Archive for the ‘#masterpiececake’ Tag

It’s Not Freedom if You Can’t Exercise It, Part 4   Leave a comment

Clarence Thomas concurred with the majority opinion, writing separately on Jack Phillips’ free speech claim. I like Thomas’ opinions because they are very clearly worded and he doesn’t devolve into legalese.

He begins by agreeing that the Colorado Civil Rights Commission violated Jack Phillips’ right to freely exercise his religion when it treated his religious objections differently from other bakers’ secular objections in a similar case (Jack), showing overt hostility to Phillips’ religion.

Image result for image of wedding cakeThe SCOTUS did not address the free-speech claim because there were uncertainties in the record. Phillips claims he refused to create a custom wedding case to celebrate their wedding case because he would have refused to bake a custom wedding cake for any same-sex couple. The customers asserted that he refused to even sell them a premade cake, which he denies. (Note to self – when controversy comes your way, hit record on your cell phone so there’s no question of what was said). The Colorado Court of Appeals resolved that factual dispute in Phillips’ favor, describing his conduct as a refusal to ‘design and create a cake to celebrate a same-sex wedding.” The Commission’s order required Phillips to sell “any product he would sell to heterosexual couples” including custom wedding cakes, yet even after that description, the Court of Appeals concluded that Phillips’ conduct was not expressive and was not protected speech, reasoning that an outside observer would conclude that Phillips was merely complying with Colorado’s public-accommodations law, not expressing a message, and that Phillips could post a disclaimer to that effect … flouting “bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak. It should not pass without comment.”

The 1st Amendment is applicable to the States through the 14th Amendment and it prohibits that abridgment of “freedom of speech.” In Hurley it was ruled that public-accommodation laws do not target speech, but instead prohibit the act of discrimination against individuals in the provision of publicly available goods, privileges and services.” But sometimes protected speech is impacted and then the 1st Amendment has had primacy. In Hurley, the Court unanimously held that the law requiring the sponsor of a St. Patrick’s Day parade to include a parade unit of gay, lesbian and bisexual Irish Americans violated the sponsors right to free speech because parades are a form of expression and application of the public-accommodations law altered the expressive content of the parade by forcing the sponsor to add a new unit, suggesting that the sponsor agreed that people of gay, lesbian or bisexual orientation have as much claim to unqualified social acceptance as heterosexuals and would tend to imply that their participation “merits celebration.” The SCOTUS rejected the notion that governments can mandate “thoughts or statements acceptable to some groups or indeed all people” as the “antithesis” of free speech. “The Constitution limits the government’s authority to restrict or compel ‘expressive conduct’. The ability to choose what not to say is a primary manifestation of free speech.

Philliips considers himself a cake artist, symbolized by the logo for Masterpiece Cakeshop being a painter’s palate with a paintbrush and baker’s whisk. He designs the cakes, he sits down with each couple to consult on the design. He delivers the cake and sometimes stays and interacts with the guests at the wedding. Guests often recognize his work and seek out his bakery afterward. To him, a wedding cake inherently communicates that a wedding has occurred, a marriage has begun, and the couple should be celebrated. But it’s not just Phillips who believes that. Society has viewed wedding cakes by the symbols since before the American Civil War.

“Accordingly, Phillips’ creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message.”

Colorado’s public-accommodations law would alter the expressive content of Phillips’ message. Forcing Phillips to make custom wedding cakes for same-sex marries requires him to, at the very least, acknowledge that same-sex weddings are “weddings” and suggest that they should be celebrated – “the precise message he believes his faith forbids.”

Thomas gave due consideration to prior rulings by the Supreme Court showing that the government is not permitted to compel speech or “expressive conduct”. He also addressed the argument that Colorado’s law allowed it to compel Phillips’ speech to prevent the same-sex couple from being denigrated, made to feel inferior or subjected to humiliation, frustration or embarrassment.

“These justifications are completely foreign to our free-speech jurisprudence. States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. ‘If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Again, Thomas gives a lot of consideration to prior SCOTUS rulings.

He also points out what Phillips actually said to the respondents in this case. “I will make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.” And, then a black justice points out the Court allows racist, demeaning and threatening speech toward blacks. Ruling that the Constitution protects same-sex marriage does not immediately require that those who express a different view are not protected in expressing those views.

Thomas engages in a little “I told you so”, noting that he warned during Obergefell that the Court’s decision would “inevitably come into conflict with religious liberty as individuals are confronted with demands to participate in and endorse civil marriages between same-sex couples.” He predicts further conflict unless the freedom of speech principle is upheld going forward.

