It's a piece of cake to bake a pretty cake: LGBT+ discrimination
Well, there comes a time in every community's existence where someone gets an idea for discussion from another thread he wishes were better framed. So buckle in. This discussion is intended to sit at an uncomfortable cultural crossroads.
In the EU, gay spouses are now able to have the same freedom of movement rights as straight spouses. The Supreme Court in the United States ruled that a baker was treated unfairly by a Colorado regulatory commission when they tried to suss out if he discriminated against a gay couple who wanted to purchase a wedding cake.
In Brazil (you thought I was going to let this one be), courts have explicitly allowed conversion therapy to continue.
In Chechnya (a part of Russia that I always seem to struggle to spell), you could be hunted down and tortured or killed if you were gay, with people turning their own family members over to the local government. The local government, in absurdity, claimed after the purge that there were "no gays" in Chechnya, so there could have been no purge.
The point I'm trying to make here is that LGBT+ discrimination is an issue that should touch just about everywhere.
Before we get too deep, a point on terms. Discrimination, strictly speaking, is separating one thing from another. It is not necessarily a hostile act. If I say "you can drive only if your vision is good enough to read signs while you drive," that is discrimination on the basis of your ability to see, but most people aren't likely to say it's unreasonable discrimination (there is a rather obvious safety implication, for starters). Similarly, if you tell women to go to the bathroom in one space, and men to go to the bathroom in another space, that is discrimination based on gender. Is it reasonable discrimination? That might depend on if you're trans, and what state you're in.
This topic has to be more limited than this set up implies it will be. We won't be able to narrow things well enough to have a meaningful discussion otherwise. Today, we're just going to touch on the simple (ha!) matter of whether baking a wedding cake is art, whether refusing a wedding cake to a gay couple is discrimination, and what a government should be expected to do about it. So, the questions:
- Is making a custom wedding cake for a wedding "art"?
- Is refusing a custom wedding cake to a couple because it would be for a cause you do not support discrimination on the basis of that couple's identity?
- How should a just government resolve a dispute between a couple who feel unreasonably discriminated against and an artist who feels compelled to use speech for a cause they do not support?
And a bonus question:
- What role should a judicial branch have in advancing various groups' rights? Does relying on this less democratic method for securing rights open a movement up to counter-reaction or is the counter-reaction simply an inevitable consequence of a movement's success?
I think my personal opinion will probably be unpopular, but I'm all for the ruling that took place. In my opinion, a custom cake is art. It's a creative process to make something original, and I think that classifies as well as it can.
The baker was within is constitutional rights to deny anyone a cake. Does that make him a horrible person? Perhaps. But he shouldn't be taken to court for it. You can always find another person to buy from, that is the point of capitalism.
The government should really have just this down sooner, in my opinion. It's a ridiculous breach of the baker's rights to force him to accept customers, or jobs - regardless of his beliefs.
So I want to make clear that the Supreme Court decision wasn't about any of the questions I asked, actually. The Supreme Court decision said, basically, "The Colorado commission was unnecessarily hostile to this baker's religious beliefs, and therefore violated his religious freedom rights." It did not decide anything about whether cakes are art, whether refusing cakes to a gay couple for their wedding is unlawful discrimination under Colorado law, or what role the judiciary branch should have in deciding these sorts of rights cases.
This is not true. It would not be lawful, for instance, for him to deny a black person a cake because that person was black. There are instances where discrimination on the basis of someone's race is totally illegal, even at the private level.
Yeah. When I said
I think I was referring to the Supreme Court ruling. I just explained my reasoning after :)
Ninja edits op. I think I snuck one in on you too.
Aha! For anyone finding this post in the near future, the ninja edit was as follows:
The law being referred to here is the Civil Rights Act of 1964. More specifically Title 2 Section 2. However, the exact wording of that section is as follows:
A cake is not usually meant for the consumption the premises, which is an important distinction here. It was a wedding cake meant to be eaten at the wedding location. I think this is the difference. Denying someone food when they might be extremely hungry is one thing, but denying someone a wedding cake is a bit different.
Oh, and by the way, a pdf of the Civil Rights Act of 1964 can be found here
Thanks for this clarification. I don't mind being wrong every now and again, and I think you made a pretty convincing case that I was on this claim.
No problem :) Your comment made me actually look into the specifics of that law, which was really interesting to read.
