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Two Very Wrong Perspectives on Masterpiece Cakeshop

Masterpiece Cakeshop v. Colorado Civil Rights Commission is a hard First Amendment case on which reasonable people can differ. It is clear that a baker could not be forced to write an icing message supporting a kind of marriage with which he disagrees. It seems also clear that a videographer could not be forced to take pictures of a ceremony with which he disagrees, because film is itself an expressive medium in which decisions about how to portray weddings would naturally convey a message about it. On the other hand, a rented room or indeed an ordinary cupcake that is supplied conveys no message.

The key question for Masterpiece Cakeshop is on what side of this line does a custom cake fall.
As discussed in a previous post, reasonable minds can and do differ, as they can on almost case where line drawing is required. What is less important than exactly where the line is drawn is that the Court recognize that one side of the line must recognize the free expression of artisans and artistes. And what is troubling is the large number of commentators who deny that lines need to be drawn, because of their priors that look a lot like prejudices.

Consider, first, Linda Greenhouse: “In my opinion, if someone wants to be able to pick and choose his customers, he should bake for his friends in his own kitchen and stop calling himself a business.” On her view, people in commerce lose all expressive rights, because on any sensible line, sometimes a baker will be able to refuse a customer because of what that customer insists must be included in the cake design.

Greenhouse’s prejudices against people in commerce are right out of the 19th century. There aristocrats and landed gentry looked down on people in trade, thinking that the way those with income earned from land gave them social superiority and a more capacious set of rights. Similarly, Greenhouse earns income as a journalist, and does not regard that as a low commercial activity, although it entirely depends on consumers buying media products. Nevertheless, she feels she should get a full panoply of First Amendment protections while mere artisans get none.

Another way of denying legitimacy to the claims of artisans with religious scruples is to subordinate their rights to one’s preferred social movement. That is the strategy of Douglas NeJaime and Reva Siegel in their analysis of the case.  They claim that what is really at issue in Masterpiece Cakeshop is a wholesale attack on LGBT rights, although exactly the same doctrinal question could come up if  a baker refused to bake a custom cake for the celebrations of divorce that are now in vogue in some sophisticated circles, or for any other celebration that he thought sinful. Indeed,they spend almost their whole article attacking the Alliance Defending Freedom’s position on LGBT Rights.

But theirs is the legal equivalent of an ad hominem attack to avoid a difficult case on the merits. Others, including the Solicitor General of the United States and serious scholars, like Douglas Laycock, supported the baker. They do not share the ADF’s general positions. Moreover, the idea that that this case threatens the advance of LGBT rights shows an almost willful ignorance of reality—a reality that social scientists quantify. Almost no movement has advanced as fast in the history of America. The support for equal rights for homosexuals among the young—the ruling generation to come—is almost universal.

The social as well as the legal question is in what fora and to what degree should the dissenters to the consensus be able to register their dissent. What is at stake here in analysis is whether the Court sustains a First Amendment that applies to different classes of society and to dissenters, even when they dissent from a majoritarian movement of which university elites strongly approve. Fortunately, however the Court rules on the specific facts of Masterpiece Cakeshop, few, if any justices, are likely to share the very wrong-headed perspectives of Ms. Greenhouse or these Yale law professors.

Reader Discussion

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on December 08, 2017 at 06:54:51 am

Before this post, I read this morning, at this site, a review of "The Future of Religious Freedom in America" by Matthew J. Franck.

It is difficult to describe the "sinking feeling" and sense of dread that the review and the following comments produced in me. It is a terrible (in the true sense of that word, no exaggeration) thing to recognize one's inability to explain the existential situations of those for whom faith, hard-won, the fruit of painful struggles, is the organizing principle of their lives.

If religious freedom has to depend on persons who lack comprehensive education and training in "faith and reason", in "law and love", the war is already effectively lost; only minor rear guard battles remain to be fought.

This post while not about religious freedom per se is about the freedom of speech that has been regarded as a pillar of American political culture, an unquestioned original commitment. For that reason it gave me hope that John O. McGinnis himself, and others, will provide the intellectual support for freedom of speech that cannot by definition exclude freedom of religion.

I understand that would require him to provide what is not within my power to give.

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Latecomer
on December 08, 2017 at 08:21:16 am

Ms. Greenhouse said “in my opinion, if someone wants to be able to pick and choose his customers, he should bake for his friends in his own kitchen and stop calling himself a business.”
I would be pleased to hear her respond to the concept of replacing 'bake' with 'sew', and 'in his own kitchen' with in his own sewing room'.

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Bill G
on December 08, 2017 at 08:28:51 am

It is not surprising at all that those on the left reject any claim that artisans are artists. They view them as members of the servants class and must do as the government orders them to do. They will lie easily to claim that a wedding cake is not a unique artistic expression. Ask them if they thought their own wedding cake was unique. They will not answer.
But if you ask them if an author can be compelled to write a biography on a president he or she despises they will say "of course not."
An argument I have seen made it "then a chef can deny a custom dinner to someone they don't like. " Or "A restaurant owner can dent a black couple admission claiming it does not fit with the decor of his restaurant." These are PURE BS.
They prove that they look down on artisans as mere servants.

