December 5, 2022

"[Lorie] Smith... sat near a plaque that echoed a Bible verse: 'I am God’s masterpiece.' She said she was happy to create graphics and websites..."

"... for anyone, including L.G.B.T.Q. people. But her Christian faith, she said, did not allow her to create messages celebrating same-sex marriages. 'When I chose to start my own business as an artist to create custom expression,' she said, 'I did not surrender my First Amendment rights.' Phil Weiser, Colorado’s attorney general, countered that there is no constitutional right to discriminate. 'Once you open up your doors to the public, you have to serve everybody,' he said. 'You can’t turn people away based on who they are.'"

Writes Adam Liptak in "A New Clash Between Faith and Gay Rights Arrives at a Changed Supreme Court A Colorado graphic designer says she has a First Amendment right to refuse to create websites for same-sex weddings despite a state anti-discrimination law." (NYT).

The oral argument is today.

If you're trying to remember why this is still a live issue after the wedding-cake case:

The court decided Masterpiece Cakeshop on an idiosyncratic ground that is not at issue in the new case, 303 Creative v. Elenis, No. 21-476. Justice Kennedy, writing for the majority in 2018, said [cake decorator Jack] Phillips had been treated unfairly by members of a civil rights commission who had made comments hostile to religion....

The hostility to religion made it easy to resolve under Free Exercise clause doctrine, but Phillips also raised a Free Speech argument. So did Lorie Smith, and, in her case, the Supreme Court granted review only on the Free Speech issue: "whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment."

In the Masterpiece Cakeshop case, Professor [Dale] Carpenter filed a brief supporting the gay couple along with Eugene Volokh of the University of California, Los Angeles. But in the new case, they took Ms. Smith’s side. Professor Carpenter did so, he explained in an interview, in part because he has devoted his career to the cause of advancing gay rights.

“It seems to me that the freedom of speech has been essential to the cause of L.G.B.T. rights,” he said. “It could not have advanced without the freedoms that are secured by the First Amendment. I take these things to go hand in hand.”

Mr. Phillips’s cakes did not deserve First Amendment protection, Professor Carpenter added, but Ms. Smith’s graphics and websites do. “Cake making is neither an inherently expressive nor a traditionally expressive medium,” Professor Carpenter said. “People make cakes for taste or nutrition.”

Ugh! Phillips was a cake decorator. The designs in the icing on the outside of the cake require artistic skill and choice. It's not about the cake baking. There are distinctions between wedding cakes and websites, but it's disingenuous to say a wedding cake is made "for taste or nutrition." It's made for the way it looks and what meaning those looks convey.

91 comments:

Kevin said...

The left does not truly believe in “my body, my choice”.

Let alone “a woman’s right to choose”.

Kate said...

"You have to serve everybody". So Musk should reinstate Ye? Paypal can no longer refuse to process purchase orders for right-wingers?

I don't care which way this issue is decided as long as it's applied evenly and consistently.

Duke Dan said...

Someone doesn’t know how the constitution works. It does not grant rights to people. It prevents the government from taking away our natural rights. Of course people have a right to discriminate. I discriminated against all the women in the world that I didn’t marry for example.

Big Mike said...

Nero feeding Christians to the lions had nothing on the Colorado state government.

gspencer said...

"If you're trying to remember why this is still a live issue after the wedding-cake case,"

then remember this. The left never sleeps, never takes a break from inventing ways to get you to do as you told.

"It is the common fate of the indolent [*] to see their rights become a prey to the active [**]. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude [***] is at once the consequence of his crime and the punishment of his guilt." John Philpot Curran (1750- 1817).

Hard-earned rights can and will be taken without a moment’s notice. And as recent evidence, look at how governors and their staffs acted during the COVID-19 lockdown. Red China is the left's model

* The indolent - those who may complain but yet won’t take action

** The active - experience has taught that the left has a never-ending list of stupid, freedom-depriving ideas; the left will NEVER leave us alone. Green New Deal; elimination of 1st Am., 2d Am., mail-in voting, shut-down orders, and on and on

*** Servitude - comes in a variety of forms, from detention (jail, stay-at-home orders) to economic deprivation via regulations (which always result in bigger government, higher prices for goods/services and greater unemployment) to increased taxation

Danno said...

I agree that a wedding cake, much less any specially decorated cake, is not made for taste or nutrition.

Readering said...

Phillips must not eat wedding cake.

Readering said...

Right wingers not a protected category. Musk should not keep LGBTQ off twitter.

Readering said...

Shades of parades and scouts. Both won on 1A in USSC, but eventually accepted LGBTQ anyway, I seem to recall.

Jake said...

I’m so sick of lawsuits like these. Are homosexual couples unable to find web designers willing to help them or are they targeting people they know don’t want to work with them? Just move on and find somebody else.

Enigma said...