While I do see what you're arguing I ask to what extent is it permissible to discriminate. On the surface it seems wrong to force an artist to perform a service, but what if he did not want to serve black people? Would you argue in favor of him then?
I didn't say whether it was moral for him to decide not to bake the cake, I was simply saying it was within his rights to do so. Here is my main point.
What I mean by this is that, yes, technically since he isn't providing food meant to be eaten on the premises, if he didn't want to serve black people he could refuse to do that. I'm not saying this is a moral thing to do, of course not.
I see, you're arguing that the current law was not breached by the baker, makes sense. Something about your original response made me feel that you personally supported the baker.
So, I'm going to start by saying I agree with the Supreme Court's ruling here. While I wholeheartedly support gay marriage, the baker was courteous, polite, and even offered the couple alternatives where they could get a cake. The way the Colorado courts treated the case was downright hostile and embarassing.
So let's get into these questions:
The key word here is 'custom.' If you have a single cake design, it may also be art, but you can't choose not to create such a cake based on the couple being gay or straight. Seeing as this was a customized cake, though, I'd say it pretty squarely falls under art/expression.
Sure, it's a form of discrimination. But at the same time, this is different from just providing services to a gay couple. He can't stop the gay couple from buying an existing cake, but he also can't be compelled to design a cake for them. This sorta overflows into the next question, so...
Your rights end where mine begin. The baker can't be compelled to express/create something that goes against his beliefs, regardless of how backwards you consider those beliefs to be. This does not fall under the same protection laws discrimination usually would. If he's created identical cakes for straight couples, he can't refuse to make that same cake for the gay couple. I might disagree with his beliefs, but I fully support his right to not be compelled into expressing/creating something against them.
Correct me if I'm wrong, but everything I've seen states that they asked for a cake for their wedding and were rejected on the spot. Unless I've been misinformed, they were rejected for being a gay couple, not for asking for a "gay cake."
It wasn't a gay cake, but it was still a custom cake for a gay wedding. From the ruling:
By creating a cake specifically for a gay wedding (whether or not the cake itself was 'gay'), he argues that this makes him endorse homosexual marriage.
It's tempting to say about the baker "fuck him," but looking a little closer I can understand the Supreme Court's opinion.
He didn't refuse them a cake in general, just a specific service he provided for making custom cakes. Like if a NRA representative came to me and said "bake me a cake that says 'try to take my AR-15, libtards'," I would say "nope," and that would be protected as free speech.
I'm not sure your analogy holds up, my understanding is sexual orientation is a protected class. But the NRA is not a protected class, so you are within your rights to refuse them service.
You're right. Replacing that with any protected class makes the baker sound like an asshole. But being an asshole isn't always illegal.
Not believing in gay marriage does not automatically make you an asshole. In fact, the baker seems to have been very courteous throughout the whole process.
Refusing to design a cake for a gay couple seems like a dick move, to me. If you don't agree with gay marriage, then don't get gay married. Believing that everyone should subscribe to your particular religion's moral system is entitled and narcissistic. But not illegal.
Because you (quite obviously) do not share his religious beliefs. His beliefs are not inherently "wrong" just because you disagree with them, and adhering to those beliefs does not make him an asshole.
Two points: One, the baker didn't demand they alter their behavior. He isn't asking them to subscribe to his religion's system of morals. His lack of participation in something he finds immoral does not compel anyone to participate in his own moral system.
Two, aren't you saying that everyone should subscribe to your moral system?
Well, I don't think it's implied; pretty sure he explicitly said that.
Not being part of a system of morality doesn't suddenly make you immune to people wanting you to follow theirs. Were northerners wrong for imposing their belief that slavery was wrong on the southerners, despite southerners not sharing their system of morality? Or to flip it around: The baker obviously does not share the same system of morality that you do. Why should it be wrong for him to believe what he does?
Easy for you to say, as you don't have the same religious compulsions. Let's teleport you back to the antebellum South: would you happily serve a cruel slave owner, believing it's up to God to judge him later? Or would you protest what you saw as an immoral, yet legal, practice?
Gays have equal rights. Nobody is stopping them from marrying women just like heterosexuals. And before you counter with the "rich are forbidden from sleeping under bridges just like the poor," I'd ask, do you believe everyone should be able to marry anyone they wish? I'd be willing to bet you'd happily endorse limiting people marrying without consent, marrying children, animals, etc. I'm not saying I disagree with those limits, merely that you have them. The baker simply has slightly more limits.
