Gay Marriage

Reason Foundation Supports Florists, Bakers in Gay Wedding Case Before Supreme Court

Brief argues custom-made cakes, flowers are expressive acts protected by First Amendment.

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gay wedding cake
RICHARD B. LEVINE/Newscom

Consumer goods like custom floral bouquets and wedding cakes are also acts of expressive artistry protected by the First Amendment. Shops who arrange flowers and bakeries that produce cakes cannot be compelled by law to do so for same-sex weddings if owners have religious objections.

That's the argument presented in an amicus brief submitted to the Supreme Court this week by the Reason Foundation (the non-profit think tank that produces this site and publishes Reason magazine), the Cato Institute, and the Individual Rights Foundation.

The Supreme Court agreed in June to hear the case of Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. The case involves a Lakewood, Colorado, bakery whose owner, Jack Phillips, declined to make a wedding cake for a gay couple due to his objections to same-sex marriage. The state ruled Phillips violated the state's public accommodation laws that prohibit discrimination on the basis of sexual orientation.

Meanwhile, Baronnelle Stutzman, owner of Arlene's Flowers, in Richland, Washington, has faced similar government sanction for refusing to provide floral arrangements for a same-sex wedding. Stutzman is standing on her religious opposition to same-sex marriage in her petition to the Supreme Court.

The Reason Foundation, the Cato Institute, and the Individual Rights Foundation brief encourages the court to consolidate the Stutzman and Masterpiece Bakeshop cases. Considering the cases together would "provide the Court with a more extensive factual record on which to base a decision, as well as help clarify the applicability of the ultimate decision's holding," the brief says.

Essentially, they want the Supreme Court to determine whether flower arrangement is also a form of expressive activity and possibly protected free speech. As it stands, the Supreme Court could issue a ruling narrow enough to cover only wedding cakes.

The brief presents two arguments to encourage the court to decide on behalf of the bakery and the florist. First, arranging flowers or baking a wedding cake is artistic expression protected by the First Amendment. The brief argues the court has previously held a fairly broad view of what counts as symbolic speech, and floral arrangements and wedding cakes should be included:

Art is speech, regardless of whether it actually expresses any important ideas—or even any perceptibly coherent idea at all. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston—which upheld the right of parade organizers not to allow a gay-rights group to march because they did not want to endorse the its message—even went so far as to say that the paintsplatter art of Jackson Pollock, atonal music of Arnold Schoenberg, and nonsense words of Lewis Carroll's Jabberwocky poem are "unquestionably shielded" by the First Amendment.

Second, the brief argues the government is using anti-discrimination laws to compel business owners to participate in same-sex wedding ceremonies, regardless of their religious objections. The lower courts have determined that providing cakes and flower arrangements does not "endorse" same-sex marriage. The brief asks the Supreme Court to reconsider this attitude and argues that these businesses are being ordered to put their stamp of approval on a concept (same-sex marriage) to which they object. The brief uses Wooley v. Maynard, where the Supreme Court previously ordered that New Hampshire couldn't force citizens to display the state's motto on their license plate if they objected to the statement "Live Free or Die":

Surely, no observer would have understood the motto—printed by the government on government-provided and government-mandated license plates—as the driver's own words or sentiments. Yet the Court nonetheless held for the Maynards. The Court reasoned that a person's "individual freedom of mind" protects her "First Amendment right to avoid becoming the courier" for the communication of speech that she does not wish to communicate. … People have the "right to decline to foster … concepts" with which they disagree, even when the government is merely requiring them to display a slogan on a state-issued license plate. …

Forcing Barronelle Stutzman and Jack Phillips (the owner of Masterpiece Cakeshop) to use their art to send a message of celebration and approval of same-sex marriages that they sincerely believe to be immoral is, if anything, significantly more invasive of core First Amendment rights than the imposition of a universally issued license plate with a quote hardly anyone could mistake as the driver's own personal opinions.

