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Free Minds & Free Markets

Debate: Bakers Should Not Be Forced To Produce Cakes for Same-Sex Weddings

How should we feel about conscience-based discrimination?

AFFIRMATIVE:
Don't Use the Law To Compel Conformity

Manuel S. Klausner

Joanna AndreassonJoanna AndreassonLibertarians generally take a live-and-let-live approach, advocating freedom of association over anti-discrimination mandates. Moreover, a key aspect of libertarian policy is a commitment to choice and consent in personal and business relationships.

This approach is embodied in the Libertarian Party's 2016 platform, which reads: "Libertarians embrace the concept that all people are born with certain inherent rights. We reject the idea that a natural right can ever impose an obligation upon others to fulfill that 'right.' We condemn bigotry as irrational and repugnant. Government should neither deny nor abridge any individual's human right based upon sex, wealth, ethnicity, creed, age, national origin, personal habits, political preference or sexual orientation. Members of private organizations retain their rights to set whatever standards of association they deem appropriate, and individuals are free to respond with ostracism, boycotts and other free-market solutions."

During his 2016 presidential election campaign, candidate Gary Johnson unexpectedly stated in a debate not only that a Christian baker should be forced to design a cake for a gay wedding but also that a Jewish baker should be required to prepare a cake for a Nazi wedding. Others in the party criticized that rejection of the principles set forth in the L.P. platform, but Johnson refused to modify his position. This hurt him with his base, since many libertarians viewed his claim as flawed and indefensible.

Underlying the libertarian view on this issue is the recognition that in a market economy, there is a built-in financial disincentive for a baker to decline to sell to a potential customer. As support for gay marriage increases in America, it becomes increasingly unlikely that gay couples will encounter serious difficulty in finding a florist or baker for their weddings. When one vendor turns a couple away, there are numerous others lining up to win that couple's business. The economic harm falls squarely on the person with the moral qualms.

There's no doubt that emotional harm can result from being turned away from a business establishment because of who you love. But surely there is also harm when an American is forced to participate in an event that is contrary to his or her deeply held beliefs. A voluntary, market-oriented approach is the best way to reconcile the competing interests in such situations.

Reason Foundation filed an amicus brief with the U.S. Supreme Court in the case Masterpiece Cakeshop v. Colorado Civil Rights Commission. Like most libertarians, we believe that vendors should not be required by law to design and sell custom products for same-sex weddings to which they have conscience-based objections.

Reason has favored gay civil unions since the 1970s, long before they received widespread support. But we've always insisted that the law respect views held by minorities, and as libertarians we oppose using coercion to compel conformity in the private sector.

Support for same-sex marriage in the U.S. is at its highest point since Pew Research Center began polling on this issue in 2001. As of 2017, more than six in 10 Americans supported same-sex marriage; just 32 percent opposed it. Today, the small number of business owners who object to providing services for gay weddings are the minority whose rights need protecting.

In June, the Supreme Court ruled 7–2 in favor of Masterpiece Cakeshop's Jack Phillips based on the Colorado Civil Rights Commission's apparent hostility to his religious views. In the majority opinion, Justice Anthony Kennedy noted that the commission had permitted at least three other bakers to refuse to provide cakes expressing sentiments opposed to same-sex marriage, even as it threw the book at Phillips for not wanting to use his artistry to endorse a same-sex wedding.

Yet the decision failed to resolve this issue once and for all in favor of business owners with moral reservations. It left open the possibility that laws compelling bakers and florists to participate in marriage celebrations against their will could be upheld, as long as the state or city applied the regulation even-handedly.

"A voluntary, market-oriented approach is the best way to reconcile competing interests."

No one could credibly argue that gay marriage in Colorado is threatened by Phillips' religious convictions. But liberty is threatened, both by the heavy-handed conduct of the Colorado Civil Rights Commission and by Justice Kennedy's short-sighted opinion.

If and when this question returns to the Supreme Court, the justices should invoke the twin First Amendment protections of expressive speech and religious freedom to convincingly support tolerance for unpopular views in a pluralistic society.

NEGATIVE:
Cake Baking Simply Is Not Speech

Eugene Volokh

The Free Speech Clause, the Supreme Court has long held, protects the freedom not to speak as well as the freedom to speak. And this freedom not to speak must include the freedom not to create speech, and not to participate in others' speech.

A freelance writer shouldn't be forced to write press releases for the Church of Scientology, even if he's willing to work for other religious groups. A musician shouldn't be forced to play at Republican-themed events, even if he plays at other political events, and even in a city (such as Seattle or D.C.) that bans businesses from discriminating based on political affiliation. Likewise, a photographer shouldn't be forced to create photographs celebrating a same-sex wedding, and a wedding singer shouldn't be forced to sing at such a celebration.

But this right must have its limits. It is a free speech clause, not a freedom of action clause, and courts thus must distinguish speech (and a limited zone of symbolic expression that is basically tantamount to speech) from other behavior.

The Free Speech Clause doesn't give a limo driver a legal right not to drive a couple from their same-sex wedding. It doesn't give a chef a right not to serve certain people at his restaurant. Subway calls its sandwich makers "sandwich artists," but that doesn't give it a Free Speech Clause right to discriminate among would-be patrons of such arts. The same is true for bakers, even ones who create beautiful cakes for use at weddings. It is generally constitutional—whether or not wise or just—for the law to compel behavior, and only a small subset of such compulsions violates freedom of speech.

Courts have recognized the need to distinguish speech from conduct when it comes to speech restrictions, and the Supreme Court has rejected "the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." A city would violate the First Amendment by, say, restricting the number of newspapers or freelance writers that may operate there. But a city may limit the number of butchers or cab drivers—unwise as such regulations usually are—because those activities aren't treated as speech.

The same is true for restaurants or bakeries, even ones that create beautiful dishes or beautiful cakes. And if a restriction on the ability to bake cakes isn't a speech restriction, then a requirement to bake cakes (even for ceremonies one disapproves of) isn't a speech compulsion.

Now, requiring a baker to make a cake containing pro–gay marriage text or pro–gay marriage symbolic expression—pictures of two grooms or a rainbow motif, say—would indeed be compelled speech. But in the Masterpiece Cakeshop case, the baker apparently refused to make any cake for a same-sex wedding, without even discussing the design. That's a refusal to do, not a refusal to speak.

Nor is it enough that wedding cakes are supposed to be aesthetically pleasing. Hairstyles are similarly aesthetic, and can convey links to particular attitudes. But a hairdresser who, for instance, refuses to do cornrows for a white customer or refuses to cut a woman's hair in what he sees as an improperly masculine style can't claim a First Amendment freedom from compelled speech. For every Masterpiece Cakeshop there is a Masterpiece Hair and a Masterpiece M.D. plastic surgeon—and even a Masterpiece Limousine and a Masterpiece Plumbing (all real business names). The Free Speech Clause does not protect them all.

To be sure, if you believe religious objectors should be presumptively exempted from generally applicable laws—for instance, under the Free Exercise Clause—you might think this covers bakers who think it's sinful to prepare cakes for same-sex weddings. (That would then raise difficult questions about when the presumption of religious exemption can be rebutted.) But the Supreme Court has held that the Free Exercise Clause doesn't secure such a right; that provision generally protects only against deliberate religious discrimination by the government. (The Court in the Masterpiece Cakeshop case found evidence of such discrimination in the Colorado proceedings, but that won't be so in many other similar cases.) The federal Religious Freedom Restoration Act (RFRA), which authorizes some such exemptions, doesn't apply to state laws. And Colorado doesn't have its own RFRA.

Our Constitution isn't a libertarian document. It is a document that creates a charter for democratic government, with some protection for specific individual liberties, but generally in specific, identified zones. The freedom to speak—and not to speak—are included. But those freedoms don't cover everything, and they don't cover cake making.

Photo Credit: Illustration: Joanna Andreasson. Photo: GeorgePeters/iStock

Manny Klausner, a former editor of Reason and co-founder of Reason Foundation, heads Reason’s amicus brief program and served two terms as a member of the California State Advisory Committee to the U.S. Commission on Civil Rights.

Eugene Volokh is the Gary T. Schwartz Professor of Law at the UCLA School of Law and co-founder of the Volokh Conspiracy blog, now hosted at Reason.

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  • MasterThief||

    Wow, Volokh. It almost looked like you were going to arrive at the right answer but then you turn around and twist things illogically. I personally think that the case being argued on speech and religious arguments was a little weak. I'll agree that a cake isn't speech, but to say that the first amendment doesn't cover expression more broadly than words weakens the whole thing. Further, the reason a person shouldn't be forced to "bake the damn cake" is because this is a custom contractual job. If a business or individual does not have the right to refuse to enter into a contract then we rapidly encroach on slavery. Yes, that statement is a bit hyperbolic but how else do you describe the slippery slope upon which a person's labor and resources must be used for certain proposals despite the owner's objections. In a sense this is imminent domain (theft) as well as slavery. While slippery slope arguments are a logical fallacy it's difficult to not make them when things seem to keep sliding down that hill.

  • SQRLSY One||

    Yeah man, I agree! If I can be forced to bake a cake ('cause it's not speech), then if I am into taking contract jobs for painting custom paintings for customers, I can be forced to paint a painting glorifying Hitler or Der TrumpfenFuhrer, 'cause that's not speech either! And even as a ghost-writer, I could be forced to ghost-write some NAZI trash, too, 'cause strictly speaking, it's not speech, it's writing! Just like the writing on the cake!

    And on a practical level, come on now, just HOW easy would it be for the politicians to write some laws around gay marriage, for cake bakers and wedding photographers and so forth? Easy peasy! We can exempt the cake bakers while treating emergency rooms and hotels differently, duh!!!! ... If there's a bunch of hair-pulling about this kind of crap, why not just bypass the fighting until if-when (if ever) nearly everyone agrees that it is NAZI-like to disapprove of gay weddings?

  • dunstvangeet||

    Your analogy is invalid, because you're changing the content of the painting, rather than just the customer. Your analogy of the "hitler" painting is invalid.

    In the Masterpiece Cakeshop case, Mr. Phillips had no problem with the content of the cake. He makes wedding cakes all the time. However, he was not willing to make a wedding cake for a gay couple, even if it was the same exact wedding cake he would make for a straight person. So, it obviously wasn't the content of the cake that actually offended him, but the customers.

    A better analogy would be, "If I can be forced to do this, then that also means that I may have to sell food in my restaurant to black people! How dare they demand equal service."

  • Get To Da Chippah||

    In the Masterpiece Cakeshop case, Mr. Phillips had no problem with the content of the cake. He makes wedding cakes all the time. However, he was not willing to make a wedding cake for a gay couple, even if it was the same exact wedding cake he would make for a straight person. So, it obviously wasn't the content of the cake that actually offended him, but the customers.

    I believe he was asked to specifically bake and decorate a wedding cake for a same-sex marriage, which also involved adding custom lettering to the cake. He was willing to sell an undecorated cake to the couple and let them have someone else write whatever they wanted on it but that wasn't sufficient for the people who sued.

    Later he was asked to bake a custom cake for someone transitioning (blue cake with pink frosting, or the reverse), which is still asking for a custom cake for an event he found objectionable. He refused and is now being sued for that.

  • dunstvangeet||

    You were wrong. He was told that they were there to pick out a wedding cake for their wedding. It was at this point that he denied service (Joint Appendix, page 59-60 for Mr. Phillips own discription of the event). At no time before his denial of service was any design for the cake discussed. He further indicated that he'd deny any wedding cake to gay couples, no matter how it was decorated. (Joint Appendix, page 64, he states that Mr. Mullins and Mr. Craig are not free to order a wedding cake at his place).

    So, let's take a look at this wedding cake: http://masterpiececakes.com/wp.....Cake_7.jpg

    He has absolutely no problem making this wedding cake (I took it off of his website. I'd presume that it's one that he's immensely proud of.). However, if a gay couple would come in and say, "I think that cake looks beautiful. I'd like a cake exactly like that one." He'd say, "I'm sorry, I don't do gay weddings."

    So, Mr. Phillips has no problem with the wedding cake what-so-ever. It's not the cake itself that he's denying it. It's the fact that a gay couple is using that cake.

  • SQRLSY One||

    "I'm sorry, I don't do gay weddings."

    He's a free human... Not a slave. I personally disapprove of discriminating against gays. But enslaving people comes at a terrible price! We can split the difference somewhere between an emergency room doctor and a cake-baker, but no one ever died for the lack of a cake!

    You'd be more effective in fighting the good fight if you checked your self-righteousness at the door, when entering into public debate. Just FYI, a thought for you to consider...

  • dunstvangeet||

    And obeying anti-discrimination laws is not slavery (Heart of Atlanta Motel v. U.S.).

  • dunstvangeet||

    And obeying anti-discrimination laws is not slavery (Heart of Atlanta Motel v. U.S.).

  • loveconstitution1789||

    When you force others to work for people they dont want to, it's slavery.

    More and more Americans are fighting against this modern slavery.

    it infuriates Lefties because their plan for modern slavery is falling apart. The Democrats lost the Civil war and decided to turn the USA into a socialist shithole. It almost worked.

    Trump is the patriotic answer to Lefty's push for Socialism.

  • dunstvangeet||

    Obeying anti-discrimination laws is not slavery. (Heart of Atlanta Motel v. U.S.)

    Not discriminating against people is not slavery, plain and simple.

  • loveconstitution1789||

    Its slavery.

  • dunstvangeet||

    Supreme Court: "We find no merit in the remainder of appellant's contentions, including that of "involuntary servitude." As we have seen, 32 States prohibit racial discrimination in public accommodations. These laws but codify the common law innkeeper rule, which long predated the Thirteenth Amendment. It is difficult to believe that the Amendment was intended to abrogate this principle. Indeed, the opinion of the Court in the Civil Rights Cases is to the contrary as we have seen, it having noted with approval the laws of "all the States" prohibiting discrimination. We could not say that the requirements of the Act in this regard are in any way "akin to African slavery." Butler v. Perry, 240 U.S. 328, 332 (1916)."

    Even the dissenting opinion in Heart of Atlanta Motel v. U.S. rejected the view that obeying anti-discrimination laws is slavery.

  • retiredfire||

    The Supreme Court ruled that Dred Scott wasn't a citizen.
    They're not infallible.
    Libertarians shouldn't accept what Volkoh says, that "It is generally constitutional for the law to compel behavior". He even uses the wriggle-words "whether or not wise or just".
    We should be looking for laws, especially ones that come from afar, that we have little control over, that ARE wise and just. Not ones to placate "victims" - the panoply of which is constantly expanding.
    Eventually, those who are constantly being told they must have their rights curtailed, so that others may be granted additional ones, will respond as have the ones, the laws try to placate.
    That will not be pretty.

  • Barry Gold||

    Exactly: He's a free human, not a slave.

    "I swear by my life and my love of it that I will never live for the sake of another man, nor ask another man to live for mine."

  • Fredo||

    "However, he was not willing to make a wedding cake for a gay couple, even if it was the same exact wedding cake he would make for a straight person"

    Except it wasn't and you have your facts wrong, which is probably why you also incorrectly think a valid analogy is not valid.

    I will never understand why you think you can argue these things by lying about them. It's what you anti-freedom types do, but you always get caught.

  • dunstvangeet||

    Actually, he refused to make any and all wedding cakes for a gay couple. He denied service when he knew two, and only two, pieces of information: it was a gay couple, and they wanted a wedding cake.

    This comes directly from Mr. Phillips own words of the incident, contained in the Joint Appendix, pages 59-60.

  • loveconstitution1789||

    Not true. They could have bought a ready made cake from the baker.

  • dunstvangeet||

    Um, that comes directly from Mr. Phillips own words. All they asked for was a wedding cake for their wedding. He quickly stated that he doesn't do gay weddings.

    He later offered them cakes for other occassions in the future, but he directly said that they were not free to order a wedding cake from them.

    There also is no such thing as a ready-made wedding cake. Wedding cakes are often ordered 6 months in advance. Mr. Phillips does not have any ready-made wedding cakes. Don't believe me, go down to your bakery and ask for a ready-made wedding cake. They'll look at you funny.

  • Last of the Shitlords||

    Either way, it's custom work. No one is obligated to engage in custom work. Otherwise I could compel every gun store to sell me a plasma rifle in the 40 watt range. As opposed to what I see on the shelf.

  • dunstvangeet||

    Actually, he is obligated to engage in custom work, if he offers his custom services to the public. There is no custom exception to the public accommodations law. If he offers customization services, he cannot refuse to do those services on the basis of sexual orientation.

    The law requires that he provides "the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation". So, if custom work is one of the services of his public accommodation, he cannot refuse to do it just because the couple is a same-sex gay couple.

    He can veto a design, as long as he would refuse to make that design for everybody. However, he cannot refuse to make a gay couple a cake that he would make for a straight couple.

