To be sure, cakes often do convey messages in the writing or graphics on the cake itself. Cake-makers might indeed have a First Amendment right to decline to include such written or graphic messages on a cake. The cake itself, though intended for use in a ceremony, is not itself generally expressive of any message (other than perhaps the fact that 'this cake is intended for use in this ceremony'). Nor can wedding cakes be viewed as inherently expressive, or traditionally protected, simply by raising the level of generality and calling wedding-cake-making 'art.' Much in life is art in the sense that it is aimed at creating beauty, including beauty identifiably linked with some ceremony or some style. Cooking is often said to be an art.At this point there's a footnote to 3 cookbooks with the word "art" in the title, one of which is by Anne Volokh ("The Art of Russian Cuisine").
Even setting the table to present food is an art, with a long historical pedigree. Subway calls its sandwich-makers 'sandwich artists.' But a restaurant may not refuse to cook or prepare a table for certain customers on the ground that would be a speech compulsion....Carpenter and Volokh side with the Colorado Civil Rights Commission against the cakeshop. You can compare their argument to the one in the Cake Artists amicus brief, which we discussed a little while ago here. The Cake Artists refrained from taking a side, but they want what they do to be given the status of "expressive art." They want "the same respect under the First Amendment as artists using any other medium."
The relevant Free Speech Clause question is not whether a merchant customizes a product, but whether the customization communicates protected expression.... No one looks at a wedding cake and reflects, “the baker has blessed this union.”... Phillips may subjectively believe that making the cake would have communicated a message about his clients’ marriage, but there is not a substantial likelihood “that the message would be understood by those who viewed it.”...
Requiring bakers to design a cake using certain words, symbols, or other politically significant design elements, might... be an unconstitutional speech compulsion. Even if the choice to wear certain styles of clothing is not protected by the First Amendment, restrictions on wearing certain words on clothing are unconstitutional, see Cohen v. California, 403 U.S. 15 (1971); the same goes for cakes...
This case is about Phillips’ categorical refusal to provide a particular sort of product to customers based solely on their sexual orientation reflected in the event for which the product was to be provided, in violation of a state public accommodations law. It is not about any refusal on Phillips’ part to speak through his cake creations.
The difference between these 2 briefs isn't about what is art, but what is expression. Carpenter and Volokh say you've got to draw the line somewhere, and they rely a lot on whether there's already a tradition of regarding something as form of expression protected by the First Amendment:
Jackson Pollock paintings are protected because they are special cases of a broad medium — painting — that has long been used to communicate expression.Are paintings protected because we see them as encoding a message that reminds us of something that could have been put in words?
Why do courts protect that, really? Well, there's the tradition argument: Courts protect paintings because they've protected paintings in the past, and anything that's literally a painting — even if it's off the stretchers and the brush never touches the canvas — gets the traditional protection.
But let's look beyond tradition — even though opponents of gay marriage got deeply wedged into tradition-based arguments. Go back to the Carpenter/Volokh quote I put in the post title. I see some substance here: "Cakes do not convey the rich, complex expression that can be conveyed by words, music, images, and the like." We might say to extend the protection beyond what is traditional, courts should look at whether the supposed expression achieves complexity and richness.
The Cake Artists brief has material for putting together a complexity-and-richness argument for the protection of wedding-cake expression. But the complexity-and-richness standard smells of elitism and overeducation. The one case citation I left in, above, is Cohen v. California, where the protected speech was simple and cheap: "Fuck the draft."
And did Pollack really have anything complex or rich to say? I don't think there's a message to be decoded from the dried dribbles. He made an object, and the object is protected because it was made by an artist, and we've been reverential about the artists we consider real artists for a long time.
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323 comments:
1 – 200 of 323 Newer› Newest»At a family member's wedding last year, the wedding cake was not eaten. It was pure decoration for the pictures. My wedding cake was also fake, except for the top layer. We had cupcakes for our guests. They are off the mark on this and it is entering No True Scotsman territory.
Because we say so plus reasons.
Did Hillary enjoy a little yellow cake for her birthday?
Theater is consumed and gone at the drop of the curtain. Performance art is soon gone.
Music is the performance of a recipe.
"Cakes do not convey the rich, complex expression..."
The tyranny of aesthetics.
I don't know how that argument can be considered either objective or sustainable. I've watched enough Food Channel shows to know that there's rich, complex expression in baking that is often lacking in traditional media.
The argument of cake as being merely a participatory element to an overall experience is not historically justifiable. How much art was engaged to participate in worship events?
Even the nature of cake as a consumed piece doesn't rule it out as art. Artists like Andy Goldsworthy and others engage in purposeful art that is designed to be ephemeral as a core expression of its meaning.
Indeed,to say art can't be "consumed" is surely to limit art to a arbitrary set of senses. Can art be seen but not heard? Heard but not smelled? Smelled but not spoken? Spoken but not tasted?
If art can be, literally, a toilet or island-drapes, a jar of urine, or an "event" act, then why cannot a cake that is constructed of multiple ingredients and (here's a key word) decorated with complex media, not be also art. It is art that engages the array of human senses, you can touch, taste, smell, see, and maybe even hear, as the forks cut into the delicate morsel and people emit approving grunts of epicurean pleasure.
To say it's not art is not an argument, it's a preestablished bias wearing an argument's clothes.
This whole argument is pretense. The bakers are not discriminating against the customers. They do not want to make a cake for a gay wedding, which they find immoral. They would have the same objection if straight people asked them for the cake. It has nothing really to do with art; they would be just as right if someone asked them to supply the sliced bread for a gay wedding. Whereas, if you just came in and ordered some bread they would not have refused.
It would be immoral to make them do it. Whether lawyers think that has to do with the First Amendment is their business. It's wrong either way.
This is exactly the kind of evil nonsense that we all said would happen, and you all said was conspiracy thinking. This is exactly why evangelicals all voted for Trump (even though he supports same sex marriage). Because the rest of you think it's a big joke that traditional people have values, and you know better.
Does a wedding cake for a Gay wedding have two grooms on top? If so, how is that not expressive of something that the baker may not believe?
If a performance artist strips down to her birthday suit, covers her body with Hershey's chocolate syrup and invites members of the audience to lick the syrup off of her body, is that expression or just food presentation?
Asking for a friend.
James L. Salmon said...
Did Hillary enjoy a little yellow cake for her birthday?
10/27/17, 11:29 AM
Cute & witty! For going the extra mile you can have a cookie...
and to the extent that cakes are used in ceremonies, their significance is inextricably tied to their being eaten, not to any message they visually convey
Then why do people pay premium prices for elaborately decorated wedding cakes instead of using much cheaper but plain sheet cakes at their weddings?
What about Gay Nazis who want you to write something both antisemitic and pro-gay on their wedding cake?
Fascinating. I'm very surprised to see that take from Volokh.
I recall exploring the question of whether art is necessarily expression when I was in law school. A statue, for example, Michelangelo's David, may be beautiful and full of artistic value, but does it actually *say* anything.
I came to the conclusion that, perhaps it does not, but (to the extent possible) we do not want the government making the decision of whether it does or does not, any more than we want the government making the decision of whether a religion is or is not a valid religion. That's a power that's ripe for abuse.
"The cake itself, though intended for use in a ceremony, is not itself generally expressive of any message (other than perhaps the fact that 'this cake is intended for use in this ceremony')."
If the cake were as generic and fungible as they claim, then there would be no need to ask someone to bake it. You could buy it off the rack at the grocery store. The point here is precisely to compel someone to perform an action contrary to their inclinations, in order to humiliate them.
Maybe all the women who had sex with Harvey Weinstein should be forced to have sex with anyone who wants them. If they did it for tangible gain, then they are now public accomodations. Right?
Ho hum, another day, another "let's put together some arbitrary bullshit to justify what we want to justify" from our esteemed legal profession. ("We're 'libertarians'. We don't want the government sticking its nose into our business, we only want it to meddle with people who don't share our views.")
Oh, never mind. I see the argument is cake makers may indeed have a First Amendment right not to include certain graphics or words on their cakes. I'm still confused about where the line is actually drawn.
"At a family member's wedding last year, the wedding cake was not eaten. It was pure decoration for the pictures. "
I agree that the eating of a wedding cake seems quite unimportant. One could get a perfectly good (probably better tasting) unadorned cake for eating, or even a better dessert entirely, for 1/10th the cost of most wedding cakes.
Calvin and Hobbes commentary:
Calvin: A painting. Moving. Spiritually sublime. High art.
Calvin: A comic strip. Vapid. Juvenile. Commercial hack work. Low art.
Calvin: A painting of a comic strip panel. Sophisticated irony. Philosophically challenging. High art.
Hobbes: Suppose I draw a cartoon of a painting of a comic strip?
Calvin: Sophomoric. Intellectually sterile. Low art.
Can we apply Volokh's argument to ice sculpture?