Next up, generic wedding cakes a la 1980s style black and white or blue and white discount products:

https://historysdumpster.blogspot.com/2012/08/generic-products-of-80s.html

Oh the romance of block letters on a white background! I swoon. My heart swells with emotion and nostalgia about 1980s generic weddings where the bridal gowns were made from recycled newspapers (sarcasm day for Althouse, he he).


Blogger really needs to add images to the comments section. A picture is worth 1,000 words.

retail lawyer said...

"Phil Weiser, Colorado’s attorney general, countered that there is no constitutional right to discriminate. 'Once you open up your doors to the public, you have to serve everybody,' he said."

He must never have worked in a firm representing random citizens.

Big Law is now refusing to represent conservatives.

Phil Weiser needs to brush up on his legal ethics.

CStanley said...

Someone doesn’t know how the constitution works. It does not grant rights to people. It prevents the government from taking away our natural rights. Of course people have a right to discriminate.

This is correct, but my limited understanding of constitutional law tells me that the government takes away some of these rights when people are engaging in commerce.

I wonder if the solution is to create and sell products of one’s creations in such a way that certain people would not want to purchase the product or contract the service.

A vegan restaurant can’t be compelled to serve meat, for instance.

The Masterpiece baker could include a Bible verse on all of his wedding cakes that affirms the scriptural basis of heterosexual marriage. I would assume gay couples wouldn’t want that on their cake. He’s not discriminating against them because they are free to buy one of his wedding cakes if they wish, but the cake is an expression of what he believes about marriage and not what they believe. If they want something that doesn’t affirm beliefs contrary to their own, they need to contract the services of an artist who affirms what they believe.

gilbar said...

did not allow her to create messages celebrating same-sex marriages. 'When I chose to start my own business as an artist to create custom expression,' she said, 'I did not surrender my First Amendment rights.'
Phil Weiser, Colorado’s attorney general, countered that there is no constitutional right to discriminate.

hmm... gilbar writes porn. his beliefs do not allow him to create porn celebrating marriage.
Can gilbar be FORCED to write PRO marriage porn? is there no constitutional right to discriminate?

What Types of speech can be FORCED to be created? Does an author have ANY say? If not What IS free speech?

gilbar said...

Duke Dan said...
I discriminated against all the women in the world that I didn’t marry for example.

Can Duke Dan be FORCED, to write love letters to ALL the people (male and female) IN THE WORLD;
that he didn't marry?

Quayle said...

“ People make cakes for taste or nutrition.”

Reminds me of when I was young growing up LDS and our youth group would get together for some activity, and at the appropriate juncture would pause and pray before having the refreshments.

Some teenager asked to voice the prayer would occasionally reflexively say something like “bless this food to be nourishing and strengthening to our bodies.”, when food was donuts or cookies. Good natured ridicule would follow, but that was among friends.

In the relm of constitution law, the ridicule need not be as good natured. Cruel, neutral ridicule is appropriate.

Quaestor said...

Kosher deli owner: Today's specials are pastrami on rye and Swiss cheese on whole wheat.

Gentile customer: Forget the specials, I demand a pastrami and Swiss on whole wheat -- one sandwich with both meat and cheese.

Kosher deli owner: Not possible.

Gentile customer: You're legally obliged to serve me, you bigot!

Kosher deli own: So sue me.

Birches said...

This should be easier to decide because of the court's new make up. I wonder where Roberts will side?

Owen said...

Agree that these cases are tiresome and impose a big cost on all of us —not just the threat to 1A but the time and expense of litigation over what is, excuse me, bullshit claims of hurt feelings. The defendants were targeted by the Progs precisely because of their views. The complainants could easily walk down the block and found cakes or art supplied by completely congenial vendors; but noooo, they went looking for a fight. Disgraceful.

The tolerance that the Progs insisted we all grant to gays etc was a shield. Now it has become a sword, and it needs to be broken. Decisively.

rrsafety said...

I'm old enough to remember when gay marriage advocates would say, "What do you care if two people who love each other get married? What business is that of yours?" But, of course, with the progressive movement is is ALWAYS about YOU.

Shouting Thomas said...

Althouse’s feminism and gay worship cannot coexist with free speech and freedom of association. Free societies are built on the traditional, religious family and property rights. Feminism and gay worship inevitably attack these foundations.

The proof of this is in the last 50 years of practice.

The prof keeps trying to square a circle that cannot be squared. Either reject the feminism and gay worship or give up on free speech and freedom of association.

tim maguire said...

Nobody buys a wedding cake for the taste, that's the last thing people think about when choosing their baker.

The "don't be a dick" rule works both ways. It might be different if Phillips and Smith were the only people in town who did their work. But they're not. Gay couples are not meaningfully impacted by the refusal of these businesses to cater to them, they are free to go elsewhere. No, these businesses were singled out for the religious views of the artists.

