The Legal Side of the Masterpiece Cakeshop Discrimination Case

Closed to gays sign

Some Christians are determined to wear “We don’t serve your kind here” on their sleeves with a list of those people that their loving god tells them to discriminate against. For the previous post on the Masterpiece Cakeshop v. Colorado Civil Rights Commission Supreme Court case, go here.

Let’s move on to a legal analysis. The Freedom from Religion Foundation submitted an amicus brief in support of the gay couple who were refused a wedding cake. Since the FFRF legal team can make much more sense of the legal case than I can, I’ll summarize their arguments.

1. Free exercise of religion, as guaranteed in the First Amendment, is not an unlimited right. “Free exercise rights end where the rights of other citizens begin—and always have.”

The First Amendment to the U.S. Constitution begins, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Note the two clauses, which are often examined separately: Congress (that is, government) can’t establish religion, but they also can’t prohibit the free exercise of religion.

While government can’t prohibit the free exercise of religion, it can regulate conduct, even if that conduct is religiously motivated. The FFRF brief states,

The freedom of thought and belief—freedom of conscience—is absolute. But the freedom to act on religious beliefs in every circumstance of one’s life is not absolute, and religious conduct can and must be burdened by civil laws, especially those that protect the rights of others.

Not only can religiously motivated action be burdened, it already has been. Point 2 below gives examples of legal precedents by SCOTUS (that is, the Supreme Court of the United States).

1a. The Burwell v. Hobby Lobby case (2014) does not aid the baker

The baker claims that both Hobby Lobby and Masterpiece Cakeshop are closely held family businesses, so the conclusion in the Hobby Lobby case—that this kind of business can itself hold a religious belief that would exempt it from regulations—applies to Masterpiece Cakeshop as well.

The FFRF brief rejects this claim. The Hobby Lobby case was interpreting the Religious Freedom Restoration Act (RFRA), a federal statute, and didn’t touch on First Amendment claims. Since the opposite is true in the Masterpiece Cakeshop case—it relies on a First Amendment claim and isn’t affected by RFRA—Hobby Lobby is no precedent.

2. Suppose the free exercise clause were interpreted as a right to discriminate

What’s the difference between racial discrimination based on religious beliefs and racial discrimination not based on religious beliefs? There’s no way to distinguish them. Said another way, imagine discrimination that is falsely claimed to be based on religious belief. How could anyone reliably detect the lie? A decision in the baker’s favor would open the door to discrimination, racial and otherwise.

SCOTUS precedents make clear that the free exercise clause has limits.

While drawing the line can be difficult, the Court has been consistent in allowing religiously-motivated action to be halted when “the conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order.” (quoting from Sherbert v. Verner, 1963)

Here are several Supreme Court precedents:

  • The owner of a restaurant chain claimed that the Civil Rights Act of 1964 imposed on his religious beliefs against racial integration (Newman v. Piggie Park, 1968).
  • Bob Jones University claimed a religious right to refuse to admit as students not only interracial couples but students who supported interracial marriage (Bob Jones University v. United States, 1983).
  • A Mormon man claimed a religious obligation to polygamy (Reynolds v. United States, 1878).

The religious claim in each case was made subservient to the law.

 


See also: The Kim Davis Discussion Must Include JFK


 

3. The baker argues that he wasn’t discriminating against people but against an event

Nope. You can’t discriminate against a same-sex marriage and not impact the couple. There wouldn’t be a same-sex marriage to discriminate against unless the couple were gay.

The baker attempts to make a distinction between refusing to sell a wedding cake that celebrates a gay wedding and refusing to sell a wedding cake to gay people. The only people having gay weddings are gay people, and you can’t discriminate against the wedding without discriminating against the people.

4. What limits would there be to a religious right to harm others?

We have only to look at the cases where SCOTUS has already rebuffed religious excesses to see that this is a valid concern.

Bob Jones Sr., televangelist and founder of his self-named university, infamously preached in his 1960 Easter sermon, “If you are against segregation and against racial separation, then you are against God.”

The university forbade mixed-race marriages, flouting a 1970 IRS (Internal Revenue Service) regulation that prohibited tax-exempt status for private schools with racially discriminatory policies, and the IRS revoked their tax-exempt status (ah, for the good old days!). The 1983 SCOTUS decision supported the IRS and concluded, “Governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs.”

Another example is a chain of health clubs owned by evangelical Christians who imposed their morality on employees. They refused to hire homosexuals, non-Christians, unmarried people living together, unmarried women working without their fathers’ consent or married women working without their husbands’ consent, and so on. Their beliefs weren’t the problem, but their actions were, and they lost in the Minnesota Supreme Court in 1985.

The lessons are that (1) actions can be regulated even if they originated in a sincere religious belief and (2) there is no religious right to infringe on other citizens’ civil rights.

5. How do we balance the establishment vs. free exercise clauses of the First Amendment?

We have a conflict between the establishment clause (government can’t promote religion) and the free exercise clause (government must leave religion alone). Should the baker yield to the customers and treat all equally (a win for the establishment clause) or should gay customers yield to the baker by finding a nondiscriminatory bakery (a win for religious sentiment)?

The FFRF brief concludes that the options aren’t equally balanced:

A ruling in the bakery’s favor would create an interpretation of the Free Exercise Clause that prefers, favors, [and] promotes religion over nonreligion. Whatever keyword one chooses, such a decision would undermine long-settled and critically important principles under the First Amendment’s Establishment Clause.

This summary of the FFRF brief was my attempt at distilling it down to make it shorter and more approachable, so any errors are mine.

Concluding thoughts

There’s an implied asymmetry in the baker’s favor. Religious views are considered fundamental, an important part of someone’s makeup. Those views are fixed, and it’d be much easier for the customer to take his request down the street to another baker than insist that the baker compromise his religious views.

But let’s question that. Instead of the customer going down the street to another baker, why can’t the baker go down the street to another church? Christians change congregations by the thousands every day. There’s nothing inherently wrong about same-sex weddings within Christianity. The baker can drop his bias and still be a Christian.

Of course, that’s unlikely to happen. While it’s easy to justify progressive views within Christianity, people rarely adapt their views to what Jesus says. Instead, they remake Jesus to fit their views. There’s little objective evidence with which to evaluate someone’s Christianity.

But then what happened to the foundational, immutable Christianity that we’re not allowed to impose upon? When a Christian’s views are nothing more than what he says they are, with no means for us to evaluate their logic, society shouldn’t bend over backwards to accommodate them. Believe what you want, but don’t think that society will put up with your actions if they hurt others.

To permit [violating laws for religious reasons]
would be to make the professed doctrines of religious belief
superior to the law of the land,
and in effect to permit every citizen
to become a law unto himself.
— Justice Antonin Scalia, in 1990,
quoting the SCOTUS decision
in Reynolds v. United States (1879)

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  • Anthrotheist

    “The baker attempts to make a distinction between refusing to sell a wedding cake that celebrates a gay wedding and refusing to sell a wedding cake to gay people.”
    The sooner we, as a society, phase terms like “gay wedding” or “same-sex marriage” out of common parlance, the better. There is no such thing as a “gay wedding.” There are weddings. Some of them are between two gay people. That does not make it a gay wedding, it makes it a wedding between two people who happen to be gay. Arguably, you could plan a gay-themed wedding, which would be an entirely different matter.

    On a tangent, there seems to be a major difference in liberal versus conservative perception of things like marriage.
    As far as I can tell, liberals tend to view the notion of marriage fairly loosely, and view the notion of person-hood fairly narrowly. A marriage is a consensual union between two persons (regardless of how you categorize the persons). A person (as far as I can tell) is a living human being who is conscious, or at least has a history of having been conscious or the potential to immediately (re)gain consciousness.
    As far as I can tell, conservatives tend to view marriage very narrowly, and person-hood fairly loosely. A marriage is a union between a human male and a human female (with limited regard to matters of age/consent [edit: and no allowance for gender identity outside of binary male/female]). Person-hood, on the other hand, is extended in varying degrees to unborn fetuses, dead people (in the case of levirate marriage), and — increasingly — legally incorporated contract-entities (including the right to speech and the ability to hold religious beliefs).

    • Joe

      The sooner we, as a society, phase terms like “gay wedding” or “same-sex marriage” out of common parlance, the better.

      These terms are sticking around because there is still debate going on. Once that dies down and all but the most extreme bigots accept SSM as a fact, I think the phrases will disappear. For example, I say my brother-in-law is married to his husband, because people can work out straight away that it’s a same sex marriage, and people naturally dislike a tautology.

    • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

      I used “gay wedding” because the brief did, and I think the brief did to make a clearer phrase to match “gay people.” I actually had that quote in there, but my post needed some pruning.

      After having been corrected on this years ago, I’m pretty careful about using “same-sex wedding.”

      As far as I can tell, liberals tend to view the notion of marriage fairly loosely

      Yes and no. We all have a fairly flexible definition of marriage when you think of the changes that we’ve had in the last half century: Loving v. Virginia allowed mixed-race marriage, marital rape is now a thing, divorce is no-fault, and so on. Even now, the requirements vary state by state (age, relationship, waiting period, etc.).

      That’s an interesting parallel with the changing definition of personhood.

      • Anthrotheist

        I didn’t mean a criticism to you in particular; your being careful about terminology appears to me to be an exception in the U.S., which is the society I am in and to which I refer.

        I also wonder to what degree the recognition of the changing state of marriage is biased by liberal notions of those changes being ‘progress’, as opposed to conservative perception of them as being ‘perversion.’ It would lead me to wonder about the necessary speed of change in society; conservative ideology appears to takes a generation or more to normalize a change, and until that normalization occurs it won’t be viewed as having changed, but only as continually being under attack.

        • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

          The difficulty of getting US society to change is a discouraging topic.

        • Otto

          Well I would have never thought in my 50 years that same-sex marriage would be legal…

        • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

          Good point. There is room for optimism as well.

        • Otto

          I think it is often…2 steps forward and 1 step back.

        • Michael Neville

          What’s more, same-sex marriage is a non-issue with most Americans. It’s only a few religious fanatics who are reacting poorly to it.

    • KarlUdy

      On a tangent, there seems to be a major difference in liberal versus conservative perception of things like marriage.
      As far as I can tell, liberals tend to view the notion of marriage fairly loosely, and view the notion of person-hood fairly narrowly. A marriage is a consensual union between two persons (regardless of how you categorize the persons).

      I think this instead of being a tangent (maybe it is a tangent to this particular case, but not to the wider societal issue) is actually a root issue.

      I don’t think you’ve quite described the liberal notion of marriage correctly, because as you have it described, a business partnership could possibly qualify as a marriage. Most liberals (and conservatives for that matter) would consider that marriage is something that people do because they are “in love”, or possibly would describe it as a formally recognized union of people who enter in a sexual relationship.

