Gay Marriage

Battlefield: Cake

The rapidly evolving fight over gay marriage, anti-discrimination laws, and free speech

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Sweet Cakes by Melissa
Associated Press

Gay couples across America are planning their nuptials, ordering wedding invitations, renting out reception halls, choosing color schemes, arguing over seating charts, and deciding how many tiers their wedding cakes should have. Some, though, have encountered a barrier: Not every wedding-focused business is interested in celebrating their love.

The photogenic wedding cake, with its instantly recognizable toppers in the shapes of brides and grooms, has become the go-to symbol for this latest front in the culture war, though florists, photographers, and wedding venues have also turned same-sex couples away and wound up embroiled in legal battles as a result. Some people, often for religious reasons, do not want to provide their wedding services to gay couples and believe doing so is the equivalent of expressing approval for these relationships. They argue that their rights to free speech and practice of their religion would be compromised if ordered to do so.

Long ago, it was commonplace to see signs that declared, "We reserve the right to refuse business to anybody" in retail businesses. But the days when those placards actually meant anything are long gone. States have anti-discrimination laws and public accommodation regulations that tell businesses when they're allowed to turn customers away- or, more accurately, when they are not.

In Colorado, where it is actually against the law to post one of those signs these days, Jack Phillips, the owner of Masterpiece Bakeshop in Lakewood, declined to offer his services to a gay couple due to his religious objections to same-sex marriage. The couple filed a complaint and Colorado's Human Rights Commission declared in 2014 that Phillips violated the state's anti-discrimination policies. Not only was he ordered to change his ways, but the commission demanded he submit quarterly reports to show how he had altered his practices and trained his employees for the next two years to make sure he complied.

In Gresham, Oregon, Sweet Cakes by Melissa declined to prepare a wedding cake for a lesbian couple. Like Phillips, the bakery's owners, Melissa and Aaron Klein, felt that participating in a same-sex wedding would go against their religious beliefs. The Oregon Bureau of Labor and Industries ruled in February that the owners had engaged in discrimination in violation of state law. In April it further recommended the Kleins be fined $135,000 for the emotional damages caused by failing to serve the couple. The owners closed Sweet Cakes at the end of 2013 amid the battle and now operate out of their home. (All this transpired, incidentally, before the state itself started legally recognizing gay marriages.)

In March 2014, a Christian named Bill Jack attempted to flip the script by trying-and failing-to order a cake from a Colorado bakery highlighting his position that homosexuality is a sin. His protest illustrates the tangled interactions between speech, belief, commerce, and anti-discrimination laws.

Helping untangle the mess is Eugene Volokh, a law professor at the University of California, Los Angeles and legal blogger at The Washington Post. Volokh explains that a cake, in and of itself, has not typically been seen by the law as an expression of speech. Therefore a baker doesn't have a precedent to claim that he or she is being forced to express a statement in support of gay marriage by stacking baked goods and covering them with fondant. Volokh compares wedding cakes to architecture, and not just because both feature carefully engineered towers. An architect may desire to make a "statement" in the shape of a building, but a building is not what Volokh calls an "established genre of communications." Thus, a city's planning department can forbid a brutalist, cement fortress in the middle of a quaint neighborhood of bungalows without violating the Constitution.

But putting a sign on one of those houses changes the rules, as does adding text on a cake. When Azucar Bakery refused to add Jack's anti-gay message to a cake, Jack filed a complaint to the state, accusing them of violating the same anti-discrimination ordinances that snagged Masterpiece Bakeshop. In this case, Jack claims he was discriminated against due to his creed. Volokh thinks Jack doesn't have much of a case.

"What he asked for didn't matter that much," Volokh says. "If they said no because he was religious, then that would be religious discrimination." But the bakery didn't turn Jack away because he was Christian. They were willing to make him a cake in whatever shape he wanted. They just refused to add the anti-gay text to the top of it. Whether the text came right from the Bible probably doesn't matter. "There's no law against viewpoint discrimination, at least not in Colorado," Volokh says. By contrast, the other bakers refused to make a cake at all.

Volokh's explanation proved to be Colorado's response as well. A state agency ruled in April that Azucar Bakery, unlike Masterpiece Bakeshop, did not engage in discrimination for refusing to add the demanded message to the cake.

These battles have led to a new push for more state-level religious freedom laws, so bakers and florists who oppose same-sex marriage can say no to gay couples legally. The passage of such a law in Indiana provoked significant anger that ended up directed at, of all places, a small-town pizza parlor named Memories Pizza after its owners told a media outlet it would not provide pizzas for a gay wedding. No gay couple had actually asked Memories Pizza to do so, but they were nevertheless targeted with criticism and threats from across the country, followed by a rush of donations from supporters. Indiana's governor and legislature subsequently changed the law to make it clear that it wasn't intended to allow businesses to discriminate against customers.

What frequently gets ignored in these political battles-aside from the concept that people should have the right to associate (or not associate) with whomever they choose-is whether the law is the best tool to resolve these conflicts. Many wedding businesses are falling all over themselves to compete in this new and potentially profitable market. There is little indication that gay couples actually need the government to force resistant religious bakers to fire up their mixers in order to have the wedding of their dreams.

Scott Shackford (scott.shackford@reason.com) is an associate editor at reason.com.

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  1. SSM and anti-discrimination / public-accommodation laws were a package deal, so anyone who claims they didn’t intend for these lawsuits to happen is either a moron or a liar.

    1. You repeating the same insipid nonsense over and again does not constitute an argument. We heard you the first thousand times, asshole.

      1. PRINCIPALS NOT PRINCIPLES! NOT GIVING IS TAKING!

        1. Freedom is obedience. Liberty is slavery.

          1. ObamaCare is free market

            1. Questioning authority is shutting your face and doing as you’re told.

          2. Please explain or is just good drug

        2. “Youth is wasted on the young”

          “Pron for John”

          “Hey guise did I ever tell you about that time I got hit by a well-connected drunk driver on my bicycle and took the rap?”

          “Hey guise did I ever tell you about the time I got robbed and the police only wanted to search for drugs?”

          Is sarc a bot?

          1. True story: once I walking down the street minding my own business and there was this rock band playing really awesome music in their driveway and minding their own business and then out of nowhere the pigs swooped in and destroyed all their equipment and banged one guy’s head against the van and I watched the blood drip down and I’ve hated the pigs ever since the end.

          2. Good grief, ever since the Reason 6 ugliness people are much nastier around here. Now piling on a regular commenter? Be careful it isn’t you next, no matter how perfect you think your arguments always are.

            What happened to the wacky clever insults and repartee that always made this board so fun to read, rather than the present youtube-level posts of “you suck!”

            Besides, I like slender petite women rather than big-assed ones too, so I know there’s something I like about sarcasmic.

            1. Well, he said something that could be construed as negative about gay marriage, which is worse than Hitler and Stalin combined.

              1. Whoever you are, F. Woman, you need to get off the cross and use the wood to build a bridge and get over it.

                You’re already one of the whinier commenters ever.

                1. You’re already one of the whinier commenters ever.

                  Awesome. Thanks for sharing.

                  I guess I just expected a little more vigorous defense of liberty here, so yeah, I’ve got my bitch on this morning. What’s happening to these bakers is complete and utter bullshit, and I’m sorry my tone reflects that.

                  Hopefully someone less icky will get the government shaft in the future.

                  1. We all agree with you, you moron. Literally no one here thinks what’s happening to the bakers is a good thing. No one. So shut up already.

                    1. Literally no one here thinks what’s happening to the bakers is a good thing. No one. So shut up already.

                      But you had to have seen in coming. If you didn’t see it coming then you are a moron. If you saw it coming and supported SSM anyway, then you intended it to happen.

                      In your case I’ll go with moron.

                    2. If you didn’t see it coming then you are a moron.

                      Sarcasmic is John?
                      Mind…blown!

                    3. But you had to have seen in coming.

                      SEEN IT COMING? SEEN IT COMING?

                      You are the fucking moron. It was here BEFORE SSM was. Oregon’s law has been on the books since 2008. Meaning in Oregon, it has been illegal to turn away customers based upon their sexual orientation for 7 fucking years. They were going to get sued regardless of whether the issue of SSM even existed.

                      There is no causation between SSM and public accommodation!

                    4. I’m not sure if that tips further to stupid or evil. To deny someone of their rights because doing so might potentially open the door for the further denial of someone else’s rights is…well, stupid or evil. Clearly anyone who could have foreseen affirmative action should have been against the abolition of slavery, right? How about standing up for the right of gays to get married, but also for the rights for business owners to refuse to serve anyone they want, for whatever reason they want?

                    5. Burning a gallon of gasoline creates two gallons of water vapor. Therefore, when you drive your car, your actual purpose is the creation of water vapor.

                    6. Literally no one here thinks what’s happening to the bakers is a good thing. No one.

                      But you don’t think it’s that a bad a thing either.

                      Certainly not bad enough to make you reconsider supporting gay marriage.

                    7. No, it’s not “bad enough to make you reconsider supporting gay marriage.” Individual rights are not a matter of either/or, and certainly not in this situation.

