Gay Marriage

Will Supreme Court Tackle More LGBT Cases Next Term?

Justices are being asked yet again to argue about wedding cakes and whether the Civil Rights Act covers discrimination against gay and transgender people.

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Supreme Court
Spector13 / Dreamstime.com

It's not unusual for senators to try to nail down how potential justices are going to vote before confirming them. It's also typical for nominees to avoid tipping their hands. So when Brett Kavanaugh was nominated to the Supreme Court, some LGBT activists were upset about his evasiveness when questioned about their issues.

They may get a more direct look at his positions soon. The Supreme Court is being asked to consider two cases in their territory.

The first is directly related to the justices' most recent decision on gay issues: Can a baker refuse to make a wedding cake for a gay couple? In June, the Supreme Court ruled 7–2 in Masterpiece Ltd. vs. Colorado Civil Rights Commission that Colorado erred when it punished bakery owner Jack Phillips for refusing to bake a wedding cake for a same-sex couple. But the way that the majority came to this decision did not settle the question at all.

The court did not rule on whether Colorado's public accommodation laws were unconstitutionally mandating speech by forcing Phillips to make a wedding cake. It did not decide whether the baking of a cake is itself an expressive act protected by the First Amendment. Rather, it ruled that the commission was not acting as a neutral arbiter balancing the rights of the parties involved, since members of the commission made clear indications that they held anti-religious biases that influenced the decision.

So with the central conflict still unsolved, the owners of a bakery in Oregon are asking the Supreme Court to take up the issue again. Aaron and Melissa Klein, owners of Sweet Cakes by Melissa, were fined $135,000 after refusing to bake a wedding cake for a lesbian couple.

The Kleins submitted a petition last week to the top court asking them to take up the matter to determine whether the baking of wedding cake is a form of speech and whether Oregon can mandate they bake it.

I predict the odds are long that the Supreme Court takes it up so soon. After the Masterpiece decision they punted back down a similar case about floral arrangements for gay weddings that originated from Washington state. The message from the court seems to be that these business owners need to show that there's anti-religious animosity guiding the state's rulings and not a neutral application of antidiscrimination law.

But then, I was surprised when the Supreme Court took up the Masterpiece case in the first place, given that every lower court thus far had ruled against every business in these cases and the Supreme Court had rejected previous petitions. So we'll see.

A different type of discrimination case is more likely to reach the Supreme Court, because it revolves around disagreement between parts of the federal government itself about the application of the Civil Rights Act: Does federal law that prohibits discrimination on the basis of sex also inherently prohibit discrimination on the basis of gender identity, and possibly even sexual orientation? Are gay and transgender people already covered by the Civil Rights Act?

It's obvious that when lawmakers passed the Civil Rights Act of 1964, they didn't intend it to cover gay and transgender people (as evidenced by the fact that the government continued to discriminate against them). But a 1989 Supreme Court decision established a precedent that punishing an employee for not exhibiting stereotypical gender-based traits was a form of sex discrimination. In that case, a woman claimed she had been discriminated against for not being feminine enough.

Spinning out of that ruling have been several cases where federal courts scattered around the country have ruled that discriminating against gay or transgender people is fundamentally similar to discriminating against somebody for not exhibiting the appropriate gender-based behavior.

Under President Barack Obama, the Justice Department and U.S. Equal Employment Opportunities Commission (EEOC) encouraged those decisions. The EEOC still supports that interpretation. But under Attorney General Jeff Sessions, the Justice Department has taken the formal position that the Civil Rights Act as currently written does not prohibit discrimination on the basis of sexual orientation or gender identity.

Last week the Justice Department reaffirmed its position in a letter to the Supreme Court about one of three cases the justices are considering taking up. Between the three cases, three separate federal circuits have come to split rulings. Two courts have ruled that the Civil Rights Act does prohibit this expanded interpretation of sex discrimination; one court ruled that it did not.

So not only are federal agencies split on the matter, but the courts themselves are split. The Supreme Court had an opportunity last December to take up one of these cases but declined. I've said before that this conflict is prime for a Supreme Court review in order to resolve the disagreements within the government about what the law means. It seems untenable for an LGBT employee in one state may be protected by the federal Civil Rights Act from discrimination while an employee in another state is not.

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  1. The civil rights act was passed at a time when homosexuality was illegal in most states and transgenderism, whatever that is, didn’t even exist. To claim that it covers gays and transsexuals is more than a bit absurd.