      The real issue as I see it is that different groups in society have quite different, and very strongly-held ideas about what marriage is (or is supposed to be.)

      The only equivalent divergence of public opinion about the nature of marriage that I can think of historically (and I know very little about how such agreements played out) would be in cultures where polygamy has been common. (Again, interestingly, neither your conservative or liberal descriptions allow for polygamy.)

      • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

        The real issue as I see it is that different groups in society have quite different, and very strongly-held ideas about what marriage is (or is supposed to be.)

        Many people think that Obergefell was the first change to the definition of marriage since forever, but they forget all the Old Testament variations on marriage that have been discarded. And the changes that have happened in just my lifetime (admittedly a somewhat long time): mixed-race marriage legal, marital rape now a crime, divorce easier, and so on.

        I’m speaking from the standpoint of the US. Other countries’ relationship with “marriage” may be different, of course.

        • RichardSRussell

          Another change: communal-property laws. Wifey slaves away at home while hubby is off getting a good education and then making big bux in the workplace, so all the cash contributed to their joint marriage comes from him. All she puts in is her time as a homemaker. Come the divorce, it used to be that she was out on the street with only the clothes on her back. Finally state laws recognized that they each had a stake in the relationship, each contributed to it, and each should take ruffly the same amount away from it. Took a long time, tho, and you’ll never guess which institution was most fervently opposed to the change. (Hint: starts with “rel”, ends with “gion”.)

        • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

          Great point, thanks.

        • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

          I believe “head and master laws” and “coverture” are tied in with that. Wikipedia has articles.

          Another change in marriage laws: adultery as a crime is being phased out. It’s a crime in 23 states:
          http://www.motherjones.com/politics/2011/11/is-adultery-illegal-map/

        • Gary Whittenberger

          Might we humans one day devise a standard universal definition of “marriage”? I think the sooner, the better.

        • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

          From this vantage point, it seems a moving target. I don’t see that as a bad thing, though.

          Society changes? Well, maybe we need to change its institutions to adapt.

        • Gary Whittenberger

          Try this: A marriage is any sharing relationship of two persons, both 18 years of age or older, regardless of gender, in which the participants live together and have specific rights, which is initiated by voluntary consent and is recognized by the state.

          This could be used across all countries. I think its adoption would improve the human condition.

        • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

          Or this:

          (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
          (2) Marriage shall be entered into only with the free and full consent of the intending spouses.
          (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

          That’s article 16 of the UN Declaration of Human Rights.
          http://www.un.org/en/universal-declaration-human-rights/

          It was written in 1948, so it would need a little updating.

        • Gary Whittenberger

          That is pretty close to my definition. However, “full age” should be stipulated at 18 years and older. Also, “founding a family” need not be part of the definition since people should be able to marry and have no children at all.

        • Venavis

          As long as an already ‘married’ person can still get married, to accommodate polygamous relationships. Otherwise, it need the limit of ‘two’ removed.

        • Gary Whittenberger

          In your opinion for the best interests of the participants and the common good of humanity, what is the limit on the number of persons to whom an individual should be allowed by the state to marry? One? Two? Ten? Unlimited?

          Please explain and defend your answer.

        • Venavis

          —In your opinion for the best interests of the participants and the
          common good of humanity, what is the limit on the number of persons to
          whom an individual should be allowed by the state to marry? One? Two?
          Ten? Unlimited?—

          As many as consent to join

          —Please explain and defend your answer.—

          Because it’s nobody else’s fucking business except the consenting adults involved. 1) They are consenting, and 2) they are adults

          Why do you think it shouldn’t be allowed? Please explain and defend your answer.

        • Greg G.

          Because it’s nobody else’s fucking business except the consenting adults involved.

          And the cameraman.

          Apologies to Woody Allen.

        • Venavis

          I don’t apologize to child molesters, as a general rule.

          But the cameraman should qualify as a ‘consenting adult involved’.

        • Gary Whittenberger

          So, your answer is “unlimited in number, if all are consenting adults.”

          The way people interact is everyones’ business. We live in a social world. Self-interest must be balanced by the common good.

          I favor sustaining the legal limit to one marriage partner for now. More than two people could live together, but they all just wouldn’t have the same legal rights as the two people legally married to each other.

          On the other hand, I would like to see a few scientific studies comparing marriage arrangements of different numbers of persons, perhaps two vs. three vs four as a start. I would be open to a change in the law on number, depending on the outcomes of these studies.

        • Venavis

          —The way people interact is everyones’ business. We live in a social world. Self-interest must be balanced by the common good.—

          And your self-interest to not have relationships you disapprove of existing must be balanced by the common good of you butting out of other people’s bedrooms.

          —-I favor sustaining the legal limit to one marriage partner for now.
          More than two people could live together, but they all just wouldn’t
          have the same legal rights as the two people legally married to each
          other.—

          Why? Please explain and defend your answer.

          —On the other hand, I would like to see a few scientific studies
          comparing marriage arrangements of different numbers of persons, perhaps
          two vs. three vs four as a start. I would be open to a change in the
          law on number, depending on the outcomes of these studies.—

          They exist. If you really want to see them, I suggest you look them up and read them. No, I’m not going to go find them for you, so don’t even bother to ask. You want to limit the rights of other people, it is your responsibility to justify that. Provide any sort of scientific study that suggests polygamy itself (not misogyny, where a man rules multiple wives) is inherently harmful. Justify your limitation.

        • Greg G.

          Asian culture has long had polygyny, polygamy with one man and multiple women. The women didn’t have a say about the new wives. They called it something like “the bitter poison”. After WWII, the French outlawed new wives to such relationships in Vietnam while grandfathering in existing cases. But it didn’t actually stop them. It shifted the balance of power to the women so they had a say in the matter and the man was liable to prosecution if he didn’t treat his wives fairly. It just wasn’t officially recognized by the government.

          During and after the war with the US, there was a significant gender imbalance in the population so polygyny became popular.

          But the property rights issues could be taken care of by “prenuptial” agreements. I don’t think “prenuptual” is the right word but I don’t know if there is a word for this situation

        • Venavis

          —Asian culture has long had polygyny, polygamy with one man and multiple women. The women didn’t have a say about the new wives.—

          The problem wasn’t the polygamy, it was the lack of respect toward women. That’s inherently harmful whether you have one spouse or six.

        • Greg G.

          Exactly.

          The problem is spousal abuse but that can happen in any arrangement. The problem isn’t the number of people in the relationship but the number of assholes and one is too many.

        • Gary Whittenberger

          GW1: —The way people interact is everyones’ business. We live in a social world. Self-interest must be balanced by the common good.—

          V2: And your self-interest to not have relationships you disapprove of existing must be balanced by the common good of you butting out of other people’s bedrooms.

          GW2: I place the common good of humanity above self-interest. If you can rationally demonstrate that having more than one marriage partner is better for humanity than having just one, then I might come over to your position. I don’t think the history of multiple partners supports your view.

          GW1: I favor sustaining the legal limit to one marriage partner for now.
          More than two people could live together, but they all just wouldn’t
          have the same legal rights as the two people legally married to each
          other.

          V2: Why? Please explain and defend your answer.

          GW2: It appears that overall, throughout history, arrangements of multiple marriage partners has not worked out as well as arrangements of single marriage partners. Given this, I think the burden of proof is on you.

          GW1: On the other hand, I would like to see a few scientific studies
          comparing marriage arrangements of different numbers of persons, perhaps
          two vs. three vs four as a start. I would be open to a change in the
          law on number, depending on the outcomes of these studies.—

          V2: They exist. If you really want to see them, I suggest you look them up and read them. No, I’m not going to go find them for you, so don’t even bother to ask.

          GW2: I will bother to ask: Present citations and links. The burden of proof is on you.

          V2: You want to limit the rights of other people, it is your responsibility to justify that. Provide any sort of scientific study that suggests polygamy itself (not misogyny, where a man rules multiple wives) is inherently harmful. Justify your limitation.

          GW2: I already did. Just look at the history. You want an unfettered or unlimited right of people to marry as many people as they wish. The burden of proof is now on you to show that assigning such a right would be good for humanity. If you can’t convince me, then you will have a very difficult time convincing the “average person.”

        • Venavis

          I place the common good of humanity above self-interest. If you can rationally demonstrate that having more than one marriage partner is better for humanity than having just one, then I might come over to your position. I don’t think the history of multiple partners supports your view.

          No, you want to take the right away. You need to justify that decision. If you want to forbid me from doing anything, you have to justify that decision. You have to justify why it is against the common good of humanity.

          It appears that overall, throughout history, arrangements of multiple marriage partners has not worked out as well as arrangements of single marriage partners. Given this, I think the burden of proof is on you.

          This was covered already. The problem was the misogyny, not the polygamy. You want to take the right away, you need to justify that decision.

          I will bother to ask: Present citations and links. The burden of proof is on you.

          No, you want to take the right away, you need to justify that. Back it up with facts, citations, and studies. Unless you can justify why I’m not allowed to have chocolate cake, you don’t get to forbid me from having chocolate cake.

          I already did. Just look at the history

          Yes. Done. The problem was misogyny, not polygamy. Show that polygamy is still a problem once misogyny is taken out of the equation. Cause I’ve been in some poly-amorous and open relationships. Long as the folks involved are all giving their full and free consent and treat each other like human beings, it works out great.

          You want an unfettered or unlimited right of people to marry as many people as they wish. The burden of proof is now on you to show that assigning such a right would be good for humanity. If you can’t convince me, then you will have a very difficult time convincing the “average person.”

          No, if you want to take a right away from people, you need to justify that stance. It is the fetters that must be justified, not the freedom.

          I don’t give a shit about convincing the ‘average person’. Not all that long ago, the ‘average person’ thought slavery was okay-dokay. A lot of ‘average people’ still think that people like me shouldn’t be allowed to get married. You want to limit rights, the burden of justification is on you. Otherwise, butt out of other people’s relationships.

        • Gary Whittenberger

          GW2: I place the common good of humanity above self-interest. If you can rationally demonstrate that having more than one marriage partner is better for humanity than having just one, then I might come over to your position. I don’t think the history of multiple partners supports your view.

          V3: No, you want to take the right away. You need to justify that decision. If you want to forbid me from doing anything, you have to justify that decision. You have to justify why it is against the common good of humanity.

          GW2: You are mistakenly assuming that you already have a right that you don’t have, at least not in the US and most western countries. Rights are devised and assigned by societies. So, the burden of proof is still on you to justify why you and all persons in our society should be assigned this new right.

          GW2: It appears that overall, throughout history, arrangements of multiple marriage partners has not worked out as well as arrangements of single marriage partners. Given this, I think the burden of proof is on you.

