Equality Act & Religious Freedom

[Aldebaran]

I'm fairly certain there are international rules against torturing logic to this degree. A tax on Yarmulkes is a tax on Jews. You can't separate the two simply because it is inconvenient to your argument.

Christian Legal Society v. Martinez - Wikipedia

In answer to your argument, if the baker would make an abortion cake for men but not for women then yes, that is exactly what I would claim.

Now there's some torturing logic.

 

[hedrick]

It was because it was to celebrate a same sex "wedding". It wasn't because of the sexuality of the customers. Now, before you reply by saying that it's the same thing because only gay people would celebrate a gay "wedding", consider this:
If the same baker also refused to decorate a cake to celebrate an abortion, would you claim that the baker discriminated against the customer based on her being a woman since only a woman can have an abortion?

If your business is a public accommodation, there are limits on what you can do. You can refuse an abortion cake, but you can’t selectively refuse it based on race, sex, disability, or whatever list that state has. Colorado listed gay as a category. You can’t define wedding in your own special way, certainly not to justify discrimination. Otherwise someone could define a racially mixed marriage as not a marriage. That issue was one of the major problems justifying creation of these laws. Indeed if good Christians hadn’t engaged in racial discrimination, we probably wouldn’t have most of these public accommodation laws in the first place.

The Supreme Court has gone further. They consider that any law listing gender includes gays. The argument is interesting. If you refuse a cake to two men but not a man and a women, then the refusal wouldn’t have happened but for the gender of one of the people. In the Supreme Courts view, this “but for” criterion means that gender of one party was the critical difference, and so it triggers laws outlawing discrimination based on gender. I find the argument odd, but there’s legal history of using that type of analysis. The same analysis would have been important in the mixed race case.

I believe Bob Jones University tried exactly this ploy. They said they wouldn't consider discriminating against blacks. Blacks are just as welcome to date and marry as whites. It was the combination of a black and a white they objected to. But most people considered that racial discrimination.

 

[Belk]

Now there's some torturing logic.

Not really. You are trying to compare two things that are not alike. both sexes are unable to have abortions. However same sex couples can and do get married.

 

[Aldebaran]

Not really. You are trying to compare two things that are not alike. both sexes are unable to have abortions. However same sex couples can and do get married.

Only because the legal definition of marriage was altered. Truth hasn't been.

 

[KCfromNC]

It was because it was to celebrate a same sex "wedding". It wasn't because of the sexuality of the customers.

If the baker sells cakes to straight people to celebrate weddings but not gay people for the very same purpose, it becomes pretty obvious what the differentiating factor is in his decision making process.

What I get is if his religious expression of discriminating against gay customers is so central to his beliefs, why not just own it? Why the need for all of the flimsy excuses?

 

[Belk]

Only because the legal definition of marriage was altered. Truth hasn't been.

The truth is that same sex couples can get married and that this particular couple was discriminated against for their sex.

 

[RestoreTheJoy]

That's nice. Doesn't change the fact him taking the order kinda kills the whole "he won't do things for marriages which weren't recognized by the state he lived in" excuse. Which brings us back to what it really was - refusing service to people because of their gender and orientation.

Again, completely false, no matter how many times you reiterate it. He didn't do certain events. This dog thing was a merely a set-up by a disgruntled non-customer. It wasn't legit.

He did not do certain events. Then he has been harassed endlessly since. There are cakes out there...go get them. Again, original complainants who were told he didn't do certain events got a FREE cake.

 

[hedrick]

Again, completely false, no matter how many times you reiterate it. He didn't do certain events. This dog thing was a merely a set-up by a disgruntled non-customer. It wasn't legit.

He did not do certain events. Then he has been harassed endlessly since. There are cakes out there...go get them. Again, original complainants who were told he didn't do certain events got a FREE cake.

Unfortunately for him, you can't define an event so as to discriminate. You can do weddings or not do weddings. But you can't do just heterosexual weddings if your state outlaws discrimination based on orientation. I'm pretty sure a court would not accept someone as using a private definition of wedding that only includes heterosexuals.

His best argument, and the one that I believe was actually made, is that making custom cakes can't be covered by public accommodation laws because it's an artistic enterprise, and subject to first amendment protections. The Supreme Court avoided deciding this, but eventually they're going to have to. I'm going to bet that they'll agree with him. But that will have a limited effect. It would probably protect wedding cakes and tee shirts. Not sure how much else.

 

[RestoreTheJoy]

Unfortunately for him, you can't define an event so as to discriminate. You can do weddings or not do weddings. But you can't do just heterosexual weddings if your state outlaws discrimination based on orientation. I'm pretty sure a court would not accept someone as using a private definition of wedding that only includes heterosexuals.

His best argument, and the one that I believe was actually made, is that making custom cakes can't be covered by public accommodation laws because it's an artistic enterprise, and subject to first amendment protections. The Supreme Court avoided deciding this, but eventually they're going to have to. I'm going to bet that they'll agree with him. But that will have a limited effect. It would probably protect wedding cakes and tee shirts. Not sure how much else.

You can indeed just do weddings. Which is what he did at the time. There was no such thing as same sex marriage at the time of this lawsuit, and certainly not in his state.

He did weddings. This wasn't a wedding. It's a legal definition, not a "private" definition.

And yes, I agree that you cannot compel artists to make things they don't want to make. Find someone who does.

Yes, it's a very narrow area that basically applies only to weddings (cakes, photographers, flowers), really. I can't really think of another arena in which this would play a role, as the specific issue is religious. A marriage is a specific defined relationship between a man and a woman in certain faiths, and the First Amendment permits one operate in good conscience with his faith.