  • retiredfire||

    That's fine - if you believe that the completely anti-libertarian "public accommodation" laws are a legitimate exercise of government taking our liberties.
    That's the bottom line, here.
    Volokh seems to think they are fine.
    The strict libertarian position is that they are not and remove from individuals and private businesses their freedom.
    The Constitution was intended to be a restriction on government, particularly the federal one. It was not to be used to compel the people to behave in an approved manner.
    Too many rulings by the SC have turned it into just that.

  • JesseAz||

    Way to prove how fucking ignorant you are of religious rites and beliefs. You'd probably also force a Catholic priest to host a black mass. After all it's just another mass he does all the time right? Go fuck yourself moron.

  • dunstvangeet||

    Catholic Priests are not public accommodations. Bakeries are. If the bakery offers a wedding cake to one group of people, he cannot deny that same wedding cake to another group based upon a protected classification. Sexual orientation and gender are both protected classes.

  • BigT||

    "Sexual orientation and gender are both protected classes."

    Some animals are more equal than others. Immoral and unconstitutional.

  • dunstvangeet||

    Last I checked, everyone had a sexual orientation, and everyone had a gender. So, how is it "more equal than others"?

  • loveconstitution1789||

    Gay people have abnormal sexuality compared to most humans.

    Who cares thought. They dont get to force their abnormality on people amd people don't get to force their straightness on gay people.

  • dunstvangeet||

    Funny, you force your straightness on people all the time. Walk down the street holding the hand of your wife forces me to view your straightness. Kissing your wife on the cheek forces your straightness on me. Keeping a picture of your wife on your desk forces your straightness on me.

    But as far as the "abnormal sexuality", homosexuality is actually a normal sexuality that occurs naturally within all animals. So, your argument that it's "abnormal" also is irrelevant to the issue.

  • retiredfire||

    Your delusion of believing you are physically attracted to the same sex, extends to one of believing that " homosexuality is actually a normal sexuality that occurs naturally within all animals".
    In fact, what homosexuals practice is not any kind of sexual union, at all, just forms of mutual masturbation. Hardly any animals participate in such activities.

  • dunstvangeet||

    Retiredfire, homosexual activity has been seen in over 450 different species of animals. It's been seen in about 10% of animals.

  • SQRLSY One||

    The slippery slope in built into our very existence. If I can put you in jail for murder, I can put you in jail for spitting on the sidewalk. If I allow you to drink that cup of water, next thing you know, you'll be drinking all of our oceans dry. We just have to make those judgment calls, partways down the slippery slopes..

    And I think that if I were an emergency room doctor, I could argue that I am very creative with my stitches, and my care there represents speech, in the form of, "I think that this patient should live a little longer".

    Dang it, we can require emergency room doctors to NOT discriminate, while allowing cake-bakers to do so!!!

  • JFree||

    The difference between those two imo is that ER stuff is TRUE public accommodation - baking a cake for a wedding is not. The mere denial of service in the former causes real harm (elimination of their natural rights as humans - not merely their civic-granted feelings) to the person being denied - esp when the entity doing the denying overtly lies about the services that it actually provides.

  • dunstvangeet||

    Public accommodations include bakeries. The Americans with Disabilities Act specifically lists bakeries as being public accommodations, and public accommodations from the inception of the laws, have included places where food is both sold, and consumed.

    Your definition of "public accommodation" is too narrow.

  • SQRLSY One||

    Do you really honestly see no difference in the two flavors of "public accommodation", ER services to save your life v/s having a gay-wedding cake baked for you, by people who don't approve of gay weddings?

    Do you see ANY limit to what Government Almighty can do, along the lines of serving everyone in your line of work? Can I as a ghost-writer be forced to accommodate a customer who wants me to write a book, and espouse the exact opposite of what I myself actually believe? How is that different from putting gay-wedding-supporting icing-writing on a cake?

  • Last of the Shitlords||

    No mmatter re gay cakes.

  • JFree||

    Katzenbach v McClung specifically ruled on the issue of restaurants re CR Act of 1964. It was a unanimous opinion (and I certainly agree with the ruling) but it was decided on the basis of interstate commerce. And using the crappy definitions of interstate commerce deriving from Wickard v Filburn. so eg since the wheat flour that the restaurant/bakery uses originates from out-of-state, then the federal govt is authorized to regulate what that establishment does re its customers. That's just crap.

    It avoids the actual tough issues of what is actual public accommodation from the perspective of all the different parties. Simply letting the govt define whatever the fuck it wants is judicial subservience that eliminates natural rights of individuals.

  • dunstvangeet||

    Interstate commerce has nothing to do with the Masterpiece Cakeshop ruling. In Masterpiece Cakeshop, you have a STATE law (CRS 24-34-601(a)(2)), a STATE government enforcing that law (State of Colorado Civil Rights Commission), and a STATE action against the baker (hense the name Masterpiece Cakeshop v. Colorado Civil Rights Commission). Interstate commerce has no bearing, because it's not a Federal Case.

    Or are you actually arguing that the State of Colorado has absolutely no right to regulate commerce within it's own state, unless it crosses another state? That is an idiotic argument.

  • JFree||

    The Masterpiece Cakeshop ruling set absolutely no precedent for anything either. It was a very narrow ruling - which is why he is being sued again and there will be another case up at the SC before too long.

  • SQRLSY One||

    Fucking lawyers and judges and other slime leeches!!!!!

    Of course the rulings are narrow!!! Future job guarantees for... fucking lawyers and judges and other slime leeches!! For more endless hand-wringing, lawsuits, and court cases!!!!

  • dunstvangeet||

    Then why even mention the Interstate Commerce clause. It has no application in this case, or are you arguing that the State of Colorado has no right to regulate commerce happening within it's own state?

    Katzenbach v. McClurg is not a precedent, because that had to do with a Federal Case, not a State one. The State of Colorado actually already ruled on the status of their law, and they ruled that Masterpiece Cakeshop violated the law.

  • loveconstitution1789||

    Colorado's state ruling that the baker violated any law is incorrect, which is why the state lost in the SCOTUS.

    Colorado state is saying that a baker must create cakes not matter what the religious objections to that creation might be.

    The SCOTUS rightly corrected Colorado as being incorrect.

  • dunstvangeet||

    Actually, no they didn't. Even the Supreme Court said that vendors could not put out signs that said, "No goods or services will be sold if they are to be used in gay weddings."

  • JFree||

    Then why even mention the Interstate Commerce clause.

    Because YOU mentioned that bakeries/restaurants were 'public accommodations'. So I mentioned that the ACTUAL SC decision that dealt with 'public accommodations' re restaurants re the CRA1964 made its correct decision on a crappy 'interstate commerce' basis not any actual rights of any individual humans.

  • dunstvangeet||

    Not really, none of those cases really dealt with what is a public accommodation, and what is not. In fact, in both Masterpiece Cakeshop, and Katzenbach v. McClurg, both places admitted to be public accommodations. Neither of those cases were about whether Ollie's Barbeque, or Masterpiece Cakeshop were public accommodations. It was whether or not the law was constitutional (under the Inter-state Commerce clause under Katzenbach v. McClurg, and under the 1st Amendment for Masterpiece Cakeshop). The Supreme Court, in both those actions, upheld the law (not necessairly the application of that law) to be constitutional.

    But bakeries are public accommodations. Under Federal Law, they are defined as such explicitly in the Americans with Disabilities Act (42 USC 12181) defines it (in part) to be: "(E) a bakery, grocery store, ... or other sales or rental establishment"

    The Colorado Anti-Discrimination defines public accommodation as: "any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering wholesale or retail sales to the public; any place to eat, drink..."

    You can agree that bakeries, which offer both a place to eat, and also engage in retail sales to the public, to be a public accommodation.

    My definition that bakeries are public accommodations don't actually come from the Supreme Court, but from the law itself.

  • JFree||

    My definition that bakeries are public accommodations don't actually come from the Supreme Court, but from the law itself.

    So you're saying that govt can define words however it wants to define them - with no reference to anything outside that momentary legislation - and then can ensure no challenge to that in court because it defined the word.

    1A has very clear language - Congress shall make no law respecting etcetc. So it can create any law it wants. All Congress has to do is define 'religion', 'free speech', etc as 'things which are by definition outside the purview of all congressional legislation'. Then pass any law it wants about anything. And by definition, it will not transgress the 1A.

  • dunstvangeet||

    Your argument is a straw-man argument, and you actually know it. I'd expect better from you.

    And yes, when passing legislation, the government has the right to define the words that they use in that legislation. What you're actually arguing is that the government has no right to define the words that it uses in that legislation, and therefore what violates that laws.

    You're argument is ridiculous, and you know it. Your argument that the government has no right to define the words that the government uses in the legislation is idiotic, frankly.

    You stated that Masterpiece Cakeshop and Ollie's Barbeque were not public accommodations (which under the CRS 24-34-601(a)(1) and the Americans with Disabilities act is completely false), seeming to state that the Americans with Disabilities Act and that the Colorado Anti-Discrimination Act does not apply to them. Then you state that the definitions in that act, which apply to that act, really don't apply, because the government has no right to define the words that it uses in the legislation.

    Your argument is ridiculous on it's face.

  • loveconstitution1789||

    The government is limited by the US and state constitutions.

    SCOTUS ruked against colorado and will again in gay cakes part deux.

  • dunstvangeet||

    SCOTUS actually specifically upheld the law, but went off of the application of the law. From the Supreme Court ruling: "It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public."

    The court was not about to uphold a general rule that religious freedom trumps a anti-discrimination law. In fact, they stated in their decision: "Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. ... Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law."

  • retiredfire||

    "Our society has come to the recognition..."
    Well, there's some objective metric to apply.
    How about if "our society has come to the recognition" that National Socialism is the best way forward. You good with that?
    Or that there shall be open season on anyone not covered as "protected"?
    Ah, you self-important assholes probably would.
    Fuck off, slaver!

  • JFree||

    What you're actually arguing is that the government has no right to define the words that it uses in that legislation, and therefore what violates that laws.

    No I'm arguing that when it uses existing words those words have to be reasonably commonly understood. And the use of 'public accommodations' in law has a meaning that specifically addresses the natural rights of individual Americans as to what they can expect from others. Not about creating a trigger word that allows govt to do wtf it wants.

    Katzenbach had to use the broadest interpretation (interstate commerce) allowing unlimited federal intervention in the CRA1964 - because that is what was needed to get rid of Jim Crow. Yes it's overreach - but it's overreach that was delayed for 100 years by a bunch of legalistic bullshit. A delay which was killing people the entire time - Chaney Goodman Schwerner were killed two days after the CRA passed the Senate (with Goldwaters vote against). And they were able to be hunted because no white-owned business in that county would even provide them with access to a phone after dark (there was no 'law' prohibiting that - just not done) - and no one would protect them.

    Sorry - gay wedding cakes does not even remotely compare to that re 'public accommodation'.

  • JFree||

    From the 1963 Green Book (the only travel guide that specifically provided info for blacks who were traveling) - not a single place in either Philadelphia or Neshoba County. The closest town with even motel rooms for black travelers then was Meridian (40+ miles away from Philadelphia) - and only three restaurants in the entire state then that were deemed safe for black travelers (segregated restaurants were only safe for local blacks known to be compliant/subservient).

  • retiredfire||

    But the majority of those restrictions were laws passed in those areas.
    Do you think the authors of the Green Book talked to every, single business and included each one's policy?
    The federal government had the right to say to those governments that they could not enforce such laws, but the overreach, and why Goldwater, and many others, objected, was in forcing individuals and private businesses to do what those laws did, but in reverse.
    In doing so, removed the freedom to make their own choice.
    A clear case of government trying to right a wrong by imposing another wrong.
    Access to a phone was not going to do anything to deter the murderous assholes from killing the three civil-rights workers. The blame is on the ones committing the crimes, not the idea that they had no protection from being hunted.

  • JesseAz||

    No one has ever been endangered from lack of baked goods. The original impulse for public accommodation was for safety and protections: shelter, healthcare, right to fix transport in a random location, etc.

  • Francisco d'Anconia||

    The difference between those two imo is that ER stuff is TRUE public accommodation

    NO!

    From libertarian foundations (NOT law):

    The doctor has every right to treat who he pleases. BUT:

    1. If he's working in a government funded hospital, he IS the government and cannot discriminate. It is perfectly justifiable to place ANY limits on government we see fit as government doesn't have rights, it has very specific powers granted by the Constitution/people.

    2. If he's working in a private hospital, his employer can put any contractual condition upon his employment he sees fit. If that condition offends the doctor's sensibilities, he can quit and find other employment.

    Other than that...ANY attempt to force the doctor to treat someone he's opposed to treating is a violation of the doctor's rights (agree with him or not) and isn't allowed based upon libertarian principle.

    THE POINT, is that law (and even the Constitution) don't always yield a libertarian result and a libertarian site should be advocating that the laws/Constitution (if need be) be modified to reflect libertarian principle.

  • Fredo||

    "From libertarian foundations (NOT law): "

    Cool but we are discussing reality here, not your wishes.

  • Francisco d'Anconia||

    No. This is a libertarian site. The premise specifically used the word "should"

    Debate: Bakers Should Not Be Forced To Produce Cakes for Same-Sex Weddings

    How should we feel about conscience-based discrimination?

    We are discussing how the world should be based upon libertarian principle. If you want to debate law, I'm sure there are sites for that.

  • Fredo||

    "We are discussing how the world should be based upon libertarian principle"

    No actually, you are. We are not.

    " If you want to debate law, I'm sure there are sites for that"

    And this is one.

    So fuck off now boy.

  • Fredo||

    "Francisco d'Anconia|9.16.18 @ 2:01PM|#

    Eugene Volokh is arguing from a US Constitution-as-currently-interpreted point of view, not as a libertarian.
    THIS"

    "Francisco d'Anconia|9.16.18 @ 1:56PM|#

    We are discussing how the world should be based upon libertarian principle. If you want to debate law, I'm sure there are sites for that."

    I love that you're too stupid to realize you proved yourself wrong.

  • Francisco d'Anconia||

    Francisco d'Anconia|2018/09/16 10:51:52|#7466652

    Our Constitution isn't a libertarian document. It is a document that creates a charter for democratic government, with some protection for specific individual liberties, but generally in specific, identified zones.
    You present your argument (poorly) based upon the Constitution and current law. IOWs, you are arguing what is (agan, I stress, poorly) rather than what should be (from a libertarian perspective). You didn't address the topic:

    Debate: Bakers Should Not Be Forced To Produce Cakes for Same-Sex Weddings
    (emphasis mine)

    The reason, IMHO, you didn't address the topic is that, from a libertarian perspective, there is NO ARGUMENT that would morally allow one person to initiate aggression/force upon another. PERIOD!

    Clear winner = Klausner
  • JFree||

    ANY attempt to force the doctor to treat someone he's opposed to treating is a violation of the doctor's rights (agree with him or not) and isn't allowed based upon libertarian principle.

    Well I'm not an abstract libertarian. I'm more of a classical liberal.

    Watching someone die - when you have been granted recognition by the state as a 'doctor' and receive privileges for that recognition as well (eg the ability to get medical malpractice insurance when that is not available to either Jack the Ripper or your local butcher) - while refusing to help is a huge violation of NAP at any rate.

    And even if it's not, fuck that. You wanna hang out a shingle as I heal Nazis and only Nazis, then fine. But the fuck I will accept the term 'doctor' itself to be perverted into harmful nothingness merely because of some 'libertarian principle' that you can't even demonstrate has ever existed anywhere on Earth.

  • Francisco d'Anconia||

    Sorry, didn't realize principle needed to first be demonstrated to be valid.

    The bottom line is you are forcing, at the point of a gun, someone, who has not initiated aggression, to do something against their will. You don't get to do that and call yourself a libertarian. Sorry.

  • JFree||

    You don't get to do that and call yourself a libertarian.

    I'm not calling myself a libertarian if it means I have to prove my Scottish ancestry all the way back to William Comyn (which btw I can but I refuse to join any club that would require something like that for a prospective member)

    What your libertarian principle ends up killing is things in the real world like living wills and other self-created medical directives. If none of that applies - because an ER doctor can on a whim of 'personal right' decide to refuse to treat you the way you say you want to be treated - then there are very deadly real-world consequences to your mere principles.

    NO ONE is forcing someone to be a doctor. But if you are holding yourself out as a 'doctor'; then that is not a word that you get to define yourself. Because holding yourself out as that can create expectations that will lead to a bleeding person ending up at your door with no other options at that point. iow - you can market yourself as a doctor and then decide to play God instead?

  • dchang0||

    Re: "while refusing to help is a huge violation of NAP at any rate."

    Withholding assistance is not aggression.

    It's a dick move, but it's not aggression.

    Your core argument is what the French used to pass a Good Samaritan law requiring that passersby help a person in need. But doing so might put the passerby at risk of injury or loss. Not doing so puts them at risk of prosecution.

    That is the government doing active harm to the passerby (definitely aggression).

  • JFree||

    I'm not talking about a Good Samaritan requirement of random strangers who may not have any talent or skill. I'm talking about false advertising (holding yourself out as a doctor without specifying that you are actually Humpty Dumpty) that results in harm.