          V3: This was covered already. The problem was the misogyny, not the polygamy. You want to take the right away, you need to justify that decision.

          GW3: This was covered already.

          GW2: I will bother to ask: Present citations and links. The burden of proof is on you.

          V3: No, you want to take the right away, you need to justify that. Back it up with facts, citations, and studies. Unless you can justify why I’m not allowed to have chocolate cake, you don’t get to forbid me from having chocolate cake.

          GW3: This was covered already. In the US, even in most countries of the world, persons have been assigned a right to put things into their body and take things out of it. This includes chocolate cake.

          GW2: I already did. Just look at the history

          V3: Yes. Done. The problem was misogyny, not polygamy. Show that polygamy is still a problem once misogyny is taken out of the equation. Cause I’ve been in some poly-amorous and open relationships. Long as the folks involved are all giving their full and free consent and treat each other like human beings, it works out great.

          GW3: Personal anecdotes are not scientific studies.

          GW2: You want an unfettered or unlimited right of people to marry as many people as they wish. The burden of proof is now on you to show that assigning such a right would be good for humanity. If you can’t convince me, then you will have a very difficult time convincing the “average person.”

          V3: No, if you want to take a right away from people, you need to justify that stance. It is the fetters that must be justified, not the freedom.

          GW3: People don’t have that right, yet. I think you are confusing freedom with rights, and they are not the same thing.

          V3: I don’t give a shit about convincing the ‘average person’. Not all that long ago, the ‘average person’ thought slavery was okay-dokay. A lot of ‘average people’ still think that people like me shouldn’t be allowed to get married. You want to limit rights, the burden of justification is on you. Otherwise, butt out of other people’s relationships.

          GW3: You should care about convincing the “average person” since in a democracy, roughly 51% of the people will need to agree with your proposal for this new right before it will be implemented. The burden of justification is on you. Think not only of your own self-interest, but also the common good of humanity.

          GW3: We are starting to repeat ourselves. Unless you can actually provide good evidence, reasons, and arguments for creating a new right to marry many people at the same time, I think we are finished with this discussion.

        • Venavis

          GW, I’m not cisgender. Me marrying the person I’m with right now is still illegal in many areas, and our current government in the US is doing their best to make it illegal again. I shouldn’t have to justify and provide studies why it is acceptable for me to marry someone of my own gender. The burden of proof of my humanity should not be on me. I suggest you check your privilege and rethink your stance.

          If you want to deny something to people, YOU need to justify it. You cannot justify denying consensual adults the right to engage in polygamy, as there is no actual basis to do so. Therefore, it should be allowed.

          Think not only of your own self-interest, but also the common good of humanity.

          Unlike you, I actually am thinking of the common good of humanity, while you are mistaking your personal biases as reasons to limit the freedom of others. Which is why I maintain that if you cannot justify the denial, the default should be freedom.

          So, provide studies and blah blah blah about why polygamy is bad (you can’t, cause it’s not) or shut up about it.

          Yes, we are finished with this discussion. You have nothing to backup your arguments or stance save that you personally don’t approve of polygamy, therefore, arguing with you is clearly a waste of time as you will never substantiate your arguments.

        • Gary Whittenberger

          V4: I’m not cisgender.

          GW4: I think that is irrelevant to the issue we are discussing.

          V4: Me marrying the person I’m with right now is still illegal in many areas, and our current government in the US is doing their best to make it illegal again. I shouldn’t have to justify and provide studies why it is acceptable for me to marry someone of my own gender. The burden of proof of my humanity should not be on me. I suggest you check your privilege and rethink your stance.

          GW4: Since in the US gender is irrelevant to marriage, you have no burden of proof in that area. However, since in the US you are limited to one marriage partner, you have a burden of proof in that area to show that a new right should be assigned.

          V4: If you want to deny something to people, YOU need to justify it. You cannot justify denying consensual adults the right to engage in polygamy, as there is no actual basis to do so. Therefore, it should be allowed.

          GW4: Adults currently have no right to engage in polygamy. It is you who must justify inventing this right and assigning it to all adults.

          GW3: Think not only of your own self-interest, but also the common good of humanity.

          V4: Unlike you, I actually am thinking of the common good of humanity, while you are mistaking your personal biases as reasons to limit the freedom of others. Which is why I maintain that if you cannot justify the denial, the default should be freedom.

          GW: You are mistaken. I actually am thinking of the common good of humanity. If you cannot justify a new right, then there is no right. You are still confusing freedom with rights, and they are not the same thing. You have a natural freedom to associate with people, but you don’t currently have the right to be married to more than one person.

          V4: So, provide studies and blah blah blah about why polygamy is bad (you can’t, cause it’s not) or shut up about it.

          GW4: No, I will not shut up, and your asking me to is unethical. It is your burden to provide scientific studies to show that polygamy is no worse than monogamy, and so far, you haven’t.

          V4: Yes, we are finished with this discussion. You have nothing to backup your arguments or stance save that you personally don’t approve of polygamy, therefore, arguing with you is clearly a waste of time as you will never substantiate your arguments.

          GW4: I have provided backup to my position through history and current law. If you want to add a new right, then the burden of proof is on you. I am a generally open-minded person, and I’ve told you how to persuade me to come to your position. If you can’t do that with me, then you have little hope of convincing a majority of the people.

        • Venavis

          I think that is irrelevant to the issue we are discussing.

          It’s very relevant to the issue we are discussing, as thus far, every supposed ‘argument’ you’ve used against polygamy has also been used against gay marriage.

          I actually am thinking of the common good of humanity. If you cannot justify a new right, then there is no right.

          Case in point. Why should I have had to justify my right to marry a person of my own gender in order to gain that right?

          Please explain and defend your answer

          Since in the US gender is irrelevant to marriage, you have no burden of proof in that area.

          Actually, it’s still very relevant. Please check your privilege. Perhaps you might consider looking at court cases currently facing SCOTUS, such as the one on which whether or not people are allowed to discriminate based on sexual orientation.

          Why should we have to justify anything to you?

          Please explain and defend your answer

          What business is it of yours?

          Please explain and defend your answer

          How does it harm you in any way if three people want to marry each other?

          Please explain and defend your answer

          How does it harm society in any way if three consenting adults want to marry each other?

          Please explain and defend your answer

        • Gary Whittenberger

          GW4: I think that is irrelevant to the issue we are discussing.

          V5: It’s very relevant to the issue we are discussing, as thus far, every supposed ‘argument’ you’ve used against polygamy has also been used against gay marriage.

          GW5: I don’t need arguments. You need arguments. The burden of proof is on you.

          GW4: I actually am thinking of the common good of humanity. If you cannot justify a new right, then there is no right.

          V5: Case in point. Why should I have had to justify my right to marry a person of my own gender in order to gain that right?

          GW5: You already have that right and so you don’t have to justify it. But you don’t currently have the right to marry many people, and so you have to justify the assignment of that right to people within our society.

          V5: Please explain and justify your response.

          GW5: Done

          GW4: Since in the US gender is irrelevant to marriage, you have no burden of proof in that area.

          V5: Actually, it’s still very relevant. Please check your privilege. Perhaps you might consider looking at court cases currently facing SCOTUS, such as the one on which whether or not people are allowed to discriminate based on sexual orientation.

          GW5: People have already been given the right to marry a person of the same sex in our society. There are still a few resisters, but the courts will take care of them.

          V5: Why should we have to justify anything to you?

          GW5: Because you are seeking a new right and you must persuade at least half the population in a democratic society in order to be granted a new right.

          GW5: I think the problem here is that we may be using different definitions of “right.” What is your definition?

        • Venavis

          I’m not inclined to waste additional time arguing with a bigot.

        • Gary Whittenberger

          I can’t think of a better example of an ad hominem attack.

        • Venavis

          It’s not an ad hominem when it’s A) true, and B) relevant. You are a bigot, making a bigoted argument.

        • Gary Whittenberger

          But your remark is neither. Pay attention to when you made it — just at the point when you were flustered and could not present sound and relevant evidence, reasons, or arguments in support of your precious polygamy.

          In a debate being uncivil will hinder your efforts to persuade either your opponents, the audience, or the undecided to embrace your unpopular position. Such behavior is self-defeating.

        • Venavis

          Sugarpie, you’re the one claiming polygamy is bad, and you’re the one unable to provide sound and relevant evidence, reasons, or arguments in support of that stance.

          I suggest you get a dictionary, and look up the word ‘civility’. Being a bigot and a racist is NOT civil. I have no interest in trying to change the mind of a bigot. I will not waste my time trying to reason you out of a stance that you didn’t reason yourself into. You’ve presented no actual arguments for me to address, just your biased and bigoted claim that polygamy is bad. I’m not going to argue with your prejudice.

          So go ahead and pat yourself on the back that you ‘won’. Just like a pigeon shitting on the board and acting like it won a game of chess.

        • Gary Whittenberger

          V: Sugarpie, you’re the one claiming polygamy is bad, and you’re the one unable to provide sound and relevant evidence, reasons, or arguments in support of that stance.

          GW: We’ve been over this. The burden of proof is on you. You are the one trying to persuade the community to assign you a new right. Your mode of communication is self-defeating.

          V: I suggest you get a dictionary, and look up the word ‘civility’. Being a bigot and a racist is NOT civil. I have no interest in trying to change the mind of a bigot. I will not waste my time trying to reason you out of a stance that you didn’t reason yourself into. You’ve presented no actual arguments for me to address, just your biased and bigoted claim that polygamy is bad. I’m not going to argue with your prejudice.

          GW: Here you are just continuing your ad hominem attack. I disagree with your view of polygamy and then you call me a “bigot” and “racist.” That is a classic example of an ad hominem attack. You’ll have a place in my book.

          V: So go ahead and pat yourself on the back that you ‘won’. Just like a pigeon shitting on the board and acting like it won a game of chess.

          GW: Go ahead and pat yourself on the back for being clever and uncivil at the same time. Uncivil remarks are very often false (they can even be true), but that’s not the reason they are unethical. They are unethical because they are irrelevant, unnecessary, unhelpful, counter-productive, selfish expressions of anger, hostility, or hatred, aimed to intimidate. Think about it.

        • Venavis

          On second thought, don’t bother to explain and defend your answer. I’ve since seen this thread – http://www.patheos.com/blogs/secularspectrum/2017/11/science-racism-motivated-reasoning/ and I have no interest in any further discussion with someone who thinks being ‘civil’ is more important than ‘not being a fucking bigot’. I also have no interest in further discussion with a racist.

        • Gary Whittenberger

          I disagree with you and then you call me a “racist” and a “bigot”? You are making an ad hominem attack.

