Transcript of Oral Argument Masterpiece Cake Shop vs. Colorado Civil Rights Division

[KCfromNC]

It doesn't matter what they use it for, he did not participate in making a wedding cake.

But his argument wasn't about participating in making a wedding cake. I'm pretty sure the claim was that using his cake in a reception meant he was endorsing the marriage.

 

[KCfromNC]

But having a belief that a black person should not live in a black household is essentially denying the person to live. In contrast, homosexuals do not have to get married or even have a wedding reception. In fact many homosexuals choose not to get married.

And many black people choose not to rent. Doesn't make discrimination against those who do acceptable because it is a "choice".

I have actually addressed that in my previous post. I said it is their identity only because they choose to identify themselves with the activity.

I thought the argument was that the actions didn't have anything to do with their identity, therefore there was no discrimination. Now the problem is their identity? Why can't I get a straight story?

Not everyone who experience same-sex attraction identify themselves with homosexual act though.

That's nice. Who cares?

I meant not all homosexual couples choose to get married. I didn't say they choose to have a straight wedding.

But you said about they choose to identify themselves with an activity. If a gay couple instead chose to identify themselves with a straight wedding the baker would have to bake a wedding cake for them, right? That seems like a logical conclusion from your assertions here.

He'd do that for any customer unless the artistic expression through what he creates would convey a message that violates his conscience.

Good thing we've found a solution - gay people just have to choose to identify their same sex wedding as a straight one and problem solved. After all, if it is as simple as you're implying to choose what orientation things are this is a non-issue.

 

[KCfromNC]

Nonsense, civil law is a site for damages, usually with a property settlement or monetary penalty. The original law came with jail time, or and by the way, a civil rights violation carries a heavy federal penalty.

I'd be curious to see citations for and of this.

 

[mark kennedy]

I'd be curious to see citations for and of this.

Check the legislation at the time of the original charge. They shortly afterwards changed it. Penalties call for up to a year as memory serves, that alone makes it a criminal offense.

 

[NotreDame]

The baker in the actual case in question finds no religious significance to the sacrament of marriage? I find that hard to believe given all of the claims about how it violates his religious beliefs to sell them a cake.




Nope. The objection is based on a particular act the customer does. It has nothing to do with the religious identity of the customer, it is simply about an action. Seems just as reasonable as the idea that the action of getting married in a gay wedding has nothing to do with the identity of being gay. Or the idea that the action of living in a black household has nothing to do with the identity of being black.

There is no evidence in the record that Phillips’ refusal was based on the specific religious nature of a marriage ceremony.

In regard to your second paragraph, it’s entirely vacuous. Maren’s hypo unequivocally stated the refusal was because of the specific religious nature of the ceremony. Try again.

 

[NotreDame]

Check the legislation at the time of the original charge. They shortly afterwards changed it. Penalties call for up to a year as memory serves, that alone makes it a criminal offense.

Nope. You’ve made this silly argument before. The prohibited conduct isn’t criminal but amuse us all by citing to Encyclopedia Britannica, as you do before.

 

[NotreDame]

I'd be curious to see citations for and of this.

It’s not criminal, and if he does what he did previously, he will cite to Encyclopedia Brittanica.

The plain text of the law establishes its civil. Any action under the statute is to be commended in civil court.

The traditional criminal, law enforcement entities, prosecutor, police, are not vested with any power to enforce the statute.

He’s wrong but he’ll insist he’s right because Encyclopedia Brittanica said so.

 

[NotreDame]

He refuses to serve them some things he'd serve an older customer, though. The fact he doesn't discriminate due to age in every circumstance doesn't excuse the situations in which he does.



Yep, all the baker has to do is show that gay weddings are totally unrelated to the gender and orientation of the people getting married. When is he going to start?

It’s the fact he “doesn’t discriminate in every” other circumstance against 15 year olds that is evidence the age of 15 isn’t the reason for not getting a cake.