Some libertarians may be disappointed that the concept of freedom of association (that business owners should be able to choose whom to serve just as customers choose where to shop) doesn't get a defense in the brief. The reality is there's no evidence the Supreme Court will be making a decision that touches on freedom of association at all. The questions the Supreme Court will consider are those the brief addresses: Whether baking a wedding cake is a form of expressive activity and whether requiring bakers to produce these cakes for same-sex couples is a form of compelled speech.

Read the brief below the fold:

SCOTUS Amicus Brief by Scott Shackford on Scribd

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  1. Fondant is pretty, but the primary purpose of a cake is to be eaten.

    Also, pie > cake.

    1. I always ask for Apple pie with vanilla ice cream for my birthday which is coming up.

      1. Apple crisp is superior to Dutch apple pie which is superior to apple pie.

        1. Peach-blueberry pie. Tell me you aren’t instantly salivating. No two fruits go better with vanilla ice cream.. And together? Wow.

          1. Peach-blueberry pie

            Sounds gross.

          2. I will take a blueberry pie from Paul’s please. How much for delivery.

  2. DIE YOU HOMOPHOBIC SCUM!

    1. Libertarians don’t want the homophobic lefties to die.

      1. Based on the commentators here, libertarians want *all* lefties to die.

  3. “if owners have religious objection”

    That should not be a requirement. They shouldn’t have to have a reason. Being an asshole is just as legitimate of a reason.

    1. “Some libertarians may be disappointed that the concept of freedom of association (that business owners should be able to choose whom to serve just as customers choose where to shop) doesn’t get a defense in the brief. The reality is there’s no evidence the Supreme Court will be making a decision that touches on freedom of association at all.”

  4. Alright, Zeb, you were right

  5. How about you argue that people have the right to associate with whomever they want.

    1. They could do that, or they could submit an argument that has a chance of working.

    2. But do they?

      I want to associate with alcoholic runway models. Do I have that right?

      What about the right not to associate with people? Can I call the cops to haul away my annoying neighbor, what with my freedom of association?

      Also, not in the constitution and never was.

      1. I want to associate with alcoholic runway models. Do I have that right?

        Yes.

        What about the right not to associate with people? Can I call the cops to haul away my annoying neighbor, what with my freedom of association?

        Yes.

        Unfortunately, as always, you can’t seem to grasp that others also have the same rights. I’m not sure why you have such a hard time with that.

        1. For the brain-dead, having a right means someone has to give them what they want. Nothing more, nothing less.

      2. Also, not in the constitution and never was.

        Irrelevant. The Constitution is not a list of the rights you have. Yet another point that always seems to slip from your grasp.

        1. Fine. I assert the right to an infinite supply of hookers and blow and for you to pay for it.

          1. You still don’t understand rights. You can demand that I pay for it all you want, that doesn’t actually oblige me to pay.

            1. All rights confer obligations on others. If a right doesn’t confer obligations on others, it’s a meaningless right.

              1. Like I said, you don’t understand rights and you just proved it.

              2. No right confers an obligation on another individual otherwise it is an entitlement granted by your masters.

              3. There is only one right, to not have force initiated against you.

                1. “There is only one right, to not have force initiated against you.”

                  …So why should I buy into your weird beliefs, what with them only offering one single right? Seems pretty oppressive.

                  Also, that definitely obligates other people to do (or not do) things.

              4. Really? What obligation is imposed on others by my free exercise of religion? What must others *do* to facilitate my RKBA? Who must do something to allow me not to be a witness against myself?

                Beuhler?

                1. Well, you can require your workplace to accommodate your breaks at specific times, force them to accept certain vacation requests, get exceptions to a dress code of general applicability, in some states you can refuse to do parts of your job and your boss isn’t allowed to do anything about it, in prison you can get an exception to rules regarding shaving, in prison you can get different meals, when we had a draft thou could opt-out, causing someone else to be dragged in your place, under several state constitutions you still have to be religious to hold office…

                  Oh, and according to a butt-load of Americans, I couldn’t marry.

                  So yeah. Freedom of Religion obligates other people to change their behavior to accommodate you.

                  1. None of those accommodations have anything to do with freedom of religion and everything to do with unconstitutional protected class legislation. Of course being a stupid faggot you can’t recognize the difference.