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fishydude
on December 08, 2017 at 08:30:22 am

This really is not a hard case to make either the free speech or free exercise of religion distinctions in favor of the baker. It requires lying about the facts of the case to “opine” as Greenhouse does.

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Steven Malynn
on December 08, 2017 at 09:33:03 am

“in my opinion, if someone wants to be able to pick and choose his customers, he should bake for his friends in his own kitchen and stop calling himself a business.”

"Greenhouse’s prejudices against people in commerce are right out of the nineteenth century. "

Hardly. Greenhouse is a genuine fascist. So that'd be put of the 1930s-40s:

"The difference between [socialism and fascism] is superficial and purely formal, but it is significant psychologically: it brings the authoritarian nature of a planned economy crudely into the open.

"The main characteristic of socialism (and of communism) is public ownership of the means of production, and, therefore, the abolition of private property. The right to property is the right of use and disposal. Under fascism, men retain the semblance or pretense of private property, but the government holds
total power over its use and disposal.

"The dictionary definition of fascism is: “a governmental system with strong centralized power, permitting no opposition or criticism, controlling all affairs of the nation (industrial, commercial, etc.), emphasizing an aggressive nationalism . . .” [The American College Dictionary, New York: Random House, 1957.]

"Under fascism, citizens retain the responsibilities of owning property, without freedom to act and without any of the advantages of ownership. Under socialism, government officials acquire all the advantages of ownership, without any of the responsibilities, since they do not hold title to the property, but merely the right to use it—at least until the next purge. In either case, the government officials hold the economic, political and legal power of life or death over the citizens.

"Needless to say, under either system, the inequalities of income and standard of living are greater than anything possible under a free economy—and a man’s position is determined, not by his productive ability and achievement, but by political pull and force.

Under both systems, sacrifice is invoked as a magic, omnipotent solution in any crisis—and “the public good” is the altar on which victims are immolated. But there are stylistic differences of emphasis. The socialist-communist axis keeps promising to achieve abundance, material comfort and security for its victims, in some indeterminate future. The fascist-Nazi axis scorns material comfort and security, and keeps extolling some undefined sort of spiritual duty, service and conquest. The socialist-communist axis offers its victims an alleged social ideal. The fascist-Nazi axis offers nothing but loose talk about some unspecified form of racial or national “greatness.” The socialist-communist axis proclaims some grandiose economic plan, which keeps receding year by year. The fascist-Nazi axis merely extols leadership—leadership without purpose, program or direction—and power for power’s sake (Ayn Rand; “The Fascist New Frontier,” The Ayn Rand Column, 98).

Written in the 1970s.

http://aynrandlexicon.com/lexicon/fascism-nazism.html

"Off the fascist pigs."

Signed,
An adamant (but not militant) atheist

"A 'right' is a moral principle defining and sanctioning a man’s freedom of action in a social context."

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writeby
on December 08, 2017 at 09:37:04 am

PS. Inalienable Rights

Rights are concepts derived from the observation of Man's nature as a rational being:

1>Man is fully conscious; therefore he has the right to life
2>In order to maintain his life, Man must be free to think*; therefore he has the right to liberty
3>Man must work & produce to maintain his life; therefore Man has the right to own property (beginning with his mind & body) & thus to pursue happiness.

*The mind literally cannot function under any form of coercion. A man must not only choose to think, he must be free to think.

Finally, only individuals can possess rights. Individuals forming a group do not possess more rights than a single individual. It's not a matter of addition, but one of multiplication:

Thus, in the context of rights, a group fo 5 individuals vs. a single man, looks like this mathematically:

1x1x1x1x1 = 1 vs. 1

For more on rights: http://aynrandlexicon.com/lexicon/individual_rights.html

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writeby
on December 08, 2017 at 10:12:39 am

Request to a leftist baker: "I need a cake in the shape of an AK-47 for an NRA meeting I am having".
Request to Muslim baker: "I need a cake in the shape of the Star of David for a bar mitzvah".
Request to a Jewish baker: "I need a cake with 'Jewish Pig' written on it".

The opportunities for lawsuits are endless.

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Ken James
on December 08, 2017 at 10:22:52 am

"because of their priors that look at lot like prejudices."

Didn't use a grammar checker?

Anyway, I see this as less a 1st amendment issue than a 13th amendment issue. The baker is literally a (specialized) laborer for hire, and under the 13th amendment, he should have a choice of who he labors for.

Public accommodation laws were always problematic, but carried some moral force when limited to vital services in monopoly situations. But they have grown cancerously of late, and are now a bludgeon being used to suppress dissent.

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Brett Bellmore
on December 08, 2017 at 10:23:27 am

To continue with a line of thought in yesterday's comments:

http://www.libertylawsite.org/2017/12/07/phillips-likely-to-win-masterpiece-cakeshop-case-five-votes-to-four/

If the Constitution, or its amendments, are relevant here, then the most relevant is not the First, but the Ninth Amendment.

There are assigned functions of legislatures and legislation to provide for the organization and operation of governments.

There are NO assigned legislative functions to impose rules of "Just Conduct."

When legislatures arrogate a power to impose rules of Just Conduct, for the objective of a concept of just conduct, rather than for a specific, limited, objective of public health, safety or security (police powers), they impact individual liberty - including those Ninth Amendment rights.

