303 Creative at Hamilton College

"Free speech is really getting out of control," one panelist asserts

Wednesday night I spoke on a panel about 303 Creative v. Elenis, which upheld the free-speech right of a graphic designer to decline requests to create same-sex wedding websites. I had previously discussed the decision on a panel at UConn Law School, with Professor Katherine Franke (Columbia), Professor Craig Konnoth (UVA), and Ria Tabacco Mar of the ACLU.

This time around it was at Hamilton College in New York as part of the school's "Common Ground" series, which seeks to bring speakers with diverse perspectives together to discuss controversial issues in a civil way. The panel featured super smart and fully prepared critics of the decision: former state solicitor general Eric Olson (who gamely defended Colorado at oral argument), and Southwestern Law School professor Hila Keren. The moderator was Greenberg Taurig partner Mike Grygiel, who specializes in First Amendment and media law.

As you can see in the video, there were a few slivers of common ground surrounded by quite a bit of passionate but respectful disagreement. As the panel began, a group of students silently unfurled a banner proclaiming, "My Rights Are Not A Debate." There were no disruptions.

The discussion lasted an hour-and-a-half but it really gets going around the 40:00 minute mark. Overall, it was more substantive than most panels I've participated in, even at law schools.

I'll add one more thing: I was amazed at the level of sophistication and engagement of the students at Hamilton College.  The perceptiveness of their questions was remarkable (student questions start about the 1:15:00 mark). What's more, a large group of students stuck around for even more thoughtful discussion off-camera for about an hour—until we were expelled by maintenance personnel. I've rarely encountered law students at one of these kinds of events as genuinely curious and open to new ideas as these undergraduates were. Bravo to Hamilton for whatever it is doing to select students and fuel their intellectual fires.

Comments

[Rev. Arthur L. Kirkland]

speakers with diverse perspectives

Who represented America's vestigial gay-bashing bigots?

How many of the speakers are superstitious gay-bashers (distinguished from decent people who advocate that conservative bigots have rights, too)?

[Abdul Abulbul Amir]

A simple question for you Rev. Would a Jewish cake decorator be guilty of illegal discrimination for refusing an order for a wedding cake that praised Hitler and decorated with gas chambers and crematoria if the customers were gay, but not if they were straight?

[Rev. Arthur L. Kirkland]

Maybe.

Which bigot you described -- the straight antisemite, the gay antisemite, or homophobic Jew -- do you like best? I would expect to learn that most Volokh Conspiracy fans prefer the straight antisemite or the homophobic Jew.

[Dr. Ed 2]

Kirkland, do you REALLY want people who don’t like you preparing your food? REALLY?!?

I spent a summer as a health inspector and can tell you horror stories about places that merely were in it for the money — and can only imagine what might happen were there malicious hatred toward the customers.

No, I want people who LIKE me preparing my food — and besides, I’d rather give my money to people who don’t hate me.

Why aren't they into supporting Gay-owned, Gay-friendly businesses???

[Randal]

Why aren’t they into supporting Gay-owned, Gay-friendly businesses???

Maybe they don't think it's healthy for society to be siloed by tribal mutual hatred.

[Ed Grinberg]

As opposed to forcing someone to do something they find deeply offensive? I can't think of anything more likely to produce deep resentment, if not hatred.

[Randal]

He doesn’t have to be a publicly-advertised custom cake baker if he finds serving the community to be so distasteful.

[Bwaaah]

Yes…he can be the n_____r. You know…the one who doesn’t deserve to live they way he does. All of them.

[Rev. Arthur L. Kirkland]

No need to be bashful at this blog. The proprietor loves racial slurs. Can’t get enough of them.

[Joe_dallas]

He is serving the entire community. He is not servicing a specific action. A very important distinction.

[Randal]

Nobody buys that.

If you sold only men's clothes but tried to make the case that you serve men and women equally because you'll sell men's clothes to women, you'd be a retard.

Same here, retard. It isn't about the identity of the person actually doing the transaction. It's about whether or not the service is available to a protected class. If gays aren't able to have cakes at their weddings, then the service isn't available to them. Just like how men's clothes don't meet the needs of women.

[Voize]

Randal, you've lost me. It isn't illegal in Colorado for stores to sell only men's clothes.

[Randal]

And it would be worth figuring out why. If people really want to sell straights-only cakes, they should look into why it’s ok to sell men-only clothes.

This parallels the dissent in 303 Creative. It emphasized that it would be fine for a custom website business to only do certain kinds of websites, as long as the focus was on the product, not the customer. For example, Traditional Christian Wedding Websites: no problem! Wedding Websites But Not for Gays: problem. The dissent never suggested that she’d be forced to make websites for gay weddings, it just questioned why she was so fixated on gays rather than on her website business.

Same with custom cake guy. Instead of having an All-Purpose Custom Cake business and then turning away gays, he could focus his business on something that he actually wouldn’t mind providing to everyone, like Custom Birthday Cakes or whatever. It just can’t be Custom Cakes Including Weddings But Not Gay Ones.

Men’s clothes is an example of how the product category can even follow the contours of a protected class as long as everyone understands that the product category is a real one and not just cover for discrimination. Cakes / Websites For Everything But Gay Weddings is obviously not a legitimate product category.

[Voize]

OK, but what confused me was

If you sold only men’s clothes but tried to make the case that you serve men and women equally because you’ll sell men’s clothes to women, you’d be a retard.

I don't see what you are claiming is wrong. The law does permit you to sell goods that don't appeal to a protected class, as long as you don't refuse to serve them because of their class status. And so your clothing store may choose to sell only men's clothes but may not refuse to sell those clothes to a woman because of her sex, just as a bookstore may choose to sell only Armenian-language books but may not refuse to sell them to a Turk because of his national origin.

[Randal]

Exactly. But it has to be the actual point of the store, what I was calling above a legitimate product category.

If you had a bookstore that didn't believe women should read and so only sold "books for men," meaning that they wouldn't sell a book to anyone who they had reason to believe would let a woman read it, that's obviously discriminatory because Books For Only Men To Read isn't a real product category. It's obviousky just a route to discrimination, even if they will technically sell books to women (as long as they say they're buying them for their husband for example.)