These suits are not about equal treatment, they are an attempt to purge our culture of certain disfavored views; to punish people who are out of step with "modern" orthodoxy. The gay couples are not fighting intolerance, they are enshrining it.

tim maguire said...

CStanley said...The Masterpiece baker could include a Bible verse on all of his wedding cakes that affirms the scriptural basis of heterosexual marriage. I would assume gay couples wouldn’t want that on their cake

Nobody would want that on their wedding cake.

Sebastian said...

"why this is still a live issue after the wedding-cake case"

"Still" a live issue? The issue is more live now, after the prog imposition of SSM, at the probable expense of actual constitutional liberties. The culture war didn't stop with Obergefell, and this is just another skirmish. SCOTUS may help out now, but the long-term prospects for traditional believers are bleak.

Richard said...

Should be a few Muslims in the business. The happy couple could try those guys for flowers or cakes or photography.... Let us know how the AG sees that.

Richard said...

Should be a few Muslims in the business. The happy couple could try those guys for flowers or cakes or photography.... Let us know how the AG sees that.

Ann Althouse said...

"I’m so sick of lawsuits like these. Are homosexual couples unable to find web designers willing to help them or are they targeting people they know don’t want to work with them?"

Who do you think brought the lawsuit? You have an incorrect assumption.

Lorie Smith brought the lawsuit.

One of the govt's arguments is that she shouldn't be able to sue until the law is enforced against her. She's saying the fear that it will is enough.

So will you say she ought to "move on"?

Rusty said...

Readering said...
"Right wingers not a protected category. Musk should not keep LGBTQ off twitter."
Are they off Twitter? Am I obligated to read their tweets?

" She's saying the fear that it will is enough."
And she is correct. The state will beat her down and rob her unless she gets in front of this.


Hunter Biden's tax payer funded Hooker said...

Heterosexual couples don't usually call up the Cake Baker and leave vile messages.

Angry Homosexual Men - did. over and over - as an open act of harassment.

rhhardin said...

The law makes no sense because the civil rights law was written wrong. It should have been "narrowly tailored" in denying freedom of association, namely to cases of monopoly markets, whether de jure or de facto monopoly (nice business shame if you were to serve blacks).

Common sense has been forced to use other rights like religion to get past this mistake, but the mistake, but freedom of association has nothing to do with religion. So now they're trying freedom of speech, as they go one by one to special cases that might weigh against denying freedom of association.

It would be so simple to just say freedom of association except in monopoly markets, that being what weighs against it. Then there's no cake problem in the first place.

Mr Wibble said...

Is religious belief protected in the same way that sexual orientation is protected? Could a Christian sculptor be compelled to produce a statue of baphomet for a pagan ceremony?

CStanley said...

CStanley said...The Masterpiece baker could include a Bible verse on all of his wedding cakes that affirms the scriptural basis of heterosexual marriage. I would assume gay couples wouldn’t want that on their cake

Nobody would want that on their wedding cake.


I agree most would not and that I’m straining to make my case. I guess what I’m saying is that unless the courts side more firmly with free expression and free practice of religion, the only avenue left would be to be more explicit in ones expression and then hope there’s still a market for it.

Mike (MJB Wolf) said...

All she needs is one of those little signs that say “We reserve the right to refuse service for any reason.” Those signs work. I’ve seen it.

DanTheMan said...

Remember, private companies like Twitter and YouTube can do what they want.
Apparently, tiny companies have no such right.

n.n said...

It should have been "narrowly tailored" in denying freedom of association, namely to cases of monopoly markets

That would be reasonable. Let democracy decide without the [anti]fascist violence. For one, it would mitigate progressive prices (e.g. Medicare/Medicaid/Obamacares) to assure equitable and inclusive access to products and services without forward-looking collateral damage.

Heterosexual couples don't usually call up the Cake Baker and leave vile messages.

The transgender spectrum is not a gay bloc.

Anthony said...

tim maguire said...
Nobody buys a wedding cake for the taste, that's the last thing people think about when choosing their baker.


Almost! We went to a specific one because their cakes were actually delicious.

RoseAnne said...

"Nobody buys a wedding cake for the taste, that's the last thing people think about when choosing their baker."

That's my personal opinion as well, but I have heard enough wedding planning to know a lot of people do think and care about it.

n.n said...

Twitter is a high-capacity, rapid-fire, assault-style platform, similar to #TooManyLabels, #TooManyFlags, #TooManyMemes, #SemanticGames, #ScriptedMobs, etc.

Angry Homosexual Men - did. over and over - as an open act of harassment.

So, given the diverse precedents in social justice, congressional virtue, executive collusion, an act of self-defense, self-preservation to mitigate past, present, and progressive burdens from liberal sects.

Critter said...

Scratch a liberal, find a fascist.

Joe Smith said...

Not fucking again...the left is like cancer; they will never stop until they kill us all.