The development of rules of just conduct through direct interactions of individuals in their relationships is a major factor in establishing and maintaining the cohesion of a social order. Interventions in those relationships, including through legislated rules, dilutes that process of cohesion. Consider what we have been observing from such legislation over at least the past 60 years.

Humans must be free to err. Legislation can not direct them to succeed - or, even to "be better."

The issues here are not grounded in whether the conduct is "speech," "religious conviction," or something to be labeled "Dignity" or (pejoratively) "discrimination;" but, rather grounded in the various destructive impacts on individual liberty and social cohesion that result from the intrusion of legislation into the areas of private relationships and private law, which are outside the designated functions of organization and operation of governments.

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R Richard Schweitzer
on December 08, 2017 at 10:28:02 am

A rented room in general may carry no message, but I think that a rented house of worship would. I suppose that there are some ways around that by requiring nominal membership in a congregation, but a membership exception in general could swallow the rule. I suppose OTOH people could attempt to consecrate any room that they wished to rent for ceremonies. It is very difficult to craft a general rule, which is why many of the Court tests (including those overridden by Employment Division v. Smith) rely on a test of sincere belief, which itself is tricky.

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John Thacker
on December 08, 2017 at 10:55:35 am

Brett Belmore gets it! Public accommodation laws were logically defended to ensure the natural right of travel.

If we expect men and women to take responsibility for their own lives, we must not physically constrain them to a geographic location that is devoid of opportunity.

Therefore, we must support public accommodation of vital necessities to travels without prejudice.

When did a wedding cake become a vital necessity for travelers? Basic food and shelter people! That is all that should be included in public accommodation laws. Restaurants, grocery stores, hotels, and campsites. That is pretty much it.

Anything more than that takes away an important right — freedom of association — for no justifiable reason.

We need to go back to core principles. We need to consider everyone’s rights.

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John Camburn
on December 08, 2017 at 11:24:03 am

Properly read, the First Amendment cannot be parsed into its constituent clauses and the clauses then construed independent of each other and under different standards and tests. Taken together, the clauses that make up the First Amendment define liberty of conscience as it was understood by the democratic-republican Independent faction that won the English civil wars and who chiefly settled the American colonies. This was Madison's best work.

On its face, the First Amendment establishes that as between an individual and laws enacted by Congress, the individual rights guaranteed in the First Amendment are superior to any group rights the federal government wants to create and then enforce.

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EK
on December 08, 2017 at 12:23:18 pm

What differentiates a wedding cake from every other cake, is the fact that it is used in the celebration of a wedding,
"If anyone knows of any reason why these two should not be joined together in marriage, let him speak now or forever hold their peace."

While a same-sex marriage may now be permissible by law, one can know through both Faith and reason, that one cannot condone a same-sex sexual relationship, or sexual acts outside the marital act, without discriminating against the Sanctity of the marital act, which is a rightly ordered desire/inclination/orientation within the marital relationship.

One can know through both Faith and reason, that to compel someone to condone same-sex sexual acts, is to compel someone to discriminate against the Sanctity of the marital act which would necessarily be a violation of both the Faith and morals of a multitude of persons.

The Moral Law, that Law upon which our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness depends, Is Endowed to us from God, The Author of Love, of Life, and of Marriage, thus we can know through both Faith and reason, this case is first and foremost, a case that, by denying our free exercise of religion, will always result in a denial of our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness.

There is no valid, generally applicable Law that demands we must affirm the equality of sexual acts and sexual relationships by serving in a capicity that would condone sexual acts outside the marital act which is Life-affirming, and Life-sustaining, and can only be consummated between a man and woman, united in marriage as husband and wife. To compel someone into serving in a capacity that would cause them to violate a tenet of their Faith and/or morals, and in this case, to deny the very essence of God, The Author of Love, of Life, and of Marriage, is not a proper use of the commerce clause and thus is not necessary.

Our inherent Dignity comes from God. It is out of Love and respect for the human person, who is not, in essence, an object of sexual desire/inclination/orientation, but from the moment of conception, a beloved son or daughter, that we, who Love our beloved sons and daughters, cannot condone the engaging in or affirmation of any acts, that do not respect the inherent Dignity of our beloved.

"With God’s grace and our perseverance, chastity is not only possible, but it will also become the source for true freedom for all of us."

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Nancy
on December 08, 2017 at 13:36:22 pm

Richard:

You hit it on the head - IT IS THE 9TH that is critical and the 9th is properly understood as a recognition of the retained rights of INDIVIDUALS - NOT groups - a collective has no rights -ONLY an individual.

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gabe
on December 08, 2017 at 14:10:37 pm

Let someone demand that Greenhouse write and publish an article favorable to Trump, and see what she says.

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Mike-In-Keller
on December 08, 2017 at 15:08:24 pm

My post was off-subject; motivated by concern for religious freedom as a First Amendment right. Your comment helps me believe that it was not completely out-of-line.

We may hope that the judges of the Supreme Court understand the issue in the way you describe.

Other learned posts have mentioned different amendments and/or different reasoning; most of it impressive. Your second paragraph seems to me to get to the "heart of the matter".

"A voiced self arises when judgments are framed with distinctness and with logical consistency; formal logic is tied to the actualization of a truthful speaker." Robert Sokolowski writing in "Husserlian Meditations".