    And reason was warned about a thousand times by me, RC Dean and others that the court finding a right to gay marriage would, by making gays a protected class under the equal protection clause, end up allowing courts to read protection of gays into the civil rights act. Thus, anyone who supported a constitutional right to gay marriage was in effect supporting making gays into a protected class and including them under the Civil Rights Act.

    Scott Shackford in particular was particularly nasty in claiming that this claim was untrue and that he didn’t support inclusion under the CRA and anyone who claimed gay marriage meant that was lying. Well, low and behond, here we are a few years later and that is exactly what is happening. It is almost as if the lawyers on here knew what the fuck we were talking about and the various Wokletarians didn’t.

    1. Seldom have I seem more false pride in a non-accomplishment. You misstate Scott’s opinions and Reason’s articles in general, and then take credit for something as if you and a select few were the only light of intelligent predictability.

      Gag.

      1. Oh they weren’t the only ones, just the most vocal here. It was pretty obvious to everyone.

        “You misstate Scott’s opinions and Reason’s articles in general”

        Nah. Shackford’s usually ok but he has a blind spot on this issue.

      2. No I don’t. Reason has always denied that a constitutional right to gay marriage would cause gays to become a protected class. If you can find somewhere they said anything different, show me a link. They never did. And Scott has always claimed to be against including gays under the CRA but continued to support a constitutional right to gay marriage despite being told that including them under the CRA would be a likely consiquence of a constitutional right to gay marriage. He has spend years denying that would ever happen only to now casually report on how that is exactly what is going to happen unless the evil Republican court stops it.

        1. That Obergefell decision was really dastardly, traveling all the way back in time to 1989 to change that pesky EEOC ruling.

          1. No, it just made that decision unconstitutional. That decision was made when gays were not a protected class. If they are a protected class, then Congress can’t deny them protection that it gives other protected class without a compelling reason.

            Cathy, you don’t know anything about this subject. And that would be okay except that you have never once shown any interest in learning anythign or getting any smarter. So, do me a favor and stop wasting my time with your privitive emotings about something you so clearly know nothing about.

            1. No, John, it is, as usual, you who know nothing and don’t care to learn. In 1989 the EEOC ruled that the CRA protected gays as part of protection against sex discrimination. So, no, Obergefell didn’t make that ruling unconstitutional.

              Additionally, the Sweet Cakes by Melissa case is from a time when gay marriage wasn’t even legally recognized in Oregon, where the bakery was located. Again, it is not federally recognized gay marriage that created these protections.

              1. Gays are not and never have been protected under the CRA. God damn you are stupid. Where do you get this shit?

                http://www.americanbar.org/pub…..otectlgbt/

                Currently, there is no federal law that explicitly prohibits discrimination against lesbian, gay, bisexual, and transgender (LGBT) people. Title VII of the Civil Rights Act of 1964 outlaws hiring or employment discrimination on the basis of the employee’s “race, color, religion, sex, or national origin,” but does not mention sexual orientation, much less gender identity. Attempts to amend Title VII or to enact new, freestanding federal legislation to prohibit discrimination due to sexual orientation go back almost thirty years. The first such attempt?to add the phrase “affectional or sexual preference”?was made in 1975. Civil Rights Amendments Act of 1975, H.R. 166, 94th Cong. (1975). To date, however, all such legislative attempts have been unsuccessful. No bill specifically prohibiting employment discrimination on the basis of gender identity has been introduced on the federal level.

                1. Where do you get this shit?

                  I don’t know, from the actual blog post we are commenting on?

                  But a 1989 Supreme Court decision established a precedent that punishing an employee for not exhibiting stereotypical gender-based traits was a form of sex discrimination. In that case, a woman claimed she had been discriminated against for not being feminine enough.

                  Spinning out of that ruling have been several cases where federal courts scattered around the country have ruled that discriminating against gay or transgender people is fundamentally similar to discriminating against somebody for not exhibiting the appropriate gender-based behavior.

                  1. That has nothign to do with saying gays are protected under the CRA you fucking half wit. Saying that you can’t punish a woman for not dressing feminine enough, which is what that decision said, doesn’t mean gays are a protected class.

                    You are an idiot Cathy.

                    1. That has nothign to do with saying gays are protected under the CRA you fucking half wit.

                      Some federal courts disagree with you.

                    2. They also thought separate but equal was good too. It is absurd. It makes even less sense than including them under the equal protection clause. And there is no way on earth the Surpeme Court is going to buy it.

                    3. I wasn’t aware that every court decision ever made was the unvarnished truth.

                    4. “Some federal courts disagree with you.”

                      So? Some federal courts put stop orders on Entirely legal executive orders issued by Trump because so,e judges are activists, not jurists.

