Cakes are going to the Supreme Court

[Trebuchet]

If the Supremes enshrine a religious exemption, I can't wait for the first Muslim baker to refuse to make a cake with a cross on it. Or better yet, a picture of Jesus.

 

[Meadmaker]

What sort of cake are we talking about? Is Mr. Baker being asked to make a gay cake?

"They" wanted a wedding cake with their names on it.

The cake is just an object.

I had another thread of logic, which I forgot.

Something along the lines of, "He's being asked to produce a cake from his pre-determined selection, and write two names on it. How does who is going to consume it have anything to do with his religion?"

There was more to it than that....Damned America's Got Talent distracted me.

That is part of what the court may decide. Is the act of personalizing a cake in a pre-determined manner actually an act of expression? The impression I got from earlier reading is that this particular baker did truly custom, unique, cakes, that required him to sit down with the client, discuss what they wanted, come up with a design, get it approved, and produce it. That, surely, is an artistic creation, which is expression. If, however, all that the "artist" did was fill in a blank with "Adam and Steve", and fill in frosting in a predefined manner, they might decide that there was no expression involved.

I also say "may decide", because they might express a general opinion that expression is protected, and may not be restricted by civil rights laws, and speak in some very general terms about what is and is not expression, and then send the case back to the lower court to decide whether this specific case meets the definition.

I'm pretty confident that they will not declare that the mere act of selling constitutes protected expression. I'm pretty confident that they will not declare that the mere act of being present at a celebration is either an expression or participation in a ritual. (i.e a venue that feeds people couldn't refuse a gay wedding reception, but they might be able to refuse to design custom table settings that are special for the wedded couple.) On the other hand, I think they will rule that a custom piece of work, whether a cake, a musical performance, a flower arrangement, or a staged photograph are all forms of expression, and they cannot be compelled as part of a condition for being in business. We shall see, but that's what I expect.

The other aspect related to this case that the right wing is very uptight about is that whole aspect of treating churches and clergy as businesses for purposes of anti-discrimination laws. However, that isn't at issue in this case, so the court will not rule on that. Their ruling in this case may have some implication for the other sort of case, but they won't rule directly.

 

[theprestige]

If the Supremes enshrine a religious exemption, I can't wait for the first Muslim baker to refuse to make a cake with a cross on it. Or better yet, a picture of Jesus.

I don't have any problem with this at all.

 

[Meadmaker]

I don't have any problem with this at all.

To be honest, I can't imagine anyone who would.

On the other hand, if the baker loses the case, I can just imagine militant Christians seeking out Muslim cake bakers and demanding that they produce a cake with a picture of Mohammed on it.

 

[DevilsAdvocate]

Interesting case. I’m a bit surprised that the Alliance Defending Freedom chose this case to take to the Supreme Court because it has a fairly large weak spot.

What would make a challenging case would be a baker refusing to make a cake with a specific theme celebrating gay marriage or homosexuality. That’s kind of what happened here, but not quite. The baker regularly refuses to make cakes with themes of Halloween, racism, pornography, atheism, or anti-Americanism. The Colorado court has ruled that secular bakeries could refuse to make cakes with an anti-gay-marriage theme. Of course none of those themes are associated with a class protected from discrimination (well, maybe atheism).

The First Amendment protects people from being compelled to express a message for another party. On the flip side, the law (in this case the Colorado constitution, and presumably the U.S. constitution) requires that businesses provide equal accommodation without discrimination based on a protected status such as race, religion, or sexual orientation. A case where someone refuses to create something with a gay theme would challenge the court to weigh whether or not accommodation outweighs protection of speech.

The weak spot in this case is that the baker refused to make the cake when he was told it was for a gay wedding, which was before there was any discussion about what sort of cake they wanted. For all he knew it might have been a basic white cake with over-sized blue roses, or a mermaid theme, or anything else that was not specifically related to homosexuality or gay marriage.