Never thought of Volokh as an elitist until now. Getting married is a giant leap into the supernatural world, like having an abortion or saving someones life. Some people realize this and celebrate marriage accordingly, apparently Eugene Volokh is not one of them.
No one looks at a wedding cake and reflects, “the baker has blessed this union.”... Phillips may subjectively believe that making the cake would have communicated a message about his clients’ marriage, but there is not a substantial likelihood “that the message would be understood by those who viewed it.”...
1) Phillips' subjective belief is the only thing that matters in this case. (or at least that should matter)
2) So art is only art if it conveys a message that is understood by those that view it? So wouldn't that negate Pollock as an artist?
Why doesn't "art" follow the SCOTUS porn rule? Is not all art subjective?
I see/read about all sorts of actual crap that is peddled as "art" and no one of note calls BS, why is this any different?
I'm still confused about where the line is actually drawn.
Apparently it is wherever the SJWs want it drawn.
I did not know that Jackson Pollack refused to sell his work to Christians because of his pagen libertarian leanings
I do so miss Calvin & Hobbes.
Apparently it is wherever the SJWs want it drawn.
It's also drawn in pencil in case they need to move it later.
With enough peer pressure the average conformist (i.e. the kind of people who spend more than 500 milliseconds looking in the direction of a Jackson Pollock) will happily dine on manure.
I might agree that Jackson Pollock was a scam artist.
So, is scam art protected?
To say [it is, or] it's not art is not an argument, it's a preestablished bias wearing an argument's clothes.
(Love that!)
[Claps hand over crotch] "I got your rich, complex expression right here."
"said...
I did not know that Jackson Pollack refused to sell his work to Christians because of his pagen libertarian leanings"
Did anybody try to force him to create paintings with specific Christian meanings? You don't even try.
If someone orders a cake shaped like a baby that is to be eaten, does that fall into any of the exclusions allowable by Volkh?
How about a Nazi cake?
I agree his brief drips with elitism.
I routinely have a lot of respect and admiration for Volokh's writing. I don't understand him in this case.
I wonder what people think about this proposition; that the federal courts' interference in this backwater of state law is worse than the courts' interference with state laws prohibiting homosexual sodomy (Lawrence v Texas) and state constitutions limiting marriage to traditional definitions of one man and one woman (Obergefell v Hodges).
I say again; the easiest way to avoid the wedding cake problem is to not pass the kinds of laws that Colorado has in the first place. If there is such a law, and it can't be gotten rid of, then pass an expansive religious freedom law. And then get restrained federal judges to butt out.
After having argued so strenuously against the federal courts' overweening extension of power over the states in Lawrence and Obergefell as I did, it is a bit of a strain to argue for the federal courts micromanaging this law.
Volokh seems to be missing a key point: he never refused to sell them cakes. He declined a special cake made specifically for them. Contracts aren't contracts if one party is FORCED into an agreement.
What if Illinois Nazis wanted a cake festooned with Swastikas to unironically celebrate Hitler's birthday?
Why is political congruence, "=", limited to transgender/homosexual relationships?
The quasi-legal precedent is Pro-Choice.
It is a bit ironic this discussion is predicated on how the key word is defined historically.
How about "Art is that which consists of mediums recognized as artistic during eras in which marriage was defined as involving a man and a woman."
It is really simply and has nothing to do with art.
A baker creating any cake on spec, that is, not pre-baked and put in a showcase for purchase, has the right to refuse any business for any reason or no reason at all. Anything less is slavery.
All the legal verbiage is nonsense.
Michael K said...
If someone orders a cake shaped like a baby that is to be eaten, does that fall into any of the exclusions allowable by Volkh?
How about a Nazi cake?
I agree his brief drips with elitism.
You are thinking like a doctor (or maybe a philosopher king), and not like a statute-reading lawyer.
The reason that a baker can refuse to bake a Nazi cake is so simple; there is no Colorado law protecting Nazis. There IS a Colorado law protecting homosexuals' protection for public accommodation.
To be clear, I would have voted against the Colorado law. But it is there, it was duly enacted, and it is the easy and elementary answer to your hypothetical.
There IS a Colorado law protecting homosexuals' protection for public accommodation.
Sloppy, fast typing... Should be, "There is a Colorado law protecting homosexuals' right to public accommodation."
These cases serve the same purpose as a lynching, to show who's boss and to terrify 'the other' into mindless submission.
But, Chuck, no public accommodations law requires a party to do EXTRA work for anybody. The gay couple was free to (in fact, already had) bought ready made cakes.
They wanted him to make a special cake. Nobody is obligated to do that.
Shocked by Volokh here. I guess the years of being associated with the WaPo have played a role.
Or he just got so caught up in pushing gay marriage he lost sight of the idea of personal liberty and freedom....
Chuck said...
The reason that a baker can refuse to bake a Nazi cake is so simple; there is no Colorado law protecting Nazis. There IS a Colorado law protecting homosexuals' protection for public accommodation.
So do you believe that if Colorado passed a law protecting Nazis, that a baker ( say for example, a Jewish baker ) could be required to bake such a cake? And that such an interpretation of the law would not run afoul of the baker's constitutional rights?
The law is an unjust infringement of their right to free expression, just as a law that created a protected class for Nazis would be.
The name of the shop is Masterpiece. It's both Art and Dick (no homo).
damikesc; I don't think that's a credible argument. And it doesn't meet religious freedom or First Amendment thresholds.
It isn't "extra work"; it is precisely the kind of work that they do all the time. It wasn't forced unpaid work. I don't think any judge would accept your argument.
I am not dismissing the religious freedom or First Amendment arguments. I was mostly speaking to the meritless "Nazi" hypothetical. This is a statue problem. If Coloradans don't like their civil rights law (and I know that I don't) they should change it.
I hated the idea of federal courts telling my state that our constitutional amendment defining marriage traditionally wasn't valid, after it was passed pursuant to our law with the support of large popular vote and legislative majorities. I'm not crazy about federal courts tinkering with Colorado under the same principle.
I say again; the easiest way to avoid the wedding cake problem is to not pass the kinds of laws that Colorado has in the first place.
You miss the point that Colorado passed the law specifically to create the wedding cake problem and others like it.
tim in vermont said...
The law is an unjust infringement of their right to free expression, just as a law that created a protected class for Nazis would be.
There is no law creating a protected class for Nazis.
But there are laws that require bakeries to be licensed, and to be health-inspected, and local ordinances about their signage, and number of parking spaces, and handicapped access, and worker compensation for bakery employees, etc.
Some of you boys wouldn't have made it out of 1st year in law school.
Pollack aside (see also Wolfe's indispensable "The Painted Word"), there's a reason they wanted Phillips and not, say, me (excuse me for a moment while I giggle about using a masonry trowel to apply frosting or thinning it out so I can apply the frosting with a spray painting rig lulz) to make their cake. Assuming charitably that they're not just targeting him because he's known to be Christian (seriously, why has an Islamic baker never been persecuted similarly), how is doing a cake somehow not as much art as, say, Warhol's Brillo boxes or that monstrosity that was erected in Federal Plaza in Manhattan (had to look it up, "Tilted Arc")?
If we can force an artist (or if we wish to denigrate a baker of this level to a "craftsman" or "tradesman", substitute those words) to accept a commission, can we also dictate that they accept whatever it is we wish to pay them as well ... ?
"To be sure, cakes often do convey messages in the writing or graphics on the cake itself. Cake-makers might indeed have a First Amendment right to decline to include such written or graphic messages on a cake."
-- That's such bullshit.
Voloch logic:
1. Limo rides - not expressive.
2. Baked cakes - not expressive.
3. Decorated cakes - might be expressive, but generally should not be though of that way.
4. Wedding photography - expressive, because it's photography - a traditionally expressive class.
The solution is simple. All bakers should photograph their cakes, thus making their work expressive.
They cannot bake a cake without photographing it - that's their process. And they cannot be forced to photograph a cake for a gay wedding.
If you think that's ridiculous, you now understand the arguments being made in this case.
How about contract law?
Selling pastries out of a bakery does not involve a conntractual relationship.
Constructing a cake according to specific plans annd specifications does.
"Some of you boys wouldn't have made it out of 1st year in law school."
Yes,study of the law sharpens the mind by narrowing it. Presumably their are bulding codes for libraries and art museums.
Kevin said...
.
...
You miss the point that Colorado passed the law specifically to create the wedding cake problem and others like it.
The proponents of the Colorado law would say that they passed the law so that no one could refuse to rent apartments to homosexuals, or deny them employment, etc. They wouldn't admit to wanting to "create the wedding cake problem," but I suppose that they welcome the fight and want to assert the power of their statute as they wrote it.
I'm not sure what to say to you. I've said what I can say about my cultural preference. I don't know what your legal point is.