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Latecomer
on December 08, 2017 at 15:26:05 pm

As horrible as the expected result would be, I am certain that it would be preferable to the usual "Greenhouse gas" that emanates from her!

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gabe
on December 08, 2017 at 15:37:56 pm

Here is my proposal:

"The right to own property. Property owners shall choose whom they employ and who their customers are. They shall choose which products to sell. Congress and the States retain Eminent Domain powers, but must give property owners just compensation and cannot take land from one owner and give it to another owner."

- A New Constitution for a Free People

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Serket
on December 08, 2017 at 16:10:15 pm

I share some of the perspectives of both Brett Belmore and John Camburn.

1. The federal 1964 Civil Rights Act, Title 2, limits discrimination based on suspect criteria regarding housing, employment, and public accommodations. Courts upheld the law as a valid exercise of Congress's power to regulate interstate commerce, in that discrimination in housing, employment, and public accommodation impaired people's ability to travel through and settle in other states. Even when businessmen profess a religious interest in discriminating, courts have held that this interest is not entitled to legal protection from the Civil Rights Act.

States are not constrained to regulate only those matters that bear on interstate commerce, and thus have greater leeway to regulate bakers. Whether they have exercised this power wisely is a different matter. But clearly, a finding that the federal Civil Rights Act is a lawful means for regulating interstate commerce, even superseding a Free Exercise claim, may have no bearing on a state's civil rights laws, which may have no bearing on interstate commerce.

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nobody.really
on December 08, 2017 at 18:36:37 pm

C'mon, nobody!

A bright person, and as well informed as you are, ought to know that the Black Robes subscribe to the "butterfly flapping it's wings" conception of interstate commerce. It's ALL related, now! =

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gabe
on December 08, 2017 at 20:27:47 pm

Why should Linda Greenhouse -- or anyone else -- get to dictate that everyone who enters the realm of commerce must abandon all of his moral precepts? But that isn't exactly what she demands either Those who want to sell to the public must abandon moral precepts, but those who would buy apparently remain free to choose among potential sellers based on their moral precepts. There are leftists who won't buy anything connected with Koch Enterprises and there are right-wingers who won't have anything to do with the New York Times. Could they be prosecuted for discrimination? Of course not -- and sellers should have equal freedom.

I think that common sense dictates that everyone have equal rights to either enter into or decline to enter into contracts for any reason. Alas, the Court has never regarded freedom of contract to be a "fundamental" right. That's an error that should be rectified.

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Liberty51
on December 08, 2017 at 22:25:00 pm

More correctly, only a man or woman can have and exercise rights. They are what the first ten amendments contemplated. Civil rights were not, as they are applied to corporate "persons" (fictions of law), not men and women. The 14th dealt with those, and so "civil" rights (corporations and commerce) are the bailiwick of legislatures. They cannot legislate the natural rights, so must confess everybody into believing they are somehow corporate fictions - "persons". That, and they confirmed everybody into believing they have to be licensed to carry on their trade or calling. NOW they can dictate terms and conditions under which you can do "business". What I did, when the opportunity came, and I had studied the law enough to realize my status as a man vs a statutory "person" was to file my final report of business under the state's license, wrote them a check for the sales tax I'd collected up to that point and closed the store as a "licensed" business. I simply re-opened the next day as an unincorporated business organization, and continued playing my TRADE, without the third party contract. Any sales from that point on were PRIVATE contracts between me and my customers, and I stopped playing the part of an unpaid tax collector for the state. That's what most people who have small businesses ought to do, but the government brainwashing is pretty strong.

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MadMagyar
on December 09, 2017 at 04:52:44 am

Faith and reason are logically incompatible.

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Trevor Chase
on December 09, 2017 at 06:02:58 am

Re: Faith and Reason

For a fine presentation of another point of view, see "The Dialectics of Secularism" Jurgen habermas and Josef Ratzinger. The book is available at amazon.com. An excerpt from Cardinal Ratzinger reads:

"There are pathologies of religion, as we can see, and there are pathologies of reason, as we can also see. Both sorts of pathologies pose a fatal threat to peace and even to mankind as a whole ... God or the Divinity can become a way of making absolute claims for one's own authority and interests. Such a partisan image of God ... dissolves law and morality. Good is then whatever serves my own power, and the difference between good and evil collapses in practice ... We can see something of this sort in the terrorists and their ideology of martyrdom. .... But there is also a pathology of reason that is entirely cut off from God. We have seen it in the totalitalitarian ideologies that cut themselves off from God and wanted ... to construct a new man, a new world."

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Latecomer
on December 09, 2017 at 08:54:45 am

Amazing how hypocritical "Christians" like Phillips have no qualms about baking cakes for second, third, and even fourth marriages [remember Mal. 2:16?], but have kittens when a gay couple asks for one.

Amazing how RW nutters scream "States' Rights" ... until a state does something they disapprove of.

The irony is thicker than "Sierra cement." See Matt. 7:12 (you know, the passage you have excised with a black magic marker).

l think the State has to win, regardless of whether Phillips is an artisan. You shouldn't have to ask when you walk in the door whether the proprietor approves of your use of the product, and if you live in lnbred, Alabama, you might have to travel 500 miles to get service. This was what the CRA was intended to stop, and it is well within the reach of the Commerce Clause.

