Freedom of Speech Protects Calligraphers' Right Not to Create Custom Same-Sex Wedding Invitations

So holds the Arizona Supreme Court.

From this morning's decision in Brush & Nib Studios, LC v. City of Phoenix:

The rights of free speech and free exercise, so precious to this nation since its founding, are not limited to soft murmurings behind the doors of a person's home or church, or private conversations with like–minded friends and family. These guarantees protect the right of every American to express their beliefs in public. This includes the right to create and sell words, paintings, and art that express a person's sincere religious beliefs.

With these fundamental principles in mind, today we hold that the City of Phoenix … cannot apply its Human Relations Ordinance … to force Joanna Duka and Breanna Koski, owners of Brush & Nib Studios, LC …, to create custom wedding invitations celebrating same-sex wedding ceremonies in violation of their sincerely held religious beliefs. Duka, Koski, and Brush & Nib … have the right to refuse to express such messages under article 2, section 6 of the Arizona Constitution [which protects the freedom of speech and of the press], as well as Arizona's Free Exercise of Religion Act ….

Our holding is limited to Plaintiffs' creation of custom wedding invitations that are materially similar to those contained in the record. We do not recognize a blanket exemption from the Ordinance for all of Plaintiffs' business operations. Likewise, we do not, on jurisprudential grounds, reach the issue of whether Plaintiffs' creation of other wedding products may be exempt from the Ordinance.

Duka and Koski's beliefs about same-sex marriage may seem old-fashioned, or even offensive to some. But the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive. They are for everyone. After all, while our own ideas may be popular today, they may not be tomorrow. Indeed, "[w]e can have intellectual individualism" and "rich cultural diversities … only at the price" of allowing others to express beliefs that we may find offensive or irrational. West Virginia State Board of Education v. Barnette (1943). This "freedom to differ is not limited to things that do not matter much … [t]he test of its substance is the right to differ as to things that touch the heart of the existing order." Id.

I hope to post more about this soon; note that I cosigned an amicus brief in this case, together with the Cato Institute and fellow Volokh Conspiracy blogger Dale Carpenter.

Comments

[Rev. Arthur L. Kirkland]

How will Republican-conservatism enthusiasm for this type of stale bigotry (wrapped in a sketchy, unconvincing religious cloak) influence the lifelong voting patterns of today's young Americans?

[Brett Bellmore]

Sketchy, calligrapher. Not bad. That was actually kind of witty.

[WuzYoungOnceToo]

That was actually kind of witty.

Which is how you know that it was completely unintentional.

[santamonica811]

Since this is the first time the Rev has ever used "sketchy" in any of his many posts; I am inclined to be more charitable, and to give him full credit for clever wordplay. My evaluation of linguist skills (or lack thereof) does not depend on me agreeing/disagreeing with the actual content or gravamen.)

[Kazinski]

Oh sure, I'll stipulate the Reverand is a cunning linguist.

Which of course was more much more apt when I first heard the compliment applied to S I Hayakawa, Semantician, University President, and US Senator in the late 60's and seventies.

[David Nieporent]

influence the lifelong voting patterns of today’s young Americans

Well, if these voters are libertarian oriented, they will celebrate the people that support freedom over the ones that support government coercion, regardless of the motives of the individuals involved in the conduct.

[Rev. Arthur L. Kirkland]

My observations indicate that bigotry is -- and should be -- a threshold point among young Americans.

In general, bigotry is not an important issue for young people. They have had gay teammates, black teachers, Asian friends, Hispanic classmates, and Muslim coworkers. They eat burritos, sushi, and hummus. They listen to Mexican music, root for black athletes, admire gay actors. They barely notice the distinctions that rile cranky, old, insular white people. They think of Muslims, blacks, gays, Asians, or Hispanics the way most of today's Americans think of the Irish, Italians, or eastern Europeans (who were targets of yesteryear's bigotry).

And so intolerance is not an issue for young people -- until someone makes it an issue. At that point, however, it becomes the issue. They not only reject the racism of the bigot but also generally dismiss that bigot and anything that bigot is attempting to state or accomplish.

I do not understand why Republicans and conservatives with a self-preservation instinct have permitted their party and ideology to become so closely associated with intolerance, ignorance, and prudish, stale organized religion.

[Armchair Lawyer]

"I do not understand...."

How's this...

Muslims, Blacks, and Hispanics are all overwhelmingly far more religious than the current white-bread liberal elite in charge of the current Democratic party. By continuing their bigoted trend towards any religion that doesn't bow to the liberal-elite consensus, the liberal-elite show their disgust for the very groups they propose to be helping. By contrast the GOP supports their religious freedom and way of life.

[grb]

And yet I bet Muslims, Blacks, and Hispanics practice their religion without feeling any oppression at all from the "current Democratic party". Somehow only today's Right is always weeping snowflake crocodile tears of victimhood.

Oh, and that same Right? They're also busy using Muslims, Blacks, and Hispanics as their very own piñata, to entertain the lowest common denominator of their political base. I'm guessing that "disgust" is experienced a bit more viscerally than these pre-fab day-glo plastic examples of "religious oppression"

[Armchair Lawyer]

You bet wrong.

[Krayt]

I do not understand why Republicans and conservatives with a self-preservation instinct have permitted their party and ideology to become so closely associated with intolerance, ignorance, and prudish, stale organized religion

How soon we forget the epithet of being a card-carrying member of the ACLU, defender of marching Nazis and flag burners.

By god, the Democratic party was lousey with Nazis, the transparent reason they supported them.

[Dilan Esper]

With all respect to libertarians (and I do respect them- e.g., Radley Balko has done amazing work on the issue of police brutality), their ideology has simply never been popular and isn't now. The libertarians who opposed civil rights legislation in the 1960's are seen nowadays as people who gave cover for bigots. That's reality.

[Rossami]

And predictably, RAK is right here, first in line to prove that he's the biggest bigot in the discussion.

[RestoreWesternHegemony]

Today's "young Americans" can't sustain the society that Americans of the past built.

[floridalegal]

As always, your hatred and antipathy for all things religious are bigoted and counterproductive to civil and intellectual discussions.

[Rev. Arthur L. Kirkland]

This seems a good point at which to note that not all religious people are stale-thinking bigots. Not nearly. Many are tolerant, modern, inclusive, good people.

[Dilan Esper]

Yeah- put another way, there were libertarians and racists who were calling for the government and the conservative movement to adopt these sorts of arguments in the Civil Rights era, seeking all sorts of exemptions from generally applicable laws prohibiting race discrimination for religious folks whose bigotry was based in or justified by their religion. You can see this in the Bob Jones University case, for instance.

But Bob Jones University got only one vote in the Supreme Court. Movement conservativism wanted nothing to do with that position.

Imagine had the conservative movement instead adopted the idea that people should have a conscience exception from the obligations to obey race and sex discrimination laws. What would have happened to them politically had they been identified with standing up with the rights of a few hateful a-holes against civil rights causes that even many moderates and conservatives believed in? I think it would have injured them immensely.

That's what they are doing here. People who don't want to do business with gay people are going to be seen as just as bad as people who didn't want to do business with black people or to treat women equally.

[SallyMJ]

“People who don’t want to do business with gay people” —
I’m sure you meant to say “People who don’t want to be forced to participate in an event, or make a message, in which they disagree.”
You forgot to write about:
1) gays forcing Muslims (Why only Christians??)
2) Christians forcing anti-religious people
3) conservatives forcing leftists/progressives/extreme Democrats
4) gays forcing Orthodox Jews
5) Conservative Constitutionalists forcing Antifa

[Brett Bellmore]

I long for the day the 13th amendment gets enough respect that we don't have to shoehorn our rights under it into the 1st amendment.

[EscherEnigma]

I'd settle for this kind of "conscience exemption" applying in a religion-neutral and issue-neutral manner.

This pick-and-choose nonsense makes the idea that any of this is principled a farce.

[Brett Bellmore]

Of course there's a principle behind it: "To crush your enemies, see them driven before you, and to hear the lamentations of their women!"

This is all about proving to the left's enemies that they are less than the dust beneath the left's chariot wheels, that their consciences count for less than the left's whims. That's all. It's rejoicing in the raw power to crush your enemies.

[EscherEnigma]

It’s rejoicing in the raw power to crush your enemies.

I think you forgot who was suing who in this case.

[grb]

Crush your enemies ?!?! Much prone to hysteria, I take it. Joanna and Breanna printing pretty cards hardly seems to warrant your images of them crushed and wailing lamentations. Besides, as someone below points out, they seem too preoccupied with preening smugness for very much hardcore lamenting. I just watched a video of them and never did someone being crushed look so gleefully chipper. My guess is they'll end up preening smug martyrs rather than crushed if things don't go their way. A very peculiar form of religious observation, that.