          Incivility is just a mask worn by persons frustrated with their own lack of an argument, as clearly demonstrated by you right here. You have no good argument for your precious polygamy and so you make an ad hominem attack.

        • Venavis

          Sorry, precious, but I cited my source.

          http://www.patheos.com/blogs/secularspectrum/2017/11/science-racism-motivated-reasoning/

          There is no ad hominem. That is you, in that thread, making racist remarks and defending other racists. You are a racist, so don’t you even pull the civility argument on me. You lost the right to call yourself civil when you tried arguing that black people are inherently stupider than white people.

        • Gary Whittenberger

          Venavis, you are making the ad hominem attack now! I disagreed with you about your precious polygamy and then you called me names. This is what people often do when they get frustrated and are unable to present good evidence, reasons, or arguments to support their position. They go into mean mode. Donald Trump does this all the time.

          When I write my book on incivility, your ad hominem attack will be a clear example.

        • Venavis

          No, darling, I didn’t call you a bigot because you disagreed with me. I called you a bigot because you are a bigot, as evidenced by the thread to which I provided a link. You stated that black people are inherently less intelligent than white people. That, dear boy, is called RACISM. It is a form of bigotry. Therefore, I called you a bigot.

          And just what we need, another privileged little cisgender white boy pretending he’s a victim because people pointed out his shit stinks.

        • Gary Whittenberger

          There you go again.

          Because you continue to make personal attacks against me, to make lame excuses for your misbehavior, to fail to take responsibility for your misconduct, and/or to enable others to do the same, I’m not going to waste my time with you any longer. In the future I will not read, think about, or respond to your posts. I will devote my time to others who are both able and willing to have a civil and rational discussion of controversial subjects. You are blacklisted and blocked.

        • MNb

          Use some juicy foul languange and GW will ban you. Your virtual life will improve – I talk from experience.

        • adam

          Worked for me, too!

        • MNb

          Of course – Kodie and you showed me the way.

        • Venavis

          Kind of too late for that. Already blocked him. Self-righteous ignorant bigots are so not worth the time or energy.

          In other words, fuck that bullshit.

          Goddamn pig-fucker is okay with suggesting black people are subhuman, but using a four letter word is ‘uncivil’. J’en ai plus rien à foutre. Il est rien qu’un prétentieux connard.

        • adam

          Sounds like an argument about how many people can be part of a business or corporation.

          Do we limit how many people can be in a corporation?

        • Greg G.

          Do we limit how many people can be in a corporation?

          Or a family?

        • MadScientist1023

          I disagree. Trying to define marriage as if it were some kind of natural phenomenon is a fool’s errand. Marriage is a social construct. Its norms will inevitably change as the norms of a society changes. If it doesn’t evolve with a culture, it will simply be ignored.

        • Gary Whittenberger

          Marriage is not a natural phenomenon. My definition is prescriptive more than it is descriptive. We are at a point in the evolution of culture where we can now say what a “marriage” should be.

      • Anthrotheist

        Good point about the understanding of marriage, I agree my original description was a bit too vague, and your correction is significant.

        • KarlUdy

          I think you were on the right track.

      • adam
    • Zeropoint

      “A person (as far as I can tell) is a living human being who is conscious, or at least has a history of having been conscious or the potential to immediately (re)gain consciousness.”

      Oi, chummer, don’t go projecting your human chauvinism onto all of us. Some of us godless pinko commies (especially the sci-fi and fantasy fans amongst us) are willing to accept the idea of non-human sapience and personhood.

      However, that kind of reinforces your point: that personhood is about agency and cognitive capacity–which a first trimester fetus, a dead person, and a corporation all lack.

      • Anthrotheist

        I agree, I am willing to accept the idea of non-human personhood; so far I haven’t heard a compelling argument for any particular example actually attaining that designation. As you say, the potential exists, in my opinion because it is focused on the characteristics of the subject and not on arbitrary social identities attributed to the subject.

        • Greg G.

          Koko the gorilla was taught sign language when she was very young so she can communicate with humans. They did a test where she was instructed to put pictures of humans in one pile and pictures of chimpanzees and gorillas in a different pile. She insisted on putting pictures of herself in the human pile. Apparently she was putting what she considered to be persons in one pile and non-persons in the other as she could see that she was more like a gorilla than a human. So if a non-human can consider itself to be a person, who are we to argue with that.

        • Anthrotheist

          I see where you are going with this, but the question remains, “Who considers Koko to be identified as a person?” You’re describing an experiment in which the humans involved inferred from Koko’s behavior what they thought about how she understood the world. From your description, Koko did not describe herself as a ‘person’, including a clear expression of her understanding of person-hood. I don’t believe that this is just splitting hairs, there is a difference between Koko expressing herself and the experimenters concluding from Koko’s behavior that she is thinking or believing something.

          Also note that I believe, while person-hood is a very specific and special category of entities, it is not the only category that should be treated well and with due respect. Exactly what the standards of protection are tends to be a bit subjective (e.g., vegans vs. fruitarians?).

        • Gary Whittenberger

          The category “person” might include chimps, dolphins, AI robots, and if they exist aliens and gods. It depends how we define “person.”

        • Greg G.

          I see where you are going with this, but the question remains, “Who considers Koko to be identified as a person?”

          Apparently Koko herself. From Conversations with Koko: an audience with world’s favourite ‘talking’ gorilla http://www.telegraph.co.uk/tv/2016/06/15/conversations-with-koko-an-audience-with-worlds-favourite-talkin/

          “I also think she feels some pride there,” Dr Patterson says. “Koko is now a self-described ‘fine person gorilla’.” Dr Patterson says Koko is extremely sophisticated in her thought processes, using not just sign language but communication cards, books and multimedia to express herself.

      • Gary Whittenberger

        A fetus lacks these in most of the second trimester also.

    • Joe

      As far as I can tell, liberals tend to view the notion of marriage fairly loosely, and view the notion of person-hood fairly narrowly

      As far as I can tell, conservatives tend to view marriage very narrowly, and person-hood fairly loosely.

      I’d say you are incorrect there. Both Conservatives and liberals see marriage as the same thing. Liberals just include one extra category, that’s all. Sure it seems like a cataclysmic change to conservatives, but not at all significant to liberals.

      As for personhood, that’s irreverent, as I don’t see it used as an argument, ever. Instead consent is what liberals use, ans even non-human persons can’t give informed consent. Conservatives have an even narrower definition: an adult human of the opposite sex. As you will see in any abortion debate, conservatives use person and human interchangeably, or else their argument would break down.

    • adam

      “As far as I can tell, conservatives tend to view marriage very narrowly”

      Which is very interesting

      https://uploads.disquscdn.com/images/3fd7fdb02b269c20d1b106ef8697699431a559b726097d3b17fde217e1ef6d92.png

  • Doubting Thomas

    What’s the difference between racial discrimination based on religious beliefs and racial discrimination not based on religious beliefs? There’s no way to distinguish them.

    What’s the difference between “My religion says that…” and “The crazy voices in my head say…?” I see no reason to give religious beliefs any more credence or value than any other arbitrarily held view.

  • Grimlock

    Interesting article, thanks!

  • Mike Panic

    https://uploads.disquscdn.com/images/829b9fee019e2c1970aa22c1ef560b8d6ed30236544215bc913887b9c4723cdd.jpg

    Yes, it is this simple. IF your gawd has something to say it can say it in person. You claiming some voice in your head told you this, establishes only your failed grip on sanity.

    • Gary Whittenberger

      I like the idea here. However, most religious people don’t claim that God talked to them. Most claim that they inferred God’s will by reading a sacred book which was either dictated or inspired by God himself. What would your response to them be?

      • Mike Panic

        Baseless superstition. Nothing more than that.

        • Gary Whittenberger

          That’s not a bad response, but I think mine would be something like this: “Your book is mistaken on this point.”

  • Michael Neville

    There are certain burdens placed on people doing business. Someone running a bakery is required to meet governmental health regulations. They would not be allowed to bake in a dirty kitchen because they must give glory to the God of Filth. Similarly religious beliefs should not be a pass to discriminate against protected groups, In both cases, the common good outweighs religious convictions.

    • Kevin K

      And if a religious group runs a soup kitchen, for example, they’re also required to abide by health department regulations.

    • Adrian

      But spreading diseases is the sacred duty of every follower of Papa Nurgle! 😛 /WH40K

    • adam

      “They would not be allowed to bake in a dirty kitchen because they must give glory to the God of Filth.”

      Excellent point!!

  • eric

    Bob you mentioned Reynolds vs. United States. It’s worth quoting the decision (my bold):

    So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

    • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

      Yep, good stuff.

      Actually, I quoted Justice Scalia quoting that at the end of the post. Having him say it seemed ironic … or relevant.

      • RichardSRussell

        It’s been said that Neil Gorsuch, Scalia’s successor, is just as conservative as Scalia was. Now this little masterpiece will give us a chance to see if perhaps he’s even more conservative.

        He does differ from Scalia in one regard. Both were raised Roman Catholic, but Scalia clung to it his entire life, whereas Gorsuch drifted over the the Episcopal Church. That makes him the lone Protestant among 5 Catholics and 3 Jews on the Supreme Court. Zero atheists, of course. And don’t hold your breath waiting for any Hindus, Muslims, Buddhists, or animists, either.

        • guadalupelavaca

          It wasn’t just that Scalia was conservative, but it was his view of the constitution. He believed in founders intent. He did not believe the constitution to be a living document that should be interpreted in view of today’s values. Gorsuch became Episcopalian merely to appease his wife. The 2 religions though are very close. In any event I don’t think these jurists will vote pursuant to their religious views. The supreme court has many times ruled to limit the free exercise clause. A number of years ago a native American tribe wanted to use mescaline in their religious worship. Supremes said no. Which is what they will say to the bakers.

  • skl

    Regardless of what the SCOTUS decides, that will settle the matter.

    Just like with Roe v. Wade.

    • Philmonomer

      Public opinion has been steadily moving in the direction of approval of same sex marriage for many years. Unlike Roe v. Wade.

      I suspect if it were put to a popular vote, SSM would overwhelmingly pass. Like it just did in Australia.

      • Pofarmer

        People tend to be largely in favor of the right to abortion, too.

    • Gary Whittenberger

      Aren’t there decisions of SCOTUS which were overturned by a new SCOTUS?

  • skl

    Apparently, every designation of “protected class” resulted
    from legislation, except for the protection for sexual orientation, which
    resulted from the ruling of an agency.

    https://en.wikipedia.org/wiki/Protected_group

    • Otto

      You say that as if the commission just pulled it out of their ass, when your citation specifically says the commission based their decision on the legislation. Could you at least try to be honest? Is it really that hard?