Lawyers are paid to have their clients' opinions. Why couldn't Phillips grow up, and take the cash?

Of course, if Masterpiece was honest enough to change its name to "We Are Self-Loathing Closeted Gays Bakeshop" or "We Really, Really, REALLY Hates dem lcky Gays Bakeshop," buyers would have been on fair notice.

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Trevor Chase
on December 09, 2017 at 11:05:38 am

lt's a bad one. lmagine hotel owners refusing to rent to Christians. Matt. 7:12.

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Trevor Chase
on December 09, 2017 at 11:09:58 am

First, there is no distinction between fundamental and non-fundamental rights in COTUS.

Second, the right of gays to marry arises from your precious liberty of contract.

Third, the federal and state commerce clauses empower government to regulate contracts, and one of them involves imposing controls on public accommodations like bakeshops.

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Trevor Chase
on December 09, 2017 at 11:13:28 am

One can have an absence of reason and gods, but faith and reason are logically incompatible.

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Trevor Chase
on December 09, 2017 at 11:15:36 am

Rand was an idiot, who didn't see the limitations inherent in her pathological selfishness.

Don't know why anyone bothers with her.

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Trevor Chase
on December 09, 2017 at 11:19:03 am

The core principle here is to ensure the free flow of commerce. lmagine if only Catholics were allowed to shop at Safeway and only Protestants, at Kroger.

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Trevor Chase
on December 09, 2017 at 11:23:42 am

While l am no fan of Wickard, the power needs to be reasonably broad to achieve the goal of facilitating robust commerce.

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Trevor Chase
on December 09, 2017 at 11:28:22 am

So, you are a fan of polygamy? The problem you create with your reading of the 1Am was resolved by Scalia in Employment Div. v. Smith, and not in your favor.

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Trevor Chase
on December 09, 2017 at 12:05:22 pm

Editors do that already.

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Trevor Chase
on December 09, 2017 at 12:20:03 pm

Heck, I thought YOU were - ha!

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gabe
on December 09, 2017 at 12:25:27 pm

"...but faith and reason are logically incompatible."

That may or may NOT be so. However it does not diminish the importance or VALUE of either; nor should it be taken (as it usually is) as a disparagement of faith. At a minimum, each epistemological posture addresses different aspects of life. A more generous view would have us recognize that each INFORMS the other.

It is not Athens vs Jerusalem (incidentally, Athens was not all that reasonable) but rather some admixture of both. See Leo Strauss amongst others on this topic.

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gabe
on December 09, 2017 at 12:27:53 pm

No disagreement on "reasonably broad" - but the devil IS in the details and the Black Robes are mired in detail so much as to be unable to discern the intended overall scheme.

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gabe
on December 09, 2017 at 12:41:38 pm

Rubbish!

And that is the problem with "reason", especially Legal reasoning. It reduces itself to "one-thingism", to mandates and is unable to perceive it's internal contradictions - or how the pursuit via legislation of one *purposive* objective will inevitably undermine the security of another objective or another section of COTUS. What wins - the 1st or the 14th? How does the 9th, and its' express recognition of the rights of INDIVIDUALS figure into this?

Moreover, until you show me where in COTUS it guarantees or secures bloody *dignity rights*, I ain't buying it.

You're gay (not you) - so what. Who cares? Get on with your life. If you want dignity, act dignified. do the decent thing and get you cake from someone who wants to sell it to you.
AND don't foster that LW crapola, slippery slope BS about not being able to get a gay ; there are thousands of bakeries that would be more than happy to accept "gay" money. See Thomas Sowell on the actual effects of such alleged discrimination and on the motivations of businesses to provide services / employment to those who may, from time to time encounter "discrimination. It ain't as bad as you LW'ers would have us believe.

In short, I am bound not at all to confer dignity rights upon another person - and there is nothing that compels me to like you (editorially speaking).

Get over it - lots of folks do not like other folks - "Tah's Life, That's what all the people say" "

The Chairman

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gabe
on December 09, 2017 at 15:14:44 pm

No right is absolute.

This isn't about "dignity." lt's about COMMERCE. The practice of not renting hotel rooms to Negroes didn't bother you because you are white. And it is amazing how magnanimous you can be when another's ox is being gored.

States' Rights! This has been your battle-cry. So, why did you change horses?

Lines are drawn by legislatures. They aren't always perfect or wise. But this one should fall in the "permissible zone." Other states can enact local RFRAs to protect their Jack Phillipses. l don't like every law l am subject to. But where do you find a power to unilaterally veto a law in the 1Am? The 9th?

Jack Phillips can carry a torch and scream "Blood and Soil," for all l care. But his commercial speech must be sacrificed on the altar of commerce, as the alternative would be too gory to contemplate.

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Trevor Chase
on December 09, 2017 at 16:19:12 pm

Correct, the Constitution does not distinguish between fundament and non-fundamental rights. The problem is that the Court has been doing so for nearly a century, relegating contractual liberty to the latter.

Of course the right of gays to marry is a matter of contractual freedom. I'm all in favor of that.