 

[hedrick]

You can indeed just do weddings. Which is what he did at the time. There was no such thing as same sex marriage at the time of this lawsuit, and certainly not in his state.

He did weddings. This wasn't a wedding. It's a legal definition, not a "private" definition.

And yes, I agree that you cannot compel artists to make things they don't want to make. Find someone who does.

Yes, it's a very narrow area that basically applies only to weddings (cakes, photographers, flowers), really. I can't really think of another arena in which this would play a role, as the specific issue is religious. A marriage is a specific defined relationship between a man and a woman in certain faiths, and the First Amendment permits one operate in good conscience with his faith.

Of course this is no longer relevant, since gay marriage is real. It would be interesting to see how a court ruled on the merits. I suspect the dog wedding might invalidate the claim that he would only do weddings as precisely defined by law. But that seems like it might work if he was consistent.

 

[Tinker Grey]

Unfortunately for him, you can't define an event so as to discriminate. You can do weddings or not do weddings. But you can't do just heterosexual weddings if your state outlaws discrimination based on orientation. I'm pretty sure a court would not accept someone as using a private definition of wedding that only includes heterosexuals.

His best argument, and the one that I believe was actually made, is that making custom cakes can't be covered by public accommodation laws because it's an artistic enterprise, and subject to first amendment protections. The Supreme Court avoided deciding this, but eventually they're going to have to. I'm going to bet that they'll agree with him. But that will have a limited effect. It would probably protect wedding cakes and tee shirts. Not sure how much else.

You're probably right. I am not a constitutional lawyer, but I'd argue that the only speech involved in making a custom cake is "hey, look at this cake", particularly if the cake doesn't involve text or perhaps toppers.

 

[hedrick]

Of course this is no longer relevant, since gay marriage is real. It would be interesting to see how a court ruled on the merits. I suspect the dog wedding might invalidate the claim that he would only do weddings as precisely defined by law. But that seems like it might work if he was consistent.

We're getting into an area where you'd need an actual lawyer. Can you look at how a product is used? That is, you can surely say you don't make wedding cakes. But typically you think of a wedding cake as a specific type of cake: multiple layers, fancy decoration, etc. But can you discriminate based on how it's going to be used? That's a question courts would have to rule on, because I suspect there's legal tradition on the matter.

But it won't ever be decided, since gay marriage is now legal. So the live issue is whether the 1st amendment protects cakes and a couple of other things from public accommodation laws.

 

[hedrick]

You're probably right. I am not a constitutional lawyer, but I'd argue that the only speech involved in making a custom cake is "hey, look at this cake", particularly if the cake doesn't involve text or perhaps toppers.

Courts have ruled that expression isn't limited to speech. This one seems marginal, but the current Supreme Court is tending to protect religious expression if there's any conceivable justification.

 

[durangodawood]

...I believe Bob Jones University tried exactly this ploy. They said they wouldn't consider discriminating against blacks. Blacks are just as welcome to date and marry as whites. It was the combination of a black and a white they objected to. But most people considered that racial discrimination.

The "interracial" dating issue really did expose a lot of conservatives as moral laggards in the extreme.

 

[Tinker Grey]

Courts have ruled that expression isn't limited to speech. This one seems marginal, but the current Supreme Court is tending to protect religious expression if there's any conceivable justification.

Yes, but my point is a question as to what is the actual speech here. It's "hey, look, a cake"

I doubt they'd buy it, but...

ETA: I'm not asking a baker to say "I support gay weddings". I'm asking him/her/it to say "I make cakes." The making of a cake implies no more than that (as long as there is no actual text on the cake a same-sex pair of dolls on top).

 

[Yttrium]

Yes, but my point is a question as to what is the actual speech here. It's "hey, look, a cake"

Speech can be expressed as pictures, symbols, or art forms. A wedding cake can say "these two people are being joined together in marital bliss" without the words actually being printed on the cake. And the baker didn't want to say that in the case of a homosexual couple.

 

[hedrick]

Speech can be expressed as pictures, symbols, or art forms. A wedding cake can say "these two people are being joined together in marital bliss" without the words actually being printed on the cake. And the baker didn't want to say that in the case of a homosexual couple.

I think the current Supreme Court might well accept that view.

 

[Tinker Grey]

Speech can be expressed as pictures, symbols, or art forms. A wedding cake can say "these two people are being joined together in marital bliss" without the words actually being printed on the cake. And the baker didn't want to say that in the case of a homosexual couple.

I understand that that's the argument. But, I think that that attributes too much to what a cake is. A wedding cake is not the baker saying anything about the wedding. It's just a cake and whatever art it is, it's a cake and the only speech is, "look how good I decorate". The baker doesn't participate in the wedding. He provides a service which is just a cake that has no more speech than "look a cake." A baker might have the sentiment of "isn't that great", but the cake doesn't automatically mean that. It's not compelled speech at all.

But, I doubt SCOTUS would buy that.

 

[KCfromNC]

Again, completely false, no matter how many times you reiterate it.

This would be more convincing if you provided any sort of reason to believe it.

He didn't do certain events.

The customer didn't want him to do any event, so this diversion is irrelevant.

This dog thing was a merely a set-up by a disgruntled non-customer. It wasn't legit.

In what way?

 

[KCfromNC]

You can indeed just do weddings.

In this case, the customer wanted a cake for a party. All he needs to to is show that he never made a cake anyone later used for a party to show that he's being consistent here. I think the problem might be that he kicked the customers out as soon as he learned what orientation and gender the people holding the party would be.