it be discrimination if it were an interracial heterosexual couple?
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Jun 18, 2019 22:21
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Dead Reckoning posted:I don't see how that contradicts what I said. Then you're not reading very thoroughly. You made a specific factual claim: Dead Reckoning posted:IIRC, he wasn't willing to do any custom cakes for a gay wedding, but would sell them a birthday cake or off the shelf cake. Which is either (a) flatly contradicted by the record or (b) in dispute, depending on which opinion you want to go by, but there is no way you can Remember Correctly that he offered to sell a standard cake. quote:To prepare for their celebration, Craig and Mullins visited the shop and told Phillips that they were interested in ordering a cake for “our wedding.” Id., at 152 (emphasis deleted). They did not mention the design of the cake they envisioned. quote:The cake requested was not a special “cake celebrating same-sex marriage.” It was simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike. See ante, at 4 (majority opinion) (recounting that Phillips did not so much as discuss the cake’s design before he refused to make it). quote:[T]he parties dispute whether Phillips refused to create a custom wedding cake for the individual respondents, or whether he refused to sell them any wedding cake (including a premade one).
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Jun 18, 2019 22:21
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Hieronymous Alloy posted:What they want is to muddy the waters between "special ordered custom artworks" and "any commercial sale of anything with a design element in it," so that they can deconstruct the various civil rights cases and effectively re-legalize discrimination via One Weird (1st amendment!) Trick. Doesn't every man made object have a 'design element'?
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Jun 18, 2019 22:23
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This thread literally had a multi-page argument with the same poster months ago with the exact argument. DR is both obtuse and never arguing in good faith.
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Jun 18, 2019 22:33
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What makes you think I don't believe what I'm arguing? Adlai Stevenson posted:Carpenter v Murphy is what I'm really waiting for. I don't think Murphy will win, as amazing as that would be, but I'm not sure what needle the court will thread to both maintain a precedent they're otherwise satisfied with but also prevent improper jurisdiction claims from popping up all across eastern Oklahoma. Mikl posted:Consider the following:
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Jun 18, 2019 22:35
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Dead Reckoning posted:There is no expressive conduct involved in plumbing. (At least, ideally.) Congress could completely ban indoor plumbing without creating a first amendment issue. Congress could not ban "cakes celebrating gay weddings" without creating a first amendment issue. Just as there is no expressive conduct in making a goddamn cake, simply because the baker didn't know what they wanted. It could have been a seven-tiered masterpiece, or a plain cheesecake I can make in my home oven. It literally doesn't matter, because the baker refused before he knew what the job involved and before he could determine whether there was any expressive conduct in his work. The baker simply went "sorry, no gays". How do you not get this?
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Jun 18, 2019 22:41
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Mikl posted:Just as there is no expressive conduct in making a goddamn cake, simply because the baker didn't know what they wanted. It could have been a seven-tiered masterpiece, or a plain cheesecake I can make in my home oven. It literally doesn't matter, because the baker refused before he knew what the job involved and before he could determine whether there was any expressive conduct in his work. If there is no expressive conduct involved in making a wedding cake, then the couple should have just bought a birthday cake and left instead of wasting all their money on custom fondant and piping that doesn't make it taste any better. But if course no one does that, because custom wedding cakes look different and express different messages than birthday cakes or grocery store sheet cakes, which is why there is an entire industry devoted to custom-making them to your particular taste and ceremony. Dead Reckoning fucked around with this message at 23:00 on Jun 18, 2019 |
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Jun 18, 2019 22:58
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Dead Reckoning posted:If there is no expressive conduct involved in making a wedding cake, then the couple should have just bought a birthday cake and left instead of wasting all their money on custom fondant and piping that doesn't make it taste any better. But if course no one does that, because custom wedding cakes look different and express different messages than birthday cakes or grocery store sheet cakes, which is why there is an entire industry devoted to custom-making them to your particular taste and ceremony. So you would support the baker's right to refuse to make a marble cake?
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Jun 18, 2019 23:10
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Family Values posted:Doesn't every man made object have a 'design element'? Yes, that's my point. The point of this litigation is not just to bash the gays. It's to open a wedge whereby the whole structure of the civil rights act can be dismantled. If a religious exemption gets you out of selling a goddam cake, it gets you out of anything. It's against my religion to let black people in my restaurant, etc.
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Jun 18, 2019 23:31
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Mikl posted:Consider the following: Because you see plumbing is a service whereas baking is speech
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Jun 19, 2019 00:09
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Nevvy Z posted:So you would support the baker's right to refuse to make a marble cake? In specific circumstances: "Hello, I would like to custom order a marble cake. Also, I am gay." No, cannot refuse. "Hello, I would like to custom order a marble cake to celebrate my gay wedding." Yes, can refuse. "Hello, I would like to buy that marble cake in the display case. Also, I plan to serve it at my gay wedding." No, cannot refuse. Hieronymous Alloy posted:If a religious exemption gets you out of selling a goddam cake, it gets you out of anything. It's against my religion to let black people in my restaurant, etc. (USER WAS PUT ON PROBATION FOR THIS POST)
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Jun 19, 2019 02:00
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Dead Reckoning posted:Like, in general? Sure. There was no loving message discussed for the cake. They refused to make a cake for a wedding as soon as they learned the people getting married were gay. It's discrimination against a protected class, full stop. Stop with your bullshit. Edit: Two people of the same sex getting married is exactly the same event as two people of differing sex getting married, we had a court case about it. Refusing to make the exact same wedding cake for a gay wedding that you would for a straight wedding is discriminatory. "Hello, I would like to custom order a marble cake to celebrate my wedding. Also, I am straight." "Hello, I would like to custom order a marble cake to celebrate my wedding. Also, I am gay." Those are the correct parallels and if you would do the first and not the second you are illegally discriminating. Piell fucked around with this message at 02:13 on Jun 19, 2019 |
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Jun 19, 2019 02:06
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