                2. For one thing government officials must refrain from interfering with those rights.

                  Now tell me how property rights don’t confer any obligations on anybody else.

              5. My Freedom of Speech obliges you how?

                You’re not required to LISTEN.

      3. Tony logic: if drunk models won’t be friends with me then I should be able to force you to bake me a cake

  6. Some libertarians may be disappointed that the concept of freedom of association (that business owners should be able to choose whom to serve just as customers choose where to shop) doesn’t get a defense in the brief.

    My initial thought as well.

    It’s almost as if we don’t have any rights that aren’t granted us in the BoR. Ahem (9A)…

    But, of course, that would bring the CRA directly into question and we can’t be questioning the decisions of our predecessor betters.

    The outcome will be for the bakers, but it will only apply when you can claim religious grievance.

    1. “religious grievance” is the biggest cop-out. So if I’m not religious, I don’t get as many rights as those who can claim “well it’s part of my religion”. Fuck that mentality and fuck off, slavers.

    2. that would bring the CRA directly into question

      And unfortunately that’s a huge part of the problem now.

  7. Brief argues cakes, flowers are expressive acts protected by First Amendment.

    Soon after, even prostitution will be construed as an “expressive act” protected by the First Amendment instead of being a voluntary exchange of property.

    Some libertarians may be disappointed that the concept of freedom of association (that business owners should be able to choose whom to serve just as customers choose where to shop) doesn’t get a defense in the brief.

    I’m disappointed by the realization that we’re all socialists now and that Private Property Rights are now meaningless. Instead, we’re seriously arguing if our property is an “expressive act” protected by the First Amendment.

    No one’s property is another person’s by right. PERIOD. END OF DISCUSSION. Now, get off my lawn!

  8. As it stands, the Supreme Court could issue a ruling narrow enough to cover only wedding cakes.

    So now we’ll get a ruling that covers only wedding cakes florists. Hooray.

    1. Isn’t it better to keep some liberty than ceding it all

      1. It’s just frustrating watching them deal with important issues one atom at a time.

        1. Real important issues are too big and scary to tackle all at once. So the thinking seems to go.

    2. “and”

      Gah too many edits

  9. Good for them. I hope they prevail.

    1. chemjeff, I must say that I’m really likely your takes recently, especially after the incident in Charlotteville

  10. Hrm… Yep, this fails my acceptance test.

    If the court goes with this opinion, then we’ll still have the situation where these folks can throw me out on my ear because their God has a beef with gay people, but I am prohibited from throwing them out on their ear because their God has a beef with gay people.

    So yeah. If you won’t argue that I have a right to be an asshole to folks that are assholes to me, then your aren’t defending. “freedom” or “liberty”, you’re defending privilege.

    1. If the court goes with this opinion, then we’ll still have the situation where these folks can throw me out on my ear because their God has a beef with gay people, but I am prohibited from throwing them out on their ear because their God has a beef with gay people.

      If you go to their place of business and request a special order — why are they obligated to perform the work?

      The florists and bakers had no problem selling flowers and cakes to gay folks. They didn’t want to have to make anything special for a wedding they opposed.

      And why wouldn’t you be prohibited from entering somebody’s place of business and assaulting them?

      And God doesn’t hate gay folks. He dislikes the act. You, as a person, are fine but flawed to Him.

  11. Some libertarians may be disappointed that the concept of freedom of association (that business owners should be able to choose whom to serve just as customers choose where to shop) doesn’t get a defense in the brief. The reality is there’s no evidence the Supreme Court will be making a decision that touches on freedom of association at all. The questions the Supreme Court will consider are those the brief addresses: Whether baking a wedding cake is a form of expressive activity and whether requiring bakers to produce these cakes for same-sex couples is a form of compelled speech.

    Nice try Shackleford, but we all know the real reason you didn’t address freedom of association: You’re part of the Sinister Gay Cabal.

  12. REASON is defending free speech even though it is hateful?

    Ha ha, charade you are.

    1. (Inside look at at the editors meeting at REASON).

      “Next up, bakers and florists…can they refuse to serve customers?
      (flips coin)
      Head’s they can, tails they can’t.”