Of course big-picture-wise, none of this is new. I remember talking it out with a conservative buddy about thirty years ago. It was important (he thought) that gays suffer some burden, hardship or disapprobation. So we then discussed options for the Scarlet Letter G he needed gays to be burdened with. But he was (and is) unusually fair-minded for a conservative and could never get the punishment to fit the crime. He knew gays had to suffer, but just couldn't work out how. Alas, so many people just don't have his scruples.....

[Kazinski]

There is no law that can make people like you.

As a Trump supporter in Sonoma county California I face more discrimination than any gay couple in the USA, which is to say hardly any meaningful discrimination, unless of course I'm dehabilitatingly sensitive.

[jph12]

"My guess is they’ll end up preening smug martyrs rather than crushed if things don’t go their way."

They've already won. The Supreme Court can't reverse a state supreme court decision interpreting its constitution.

[PoxOnBothYourHouses]

Not a necessarily. Not that I'd expect this, but if the US Supreme Court deemed the decision to violate the national Constitution, then it indeed could reverse the decision. In the cake baker case, SCOTUS overturned a decision by the Colorado Court of Appeals.

[jph12]

"Not a necessarily. Not that I’d expect this, but if the US Supreme Court deemed the decision to violate the national Constitution, then it indeed could reverse the decision."

I'm skeptical, but willing to admit it may be possible (though it certainly won't happen in this case).

"In the cake baker case, SCOTUS overturned a decision by the Colorado Court of Appeals."

But that was a lawsuit against the government based on the Colorado Civil Rights Commission violating the First Amendment of the US Constitution, not the Colorado constitution.

[floridalegal]

The "scarlet letter" is an "R" for the audacity of individuals to be religious.

[regexp]

to create custom wedding invitations celebrating same-sex wedding ceremonies in violation of their sincerely held religious beliefs

Does Joanna Duka and Breanna Koski force everyone who walks in their door to fill out a form asking about all areas of someone's personal life so they can make a judgement on whether or not to offer their services?

Divorced? Can't take your business.
Sex before marriage? Can't take your business.
Getting married to a person of another race? Can't take your business
Planting two types of seed in your vineyard? Can't take your business.

If not they are being hypocrites. How about being an adult, acknowledged that you are part of a diverse society, and offer your services to everyone?

[David Nieporent]

How about being an adult, acknowledged that you are part of a diverse society, and offer your services to everyone?

Not clear how "Shut up and do what you're told" is the measure of adulthood. Children have to do things against their consciences because their elders force them to; adults should not be treated similarly.

As always, those types of hypotheticals are not remotely analogous for many reasons, however. Unless the invitations are to a mixed-seed planting ceremony, how would the agricultural habits of the customers be relevant?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Dipshit. The "form" you refer to must exist; it is where the customer writes down what they want the business to write down. The business sees something they don't support and refuses to accept the order.

Only a statist slaver would not understand that. Only a statist busybody would think first and foremost of inquiring into personal affairs that are none of his business.

Fuck off, slaver.

[KenveeB]

Believe it or not, people are free to believe one thing and not another. A person may have no problem with divorce but not like same-sex marriage. Or be fine with same-sex marriage and not like interracial marriage. Different religious denominations disagree every day about what a particular religious passage means, or even which books are part of their religion and which are not. Even people in the same church will have different opinions on what is and is not okay. Someone may agree with you that all of your examples are equal examples of something they can't participate in. Someone else with just as strong of religious beliefs might find that some are fine and some are not. It's not a religious dogma test, it's a sincerely held belief test. It's only a "whatever regexp thinks is required" test when it's your beliefs at issue.

[Kazinski]

I've been led to believe that people that don't apply their principals as consistently as I believe I apply mine are hypocrites.

[Eddy]

These people can't have freedom of expression because they're wrong! And they're not wrong in the neat pigeonholed way regexp has in his head, but a whole different kind of wrong which regexp doesn't understand.

[RestoreWesternHegemony]

I'm really tired of this idiotic argument. There is NO requirement that one follow every tenet of the religion they sincerely believe themselves to be a member of.

[iowantwo]

Yes, yes they do.
If someone comes in and want a piece to inform about their joy of sex without moral constraints, they would refuse.
If the same people request invites to a birthday party for a resulting child of such activity, they would to the job, unless they wanted to celebrate that amoral circumstance.

See how that works. Live you life and don't rub peoples noses in your filth, all is good.

[EscherEnigma]

How about when someone comes in to order a birthday cake, and after accepting you then e-stalk them, whereupon you cancel the birthday cake because you learned it was for a lesbian†?

How's that work?
________
†Take the Cake, from Toledo Ohio.

[PoxOnBothYourHouses]

There you enter the realm of breach of contract. Plus -- the ruling here doesn't allow refusing service to a person in a particular class of person. It allows refusing a particular service for a particular class of event, i.e. the gay marriage.

tl/dr: the Take the Cake people (IMHO) should and will lose.

[EscherEnigma]

Well, no, because Ohio doesn't have a non-discrimination law that includes gay people. But I wasn't making a legal point, I was making a cultural point in response to iowantwo's claim: "See how that works. Live you life and don’t rub peoples noses in your filth, all is good."

Fact is, staying in the closet, not talking about our families, and trying to conduct all our public affairs as if we weren't gay is not, and never has been, enough for the anti-gay folk in the world. We cannot appease those people by staying quiet. We can only appease them by being dead.

[Brett Bellmore]

I'm reminded of this classic from The Onion.

Gay-Pride Parade Sets Mainstream Acceptance Of Gays Back 50 Years

[Bored Lawyer]

You made the same silly comment last time.
There is nothing hypocritical about a religious person saying, I will serve sinners, so long as I don't have to participate in or endorse the sin. A religious person does not have to limit his or her business to saints.
Making a birthday cake (or card) for a gay person has nothing to do with their sinful lifestyle. Making a wedding cake (or invitation) for a same-sex marriage does.

[RigelDog]

There's a difference between your hypothetical examples and the types of situations where the courts address freedom of expression. It's the difference between refusing to deal with a type of person/protected class and a refusal to make an affirmative expression that is contrary to your beliefs. It's a massive distinction and yet is often ignored or unknown. A business owner should not be forced to make invitations to a divorce party, or to an orgy if that is contrary to their sincerely-held religious beliefs. A gay man can't be denied custom-made invitations or cakes for a simple birthday party on account of their being a gay person. Flip side of that principle is that I, as a straight person, should not be entitled to force someone to make a cake with an inscription supporting gay marriage. It's not based on the identity/protected class of the person attempting to use the business, it's based on the expression/message that may be contrary to sincerely-held religious belief. Is there any seasoned commenter at Voluck who doesn't actually understand that legal distinction?

[EscherEnigma]

Cowards, the lot of them.

Read that bullshit. They're limiting this to same-sex wedding invitations, and only same-sex wedding invitations. Even though it's clear that the principle, if fairly applied, would mean they could refuse any wedding invitation, so long as they're willing to say "sorry, God's views, not mine".

But they, quite explicitly, didn't go that far. They also, quite explicitly, didn't say "this kind of service isn't a public accommodation".

So while I don't disagree with the outcome (like Hand's On Originals, this kind of refusal should be allowed), the justices are almost comical in their cowardice.

[Eddy]

Not only that, but they come close to breaking their arms patting themselves on the back for their own courage. Stop preening and just do your jobs.

[jst1]

In the absence of monopoly, the freedom of association should apply to all people, at all times, and in all ways. This should be especially true if the service or product is custom made.

[Sarcastr0]

From what I can tell the customization is in the names?

This service doesn't seem particularly expressive enough to imply an endorsement the way an specifically crafted card or wedding photography would.

No bright line rule here.

Once again, those writing for the libertarian embrace of freedom of association need to grapple with how unfree places became for certain subgroups when people were free to author their own association.

[jph12]

Once again Sarcastr0 refuses to grapple with how unfree places became for certain subgroups when the government decided who people could associate with.

[Sarcastr0]

Yeah, racists back in the civil rights era sure took it on the chin, freedom-wise.

Once again I have history, you have speculation.

And if you're going to argue that Christians are an oppressed subgroup and homosexuals are not, you're going to have to put a good amount of work in.

[jph12]

No, dumbass, that's not what I'm talking about. In your wilful historical ignorance, you continue to ignore that much of Jim Crow was actually codified law. Jim Crow laws are laws prohibiting free association. Anti-miscegenation laws are laws prohibiting free association. And even where the discrimination wasn't codified, it was greatly aided in taking root by systemic underenforcement of violence against blacks and whites who didn't want to comply, so even much of the private discrimination depended on the acquiescence of the government.

You are the one pretending that the situations of blacks during Jim Crow is analogous to gays in the modern day, a ludicrous comparison.

[Sarcastr0]

In your wilful historical ignorance, you continue to ignore that much of Jim Crow was actually codified law
...
And even where the discrimination wasn’t codified...

Yeah, I ignored the part that isn't relevant to the example I'm giving. You seem to be ignoring that part yourself, actually.
Your 'it was law or violence' story is convenient for your libertarian narrative, which I guess is why you keep trying to ignore the parts that were voluntary and pervasive.

Discrimination is bad for economics, but it is human nature. The market does not cure all.

I'm using Jim Crow to show that there's a reason our society does not allow discrimination under the basis of freedom of association. Allowing discrimination may mean freedom for the discriminator, but can, even without government action, result in a pretty oppressive society for minority and majority alike.

Those arguing on behalf of those wanting to discriminate against homosexual couples need to grapple with that history, and that bit of human nature it exemplifies.
Yelling that 'it was all the government, man!' won't cut it. It's convenient for your worldview, but lacks the virtue of actually being true.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Government-mandated racism is still racism. Government-mandated association is still government-prohibited non-association. Why do you keep dodging that?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

And in case you try to claim that non-association is not racist, that's exactly what segregation and miscegenation are: government-mandated non-association.

[Sarcastr0]

Because what your saying is incoherent as it operates on the ground.
When the judiciary said association isn't a shield behind which you can hide your discrimination, and then the executive backed that up? It's pretty hard to argue that the South got less free when that happened.

You can talk all you want about how all race-based categories are racism, but until you grapple with the above you'll just be a naive libertarian utopian.

[jph12]

"Yeah, I ignored the part that isn’t relevant to the example I’m giving."

You ignoring the significant parts of Jim Crow that are inconvenient to your story then pretending you are relying on history is rich indeed.

"You seem to be ignoring that part yourself, actually."

No I'm not. I'm criticizing the emptiness of your argument.

"I’m using Jim Crow to show that there’s a reason our society does not allow discrimination under the basis of freedom of association. Allowing discrimination may mean freedom for the discriminator, but can, even without government action, result in a pretty oppressive society for minority and majority alike."

No, you are pretending that part of Jim Crow is all that Jim Crow was, and ignoring how Jim Crow came to be. Government action was instrumental in the rise of both the official and unofficial Jim Crow.

"Those arguing on behalf of those wanting to discriminate against homosexual couples need to grapple with that history, and that bit of human nature it exemplifies."

No more than those arguing against discrimination need to grapple with the sordid history of government interference with the freedom of association and the human nature it exemplifies.

But really, the situations of gays in modern America and blacks in the Jim Crow South is only analogous in the most superficial of senses so neither side should feel the need to worry about Jim Crow all that much.

[Sarcastr0]

I'm giving an example of how your maximalist always government narrative is wrong. All the examples of how it's not wrong don't matter at all. You need to ignore the counterexamples for your argument to work, and that's why you are wrong. And probably why you prefer to dwell on your examples.

Government action was instrumental in the rise of both the official and unofficial Jim Crow.
So you say. I've heard different. Certainly, that's not how it ended up.

the sordid history of government interference with the freedom of association and the human nature it exemplifies
Sordid? Where has government-based nondiscrimination done anything but make people like you on the Internet butthurt.

Jim Crow proves why addressing discrimination is worth the imposition on liberty. With this anti-gay BS we also have discrimination. Dissimilar classes or not, I fail to see why the analogy isn't apt.

[jph12]

"I’m giving an example of how your maximalist always government narrative is wrong."

That's not my narrative.

"All the examples of how it’s not wrong don’t matter at all. You need to ignore the counterexamples for your argument to work, and that’s why you are wrong."

Bullshit. Your argument depends on ignoring the very significant role of the government in creating and enforcing Jim Crow. Your argument depends on all of Jim Crow spontaneously arising out of the ether.

"And probably why you prefer to dwell on your examples."

I'm not dwelling on any examples.

"Government action was instrumental in the rise of both the official and unofficial Jim Crow.
So you say. I’ve heard different."

You've repeatedly demonstrated your ignorance, so that's not surprising.

"Certainly, that’s not how it ended up."

Sure it is. But that's not important.

"the sordid history of government interference with the freedom of association and the human nature it exemplifies
Sordid? Where has government-based nondiscrimination done anything but make people like you on the Internet butthurt."

I've already pointed out, in this thread and before, that Jim Crow laws are examples of government interference with the freedom of association. Something you resolutely refuse to acknowledge.

"Jim Crow proves why addressing discrimination is worth the imposition on liberty. With this anti-gay BS we also have discrimination. Dissimilar classes or not, I fail to see why the analogy isn’t apt."

Well, you're a moron, so that's not surprising.

[Sarcastr0]

I explained what my argument is, and what it depends on.

You stamping your foot and saying my argument only works if Jim Crow was all voluntary just makes you look like you can't read.

In fact, this entire post is just you quoting what I said and then writing 'nuh-uh.' Except for this bit: "im Crow laws are examples of government interference with the freedom of association."

You and I both know I'm not talking about Jim Crow laws, even though I know you really really want to.

Do better.

[jph12]

"I explained what my argument is, and what it depends on."

And I explained why you are wrong.

"You stamping your foot and saying my argument only works if Jim Crow was all voluntary just makes you look like you can’t read."

No, it points out a basic flaw in your argument, one you've never bothered to try to address. Despite your greatly inflated view of your intellect, disagree with you is not the same as simply stamping my foot.

"In fact, this entire post is just you quoting what I said and then writing ‘nuh-uh.’"

You are such a disingenuous moron. What do you call this? "So you say. I’ve heard different."

"Except for this bit: “im Crow laws are examples of government interference with the freedom of association.”

Which, once again, you refuse to address.

"You and I both know I’m not talking about Jim Crow laws, even though I know you really really want to."

Of course I know you aren't talking about Jim Crow laws. I've repeatedly pointed out that you refuse to acknowledge Jim Crow laws. I've repeatedly pointed out that that you pretending that Jim Crow was just voluntary renders your argument meaningless.

"Do better."

Go fuck yourself you ignorant twit.

[FlameCCT]

Unfortunately government decided that the best solution was a marriage license, IOW more government intrusion.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

The solution to government-approved slavery was government-mandated Jim Crow, instead of just freedom.

The solution to government-mandated Jim Crow segregation was government-manded affirmative action racism, instead of just freedom.

You don't have a clue what freedom is.

[Sarcastr0]

Jim Crow wasn't just government-mandated. And don't think I missed your slight of hand from government-approved to government-mandated.

Government approved discrimination is exactly what we're talking about here.

Affirmative action racism? Again, your breezy principles and indignation betray your privileged and simplistic worldview.
In the real world, the meritocracy is pretty-well proven to be screwed up. Lots of ways, but also when it comes to race.

I'd also note affirmative action is done voluntarily by schools both public and private, not government-mandated at all. Read some countervailing sources before you come in so hot; you may learn some facts that would save you from looking like a college freshman with more principle than sense.

[jph12]

"you may learn some facts that would save you from looking like a college freshman with more principle than sense."

As opposed to Sarcastr0, who has neither principle nor sense.

[Sarcastr0]

What do you think this post contributed?

[jph12]

It expressed my disdain for you and your sanctimonious post.

[RestoreWesternHegemony]

Let me know when a same-sex couple literally cannot find a single vendor willing to make their invitations, wedding cake, flower arrangement or wedding video. Until then, the comparisons to the Jim Crow era are not even remotely relevant.

[Sarcastr0]

rampant. organ.

[RestoreWesternHegemony]

?

[Sarcastr0]

You mentioned the gays without dwelling on what they do with their rampant organs.

You feeling okay?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

rampant, organ, dwelling, feeling.

[Eddy]

I think RWH is the only one left who likes to dwell in detail on how disgusting gay people are. Others, more enlightened, like to dwell in detail how supporters of standard, "traditional" marriage are bigots who probably wouldn't sell Kanye West a wedding cake because he married a white chick.

[jph12]

"You mentioned the gays without dwelling on what they do with their rampant organs.

You feeling okay?"

Or this one?

[jph12]

"rampant. organ."

What do you think this post contributed?

[Sarcastr0]

Yeah...the guy who wants to gas judges is a special case.

[jph12]

I'm shocked, just shocked, that once again, Sarcastr0 believes that it's okay when he does it.

[Sarcastr0]

Careful who you get in bed with in your weird quest to take me down on the Internet.

[jph12]

I don't have to get in bed with anyone to point out what a hypocritical sack of shit you are.

[EscherEnigma]

Let me know when this business refuses a single gay customer.

In case you forgot, this is one of the ADF's "speculative" lawsuits, where they find some local sap and convince them to sue the city or state to try and preemptively tear down a non-discrimination law.

Fact is, no one complained about this business, no one sued them.

[iowantwo]

No this just shows how unconstitutional anti segregation laws were, as applied to private business.

[Rev. Arthur L. Kirkland]

What do you make of the legal interpretations requiring those private businesses to flatter superstition-related claims by recognizing special privileges for snowflakes who claim a supernatural basis for their bigotry or goofiness?

[markm23]

"requiring those private businesses"

You really don't understand freedom at all, do you?

[Josh R]

This service doesn’t seem particularly expressive enough to imply an endorsement the way an specifically crafted card or wedding photography would.

Eugene thinks:

Calligraphy, like other forms of written speech, is fully protected by the First Amendment. That includes written speech that does not have a political or social message—nor any discernable [sic?]* message at all.

Did Eugene know he signed a brief with this spelling of what I thought was correctly spelled discernible? Is the brief's spelling acceptable?

[Rossami]

re: "Is the brief’s spelling acceptable?"

According to a fairly trivial check against Miriam Webster, both are acceptable spellings though ...able is less common.

[Rossami]

I, on the other hand, just grossly misspelled Merriam Webster.

Please, can we have an edit button!?!?

[D-Pizzle]

No, your horrendous error must stand throughout the ages for all to see.

[Kazinski]

Well then why doesn't the couple just do the invitations on their computer if there is no expressive activity.

Or even why don't you volunteer 15 minutes of your time to whip the invitations out on your Imac if that's all it takes?

Either they need the couple's artistic talents to get the invitations they want, or they can go to Target and get them with no hassle whatsoever, but not both.

[Joe_dallas]

If you produce and sell product A, Public accomodation laws require that you sell product A to consumers on a non discrimnatory basis.

However, public accomodation laws shouldnt require the producer of product A to create product B which such producer was not going to produce such product for anyone.

an important distinction.

[Sarcastr0]

I concur completely.

Here, it doesn't look like there is a material distinction between the two products in question, however. Unless you think printing 'Steve' versus 'Eve' suddenly becomes a whole new act.

[Armchair Lawyer]

Or, you know, when a cross on an invitation suddenly becomes a swastika. No difference, amiright?

[Kazinski]

A Nazi or Buddhist or native American swastika?

It's a sore spot with me that a symbol you can see 15 times a day in Asia that they've been using for eons without comment becomes totally off limits for their culture here.

[bernard11]

Gee. You'd almost think the history of how that symbol has been used and what it has stood for are different in Asia than in Europe.

[Armchair Lawyer]

It's a sore spot....

Cultures are different. New culture, new rules. Swastika there, religious. Swastika here...sign of mass genocide. Eating with your left hand there...taboo. Eating with your left hand here...all good.

[D-Pizzle]

"Eating with your left hand here…all good."

Not if they're seated on this righty's right.

[nothisispatrick]

At the risk of being "that guy," liberals and conservatives are both getting this wrong. Conservatives keep acting like these kinds of cases involve only religious liberty and speech, and not discrimination. That's a false dichotomy; clearly, religious exercise and free speech are involved, where someone is communicating a message. That much should be clear. But the pro-calligrapher/baker/florist/videographer crowd seems to think that just because it's speech/religion, it's not discrimination. It clearly is. Just consider how the word "discrimination" is used here, versus a case like Reed v. Town of Gilbert. If you're the business owner in one of these cases, do you have draw a distinction between people to decide whether your conscience allows you to make the message? Yes, clearly you do, just like how in Reed the sign ordinance was unconstitutional because it required law enforcement to draw distinctions between what was being said on different signs, and enforce accordingly. That is discrimination. But it is discrimination protected by, at least, the Free Speech Clause of the First Amendment. That's where the liberals are getting it wrong. You very much have the right to be a bigot, in these types of cases. It seems that the narrative on the pro-free speech side of this debate keeps getting bogged down with "it's not discrimination, they'd do business with gay folks." But clearly they won't do business with same-sex couples in this context. The hard case is going to be when someone refuses to make a wedding invitation (or cake, or floral arrangement, or wedding video, etc.) for an interracial couple. I don't see any limiting principle that would allow the public accommodation law to operate in that case, but not the same-sex wedding cases; the right to be a bigot prevails, if the alternative is compelled speech.

[Eddy]

"The hard case is going to be when someone refuses to make a wedding invitation (or cake, or floral arrangement, or wedding video, etc.) for an interracial couple."

I guess this may not be a legally relevant difference, but interracial marriage has been a reality for thousands of years, and same-sex marriage for at most a few decades depending on how "enlightened" the jurisdiction is.

At the same time, I see no reason to compel any private business to make an interracial wedding cake or what have you, unless there's a contractual obligation.

[nothisispatrick]

In the United States, it was only Loving v. Virginia in 1967 that caused interracial marriage to be a right across the country, so I don't think I'd agree that we're talking about a millennia-long tradition. Even if that were true, it doesn't matter for these purposes. The right to speak (or to not speak) does not apply differently because of the pedigree of the subject. You are just as free to criticize Scientology as you are Judaism and Christianity. You are equally free to refuse to criticize them. When I called it a "hard case," I don't mean that the principles will apply differently, but that it may be harder for a court to be consistent. The free speech issue seems clear.

[Eddy]

If a court draws a distinction, it would probably invoke the highly unpleasant history of race relations in the U. S. and the centrality of this issue to our politics in many periods. Gay rights can't be said to be so central.

But I wouldn't want the courts to draw distinctions, I would like them to uphold free expression and, dare I hope, free association, even for people who are racists. We've seen the slippery slope we start down once we deny that racists, *in their private capacity,* have constitutional rights.

Obviously, this isn't the same thing as saying that Mr. Racist Cake-baker, in his capacity as a sheriff's deputy, can arrest interracial couples or otherwise practice race discrimination. Government officials should with only carefully delineated exceptions (looking for Asian suspect, studying health problems associated with one race, etc.) be color-blind.

[nothisispatrick]

I don't think that distinction would matter. We're not talking about situations that involve no speech component, so innkeepers, grocers, paramedics, etc. won't be impacted by these laws. I really doubt you can find a compelling government interest that can most narrowly be effected by making someone decorate a cake celebrating either a same-sex or an interracial wedding. Sure, there's a more brutal history of racial discrimination than homophobia, but that doesn't actually change the compelled speech issue.

[EscherEnigma]

We’re not talking about situations that involve no speech component, so innkeepers, grocers, paramedics, etc. won’t be impacted by these laws.

Yeah we are. Car mechanic and pediatrician in Michigan refused gay customers and kids of gays respectively, a hardware store in Tennesee or Kentucky or something with a "no gays" sign.

I know y'all like to pretend it's just about "creative expression" or what-not, but no. There really are folks out there that really don't want gay customers.

[nothisispatrick]

Yes there are, and these public accommodation laws will continue to apply. A mechanic’s job has no speech component; he doesn’t have a valid free speech defense if he runs afoul of the law. Neither does a pediatrician, or a hardware store owner. Refusing to deal with gay customers in those cases is not protected by the first amendment.

[EscherEnigma]

Yeah, no. Seeing as the First Amendment applies to everyone, so long as you're arguing that a vendor can refuse on First Amendment grounds, you're either going to get ridiculously narrow (and logically inconsistent) decisions like this one, or it's going to be carte blanche for everyone†.

If you were arguing that these "artists" weren't public accommodations, you might have an argument that other vendors wouldn't be impacted, but nobody is pursuing that argument. Heck, this decision even explicitly said that they were a public accommodation.
________
†Please see the transcripts of Masterpiece Cakeshop's oral arguments before the SCOTUS. The "who's an artist?" question had no workable answer.

[nothisispatrick]

Even though there can be some difficult cases on the margins, there is no serious argument that a mechanic is engaged in speech when he works on a car. In this case, the plaintiffs create calligraphic speech. That is a meaningful distinction. It's not that there's no workable answer in any case, it's that some cases are harder than others. But here, unless you're willing to argue that no speech is involved in writing words, I think the court was right.