Part 5

 

 

It’s Not Freedom if You Can’t Exercise It, Pt 3   Leave a comment

“When the government fails to act neutrally toward the free exercise of religion, it tends to run into trouble.” Neil Gorsuch, Supreme Court justice

Gorsuch wrote a concuring opinion in Masterpiece Cakeshop v Colorado Civil Rights Commission and Justice Alito joined him.

Image result for image of wedding cakeGorsuch stated that the decision hinged on the hostility of the Commission toward Phillips’ beliefs and on their failure to show that their “restriction on religion both serve(s) a compelling interest and (is) narrowly tailored” (Church of Lukumi Babalu Aye v Hialeah (1993)).

The Colorado Civil Rights Commission failed to “act neutrally toward Jack Phillips’ religious faith.” It allowed three other bakers to refuse a customer’s request that would have required them to violate their secular commitments, “yet it denied the same accommodations to Mr. Phillips when he refused a customer’s request that would have required him to violate his religious beliefs.” The Commission’s reasoning was the Phillips’ religious beliefs are “offensive”, in its judgement.

Gorsuch admits that he wrote this opinion mainly to address his two colleagues trying to suggest that the Commission could have acted neutrally toward Phillips’ faith when it treated him differently from the other bakers in a way consistent with the First Amendment.

“Respectfully, I do not see how we might rescue the Commission from its error.”

Mr. Jack argued that the cakes he requested reflected his religious beliefs and so the bakers could not refuse to make them just because they disagreed with his beliefs. The Commission ruled that the bakers didn’t refuse on the basis of his religious faith, but because his message was “offensive” to their own moral convictions.

How is that different from what Jack Phillips did when he refused to bake a wedding cake for a same-sex wedding? Phillips too offered to make other baked goods, including cakes, celebrating other occasions, but he would not design a wedding cake for a same-sex wedding regardless of the sexual orientation of the customer. He subsequently refused the request from the mother of one of the partners. The undisputed factual record shows that Phillips would not make a cake celebrating a same-sex marriage for a heterosexual customer and that he was no unwilling to sell other products to a homosexual customer.

“In both cases, the effect on the customer was the same: bikers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases, the bakers refused service intending only to honor a personal conviction. … the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there’s no indication the bakers actually intended to refuse service because of a customer’s protected characteristic. … all bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as anyone else).”

Gorsuch notes that Colorado law allows that “businesses are entitled to reject orders for any number of reasons, including because they deem a particular product requested by a customer to be “offensive”.  The Commission ignored that and judged Mr. Phillips’ intentions in denying service were “inextricably tied to the sexual orientation of the parties involved” and essentially “irrational.” But, somehow, the intentions of bakers in the Jack case were not “inextricably linked”.  The Commission presumed Mr. Phillips habored an intent to discriminate against a protected class in light of the foreseeable effects of his conduct, but it didn’t presume the same intention toward the bakers’ conduct in the Jack’s case.

“The Commission cannot have it both ways. [It] cannot slide up and down the mens rea scale, picking a mental status standard that suit its tastes depending on its sympathies. Either actual proof of intent to discriminate on the basis of membership in a protected class is required … or it is sufficient to “presume” such intent from the knowing failure to serve someone in a protected class.”

But no, the Commission appeared instead to condemn Mr. Phillips for “expressing just the kind of “irrational” or “offensive” message that the bakers in the Jack’s case refused to endorse.  You can agree with the Commission and consider Mr. Phillips’ beliefs to be irrational or offensive, or consider that he has misinterpreted the teachings of his faith. The Supreme Court has ruled same-sex marriage is a matter of constitutional right and various states have enacted laws that preclude discrimination on the basis of sextual orientation, but those bureaucratic judgments do not survive strict scrutiny under the First Amendment.

“In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise. … Just as it it is the proudest boast of our free exercise of jurisprudence that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive (Matal v Tam (2017); United States v Schwimmer (1929).”

Gorsuch goes on to say the Commission has tried to maneuver around its failure by claiming Jack asked for a cake with text while Craig and Mullins (the plaintives) sought a decorated cake and then has insisted that the Phillips’ case involved a wedding cake like any other, suggesting there’s no substantive difference between a wedding cake celebrating a heterosexual wedding versus a homosexual one. It’s all a means to deny the neutrality Jack Phillips was due under the law.

It’s irrational to argue that a cake with words conveys a message, but a cake without words does not. Wedding cakes are symbolic baked goods, signifying approval of a “specific system, idea (or) institution.” (West Virinia Bd of Ed v Barnette (1943). “That was precisely the approval Mr. Phillips intended to withhold in keeping with his religious faith.” In denying Mr. Phillips that choice while affording the bakers in Mr. Jack’s case the same choice, the Commission displayed a gross lack of neutrality. Gorsuch insists that the only reasonable course of action is both bakers to be treated the same. To some, all wedding cakes may appear indistinguishable, but to Mr. Phillips, that is not the case — his faith teaches him otherwise “and his religious beliefs are entitled to no less respectful treatment than the [other] bakers’ secular beliefs.”