If the 15 year old isn’t running a marathon, he gets the cake. You’ve not refuted this point.

Similarly, if the same sex couple isn’t getting married, then they get a cake. A point you’ve not refuted.

 

[NotreDame]

Seems like a pretty weak rationalization to me. "I'd refuse to rent an apartment to someone living in a black household regardless of their race" doesn't read like a winner to me.



And you still haven't explained how "I don't discriminate against every gay customer all the time" is a defense for the cases in which a business owner does.



Yes, that is the assertion. Hopefully the people using it to defend the baker's discrimination will be able to show something of substance behind the claim.

Seems like a pretty weak rationalization to me. "I'd refuse to rent an apartment to someone living in a black household regardless of their race" doesn't read like a winner to me.

When you take the remark out of context, and resort to a non-parallel example, it’s easy to make the mistaken “weak rationalization” claim. I’m not surprised it’s a “weak rationalization” to you, as you took the remark out of context and conjured a non-parallel hypo.

And you still haven't explained how "I don't discriminate against every gay customer all the time" is a defense for the cases in which a business owner does.

I have but I’ll do so again. It provides context to what is occurring at this specific instance. If someone refuses or doesn’t want to serve gays, then it makes perfect sense to find a pattern of discriminatory behavior. A pattern of refusing to serve gays in other contexts and instances would emerge. Rationally, we wouldn’t expect refusal in regards to a narrow and specific context. The pattern of discriminatory behavior is absent.The evidence is he serves and has served gays.

This is evidence the refusal isn’t because customers are gay. Since he serves gays, then what else can explain the refusal here? The explanation is what they are doing. Take away what they’re doing and they get a cake, despite being gay, because he serves gays. Simple.

 

[NotreDame]

Check the legislation at the time of the original charge. They shortly afterwards changed it. Penalties call for up to a year as memory serves, that alone makes it a criminal offense.

Let's review the text of the law. Let's begin with 24-34-603, which says:

The county court in the county where the offense is committed shall have jurisdiction in all civil actions brought under this part 6 to recover damages to the extent of the jurisdiction of the county court to recover a money demand in other actions.  Either party shall have the right to have the cause tried by jury and to appeal from the judgment of the court in the same manner as in other civil suits.
​

Ooopppsss...the statute refers to cause of actions as "all CIVIL actions" commenced under part 6.

What is part 6? "Part 6" is the entirety of the 600s dealing with discrimination by public accommodations, including 603 cited above. Section 24-34-601 tells us what is meant by "part 6." Colorado statute 24-34-601 states

(1) As used in this part 6, “place of public accommodation” means...

(2.5) It is a discriminatory practice and unlawful for any person to discriminate against any individual or group because such person or group has opposed any practice made a discriminatory practice by this part 6 or because such person or group has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing conducted pursuant to this part 6.
​

We can cross reference 601, 602, and 603 with each other. 602 says:

(1)(a) Any person who violates section 24-34-601 shall be fined not less than fifty dollars nor more than five hundred dollars for each violation.  A person aggrieved by the violation of section 24-34-601 shall bring an action in any court of competent jurisdiction in the county where the violation occurred.  Upon finding a violation, the court shall order the defendant to pay the fine to the aggrieved party.
​

602 says a person "aggrieved by the violation of 601," and recall 601 defines public accommodation and prohibits discrimination by public accommodations.

So, 602 says someone discriminated against in violation of 601 "shall bring an action in any court of competent jurisdiction in the county where the violation occurred." This language should sound familiar because 603 discusses which courts have jurisdiction for 601 violations. Remember, 603 says, "The county court in the county where the offense is committed shall have jurisdiction in all civil actions brought under this part 6..."