                2. You’re already one of the whinier commenters ever.

                  Haaaaaaaaaaaaa ha ha ha ha ha! Oh man! That was good! Coming from Queen Whiner Randian of Reason! Whew! I need to catch my breath! Haaaaaaaaaaaa ha ha ha! I’m got to sit down! Will you be here all week? Should I try the veal?

              2. If Hitler and Stalin had only gay married, we could have avoided that whole Eastern Front mess.

              3. Are you insane or just subject to gross exaggeration

            2. He deserves to be piled on. The mocking representations of him above are not that far off.

              We’ve been over and over and over and over and over this argument with sarc one hojillion times. I’m not fucking doing it any more.

              1. That’s nice! You needn’t miss your noontime enema over an argument!

              2. See ya!

              3. We’ve been over and over and over and over and over this argument with sarc one hojillion times

                In all fairness to sarc, the commentariat here has been over every argument one hojillion times.

            3. What happened to the wacky clever insults and repartee that always made this board so fun to read, rather than the present youtube-level posts of “you suck!”

              John and his fellow yokeltarians went to war, pitting brother against brother, by conflating SSM with public accommodation?

              I too miss the old days, but it is what it is.

            4. C…..ever since the Reason 6 we’ve learned not to attempt to woodchip the State. But, we all have these darn woodchippers, and they’re cool. So now we use them on each other.

            5. Now piling on a regular commenter?

              I wasn’t aware that “regular” commenters had tenure and thus immunity from criticism.

        3. UHAUL IS TAKING!

        4. Money for nothing and chicks for free!!!

      2. ‘Insipid Nonsense’ is a good name for a comedy show.

        1. Yeah, Greg Gutfeld could use it.

        2. And for many news programs as well.

      3. It’s a simple fact that many places have anti-discrimination laws regarding homosexuals, so the consequences of legalizing homosexual marriage (or officially recognizing it, which is actually what has been at issue — no one has been punished for engaging in such a ceremony) were inevitable. Such anti-discrimination laws are blatantly non-libertarian, though the more libertinist libertarians seem to favor them. “Sex without consequence” isn’t, or shouldn’t be, a libertarian principle. Such laws are what lead to the abuses whereby militant homosexuals seek to drive devout Christians out of business (and would do the same with devout Muslims if they didn’t fear the possible reaction).

      4. Oh dear! I see you’ve missed your morning enema again! You always get so irritable when that happens!

        1. I love that I have my own personal troll, never change, EJ Raines.

      5. Oh, how cute. Randian’s mom let him use the computer.

        1. That comeback is so old it has to be carbon-dated.

    2. “SSM and anti-discrimination / public-accommodation laws were a package deal, so anyone who claims they didn’t intend for these lawsuits to happen is either a moron or a liar.”

      You took that a step too far.

      For one thing, public accommodation on race generally doesn’t violate people’s right to free exercise of religion. I don’t know that there has ever been a challenge to public accommodation based on an individual claiming that serving black customers violated a business owner’s religious convictions, but if any business owner did make such an objection, I’d think their rights should be protected on First Amendment grounds.

      1. Well that doesn’t matter Ken, freedom to exercise your religious beliefs while running your business isn’t a particularly special form of freedom of association. Telling someone they can’t refuse to serve black people because of their deeply held racist beliefs isn’t any less of a violation than telling them they can’t refuse service to gay people because of their deeply held baptist beliefs.

        1. No, I don’t think public accommodation was meant to supersede the First Amendment.

          I don’t believe it was interpreted to supersede freedom of assembly either.

          I see and understand the larger point you’re making, and I agree that everyone should be free to be as stupid as they want to be in terms of who they’re willing to serve as customers. I agree that public accommodation laws necessarily violate an individuals’ right to be stupid in that way.

          But I don’t believe that’s the way the courts interpreted it, and that’s what we’re talking about here. It is entirely possible to have been both in favor of gay marriage and in favor of free exercise of religion. I’ve seen people do it–with my own eyes!

          1. It is entirely possible to have been both in favor of gay marriage and in favor of free exercise of religion. I’ve seen people do it–with my own eyes!

            I’m not seeing too much of it in this thread.

            1. I’ve seen it in plenty of threads here over the last 12 years.

              Our rights are not a zero sum game.

              We’ve stood up for the rights of terrorists–because it isn’t the terrorists we’re standing up for. It’s their rights.

              I’ll stand up for anybody’s rights. I don’t have to check whether it’s someone I like, and there are a lot of people here like that. I don’t stand up for gay people–I stand up for the equal protection of the law. I don’t stand up for religious fundamentalists–I stand up for the freedom of religion. I don’t stand up for terrorists–I stand up for the right not to be tortured on the basis that we all have a right not to be forced to testify against ourselves and a right not to be subjected to cruel and unusual punishment.

              I’m not even really standing up for other people’s rights when I make those arguments. Those are my rights! I’m standing up for my own rights.

              There are lots of people here like that. We call ourselves “libertarians”.

              1. I like that comment….”We’ve stood up for the rights of terrorists – because it isn’t the terrorists we’re standing up for. It’s their rights.”

                Nicely put.

                1. It’s “our” rights.

              2. Nicely done. Thank you!

            2. I’m in favor of both. Nor does what’s happening now with some bakers make me “rethink” SSM. Just because some asshole rabble-rousers want to shakedown people in the name of a cause doesn’t discredit the cause. Does Al Sharpton’s race-baiting somehow discredit the legitimacy of the civil rights cause?

          2. Sure, it’s entirely possible to sincerely be for socialism and for helping the poor. It’s just that supporting the first will almost certainly hurt the poor so their feelings don’t much matter on what results are desired.

            1. You’re right if you’re suggesting that socialism actually hurts the poor, but that means your analogy breaks down from the get go.

              Supporting equal protection against government discrimination does not necessarily entail violating other people’s religious rights.

              Socialism necessarily makes poor people worse off. Ending government discrimination against gay people in granting marriage licenses does not necessarily cause a violation of fundamentalists’ free exercise rights.

              It is entirely possible to be in favor of both equal protection and free exercise, and if the government is violating the rights of religious fundamentalists, then ending that won’t necessarily require us to stop giving marriage licenses to gay people.

              Maybe think of it from another angle: If the idea that people should be free to associate with whomever they please without government interference and the idea that people should enjoy equal protection in marriage licenses regardless of whom they choose to marry are both opposite sides of the same coin–freedom of association…then aren’t you obligated to support both gay marriage and the right of business owners to turn away gay business if you believe in freedom of association?

              1. The inability to get a government paper saying you’re married is no more a violation of equal protection than the inability to get welfare benefits, or the inability to be in your preferred tax bracket. Trotting out that argument when it suits you, but ignoring it when it’s in play for virtually every other government benefit doesn’t strike me as particularly principled.

                1. I’d rather the government didn’t hand out welfare payments.

                  But if they’re going to hand out welfare benefits despite my objection, I’d rather they didn’t arbitrarily discriminate against gay people when they do it.

                  1. Yes, I’m sure there’s been plenty of digital ink spilled on this site about how welfare payments should be made to everyone. The only rights that were ever in danger of violation were free association. People just like to dress up this particular hobby horse as equal protection because there’s no other libertarian justification. But it’s clear the people making that case don’t even believe it themselves. Virtually every government program ever doesn’t apply to everyone equally, and there isn’t any massive campaign to ensure everyone is affected by every benefit or law equally. I suppose if we were bombarded with campaigns to give everyone Medicare benefits, or give everyone SS I might believe (misguided as that is) that there was an underlying principle, but the selective nature of this argument makes it obvious there never was a principle.

                    1. Medicare and Social Security benefits are both based on age and, in the case of the former, income. So, yes, everyone does have them. In Medicare’s case, your income might reduce your benefits, but you’re still in the program and would regain benefits if your income dropped. And in the latter case, reducing financial benefits based on need is logical, where forbidding tax or legal benefits based on sexuality is not even a little bit.

                      In fact, you’ll find I think that most government programs on the scale of marriage benefits do in fact apply to pretty much everyone.

                    2. “People just like to dress up this particular hobby horse as equal protection because there’s no other libertarian justification.”

                      As if the government interfering in people associating with whomever they please isn’t a sufficiently compelling reason for a libertarian to oppose such government interference?

                      Even if freedom of association and equality before the law were the only libertarian reasons to oppose government discrimination, those are some pretty good reasons to oppose it. Can you explain why a libertarian should support arbitrary discrimination by the government and government interference in freedom of association?

                      “Virtually every government program ever doesn’t apply to everyone equally, and there isn’t any massive campaign to ensure everyone is affected by every benefit or law equally.”

                      Yeah, for example, the Social Security Administration was giving heterosexual married couples survivor’s benefits–which were denied to gay people who couldn’t get married.

                      Meanwhile, the idea that everyone should benefit equally from every law isn’t what any libertarian I know means by “equal protection”. That’s called a straw man.

                    3. As if the government interfering in people associating with whomever they please isn’t a sufficiently compelling reason for a libertarian to oppose such government interference?

                      How was the government interfering with free association in regards to homosexuals? They are with public accommodation, but that appears to get far less press.