Doesn't matter. You're still looking to impose your own system of morality on this man. Further, the law is not an objective arbiter of what is moral or not,; you shouldn't use it now any more than you could use "Gay marriage is illegal" as an argument against its morality ten years ago.
Unfortunately I'm not well-read in ethics, but I see it as analogous to the burden of proof in science; the default is having all rights, and the person claiming that rights should be limited has the burden of ethical proof. Sometimes that's easy (e.g. you can't murder people) and other times it's less easy. In this case I see the position that same sex marriages should be illegal as the position that carries the burden of proof. So it's not about me hypocritically imposing my will.
The status quo is that everybody has equal access to rights (all men can marry women), but nobody has access to all rights (you can't marry children). Gay marriage is extending rights (men can now marry men). Under the burden of proof analogy, it'd be up to you to provide that rationale. However, it's all irrelevant; systems of morality aren't based on objective fact like scientific discovery. You can come up with reasons to justify your view just as the baker can justify his, and yours is not objectively better.
You're still seeking to impose your moral will, which is what you condemned the baker for. You can justify your will, as can the baker. If the baker is an asshole for "imposing" his will (and I disagree with that characterization), you're just as much an asshole for imposing your will by demanding he serve gays.
The point I'm getting at is that I don't draw a difference between sources of morality. Derive yours from religion? Fine. Derive yours from something else? Fine. They're all the same, and it is not inherently "better" to impose your will just because it isn't derived from religion.
You don't draw any difference? What about a hypothetical religion that encourages believers to kill indiscriminately? Would that be equally valid as a source of morality?
I didn't say all forms of morality are equal. I said that the source of morality does not intrinsically affect its validity.
I really don't know the correct answer here, you have 2 things in conflict.
*can be replaced w/ any protected class
Any protected class can expect to be served anywhere. They just can't necessarily expect the employees to do anything that would constitute a declaration of support. In this case that means that can expect to be sold a cake, but not a cake that is custom designed especially for an event the employee disagrees with.
Race is a protected class, yes? Should an immigrant family be expected to make a White Pride cake?
So there's a subtle difference here: an immigrant family can't deny a white customer, but they can refuse to make a "White Pride" cake. The difference is that they're not refusing service on the basis that they're white, but based on the actual work requested.
That isn't different at all. The baker wasn't refusing them service because they were gay, but because they wanted to celebrate something he was opposed to (same sex marriage).
Refusing to make a wedding cake for a same-sex couple when the service is provided to straight couples is, by definition, refusing service on the basis of sexual orientation.
Had he previously made same-sex wedding cakes for straight couples?
He refused to make a wedding cake on the basis it was for a same-sex couple. There's no such thing as a "same-sex wedding cake". It's just a wedding cake.
There are no such thing as blood diamonds, they're just diamonds.
how the fuck is blood buying diamonds
This is a good point. FWIW, sexual orientation isn't a protected class everywhere in the US (though it is in Colorado). http://www.lgbtmap.org/equality-maps/non_discrimination_laws
Alright, I've never taken part in a thread that's talking about such an emotionally-charged topic as this one before; let's see how this goes.
Potentially. If any creativity or individual thought went into the cake, I think it could be called art. Conversely, when I bake a cake, I'm following a predetermined recipe (as best I can); I don't think that I'm creating art when I do this.
If you would bake a cake for one person but not another, that is (as you described it) discrimination – you are treating two people differently.
I think it is reasonable to decline to create art for someone, for any reason I can think of. In this case, I think the baker was within his rights, even though I disagree with his actions.
To be clear, the court didn't rule that the baker was within his rights, it ruled that he was treated unfairly by the Colorado commission that ruled against him. It seems like a minor distinction, but it's an important one.
Ugh, I noticed someone else made that mistake, and yet I made it too – thanks!
Wouldn't this be more fitting in ~lgbt?
I think this probably fits in ~talk OK; I don't subscribe to ~lgbt, but this is a topic that interests me, and I'm glad I saw it. (This is a problem several people have brought up about the Tildes model – ~lgbt.talk, or ~talk.lgbt? IMO, ~talk with an "lgbt" tag, but I haven't really put too much thought into that.)