    "I don't know what you mean by 'glory,' " Alice said.
    Humpty Dumpty smiled contemptuously. "Of course you don't—till I tell you. I meant 'there's a nice knock-down argument for you!' "
    "But 'glory' doesn't mean 'a nice knock-down argument'," Alice objected.
    "When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."
    "The question is," said Alice, "whether you can make words mean so many different things."
    "The question is," said Humpty Dumpty, "which is to be master—that's all."

  • JFree||

    The equivalent in this case is:

    "Oh my God. This gentleman looks like he is having a heart attack. Is there a doctor in the house?"

    "Yes I am a doctor."

    "Oh Thank God. I don't know what to do? How can I help?"

    "Well I don't really care. I don't treat black people."

    Can't have it both ways now. And if the doctor is a dick, then they damn well better not open their mouth and identify themselves as one.

  • Echospinner||

    ED doctors and other medicals have an ethical responsibility and moral code which even government dares not touch. Not perfect but you will be tossed out of the hospital if you refuse to treat a patient based on your moral judgment.

    Nobody loses a leg or life because of cake.

    The argument that a wedding cake is art makes sense. It is the reason you pay much more than the cake is worth as food.

    Volokh is splitting hairs. That is what lawyers do.

  • Rev. Arthur L. Kirkland||

    Not perfect but you will be tossed out of the hospital if you refuse to treat a patient based on your moral judgment

    Pharmacists have claimed entitled to refrain providing services to patients -- and to disregard their employers' wishes that the services be provided to those patients -- based on religion-based privilege.

    I recall that some have been successful in refusing to provide services against an employer's wishes and to the patient's detriment.

  • retiredfire||

    I'll wager that those pharmacists dispute whether their denial of providing their services is "to the patient's detriment" and that it would be doing the exact opposite.
    But to you anti-lifers, you think killing is the best solution.

  • Cloudbuster||

    Our Constitution isn't a libertarian document. It is a document that creates a charter for democratic government, with some protection for specific individual liberties, but generally in specific, identified zones.

    That is the most backward, authoritarian interpretation of the Constitution I've heard recently.

    The only way the 9th and 10th amendments can be sensibly interpreted is in the context of a federal government with few, defined powers and broad protection for many, non-specific liberties.

  • SQRLSY One||

    ^ +1 Cloudbuster!!!

    Sad to say, the 9th and 10th amendments have been replaced by "emanations" and "penumbras" and "aura fields" and what-not, surrounding the constitution, as have been hallucinated into being by the SCROTUS and by our political masters! Which is why I say that hallucinogenic compounds should be legal for the rest of us, at the very least, till such time as we add an amendment saying that Government Almighty can prohibit such compounds... EXCEPT that the hallucinogenic compounds should remain off limits for the SCROTUS and our political masters, because they hallucinate way too much already!

    That is my policy wonk statement, and I am sticking with it!

  • Fredo||

    Yeah, I saw your quote also and wondered who bothered to ask this idiot a question tjey clearly don't understand.

  • ravenshrike||

    It is true that a limo driver cannot refuse to drive people places because they're gay. They can however flat out refuse to decorate the outside of their limo in such a way as to show approval for said marriage. Given that Masterpiece Cakeshop was willing to sell them any number of premade cakes or straight sheet cakes that the couple wanted, I fail to see the difference.

  • Cloudbuster||

    "cannot refuse to drive people places because they're gay"

    No, not "cannot."

    Correct: "is threatened with government force if he refuses to drive people places because they're gay"

    The existence of immoral use of government force "cannot" be the justification for the immoral use of government force.

  • dunstvangeet||

    Masterpiece Cakeshop was not willing to sell them any number of premade cakes or straight sheet cakes for their wedding. The literal interaction went: "We'd like a wedding cake for our wedding." "I'm sorry, but I don't do gay weddings." Mr. Phillips learned nothing about how the cake was to be decorated. Mr. Phillips learned nothing about how the cake was even to taste. There was no "outside decoration of their limo" that happened. Mr. Phillips refused service right when he found out that the cake was to be for a gay wedding.

    Mr. Phillips had previous denied a lesbian couple ordering cupcakes for their commitment ceremony. Again, he was willing to take the order up until he found out that it was for a lesbian wedding, rather than for a straight wedding.

    So, please don't give us the idiotic argument that never actually happened. Mr. Phillips was refusing to serve all gay weddings, no matter how the cake was decorated.

  • Toranth||

    You are incorrect. Read the briefings to the Supreme Court - BOTH parties admit that Phillips offered undecorated cakes that the couple could then decorate themselves.
    Phillips ALSO refused to sell a custom homosexual wedding cake to several heterosexuals that asked (the plaintiff's family and friends). His actions were, quite clearly, about the content of the message on the cake, not the identity of the customer.

  • dunstvangeet||

    No, he didn't. He offered to create them a birthday cake, or shower cake. At no point did he offer that they could decorate it themselves. You're taking that case from the facts of Jack v. Azucar Bakery, Jack v. Gateaux, Ltd, and Jack v. Le Bakery Sensual, Inc. In that case, Mr. Jack walked into 3 LGBT-friendly bakeries. He ordered an expressly anti-homosexual cake. There, the bakers offered to bake him a cake in the shape that he wanted, and sell him the tools to frost it themselves, but they would not decorate it the way that he wanted with the expressly anti-homosexual symbols and writing. You're mixing up the cases.

    At no point did he offer any sort of "premade wedding cake". To be fair, his lawyers said that he'd later be willing to do so, but there is no such thing as a "premade wedding cake". Wedding cakes are often ordered 6 months in advanced, and no bakery actually offers premade wedding cakes. Don't believe me, then go down to your local bakery and say that you'd like a premade wedding cake, and see what they say. And this goes directly against his behavior in previous incidents, where he denied an order of cupcakes to a lesbian couple who wanted to use them for their commitment ceremony (Joint Appendix, page 113-114).

  • ravenshrike||

    And I did not say he offered a premade wedding cake. He offered any premade cakes the shop made or plain sheet cakes. Masterpiece Cakeshop does not make premade wedding cakes

  • loveconstitution1789||

    Either way, the baker cannot be forced to do anything.

  • Ben_||

    So pick another bake shop and stop harassing the man.

  • Last of the Shitlords||

    This is about the left forcing private enterprise into servitude. The cake is incidental.

  • Fredo||

    "Masterpiece Cakeshop was not willing to sell them any number of premade cakes or straight sheet cakes for their wedding"

    This is patently false, and you have now been caught lying about the facts of the case three times.

  • dunstvangeet||

    Actually, I am free.

    Here's the exact words of Mr. Phillips: "Mr. Craig is welcome in my store to purchase any of my creations, with the exception of a wedding cake for his same-sex marriage celebration or reception." (Joint Appendix, page 63, taken from his response to the original complaint).

    So, Mr. Phillips was not willing to sell him a "wedding cake for his same-sex marriage celebration or reception". No matter what the cake looked like.

    Here's the entire interaction from Mr. Phillips's own words (Joint Appendix, pg 59-60): "I introduced myself to them, and they did the same. I sat down across from them and I believe Mr. Mullins said he needed a wedding cake or he was there to pick out a wedding cake. Mr. Craig quickly added that it was for their wedding. I quickly responded that I do not create wedding cakes for same-sex weddings at which time both men stood up and exited the store through different doors. There may have been a moment where the three of us were talking over each other, and I think I stated that I could create birthday cakes, shower cakes or any other cakes for them. The entire interaction lasted no more than 20 seconds."

    You can see that at no point did Mr. Phillips offer them a "premade cake or straight sheet cakes".

    I know this case better than you do.

  • BigT||

    Sounds like Phillips assumed he'd need to put two grooms on top, as many would, but never got into the details. If Mullins and Craig didn't ask for a plain cake, then too bad for them.

    Next case.

  • dunstvangeet||

    Actually, Mr. Phillips did nothing to assume that. In fact, most of his wedding cakes don't actually have brides or grooms on top. For instance, let's take a look at this cake: http://masterpiececakes.com/wp.....Cake_7.jpg

    No bride or groom on top, and yet Mr. Phillips displays it on his website as one of his creations.

    Mr. Phillips was willing to make this cake for a straight couple, but would refuse to make this exact same cake for a gay couple. That's discrimination on the basis of sexual orientation, plain and simple.

    Furthermore, previously, Mr. Phillips refused to make an order of cupcakes for a Lesbian couple. I don't know where you'd even fit a bride and groom on top of a cupcake.

  • ravenshrike||

    Wedding cakes are a specific subcategory on their website and significantly different in form from a sheet cake or their birthday/specialty cakes.

  • ravenshrike||

    Wedding cakes are a specific subcategory on their website and significantly different in form from a sheet cake or their birthday/specialty cakes.

  • ravenshrike||

    Wedding cakes are a specific subcategory on their website and significantly different in form from a sheet cake or their birthday/specialty cakes.

  • JesseAz||

    Dun... Either you're lying or just pure ignorant. Nothing you said was true dumbass.

  • dunstvangeet||

    Read Mr. Phillips own words about the incident:

    I introduced myself to them, and they did the same. I sat down across from them and I believe Mr. Mullins said he needed a wedding cake or he was there to pick out a wedding cake. Mr. Craig quickly added that it was for their wedding. I quickly responded that I do not create wedding cakes for same-sex weddings at which time both men stood up and exited the store through different doors. There may have been a moment where the three of us were talking over each other, and I think I stated that I could create birthday cakes, shower cakes or any other cakes for them. The entire interaction lasted no more than 20 seconds."

    So, please tell me where in that 20 seconds did he offer them a generic wedding cake, which they could decorate themselves?

  • Last of the Shitlords||

    It doesn't sound like they offere him th opportunity before they left in a huff.

  • Brett Bellmore||

    It sounds like they left the moment they got what they wanted: A pretext to sue.

  • Nardz||

    Shorter Volokh:
    "It is right and proper to legislatively separate people into arbitrary/abstract identity classes requiring special treatment, and positive rights for some but not others, for the greater good."

    Reason, and apparently Volokh, is a clown-show.

  • Get To Da Chippah||

    Or is Volokh just advocating for a position he may not actually believe in? You know, like lawyers sometimes do?

  • Echospinner||

    I suspect you are right about that.

  • Fredo||

    Based on his history?

    I doubt it.

  • JesseAz||

    Volokh supplied a brief against the cake shop to the USSC. He truly believes baking deserves no protections. It's most out of character for his other defenses of speech and personage.

  • Mickey Rat||

    It is almost as if Volokh is loathe to say that people have a right to not participate in same sex marriages.

  • Ben_||

    Because if you're in the majority, that makes you a second class citizen. If you're a Christian, third class.

  • Jerryskids||

    Maybe they're both right, in that K seems to be arguing what the law should be and V is arguing what the law is. Just imagine it were 1818 and K were arguing why slavery should be abolished and V were arguing why slavery is perfectly legal.

  • SQRLSY One||

    I do see your point...

    Even if "V" is simply saying what the law is, though, there's a HUGE judgment call being made in "what is speech"... Flag-burning is speech, picking your nose and flicking boogers at the police is speech on Bimsday and on Turdsday but not on Crapperday, making beds for your guests in your hotel is not speech, and cake-baking!??!? Your guess is as good as mine, but the both of us are mere fleas in the sight of the Mighty Ones of SCROTUS!

    Speech or not speech? Makes my head spin, and I am about to spit out gray-green pea soup as well!!!!

  • Jerryskids||

    There aren't enough "to be sure"s in V's statement to know whether or not he agrees that the way the law is is the way the law should be. But if you're arguing that free speech is limited to actual speech and not expressive conduct, I'd suggest you'd have to argue that deaf-mutes using sign language aren't entitled to free speech protection. Or that freedom of the press doesn't cover Xeroxed copies of a missive since there's no printing press involved. I would argue that "free speech" covers freedom of expression by whatever means you wish to use to convey a message.

  • Jerryskids||

    Is baking a cake expressive conduct? The baker certainly seemed to think if he baked a cake it would be taken as an expression of his approval even though he did not approve. But if I wear a green shirt on St. Patrick's Day even though I'm German and some people take that as an expression of my Irishness, is it expressive conduct if I had no intention of conveying any such message? I would say no, if I have no intent of expressing any sort of message, it's not my problem if somebody thinks I am expressing a message. But here's the thing - the couple who demanded the baker make their cake sure as hell didn't just happen to wander into that particular cake shop by accident, they deliberately chose that baker specifically because they knew damn well that his baking their cake would be taken as an expression of his approval of gay marriage even though it was not intended to be so. And their specific intent was to force the baker to express a message he did not wish to express. So quite obviously both the baker and the gay couple are agreed that baking a cake is speech, so how can there not be a free speech issue?

  • SQRLSY One||

    Amen all around!!!

  • dunstvangeet||

    Actually, they did. They were referred to that bakery by their wedding planner, because it was there.

    And as far as your "it doesn't matter what other people would read off of that", yes, it does. Free Speech precedent, for instance, takes into account what a reasonable person would assertain. For instance, take a look at the decision of Pruneyard Shopping Center v. Robins. That case, where Pruneyard Shopping Center tried to restrict someone from distributing fliers on their property. Pruneyard tried arguing that the public might confuse this speech as being with the shopping center.

    The Supreme Court, in an unanimous in stating that there was no violation of Free Speech. That no reasonable person would construe someone handing out fliers at the shopping center as being speech associated with the shopping center. So, your argument that it doesn't matter what the speech looks like to other people is just not born out by Supreme Court precedence.

  • SQRLSY One||

    "Pruneyard Shopping Center tried to restrict someone from distributing fliers on their property."

    It's Pruneyard's freaking property! SCROTUS was wrong! I see "no solicitation, no leafletting" type prohibitions on the properties of Cosco, local grocery store, etc., all the time!

    SCROTUS should go fuck itself! If it takes a revolution at the point of the ballots, or of the bullets, let's get 'er done! You want to pass out fliers? Do it on public property, or on your own, not on mine!

  • dunstvangeet||

    Even Thomas said that it is necessary for it to be viewed by a 3rd party to be speech. In his argument, he cited Clark v. Community for Creative Non-Violence, which held that the Community for Creative Non-Violence's demonstration was not protected speech, because it was not to be understood by 3rd parties as being speech. Justice Ginsburg puts it in note 1 of her dissent: "JUSTICE THOMAS acknowledges that for conduct to constitute protected expression, the conduct must be reasonably understood by an observer to be communicative."

    This was also held in the view of Rumsfeld v. FAIR.

  • Scarecrow Repair & Chippering||

    Yes! They are not debating the same thing. K is arguing from a libertarian point of view, V is arguing from the current state of Constitutional interpretation.

  • Cy||

    It's disturbing that there is a large portion of our population who think it's ok to force people to do things to avoid hurting someone else's feelings.

    They keep asking for you to compromise, but it's only ever in their favor.

  • Cloudbuster||

    "Compromise" -- the official leftist term for "submit to me."

  • loveconstitution1789||

    +1

  • Eddy||

    Was Prof. Volokh given a different question that the article title indicates?

    The article title gives the debate topic as "Bakers Should Not Be Forced To Produce Cakes for Same-Sex Weddings."

    The title *isn't* "the U. S. Constitution protects bakers who don't want to bake for same-sex weddings." (though I think it does).

    So either Prof. Volokh was discussing a different question than the assigned one, or the article has the wrong title.

    "Reason has favored gay civil unions since the 1970s, long before they received widespread support."

    There really ought to be more of a sense of outrage from libertarians who were sold a bill of goods - who thought all this time they were arguing for *more* freedom and now find that the cause they embraced has turned into the cause of *less* freedom - or that it was the cause of less freedom all along.

    Under the old regime, bakers could decide for themselves whether to bake pro-gay cakes. Now they are denied that choice. There's less freedom now, not more.

  • Eddy||

    And of course, in the Lawrence case when the US Supreme Court did something unambiguously libertarian (whether lawfully or not), and affirmed the right of same-sex adult couples to have voluntary noncommercial sex in private, they assured us that this didn't mean same-sex marriages would have to be recognized by the government. Though of course nothing stopped gay couples from living their version of marriage and having whatever private ceremonies they wished.

    When people began agitating for government recognition of same-sex marriage the defiant slogan was "how does *my* marriage affect *you.*" Now we have our answer - it can lead to prison and crippling fines for dissenters.

  • Cloudbuster||

    Unexpectly.... No, wait. That's totally what I expected.

  • Cloudbuster||

    I also expected to spell "unexpectedly" correctly.

  • Eddy||

    And while we're on the subject of hurt feelings, consider the many ways, even today, it can be legal to hurt someone's feelings. I hate even to give this list lest the extremists get ideas.

    Imagine the hurt feelings of being turned away from a restaurant because you're not properly dressed, or turned away from a club because you're not hot or influential enough.

    Imagine the hurt feelings from knowing that someone behaves differently than you want them to do.

    Imagine the hurt feelings from hearing someone say things you vehemently disagree with.