"'Once you open up your doors to the public, you have to serve everybody,'"

Were I defending her, I would deploy the 'No shoes, no shirt, no service' defense.

Except applied to annoying gays.

Owen said...

Her disquiet may be legitimate. How can the government offer her any reassurance that it WON’T use the law against her? Will it issue her a personalized opinion, a “get out of jail free” card?

If the law is vague or ambiguous, can we safely presume that it will not be read aggressively? Isn’t that exactly what happened in the cake case? The combination of crappy drafting by vote-hungry legislators pandering to a Prog constituency, and aggressive/selective enforcement by prosecutors eager to take political scalps, puts the public at real risk. Your tax dollars at work.

Joe Smith said...

'Scratch a liberal, find a fascist.'

Maybe back in the day, when it was bad to be a fascist.

But now that the left owns government, education, entertainment, media, sports, tech, etc., they are quite up front and proud about it.

pacwest said...

No shirt - no shoes - no service.

Rick67 said...

The effort to distinguish decorations from speech is both strained and incoherent. Would heterosexual couples be content with a plain wedding cake with no decoration whatsoever?

Although one could argue that even "no" decoration is itself a form of decoration.

Could a Jewish florist be compelled to create a flower arrangement in the form of a swastika?

Lurker21 said...

True, that was a gratuitous slam at cake decorators by Dale Carpenter, and indeed, the law professor did miss the whole point of "Masterpiece Cakeshop," but what's Jack Philips going to do? Sue?

How is the Anti-Trump Manifesto that Carpenter signed in 2016 holding up? It looks like there was more substance to the possible objections the signers list to their argument than to the reasons they give for not voting for Trump.

I was thinking, if Philips built the cake and didn't put any names on it, would that be an acceptable compromise? But then I remembered that the couple probably wanted two little men at the top instead of a man and a woman.

Anyway, can we all just agree that the fact that the men (or the women) aren't smearing the cake all over their new partner's face anymore is a great step forward for humanity?

Luke Lea said...

To take an extreme case, suppose a right-wing extremist organization requested her to write "Heil Hitler" in the icing on her cake. Would she be legally required to comply?

Luke Lea said...

Correction. This was about designing a website, not writing on a cake. The same extreme example, hiring someone to make a website extolling Adolf Hitler, still illuminates the legal issue in my opinion. The customer should seek out another website designer if they can find one.

hombre said...

"Public accomodation?" Lorie Smith is not selling baubles or hamburgers, she is selling her creative talent. LGBTABC activists and their Democrat consorts pursue the notion that they are entitled to enslave her temporarily to normalize LGBT sexual preferences by denigrating a Christian sacrament.

If the First Amendment prevails, as it should, there will no doubt be weeping and gnashing of teeth among the usual suspects in the godless and abberant anti-Christian crowd.

It doesn't occur to them that the Court is doing them a favor by postponing the day when Christians and others will have had a belly full of Democrat despots trampling our rights purportedly on behalf of the "victim" classes.

hombre said...

Readering: "Shades of parades and scouts. Both won on 1A in USSC, but eventually accepted LGBTQ anyway, I seem to recall."

How are the Scouts doing these days? https://www.cnn.com/2020/02/18/us/boy-scouts-bankruptcy/index.html

LOL!

Václav Patrik Šulik said...

I'm listening to the oral arguments. I really want a guide to the attorneys. It understand that Kristen Waggoner, with the Alliance Defending Freedom represented the web designer. I think the state's attorney is Eric Olson, Solicitor General. I'm not sure who is talking now.

Christopher B said...

Ok, obligatory disclaimer that I'm not a lawyer but it's really hard to believe that the distinction is all that difficult to make, and there seems to be more than a little straining on one side to make the distinction as difficult as possible.

A product or service advertised as being available to all comers should be offered without discrimination, i.e., if you have a shop with wares, or a diner with tables, or a hotel with rooms, you can't refuse service if you have resources available without a non-discriminatory reason (i.e. disruptive behavior, etc)

If the product or service is advertised as provided on a discretionary basis, i.e. the form and terms are individually negotiated, then the provider can decline to enter a contract for any reason or no reason.

Doesn't the 13th Amendment mean anything any more, or was that swallowed up by the 'Living Constitution'?

Yancey Ward said...

Yikes, Carpenter is a fucking idiot, it appears.

Václav Patrik Šulik said...

As an aside, Justice Brown-Jackson proposed a hypothetical in which a photographer wants to publish a book of pictures showing children with Santa in sepia reprising similar scenes to "It's a Wonderful Life" in 1946, thereby precluding any children of color. Being picky, I should note that there were no scenes of Santa in IaWL (although one of the Bailey kids had a Santa mask around his neck). It should have been Miracle on 34th Street (1947). The clerks should have checked this.

Yes, I'm OCD and very nit-picky.

Václav Patrik Šulik said...

p.s. I enjoyed the joking between Alito and Kagan on Jewish dating websites and Ashley Madison.