                      And you should apologize to John and thank him for taking the time straighten you out. He’s more generous with you than I will ever be.

                    5. John and Last are ardent spokesmen for the authoritarian and bigoted perspective. That must be lonely, thankless duty at an ostensibly libertarian website. Perhaps they are part of an RCAB* outreach project?

                      * Republican Conservative Authoritarian Bigot

          2. In which Cathy concedes that she is a true conservative, but fails to realize it

            1. Because I can read and know which direction time flows in?

              1. No. Because your entire philosophy is based around preserving the status quo.

                1. There is nothing radical about your beliefs other than those “radical” positions that enjoy wide support among the elites of society.

                  1. Although, to be fair, this can be said for most Libertarians For Expanding Protected Class Status

                2. Because your entire philosophy is based around preserving the status quo.

                  Lol.

                  Do you think I support the CRA?

                  The EEOC?

                  Obergefell?

                  (The answers are no, no, and no.)

                  1. I don’t think you support any of them because you seem to have no idea what any of them actually say.

                  2. Could have fooled me or anyone on this comment board

                    1. Could have fooled me or anyone on this comment board

                      Why? Have I ever uttered a word of support for them?

                      No. Like I said, I can read and understand which direction time flows. That’s why I know both Masterpiece Cake Shop and Sweet Cakes by Melissa refused to bake wedding cakes for couples whose marriages weren’t even legally recognized in the respective jurisdictions yet those couples were still considered protected by those jurisdictions. Same thing with Elaine Photography in New Mexico.

                    2. C’mon Cathy, you know the rules. If you are opposed to something, you not only have to scream and yell that you are opposed to it, but you also have to spread lies and false narratives about it, and just nod in agreement when you see someone else spread lies and false narratives about it in a manner that helps the cause. C’mon, what’s more important? Truth? Or winning?

                    3. Little Jeffy, we are not talking about you right now.

              2. No you can’t Cathy. You seem to live in a bizzaro world. You literally seem to know nothing about any subject.

            2. So along with crying idiot, that makes her 2 things she doesn’t want to admit she is.

    2. So try and repeal the CRA (1964).

      1. Sure, that will happen real soon. How about gays win a fucking election or get the law amended through Democratic processes if they want the protection of it?

        1. How about [Libertarians] win a fucking election or get the law amended through Democratic processes if they want the protection of it?

      2. I’d prefer to overwhelm it with protected classes and render it meaningless.

        1. That is an interesting idea. But it won’t happen. Gays only became a “protected class” because our societal elites, which judges are a part of, like gays. So, unless you can convince judges to like a whole lot of other classes, it isn’t going to happen.

          1. John must be running for president of his Libertarians For Bigotry chapter.

        2. Go for it. Republicans were trying to add “police officers” this year, how did that pan out?

          1. Pretty well for the cops in Louisiana.

        3. You get that you can’t be discriminated against for being white or male or Christian too? It already includes everyone (except gays).

          1. So Tony, you clearly have never actually read it.

            1. “Race, color, religion or national origin.”

              1. Which law are you quoting?

          2. “You get that you can’t be discriminated against for being white or male or Christian too? It already includes everyone (except gays).”

            That’s not true.

            You can’t be discriminated against for your faith, because all faiths were granted “protected class” status by the courts.

            But, you can be discriminated against for being a man or a white person. Those categories were not granted “protected class” status by federal courts. Local municipalities may extend those provisions, but federal law holds that those characteristics do not grant you “protected class” status

            1. White is a race. Man is a sex. Those are the classes.

              1. But this discussion isn’t just about the 1964 CRA. The Masterpiece decision wasn’t, for example.

              2. “White is a race. Man is a sex. Those are the classes.”

                You would think. But, that is not how federal courts have ruled.

              3. It will be interesting when technology provides a cure for deviant forms of sexuality like yours Tony.

          3. But he is severely discriminated against for driving a Mini Cooper.

            1. I’m sorry you use your car as a proxy for your dick.

    3. It’s fairly simple to find protection of gay equality under the protection against discrimination based on sex, if you want to. It’s not like it fucking harms you in any way to include sexual orientation, unless you’re some kind of fucked up overemotional bigot.

      1. So your sex determines if you’re gay or not? Doesn’t seem right somehow.

        1. It’s a bit post hoc, but rational. If you discriminate against someone because he prefers to marry men, that’s discrimination based on his sex, among other things, isn’t it?

          1. No, it isn’t.

            1. All else being equal, the discrimination wouldn’t happen if one of the partners were a different sex. Sex discrimination.