The reason why is it is specifically that way to try and protect the flank from the cases where homosexual bakers have successfully declined writing "God Hates Fags" and the like on their cake.
If only graphics and words are protected, does that mean a sculpture isn't? It isn't a graphic or a written message.
Yeah, among other problems, I'm not grasping why any sane court would want to sally into the business of judging "richness and complexity" of expression. Burning a flag is a First Amendment protected expressive act. I can't see how making a custom-designed cake isn't at least as expressive.
And wedding cakes have a deep, long, cultural, symbolic history which is highly expressive, much more so than many other items. The act of presenting the cake is symbolic (traditionally fertility). The act of the guests sharing the cake is symbolic. It's hard for me to understand how a custom-designed cake which is designed in consultation with the couple for this purpose is not highly communicative. Such cakes have often had figures on them (or other decorations chosen for their communicative value).
In any case, I can't see how First Amendment law can be structured on an external assessment of the quality of the expression. Hierarchies of valued speech are not something justices should be trying to erect into law, and traditionally they have not. Nice catch, Ann.
Chuck = purblind.
Harvey Weinstein's lawyers are taking notes...
It's not a First Amendment issue, it's an issue of freedom. It's one of those 9th Amendment rights that were not enumerated and thus left to the people. The freedom not to forced to do something one finds objectionable.
And if it's put in terms of the 1964 Civil Rights law, we just need clarification that one-off customized services are not "public accommodations."
Finally, let's see this applied to Muslim cab drivers refusing riders with dogs or alcohol. Cabs are more clearly a public accommodation than wedding cakes.
Wedding cakes aren't even part of the religious ceremony. They are served at the reception, after the wedding. And the baker said he would be happy to sell them shower cakes. I don't see how he's got a valid religious objection to be accommodated.
Can you force a seamstress to sew a flag so that you can burn it? Just curious.
Chuck said...
"I hated the idea of federal courts telling my state that our constitutional amendment defining marriage traditionally wasn't valid, after it was passed pursuant to our law with the support of large popular vote and legislative majorities. I'm not crazy about federal courts tinkering with Colorado under the same principle."
Kind of agree with you here. Just because a law is bad, even very, very bad, does not mean it is necessarily unconstitutional.
Hagar said...
How about contract law?
Selling pastries out of a bakery does not involve a contractual relationship.
Constructing a cake according to specific plans and specifications does.
The legal term of art -- and it isn't much of a term of art -- borrowed from the civil rights heyday is "public accommodations." So, from the days of southern segregation: lunch counters, hotels (like, uh "The Heart of Atlanta Motel"; I love assigning homework to you kids because I hope it keeps you out of trouble), general commerce, etc.
"Contract law" adds nothing dispositive to this case.
". I don't see how he's got a valid religious objection to be accommodated."
Unsurprisingly avered LBOTC.
Wayne Thiebaud Is Not a Pop Artist
He’s best known for his bright paintings of pastries and cakes, but they represent only a slice of the American master’s work
We’re standing in a quiet room at the Crocker, in front of Bakery Case, painted in 1996, three decades after his first successful gallery show in New York City featured baked goods.
Bakery Case, with its half-empty tray of frosted doughnuts, pies and a festooned wedding cake, summons references to influential artists such as Bonnard and Matisse, as well as Josef Albers’ color theory that the perception of color is altered by the colors around it. When Thiebaud paints an object or form, he famously surrounds it with multiple colors, often stripes or lines, of equal intensity, to create a halo effect—though you might not notice that unless you look closely. “They’re fighting for position,” he says of the colors. “That’s what makes them vibrate when you put them next to each other.”
The cakes and pies, the best known of Thiebaud’s work, are painted from his imagination and from long-ago memories of bakeries and diners. But he also paints from life
Read more: http://www.smithsonianmag.com/arts-culture/wayne-thiebaud-is-not-a-pop-artist-
tim in vermont said...
Can you force a seamstress to sew a flag so that you can burn it? Just curious.
I think you are being silly now.
But I will answer your question.
No. Unless your state has a clear statute addressing that problem.
Did you boys get any sort of teaching on "federalism" in your high school civics classes?
I guess you could force a seamstress to sew a flag to be burned if you were part of the gay protected class.
I am aghast that Volokh would take that side of the argument. Carpenter, not surprised at all. I guess Volokh had to choose between freedom of speech and gay rights and chose to weaken the first for the sake of the second.
Is decorating a wedding cake as adept in conveying "a rich, complex expression" as the written or spoken word? No. Neither is dance, nor sculpture, nor any of the other visual mediums that do not use words. The 1st Amendment protects those expressive endeavors from censorship and compulsion just as it protects written and spoken forms of expression. Nor does the 1st Amendment only protect "rich, complex expression[s]". It also protects very simple expressions, such as "No!" or "Yes!"
And, it should be noted, while the visual arts may not be as articulate as the spoken or written word, the visual arts can convey a message more powerfully than mere words. I've found some abstract sculpture to be very moving, yet I would have had a very difficult time putting into words why I found the work to touch something deep inside of me. Surely Volokh wouldn't argue that 1st Amendment protections do not apply to such works simply because no words were used to express the artist's 'message'.
Protection of our freedom of expression is not reserved for activities that are 'worthy' of protection. A t-shirt vendor cannot be made to sell shirts with a message he disagrees with. No one seeing a wearer of a t-shirt thinks, "The t-shirt vendor agrees with that message." Yet, the Court held a vendor could not be compelled to produce and sell a shirt with a slogan the vendor found offensive -- despite the fact there might be little 'art' involved in producing the shirts. (The customer came to the vendor with the design to be printed. All the vendor had to do was print the shirts using that design.) Despite the small amount of effort involved, and the lack of artistic talent required, the vendor would be assisting with producing and disseminating a message he disagreed with. The court held he could not be compelled to do so.
Decorating a cake takes far more effort than would have been required of the t-shirt vendor. Such a cake may require days of effort and contain dozens of individual elements chosen by the artist to convey a message of approbation. If a t-shirt vendor cannot be compelled to use his equipment to print shirts he disagrees with, how can a cake decorator have less protection? The answer cannot be found in Volokh and Carpenter's written arguments. The answer is that they'd rather give gay rights priority over freedom of expression.
not to be glib...but, can I order a ham and cheese sandwich at a kosher deli ?
I'm not sure what to say to you. I've said what I can say about my cultural preference. I don't know what your legal point is.
I'm not making a legal point, but a cultural one. People who pass these laws have every intention of finding and prosecuting those they find to be in violation of their cultural preferences.
If "bake a cake" is found to be non-expressive, so too will the wedding ceremony itself. That is the point of all of this - to force churches to perform gay weddings or face sanction from state and local governments.
It's all inch by inch by design. As long as we can go about creating protected classes, we can go about using those protected classes to remove rights from the general population in the name of "fairness".
Why isn't a seamstress shop a public accomidation? Reasons?
The freedom not to forced to do something one finds objectionable.
Like buying government-defined health insurance from a government-approved provider at government-sanctioned prices?
Stuff like that?
"not to be glib...but, can I order a ham and cheese sandwich at a kosher deli ?"
-- That's not a fair comparison; that would be like going to a vegetarian restaurant and complaining they won't serve you beef. This isn't saying that the baker doesn't have the supply to meet the customer's request, rather, it is saying that forcing the baker to comply is against their belief.
not to be glib...but, can I order a ham and cheese sandwich at a kosher deli ?
Voloch would argue that ham is not imbued with expression outside of the hog that created it, but that cheesemaking is indeed an art.
Chuck said..
'The legal term of art -- and it isn't much of a term of art -- borrowed from the civil rights heyday is "public accommodations." '
Well, but suppose I want the Rolling Stones to play for my wedding. And they refuse. If they are touring, and are coming to my state, then aren't they a "public accomodation"?
tim in vermont said...
There is no law creating a protected class for Nazis.
But there are laws that require bakeries to be licensed, and to be health-inspected, and local ordinances about their signage, and number of parking spaces, and handicapped access, and worker compensation for bakery employees, etc.
Some of you boys wouldn't have made it out of 1st year in law school.
As one who did, you're avoiding the question. The question is, would such a law, applied in the suggested way, run afoul of the First Amendment? If no, that tells us something about how extreme your principles are. If yes, then you should explain the relevant differences, which again will illustrate what the actual principles you are applying are.
By Carpenter's and Volokh's thinking, people would just go to the bakery at the Kroger or Wal-Mart or Target grocery department and buy a generic wedding cake for a tiny fraction of what one costs coming from a "real" baker. Just like they do for birthday cakes and other events.
But, that doesn't happen. So what is it that all those parents and brides and bridegrooms think they are paying for, if not some unique creative expression intangible (and edible) form)?
