Galway university society disbanded for homophobic message

[Brian Peacock]

Homophobia is just a gateway hate. Because of it, now I can't stand bell peppers.

Thing is, discrimination and intolerance are civil rights so long as their expression doesn't cause or threaten to cause an immediate breach of the peace. Therefore, sanctioning someone for "homophobia" is a violation of their free speech rights (in the US), and, if one uses "homophobia" in it's medical meaning, it might well be a violation of the ADA (Americans with Disabilities Act) because it's an affliction that affects day to day living.

Bigotry as an affliction eh?

If an inclination to discrimination (to unjustly, immorally and unlawfully advocate, promote, or facilitate prejudicial treatment of arbitrarily nominated categories of people) is to be considered a manifestation of a pycho-medical condition--which presumable invokes legitimate grounds to put aside any sanctions against discriminating parities that may be provided for in law--then surely those with an inclination to violence (for example) should have similar legal sanctions put aside?

So perhaps those who can't help being bigoted discriminators should be treated like those who cannot help being violent sociopaths; removed to a place of safety for the good of society and so they might receive the appropriate management and treatment for their condition?

Actually, I think the law in this area is significantly less concerned with people's attitudes and opinions than it is with their actions. Anti-discrimination laws are obviously incapable of policing people's thoughts (and it is usually only the bigot who claims they aim to do so), and thus people are free in every sense to have a low or high personal regard for any other person or group. What anti-discrimination laws are concerned with, and attempt to account for, are circumstances where a low or high personal regard for others is used to justify the implementation of differential treatment. It is this action which places the law at odds with people's opinions, but only because the law is necessarily concerned with what takes place within the public sphere.

People are free to express their violent inclinations in private, and though one might have misgivings about whether this is either wise or appropriate it is, at heart, their business. But when those inclinations impact on others in society the law acts to restrict the activities of the violently-inclined and to impose sanctions, if deemed necessary. Similarly, people are free to express their bigoted and discriminatory inclinations in private but when those inclinations impact on others the law acts to restrict their activities and to impose sanctions.

My personal view is that those who advocate or facilitate the differential treatment of people based on arbitrary categorisation are being unduly prejudicial, and consequently the law has a legitimate role to play in limiting their activities, just as the law has a legitimate role in limiting the activities of those who advocate or facilitate violence against others.

[Seth]

Why is fairness less or more important than freedom?

Good question.

[Seth]

Homophobia is just a gateway hate. Because of it, now I can't stand bell peppers.

Thing is, discrimination and intolerance are civil rights so long as their expression doesn't cause or threaten to cause an immediate breach of the peace. Therefore, sanctioning someone for "homophobia" is a violation of their free speech rights (in the US), and, if one uses "homophobia" in it's medical meaning, it might well be a violation of the ADA (Americans with Disabilities Act) because it's an affliction that affects day to day living.

Bigotry as an affliction eh?


If an inclination to discrimination (to unjustly, immorally and unlawfully advocate, promote, or facilitate prejudicial treatment of arbitrarily nominated categories of people) is to be considered a manifestation of a pycho-medical condition--which presumable invokes legitimate grounds to put aside any sanctions against discriminating parities that may be provided for in law--then surely those with an inclination to violence (for example) should have similar legal sanctions put aside?

So perhaps those who can't help being bigoted discriminators should be treated like those who cannot help being violent sociopaths; removed to a place of safety for the good of society and so they might receive the appropriate management and treatment for their condition?

Well, I was being more than a little sarcastic...I hear they tried that sort of thing in the Soviet Union. I'm not sure how efficacious the treatment was.

Then again one might also say that homosexuality, because it occurs in a very small minority of humans, is a psycho-medical condition based on a genetic aberration that might be effectively treated with gene therapy and psychoanalysis.

Slippery slope that, eh?

Actually, I think the law in this area is significantly less concerned with people's attitudes and opinions than it is with their actions. Anti-discrimination laws are obviously incapable of policing people's thoughts (and it is usually only the bigot who claims they aim to do so), and thus people are free in every sense to have a low or high personal regard for any other person or group. What anti-discrimination laws are concerned with, and attempt to account for, are circumstances where a low or high personal regard for others is used to justify the implementation of differential treatment. It is this action which places the law at odds with people's opinions, but only because the law is necessarily concerned with what takes place within the public sphere.

People are free to express their violent inclinations in private, and though one might have misgivings about whether this is either wise or appropriate it is, at heart, their business. But when those inclinations impact on others in society the law acts to restrict the activities of the violently-inclined and to impose sanctions, if deemed necessary. Similarly, people are free to express their bigoted and discriminatory inclinations in private but when those inclinations impact on others the law acts to restrict their activities and to impose sanctions.

My personal view is that those who advocate or facilitate the differential treatment of people based on arbitrary categorisation are being unduly prejudicial, and consequently the law has a legitimate role to play in limiting their activities, just as the law has a legitimate role in limiting the activities of those who advocate or facilitate violence against others.