                      Even if freedom of association and equality before the law were the only libertarian reasons to oppose government discrimination, those are some pretty good reasons to oppose it.

                      Let’s not put the cart before the horse, you’ve merely asserted homosexuals couldn’t associate sans evidence and asserted equality of the law issues sans evidence. I’d be happy if you proved one of these points in a way that doesn’t make virtually every law a violation of equal protection.

                      Meanwhile, the idea that everyone should benefit equally from every law isn’t what any libertarian I know means by “equal protection”. That’s called a straw man.

                      Then define it in a way that logically describes how gay marriage is different from every other law and benefit applied unequally.

                    4. “How was the government interfering with free association in regards to homosexuals?”

                      You don’t think being free to marry whomever you please has anything to do with freedom of association?

                      Snap out of it!

                      “You’ve merely asserted homosexuals couldn’t associate sans evidence and asserted equality of the law issues sans evidence.”

                      You want evidence that the government discriminating against people in the granting of marriage licenses is government interfering with freedom of association–like really?

                      You want evidence that one group of people being treated differently by the government is unequal treatment–like really?

                    5. “Then define it in a way that logically describes how gay marriage is different from every other law and benefit applied unequally.”

                      Well, for one thing, we’re not talking about a law, here. We’re talking about rights–specifically the right to equal protection.

                      Our rights are not a popularity contest, and they aren’t created or granted by government or laws. This right to equal protection, in fact, has been protected by the Supreme Court’s decision, which effectively struck down a number of laws in a number of states. And this right to equal protection is specifically about the government not being able to discriminate. Our rights exist regardless of whether they’re popular or have the support of lawmakers, or they aren’t really rights, are they?

                      Do you understand why that’s different from the laws you’re talking about? Whether the government can violate your rights is fundamentally different from the question of whether you benefit as much as everyone else from the latest budget. Our rights are not a popularity contest like laws are, and they’re aren’t given or granted by politicians or government or laws. This right to equal protection is being protected by the Court. Unless the lawmakers manage to amend the Constitution, it doesn’t matter what the law says. If the law violates people’s rights to equal protection, then the law should be struck down.

                    6. Doesn’t matter if Jim Crow was popular, right? Doesn’t matter if Jim Crow was the law, a majority of duly elected politicians voted for it, and the executive signed it. Jim Crow laws violated the rights of black people to equal protection, and so Jim Crow had to go.

              2. Yes.

                Businesses might turn people away all the time for all sorts of reasons. It’s not a problem because plenty of other businesses will be all too happy to accommodate the ones who are turned away.

              3. Without the abolition of freedom of association, SSM doesn’t do gays any good.

                Your idea that equal protection and freedom of religion can coexist is ignoring the intent behind the pursuit of “equal protection”.

                It’s a pretext to exploit, not a real and tangible right. You don’t get upset about flimsy decorative rights. But a person may get agitated if they are trying to build a false pretext.

                That is your modern homosexual.

                1. Equal protection is a tangible right against government discrimination.

                  Our parents and grandparents lived in a world where the right to equal protection was often ignored by the government. In addition to Jim Crow and segregation before Brown v. Board of Education in 1954, tens of thousand of American citizens (men, women, and children) were rounded up and held under armed guard–for the “crime” of being of Japanese ancestry.

                  To persuade me that equal protection isn’t a tangible right, you’d have to show that there were no tangible differences in the way the government treated people back when equal protection rights were often ignored by the government.

                2. Without the abolition of freedom of association, SSM doesn’t do gays any good.

                  That is an absolutely absurd thing to say. Unless you’re going to declare that “automatic grant of inheritance” is somehow a violation of the principle of freedom of association.

              4. Imagine an immigrant from Saudi Arabia working at the DMV issuing driver’s licences.

          3. It is entirely possible to have been both in favor of gay marriage and in favor of free exercise of religion.

            And I find people who do so to not be particularly principled if they don’t also defend people’s freedom of association when their motivation isn’t religious.

            1. Pretty much this.

              If your only rationale for freedom of association is religious freedom, then you really don’t understand either concept.

            2. Yeah, I appreciate that. Like I said, people should be free to be as stupid as they want to be.

              It’s just that the cases under consideration have been about religious people–as you’d expect.

              If you’re sending away good business for the hell of it, don’t let people know where you’re located, or they’ll open a competing business right next to yours.

            3. I concur, and have, in fact, defended the right of people to discriminate against myself.

          4. “No, I don’t think public accommodation was meant to supersede the First Amendment.”

            Actually, that was the primary purpose of the act.

            People tend to forget the deep level of involvement of the Communist Party in the civil rights movement. To establish communism it is necessary to take all commercial transactions out of the hands of individuals and make the government the final arbiter of all commercial relationships.

            Left wing intellectuals have always wanted control over commerce and this act, publicized as addressing the effects of slavery and Jim Crow, only increased the power of the government to control commerce.

            Were the Communists really interested in civil rights for blacks? Take a look at Cuba’s ruling elite and look for black faces. You won’t find any. Che Guevara was a hard core racist as was Castro.

            1. “Actually, that was the primary purpose of the act.”

              The Equal Protection Clause is much more inclusive–but it only applies to the government.

              The primary purpose of the Civil Rights Act of 1964 was to prohibit discrimination against people because of their race as well as their color, sex, religion, or national origin. It applied to private parties and not just the government–unlike the Equal Protection Clause of the Fourteenth Amendment.

              I’m not sure the Civil Rights Act of 1964 has much weight here because sexual orientation isn’t anywhere to be found in the legislation.

              Even so, one of the express purposes of the Civil Rights Act was to protect people from being discriminated against because of their religion. I have never heard of a case of someone objecting to the Civil Rights Act specifically on the basis that serving customers of some other color, sex, religion, or national origin violated the business owner’s First Amendment religious rights.

              However, if such a case came up, it should be clear that the First Amendment still applies to the government. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”–and that “no law” includes the Civil Rights Act. The government should still be prohibited by the First Amendment from coercing business owners into violating their religious convictions.

              1. If recent court decisions have found otherwise, then they were wrong to do so. Courts are often wrong. The Supreme Court is often wrong. They’ve been wrong about everything from Dred Scott to the Commerce Clause and ObamaCare. They’ll be wrong again in the future, too. But that’s no reason to support unequal protection of the law and government discrimination against gay people.

                1. I saw several walls of text and I knew it had to be Ken.
                  Thank you, time-saving scroll arrow!

                  1. You love it.

                    It makes you horny.

      2. “…I’d think their rights should be protected on First Amendment grounds.”

        There was a time I thought that citizens rights disallowing massive warrantless automated surveillance of their phone calls, electronic communications and financial transactions should have been protected on Fourth Amendment grounds, too.

        1. And it is against the Fourth Amendment.

          Keep in mind that our legal rights (and our Constitutional rights) are a pale shadow of the real thing. If the government violates our rights with the full support of the Supreme Court, that doesn’t change the fact that it’s still a violation of our rights.

          Ultimately our rights are only protected by the public’s willingness to tolerate violations, and we’ve got a lot of work to do on the public’s willingness to suffer violations of their Fourth Amendment rights.

          1. Oh, Ken. Why do you want tha terrorists to win 🙁

            1. Because we can no longer tell the difference between the terrorists and the people fighting them?

      3. Before the federal Civil Rights Act was passed the conflict between freedom of association and ant-discrimination laws was debated. That’s why the concept of “public accommodations” was included in the law. It recognizes that in an environment of widespread and systematic discrimination against a particular group, the ability of that group to function in society and in the economy?in other words, their ability to exercise their own rights?is severely restricted. If you can’t stay in a hotel, can’t eat in a restaurant, can’t get a flat fixed at a garage, can’t use a public restroom, then obviously your right to travel is quite restricted (ever hear the saying, “don’t stop till you reach family”?). If you’re not allowed in a grocery, butcher shop, or bakery, then your right to life as expressed by access to healthy food is infringed. If an ambulance service, emergency room or clinic can turn you away, your life is threatened. Recognizing that certain types of businesses are different from others in that they provide basic services without which our rights don’t mean much, some businesses were defined as public accommodations which must serve everyone without discrimination, while other businesses whose services are not essential are free to choose with whom the do business. The ability of groups discriminated against was balanced in this way against freedom of association.

        1. When bakers were included in the list of businesses defined as public accommodations, I’m sure the drafters of the law were not anticipating a freedom of expression issue. The were just looking at it as a matter of equal access to food?the ability to buy bread. In order to restore the balance between the rights of businesses and the rights of their customers, a distinction needs to be made in the law between simply selling someone a cake and decorating the cake with texts of symbols that the decorator finds objectionable. Forcing businesses to sell food to all comers is an understandable compromise between competing rights, but no one should be forced to participate in expression with which they disagree. The law needs to recognize that a cake decorator is not the same thing as a “baker” as envisioned in the Civil Rights Act.