Plus, it is hard to believe that it would be impossible to find a competent wedding cake baker who would prepare one for a gay wedding in or within a reasonable drive of any medium-sized city, and unless the plaintiffs made a sincere effort to do so and failed, they have suffered no harm beyond the time to make a few phone calls. Having the State levy crushing, business-destroying fines is totally disproportionate and has nothing to do with civil rights and everything to do with totalitarian compulsion.
Period.
And I am someone who does not have a problem with gay marriage and were I a baker would happily accept the business. But wrong is wrong.
"But a restaurant may not refuse to cook or prepare a table for certain customers on the ground that would be a speech compulsion."
-- That's why we have that part about it needs to be reasonable. Calling them sandwich artists is just marketing. That is much different from actual cake decorating.
Plans and specifications provided by the client would take the "art" part out of it.
A special cake would also be subject to a negotiated price.
I fail to see how this is different from entering into a contract to construct a bridge, or whatever, and I have never heard of a contractor being forced to enter into such a contract.
"Well, but suppose I want the Rolling Stones to play for my wedding. And they refuse."
-- If they claim their refusal is religious or moral in nature, this is a reasonable comparison. However, most likely, they're just booked, and that's why they're refusing.
Chuck thinks that limiting the scope of the first amendment is a local issue. Purblind.
"No one looks at a wedding cake and reflects, “the baker has blessed this union.”"
-- Are you sure? Every wedding I've been at, at some point, someone thanks all the people who helped make the event special and for blessing/making their wedding perfect.
study of the law sharpens the mind by narrowing it
It also enables practitioners to have sophisticated sounding tools with which to better promote their opinions and give those opinions a veneer of impartiality and fact.
But there are laws that require bakeries to be licensed, and to be health-inspected, and local ordinances about their signage, and number of parking spaces, and handicapped access, and worker compensation for bakery employees, etc.
What about bake sales?
Some of you boys wouldn't have made it out of 1st year in law school.
Can't be too hard. You did it.
Blogger Hagar said...
Plans and specifications provided by the client would take the "art" part out of it.
Does sheet music take the art out of a musical performance?
The non-cake incident occurred in July 2012, over two years before homosexual marriage was "legal" in Colorado. Hypocrisy is fun!
If a cake is not "expressive" then they could sell a generic wedding cake with the not-rich and not-complex non-expression "HERE'S HOPING YOU ASSHOLES GET DIVORCED" on it and everyone would be happy with it.
In fact, some quick Googling shows that LOTS of people write thank you notes to their bakers for helping to make their wedding special.
You realize, Chuck, you're just making doing an intentionally shifty job as the only viable option.
If the cake is not in the shop...which it was not...then being forced to make it is fascist. If they want a regular cake that is already for sale, they can get that.
How can a government that is opposed to slavery force people to do work extra work against their will? Attack it as forced servitude.
Merits of the case aside, I think Volokh would regret it if the court decided to use the "rich and complex"standard to decide whether a particular work deserves protection
"Requiring bakers to design a cake using certain words, symbols, or other politically significant design elements, might... be an unconstitutional speech compulsion."
-- Uh... a "wedding" for many, many people is an inherently religious event. Sure, sure, some people (like me) might recognize the difference between what the government calls a wedding and what the church does -- but... uh... that sounds like this wasn't thought out too well.
I think it is perfectly fine for anyone, for any reason, to say "you know, I just don’t want to be a part of that." It isn’t even a matter of "my work present in that setting might be construed as an endorsement of that setting." Rather, "that,s just not my thing and I don’t want to contribute." Offering Services to the public is not the same as offering servitude.
Like buying government-defined health insurance from a government-approved provider at government-sanctioned prices?
Stuff like that?
Yes, which if I'm not mistaken the SC agreed with, except if it can be called a "tax." I don't think baking a wedding cake can be called a tax.
Matthew Sablan said...
"not to be glib...but, can I order a ham and cheese sandwich at a kosher deli ?"
-- That's not a fair comparison; that would be like going to a vegetarian restaurant and complaining they won't serve you beef. This isn't saying that the baker doesn't have the supply to meet the customer's request, rather, it is saying that forcing the baker to comply is againsto their belief.
ok, does roast beef and cheese make it more fair ?
"Phillips may subjectively believe that making the cake would have communicated a message about his clients’ marriage, but there is not a substantial likelihood “that the message would be understood by those who viewed it.”"
-- "Retweets are not endorsement," remember.
Honestly, if this is the case, then... we have to re-think EVERYTHING. Remember all the people who think that liking Ender's Game is some sort of agreeing with Orson Scott Card? Why do people boycott places that do immoral things if we assume that buying/selling from a group or individual doesn't imply some sort of moral acceptance? Why do we have "green" or "ethical" retirement/investment strategies?
And, Chuck, before you pooh-pooh a forced servitude angle do to being paid...my job cannot force me to work overtime even if it is paid.
Michelangelos David certainly had a political message.
It was created as a piece of political symbolism.
"It is not about any refusal on Phillips’ part to speak through his cake creations."
-- Why not?
Lots of people think they "speak" through their work. The entire Protestant work ethic is about how good, honest work is representative of one's life. Calvinism, to some extent too.
People express themselves through various things, like running, how they wear their hair, where they choose to eat ("I'm a vegan/Organic/bacon eater!")
People choose to speak through many ways. Why are we saying that he can't speak this way?
That video is surprisingly unsurprising.
damikesc said...
"How can a government that is opposed to slavery force people to do work extra work against their will? Attack it as forced servitude."
Who says the government of Colorado is opposed to slavery? Not on the evidence.
The camel got his nose under the tent with the seemingly reasonable argument that black people need to eat just like white people, and therefore white people who serve other whites food for money must serve black people the same food at the same price. We all liked that law, because we despised the southern racists it was designed to discomfit. Chuck is just pointing out that once you grant that government can force you to serve people you don't want to, you don't have any rights left worth mentioning. Here we are, arguing about whether baking cakes is Art, because we have already agreed that if it isn't, then it is voluntary slavery.
"ok, does roast beef and cheese make it more fair?"
-- Not being Jewish, I don't really know, and would not like to speculate. But, I'm going to anyway.
Assuming that both the beef and cheese are kosher, I see three ways around it for the deli.
1. They don't allow additions to things on the menu; you can ask for things taken off (for allergies, etc.), but they won't add things.
2. They refuse because of their sincerely held religious or moral beliefs (something that Sandwich Artist Andy can't do, since Subway isn't based on being kosher/halal/whatever), and see if anyone sues them, and then the Supreme Court decides.
3. They sell the cheese separate from the sandwich and the customer can mix it if they want.
Do the whores in the legal brothels in Nevada get to choose their customers? The Civil Rights Act said that if you do it for money then you are a whore. "It" is unspecified.
I dont know why the definition of art requires some aspect of complexity. Nor why a simple thing cannot carry a large freight of mixed messages, depending for this on circumstances and prior conventions.
Volokh et al seem disingenuous, or if not, lacking in sophistication.
Would Volokh say that a painter could refuse to do a portrait of a gay couple for display at their wedding? It seems like the form of the expression matters more to him than the expression itself. As technology increases the means and media for artistic expression, that will prove to be a mistake for someone with Volokh's libertarian leaning principals.
The Civil Rights Act said that if you do it for money then you are a whore. "It" is unspecified.
Everyone knows what "doing it" means...
Eugene Volokh identifies as a libertarian, or a "soft libertarian" for whatever that means. I can think of nothing more libertarian than forcing someone to act against their will and violate their religion in a scenario where the product is a contracted luxury item that can be acquired easily at dozens of other competitors by enforcing a law that provides greater rights to one person over another. If you got John Locke, Adam Smith, Friedrich Hayek, John Stuart Mill, and Ayn Rand in the same room, that would be the first argument they would endorse, I'm sure.
One of the main reasons libertarianism never catches on is libertarians do not believe it themselves. It seems that most of the most visible ones are either potheads or poseurs who quickly discard vital principles at the first mild inconvenience. See Gary Johnson.
One Republican I know actually dismisses most Libertarians as "Republicans plus Weed."
I think it is perfectly fine for anyone, for any reason, to say "you know, I just don’t want to be a part of that."
Most normal people do. But the SJW crowd and the Gay rights crowd disagree.
As technology increases the means and media for artistic expression, that will prove to be a mistake for someone with Volokh's libertarian leaning principals.
In the future where robots replace most mundane work, anything humans are left to do will be because it contains artistic expression.
continued comment:
If I were the justices, I would be looking for a simpler line of distinction that requires less assessment. Something like, is the design unique, or is the design chosen from a stock sample book? That's doable. That's the part of their argument that I found more compelling.
But I still think it fails, because I don't think someone is required by law to sell an American flag to some person or some group that is buying it for the purpose of burning it. I don't think a commercial establishment is required to do that by anti-discrimination laws. If it is constitutionally-protected speech to burn the flag, refusal to provide a flag for that purpose must be at least as much constitutionally protected speech. SURELY the refusal to provide, in exchange for money, an American flag destined to be burned is an expressive act!
