When the "Big Top" came to town, I remember being impressed by a
fellow they called "the rubber man". This contortionist could bend in
places you'd never believe possible. Mister Phillips, the Cake
Master, comes pretty close to matching that long ago rubber man.
I wonder if Mister Phillips checks each item that comes into his home
to be certain that "Gay Hands" have never touched it? When he dines
out does he check to see if the chef is Straight? How can he be
certain that the pants he just bought were not previously handled by a
Gay couple? Gads! It must be tough work, trying to be certain that
the world is Heterosexual.
Thank Heaven Donald Trump is going to return America to her "Former
Greatness". Back in those Golden Days we had none of those same sex
marriages. There were very few Gay People around. Mostly we called
them "Queers", and "Fairies", and they were all men. Two women were
allowed to hold hands, but never two men. It just wasn't "manly".
But those Liberals changed things with all their Weeping Hearts stuff.
Not only did they begin allowing Queers to "come out", but they even
permitted "mixed" marriages. And "Coloreds" moved in next door and
even had the nerve to run for public office. But the big mistake came
when we let the "girls" out of the kitchen and the bed room, and
allowed them to vote. It's never been the same. But maybe Donald
Trump will put the girls back where they belong, and he and Billie
Bush can giggle about it when they meet in the locker room.
Carl Jarvis
On 12/7/17, Demaya, Diego via acb-chat <acb-chat@acblists.org> wrote:
> The Gay Wedding Cake Case Isn't About Free Speech
> [http://prospect.org/sites/default/files/styles/large/public/masterpiece_cake.jpg?itok=5Mutuwgu]
>
> (AP Photo/Brennan Linsley)
>
> The wedding cake display at Masterpiece Cakeshop in Denver on June 6, 2013.
>
> On December 5, the Supreme Court will hear oral argument in Masterpiece
> Cakeshop, the case in which a baker claims that free speech protects his
> right to refuse to make a cake for a same-sex wedding.. Although it is
> impossible to know how the Court will rule, I can confidently predict that
> if the baker wins, the justices' explanation will be incoherent.
>
> There's a lot of confusion, some of it intentional, over what this case is
> about. Here are the basic facts. Charlie Craig and David Mullins visited the
> Masterpiece bakery and looked through a photo album of custom-designed
> cakes. When the owner, Jack Phillips, greeted them, they told him (according
> to his own testimony) that they "wanted a wedding cake for 'our wedding.'"
> Phillips told them that he did not create wedding cakes for same-sex
> weddings. They left immediately without discussing any details of their
> proposed wedding cake. The entire exchange lasted 20 seconds. Craig and
> Mullins then sued Phillips for violating Colorado's antidiscrimination
> statute. Phillips claimed that he was protected by freedom of speech and
> freedom of religion.
>
> To clarify the issues in Masterpiece Cakeshop, it helps to contrast it with
> a case now pending in the United Kingdom Supreme Court. Ashers Bakery in
> Belfast, Northern Ireland, refused on religious grounds to make a cake iced
> with the slogan "Support Gay Marriage in 2014." It was sued for
> discrimination. The bakers testified, and the trial court accepted, that
> they would have supplied the cake if there had been no message and that they
> would have refused to produce the message even if the customer had been
> heterosexual. The court nonetheless found that refusing to write words
> supporting same-sex marriage was itself discrimination based on sexual
> orientation. The Northern Ireland Court of Appeals
> thinks<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.equalityni.org_ECNI_media_ECNI_Cases-2520and-2520Settlements_2016_AshersFullJudgement-2DAppeal.pdf&d=DwMFaQ&c=cBOA5YEoZuz9KdLvh38YxdrPtfJt83ckXekfBgq5xB0&r=CK8oOj7-JYZnTDmB5orNTVZXar6NrsnGtGHfQ5m79Do&m=z9EBg1GMeNvNagniBn12SFI4ZLvExM2MsprsW8Ph4E4&s=Bo1uP4p5yXw_589EQbLvHVJlmWqylgTzkHzjRwry-UQ&e=>
> you can commit antigay discrimination against a heterosexual customer, by
> refusing to produce a message supporting same-sex marriage.