          1. Will you bake me a cake? If not then I assume my rights have been violated. Why can’t I go around to anyone demanding they bake me a cake? Public accomodation laws are incoherent. You baking a cake for me doesn’t violate public accomodation, but the baker doing it does. Why? Because they sell a higher volume? It’s nonsense, both are private property. The principle in public accomodation is that I can force people to work for me by gunpoint if the government deems me of a certain superficial category. Christ, I guess before Walmart and flushing toilets and the phone company everyone’s rights were violated. They had no access to these basic human needs! It’s great we keep discovering new rights, too bad we have to steal from people and arrest them for those rights but I guess that’s how rights work. I have to take from someone with less rights to get mine.

            1. You have no right to use the word “incoherent” against anyone else.

          2. Forcing businesses to sell food to all comers is an understandable compromise between competing rights,

            No, it isn’t. Because there aren’t competing rights in play. Your entire argument rests on the insane notion that, if you want or need something, you have a right to force me to provide it. You don’t. To pretend that you do is fundamentally an endorsement of slavery.

          3. There can’t be a “right” to anything that has to be produced. What happens if no one chooses to produce it? Do you forcibly make someone produce it? Rights are only those things that anyone can have without intruding on others. We may have made a law forcing people to produce for others (public accommodation laws) but that doesn’t mean they are rights.

        2. Run out of gas in a car with no food in the middle of Death Valley. Tell the Joshua Trees that the federal government has said that you have a right to be sold gasoline and food.

      4. For one thing, public accommodation on race generally doesn’t violate people’s right to free exercise of religion.

        So someone can only exercise freedom of association if they can prove it’s based upon religious beliefs?

        1. That isn’t what I said.

          Has anyone ever raised a religious objection to the public accommodation of blacks on the basis of religion? Is there a religion that specifically mandates not baking wedding cakes for black people?

          I’m not aware of any such case ever. Public accommodation simply hasn’t involved First Amendment rights much before–at least not that I’m aware of. That doesn’t mean our First Amendment religious rights don’t apply anymore. Otherwise, all of this would have been decided a long time ago.

          So, forcing business owners to serve black people generally doesn’t bring up First Amendment objections.

          Forcing business owners to participate in something that violates their religious convictions, however, is another issue completely.

          1. So if as a welder and fabricator, I were approached by a contractor or church official to create some religious icon, such as a cross or star of david, etc., If I refuse because I am atheist, what happens? If I make or bid on the cross but not the crescent, what happens?

            This has come up for me and I no longer bid or offer services in construction in my area because of my non-belief. I refuse to support the massive edifices to religious greed in my part of the country and I also refuse to offer the government another lever to control my life.

            1. In addition to being protected by free exercise, you’re also protected by the establishment part of the First Amendment.

              The coercive power of government should never be used to force you to support someone else’s religious convictions.

              So, if you’re an atheist that won’t put religious iconography on your customers’ wedding cakes, then, God bless it, the government’s supposed to protect your right to make choices for yourself.

              I fall on the cautiously optimistic side of the religious spectrum myself, but I don’t have to be an atheist to support your right to religious freedom. Since, you know, I’m really stand up for my own right to convert to narcissism if and when I choose.

    3. All this transpired, incidentally, before the state itself started legally recognizing gay marriages.

      Or not…

      1. What do you mean? Oregon accepted this case before Oregon would issue SSM licenses. Same thing in NM with the wedding photographer, and NM issuing SSM licenses.

    4. SSM and anti-discrimination / public-accommodation laws were a package deal, so anyone who claims they didn’t intend for these lawsuits to happen is either a moron or a liar.

      Anyone who repeatedly conflates equal rights, a good thing, with an abuse of the freedom of association, a bad thing, is a moron. No equivocation needed.

      1. Being that those laws are not going away, it was a forgone conclusion that they would be abused. Anyone who claims that they didn’t intend those laws to be abused in the name of SSM is a moron or a liar.

        1. So, you’re a moron. Got it.

    5. Absolutely.

  2. Definitely the end of the world, or at least the beginning of the end. Help me out here, John.

    1. Hieronymus Bosch anticipates the worldwide implications of Gay Marriage. In 1504.

      1. I believe that’s in the Prado in Madrid, right? I was there last summer and seem to remember seeing it among the other Bosch works.

      2. I’d have gone with “Garden of Earthly Delights” myself, but it’s a small quibble. Bosch brings Libertopia to life as vividly as Dante evokes hell.

  3. There is little indication that gay couples actually need the government to force resistant religious bakers to fire up their mixers in order to have the wedding of their dreams.

    Yes, but there is ample evidence that a few gay couples want to make religious people pay a hefty price for not towing the line. I guess this is the police abuse defense: Most cops don’t shoot dogs or beat the shit out of people, so why worry about the few bad apples?

  4. An architect may desire to make a “statement” in the shape of a building, but a building is not what Volokh calls an “established genre of communications.

    What a ballsy statement.

  5. “What he asked for didn’t matter that much,” Volokh says. “If they said no because he was religious, then that would be religious discrimination.” But the bakery didn’t turn Jack away because he was Christian. They were willing to make him a cake in whatever shape he wanted. They just refused to add the anti-gay text to the top of it. Whether the text came right from the Bible probably doesn’t matter. “There’s no law against viewpoint discrimination, at least not in Colorado,” Volokh says. By contrast, the other bakers refused to make a cake at all.

    So, putting text on a cake for a gay wedding isn’t a form of speech or expression, but a quote from the bible that has an anti-gay message is a form of expression? Also, if it came from the bible directly, how can you claim it was not religious-based discrimination? This law professor is just calling it ‘viewpoint’ discrimination, yet I’m willing to bet Colorado’s laws do in fact carve out special protections for the religious.

    When law is arbitrary and not based on a consistent form of internal logic, you get nonsense like this where it’s just used to favor one group at the expense of another.

  6. If you support gay marriage, you support every action taken by anyone who supports gay marriage. That’s what I’ve learned here.

    1. We are all little Quislings.

    2. If you support gay marriage, you support every action taken by anyone who supports gay marriage. That’s what I’ve learned here.

      You’re obviously a bigot.

      :sarc:

    3. Yes!

      And if you’re against torture, then you support Al Qaeda.

      1. Freedom isn’t free.

        1. No freedom isn’t free.

          It requires numerous violations of our rights to keep us safe…

          From those who would violate our rights?

          When some people use the word “freedom”, I’m not sure it means what they think it means.

          Progressives seem to think we’re not slaves if we get to pick our own master.

          Establishment Republicans seem to think that “freedom” is something that would happen in the future if only we let the government violate enough of our rights today.

        2. No, there’s a hefty fuckin’ fee.

      2. Some people don’t understand the Scorched Earth Freedom Policy of the Bush-Obama presidencies. Al Qaeda can’t take away our freedoms it we destroy them first.

  7. Why doesn’t everyone say what they really want to say? If a few religious people get shafted by the government, that’s okay. It’s a small price to pay for liberty.

    1. Christians — America’s persecuted minority.

      1. Christians — America’s persecuted minority.

        The Christians are getting what’s coming to them, and that’s all that matters to you.

        1. I mostly ignore The Christians, except when they try to impose their fantasies on me by the mechanisms of the state. Not that The Christians should be forced to do business with the objects of their simpleton bigotry. No one should. But The Christians should get over their persecution complex. With arbitrary laws in place forcing individuals to do business with other individuals, being a Christian is but one of limitless ways an individual may find himself at odds with the law. For example, if an atheist said, “I won’t bake your cake because I hate faggots,” he might find himself under the very thumb that Christians seem to have reserved for their own private, exclusive persecution complex.

        2. But it’s equal you see, homosexuals didn’t get a piece of paper, and Christians got their livelihood stolen away for bad think. Those are both violations of rights, it’s basically the same thing.

          1. Is it “a piece of paper”, or is it a holy, sanctified institution defined around the world as the union of a man and a woman? I can’t keep up.

            1. It’s a piece of paper.

              1. I can see why people are getting frustrated with all of this. Too me it’s just so boring.

                I think Dennis Miller’s quote reflects my views on the whole SSM:

                “Nothing is more interesting to me than my orgasm, and nothing is less interesting to me than your orgasm.”

                As I’ve said from day one, if more people want to find out about the living hell that marriage can be, more power to them. Just don’t be surprised when the reception and celebrations are over and the cake is a distant memory, and suddenly you are completely stuck with another person — and if you want out, getting away will take most of your assets and income on top of an incredible emotional drain. Marriage isn’t just about the ceremony, you are making essentially a lifelong commitment, one that you can’t dissolve by just packing a suitcase.

              2. It’s special treatment by the IRS, the Social Security Administration, advance directives in hospital admissions, probate court, etc.

        3. I must be getting old. I even remember when the US was the Christian nation, and Russia was the Evil Empire. Now it’s the other way around.

          1. I even remember when the US was the Christian nation

            The United States was never “the” Christian nation. The genius of the Founders — their greatest contribution to human happiness — was their banishment of religion from state affairs. It has taken four centuries to fully implement this idea, but we’re almost there. The protestations of this feeble, clutching minority of the Christian majority in America is the last gasp in this latest chapter of human progress.

            1. congratulations on missing the point.