I don't disagree in principle. Certainly one's status (black, female, homosexual, etc.) even as peaceably expressed in one's actions, affectations or dress should not be a justification for imposition on the individual's liberties in and of itself, particularly in any sort of violent fashion. But the essential question of whose rights should prevail when the interaction is more than incidental public contact remains something of a conundrum. In the private sphere (ie: non-commercial interactions or opinions) it seems clear that the right of the bigot to be a bigot, and even to express that bigotry, outweighs the right of the person being reviled to be free of the bigoted opinions or otherwise peaceable actions of the bigot. Thus, if the KKK wishes to advocate racial segregation and white supremacy by peacefully marching or expressing their opinions that must be allowed, even if doing so disturbs or upsets others. Members of the KKK must also be free to segregate themselves by avoiding or eschewing contact with those whom they consider to be inferior, just as members of minorities must be free to segregate themselves into minority-dominated communities. So long as it's a voluntary and peaceable choice being made, the right to peaceably discriminate with regard to with whom one associates is of supreme importance as a manifestation of individual liberty.

The nut of this issue is the commercial sphere of society and how the rights of the business owner, which are not diminished by his being engaged in commerce, conflict with feelings, opinions, desires and needs of marginalized groups who suffer widespread discrimination as a class.

The last is important. Racial anti-discrimination laws of the Civil Rights era in the US were based upon and justified by, as Congress determined, "widespread and pervasive" racial discrimination that was factually, not theoretically, interfering with both interstate commerce and was so egregious and oppressive as to violate the fundamental civil rights of blacks to freedom of travel and freedom of association. It was the egregious nature of the violations by bigots in the south of the rights of blacks manifested as restrictions on activities and services by force of law that were available to others of different race that raised the bigotry to the level of a civil rights violation that required and justified Congressional action to keep the peace and protect the rights of all persons.

But I have to question whether or not a cake-designer's refusal to create a cake for a gay couple rises to the level of discriminatory oppression that justifies infringing upon that individual's personal rights of conscience, religion and freedom of association. Perhaps if every cake-baker in the country refused to make wedding cakes for gays I might be convinced that the rights of homosexuals as a class outweigh the individual rights involved, but I'm afraid I can't see this particular incident as rising to the level that justifies infringement on the rights of the cake-baker in this instance.

It's not just a matter of declaring that "descrimination" is a bad thing and then outlawing all forms of discrimination, it's a matter of balancing the competing rights involved on a case by case basis unless the discriminatory behavior is so pervasive and widespread as to constitute a threat to public peace and order.

Passing (or rather repealing) a law that protects gays against criminal prosecution for "being gay" or for engaging in private sexual conduct is appropriate because the government has no freedom of association or religion rights to be defended. It's up to society to restrain its public servants in the creation and enforcement of its laws based on how the public wishes society to be constituted consistent with the necessary respect for individual rights. This goes both ways though. The individual cake-baker must have his rights respected just as much as the individual gay person must. So the question becomes whether or not the gay person has a "right" to compel the cake-baker to produce a product suitable to the gay person that overcomes the cake-baker's fundamental civil rights to decline to do so based on both his right to freedom of association and his right to free exercise of religion?

I'm afraid I have to say that the gay person does not have such a right. As a photographer, I would refuse to take photographs of a neo-nazi or other hate group or indeed anyone I found to be personally offensive or distasteful to me because my right not to be forced to put my artistic talents into the service of someone I do not wish to be associated with, for whatever reason, outweighs their desire to have me create art on their behalf. I have to agree that forcing me to do so would jeopardize my business (which might specialize in photographing Jewish ceremonies) should it become known that I had worked on behalf of neo-nazis.

If the cake baker has a genuine religious objection to placing his creative talents in the service of gays, then in my opinion his rights outweigh the desires of the gays because freedom of religious expression is an extremely fundamental right that cannot be infringed up on lightly, and indeed can only be infringed upon for the most urgent of public needs and only in the least intrusive manner possible. Given the fact that there are wedding-cake makers who are happy to serve gays all over the place, insisting that this one individual do so by force of law clearly violates his rights of religious conscience.

It may be justifiable for government to require that a cake-baker SELL a cake (which is the commercial component of the transaction) that's available for anyone to buy that has no particularized artistic components to a gay person without regard to that person's sexual identity (and indeed why would the subject be brought up in the first place), but I cannot agree that a gay person's DESIRE to have a wedding cake designed and created by a specific individual to his or her specifications as a celebration of his or her sexual identity and commitment in any way outweighs the religious and associational rights of the individual cake-maker...or the individual wedding photographer.

This is a nuanced issue that requires close analysis on a case-by-case basis because of the specifics of the situation and the proper balancing of the competing rights is more complex than an over-broad law prohibiting discrimination can justly address.

[piscator]

Homophobia is just a gateway hate. Because of it, now I can't stand bell peppers.

Thing is, discrimination and intolerance are civil rights so long as their expression doesn't cause or threaten to cause an immediate breach of the peace. Therefore, sanctioning someone for "homophobia" is a violation of their free speech rights (in the US), and, if one uses "homophobia" in it's medical meaning, it might well be a violation of the ADA (Americans with Disabilities Act) because it's an affliction that affects day to day living.

Bigotry as an affliction eh?

If an inclination to discrimination (to unjustly, immorally and unlawfully advocate, promote, or facilitate prejudicial treatment of arbitrarily nominated categories of people) is to be considered a manifestation of a pycho-medical condition--which presumable invokes legitimate grounds to put aside any sanctions against discriminating parities that may be provided for in law--then surely those with an inclination to violence (for example) should have similar legal sanctions put aside?

So perhaps those who can't help being bigoted discriminators should be treated like those who cannot help being violent sociopaths; removed to a place of safety for the good of society and so they might receive the appropriate management and treatment for their condition?