    I better stop with the examples lest this turn into the next frontier of civil rights where hurt feelings become illegal.

  • Earth Skeptic||

    Well, if that is not enough to get people to vote for the most progressive nanny state socialists on the ballot, what will?

  • Brett Bellmore||

    He quite often retreats to what legal precedent is, when he doesn't want to admit that he's just in favor of coercing people. That way he can retain his illusion of being a good libertarian, even while endorsing massive violations of liberty.

  • Fredo||

    That's a pretty good description of his behavior Brett.

  • Fist of Etiquette||

    There's no doubt that emotional harm can result from being turned away from a business establishment because of who you love.

    Harm. Jesus Christ.

    And is Volokh taking the negative position as an intellectual exercise or does he actually not believe that freedom of association applies here? Either way, he's unconvincing.

  • SQRLSY One||

    Dear Abby? Am I in the right place?!?!?

    Dear Abby, Dear Abby,
    My life is a mess,
    Bill Clinton stained my dress,
    I can't get it off my hairy chest,
    'Cause my boyfriend's a pest,
    I can't talk of my sexual past,
    'Cause he gets all aghast!

    And Abby, my boyfriend and I have been "seeing" each other for 41 years!
    Now our home state will let us get gay-married, we're a itchin' to go get us a hitchin'!
    But boyfriend INSISTS on us getting gay-married in churches that don't want us, by preachers that hate us, and get photoed by people that can't stand us, and on and on and on!
    I think it's 'cause his pet Hamster Huey and his Gooey Kabloooey rejected him in the 5th grade, and he's NEVER gotten over it!
    Abbey, PLEASE don't tell us to get therapy, we can't afford it! We COULD afford it, but he gives all of our money to politicians who say they are a gonna fix all of this mess with more laws!
    So Abby… Besides therapy, what can I do to help my boyfriend settle for getting gay-married by people who like gays?

    Love and Smooches, Dude B. Gay

  • SQRLSY One||

    Abby? Abby? ABBY!!! WHY HAVE YOU FORSAKEN ME?!?!
    Abby, I REALLY-REALLY need yer help NOW!
    My pet binturong died, and I didn't want to trouble my boyfriend about it, so I buried it in some rags in the attic, and let it mummify, hoping that my boyfriend would never notice (he never paid much of any attention at all, to my pet Benny the Binturong, so, the idea of him never noticing Benny being gone, isn't so strange, really). But then my boyfriend... Call him "Ted Cruz" for annoying-mouse purposes here... Ted found the mummy of my beloved Benny. Now he thinks it is his old friend Hamster Huey, come back to him after all these years, and to make up to him! So now he is making love to my dear departed pet binturong all day, every day, and totally ignoring me!
    HELP, Dear Abby, HELP!!!!

  • Cloudbuster||

    What if you're turned away from a business establishment because you love Hitler?

  • Rev. Arthur L. Kirkland||

    Harm?

    Should a pharmacist be entitled to refrain from performing his job as directed by an employer and to keep that job after denying a prospective customer the opportunity to purchase a product consequent to the employee's assertion of fictional beliefs?

    Harm? Because hurt feelings? Deriving from superstition?

    This 'heads we win, tails you lose' approach preferred by those who desire endless expansion of special privilege as sword and shield for some ('religious liberty') seems likely to continue to work a bit longer, but the predictable snapback is going to be hellacious.

  • Eddy||

    "Should a pharmacist be entitled to refrain from performing his job as directed by an employer"

    No. Please find anyone in the H&R or even Volokh comment section who would answer yes.

  • Eddy||

    Indeed, the non-trolling commenters tend to *support* the prerogatives of private employers to a greater extent than the laws do.

  • Eddy||

    The previous Presidential administration actually pushed to limit private employers - so an employee could wear religiously-required clothing whether the dress code of the employer permitted it or not.

    It was only when it came to government mandates that the last administration said religious objections don't matter.

  • Rev. Arthur L. Kirkland||

    Answering yes.

  • Eddy||

    That doesn't look like a commenter on these sites.

  • retiredfire||

    Eddy,
    You're missing the dishonest rev's subject matter.
    He's talking about a pharmacist, who believes that providing abortifacients is killing a human being.
    Something scientifically proven but what he considers a "fictional belief".
    Other pharmacists refuse to provide the suicide drugs, that some states allow, because they don't believe their profession should be one of providing the means of death, whether religiously-based, or not.
    The rev and his pro-death party are all-in for killing off a problem.

  • Fredo||

    You know very well the law has provisions for "damages" that are essentially nuisances and nothing more, as the "harm" here is. And you know the provision is to ignore them.

    "sorry bout your luck, goodbye!"

  • Fist of Etiquette||

    This 'heads we win, tails you lose' approach preferred by those who desire endless expansion of special privilege as sword and shield for some ('religious liberty')...

    He said without hint of irony?

  • Qsl||

    Since medicine keeps being brought up...

    It is fairly common practice for healthcare personnel to have a waiver to be excluded from administering certain treatments for "moral convictions" (typically this is a euphemism for abortion), but neither the treatments or moral convictions are spelled out (I could also see this being a carry over from the more imaginative medical experiments that were in vogue. I doubt anyone today would be in much of a huff about medical staff objecting to being a party to eugenics.). As is, there are numerous people in medicine who severely mistreated pain under the same auspices who only have their hand forced (somewhat) not so much by their employer but by a licensing authority. This is currently being played out in the role of medicine in the opioid epidemic and undertreating of chronic pain. There were also cases I recall of pharmacist being strung up for not offering certain types of treatments as they were specialty pharmacies (only dealt with diabetics or nursing homes, etc.), but the unaware certainly had a field day strutting muh rights to medical care.

    On the other hand, I also know of medical staff who have been fired for continuing to smoke (as I recall it was less about increased insurance costs, but presenting an image of health promotion to clients). Make what you will of the morass of conflicting tendencies.

    The one thing that is clear- medicine is complex. Please quit using it as a whipping boy for whatever political agenda.

  • Rigelsen||

    Apparently Volokh didn't even read the case at hand, how else to explain the complete lack of engagement of the arguments of one side? The baker explicitly was willing to sell them anything from the shop, and indeed had for a long time, even knowing they were gay.

    Volokh, this looks like basic inellectual dishonesty, and is not a good look for you.

  • dunstvangeet||

    I think that you actually don't know the facts of the case.

    1. No, Mr. Craig and Mr. Mullins were not long-time customers of Masterpiece Cakeshop. They had been referred over to Masterpiece Cakeshop by their reception planner as being a cake shop over by where they were having their wedding ceremony.

    2. No, the baker wasn't willing to sell them anything from the shop. He explicitly was not willing to sell them a wedding cake, which he estimated was about 40% of his business. 60% of his business is not his entire business. Furthermore, he had previously denied a cupcake order to a lesbian couple who wanted to use them instead of a cake in a commitment ceremony.

    Looks more like you're doing intellectual dishonesty than Mr. Vought is.

  • Get To Da Chippah||

    What's your source on all this? Were you there? Are you a current/former employee? Are you one of the people who sued him? I've found articles that state there's no clear record whether or not the couple could purchase a generic cake, and articles that state they were given that offer. Wikipedia says they could purchase 'other baked goods' and refused.

  • Toranth||

    While he is correct that these two specific people were not long time customers, he is incorrect about the rest of his 'alternate facts'. You can read the Supreme Court's ruling directly, and see where he is wrong.

    I've never heard of this 'refusing to sell cupcakes to lesbians' thing, and a web search only shows an unsourced claim in a New York Times Op-Ed by an anti-religious rights activist. There are no complaints on file for it, or records mentioned in either the original Colorado case or the Supreme Court case.

  • Fredo||

    Yes, dustvangeet has been copiously lying.

  • dunstvangeet||

    It's actually contained in the Joint Appendix, filed with the Supreme Court. And yes, it was mentioned in both the Supreme Court case, and the Colorado case.

    Joint Appendix, pages 113-114 (Affidavit of Stephanie Schmalz).

    Oral Arguments, page 6 of the transcript, Justice Sotomayor specifically asks a question about this: "I'm sorry, didn't he refuse to sell cupcakes that he sells regularly to the public to some same-sex couples who intended to marry?"

    Opinion of the Court, page 7: "The investigator also recounted that, according to affidavits submitted by Craig and Mullins, Phillips' shop had refused to sell cupcakes to a lesbian couple for their commitment celebration because the shop "had a policy of not selling baked goods to same-sex couples for this type of event."

    Here's even the original YELP Review: https://tinyurl.com/yc6jbpke Look for review from Stephanie S. (She even puts her full name, Stephanie Schmalz on it.)

    I'm actually willing to back up my sources. Just shows me that you have no idea about this case.

  • loveconstitution1789||

    The dourt record does not support your claims.

  • dunstvangeet||

    I have directly given you sources where the court record does indeed support my claims. Mr. Phillips refused to sell a lesbian couple an order of cupcakes just because it was going to be a gay wedding-like event. So, I have trouble believing him when he states that he would have done anything else other than a wedding cake (which isn't actually supported by the court record).

  • dunstvangeet||

    Actually, my source on this is the Joint Appendix, Mr. Phillips own words when responding to the complaint. Take a look at the Joint Apendix, page 59-60, this is Mr. Phillips own words: I sat down across from them and I believe Mr. Mullins said he needed a wedding cake or he was there to pick out a wedding cake. Mr. Craig quickly added that it was for their wedding. I quickly responded that I do not create wedding cakes for same-sex weddings at which time both men stood up and exited the store through different doors. There may have been a moment where the three of us were talking over each other, and I think I stated that I could create birthday cakes, shower cakes or any other cakes for them. The entire interaction lasted no more than 20 seconds."

    So, you can see the exact chain of events. They asked for a wedding cake for their wedding. Without any discussion of the decoration of the cake, or anything along with that, Mr. Philliips denied service. He further stated that Mr. Craig and Mr. Mullins were not free to buy a wedding cake (Joint Appendix, page 63).

    The cupcake story comes from the Joint Appendix, pages 113-114, affidavit of Stephanie Schmalz. This was filed with the Supreme Court, and referred to in the Opinion of the Court (page 7).

    So, please get your facts correct before accusing someone else of lying.

  • Get To Da Chippah||

    I didn't accuse you of lying, I asked for your sources and noted that I couldn't find anything to corroborate what you said. The first was a request, and the second was a fact having nothing to do with your credibility or lack thereof.

  • dunstvangeet||

    Other people have accused me of lying for stating the exact same things. My comment was more directed at people like Fredo, who directly accused me of "copiously lying". JesseAz also accused me directly of lying for these exact same scenarios, and sources.

  • MoreFreedom||

    I agree Volokh's argument is unconvincing. He might as well argue they have to bake the cake because the right to bear arms has nothing to do with making cakes. The Constitution gives us freedom of association, which includes the freedom to not associate with those we find offensive (which is an incentive for people to not be offensive - just as the economics is an incentive to bake that cake).

    The basis of libertarian politics is that we are free to do whatever we want provided we don't harm others, while being forced to do something is harmful to the person forced to act against their will. Claiming one is harmed because someone else won't do something for you opens the door to being forced to do anything. E.G., I'm offended you are providing me all the support I need to live like a king for pennies/day, as well as I'm harmed that you have two chickens and I have none while you don't give me one. Which gets into negative vs. positive rights.

    Personally, I'd bake the cake, but I support the right of bakers to refuse. I wonder how Volokh feels about my right to have my support pig accompany me into a business owned by a Muslim.

  • Tony||

    The constitution doesn't give you freedom of association, whatever that is.

  • Scarecrow Repair & Chippering||

    From Wikipedia:

    It is closely linked with freedom of assembly, particularly under the U.S. Bill of Rights. Freedom of assembly is typically associated with political contexts. However, (e.g. the U.S. Constitution, human rights instruments, etc.) the right to freedom of association may include the right to freedom of assembly.

    IOW, how can you have freedom to assemble without also having freedom of association? It's like saying you have freedom of the press and of speech without having the freedom to ask questions.

  • Tony||

    The freedom to peaceably assemble is not equivalent to the freedom to choose precisely who you want to be around at all times, which is what you people mean when you try to apply it to expelling undesirables from shops. If you simply think about it for more than a second you'd realize that you're being ludicrous. If this freedom exists, why can't I require that every shop I enter be emptied of all children? I have a right to freedom of association with whom I want!

  • Get To Da Chippah||

    Because you don't have a right to any shop you enter unless you own the place.

  • Tony||

    Property rights are a social compact made up out of thin air too, you know.

  • Brett Bellmore||

    Expelling undesirables from a shop you own is just a bog standard right of property ownership: Owning property entails the right to exclude people from it.

  • Incomprehensible Bitching||

    Well, let's assume the property owner doesn't want to serve a gay man.

    And that gay man starts throwing a yelling, bitchy tantrum, throwing stuff around the store, urinating, etc.

    Now, the police have to come and eject him, which is completely the fault of the bigot running the store. And the police introduce society. So, we all need to settle, as a society, whether we want property owners making gay men throw tantrums.

    We call this legal principle the "Tantrum's Veto", and its precedent.

  • retiredfire||

    So, anything a property owner tells someone, that they don't like, and they then throw at tantrum, is the fault of the property owner?
    Wow, what an expansive belief of property rights you have.
    Shit, next time I am expected to pay for some silly item in a store, I'll use the "tantrum veto" and get it for free, and the cops will have to support it.
    Amirite?

  • Scarecrow Repair & Chippering||

    Because just as freedom of speech does not require others to listen, so freedom of you to associate with whom you please does not allow you to force others to move for your benefit.

    Silly cow. It's things like this that make me vacillate on whether you really are that willfully stupid and unthinking , or whether you are just a particularly mendacious troll.

  • Tony||

    Do you mean forcing others to move out of your shop because you are grossed out by the way they were born?

  • Incomprehensible Bitching||

    Exactly.

    Now, one drawback of the Tantrum's Veto is that, it doesn't apply to online businesses, or businesses in public spaces where a shop doesn't exist, therefore, trespassing isn't an issue.

    For that, we need to come up with another excuse to come down hard. I prefer "Christian bigots have it coming to them!", "Reparations!", or something like that.

  • Tony||

    I prefer to acknowledge that Christians, as Christians, already are protected in law from the type of discrimination we're talking about, and how about the minute they give that up we can discuss whether to exclude sexual orientation as well.

  • Brian||

    In sorry, when did gays lose their first amendment rights to free speech?

  • Brian||

    Or religion, or religious expression for that matter?

    If it makes you feel better, Christians can't force you to make a stupid anti-gay blog post.

  • Tony||

    But they can "force me" to serve them in my shop whether I like their kind or not.

  • Brian||

    Not really: how could you possibly have a shop?

    Do people want to go to a brick-and-mortar store to pick up ridiculous progressive BS bitching? Is that sold by the pound?

    They can't force you to sell Christian paraphernalia if you don't want to, retard. Do you think a Christian can go into your ridiculous left wing writing store, demand you start selling pro-Christian anti-butt-fucking screeds at 150 or less characters, or else you're discriminating against them?

    You're acting like this is all unfair when it's not, really: you just don't like it.

  • loveconstitution1789||

    Tony was born a moron and is scared that people will be able to reject him if the government does not force people to associate with Tony.

  • Fredo||

    That's basically accurate, Tony is destestable, knows it, and realizes he will be completely excluded by society if the Constitution is not subsumed.

  • loveconstitution1789||

    Lefties always use Jim Crowe laws as some excuse to extend government force to get people to associate with people they dont want to.

    (1) Democrats (Lefties) started Jim Crowe laws
    (2) After the 13th Amendment banned slavery and the 14th Amendment guaranteed all federal rights too all state citizens, Democrat states should have been federally barred from treating anyone differently.
    (3) Regulation of business is a magic wand to control everything businesses do that is 'wrong'.

  • loveconstitution1789||

    Democrat Jim Crowe laws and segregation would have little effect if state governments had not been able to get involved by making these laws in the first place.

  • Tony||

    Every kindergartener knows that the racist fuckstains of the South used to be Democrats. They stopped being Democrats when the party started siding with blacks.

  • Incomprehensible Bitching||

    And that's when all the racists became Republicans.

    And if the racists are Republicans, then all the Republicans are racist. QED.

  • Tony||

    I don't know why anyone would be a Republican if they weren't a racist.

  • Brian||

    That says a lot right there: Republicans do tend to have higher incomes.

  • loveconstitution1789||

    Republicans side with black people. Republicans freed the slaves.

  • dunstvangeet||

    Something that happened over 150 years ago, that doesn't prove that you actually side with black people today.

  • loveconstitution1789||

    But Republicans do.

    Libertarians do even more.

    More and more black Republicans and Libertarians in the South than ever before.

  • retiredfire||

    Republicans side with everyone.
    The people, who claim Republicans don't, are the ones who think certain people should have special rights. Republicans are against that concept.
    Republicans truly believe in everyone being treated equally, others believe that one group can be treated unequally to make up for past unequal treatment of a different group.
    The two wrongs making a right fallacy.