[EscherEnigma]

What, you don't think I can find a car mechanic who sings gospel songs while fixing engines and gets them to sing along with him? A man who feels a "calling" to fix engines to glorify God?

Does it sound absurd? Sure. And ten years ago it would have been absurd to ask if a plain sheet cake was art. But that was argued in front of the SCOTUS last year, and rather then refute that claim they kicked the can down the road and said "bias".

But here, unless you’re willing to argue that no speech is involved in writing words, I think the court was right.

I've been quite explicitly arguing that the court is wrong because they didn't go far enough.

[bernard11]

And if someone refused to make invitations for an opposite-sex, but non-Christian wedding, even a civil wedding, on religious grounds?

[PoxOnBothYourHouses]

bernard11 wrote: "And if someone refused to make invitations for an opposite-sex, but non-Christian wedding, even a civil wedding, on religious grounds?"

Not a hard case. If a son-of-a-bitch refused to make a cake or invitation to our interfaith, Jewish wedding, we'd have to look elsewhere. It's the son-of-a-bitch's right (IMHO).

[Roman Moroni]

Then they should be allowed to do so. If it’s a first Amendment expression thing, then they can discriminate on any grounds they decide to.

Don’t you think that’s consistent with this decision?

[EscherEnigma]

This decision is explicitly only about refusing same-sex couples. It leaves all other protected classes protected.

So no, that is not consistent with this decision.

[Eddy]

"And if someone refused to make invitations for an opposite-sex, but non-Christian wedding, even a civil wedding, on religious grounds?"

What kind of religious objection to you anticipate?

If it's a non-Christian wedding *among non-Christians,* most Christians wouldn't deny the legitimacy of the wedding for that reason alone.

There might be more of a problem if some polygamists or divorcees demanded a cake - if there's a case like that, where they sued the baker (or butcher or candlestick maker), I'd be intrigued to know about it.

[EscherEnigma]

What kind of religious objection to you anticipate?

I don't have to anticipate, David Anderson, from the Bernadine’s Stillman Inn in Illinois, has already refused an interfaith couple: it's not Christian enough.

That said, that most Christians wouldn't "deny the legitimacy" is irrelevant. Only the behavior of the person (who happens to be Christian) doing the denying in whatever case you're talking about. That they aren't representative of Christians as a whole doesn't matter.

[Eddy]

From an article about the Stillman Inn case, it seems there's possible contract-law issues, though they're going the "discrimination" route.

https://chicago.cbslocal.com/2016/05/25/couple-files-complaint-after-inn-denies-them-non-religious-wedding/

Anyway, I hypothesized a non-Christian wedding *between non-Christians,* and one party in this case is Christian.

If it's true, as they say, that they told the inn of their plans and made a deposit, only to have the rug pulled out from under them at the last minute, then one could argue there was a contract which got breached.

If so, this would be more than a case of "we don't do those kinds of weddings; I'm afraid you'll have to find someone who does."

[EscherEnigma]

All of which is a side issue.

What kinds of objections? Not Christian enough. Or as we saw last week, not single-race enough. How those cases end up getting handled in the courts is a side issue to whether or not people have those kinds of objections to begin with.

[Eddy]

This wasn't a non-Christian wedding *among non-Christians,* which is what I was specifically curious about.

[Brett Bellmore]

"In the United States, it was only Loving v. Virginia in 1967 that caused interracial marriage to be a right across the country, so I don’t think I’d agree that we’re talking about a millennia-long tradition."

There's a pretty big difference between "not always legal everywhere", and "not even a thing until a few years ago".

[Eddy]

Now, in popular culture, stories about interracial marriages, or attempted marriages, tend to be fairly tragic. That's not the same as popular culture denying these marriages exist.

[nothisispatrick]

I don't think anyone ever denied they exist. It would be odd to criminalize something you don't think exists.

[Brett Bellmore]

" Conservatives keep acting like these kinds of cases involve only religious liberty and speech, and not discrimination."

Huh? I'm pretty clear on it involving discrimination, it's just that my reaction is, "So freaking what?"

People are entitled to discriminate. Your rights don't magically disappear if somebody morally disapproves of how you chose to exercise them. And one of your rights, explicitly guaranteed by the Constitution, is the right not to be subjected to involuntary servitude. Another is freedom of speech.

Neither disappear just because you start a company, or somebody doesn't like who you chose not to do business with.

I can understand the motivation behind public accommodation laws, but they have grown like a cancer beyond any justified reach. They're now based on the idea that people who engage in commerce have no rights the left has to respect.

[nothisispatrick]

You have correctly recited the argument of my comment.

[Chris_Virginia]

"And one of your rights, explicitly guaranteed by the Constitution, is the right not to be subjected to involuntary servitude."

But the actual text has an exception. "...except as a punishment for crime whereof the party shall have been duly convicted..."

Potentially, if the crime is a violation of a public accomodation law, then involuntary servitude can be mandated.

[Brett Bellmore]

You can take a right away upon conviction for violating a law, but the law can't be against exercising that right, because having a right inherently means it isn't illegal to exercise it.

You'd never accept that sort of reasoning for any right you didn't want abolished.

[EscherEnigma]

The hard case is going to be when someone refuses to make a wedding invitation (or cake, or floral arrangement, or wedding video, etc.) for an interracial couple.

You mean like that venue last week that said they didn't do interracial weddings because God, and then backed down right-quick?

Or how about the wedding venue a few years ago that said they didn't do interfaith weddings because God?

For some strange reason, conservatives at large don't flock to those folks screaming "Religious Liberty!", and it doesn't take a genius to figure out why.

Heck, even self-proclaimed libertarians have no interest in dismantling non-discrimination laws that protect religion or race. Every single claimed principle they throw out in defense of discriminating against gay folk is immediately forgotten when you talk about one of those other categories.

Hence why I called the judges cowards for their obnoxiously narrow ruling that says this business can discriminate against gays, but explicitly said this shouldn't be taken to mean they have an out to any other non-discrimination law or ordinance.

[Josh R]

The hard case is going to be when someone refuses to make a wedding invitation (or cake, or floral arrangement, or wedding video, etc.) for an interracial couple

That strikes me as an easy case. If a calligrapher can refuse to serve a same-sex wedding on Freedom of Speech grounds, they must also be able to refuse to serve an interracial wedding.

[EscherEnigma]

Not according to this decision. And as the ADF lawyers argued in front of the SCOTUS last year while defending Phillips, his argument would leave protections against racial discrimination intact.

[nothisispatrick]

I don’t think you’re getting my point. Renting a venue doesn’t involve speech. The racist venue owner doesn’t have a free speech defense to the public accommodation law. A homophobic venue owner wouldn’t either. The rulings in the cases of which I am aware do not say that their ruling goes for anti-gay discrimination, but not, for instance, anti-black discrimination. They say that the situation before them involves infringement of speech in violation of the constitution. I don’t know for sure how the same courts would rule on racist calligraphers, but there’s nothing in the logic of their opinions that says the rules apply differently there. Maybe those courts will be cowards when the case is presented, but for now that’s premature.

[EscherEnigma]

The rulings in the cases of which I am aware [...]

Doesn't include the ruling this article is about, apparently, as said ruling was quite explicit on how narrow it was.

[nothisispatrick]

The court only decided the case before it. That's how the courts work. If someone challenges the racial part, I imagine it will come out similarly. I definitely don't have enough information to confidently believe that it wouldn't come out similarly, and neither do you.

[EscherEnigma]

That’s how the courts work.

When they want to work that way, sure. And when they feel strongly on an issue, they give nationwide injunctions, adopt arguments that no lawyer presented, find a way to not make a decision, etc. and so-on.

So when they write, explicitly, that the exception only applies to the one company, and only on the one issue, leaving intact the meaningfully similar issues on either side of it, that's not "saying nothing".

[RestoreWesternHegemony]

That's not true at all. Libertarians generally support having no public accommodation laws at all, or at the very least, none that apply to non-emergency goods/services.

[nothisispatrick]

That’s not a ridiculous view, but it’s also not the only non-ridiculous one. There’s a strong case to be made for any service that could be reasonably characterized as essential to be included. Your position that only emergency goods can count isn’t obviously correct.

[RestoreWesternHegemony]

I might have misspoke when I said "emergency," but the idea is that a person shouldn't be left stranded at the side of the road with no gas because an owner won't let him buy any. A wedding cake doesn't qualify under either definition.

[EscherEnigma]

Stated values? Sure. Revealed values? Ha.

[Josh R]

Conservatives keep acting like these kinds of cases involve only religious liberty and speech, and not discrimination

I was surprised the Arizona court said:

Thus, although Plaintiffs’ refusal may, like Hurley, primarily impact same-sex couples, their decision is protected because it is not based on a customer’s sexual orientation.

Firstly, I agree with you and think the court got it wrong. The calligraphers are discriminating against gays.

But assuming for the sake of argument we are wrong and the court got it right, their take on the law is a mess. They imply that if the calligraphers' decision was motivated by sexual orientation, the First Amendment would not protect them. That can't be right. Additionally if the calligraphers did not intentionally discriminate against gays, then they wouldn't be in violation of the statute in the first place (at least I don't think the statute covers a disparate impact).

[nothisispatrick]

I agree. That’s been my problem with the reasoning of the courts, and some op-ed writers like David French, that have come out on this side of it. They act like just because the issue is compelled speech, there’s no sexual orientation discrimination. There is, but because the discrimination is in speech, it’s protected.

[Krayt]

Anti-discrimination is largely statutorily-created. Speech is right there in amendment 1.

Speech allowed the (admittedly slow) persuasion to end discrimination. But without free speech, we wouldn't be here.

Free speech should win because, with it, all things are possible.

With cracks allowing tyrants a modicum of speech control, those who love freedom, including anti-discrimination, have no historical reason to feel secure in the long run.

[N/A]

I have not looked at the opinion thoroughly yet, but based on my brief review and from a strictly doctrinal standpoint, the opinion strikes me as correctly decided, primarily because of this point: "[the plaintiffs] spend many hours designing and painting custom paintings, writing words and phrases, and drawing images and calligraphy."

That sounds like the custom invitations are essentially unique, personalized works of art. So if a painter can't be forced to create a painting that expresses an idea he or she disagrees with (I think this is well-established doctrinally, but if someone with knowledge on this topic disagrees, please set me straight), then it seems to follow that these calligraphers can't be forced to create custom art works, regardless of whether the purpose of the works is for a wedding invitation. The same would not necessarily be true, though, for non-personalized "stock art" invitations that are readily available for any one who walks in the shop.

On the point made above about potential hypocrisy (i.e. invitations for divorcees and fornicators but no invitations for LBGQT), I agree with the response that a religious devotee need not necessarily accept/practice every tenet to be a sincere believer. I was educated in Catholic institutions for more than a decade, and obviously some sins are viewed as more damning than others. Cf. Dante Alighieri, Inferno.

That said, I also think it's at least potentially problematic to allow someone to pick and choose which "religious violations" are sufficiently egregious to merit the withholding of their services. That kind of personal selection opens the door to argument that the relevant religious belief is a merely pretext for simple prejudice . It seems fair that a court might be more skeptical where there's evidence suggesting that a service provider is happy to offer services to those engaging in one religious "violation" but not another.

[nothisispatrick]

Courts do not look into the reasonableness of religious belief; they only inquire about sincerity. The religious angle here is a bit murkier than the free speech one. Since Employment Division v. Smith, the general rule has been that if a law is neutral as to religion, and applies generally, it doesn't violate the Free Exercise clause even though it burdens religion in application. It gets a bit more complicated on the margins, but that's the rule that applies here.
We don't need to get into that though, because the speech issue is all you need. Are you compelling speech? Obviously, unless you don't think the words "Congratulations John and Tim" constitute speech, which is not a serious position. With few exceptions (requiring a subpoenaed witness to testify, for instance), the government cannot compel speech. If it can show a compelling governmental interest, and that the means chosen are the least speech-restrictive means to accomplish that interest effectively, then it can compel speech. That doesn't seem likely in these cases.

[N/A]

I have to concede that I don't have a working familiarity with all of the applicable constitutional doctrine, so I'll defer to the helpful framework you provided.

On the free exercise issue, my understanding is that the law is both neutral and generally applicable, so it sounds like you're saying the it's probably okay (setting aside the complications on the margins). Makes sense to me (but please tell me if my understanding of the Arizona law is wrong).

On the speech issue, and at the risk raising a point that you indicate cannot be taken serious, something sounds fishy to me about "Congratulation John and Tim" being the relevant sort of speech (that which were worried about not compelling). If a job required a print shop to enter those words into a word processor and then print the invitations, would the same rule/result apply (i.e. compelled speech, law unconstitutional), assuming that the basis for refusing to print the invitations is a sincerely held religious belief?

Again, I defer to you on the doctrine, but what sounds weird to me about the speech thing is that the rule you set out doesn't seem to distinguish between certain kinds of expression. For example, merely typing those words for a wedding invitation is different than creating some sort of unique work that embodies the maker's individual, personalized skill and expression (say a stylized portrait of John and Tim on the front of the invitation). With the portraits, the form of the expression that is being compelled strikes me as much more belonging to/emanating from the individual. With the print shop/word processor, though, the form of expression seems hardly tied to the individual.

Does the doctrine not make any distinctions on that or similar bases? I don't necessarily mean to say that I think it should, but it seems like compelling the portraits is more troubling than compelling the word processing.

(Also, if anyone else wants to help educate me, feel free).

[nothisispatrick]

Putting something in a word processor isn’t fundamentally different. The whole dichotomy of artistic/non-artistic isn’t the important bit, it’s speech/ non-speech. So if, as part of your business, you speak, that’s constitutionally protected. It gets kind of tricky when you deal with marginal issues. So for instance, if you’re a printing company and you don’t just scan pre-made images, but enter the pre-written message into a machine, that might be speech for first amended purposes, but it isn’t clear. When you’re creating part of the message as in this case though, it is clear. This is more like an artist with a patron than a screenprinter with a client.

[nothisispatrick]

*First Amendment purposes*

[Sarcastr0]

Ah.

Under these facts, I would agree with the court.

[EscherEnigma]

So you agree that them refusing a gay couple is A-OK, but them refusing a mixed-race couple is still prohibited?

[Sarcastr0]

It's not about who, it's about what - they're refusing an individualized service that's specific enough that it's particularized to each customer.
That's much harder to countenance than a more mass-produced good or service. Like, say, a wedding cake.

[EscherEnigma]

And as the opinion made clear, they have permission to refuse an order for wedding invitations if it is for a gay couple, in violation of the city ordinance.

And just as clearly, they do not have permission to violate any other part of that ordinance, such as the parts prohibiting discrimination based on religion or race.

[nothisispatrick]

Yes, but that's because those parts were not challenged. The court isn't a second legislature, it only decides the case in front of it. The court definitely didn't say that in the racial context it would be different.

[EscherEnigma]

If you say "mom, can I have ice cream?" and mom says "you can vanilla ice cream", that's a pretty big hint on whether or not you can have chocolate.

That said, we all know that courts are quite willing and able to address parts that lawyers don't bring before them. Pretending that they lost that power all of a sudden is hilarious.

[Josh R]

Under these facts, I would agree with the court.

I think those are also the facts from Elane Photography. And yet, the New Mexico Supreme Court held:

the photographs that are allegedly compelled by the NMHRA are photographs that Elane Photography produces for hire in the ordinary course of its business as a public accommodation

even though the photographs are just as personalized works of art as the calligraphy.

Also, Eugene distinguishes between customized calligraphy (protected) and customized cakes (not protected).

[Sarcastr0]

I think it's a closer question whether the service of wedding photography is the same as this. It's work that requires craft, but not as much individualized consideration.

[Oshtur]

Also, I recall that Elane had admitted in deposition they had hired 3rd party photographers in the past so it would be easy to find a photographer that would happily take the paycheck. This case is closed because there are only 2 calligraphers, they don't hire 3rd parties, and both want to disrespect the creeds that have same-séx marriages.

[Bored Lawyer]

Posts on these topics always bring out the same set of comments.

So I will do the same. Whenever this comes up, I give the same hypothetical.

Fred is gay and owns a printing shop in a small town, where he makes a modest living printing signs, invitations and flyers. He has printed signs for local elections, both persons running for office and on ballot issues.
One day, a member of the Westboro Baptist Church enters and places an order for 100 signs, each saying "God Hates F-GS" to be used at their next rally. Appalled, Fred refuses.
Fred is then sued for religious discrimination in public accommodation, since his business is a commercial one generally open to any customer willing to pay his prices.
Who should prevail? Does Fred have First Amendment defenses?
Why is his case different from the current case (or those brought against the baker, florist and photographers)?
If the answer is you agree with Fred and disagree with these other vendors, then you are not applying law, but your own feelings.

[Josh R]

I'm guessing I have given this reply before as well:

As long as Fred would equally refuse to serve someone who wanted the signs to read "Darwin Hates F-GS," Fred isn't discriminating on the basis of religion and thus hasn't violated the statute. Thus, Fred can refuse the business and we don't reach the First Amendment question.