Actually, I think the law in this area is significantly less concerned with people's attitudes and opinions than it is with their actions. Anti-discrimination laws are obviously incapable of policing people's thoughts (and it is usually only the bigot who claims they aim to do so), and thus people are free in every sense to have a low or high personal regard for any other person or group. What anti-discrimination laws are concerned with, and attempt to account for, are circumstances where a low or high personal regard for others is used to justify the implementation of differential treatment. It is this action which places the law at odds with people's opinions, but only because the law is necessarily concerned with what takes place within the public sphere.

People are free to express their violent inclinations in private, and though one might have misgivings about whether this is either wise or appropriate it is, at heart, their business. But when those inclinations impact on others in society the law acts to restrict the activities of the violently-inclined and to impose sanctions, if deemed necessary. Similarly, people are free to express their bigoted and discriminatory inclinations in private but when those inclinations impact on others the law acts to restrict their activities and to impose sanctions.

My personal view is that those who advocate or facilitate the differential treatment of people based on arbitrary categorisation are being unduly prejudicial, and consequently the law has a legitimate role to play in limiting their activities, just as the law has a legitimate role in limiting the activities of those who advocate or facilitate violence against others.

Well put, BP. It's a category error to assert that one has a civil right to be as prejudiced as one wants. The law doesn't apply to thoughts, only actions.
It is, however, illegal in most places our posters live to discriminate based upon certain non-arbitrary differences in people.
As such, it's incorrect to assert that discrimination is a civil right.

[Seth]

Well put, BP. It's a category error to assert that one has a civil right to be as prejudiced as one wants. The law doesn't apply to thoughts, only actions.
It is, however, illegal in most places our posters live to discriminate based upon certain non-arbitrary differences in people.
As such, it's incorrect to assert that discrimination is a civil right.

No it's not. We discriminate all the time based upon non-arbitrary differences in people. Discrimination in this context is a measure of individual social acceptance. You would not, I suspect, argue that it's wrong to discriminate against pedophiles. Or outlaw biker gangs. Or heroin dealers.

The question here is what is the just remit of society in imposing it's collective view of what sort of discrimination is appropriate and what sort is not.

If your thesis is that it's up to the society to determine how far into the individual rights of freedom of (dis)association and religious practice government may intrude, them presumably you would have no objection to the decision of the Supreme Court of India that outlaws homosexual acts altogether.

If you disagree with that democratic judgment, then how exactly should such decisions be made?

In other words, a fallacious appeal to common practice, which is exactly what you have presented, is insufficient as an argument in support of your position.

You talk about thoughts and actions but what you forget is that walking into a wedding-cake shop, announcing that you are gay and you demand that the baker design and create a cake to celebrate your gay nuptials is not a "thought," it's an "action." More importantly, by using the law as a blunt instrument of coercion that action compels the cake baker to do something that he does not want to do and indeed has a deep moral objection to doing.

This is nothing less than an initiation of force against the baker by the gay couple, and it's an egregious and immoral invasion of his civil rights. It amounts to involuntary servitude because the law threatens incarceration and punishment if he fails to labor at the command of the gay couple. On that basis alone the law should be struck down as flatly unconstitutional, prohibited by the 13th Amendment.

More pertinently, forcing the cake baker to violate his religious beliefs to serve the needs of gays is a direct violation of the United States Code:

Victims of human trafficking and other conditions of forced labor are commonly coerced by threat of legal actions to their detriment. Victims of forced labor and trafficking are protected by Title 18 of the U.S. Code.[135]

Title 18, U.S.C., Section 241 – Conspiracy Against Rights:

Conspiracy to injure, oppress, threaten, or intimidate any person's rights or privileges secured by the Constitution or the laws of the United States[136]

Title 18, U.S.C., Section 242 – Deprivation of Rights Under Color of Law:

It is a crime for any person acting under color of law (federal, state or local officials who enforce statutes, ordinances, regulations, or customs) to willfully deprive or cause to be deprived the rights, privileges, or immunities of any person secured or protected by the Constitution and laws of the U.S. This includes willfully subjecting or causing to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race.

So in this case I'm suggesting that the baker should file a federal civil rights complaint against the gays, the state legislature, and the court for deprivation of civil rights under color of law.

[piscator]

You talk about thoughts and actions but what you forget is that walking into a wedding-cake shop, announcing that you are gay and you demand that the baker design and create a cake to celebrate your gay nuptials is not a "thought," it's an "action." More importantly, by using the law as a blunt instrument of coercion that action compels the cake baker to do something that he does not want to do and indeed has a deep moral objection to doing.

This is nothing less than an initiation of force against the baker by the gay couple, and it's an egregious and immoral invasion of his civil rights. It amounts to involuntary servitude because the law threatens incarceration and punishment if he fails to labor at the command of the gay couple. On that basis alone the law should be struck down as flatly unconstitutional, prohibited by the 13th Amendment.

More pertinently, forcing the cake baker to violate his religious beliefs to serve the needs of gays is a direct violation of the United States Code:
[snip]

So in this case I'm suggesting that the baker should file a federal civil rights complaint against the gays, the state legislature, and the court for deprivation of civil rights under color of law.

Seth, your tin ear with regard to anything legal is at least consistent.