>
> This is a
> bizarre<https://urldefense.proofpoint.com/v2/url?u=https-3A__lawandreligionaustralia.blog_2016_10_25_the-2Dashers-2Dgay-2Dcake-2Dappeal-2Done-2Dof-2Dthese-2Dthings-2Dis-2Dnot-2Dlike-2Dthe-2Dothers_&d=DwMFaQ&c=cBOA5YEoZuz9KdLvh38YxdrPtfJt83ckXekfBgq5xB0&r=CK8oOj7-JYZnTDmB5orNTVZXar6NrsnGtGHfQ5m79Do&m=z9EBg1GMeNvNagniBn12SFI4ZLvExM2MsprsW8Ph4E4&s=6ztODygsPgn9k525u7PEpkejlqUq7QSsJDxgcPoez9U&e=>
> interpretation of antidiscrimination law. It also would clearly violate the
> First Amendment if it were adopted by any jurisdiction in the United States.
> One cannot be compelled to say what one does not believe. The Supreme Court
> so held in 1943, when it decided that children could not be required to say
> the Pledge of Allegiance: "If there is any fixed star in our constitutional
> constellation, it is that no official, high or petty, can prescribe what
> shall be orthodox in politics, nationalism, religion, or other matters of
> opinion or force citizens to confess by word or act their faith therein."
> The Court has since explained that a person cannot be compelled to be "an
> instrument for fostering public adherence to an ideological point of view he
> finds unacceptable." When the state does that, it "invades the sphere of
> intellect and spirit which it is the purpose of the First Amendment to our
> Constitution to reserve from all official control."
>
> But this is not the issue in Masterpiece Cakeshop. Unlike Northern Ireland,
> Colorado is not telling Phillips what words he must put on his cake. It is
> merely telling him that if he sells any products to heterosexual couples, he
> must sell the same products to same-sex couples. He is free to refuse to
> write "Support Gay Marriage" on any cakes that he sells, so long as he
> refuses that to both gay and heterosexual customers.
> So this is an easy case. Phillips should lose.
>
> So this is an easy case. Phillips should lose.
>
> Much of the argument on behalf of Phillips mischaracterizes the facts to
> make his case look more like Ashers Bakery. He cites evidence that Craig and
> Mullins wanted a "rainbow-layered" cake. "Given the rainbow's status as the
> preeminent symbol of gay pride, Craig and Mullins's wedding cake undeniably
> expressed support for same-sex marriage."
>
> But Phillips did not know that. He had no idea what they were going to ask
> for. He refused service before he found out anything about what Craig and
> Mullins wanted to buy. His arguments are a series of elaborate pirouettes
> around this inconvenient fact.
>
> The brief for Phillips most directly addresses the problem this way: "When
> he heard [that the cake was for a same-sex wedding], Phillips immediately
> knew that any wedding cake he would design for them would express messages
> about their union that he could not in good conscience communicate." The
> conduct of baking a cake has a conventional meaning. It expresses the
> celebration of a union. If he disagrees with that message, he claims, the
> law is forcing him to express a message with which he disagrees.
>
> The strongest authority Phillips has, and the closest the Supreme Court has
> come to embracing this kind of logic, is Boy Scouts of America v. Dale,
> which declared in 2000 that forbidding the Boy Scouts to expel a gay
> scoutmaster "would, at the very least, force the organization to send a
> message, both to the youth members and the world, that the Boy Scouts
> accepts homosexual conduct as a legitimate form of behavior."
>
> The Court's extension of the compelled-speech doctrine in this offhand
> sentence in the Boy Scouts case (which was primarily about freedom of
> association) has absurd
> implications<https://urldefense.proofpoint.com/v2/url?u=https-3A__yalebooks.yale..edu_book_9780300121278_right-2Ddiscriminate&d=DwMFaQ&c=cBOA5YEoZuz9KdLvh38YxdrPtfJt83ckXekfBgq5xB0&r=CK8oOj7-JYZnTDmB5orNTVZXar6NrsnGtGHfQ5m79Do&m=z9EBg1GMeNvNagniBn12SFI4ZLvExM2MsprsW8Ph4E4&s=7ox8inso_qY93K4GhdbvEPWTpYa_79cwNMBfZyrirJI&e=>.