So connecting the dots between 601, 602, and 603, a person aggrieved by a violation under 601 shall commence a cause of action in "any court of competent jurisdiction" and a court of competent jurisdiction is the country court "where the offense is committed." Finally, connecting 602 and 603 together illustrates violations of 601 constitute as the "all civil actions brought under this part 6..." (connecting the language in 602, which references violations of section 601, "A person aggrieved by the violation of section 24-34-601 shall bring an action in any court of competent jurisdiction in the county where the violation occurred" to 603 language regarding courts of competent jurisdiction, "The county court in the county where the offense is committed shall have jurisdiction in all civil actions brought under this part 6..."

From this we deduce violations of 601 are civil actions, civil actions which shall be brought in a court of competent jurisdiction, and the competent court of jurisdiction is the county court where the offense (offense being violation of 601) is to have been committed.

It's civil.

 

[Lily of Valleys]

And many black people choose not to rent. Doesn't make discrimination against those who do acceptable because it is a "choice".

Let's go back to what you originally said. You said the landlord's religion prohibits him from condoning the act of living in a black household. Does this rule apply only to non-black or include black people as well? If it is the former, then there is no problem with the landlord renting his apartment to black people. If it is the latter, it just means his religion does not allow black people to live.

In contrast, baker's religion prohibits having sex with people of the same sex, and this rule applies to all humans. Having sex or not is definitely a choice.

I thought the argument was that the actions didn't have anything to do with their identity, therefore there was no discrimination. Now the problem is their identity? Why can't I get a straight story?

It doesn't seem like you get what I said. What I meant is, since the baker's religion prohibits all humans from having sex with people of the same sex, the prohibition is against an act, not against an identity. But if anyone happens to base their identity on an action, then they would see any disagreement with an action as discriminating against their identity, even if the original intention is about an action, not an identity.

That's nice. Who cares?

That was to illustrate my point that disagreement with homosexual act does not equate discriminating against the identity of people who experience same-sex attraction.

But you said about they choose to identify themselves with an activity. If a gay couple instead chose to identify themselves with a straight wedding the baker would have to bake a wedding cake for them, right? That seems like a logical conclusion from your assertions here.

Good thing we've found a solution - gay people just have to choose to identify their same sex wedding as a straight one and problem solved. After all, if it is as simple as you're implying to choose what orientation things are this is a non-issue.

You missed my point. Please refer to my second response above.

 

[KCfromNC]

There is no evidence in the record that Phillips’ refusal was based on the specific religious nature of a marriage ceremony.

OK. I guess everyone here saying that this is a religious freedom issue is mistaken then.

In regard to your second paragraph, it’s entirely vacuous.

I'm not sure if you actually believe that, but you've given me no reason to think your claim lines up with reality in any way.

 

[KCfromNC]

It’s the fact he “doesn’t discriminate in every” other circumstance against 15 year olds that is evidence the age of 15 isn’t the reason for not getting a cake.

Given that a 25 year old who is otherwise identical wouldn't be discriminated against, I'm not really convinced that this evidence is worth much.

Similarly, if the same sex couple isn’t getting married, then they get a cake. A point you’ve not refuted.

I haven't refuted it because it is irrelevant. There's nothing in the law which says that businesses can only be fined if they discriminate in all circumstances.

 

[KCfromNC]

When you take the remark out of context, and resort to a non-parallel example, it’s easy to make the mistaken “weak rationalization” claim. I’m not surprised it’s a “weak rationalization” to you, as you took the remark out of context and conjured a non-parallel hypo.

Nice rhetoric, but you seemed to miss posting the part where you explain how my example was lacking.

The evidence is he serves and has served gays.

He refuses to serve them the same set of products he sells to all his other customers. The difference? The orientation of those customers.

 

[KCfromNC]

Let's go back to what you originally said. You said the landlord's religion prohibits him from condoning the act of living in a black household. Does this rule apply only to non-black or include black people as well? If it is the former, then there is no problem with the landlord renting his apartment to black people. If it is the latter, it just means his religion does not allow black people to live.

Regardless of whatever this diversion is supposed to show, neither belief is going to hold up in court as a reason to refuse renting to minorities. Just like the excuse of pretending there's some big difference between a gay and straight wedding aside from the identities of the people involved.