    1. They can have their cake, and eat me too.

    2. What a retard.

  13. “First, arranging flowers or baking a wedding cake is artistic expression protected by the First Amendment.”

    Then in the same vein, a person can claim ANY activity is artistic expression. Painting graffiti on the Lincoln Memorial; artistic expression. Taking a shit on the White House Lawn; artistic expression. A jilted girlfriend defacing her ex-boyfriend’s car; just artistic expression. Etc, etc, etc.

    Freedom of Association is the only argument to be made. Just because it isn’t likely to win is NOT a reason to not do the right thing. And if this SJW worthy argument does somehow win, I fear the slippery slope that it will create.

    1. So you want them to virtue signal.

      Vandalism is expression, but the property violation makes it unlawful. It’s not at all in the same vein.

    2. Officer, I wasn’t smoking a joint, it was performance art.

  14. Whether baking a cake is a form of expression is an arbitrary subjective decision. The bottom line is you’re taking the side of business owner rights over customer rights. And to be consistent you must allow that a cake baker can turn away black customers for being black, since cakes are a form of expression, and nobody should have to endorse black people’s birthdays against their will. Right?

    1. Wrong as always.

      1. Furthermore obviously Reason agrees that if I were a cake baker and wanted to turn away Christians for being Christian, that is my right, since cakes are forms of expression. Care to explain why not?

        1. No, I won’t explain why not, because you do have that right.

          This is called “logical consistency”. It’s probably a new concept to you.

    2. That’s exactly right.

    3. The bottom line is you’re taking the side of business owner rights over customer rights

      You don’t have a right to coerce somebody into working for you.

      And to be consistent you must allow that a cake baker can turn away black customers for being black, since cakes are a form of expression, and nobody should have to endorse black people’s birthdays against their will.

      Obviously yes. I’m not sure why you think this is a gotcha.

      1. Just a reflection on the sad, dour worldview you people are forced to maintain out of some misplaced sense of logical consistency.

        Business owners do not have and never have had absolute rights to do what they want. You say they can discriminate against people for their sexual orientation or skin color? Fine, that’s your position. It doesn’t make for a freer society. The only freedom it increases is that of bigots to act on their bigotry.

        1. You can associate with whomever you please. That implies (actually, necessitates) that you can disassociate with whomever you please.

          That’s much less “dour” than you using government against everyone to ensure they associate with all the “right” people. One uses initiations of force, one doesn’t.

          Business owners do not have and never have had absolute rights to do what they want.

          They have all the same rights as anyone else, to do everything other than initiating force upon another human.

          It doesn’t make for a freer society.

          Yes, initiating force upon others makes for a “freer” society. Oh, wait, I don’t care a whit about “society” (however you define that), I only care about individuals.

          1. You can associate with whomever you please. That implies (actually, necessitates) that you can disassociate with whomever you please.

            This is neither a rights tradition in this country nor does it make any sense. (It’s an excuse for maintaining racial apartheid and isn’t new, in case you were worried you might be parroting evil bullshit.) Nobody can actually choose who he associates with or not. This isn’t a right. At most it’s a right to stay in your house and never answer the door. Definitely worth permitting de jure oppression of entire classes of people.

            And walking into a bakery with an “open” sign on the front door isn’t initiating force. Initiating force would be when the baker calls armed government goons to escort the person out for the sole reason that he’s gay (or black or whatever).

            1. This is neither a rights tradition in this country

              Well, yes it is. Also, if it wasn’t, so what?

              nor does it make any sense

              Why? (Bald assertion).

              It’s an excuse for maintaining racial apartheid

              Abusus non tollit usum. I can tell you that you’re wrong in the language of Cicero.

              Nobody can actually choose who he associates with or not.

              Yes, he can. Bald assertions are responded to with rejections.

              At most it’s a right to stay in your house and never answer the door.

              That’s part of it.

              Definitely worth permitting de jure oppression of entire classes of people.

              One person “oppresses” entire classes? You must be thinking of governments, not individuals.

              Initiating force would be when the baker calls armed government goons to escort the person out for the sole reason that he’s gay (or black or whatever).

              Straw man, he’s denied the person service, and thus far none of these people have been escorted out.

