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Author Topic: Current Events that do not Mention He Who Shall Not Be Named in any Way.  (Read 1199 times)

Roper

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Re: Current Events that do not Mention He Who Shall Not Be Named in any Way.
« Reply #45 on: December 06, 2017, 07:54:17 pm »
It certainly is a conflicting case.  An artist should never be legally compelled to create art she/he doesn't choose to create.  That's morally wrong. On the other hand, to offer a product or service in the public marketplace and then deny to sell to willing buyers because you don't like the way they live--that's pretty clear-cut discrimination.  Our Mormon heritage is filled with similar accounts where we were victims of discrimination. On the other hand, the buyers could easily buy from someone else and use the market, instead of the court, to make their point.  On the other hand, there are five additional fingers.
 
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dyany

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Re: Current Events that do not Mention He Who Shall Not Be Named in any Way.
« Reply #46 on: December 06, 2017, 09:34:14 pm »
My take on the problem is this:
1.  I am quite positive that this baker would have had little to no problem selling to this couple, or the men individually, any other product.  They just didn't want to support them in this particular event.  That is different to me that full-on discrimination.
2.  Wedding cakes in no way shape or form are necessary, for anything.  Are they nice to have?  Yes.  But not necessary.  If this were a basic need like food, shelter, clothing, medical care, or anything else REMOTELY required for a decent life, then I would call this a problem.  But as it is, even if EVERY OTHER BAKER IN THE COUNTRY denied them this particular service, it wouldn't hurt them, aside from their feelings and their pride. 
3.  I completely agree with Roper and Justice Kennedy that being forced to make art under such circumstances is not cool.  In fact, considering the relative frivolity of the demand, I find the entire lawsuit appalling and do not in any way shape or form feel like the couple are in the right.

A similar circumstance: as an author, supposedly, I can write whatever I want.  We're anti censorship in the US, right?  But not really anymore.  Oh, you can insult and denigrate white men and religion all you want.  But there is increasing pressure towards 'diversity' in writing, to the point that I have in the last few months seen the following:
1.  Authors being told that they must have homosexual relationships in their books or else many mainstream publishers will not carry them.  Period.
2.  Boycotting of authors who don't include minorities in their books, researched out the wazoo and accurately but never negatively portrayed.
3.  The claim that white authors should never ever write minority characters, ever, that those characters can only be written by members of that particular ethnicity (though white characters are free game, of course).  Combined with #2, this is basically saying that white authors are bad and need to be cut out, because the books have to include diverse characters but straight, white authors (especially men) are not allowed to write them.
4.  The demand that, if a straight, white author includes any person of any minority, they must read a minimum of 100 books written by someone of that minority, no matter how small a part the character has in the book and how little their race matters to the storyline. 

So I have been working on a piece of speculative fiction set in modern-day New York City.  Originally, my MC (main character) was a female who was 1/4 black.  I did extensive research on her family's history (not so much the half Irish part, since people don't give a flip if the white culture or history is accurate) back THREE GENERATIONS and developed some great origin stories for the entire clan and, I believe, am being very respectful.  But in the end I have changed the character to Caucasian. Because just in asking questions and doing research I was already receiving so much flak for deigning to even think about writing a mixed-race character without reading dozens of books from her race (and if you can find 100 books written by an author and with a main character who is half Irish and 1/8 Trinidadian, 1/8 African American, more power to you), that it just wasn't worth it.  I have enough anxiety about the actual quality of the book that I can barely sit down and write at all in the best of circumstances.  Adding the vitriol that comes with anything having to do with race or sexuality, and you can just forget it.  Will it be too white?  You betcha.   But the alternative isn't really possible.
 
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Roper

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Re: Current Events that do not Mention He Who Shall Not Be Named in any Way.
« Reply #47 on: December 07, 2017, 12:04:14 am »
Privately owned places of public accommodation (read businesses) cannot refuse service to protected classes, unless the person in question poses a risk to the health, safety, or well-being of other patrons.

Federal protected classes which apply to all states:
- Race or color
- National origin or citizenship status
- Religion or creed
- Sex
- Age
- Disability, pregnancy, or genetic information
- Veteran status

Protected classes legally defined by some states, such as those in Colorado:
- Race
- Color
- Disability
- Sex
- Sexual Orientation (including transgender status)
- National Origin/Ancestry
- Creed
- Marital Status
- Retaliation

From a purely legal perspective, Phillips broke the law in Colorado. I don't think his argument is compelling enough to grant him an exception.

It looks like this case will put SCOTUS in the too-familiar position of writing federal law.

edit:  In other words, adding an amendment to the Civil Rights Act to prohibit discrimination on the basis of sexual orientation should be considered, deliberated, decided, and implemented by our collective elected representatives in congress, not by five appointed lawyers.
« Last Edit: December 07, 2017, 12:13:40 am by Roper »
 
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Hobbes

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Re: Current Events that do not Mention He Who Shall Not Be Named in any Way.
« Reply #48 on: December 07, 2017, 10:42:18 am »
I believe the case is hinging on, not the ability of a business to withhold service from a protected class of people (homoesexuals) but the right of someone to not engage in "speech" (as legally defined) that they don't agree with.  The first: withholding service, is clearly illegal and unconstitutional. The second question is basically if something like making a cake for a wedding constitutes protected speech.  i.e. If the baker made a generic wedding cake with no individual design or decoration and then refused to sell it to a male-male couple for a wedding that baker would be in violation.  But if the baker provides a service in which he or she makes a creation using his or her talent and expression, can that baker refuse to make that expression on behalf of something they don't agree with?

So the questions are about, if you provide a general public service that uses your talents to engage with each individual client, do you have constitutional, first amendment protection to declare that you won't say certain things with that service?  Again, if the baker had refused to use his service to provide these clients with a birthday cake because they were gay: that would be a clear violation of the law.  He's denying them service because of who they are: not objections to the actual cake he's making.  But if they ask him to make a cake that specifically celebrates their union it becomes dicey.  The same argument is made for photographers at weddings: as photography is normally considered an artistic expression.

But what about a florist?  Most likely that wouldn't pass muster, nor would the caterer.  Not because it's necessarily not speech to arrange flowers or cook, but because the cooking isn't declaring a homosexual union: it would be rejecting clients because of who they are and not the service they require.

Essentially, the baker in this case is arguing that the couple is trying to compel speech: which isn't legal.  The plaintiff is arguing that the baker, by providing a public service, can't discriminate for whom he uses his speech.  It's thorny and I don't know that there's a clear path here.  I guess my personal feelings side with the baker in that speech should be protected, but I definitely see both sides on this and just hope the court will come to a well reasoned solution that gives clear guidance for future cases.
 
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Roper

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Re: Current Events that do not Mention He Who Shall Not Be Named in any Way.
« Reply #49 on: December 07, 2017, 09:04:30 pm »
Indeed, Hobbes. 

Here is a link to the summary of the CATO Institute's amicus brief supporting Masterpiece Cakeshop:  https://www.cato.org/publications/legal-briefs/masterpiece-cakeshop-v-colorado-civil-rights-commission 

One excerpt:  "...forcing people to speak is just as unconstitutional as preventing or censoring speech. The First Amendment “includes both the right to speak freely and the right to refrain from speaking at all” ... the justices have said repeatedly that what the First Amendment protects is a “freedom of the individual mind,” which the government violates whenever it tells a person what she must or must not say. Forcing a baker to create a unique piece of art violates that freedom of mind."

 
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