              Surely we’re beyond pretending that courts consult the ghost of James Madison and decide these things dispassionately with his consent.

              1. But you’re stealing a base here. You keep saying married then attaching it to sex.

              2. Tony, you are aware that federal civil rights acts provide an explicit religious accommodation provision, correct?

                What is being argued are local civil rights acts

              3. While I agree that gays shouldn’t be discriminated against because they’re gay, it’s false to claim that sex discrimination was intended to cover homosexuals.

                Consider the time that it was drawn up. They had different views about it than we do now. I suspect it was more likely intended to cover women’s rights.

                1. it’s false to claim that sex discrimination was intended to cover homosexuals.

                  Something literally no one is arguing.

                2. That’s absolutely true, but a simple and not very twisted textual reading can magically cover gays under sex discrimination if courts want it to.

                  1. So only a little twisted. So twisted.

      2. It is not what the equal protection clause says or was meant to mean. If you want it to mean that, change the Constitution. Further, there is nothing stopping Congress from amending the law.

        Angry retards like you having the power to change the meaning of the Constitution for your benefit harms everyone.

      3. “It’s not like it fucking harms you in any way to include sexual orientation”

        And this is obviously wrong and stupid. It gets geovernment involved in private affairs, and EVEN IF you think they have some reason to be involved, they fuck up so frequently that their involvement is itself a potential problem.

        1. My position is that if the law protects against racial discrimination, why not include sexual orientation? It would also mean straight people couldn’t be refused to be hired at Homo Buttplug Supermart, so win-win.

          1. That’s cool and not a response to my post at all.

          2. I shopped there once. It was a real stinker. A streaming pile of waste.

            But in the end I slid out and washed up.

          3. Tony, you shouldn’t get special rights because you want to fuck other men and young teen boys.

      4. Anti-discrimination laws violate my right to freedom of association and self-ownership and ownership of my labor.

        1. Yes, that is one reason I brought up the 13th downthread.

          1. I always bring up 13A. Leftists just scoff as if it is different somehow.

            1. EscherEnigma did exactly that as a matter of fact.

              1. You’re confusing “scoff” with “answering your implied question”.

                1. Nah I think I had it right. And I cannot tell you how god damned tired I am of people hiding behind what they think is implied.

                  1. And I cannot tell you how god damned tired I am of people hiding behind what they think is implied.

                    So tell us, and don’t imply it.

        2. If you say so.

          Did you know there are even things you’re not permitted to do in your own fucking house? Even if the mortgage is paid off? Even if you build a moat around it?

          1. So, it’s a rights violation, but worth it to you?

            1. From Nazis to communists, leftists have never had a problem putting a gun to someone’s head.

            2. From Nazis to communists, leftists have never had a problem putting a gun to someone’s head.

            3. You can look at it as zero-sum. Either the owner has a right to expel people for being black or the customer has a right not to be expelled for being black. We chose, in my opinion correctly.

              1. No Tony, you can look at it as free association vs forced association and servitude.

                This is an easy one.

                1. Not a novel argument, and one that promoted a Jim Crow society. We chose otherwise for a reason.

                  1. Not a novel argument, and one that promoted a Jim Crow society.

                    The “Jim Crow Society” was not about “free association.” It was government-enforced segregation.

                    1. Totally against the will of white Southerners, of course.

          2. Don’t deflect to irrelevant things. Coerced labor is slavery, Tony.

            1. A person voluntarily selling shit from his voluntarily opened shop and making money is not slavery. It’s literally the opposite.

              You’re bitching about a regulation put on people who run shops open to the public. It’s just law. Exactly like a law that says you can’t eat babies in your home, even if it is your sovereign property. Laws are things that tell us what we’re not allowed to do to other people.

              1. Except the state was forcing him to sell it so it wasn’t voluntary at all.

                Sorry that you can’t see that.

                “It’s just law. Exactly like a law that says you can’t eat babies in your home, even if it is your sovereign property. ”

                “It’s just a law, exactly like a law that says you can’t have gay sex, even if it is your sovereign property.”

                That’s your argument Tony.

                1. Yes it is. Not all laws are good, duh. That’s what politics is for.

                  But following the law is still not slavery. You can’t poison your customers either, however much you “voluntarily” want to.

                  I don’t know why I have to keep pointing out this obvious thing, but whichever side you decide gets to have the rights (shop owner or customer), the jackbooted thugs of the state will be enforcing that right. You want said thugs dragging customers away from lunch counters for being black? We tried it that way. You lost. Sorry?

