BQ 81245 Religious Rights of Business Owners

[Shrinky Dink]

The line of reasoning in re gross sales per year makes no sense to me. Either behavior is constitutional, or it's not.

Just because something is constitutional, doesn't mean it's right. Also, there are constitutional rights that are guaranteed to individuals that aren't guaranteed to businesses (and vise versa). But there are some businesses that I think are more like individuals. I'm just drawing an arbitrary line and perhaps using gross sales, profit, or other monetary markers isn't the way to do that. I don't know. I'm not perfect, nor am I a politician. I'm just drawing a line of where I think a business transforms from an individual and into a business.

[Portia]

Corporations are people, my friend.

[Shrinky Dink]

I don't care what the govt thinks about that. Corporations are not people.

[vorpal blade]

In my opinion just because we believe something is not moral doesn't give us a Constitutional right to pass a law trying to enforce one's sense of morality. Laws should not be based on perceived animus, or what a person believes or thinks, but on actions which deny the Constitutional rights (not the feelings or sense of respect) of others. Laws should always be a fair balance between the various rights of the individuals.

[NovemberEast]

I still don't understand why photographers, bakers, and other wedding vendors with such strong beliefs don't just say "Unfortunately, I'm all booked up that day, can I refer you to another vendor I would trust?"

That's what I would do in that position, but I'm also not the type raise a huge fuss about such things. Part of me thinks that both the vendors and the potential clients just want to raise a stink.

[Digit]

I still don't understand why photographers, bakers, and other wedding vendors with such strong beliefs don't just say "Unfortunately, I'm all booked up that day, can I refer you to another vendor I would trust?"

That's what I would do in that position, but I'm also not the type raise a huge fuss about such things. Part of me thinks that both the vendors and the potential clients just want to raise a stink.

Reminds me of a Dilbert strip in which the Pointy-Haired Boss (PHB) tells an employee he's going to be fired for an un-allowable reason, and the employee responds "You can't fire me unless my work isn't good!....oops." to which the PHB responds "Your work isn't good. Pick up your last check in HR."

[Portia]

and the potential clients just want to raise a stink.

Ah, yes, so self-centered, wanting flowers or a cake on your legal and lawful wedding day. /s

[NovemberEast]

and the potential clients just want to raise a stink.

Ah, yes, so self-centered, wanting flowers or a cake on your legal and lawful wedding day. /s

When there are plenty of other photographers, florists, & bakers to choose from, then yes I think so. If they are the only in town, then that's rough. But I'm just not the type of person who would want a photographer to take my picture on one of the most important days of my life if they did not agree with what they were photographing. I wouldn't hire someone who's anti-mormon (pretty common here in the bible belt) to photograph my wedding.

Call me crazy. But, photography is an art so the perspective of the photographer is pretty important to the finished product. Photographers can capture the same exact thing in different ways.

I'm not sure it'd be exactly the same for the baker, but it could be similar.

[Portia]

Well, condoning the actions of bigots, whether animated by vitriol towards gays, Mormons, or any other minority group, however constitutional such behavior may be, seems to put the onus on the entirely wrong party, in my view. I'd hate to live inside the brain of someone whose neural pathways are that narrow.

[S.A.M.]

How far should the moral cake baker go in taking a "moral stand"? Should the baker refuse to make cakes for any couple who has had sex before marriage because the baker believes that is immoral? What about couples that plan on serving alcohol at their wedding and consume alcohol regularly? No cakes for smokers either? What if the wedding dress and tuxedo (or even everyday clothing for that matter) that will be worn could be considered immodest and immoral? The cake baker might have to have a rather lengthy review process to not make cakes for anyone that does not meet a particular moral standard.

Should a landlord be able to refuse to rent a home to a couple because they have too many children, and according to the landlord's religion it is immoral to have more than two children?

Providing a cake for a wedding, no matter who is getting married, does not seem to me to be an approval of, or participation in that marriage.

[Digit]

Reminds me of this from Portlandia. In this case, it's the restaurant getting "grilled" (pardon the pun) about their chicken.