The point is, just saying you'll sell something to a member of a protected class doesn't mean you’re not discriminating against that class. It's not a defense. At the same time, you can legally "discriminate" against a protected class by running a business that doesn't appeal to that class, as long as it's a legitimate businesses and not just a pretext for discrimination. Both cake guy and website lady have that option, and the fact that they refuse to take it is just more proof that they're in it for the bigotry, not just to make an honest living.

[Voize]

You seem to be saying that men's clothing is a "real product category" therefore a men's clothing store could refuse to sell clothes to a customer if they suspected that those clothes would be worn by a woman? I think that is incorrect, barring some rare edge case (e.g. a designer legitimately concerned that their clothes would look terrible damaging their brand. It would help their case if they could demonstrate that they had turned down male customers on the same grounds).

[Randal]

Sorry, the analogies are imperfect. No, I don’t think that a men’s clothing store could decline a sale that they suspected would be used for cross-dressing. I would distill it like this:

1. If you won't sell to a protected class, you're discriminating.

2. If you will sell to a protected class but your business isn't useful to them, you're not discriminating.

3. If you will sell to a protected class and your business is useful to them but you won't allow them to make use of your products / services, then you're discriminating.

Men's clothing stores are in class 2. Cake guy and website lady are in class 3.

[bernard11]

do you REALLY want people who don’t like you preparing your food? REALLY?!?

Blind hog finds acorn. Film at eleven.

Good question, Ed. I don't, and I don't want them preparing food for my guests either.

Why aren’t they into supporting Gay-owned, Gay-friendly businesses???

Maybe because they want to patronize the business that they think does the best job, or is lowest priced, or most conveniently located, or can meet their schedule?

Do you really think gay people are being somehow disloyal or whatever if they go to the coffee shop across the street rather than going across town to the gay-owned one?

[Abdul Abulbul Amir]

Maybe! Is there a difference between discrimination against a product the same as or different from discrimination against a customer?

[Rev. Arthur L. Kirkland]

What is your opinion?

How do you distinguish among the described bigots? Do you like all of them, none of them, or some of them?

[Ed Grinberg]

Whether I “like bigots” isn’t the question. The question is what kind society we want to have. I want to have a free one. You want smiley-faced fascism — a totalitarian society where the government sticks its nose in every nook & cranny, ferreting out “bigots,” telling people what they can & cannot say, how they must feel, what they must think, etc. In 1984 Winston Smith only had to love Big Brother. In your ideal society, I have to love everyone. An utter nightmare, as I see it.

[Rev. Arthur L. Kirkland]

Bigots have rights, too — but not the right to avoid being described as bigots, nor the right to be enabled to hide behind euphemisms (such as traditional values, conservative values, family values, religious values, color-blind, or Republican).. I dislike bigots and the right-wing assholes and conservative organizations who embrace bigotry and appease bigots.

Superstitious gay-haters are no better than other bigots.

[Josh R]

In Colorado, yes. The only reason to refuse to make that cake for the gay customers is that they are gay.

[Life of Brian]

The only reason to refuse to make that cake for the gay customers is that they are gay.

This well-worn meme just isn’t going to die out, is it? Jack Phillips would not make a cake celebrating a gay wedding regardless of the sexual orientation of the purchaser.

[Josh R]

Phillips was not in Amir's hypo.

[Dr. Ed 2]

No. the bakery was to sell them a cake, and I believe had.

They just didn't make same-sex wedding cakes and hence that product wasn't being offered for sale -- to anyone.

It's the same thing as saying that Dodge has to sell me a Dodge Charger and that I can paint a Confederate flag on top of it myself if I wish to (aka Dukes of Hazard) but Dodge isn't required to sell me it with the flag already painted on it.

Henry Ford offered a Model T in any color you wanted as long as it was black -- and no court would have dreamed of ordering him to sell one in pink.

[Magister]

I am curious how Dr. Ed 2 distinguishes a same-sex wedding cake from any other wedding cake, but it's probably stupid and I'd be better off not knowing. I've been to numerous weddings and can not recall any cake that was specific to anyone's sexual orientation. (In the Masterpiece Cakeshop case, no design was discussed before the baker refused to sell the two men a wedding cake.)

Since Henry Ford died in 1947, he wouldn't have gotten in trouble for discriminating against women, blacks or Jews. He discriminated in hiring; I don't know what policy on sales he imposed.

[Stephen Lathrop]

Probably, Ford was content to let the banks do the discriminating for him.

[Armchair]

You're misreading the question.

The question is, if a Jewish baker is asked to make a cake celebrating Hitler, and he refuses to do so, is it discrimination if the customer is gay, but not discrimination if the customer is straight.

The baker refuses to do so in both cases, but is it discrimination "just" if the customer is gay?

[Josh R]

In Colorado (where political ideology is not a protected classification), it isn't discrimination against any customer so long as he refuses to make the cake for all customers.

[Krychek_2]

Your analogy completely fails because there is a huge difference between a cake that says Hooray for me (the gay wedding cake) versus a cake that says Piss on you ( the Hitler cake).

A gay wedding cake is not an attack on heterosexual marriage. No one is suggesting that there can’t be straight weddings or cakes for them. All a gay wedding cake does is celebrate one type of wedding.

The Hitler cake, however, is an attack on the Jews.

[hobie]

If you hillbillies really think about it, this is an excellent reason to refuse food and water to Gaza. The Supreme Court says it is legal to discriminate against gays. So frame it that there's bound to be some gay guys in there and you don't serve gay guys food on religious grounds

[Dr. Ed 2]

Hamas, the duly recognized government of Gaza, declared war on Israel. There is nothing in the rules of warfare that says a country must supply food and water to the enemy.

The government of Israel has the right to KILL the citizens of Gaza -- wouldn't that include the right to not to supply them food & water???

[bernard11]

The government of Israel has the right to KILL the citizens of Gaza

No. It doesn't, actually.

[Toranth]

Yes. It does.
As the most trivial example, any citizen of Gaza that takes up arms against Israel is a legitimate target.
Did you think he'd said "civilian" instead of "citizen"? In which case, you'd still be wrong: Israel has the right to attack Hamas soldiers, even if those attacks happen to kill Gazan civilians.