                  1. You want said thugs dragging customers away from lunch counters for being black?

                    You’re talking past everybody (as usual). The “gay wedding cake” issue was never about walking up to counters. It was about commissioning custom wedding decorations and catering services.

                    Not “I want to purchase this cake you have displayed in this public place,” but “I need you to come to my wedding and make a custom piece celebrating my marriage specifically.”

                    There may still be an argument to be had, but you should at least argue the point that’s actually at hand rather than the one that you find so much easier to defend.

              2. Except you are limiting the “voluntary” part.

  2. They will assign you a Marie Antoinette piece next, you betcha.

  3. Are we allowed to group transgenderism with homosexuality?

    1. Yes and no, depending on who you ask and when and where.

    2. Are you asking for a friend?

      1. So you admit I’m likeable enough to have friends.

    3. It’s a free country, do what you want.

      That said, most folk use “LGBT”. There is a minor, but vocal, group who regularly drop the “T” though, mostly because while they think being gay is fine (most often because they are themselves gay) they view trans folk disfavorably. This group is more often conservative then not, but can be found anywhere.

      1. It’s a free country, do what you want.

        Man, that’s something I haven’t heard in a long time.

        1. And wrong. Maybe it was true at one time, but those days are long gone.

        2. It’s a free country, do what you want.

          Wait, is that something we still do here?

      2. “That said, most folk use “LGBT””

        I very much doubt “most folk” do that.

      3. While there is no doubt coincidental overlap, they seem to be two different things and not automatically connected.

        1. In fact, like gays and lesbians they seem mutually exclusive in a lot of ways.

      4. I use “GLBT” because I can pronounce it.

        1. Seriously, the man stuff should be first anyway.

    4. When it ascribes certain extralegal benefits, yes. If not, then no

  4. “The message from the court seems to be that these business owners need to show that there’s anti-religious animosity guiding the state’s rulings and not a neutral application of antidiscrimination law.

    But then, I was surprised when the Supreme Court took up the Masterpiece case in the first place, given that every lower court thus far had ruled against every business in these cases and the Supreme Court had rejected previous petitions. So we’ll see.”

    I think you’re probably right in hedging here, especially in regards to the message being conveyed. I’ve seen several opinions on the ruling, and many of them don’t align at all with the message you think the court is sending, which means they are likely sending a mixed messagr or none at all. Add to this the change in the composition of the court since that ruling and you’re probably right to admit your speculation should be taken with a grain of salt.

    1. My guess is that this will be the first stage of limiting Ogberfell to its facts. Rationally Ogberfel should mean that gays are a protected class and the CRA can’t consistent with the due process clause not include them in the protection. But Ogberfell was never a rational case and was always about achieving a particular result desired by Anthony Kennedy and the four liberal justices without setting too much of a precedent. So, I think the court is going to go through some mental gymnastics and explain how gays are not really a protected class, leaving the question of how the hell they and they alone can have a special right to government marriage unanswered, and rule that the CRA does not cover them nor transgendered, which is a different and much easier question.

  5. Can’t find answer to this online:

    Did the bakery, Sweet Cakes by Melissa, refuse to make any cake whatsoever for the gay couple? Were they willing to make a cake with frosting, but without the finishing touches that would make it into a wedding cake?

    Former case, they might get ruled against for violating public accomodations law.

    Latter case, they might get a ruling in their favor, since forcing someone to custom decorate a cake to specifications is compelled speech that runs afoul of 1A.

    Standard libertarian disclaimer: any business should have the right to refuse service to anyone for any or no reason. And, no business should be compelled to discriminate against customers by the government, either.

    1. They refused to bake the wedding cake. They were happy to bake any other cake. So, they did not strictuly speaking refuse service to gays. They refused service to a gay wedding.

      But nothing short of complete and total acceptance by everyone under threat of the full force of the law will satisfy gays in this matter.

    2. Like in Masterpiece, the refusal came before discussion of details, and was explicitly based on the couple being gay.

      This is why (like in Masterpiece) they are trying the “baking is speech” is argument.

      1. “and was explicitly based on the couple being gay”

        It was explicitly based on them having a gay wedding. You’re purposely conflating the two.

        Essentially, they want to extend protected class status to a pastry. And somehow we are suppose to believe this is a less crazy position than arguing that cake design is speech

        1. If you can leave everything else the same, but swap one of the members of the couple from “male” to “female” (or vice-versa), and suddenly the objection evaporates, then yeah, it was based on the couple.

          1. Again. You are purposely conflating the issue, because you are obviously more sympathetic to the plaintiff. The bakery is not being accused of discriminating against the couple because they are gay. They are being accused of not providing them with their desired pastry, because they don’t believe in their marital union.