In contrast, baker's religion prohibits having sex with people of the same sex

I'm not sure what bakeries you go to , but no one is asking the business owner to have sex with anyone. All he has to do is sell a cake he'd sell to any other customer.

What I meant is, since the baker's religion prohibits all humans from having sex with people of the same sex, the prohibition is against an act, not against an identity.

Did the baker verify that the customers were having sex with each other, or did he refuse to serve them based on the fact that they identify as gay?

That was to illustrate my point that disagreement with homosexual act does not equate discriminating against the identity of people who experience same-sex attraction.

Not always - many people are able to understand that their disagreements with other people doesn't give them a free pass to break the law. But that's not the case here.

 

[TLK Valentine]

He refuses to serve them the same set of products he sells to all his other customers. The difference? The orientation of those customers.

"They can sit at my restaurant table, but they can't order any hot food. They can, however, fill up on bread."

 

[Lily of Valleys]

Regardless of whatever this diversion is supposed to show, neither belief is going to hold up in court as a reason to refuse renting to minorities. Just like the excuse of pretending there's some big difference between a gay and straight wedding aside from the identities of the people involved.

Renting is not an artistic expression and is not protected by the First Amendment.

I'm not sure what bakeries you go to , but no one is asking the business owner to have sex with anyone. All he has to do is sell a cake he'd sell to any other customer.

He has never created a wedding cake for a same-sex union for any other customer.

Did the baker verify that the customers were having sex with each other, or did he refuse to serve them based on the fact that they identify as gay?

If the baker refused to serve them solely based on the fact they they identify as gay, he would not have served them at all, not just a wedding cake, and these two gay people would not have been able to buy cakes from there:

https://www.facebook.com/video.php?v=10155937597053417

What he refused to do was to create a wedding cake to celebrate the sexual relationship of two people of the same sex.

Not always - many people are able to understand that their disagreements with other people doesn't give them a free pass to break the law. But that's not the case here.

I don't think Jack Phillips thought he had a free pass to break the law when he refused to design a wedding cake for a same-sex union, and it is yet to be decided by the Supreme Court whether it was Jack Phillips or the Colorado Civil Rights Commission that was breaking the law.

 

[TLK Valentine]

Renting is not an artistic expression and is not protected by the First Amendment.

By that metric, any type of food preparation is an artistic expression -- This could've just as easily been a pizza place instead of a bakery, refusing to deliver to the bachelor party.

ETA: I should add that the First Amendment only prevents the government from restricting artistic expression -- in this case, the government is requiring it...

Unless the argument now is that NOT making a cake is a form of artistic expression... in which case, I can certainly understand the GOP's support of the baker; I've often said they've raised "doing nothing" to an art form...

If the baker refused to serve them solely based on the fact they they identify as gay, he would not have served them at all, not just a wedding cake, and these two gay people would not have been able to buy cakes from there

Sounds like only certain services are available to certain people...

 

[KCfromNC]

"They can sit at my restaurant table, but they can't order any hot food. They can, however, fill up on bread."

Also, I'd sell them hot food if they swear they're buying it for someone else.

 

[KCfromNC]

Renting is not an artistic expression and is not protected by the First Amendment.

Sure it is - at least as much as making a cake. Think of all the decorating choices a landlord must make - kinda like a baker does with a cake. And apartments are bigger, so it is even more of a free expression issue.

He has never created a wedding cake for a same-sex union for any other customer.

The only difference between a same sex wedding cake and an opposite sex one is the orientation of the customer using it for their celebration afterwards.

If the baker refused to serve them solely based on the fact they they identify as gay, he would not have served them at all

Again, I'm not seeing where the law says it is acceptable to discriminate if business owners only do it some times instead of all the time. Care to quote that part for me?

I don't think Jack Phillips thought he had a free pass to break the law when he refused to design a wedding cake for a same-sex union

His continued attempts to avoid punishment for breaking the law say otherwise.