Yeah if there were cross-posting functionality, this seems like it'd be a fine candidate for just what you're suggesting.
This is a political discussion thread. I figured the distinction is important enough to go with ~talk.
I would think it is better suited in there. But it may toe the line to be acceptable in ~talk as well because it is opening a discussion.
All posts on Tildes are intended to open a discussion, that's the idea behind sharing ideas through starting threads and posting links, is it not? The lgbt community got their very own ~lgbt group, so I find it odd that they don't keep discussions explicitly related to their community (it clearly says "LGBT+ Discrimination in the title after all) in their own category.
See I do agree. The title made me wonder if I had somehow subscribed to ~lgbt. And certainly discussions for that should be kept there. But, discussing the case of a baker and wider spread discrimination across the globe to me seems like it is a perfectly acceptable ~talk topic. I think it's all framing. And the title says to me ~lgbt, while the post content could go either way.
Probably because it has the smallest subscriber count. Aside from ~test.
That might indicate that not everyone in the Tildes community is interested in topics relating to the subject. That's no good reason to just dump it in a higher populated group. I'm not subscribed to ~lgbt myself because I have little interest in having lgbt discussions every other day, but if you downright ignore the concept of groups you're probably going to be a bother to other people (which in the long term might hurt relations with other groups altogether).
I'm not defending it. It's just the logic behind it.
Ah, fair enough. I thank you for the explanation then :)
He is not the OP. His explanation is NOT the explanation of the OP for why it is here. You are posting in bad faith. Stop.
Not everything is in bad faith. What I said is very common in forums. Maybe it wasn't your intention but that is usually what the case is.
No, it is in bad faith when you start an outrage machine not once, but twice over tiny shit that annoys you ideologically. The last time this user did that was when someone asked someone else to not use the word "retarded" in a thread about Guilani's claims of presidential pardoning power.
This claim is weighted with the history of my experience with this user. It did not come from nowhere.
This is what leads to the slippery slope. Telling someone what they should or shouldn't say (within reason) will always lead to a negative response. I personally don't see any reason why anyone "can't" use the word retarded. It's similar to that discussion that popped out the other day about using gender neutral terms. Unless a user is cursing like a banshee someone slipping a "X is retarded because he like apples" is of no harm to no one. Most of the time it's just the way people speak.
In any case I think all this is just a side effect of very different people being stuck in the same forum with each other. A forum I moderate did an experiment before that led to similar results. We partnered with another forum that has very opposing views and had both our links (applesarecoolforums.com and orangesarecoolforums.com) redirect to a new forum where all users were forced to interact with each other. Within the hour people were butting heads over this and that. I see that happening too.
I honestly could give two fucks about the use of the word retarded. The point is that the discussion topic is about discrimination within a specific community, in the context of a recent supreme court ruling that didn't actually address any of the merit-based questions it could have. It is a political discussion about a political issue based on recent political news that just happens to overlap with an existing community.
This is my 8th political discussion thread now, and none of them have been in any other place but ~talk. I also explicitly said in the first line of this thread that I was responding to another thread, also in ~talk, about the exact same cross-section of political issues. I even linked that thread. The idea that it hasn't been 800 shades of clear why I posted this thread in ~talk by now, even after I've said it twice, is a little ridiculous.
How could it be that when I say explicitly both in the OP of the thread and as a direct comment to this user we are now both talking about, that he still believes that YOUR explanation is MY rationale? It stretched credulity, especially when you consider that this is not the first but the second time this user has massively derailed a completely unrelated topic to whinge about some minor inconvenience.
You know the remedy for when something doesn't interest you? You move on. You don't type 7 comments to scream from the high heavens how disinterested you are.
Allow me to be more clear then. I do not care about "issues that impact LGBT community" as the only reason to submit in one community or another. This is political discussion, which has a pretty well-worn and established place as ~talk threads. You may notice that "politics" is the very first tag of this thread.
What I am saying by having it centered in ~talk instead of ~lgbt is that this is a political discussion thread first, and an LGBT+ focused topic second. If you do not appreciate that framework, you are more than free to make your own thread in ~lgbt. But I am not going to fuss about it. So long as there is no dedicated place for political discussions, all political discussions I make will be in ~talk regardless of topic.
I'd gladly move it there if I were interested in lgbt issues every other day, which I am not. Like I said, I'm not subscribed to ~lgbt because I don't care that much, but to see that community then just posting everything to ~talk too doesn't seem like the right way to deal with it.