Gorsuch further relies on the case of Smith, a Jehovah’s Witness who worked in a steel mill, accepting that the sheet steel he worked on might be used in munitions, but objecting to working directly on tanks. “The Court didn’t try to suggest that making steel is just making steel [or] that to offend his religion the steel needed to be of a particular kind or shape. Instead it recognized that Mr. Thomas alone was entitled to define the nature of his religious commitments … not a bureaucrat or judge ….”

Gorsuch confirmed that it is not appropriate for the US Supreme Court to tell Mr. Phillips that a wedding cake is just like any other without regard to the religious significance his faith may attach to it than it is for the Court to suggest that “for all persons sacramental break is just bread and a kippah is just a cap.”

That leaves only one way forward. The SCOTUS will reverse the judgment and hold the Commission’s order set aside. The Commission ought to think about this and use the SCOTUS reasoning in future cases to offer neutral reasons for their rulemaking. Gorsuch also stated that Phillips is entitled to judgment for the past six years facing unlawful civil charges.

Ouch! The State of Colorado may get hit in their pocketbook. And that might be what is necessary to make it clear that government cannot do these sorts of things to law-abiding citizens they happen to disagree with.

Part 4

It’s Not Freedom if You Can’t Exercise It, Pt. 2   Leave a comment

I like to believe that nothing really shocks me anymore, but that Elena Kagan concurred with the majority in the Masterpiece Cake case surprises me. I’m even somewhat surprised that Justice Breyer joined in her concurrence.

 

“It is a general rule that (religious and philosophical) objects do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law” … unless state actors show hostility toward religious views, which the Colorado Civil Rights Commission did.

Image result for masterpiece cakeshopKagan noted the came of William Jack, who sought cakes with images that conveyed dispproval of same-sex marriage, along with religious text. Bakers refused to make them and their refusal was upheld by the Colorado Civil Rights Commission. In the case of Jack Phillips the Commission deemed his beliefs to be offensive, but a “principled rationale for the difference in treatment cannot be based on the government’s own assessment of offensiveness.”

Kagan found that the proper basis for distinguishing the cases was obvious. “The Colorado Anti-Discrimination Act (CADA) makes it unlawful for a place of public accommodation to deny ‘the full and equal enjoyment’ of goods and services to individuals based on certain characteristics, including sexual orientation and creed.” The three bakers in the Jack case would not have made a cake denigrating gay people no matter who requested it. Mr. Jack was not signaled out. Phillips did refuse the bake the cake for the gay couple because of their sexual orientation. Kagan reasoned that a plain reading of the Colorado law would have allowed the Commission to rule against Phillips on that basis, but they didn’t avail themselves of that option.

Okay, Kagan is a statist who is fine with using government to force people to violate their beliefs so long as government doesn’t show its underwear in the process.

Justice Gorsuch has a different view and we’ll get to that in a moment.

Offensive is in the eye of the beholder and forcing someone to compromise their religious beliefs curtails their freedom of conscience. Why is that somehow something we think is a good idea?

Under this argument, you could arrive that the idea that a black hip hop cover artist is required to sing Slim Shady songs for a bunch of skinheads unless the government fails to correctly cite its own law requiring that. Is the proper citing of the law somehow magic? Does it turn that which is sin into something that doesn’t mar the soul of the participant?

 

Because freedom of conscience is probably the most fundamental right we have. It is the right to be us and to have the fruits of our creativity to reflect what we want them to reflect and not what others demand we respect. And it’s not freedom if you’re afraid to exercise it.

Part 3

It’s Not Freedom If You Can’t Exercise It, Pt 1   Leave a comment

I’m a writer. Well, if you read this blog, you know that. I write a lot of non-fiction and I’ve published several novels. Writing is what I do.

I don’t write “Christian” books, but I am a Christian who writes. My faith works its way into my writing whether I mean it to or not because my faith is a part of me on a deep fundamental level. It doesn’t just dictate my surface actions on Sundays, but all of my actions, even the unthinking nouns and conjunctions.

From the moment I heard about Jack Phillips, I understood what he was going through. He was asked by a gay couple to make a custom wedding cake. Phillips explained that he would gladly make them cupcakes or cookies, but his faith teaches him that marriage is between a man and a woman and he could not participate in their wedding by making a cake that celebrated what the Bible teaches is sin.