Just so you know, the legal standard in these "religious persecution" cases is that a Constitutional law that applies to everyone ("Legal and neutral") does not relieve the religious whacko of his obligation to abide by the law.
1. While it doesn't have a gay marriage law, Colorado has a very Constitutional anti discrimination law that explicitly includes "Sexual orientation". It's been around for years.
2. The homophobic cake shop admitted they have a standing policy of discrimination against gays.
3. Two gay guys went into the religious whacktard cake shop and asked about a wedding cake. They didn't even specify it was for them, or even get to discuss the design of the cake before they were refused service. The cake shop admitted this.


1+2+3=WHAM! Summary Judgement, you prejudiced assholes


I applaud this decision by Colorado. As JFK said the day he smacked down George Wallace, 'When the rights of any of us are violated by discrimination, the rights of all of us are violated.'

[Seth]

You talk about thoughts and actions but what you forget is that walking into a wedding-cake shop, announcing that you are gay and you demand that the baker design and create a cake to celebrate your gay nuptials is not a "thought," it's an "action." More importantly, by using the law as a blunt instrument of coercion that action compels the cake baker to do something that he does not want to do and indeed has a deep moral objection to doing.

This is nothing less than an initiation of force against the baker by the gay couple, and it's an egregious and immoral invasion of his civil rights. It amounts to involuntary servitude because the law threatens incarceration and punishment if he fails to labor at the command of the gay couple. On that basis alone the law should be struck down as flatly unconstitutional, prohibited by the 13th Amendment.

More pertinently, forcing the cake baker to violate his religious beliefs to serve the needs of gays is a direct violation of the United States Code:
[snip]

So in this case I'm suggesting that the baker should file a federal civil rights complaint against the gays, the state legislature, and the court for deprivation of civil rights under color of law.

Seth, your tin ear with regard to anything legal is at least consistent.

I'm talking about what is right, not necessarily what the letter of the law says, because the law is often a ass.

Just so you know, the legal standard in these "religious persecution" cases is that a Constitutional law that applies to everyone ("Legal and neutral") does not relieve the religious whacko of his obligation to abide by the law.

Unless the law is unconstitutional, in which case it's no law at all. That's what the appeals process will tell us.

1. While it doesn't have a gay marriage law, Colorado has a very Constitutional anti discrimination law that explicitly includes "Sexual orientation". It's been around for years.

That doesn't mean it's not open to a constitutional challenge, which is exactly what needs to happen. This is a unique situation where there is more involved than simply selling a shelf product or menu item to a minority class, and it needs to be reviewed by higher courts in that light.

2. The homophobic cake shop admitted they have a standing policy of discrimination against gays.

So what? It's his constitutional right not to associate with gays and to refuse to violate his religious beliefs.

3. Two gay guys went into the religious whacktard cake shop and asked about a wedding cake. They didn't even specify it was for them, or even get to discuss the design of the cake before they were refused service. The cake shop admitted this.

Again, so what? It appears that they went there specifically to provoke his response and likely were not even genuinely interested in having him make them a cake. They made a specific point of saying it was for a gay wedding, something that they need not have mentioned at all, but did. This tells me that they went there with the deliberate intent of setting the cake-shop owner up for a "violation" from which THEY can make money and forward their gay political agenda. I don't think that their political agenda should outweigh his religious rights.

I applaud this decision by Colorado. As JFK said the day he smacked down George Wallace, 'When the rights of any of us are violated by discrimination, the rights of all of us are violated.'

He's the one being discriminated against and it's his rights that are being violated by the State of Colorado. He was evidently deliberately targeted by gay activists out to make some money and a political point. His religious beliefs take precedence over their desire to force him to labor on his behalf, and that's the argument he should make before, ultimately, the United States Supreme Court.

Anyway, it ain't over till it's over, and there's plenty of appeals left to go in this case. And it will become particularly interesting when the Democrat party loses control of the Colorado legislature as a result of its overreaches...like an anti-discrimination law that forces individuals to violate their religious beliefs.

[piscator]

He's the one being discriminated against and it's his rights that are being violated by the State of Colorado. He was evidently deliberately targeted by gay activists out to make some money and a political point. His religious beliefs take precedence over their desire to force him to labor on his behalf, and that's the argument he should make before, ultimately, the United States Supreme Court.

Anyway, it ain't over till it's over, and there's plenty of appeals left to go in this case. And it will become particularly interesting when the Democrat party loses control of the Colorado legislature as a result of its overreaches...like an anti-discrimination law that forces individuals to violate their religious beliefs.

They've prefucked themselves, Lester Maddox-style, for any appeals on the same grounds by joyously admitting their policy of discrimination and "witnessing" that they didn't even discuss the cake in question. And the Administrative Court judge nailed their coffin shut by properly citing a thread of decisions all the way up to SCOTUS.
The only avenue open to them is to challenge the constitutionality of anti discrimination laws in toto, which is a dead horse.

[Seth]

He's the one being discriminated against and it's his rights that are being violated by the State of Colorado. He was evidently deliberately targeted by gay activists out to make some money and a political point. His religious beliefs take precedence over their desire to force him to labor on his behalf, and that's the argument he should make before, ultimately, the United States Supreme Court.

Anyway, it ain't over till it's over, and there's plenty of appeals left to go in this case. And it will become particularly interesting when the Democrat party loses control of the Colorado legislature as a result of its overreaches...like an anti-discrimination law that forces individuals to violate their religious beliefs.