You didn't have to post in this thread either. When you're not interested in content, you move on. I can't believe you're even bothering to comment in this thread with that mentality. Go away.
Are meta discussions not allowed? You're being pretty dismissive of the other user's complaints. I'm not making a judgement on whether or not this belongs in the current group; however, that discussion is a valid one to have.
I am being dismissive of anyone who doesn't ever directly address what I've said. That user has gone out of his way to ignore the actual reason I posted this in ~talk. Instead, this user talks about how inconveniencing it is to see something that doesn't interest him, as though the fourteenth fluff thread in ~talk was what he preferred instead.
Edit: you know the remedy for when something doesn't interest you? Clicking something else. There is no reason that this user had to make seven comments to the effect of "this doesn't interest me." Two would have sufficed.
Using reddit as an example, that's a strategy that has led to many subreddits going downhill overtime, with the easy example being memes and other low-effort content. On one hand, users can argue, as you have, that readers simply can choose to not click the offending content. On the other hand, readers can argue, as tyil has, that uninteresting or unrelated content effectively squeezes out other content.
Take /r/DnD as a specific example. Their front page currently has 19 of 50 links as "Art" of some kind; 11 of the top 20 (and this isn't counting all the "OC" flair that is questionably labeled, and should really just be "Art"). The subreddit as a whole has a lot of this low-effort, show-off content, and sifting through it all for more in-depth becomes a chore. Thus, you get a host of related but more tailored subreddits, like /r/DnDBehindTheScreen, /r/DnDIY, /r/DMAcademy, /r/DnDNext, etc, while the original turns into nothing but those original low-effort posts, because users tune it out.
tyil is trying to convey that he's worried topics like this will lead to people tuning out of ~talk if they see too much general stuff that should possibly be slotted to a more specific audience.
Of course, at this point I'm not sure why I bothered getting involved; it's obvious you're agitated, and my commenting will probably only agitate you further. I apologize for that.
I have as much a right to comment as anyone else. Telling me "go away" because I don't agree with you doesn't sound like you're interested in any discussion at all.
Considering I don't care much for lgbt issues all the time, I'd prefer it to not see it in the thread listing all the time. To that effect, I opted to not subscribe to that group. If everyone just posts everything in ~talk because "we want to talk about topics", the whole reason we have groups in the first place becomes moot, and the site will just become an endless sea of spam that no user is interested in.
I'm simply requesting that lgbt discussions stick to their dedicated ~lgbt group, it's why we have one.
No, I'm telling you to go away because you're deliberately coming here to post something that is wholly offtopic just because you're not interested in the topic that got posted. You are, again, derailing discussion.
I wouldn't consider it "wholly offtopic" just because you say so. I don't appreciate lgbt topics turning up all the time when I'm not subscribed to it. To tell me to go away, and say that I'm acting on bad faith sounds like a cheap way to dodge the issue.
It's mostly an issue right now because we also have no tools to hide certain tags or topics yet, so now your post is just cluttering up the screen of many people who clearly have no interest in this topic, otherwise they'd be subscribed to ~lgbt and look there for posts relating to this topic.
I think we, as a Tildes community, should try to work out together why certain things happen on the site that may be considered unthoughtful, but rudely dismissing anyone with a different opinion as "acting in bad faith" and telling them to go away doesn't seem like a good way to go about it. I'm deliberately coming here to ask you to keep lgbt content to the ~lgbt group, because that group is for such topics, not to derail the topic altogether. I think you're doing a better job at that by saying I'm posting in bad faith when I tell someone I appreciate their willingness to try and explain the reasoning.
No, a cheap way to dodge the issue is to respond to someone who isn't the OP of this thread as though their musings of why the OP posted this thread in ~talk did so, especially when that OP directly commented twice as to why he did what he did, and you have YET to respond to either instance.
I am accusing you of commenting in bad faith because you are commenting in a way that suggests you do not care why I posted this thread in ~talk, despite that being the starting place for this entire comment chain.
You are not only ignoring any substantial comment I made to why I chose to post this thread in ~talk, but you are pretending as though other people's opinions are more directly relevant to my reasoning than MY reasoning.
If you don't see why I think you are the reason we need comment hiding last week by now, I don't think there is anything else I can say to show you.