> Federal regulations now require cars to have airbags. The federal government
> adopted these regulations despite the resistance of automobile
> manufacturers. When new cars conspicuously have airbags, this is reasonably
> understood as sending a message that airbags are necessary to make cars safe
> and that their inclusion is cost-justified. The car manufacturer may dissent
> from that message, but does the company have an argument that its First
> Amendment rights are being violated by requiring airbags? Although the Court
> could reinvigorate the principle it stated in the Boy Scouts case, the
> consequence would be anarchy. It would allow anyone to violate any law if
> obeying it would conventionally be taken to convey a message with which the
> objector disagrees.
>
> There is a similar absurdity in Phillips's claim that the state is
> discriminating on the basis of viewpoint because the antidiscrimination law,
> as applied, "favors cake artists who support same-sex marriage over those
> like Phillips who do not." The law makes no reference at all to viewpoint.
> It just prohibits discrimination. It is true that the law favors those who
> oppose the conduct it prohibits over those who would like to engage in it.
> But that is true of every law. Again, there is no way to articulate the
> principle behind this claim that is not an invitation to chaos.
>
> Other arguments on behalf of Phillips frame his case as only applying more
> narrowly. Phillips's business is not just a bakery, but "an art gallery of
> cakes." He "has been an artist using cake as his canvas with Masterpiece as
> his studio." "The cake, which serves as the iconic centerpiece of the
> marriage celebration, announces through Phillips's voice that a marriage has
> occurred and should be celebrated. The government can no more force Phillips
> to speak those messages with his lips than to express them through his
> art."
>
> The argument here is that custom cake decoration is inherently expressive.
> Phillips argues that the result should be different if Craig and Mullins had
> requested a premade cake.
>
> Here again the facts intrude. Phillips has said: "Couples may select from
> one of our unique creations that are on display in the store, or they may
> request that I design and create something entirely different." When he
> denied service to the couple, he had no idea which choice they would have
> made. Evidently, he deems "customized" the production to order of cakes that
> he has previously designed.. When he had his very brief conversation with
> Craig and Mullins, they were looking at a book of such designs. Would the
> identical cake be "customized" if Phillips baked it in the afternoon,
> knowing what it would be used for, but not "customized" if had been made in
> the morning, before they walked into the store?
> Advertisement
> [http://ox-i.prospect.org/51c/51cad9cc-50a6-4cde-8c80-d169d2d3482e/138/138b2213e7a34c899de9d59f98cec962.jpg]<https://urldefense.proofpoint.com/v2/url?u=http-3A__americanprospect-2Dd.openx.net_w_1.0_rc-3Fts-3D1fHBpZD0xMDA0MnxyaWQ9ZjliOGI0MTUtOThlZi00ZWVkLThiNDktMGVkOWE3NmQxODA1fHJ0PTE1MTE3OTQwNzV8YXVpZD05ODcxN3xhdW09RE1JRC5XRUJ8YXVwZj1kaXNwbGF5fHNzaWQ9ODg3N3xzaWQ9ODQ5OHxwdWI9MTE2MTN8cGM9VVNEfHJhaWQ9M2U0ODMxYzMtNDQzMi00ZDYxLTkwMGYtY2VmNDk0MjJmMTkzfHJzPTF8YWlkPTUzODQ3MDU3MXx0PTF8YXM9MzAweDI1MHxsaWQ9NTM3ODAyMTM3fG9pZD01MzcxODE1NDd8cD0xMDAwMHxwcj0xMDAwMHxhdGI9MTAwMDB8YWR2PTE0MzM0fGFjPVVTRHxwbT1QUklDSU5HLkNQTXxibT1CVVlJTkcuR1VBUkFOVEVFRFNIQVJFT0ZWT0lDRXxsaXQ9U3x1cj1uQTVsTEZDWTgx&d=DwMFaQ&c=cBOA5YEoZuz9KdLvh38YxdrPtfJt83ckXekfBgq5xB0&r=CK8oOj7-JYZnTDmB5orNTVZXar6NrsnGtGHfQ5m79Do&m=z9EBg1GMeNvNagniBn12SFI4ZLvExM2MsprsW8Ph4E4&s=x3edLPKON0zKOEIVY57yte6DkCGLY1BjE956McenBl4&e=><iframe
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>
> If "customization" means unique work made to order, many kinds of work are
> customized. Auto repair is unique work made to order. If the wedding
> limousine has engine trouble, would a mechanic have a First Amendment right
> to refuse service? How about a caterer? A hairdresser? This notion collapses
> the already porous distinction between Phillips's artistic cake design and
> any other food that is made to order.
>
> Phillips also claims that because Craig and Mullins easily found another
> baker, they must have been illicitly motivated by the desire to punish him
> for his ideas. But even if this were true (how could he know that?), the
> questionable motives of a plaintiff aren't relevant to adjudication. If you
> negligently ding my car and I sue you, the court won't care that I'm
> motivated by racism or other nasty motives. Even if the plaintiffs in some
> of these cases are trying to compel affirmation of what the Christian
> merchants do not believe, this has nothing to do with their legal claim.
>
> Phillips also makes a religious freedom claim. Unlike the Hobby Lobby case,
> where the Religious Freedom Restoration Act told courts to consider
> exemptions from federal laws such as Obamacare, the Court has no authority
> to carve out religious exceptions to state laws. On the other hand, states
> must not discriminate against religion. Phillips claims that because bakers
> who support same-sex marriage have been permitted to refuse to make cakes
> quoting Biblical passages condemning homosexuality, the law "applies
> different rules to all expressive professionals depending on their views
> about same-sex marriage: supporters get a pass, but opponents get punished."
> But this again confuses the facts of Masterpiece with those of Ashers
> Bakery. Phillips never found out what message (if any) he might be asked to
> convey.
>
> So none of Phillips's arguments work. Lately he has gotten some help. The
> help is clever but makes his case no better.
> The surprising election of President Donald Trump was followed by the
> unsurprising decision of the Department of Justice (DOJ) to file its own
> brief supporting Phillips's claim.
>
> The surprising election of President Donald Trump was followed by the
> unsurprising decision of the Department of Justice (DOJ) to file its own
> brief supporting Phillips's claim. The lawyers in the Solicitor General's
> office are far more skillful than those of the Alliance Defending Freedom,
> which represents Phillips.
>
> The DOJ brief ignores every argument that Phillips makes and starts all over
> with an entirely new theory of the case. The brief acknowledges, what is
> settled law, that the First Amendment is not violated by content-neutral
> laws that incidentally affect speech. For example, newspapers are not immune
> from antitrust laws. That means that bakers are not immune from
> antidiscrimination law either.
>
> But then the brief proposes a new proviso: "an application of a public
> accommodations law that fundamentally alters expression and interferes with
> an expressive event triggers heightened scrutiny." What's an expressive
> event? "Public accommodations laws compel expression—whether speech or
> expressive conduct—when they mandate the creation of commissioned goods or
> the provision of commissioned services that are inherently communicative."
> The theory follows Phillips's brief in drawing the line at customized work,
> though its formulation is more deft and careful. Why the line is drawn
> there—and what counts as customized work—is still not explained.
>
> The DOJ brief offers another, independent theory: "A public accommodations
> law exacts a greater First Amendment toll if it also compels participation
> in a ceremony or other expressive event." The fact that it's a wedding
> raises a special free-speech issue. The logic now seems to extend to premade
> cakes—and "participation" includes the sale of goods, hours before and miles
> away from the event. The Solicitor General tries to limit the scope of this
> point: "Whether governmental compulsion creates an association with an
> unwanted message depends on a reasonable observer's perception of the
> relevant expression."
>
> But how is a reasonable observer to know whether a cake is custom-made? Or
> who made it? Wedding cakes aren't normally accompanied by signs explaining
> the history of their preparation, such as whether they were based on
> customized designs. A wedding is not an art museum.