[Stephen Lathrop]

Toronth, nations don't have rights. They have powers. Your comment conflates them. The discussion here is only about persons, not nations, and persons have rights.

[y81]

The Allies had no problem cutting off food shipments to Japan and Germany. I guess you think FDR was a war criminal.

[Krayt]

Technically, the Supreme Court said laws protecting gays cannot override the First Amendment.

[Trollificus]

That’s a monumentally derpy take.

Note: that was @hobie above.

[Dr. Ed 2]

"Your analogy completely fails because there is a huge difference between a cake that says Hooray for me (the gay wedding cake) versus a cake that says Piss on you ( the Hitler cake)."

OK, a "Hooray for Hitler" cake.

I think that computer technology has gotten to the point where one could "print" a reasonable image of Hitler's face in frosting on the cake -- assume for the sake of argument one can.

[Armchair]

"Your analogy completely fails because there is a huge difference between a cake that says Hooray for me (the gay wedding cake) versus a cake that says Piss on you ( the Hitler cake)."

Interesting statement. IF the purpose of the cake is a proverbial "piss on you", does that mean the person making it can reject it?

[Krychek_2]

I haven't seen a case on it, but I would think the answer should be yes. I'm white. If I were a baker and someone wanted a cake that says Black is Beautiful, I think I should be required to make it. If, however, someone wants a cake that says White People Suck, then I should not be required to make it because it's an attack on my own group.

Which is why the analogy I've heard elsewhere also fails. If the Klan is having an event and wants a cake with a noose on it, no black baker should be required to make it, because the very existence of the Klan is to attack black people. The very existence of gay marriage, on the other hand, is not to attack straight marriage. Nothing about allowing gays to marry hurts straight people or their own marriages in any way.

[Armchair]

So, in the transgender birthday cake issue, in my mind, Autumn Scardina is making a deliberate "piss on you" statement towards Jack Phillips.

She was well aware of his particular religious beliefs, going into the store. And he was prepared to sell her the cake, before she explained exactly what she was going to use it for. And Scardina was well aware that this purpose (celebrating transgender conversions) was an item that Phillips disagreed with.

She designed the purchase and explanation of the exact purpose as a "piss on you" towards Phillips.

https://fortune.com/2023/01/27/colorado-transgender-birthday-cake-appeals-court-freedom-speech-pink-blue-frosting-autumn-scardina-jack-phillips/

[Krychek_2]

Not exactly.

I’m sure you’re right that she intentionally baited him, and he was stupid enough to take the bait.

But that said, being trans is not an attack on anyone else who isn’t trans, in the way that being a Klansman is an attack on being black. With the possible exception of a few radical extremists, trans people aren’t saying that it’s bad to be cis.

So her cake is in the hooray for me category. Being pro trans is not being anti cis.

If black people attempt to patronize a business run by white supremacists knowing they won’t be served so they can file a lawsuit is that wrong?

[Armchair]

1. As you mention, she "baited" him. She knew that she could either A: Sue Phillips for discrimination
B: Loudly proclaim that Phillips was making a creative art for something he had a religious belief against, and use that as evidence further lawsuits.

She's designed it as a "piss on you" against Phillips. That being said, it's not that Phillips refused to sell her the cake. He refused to sell her the cake "Once he knew what it was going to be used for" (a item that violated his religious beliefs).

Let's use a different example. A Catholic-affiliated shop is selling candles that have been blessed. A Satanist walks into the store. They request to buy a candle with the advance notice that they are going to "defile it" in their ceremonies. Can the shop refuse the sale.

Let's give a different example. A Palestinian walks into a Jewish bakery. They ask to buy a cake. The Jew can't discriminate. But what if the Palestinian asks for a message on the cake. "Praise Hamas". Or "Free Palestine" Or "Palestine must resist"

Those are all arguably "pro-Palestine" messages. Can the bakery refuse such business?

[Josh R]

They cannot refuse to serve the Satanist because that's religious discrimination. They can refuse the Palestinian because they won't make that message for anyone (it's discrimination on the basis of ideology which is permitted in most places).

[Armchair]

Unless of course the concept of a free Palestine is inherently linked with being Palestinian….

As for the Satanist example, any case law there?

I would imagine the state cannot compel someone with a strongly held religious belief to violate those beliefs, except in the most rare cases. One would imagine the Catholic shop would have strong religious beliefs against their blessed candles being defiled.

[Josh R]

I don't think any political belief is inherently linked to any nationality. People of many nationalities support Zionism or anti-Zionism.

I don't know of any caselaw that directly addresses the Satanist hypo, but what argument is there against the very straightforward application of the law as I stated it?

[Armchair]

West Virginia State Board of Education v. Barnette.

If you can't compel a Witness to salute the flag against their religious beliefs, you can't compel a Catholic to sell a blessed candle to a Satanist against their Catholic beliefs.

[Josh R]

Saluting the flag is expressive conduct (and saying the pledge is speech). Making and selling candles is not.

[Armchair]

Josh,

There are a host of other decisions protecting religious rights....

Do you really, honestly, believe that anti-discrimination law REQUIRES a Catholic to sell blessed candles to Satanists when they have deliberately professed that they intend to defile these candles?

[Josh R]

Employment Division v. Smith is still good law. The requirement to serve candles to Satanists is a neutral regulation of general applicability and thus the Free Exercise Clause is not a defense to obeying the law.

[Krychek_2]

AL, respectfully, you're still not getting it. The issue is not whether *her conduct* was intended to piss on him. The issue is whether *the message she wanted on the cake* is a piss on any group that he's a member of. The relevant group is trans. Nothing in the message she wants on the cake is an attack on any group he's a member of (except in the minds of some straight people who think that everything is about them).

With respect to your candle analogy, unless the store is an actual arm of the Catholic church, I would require them to sell it to him. They're in the business of selling candles, not policing what happens to the candles after they leave the shop.

[David Nieporent]

I haven’t seen a case on it, but I would think the answer should be yes. I’m white. If I were a baker and someone wanted a cake that says Black is Beautiful, I think I should be required to make it. If, however, someone wants a cake that says White People Suck, then I should not be required to make it because it’s an attack on my own group.