      • Susan

        Could you at least try to be honest?

        He could but he won’t. It’s skl.

        Is it really that hard?

        No.

        • MNb

          AfaIc Skl can be banned as well. I recently learned that he deliberatly formulates incompletely and ambiguously to push others off-feet. Then he can blame them for it by pretending to be the reasonable guy. His comments mainly consist of elaborate strawmen.

        • Greg G.

          I wonder what the “k” stands for in his Disqus handle? I have worked out that the “s” stands for “Sea” and the “l” stands for “Lion.”

          http://i0.kym-cdn.com/photos/images/original/000/873/260/a5b.png

        • MR

          Oh, yes, skl, too. Ed, Candy and Skl are just a bunch of phony-baloneys. Or is that phony-balognas?

          Language. Gotta love it.

        • adam

          “Oh, yes, skl, too. Ed, Candy and Skl are just a bunch of phony-baloneys. Or is that phony-balognas?”

          It’s called apologetics.

          When your main goal is to demonstrate that a certain book doesnt mean what it says or say what it means, it automatically lends itself to dishonesty.

        • MR

          It’s beyond that.

        • Otto

          skl is NOT a Christian…or even religious!

          …I am serious…I really am…no I mean it.

      • skl

        Yes, the EEOC based its decision on legislation from 50 years before.

        “In 2015, it concluded that for Title VII, sex discrimination includes discrimation based on sexual orientation.

        However, the rulings, while persuasive, are not binding on courts and would need to be addressed by the Supreme Court for a final decision.”

        https://en.wikipedia.org/wiki/Equal_Employment_Opportunity_Commission

        • Otto

          That is correct…but you said… “Apparently, every designation of “protected class” resulted from legislation, except for the protection for sexual orientation, which
          resulted from the ruling of an agency.”

          So therefore those protected classes ALSO resulted from legislation. ANY legislation is interpreted by the agencies they affect so implying that the EEOC just came up with the designation by fiat is just dishonest.

          Of course those EEOC rulings are not binding to the courts…stating as much is just stating the obvious. The legislation ITSELF is not binding to the courts.

    • RichardSRussell

      In the US there are 3 main ways of giving some principle or policy the force of law:

      (1) It’s enacted by some legislative body, like Congress or a state legislature or a city council.

      (2) It’s promulgated by an administrative agency as a regulation (federal level) or rule (state and local levels).

      (3) It’s set forth as a binding precedent by a court of law.

      All 3 of these are the legitimate ways of establishing what the law says and means.

      In practical terms, of course, “the force of law” is whatever the cop with the gun says it is at the time.

      • skl

        Repeat from a few minutes ago:

        Yes, the EEOC based its decision on legislation from 50 years before.

        “In 2015, it concluded that for Title VII, sex discrimination includes
        discrimation based on sexual orientation.

        However, the rulings, while persuasive, are not binding on courts and would
        need to be addressed by the Supreme Court for a final decision.”

        https://en.wikipedia.org/wiki/Equal_Employment_Opportunity_Commission

    • eric

      Are you saying that if the legislature passed a law stating gays are a protected class, then you’d agree that, in the future, Phillips would be legally wrong to discriminate against gays as he did before?

      • skl

        “Are you saying that if the legislature passed a law stating
        gays are a protected class, then you’d agree that, in the future, Phillips
        would be legally wrong to discriminate against gays as he did before?”

        No. I’m stating a fact. A fact that many who are interested
        in this case may not be aware of.

        That said, a possible implication of that fact is that
        any determinations of discrimination regarding sexual orientation might carry more weight if sexual orientation was a protected class per legislation.

        Lastly, the defense in this case seems to be arguing that
        Jack Phillips was not discriminating against gays (for he sold his baked goods to gays on a regular basis) but was withholding his involvement in an action (i.e. a gay wedding celebration) his religion found objectionable.

        • Otto

          I already refuted your “fact”…liar

        • eric

          Okay, are you implying that had the legislature had passed the law making sexual orientation a protected class, that this would sufficient for you, skl, to change your opinion from “Phillips’ conduct should be legally allowed” to “Philliips’ conduct should not be legally allowed.”

          Or put another way, why did you even bring up this fact unless you think it makes a difference to the case?

        • skl

          I’m not sure whether Phillips’ conduct should be legally
          allowed or disallowed, even if sexual orientation was a protected class by law. However, I suppose that right now I find the defense’s
          position to be more compelling.

          If sexual orientation was a protected class by law and not just
          by agency opinion, I think sexual orientation discrimination cases in
          general
          would carry more weight.

        • eric

          Agency promulgated rules ARE US law, at least in some cases. Hampton vs. U.S., 1928, SCOTUS ruled that Congress has the right to delegate its authority if it chooses to do so. Since the early 20th century Congress has had the authority to create agencies that can then act as their proxies to promulgate laws. Thus when the FDA says you can’t put plastic in dog food and infant formula, corporations will be breaking the law if they put plastic in dog food and infant formula.

          But if you really think legislature-passed laws provide more weight, you should consider that Colorado’s legislature made sexual orientation a protected class in 2008. The Colorado Governor signed it into law in 2008. That’s five years before Phillips was asked to bake the cake. Phillips wasn’t just breaking some federal agency rule, he was breaking a law passed by the duly elected legislative representatives of the people of his state, a law which was also voluntarily signed by the duly elected executive branch leader of his state. There’s pretty much no way to downplay the law he broke as anything but a real, honest, actual, in every way shape and form law. And if you believe the standard conservative line about states rights being very important, you should be even more supportive of finding him guilty. (Though IMO the conservative blather about states’ rights is IMO mostly just an argument of convenience anyway. With this case as with many others, any time a state does something conservatives don’t like, they throw their vaunted concern for states’ rights right out the window. I’ve little doubt you’ll be happy to do it here.)

        • skl

          “Phillips wasn’t just breaking some federal agency rule, he was breaking a law passed by the duly elected legislative representatives of the people of his state, a law which was also voluntarily signed by the duly elected executive branch leader of his state.”

          Whether Phillips actually broke the law is what the SCOTUS will opine on.

        • eric

          No, you’re wrong again. He broke the law. SCOTUS will determine whether the law he broke was constitutional or not (or partially).

          SCOTUS mostly functions as an appeals court; they (usually) limit themselves to matters of law. and avoid ruling on matters of fact. They don’t like to rule on “did he do it,” they like to stick at the “should what he did be legal” level.

          But in typical conservative fashion, I see that now you realize Phillips broke a legislatively-passed law, you’re no longer interested in defending the notion that ‘passed by a legislature’ should be an important factor against him. An argument is solid and important so long as it leads to an anti-gay-rights result, but gets abandoned the moment it leads to a pro-gay-rights result, eh?

        • skl

          “…I see that now you realize Phillips broke a legislatively-passed law…”

          No, I do not realize that.

        • eric

          You realize it now. So do you now give more weight to the law he violated, or are you saying that you put no stock in the argument you yourself promoted a mere 21 hours ago? Rational consistency, or loyalty to conservativism? Pick one.

        • skl

          No, I do not realize it now.
          You can go back and re-read my comments on this thread.

        • eric

          LOL you do no realize that Phillips broke a legistlatively passed law after I told you the Co legislature added orientation to the list of protected classes in 2008?

          So are you saying you think I’m lying about that? You can just read the legal statute for yourself, here.

        • skl

          That is correct. I do not realize that Phillips broke the law.

          I realize that Phillips regularly served customers he knew
          to be gay. I realize that Phillips is claiming he was not discriminating against gays in this case but was withholding his involvement in an action (i.e. a gay wedding celebration) his religion found objectionable.

          You probably feel, as Bob Seidensticker does, that I’m displaying
          my “obtuseness®” here. As I said to Bob, I have a feeling you will see four or five personifications of obtuseness® from the SCOTUS soon.

        • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

          That’s not obtuseness, that’s stupidity. It is kinda cute that you think that the justices will agree with you, but whatever your problem is, the justices don’t have it. If SCOTUS rules in favor of the baker, that will be because the law was unconstitutional, not because he didn’t break the law. Do you not know how the Supreme Court works?

          You’ve already had this explained to you. You do read the responses you get, right?

        • eric

          And I already told you, SCOTUS is primarily an appellate court. They decide points of law, not individual guilt or innocence. In fact, they can only get a case like this if a lower court has ruled on the matter. The judicial system has already found Phillips guilty of breaking the law. He has appealed not claiming the court got the facts wrong, but claiming the law he broke was unconstitutional and shouldn’t be enforced. If the Supremes agree with him, the law will not be enforced. But he will still have broken it.

        • skl

          If lower courts ruled that Phillips broke the law, then I realize
          that courts thus ruled. Nevertheless, it’s not absolutely clear to me that such a ruling would be correct in this case.

          Given that this Colorado law apparently took effect in 2008,
          it would be remarkable if the SCOTUS now found it to be unconstitutional.

        • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

          Nevertheless, it’s not absolutely clear to me that such a ruling would be correct in this case.

          That’s fine–conclude whatever you want. Just stop pretending that any court is going to agree with you. They’ve found him guilty.

          Given that this Colorado law apparently took effect in 2008,
          it would be remarkable if the SCOTUS now found it to be unconstitutional.

          Why?? Again, you may need to pay a little more attention here. It’s not like SCOTUS reviews all the laws and then takes the initiative to go fix one. It’s the other way around—cases come their way through the appeals process. Example: there are state constitutions that have clauses declaring that atheists can’t hold public office. This is unconstitutional (read Article VI of the Constitution to see), and yet these clauses remain. SCOTUS doesn’t ferret them out to correct them.

        • skl

          “It’s not like SCOTUS reviews all the laws and then takes
          the initiative to go fix one. It’s the other way around—cases come their way through the appeals process.”

          Wiki says

          “The bill was controversial and following its passage by
          the legislature opponents waged a media campaign that failed to persuade Governor Bill Ritter to withhold his signature.”
          https://en.wikipedia.org/wiki/LGBT_rights_in_Colorado

          But perhaps the opponents were not able, or were not
          allowed, to bring a case against the governor and/or the legislature.

        • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

          That’s interesting but irrelevant to my point.

        • eric

          That media campaign occurred before it became law, because the Governor’s signature is the final step in it becoming law (though in some cases, unnecessary). So as Bob says, your quote is irrelevant to the issue. A media campaign opposed to a Governor signing a bill into law has nothing whatsoever to do with whether there was any serious legal suit on this specific issue filed against the law between 2008 and 2013.

        • skl

          “your quote is irrelevant to the issue. A media campaign
          opposed to a Governor signing a bill into law has nothing whatsoever to do with whether there was any serious legal suit on this specific issue filed against the law between 2008 and 2013.”