              1. Thanks! Congratulations on being a dick!

    2. Because that’s not what we really want to say, you big idiot.

    3. If a few religious people get shafted by the government, that’s okay. It’s a small price to pay for liberty.

      Whoa there buddy. It’s a bit early in the day to be climbing up on the cross.

    4. Why doesn’t everyone say what they really want to say? If a few religious people get shafted by the government, that’s okay. It’s a small price to pay for liberty.

      Because no one here believes that?

      1. The simplest counter to that would be that religious people want libertarians to favor religious ‘liberty’ over gay marriage. They are arguing that libertarians have to make a choice between one or the other.

        The above statement is the same as asking why don’t the people arguing about religious liberty say what they really want to say. They hate fags.

        1. The above statement is the same as asking why don’t the people arguing about religious liberty say what they really want to say. They hate fags.

          Just posed that question to my wife.

          Explained the argument being posed here, by some, that SSM is to blame for bakers being forced to bake cakes. It took her about two seconds of thought to say, “Those are completely different issues.”

          I went on to ask her why people would conflate the two issues. My contention was it’s because, as you say, they actually hate homos and are constructing an argument that would allow their continued repression.

          She surprised me by coming up with an alternative that I hadn’t thought of. She said they could be so mad about being forced to bake a cake against their religious beliefs/will that they are simply striking out/back at the group that they perceive to be the cause of their loss of liberty. IOW retaliating against an unrelated issue. Sort of revenge. You are taking away my right to freedom of association so I’m going to take away your right to equality under the law…

          It”s an alternative to “you hate the gays” reasoning that seems fairly likely.

          1. Yeah, I think that’s more likely. This is probably the first time in a long while that not-that-far-from-mainstream Christians are specifically being fucked over by the state for their religious beliefs, and so they’re taking it pretty badly, including by lashing out at people who support their right to be left alone.

    5. Because most people here don’t actually want that? (Yes, I’m sure you could find a few. I said “most” for a reason.)

  8. shorter scott” as a self hating faggot i wonder why dont these faggots go away and stop bothering decent peple ?. only true freedom and individuality exists when everyoe is walled off from everyone else based of tribal variations – as long as theres no actual law mandating it coz that would be bad.

    1. Actually, the libertarian argument is that free trade promotes the association of diverse groups of people. Because it does. People who seclude themselves in the business world will be at a large competitive advantage, and culturally speaking, plenty of people wouldn’t support that with their dollars.

      The prog argument is to create mountains out of molehills or come up with absurd hyperbolic scenarios with no basis in reality. Or to compare everything to the artificial and government-supported creation of the segregated South. Segregation laws were actually a backlash against what I just mentioned. Businesses didn’t want to turn away money just because a darky spent it. Especially not when they would just go next door to their competitor. Hence, laws to even the playing field.

      Most (really all) of the businesses that haven’t wanted to participate in gay weddings have no issue with serving gay customers. Some of these cases have been the result of long term patrons of a business simply getting rebuffed on weddings only.

      Shorter version of the above – fuck off sock puppet/slaver.

      1. To a liberal, every day is Selma, 1964

    2. It’s hard to believe an intelligent comment like that was written by someone who calls himself “flaming ballsack”.

  9. “There is little indication that gay couples actually need the government to force resistant religious bakers to fire up their mixers in order to have the wedding of their dreams.”

    So, doesn’t this mean the problem is kind of solved? If businesses want to turn away business because of their ideological blinkers maybe that’s their problem and not our problem as libertarians. Shikha dalmia spent a good four or five paragraphs arguing that discrimination against homophobic bakers was the next great ideological battle with “The Left.” I say it lacks portent. More hyperbolic rhetoric about killing judges, I say. That’s the true libertarian call.

  10. “Volokh explains that a cake, in and of itself, has not typically been seen by the law as an expression of speech.”

    Let’s look at it this way – if the government prohibited wedding celebrations, that would raise 1st Amendment issues, wouldn’t it? Or if the government prohibited wedding celebrants from having cake? Of course that would implicate freedom of expression. And if it’s free expression for the celebrants to hold their party and eat their cake, then it’s free expression to prepare a cake for said celebration.

    Seriously, if we’re going to posit moral equivalents between progs and SoCons, what if a Puritan-dominated legislature (as used to happen) banned certain kinds of parties? Massachusetts used to ban Christmas celebrations. Suppose they decided that celebrating weddings was too worldly and banned those celebrations?

    Then we’d have the happy couple complaining of the violation of their First Amendment rights, because the wedding party would convey a message of celebration which shouldn’t be suppressed, and then they’d turn around and say that preparing food for that party has no First Amendment implications.

    1. I agree with you and disagree with Volokh, but not based on your reasoning here. It’s possible for something to be greater than the sum of its parts. Just because the celebration is speech, it doesn’t follow the food made for it is.

    2. And it’s ridiculous to claim that baking a cake for someone’s wedding has no expressive component so long as you don’t write anything on the cake. The message is still unmistakable – you’re expressing approval of the ceremony.

      Supposing that some demonstrators wanted to burn Mohammad in effigy while chanting “Mohammad burn in hell!” They demand that a Muslim storekeeper sell them some matches, gasoline, and oil cans to help with the burning, and the Muslim refuses. Could he be sued for religious discrimination? Wouldn’t he be able to invoke the First Amendment?

      “But oil cans, gasoline and matches aren’t a traditional expression of speech.” Well, they are the way these demonstrators are doing it.

      Or what if some jihadists want to burn a bunch of American flags, while chanting “death to America, land of the infidels!” and they ask a shopkeeper who believes America is God’s chosen nation to sell the matches, cans and gas for the ceremony. I mean, it’s not as if they’re asking him to provide the flags!

      And if burning flags is protected [removed]and it is), then of course assisting with the burning is expression, too.

      1. I’m not sure I agree, but that’s a good analogy.

  11. If businesses want to turn away business because of their ideological blinkers maybe that’s their problem and not our problem as libertarians.

    Yes. Yes! Let them be idiots and pass up business because the Invisible Man tells them it’s wrong. Don’t turn the state’s guns on them and force them to have the correct opinion.

    For every baker who turns down a job, there will be others to fill that void. But no, in this present-day enlightened society we have to make these people hurt for how wrong they are.

    1. The baker might bake you that cake. But – be careful what you (and the State) ask for.

      And – why enrich the bigot?

      1. another point is that force tends to cause people to entrench further. The social pressure that would certainly come to bear without force may well cause more people to start rationalizing a more enlighten viewpoint for themselves than pointing a gun at them.

        1. Hey, if you got the money, honey – ,I got the time. No government force needed.

          As life should be . .

      2. And, a person is necessarily a bigot because they don’t think a man/woman marriage is the exact same thing as a man/man marriage, or a woman/woman marriage?

        1. Bigot or not, you’re still fucking retarded to willingly do business with someone who fucking hates your guts.

          1. Yeah, you gotta wonder what special ingredients go into those cakes…

            1. “But, your Honor, Ex-lax looks just like a Hershey Bar . . . “

          2. “Hate” does not necessarily have anything to do with it. If a person sincerely believes a specific action is wrong, regardless of whether you happen to agree, it’s reasonable for that person to avoid behaving in a manner that could be viewed as approval of that action.

  12. “They just refused to add the anti-gay text to the top of it”

    Presumably they do add custom text to other cakes? So then, what if someone agrees to sell a gay couple a cake but refuse to put two men or two womens name on it but did do that for straight couples? Or wouldn’t add a gay couple figure on top (even if customer supplied) but did allow a straight couple figure? Seems if your going to force one type of customization, you need to force all otherwise it’s just another form of discrimination.

    1. Point being, it’s all rather subjective. I think the original intent of public accommodation, while still wrong, at least served a purpose. My hope, is that now they have broadened it’s scope they may well have planted the seed for its demise. We’ll see though.

      1. Wait 4-6 months, and at least a one case will unambiguously involve speech. I fully expect that one to make it to the supreme court.

  13. Jeez, the American people are dumb:

    The lesbian couple, for insisting THAT particular baker bake them a wedding cake (when there were plenty others who wanted the business).

    The bakers for being honest (they could have easily lied and said “we’re too busy” or “we’re already scheduled” or “we’re understaffed”)

    And the people of Oregon for electing micro-managing busy-bodies.

    Doesn’t anyone believe in free markets anymore?

    1. Did they ever?

      1. Maybe in the good old days. But not since 1965 . . . Or 1933

        1. You know what else happened in 1933?

          1. The New Deal?

            1. The New Deal?

              Otherwize known as the beginning of the end of America.

          2. Dizzy Dean struck out 199 batters in one season?

      2. Well, I’d bake a cake if I could make money at it.

        I like money. The more, the merrier.

    2. “The lesbian couple, for insisting THAT particular baker bake them a wedding cake (when there were plenty others who wanted the business)”

      Considering what they got out of it, I’d have to disagree. Evil and petty, yes. Dumb, no.

      1. The War isn’t over yet, Chumbly.

    3. The lesbian couple, for insisting THAT particular baker bake them a wedding cake (when there were plenty others who wanted the business).

      They didn’t, actually. (I read the ruling from the Oregon state office.)