What? You think that the rules should depend on what message the cake says? You're turning it from a maybe 1A violation to an incredibly core 1A violation.

[Krychek_2]

Not exactly. This is compelled speech we’re talking about so the rules are slightly different, and in the context of compelled speech what the cake says absolutely matters. Forcing someone to attack their own race, religion or sexuality raises a different set of First Amendment problems. The only exceptions to that I can think of is public safety (the surgeon general has determined that smoking is dangerous to your health) or where wrongful conduct has been found.

[Josh R]

I don't think the rules are different for compelled speech. If you can't be forced to attack your own race (against your will), you can't be forced to praise another race (against your will).

[Krychek_2]

But that's not the issue. The question is one of line drawing. A racist business owner -- we'll call it White Sheets Party Supplies -- might prefer not to sell party supplies to what he knows will be a black event, but it would be silly for him to argue that merely selling the supplies, without more, constitutes his endorsement of the event.

At the other extreme, he could not be forced to sell them a cake that says "White Sheets proudly endorses this and all other black events." That would just as clearly be a form of endorsement that would violate his First Amendment rights.

In between those two extremes, where exactly does that line get drawn at which the balance tips from being nothing more than a viewpoint-neutral sale of merchandise to a forced endorsement of the event.

And I think the hooray for me versus piss on you distinction that I've drawn strikes that balance. As I said, I've not seen any cases on it, so maybe the courts would agree with me, maybe they wouldn't.

[Josh R]

I don't think there is a middle between your two extremes because endorsement isn't part of current doctrine. Instead on one extreme are services that have no speech and on the other are those that do where the provider is required to speak a message they don't want to without regard to whether they endorse an event. In between those two extremes may be services with speech, but the provider did not themselves speak (e.g., providing a template for a wedding website).

I also find it very strange that "White People Suck" is endorsement if the provider is white (and thus he can't be required to provide it), but isn't, if he is not white (and thus, he can be required to provide it).

[Krychek_2]

Except that every baker and florist and photographer who doesn’t want to provide services for gay weddings has made precisely that argument - that it constitutes their endorsement of a lifestyle they find morally repugnant. That by providing the service they are effectively endorsing what they find to be morally wrong. And whatever you may think of that argument it forms a significant part of they reason why they find it objectionable. And if you take the religious freedom aspect of it seriously that’s a sincerely held religious belief.

[Josh R]

OK, but endorsement isn't why Creative 303 won (nor religious freedom).

[Noscitur a sociis]

So you’re okay with compelling speech as long as you think the speaker shouldn’t be offended by the content message? That’s not the law, obviously, but I’m kind of amazed that you think it could or should be.

[Krychek_2]

No, I'm not ok with compelling speech as long as I think the speaker shouldn't be offended. I think that whether the speaker is, or is not, offended is legally irrelevant. I think the problem lies in forcing speech that is an attack on the speaker himself. And what I'm not amazed by, based on your past performance here, is that you apparently don't understand the difference between the two.

[Noscitur a sociis]

It appears that Prof. Carpenter was the only panelist defending the website designer’s position. I wouldn’t characterize him as a superstitious gay-bashed, but perhaps you would.

[Dr. Ed 2]

Nor would I consider a 1:2 panel to be "balanced."

[Rev. Arthur L. Kirkland]

Maybe the panel was devoid of superstition-addled gay-bashers -- in which case it might not have been properly described as diverse.

[Dilan Esper]

Re: the questioning period, I mentioned this back when the Stanford federal judge shout-down happened, but the Stanford students really missed an opportunity to prepare and fire tough questions at a federal judge they disagreed with.

I'm glad the questions were so good here. That's what the mindless demonstrators and shout-downers really miss; if someone is opening themselves up for questions, you can ask them really tough ones that require them to state their views and subject them to criticism. The process works when the protesters don't shut it down.

[Dr. Ed 2]

Unfortunately, I can’t get the volume loud enough to actually hear what people are saying, and I wish I could because I’d love to be able to hear the response to the panelist who asserted that “Free speech is really getting out of control.”

There was a time in this country when that -- coming from a law professor -- would have been incendiary, and I fear that it wasn’t. Some people being more equal than others, and all of that…

“if someone is opening themselves up for questions, you can ask them really tough ones that require them to state their views and subject them to criticism. The process works when the protesters don’t shut it down.”

It *also* only works when you have true diversity in the audience, i.e. others asking equally tough ones of the panelists on the other side — when the LBGT+++ activist is balanced by the God Hates Fags activist, and where you have a dean obnoxious enough to expel either or both for misbehavior.

[SimonP]

Yes - even the quality of the student questions that were asked in a civil fashion weren't particularly well-developed.

But, to be fair, hearing the judge's responses - he wasn't intellectually equipped to respond with anything but stock lines about the role of the judiciary, himself. The exchanges that I could force myself to listen through tended to be just trading talking points.

[Dr. Ed 2]

Imagine if a second group of students had unfurled a banner (identical in size and font) which read: "Leviticus 18:22" and did so in an equally quiet manner.

(Leviticus 18:22 reads: "Thou shalt not lie with mankind, as with womankind: it is abomination.")

I have no doubt that would not have been tolerated -- and that's why I object to events of this type being considered "common ground." Had it *truly* been "common ground", the rule would have been either that NEITHER side could have banners or that BOTH sides could have banners -- not just that the preferred side could.

And with all due respect for Professor Carpenter, the fact that such underlying content neutrality (i.e. "equal grounds") wasn't insisted on shows just how f*cked up law schools are today.

Leviticus 18:22 is something that all observant Jews & Christians purport to believe in, with something similar in the Koran -- and yet I think everyone would agree that such a banner could not be peaceably displayed at any law school today.

QED it is a deception to purport that true free speech exists there.

[David Nieporent]

I have no doubt that would not have been tolerated

Why do you think that whether you have doubt regarding a topic about which you know nothing is interesting to anyone but yourself?

[Dr. Ed 2]

Hey Nimrod,

Water is wet and fire is hot.

I'm sure you can dispute both of those as well....