[Portia]

How far should the moral cake baker go in taking a "moral stand"? Should the baker refuse to make cakes for any couple who has had sex before marriage because the baker believes that is immoral? What about couples that plan on serving alcohol at their wedding and consume alcohol regularly? No cakes for smokers either? What if the wedding dress and tuxedo (or even everyday clothing for that matter) that will be worn could be considered immodest and immoral? The cake baker might have to have a rather lengthy review process to not make cakes for anyone that does not meet a particular moral standard.

Should a landlord be able to refuse to rent a home to a couple because they have too many children, and according to the landlord's religion it is immoral to have more than two children?

Providing a cake for a wedding, no matter who is getting married, does not seem to me to be an approval of, or participation in that marriage.

I don't think I've ever agreed with the artist formerly known as NANTI-SAARRMM more.

[vorpal blade]

On the other hand, how far should the law go to force a cake maker to make special cakes for people? What if he doesn't want to decorate a cake with Confederate flags, which he associates with slavery? Or cakes with burning crosses, which he associates with the KKK? Or cakes with Swastikas, which he associates with Nazis and anti-Semitism, especially if the person asking displays signs of neo-Nazism? Or a cake decorated with symbols of a man beating a woman? Or a cake decorated with a man harpooning a whale? Or a cake decorated with two grooms instead of a bride and groom? Couldn't such a person be reasonable said to be forced against his will to assist in the celebration of activities he believes are morally wrong? How far are you going to go to enforce compliance with your moral values?

[S.A.M.]

Again, providing goods/services that will be used in an activity does not equal approving of or participating in that activity.

... Laws should not be based on perceived animus, or what a person believes or thinks, but on actions which deny the Constitutional rights (not the feelings or sense of respect) of others. Laws should always be a fair balance between the various rights of the individuals.

Yes, there must be a balance, as in this article and this court decision referenced in that article.

If you don't care to hit the links:

These cases work to balance various rights by drawing a distinction between refusing to bake a cake and refusing to decorate it a particular way.

Respondents argue that if they are compelled to make a cake for a same-sex wedding, then a black baker could not refuse to make a cake bearing a white-supremacist message for a member of the Aryan Nation; and an Islamic baker could not refuse to make a cake denigrating the Koran for the Westboro Baptist Church.

However, neither of these fanciful hypothetical situations proves Respondents’ point. In both cases, it is the explicit, unmistakable, offensive message that the bakers are asked to put on the cake that gives rise to the bakers’ free speech right to refuse. That, however, is not the case here, where Respondents refused to bake any cake for Complainants regardless of what was written on it or what it looked like.

[vorpal blade]

Hey S.A.M. Good to hear from you. You post too infrequently. How is Alaska?

Thanks for posting the article and links. I wonder if you would do me the favor of checking on a couple of things. Apparently Administrative Judge Robert N. Spencer is the person who gave the quote. He makes a distinction between a message written on a cake and just a cake which the respondents refused to bake. I understand the difference. How did the bakery know that the cake was to be used to celebrate a gay marriage as opposed to a heterosexual marriage? Was the judge right in saying the respondents refused to bake any cake, or did the bakery just refuse to bake a wedding cake? See the difference? A wedding cake is in itself a message. People recognize a wedding cake as something special, for a particular purpose, to celebrate what is for many a profoundly religious sacrament. A wedding cake, by its appearance and purpose sends a clear and definite message and needs nothing written on it to identify the message. So, did the bakery refuse the couple to bake any cake or a particular type of cake which sends a particular message? Did the bakery refuse to bake a pineapple upside down cake, or birthday cake, or fruit cake, or Bible cake? Or just a wedding cake?

Here is something else I was wondering about. Going back to the big picture, a law should have a "compelling state interest." What is the compelling state interest of requiring a bakery to bake a cake for anyone or any purpose they choose? We can make many distinctions here, but overall what is the purpose of the law? If you say to stop discrimination, I will say that we should stop discrimination, but in a case like this, baking a cake or not baking a cake, should the law interfere? Can you find out what the compelling state interest is in saying that if the bakery bakes cakes for some people it has to bake cakes for anyone else, regardless of their race, creed, sexual preference, or sex?