It is going to be very difficult to make a compelling argument that the refusal was due to a First Amendment protection of expression when the baker had no idea what message the cake might be expressing. The arguments presented in the Colorado appeal that wedding cakes are inherently expressive of approval of same-sex marriage were rather weak (including an argument that same-sex marriage is not necessarily homosexual or bisexual based on two men who got married due to a radio show contest).

If the court finds in favor of the baker it would likely extend protection from speech to protection from the possibility of speech. This would raise the specter of people refusing to provide customized services to protected classes based solely on the possibility that they might ask for some expression that the person does not wish to express. I hope the court does not tread down that path.

 

[Noztradamus]

The baker from Colorado offered to sell the couple a pre-made cake from his collection, not just make one specifically for them.

I wonder, who made the pre-made cake from his cooler/collection. If he made it, isn't that slightly hypocritical?

No

 

[DevilsAdvocate]

The baker from Colorado offered to sell the couple a pre-made cake from his collection, not just make one specifically for them.

I wonder, who made the pre-made cake from his cooler/collection. If he made it, isn't that slightly hypocritical?

I have only read the Colorado Appeals Court ruling and the petition for a writ of certiorari, but I did not find anything in there about offering a pre-made wedding cake. It said he would sell them a birthday cake or any other baked goods or type of cake, but not a wedding cake. It appears the wedding cakes he makes are only custom wedding cakes.

That is the really big problem with this case. If someone had asked for a custom cake, perhaps shaped like a church, and never mentioned that it was for a same-sex marriage, the baker surely would have agreed to make the cake. If the baker was then told that it was for a same-sex marriage and he refused to make the cake, is his refusal then based on his freedom of expression or based on discrimination of homosexuals?

Because the baker refused to sell them any wedding cake, without even knowing what type of cake they wanted, he and his lawyers were reduced to arguing that any cake for a same-sex marriage would be expressive of something against his beliefs. The Supreme Court has previously ruled on cases of protection of freedom of speech that although any conduct could be described as having some personal expression, protection only applies if there is sufficient expression involved in the conduct. Because the baker refused to sell any wedding cake (without knowing what the cake would be) the Colorado court found that simply making a wedding cake is not in and of itself sufficiency expressive to warrant first amendment protection, and certainly not when it involves refusal of accommodations to a protected class.

 

[ponderingturtle]

An ordained minister in Couer d'Allene Idaho who ran a "wedding chapel" was informed he was in violation of antidiscrimination laws when he refused to perform a same sex marriage. (He was willing to let them use the facility, just not perform the service himself.)

A church in Grove City, New Jersey lost a tax credit when they refused to rent a building for a same sex commitment ceremony.

That wasn't a building it was open property, and they just changed the form of tax exempt status they had on it.

In all of those cases, some sort of legal machinations were made, and the final resolution wasn't all that bad, but any of those legal actions would have been unthinkable 20 years ago. What is going on in America now is that there are a group of activists trying to push the envelope as far as they can, and a group of conservatives trying to hold the line or push it back to where they think it ought to be. Everyone knows that each new exchange in the legal battles is an opportunity to move an agenda forward, or backward, depending on your perspective.

It is as bad as having interracial couples there. Everyone needs to be free to take a stand against that miscegenation.

 

[ponderingturtle]

To be honest, I can't imagine anyone who would.

On the other hand, if the baker loses the case, I can just imagine militant Christians seeking out Muslim cake bakers and demanding that they produce a cake with a picture of Mohammed on it.

Or a cake for a second marriage. That is right out.

And everyone knows it is great to dox fags. That is something that all christians can get behind.

 

[Meadmaker]

I have only read the Colorado Appeals Court ruling and the petition for a writ of certiorari, but I did not find anything in there about offering a pre-made wedding cake. It said he would sell them a birthday cake or any other baked goods or type of cake, but not a wedding cake. It appears the wedding cakes he makes are only custom wedding cakes.