  • Get To Da Chippah||

    Correct. The Constitution doesn't give anyone anything; it places limitations on what the government is authorized to take away.

  • Ben_||

    Show us the physical evidence of this emotional harm.

  • Mark22||

    Our Constitution isn't a libertarian document. It is a document that creates a charter for democratic government, with some protection for specific individual liberties, but generally in specific, identified zones.

    Our Constitution is a constitution of enumerated powers. That is, it doesn't just "protect specific individual liberties", it protects all liberties that aren't explicitly constrained by an enumerated power.

    I can't tell whether Volokh is just ignorant or whether his warped thinking represents mainstream American legal thinking today; if it's the latter, we are in deep shit because as a document protecting specific liberties, the US Constitution is absolutely lousy, since its authors didn't think it was necessary to enumerate all the liberties we are supposed to have.

    And the worst part is that the powers Volokh advocates are actually harmful. As a gay man, I am hurt, not helped, by anti-discrimination laws: they force me to provide value to homophobic employers and businesses and to suffer hidden discrimination without meaningful remedies. And they perpetuate the myth that the problem in society is private discrimination and the remedy is progressive authoritarian government, when reality is the exact opposite.

    With this article, I have pretty much lost all respect for Volokh, and his column here is just another indication of the slide of the libertarian intelligentsia into progressive authoritarianism. Go to hell.

  • Nardz||

    +many

  • Scarecrow Repair & Chippering||

    He's a constitutional lawyer arguing from that perspective. Reading anything more into it is about as useful as reading tea leaves or goat entrails.

  • Mark22||

    He's a constitutional lawyer arguing from that perspective.

    Well, as I was saying: I can't tell whether Volokh is just ignorant or whether his warped thinking represents mainstream American legal thinking today; if it's the latter, we are in deep shit

    I really don't know. Do "constitutional lawyers" these days really generally believe that the Constitution is a document that only "protects specific individual liberties"? I was hoping at least some of the sensible ones still respect the 10th Amendment, even if they take an expansive view of powers.

  • Scarecrow Repair & Chippering||

    I believe that lawyers find it hard to turn off the lawyering angle. From the few lawyers I have known and tried to discuss this with, they are so used to defending clients with incredibly different backgrounds and cases, that it becomes hard to turn off that advocate-based viewpoint. Ask them what they think, personally, and they will ask for the details of the case, and it takes several back-and-forths to get them to understand that you want their personal opinion based on how they would want to be judged; and even then, they may demur and say it's not something they have thought much about, as if they don't do it often enough to have a personal opinion any more.

  • Eddy||

    Which is too bad, since the lawyer-statesman is an important American type, and any lawyer-statesman discussing public policy should be able to have opinions of his own, with their legal skill enabling them to organize a cogent argument on policy grounds. See, for instance, Abraham Lincoln.

  • Eddy||

    Oops, now I've gone and done it, I used the L-word (not "Libertarian").

  • Mark22||

    I believe that lawyers find it hard to turn off the lawyering angle.

    Any lawyer who can't "turn off their lawyering angle" and instead engage in rational debate may be well suited for the courtroom, but they should STFU when it comes to political, moral, or philosophical debates ("how should we feel about").

  • Scarecrow Repair & Chippering||

    So you must be a lawyer then, and angry because you can't follow your own advice.

  • MatthewSlyfield||

    "He's a constitutional lawyer arguing from that perspective."

    Actually, he's a professor of constitutional law at a university, not a practicing lawyer.

  • Scarecrow Repair & Chippering||

    He files briefs all the time, and occasionally is the lawyer filing suit.

  • Rigelsen||

    Volokh still says "bake cake" and not "design cake" to minimize and eliminate the expressive elements of cake design. He tries to get around this by arguing that the baker in the Masterpiece case refused to bake any cake, therefore conduct. In doing so, he ignores the basic difference between wedding cakes and generic cakes. Wedding cakes always include a message, this is what makes them wedding cakes. The baker explicitly told them they could buy anything already made from the shop but that he wouldn't design them a custom wedding cake.

    Volokh, it's basic intellectual dishonesty to ignore this.

    When so-called libertarians try to find specious arguments, by simply ignoring the whole meat of one side of the argument, to say why something is not a right, do they remain libertarians?

    (As a classical liberal I might argue that some compulsion might be necessary in cases of monopolies or cartel behavior. However, cake shops are not monopolies as are none of the compelled speech cases we have seen recently.)

  • tpaine||

    Eugene is not a libertarian. If you've read his opinions for a while, you would know he's not a libertarian. He might say he's libertarian - ish, but he is not really that either. He has not yet had the libertarian epiphany. And he's not going to have that epiphany listening to some of the arguments made here.
    "Our Constitution isn't a libertarian document. It is a document that creates a charter for democratic government, with some protection for specific individual liberties, but generally in specific, identified zones."
    Now I'm going to go and study the document that creates the charter, with a special search for " democracy, Democratic, and democratic government"
    Wish me luck

  • Brett Bellmore||

    So freaking what if baking a cake isn't speech. Neither is picking cotton, but we don't let somebody force you to do it.

    This isn't a 1st amendment issue, it's a 13th amendment issue.

  • Ben_||

    If you don't pick that cotton, gays won't have their choice of garments for their wedding.

  • Fredo||

    /thread

  • Scarecrow Repair & Chippering||

    This is not a fair debate; they are not debating the same question. Eugene Volokh is arguing from a US Constitution-as-currently-interpreted point of view, not as a libertarian.

  • Brett Bellmore||

    He always does that when he doesn't want to admit his preferred policy isn't libertarian.

  • Scarecrow Repair & Chippering||

    He's a constitutional lawyer arguing from that perspective. I don't know much about him otherwise; maybe in private he expresses different opinions based on the non-aggression principle or self-ownership; but his public persona is constitutional lawyer.

  • Fredo||

    Then he should politely step aside and let someone else debate the subject

  • loveconstitution1789||

    Reason switched to 'debates' to get more web traffic.

    Straight articles are not getting enough web hits. Controversy breads web traffic.

  • Brett Bellmore||

    Well, the straight articles pretty consistently push a left-wing, non-libertarian agenda on a long list of topics. So the debates are a big advance, libertarians are actually being invited to participate.

  • Francisco d'Anconia||

    Eugene Volokh is arguing from a US Constitution-as-currently-interpreted point of view, not as a libertarian.

    THIS!

  • Fredo||

    It's weird how you bitched when I made that point earlier.

    It's almost like you are a confused idiot who doesn't understand the discussion.

    No, not amost.

  • Francisco d'Anconia||

    Yeah...maybe scroll down and check time stamps.

  • Brett Bellmore||

    But, that isn't what he was asked to do. The debated question was,

    "Debate: Bakers Should Not Be Forced To Produce Cakes for Same-Sex Weddings"

    Not,

    "Debate: Bakers Are Forced To Produce Cakes for Same-Sex Weddings".

    If he was going to take part in a debate, he should have produced an essay that was responsive to the debate question. We already all know they're being forced to bake the cake, the question was, SHOULD THEY BE.

  • JFree||

    it becomes increasingly unlikely that gay couples will encounter serious difficulty in finding a florist or baker for their weddings.

    I always thought most wedding florists/bakers/etc WERE gay. This is a 100% non-issue created for the purposes of lawsuits.

    This is not a serious public accommodation issue. It is a corporate personhood issue - and corporations are PROPERTY not person. We have gone way overboard when we grant corporations per se individual human rights. It is going to be the destruction of this country because, structurally, humans are second-class citizens compared to eternal-life corporations with legal protections for their actions.

    Even Citizens United was not (or shouldn't be interpreted as) a free speech right for corporations themselves. It was a recognition that individuals have the right to combine their resources in order to speak

  • Brett Bellmore||

    It's not a matter of granting corporations individual human rights. They can't vote, they can't marry, and so forth.

    It's a matter of recognizing that corporations are just a way individuals get together to accomplish something, and that individuals don't lose their rights if they decide to work in concert. Not any of them.

    If you can't order your neighbor to bake a cake for you, the fact that they regularly do it for pay should not change this.

  • Eddy||

    "Even Citizens United was not (or shouldn't be interpreted as) a free speech right for corporations themselves. It was a recognition that individuals have the right to combine their resources in order to speak"

    Then you've conceded too much, since every corporation is made up of individual human beings who combine their resources, and if the people making up Citizens United or The New York Times Company don't give up their rights simply because they use the corporate form, neither should anyone else.

  • Eddy||

    I'm aware that state legislatures used to incorporate business corporations on a case by case basis, often expecting the corporations to behave a certain way in exchange for limited liability.

    Basically the legislators were on the honor system not to abuse their power by, say, incorporating only those businesses who agreed with them politically or agreed to operate in a politically correct manner. Even the racist Ohio legislature let Oberlin keep its corporate charter despite being antislavery and pro-integration.

  • JFree||

    if the people making up Citizens United or The New York Times Company don't give up their rights simply because they use the corporate form, neither should anyone else.

    The owners are not giving up shit in adopting a corporate form for their property. If they did, they wouldn't do it. They are a)being granted eternal life for their property - ie state is essentially acting as St Peter at the pearly gates granting their property entrance into heaven and b)limited liability for themselves for their own actions in this world - follow some easy rules and hey presto no real consequences beyond what you already gave to that corp - iow the state is serving as an omnipotent God protecting its true believers in this life.

    If the state then grants religious rights per se to that corporation, then those features of the corporate form itself mean the state has ESTABLISHED religion in a very real sense. But only for that corporate form - and at the expense of the natural rights of other humans whenever there is a conflict between that corp and humans.

    This is very dangerous ground. Corporations are state-creations. They have NO natural rights. NONE. The OWNERS do - but in the corporate form they have those rights ONLY for the property that is already in that corporate form. Not for themselves as people or to provide future immunity for themselves.

  • SQRLSY One||

    I'm honestly a little confused...

    Do you then see a difference between a SELF-OWNED BAKERY refusing to bake a gay-wedding cake, v/s a CORPORATION bakery doing the same? Just curious...

  • JFree||

    Yes I do. If you are a sole proprietorship or a dba; then I do believe you have the natural right to refuse service.

    Once the oven is corporate property - and employees are just employees - then the oven/corporation ceases to have religious rights precisely because establishment of religion is unconstitutional and the state creates a lot of protections for that corporate form

  • Get To Da Chippah||

    The government hasn't established a religion of the corporation, the people who formed it did.

  • JFree||

    Individuals cannot 'establish' religion. Only govt can - by the very meaning of the term. Madison and Jefferson in particular were very clear (and uniquely American) in defining those limits. They would have been gobsmacked by the notions of the rights we are granting to property - esp since we seem to have settled the one property issue (slavery) that they culturally/temporally just weren't able to deal with.

  • Get To Da Chippah||

    Individuals cannot 'establish' religion.

    Which government established Pastafarianism?

    Also, does this mean you think the government can turn Google HQ into an Army barracks whenever they want? The building is merely 'owned' (if such a thing can even be applied to a non-human entity) by a corporation, so nobody's rights would be violated if they did, right?

  • Get To Da Chippah||

    Individuals cannot 'establish' religion. Only govt can

    Has the government 'established' Catholicism by recognizing the Catholic Church as a non-profit organization?

  • JFree||

    Has the government 'established' Catholicism by recognizing the Catholic Church as a non-profit organization?

    They have certainly established the rules/protections/regulations/etc for all 501(c)3 corporations.

    Whether those specific rules/protections constitute civil/statutory 'establishment' - or just common-law recognition (a dba for the group of religious individuals acting in concert) - is a legitimate argument for public discussion.

    But there is NO question that all the other forms of incorporation cannot simply be assumed to have religious protection if religions themselves are required to incorporate under 501(c)3

  • JFree||

    Just to give an example where that 501(c)3 incorporation of religion can possibly turn into establishment. Is the Catholic Church able to protect individual priests from the criminal consequences of their kiddie-diddling because of a 'corporate veil'? Or is that sort of behavior protected behavior because of free expression of religion?

  • Get To Da Chippah||

    Then it seems we agree that the U.S. has recognized a religious organization as a corporate entity without officially endorsing anything about the tenets of the religion itself. So recognizing any other corporation set up around religious beliefs does not by itself indicate 'an establishment of religion' prohibited by the First Amendment.

  • JFree||

    it seems we agree that the U.S. has recognized a religious organization as a corporate entity without officially endorsing anything about the tenets of the religion itself. So recognizing any other corporation set up around religious beliefs does not by itself indicate 'an establishment of religion' prohibited by the First Amendment.

    It has recognized that 'religion as property owner' AS A 501(c)3. There is absolutely no other form of incorporation that recognizes a corporation set up around religious beliefs. A religion (say the Church of Me Myself I) cannot claim that form of religion as property owner under any other form of incorporation.

  • JFree||

    does this mean you think the government can turn Google HQ into an Army barracks whenever they want?

    See below re the different entities of a 'corporation' here. I think that is very explicitly a taking of property (no matter what the form of that property's ownership). And it is thus a constitutional right of the owners-as-constitutionally-protected-humans - and possibly a right of the property-in-corporation to not be taken/enslaved without due process.

    That said - I do think that any/all constitutional rights of corporations should be defined positively by the state. The 9th and 10th amendments do NOT apply to corporations per se. They have NO natural rights beyond what the state itself grants to that form. The state should explicitly define those limits of form so that individuals can make better decisions about the forms in which they will choose to own their property.

  • Get To Da Chippah||

    See below re the different entities of a 'corporation' here. I think that is very explicitly a taking of property (no matter what the form of that property's ownership). And it is thus a constitutional right of the owners-as-constitutionally-protected-humans - and possibly a right of the property-in-corporation to not be taken/enslaved without due process.

    Why would a corporation have a right to due process? Is a right itself a form of property, in that it can, in a sense, be taken away by oppression? If so, then taking away anyone's right without due process is an illegal taking.

    While I tend to agree that the 9th and 10th amendments generally don't apply to corporations, it seems to me that the restrictions upon government laid out in the first 8 Amendments to the Bill of Rights should apply equally to corporations and people.

    In your hypothetical below, the government doesn't establish a religion by acknowledging and protecting the religious-based charter someone drafts their corporation around. They merely accept its existence and protects it to the same extent they are obliged to protect any other corporate charter. The government is supposed to be neutral in that regard, and acting to protect any existing charter, no matter how 'odious,' should not ever be construed to be an endorsement of the particulars of the charter.

  • Brett Bellmore||

    But people don't form corporations for fun. They form corporations because the government's own tort system has rendered doing anything involving any significant amount of money legally perilous unless you do form one.

    The government can't ramp up the threats to business to the point where it's effectively impossible, and offer a safe conduct if people give up the exercise of civil rights. Rights don't work that way.

  • JFree||

    the government's own tort system has rendered doing anything involving any significant amount of money legally perilous unless you do form one.

    So fucking what? Your very soul and conscience is at stake in religion. It's disingenuous at best to argue that religion is important enough to you so govt has to keep its effing hands off but then turn around and protect the religion of your property from the consequences of your own personal actions motivated by religion.

    Or are you arguing that your property has its own freedom of religion? Can your oven or your dog choose to be a gay Buddhist if you are a Westboro Baptist?

  • Eddy||

    "turn around and protect the religion of your property from the consequences of your own personal actions motivated by religion"

    Indeed, an excellent argument for imposing fines on people for following the wrong religion - money is simply a form of property, so what if you have to give up certain property for your religion at the demand of a persecuting government?

  • Eddy||

    I mean, your *money* doesn't have a religion, does it? God forbid! (so to speak)

    So you should be willing to part with your filthy money for the sake of your religious purity!

    Likewise with your politics - unless you went into politics for the money, you shouldn't object to being fined for your political opinions. Your money doesn't have politics, after all!

  • Brett Bellmore||

    No, I'm arguing that the government can't threaten everybody, and then remove the threat if they give up their rights.

  • Fredo||

    "precisely because establishment of religion is unconstitutional "

    That... Isn't even in the same universe as accurate and is definitely NOT what the Constitution says.

  • JFree||

    Just to stretch the issue for discussion:

    Say you create a corporate charter on your deathbed granting all your property to a corp that will fulfill odious personal religious beliefs - with a corporate charter that explicitly carries that out. You then die.

    Are you saying the state now has the obligation to protect that corporation's charter? Because I view that as not just establishment of religion - but protection of that establishment for a DEAD person at the expense of all living humans at that point.

  • Eddy||

    So the government, in deciding which religious corporations to recognize, should distinguish between religious beliefs that are "odious" and those which are not?

    Otherwise why not simply object to any religious corporations whatsoever, as Madison said he did?

  • Eddy||

  • JFree||

    why not simply object to any religious corporations whatsoever, as Madison said he did?

    That seems perfectly reasonable as an option in public discussion. But it is fucking immoral to then turn around and recognize religious protections to other corporations when religion itself can't incorporate.

  • Eddy||

    What about a secular charity whose managers are motivated by religious concern for the poor?

    Close those down, too?

    Or is it a matter of which religious opinions are "odious" and which are politically correct?