>
> The claim that what matters is the "deeply expressive" character of a
> wedding has broad
> implications<https://urldefense.proofpoint.com/v2/url?u=https-3A__takecareblog.com_blog_an-2Danalysis-2Dof-2Ddoj-2Ds-2Dbrief-2Din-2Dmasterpiece-2Dcakeshop&d=DwMFaQ&c=cBOA5YEoZuz9KdLvh38YxdrPtfJt83ckXekfBgq5xB0&r=CK8oOj7-JYZnTDmB5orNTVZXar6NrsnGtGHfQ5m79Do&m=z9EBg1GMeNvNagniBn12SFI4ZLvExM2MsprsW8Ph4E4&s=BKcQ4Jb16TJEw7I-sq8aTfdu5yKST-gEj9mriz24QVU&e=>
> that DOJ does not notice. Lots of services that can be the basis of
> discrimination involve deeply expressive events: funerals, theaters,
> concerts, private schools, pregnancy, and childbirth.. Anyone who
> participates in these events in any capacity, expressive or otherwise, would
> have a First Amendment right to refuse—even if they were motivated by pure,
> unapologetic bigotry. (If you think such bigotry has become marginal, talk
> to any American Muslim.) No one could know which businesses (or even which
> food preparation businesses) would be deemed inherently expressive. Any line
> courts draw will be arbitrary, since all intentional conduct expresses
> something. Chaos again.
>
> Let's not forget what this case is really about: the objection of some
> conservative Christians to facilitating same-sex marriage. Some of those
> objections can be shoehorned into a broad understanding of free speech.
> Others, equally strong, can't. Are floral arrangements inherently
> expressive? What about renting a wedding hall, or married-student housing at
> religious colleges? The Court has previously held that universities were not
> compelled to endorse any message when they were required to provide space to
> military recruiters.
> The deepest problem with the attempt to base accommodation on free speech is
> that it gives aid and comfort to those who are neither decent nor
> honorable.
>
> This is, at bottom, a problem of trying to work out a compromise between two
> groups, so that each of them is able to live out their ideals. It is a
> worthy
> goal<https://urldefense.proofpoint.com/v2/url?u=https-3A__papers.ssrn.com_sol3_papers.cfm-3Fabstract-5Fid-3D2571058&d=DwMFaQ&c=cBOA5YEoZuz9KdLvh38YxdrPtfJt83ckXekfBgq5xB0&r=CK8oOj7-JYZnTDmB5orNTVZXar6NrsnGtGHfQ5m79Do&m=z9EBg1GMeNvNagniBn12SFI4ZLvExM2MsprsW8Ph4E4&s=lV-iCiGFr6UbeierSrWi1NjKp56ZaQObxi5knJg_M24&e=>.
> In its decision recognizing a right to same-sex marriage, the Court declared
> that "[m]any who deem same-sex marriage to be wrong reach that conclusion
> based on decent and honorable religious or philosophical premises." (The
> deepest problem with the attempt to base accommodation on free speech is
> that it gives aid and comfort to those who are neither decent nor
> honorable.)
>
> Some kind of legislative deal ought to be possible. Utah managed to do that,
> facilitated by the good offices of the Mormon Church. Any such accommodation
> will need to give clear notice of what is and is not permitted, with rules
> rather than vague standards, for instance exempting businesses of five or
> fewer employees.
>
> This kind of bargain is beyond the institutional capacity of courts. They
> can't learn through negotiation what each side's most urgent interests are,
> and they can't draw the kind of arbitrary lines that negotiations often
> produce.
>
> The impulse to judicial intervention should have been resisted. The Supreme
> Court should dismiss its decision to hear the Masterpiece Cakeshop case as
> improvidently granted. The tools at its disposal are the wrong tools for
> this job.
>
> Everyone's eyes are on Justice Anthony Kennedy, who is generally thought to
> be the swing vote in this case. But I'm more interested in Neil Gorsuch.
> Gorsuch is a very good lawyer, and he is also a very partisan Republican.
> Those inclinations are at war with each other. If Gorsuch signs onto a
> nonsensical opinion that throws the law into chaos in order to reach a
> political result he likes, that will tell us a lot about what kind of
> judicial work we can expect from him in the future.
>
>
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