That is the really big problem with this case. If someone had asked for a custom cake, perhaps shaped like a church, and never mentioned that it was for a same-sex marriage, the baker surely would have agreed to make the cake. If the baker was then told that it was for a same-sex marriage and he refused to make the cake, is his refusal then based on his freedom of expression or based on discrimination of homosexuals?

Because the baker refused to sell them any wedding cake, without even knowing what type of cake they wanted, he and his lawyers were reduced to arguing that any cake for a same-sex marriage would be expressive of something against his beliefs. The Supreme Court has previously ruled on cases of protection of freedom of speech that although any conduct could be described as having some personal expression, protection only applies if there is sufficient expression involved in the conduct. Because the baker refused to sell any wedding cake (without knowing what the cake would be) the Colorado court found that simply making a wedding cake is not in and of itself sufficiency expressive to warrant first amendment protection, and certainly not when it involves refusal of accommodations to a protected class.

Isn't the design process itself an act of speech? He knows they want a wedding cake, and it's for a same sex wedding. Is he compelled to sit with them and discuss details to determine whether or not there is something inherently supportive of same sex wedding in the particular cake that they come up with? If the cake itself looks like a wedding cake, but would be completely suitable for an opposite sex wedding, would it be said that the expression inherent in the cake is obviously acceptable to the baker? Is the context of the expression actually part of the expression itself?

For something slightly analogous, a band is asked to play a song. They refuse, citing freedom of speech. Their music is an act of expression and they do not wish to express support for an activity by playing that song. Someone counters and says they are willing to play the song in a different context, so clearly the song itself has no expressive content to which they object. In the context of this case, this might apply to a band being asked to play "The Wedding Song" for a same sex wedding, but when I started writing the paragraph, the song I had in mind was actually "Hail to the Chief". They might be perfectly willing to play the song for one occasion, but not for another.

One of the difficulties of this case will be trying to come up with a ruling that is comprehensible. If there's too much legal hair splitting, it ends up being a bad ruling. Will they address, in this ruling, the weighty issue of whether a cake can be considered a wedding cake if there is no overt symbol of weddings, or verbal reference to marriage spelled out in frosting?

 

[3point14]

If someone can pony up an actual definition of art, then that would help.

I get the feeling that any definition that encompasses baking would be wide enough to encompass any job.

 

[C_Felix]

If the Supremes enshrine a religious exemption, I can't wait for the first Muslim baker to refuse to make a cake with a cross on it. Or better yet, a picture of Jesus.

This is why I wish I had Bill Gates's money.

When Indiana passed their "Protecting Religious Beliefs" law or whatever, if I had the money to burn, I'd set up a shop in Indiana and then refuse service based on my religious beliefs. (All of a sudden, I'd be a strict Old Testament kinda guy.)

"Look at you, you're kinda tubby. GLUTTONY! No soup for you!"

 

[ddt]

An ordained minister in Couer d'Allene Idaho who ran a "wedding chapel" was informed he was in violation of antidiscrimination laws when he refused to perform a same sex marriage. (He was willing to let them use the facility, just not perform the service himself.)

According to Snopes, the Knapps' chapel was registered both as a religious institution and a for-profit. When the law was passed, they immediately hired the liars of the ADF who made a lot of noise that they were threatened to go to jail - according to a city spokesman, at most a misdemeanor charge. The end result was that the law was changed and allowed religious for-profits also to discriminate.

A church in Grove City, New Jersey lost a tax credit when they refused to rent a building for a same sex commitment ceremony.

Ocean Grove, not Grove City. According to ThinkProgress:

The Ocean Grove Camp Meeting Association is a religious organization, and it does own the pavilion in question. But at the core of Judge Solomon Metzer’s decision is the fact that the pavilion’s tax-exempt status was not protected under a religious provision. In 1989, Ocean Grove applied for a Green Acres real-estate tax exemption, a New Jersey property subsidy for conservation or recreational purposes. One of the requirements to qualify for the exemption is that the property be “open for public use on an equal basis.” Thus, when Ocean Grove refused to allow a same-sex couple to utilize its pavilion, it was violating its agreement with the state of New Jersey:

So they rightly lost their tax-exempt status because they violated the provisions.