              Read this before you reply:

              https://en.wikipedia.org/wiki/List_of_fallacies

              1. But you back a legal regime that permits owners to employ taxpayer-funded government goons to forcibly remove people for being gay. Perhaps with deadly force, hypothetically.

                Don’t tell me you’re on the side of freedom. You’re simply on the side of the bigoted business owners.

                1. But you back a legal regime that permits owners to employ taxpayer-funded government goons to forcibly remove people for being gay.

                  Straw man. No, I don’t. I’m an An-Cap.

                  Don’t tell me you’re on the side of freedom.

                  I’m on the side against initiating force. I call that “freedom”.

                  You’re simply on the side of the bigoted business owners.

                  Thinking ‘X’ is wrong, and refusing to serve people celebrating ‘X’ doesn’t imply bigotry. Non Sequitur.

                  You failed to read my link, apparently.

                  https://en.wikipedia.org/wiki/List_of_fallacies

                2. Tony, by your “logic”, when the Supreme Court allowed neo-nazis (National Socialists) to march in Skokie, IL, the justices must have be neo-nazi sympathizers. And deciding that “hate speech” is free speech means they favor hate speech. You, apparently, cannot not bear anyone else acting in a way that you do not like, even if they never use force, theft, or fraud against anyone. Actually, someone can be against something, say, using heroin, without wanting to punish others who make different decisions about it. Really, it’s not that hard to understand, is it?

          2. You can associate with whomever you please. That implies (actually, necessitates) that you can disassociate with whomever you please.

            This is neither a rights tradition in this country nor does it make any sense. (It’s an excuse for maintaining racial apartheid and isn’t new, in case you were worried you might be parroting evil bullshit.) Nobody can actually choose who he associates with or not. This isn’t a right. At most it’s a right to stay in your house and never answer the door. Definitely worth permitting de jure oppression of entire classes of people.

            And walking into a bakery with an “open” sign on the front door isn’t initiating force. Initiating force would be when the baker calls armed government goons to escort the person out for the sole reason that he’s gay (or black or whatever).

        2. Business owners do not have and never have had absolute rights to do what they want. You say they can discriminate against people for their sexual orientation or skin color? Fine, that’s your position. It doesn’t make for a freer society. The only freedom it increases is that of bigots to act on their bigotry.

          Ok, Hazel. Real freedom allows people to make decisions you don’t like. But like a child, you can’t accept that.

          You’re not free unless you’re free to be a complete douchebag asshole.

          1. You are only truly free if you are free from offense, worry, want…

          2. Nobody wants to take away anyone’s right to be a douchebag. Just their alleged right to perpetuate a Jim Crow regime.

            1. Jim Crow were LAWS which REQUIRED businesses to discriminate.

              1. And who writes laws? Aliens from the Andromeda galaxy?

          3. “Real freedom allows people to make decisions you don’t like.”
            The Christian activist groups behinds these bakers are the same ones that were supporting sodomy laws in 2003 and continue to support them abroad.

            So yeah, the folks you’re defending? Aren’t interested in “real freedom”. They’re interested in *privilege*.

            1. Abusus non tollit usum. I just said you’re wrong in the language of Cicero.

              1. In an ideal and perfect world? Sure.
                That’s not this world.

                In this world, we have Group A and Group B both obligated by the same “contact”. Group A, historically, has been very abusive of Group B, with no real reciprocation* from Group B. Group A has very publicly advocated for returning to those abuses. And you want to release Group A from it’s obligations while doing nothing about Group B.

                And to top it off, Group A can’t be arsed to argue that both should be free of their obligations, just that Group A should be free of their obligations.

                That’s the world we live in. And in this world, it’s not unreasonable for me to say “you can be free from non-discrimination laws when I am”.
                ________
                *seriously, the worst that Christians accuse gay folk of is the *least* that Christians have done to have folk.

                1. Do you know what Abusus non tollit usum means? One of the things is that you cannot blame an individual for the actions of (some in the) group who claim to represent them. You cannot blame everyone who says they like socialism for what Stalin did.

                  Group A, historically, has been very abusive of Group B, with no real reciprocation* from Group B.