          Certainly the opponents to the law being signed were also
          opponents after the law was signed. But perhaps such opponents were not allowed to bring a legal suit.

        • eric

          Given that this Colorado law apparently took effect in 2008, it would be remarkable if the SCOTUS now found it to be unconstitutional.

          Kennedy, as often is the case, will be the swing vote. I think it’s hard to say how it will go, and I’d give both sides close to 50/50 at this point. Length of time between a law’s passage and SCOTUS’ review has little to do with the Supreme’s view on the law, for several reasons.

          First, the US judicial system is designed to be reactive, not proactive. SCOTUS can only rule a law unconstitutional after someone legally complains about it and the appeal reaches them. If no Coloradan brought legal suit against the CADA between 2008 and 2013, or all such cases were resolved by a lower court, then SCOTUS would have been unable to rule on it even if they wanted to.

          Second, SCOTUS receives literally about 100 appeal requests for each 1 they are able to fit on their schedule. So it’s not enough to be a legit legal issue, a case has to be an issue the justices prioritize over many other good and legit legal issues occurring that year. It’s often the case that the justices pass over a specific type of case several years in a row before they decide to take it on, because they view other issues as more important in a given year or because they don’t like a specific case and they know another, better example of the same issue will come along eventually. That’s probably true in this case – there have been several other similar cases that didn’t make it to the court before this one did.

          Third, it requires four of the judges to want to hear a case for it to go before the court. The judges all have their preferences as to what sort of law they think is important. If, for example, Scalia didn’t care much about the question of religious freedom vs. anti-discrimination law but Goresuch cares about it much more, that would explain why no similar complaint would have been heard before this.

        • skl

          Thanks. Good analysis and explanation.

        • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

          What eric said. Whether the law was constitutional is what SCOTUS will opine on.

        • Gary Whittenberger

          You’re not sure? How can you be not sure? Are you not sure from the ethical or the legal standpoint or both? To me this seems like a slam dunk for the gay plaintiffs.

        • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

          I’m not sure whether Phillips’ conduct should be legally allowed or disallowed, even if sexual orientation was a protected class by law.

          Why? If sexual orientation is legitimately protected as a class, how can Phillips’ actions not have violated that law?

        • skl

          Because ‘Requiring contribution to the celebration of
          certain ceremonies’ is not a protected class.

        • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

          And “homosexual” is. He denied a service to a homosexual couple that he would’ve given a heterosexual couple.

          Is this the famous skl obtuseness® on display? Or is there a legitimate point here?

        • skl

          I have a feeling you will see four or five personifications
          of obtuseness® from the SCOTUS soon.

        • Otto

          The only difference from ceremonies that the baker did business for and ‘certain ceremonies’ he didn’t were the people involved…stop being a dishonest douche.

        • HairyEyedWordBombThrower

          the State is defending.

          Masterpiece Cake shop is the plaintiff.

        • Gary Whittenberger

          On your latter point, I think it would still be unethical and illegal if the baker rejected the request of a heterosexual man to make a gay-themed wedding cake for an unnamed wedding. Agree?

  • RichardSRussell

    Well, my religion has as one of its core principles the eating of our founder’s flesh — and not just symbolically, like those namby-pamby Catholics. We want real meat on our chawbones! Unfortunately, since the founder isn’t around any more, we’re compelled to find substitutes just as pure and innocent as he was, and them plump little babies make mighty fine tastin’. Sincerely held religious belief and all, y’know, completely protected by the US Constitution.

  • RichardSRussell

    2 tangential points:

    (1) When the Supreme Court ruled in 2010 (Citizens United v. FEC) that associations and organizations (notably corporations but also unions, churches, and heck even Girl Scout troops and bowling leagues) were indistinguishable from real, live human beings, they opened the floodgates to all sorts of pernicious interpretations. It took only 4 years for the über-Christian Green family that owned Hobby Lobby to push theier case to SCOTUS that, if corporations could spend freely on politics because they had freedom of speech, why then they should be able to discriminate freely against their employees because they had freedom of religion as well. Yes, that’s right. To be consistent with their own stupid precedent, the Supremes had to agree that bodiless, brainless, thotless, idea-less entities existing only on paper nonetheless had sincerely held religious principles. This is the idiotic road we started down due to the misreading of the Santa Clara v. Southern Pacific decision of 1886. (You could look it up.)

    (2) Why should atheists be interested in how this case turns out? Because gay people are currently leading the way (as women and black people did in earlier decades) in dragging the US into the future where we can actually have the just, peaceful, tolerant, humane, egalitarian, fair society envisioned by the Declaration of Independence, Constitution, and Bill of Rights. Gay people are blazing the trail for us atheists, the last minority group in America that it’s still safe to discriminate against, so we need to support them whenever possible.

    • RichardSRussell

      And 1 additional point, now almost completely off topic but based on a pair of headlines I just read on CNN.com. NFL commissioner Roger Goodell just had his contract renewed for an additional 5 years. He’s expected to make about $40 million each year. At that rate, it’ll take him nearly a dozen years to pile up the kind of mad money that a Saudi prince was able to shell out ($450.3 million) for an original painting by Leonardo da Vinci. In case you were wondering who benefits from that Citizens United decision allowing millionaires and billionaires to buy public policy in the US, and whether they can afford it.

      • Greg G.

        a Saudi prince was able to shell out ($450.3 million) for an original painting by Leonardo da Vinci.

        I wonder what the Saudi prince would pay for an original painting by Greg G? I’m willing to consider changing professions if the price is right. I would be sure to use the highest quality paint on the market, not that homemade junk da Vinci used.

    • Gary Whittenberger

      If the discrimination had been against atheists instead, would gays be on our side in the case?

      • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

        I’ve wondered that. I think the atheist community is solidly pro-gay and will remain so, pretty much regardless of their support for the atheist cause, but it’d be nice if it were obvious that other minority communities more clearly returned the favor.

        • jturner4413@indy.rr.com

          This gay atheist supports both camps. Keep writing your great articles Bob. I really appreciate you!

        • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

          Thanks! I was too young (or was too unaware) to participate in the civil rights movement. Perhaps feeling the need to redress that, the push for civil rights for homosexuals is one that I’ve supported to the best of my ability at this blog.

        • RichardSRussell

          Well, one obvious minority community that doesn’t is black people. Their ancestors, kidnapped from their native Africa and forcibly imported to the US, were brainwashed into accepting Christianity by their slavemasters, because one of the fundamental tenets of Christianity is that you should be meek and submissive to your master (children to parents, women to men, slaves to owners, citizens to Caesar, everybody to God, etc.), and it was very much in the slave owners interests to keep their “property” from feeling too much sense of (or need for) independence. Unfortunately, since the Bible was the only reading material they got, and Sunday services were the only free time, they internalized an awful lot of Christianity, as their descendants do to this day, despite the warnings by the likes of Elijah Muhammad and Malcolm X that they were victims of their slave religion.

          So no, I don’t expect that minority status alone is going to inevitably produce sympathy for atheists as a fellow minority group.

        • eric

          I’m not sure atheism -> pro gay as much as cosmopolitan -> atheist AND pro-gay.

      • jturner4413@indy.rr.com

        I am a gay atheist, so the answer is yes. Gay people know what the church has done to them, rejecting them and telling them they will burn in hell. Most gay people might not call themselves atheists, but they don’t go to church or generally support religion.

        • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

          I’m always surprised when I hear a gay person explaining how they go to church. I realize it varies by denomination, but hasn’t the church made their hateful position clear??

        • jturner4413@indy.rr.com

          Most of my many gay friends are just not interested in studying religion or atheism and I don’t know why. I was a very devout Pentecostal in my youth and it was the late Madalyn Murry O’hair who changed me. The few gay people who do go to church usually go to a gay friendly church like the Church of Christ or MCC. I meet a lot of people who are not religious, but can’t seem to shed the whole “god” concept and I don’t know why.

        • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

          Maybe they’re like lots of atheists who are apatheists–they just don’t much care about the atheism. They’ve figured out that there is no god and just move on.

          The issue fascinates me (or enthralls me) because the Christian claims are just so obviously bizarre. And adults by the millions accept them.

        • Otto

          I was that guy for a long time, it was when I had kids that I felt I had to make an effort back to Christianity, which then lead to atheism. Without kids I would still be there most likely.

        • al kimeea

          That was me after reading The Holey BuyBull – grownups buy this? – and moving on. As I grew older, I realized religion is very much not a largely benign, private relic of the past, with little public influence and that the deity eternally plays all sides against the middle. That a book so obviously bizarre it’s ridiculous leads otherwise sane adults to conclude theocracy is a good idea, rather than pointing and laughing, gobsmacks. But then, most people have as little regard for history as for science and either don’t bother or get rosy nostalgia. Being bathed in religion (with its inherent love of unquestioned authoriTAY!) from birth is the sole reason it still has traction.

          It would be nice if polite society could let deities go while, conversely, the Salvation Army is the food bank in town.

        • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

          Unfortunately, in the US, the political right has discovered that religion is useful.

        • Ficino

          Dan Fincke (Camels with Hammers) had a college friend who later became a Catholic monk. The friend made some videos where he talked about how it did not go against Church teaching to let his identity as a gay man be known, even though he was vowed to celibacy. Dan says that eventually, a conservative Catholic saw one or more videos and reported Dan’s friend. The friend was blocked from being ordained as a priest. Eventually the friend married another man.

          http://www.patheos.com/blogs/camelswithhammers/2017/07/considered-catholicism-sufficiently/

        • Michael Neville

          So the Church won’t ordain gays but pedophiles get a pass. Why am I not surprised that an anti-humanist organization would do that?

        • Ficino

          Because all the definitions have been established as true. Our laws are to conform to their definitions. /s

        • boneheadaudio

          There is actually an entire denomination that is basically an outreach program to the LGBT community.
          https://en.wikipedia.org/wiki/Metropolitan_Community_Church
          They were instrumental in getting the laws changed in Ontario.

        • Gary Whittenberger

          Thank you for that support.

          Let’s change the scenario a bit: A custom baker is a gay atheist. A heterosexual Christian couple comes to the baker and requests that he/she make and sell a Christian-themed wedding cake to them. The baker refuses on the grounds of “conscience.” Should the state compel the baker to provide the requested cake on threat of a penalty?

        • Michael Neville

          What part of “discrimination is discrimination” do you have trouble understanding? Gays discriminating against straights is as illegal as straights discriminating against gays. This is not a difficult concept, except for people who want to discriminate.

        • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

          Religion is a protected class.