      The mother of one of the brides had, two years prior, gotten her wedding cake from this particular bakery. That bride, and the mother, then went back to that bakery when they were looking for a cake for this wedding. During the cake tasting and ordering process, one of the owners of the bakery asked for the name of the bride and groom. The bride that was present said that there wasn’t a groom, it was two women. The owner said that they didn’t do cakes for same sex ceremonies. The bride and her mother left. Later that evening, the other bride filed a complaint with the Oregon Department of Justice.

      So, I don’t believe there was any intention to force the bakery to work for them, but rather, the complaint was filed purely as an expression of desiring revenge for being butt-hurt because someone didn’t like them.

  14. Government forcing someone to participate in a religious ceremony (overtly or not) with which they disagree on religious grounds by providing art, goods and/or services for that ceremony seems a pretty substantial violation of one’s right to the free exercise of their religion as well as their freedoms of speech and association.

    There’s a lot more to them than just flour, eggs and sugar. Same goes for flower arrangements. These things are as much art as they are a good.

    1. No, I’m not buying it. Selling a generic cake without any overt text or symbols is not “participat(ing) in a religious ceremony” any more than being the person who sewed the tablecloths or the janitor who mops the floor afterwards. The rights of the person making the cake are not being violated until he is forced to engage in expression by adding an explicit message to the cake. In that case, he should have the right to decline the job.

      1. The point isn’t whether someone is participating in a religious ceremony, as RA incorrectly stated. It’s whether they are participating in a ceremony (or anything) such that their religious beliefs are being affected. I personally believe that the baker, or even the janitor are participating. Reasonable people will disagree on when the line is crossed. It would be a whole lot simpler, and Constitutionally valid, if we just eliminated the whole public accommodation concept.

      2. We keep focusing on the “religious” aspect, but that’s not really the point. If people are truly free, then they should have the right to refuse services to someone on any basis: the color of their shirt, the color of their skin, their religious affiliation, their sexual orientation, or their BMI. Note that my saying this does NOT mean that I support refusing service to anyone for any of those reasons, but if you have any rights at all, then you have the right to be wrong. If this discrimination problem is so pervasive that we need laws, rather than the market, to fix it, then the law will be insufficient to fix it; if it is not that pervasive, then let the market deal with it. Even in the Jim Crow era, laws were needed to uphold discrimination of this sort.

        Yes, I know this is not how our current law is crafted, and I know it’s not perfect. There is no perfect solution, but it is a better solution than we have now, and even better than the direction in which we are moving. The alternative is having government continually involved in evaluating peoples’ motives and belief systems to determine if they’re acceptable. As a Christian, I’d say that denying service to anyone is a terrible way to demonstrate your faith…but I don’t believe that the government needs to be involved in deciding whose interpretation and implementation of scripture is valid.

      3. I agree that baking and selling the cake should not be considered an expression of any kind. However, I can understand how the person baking the cake my have thought it was. I see it as a misinterpretation of Christian doctrine, but of course that’s just one opinion.

    2. Re: Real America,

      There’s a lot more to them than just flour, eggs and sugar. Same goes for flower arrangements. These things are as much art as they are a good.

      Art is a good. Just wanted to put it our there.

      Leaving that aside, the claim that the conflict between the wishes of one group (the same-sex couples) and the businessowners is a conflict between the same-sex couple’s right to service and the right of the businessowners to their religious beliefs is in reality a total mischaracterization of the true conflict (to put it succinctly: it is a red herring).

      The conflict in question is in reality one of property rights: the right of the businessowners to refuse the trade of their property with someone else for their property.

      So far this case has been framed around the concept of “public accommodation” which purports to establish a moral justification for imposing certain constraints on the businessowners on how they trade their property and with whom. Supposedly, the difference between a regular trade and a commercial transaction is that the commercial transaction happens so the businessowners enrich themselves. That’s the justification. It clearly stems from a marxian idea that businessowners take from their customers, or from society at large (or workers) hence their profits (ostensibly, a trade where there is no gain is moral and one where there is a profit is not.)

      1. This. There is no such thing as a “right to service” from a private business.

      2. Well said, OldMexican

  15. In five-thousand words or less everyone has to state why the person above them is wrong about abortion.

    1. Hitler

        1. You know so else was named Hitler?

    2. Because you’re crusty.

  16. Start working at home with Google! It’s by-far the best job I’ve had. Last Wednesday I got a brand new BMW since getting a check for $6474 this – 4 weeks past. I began this 8-months ago and immediately was bringing home at least $77 per hour. I work through this link, go? to tech tab for work detail,,,,,,, http://www.careers10.tk

  17. The culprits here is not gay marriage but the 1964 Civil Rights Act’s public accommodation section which was the first time that the right of free association of individuals was directly challenged by legislation. This act had the effect of being a legal “virus” that spread throughout the law.

    The proof of the unjustness of this law is seen in the creation of an entire grievance industry led by such civil rights luminaries as Jesse Jackson and Al Sharpton (heavy sarc)

    First Amendment arguments involving religious freedom go out the window if the transaction between individuals involves an exchange of money because it then becomes “commerce” and the Constitution’s commerce clause has been interpreted to allow almost anything.

    The solution is to challenge the public accommodations section of the Civil Rights Act, not in court, but in the culture. This will not happen unless, like gay marriage, there is an unrelenting media campaign. Given the political inclinations of modern media, no one alive today will see the right of free association be recognized by the government.

    1. Oh, people alive today will see freedom of association recognized by the government…

      The government of the CSA, that is, after the South tides again because of churches being hammered by the government…

      1. The Christian States of America?

        1. Well, the CSA’s flag does have a cross on it…

          1. But for it to fly in one of the constituent states, a certain act recently signed by Nikki Haley will have to be reversed…

      2. Really now?

        I’m actually in favor of splitting the country up, but trying to do it under that label will almost certainly fail. Let the states break away individually and peacefully (starting with New Hampshire), and they’ve got a much better chance of not being bombed into submission.

        1. Or, just make sure that the state government secures any ICBMs that Uncle Sam has left laying around in their territory, and make it clear that they have the ability to use them in retaliation for conventional attacks, if the mood takes them.

        2. I wonder how secession would work today. There’s no issue like slavery to get a large number people worked up enough to go kill (or be killed by) their fellow Americans.

    2. But excluding people from commerce makes most other rights empty. In a situation where there is widespread and systematic discrimination against a particular group, such as Blacks in the Jim Crow south, then there is a genuine conflict between rights calling for compromise. The ability to infringe our rights by organized armed force is not limited to the federal government, or to government at all.

      1. Jim Crow south

        You do know what this means, right?

        Hint, it’s not freedom of association.

        1. I don’t do well with hints. Just say what you mean.

          1. Discrimination was mandated by government, not merely instructed by free businesses.

      2. But excluding people from commerce makes most other rights empty. In a situation where there is widespread and systematic discrimination against a particular group

        False assumption. Such a practice cannot survive in a free market economy.

      3. Jim Crow was the law. Armed government agents could ruin the life of someone who refused to discriminate.

        Allowing for voluntary discrimination does two things: it allows assholes to identify themselves and then be boycotted by non-assholes, and it creates business opportunities for those who choose not to discriminate.

        1. But . . . But, that’s too simple! What will government bureaucrats do+ They’ll starve!

        2. Thank you.

          Here is yet another problem solved by the free market, if only it were allowed to work.

          1. Free markets take too long and people get impatient when imposing their moral values on others is at stake.

        3. Armed government agents could ruin the life of someone who refused to discriminate.

          “Ruined” like giving him a ticket or a fine? Oh, the humanity.

          Jim Crow was enforced as much or more by racist Southern culture — ordinary white citizens — than by a handful of law enforcement officers. Your attempt at shifting the blame for Jim Crow by blaming it on cops is pathetic and transparent. This blind, sociopathic hatred of cops even leads you to absolve Southern racists for their crimes. Disgusting.

          1. Jim Crow was enforced by the government. The people were forced to comply. The fact that there existed some people who didn’t mind complying does not abrogate the fact that governmental force stood behind Jim Crow.

            1. An oddly appropriate parallel, given that there are people who will quite willingly make cakes for gay weddings.

      4. Re: Vernon Depner,

        But excluding people from commerce makes most other rights empty.

        Compelling people to do commerce is antithetical to all rights, V.

        In a situation where there is widespread and systematic discrimination against a particular group, such as Blacks in the Jim Crow south, then there is a genuine conflict between rights calling for compromise.

        There was no such conflict, V. Jim Crow was entirely a creature of the state, not of private businesses. Even in cases where businesses would not cater to people who belonged to a certain group, that did not mean all businesses would eschew the profit opportunity of catering to them – hence the laws.

        The ability to infringe our rights by organized armed force is not limited to the federal government, or to government at all.

        Neither you nor I have a fundamental right to someone else’s property. PERIOD. You can’t then argue that people who do not want to do commerce with you are depriving you of something. That’s engaging in sophistry.

        1. // The ability to infringe our rights by organized armed force is not limited to the federal ——government, or to government at all.