                  The group with the control of government abuses the one without it. Welcome to all of history.

                  And to top it off, Group A can’t be arsed to argue that both should be free of their obligations, just that Group A should be free of their obligations.

                  If that were true (and you haven’t shown it to be) you can’t treat individuals as if they are simply members of a group!

                  *seriously, the worst that Christians accuse gay folk of is the *least* that Christians have done to have folk.

                  Funny, I don’t believe I’ve ever done anything at all to “gay folk”. Do you now see the issues with treating me as if I’m just a member of your arbitrary “group”?

                  1. Really. It’s unfair to judge a group for what the group has done and continues to do, and unfair to apply that same judgement to others who eagerly claim membership.

                    Your world, where you are free of the consequences if you’re voluntary associations… It must be nice.

                    1. Your world, where you are free of the consequences if you’re voluntary associations… It must be nice.

                      I don’t voluntarily associate with them. They simply claim the same title and you’ve decided that means we belong to the same “group”. I might as well blame all atheists for what Stalin and Mao did!

            2. The Christian activist groups behinds these bakers are the same ones that were supporting sodomy laws in 2003 and continue to support them abroad.

              So yeah, the folks you’re defending? Aren’t interested in “real freedom”. They’re interested in *privilege*.

              They have rights and they’re expressing them. I don’t like what they’re expressing, but, since I have a principled take on it, I’m not going to stop them. THEY HAVE RIGHTS TOO! Them exercising their rights to express their beliefs doesn’t oblige me to agree with them.

              1. A principled argument would be that we all have a right to be assholes to each other.

                That argument had not been made.

                The argument that *has* been made is that it’s perfectly acceptable to force me to ignore what someone’s holy book says about murdering me, but that same person should be free to refuse me based on said pro-murder holy book.

                That’s not principled.

            3. And? If being an illiberal asshole means forfeiting all rights, then 90% of the country ought to be in prison.

              1. Following the same laws you enforce on others is hardly “all rights”.

          4. What the fuck are you talking to me for?

            I am not in favor of anti-discrimination laws,I am in favor of punishing people who are bigoted through private social sanctions.

            Don’t confuse me with Tony. And by the way I have gotten in epic arguments with him over this very subject.

            What bothers me is that people like you seem to think that someone’s free speech rights entails protecting them from other people’s private speech. If I think someone is being a racist douche, or an anti-gay bigot, it’s might right to say so. And if racist douches feel like they can’t express themselves in public because people won’t like them anymore (waa!), GOOD.

        3. If allowing people to discriminate on the basis of skin color in deciding who they work for is morally wrong, then why is it not morally wrong to allow people to discriminate on the basis of skin color in deciding who they want to date or allow into their house?

          Business owners do not have and never have had absolute rights to do what they want

          First, that’s irrelevant. Second, I’m speaking in moral terms, not legal terms. Third, even if we limit the discussion to the legal right to discriminate, business owners had that right for a very long time.

        4. It doesn’t make for a freer society.

          Clearly, sending men with guns to lock people in cages for not baking somebody a cake makes us free.

          1. Not sure why that’s worse than sending men with guns to forcibly remove a customer for being gay.

            1. Does being gay confer the right to stay on other people’s property without their permission?

              1. A business with an “open” sign on the door is not exactly equivalent to some guy’s house.

                1. A business with an “open” sign on the door is not exactly equivalent to some guy’s house

                  Please explain how you forfeit all property rights when you use your property to conduct business.

                  1. Who said *all*?

        5. I’m pretty sure before the Civil Rights Act businesses COULD do what they want.

    4. Black customers: False equivalence. Have there ever been laws telling business they could not cater to gay people? I don’t know of any. The civil rights act may have been necessary to right a great evil perpetrated by the government. May still BE necessary. There is no such evil in this case.

      As to whether you could turn away christians, of course you should be able to! Are there any libertarians arguing otherwise?

      1. “Are there any libertarians arguing otherwise?”
        Not in those specific words, but when you actively attack non-discrimination laws that include gay people, and do nothing, ever, about non-discrimination laws that include religion?