Dude1394 said...

This is a big reason that I give the finger to all gay intiatives. They are fascists.

Mike (MJB Wolf) said...

I share Althouse's frustration with the nitpickingly lame "artistic expression" comment. There are cake competitions and decorating skills seem to be much more highly scrutinized than flavor or -- for Pete's sake nutrition. Nutrition! That is so far away from cake making considerations it isn't even funny. And spare me the zucchini or carrot "cake" takes because those are just as sugary and fat- & carb-loaded as any other dessert.

Now I wonder if this professor would recognize a food stylist working for a photographer as an artist or a nutritionist. You too? I've had some high-end meals that were presented with more flair than a Banksy painting, ironically at the don't-say-gay Disney Grand Californian hotel's fine dining place Napa Rose. You can NOT see the beautiful little surprise amuse bouche course and fail to see artistic expression.

Mike (MJB Wolf) said...

Someone doesn’t know how the constitution works. It does not grant rights to people. It prevents the government from taking away our natural rights.

Sure if you take the 1st through 10th Amendments seriously, as earlier Congresses did. Obama spelled it out for us not educated in modern law schools: that reference above is to the "negative rights" but Progressives are more interested in the "positive rights," you know, the kind they find hiding under a penumbra undiscovered for 195 years...until it was discovered. They don't recognize limits in the Bill of Rights like we do. I'm afraid most law professors also agree with Obama or at least agree that that is a legitimate interpretation of our Constitution. Althouse admires a lot of arguments I think are specious and destructive and let's face it, she is decidedly mainstream in her public opinions. For most of the last 100 years her expansive view of those interpretations has ruled the day far more often than my old fashioned originalist opinion. And guess what? The more this current conservativish court tries to correct that trajectory (like Dobbs or Virginia vs EPA) the more outlandish and thuggish the reaction from the Left's brownshirts will be. Every fight will be a vicious one regarding the SCOTUS. Even Dobbs which they all EXPECTED to happen sooner or later was met with Defcon 5 hyperbole and "direct action."

We can talk about cake decorating. They are talking expand the court or assassinate the troublemakers. We want to debate. They want to eliminate opponents so there is no more debate.

iowan2 said...

Duke Dan @7:56

"Someone doesn’t know how the constitution works. It does not grant rights to people. It prevents the government from taking away our natural rights."

The govt can't decide what the people can or cannot do.

Where is the constitutional power to compel individuals to take specific actions.

The examples are almost endless of artists now being forced to provide their content, against their will.

JAORE said...

"Mr. Phillips’s cakes did not deserve First Amendment protection, Professor Carpenter added, but Ms. Smith’s graphics and websites do. “Cake making is neither an inherently expressive nor a traditionally expressive medium,” Professor Carpenter said. “People make cakes for taste or nutrition.”'

Poppycock. If the cake is not "expressive" a sheet cake without any lettering, flowers, tiny couple or other "expressive" elements would suffice.

Would Professor Carpenter agree to THAT as an adequate product for gay weddings? Of course not.

Still trying to reconcile that an elaborate wedding cake is not free speech but stripping is.

Mike (MJB Wolf) said...

Shades of parades and scouts. Both won on 1A in USSC, but eventually accepted LGBTQ anyway, I seem to recall.

Just like Twitter. Progressives defunded the Scouts by targeting charities like the Salvation Army and others that funded scouting. The elected officials who couldn't win in court sent in thugs to harass and bankrupt any charities that did not hew their new Gay-gay-gay line. They targeted the churches that were used for Scout meetings. They had municipalities and big donors publicly shun charities that continued to fund scouts. My preference is that NO GOVERNMENT FUNDS should ever be given to so-called charities because taxpayers can fund charities directly if they see fit. Money laundering through the tax code is not fair. But that is how they play and they get the private non=profits to do illegal acts that they the government can not do in the open. This the system Readering counts on, where every single plying field tilts to the left and if not, then destroy it.

That's why Joe needs another 87,000 fucking IRS agents. To harass any remaining non-profits or private wealth holders not yet co-opted for Democrat exploitation, while protecting the DNC-NGO money-laundering operations.

Mike (MJB Wolf) said...

To take an extreme case, suppose a right-wing extremist organization requested her to write "Heil Hitler" in the icing on her cake.

You mean a Kanye Cake? "Right wingers" hate Hitler, in case you really didn't know. The only people I've heard praising Hitler lately have been a crazy black guy, his gay white jewish friend and their mutual friend the Mexican-American dude, none of whom are conservatives. Your more likely to find an FBI agent under that hood than a right winger.

Mike (MJB Wolf) said...

If no creative abilities are needed for Web design why even hire a Web designer? And that dude is a LAW PROFESSOR.

Kevin said...

"Phil Weiser, Colorado’s attorney general, countered that there is no constitutional right to discriminate. 'Once you open up your doors to the public, you have to serve everybody,' he said."