[Purple Martin]

Water is wet and fire is hot and this is indisputably one more item on the endless list of topics about which you compelled to demonstrate you know nothing.

[David Nieporent]

And with all due respect for Professor Carpenter, the fact that such underlying content neutrality (i.e. “equal grounds”) wasn’t insisted on shows just how f*cked up law schools are today.

Point to where in the post you get your facts about what was insisted on.

[Dr. Ed 2]

Res ipsa loquitur....

[Noscitur a sociis]

What res?

[Rev. O.T. Medal]

Orthodox Jews claim to be bound by the rules set forth in Leviticus. No one else, certainly not "all observant Jews & Christians," purports to follow the dictates of Leviticus.

It is just a bad-faith excuse for prejudice for anyone to invoke Leviticus 18:22 as a basis for discriminating against gays and lesbians unless they are also invoking Leviticus 18:20 ("thou shalt not lie carnally with thy neighbor's wife") as a basis for discriminating against adulterers.

Likewise, anyone condemning same-sex relationships as a sin under Leviticus 18:22, also ought to be inveighing against the sin of cross-breeding livestock under Leviticus 19:19 ("Thou shalt not let they cattle gender with a diverse kind").

PS. There is nothing in Prof. Carpenter's note suggesting that the display of a Leviticus 18:22 banner would have been prohibited. Had someone wanted to hang such a banner -- even if they were just a troll cherry-picking one line out of Leviticus -- they could and should have been able to do so.

[Dr. Ed 2]

I can’t speak for American Jews, many of whom are openly celebrating Hamas’ rape of hippies and murder of babies, but I can speak about my own faith. I am a Congregationalist — NOT UCC — and while we love the sinner, we hate the sin. We would NEVER celebrate a sodomite wedding….

PS: I think we doth know no law student would DARE hang a Leviticus 18:22 banner -- although I'd love to see someone hang a Leviticus 18:20 banner and see the dean (not knowing the difference) having to defend expelling kids for that...

[Rev. O.T. Medal]

Dr. Ed, rather than unpacking everything in your response, I will confine myself to a single point.

If you believe that same-sex sexual relationships and/or weddings are sinful. That is your choice. You can believe as you chose. But it is inconsistent to assert that your belief is required by Leviticus if you are not committing yourself to follow all the precepts of Leviticus. I am pretty sure that Congregationalists ignore most portions of Leviticus, including those requiring circumcision, prohibiting beard trimming and tattooing, and setting forth the laws for the treatment of leprosy.

[Dr. Ed 2]

I believe that the Lord enabled us to develop antibiotics such as dapsone, rifampicin, and clofazimine -- which are a far more effective treatment for Leprosy. Likewise, the Lord enabled us to develop thermostatically-controlled electric ovens (and meat thermometers) which enable us to safely eat pork.

But what right do you have to tell me what I believe?

[Randal]

I think he has every right to ridicule your beliefs. You have to admit they’re ripe for ridicule, being simultaneously occult and hateful.

[Rev. O.T. Medal]

I already said "You can believe as you chose." But once you are picking which parts of Leviticus you will or will not follow, you cannot justify anti-gay beliefs by citing to Leviticus 18:22.

[bernard11]

Hey Ed.

Check this out.

[David Nieporent]

PS: I think we doth know no law student would DARE hang a Leviticus 18:22 banner

Sigh. What law student? This post is about a discussion at Hamilton College. Hamilton College is not a law school. Hamilton College does not have a law school. Therefore, Hamilton College does not have law students.

[Dr. Ed 2]

Say I am wrong on *everything* and, like a broken clock, once and a while you will be right.

[Noscitur a sociis]

Hahaha! Yes, it’s just this one time that you’ve been wrong about something.

[The Margrave of Azilia]

"PS. There is nothing in Prof. Carpenter’s note suggesting that the display of a Leviticus 18:22 banner would have been prohibited."

So...that's what you're defending...the right of gay people to buy a Web site that most gay customers wouldn't want? What would be the purpose of enforcing such a valueless right?

[David Nieporent]

What on earth are you talking about? This is about a banner being displayed at a panel discussion, not a banner ad on a website.

[The Margrave of Azilia]

I guess I missed the point, I'm very sorry.

[Rev. Arthur L. Kirkland]

Orthodox Jews claim to be bound by the rules set forth in Leviticus.

Are all Orthodox Jews bigots with respect to gays? I did not know that. I hope it is not true.

[Ed Grinberg]

You're certainly entitled to your opinion, Arthur.
Here's an alternative appraisal:
From a Jewish prayer-book: “You gave life-giving laws to our ancestors.”
You stick with the sodomites, I'll stick with the Bible. Good luck.

[Rev. Arthur L. Kirkland]

Your god is a paltry, illusory thing and your Bible is childish fucking nonsense. They do nothing to improve your disgusting conservative bigotry.

[not guilty]

http://godhatesshrimp.com/

[y81]

Umm, many people, not all of them Christians even, condemn adultery.

[bernard11]

Umm, many people, not all of them Christians even, condemn adultery.

Many people say they do, but few act on this belief.

[The Margrave of Azilia]

Correct me if I'm wrong (as if I have to specify that here), but I thought this case protected *everyone* from being compelled to affirm their agreement with SSM ideology. Legally speaking *nobody* (with rare exceptions) can be compelled to speak in favor of a given ideology. They can't even be required to pledge allegiance to the flag of their country, much less to affirm and validate same-sex unions.

[Rev. Arthur L. Kirkland]

Superstition neither improves bigotry nor transforms it into anything other than bigotry.

A homophobe relying on the Bible is just another shit-rate bigot (and a suitable candidate for governor in several can't-keep-up, Republican states).

[hobie]

Even though gays need to drink, eat and use the restroom...there seems to be a quirky little trend trying to eliminate all three. JH Christ will probably return as a gay guy (the 'least' of us), so you bigots better be careful

[Dr. Ed 2]

There is no right to demand special food, drink, or restrooms -- being treated the same as everyone else is not being excluded.

[Randal]

Wait but Gay Jesus! What about Him? His name is… man, Jesus is already a really gay name when you think about it. Hard to gay it up any further. Ok His name is lispy Jesus.

https://youtu.be/YR7iEon9EOI?feature=shared

[Rev. Arthur L. Kirkland]

There is no right to demand special food, drink, or restrooms

What about superstition-based claims involving dietary restrictions or requirements?

[The Margrave of Azilia]

I thought prisons had to allow for such requirements?

[The Margrave of Azilia]

Not all prisons are private, and those that are tend to be intertwined so closely with the govt that their actions would probably be called "state action."

[SimonP]

Intellectually curious and thoughtful undergraduate students don't tend to go to law school, I've found.

[Ed Grinberg]

re: "My Rights Are Not A Debate"
You don't have a right to force me to bake you a cake. (Or at least you shouldn't.)

[Sam Bankman-Fried]

Remember when slaughtering innocent Muslims brought joy to your life?? Now to get a hard dick you need to pick on homosexuals…what a sad and pathetic existence.

[ReaderY]

Interesting to see a banner in support of 303 Creative at Hamilton.

[not guilty]

There is quite a difference between baking/selling a cake and designing a website. The latter involves pure speech, while the former involves primarily commercial conduct. Mixing ingredients, baking a cake, frosting a cake and offering a cake for sale to the public are not speech. Any message conveyed by those activities is merely incidental.

[Kazinski]

That's a ridiculous assertion that designing and executing custom wedding cakes is not an artistic creative endeavor. There are actually dozens of cake baking/cake decorating shows where people compete for the most skilful innovative designs.

A wedding cake can easily cost over $1000 and is often the center piece of the reception.

Now I will agree, there are cake mills like Costco, where you order online and your choices are limited, but there is a reason people don't go there for mos weddings: they want something more artistic, and unique.

My daughter was an assistant pastry chef, in fact the highlight of her career, before she changed careers, was designing and baking a birthday cake for Robin Williams when he was playing at the venue she worked.

[not guilty]

If and to the extent that baking and selling a cake conveys a message of some kind, that is merely incidental to the transaction. "When 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. . . . [W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." United States v. O'Brien, 391 U.S. 367, 376-77 (1968).

As SCOTUS recognized even in 303 Creative LLC v. Elenis, 600 U.S. 570, 143 S.Ct. 2298 (2023), governments in this country have a "compelling interest" in eliminating discrimination in places of public accommodation. Roberts v. United States Jaycees, 468 U.S. 609, 628 (1984). The public accommodations Act at issue in Roberts "reflects the State's strong historical commitment to eliminating discrimination and assuring its citizens equal access to publicly available goods and services. . . . That goal, which is unrelated to the suppression of expression, plainly serves compelling state interests of the highest order." 468 U.S. at 624.

Any claim that baking and selling a cake does not include significant "nonspeech" conduct doesn't pass the giggle test.

[The Margrave of Azilia]

The way to flunk the giggle test is to say that nude dancing is a protected form of free expression but making a cake to celebrate someone's relationship isn't free expression.

[Josh R]

Dancing is a traditionally protected artistic activity. similar to painting, music or writing.

[The Margrave of Azilia]

What's the earliest court decision you can find that says nude dancing is a traditionally protected artistic activity?

[Dr. Ed 2]

There is dancing and then there is stripping -- two different things.

[Josh R]

I didn't say nude dancing was protected artistic activity, but rather dancing was. The Court has wavered back and forth on regulations of nude dancing. Apparently, nude dancing is expressive activity (rather than speech) which can be regulated due to secondary effects. Eugene and Dale insist that cake baking is not expressive activity (as I quoted them below).

[The Margrave of Azilia]

The suggestion that nude dancing has *any* expressive value is of recent vintage - the practice has traditionally been considered subject to prohibition.

Expressive cake-baking hasn't to my knowledge generated a lot of precedents until lately, probably because it hasn't been regulated as much as nude dancing.

Yet making a cake for expressive purposes (with due respect to the two Conspirators you mentioned) seems to be at least as "First Amendmentish" as cavorting naked before drunk horny guys. The latter form of behavior has a longer history of regulation and, as the Supremes recognized, secondary effects - effects which I haven't seen from "straight" wedding cakes.

(If a wedding cake had no expressive purpose they wouldn't want to compel it, they want the baker to affirm their relationship.)

And all this is before we get to the religious freedom issue and the trans-ideological backlash against the Smith decision (a type of trans I can endorse). Scalia's wrong-headed decision provoked a powerful counterreaction from people who, thought maybe not always having Scalia's sophistication, nonetheless recognized constitutional violations when they saw them. So we have various RFRAs and RLUIPAs, and ultimately maybe Smith will be cast into history's dustbin (hopefully not history's recycling bin).

When that happens, what would be the compelling interest in making a baker recognize a relationship which the country as a whole didn't even recognize until recently? How could we say that less restrictive means of getting cake are unavailable, when you can just go to the next baker?

[Josh R]

Eugene also disagrees with you on Smith (I think he is right).

[The Margrave of Azilia]

Well, bless his heart, so he does.

He worries about a revival of substantive due process. To me, substantive due process is a problem because they used the wrong clause. The concept of economic rights as privileges or immunities of citizenship is more viable, and it was the *Slaughterhouse* minority, not the much-despised majority, which used P&I economic-freedom concepts. If “the enemy of my enemy is my friend,” then opponents of the Slaughterhouse decision should be sympathetic to the dissenters in that case.

(As for the economic rights of noncitizens, we have treaties and the law of nations for that.)

[not guilty]

"What’s the earliest court decision you can find that says nude dancing is a traditionally protected artistic activity?"

I don't know whether it is the earliest, but Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981), comes to mind.

[Kazinski]

Then let them get their cake at Costco.

[Joe_dallas]

not guilty 12 hours ago
Flag Comment Mute User
:"If and to the extent that baking and selling a cake conveys a message of some kind, that is merely incidental to the transaction."

Guilty - That statement is absolute BS. You in fact know it is BS

[not guilty]

Ipse dixit is not an argument.

[Josh R]

Are you calling Dale and Eugene's argument ridiculous? From their amicus brief in Masterpiece Cakeshop:

Cake-makers might indeed have a First Amendment right to decline to include such written or graphic messages on a cake. [...] [But], wedding cakes [cannot] be viewed as inherently expressive, or traditionally protected, simply by raising the level of generality and calling wedding-cake making “art.”

