Johnny Dangerous wrote: ↑
Sun Jul 01, 2018 2:22 am
You guys should read up some of the actual cases.
The couple cases i've looked at in the US were not so clear cut, they weren't gay couples coming in and saying "make us a gay cake with a big gay decoration" or anything like that. In one case I know of in Oregon, the people in question had been patrons for years, the cake they requested was not weird or out of place in the least, and the proprietors simply refused once they found out it was gay wedding, it had little to do with the cake. What is illegal is not providing services on the basis of sexual orientation
https://en.wikipedia.org/wiki/Masterpie ... Commission
Here's a wiki with one of the landmark cases, you can see clearly that the owner admittedly simply refuses to make cakes for gay weddings, though he said they could buy anything else in the store. That is pretty textbook discrimination - "Here, you can't have this thing I will provide to everyone else because of who you are", additionally, according to the wiki, the initial encounter did not even involve a discussion of cake decoration, etc.
I agree that a business should be able to refuse to provide services in the case of being asked to support things they do not (the Nazi example is apropos there), but in some of these cases that is not what happened at all. What happened was some gay people ordered a cake and got turned down solely on the basis of being gay, not on the basis of what they requested, and that is the important part
Now, cases where a business would be compelled to create a "gay cake" or "nazi cake" etc..of course, they should be able to refuse to create a product such as that, it would be interesting to know if some of the cases occupy this grey area.
Don't want to be pedantic, but Masterpiece was a relatively important decision and it is worth understanding what the opinion said.
The case was about compelled expression, and the majority punted on the decision in a somewhat spineless way. The cakeshop owner argued that his work was expressive conduct, and that he therefore could not be compelled to make a cake that supported something against his religious views (in this case, gay marriage). That argument would not be available to, say, a grocer, a hotel, or any other establishment that can't use the fig leaf of "expressive conduct" to describe their services. Unfortunately it does cover a vague and broad set of services (hairdressers? cooks? musicians?) and the case did not really resolve the boundaries of what expressive conduct is for this purpose.
Where SCOTUS punted is that they overturned the decision of the tribunal on the grounds that it showed animus. A member of the tribunal had made public comments about how religion has been an excuse to persecute minorities for centuries etc etc., and the majority held that the baker hadn't received fair treatment in the process.
This is, in my opinion, a bad opinion for at least three reasons.
1. The statements by the tribunal member about organized religion were objectively correct.
2. Even if the tribunal member had animus, that doesn't invalidate the tribunal's decision. Judges have personal animus all the time - e.g., Justice Scalia - that does not require recusal.
3. The majority decided that comments outside the tribunal process were reasonable grounds to infer animus in this case - then a few weeks later, almost exactly the same members of the majority decided that Trump's statements about immigrants were not material when deciding the "muslim ban" injunction. I know, different standards apply, but still, it looks terrible
However the reason they achieved a majority here, and got Kennedy not just to join but to author the opinion, is that they framed the decision in terms of the procedure by which the case against the baker was adjudicated. Had they gone for a blanket opinion carving any expressive conduct out from anti-discrimination law, I doubt they would have had a majority.