As for the Commerce Clause, it was meant to empower Congress to stop the states from engaging in protectionism by hindering out-of-state sellers. It does not give Congress (much less state legislatures, as here) any authority to compel people to enter into contracts against their wishes.

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Liberty51
on December 09, 2017 at 17:39:01 pm

Re: Faith and Reason see www.thepublicdiscourse.com - "Leo Strauss and the Pursuit of Knowledge: A Reply to Paul DeHart. The author of this article is Nathan Pinkoski, a scholar at Princeton University.

Very rewarding. Worth taking time to read and consider.

Several discussions, perhaps more, are conflated here:

Issues of Constitutional Law - informed, educated discussion presented in a civil tone.

Philosophical questions relating to pursuit of the truth about the whole of nature - "God, the world, and man:" -
philosophy as a "way of life" - ( Leo Strauss)

And then a melange of disconnected issues - civil rights, commercial operations, necessary and discretionary goods, public access, discrimination, etc., etc. - often uncivil and undisciplined; leading to no useful conclusion, providing no useful information

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Latecomer
on December 09, 2017 at 19:54:20 pm

Intimate choices may define one's beliefs on sexual morality, but they do not define personhood. Due Process is binding on persons, not on sexual desires/inclinations/orientations. Regardless of our desires/inclinations/orientations, a man remains a man, and a woman a woman.

One cannot condone the engaging in or affirmation of sexual acts outside the marital act, without discriminating against the Sanctity of the marital act, which is a rightly ordered desire/inclination/orientation within the marital relationship.

The fact is, our Constitution does not serve to secure and protect the equality of sexual acts and sexual relationships; our Constitution does serve to protect and secure our inherent Right to Religious Liberty.

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Nancy D.
on December 09, 2017 at 19:57:14 pm

"Unalienable: incapable of being alienated, that is, sold and transferred." Black's Law Dictionary, Sixth Edition, page 1523: YOU CAN NOT SURRENDER, sell or transfer unalienable rights, they are a gift from the creator to the individual and can not under any circumstances be surrendered or taken. All individual's have unalienable rights. Inalienable rights: Rights which are not capable of being surrendered or transferred without the consent of the one possessing such rights. Morrison v. State, Mo. App., 252 S.W.2d 97, 101. YOU CAN SURRENDER, sell or transfer inalienable rights if you consent either actually or constructively. Inalienable rights are not inherent in man and can be alienated by government."

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Nancy D.
on December 09, 2017 at 22:52:59 pm

Me: “…but faith and reason are logically incompatible.”

gabe: "That may or may NOT be so."

Faith is the literal abnegation of reason.

gabe: "However it does not diminish the importance or VALUE of either"

Heaven's Gate. Faith has no intrinsic value.

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Trevor Chase
on December 09, 2017 at 23:42:59 pm

lf this were a theocracy, your argument might have merit.

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Trevor Chase
on December 09, 2017 at 23:51:28 pm

States have Commerce Clauses, too. Moreover, no right is absolute.

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Trevor Chase
on December 10, 2017 at 00:10:36 am

The fact that you believe in order to recognize that our unalienable Right to Life , to Liberty, and to The Pursuit of Happiness, has been endowed to us from God, our Government would have to be a theocracy, doesn't change the fact that it is a self-evident truth, that can be known through both Faith and reason, that our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness has been endowed to us from God, not Caesar.

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Nancy D.
on December 10, 2017 at 06:03:01 am

What WAS the "intended scheme"?

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Trevor Chase
on December 10, 2017 at 07:14:09 am

I should have written: "a melange of disorganized thinking about related issues, including abrupt changes of subject, assertions as to the character and motives of disputants - which serves only, as far as I can see, to confuse rather than clarify.

Discouragement and a sense of loss motivated my comment: This site was a place of refuge from the relentless storms and turmoil of our times. Just that.

(I see now that several comments recently posted are raising the quality of this discussion. This is encouraging!)

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Latecomer
on December 10, 2017 at 10:00:49 am

You keep asserting that no right is absolute, but that does not help to resolve this or any other dispute over rights.

Whether any rights are absolute or not, I maintain that some wrongs are absolute, including legal punishment of individuals who have committed no act of aggression. Just saying "no, thanks" is not aggression.

As for your claim that there is a "commerce clause" in Colorado's constitution, I just looked and saw nothing of the kind and certainly no language granting the legislature authority to compel people to enter into contracts in order to protect the flow of commerce.

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Liberty51
on December 10, 2017 at 10:02:12 am

In 1931, Kurt Gödel produced a logical demonstration that any non-trivial consistent system of mathematical axioms, such as the one associated with geometry, algebra, calculus and number and set theory, must rely on at least one unprovable axiom.

Our reliance on unprovable axioms in mathematics is one example of "faith and reason" being not only logical but necessary.

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EK
on December 10, 2017 at 12:17:49 pm

lf a proposition is self-evident, faith is not required to recognize it.

You are free to believe in the lnvisible Pink Unicorn (pbuhhh), if you so choose. COTUS does not require a resort to absentee sky-pixies.

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Trevor Chase
on December 10, 2017 at 12:21:25 pm

"l see a tree." Properly basic propositions only require sensory input.

Or to put it another way, l think, therefore l am ... because if l am not, it doesn't matter what l think.