            I know that embracing an expansion of protected class status is all the rage among certain libertarians (who hilarious then opine that they are some kind of alternative to the two parties), but be honest about the case.

            1. It should be noted that if a bakery refused to bake a cake for a couple who are on their second marriage (which was the case with the bakery in Colorado) no lawsuit could be brought, because there are no CRA statutes that provide protected class status to those unions.

            2. Don’t confuse me for a libertarian.

              And no, they are literally accused of “refus[ing] to make a wedding cake for Complaintants based on their sexual orientation, thereby violating ORS 659A.403”.

              1. “Don’t confuse me for a libertarian”

                Don’t worry about that one.

              2. “refus[ing] to make a wedding cake for Complaintants based on their sexual orientation, thereby violating ORS 659A.403”.

                Because the attempt is being made again to extend protected class status to a wedding cake. As this baker and the Colorado baker had stated several times- they have no problem serving gay customers. Their objection is being forced to produce a wedding cake for a gay wedding.

            3. The bakery is not being accused of discriminating against the couple because they are gay.

              I guess you’re right in the sense that it was affirmatively ruled that they were discriminating against the couple because they were gay; it’s no longer merely an accusation.

              From the local news story linked in Reason’s older post:
              “This case is not about a wedding cake or a marriage. It is about a business’s refusal to serve someone because of their sexual orientation. Under Oregon law, that is illegal,” the bureau’s final order states.

              You can of course argue whether that’s true, but you can’t argue they’re not being accused of it.

              They also told one of the plaintiffs’ mothers that her child was an abomination unto God, but I’m sure it was only the marriage part that bothered them.

              1. I swear, for someone who totally doesn’t support CRAs you sure do sound like you support them an awful lot.

                The plaintiffs accuse them of not serving them, because they are gay, but just like the Colorado case the defendants have served gay customers in the past. They refuse to provide a gay wedding cake.

                The plaintiff has to argue that they were not being served because they are gay, because to argue that they have a constitutional right to a pastry is hilariously absurd (but not too far of from reality).

                But, sure let’s pretend like a baker who will sell any pastry to a gay couple other than a wedding cake is an unrepentant bigot. Because they makes a lot of sense.

                1. No Jfree. let’s pretend that it would matter if they were but then claim we really don’t support including gays in the CRA.

                2. I swear, for someone who totally doesn’t support CRAs you sure do sound like you support them an awful lot.

                  Why? Again, because I can read?

                  1. Because you really can’t read beyond a news article that Reason provided. If you read the background of the case this is a rehash of the Colorado case.

                    Sorry the Colorado case didn’t work out the way you wanted. I’m sure your statist hopes will be realized some day

                3. But, sure let’s pretend like a baker who will sell any pastry to a gay couple other than a wedding cake is an unrepentant bigot. Because they makes a lot of sense.

                  This particular comment thread isn’t about whether or not the Kleins are bigots. It’s about the material facts of the case.

                  Or to put it another way… if you want to argue whether or not the Kleins are bigots, that’s certainly a discussion folks can have. But it’s not the discussion we were having.

                  1. Yeah. And the Kleins are not bigots for refusing to bake a cake.

                    Next question?

              2. I will say, though, Cathy, this ruse where you pretend like you totally oppose an expansion of the state and then vigorously defend an expansion of the state when it benefits your pet issue is a tried and true tactic.

                And it would probably be effective in fooling people if it wasn’t so obviously transparent.

          2. But you can’t leave everything else the same, that’s the point you keep missing.

      2. How is baking not speech? Aren’t there a lot of nonverbal or textual forms of expression which are also considered expression? People are focused on whatever words might have been written on the cake, but that misses the point. If they were trying to hire a singer to compose and perform a song for their wedding, that would pretty clearly be compelled speech. I think that they wouldn’t legally be able to force a singer to perform at their wedding even if the singer were not composing a song specifically for the event, or even singing their own songs, but were instead only to perform songs written by others that they had already sang at other weddings. I don’t think they could force a composer to compose a song for their wedding even if the composer were not to perform it or even attend the wedding. I don’t think they could force the composer to compose a purely instrumental musical piece with no song or lyrics attached, and I definitely don’t think they could force the composer to perform it at their wedding.

        Baking a cake for a wedding falls somewhere within this spectrum of expression. If there’s something written on it sure it is pretty obviously speech, but even if nothing is written on it baked goods are created primarily because the texture and flavor are pleasing to the senses, much like a symphony or painting or other forms of nonverbal art. Is nonverbal art not protected by the first amendment?