[RestoreWesternHegemony]

Okay, so what if the owner here wouldn't make invitations for a gay wedding regardless of whether the gay couple themselves ordered them, or someone else ordered them on their behalf?

[Bored Lawyer]

That's sophistry. The message is a religious message -- one that is closely associated with that church. There was even a Supreme Court case about it.
And, in some states, political discrimination is also illegal. And that is clearly a political message, apart from a religious one.
And what if the message was a quote from a certain passage in Leviticus?
Point is, the law cannot be used to force some people to print messages they disagree with, and not others. Some of the concurrences in the Masterpiece Bakeshop case pointed that out -- the Colorado Civil Rights Board had allowed some forms of discrimination but not others.
The better rules, IMO, is you cannot force anyone, even a commercial establishment, to disseminate a message they disagree with.

[Bored Lawyer]

Josh R

You can make the same argument in almost every case. We are not discriminating against gays, we are discriminating against the message that endorses SSM.
In virtually all the cases, the vendor was willing to serve gays on other types of products. The baker was willing to sell them a custom birthday cake, but not a customer wedding cake for a SSM.
So I would endorse such a distinction, if it were evenly applied. The discrimination here is not against a particular type of person, it is against a particular message. That is both outside both civil rights statutes and protected by the First Amendment.

[Sarcastr0]

BL, you are conflating a particular service with refusing to serve particular people.

The wedding cake makers could refuse to write '*heart* Kevin and Neal.' They just can't refuse Kevin and Neal.

[jph12]

"BL, you are conflating a particular service with refusing to serve particular people."

No, he really isn't. You can tell because he says "[i]n virtually all the cases, the vendor was willing to serve gays on other types of products."

[Sarcastr0]

Read the next sentence: The baker was willing to sell them a custom birthday cake, but not a customer wedding cake for a SSM.

With respect to wedding cakes, it's about people not service.

Do you search my name to reply to each comment I make?

[jph12]

"With respect to wedding cakes, it’s about people not service."

No, it's about cakes for gay weddings, regardless of who is ordering them.

"Do you search my name to reply to each comment I make?"

No, but you post so much stupid shit it's hard to avoid responding to at least some of it.

[Bored Lawyer]

BL, you are conflating a particular service with refusing to serve particular people.

No, I am distinguishing them. Acc. to the baker, the customer does not matter -- he will bake birthday cakes for gays and straights alike. In fact, the person who is the honoree does not matter, either. He would bake a birthday cake for a straight person holding a birthday party for a gay person.

And, turning to wedding cakes, he (presumably) would bake a wedding cakes for a gay person ordering it for a straight wedding. (E.g., a gay man orders a birthday cake for his straight sister's wedding.)

His objection is to baking a cake for a SSM, which he considers sinful, and he does not want his talents used to endorse and celebrate sin.

That, IMO, is not discrimination against persons on the basis of sexual orientation, it is discrimination based on their message -- celebrate a SSM -- which message he finds offensive.

And, Gorsuch was right. The Colorado Civil Rights Commission held that the baker was discriminating, but the baker who refused to bake a cake that disparaged gays was not. That is content discrimination forbidden by the First Amendnment -- we compel speech we like, we don't compel speech we don't like.

[EscherEnigma]

Acc. to the baker, the customer does not matter [...]

Which was later revealed to be a lie, when an order for a birthday cake went from "acceptable" to "unacceptable" not based on the design of the cake, but the traits of who it was for.

That, IMO, is not discrimination against persons on the basis of sexual orientation, it is discrimination based on their message — celebrate a SSM — which message he finds offensive.

This distinction has been rejected for decades.

As far as Alcazar (sp?) bakery is concerned, in that case the baker was not rejecting the customer. They tried to work with the customer on a design that was acceptable to both of them, and was only rejecting specific words and messages. In Phillip's case, there was no acceptable design because he was not objecting to the design of a cake, he was objecting to who the cake was for.

Let me repeat that: In the case of Alcazar Bakery, the objection was to specific physical tangible elements of the requested cake, and the baker attempted to find a different cake that would be acceptable. In the case of Masterpiece Cakeshop, the objection was to who the cake was for, and not any physical or tangible element of the requested cake.

[Oshtur]

No they held the business owner and business was discriminating. As Jack admitted in deposition he didn't make all the wedding cakes at the business. If he didn't want to make it someone else could have then. Not now though as their business as diminished to the size he probably is now the only wedding cake baker.

[EscherEnigma]

Cool. So in my hypothetical comic book shop, I'm not discriminating against Libertarians, I'm discriminating against the message that Libertarians should read comic books.

There's a reason the courts don't think that distinction is meritorious.

[Bored Lawyer]

You do understand that these are custom products, incorporating a message, that the designer is being hired to create, right? Your comic book shop analogy is not.

[EscherEnigma]

Yes, I understand that's the argument. It's a rather absurd argument though, hence why Phillips won on the "bias" grounds rather then on any merits.

Which is to say... if Phillips can refuse a gay customer because there is a "message" in selling them a plain sheet cake for a wedding†, then I should be able to refuse an anti-gay customer because there is a "message" in putting a comic into a plastic bag.
________
†His ADF lawyers were quite clear that there was no possible wedding cake that would not have the "message" he objected to.

[Kazinski]

That's your answer, run it by the human rights commission in Colorado and he has a perfect right to refuse to print something he doesn't like, but God help him if he thinks his religion forbids it.

[Josh R]

The message is a religious message — one that is closely associated with that church

You missed my point that the objection to the message isn't because it is religious.

The concurrence you refer to is Gorsuch's. He got it wrong too. Eugene got it right.

what if the owner here wouldn’t make invitations for a gay wedding regardless of whether the gay couple themselves ordered them, or someone else ordered them on their behalf.

The discrimination is against the couple, not against who ordered the cake.

[jph12]

"The discrimination is against the couple, not against who ordered the cake."

How so? Unless you are positing an agency relationship, the couple isn't being denied service. What if it's a straight person trying to order custom invitations for a gay wedding shower the straight person is hosting? Would that still be discrimination against the gay couple, even though they aren't the customer and it's not their event?

[Josh R]

The target of the discrimination is determined by the reason the business refused service. In this case, that reason is an objection to same-sex marriages. So yes, if a straight person hosts a shower for a gay couple and is refused service because the business owner objects to same-sex weddings, that would be discrimination on the basis of sexual orientation.

[jph12]

"The target of the discrimination is determined by the reason the business refused service."

You're going to have to explain how you get that out of the text of the statutes. Like the Phoenix statute, they tend to be drafted around the refusal to provide services to people.

"Discrimination in places of public accommodation against any person because of race, color, religion, sex, national origin, marital status, sexual orientation, gender identity or expression, or disability is contrary to the policy of the City of Phoenix and shall be deemed unlawful."

The gay couple aren't in the place of public accommodation and aren't seeking services. How are they being discriminated against? The straight person is in the place of public accommodation, but how is he being discriminated against based on sexual orientation?

"No person shall, directly or indirectly, refuse, withhold from, or deny to any person, or aid in or incite such refusal, denial or withholding of, accommodations, advantages, facilities or privileges thereof because of race, color, religion, sex, national origin, marital status, sexual orientation, gender identity or expression, or disability . . ."

Again, what "accommodations, advantages, facilities or privileges" are the gay couple being denied?

"In this case, that reason is an objection to same-sex marriages."

Exactly. That's discrimination against a belief or an ideology, not discrimination against a protected class.

"So yes, if a straight person hosts a shower for a gay couple and is refused service because the business owner objects to same-sex weddings, that would be discrimination on the basis of sexual orientation."

You just said that the "reason is an objection to same-sex marriages," not sexual orientation. That's not the same thing, any more than sexual orientation discrimination and sex discrimination are the same thing.

And under this scenario who would be able to bring a claim for discrimination in a jurisdiction that outlawed discrimination based on sexual orientation?

[Sarcastr0]

Whether a wedding cake is gay or not doesn't depend at all the cake, it depends on the people ordering it.

[jph12]

"Whether a wedding cake is gay or not doesn’t depend at all the cake, it depends on the people ordering it."

What do you think this post contributed? If you were actually paying attention to the conversation, you would realize that we aren't even talking about cakes.