  • JFree||

    Those are covered under 501(c)3 too.

    Again - maybe there are reasons to discuss what 501(c)3's can or cannot do to claim the religious protections for their property. Or that maybe they shouldn't even exist.

    But regardless -

    The ONLY form of incorporation that should allow for 1A 'religious protection' is a 501(c)3. Otherwise 'freedom of religion' is a natural right that applies ONLY to human people. NOT to corporations. And the same principle applies imo to all of the other constitutional protections (though obviously the explicit constitutional protections/restrictions that apply to property are different than the ones that apply to humans - and thus require understanding that they are different).

    Either that or let's just be done with it and stop pretending and amend the constitution's preamble from 'We the People' to 'We the Fortune500'. Because that's where full corporate personhood is going.

  • Eddy||

    I don't get it - a corporation is less corporation-y if it's organized under 501(c)(3)?

  • JFree||

    a corporation is less corporation-y if it's organized under 501(c)(3)?

    A 501(c)3 is prohibited from delivering profits back outside the corporate form to shareowners. It cannot be sold because it has no non-corporate owners. All its profits must be retained and plowed into very specific defined endeavours in order to remain a 501c3. There are plenty of other restrictions on it. It IS no longer the property of those who initially funded it so there is no separate corporate claim that those owners can make for their own personal religious protection outside that corporate form.

    Again there may be legitimate grounds for arguing that the specific 501c3 provisions need fixing to avoid 'establishment'. But it is just insane BS to argue that every other form of incorporation unrestricted by the 501c3 restrictions gets that religious protection for itself.

  • Eddy||

    Again, I fail to see what makes a corporation less corporationey because it's organized under 501(c)(3). Of course it can't make nasty, filthy profitses, but as you say, it's still as much of an artificial person as a profit-making corporation like the New York Times.

  • Eddy||

    At least Madison's veto was of an incorporation bill for what today would be a 501(c)(3) corporation, so while kind of strong on his establishment clause argument, he didn't try to distinguish based on filthy profitses.

  • JFree||

    he didn't try to distinguish based on filthy profitses.

    God you DeRps are such fucking morons. It has to do with ESTABLISHMENT. Not your stupidass political DeRp BS.

    If a religion wants to say own the land its church is on, it has to own it via some form that likely can't be purely individual ownership. It wants to own it as a congregation. But it also wants to eg discriminate in its own hiring to hire only its fellow congregants. That latter is a RELIGIOUS 1A exemption - from laws that every other form of corporation is required to follow because those do NOT have 1A religious exemptions. For the simple reason that freedom of religion/conscience is a natural HUMAN right not a natural (or a state-granted) CORPORATE right. Conscience is INDIVIDUAL.

    The only solution is to create a unique form of incorporation that is able to be used to own the churchland - and be exempt from laws that ban religious discrimination by other corps - while not having any of the advantages of corps that would constitute 'establishment'. And yes 'profitses' is one of those because the ability to drain money from the corporation to individual shareowners while maintaining limited liability for the corporation (and religious discrimination) would be a state-granted advantage to any religion so structured (by the state's approval).

    Obviously you don't get it.

  • JFree||

    it's still as much of an artificial person as a profit-making corporation like the New York Times.

    The difference is that a corporate entity that has no privileges/protections/subsidies/etc may still be a civil/statutory form - but it's as close as you can get in this world to a mere common-law based recognition of a group of individuals acting in collective. Similar to a dba. And that may be necessary in a world where people do practice their religion in collective.

    That does NOT mean that corporations have religion rights. And it certainly should not mean that individuals exercising their religion in collective should have a leg up compared to individuals whose religion is a matter of individual conscience.

  • Eddy||

    Then I am unclear about the nuances of your position.

    You seem to at least acquiesce in Citizens United and its "recognition that individuals have the right to combine their resources in order to speak."

    What about other rights, whether constitutional or natural, in addition to the right to speak?

    If it's the corporate form you object to, is it the case that an individual businessman acting without a corporation has the right to object to gay cakes, but that same individual who combines with others in a corporation loses that right?

    If the individual can be obliged to make a gay cake, then the corporate status question is irrelevant. But if an individual has the right to refuse a gay cake, how does he lose that right because he organizes his business with others in a more legally-favorably way, pursuant to laws available to all businesses?

  • Eddy||

    Hmmm...I rarely say this, but I think SQRLSY One made my point in a shorter and pithier form.

  • JFree||

    IOW what I'm really saying is that the state has the absolute positive right to define the limits of what corporations can and cannot do. The state is the entity that authorizes that corporate charter. Corporations have no per se natural rights outside of that.

    And this needs to be a serious public discussion. We've gotta stop playing games that owners/shareholders ARE the corporation themselves. They are not. They are multiple separate entities at that point - with very different constitutional rights:

    Owners/shareholders as humans separate from that corporate entity.
    Owners as agents/executives making positive property decisions about that now-corporate property
    Owners as principals defending that now-corporate property from say 'taking'
    Corporation itself

  • Fairbanks||

    But every business is some form designated and licensed by the state, at least in the states in which I've done business. So everyone gives up their constitutional rights if they are conducting business?

  • JFree||

    Nice strawman re 'everyone gives up their constitutional rights'. I already stated there are, at least, four separate entities. So WHO is supposed to be giving something up - and WHAT exactly are the constitutional rights they are supposed to be giving up?

  • Mark22||

    They are multiple separate entities at that point - with very different constitutional rights:

    You're starting from the erroneous assumption that there is something like "constitutional rights". In the US, government has certain delegated powers.

    The 1A doesn't say that individuals have a right to free speech. The US government has explicitly and unconditionally been denied the power to interfere in free speech under the 1A, and that is true whether it is your individual speech or the speech of Sanders, Apple Inc., or Putin.

  • JFree||

    In the US, government has certain delegated powers.

    Please point out where govt is explicitly authorized to grant/recognize/protect corporations.

  • Fredo||

    As soon as you tell me how many people need to exercise a right together before they lose it.

    5? 10? 100?

  • JFree||

    No. You tell me EXACTLY where the Constitution explicitly authorizes corporations. Otherwise - THEY DON'T EXIST in the constitution. And if they can't be protected by the law, then they are outside the law - and I can take their property just as I can any drug dealers. May be dangerous - but they would have no recourse via the law.

  • loveconstitution1789||

    The Constitution is 100% silent as to corporations.

    When a state authorizes a business to be a corporation and it engages in interstate commerce, then Congress would have regulation power.

    I think regulation of business and corporations should be minimal but they are not to be protected like individual people. One such difference is citizens can vote while businesses cannot.

  • JFree||

    The Constitution is 100% silent as to corporations.

    As it is to Social Security and Medicare and unlimited Presidential ability to wage war and a ton of other things that govt does that libertarians correctly object to.

    And if the states themselves do have the explicit constitutional authority to create/protect corporations, those are NOT incorporated into the federal constitution. Many states also have the ability to shoot dogs without due process. Neither dogs NOR corporations are recognized as 'We the People'

  • loveconstitution1789||

    It is unconstitutional to take property without compensation. Shooting a person's dog requires compensation.

    The fact that states ignore the US Constitution and their own state constitutions is not an excuse to continue to do it.

    It should end because the US and state constitutions dont allow uncompensated taking of property.

  • JFree||

    I am perfectly willing to provide constitutional protections that apply to property to property in the form of corporate property. That makes complete sense. But the decision to do that is as much part of the right of the people to self-govern as is their right to decide the parameters of immigration to the territory of the US. It is NOT a natural right of corporations to assert that right.

    I am not at all willing to provide constitutional protections that apply to humans to property in the form of corporate property. Lincoln's 'government of the people, by the people, and for the people' is an idea of HUMAN self-governance. Corporations are, at best, PROPERTY of people. To the degree that they are COLLECTIVE property, then I'm ok with ensuring that the individuals involved do not lose their individual rights in choosing to engage in collective efforts. But they damn well should not be gaining additional protections unavailable to an individual - that come at the expense of the individual

  • BigT||

    A corporation is a contract. State protects contacts.

  • Fredo||

    "IOW what I'm really saying is that the state has the absolute positive right"

    Oh ok, you're an idiot.

  • Mark22||

    The owners are not giving up shit in adopting a corporate form for their property. If they did, they wouldn't do it. They are a)being granted eternal life for their property - ie state is essentially acting as St Peter at the pearly gates granting their property entrance into heaven

    Contracts and legal obligations already survive the death of the people who originally singed them; that's an essential guarantee of any society that protects private property.

    and b)limited liability for themselves for their own actions in this world - follow some easy rules and hey presto no real consequences beyond what you already gave to that corp

    This may or may not be a reasonable argument for contractual law, but it's hard to see how it has any bearing on 1A issues. After all, under the Constitution, there ought not to be any legal consequences for exercising freedom of speech, freedom of association, or freedom of religion for individuals, so a limited liability for corporations doesn't create any new rights that individuals don't have.

  • JFree||

    guarantee of any society that protects private property

    Define 'private'. That means ownership by an INDIVIDUAL. All individuals die. So no there is no natural or constitutionally protected 'right' to that protection of your right-to-own after you die. The Constitution was not written to protect dead people. Any society that protects dead people at the expense of the living deserves to die itself.

    If it means ownership by a group of individuals acting in concert; then the individuals still do die even if the group itself persists. So the particular corporate form of ownership should have some recognition of that partial death event - or it too will gradually protect the interests of the dead not the living. That is where we have gone off-track in this country at setting corporate ownership over individual human ownership

  • loveconstitution1789||

    Technically, the Constitution does protect dead people's rights.

    Article I, Section 8:
    [...]
    To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

  • JFree||

    The phrase 'limited times' was back then an explicit acknowledgement that the protection de facto ends at the human death of that author or inventor. Legally obviously its easier to just grant '14-years with no extension' (the first patent act of 1790 - which also required two of the SecyWar, SecyState, or SecyTreasury to personally approve the patent) than it is to track everyone's death date. And it avoids the conflict of interest of people killing the patent owner in order to file their own patent or eliminate the patent protection.

    But it's no accident that 14 years was also roughly the age of majority - iow if you die tomorrow and your wife is pregnant, she will be able to rely on the patent protection until the child is old enough to take care of themselves and the ex-wife.

  • loveconstitution1789||

    The government gets to decide what that limited time period is.

    It does not sutomatically end upon death.

  • Fredo||

    "That means ownership by an INDIVIDUAL."

    No it doesn't, and asserting it does makes me legitimately wonder if you're retarded.

  • JFree||

    Eat my dingleberries Fredo.

  • JFree||

    there ought not to be any legal consequences for exercising freedom of speech, freedom of association, or freedom of religion for individuals

    No legal consequences from the state. But common law has a long history of legal consequence from other people who are harmed by those actions.

    When Texas executes a corporation for actions that result in murder (say pouring arsenic in your drinking water), then maybe corporations will have the same legal consequences as an individual (who pours arsenic in your drinking water as an expression of their duty for jihad).

  • Michael Ejercito||

    Debate: Bakers Sign Makers Should Not Be Forced To Produce Cakes Signs for Same-Sex Weddings Westboro Baptist Pickets: New at Reason

  • OGREtheTroll||

    Since when did compelled speech become verboten but compelled conduct is just fine and dandy?

    It doesn't matter what the Constitution says or doesn't say about this. Forcing someone to participate in something that is anathema to their core belief system is morally repugnant. The Constitution is not some Holy text that determines right and wrong, good and evil; as Volokh says it is just a government creating charter. These arguments about whether baking a cake is speech subject to 1A protection is just a silly distraction from the real issue, which is having the government force people to do things they don't want to do. Whether its a good thing or bad thing they don't want to do doesn't matter, because once we cross that line where compelled conduct is OK in some circumstances we are too far gone.

  • Homple||

    Yet the decision failed to resolve this issue once and for all in favor of business owners with moral reservations. It left open the possibility that laws compelling bakers and florists to participate in marriage celebrations against their will could be upheld, as long as the state or city applied the regulation even-handedly.

    What the decision failed to do was prevent social justice warriors from using government power to ruin a man who stood up for his religious principles. Which principles, by the way, in no way hinder the social justice warriors getting all the cakes, wedding photographs, flowers or pizzas from abundant other businesses. In our tens of thousands of pages of laws, court decisions and regulations there is always something useful for attacking someone the left dislikes and a government apparatchik hot to help with the assault.

    Governments do not now apply regulation even handedly, nor are there signs that they will do so in the future. Discussions about the Constitution itself and freedom itself should start with this observation.

  • Tony||

    The real problem is the slippery slope. If we decided that antidiscrimination law was unconstitutional, I'd be able to open a floppy dildo shop and refuse to serve Christians, and then it'd be nothing but bitch bitch bitch from the Christians.

  • sarcasmic||

    Jesus, who wants a floppy dildo?

  • Fredo||

    Tony apparently.

  • Get To Da Chippah||

    Yes, but it would be nothing but bitch, bitch, bitch, instead of lawsuit, lawsuit, lawsuit.

  • Tony||

    Are Christians known for being especially averse to lawsuits?

  • Get To Da Chippah||

    You missed the point. If antidiscrimination laws were repealed, you couldn't sue over it. Thus, it would be nothing but bitch, bitch, bitch. At least until they found some other floppy dildo shop to get their floppy dildoes from.

  • Get To Da Chippah||

    Well, I suppose they could still bitch about having to go to Not-Tony's Floppy Dildo Emporium for their floppy dildo needs.

  • Tony||

    Ah. Well then we can look forward to a world in which whether certain types are people are expelled from shops depends on their level of power in society, and wouldn't that be a big step forward.

  • sarcasmic||

    If I ran a business I'd refuse to server anyone named Tony. Unless they're on a cereal box.

  • Get To Da Chippah||

    And the only time that's happened was when the government punished businesses for failing to do so. The Jim Crow era was the result of laws passed at local, state, and federal levels. Plessy vs. Ferguson started when a railroad company decided to sell a mixed-race person a first class ticket and didn't have a separate first class car for him to sit in by himself. The 'evil' corporation was perfectly willing to treat him equally, in violation of Louisiana law.

    Dullards like you seem to think that corporations are somehow both primarily concerned with profit over all other considerations, yet still willing to forego profit to be racist and sexist.

  • Get To Da Chippah||

    Correction: The railroad company had a separate car, but opposed the segregation law because it required the purchase of rail cars that they knew would be mostly empty all the time. So the law, like all 'separate but equal' laws, actually forced businesses to be less profitable. Plessy intentionally sat in a whites only car and refused to move, and was arrested immediately by a detective the activist group hired so as to avoid Plessy being arrested for anything else but violating the segregation law.

  • JFree||

    The Jim Crow era was the result of laws passed at local, state, and federal levels.

    Mostly it wasn't. It was the result of state-level constitutional changes that stripped voting rights. Thus stripping them of their ability to be in jury pools. Thus eliminating any remedy in the court system for anything - or any willingness of juries to hold whites responsible for extrajudicial threats/actions.

    Yes there were probably tens of thousands of laws and ordinances. But the real enforcement was lynching and terrorism. Social pressure to the point of violence applied to anyone who challenged a community's 'norms'. The laws were petty and inconsequential compared to that.

    Further, there's a real disingenuity by pretending that the CRA Act 1964 was not needed because 'things would have gradually gone away with tens of thousands of changes in local law'. That's just as much BS as saying that slavery would have eventually gone away. It's wrong. And it is tone-deaf re actual liberty - since it excuses continuing grievous injustice and harm until forever arrives.

  • Get To Da Chippah||

    Yes there were probably tens of thousands of laws and ordinances. But the real enforcement was lynching and terrorism

    Lynchings that grew rarer and rarer until by 1940 were in the single-digits per year, nationally, while discriminatory laws persisted for another generation.

    Further, there's a real disingenuity by pretending that the CRA Act 1964 was not needed because 'things would have gradually gone away with tens of thousands of changes in local law'. That's just as much BS as saying that slavery would have eventually gone away. It's wrong.

    Slavery wouldn't have gradually gone away like lynchings did. The Industrial Revolution would have put the final nail in the coffin of slavery pretty quickly because increased automation makes manual slave labor a more costly and less productive option.

    And the CRA (or at least a SCOTUS ruling officially overturning Plessy) was obviously needed because the Jim Crow laws obviously weren't being repealed.

  • Michael Ejercito||

    Then maybe people should relocate to different societies where they have a higher level of power.

  • Tony||

    I'd be fine if the Christians all went to Mars.

  • loveconstitution1789||

    I'd be fine if Tony went to Hell.

  • Brian||

    "Let's pretend we're scared of gay ghettos, rather than seeking vengeance!"

  • Fredo||

    "we can look forward to a world in which whether certain types are people are expelled from shops depends on their level of power in society"

    It's better than the slavery you endorse, and if they are giving away business, it's actually hurting them. I have always wondered why you don't get that.

  • Tony||

    Shop owners in the Jim Crow south were practicing good business by kicking out blacks. They didn't want the buying public burning their shops down, now did they?