So where is his lawsuit against Twitter for blocking the NY Post?

Vance said...

Forget free speech for a moment. How is this not a violation of the 13th amendment prohibiting slavery?

What was slavery, what is slavery? When someone is compelled to work for someone else and do what they ask. To provide their economic services to someone else when they do not wish to.

It does not matter that "Well, we paid her for her website!" Slaves were paid, too. They were fed, clothed, had some health care (admittedly, none of this was fantastic). and of course they also got beaten, whipped, and put in chains, just like what the LGBT community wishes to do to Christians.

J Melcher said...

For Ann specifically, our host who pays attention to language usage:

A "masterpiece" is a work created by a senior journeyman, as a test or sample of the work he WILL, later, do when admitted to the guild ranks as a master. As good as a master's work, but not a work BY a master.

Of course if the cake maker or website designer is referring to how their mortal clay has been shaped by the anointed apprentice sent out on a journeyman's mission by "The Master" -- well perhaps the usage is correct after all.

Lem Former Twitter Aficionado said...

it's disingenuous to say a wedding cake is made "for taste or nutrition." It's made for the way it looks and what meaning those looks convey.

The fact that it's called a wedding cake tells us it is meant to convey something more than mare nutrition.

This lawyer guy might be trying to part the baby, because to do otherwise may create the impression among his peers, that he has abandoned their cause. So, he's saying, let them eat the cake they want, from who they want, when they want it and how they want it.

The costumer Israeli right-handed.

Shoeless Joe said...

"Phil Weiser, Colorado’s attorney general, countered that there is no constitutional right to discriminate."

How stupid is this guy? OF COURSE there is a constitutional right to discriminate. Every time I go to Burger King instead of McDonald's I'm discriminating against one fast-food joint in favor of the other. Is that unconstitutional? The legal question in each and every situation is why that specific choice to discriminate is being made. In this case it is clear that Smith turned down the couple not because they are gay, but because of the event they were celebrating.

It takes a special brand of fascist stupidity not to get that distinction. Hopefully the Supremes put their boot up Weiser's backside.

gspencer said...

"If the First Amendment prevails, as it should, there will no doubt be weeping and gnashing of teeth among the usual suspects in the godless and abberant anti-Christian crowd."

They really do HATE the Constitution because it limits government. That is, if it were obeyed/followed as written. And as leftist pols promised to do when they take the Article VI oath.

Which Way, America?

(A) The way of the Founders/Framers*
or
(B) The way of the EU/USSR/PRC/UN/Islam model

Under (A), rights are pre-existing and inalienable, inherent in each person by simply existing. Government is organized, with the consent of the governed, and most importantly with defined limitations, solely to protect those rights.

Under (B), rights are “granted” by government which exists unto itself regardless of the consent of the governed, acting as the final arbiter. Here, what government “gives” can as easily be taken away. And with (B), there are no limiting principles placed on governmental power.

Well, which do we (or a voting majority) really, really want, (A) or (B)? Decision time is upon us.

Seamus said...

David Bernstein posed some interesting hypotheticals in the amicus brief he wrote for the Jewish Coalition for Religious Liberty (https://reason.com/volokh/2022/12/05/justice-alito-asks-questions-in-303-creative-from-jewish-coalition-for-religious-liberty-amicus-brief/) :

Should a Jewish website designer who believes intermarriage is an existential threat to the continuation of Judaism be required to design a website celebrating the upcoming nuptials of a Jew and a Christian?

Should a Jewish photographer who believes adultery to be an abomination be required to provide a photograph of a customer who intends to use it for his ashleymadison.com profile?

Justice Alioto posed these hypotheticals to Colorado SG Olson, who stepped on his schlong by answering, in effect, Yes, the Jewish business would be required to violate its conscience if it marketed itself to the public at large, but not if it self-ghettoized by distinguishing itself in its marketing as a Jewish-oriented or Jewish-law-compliant business.

Jake said...

"So will you say she ought to "move on"?"

I hadn't realized that. I guess I don't understand procedurally how the suit came about then. I think the easiest way for her to avoid building websites for homosexual weddings would be to decline working with homosexual couples without any reason given. In my profession I am free to work or not work with anyone based on my own choosing for any reason or no reason at all.

So, to answer your question, without knowing at all how the lawsuit began, yeah. She should move on and just not work with people she doesn't want to work with without explanation.

Jupiter said...

Do the Rolling Stones have to play at their wedding? Why not?

Andrew said...

Can she create a website that contains pop-ups that say, "Jesus loves you"? And every time you close a pop-up ten more appear?

Michelle Dulak Thomson said...

Readering,

Right wingers not a protected category. Musk should not keep LGBTQ off twitter.

If Musk is "keeping LGBTQ off Twitter," this is the first I've heard of it. The only person I know Musk booted off was Ye, and that was for posting some sort of weird swastika/Magen David mashup.