        • Gary Whittenberger

          I take that as a “Yes” to my question. But why shouldn’t the “protected class” by all human persons with only a few rational exceptions? A business open to the public should sell to all persons requesting purchase unless a person
          a. doesn’t have the money to pay for the service or product
          b. is violating health and safety regulations
          c. is engaged or is preparing to engage in an illegal act
          So, all persons can and should be members of the “protected class” unless they meet any of these criteria.

          Merchants should not engage in viewpoint or lifestyle discrimination for religious, philosophical, or conscience reasons.

        • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

          Maybe that lawmakers work to solve problems rather than nonproblems. Shopkeepers don’t point at a potential customer and say, “We don’t serve your kind!” when that person is a bow-tie wearer or has red pants. It’s just not a problem. But they do say that to Muslims and black people, so that’s the rationale for protected classes.

        • Gary Whittenberger

          But lawmakers could work to BOTH solve problems AND prevent problems, and I think they should. The reactive approach leads to delays in justice, which are harmful and unnecessary.

          Lawmakers could solve and prevent a lot of problems by just passing a law which says “Merchants or businesses open to the public are prohibited from engaging in viewpoint, belief, or lifestyle discrimination against customers for religious, philosophical, or other reasons. However, they may refuse to serve those who are unable to pay for goods or services, who violate health and safety regulations pertaining to the business, or who are engaged or preparing to engage in an illegal act.”

        • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

          Is that different from the status quo?

        • Gary Whittenberger

          Yes, I believe it is. At the present time the approach is reactive and based on protecting certain “identity” groups, as you yourself has pointed out.

        • MNb

          Yes. Are you really arrogant enough to think that this is a clever or hard question?

        • Rudy R

          To borrow a phrase from Bill Maher, I don’t know it to be a fact, I just know it’s true that a gay atheist baker would not refuse to sell a cake to a Christian.

        • Gary Whittenberger

          I think you are probably correct about that.

        • eric

          If they’re asking for a wedding cake identical or similar to one the baker has made for others, then yes the state should compel the baker to serve the customer. They want a giant cross or big penis, or want to write “death to gay atheists” on their wedding cake, then the baker could reasonably say no – assuming they had some sincere ideological problem with the request.

          However, barring that last extreme example, I’d personally hope the baker doesn’t say no. Let’s not sink to the spiteful level of our critics.

        • Gary Whittenberger

          I disagree. If the customers want a giant cross, then the baker should be compelled to comply. If the baker refuses, then he is engaged in viewpoint discrimination.

          I disagree. If the customers want a big penis on the cake, then the baker should be compelled to comply. If the baker refuses, then once again he is engaged in viewpoint discrimination.

          Your last “extreme example” is on the borderline. If anyone were to carry a sign in public that said “death to gay atheists,” would that be legal? It probably would, and so in the case of a request for a cake with this message, the baker should also be compelled to comply. On the other hand, if the message for the cake were “death to the gay atheist John Jones,” then that would probably be illegal and the baker should not be forced to comply.

          I believe sincerity of belief has nothing to do with the proper ethical and legal action in these cases. The government need not and should not evaluate sincerity of belief.

        • eric

          Your last “extreme example” is on the borderline. If anyone were to
          carry a sign in public that said “death to gay atheists,” would that be
          legal? It probably would, and so in the case of a request for a cake
          with this message, the baker should also be compelled to comply.

          If the baker says “I don’t do ‘death to….’ messages about anyone, for anyone,” then it’s not viewpoint discrimination since he’d do it for every and even opposite viewpoints. He treats all viewpoints the same…by not doing violent messages for any of them. It’s more like a manner restriction on the speech he’ll provide for others. Similarly if the baker says “no religious symbols (to include big red A’s for Atheists or Humanist symbols), then he’s probably going to be legally fine refusing a big cross. And if he refuses all ‘rude’ cakes, then he’s legally okay refusing a request for a big penis cake. Again, not viewpoint discrimination since he’s not picking between viewpoints, he’s just limiting the manner of service he offers.

          Similarly, this baker would have absolutely no problem with the law if he didn’t make wedding cakes for anyone. In that case, a gay couple cannot compel him to make one. His conduct becomes illegal discrimination when he refuses to do for gays what he does for straight customers.

        • Gary Whittenberger

          Your point here is irrelevant if the baker has presented himself to the community as a custom baker meaning “I will bake any cake for anybody.”

          If the merchant is not a custom baker, then he would need to stipulate in advance (especially in advertising and at his place of business) exactly what he will make and not make. Even then, he could not discriminate against customers who are gay who wanted a cake within his stipulated repertoire.

        • adam

          https://uploads.disquscdn.com/images/30b0333e6cfa04232308219bc89ad433734e764bf163a7e7ca3d53bc5468adc5.jpg

          Which allows Subway Sandwich Artists to refuse anyone who offends their ‘religious values’.

        • eric

          Your point here is irrelevant if the baker has presented himself to the community as a custom baker meaning “I will bake any cake for anybody.”

          Your ‘if’ is not true. Phillips has stated publicly that he doesn’t do Halloween cakes, for instance. Which is perfectly legal, because he’s treating all customers the same. Again, you can refuse to do a certain service for all customers. You just can’t refuse to do it for certain customers but not others..

        • Gary Whittenberger

          Please provide a link to the claim about Phillips and Halloween cakes.

          I am just as concerned, maybe more, about the morality as about the legality of this issue. I think the law should be formulated or interpreted to match correct morality.

          Why doesn’t Phillips want to do Halloween cakes? Because of his religious beliefs? I think this refusal to make a Halloween cake may be just as unethical as a refusal to make a gay-themed wedding cake.

          I am proposing that custom merchants should not discriminate against any “good customer” which is any person who is willing and able to
          1. Pay a price for goods and services which was previously established for all customers.
          2. Refrain from uncivil, disruptive, or illegal behaviors during the transaction.
          3. Be fair to other customers during the transaction.
          4. Comply with community standards for dress and hygiene during the transaction.

        • adam
        • Greg G.

          But but but the devil really is out to get me. Jesus changed me but the devil makes me do the things I did before Jesus changed me. How else can you explain it?

        • adam

          “How else can you explain it?”

          You are fuckin’ nuts?

  • TheNuszAbides

    There’s little objective evidence with which to evaluate someone’s Christianity.

    we must pray for the discovery of their sexbreaking-all-twenty-odd-Ten-Commandments videos.

  • Gary Whittenberger

    “When a Christian’s views are nothing more than what he says they are, with no means for us to evaluate their logic, society shouldn’t bend over backwards to accommodate them.”

    I certainly agree with you here, Bob. Why should “God required me” ever be an excuse for breaking the law? Nobody actually knows that God required them. It can’t be objectively verified. And others may contend that God required them to do the opposite. For example, the gay couple could have asserted that God required the baker to bake and sell them the cake. Religious beliefs often cancel each other out, and thus become irrelevant.

  • Dyslexic, agnostic insomniac

    Hmmm…… “acting like animals because we come from animals” – surely that’s better than acting like the handful of dirt that everyone knows Yahweh created us from! Dirt can be pretty nasty stuff, you know, especially when it gets on the white shag-pile carpet.

  • Jim Jones

    When will these snowflake bakers refuse to make cakes for divorced people?

    • Greg G.

      Do Baptist bakers make cakes for those devil worshiping Catholics who are going to hell?

      • Otto

        Yeah what about all these people being married in the Catholic Church by the acolytes of the Anti-Christ on the throne? Why isn’t that a problem?

  • boneheadaudio

    Simple solution: the baker stops selling wedding cakes altogether. No more chance to discriminate.

    • http://www.patheos.com/blogs/crossexamined Bob Seidensticker

      I’ve heard that he’s since done that, though I didn’t verify.

  • Matt Cavanaugh

    There’s nothing inherently wrong about same-sex weddings within Christianity. The baker can drop his bias and still be a Christian.

    This is nonsensical. The baker’s sincerely-held opposition to same-sex marriage is his own; it matters not what informs him, and he has every right to hold and express it.

    As secularists, we should be highly sensitive to free exercise rights. That said, this case does not properly hinge on the baker’s free exercise of religion, but instead on his free speech rights, specifically his freedom from compelled speech.

    FFRF’s amicus brief is quite shoddy; heavy on polemics and light on legal sagacity. Far more persuasive are two other briefs. The first, by Volokh and Carpenter, arguing against the baker, offers a discreet and narrow rule of thumb for determining when something constitutes protected speech:
    http://americanunityfund.com/wp-content/uploads/2017/10/Filed-copy.pdf

    The other, by the First Amendment Lawyers Association, arguing for the baker, offers a different, but similarly easily-definable, method for protecting against compelled speech:
    http://www.scotusblog.com/wp-content/uploads/2017/09/16-111-tsac-first-amendment-lawyers-association.pdf

    The sincere hope of the above-mentioned amici, both pro and con, is that the Court will adjudicate from a tightly-defined free speech perspective, thus both buttressing our free speech rights, while avoiding opening a Pandora’s box of discrimination shielded by free exercise claims. FFRF and others, by trivializing free speech and resting their case on free exercise, are picking the wrong fight, and one we cannot afford to lose.

    • adam

      “That said, this case does not properly hinge on the baker’s free
      exercise of religion, but instead on his free speech rights,
      specifically his freedom from compelled speech.”

      I see where you are going:

      https://uploads.disquscdn.com/images/8f6da14fe703eddce996e67a273a7c0b2bebcb6544517f3f761d91d9fdd9f27e.jpg

      • Matt Cavanaugh

        That’s cute, Adam. Infantile, but cute.

        • adam

          No, it’s not infantile.

          Where is the value of the free speech that the buyer has then?

          If the baker is claiming free speech, the cake and it’s ‘speech’ belongs to the buyer.

        • Matt Cavanaugh

          That’s not how the law handles artistic expression.

        • adam

          If I purchase something custom made for me and mine, it is MY EXPRESSION that I am purchasing.
          Not the baker in the back room making cakes.

        • adam

          From your link:

          “The freedom not to speak must include the freedom not to create speech, and not to participate in others’ speech”

          Nobody is forcing the baker to make cakes.
          The baker is IN THE BUSINESS OF MAKING CAKES.
          The baker has already spoken when opening a PUBLIC BUSINESS.

          The baker should have created a PRIVATE CLUB, to avoid having to deal with the public.

    • Otto

      How does the court “adjudicate from a tightly-defined free speech perspective” to allow discriminating against gays without opening up discrimination of all sorts based on religious belief? I can understand arguing against having protected classes, I can’t understand the argument that there should be protected classes but allowing loopholes to discriminate against them them.

      • guadalupelavaca

        I don’t think it has to be just about religion. What if a person wanted a cake decorated with Nazi stuff? I don’t the the baker should be required to decorate it.