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Trevor Chase
on December 10, 2017 at 12:22:35 pm

Quetzlcoatl? Zeus?

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Trevor Chase
on December 10, 2017 at 12:51:19 pm

L51: "but that does not help to resolve this or any other dispute over rights."

lt actually does. The rights of one individual competes with the rights of others, both on an individual and collective basis. While the RKBA is without limit on its face, no one seriously suggests that individuals have a right to own WMD.

L51: "As for your claim that there is a “commerce clause” in Colorado’s constitution, I just looked and saw nothing of the kind"

Yes and no. There is no written limitation upon the scope of legislation to be enacted by a state's legislature; this is true in many states (see e.g., Wyo. Const.). Ergo, it has authority to regulate commerce within its borders. ln our constitutional design, individual States are co-sovereigns, and can do anything that isn't forbidden by either COTUS and/or their own founding documents. As such, they have the functional equivalent.

L51: "I maintain that some wrongs are absolute, including legal punishment of individuals who have committed no act of aggression. "

You are, of course, at liberty to "maintain" whatever you wish. Whether a federal or state constitution comports with your views is something else entirely. Colorado has nominal legal authority to enact the legislation in question, and chose not to enact a state version of the federal RFRA. l don't have a dog in this hunt, but it seems that Scalia's 25-y.o. opinion in Employment Div. v. Smith should control.

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Trevor Chase
on December 10, 2017 at 12:54:25 pm

Oops, I guess you got caught here re: Colorado and contract clauses.

Also: " No right is absolute." YEP YEP YEP - but why Dear Dawg are YOU (and your ilk) to be the one(s) to decide WHICH rights are not absolute. Employing your assertion, then let us say that the right to marriage (contract or even commerce as you argue) is NOT absolute; nor is the *right* to privacy.
We can go on and on about which are NOT absolute. I suppose it depends upon what YOU are seeking, doesn't it?

The again, we are saddled with footnote four.

If the bakers right to conscience / religion is not absolute, then, perhaps, the right to contractually enter into marriage may be subject to the "good" sense of the community. Me, I couldn't care less about the actions of adults - BUT I do care when it infringes upon corresponding rights in others, i.e., 1st amendment rights which after all were integral to the very founding of this nation. I don;t suppose you would argue that LGBT rights were foremost in the minds of the Framers, or would you?

So which shall be more or less *absolute*?

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gabe
on December 10, 2017 at 16:49:38 pm

gabe: "I guess you got caught here re: Colorado and contract clauses."

Are you going to seriously suggest that, in the absence of a literal commerce clause, a State has no authority to regulate intrastate commerce? Didn't think so.

gabe: " but why Dear Dawg are YOU (and your ilk) to be the one(s) to decide WHICH rights are not absolute."

l'm not. l'm merely explaining how the system is designed to work. The States' ability to regulate is broad, but not unlimited. Colorado's rationale is one of promoting commerce, which should carry the day in an apolitical court. By contrast, in ~100 lower court cases, no one could come up with a credible rationale for gay-marriage bans. (lf they could, the result in Obergefell would have been different.)

"What the Framers were thinking" is an outmoded and discredited form of originalism.

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Trevor Chase
on December 11, 2017 at 01:05:48 am

There is no correlation between someone's Race/Ancestry, and sexual conduct. It is not unjust discrimination to refuse to condone sexual acts outside of the marital act because one has respect for the marital act and the Dignity of the marital relationship between a husband and wife.

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N.D.
on December 11, 2017 at 08:25:54 am

Re: Trevor Chase response: "I think ... etc."

To paraphrase the Dalai Lama: Think, yes, think. But think about what?"

Fr. James Schall writes (commenting on Robert Sokolowsi's "Moral Action ..."

"... what we want to know is this: What are moral or ethical actions? How are they distinct happenings in the universe? We do not just run into them like we run to a tree or jump into a river. But we cannot get through a couple of hours each day without encountering some command, law, passion, desire, crime, joy, or sorrow. ... Sokolowsi, as a philosopher, wants to know, as a philosopher, what goes on when we will and choose something. What good do we seek? Are we to be praised or blamed for our actions? If so, why so?

... We have a free will that can focus on any of the many ends or objects that we decide to undertake. ... We each make a difference to someone, in some place, and at some time. ... After deliberation on what we should or should not do, we decide or will to put an act into the world whose very being contains a goodness or badness that directly is placed into the world by our act."

So, we are thinking beings - but "Our character is formed inexorably by the things we put in action in the world."

Sokolowski's concluding sentence: "Philosophy is to remind us of the necessity in things: not just to the necessities to which we have to resign ourselves, but those we can find splendid."

Fr. Schall concludes: "And what are these things that we find 'splendid'? Surely, in the case of moral action, it is the discovery that we are happier when we do what we ought to do rather than just what we want to do."

Thank you for prompting this exchange of ideas.

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Latecomer
on December 11, 2017 at 09:24:21 am

You are entitled to your opinion. But the law does not necessarily reflect it.