  6. I’m never going to be able to stop writing about cake, am I?

    What do you have against cake? Maybe you should try a french butter cake.

  7. Was talking to someone the other day who is an old school Democrat. He told me that the reason Trump is president now goes back to “Don’t Ask Don’t Tell”. That really turned off a lot of the old blue collar dems from the party.

  8. It’s interesting that the 13th amendment never gets brought up in this discussion.

    1. Not really, those arguments were refused decades ago.

      1. And? That’s not a response it is a deflection.

        1. It’s not a deflection, it’s a reason. Those arguments uniformly lost. Lawyers moved on to new arguments because they want to win. Look at articles on these topics. You hear discussion of the arguments that the lawyers are hoping will win.

          So yeah, you don’t hear about a decades old losing argument.

          1. “It’s not a deflection, it’s a reason. Those arguments uniformly lost.”

            Many arguments do. That has nothing at all to do with their merit.

            “Lawyers moved on to new arguments because they want to win. Look at articles on these topics. You hear discussion of the arguments that the lawyers are hoping will win.

            So yeah, you don’t hear about a decades old losing argument.”

            Which changes exactly nothing about your defelction. You’re discussing tactics.

            1. … so you didn’t actually want to know why you don’t hear about the 13th Amendment then?

              If so, that’s not me deflecting anything, it’s me triggering your trap card.

              1. No ACTUALLY, I did. This is a discussion board not a courtroom though, so your explanation wasn’t useful or helpful at all, just a deflection.

          2. “Scopes was found guilty and fined $100 (equivalent to $1395 in 2017), but the verdict was overturned on a technicality. The trial served its purpose of drawing intense national publicity, as national reporters flocked to Dayton to cover the big-name lawyers who had agreed to represent each side. William Jennings Bryan, three-time presidential candidate, argued for the prosecution, while Clarence Darrow, the famed defense attorney, spoke for Scopes. The trial publicized the Fundamentalist?Modernist Controversy, which set Modernists, who said evolution was not inconsistent with religion,[4] against Fundamentalists, who said the word of God as revealed in the Bible took priority over all human knowledge. The case was thus seen as both a theological contest and a trial on whether “modern science” should be taught in schools.”

            Scopes lost. How’d that work out?

            1. To quote myself:

              […] you should learn the difference between explaining something and approving of that something.

              That said? You’ve accused me of “deflection”. That wasn’t my intent. My entire intent was to answer what I thought was a sincere musing. Your pointless attack on me, however, has definitely “deflected” from whatever discussion you wanted to have.

              So cheers mate.

              1. “Your pointless attack on me”

                Huh? You think I ATTACKED you?

                Stop it. Leave if you want but stop makimg things up.

                1. Quote it. Quote the attack. I’m sincerely curious as to what rises to the level of an attack, and expect to have a good laugh.

                  1. Honestly, I think you realized you didn’t have much to offer, misunderstood what was actually being asked, and needed a reason to leave while saving face.

                    How close am I?

                    1. “TuIpa|10.29.18 @ 3:51PM|#

                      And? That’s not a response it is a deflection”

                      Is that the attack? Because lol.

                      “TuIpa|10.29.18 @ 4:06PM|#

                      Many arguments do. That has nothing at all to do with their merit.

                      Which changes exactly nothing about your defelction. You’re discussing tactics.”

                      Or that? Because lol.

                      “TuIpa|10.29.18 @ 4:07PM|#

                      And you should learn the difference between the law and tactics.”

                      Or that? Because lol.

                      “Scopes lost. How’d that work out?”

                      Or that because llolol.

                      There’s nothing remotely resembling an attack in any of my responses to you.

                    2. Yeah, that’s about what I expected.

                    3. Call me uncharitable, but when you repeatedly and deliberately confuse me explaining something with me approving of that thing, even after I have explicitly corrected that confusion, I’m going to call that a character attack. Especially when you go upthread to call me out, by name, to misrepresent what I have said.

                      That said, yes, I obviously have nothing left to add. Your deliberate misrepresentations have killed any chance for a reasonable conversation. So seeing as reasonable is out of the question, this is just for fun now, yes?

      2. We should probably give up on them then. I mean I know when the courts ruled against an individual right to gun ownership libertarians just gave up on those arguments, right?

        1. Black people can’t testify, it was ruled upon.

        2. We should probably give up on them then.

          Go for it. But before you blame it on me, you should learn the difference between explaining something and approving of that something.

          1. And you should learn the difference between the law and tactics.

  9. Will Supreme Court Tackle More LGBT Cases Next Term?

    I though they were already rounded up and put into camps because that rapist monster Kavanaugh was put on the court to ensure Drumpf could become dictator.