They've prefucked themselves, Lester Maddox-style, for any appeals on the same grounds by joyously admitting their policy of discrimination and "witnessing" that they didn't even discuss the cake in question. And the Administrative Court judge nailed their coffin shut by properly citing a thread of decisions all the way up to SCOTUS.
The only avenue open to them is to challenge the constitutionality of anti discrimination laws in toto, which is a dead horse.

Wrongo. Just because the judge cited a "thread" doesn't mean there is no appeal. That's the great thing, you can always appeal, and if you come up with a good argument based on the facts of the case you can get a reversal. You see, the political winds are shifty, and the "religious right" is getting pissed off at having their religious liberties attacked and infringed and there's starting to be push-back on the Atheist religious agenda that's been in play recently.

You see, it doesn't matter what the design of the cake might have been, what matters is whether the religious rights of the baker were interfered with by the state, which they were.

One of the rationales used to support racial anti-discrimination laws in the face of purported religious objections to, let's say, serving blacks at a lunch counter or other "race mixing" pseudo-arguments is that there was no credible evidence in the record at the time that prohibitions against serving blacks or making them sit in the back of the bus was legitimately a part of any religion, so such claims were dismissed as frivolous.

One cannot say the same thing about homosexuality and Christianity, which has by and large held a serious proscription against homosexual activities since the very beginning of the religion. That makes a state-sponsored demand to participating in a gay marriage the equivalent (to the devout Christian) of the state telling Christians that they must participate in satanistic worship.

So, we have different facts involved, which makes the case ripe for a nuanced review of the law, which is what should happen, because as I say, the desire of a gay individual to commission a cake for a gay wedding does not, and should not supersede the First Amendment rights of a religious person to decline to participate in that act, just as it would be unconstitutional infringement on religious freedom for a neo-nazi to go into a Kosher butcher shop and demand that the butcher slaughter a pig so he can have bacon.

The distinction involved is nuanced because it involves a legitimate religious belief fundamental to the baker's (or butcher's) very religious identity, which makes it reasonable to examine the scope of the anti-discrimination law again because it is facially over-broad as applied in this case because it trenches wrongfully on a fundamental civil right.

This does not mean that gays would or should be open to just any pseudo-religious objection to serving them, but if the defendant can show that condoning or supporting homosexual acts is in fact a validly-held individual religious belief, then THAT PERSON may be relieved of liability under the general anti-discrimination law as applied in this particular case. And that's correct. Each such case should be examined on it's individual merits to discern if the religious beliefs involved are legitimate, and if they are, then the individual must be exempted from that particular application of the law. The court need not overturn the entire law because it may not be facially invalid, but rather invalid only as applied in this case. "Unconstitutional overbreadth as applied" is a perfectly valid constitutional argument that is upheld frequently.

[piscator]

Don't try to twist the court's Findings of Fact.

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.”

http://www.scribd.com/doc/189976204/Ini ... eshop-Case


This was not a religious or personal choice not to associate or do business with gay people. This was an overtly political act. An illegal one under Colorado law.
The appellate courts will decide that the taxpayer's money is better spent on entitlement programs than on this Tea Party shit show. But I'm sure attorneys are already foaming at the mouth at this opportunity to tell congregations far and wide just exactly what they want to hear.
I hope you can afford to contribute generously when the hat comes your way!

[Seth]

Don't try to twist the court's Findings of Fact.

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.”

http://www.scribd.com/doc/189976204/Ini ... eshop-Case


This was not a religious or personal choice not to associate or do business with gay people. This was an overtly political act. An illegal one under Colorado law.

Actually, it's proof of exactly what I've been saying. The baker was complying with the anti-discrimination law by offering to sell anything other than a "gay wedding" cake, and his reason for declining to do so was based on his religious beliefs.

The appellate courts will decide that the taxpayer's money is better spent on entitlement programs than on this Tea Party shit show.

That's not how appellate courts work.

But I'm sure attorneys are already foaming at the mouth at this opportunity to tell congregations far and wide just exactly what they want to hear.
I hope you can afford to contribute generously when the hat comes your way!

Doesn't matter, since I'm a non-theistic Tolerist™ and I neither congregate with nor contribute to any church.

After reading the finding (and thanks for linking to it) I find my analysis to be correct. The ALJ's decision is certainly open to appeal, particularly as regards both the claim that it is not a law of "general applicability" by virtue of the exceptions it provides and under the "hybrid" section that a higher level of scrutiny is required because of the multiple rights involved. The most egregious error however was the ALJ's dismissal of the Free Speech argument based on the fact that no specific cake design was discussed. The issue is not the content of the speech made, it's the demand that speech be compelled even in discussing the details of the cake. The mistake of the defendant's counsel was in not raising the 13th Amendment argument of involuntary servitude, which is a more compelling argument that even the free speech argument.

Moreover, the ALJ, as was his duty, is to presume constitutionality of the statutes, and he says as much where he admits no authority to rule on the constitutionality of the law. While he goes through an "as applied" analysis, which is itself subject to appeal, the addition of sexual orientation as a protected class can most certainly be challenged on appeal, both facially and as applied, based on both the religious objection and the compelled association objection.

This is not to say that the defendant would prevail on appeal, that's a much more complex issue, but to say that this ALJ decision is unappealable and absolute shows a gross misunderstanding of the law itself.

[piscator]

Don't try to twist the court's Findings of Fact.

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.”

http://www.scribd.com/doc/189976204/Ini ... eshop-Case


This was not a religious or personal choice not to associate or do business with gay people. This was an overtly political act. An illegal one under Colorado law.