A church in Massachusetts was informed that because they ran occasional spaghetti dinners that were open to non-parishoners and a fee was charged, they were therefore a provider of "public accommodation" and subject to all anti-discrimination laws. (Don't know all the details, but somehow transgender bathrooms came into the picture.)

According to the Boston Globe, they also hired the ADF, and the stance of the government was:

The Massachusetts Commission Against Discrimination recently issued guidance on how to comply with the law and found that “even a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public.”

Frankly, I think you're scratching the bottom of the barrel if you cite religious beliefs for not letting someone pee where they feel comfortable.

(and what is this with spaghetti dinners/suppers?)

In all of those cases, some sort of legal machinations were made, and the final resolution wasn't all that bad, but any of those legal actions would have been unthinkable 20 years ago. What is going on in America now is that there are a group of activists trying to push the envelope as far as they can, and a group of conservatives trying to hold the line or push it back to where they think it ought to be. Everyone knows that each new exchange in the legal battles is an opportunity to move an agenda forward, or backward, depending on your perspective.

I see primarily a whole load of Christian martyr complex. I'm confident the first case could have been resolved with a lot less brouhaha and with hiring reasonable lawyers instead of the ADF.

All of this overlooks that the US states still eagerly aids and abets discrimination when it comes to marriages. Each time an officiant signs a marriage certificate, they're an agent of the state. When that officiant is a pastor who refuses to do same-sex marriages, the state discriminates. All those officiants should be stripped of their licence. That should be the end game of gay marriage being legal.

 

[sylvan8798]

The problem I have is that all these "religious freedom" cases are basically about ONE religious belief set - a belief that marriage should be between one man and one woman, or that sex is reserved for married people (as recognized by God). What about the person who sincerely believes that races should not intermarry? That was also defended with the bible. Or other beliefs that would lead to discrimination of one sort or another? Why is your "religious" belief set more worthy than my atheist belief set? I don't see how it can be constitutional to hold up such a narrow belief set as exempt from the rules that apply to everything else.

I'm sure Gorsuch, et al, will provide a feeble answer. Hang in there Justice Kennedy!

 

[BobTheCoward]

The problem I have is that all these "religious freedom" cases are basically about ONE religious belief set - a belief that marriage should be between one man and one woman, or that sex is reserved for married people (as recognized by God). What about the person who sincerely believes that races should not intermarry? That was also defended with the bible. Or other beliefs that would lead to discrimination of one sort or another? Why is your "religious" belief set more worthy than my atheist belief set? I don't see how it can be constitutional to hold up such a narrow belief set as exempt from the rules that apply to everything else.

I'm sure Gorsuch, et al, will provide a feeble answer. Hang in there Justice Kennedy!

A problem solved by recognizing all exchange is voluntary and to not compel any party to engage with another.

 

[Hlafordlaes]

A problem solved by recognizing all exchange is voluntary and to not compel any party to engage with another.

Creating the problem of access to water and all its variations.

 

[BobTheCoward]

Creating the problem of access to water and all its variations.

Not a problem a government should be concerned with.

 

[Darat]

A problem solved by recognizing all exchange is voluntary and to not compel any party to engage with another.

That was tried, people didn't like what the outcomes were so changed it.

 

[Fudbucker]

If someone goes into business as a portrait painter, can they refuse to paint black people? I'm thinking non-discrimination trumps artistic license, else a Subway employee can claim they're a "sandwich artist".

 

[Darat]

Not a problem a government should be concerned with.

Your opinion, and not one that is shared by a lot of other people. Governments arose as an effective solution to some of the many problems people experienced living as social species. There is no indication that human behavioural traits have changed significantly in the last 10 thousand years or so, therefore the same problems would arise again if we lost our current systems of governance.

You propose a solution that has repeatedly failed through all recorded history, empirical evidence is against your wants.