    That market stuff is special pleading nonsense. It might be true or it might not, depending on the community.

    Where did you get the idea, by the way, that owning property gives people absolute dominion in that space? That's not even the case with your own house. There are still rules you have to live by, like, say, don't murder babies, even on your own property. And you wouldn't want it any different.

  • loveconstitution1789||

    Since you dont live in the South, I can explain how Jim Crowe business never mad much money for shop owners. Its why most of the retail barons came out of the North and West regions of the USA.

    BTW: Do you know that black people did shop at businesses run by white Democrat Southerners? It was the rare business that refused to sell to black people. More and more businesses were moving away from segregation by 1965.

    I bet you would be surprised to know that I have met racist Democrat white women in the South who use the "N" word and still hired black kids to mow their yards and paid them above market price.

  • chemjeff radical individualist||

    Jim Crowe

    Russell's brother?

  • loveconstitution1789||

    The real problem is Lefties like Tony.

  • loveconstitution1789||

    Nearly everything they say and do is bad for America.

  • Earth Skeptic||

    We might as well go back to debating positive and negative rights, as in the right to wedding cakes or service at the lunch counter, or the right to speech and association.

    Cuz meanwhile, back in the real world (where most people don't know what's in the Constitution), its all about positive rights, seen through the lens of intersectional victimhood.

  • Eddy||

    Lester Maddox lost his fight to operate a segregated restaurant, and it will be a long time if ever before his position is rehabilitated.

    Now the contest is over what kinds of discrimination get to be treated like racial discrimination.

    I can't, offhand, think of anyone who denies that *some* discrimination should be legal - maybe there's some ultra-socialist even now seeking to deny all discretion to businesses as to who they serve or hire. But meanwhile the mainstream debate is over what is a "suspect class" like race and what is a permissible basis of discrimination like personal hygiene.

  • Eddy||

    Of course, even where race is concerned, if we look at the specific situation of wedding ceremonies, we have to admit we've gotten to the position in this country, contrary to how things used to be, that white people are expected to say they *wouldn't* mind a nonwhite person marrying their sister. Indeed, we expect them to come to their sister's wedding.

    Even Trump, the super-racist (/sarc), gave an audience to an interracially-married celebrity, and even the uber-racist Republicans (/sarc) admire an interracially-married Supreme Court justice.

    The people who *wouldn't* make wedding cakes for interracial weddings - even if it were legal to refuse - are probably a minority of holdouts, many of whom are likely nonwhites. (Ask a black woman if she'd want her *brother* to marry a white woman).

    So even in the worst-case (worst cake?) scenario, while there'd be holdouts to interracial marriage in a regime of freedom, there would be plenty of bakers, florists, etc. who would be happy to take an interracial couple's money and provide them with the requisites of a wedding ceremony.

    Since the holdouts wouldn't be blocking interracial marriage, why not let them forego the money of interracial couples if they want?

    So even under the "gay is the new black" argument we're hearing now, it's not a slam-dunk that there should be compulsory gay marriage cakes.

  • Rich||

    How should we feel about conscience-based discrimination?

    Obviously however the government forces us to feel.

  • sarcasmic||

    Discrimination, as long as it is not mandated by government like Jim Crow, creates market opportunities for people who aren't assholes.

  • SQRLSY One||

    Good point!!!

  • Fredo||

    This is both absolutely correct and irrelevant to leftists.

  • loveconstitution1789||

    As Sarcasmic said, I would use the opportunity to get all customers who would want to do any kinds of cakes.

    If I got enough dejected customers, I could put my prejudiced competition out of business.

  • Eddy||

    David Boaz was correct to boast that libertarians took up the gay-marriage-recognition cause before the Democrats and other Johnny-come-latelies.

    Don't Boaz and the rest should feel a little bit...betrayed...at how their sacred cause has been hijacked by the compulsory-cakes crows.

  • Eddy||

    Boaz and the rest...compulsory-cake *crowd*

  • Eddy||

    I'd go a bit further and say libertarians were Leninist "useful idiots" for politicians and political activists who were practicing standard "us vs. them" politics - rewarding friends and punishing enemies. The only innovation was moving gays from the "them" category to the "us" category, and putting the bakers, etc., into the "them" category.

    There was no net gain for "tolerance" or freedom - it's simply that politicians got a new set of friends to reward and a new set of "others" to screw over.

  • Francisco d'Anconia||

    Our Constitution isn't a libertarian document. It is a document that creates a charter for democratic government, with some protection for specific individual liberties, but generally in specific, identified zones.

    You present your argument (poorly) based upon the Constitution and current law. IOWs, you are arguing what is (agan, I stress, poorly) rather than what should be (from a libertarian perspective). You didn't address the topic:

    Debate: Bakers Should Not Be Forced To Produce Cakes for Same-Sex Weddings

    (emphasis mine)

    The reason, IMHO, you didn't address the topic is that, from a libertarian perspective, there is NO ARGUMENT that would morally allow one person to initiate aggression/force upon another. PERIOD!

    Clear winner = Klausner

  • SimonP||

    The reason, IMHO, you didn't address the topic is that, from a libertarian perspective, there is NO ARGUMENT that would morally allow one person to initiate aggression/force upon another. PERIOD!

    While I don't imagine you're wrong about this, it's always telling when libertarians have to equivocate like this. Very few people would naturally agree with characterizing anti-discrimination laws in the way you have here. The reason why you amp it up this way - taking a public accommodations law and calling it "aggression/force upon another," like buying a cake from you is tantamount to punching you in the face - is that it's rhetorically easier for you to make the case, from a libertarian perspective. Discriminating against gays just because they're gay? Hard to defend. Protecting bakers from being subjected to "aggression/force"? Easy to defend.

    All that said, there is in logic the technique of reductio ad absurdum, whereby a plainly false conclusion calls into question the veracity of the premises. Here, you are contending that libertarianism compels the conclusion that no private business owner, manager, or employee can properly be forced by the state to deal commercially with any particular counterparty, no matter the irrationality of their reasons for not doing so, regardless of the effects of such discrimination considered on a social scale. So it may be. But why shouldn't that be a problem for a libertarian perspective?

  • Ken Shultz||

    Rights are the obligation to respect other people's choices.

    The only legitimate purpose of government is to protect our rights.

    Using the coercive power of government to inflict your choices on other people is an illegitimate use of government called "oppression".

    One of the key differences between authoritarianism and totalitarianism is that where authoritarians seek to use the coercive power of government to control what people do, totalitarians seek to control what people think.

    No, doing what you're told isn't good enough for totalitarians. You must love the choices they make for you in your heart. In a totalitarian society, the authenticity of your own desires and choices starts to break down. The distinction between what the government wants and and what you want and choose fades and sometimes even disappears.

  • Ken Shultz||

    Two interrelated observations:

    1) Morality cannot exist without people being free to choose other than what they've chosen.

    2) When government oppression deprives people of their authentic desires and the freedom make choices, it drains the issue of morality.

    In other words, using the coercive power of government to inflict your "good" intentions on others cannot be good if the definition of "good" depends on the freedom of others to choose other than what you've chosen for them. In fact, morality requires us to stand up for the rights of both homosexuals and homophobes--to choose for themselves. If you don't want to make standing up for the right of stupid homophobes against the government the only moral option, then you must stop advocating using the coercive power of government to inflict your personal preferences on other people.

  • Tony||

    And government should protect people's right to go into shops without being booted out for being gay. Ta-da!

  • loveconstitution1789||

    Nope.

    Libertarians would NEVER support using government to force people to associate. Its why you lefties hate us.

  • Tony||

    If government isn't enforcing customers' right to be free from discrimination, it's enforcing shop owners' rights to discriminate. There's no such thing as the government not taking a side.

  • Keegan Vickers||

    Not really. The only reason government would be involved is because gays refuse to leave when asked, I.e they trespass and are breaking the law. That's on them refusing to accede to the owner's request and breaking the law, so the gays in question are causing the government intervention, no one else is.

  • Tony||

    Absolutely. So if a sandwich shop owner doesn't like black people, he can have government goons come and forcibly remove them. Government takes his side over theirs. We tried it like that you know.

  • loveconstitution1789||

    Yup. Its trespassing if the owner of a business does not want you in their establishment.

  • Keegan Vickers||

    No, actually, when you agreed with he you agreed that it wasn't the shop owner who has "government goons come and forcibly remove them" but the trespassers themselves.

    You should read what you reply to.

    "We tried it like that you know."

    Not really, Democrat Jim Crow laws only had some of the same effect.

    It is interesting however, that you continue to claim a right to break the law, and continue to act as though you aren't the one causing the "goons" to descend upon you with your entitled, anti-social behavior.

    If you ran let over in a crosswalk, it wouldn't be me involving the "goons" it would be you involving them with your behavior, just as when you trespass.

    The truth of that argument has always been obvious.

  • Fredo||

    Tony believes rape victims are having "government goons come" to deal with the rapists.

    Really, read it, he says it.

  • Tony||

    Yes, government goons come to deal with crime. It's a crime to boot people from your public accommodation shop for being the wrong race or religion.

  • loveconstitution1789||

    Tony, what skin color are Americans again?

    What religion are Americans again?

  • Tony||

    Your president is the color of no other human and is the only member of the church of himself.

  • loveconstitution1789||

    Tony, so no answer for what I said about American skin color?

  • Keegan Vickers||

    It's also a crime to trespass.

  • loveconstitution1789||

    People discriminate based on countless reasons, all the time and every day.

    Government not taking a side, is taking the side of freedom of association/contract/assembly. You just dont like it when government is not forcing their will on businesses and people.

  • Tony||

    It's legitimate to want government to enforce maximum property rights and thus show up with jackboots and guns to eject customers because the owner doesn't like their skin color or sexual orientation. I merely think that the alternative, where government enforces customers' right to be free from such discrimination, is a superior regime. Because it is.

    You're not for more liberty. You're for more liberty for people with power and less liberty for the rest.

  • loveconstitution1789||

    NO its not Tony. Those days are over. Lefties are losing.

    We are going back to more freedom, not less freedom. Americans are sick of what you Lefties have done. You have fucked up America.

    You just have brain damage Tony, and that's okay. We all know it here and treat you accordingly.

    Maximum Liberty under the Constitution is what I am for.

  • Tony||

    But this is a clear case of conflicting liberties. The liberty of the shop owner to boot people out for being black vs. the liberty of the black customer to shop in his community like everyone else.

  • loveconstitution1789||

    There is no right to force others to sell to you. No matter what your skin color.

    Only a moron racist would not sell to someone because they are a certain skin color. They deserve to go out of business.

    What skin color are Americans again, Tony?

  • Keegan Vickers||

    Tony endorses a version of slavery. Debating this with him puts you in the position of overcoming the objections of someone who thinks that enslaving other people for his benefit is worth doing.

    I don't know how you overcome zealotry like his. I don't think you can.

  • Tony||

    Well I frankly don't understand how someone has the nuts to compare antidiscrimination law to slavery.

  • Keegan Vickers||

    You are forcing people to do work agaisnt their will under threat of force.

    That you don't understand that, as you admit, is entirely the problem.

  • Tony||

    You don't see color, is that it?

  • Keegan Vickers||

    What color is gay?

  • loveconstitution1789||

    So Tony refuses to answer the question because he cant.

    Americans come in all races.

  • loveconstitution1789||

    Tony never liked that people cannot be forced to do business with him.

    He wants to be the biggest asshole in the room and expect everyone to do what he wants.

  • Ken Shultz||

    "In fact, morality requires us to stand up for the rights of both homosexuals and homophobes--to choose for themselves."

    I'm not sure whether Tony doesn't read before he posts or if he doesn't understand what he reads, but I'm sure it doesn't matter.

  • Fredo||

    They aren't being booted out for being gay. They are being booted out because the property owner wants them out. Nothing beyond that is your business.

  • Tony||

    Then why did they admit that they kicked them out for being gay? Could it be because there's a national concerted effort by Christians to make their superstitious bigotry the law of the land?

  • loveconstitution1789||

    Christians cannot be forced to bake cakes for homos Tony.

    Get it thru your thick skull.

    Why would you want to give money to a prejudiced baker anyway?

  • Tony||

    That's the question at hand isn't it. May the correct people win.

  • loveconstitution1789||

    Freedom is making a comeback. I hope it wins.

    I hope people like you who hate Liberty, continue to lose.

  • Tony||

    I think you're mistaking the senile ranting of a gelatinous orange wannabe Mugabe for freedom. Do pay more attention.

  • loveconstitution1789||

    Poor Tony know this is true, which makes him foal at the mouth.

  • loveconstitution1789||

    *foam and foal.

  • Keegan Vickers||

    "Then why did they admit that they kicked them out for being gay?"

    Because they were asked, I imagine, but that is an irrelevancy as I stated. The owner's desire to not serve them is sufficient, if the owner chooses to elaborate, he can, but it changes nothing.

  • Tony||

    It's your prerogative to endorse that way of doing things, but don't pretend it's the smaller-government option or the pro-freedom option. It's just you wanting government to enforce bigotry in shops.

  • Keegan Vickers||

    No, it's you wanting to trespass with no consequence.

  • Fredo||

    Tony believes rape victims are having "government goons come" to deal with the rapists.

    Really, read it, he says it.

    He actually thinks a rape victim is the aggressor when they call the police on their rapists.

  • Keegan Vickers||

    Tony doesn't respect property rights, which have a much longer, much more substantial legal history than his social justice rights have. That he discards property rights without considering that others can similarly discard his social justice rights does not seem to cross his mind.

    After all, why would anyone respect his opinion about rights when he does not reciprocate?

    But that is not his real problem. His real problem is his growing understanding that he is losing this, legally and in the minds of the public, and the Kavanaugh confirmation is the death knell for his social justice endeavors. He will have to go back to dealing with other people on their terms, and he realizes I think that people won't like him. Without government force, he has to deal with the consequences of that on his own,and he knows he isn't up to the task.

  • Tony||

    I don't understand why you'd be happy about scaling back the number of rights we enjoy.

  • loveconstitution1789||

    You're confused. You want more government force, not rights.

    You can have all the rights you want as long as they dont infringe on other people's rights.

    You are crazy and stupid. That is your right. Until your lunacy compels you to hurt some law abiding person because you're mad that Trump wins reelection in 2020.

  • Keegan Vickers||

    Like freedom of association, which has enormous legal support and precedent?

    I don't understand why you think enslaving people for your benefit is civil beahvior.

  • Tony||

    No right is absolute. Just because you have property rights doesn't mean you can murder people on your property. Kicking out customers for being black is not as bad as murder, but that doesn't mean there can't be a law against it.

  • Keegan Vickers||

    "Just because you have property rights doesn't mean you can murder people on your property. "

    Is this supposed to be a lucid point? It isn't.

    "Kicking out customers for being black is not as bad as murder, but that doesn't mean there can't be a law against it."

    And the presence of a law doesn't mean something is Consitutional.

    Meanwhile, your solution enslaves people. There is a law against that

  • Tony||

    Forcing people to obey the law is slavery? Surely only in very specific instances.

  • Keegan Vickers||

    Forcing people to do work for you against their will is slavery.

    Stop trying to dodge it

  • Tony||

    I know, I can't count the number of times I've tried to order something at Taco Bell and the clerk was like "No thanks, I am not a slave." And I got no nachos.

  • loveconstitution1789||

    The 'right' to force people to work for others is slavery and has been banned.

    The right to keep and bear Arms is absolute.

  • dunstvangeet||

    Obeying Anti-Discrimination laws is not slavery (Heart of Atlanta Motel v. U.S.)

    And the right to keep and bear arms is not absolute (D.C. v. Heller). Even Scalia acknowledged that certain regulations of the right would pass muster.

  • Procyon Rotor||

    You keep bringing up Supreme Court decisions as if anyone cares what those assholes think. They're just human beings. They can be wrong. Frequently, their decisions are staggeringly idiotic. Being forced to work for someone you would not consent to work for is slavery.

  • dunstvangeet||

    You're more than welcome to believe that it is slavery, just as you're more than welcome to believe that an invisible pink unicorn brings you candy when it farts rainbows. Doesn't make it actual slavery.

    The Supreme Court unanimously rejected the view that obeying anti-discrimination laws is slavery.

    As far as the right to keep and bear arms being absolute, I'll ask you two questions.

    1. Do you believe that the person next door to you should be able to own and operate a nuclear warhead? If your answer is no, then you don't believe in an absolute right to bear arms.

    2. Do you believe that a convicted serial murderer who's killed 50 people should be able to own a gun? If your answer is no, then you don't believe in an absolute right to bear arms.

    Like I said, it's not absolute.

  • dunstvangeet||

    You're more than welcome to believe that it is slavery, just as you're more than welcome to believe that an invisible pink unicorn brings you candy when it farts rainbows. Doesn't make it actual slavery.

    The Supreme Court unanimously rejected the view that obeying anti-discrimination laws is slavery.

    As far as the right to keep and bear arms being absolute, I'll ask you two questions.