I used to provide wedding photography as a ministry. If you couldn’t afford it or it involved hiking up a middling-sized Alaska mountain, I was up for it. People usually just reimbursed me for the film, processing, and printing. I stopped not long after I did a friend’s rock-climbing birthday. My friend is a lesbian and I had no problem celebrating her birthday. But she showed those photos to another lesbian we worked with and that woman asked me if I’d do her wedding. Fortunately, the wedding was in Hawaii so I could plead the cost. When I asked a lawyer about it, he said “You’re playing with fire. The day will come when someone is going to require you to violate your beliefs … do it for free … and take you to court if you refuse.” I let it be known that I was too busy with my writing to do photography for anyone not an official member of my church. True, but not so much that I wouldn’t have found the time for someone who needed it.

It is impossible to take pictures at a wedding or bake the cake and not be seen by others as approving that wedding. And whether you like it or not, the Bible is clear that homosexual activity is not something Christians can participate in. 1 Corinthians tells us to “Flee sexual immorality”, not put a nice set of clothes and attend a celebration to sanctify it.

Related imageThe jury is still out. Photography might be considered a passive recording of the event rather than an artistic expression. When I heard Phillips argument before the Supreme Court, I thought seriously about what would I do if someone came along and forced me to write something I truly knew would violate my beliefs.

Because I am both a non-fiction and fictional writer, I am somewhat like Jack Phllips. Sometimes I’m creating generic content for the masses and sometimes I creating a highly artistic enterprise. I would never say gay people can’t or shouldn’t buy my books. I suspect gay people have read my newspaper and magazine articles and blog posts. But what if one of my lesbian acquaintances came to me and wanted to hire me to write a narrative for her wedding? About 30 years ago, I actually did that for a couple who asked me to. I haven’t done it since, but I haven’t advertised that I would do that sort of thing. So, what would I do?

I wouldn’t decline the Christian couple who asked. I might not decline the non-Christian couple, although they might not like what I write. I would be very circumspect about doing that sort of service for a Christian couple where one or more of them were divorced from a prior spouse. It would depend on the circumstances. I would deny a Christian marrying a non-Christian because I think that is a Scriptural example of sexual immorality. And, I would decline a homosexual couple for the same reason. I should go see if my legal insurance is paid up. I just might need it.

The Supreme Court of the United States ruled this week that the Colorado Human Rights Commission discriminating against Jack Phillips because it was blatantly hostile to his faith, considered it be “despicable” and “merely rhetorical and [sic] insincere”, comparing the invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. Such a sentiment “is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of … a law that protects discrimination on the basis of religion as well as sexual orientation.”  Because no subsequent attempt was made to disavow those statements, Justice Kennedy concluded that “the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commissioner’s adjudication of Phillips’ case.”

Kennedy also noted that the Civil Rights Division had considered the refusal of other bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text and “found that the baker acted lawfully in refusing service.” The treatment of the conscience-based refusals in these other three cases with the Commission’s treatment of Phillips’ object was built on a presupposition that any message on the wedding cake would be attributed to the customers rather than the baker, but the Division never actually addressed that issue in its findings. One of the salient points for the Colorado Commission was that the bakeries were willing to sell other items to the customers, but then they dismissed as irrelevant Phillips’ willingness to sell “birthday cakes, shower cakes, cookies and brownies” to gay and lesbian couples. The Commission had treated the other bakers’ conscience-based objects as legitimate, but treated his as illegitimate, thus judging the validity of his religious beliefs themselves … deeming his beliefs to be offensive.

“The Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs. The Constitution ‘commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures'” (citing Church of Lukumi Babalu Aye).

Kennedy, writing the majority opinion found the Commission’s hostility to Phillips’ beliefs “inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.”

The SCOTUS left open the door for “cases of other circumstances” to further elaborate these arguments in the courts, reminding those future courts that “these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Contrary to popular media depiction, this was not a “narrow” decision. When fewer than a third of the justices dissented from the majority opening, it isn’t a narrow decision. 7 to 2 is practically a repudiation … especially when you consider that Elena Kagan — not exactly a conservative or constructionist juror — concurred with the majority.

 

More on that in my next post

Part 2

thebibliophagist

a voracious reader. | a book blogger.

cupidcupid999

adventure, art, nature, travel, photography, wildlife - animals, and funny stuff

Republic-MainStreet

The Peaceful Revolution Liberate Main Street

atleastihaveafrigginglass

What could possibly go wrong?

Who the Hell Knows?

The name says it all.

Rebellious Hazelnuts

Surreal Stories, Very Tall Tales

Adjusting My Sails

When the wind doesn't blow the way you want, adjust your sails

Stine Writing

Poetry, Positivity, and Connecting!

Writer vs the World

In search of beauty, inspired by literature.

%d bloggers like this: