Understanding through Discussion


Welcome! You are not logged in. [ Login ]
EvC Forum active members: 89 (8876 total)
Current session began: 
Page Loaded: 12-09-2018 10:54 PM
191 online now:
AZPaul3, Dr Adequate, DrJones* (3 members, 188 visitors)
Chatting now:  Chat room empty
Newest Member: Bill Holbert
Post Volume:
Total: 843,729 Year: 18,552/29,783 Month: 497/2,043 Week: 49/386 Day: 49/28 Hour: 1/1


Thread  Details

Email This Thread
Newer Topic | Older Topic
  
RewPrev1
...
6768
69
7071
...
91NextFF
Author Topic:   Gay Marriage as an attack on Christianity
Rrhain
Member
Posts: 6349
From: San Diego, CA, USA
Joined: 05-03-2003


Message 1021 of 1358 (824977)
12-05-2017 8:53 PM
Reply to: Message 1020 by NoNukes
12-05-2017 10:53 AM


Re: Even Stupid Cases Make it to the Supreme Court
NoNukes writes:

quote:
It is discrimination, pure and simple, and Mr. Phillips, in a just world, would lose the case. My guess is that he will lose a very close vote. However, it is a vote that could and like would go another way if Kennedy or one of the very old Justices (like Ginsburg) retires during a Trump presidency.

Indeed, because this question has been before the Supreme Court twice and both times was slapped down: There is no religious exemption to anti-discrimination statutes.

There was a BBQ place, Piggie Park, that claimed a religious exemption to the Civil Rights Act. They didn't want to serve black people. The Court dismissed the case as "patently frivolous” in an 8-0 ruling:

Indeed, this is not even a borderline case, for the respondents interposed defenses so patently frivolous that a denial of counsel fees to the petitioners would be manifestly inequitable. Thus, for example, the “fact that the defendants had discriminated both at [the] drive-ins and at [the sandwich shop] was . . . denied . . . [although] the defendants could not and did not undertake at the trial to support their denials. Includable in the same category are defendants’ contention, twice pleaded after the decision in Katzenbach v. McClung, 379 U. S. 294, . . . that the Act was unconstitutional on the very grounds foreclosed by McClung, and defendants’ contention that the Act was invalid because it ‘contravenes the will of God’ and constitutes an interference with the ‘free exercise of the Defendant’s religion.'”

And indeed, Bob Jones University tried to claim a religious exemption to civil rights legislation by denying interracial couples which the Supreme Court slapped down 8-1.

That this is even close shows just how corrupt Republicans have become.

One possible outcome depends upon just how prickly Kennedy decides to be. He (and a few others) were very upset that a member of the Colorado civil rights commission made the following comment:

And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others

The baker's case included a claim that this somehow indicated that there was anti-Christian bias on the part of the commission...and Kennedy was kinda buying it.

But this is precisely the right position: The Supreme Court has already resoundly denounced the idea that religious beliefs can trump the civil rights of others as has been pointed out. So from a strictly constitutional-law basis, it is "despicable" that someone would try to come before the courts to claim that they have the right to a religious exemption to anti-discrimination regulations...a demonstrable harm to others.

But, Kennedy is all about "dignity" and he's getting the vapors that somebody might actually be offended at being called out for violations of the law.

And thus, what this means is that he might send it back to the lower courts to be re-adjudicated.

And thus, we'll have yet another five years of limbo instead of them just doing the right thing right now and stop delaying justice. Of course, from the Supreme Court's point of view, this is a good thing because if the opinion of the country regarding gay people being seen as actual persons deserving of equal treatment under the law and full protections of the Fourteenth Amendment becomes stronger, then their decision to actually do that won't be so "controversial."

And even worse, he might pull a Hobby Lobby and rule against gay people and attempt to bullshit his way out of the clear implications by saying that this ruling "doesn't apply to race"...despite the fact that the very regulation the baker is fighting specifically equates race and sexual orientation (and sex and....) Because that is the point: Can we regulate behaviour in order to prevent discrimination? The Court has regularly said yes. So if we carve out a religious exemption with regard to sexual orientation, why not any of the other categories? What is the difference? If you can allow discrimination against gay people based upon a religious veto, why not discrimination against blacks? Or Jews? Or Christians?

Because the Court can simply say, "Because." That the Fourteenth Amendment doesn't apply to gay people.

One of the most ridiculous things that happened was the exchanges regarding other types of businesses...what about makeup artists? The baker's argument was that they weren't artists. "But it has 'artist' right in the name."

The correct decision is, indeed, clear: 9-0, there is no religious exemption to anti-discrimination statutes.

If we are lucky, it will be 5-4.

And justice will die just a little bit because of that.


Rrhain

Thank you for your submission to Science. Your paper was reviewed by a jury of seventh graders so that they could look for balance and to allow them to make up their own minds. We are sorry to say that they found your paper "bogus," specifically describing the section on the laboratory work "boring." We regret that we will be unable to publish your work at this time.

Minds are like parachutes. Just because you've lost yours doesn't mean you can use mine.

This message is a reply to:
 Message 1020 by NoNukes, posted 12-05-2017 10:53 AM NoNukes has acknowledged this reply

Replies to this message:
 Message 1024 by dwise1, posted 12-06-2017 1:56 AM Rrhain has not yet responded

    
Rrhain
Member
Posts: 6349
From: San Diego, CA, USA
Joined: 05-03-2003


(1)
Message 1022 of 1358 (824978)
12-05-2017 9:11 PM


And on top of that...
The Supreme Court refused to take up the Texas case that ruled that while Texas cannot stop gay people from getting married, they don't have to provide any of the benefits of marriage to them.

This now means that the case will be tried in Texas (this was essentially a procedural point at the current time), but it does show that the Court, once again, doesn't have the courage of its convictions. Despite the fact the Obergefell decision expressly states that gay couples cannot be denied any of the benefits of marriage, they decided to punt so that we now have to go through years of trial and delayed justice just so that the case can wind up right back at the Supreme Court and we have to wonder what the fuck is wrong with the conservative members of the Court such that they can rule that the Fourteenth Amendment doesn't apply to gay people.

And in the meantime...Kennedy will step down and if Trump is still in the White House, think of who he will appoint.

So for all of you who thought that Clinton wasn't "good enough," a hearty "FUCK YOU." Would we be in this position if Gorsich were not on the Court?


Rrhain

Thank you for your submission to Science. Your paper was reviewed by a jury of seventh graders so that they could look for balance and to allow them to make up their own minds. We are sorry to say that they found your paper "bogus," specifically describing the section on the laboratory work "boring." We regret that we will be unable to publish your work at this time.

Minds are like parachutes. Just because you've lost yours doesn't mean you can use mine.

Replies to this message:
 Message 1023 by NoNukes, posted 12-06-2017 12:47 AM Rrhain has not yet responded

    
NoNukes
Inactive Member


Message 1023 of 1358 (824982)
12-06-2017 12:47 AM
Reply to: Message 1022 by Rrhain
12-05-2017 9:11 PM


Re: And on top of that...
So for all of you who thought that Clinton wasn't "good enough," a hearty "FUCK YOU." Would we be in this position if Gorsich were not on the Court?

I hear you brother. I'm backing off a little on this point, not because of anything to do with the cases you name, but because most of the folks who decided that Hillary was not good enough, had plenty of cover. RAZD, for example, doesn't even live in a state that could have made a difference.


Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)

I was thinking as long as I have my hands up … they’re not going to shoot me. This is what I’m thinking — they’re not going to shoot me. Wow, was I wrong. -- Charles Kinsey

We got a thousand points of light for the homeless man. We've got a kinder, gentler, machine gun hand. Neil Young, Rockin' in the Free World.

Worrying about the "browning of America" is not racism. -- Faith

I hate you all, you hate me -- Faith


This message is a reply to:
 Message 1022 by Rrhain, posted 12-05-2017 9:11 PM Rrhain has not yet responded

  
dwise1
Member
Posts: 3207
Joined: 05-02-2006
Member Rating: 4.0


Message 1024 of 1358 (824985)
12-06-2017 1:56 AM
Reply to: Message 1021 by Rrhain
12-05-2017 8:53 PM


Re: Even Stupid Cases Make it to the Supreme Court
In the late 1980's, Christianity Today had an article about the Christian Reconstructionists, who have since evolved into Dominionists. It included some quotes from their writings, including that human rights were invented by Satan.

One such quote, which I have to quote from memory until I can locate that article, reveals one of their current-day tactics:

quote:

We must press for and insist upon our own religious rights in order to deprive everybody else of theirs.


This message is a reply to:
 Message 1021 by Rrhain, posted 12-05-2017 8:53 PM Rrhain has not yet responded

    
Chiroptera
Member
Posts: 6531
From: Oklahoma
Joined: 09-28-2003
Member Rating: 3.6


Message 1025 of 1358 (834391)
06-04-2018 7:53 PM
Reply to: Message 1019 by Percy
12-05-2017 10:43 AM


Decision on Masterpiece Cakeshop is in
The US Supreme Court has announced its decision in Masterpiece Cakeshop v Colorado Civil Rights Commission today. In a 7-2 decision, the Supreme Court has agreed that the "state commission had violated the Constitution’s protection of religious freedom in ruling against the baker, Jack Phillips, who had refused to create a custom wedding cake for a gay couple."

Caveat: I have not read the entire decision, nor the the concurring opinions, nor the dissenting opinions.

I have read the syllabus (the introduction that summarizes the decision), and here are the points that I seem to read in it:

(1) The state does have the authority to protect its citizens against discrimination based on sexual orientation, and that religious beliefs are not sufficient to justify violating such laws.

(2) However, in this case, according to the majority, designing a wedding cake is artistically expressive enough that the rights to free expression and free exercise of religion entitled the plaintiff to "to a neutral and respectful consideration of his claims in all the circumstances of the case. "

(3) However, the Commission showed "elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection," which, if I'm reading into this correctly, indicates the decision was based on an impermissible hostility to the plaintiff's religious beliefs and not on the permissible secular purposes of prohibiting discrimination.

I will point out that normally left-leaning justices Breyer and Kagan also joined the decision, and a quick glance at their concurring opinion seems to emphasis this hostility part.



Progress is not an illusion, it happens, but it is slow and invariably disappointing. - George Orwell

This message is a reply to:
 Message 1019 by Percy, posted 12-05-2017 10:43 AM Percy has acknowledged this reply

Replies to this message:
 Message 1026 by NoNukes, posted 06-05-2018 12:12 AM Chiroptera has acknowledged this reply
 Message 1027 by Tangle, posted 06-05-2018 2:27 AM Chiroptera has responded
 Message 1031 by Modulous, posted 06-05-2018 3:52 PM Chiroptera has responded

  
NoNukes
Inactive Member


Message 1026 of 1358 (834397)
06-05-2018 12:12 AM
Reply to: Message 1025 by Chiroptera
06-04-2018 7:53 PM


Re: Decision on Masterpiece Cakeshop is in
I will point out that normally left-leaning justices Breyer and Kagan also joined the decision, and a quick glance at their concurring opinion seems to emphasis this hostility part.

Yes. The hostility part is quite important. It does matter substantially how the trier of fact and the legislature act when either trying cases or passing laws. The court essentially punted this case and are putting off deciding things until there is a cleaner case. I don't know what cases are currently in the pipeline.

And, oh look. Clarence Thomas finally found a second case of discrimination. He agrees that cross burning on the lawn of a black family probably is discrimination, and now that gay marriage is the law of the land, he has managed to find that protesting against it is a minority view worthy of "cross burning" level protection.

Edited by NoNukes, : No reason given.


Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)

"Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!”

We got a thousand points of light for the homeless man. We've got a kinder, gentler, machine gun hand. Neil Young, Rockin' in the Free World.

Worrying about the "browning of America" is not racism. -- Faith

I hate you all, you hate me -- Faith

No it is based on math I studied in sixth grade, just plain old addition, substraction and multiplication. -- ICANT


This message is a reply to:
 Message 1025 by Chiroptera, posted 06-04-2018 7:53 PM Chiroptera has acknowledged this reply

  
Tangle
Member
Posts: 6341
From: UK
Joined: 10-07-2011
Member Rating: 2.4


Message 1027 of 1358 (834401)
06-05-2018 2:27 AM
Reply to: Message 1025 by Chiroptera
06-04-2018 7:53 PM


Re: Decision on Masterpiece Cakeshop is in
When I first read this I thought it fair enough that if the cake buyer was behaving in a prejudiced way himself then maybe it should cancel out the wrong.

But then I thought that two wrongs then *do* make a right.

If it's wrong to descriminate in your cake making, then it's wrong, regardless of the actions of the other party. At best, there might be mitigation because of it.

The way to right the wrong of the hostility and discrimination allegedly shown by the cake buyer is to prosecute him for it also.


Je suis Charlie. Je suis Ahmed. Je suis Juif. Je suis Parisien. I am Mancunian. I am Brum. I am London.I am Finland. Soy Barcelona

"Life, don't talk to me about life" - Marvin the Paranoid Android

"Science adjusts it's views based on what's observed.
Faith is the denial of observation so that Belief can be preserved."
- Tim Minchin, in his beat poem, Storm.


This message is a reply to:
 Message 1025 by Chiroptera, posted 06-04-2018 7:53 PM Chiroptera has responded

Replies to this message:
 Message 1028 by Chiroptera, posted 06-05-2018 9:49 AM Tangle has not yet responded

  
Chiroptera
Member
Posts: 6531
From: Oklahoma
Joined: 09-28-2003
Member Rating: 3.6


(2)
Message 1028 of 1358 (834404)
06-05-2018 9:49 AM
Reply to: Message 1027 by Tangle
06-05-2018 2:27 AM


Re: Decision on Masterpiece Cakeshop is in
Sorry if my summary of the court's summary wasn't clear. The point isn't that the cake buyers expressed hostility toward the cake maker's religious beliefs. The alleged hostility was on the part of the commissioners that were adjudicating the hearing.

The Supreme Court has ruled that Phillips (the baker) was entitled to a fair and impartial hearing. However, comments made by the members of the Colorado Civil Rights Commission during the hearing itself, indicated a possible hostility to religious beliefs and to Phillips' particular religious beliefs during the hearing itself.

In the US, the First Amendment prohibits the government and its agents from using hostility toward religion or to particular religious beliefs as a reason for its actions.

The Court made clear that there are legitimate reasons to prohibit discrimination based on sexual orientation, and there are legitimate reasons to extend this protection even over the religious objections of those who would deny these protections, but that in this particular case, statements made by the officials adjudicating the case during the hearing tainted the process in this particular case.

Added by edit:

I forgot to mention: in regard to a proceeding or enactment of a law being tainted by hostility to a religious belief, I think it is very significant that the Court explicitly cited Church of Lukumi Babalu Aye in its decision here.

I'm also getting the impression that the more "liberal leaning" justices are going out of their way to demonstrate that, despite the howls of outrage in some religious and conservative circles, expressing the belief or opinion that same sex marriage is wrong is always going to be a protected right.

Edited by Chiroptera, : No reason given.



Progress is not an illusion, it happens, but it is slow and invariably disappointing. - George Orwell

This message is a reply to:
 Message 1027 by Tangle, posted 06-05-2018 2:27 AM Tangle has not yet responded

Replies to this message:
 Message 1029 by NoNukes, posted 06-05-2018 12:43 PM Chiroptera has acknowledged this reply

  
NoNukes
Inactive Member


Message 1029 of 1358 (834407)
06-05-2018 12:43 PM
Reply to: Message 1028 by Chiroptera
06-05-2018 9:49 AM


Re: Decision on Masterpiece Cakeshop is in
After reading over the posts in this thread, it looks like Rhain predicted the outcome. He pointed to this statement as a sticking point:

quote:
And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)

"Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!”

We got a thousand points of light for the homeless man. We've got a kinder, gentler, machine gun hand. Neil Young, Rockin' in the Free World.

Worrying about the "browning of America" is not racism. -- Faith

I hate you all, you hate me -- Faith

No it is based on math I studied in sixth grade, just plain old addition, substraction and multiplication. -- ICANT


This message is a reply to:
 Message 1028 by Chiroptera, posted 06-05-2018 9:49 AM Chiroptera has acknowledged this reply

  
Chiroptera
Member
Posts: 6531
From: Oklahoma
Joined: 09-28-2003
Member Rating: 3.6


Message 1030 of 1358 (834409)
06-05-2018 1:19 PM


Masterpiece Cakeshop: Main Opinion
Okay, I've finally read the main opinion of Masterpiece Cakeshop v Colorado Civil Rights Commission. I think my initial reading is correct.

The main opinion was written by Justice Kennedy and joined by Chief Justice Roberts and Justices Breyer, Alito, Kagan, and Gorsuch.

First, the Court absolutely did not rule whether or not requiring Phillips (the owner of Masterpiece Cakes) to obey Colorado's anti-discrimination statute was a violation of his First Amendment rights of free expression and free exercise of religion. That is left as an open question for a future court case.

What the the Court actually ruled was that expressions made by the officials adjudicating the case in the official hearing showed hostility to Phillips' beliefs, and so violated Phillips' First Amendment rights because the hearing itself may have been hostile to and biased against his religious beliefs.

-

The decision made it very clear that the federal government and the states have the authority to protect its citizens against discrimination based on sexual orientation, and in some cases even have an obligation to protect them.

The Court cited Oregon Dept. of Human Resources v Smith to indicate that a business owner's religious objections are not sufficient to violate "valid and neutral law of general applicability."

However, there are certain facts about this particular case that needed to be addressed.

-

First, at the time, Colorado did not recognize same sex marriage, and the US Supreme Court had not made its rulings in US v Windsor or Obergefell v Hodges -- Craig and Mullins, the couple trying to purchase the wedding cake, intended to marry in Massachusetts and then hold the reception in Colorado -- so the Court pointed out that Phillips had a reason to believe that his refusal would not violate the anti-discrimination law. This was a question that needed to be addressed.

Second, Phillips claimed that being required to design a cake for a same sex wedding would be a violation of his right to free expression as an artist and a violation of his free exercise of religion as a conservative Christian who did not recognize same sex marriages.

In fact, Phillips claimed that he was willing so sell the couple any of his other products, stating that this shows that his objections were based on his First Amendment rights as an artist and a Christian, not as a business owner who doesn't want to do business with a particular group of people.

The Court affirmed that this was a point that would need to be addressed.

-

All in all, the Court says that these are important questions that need to be addressed in a fair and impartial process that respects the religious beliefs of the parties. However, this is what did not happen.

Over the course of two hearings, two of the Commissioners adjudicating the case made comments that could be interpreted as indicating hostility to Phillips' particular religious beliefs and to religious beliefs in general, and none of the other Commissioners objected to those comments.

One comment indicated that one of the Commissioner felt that business owners shouldn't bring their religious beliefs into the public to begin with.

Another Commissioner made a comment that could be interpreted to disrespect religion in general and to question the sincerity of people who use religion to justify their bigotry.

In any case, the Court cited Church of Lukumi Babalu Aye v City of Hialeah to indicate that these comments during the hearings were unacceptable. There may be perfectly legitimate secular reasons to force Phillips to comply with the anti-discrimination laws despite his religious objections, but the comments made by these Commissioners showed that there was the possibility that the decision was made because of a bias against a particular religious belief.

It didn't help that at the time this case was going through the process, several bakeries refused to make cakes with anti-gay messages on them, and the Civil Rights Commission upheld their refusals. The Court points out that there may be valid differences between these situations that justifies the different decision, but these differences were not adequately explained. In fact, an appeals court simply talked about one set of messages being offensive to the bakers, but the Court pointed out that it is not the business of the government or its agents to make determinations based on what it feels is offensive.

-

Personal opinion (based on not yet having read the concurring opinions or the dissent):

Perdiction #1: I think the Court made it clear that under most circumstances, it will rule that a business owner's religious beliefs cannot be used as a defense of violating a state's anti-discrimination law.

Prediction #2: I'm less certain about this, but I suspect that a state may require a business to cater to a same sex wedding. For example, if a caterer offers a pre-printed menu from which a customer selects appetizers, entrees, desserts, and so forth, then catering to a same sex wedding cannot be construed as an expression of endorsement by the business and may be compelled to comply with the law.

Prediction #3: I'm not very certain about this part, but there's something about how the decision was made that in some cases, like a baker who designs from scratch a wedding cake for each event, or a florist who designs a flower arrangement from scratch for each event, the Court may rule that the artist has a First Amendment right to refuse to cater to a same sex wedding. But this is more of a vague feeling.

Edited by Chiroptera, : Kennedy wrote the opinion, not merely "joined" it.



Progress is not an illusion, it happens, but it is slow and invariably disappointing. - George Orwell

  
Modulous
Member (Idle past 78 days)
Posts: 7789
From: Manchester, UK
Joined: 05-01-2005


Message 1031 of 1358 (834414)
06-05-2018 3:52 PM
Reply to: Message 1025 by Chiroptera
06-04-2018 7:53 PM


Re: Decision on Masterpiece Cakeshop is in
I read through the decision, and I agree. Masterpiece Cakeshop acted with a sense of decorum and were as polite as respectful as could be given the situation (ie., one could argue their actions were intrinsically impolite, but given this they did it in a polite fashion). Compare and contrast with Sweet Cakes by Melissa's method for approaching the issue.

I think it was probably right that they lost their original case, but I agree the perception of an unfair hearing based on the comments made by the Commissioners would leave a burning sense that an injustice was done and this should be rectified.

I am curious now as to what will happen for them? IIRC they received basically a slap on the wrist, the requirement for training their staff and reports to officials to demonstrate their compliance for a certain period. That has all been done - how can it be corrected now - or is vindication by SCOTUS considered sufficient? Will the Commisioners in question face any consequences?


This message is a reply to:
 Message 1025 by Chiroptera, posted 06-04-2018 7:53 PM Chiroptera has responded

Replies to this message:
 Message 1033 by Chiroptera, posted 06-05-2018 5:54 PM Modulous has acknowledged this reply

  
Chiroptera
Member
Posts: 6531
From: Oklahoma
Joined: 09-28-2003
Member Rating: 3.6


Message 1032 of 1358 (834416)
06-05-2018 5:51 PM


Masterpiece Cakeshop: Kagan and Breyer
I've now read Justice Kagan's concurring opinion, to which Justice Breyer joined.

Most of this opinion repeats the main points of the main opinion.

Kagan and Breyer explicitly point out that the "ministerial exception", that, for example, a minister cannot be made to officate a same sex wedding against their religious beliefs, is not in danger.

What Kagan and Breyer do is explain a little bit more about the different treatment of the various bakers and in what way this different treatment indicates a possible hostility to religious beliefs.

While Phillips' case was being adjudicated, several people went to bakeries and tried to order cakes with anti-gay messages. The bakeries refused those orders and the Colorado Civil Rights Commission supported the bakeries' refusal. But Kennedy's opinion pointed out that the difference between these two cases was never adequately explained.

Kagan and Breyer sharpens the point here. They point out that there is an obvious difference between the wedding cake for a same sex marriage and the cakes with anti-gay messages: Colorado law explicitly forbids discrimination based on sexual orientation while there is no law that requires bakeries to put any message on any cake that a potential customer asks for.

But this difference was never stated during the hearing before the Commission nor during the appeals process. In fact, one appeals court stated the difference was that the bakers' were justifiably opposed to the anti-gay messages since they found the messages offensive. But allowing the bakers to find anti-gay messages as offensive but not a cake made for a same sex wedding, the appeals court is possibly betraying a hostility to certain beliefs but not others, something that is not allowed as a legal argument.

-

Personal opinion:

In elaborating this point, Kagan and Breyer write a lengthy footnote contrasting their opinion with that of Justice Gorsuch. I haven't yet read Gorsuch's concurring opinion, but I find it interesting that Kagan and Breyer take pains to elaborate that "wedding cake" is simply a product and doesn't become a message or an expression depending on to whom it is intended.

I'm pretty certain that the Court is signaling to the lower courts that they had better not accept religious objections as an excuse to violate state anti-discrimination laws. I also get the impression here that Kagan and Breyer is warning lower courts that they won't accept objection to same sex marriage as a legitimate excuse to refuse to cater to same sex couples in defiance of state anti-discrimination laws.



Progress is not an illusion, it happens, but it is slow and invariably disappointing. - George Orwell

  
Chiroptera
Member
Posts: 6531
From: Oklahoma
Joined: 09-28-2003
Member Rating: 3.6


Message 1033 of 1358 (834417)
06-05-2018 5:54 PM
Reply to: Message 1031 by Modulous
06-05-2018 3:52 PM


Re: Decision on Masterpiece Cakeshop is in
I agree that the point is probably vindication by the SCOTUS.

Another benefit is that if the law increases penalties for repeated violations of the law, then the first strike has now been erased.

Also, not entirely relevant to Phillips himself, but for future cases this decision gives lower courts direction as to a specific example where an appeal is justified, and even a reason to stay a judgment while the appeal is being heard.



Progress is not an illusion, it happens, but it is slow and invariably disappointing. - George Orwell

This message is a reply to:
 Message 1031 by Modulous, posted 06-05-2018 3:52 PM Modulous has acknowledged this reply

  
Chiroptera
Member
Posts: 6531
From: Oklahoma
Joined: 09-28-2003
Member Rating: 3.6


Message 1034 of 1358 (834430)
06-05-2018 9:16 PM


Masterpiece Cakeshop: Gorsuch and Alito
This is a summary of the concurring opinion written by Justice Gorsuch and to which Justice Alito joins.

I'll have to admit that I don't fully understand Gorsuch's arguments; he seems to make a lot of unnecessary and irrelevant distinctions and comparisons but I think I get the basic gist. I haven't yet read Justice Thomas' opinion, to which Gorsuch joins; it could be that some things will be clearer when I do read it.

The first paragraph is rather interesting. Gorsuch and Alito recognizes that Kennedy's main opinion correctly interprets Smith, but then they say, "Smith remains controversial in many quarters."

I find it interesting that they do not unequivocally endorse the majority's acceptance of Smith. Yet, Gorsuch and Alito do join Kennedy in the main opinion, so I'm not entirely sure what, if any, implications there are here.

Gorsuch and Alito agree with Kagan and Breyer that hostility toward Phillips' religious beliefs is evident in the different outcomes between Phillips refusal to bake the cake for Craig and Mullins' wedding reception and the other bakers' refusal to bake the anti-gay cakes for William Jack. But Kagan and Breyer think that the problem is that the Commission and the courts did not draw the correct distinction between the two cases; Gorsuch and Alitio feel that there is no significant distinction between the two cases.

Gorsuch points out that Colorado's anti-discrimination statute also prohibits discrimination based on a person's religious beliefs. And that the three bakeries' refusal to bake cakes with Jack's messages against same sex marriage is as much an example of discrimination against Jack's religious beliefs as Phillips' refusal to bake the cake for Craig and Mullins' is an example of discrimination against Craig and Mullins' sexual orientation.

Unlike Kagan and Breyer, Gorsuch and Alitio claim that a wedding cake is more than just a wedding because of the marriage it celebrates, so Jack's cakes are more than just cakes with writing on them because of the writing on them.

As I said, much of this opinion is confusing to me, but I think Gorsuch is trying to list various criteria of distinguish between the two cases to show that they all lead to absurdities.

In the end, Gorsuch and Alitio agree that the decision against Phillips is based on hostitily to his beliefs and therefore are a violation of his First Amendment rights.

-

My personal opinion:

As I said, I found the first paragraph interesting. It seems to me that Gorsuch and Alito are leaving themselves an "out" so that in the future they won't be committed to denying a religious person the right to obey a law they find offensive.

I also agree more with Kagan and Breyer: there is a distinction to be made between the two cases, although it remains to be seen whether the distinction is legally relevant. But I think the issue is clear: if and when a case comes before this court where a person violates an anti-discrimination statute by refusing service to a same sex wedding, Kagan and Breyer will probably agree that the First Amendment does not protect the person; Gorsuch and Alito will probably agree that the First Amendment does protect the person.

It's interesting that Chief Justice Roberts didn't join Gorsuch and Alitio in this opinion. Could be he disagrees with them. Could be he's undecided on this part of the issue. But it's also possible that he doesn't want to tip his hand quite yet until a more relevant case comes before the Court.



Progress is not an illusion, it happens, but it is slow and invariably disappointing. - George Orwell

  
Chiroptera
Member
Posts: 6531
From: Oklahoma
Joined: 09-28-2003
Member Rating: 3.6


Message 1035 of 1358 (834435)
06-05-2018 11:54 PM


Masterpiece Cakeshop: Thomas and Gorsuch
A summary of the opinion of Justice Thomas, with Justice Gorsuch joining.

Six of the justices of the Supreme Court have ruled to reverse the judgment of the Colorado Court of Appeals due to evidence that the decision of the Colorado Civil Rights Commission was base in part on hostility to Phillips' religious beliefs. Four of these justices are using this as an excuse to avoid ruling on the merits original case.

Well, Justice Thomas is having none of that. He has an opinion on whether Colorado's anti-discrimination laws violate Phillips' First Amendment rights, and he's damn well going to give it!

To Thomas, the essential fact here is that Phillips creates custom designed cakes for weddings. The logos used in Phillips' bakery indicate that Phillips sees himself as an artist; he designs the cakes first by sketching the designs on paper; he sits with the wedding party to discuss their wedding to get ideas how to design their cake. All indications is that Phillips designs cakes that are unique to the individual couple and their wedding.

Thomas then cites previous cases to show that the type of artistic expression exhibited by Phillips has not been considered a "public accommodation", and that compelling him to use his artistic abilities for a cause that he does not believe in would be a violation of his right to free expression.

Thomas then repeats that past cases show that expression of ideas (or, in this case, the refusal to express ideas) cannot be banned just because some person or group finds the them offensive.

Finally, Thomas repeats his warnings that he gave in his dissent to Obergefell, namely, that Obergefell would be used to squash dissent against same sex marriage -- a strange warning to make considering this case came well before Obergefell was decided, and, in any case, it seems a bit extreme to think that requiring a bakery that bakes wedding cakes to bake a cake and put two little dudes on top of it is the same thing as "squashing dissent".

-

My personal opinion:

I already mentioned that, if argued on the merits of the actual merits of the case itself, if Masterpiece Cakeshop actual designs unique cakes for each particular wedding, then Phillips' refusal to bake a cake for a same sex wedding might be protected on First Amendment grounds.

However, in this particular case, Thomas' opinion is kind of irrelevant since the majority has decided to punt this decision due to a technical violation.



Progress is not an illusion, it happens, but it is slow and invariably disappointing. - George Orwell

Replies to this message:
 Message 1036 by NoNukes, posted 06-06-2018 12:46 PM Chiroptera has acknowledged this reply

  
RewPrev1
...
6768
69
7071
...
91NextFF
Newer Topic | Older Topic
Jump to:


Copyright 2001-2015 by EvC Forum, All Rights Reserved

™ Version 4.0 Beta
Innovative software from Qwixotic © 2018