Therefore, if I were the one the judicial hot-seat in this case, I would say that no one is required to provide a specific item for a specific purpose. A business that sells flags for flag-burning to a black person must sell them to a white person, but a business that will not sell a flag for flag burning has the right to refuse to do so. I realize that this distinction upsets people, because not selling wedding cakes to same-sex couples seems a lot more pejorative. But in this case, the business owner does believe that weddings of same-sex couples are different acts than weddings of opposite-sex couples. Our constitution protects the INDIVIDUAL rights to conscience and expression. I cannot see that the First Amendment has any valid effect in reality if it does not.
The argument that an opposite-sex wedding is exactly the same as a same-sex wedding is really the crux of this issue. I believe it should be honestly addressed. Either the court can say that one must accept this axiom as a condition of doing business, or it can admit that persons may have different opinions about the matter, and that the Constitution of the United States of America allows them to do so.
And no, this will not leave an opening for retail owners to claim that not selling groceries or making a sandwich for a black person is a different act than selling groceries or making a sandwich to a black person. Because that is a clear discrimination against a constitutionally-protected class of people, whereas these photographers et. al. are not generally discriminating against gay people, but refusing to provide a particular service for a particular couple for a particular occasion. One may not agree with their actions or the beliefs behind it, but to say that it is a legally required activity intrudes too far into the individual life of conscience and feeling for my tastes and understanding.
A store that sells religious items, such as patens, chalices and crucifixes, is not required to sell them to a person or group that wants to hold a Black Mass. As painful as this truth is, to some people a same-sex wedding is similar. People have their different belief systems.
Finally, it is rather easy to distinguish between provision of the normal necessities of life and the very small segment of creative, individualized activities such as these. Painting a portrait of a particular person by a particular person is hardly essential. Getting a particular person to decorate your house or set up a party is hardly essential. Public accommodations such as staying at an inn, buying food, buying a car or buying insurance are necessities of life.
One may get married and enjoy all the benefits of that marriage without a particular cake from a particular baker, or an arrangement of flowers from a particular florist, or having the whole occasion memorialized by a particular photographer.
It does rather seem as if Volokh is intent upon whittling away the already skimpy protection the First Amendment offers against governmental compulsion in every single aspect of life. Does he think writing friend of the court briefs is expression? Hardly. A hundred chimps with typewriters could do it. Here, Eugene. Here's the one you must affix your signature to next, or else stop offering legal advice for money.
I think it is perfectly fine for anyone, for any reason, to say "you know, I just don’t want to be a part of that."
Big Brother disagrees.
But I still think it fails, because I don't think someone is required by law to sell an American flag to some person or some group that is buying it for the purpose of burning it.
Flag burners are not a protected class. Once someone enters a protected class, their freedom does not stop at your nose.
tim in vermont said...
Does sheet music take the art out of a musical performance?
10/27/17, 12:40 PM
He shoots, he scores!
"Does he think writing friend of the court briefs is expression?"
-- To be fair, he specifically says graphics and words might/are protected.
So, I guess, the baker could say, "Fine. I'll put dough/flour in the oven for X minutes, and give it to you. But everything else is graphical design, so I won't," and meet what the brief wants?
"But I still think it fails, because I don't think someone is required by law to sell an American flag to some person or some group that is buying it for the purpose of burning it."
The more interesting question is whether one is obliged to sell a unique, original work of art to someone who intends to destroy or deface it. Apparently, if you offer it for sale, you do not have any say in whom you sell it to.
No. Unless your state has a clear statute addressing that problem.
Did you boys get any sort of teaching on "federalism" in your high school civics classes?
The 14th Amendment has clearly superseded the concept of federalism according to Supreme Court decisions.
3. They sell the cheese separate from the sandwich and the customer can mix it if they want.
4. They sell either dairy products or meat products but not both. That's the reality for any genuinely kosher establishment. (3) applies for the ones that are 'kosher style.'
In any case, you can't demand a store sell you something they don't offer. That's like going to McDonalds and demanding trout almondine.
And now let's turn this around. Let's say this very nice gay couple that didn't get the wedding cake from the baker of their (first) choice has a business that caters/arranges for special occasions. Let's call their business "With Style".
Let's say the bleeping bakers and photographers win this one at the SC.
Let's also say that their local Focus on the Family group wants to throw a big bash to celebrate the victory at the SC, for which they fundraised and contributed to legal costs. Joyous Focus on the Family reps show up at With Style to arrange and contract for their services for this celebration.
Is With Style allowed to decline to participate? OF COURSE IT IS. They don't approve of the decision, they don't approve of Focus on the Family, and they don't approve of this celebration. They have every right to tell the Focusers that they don't want to have anything to do with that particular party. And no, refusing to do that job does not in any way religiously discriminate against Focus on the Family. They just object. With Style has the right to object.
I have experienced Pollock's paintings in person. I found his work extremely evocative of the universe, of powerful expansive forces. The only thing I can compare the experience to is looking up at a night sky filled with stars out in the desert. I'm sure some maybe never have had the experience.
Has there been a case of a printer refusing to print a wedding invitation for a gay couple? Is that the same kind of thing, or different?
I'd go against the bakers too, unless their business was exclusively baking wedding cakes for heterosexual couples as a political statement. I think a wedding cake may be creative but does not inherently make a statement about the couple.
But there are laws that require bakeries to be licensed, and to be health-inspected, and local ordinances about their signage, and number of parking spaces, and handicapped access, and worker compensation for bakery employees, etc.
This doesn't apply to art galleries, museums and artists' studios also?
Kevin - but the business here is not discriminating against a protected class. It is not refusing to serve gay people. It is refusing to serve a gay wedding. And no, that is not the same thing because only people with a same-sex orientation presumably get married to persons of the same sex.
If florists or bakers or photographers were refusing to serve gay customers at all it would be discriminating against a protected class.
The legal standard is or was reasonable accommodation. When there exists a like alternative, and a service is forced through coercion, then it is self-evident that the motive is not equal treatment, or even political congruence ("="), but rather punitive or retributive. This has been the case for many actions taken by diversity racketeers and activists.
"ok, does roast beef and cheese make it more fair?"
-- Not being Jewish, I don't really know, and would not like to speculate. But, I'm going to anyway.
Assuming that both the beef and cheese are kosher, I see three ways around it for the deli.
1. They don't allow additions to things on the menu; you can ask for things taken off (for allergies, etc.), but they won't add things.
2. They refuse because of their sincerely held religious or moral beliefs (something that Sandwich Artist Andy can't do, since Subway isn't based on being kosher/halal/whatever), and see if anyone sues them, and then the Supreme Court decides.
3. They sell the cheese separate from the sandwich and the customer can mix it if they want.
Not Jewish myself, and my knowledge of kosher law is limited ham and cheese and roast beef and cheese. :)
If no artistry is involved they can be forced to sell pre-made no special (aside for the allergy) adjustments can be made. But, that defeats the whole purpose of making a special cake for the special day.
If I have to sell them separately can I just sell the flour, eggs, milk, and whatever frosting is made out of, and call it day.
The problem is, is that we have made provisions for all sorts of religious beliefs. We have have restrictions on homosexual marriages, e.g., "can't force a clergy man, imam, rabbi, etc" to perform a wedding. We either remove them all or continue this path of yes for that, no for that.
I did not know that Jackson Pollack refused to sell his work to Christians because of his pagen libertarian leanings
He probably didn't. So what?
Jupiter said...
Chuck said..
'The legal term of art -- and it isn't much of a term of art -- borrowed from the civil rights heyday is "public accommodations." '
Well, but suppose I want the Rolling Stones to play for my wedding. And they refuse. If they are touring, and are coming to my state, then aren't they a "public accomodation"?
But who are you? Are you part of a statutorily-protected class? Are the Stones refusing you because you are black? Chinese? A woman? A homosexual? Is there a state of federal civil rights law that is triggered in your case? What is the statute? How is it being enforced? What interests are being advanced, or limited?
I just can't do this answering of dumb hypotheticals any more if they are going to be as silly as this.
It's obviously turtles all the way down and this is about creating a caste hierarchy, since a pagan baker can refuse to create a cake for a Christian wedding. What wrong are we trying to right by infringing on free expression?
that the federal courts' interference in this backwater of state law is worse than the courts' interference with state laws prohibiting homosexual sodomy (Lawrence v Texas)
Why? State law is state law. To me there is absolutely no difference in the cases.
and state constitutions limiting marriage to traditional definitions of one man and one woman (Obergefell v Hodges).
How can overturning a state law possibly be more extreme than overturning a state constitution?
Why is the harm suffered so great that everybody's freedom must be reduced?
The relevant Free Speech Clause question is not whether a merchant customizes a product, but whether the customization communicates protected expression.... No one looks at a wedding cake and reflects, “the baker has blessed this union.”... Phillips may subjectively believe that making the cake would have communicated a message about his clients’ marriage, but there is not a substantial likelihood “that the message would be understood by those who viewed it.”...