          Neither you nor I have a fundamental right to someone else’s property. PERIOD. You can’t then argue that people who do not want to do commerce with you are depriving you of something. That’s engaging in sophistry.
          //

          You missed what he was saying. He was talking about the brutal guerilla enforcement of Jim Crow, that occured whether or not laws existed

          1. Re: Edwin,

            You missed what he was saying. He was talking about the brutal guerilla enforcement of Jim Crow, that occured whether or not laws existed

            I didn’t miss it. I dismissed it as the red herring that it is. The fact that you have an armed mob does not confer something – civil rights laws – validity. That is why I reminded him (and YOU) that despite historical anecdotes, truth IS STILL truth.

      5. But excluding people from commerce makes most other rights empty. In a situation where there is widespread and systematic discrimination against a particular group, such as Blacks in the Jim Crow south, then there is a genuine conflict between rights calling for compromise. The ability to infringe our rights by organized armed force is not limited to the federal government, or to government at all.

        Jim Crow was a legal system that used government power to exclude black people from fully participating in markets.

        It was deemed necessary by racists because, without that legal system, voluntary interaction, aka market economics, would have led to a mixing of the races and ended white supremacy.

        One of the greatest lies perpetrated by the left, is the idea that Jim Crow was the result of cultural norms across the south and not affirmative government policy.

        1. Some Jim Crow laws were challenged by businesses. Mostly railroads, as having to have separate railcars for whites and blacks would cost them a lot of money.

        2. //One of the greatest lies perpetrated by the left, is the idea that Jim Crow was the result of cultural norms across the south and not affirmative government policy.

          One of the greatest lies of dogmatic libertarians is that Jim Crow was ONLY the result of government policy, and not actually a system put in place in part by local, extremely brutal guerilla forces

          Here’s a crazy thought, a thing can be a couple of different things

          1. Re: Edwin,

            One of the greatest lies of dogmatic libertarians is that Jim Crow was ONLY the result of government policy, and not actually a system put in place in part by local, extremely brutal guerilla forces

            So what if there were? They were LAWS, Edwin – Jim Crow laws. If the armed thugs had been enough then there would not be such laws.

            1. //f the armed thugs had been enough then there would not be such laws.

              Bullshit. The laws only helped enforce the institution of Jim Crow. And the converse is DEFINITELY not true, that “if it weren’t for the laws, then there wouldn’t have been Jim Crow”.

              If, for example, the CRA had not been passed, and the nation only managed to wipe out the local Jim Crow ordinances, you’d better freaking believe the locals would have just enforced the segregation themselves.

            2. So what if there were? They were LAWS

              And those laws just made themselves up. The citizens had nothing to do with them! One day the peaceful, tolerant, respectful Southerners woke up to find that somebody had put all those racist laws in the books. White Southerners were the real victims of Jim Crow!

              1. 1) There were a lot of shithead white southerners who supported jim crow laws, but without the backing of violent government all they would be able to legally do is peaceably protest those businesses that served blacks. The laws were the only things that made their racism legally actionable.

                2) Plenty of racists love money more than they hate blacks, and as often happened and still happens and will always happen business people will trade with those they hate.

                3) To Edwin: ILLEGAL armed lynch mobs initiating violence are not the same as LAWS passed to enforce segregation. There were laws against assault and murder that those mobs violated, and if the local police wouldn’t enforce those laws then that is a whole separate problem, but people criminals using force to support segregation is not comparable to government using laws backed by force to support segregation.

    3. the problem is the application of “public” to PRIVATE businesses. the original racial discrimination was GOVERNMENT forcing everyone to segregate and discriminate. Gov’t has no business doing that. BUT,private persons operating a business is a different matter. The whole idea of religious freedom is that people are free to live by their beliefs,in both private AND public arenas. NOT only in church and at home. That means free to run their business as they want.

      1. Funny that anti-smoking laws are enforced on private businesses and not many people are concerned.

  18. The courts (from the lowest tier all the way to the top) have ruled that you cannot compel someone to engage in speech or expression that violates their deeply held beliefs. None of the recent court decision about the rights of homosexuals have overturned those freedom of speech rulings.

    Any law that attempt to compel such speech is unconstitutional.

    When dealing with services, from pumping gas to filing paperwork, the law is very clear — discrimination is simply wrong.

    But when you start dealing with artists and art items, the law isn’t clear at all. Remember, any law that attempts to compel speech or expression is rendered null and void by the constitution.

    Baking a cake is a service. Anyone could do it. But there is a reason you go to a bakery for a fancy event cake rather than bake it at home. That reason is artwork. A bare cake or one with a little frosting slathered on isn’t very pretty and certainly isn’t special enough for a wedding.

    There are entire websites out there dedicated to poorly decorated, ugly cakes. Cakes decorated by people with no artistic skill or talent.

    Cake decoration is very plainly artistic expression, which cannot be compelled. And suddenly the laws against discrimination are themselves discriminatory — and nullified by the constitution.

    Oops.

    1. So the government gets to define what is expression, and selectively prohibit that which it deems not worthy of expression.

    2. Simple solution.

      Homo wedding cakes, at bakers who object, are to be gray cake with gray icing and no ornamentation at all.

      Everyone loses.

  19. Thus, a city’s planning department can forbid a brutalist, cement fortress in the middle of a quaint neighborhood of bungalows without violating the Constitution.

    But is it constitutional for a court to order an architect to pay $135,000 in damages to a city for refusing to build them a bungalow at all if the architect states that bungalows offend his deeply-held brutalist architectural aesthetics? If not, then the analogy isn’t really that useful for the overall situation. Why could not the city just go find a bungalow-building architect and leave the brutalist architect to his devotion to drab fortresses?

    1. bingo, you hit the nail right on the head

  20. “Free speech is the whole thing, the whole ball game. Free speech is life itself.” — Salman Rushdie

  21. There’s an issue that just occurred to me.

    Prostitution is legal in parts of Nevada. Can a prostitute be sued for refusing to have sex with someone because of their gender? It is a commercial transaction and therefore would legally fall under the (virtually unlimited) commerce clause and, therefore, also under the non-discrimination laws.

    1. Does Nevada name sexual orientation as a protected class? As of yet, the federal government doesn’t.

      1. But sex is, I guess, so it sounds like they have a case.

    2. Forcing a woman to have sex against her will is a crime.

      It’s called “rape”.

      The courts are probably reluctant to compel women to have sex against their will.

      1. The courts are probably reluctant to compel women to have sex against their will.

        They wouldn’t, they’d just slap her with $150K in fines.

    3. Or their ethnicity? An awful lot of Backpage ads say “No African Americans”.

  22. To all you business owners. DO NOT outright refuse to provide the service. Just provide the worst possible service.

  23. There is little indication that gay couples actually need the government to force resistant religious bakers to fire up their mixers in order to have the wedding of their dreams.

    Of course not. The idea is to force others to embrace the gay agenda. It has nothing to do with some poor gay couple not being able to buy a cake. It has everything to do with being vindictive and shrill, and using the power of government to punish your enemies.

  24. Volokh’s explanation proved to be Colorado’s response as well. A state agency ruled in April that Azucar Bakery, unlike Masterpiece Bakeshop, did not engage in discrimination for refusing to add the demanded message to the cake.

    Volokh’s explanation is really nothing more than a rationalization based on a definition provided by statute, but not by logic or even semantics.

    Discrimination is what it is: the choice of one thing over others. Both Azucar Bakery and Masterpiece Bakershop discriminated against making a cake over making a cake. That is what they DID. The reasons for their choices are not relevant.

    I’ll repeat that: THEY’RE NOT RELEVANT. Laws are not meant to make people harbor beautiful thoughts. People have a right to choose what they think serves their personal interest as long as their actions do not constitute a physical harm to the body or property of others. Not serving a person is NOT a physical harm to that person or the property of that person; if that were the case and for the sake of LOGICAL CONSISTENCY, then government should compel everybody to serve everybody else without the benefit of trade, or the ultimate form or altruism.

    Anti-discrimination laws are indeed antithetical to Property Rights, and as such they should be criticized and attacked. There is NO morality in unduly taking property from someone to right a perceived wrong.

    1. Volokh’s a legal scholar, that means he often says illogical things, since the law in this country suffers from massive contradictions.

      1. the law in this country

        OK, to be fair, it’s the case pretty much everywhere.

        My inner math nerd wants laws to be written in a machine-readable way, so that if a bill introduces a contradiction, it can’t be passed.

        Unfortunately that’s not really feasible.

        1. //Unfortunately that’s not really feasible.

          Wanna bet?
          Or at least, in the near future, what with technologies like Watson

  25. How about this: Gay couple walks into bakery to pick up their cake, perfectly and beautifully done. It’s in the pick-up case next to a cake that says, “Fags die in a fire and go to hell!” I bet they sue. I bet they win. Truth is revealed to all.

    1. Well the modus operandi of the USG is Fuck You That’s Why, so I wouldn’t be surprised.

    2. And what is wrong with that exactly? The word “fags” or the idea that they die in a fire and go to hell? I notice it was not a prescriptive statement. It may be incorrect, but there is no law against writing an incorrect statement. In fact, only the part about dying in a fire is incorrect (I’m sure there a exceptions) since no one could really prove that a person did NOT go to Hell.