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Trevor Chase
on December 11, 2017 at 09:34:13 am

"Philosophy is useless; theology is worse." ~Dire Straits, "lndustrial Disease"

Dale Carnegie's unified field theory of human behavior: humans are selfish. l've yet to find an exception. Philosophy is all about persuading others to do what you won't do yourself; religion is about blackmailing them into doing it. :)

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Trevor Chase
on December 11, 2017 at 10:27:53 am

My argument is a moral one -- it is wrong to subject individuals to legal punishment when they have committed no act of aggression. Evidently you disagree. I reject your stance because it is impossible to limit. The great crimes of history all entail government punishment of peaceful individuals. Punishing the owner of this bakery is a small wrong in the great arc of history, but still a wrong that opens the door to more prosecutions of people just for not wanting to associate or contract with someone else. Spiteful suits over hurt feelings ought to be discouraged.

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Liberty51
on December 11, 2017 at 12:52:14 pm

Elane Photography got started back in 2005. Pretending this has anything to do with gay marriage is deception, plain and simple.

That said, if Phillips wins, there better be a wave of "public notice of intent to discriminate" laws. If you wouldn't bake me a cake, you should be brave enough to put it on a sign.

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JohnInCA
on December 11, 2017 at 14:41:15 pm

Not to mention the latest fad, as it appears that two new letters will be added to the LGBTTAAPQ (WHATEVER other silliness). Those letters are "O" AND "s" - and they stand for "objectum sexual" (who makes this crap up?)

https://pjmedia.com/lifestyle/objectum-sexual-os-next-set-letters-lgbtqwtf-acronym/

It would appear the loons are now asking to be *dignified* by having NORMAL human beings respect their right to have marital contracts with chandeliers, statues of liberty, etc.

If this wasn;t so sad, it would be funny.

So if Phillips decided to not bake a wedding cake in the form of a volkswagen, would he be discriminating against an *OS* sexual type or against the emissions cheating Volkswagen company.
Gee, that would be fun - you could have the LGBT etc types battling it out against the enviro-nazis!

Nice world you seek to create, Dawg.

No limits, Bro, no limits!

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gabe
on December 11, 2017 at 17:05:46 pm

L51: "My argument is a moral one — it is wrong to subject individuals to legal punishment when they have committed no act of aggression. "

Explain the morality behind this statement: "l don't want to have to rent a hotel room to dem dirty ni6666as!" Jack Phillips-class spite, which used to be all too common in the South.

L51: "I reject your stance because it is impossible to limit."

YOUR argument is notoriously short on limiting principles. By contrast, the law provides a number of firebrakes designed to limit outrageous abuses.

As for "my stance," it is not mine, but the stance of the law. Justice Antonin Scalia writes (speaking ex cathedra):

"The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, "cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development." Lyng, supra, at 451. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is "compelling" — permitting him, by virtue of his beliefs, "to become a law unto himself," Reynolds v. United States, 98 U. S., at 167 — contradicts both constitutional tradition and common sense."

For good or ll, Colorado exercised its legislative authority to prevent what it determined to be socially harmful conduct. You can respectfully disagree, but it is "their call." Why should Jack Phillips be permitted to become a law unto himself? Explain it to Scalia. :)

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Trevor Chase
on December 11, 2017 at 17:11:23 pm

The law is what it is, gabe. l've lost count of the letters, but there has to be room for your Judge (soon-to-be Sen.) Roy Pedophile in there. :)

Chandeliers can't consent ... although the 2024 VW Tiguan might be able to. :)

Where society goes, l have no control over. But what the law allows, it allows.

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Trevor Chase
on December 12, 2017 at 10:49:11 am

What are you talking about? I specifically said grocery stores SHOULD be included as public accommodation because they are necessary to support travelers. But, businesses other than those I listed should not.

Private business owners should be free to choose which customers they want to serve. The only reason for forcing them to serve all customers is to ensure the right to travel. This has been a core part of the philosophy of liberty for hundreds of years.

The only core principle of liberty related to the free flow of commerce is that GOVERNMENTS should not impose any constraints on that commerce.

You are basically arguing that the government should impose its will on the individual even if there is no justification. What kind of core principle is that?

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John Camburn
on December 12, 2017 at 10:52:51 am

Hey Dawg:

Here is something I stole from Jonathan Adler at Volokh:

"It is well-established that advertising, product labels and other forms of commercial speech are protected by the First Amendment. “The fact that speech is in aid of a commercial purpose does not deprive responded of all First Amendment Protection,” explained the Supreme Court in United States v. United Foods. Commercial speech may not receive quite the same level of protection as political speech, but the protection it receives is significant.

Under current law, restrictions on commercial speech are evaluated under the “Central Hudson” test. Under this test, commercial speech is protected provided it concerns a lawful product and is not misleading. Restrictions on such commercial speech must be justified by a substantial governmental interest. In addition, such restrictions must directly advance the government interest asserted and cannot be more extensive than necessary to serve that interest."

How is that for "sacrificing" commercial speech. As Coach Corso says, taking off his golden Buffaloes helmet, "Not so fast" - .

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gabe
on December 22, 2017 at 09:59:18 am

JohnInCA,

States with Self Defense (i.e. Concealed Carry / Open Carry) laws allow businesses to limit who they serve. The laws allow for "No Gun" signs.

So if we allow businesses to discriminate on 2nd Amendment rights, why not other so called rights?

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Gary
on December 22, 2017 at 11:52:00 am

". . . why not other so called rights?"

Because some of the animals are more equal than others?

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EK

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