But as to "right wingers [are] not a protected category": In complete seriousness, why not? Are Communists a "protected category"? Are socialists? I'm thinking that Eugene Debs would like a word. Also Bernie Sanders. And all the targets of HUAC. (Many of whom did actually belong to the CPUSA, for what it's worth.)

Political affiliation should not ordinarily be cause for government action. There are genuine exceptions -- the KKK for one, at least when it was a live thing and not a bunch of geezers who like to dress up in robes and hoods -- but that is because they are genuine threats. The guy in Wisconsin with a Gadsden flag [!] on his door is not one of them.

FullMoon said...

Intolerance and hatred. Everyone on the left is not like that. Unfortunately the vast majority make the small minority look bad.

Narr said...

I'd present LGBTQ+ clients with lots of options, all featuring pron of the most outrageous kind. Who are they to question my Art?

tim maguire said...

Rosanne and Anthony, I'm sure people would choose good tasting over bad tasting, but I find it very difficult to believe that any meaningful number of people (given a nation of 330 million, people who say "nobody" don't really mean literally nobody) someone would choose plain over beautiful due to taste concerns. Beautiful will always trump tasty if that's the choice.

Jupiter said...

At least they have pretty much stopped pretending that this is just about "having the same rights as everyone else". This is about King Homo.

Readering said...

Jake: it was a test case. Pro Bono plaintiff counsel changed her website so as to focus it for filing a complaint. A major defense was that it was premature since they did not take any action against her.

Readering said...

Shoeless Joe: it's about protected categories. Problem for both sides is history. What to do about sex after all the law made on race.

Did not listen to argument but gather Alito tried to distinguish between religious view of same sex marriage v interracial marriage. One he called an honorable position. Some day the Court will include same its first sex married justice. Interesting to think about Court dynamics then.

effinayright said...

Shoeless Joe said...
"Phil Weiser, Colorado’s attorney general, countered that there is no constitutional right to discriminate."

How stupid is this guy? OF COURSE there is a constitutional right to discriminate. Every time I go to Burger King instead of McDonald's I'm discriminating against one fast-food joint in favor of the other. Is that unconstitutional? The legal question in each and every situation is why that specific choice to discriminate is being made. In this case it is clear that Smith turned down the couple not because they are gay, but because of the event they were celebrating.

It takes a special brand of fascist stupidity not to get that distinction. Hopefully the Supremes put their boot up Weiser's backside.
********************

Once upon a time, the Supremes spoke of "invidious" discrimination, the kind they deemed illegal. You don't hear that distinction made any more. The difference has been simply been glossed over.

Owen said...

Christopher B @ 11:03: I think you covered things pretty well.

I think "public accommodation" was a force-fit when the Civil Rights Act was negotiated in the Sixties. It works best if what is being bought and sold is a standardized generic good or service such as a meal or a hotel room. And even there the reason to attack those who discriminate on the basis of race, sex, etc rests on a hidden predicate --that there is not a competing supplier just down the street. In Jim Crow America, there were racist collusions to deny goods and services; but today?

In today's context, do cake bakers gather in a smoke-filled room and pledge not to do business with certain categories of clients?

I don't think so.

But never mind that: "public accommodation" has no basis at all when it comes to artistic expression. Never mind the (IMHO strong) theoretical objection that forcing an artist to perform his or her art for a client that he or she finds repugnant is in fact a kind of involuntary servitude. Instead just think of the practical difficulties of enforcing such a cruel and stupid regime. Who will supervise the artist to ensure that the performance is "good enough"? What is to prevent the artist from simply putting down his brush, her chisel; turning off the microphone, and calling in sick? Will a court find that nonperformance to be in contempt?

What kind of madness do these fools want to pursue?

gahrie said...

In Jim Crow America, there were racist collusions to deny goods and services; but today?

First of all, the reason why we don't is because of the public accommodation enforcement. Secondly there are plenty of race hustlers will tell you that exactly the same things are occurring today.

gahrie said...

Did not listen to argument but gather Alito tried to distinguish between religious view of same sex marriage v interracial marriage. One he called an honorable position.

Ask your average Black woman her views on interracial marriage.

n.n said...

Ask your average Black woman her views on interracial marriage.

Not just, and, yes, it is a bias, and, no, it's not bigotry. Humans feel compelled to see "little me" in their productive union. Flora and fauna, too. It's Her Choice... I mean, choice.