Actually, it's proof of exactly what I've been saying. The baker was complying with the anti-discrimination law by offering to sell anything other than a "gay wedding" cake, and his reason for declining to do so was based on his religious beliefs.

You evidently skipped the part about how wedding cakes are not protected speech, but here's what the court says about your compassionate support for Defendants' religious overreach [italics the Court's]:

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; specifically, Respondents refusal to make a wedding cake for a same-sex marriage due to a religious conviction that same-sex marriage is abhorrent to God. Whether regulation of conduct is permissible depends very much upon the facts of the case. 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.
...the Supreme Court has held that “activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare.” ... To excuse all religiously-motivated conduct from state control would “permit every citizen to become a law unto himself". Reynolds v. United States, 98 U.S. 145 (1879); upheld a law restricting religious-based child labor, Prince v. Massachusetts, 321 U.S. 158 (1944); upheld a Sunday closing law that adversely affected Jewish businesses, Braunfeld v. Brown, 366 U.S. 599 (1961); upheld the government’s right to collect Social Security taxes from an Amish employer despite claims that it violated his religious principles, United States v. Lee, 455 U.S. 252 (1982); and upheld denial of unemployment compensation to persons who were fired for the religious use of peyote, Employment Division v. Smith, supra.
...

As a general rule, when the Court has held religious-based conduct to be free from regulation, “the conduct at issue in those cases was not prohibited by law”, Employment Division v. Smith, 494 U.S. at 876; the freedom asserted did not bring the appellees “into collision with rights asserted by any other individual", Braunfeld v. Brown, 366 U.S. at 604 (“It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin”); and the regulation did not involve an incidental burden upon a commercial activity.

Respondents’ refusal to provide a cake for Complainants’ same-sex wedding is distinctly the type of conduct that the Supreme Court has repeatedly found subject to legitimate regulation. Such discrimination is against the law (§ 24-34-601. C.R.S.); it adversely affects the rights of Complainants to be free from discrimination in the marketplace; and the impact upon Respondents is incidental to the state’s legitimate regulation of commercial activity. Respondents therefore have no valid claim that barring them from discriminating against same-sex customers violates their right to free exercise of religion.
Conceptually, Respondents’ refusal to serve a same-sex couple due to religious objection to same-sex weddings is no different from refusing to serve a biracial couple because of religious objection to biracial marriage. However, that argument was struck down long ago in Bob Jones Univ. v. United States, supra

The appellate courts will decide that the taxpayer's money is better spent on entitlement programs than on this Tea Party shit show.

That's not how appellate courts work.

I think we all know that, Seth.

But I'm sure attorneys are already foaming at the mouth at this opportunity to tell congregations far and wide just exactly what they want to hear.
I hope you can afford to contribute generously when the hat comes your way!

Doesn't matter, since I'm a non-theistic Tolerist™ and I neither congregate with nor contribute to any church.

I imagine your contributions to this forum are, however, much appreciated by The Greater Church of Mammon.

After reading the finding (and thanks for linking to it) I find my analysis to be correct.

Question begging. Moreover, you'll abide by the court's analysis no matter how at variance with your ex recto presuppositions.

[Seth]

And now it's come up again in a different context, that being Scalia's "hybrid rights" construct in the 2006 Smith case, as elucidated in a case out of Utah regarding a law that makes "cohabitating" for religious reasons (polygamy) a crime in which the US District Court judge ruled that the part of the anti-bigamy statute that makes religious cohabitation illegal is unconstitutional.

In considering constitutional challenges under the Smith hybrid rights paradigm, the Tenth Circuit has observed that Smith “carved out an exception for ‘hybrid rights’ claims, holding that a party could establish a violation of the free exercise clause even in the case of a neutral law of general applicability by showing that the challenged governmental action compromised both the right to free exercise of religion and an independent constitutional right. ”Grace United Methodist Church v. City of Cheyenne Board of Adjustment, 451 F.3d 643, 655(10th Cir. 2006). In Axson-Flynn v. Johnson, the Tenth Circuit explained that “when a free exercise claim is coupled with some other constitutional claim (such a free speech claim), heightened scrutiny may be appropriate.” 356 F.3d 1277, 1295 (10th Cir. 2004). Source

Three different fundamental rights are at issue here: The right to free exercise of religion; the right to freedom from compelled speech (which includes symbolic speech); and the right to be free from involuntary servitude.

The issue is whether the Colorado statute can withstand a hybrid rights analysis, which I doubt. The reason I doubt it is because Colorado's anti-discrimination laws have been upheld on a "rational basis" test that says that the government has a "rational basis" to prohibit discrimination in commerce, but it's far from clear whether the gay rights statute can survive a strict scrutiny examination, which is what the "hybrid rights" construct requires. Under strict scrutiny the following questions must be answered affirmatively, and the burden is upon the government to provide the evidence supporting the infringement of the rights of the baker. This is known as the "Lemon Test."

Does the addition of sexual preference as a protected class to the anti-discrimination statute serve a compelling government need, both facially and as applied?

Does the addition of sexual preference as a protected class in the anti-discrimination statute either advance or inhibit religion?

Does the actual mechanism of the law, both facially and as applied, constitute the narrowest possible infringement on the rights of the baker that actually achieves the legitimate governmental purpose of the statute.