This is an interesting passage. At the start it claims that "no one" would hold a certain view, and then admits later on that the original claim is false, but then decides that those who actually do believe are not relevant because reasons. This is essentially declaring that the authors' personal biases and opinions are all that matters. Sorry, your biases and ignorance are not arguments.
Garbage.
The flip side may be even more important.
The real political/religious statement in these cases is not that of the baker, but of those who seek to compel the baker.
The statement, in their case, is that of dominance, of power, over others, in that they can compel people into doing that which others find immoral or distasteful.
It is precisely the same as the message Roman magistrates wanted to send by compelling Christians to sacrifice to pagan gods.
Libertarians as "Republicans plus Weed.
Libertarians are social liberals and fiscal conservatives. As such, they share the twilight faith and Pro-Choice religious/moral philosophy of liberals and progressives. Where they part ways is the forced redistribution of wealth from one's own labor, diversity rackets (e.g. racism, sexism), and health care "reform" that circumvents (e.g. monopolies, single-payer) the market and sustains the progressive cost and profit of medical products. They also oppose political congruence ("="), including transgender/homosexual marriage, and other bigoted schemes that deny equal treatment, but did support a non-discriminatory civil union.
"It's obviously turtles all the way down and this is about creating a caste hierarchy, since a pagan baker can refuse to create a cake for a Christian wedding."
-- Wait. Is that an actual case? Because religion IS a protected class.
I see why my pollack argument fell flat,although I was thinking of artist in the past who have taken commissions from patrons including the church in order to survive even though they might not agree with the patron's views. But I admit in a past life as a photographer I have turned down work for a politician I didn't respect perhaps because I could afford to, and it was my private business. No law suit developed and he simply chose another phographer. So it seems my refusal was a combination of conscience and economics with no need to accommodate the request and in that sense I hold with the bakers. Now if I had a photo operation say in Sears store,which was common at one time, could I refuse to photograph someone who held up signs I might object to? I think not based on the asssumption that I am operating in public space and will accommodate all who pay for the services. My right as an artist seems to have less merit in this case and in that case I disagree with the bakers. Chuck help me here
.
In Spain they forced shop owners to sell ham to prove that they were not secret Muslims. Would it be "constitutional" today in the US? HA HA HA, No fucking way.
they can compel people into doing that which others find immoral or distasteful
Exactly. This is a sustainable problem with Obamacare, that force people with a conscience to fund the operation of abortion chambers and clinical cannibal offices (e.g. Planned Parenthood). I wonder how many "good" Americans there are.
Are you part of a statutorily-protected class?
For once Chuck has hit the nail squarely on the head.
This whole case relies on homosexuals being member of a protected class. If this had been a heterosexual couple, no one would care, and Colorado law would not support their case. The solution is a Supreme Court ruling invalidating the concept of protected classes with special rights.
Apparently, if you offer it for sale, you do not have any say in whom you sell it to.
That is Chuck's "public accommodation" argument - I think from the Civil Rights Act.
But a special cake does not exist and is not offered for sale.
Alas it's the wrong fight. The argument ought to be that they're in the wedding cake business and this isn't a wedding, because the government doesn't get to redefine the business you're in by saying that something else is a wedding.
Pollock is fractal, meaning the same statistics at all scales.
I am very surprised at this, because I remember a Wall Street Journal editorial, which I'm practically positive was by Volokh, arguing the other side of the same issue, as well as some pieces on the Volokh Conspiracy. Back then -- and it was only a year or so ago -- he was arguing that things like cake decoration, floral design, wedding photography, &c. were indeed expressive activities, and you were not permitted to command an expressive activity any more than you could command someone to, say, write ad copy for a product she despised, or short stories on particular subjects. I really do wonder what's changed, unless indeed it's named Dale Carpenter, who's also at the VC and has made his views on this subject eloquently known.
Phillips may subjectively believe that making the cake would have communicated a message about his clients’ marriage, but there is not a substantial likelihood “that the message would be understood by those who viewed it.”...
Oh, ok. So how you feel about being forced to express something doesn't matter as long as we all agree that you're not really expressing it.
That makes perfect sense and that logic should 100% be extended to all other aspects of life. What a terrifically libertarian position to take. Wonderful.
"But a special cake does not exist and is not offered for sale."
This is so obvious, as is the logical implication that forcing a baker to bake the cake is slavery, that one can only assume bad faith from those making the case.
Sofa King said...
...
Some of you boys wouldn't have made it out of 1st year in law school.
As one who did, you're avoiding the question. The question is, would such a law, applied in the suggested way, run afoul of the First Amendment? If no, that tells us something about how extreme your principles are. If yes, then you should explain the relevant differences, which again will illustrate what the actual principles you are applying are.
So you are a law grad? It shows. You've accurately framed the question. I have no doubt about what is at stake in Masterpiece Cakeshop, Ltd. v Colorado Civil Rights Commission.
My gut expectation is that if I were one of the nine on the court, I'd side with Mr. Philips and his cake shop. I've said that all along. I've said much, much harsher things about Lawrence and Obergefell, and to a lesser extent Windsor, which I regard as legal abominations.
The issue that I have been driving at independently is the federalism issue, and the role of the courts in refereeing our culture wars. I wanted so badly for courts to stay out of state law in the foregoing cases, I just have a hard time rooting for any result in Masterpiece Cakeshop.
But thanks for at least asking a good question.
As Marie Antoinette would have said, "Let them speak cake."
Gay marriage != marriage = wrongthought.
Dried Dribbles . . . the zany new snack treat!™
Here is another question for the legal eagles: If the are forced to sell the cake, what can they charge. Since this is a one off, one can argue that it has no comparables ? Can they charge $124Million dollars ?
And did Pollack really have anything complex or rich to say? I don't think there's a message to be decoded from the dried dribbles.
If you have ever seen a painting done in the style of Pollack by a less accomplished artist it is quite clear that Pollack has something complex and rich to say.
Whether it is daubed from a paint brush or dripped from a can, an almost endless stream of complex artistic decisions are encoded in a painting.
That is Chuck's "public accommodation" argument - I think from the Civil Rights Act.
Well, just so it is clear, this case doesn't involve the Civil Rights Act at all. "Pubic accommodation" is just a borrowed (or a common) general concept. And because the Civil Rights Act is a federal statute, jurisdiction over any dispute would rightly lie in the federal courts in any event. (The Civil Rights Act cases also had their own federalism problems; how does the federal government get to regulate civil rights claims when there is no interstate commerce that is apparent. Go back and look up "The Heart of Atlanta Motel.")
Mad Boston Arab said...
Here is another question for the legal eagles: If the are forced to sell the cake, what can they charge. Since this is a one off, one can argue that it has no comparables ? Can they charge $124Million dollars ?
Please don't make me answer that.
"
So you are a law grad? It shows. You've accurately framed the question."
So I guess you also think only lawyers should be allowed to vote?
I'll answer it. It'll only work (charging ridiculous fees for a cake) if they charge *everyone* those ridiculous fees. Which if they do, they'll be out of business.
Then again, if one person does buy it, they're set for life. So, you know, maybe win-win.
Matthew Sablan said...
"ok, does roast beef and cheese make it more fair?"
-- Not being Jewish, I don't really know, and would not like to speculate. But, I'm going to anyway.
Assuming that both the beef and cheese are kosher, I see three ways around it for the deli.
Being Jewish, I'm happy to help.
Katz's, a kosher *style* deli in NYC, will be delighted to sell you a Reuben sandwich, with corned beef and Swiss cheese. No Orthodox Jew will be caught dead eating at Katz's.
Second Avenue Deli, a kosher deli, or Ratner's (alas!), another kosher restaurant, are different sides of solving the meat/dairy issue:
Second Avenue Deli is fleishig, a meat restaurant. THERE IS NO DAIRY ON THE PREMISES. If there were, the place would literally have to be decontaminated. They ain't got no cheese to sell you. If you took a square of cheese out of your pocket and put it on your pastrami, they would either stop you, serve you on paper plates, or destroy the china afterwards (porcelain can't be decontaminated; porous).
Ratner's was (sob!) milchig, a dairy restaurant. They served blintzes, cheeses, cakes, vegetables, ice cream. Also fish - fish is neutral, as are eggs. But you would not find a speck of meat in the place.
Four thousand years of Torah and Talmud. We're ready for some hairsplitting mofos. This BTW is why some find kosher cuisine limited, and also expensive. But here we are.
I'll answer it. It'll only work (charging ridiculous fees for a cake) if they charge *everyone* those ridiculous fees. Which if they do, they'll be out of business.
first I am not a lawyer. So, pardon my ignorance.
But, commissioning a special cake, which this is, is not like anything they have ever done.