[S.A.M.]

Whatever the product or service, it's against the law to discriminate, even if you feel that goes against your religious beliefs. Yes, the law should interfere, or intervene, or protect it's citizens, whichever word we want to use to describe the application of the law, when one person's religious beliefs cause harm to another person.

This is all thoroughly discussed in Judge Spencer's decision linked to above. Here are some excerpts:

Here, the refusal to provide a wedding cake to Complainants directly harms Complainants’ right to be free of discrimination in the marketplace. It is the state’s prerogative to minimize that harm by determining where Respondents’ rights end and Complainants’ rights begin.

At first blush, it may seem reasonable that a private business should be able to refuse service to anyone it chooses. This view, however, fails to take into account the cost to society and the hurt caused to persons who are denied service simply because of who they are. Thus, for well over 100 years, Colorado has prohibited discrimination by businesses that offer goods and services to the public

Justice Scalia, the author of the majority opinion in Bray, recognized that “some activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed. A tax on wearing yarmulkes is a tax on Jews.” Id. at 270. Similarly, the ALJ concludes that discrimination against same-sex weddings is the equivalent of discrimination due to sexual orientation.

Of course, nothing in § 24-34-601(2) compels Respondents to recognize the legality of a same-sex wedding or to endorse such weddings. The law simply requires that Respondents and other actors in the marketplace serve same-sex couples in exactly the same way they would serve heterosexual ones.

More discussion on the applicability of a compelling government interest can be found starting on the bottom of page 10.

On Free Speech:

...the right to free speech means that the government may not compel an individual to communicate by word or deed an unwanted message or expression.
After being refused, Complainants immediately left the shop. For all Phillips knew at the time, Complainants might have wanted a nondescript cake that would have been suitable for consumption at any wedding.7 Therefore, Respondents’ claim that they refused to provide a cake because it would convey a message supporting same-sex marriage is specious. The act of preparing a cake is simply not “speech” warranting First Amendment protection.

On Freedom of Religion:

The question presented by this case, however, does not involve an effort by the government to regulate what Respondents believe. Rather, it involves the state’s regulation of conduct...
...The types of conduct the United States Supreme Court has found to be beyond government control typically involve activities fundamental to the individual’s religious belief, that do not adversely affect the rights of others, and that are not outweighed by the state’s legitimate interests in promoting health, safety and general welfare.

To excuse all religiously-motivated conduct from state control would “permit every citizen to become a law unto himself."

But it's just a cake! Doesn't matter if it's just a cake or if it's a toothbrush, or a home or a car, or whatever.

[Portia]

Good on Colorado.

[vorpal blade]

But it's just a cake! Doesn't matter if it's just a cake or if it's a toothbrush, or a home or a car, or whatever.

Thanks, S.A.M. for the research.

Just a cake? The owner of Masterpiece Cakeshop, Inc., Jack C. Phillips, kindly offered to bake and decorate a cake for Charlie Craig and David Mullins. He made no stipulation as to how the cake would be decorated. On what grounds did the complainants Charlie Craig and David Mullins refuse to do business with Mr. Jack C. Phillips?

[yayfulness]

Just a cake? The owner of Masterpiece Cakeshop, Inc., Jack C. Phillips, kindly offered to bake and decorate a cake for Charlie Craig and David Mullins. He made no stipulation as to how the cake would be decorated. On what grounds did the complainants Charlie Craig and David Mullins refuse to do business with Mr. Jack C. Phillips?

From the court case:

The following facts are undisputed:
...
6. Phillips informed Complainants that he does not create wedding cakes for same-sex weddings. Phillips told the men, “I’ll make you birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.”
7. Complainants immediately got up and left the store without further discussion with Phillips.

Source.

Say what you will about the rest of the case, but this part seems pretty cut-and-dried to me.

[S.A.M.]

Right. I didn't do research, I just read the court case.