There are other issues as well, including an analysis of whether or not the statute is operatively a statute of neutral application that would permit an incidental infringement on the Free Exercise rights of the baker.

In short, in part because more than one fundamental right is affected by this statute, the statute itself is open to examination of its constitutionality based on a strict scrutiny standard, which is much more difficult to overcome than mere rational basis.

[piscator]

If you feel stymied enough by the Colorado court's well written decision to rip off some L2's post from another forum for the purpose of blatantly moving goalposts, prepare to encounter Heart of Atlanta Motel v. United States.
I'm sure a stolid State's Rights advocate like yourself would agree it's well within Colorado's purview to regulate intrastate trade (the Federal courts certainly will in the off chance they have to dispose of this), and the Supreme Court's effortless rejection of improper appeals to the 5th ["compelled speech"] and 13th Amendments ["involuntary servitude"] in Heart of Atlanta Motel v. United States serve as a model for smacking down tired Segregationist arguments wherever and whenever they crop up in America.


https://supreme.justia.com/cases/federa ... /case.html


Your source is getting way ahead of himself with his reference to the Lemon Test, BTW. But perhaps he can rely on the 14th Amendment [Due Process] to attempt to make a federal case out of this and, as I've already mentioned, attempt to flog dead horses and put all anti-discrimination laws on trial?

[Seth]

If you feel stymied enough by the Colorado court's well written decision to rip off some L2's post from another forum for the purpose of blatantly moving goalposts, prepare to encounter Heart of Atlanta Motel v. United States.
I'm sure a stolid State's Rights advocate like yourself would agree it's well within Colorado's purview to regulate intrastate trade

Such certitude! I guess you should be on the Supreme Court...but you ain't.

(the Federal courts certainly will in the off chance they have to dispose of this),and the Supreme Court's effortless rejection of improper appeals to the 5th ["compelled speech"] and 13th Amendments ["involuntary servitude"] in Heart of Atlanta Motel v. United States serve as a model for smacking down tired Segregationist arguments wherever and whenever they crop up in America.

Except that Heart of Atlanta Motel is a federal case based on Congress' authority to regulate interstate commerce that applies to specifically described "places of public accommodation" in the federal law which do not happen to include "wedding cake bakers" as places of public accommodation or homosexuals as a protected class. Federal law does not prohibit discrimination based on sexual preference. Colorado's law goes far beyond the four corners of HOAM because, for one thing, no Free Exercise of Religion, Freedom of (dis)Association, or Freedom of Speech violations were raised in the case. Therefore HOAM has limited applicability as applied to Colorado law.

Further, the Colorado Constitution's free speech (and association) section provides more protection than does the US Constitution:

Section 10. FREEDOM OF SPEECH AND PRESS

No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.

Annotations:

ORDER OF THE DISTRICT COURT TO GIVE NOTICE TO CUSTOMERS OF CLASS ACTION LAWSUIT DOES NOT VIOLATE MOUNTAIN BELL'S RIGHT TO FREE SPEECH. The notice sent by the defendant in this case was content-neutral and it did not result in the utility being compelled to be associated with a message with which it did not agree. Mountain States v. District Court, 778 P.2d 667 (Colo. 1989), cert. denied, 493 U.S. 983, 110 S. Ct. 519, 107 L. Ed. 2d 520 (1989).

In this case the "free speech" involved is the right to not be associated with a message with which the baker does not agree. Because the anti-discrimination law is not "content neutral", it is in fact quite content-specific by being aimed at suppressing discrimination against homosexuals without regard to or allowance for legitimate religious objections, the above case shows that the compelled associational and expressive requirement inherent in the law burdens the baker's right not to be associated with gays or their personal or political opinions about gay marriage.

Section 26. SLAVERY PROHIBITED
There shall never be in this state either slavery or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted.

I include this to demonstrate that the "involuntary servitude" component of my argument is cognizable under the state Constitution, irrespective of the federal interpretations in HOAM.

Section 4. RELIGIOUS FREEDOM
The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter be guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his opinions concerning religion; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness or justify practices inconsistent with the good order, peace or safety of the state. No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent. Nor shall any preference be given by law to any religious denomination or mode of worship. (emphasis added)

The protection of religious freedom is substantially stronger and more detailed in the Colorado Constitution than the First Amendment right is. In this case, the anti-discrimination law, by refusing to acknowledge an exception for religious beliefs denies the baker his civil and political rights and privilege to not associate with or be seen to support in any way the GBLT political agenda of forcing persons in commerce to serve their interests.

A legislative enactment which infringes on a fundamental right or which burdens a suspect class is constitutionally permissible only if it is "necessary to promote a compelling state interest," Dunn v. Blumstein, 405 U.S. 330, 342, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972), and does so in the least restrictive manner possible. Plyler v. Doe, 457 U.S. 202, 217, 102 S.Ct. 2382, 2395, 72 L.Ed.2d 786 (1982).

This is the strict scrutiny standard that must be applied to the anti-discrimination law, but which has not been so applied in judicial review as yet.

Freedom of religion is expressly guaranteed by both the First Amendment to the United States Constitution and article II, section 4 of the Colorado Constitution and stands at the core of our Nation's history and tradition. It is among the highest values of our society. See Murdock v. Pennsylvania, 319 U.S. 105, 115-17, 63 S.Ct. 870, 876-77, 87 L.Ed. 1292 (1943). There can be little doubt that ensuring religious freedom is a compelling governmental interest.