BTW, it doesn't have to be $124M, but, maybe double or just enough above what the next baker would charge. Thereby avoiding having to do it. I know many contractors that do this, trying to avoid a job (for whatever reason). If they get it great, if they don't great.
For the folks explaining to me how kosher delis work: Thank you. Sometimes blundering about with maybe answers gets us real answers! Thank you.
tim in vermont said...
"
So you are a law grad? It shows. You've accurately framed the question."
So I guess you also think only lawyers should be allowed to vote?
You probably thought that that was going to come off as a really clever comeback. And you didn't realize what a stupid comment it would be, in light of a quote that I have posted perhaps a dozen times on Althouse comments pages.
It's the quote from Justice Scalia's scathing, landmark dissent in Lawrence v Texas, where Scalia specifially denounced the "law-profession culture" that was advancing the legal normalization of homosexuality:
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.
...
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change.
I have always regarded Scalia's Lawrence dissent as the greatest bit of opinion-writing from any Justice of the Supreme Court in my lifetime.
"But, commissioning a special cake, which this is, is not like anything they have ever done."
-- They haven't made THAT cake. But they have baked other cakes. They know how much materials cost, what their time and labor is, etc. It would be no different, legally speaking, than saying, "Well, when the black couple asked me to bake a cake, I knew I'd have to think about the design longer since, they're you know, black, so I charged them more."
It wouldn't fly.
"But who are you? Are you part of a statutorily-protected class? Are the Stones refusing you because you are black? Chinese? A woman? A homosexual? Is there a state of federal civil rights law that is triggered in your case? What is the statute? How is it being enforced? What interests are being advanced, or limited?
I just can't do this answering of dumb hypotheticals any more if they are going to be as silly as this."
Are you suggesting that the question of whether the Stones have a federally protected right to refuse to play at my wedding turns upon the reason they cite for refusing? "We're busy that day" is fine, but "We don't play for homosexual weddings" is not? They have a protected right to refuse, as long as they don't express their true reason for invoking it?
Matthew Sablan said...
"ok, does roast beef and cheese make it more fair?"
-- Not being Jewish, I don't really know, and would not like to speculate. But, I'm going to anyway.
Assuming that both the beef and cheese are kosher, I see three ways around it for the deli.
Being Jewish, I'm happy to help.
Katz's, a kosher *style* deli in NYC, will be delighted to sell you a Reuben sandwich, with corned beef and Swiss cheese. No Orthodox Jew will be caught dead eating at Katz's.
Second Avenue Deli, a kosher deli, or Ratner's (alas!), another kosher restaurant, are different sides of solving the meat/dairy issue:
Second Avenue Deli is fleishig, a meat restaurant. THERE IS NO DAIRY ON THE PREMISES. If there were, the place would literally have to be decontaminated. They ain't got no cheese to sell you. If you took a square of cheese out of your pocket and put it on your pastrami, they would either stop you, serve you on paper plates, or destroy the china afterwards (porcelain can't be decontaminated; porous).
Ratner's was (sob!) milchig, a dairy restaurant. They served blintzes, cheeses, cakes, vegetables, ice cream. Also fish - fish is neutral, as are eggs. But you would not find a speck of meat in the place.
Four thousand years of Torah and Talmud. We're ready for some hairsplitting mofos. This BTW is why some find kosher cuisine limited, and also expensive. But here we are.
which is the better deli ?
And to look at the subject quote:
"Cakes do not convey the rich, complex expression that can be conveyed by words, music, images, and the like and to the extent that cakes are used in ceremonies, their significance is inextricably tied to their being eaten, not to any message they visually convey,"
As others have mentioned and is blindingly obvious to anyone who is not desperately trying not to see it, the wedding cake is one of the many symbols of the wedding. Otherwise no one would spend the time and money to get one unless they really liked fancy cakes, and for that matter it would be hidden away in the kitchen to be sliced up and distributed at dessert time rather than risk it being ruined by a (probably drunk) party goer. It's essentially there to convey "We got married! Hooray!" There is an implication that the baker is not hostile to that message, as "We got married! Hooray! And the baker who made this thinks we are going to Hell!" is not truly appropriate for the event. (Furthermore, they could skip the entire wedding, the reception, the rings, and all the other expenses, say they are married, and use the money for down payment on a house or something similar.)
I am baffled why they think the fact that the cake is meant to be "eaten" is compelling in any way whatsoever. All art is, by its very natural, temporary. Some art will last a lot longer than others due to the materials used and the efforts made to preserve it, but there is no assumption that any work of art will last forever. For one classic example of intentionally temporary art, The Eiffel Tower, a masterpiece of architectural art, was supposed to be dismantled after 20 years and presumably sold as scrap. Does that make it not art? Is there no expression there?
Honestly, after reading this I would think that the authors were taking a dive.
"They have a protected right to refuse, as long as they don't express their true reason for invoking it?"
-- Actually, kind of!
Take this question: "Why didn't you hire me?" You can not answer, and not open yourself to any problems. Or, pick one:
1. "You don't fit our corporate culture."
2. "We found someone with skills that we needed."
3. "You're gay."
One of those answers is going to get you sued.
The solution seems obvious: customers have the right to buy standard product (such as designs in an illustrated catalog) but bakers have the right to refuse to do custom designs.
Yes, a cake may be eaten, so? Plenty of art (e.g. performance art, art installations) is ephemeral and at least some of it may be destroyed in the act of performing it, yet this art has the same legal protections as more durable arts.
As for "rich, complex expression" isn't it best that courts just don't go there? There are plenty of formulaic books, movies, artworks, musical works that lack "rich, complex" expression yet these, too, are fully protected.
Neither the First Amendment nor statutory law state that only "rich, complex" works are protected, and it's a good thing, too. Do we really want courts deciding what art is "rich,
complex" (and therefore deserving of protection) and which is not?
Mad Boston Arab said...
I'll answer it. It'll only work (charging ridiculous fees for a cake) if they charge *everyone* those ridiculous fees. Which if they do, they'll be out of business.
first I am not a lawyer. So, pardon my ignorance.
But, commissioning a special cake, which this is, is not like anything they have ever done.
BTW, it doesn't have to be $124M, but, maybe double or just enough above what the next baker would charge. Thereby avoiding having to do it. I know many contractors that do this, trying to avoid a job (for whatever reason). If they get it great, if they don't great.
Stop it already! Just stop that idiotic hypothetical! You can't charge black people twice the price because you'd rather not have them hanging around your store or your neighborhood. Even if you had unassailable scientific evidence that there was more crime and social disruption and community cost if black people were in the neighborhood.
Because there are civil rights statutes that make such exclusions illegal!
There is a duly-enacted Colorado law in this case. The law prohibits discrimination based on sexual orientation. And it empowers a civil rights commission to apply it. Deal with that, first.
"I know many contractors that do this, trying to avoid a job (for whatever reason)."
-- Why not just... not put in a bid?
Matthew Sablan,
Remember all the people who think that liking Ender's Game is some sort of agreeing with Orson Scott Card?
And "agreeing with Orson Scott Card" means liking him because he's LDS and opposes gay marriage? Need I remind you and everyone else here that only a few years ago, our then-President and then-Secretary of State (or was she a Senator already?) solemnly intoned that "marriage is between a man and a woman"? The Orson Scott Card fuss and the Brendan Eich debacle followed so closely on this as to make no difference.
If we are really to follow through, we might as well toss Utah out of the US. Then at least we could also create the State of Jefferson while still keeping the number of stars on the flag at fifty. But wait: Jefferson is racist, just like every president before (and after) Obama. So the State of Jefferson would necessarily have no monuments to Jefferson.
A bucket of piss and a crucifix = Art, because Eugene Volokh is amused. Wedding cakes, not so much.
Jupiter said...
...
Are you suggesting that the question of whether the Stones have a federally protected right to refuse to play at my wedding turns upon the reason they cite for refusing? "We're busy that day" is fine, but "We don't play for homosexual weddings" is not? They have a protected right to refuse, as long as they don't express their true reason for invoking it?
In Colorado, (California? New York? Hawaii? I honestly don't know) the Stones cannot refuse to play because you are a homosexual.
I am not aware of any reason why the Stones could not turn you down in Michigan (my state, where efforts to amend the Elliott-Larsen Civil Rights act are the subject of debate right now) or a place like Alabama, or Mississippi, or Kansas, or North Carolina (I am just guessing, at an assortment of deep-red states).
Matthew Sablan said...
"I know many contractors that do this, trying to avoid a job (for whatever reason)."
-- Why not just... not put in a bid?
Don't know! Assume there is no down side.
So, it sounds like the contractors inflating their prices don't have a "moral" problem with the job, but rather, think the job is more trouble than it is worth, but if people sweeten the deal (meet their inflated price), they'd still do it.
Which is different from a sincerely/seriously held religious or moral objection.
huck said...