        It’s not unfair to judge people by their actions.

    5. Whether baking a cake is a form of expression is an arbitrary subjective decision.

      That the gay couple in question didn’t do it themselves but asked somebody else to do it answers that question.

      The bottom line is you’re taking the side of business owner rights over customer rights. And to be consistent you must allow that a cake baker can turn away black customers for being black, since cakes are a form of expression, and nobody should have to endorse black people’s birthdays against their will. Right?

      The market would kill the store long before the government did anything. The market can be quite harsh in their judgments.

      As I always say — the government didn’t kill Enron. The market did.

  15. Freedom of speech, art is speech, decorative cakes and flowers are art, got it.
    But what about freedom of religion, even when that religion is intolerant? We defend freedom of speech even when speech is intolerant.

    1. Simple. “Wall of Separation” includes freedom FROM religion. And certainly no “special rights” for the religious.
      And no, those words never had to be in the Constitution

  16. The reality is there’s no evidence the Supreme Court will be making a decision that touches on freedom of association at all.

    Asking that of them would overtax the court.

  17. It is an admirable attempt, but to me, it seems to be a waste of time to try to compel a certain decision from a governmental official by using logical consistency. If they were logically consistent, they wouldn’t be a governmental official.

  18. This seems more about contract law than anything. Buying some bread that is available to everyone is one thing. Contracting to have a specific item made is another. The government is forcing the owner to enter into a contract that they do not want.

    1. Nice interpretation. I’m not as against accommodation laws as some on here because I think that predictability is a fundamental need for a stable economy. If I want to buy a hammer, I should be able to easily predict where I can buy it from without worrying which store will bar me for being white or charge less/more because I’m female.

      When it comes to services involving contracting a particular person’s expertise, though, I shouldn’t have expectation that I’ll be able to get exactly what I want from whoever I want. Shouldn’t matter if they turn me down because my expectations are unrealistic, they don’t like my politics, or because they only want to work with lesbian-afro-croatian-transgendered-womyn.

      1. Hrm…

        It’s class neutral (isn’t specific to just religious-based refusals)
        It’s issue neutral (isn’t specific to gay weddings)
        It doesn’t invent new bullshit (“I sell wedding cakes, not *gay* wedding cakes” – serious argument tried in court)

        Yeah, I could support that.

        DOA though. A cursory examination of the “religious liberty” bills the right keeps pushing reveals that their problem isn’t with contracted services being different from “off the shelf”, it’s with gay people. And sometimes adulterers.

        1. A cursory examination of the “religious liberty” bills the right keeps pushing

          … to create a privileged class for themselves … exactly like the liberals they hate (thereby rejecting their Christ) … in a nation founded on Separation, as Constitutionally mandated.

  19. The reason Reason (heh heh) isn’t arguing freedom of association is that the questions presented to the Supreme Court by the cake baker–that is, the questions the Court agreed to answer–are whether compelling a baker to make a cake celebrating a same sex marriage violates either (1) the Free Speech Clause or (2) the Free Exercise Clause.

    Those two questions are what the Court will address. The Free Association clause isn’t on the table, and a brief centered on it would be ignored as unhelpful.

  20. Even more disappointing, though unclear (did not read the brief) would be basing your appeal on religious grounds only, which would be a special right for religion, which would be wrong on two scores. As a special (limited) right, and as a violation of Separation.

  21. And yet somehow you still supported Gary Johnson blindly

    1. Not everyone is as wacko as you.

  22. I think the “religious freedom” argument is simply wrong-headed. You have the right to your beliefs, and the right to do (or refrain from doing) whatever your religion says you should do or not do, PROVIDED that you do not disobey “laws of general application”. If the law says you may not build something taller than two stories in a given area, your desire to build a 4-story church does not override that law.

    Similarly, if the law says that you must have fire escapes in your building, you do not get an exemption because your religion thinks that fire-escapes are against God’s will.

    The state legislature, exercising the state’s “police power”(*), has said that if you engage in trade in the state, you must serve people equally regardless of whether or not they belong to a protected class — skin color, religion, “race”, sex, sexual orientation, etc. If you create a religious exemption from that power, where will it stop? Will somebody make up a religion that is against fire escapes so they can build skyscrapers a little cheaper? Should we allow a 4-story church in an area that is zoned for 1- and 2-story single family homes?