        • adam
        • guadalupelavaca

          I don’t think you understand the issue in this case. The baker cannot deny the cake to a protected class. That is not the issue. If a black person ordered a cake and wanted words on it that said death to all white people, then the baker could deny the writing. Conversly if a white person wanted a cake saying death to blacks Mexicans and Jews the baker could refuse. It’s a free speech issue. Not a religious one.

        • adam

          ” It’s a free speech issue.”

          WHOSE free speech?

        • adam

          I don’t think you understand the issue in this case.

          The baker isnt speaking through the cake, the buyer is.

        • guadalupelavaca

          Look…I didn’t write the briefs. I’m just telling you. The baker’s attorney narrowly defined the issue…as all good lawyers will do. They are arguing 1st amendment artistic expression. It’s not about the cake. It’s what the baker ( artist) is being asked to do. As I said in my example a baker wouldn’t be required to write hateful things. That’s what the issue is. We will see how the Supremes rule on it.

        • adam

          ” It’s what the baker ( artist) is being asked to do.”

          And who gets to define themselves as artists in order to discriminate?

          https://uploads.disquscdn.com/images/438cfa83921188096383ff88e95d7c1910492d78c9c1b1c9961e5e82cd53b81f.jpg

        • guadalupelavaca

          Very good question. Ultimately that would be left to the court. And the first test will be with scotus. “Is decorating a cake baking, or is it art?”

        • Otto

          How can you say that an item promoting violence is equatable to a wedding cake?

        • Otto

          Nazi’s are not a protected class…it seems to me you have said you are a lawyer…right? If you are you should know the answer to your question. You seem to be a reasonable person much of the time but asking this question is either ignorant or disingenuous.

        • guadalupelavaca

          Um…Otto I am neither ignorant nor disengenuous. That is what the attorneys are arguing. You don’t believe me but I am a constitutional lawyer. It has nothing to do with protected class. That is a red herring. The lawyers have narrowed this to artistic expression.

        • Otto

          I actually do believe you are a lawyer. And I do see how it can be about artistic expression. But at what point is artistic expression allowed to be used as an excuse for discrimination? Being a Nazi is not a protected class so bringing that up is also a red herring, the fulcrum of the issue is where ‘artistic expression’ meets ‘protected class’.

        • Joe

          What if a person wanted a cake decorated with Nazi stuff?

          Then it wouldn’t be allowed. A NAZI could, however buy one of the exact same cakes the bakery has always made, and do with it what they like in the privacy of their own home.

      • Matt Cavanaugh

        I suggest you read the two amicus curiae briefs I link. The right to refuse to create expressive art is distinct from a claimed right to discriminate against a protected class based on one’s religious beliefs. The Court may affirm the former right, and rule on whether “cake artistry” constitutes artist expression or mere conduct.

        • Otto

          So if the SC rules in the way you are pointing what is to stop the local supermarket from discriminating their cakes? How are we going to legally differentiate between an artistic cake and a custom made supermarket cake? How do you say one is art and the other is just a cake?

        • Matt Cavanaugh

          Read the goddamn briefs, Otto.

        • adam

          From one of the briefs:

          “Likewise, a photographer or a wedding singer should not be punished for
          choosing not to create photographs celebrating a same-sex
          wedding, or for choosing not to sing at such a wedding.”

          Likewise a cook or server should not be punished for choosing not to create meals for or choosing not to serve.

        • Matt Cavanaugh

          That quote describes the law. And if you can’t tell the difference between bussing tables and creating art, you truly are exceedingly dense.

        • adam

          Who defines what art is and what a food artist is?

          https://uploads.disquscdn.com/images/30b0333e6cfa04232308219bc89ad433734e764bf163a7e7ca3d53bc5468adc5.jpg

          You are the dense one here if you cant see problems.

        • Otto

          What do the briefs have to do with my question? I would ask the writers of the brief the same.

        • adam

          “How are we going to legally differentiate between an artistic cake and a custom made supermarket cake?”

          by asking the baker apparently and not the buyer.

          https://uploads.disquscdn.com/images/30b0333e6cfa04232308219bc89ad433734e764bf163a7e7ca3d53bc5468adc5.jpg

        • Matt Cavanaugh

          How would you?

        • Otto

          I wouldn’t…either have protected classes or don’t…but loopholes for religious belief is not an answer imo.

        • Matt Cavanaugh

          So you have no ability to recognize artistic expressions, and see no need to afford them First Amendment free speech protection.

        • Otto

          No, I can. I just don’t see cakes as generally artistic, though I admit they could be artistic in some circumstances just like ice carvings can be art. What I am trying to get at is how do we legally draw that line. Protected classes are going to make these issues messy. Drawing a line between protected classes and forced artistic expression is always going to be problematic because there is not a clear line between when just making a cake becomes art, but I fully admit that at some point it does.

          Here is an example of my concern. My wife works at a large hospital. They have a regulation that everyone has to be inoculated and have flu shots. They also have an opt out option for religious reasons. It should be no surprise that people use, and attempt to use, that religious exemption often when that isn’t the issue. They are anti-vaxxers or other nuts. It has created a situation where the HR dept has to make judgement calls that they are not qualified to make. Having a religious exemption makes it more dangerous for the patients that they are supposed to care for. We allow religion to be used as a ‘get out of jail’ free card at the detriment of the greater good. If it is to be used it should be as narrowly defined as possible.

        • Matt Cavanaugh

          If you see ice sculpture as artistic, but custom cake decoration as not, then you’ve made a distinction, drawn a line, for reasons. Artistic expression is protected by law, so the line must be legally drawn. I would err toward a most inclusive definition, as this affects all our free speech rights.

          Your vaccine example shows how religious exemptions can open a Pandora’s Box. The free exercise claims in Masterpiece are nebulous, and if conceded, would set no definable scope or limit to such claims. This case does not need to be adjudicated on a free exercise basis, and that is why so many amici on both sides are urging it be on its free speech claims.

        • adam

          “Artistic expression is protected by law, so the line must be legally
          drawn. I would err toward a most inclusive definition, as this affects
          all our free speech rights.”

          https://uploads.disquscdn.com/images/438cfa83921188096383ff88e95d7c1910492d78c9c1b1c9961e5e82cd53b81f.jpg

        • Matt Cavanaugh

          You continue to post pictures instead of making cogent arguments. Perhaps you were raised on comic books.

        • adam

          “Perhaps you were raised on comic books.”

          No, I did read a few growing up, but hardly raised on them.

          “You continue to post pictures instead of making cogent arguments. ”

          Sorry if I am so far above your head that you fail to comprehend.

          You said you err to the most inclusive definition.

          Subway has already declared their workers as artists.

          What can’t you understand about this.
          Do I need to dumb it down even more?

        • Otto

          My local supermarket decorates custom cakes…and it’s not art. But yeah I agree with your point that it should be adjudicated strictly on a free speech basis. However even on a free speech basis this could be dicey considering that businesses are ‘persons’ now and have free speech rights.

        • Matt Cavanaugh

          That should not be a concern, so long as the ruling does not extend protection beyond artistic expression to mere conduct.

        • adam
        • Matt Cavanaugh

          NB: customizing a cake with messages and designs, or with selections from a menu of flavors, fillings, toppings, etc., most assuredly does not rise to the level of art. An individual or business, however, may refuse to produce any message or design as it sees fit. That is not in dispute.

        • adam

          “most assuredly does not rise to the level of art. ”

          Says who?

        • adam

          ” We allow religion to be used as a ‘get out of jail’ free card at the detriment of the greater good.”

          https://uploads.disquscdn.com/images/71c822a33e2f503a5c2aa115c0094164e08db6aecdfede3adb527ddd547dde25.jpg

        • eric

          If it’s easy to recognize, give us an equally easy legal test for it.

          But more importantly, I don’t think ‘it’s art’ should be a sufficient defense. The street cartoonist that will draw your kid as an oversized head on a bodybuilder’s body for $15 is an artist. A good face painter at a kid’s party is an artist. Should the street guy taking $15/picture from wandering tourists be allowed to say “sorry, I don’t serve Jews?” Should the the face painter you hire for your kid’s 8th birthday be able to say “sorry, it’s against my religion to paint the faces of black children?” No (IMO). It seems to me more is needed than mere ‘it’s artistic expression.’ What separates both those types of cases from Maya Lin’s vietnam vet’s memorial or the friezes on the Supreme Court is that the face painter and cartoonist provide largely the same artistic service over and over again in an ‘open door’ type setting. Thus while recognizing that they do art, it’s also the case that they are like a public accommodation. And in terms of providing similar services to many public customers, baker Phillips is much more like them than he is like Maya Lin.

        • Matt Cavanaugh

          This is indeed a legal thicket. Singers are allowed to refuse to perform at weddings they disapprove of, no matter what songs they sing.

        • Joe

          How do you say one is art and the other is just a cake?

          The price tag?

        • adam

          “Likewise, a photographer or a wedding singer should not be punished for choosing not to create photographs celebrating a same-sex wedding, or for choosing not to sing at such a wedding.”

          Likewise a cook or server should not be punished for choosing not to create meals for or choosing not to serve.

          https://uploads.disquscdn.com/images/4e858d6309473f5b589f65b1de9b760d39c28ec610aa4e38f82e1f3f9dace2a7.jpg

        • eric

          You didn’t really answer Otto’s question. But I think I can do so more directly; a ruling for the baker wouldn’t allow discriminating against gays but not other protected classes. At best it would limit such cases of allowable discrimination to some high legal standard of what constitutes ‘art,’ but that’s about it. If SCOTUS does rule that some public accommodation services count as unconstitutionally forced speech, that ruling will immediately be applicable to service-providers who object to being made to do ‘forced speech’ for blacks, old people, Christians, what have you, and they’ll say it’s because of their religious beliefs.

          But there’s a caveat. The conservative bloc of the court is conservative, not libertarian. Meaning they probably don’t want to open the door to discrimination against all classes (as libertarians would), only the classes that they see as not worthy of defense under their conservative values. So IMO there is an outside chance that SCOTUS will just make a very narrow ruling and say it doesnt’ apply to other types of discrimination. Something like ‘we find in this particular case that religious expression trumps equal service, but this ruling should not be taken to imply it will do so in other similar cases of racial etc. discrimination.’ That would IMO be unfair, arbitrary, and pretty transparently anti-gay…but I wouldn’t put it past Alito or Goresuch to write a decision like that.

        • Matt Cavanaugh

          I wouldn’t be surprised if, whatever the vote, several opinions were issued.

        • adam

          I know that certainly everything I do in my job is as art

          Definition of art Merriam Webster

          1 : skill acquired by experience, study, or observation

          2 a : a branch of learning:

          (1) : one of the humanities
          (2) arts plural
          : liberal arts
          b archaic : learning, scholarship
          3 : an occupation requiring knowledge or skill