They go on to say that if wedding cake creation is inherently art, then so too are cooking/food preparation, table setting, clothing design, hairstyling and landscaping (all of which they say is absurd).

[not guilty]

When Ollie McClung served barbecue to his white customers in the dining room of his Birmingham restaurant while providing take-out service only to black customers, he was making a symbolic statement. Katzenbach v. McClung, 379 U.S. 294 (1964). That doesn't mean that the Civil Rights Act of 1964 is invalid on First Amendment grounds.

[The Margrave of Azilia]

This is like Godwin’s law, but with Jim Crow instead of Hitler.

A better analogy would be Ollie's BBQ refusing to cater a mixed-race wedding. Even then, there might be a more compelling interest in favor of the happy couple, since in reality interracial marriage has a longer history of legal recognition than SSM.

[not guilty]

The message conveyed at Ollie's Barbecue, as with Jim Crow laws and customs generally, was that Negroes (as they were then called) were inferior to whites.

[Randal]

How could the length of the history possibly matter here?

I think you just don't like gay weddings and it's biasing your thinking.

[Brett Bellmore]

The problem with such arguments from absurdity, is that you run into people who don't find the proposition absurd. All of those things certainly can be art.

[Josh R]

"Can be" art is far different than "inherently" art. But yes, I suppose some people will believe those things are inherently art. And others may want courts to judge on a case by case basis whether a particular provider is an artist. I suspect Eugene and Dale would find that judicial power objectionable.

[Noscitur a sociis]

I agree arguments from absurdity are unlikely to be very effective on you.

[Joe_dallas]

Josh - you are failing to notice the important distinction. the baker is refusing service to celebrate a specific action. He is not refusing service to the individual due to race, sex, or sexual orientation. Very important distinction.

[Josh R]

It could have been an important distinction as to whether Phillips broke Colorado law in the first place (but, the definitive interpretation of the law by Colorado courts held he nonetheless broke the law). That being said, your comment is not relevant to the First Amendment issue of whether he engaged in expressive activity or was compelled to speak against his will.

[Joe_dallas]

Colorado law bans discrimination based on race, sex and sexual orientation.

The baker is denying service for a specific type of service ie to celebrate a specific event due to his religious beliefs which would be a violation of 1A. The colorado statute violates 1A with respect to that specific act.

Again you are failing to note the important distinction. He is not refusing service because of their sex or sexual orientation.

[Randal]

If he provides cakes to weddings, but not gay weddings, then he's denying his services based on sexual orientation. This seems to be obvious to everyone but you.

"I'm willing to sell other things to gay people" isn't any more of a defense than "I have a gay friend" would be.

[The Margrave of Azilia]

We’ve recently seen a multi-part article in the Volokh Conspiracy about the expressive content of nude dancing.

So a baker isn't free to express himself through his cakes, but at least he can perform erotic dances while baking.

[Roger S]

Gay rights have come to mean Lgbtq+ folks imposing their perverted views on everyone else. All libertarians should be against gay rights.

[Sarcastr0]

Mandatory gay sex is the endgame, you figured it out.

[Roger S]

Even worse, they sexually mutilate our children.

[Dr. Ed 2]

I remember when they merely wanted to be left alone.

That was reasonable -- but look what it got us.....

[Krayt]

Apparently I am an unsafe operation?

[Armchair]

I've given some thought to this issue, with regards to cakes and so on.

The question we have is, when can an individual refuse to sell a product? Let's give some examples.

A. A black man goes up to a gun dealer.
1. Can the broker say "I don't sell to people like you"?
2. If the black man says first "I'm gonna shoot up some churches with this" can the broker then say "I don't sell to people like you"

B. A gay man goes up to an artist to buy one of their paintings.
1. Can the artist say "I don't sell to people like you".
2. If the gay man says "I'm going to buy this painting then destroy it right in front of you because I hate your work", can the artist then deny the sale?

C. A Black man goes up to a small t-shirt printing shop.
1. They attempt to order a set of shirts saying "Screw the pig police". The owner supports the police. Can they refuse the order?
2. What if instead the black man orders a set of shirts saying "Black lives matter." Can the owner reject that order as well, if he disagrees with the politics around it?

Please let us know your views on which of these examples are illegal discrimination, and which aren't.

[Dr. Ed 2]

" If the black man says first “I’m gonna shoot up some churches with this” can the broker then say “I don’t sell to people like you”

Forget can -- I think he is obligated to deny the sale -- and not just because of ATF regs but simple tort liability. Wouldn't the shot up church have a legitimate claim if the dealer *knowingly* sold a weapon for that purpose?

I'm thinking of the Borat movie where he wants a gun to go kill Jews and the dealer (even knowing it was a joke because of the cameraman standing there) almost denied the sale.

[Joe_dallas]

No - cant refuse to sell in
A1 & B1
due to race or sexual orientation

Yes can refuse to sell
A2
B2
c1
c2
He can refuse to sell due to behavior of the prospective buyer. Refusing to transact business due to behavior of buyer happens all the time.

[Armchair]

Indeed. But when is a "behavior" inherently linked to the characteristic of the protected class?

This seems to be the issue. Gay marriage is somehow inherently linked to homosexuality. So, one can't disagree with gay marriage (a behavior) without discriminating against homosexuals?

[Josh R]

One cannot refuse to serve a same-sex marriage without discriminating against gays. But, you could refuse to sell shirts that say, "Gay Pride" similarly to not selling "Black Lives Matter." The objections in those cases are to political messages, whereas in the marriage cases, the objection is to conduct that is inherently linked to being gay.

I am well aware that many folks, especially in this forum, don't like that doctrine. But, it's been broadly accepted in many states.

[Joe_dallas]

Again failing to notice the important distinction between refusing service because of sexual orientation vs refusing service to celebrate a specific action.

The first is a violation of anti discrimination laws the later being a violation of the 1A rights of the baker. You are intentional conflating to separate actions as if they are the same .

[Josh R]

I did not fail to notice the distinction. I noted that courts have rejected the distinction when the specific action is inherently linked to being gay.