Mad Boston Arab said...
I'll answer it. It'll only work (charging ridiculous fees for a cake) if they charge *everyone* those ridiculous fees. Which if they do, they'll be out of business.
first I am not a lawyer. So, pardon my ignorance.
But, commissioning a special cake, which this is, is not like anything they have ever done.
BTW, it doesn't have to be $124M, but, maybe double or just enough above what the next baker would charge. Thereby avoiding having to do it. I know many contractors that do this, trying to avoid a job (for whatever reason). If they get it great, if they don't great.
Stop it already! Just stop that idiotic hypothetical! You can't charge black people twice the price because you'd rather not have them hanging around your store or your neighborhood. Even if you had unassailable scientific evidence that there was more crime and social disruption and community cost if black people were in the neighborhood.
Because there are civil rights statutes that make such exclusions illegal!
There is a duly-enacted Colorado law in this case. The law prohibits discrimination based on sexual orientation. And it empowers a civil rights commission to apply it. Deal with that, first.
Do you honestly believe this is hypothetical? Do you honestly believe there has not been many services turned away in this manner. These bakers problem, is that they were honest.
If a baker could simply be paid X+Y to make a cake for a cause they don't like, is the religious/moral objection sincere/serious enough to *deserve* First Amendment protection?
"Some of you boys wouldn't have made it out of 1st year in law school."
It's such an honor to have you here!
Summa summarum: We got 5 votes on the Supreme Court and the guns, so sit down and shut up!
It seems to me that if not selling a cake to someone is discrimination, then you are saying that not selling the cake is communicating an idea -- "I don't like you" or "I don't like what you're doing." And if you say that, then selling the cake must also be communicating an idea -- "I'm fine with what you're doing." And the "tradition" argument seems to be very weak, because until recently nobody would have thought that you were required to sell a cake for an event you didn't like. So whether or not it was seen as expression before, it's certainly seen that way now.
In a free country, of course, the bakers would be free to decline the work and the customers free to go to someone who does want their money.
Unfortunately, we live in a country of Human Rights Commissions. Freedom and Human Rights Commissions cannot coexist.
Matthew Sablan said...
So, it sounds like the contractors inflating their prices don't have a "moral" problem with the job, but rather, think the job is more trouble than it is worth, but if people sweeten the deal (meet their inflated price), they'd still do it.
Which is different from a sincerely/seriously held religious or moral objection.
Agreed. As I always say, there is a price for everything. The contractors (probably) didn't want to deal with the people (bad reputation, got the feeling that they would be very difficult to satisfy, etc...) .
As I said, earlier, the bakers chose to fight in public, rather than be dicks
1) "Oh sorry, you wanted chocolate? Sorry to give you vanilla"
2) "Oh, sorry, it was the weekend, completely forgot"
"Cakes do not convey the rich, complex expression that can be conveyed by words, music, images, and the like."
So why pay hundreds to thousands of dollars for a cake? A few $0.99 box cakes should do, right?
Kevin - but the business here is not discriminating against a protected class. It is not refusing to serve gay people. It is refusing to serve a gay wedding. And no, that is not the same thing because only people with a same-sex orientation presumably get married to persons of the same sex.
Oh let's not split hairs. The intention is to deprive homosexuals of wedding cakes. I'm sure they'd also decline to serve someone who wanted to marry their dog. And possibly too those people who want to marry themselves.
But neither of those belong to a current protected class, and the State of Colorado isn't writing laws and staffing commissions to force them to do so, because the people of Colorado are sufficiently pro-beastiality or pro-self love...yet.
have always regarded Scalia's Lawrence dissent as the greatest bit of opinion-writing from any Justice of the Supreme Court in my lifetime.
Well, that's pretty funny, considering that you have so little patience for plebeians making an effort to clarify, in plain terms, how a decision affects their lives, outside of the topsy turvey world of legal language, where, for example in 2000, the Florida Supreme Court decided that "shall" actually meant "shall not."
I have sympathy on the federalism issue, but I think that this law is intended to have the same effect as the laws in Spain forcing shopkeepers to sell ham, to enforce an orthodoxy. BTW, a side effect seems to be that Spain still 400 years later, makes some great ham! I think what they did to the shopkeeper is an economic lynching. For the same purposes as lynching, to show who is boss.
I don't think that any great harm is being redressed here, and I think that the definition of "free expression" is being unnecessarily narrowed for no good reason.
Chuck said...
"In Colorado, (California? New York? Hawaii? I honestly don't know) the Stones cannot refuse to play because you are a homosexual."
Try to follow the argument. The question is, does the constitutionality of that Colorado statute hinge upon the reason the Stones give for refusing? Is it constitutional for the Colorado statute to require the Stones to play, unless they are willing to lie about their reasons? The question may strike you as sophistical, but in fact the law is not about providing cakes to homosexual weddings. It is about preventing people from expressing their views in a business context. Indeed, it is about compelling people to give apparent approval to acts of which they deeply disapprove, either by participating in those acts, or by dissembling their reasons for refusing.
I suspect Volokh et al are indeed taking a dive.
The question is why. Is this sincere, or meant for a purpose?
Perhaps an appointment to something?
I am paranoid, but usually correct.
As to Chuck, on Scalia on Lawrence -
Yes its pretty, also pretty useless.
Its a dissent, he lost. He lost stylishly.
I suppose that matters to aficionados, but otherwise?
The ratchet only goes one way, until the machine is broken.
In that case the structure of law will be sonething else, and all those law libraries, that survive, will be material for specialist historians.
tim in vermont,
Does sheet music take the art out of a musical performance?
Of course not. But, then, sheet music doesn't convey everything, either. I've been in sheet music retail for half my life. I've also got I-don't-know-how-many thousands of CDs, and you wouldn't believe the variation from one performance to another. It's not all that noticeable in symphonic music, which is what people think of as "classical music." In chamber music and early music, whole 'nother can of worms.
Trying to do something analogous with cake design would be much, much simpler than making a musical score, even a brief one. A better example might be architecture (which Volokh would presumably pass as "expressive," and yet which allows less actual expressive content than cake design does).
But, look, it's been decades since SCOTUS ruled erotic dancing "expressive." Volokh himself, to my certain knowledge, has ruled wedding photography "expressive." Why the disconnect here?
"Cakes do not convey the rich, complex expression that can be conveyed by words, music, images, and the like."
Bitches I hope you know
I won't stop till I hit that hoe
Baby come say hello
And get your drunk ass over here let's bone
"Word(s)! Now THAT'S some serious expression worthy of First Amendment protections!" -- Eugene Voloch
A better example might be architecture (which Volokh would presumably pass as "expressive," and yet which allows less actual expressive content than cake design does).
Moving the toilet from one side of the bathroom to the other. Now THAT'S artistic expression!
The ratchet only goes one way, until the machine is broken.
And yet this clear fact is lost on the GOPe.
Ann, just to reiterate, erotic dancing is "expressive." I doubt the argument there has anything to do with "richness and complexity." In all honesty, why not? (Yes, yes, I realize that there's a distinction between "protected by the First Amendment" and "protected by public accommodations law." But not as big a one as some people seem to think.)
Where due judges get the power to define what is, or isn’t art? Quote me statute. Absent that power, they are exceeding there jurisdiction.
If the bakery loses, can a Lesbian Singing Duo be compelled to sing for Nazis who want them dead?
I know Volokh says that singing is art. Would the Justices have to specifically note that Singing was art in order for my hypothetical not to happen?
For Richard Harris, baking a cake was very much an artistic expression.
MacArthur's Park is melting in the dark
All the sweet green icing flowing down
Someone left the cake out in the rain
I don't think that I can take it
'Cause it took so long to bake it
And I'll never have the recipe again
Oh, no
Tim in Vermont
You can buy sheet music or an MP3 of The Wedding March but you can't make me play it at your gay wedding. I'm not really good enough to play it anyway.
People were talking about generics . I have been trying to get caught up with the musical times. I bought some DAW software called Ableton Live.
I can sit down and MIDI sequence The Wedding March and likely it will be pretty sterile. I guess everyone at the wedding should take MDMA.
I write a blog about the movie Dirty Dancing. On Wednesday I posted an article titled "Dirty Cake Decorating", which shows some cakes decorated with references to the movie.
All those cakes conveyed a rich, complex expression of love for the movie.
http://dirty-dancing-analysis.blogspot.com/2017/10/dirty-cake-decorating.html
Speaking of bias, here's the best headline I've seen all year:
"Newsweek runs op-ed asking if all 'conservative loudmouths' are Irish-American"
Cake or death?
Why aren't attorneys general going after Big Wedding Cake for price gouging?
Mike Sylvester
Does writing movie lines on wedding cakes constitute "Fair Use"?
I noticed that Kroger no longer carries carrot cake. I used to buy one a year, long ago.
It must be that there's no wedding reason for carrot cake.
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