  26. Re: American Stolid,

    If businesses want to turn away business because of their ideological blinkers maybe that’s their problem and not our problem as libertarians.

    It is if their refusal to provide is construed by the State as a harm towards someone else which warrants punitive action and retribution. That is a dangerous action which represents a direct attack on the Property Rights of the business. The business owners’ reasons for refusing to trade with someone else are irrelevant.

    Shikha dalmia spent a good four or five paragraphs arguing that discrimination against homophobic bakers was the next great ideological battle with “The Left.”

    Actually the fight against little Marxians (those whose minds live way out there in planet Marx) is for the defense of Property Rights, regardless if the possessors are homophobic or not.

    More hyperbolic rhetoric about killing judges, I say. That’s the true libertarian call.

    If you say so. Makes me think the authorship of those calls is intimately close to your hands. Perhaps a call to the DOJ would be in order?

  27. Re: Vernon Depner,

    When bakers were included in the list of businesses defined as public accommodations, I’m sure the drafters of the law were not anticipating a freedom of expression issue. The were just looking at it as a matter of equal access to food?the ability to buy bread.

    Do you realize that the notion that people should have equal-access to food (or the ability to buy food thereof) implies unequivocally that a person has a right to food, regardless of price?

    The very reason why the concept of “public accommodation” is a huge crock is precisely because nobody can accommodate the “public”. A business is already discriminating against people who are not paying customers – that alone obviates the principle behind the concept used to justify a law – anti-discrimination law – that is antithetical to Property Rights.

    1. Hrm. That’s an excellent point. If a restaurant really didn’t want to serve customers of some sort, they could just, I dunno, multiply all of the prices of everything by 10, and offer a 90% discount to “people we know”.

      I’ve even been places that had a “locals discount”, so I can’t imagine it’s even against the law to do that sort of thing.

      “$60 for a hamburger?”

      “That’s the menu price, yes.”

      “And this is a special menu of some sort, I take it?”

      “No sir, all the menus show that price.”

      *shrug*

  28. What I want to know is if two straight men can now get gay married like Frank Reynolds and Charlie Kelly?

    Because I have these two friends…

  29. YOKELTARIANS DISSEMBLE!

  30. //A business is already discriminating against people who are not paying customers – that alone obviates the principle behind the concept used to justify a law – anti-discrimination law

    //Discrimination is what it is: the choice of one thing over others. Both Azucar Bakery and Masterpiece Bakershop discriminated against making a cake over making a cake. That is what they DID. The reasons for their choices are not relevant

    Oh come on. I don’t like bkers being forced to bake cakes anymore than anyone else here, but this cockamamie aspberger libertarian douche logic. The courts’ delineations of a public accomodation business and other such things are valid.

    The only thing that’s sketchy is Volokh’s claim of “viewpoint discrimination”.

    That courts view cakes as not being a kind of speech, just like architecture, in the context of this current battle, is a little more believable, but still problematic.

    1. Re: Edwin,

      Oh come on.

      What do you mean “Oh, come on”? That is what discrimination is and that is what it means.

      I don’t like bkers being forced to bake cakes anymore than anyone else here, but this cockamamie aspberger libertarian douche logic.

      I don’t even know what is that supposed to mean. Are you saying that I’m being too unpassionate? That my logic lacks – gasp! – empathy?

      Aah! I’m hurt. See my tears? Hurt.

      Idiot.

      The courts’ delineations of a public accomodation business and other such things are valid.

      And I am saying they’re NOT valid, and showing why. How about that?

      That courts view cakes as not being a kind of speech

      Who the fuck cares? That’s nothing more than a red herring. What are being trampled on are the bakers’ property rights directly. The gay couple went from trying to start a trade to using the force of government to TAKE property or at least punish the bakers for daring hurting their precious wittle feelings.

      1. //Who the fuck cares?

        Anybody who cares about law, and actually trying to get change effected in the real world

        //What are being trampled on are the bakers’ property rights directly

        According to your awkward libertarian theory that maybe .001% of the population ascribes to. Now, when can we start talking about how to actually engage the world and enact change?

        //And I am saying they’re NOT valid, and showing why.

        No, you only showed that they aren’t valid according to libertarian theory, which focuses solely very broad generalizations about property, consent, contracts and freedom. The Common Law, however, from the get go recognizes the Police Power of the state, along with a much narrower interpretation of things like contracts and in some cases property.

        Actually, it’s worse. You think your cockamamie logic negated the court’s basic treatment of “public accomadations” and discrimination on specific criteria as though those things don’t exist; almost like they made a grammatical error . Well, I’m sorry, but such terms do delineate clearly definable and separate-able things. You want to pretend that they’re fundamentally mistaken, but they’re not. It is very easy and valid to describe certain businesses as public accomadations, and to single out certain types of discrimination. There is little to no overlap or fuzziness with these topics as applied to what happens in reality.

        You’re never going to affect change with weird, dogmatic libertarian theory.

        1. the only logical mistakes they’ve made is in their application of the concept of “expressive speech”

          which is why I mentioned it upthread

        2. Why is it that anyone ever thinks that people on the other side of these things somehow don’t believe that the law in question exists?

          We recognize “the Police Power of the state”. Possibly better than almost anyone else.

          There is little to no overlap or fuzziness with these topics as applied to what happens in reality.

          Um, duh? We know the state runs roughshod over people’s property rights all the time.

          You want to pretend that they’re fundamentally mistaken, but they’re not.

          Yes, we grasp that you think that is the case. We grasp that the government has the guns to enforce that view on people. Simply having enough force to back up a terrible argument doesn’t automatically make that argument actually correct.

          According to your awkward libertarian theory that maybe .001% of the population ascribes to. Now, when can we start talking about how to actually engage the world and enact change?

          Just coming in here and yelling “YOU ARE SO WRONG! JUST WRONG! BECAUSE THE LAW SAYS SO!” at us isn’t exactly the most compelling argument in the world either.

  31. These battles have led to a new push for more state-level religious freedom laws, so bakers and florists who oppose same-sex marriage can say no to gay couples legally

    So, under religious freedom laws, can I say “no” to a Catholic customer on account of his religion? I mean, either as an atheist or as a protestant, the practice of Catholicism is deeply offensive to me and incompatible with my fundamental beliefs.

    1. If you are not Congress seeking to establish a religion or prohibit the free exercise thereof, then feel free.

  32. the REAL question is;does a person have any right to the labors or property of another person or business if that other party doesn’t freely consent to it? No.
    Does a person lose their Constitutional rights (First,5th,and 13th amendments) when they open a business? No.
    If one goes by the Constitution,”public accommodation” laws are unconstitutional,they force people into slavery,indentured servitude.
    It’s anti-freedom. it’s Fascism.
    Private property rights should always trump your feelings being hurt or your desire to do business somewhere.

    1. Public accommodation laws don’t force people into slavery or indentured servitude. The business owners can always choose to not operate the business at all. But those laws are still unconstitutional, and more importantly, an infringement on rights.

  33. boring.

  34. While still on the subject, there’s Steven Crowder who talk of gay wedding cake at Muslim bakeries.
    http://louderwithcrowder.com/h…..im-bakery/
    https://www.youtube.com/watch?v=RgWIhYAtan4

  35. Christians should push to have the state rescind state licensing of Christian marriages. We should no longer seek the “right” to pay the state for a piece of paper that “validates” our relationship.

  36. Sometimes it is fun to watch the culture war in the process of peeling the liberaltarians from the libertarians.

    As issues become starker it will be more and more easy to see those who are willing to sacrifice ‘a bit’ of liberty if the ends kinda look like an issue they favor.

    They will, of course, become ever more indistinguishable from their liberal masters–who knows, at some point, creeping statist beliefs having completely overwhelmed any semblance of libertarianism– they might decloak and re-claim the term ‘liberal’ and never notice the proliferation of articles on Reason decrying the tenets of libertarianism.

  37. While I agree with the freedom to associate, I do feel that the commerce clause allows for the regulation of business (interstate business) through anti-discrimination laws. Corporations do not share the same freedom of association that individuals have.

    1. Let me know when you find a corporation not constituted of individuals. ‘I agree withe freedom to associate, BUT…’

  38. Colorado’s Human Rights Commission declared in 2014 that Phillips violated the state’s anti-discrimination policies. Not only was he ordered to change his ways, but the commission demanded he submit quarterly reports to show how he had altered his practices and trained his employees for the next two years to make sure he complied.

    So, if I were Phillips (and with my attitude, I could have been), I would just say “no” and go on with my life as if the government didn’t exist (Hans Hoppe). Maybe they’d leave me alone… yeah right.

    Either that, or I would cancel my fire insurance on my bakery and burn it to the ground and put up a sign saying “now you can have it” and leave town (Ayn Rand). I have to admit, that would be much more fun. I guess I’d have to ensure the ensuing fire wouldn’t damage anyone else’s property, but otherwise it seems like a good plan.

    You have to admit, either one of these would be more tolerable than obeying these authoritarians. It’s not like I would be doing this for “light or transient causes”, right?

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