    (To be continued)

    (*) the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants, per Wikipedia

    1. No, this is not an invalid “slippery slope” (continuum fallacy) argument. It’s not a question of whether somebody will assert such a right. Given the opportunity, somebody _will_ assert that right. So, where should the court draw the line? If only the right of Christians is protected, then one religion gets more protection than others. That’s the very opposite of what the First Amendment was supposed to accomplish.

      The free speech argument is much stronger. The courts have held that the “Freedom of speech” guaranteed by the First Amendment includes both the right to say what you want and the right not to be compelled to say things you don’t want to say.

      Anything that involves even a little creativity — flower arrangements, custom cakes — is “speech” and should be protected by the First Amendment.

      Is it really a good idea for the Reason Foundation to use an argument (freedom of religion) that we know to be fallacious instead of relying on a logically strong argument (freedom of speech), merely because someone has decided that perhaps the current Supreme Court will be swayed by a “freedom of religion” argument when the religion being protected is Christianity?

      This is a very bad precedent to set. I wish the Reason Foundation and its lawyers would see more clearly and avoid fallacious arguments.

      1. The problem with all the arguments is that the business, of its own volition, offered the public these services knowing ahead of time that they could not discriminate because of civil rights.

        Doing so knowing that they would discriminated by creed (owner’s or customer’s, makes no difference) means they knowingly made fraudulent offer to the public.

        If someone’s creed makes them feel them must discriminate by civil rights then making a public offer is the wrong way to be doing business. A private membership organization where they find the ‘right’ members first and then make the invitation of sale to just its membership is the way to go.

        An Amish business owner thought he shouldn’t have to collect social security taxes because of his beliefs. The SCOTUS said that operates to impose the employer’s religious faith on the employees.

        When a racist wanted to only serve white customers at his restaurants because it infringed on his rights since his religious beliefs compel him to oppose any integration of the races whatever the federal court replied has the right to his beliefs but he can not exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens.

        Either way the customer’s don’t lose their right to use their purchases consistent with their own creed.

  23. The bakers and florists are being kind going to court.

    I would’ve just ruined their wedding with a God awful cake and shit flowers.

    Then refuse to offer them refunds.

    Then advise them that there is a difference between a “contract” and “forced servitude”

    1. I would’ve just ruined their wedding with a God awful cake and shit flowers.
      Then refuse to offer them refunds

      Ever the dumbass, you believe they would have paid for it. (smirk)
      Haters gotta hate. Gomers gotta … gome.

    2. Yeah, but ‘a God awful cake’ would be an affront to God and make the whole exercise a bit hypocritical on their part.

      And no one is asking them to do other than what they voluntarily offered to do for the public regardless of creed, s?x or sexual orientation – make a custom wedding cake.

      No forced servitude, more a fraudulent offer on their part for which they were fined.

  24. The problem with the first and second arguments is the business freely invited the public – a group composed of all creeds – to come and buy custom wedding cakes from them. This was in a state where they business owner knew that a customer responding to a public offer could not be be discriminated against due to civil rights.

    If the business wasn’t willing to make the ‘speech’ that supported or ‘participate’ in all creeds, even those that have same-s?x marriages and have weddings with cakes to celebrate them, why did they make the offer to the public to begin with?

    There are other ways to structure a business that allow discrimination by civil rights, most commonly a private membership organization. That is how the Boy Scouts of America prevented New Jersey from considering them a public accommodation – they were a private membership religious youth group.

    Historical precedence by the federal courts says that a business cannot treat customers or employees as if they share the beliefs of the owner in disregard of their own. Even in the Hobby Lobby ruling the court made clear that one thing it would NOT do is allow illegally discrimination cloaked as religious practice.

    If a business owner can’t sell to all creeds, then inviting the public to come buy is the wrong way to go. There is no right to religious discrimination, and hopefully the SCOTUS won’t craft one because that will come back to bite everyone on the behind eventually.

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