[Joe_dallas]

The courts ignored the distinction so that they could ignore 1A.

[Josh R]

That doesn't make sense.

If courts accepted the distinction, Colorado law would not have been broken in the first place, and there would be no First Amendment issue. Thus, courts have tackled the First Amendment issue only because the distinction was rejected. In particular for 303 Creative, the website owner won her First Amendment case.

[Sarcastr0]

Cakes are not services, they are goods.

It can be a tricky line to draw between a good including artistic expression and it being off-the-shelf, but courts do that kind of fact-based analysis all the time.

[Joe_dallas]

Sarcastr0 22 mins ago
Flag Comment Mute User
Cakes are not services, they are goods.

Seriously - Sacastro - there were services & there was artistic talent. You could at least try to be honest - or is hiding your partisanship too difficult for you.

[Sarcastr0]

You mean 303 creative of Masterpiece Cakeshop? You OP doesn't distinguish.

But the facts do matter. You seem to get the underlying law, but prefer that troublesome facts slide out of your head.

[Armchair]

And I think that's the failure here. "Conduct that is inherently linked to a protected class" seems to have a single example: "gay marriage".

I find it hard to think of other examples of conduct that are inherently linked to a protected class, so the conduct can't be discriminated against.

[Josh R]

“A tax on wearing yarmulkes is a tax on Jews.”. Plus, it applies to a refusal to serve someone who has sex with a member of the same sex even though you would be happy to serve a celibate gay person.

[Armchair]

A tax is by definition a government action.

And there are many cases of discriminating against individuals who have sex with other individuals that have been upheld. Notably those regarding blood donation.

[Josh R]

The implication is a provider who refuses to serve people who wear yarmulkes, but will otherwise serve Jews and people who wear other types of skull caps, has discriminated against Jews.

Blood donation centers aren't places of public accommodation.

[Armchair]

1) You've changed from discrimination due to action people take to discrimination against a type of person, using a pretext.

2) Plasma donation centers are public accommodations (according to the 3rd and 10th circuit), and like blood donations centers, can and do discriminate against individuals who have gay sex.

[Josh R]

I commented on the pretext argument below.

Those circuit decisions held the donation centers were places of public accommodation as defined by the ADA (which doesn't prohibit discrimination against gays).

[Randal]

There aren't a lot of other examples because people really hate gays. But you can easily imagine some. Say there was a Black store owner who refused to sell alcohol to Black people as a sort of paternalistic gesture, i.e. he didn't approve of consumption of alcohol by Blacks.

That would be discrimination even though he would sell non-alcoholic beverages to Black people and even though he would decline to sell alcohol to white people if he knew that it was being purchased for consumption by Black people.

[Religion and Politics, my life]

Randal, Randal, in law school did you never hear that you all but destroy your credibilty when you retreat from the facts to a hypothetical !!
Even with your setup, we see 3 problems
1) do YOU get to define 'Black' so that if he is an octaroon you can move in on him
2) When you say 'people' of course you assume that no gays hate gays...that's just a hideous disregard of language 🙂
3) Your fictionalizatin of that person leaves out any attempt to define discrimination. Suppose he sold to minors beause he thought the law was wrong. OR worse, sold to mainly black youths because they need liquor more 🙂

[David Nieporent]

“A tax on wearing yarmulkes is a tax on Jews.”. Plus, it applies to a refusal to serve someone who has sex with a member of the same sex even though you would be happy to serve a celibate gay person.

You get an awful lot of mileage out of that quote, but I don't think it bears the weight you want to put upon it. The point of the assertion was that a tax on yarmulkes is obviously a pretext for a tax on Jews, not that opposition to any conduct that is associated with a protected class is opposition to that protected class. When Scalia wrote the statement you qote, he was contrasting it with abortion, saying that opposition to abortion is not targeting women, even though only women engaged in that conduct. (Of course back in the benighted era of the 1990s, people thought that only women could get pregnant.)

[Josh R]

You could interpret it the way Scalia did, but that's not how it was interpreted by the Court in CLS.

But even if you don't accept that quote, we are still left with people who will serve gays who don't have sex. If that is not discrimination against gays, then neither were laws that proscribed same-sex relations (while permitting opposite-sex ones). That conclusion strikes me as absurd.

[Religion and Politics, my life]

What lunacy !! and by what 'right' does a cake baker have to ask about your private sexual perversions. Even less what right does a potential customer have to volunteer such rot.

You remind me of people who defend Hitler against cefrtain atrocities on his own say-so by qouting him, as if to say "he may have been a pervert and a tyrant and a beast -- but, hey, he wasn't a liar !!!"

[Religion and Politics, my life]

David and your interlocutor, no need to make 'weight' claims. Get a history book. The Founders had a saying (probably 90% of the 118 usuaully considered Founders) that "The power to tax is the power to destroy". They would immediately see a budding tyrant inone or both of you.

[Religion and Politics, my life]

So how do you connect 'inherently' and 'seems'? Do we have an epistemology-ontology problem here? And of course if they gays are Jewish or Muslim , take yoiur pick , you might be disguising a hate crime as a 'gay thing" 🙂
People like you should not be storm troopers.

[BadLib]

It's interesting that Hila (and some others arguing against the outcome of 303 Creative) devotes significant bandwidth to the notion that the case is somehow suspect because there appears to have been a coordinated effort by more than one party to get the case before the Supreme Court.

Even if there was such a coordinated effort (which I don't doubt) that's a completely irrelevant factor and bringing it up to cast doubt on the case suggests that that one doesn't have much confidence in their substantive arguments.

The reality is that many, perhaps most, cases that come before the Supreme Court are the result of coordinated efforts. Would Roe have reached the Supreme Court if Roe could only use her own resources to get the case there? Unlikely. Did the ACLU's central role in Brown v. Board of Education mean that the case was suspect? Of course not.

[Religion and Politics, my life]

I just don't know why the mere claim of discrimination (and the attendant cost, stress, 'disgrace', and vile it brings upon the defendant) is not with some cost to the one bringing the claim.
Does Masterpiece Cake follow this guy to the grave. Is that justice in any sense.

[Randal]

Or he could stop discriminating.