Owen said...

gahrie @ 5:57: (1) "First of all, the reason that we don't [have racist collusion?] is because of the public accommodation enforcement." Well, that's good: there was a lot very hard work done for many years to get us to where we are today. But your argument seems to prove too much: should we continue, say, to fight the Civil War because it was once a necessary action? In the case of "public accommodation," I think it's not a great way to come at the problem. rhhardin put things pretty well (somewhere up the thread) when he talked about market power. When there is no market power, a bigot can indulge himself (or herself) but the cost will blow back on him or her: the "victim" of the discrimination will just shop elsewhere. When there IS market power, then, yes, let's take a very close look at how it's being exercised. But here? Do artists have "market power" over much beyond their own corpus of work?
(2) "Secondly there are plenty of race hustlers..." No doubt. But why don't we hear what they have to say? I doubt it will be very convincing. And in any case it doesn't affect my argument about the "servitude" that the proponents of Colorado's regime want to impose on creative people. Which has nothing to do with collusion and everything to do with intimidating individual entrepreneurs.

anonprof said...

"Shoeless Joe: it's about protected categories. Problem for both sides is history. What to do about sex after all the law made on race."

If memory serves, several states have included political affiliation among protected status. At the federal level, there are a number of protected categories beyond sex and race including religion veteran status.

John Pearley Huffman said...

Why would anyone want to contract a service or product from someone who doesn't want to supply it to them? There's only one reason: To force them to obey their political agenda.

Should the baker do a bad job? Can the web designer half-ass the function of the site? Could they sabotage or otherwise undermine those who are forcing them to do something against their will? Of course. But, well, why put them in that position?

There are hundreds of bakers and web designers who will happily supply same-sex couples who are marrying. Why not contract with them? Because then the couple would be denied some sort of victory over the unwilling.

If there's an alternative explanation for this insistence that the unwilling be forced to comply, I can't figure out what it is.

As a non-attorney, I'm somewhat baffled by the distinction between public accommodation laws and creative and/or artistic custom products. There are television shows about competitive cake decorating. The culture obviously considers it a creative pursuit of some sort. Doesn't the value of that creative effort ultimately matter most to the creator? It seems like it must be a wholly subjective valuation and one that should be respected.

But for standardized products -- generic cakes, cookies, shopping web sites, whatever -- it seems that public accommodation laws would guarantee their provision to anyone who desires to purchase such items. And from what I understand, the baker in question was willing to supply those items to anyone and never banned anyone from the shop.

Freedom is almost definitionally a lack of compulsion. Or at least the least amount of compulsion necessary to guarantee societal harmony and significant communal interest. People need to be left alone as much as possible.

John Pearley Huffman said...

Why would anyone want to contract a service or product from someone who doesn't want to supply it to them? There's only one reason: To force them to obey their political agenda.

Should the baker do a bad job? Can the web designer half-ass the function of the site? Could they sabotage or otherwise undermine those who are forcing them to do something against their will? Of course. But, well, why put them in that position?

There are hundreds of bakers and web designers who will happily supply same-sex couples who are marrying. Why not contract with them? Because then the couple would be denied some sort of victory over the unwilling.

If there's an alternative explanation for this insistence that the unwilling be forced to comply, I can't figure out what it is.

As a non-attorney, I'm somewhat baffled by the distinction between public accommodation laws and creative and/or artistic custom products. There are television shows about competitive cake decorating. The culture obviously considers it a creative pursuit of some sort. Doesn't the value of that creative effort ultimately matter most to the creator? It seems like it must be a wholly subjective valuation and one that should be respected.

But for standardized products -- generic cakes, cookies, shopping web sites, whatever -- it seems that public accommodation laws would guarantee their provision to anyone who desires to purchase such items. And from what I understand, the baker in question was willing to supply those items to anyone and never banned anyone from the shop.

Freedom is almost definitionally a lack of compulsion. Or at least the least amount of compulsion necessary to guarantee societal harmony and significant communal interest. People need to be left alone as much as possible.

ken in tx said...

I read about a neo-nazi couple who named their kid after Hitler and wanted a birthday cake with his name on it and couldn't get one. It was several years ago and I don't remember what came of it.

ems4019 said...

The website designer was not targeted by anyone. This is a pre-enforcement action, which means that the web designer brought this case alleging she was chilled from operating her business because she was afraid the state could go after her if she did not design websites for gay marriages. The lawyers found someone that they thought would be a good plaintiff to challenge the law because the website designer is closer to pure speech than a cake designer.

I would note that most wedding cakes do not specify whether the wedding celebrated is for individuals who are gay or straight. They typically have beautiful flowers or other designs. I think one question is whether the speech itself is being celebrating gay marriage or whether the argument is more that the seller is complicit in the gay marriage by participating and baking the cake or providing the flowers. If it is really complicity, how is that different from renting a hotel room to a gay couple?

Owen said...

John Pearley Huffman @ 9:52: "...As a non-attorney, I'm somewhat baffled by the distinction between public accommodation laws and creative and/or artistic custom products..." I think your non-attorney-ness does you credit, and in fact explains your bafflement. Only a lawyer could get this stuff so wrong as to try to defend a law that forces people to choke off their talent and/or disappoint their clients in the service of a feel-good idea like "don't discriminate."