"Ensuring religious freedom" is a "compelling governmental interest," which means that any statute which interferes with or infringes upon religious freedom is subject to strict scrutiny review.

In Smith, the plaintiff challenged the ruling of the California Commission of Fair Employment and Housing which found that she had impermissibly discriminated, based on their marital status, against a couple who sought to rent housing. The couple was unmarried and the plaintiff refused to rent to them on the grounds that doing so would violate her deeply-held religious beliefs. Plaintiff was ordered to cease and desist marital discrimination; post a notice announcing her violation of California law for ninety days; permanently post a notice to rental applicants of their rights and remedies under California antidiscrimination laws; and sign both notices and provide copies to each person who subsequently expressed an interest in renting her property. Id. 30 Cal. Rptr.2d at 397-98.

The California court of appeals concluded that the commission's order substantially burdened plaintiff's free exercise rights because she "cannot remain faithful to her religious convictions and beliefs and yet rent to unmarried couples." Id. 30 Cal.Rptr.2d at 399.[6]

This is a reference by the Colorado Supreme Court in their ruling overturning Amendment 2, which prohibited government from giving gays preference in law, a state constitutional amendment made by citizen petition. The amendment was thrown out on the grounds that it singled out gays and excluded them from the political and legislative process and because it did not narrowly address a compelling government interest. The point here is that despite Amendment 2's unconstitutionality, the Colorado Supreme Court made numerous references to the issue of religious freedom on the part of those compelled to associate with gays, as you will see below.

To the contrary, an equally effective, and substantially less onerous way of accomplishing that purpose simply would be to require that antidiscrimination laws which include provisions for sexual orientation also include exceptions for religiously-based objections. This is precisely what the Denver antidiscrimination laws provide. Denver, Colo., Rev.Mun.Code art. IV, §§ 28-92, 28-93, 28-95 to 28-97 (1992 Supp.). Similar exemptions for religious organizations are found in federal antidiscrimination statutes. See, e.g., 42 U.S.C. § 2000e-1 (1994 Supp.) (exempting religious organizations from the prohibition against employment discrimination); 42 U.S.C. § 3607 (1994 Supp.) (exemption for religious organizations in housing and public accommodation).[7]

To the extent that antidiscrimination laws protecting gay men, lesbians, and bisexuals have the potential to implicate associational privacy rights, a narrower way of avoiding this conflict would be to exempt the sort of intimate associations identified in Roberts from the scope of such laws. For instance, landlords could be allowed to discriminate against homosexuals in the rental of owner-occupied housing the so-called "Mrs. Murphy's Boarding House" exception. See, e.g., Fair Housing Act, 42 U.S.C. § 3603(b) (1988 & 1994 Supp.) (exempting certain owner-occupied housing from the Fair Housing Act); Statutory History of the United States: Civil Rights, Part II 1741-52, 1805-06 (B. Schwartz ed. 1970) (detailing legislative history and policies underlying "Mrs. Murphy's Boarding House" exemption in Fair Housing Act). Similar exemptions already exist under Colorado law. For instance, Denver's antidiscrimination ordinance exempts from its housing and public accommodation provisions multiple unit dwellings of not more than two units where one of the units is owner occupied. Denver, Colo., Rev.Mun. Code art. IV, §§ 28-95(b)(2) & 28-96(b)(2) (1991). Similarly, the Colorado Civil Rights statute exempts from the definition of "housing" any room offered for rent or lease in a single-family dwelling occupied in part by the owner. § 24-34-501(2), 10A C.R.S. (1988).

THE FIRST AMENDMENT GUARANTEE OF FREEDOM OF EXPRESSION INCLUDES FREEDOM OF ASSOCIATION and guarantees the right to associate or refuse to associate with whomever one chooses. Brandon v. Springspree, Inc., 888 P.2d 357 (Colo. App. 1994).

The point here is that the statute has never been tested for constitutionality under the strict scrutiny standard, and it's ripe for review in this case for that reason.

Your source is getting way ahead of himself with his reference to the Lemon Test, BTW. But perhaps he can rely on the 14th Amendment [Due Process] to attempt to make a federal case out of this and, as I've already mentioned, attempt to flog dead horses and put all anti-discrimination laws on trial?

Strawman. As both the California court of appeals and the Colorado Supreme Court acknowledge, there is a legitimate concern when it comes to accommodating gays where that accommodation conflicts with individual religious belief and practice. Indeed, in other spheres, such as housing, the law includes an exception for landlords of small units who have religious objections to renting to gays. This makes enforcement of the law as it pertains to compelling a baker to exercise his craft on behalf of gays in violation of his religious rights even more of a wrong, and it implicates equal protection issues as well, so now we have yet another brick in the wall. If it's okay for Mrs. Murphy to discriminate against gays in her boarding house, why is it not okay for a wedding-cake designer and baker to do the same?

The information above confirms my opinion that there is plenty of room in this particular case for a strict-scrutiny review of the anti-discrimination law as applied here. This is not presented as a general attack on anti-discrimination laws or upon anti-discrimination laws that protect gays. It's a case-specific analysis that must, according to the precedents, apply a strict scrutiny standard to the enforcement of the law in this case because it conflicts with the religious beliefs of the baker. Whether you like it or not, the baker's individual rights of conscience, association and religion do have a place in this debate and they deserve to be respected and given due consideration.