  10. Will Supreme Court Tackle More LGBT Cases Next Term?

    I though they were already rounded up and put into camps because that rapist monster Kavanaugh was put on the court to ensure Drumpf could become dictator.

    1. I seem to be having trouble commenting. . .

      1. Hang in there. The website does function from time to time, so be patient grasshopper

  11. Does federal law that prohibits discrimination on the basis of sex also inherently prohibit discrimination on the basis of gender identity, and possibly even sexual orientation?

    No, of course not.

    If we want it to (and that would be consistent, and, as long as we have the CRA, in keeping with its spirit), Congress can fix that with a simple amendment of the Act.

    But “sex” didn’t become all of those things simply because that’s more convenient than getting new laws passed, no matter what gyrations District Courts went through to pretend otherwise.

  12. This article says justices “vote.” That is not the right word. A justice issues a written decision based on specific information. Vote would imply something different, where anything could come into the decision.

  13. Something tells me that originalist Kavanaugh is going to leaf through the Constitution and its amendments and not find anything *explicitly* saying that gays are people. I think Sessions’ “Religious Liberty Task Force” is about to have a bumper year or two.

    1. To Kav, gay is what happens after drinking the beer he likes and before his weak stomach gets the better of him. Sure, he’s raping a woman, but their dicks are all out in front of each other, which, umm, gay.

      1. Yeah Tony, believe all woman. No wonder you kind lynching Emmit Till. You haven’t changed a bit have you.

      2. Sure, he’s raping a woman

        You get that no one even accused Kavanaugh of rape, right? And you wonder why no one here takes you seriously.

  14. Gays should form a church, declare gay marriage and gay sex to be sacraments, and watch old-timey right-wing bigots twist themselves into pretzels during ensuing the religious liberty lawsuits.

    How could anyone oppose a church founded on love and liberty, blessed by goodwill and modernity, that offers oft-oppressed citizens a path to redemption and acceptance?

    After it has been established that this church enjoys every bit of privilege that the Republican-approved superstitions receive at law, it can make abortion a sacrament, and watch the conservative heads explode.

    Carry on, clingers. Especially the “Libertarians For Bigotry.”

    1. Rev, everybody!
      As irrelevant, impotent, and mediocre as always

      1. If guys like me are so impotent, how did we win the culture war and turn right-wing bigots into a bunch of whimpering, muttering, inconsequential, losers?

        Carry on, clingers. Until your betters decide it’s time to put you in your place again.

    2. Leave it to Artie to take a generally meaningless discussion and reduce it to complete tripe.

  15. The CRA is unconstitutional.
    It’s served its purpose, but now needs to go.
    I expect chemjeff to join me in this opinion, since he’s such a proponent of free association.
    Chemjeff, anything to add?

    1. I don’t know why you are singling me out since I have just barely arrived to this discussion.

      I would be fine if the CRA went away at the federal level.

      I’m not going to get hugely worked up over it though.

      1. Ok, but I find your dispassionate response to the CRA confusing in light of your strong feelings regarding border control.
        Could you explain?

  16. It’s kind of odd when people with mental illness demand recognition.

    1. They have it under the Americans with Disabilities Act, but that’s not the route they’re using in these bathroom and locker room cases.

      They could lay claim to a mental disability and demand accomodation. Maybe an activist Court might agree. They let a physically-disabled guy play golf in a wheelchair, after all.

      But that isn’t the politicallly correct route, they’re saying “we’re chicks with dicks (or guys with hoohahs) and it’s perfectly normal. You’re the ones who are crazy for fighting our just demands!”

      1. If your golf reference is to Casey Martin, the issue was not whether he could play golf in a wheelchair. He sued under the ADA to be allowed to play on the PGA tour while using a golf cart to travel the course because his physical condition severely limited his ability to walk. A large number of pros, including Tiger Woods (who had played with Martin while at Stanford) supported his petition. While Martin’s suit worked its way through the courts he was allowed to play in PGA events but was not able to play regularly. His best year was 2000, when he made 14 cuts and won $143,000. In 2006 he was named coach of the men’s golf program at University of Oregon, which won the 2016 Mens Division 1 NCAA Golf Championship.

      2. They’re saying, “we’re mentally ill and that’s the new normal. We want your children and loved ones to be mentally ill too.”

        All the retards are fine with that.

  17. The measurement of ATP using firefly luciferase is the most commonly applied method for estimating the number of viable cells.
    ATP Cell Viability Assay

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