[Josh R]

The statute says (my emphasis) "because of [...] sexual orientation." In my opinion, when a vendor refuses to serve a straight person purchasing an item for a same-sex wedding because the vendor objects to the conduct of same-sex marriages, the vendor has denied service because of sexual orientation even though the person requesting the service is not gay. As SCOTUS noted in Christian Legal Society:

Our decisions have declined to distinguish between status and conduct in this context [...] the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class. [...] A tax on wearing yarmulkes is a tax on Jews

A vendor that refuses service to a Christian purchasing an item for a wedding where yarmulkes will be worn because the vendor objects to the conduct of wearing yarmulkes, the vendor has denied service because of religion.

[jph12]

" In my opinion, when a vendor refuses to serve a straight person purchasing an item for a same-sex wedding because the vendor objects to the conduct of same-sex marriages, the vendor has denied service because of sexual orientation even though the person requesting the service is not gay."

So if I understand you correctly, you believe that the straight customer could bring a claim for being discriminated against based on sexual orientation? That's a colorable argument, but I have a hard time seeing that as the best reading of the statute.

" As SCOTUS noted in Christian Legal Society"

In Christian Legal Society (decided when state laws outlawing gay marriage and the constitutional scholar in office was still arguing that marriage was between a man and a woman), the Supreme Court was talking about prohibitions on gay sex essentially being targeted at gays as a class. Here the objection is to gay marriage, not gays, as demonstrated by the willingness of the vendor to provide gays with all of the same services they will provide straights, and the vendor's refusal to make invitations for things related to gay marriages whether the customer is gay or straight.

The law also prohibits discrimination based on marital status. It seems silly to argue that if a vendor refuses to make custom invitations for any weddings or wedding showers (say because they don't want to make stuff for gay weddings) they are discriminating based on marital status, but given the broad reading of the statute being argued it seems like it would follow.

[EscherEnigma]

So if I understand you correctly, you believe that the straight customer could bring a claim for being discriminated against based on sexual orientation?

In a state that has sexual orientation in their non-discrimination law, you can sue if you're fired because your boss thinks your'e gay, even if you aren't gay.

Because what matters isn't actually your traits, but their motivations.

So yes. If your order for cookies is refused because the baker thinks you're going to give the cookies to the LGBT homeless shelter down the street, and they don't think LGBT homeless teens deserve cookies, then it doesn't matter what your orientation is.

[Josh R]

If a vendor objected to serving Jewish weddings but otherwise served Jews, would that be discrimination because of religion?

[jph12]

"Because what matters isn’t actually your traits, but their motivations."

You say that, but then you disregard their actual motivation to frame it as a prohibited motivation. Much like in the Title VII cases where the employees are asking the courts to disregard the actual reason they were fired, their sexual orientation, and pretend they were fired based on their sex instead.

"If a vendor objected to serving Jewish weddings but otherwise served Jews, would that be discrimination because of religion?"

No. Or at least not any more than a vendor that refuses to serve any weddings is discriminating against single people.

[EscherEnigma]

You say that, but then you disregard their actual motivation to frame it as a prohibited motivation

Nope. I'm applying case-law and precedent, which is that (contrary to your assertion below) refusing a "Jewish wedding" is indistinguishable from refusing Jews.

[Oshtur]

Depends on where the infraction occurs. Washington is pretty clear, both direct and indirect discrimination is prohibited. e.g. you won't cater an event because the DJ is black is still discrimination by race even if the the store had no issue with the race of the event planner doing the ordering.

[PoxOnBothYourHouses]

Josh R wrote: "As long as Fred would equally refuse to serve someone who wanted the signs to read “Darwin Hates F-GS,”

This principle played a role in the Colorado Cake Baker case, where Justice Kennedy pointed out that the Colorado Civil Rights Commission that ruled against baker Jack Phillips had sided /with/ bakers who refused to create cakes with "God hates gays" types of expressions.

[Josh R]

Kennedy said the flaw was (my emphasis) the

disparate consideration of Phillips’ case compared to the cases of the other bakers.

. As Justice Kagan (who joined Kennedy's opinion) noted in her concurrence

What makes the state agencies’ consideration yet more disquieting is that a proper basis for distinguishing the cases was available—in fact, was obvious.

[EscherEnigma]

And Kennedy was being a dumb-ass, because in that case, unlike Phillip's case, the baker never said that there was no cake they would take an order for, they just refused specific words and phrases. Phillips would have had to refused specific designs, but willing (in theory) to bake a wedding cake for it to be comparable.

[Oshtur]

Exactly. One of the bakeries even offered to make the Bible-shaped cake and give the customer the means of putting whatever message they wanted on the blank cake. They knew it was going to be used for homophobic purposes they didn't approve of but respected the customer's right to those beliefs.

Jack refused to allow his business to make any wedding cake for the customers no matter its design even though it advertised to the public a wedding cake gallery, made it clear any customization of standard models was optional, and if the customer wanted it it would be done to their exact specifications, i.e. the customer was the artist, they baker the technician implementing their art.

[DWB]

It's funny...

I sat down this evening to watch an old episode of "Carol Burnett and Friends" show and they did a little sketch about how the show had to be careful to ensure that they did not offend anyone in their comedy.

Change a character name because it's "too Jewish."

Why have a white character named "Jones?"

Ooh ... "too Italian!"

This is what, 1969? 1972? 50 years ago.

The more that things change -- there are STILL dumb people.

Back in the day we used to call them Democrats. Today? Oh wait, never mind -- that's still their name... evil bastards.

[not guilty]

I haven´t read the opinion yet, but why is elimination of sexual orientation discrimination not a compelling governmental interest which cannot be achieved by means less restrictive of free expression?

[fafalone]

Since miscegenation has also been held out as a religious sin (and was outlawed in some places until SCOTUS' ruling in Loving), does this line of legal reasoning also allow refusing to create items for interracial weddings?

It should go one way or the other. If you can't discriminate against same-sex, you can't discriminate against LGBT. Or you can discriminate against both freely. Pick one.

[fafalone]

This site is violating my religious rights by NOT HAVING A DAMN EDIT BUTTON. 'same-sex' -> 'different-race'.

[EscherEnigma]

Nope. The verdict was very explicitly clear that it only gave permission to ignore the "sexual orientation" part of the city ordinance, not any other part.

That said, it should be noted that no one actually sued this business, and the business admits it hasn't actually had any gay customers (that it knows of). This entire thing was just the ADF looking to undermine non-discrimination laws.

[QQ TERPERCAYA]

“The discrimination is against the couple, not against who ordered the cake.” Poker Online

[Sarcastr0]

Flattered to be signal boosted by this spambot.

[Ilya Shlyakhter]

Why couldn’t they outsource/subcontract the order? Handling logistics is not speech.

[Booker61]

One thing I think everyone can agree on, and that's that we have to draw a line somewhere. I think the lower courts have mostly done that in these wedding services cases; every ruling I've read has said that you have to provide the same goods/services to a gay person/couple you would to their straight counterpart--but you can refuse a request for a custom "particularized message". So yes, you have to make the cake; but you don't have to put a "message" on it (in words, images, etc) you object to. That's separate from the protected "status" of the customer; you wouldn't write that message for anyone.

So I think the ruling is wrong. The city made it clear they would not and could not force the printers to put such a "message" on the wedding invites; they just have to make wedding invitations for gay couples the same as they do for hetero couples. But they don't want any "association" with gay marriage to any extent, and I think that's asking too much. Does it send a "message of approval" if you "make" anything that's used to "facilitate" the marriage? Maybe, but if your beliefs are that God wants separation of the races, and you concede that you have allow African-Americans in your restaurant with all the white customers, doesn't that send a "message" contrary to your beliefs? Maybe so, but again--you can't have everything. We have to draw a line. For me, that line is the "particularized message".

[Ellen B]

I keep askin' - nobody answers: Why doesn't "freedom of contract doctrine" apply? Cases like this (the florist case, and cakeshop) worry me. I have a pottery business, and I think "consumer protection" activists wouldn't drag me to court if I chose not to produce mugs with swastikas...or would they? When I say "freedom of contract doctrine" I'm referring to this general description:

"The doctrine which states that people have the right to legally bind them is known as freedom of contract. Freedom of contract is a judicial concept which holds that contracts are based on mutual agreement and free choice. Therefore, contracts are not be hampered by external control such as governmental interference."

[Ellen B]

I know attorneys who wave-off tort cases, domestic violence cases, and criminal defense cases - to name just a few. Of course they're too skillful to elaborate.

"Public accommodation" as-in serving folks at a lunch counter or selling production goods "on the rack" or "off the shelf" is completely different from being coerced or commandeered to enter into a contract for a special order. I think that's where one should draw the line, and that we (the people) would benefit from a ruling that makes the distinction clear. The flower(s) and cake cases sure didn't draw the distinction.

[Shepherd Zayn]

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