    1. Do you believe that the person next door to you should be able to own and operate a nuclear warhead? If your answer is no, then you don't believe in an absolute right to bear arms.

    2. Do you believe that a convicted serial murderer who's killed 50 people should be able to own a gun? If your answer is no, then you don't believe in an absolute right to bear arms.

    Like I said, it's not absolute.

  • dunstvangeet||

    You're more than welcome to believe that it is slavery, just as you're more than welcome to believe that an invisible pink unicorn brings you candy when it farts rainbows. Doesn't make it actual slavery.

    The Supreme Court unanimously rejected the view that obeying anti-discrimination laws is slavery.

    As far as the right to keep and bear arms being absolute, I'll ask you two questions.

    1. Do you believe that the person next door to you should be able to own and operate a nuclear warhead? If your answer is no, then you don't believe in an absolute right to bear arms.

    2. Do you believe that a convicted serial murderer who's killed 50 people should be able to own a gun? If your answer is no, then you don't believe in an absolute right to bear arms.

    Like I said, it's not absolute.

  • dunstvangeet||

    You're more than welcome to believe that it is slavery, just as you're more than welcome to believe that an invisible pink unicorn brings you candy when it farts rainbows. Doesn't make it actual slavery.

    The Supreme Court unanimously rejected the view that obeying anti-discrimination laws is slavery.

    As far as the right to keep and bear arms being absolute, I'll ask you two questions.

    1. Do you believe that the person next door to you should be able to own and operate a nuclear warhead? If your answer is no, then you don't believe in an absolute right to bear arms.

    2. Do you believe that a convicted serial murderer who's killed 50 people should be able to own a gun? If your answer is no, then you don't believe in an absolute right to bear arms.

    Like I said, it's not absolute.

  • dunstvangeet||

    You're more than welcome to believe that it is slavery, just as you're more than welcome to believe that an invisible pink unicorn brings you candy when it farts rainbows. Doesn't make it actual slavery.

    The Supreme Court unanimously rejected the view that obeying anti-discrimination laws is slavery.

    As far as the right to keep and bear arms being absolute, I'll ask you two questions.

    1. Do you believe that the person next door to you should be able to own and operate a nuclear warhead? If your answer is no, then you don't believe in an absolute right to bear arms.

    2. Do you believe that a convicted serial murderer who's killed 50 people should be able to own a gun? If your answer is no, then you don't believe in an absolute right to bear arms.

    Like I said, it's not absolute.

  • loveconstitution1789||

    MAGA

  • Barry Gold||

    Which means precisely nothing, and is in no way germane to this discussion.

  • Tony||

    I think we need an article about whether future supreme court nominees are responsible for their attempted rapes while drunk.

  • Ken Shultz||

    Tony can't tell the difference between his own authentic desires and those of other people either, but that isn't because of oppressive government. No doubt, some people are more susceptible to thought control than others. Hell, some people make enthusiastic victims! If Tony hadn't found the progressives, he might have ended up with the Scientologists, paying through the nose for "treatments" with a tuning fork--and loving it. No doubt, he's the sort that would say he was "just following orders" as if being told to do something were somehow an excuse. Hasn't he argued repeatedly, here in these pages, that the victims of the Holocaust didn't have a right to their own lives--because their government didn't say so?

  • Tony||

    I met people at a bar once who were into putting tuning forks up their dick holes. Consensually.

  • Ken Shultz||

    I'm sure you'd make an excellent guard, Tony.

  • loveconstitution1789||

    Where do my feet go?

  • Keegan Vickers||

    This was always the purpose of the baseless, debunked Kavanaugh allegations, to give the left a smear to use against any of his decisions in the future. Leftists seem to have this willingness to insist on the accuracy of counterfactuals as long as they adhere to the leftist's narrative.

  • Tony||

    By any means necessary--the McConnell Rule.

  • Keegan Vickers||

    Nice to see you've become what you despise.

  • Tony||

    Is it that you think sexual assaulters are underrepresented on the supreme court? Because they're not.

  • loveconstitution1789||

    I bet we could find some Breyer high school sexual action, if we looked.

    Non-Lefties dont care. Nobody has come forward before, so he got away with it.

    Nobody believes Lefty sexual accusations anymore. You notice that Tony? That must really chap your chaps.

  • Tony||

    I don't care if it's true, I only care if it matters. You people must be stopped by any means necessary, because you are evil and stupid.

  • Keegan Vickers||

    Well, it doesn't matter. You know that.

    Meanwhile, as you dodge it, the accusation that you have admitted to becoming what you despise still lingers.

  • Tony||

    When did I say I despise hardball, even Machiavellian, politics? If anything I've been begging Democrats to get their head out of the unicorn's ass and start matching Republicans in ruthlessness.

    And we don't know if it matters or not. Probably not, as Republicans, in addition to being ruthless, have no morals. But justices can be impeached.

  • loveconstitution1789||

    Impeached Democrats will be the next new thing Trump gets done.

  • Keegan Vickers||

    "When did I say I despise hardball, "

    McConnell and the R's smart guy, try to keep up.

  • Keegan Vickers||

    "And we don't know if it matters or not"

    No. We do. It doesn't. You lost. You behaved in the most base, disreputable fashion, a way you hate the Republicans for behaving, and you still lost.

    You are in the filth, covered with slop, and the pig won. Grats.

  • Tony||

    Well I didn't try to rape anyone.

  • Mickey Rat||

    So you succeeded?

  • loveconstitution1789||

    Tony wants to murder people though.

  • loveconstitution1789||

    By any means necessary-- the Harry Reid Rule.

  • Horny Lizard||

    Shit, he fits right in with the rest of team degenerate.

  • loveconstitution1789||

    I think we need an article about whether the Senate will speed up confirming Kavanugh this week.

  • loveconstitution1789||

    I think we need an article about how Trump will get to nominate SCOTUS justice replacements for Thomas (retiring soon) along with replacing RBG and Breyer when they croak while being dumbasses.

  • Tony||

    Crack is whack.

  • loveconstitution1789||

    Poor Tony is gonna be more erratic than normal when RBG and Breyer get replaced by Trump.

    He will hate it so much. Crack and every other dug will not be enough to curb his depression.

  • OpenBordersLiberal-tarian||

    Orange Hitler will be out of office by this time next year. RBG and Breyer will still be there, fighting for issues important to the progressive / libertarian alliance.

    By the way, how is your "Red Wave" prediction looking now?

  • loveconstitution1789||

    MAGA

  • OpenBordersLiberal-tarian||

    Didn't you hear? Kavanaugh's nomination is already effectively over because of his #MeToo problem. And there won't be time to confirm anybody else before the #BlueWave Senate is in session next year.

    Drumpf will be kicked out of office in 2019, so it looks like his only Supreme Court success was Gorsuch. As a libertarian I wish he hadn't even gotten that much, but the damage could have been so much worse. Thankfully Senator Feinstein came through for us.

    #Resist

  • loveconstitution1789||

    Kavanaugh will be the 5 conservative SCOTUS justice.

    Then Trump's 4th and 5th picks will be RBG and Breyer.

  • Tony||

    I hope you wash up after you're finished.

  • loveconstitution1789||

    Tony gets so mad because he knows its going to happen.

    I bet Tony was frantically checking the news when every Lefty thought RBG died a month back.

  • OpenBordersLiberal-tarian||

    Kavanaugh. Won't. Get. Confirmed.

  • loveconstitution1789||

    Senate confirmed Kavanaugh Sunday.

  • OpenBordersLiberal-tarian||

    The woman who says Kavanaugh attacked her has reportedly passed a polygraph test. Will Kavanaugh take one?

    BOOM! Scientific evidence the allegations are truthful.

    Well done, Senator Feinstein. Defeating this nomination is perhaps the most significant victory for the progressive / libertarian alliance in the past 18 months. And 2019 is looking even better — #BlueWave Congress, #ItsMuellerTime's final report, Drumpf's impeachment.

    It feels great to be on the right side of history.

  • loveconstitution1789||

    Just in, polygraphs dont detect lies.

  • dunstvangeet||

    Technically, they detect changes in body stats that often spike when you're lying. While they are not accurate enough for court, they do have some accuracy.

  • loveconstitution1789||

    Polygraphs dont detect lies. They are worthless for that job.

  • chemjeff radical individualist||

    Klausner is right, in the *entirety* of his argument. Support freedom of association, but also condemn the bigotry.

  • Eddy||

    This may sound a bit picky, but what makes it bigoted to recognize the opposite-sex version of marriage while leaving other forms of self-proclaimed "marriage" to the choice of individuals while not recognizing them?

    Is it because the Supreme Court said so? They also said the government can take your house.

  • jdgalt1||

    It seems to me that Volokh is speaking to the wrong audience.

    From the point of view of a court of law, it may well be that the First Amendment does not protect the right to refuse to bake a cake. And that could legitimately be the end of the debate in court. But it cannot legitimately be the end of the debate in a policy forum. Rather, if a constitutional amendment is needed to protect that right, we should be actively seeking one.

  • SimonP||

    Law professors - particularly those with their nose in constitutional law - are notoriously unable to distinguish between questions about what the law is and what policy ought to be, irrespective of the law. They're just not very bright.

  • loveconstitution1789||

    Nothing in the constitution allows government to force people to bake cakes either.

    That trumps what protections the bakers might have. The gpvernment cannot force him to do shit except pay taxes on income.

  • SimonP||

    It is perhaps not surprising that the "libertarian" perspective here attempts to couch the severe consequences of an anti-"public accommodations" policy by arguing that, somehow, the market will take care of it. As though bakers, florists, etc., aren't already subject to these market forces that ought to be making anti-gay discrimination unprofitable in the first place.

    No, you've simply got to own it: The libertarian view states that any service provider, any landlord, any hotel operator, any other person, should be able to deny service with anyone they please, for whatever reason, notwithstanding any foreseeable consequence of that rule for people of disfavored status. Gays. Blacks. Spanish-speaking people. Whatever. And the market won't correct for that, because we can amply see that it really never has, and never can really be expected to. That's just the shit you've got to deal with, if someone decides that shitting on you is a core part of who they are as a person.

  • Logicalman||

    Eugene Volokh
    Your argument is completely off base in its representation of the situation.
    We are not talking about a mass produced cake here. Masterpiece cakes did not refuse to sell them an off the shelf cake.
    These cakes that are created by uniquely talented individuals that use cake for their expression.
    A better analogy would be does an artist (Painter) have the right to reject commissions that he does not like, or should we have a law forcing them to depict whatever the customer wants?
    Lets say I go to a Muslim painter and request a painting of Muhammad?
    Using your creative talent to create something unique can only be viewed as expression.

  • dunstvangeet||

    An artist or painter does not have the right to reject a commission from someone, just because they are in a protected class. My aunt's an artist. She makes beautiful clothes. She does not have the right to say, "My clothes are for white people only. I will not make a coat for a black person."

    And Mr. Phillips does not have the right to say, "My wedding cakes are for straight people only. I will not make a cake for a gay person." He can veto a design, but he cannot refuse to allow gay couples to buy the cakes that he would sell to straight people. There is no artist exception to a public accommodation law.

  • loveconstitution1789||

    Yes he does.

  • dunstvangeet||

    No he doesn't. There is no "artist" exception to the public accommodations law. If he operates a public accommodation, he's required to offer the "full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations" of his business. That means all the goods and services. He cannot differentiate his offering because of the customer's sexual orientation.

    Now, he can still veto designs (if he wouldn't make those designs for anybody), but he cannot just put a sign out in front of his shop and say, "No goods or services will be sold if they are to be used in gay weddings."

  • Procyon Rotor||

    "An artist or painter does not have permission under the law..." is not what you said. "An artist or painter does not have the right..." is what you said. Arguments based on the law are completely irrelevant when addressing a question of rights. Any person has the right to reject any request for their labor for any reason, or no reason at all.

  • loveconstitution1789||

    There is no but gays are special exception to the Constitution.

    You cannot force people to bake cakes or write on them.

  • Logicalman||

    So paintings are not expressions worthy of protection?
    There have been many artists over the years who have avoided jail based on this argument.

    Your aunt the artist certainly could refuse to make clothes stating "God hates f*gs"
    Masterpiece did not refuse because they were gay, he refused to endorse a wedding.

    Note how everyone ignored my question about Muhammad.
    Lets say I go to a Muslim painter and request a painting of Muhammad? Would you insist that he do this paining?

  • snowhawk||

    'Turn a Page"; as a long haired musician I was made to feel threaten in a lot of eateries on the road. Thing is is that there was always that little Cafe down the road with the greatest biscuits ever that were glad to have us and we always passed the word along. When biker gang members are seated next to Senators in Washington's 5 star restaurants I'll give a thought to forcing Christian Bakers to bake for gay's!

  • Unicorn Abattoir||

    Gratuitous song reference:

    If I knew you were debating I'd have baked a cake.

  • Diane Reynolds (Paul.)||

    Why is the question limited to cakes for same-sex weddings? Or do we still think this is the scope the question will always retain?

  • IceTrey||

    No one should ever be forced to do anything.

  • dunstvangeet||

    So, no one working in a restaurant should be forced to wash their hands after using the toilet. Got cha...

  • loveconstitution1789||

    The employer gives the employee a decision- wash your hands or youre fired.

  • dunstvangeet||

    What if it is the employer who doesn't wash his hands? After all, nobody should ever be forced to obey health codes that they don't want to.

  • ||

    It seems simple to me. Baking a cake is a service. Decorating it well enough to not ruin a wedding is art. Artistic expression cannot be compelled any more than speech or political choice can be compelled.

    So while anti-discrimination laws (a good thing generally, as proven by many centuries of the problem not fixing itself) can compel a baker to bake a cake for something the baker disagrees with, the wedding planner really ought to consider a different bakery because the decorations that differentiate a sheet cake from a proper wedding cake are protected by the first amendment -- and a same-sex couple going to an anti-gay bakery for an act of protected expression probably won't like what is expressed.

  • dunstvangeet||

    And your argument is off base. No artist can actually refuse to sell their art to someone on the basis of a protected class status. My aunt's an artist. She goes around the country to art shows, and sells her clothing. She cannot go, "I don't want black people wearing my clothes, so I will refuse to sell my wares to black people."

    Mr. Phillips offers a service to the general public of cake decoration. He cannot differentiate his service on the basis of sexual orientation, plain and simple. If he's willing to decorate a cake a certain way for a straight couple, then he is legally required to decorate a cake in that way for a gay couple, plain and simple. Just because he may or may not be an artist does not give him license to violate the public accommodation laws.

    There is no artist exception to public accommodation laws. If an artist runs a public accommodation, then he cannot refuse to sell something, or serve someone, on the basis of certain traits such as sexual orientation.

  • Filby||

    Eugene gets it wrong. Why do we need a freedom of action clause when we have the 10th Amendment? "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" Where does the Constitution authorize the government to compel behavior and non-discrimination by private individuals operating private businesses?

  • Enemy of the State||

    The 9th is more appropriate even though the SCOTUS routinely ignores it...

  • Joe Emenaker||

    As much as Libertarians love to just let market forces fix everything, I'd be interested in two possible "solutions":
    1) Every time the cake baker refuses to make a cake for a gay couple, he has to refund them the portion of their tax dollars which paid for the sidewalk, street, streetlights, fire protection, and police protection in front of his shop as well as the cost to provide his employees with a basic education. The only reason he's able to run a successful business is because customers are able to convey themselves, in safety, to/from his place of business, and gay folks aren't getting any ROI from their tax dollars that went to it.
    2) Alternatively, in order to be granted the right to discriminate, business owners would have to display a placard on their storefront so that the rest of us decent folk would know not to shop there. One of the reasons, after all, that market forces have trouble solving this problem is because of the information asymmetry. The cake guy (until the SCOTUS case) was able to treat some people despicably without it becoming widely known. I'm sure that a downturn in business would have caused him to rethink his position were he to have had to display a placard like "We don't serve gays".

  • Enemy of the State||

    My paying taxes or not gives you no rights to my property.

    Yelp and other social media sites offer valuable critiques of business services...

  • Enemy of the State||

    The entire argumentative premise is flawed. This is at base a property rights case and only tagentially a freedom of religion and association case, lastly a speech case.

    The business owner's rights in his property and his own labor are sacrosanct. They are not forfeit when he decides to place them on the market. Just as no seller can force you to buy, no buyer can compel you to sell. Justice is a 2-way street...

  • Barry Gold||

    Volokh's reasoning is sound as far as the Constitution is concerned. A right to freedom of religion does not inherently create a right to refuse to obey the law because your religion objects to it. Nor is baking a cake "speech".

    HOWEVER: the libertarian position is that government should _not_ override people's inherent right to choose who to associate with and/or who to do business with. Colorado's anti-discrimination law may be Constitutional, but it is *still* wrong from a libertarian point of view.

    Btw, I've taken a look at Masterpiece's website. What they do is a lot more than just baking a cake. It is artistry. To that extent, I think they might have a valid Freedom of Speech claim. But that's not the main point. The main point is that people should be free to choose who to deal with.