The baker should not be allowed to refuse to do business with someone because they are gay. They should be allowed to refuse to decorate the cake a particular way that violates their beliefs.
If the same sex couple want to buy a cake that doesn't have anything on it that indicates it's for a same sex wedding, the baker shouldn't be able to refuse. The couple can buy their own double-bride or double-groom cake toppers and put them on the cake themselves.
There was a case a while back that was done in response to this whole cake issue where someone asked a baker that was known to be liberal to bake a cake with some kind of bigoted message on it. That baker should be allowed to refuse to write that message, but still sell them a blank cake that the customer could write whatever they wanted on.
The baker offered to make/sell them a different cake and also referred them to other bakers in the area.
Art or not, it is clearly speech/expression.
No, it is discrimination on the type of work. Sodomy is a fundamentally different thing than marriage.
Feelings shouldn't matter. The only question should be whether discrimination actually occurred, and whether such discrimination is lawful.
Hey, thanks for commenting! I have a couple questions based on what you said. I hope you'll indulge me.
How would you find what the reason for discrimination is? Feelings seem important as far as the starting point for entering into this dispute, but as far as the actual reasoning I think you're right that we need a better level of proof than "feeling." Would that be stuff like people's actions, close reading the things people said when talking to one another, a snide tone at the end what would by text seem like a polite statement?
What do you mean when you say "discrimination on the type of work"?
Short of admission, I don't know if it's possible.
For example, bakers might refuse to make sodomy cakes (or wedding cakes, or cookies, or ...). That's discriminating on type of work. Another baker might refuse to make any kind of cake for a class of would-be customers. That's discrimination against a group of people.
I find the "art" distinction interesting. In my mind, the difficulty of someone performing a service for another person due to a conflict of "morals", "ethics", "philosophy" (or whatever you might call it...and I don't want to get too hung up on the exact word because I think we can all understand the point) is not so much related to the "artistic-ness" of the work, but the degree of interpersonal interaction and personalization required in order to perform the service.
I do not think it's fair to deny mass-market, basic services to someone because the business owner has some sort of moral issue with the customer. If you've chosen to operate a business, serving all customers equally within the scope of your business, in most circumstances, is just part of doing business. If you sell groceries, you need to sell groceries to everyone who walks into your business and who is behaving lawfully. If you're unwilling to do so, don't choose to operate the type of business where it may be an issue.
I also do not think it's fair to compel a business owner to provide a personalized service to someone whom they take issue with specifically in regard to the services to be performed. If you're looking for someone to bake you a custom wedding cake, photograph your wedding, or perform your wedding ceremony (and there's not really any artistic expression involved in this last example), you should look for someone who is compatible with your personal views as they relate to marriage.
I've also never been "discriminated" against in this manner, and I'm willing to have my mind changed on this topic.
If you're a chef, can you call your cooking an 'art' and refuse to serve people in a discriminatory manner?
Obviously not for a regular meal but in this case it was for a personalized wedding cake. If the chef doesn't believe in gay marriage he has the right to refuse to make a personalized cake for a gay marriage. Had he refused to sell a generic wedding cake would make it an issue. But as I recall the guy even gave other options for the couple.
I think the distinction @bee made as far as the legal underpinnings of the American system might help answer your question here.
The big distinction is whether people are being served food onsite versus just given food, like for takeout. The Civil Rights Act of 1964 seems to distinguish between those two events.
Well I think where my thought process was going was that whether it's "art" or not isn't really what I think determines what's fair. I think people have latched on to the "art" distinction because it allows them to make a case based on first amendment freedom of speech rights, which is what happened with the Colorado case. Calling something "art" is just a way to try and win a legal battle, and I think that's a bit (or a lot) disingenuous.
To expand on your chef example, my opinion (which is about fairness and not legality) is that a chef preparing food in a restaurant should be compelled to cook for whoever walks in the door and sits down with all the other patrons. But I think a chef considering a catering engagement in someone's home for a personal event should have the right to decline to perform that service, for any reason they choose, however discriminatory. One is a business offering "stock" services to the general public. The other is a more personalized and individual contract, and requires a degree of interpersonal interaction which makes conflicts of moral standing more difficult to overcome.
I'm not cyberstalking you, but one discussion led to the other...
I don't think custom cakes are "art" in the same sense as Van Gogh and Monet practised it, but it's still an artistic endeavour on the part of the maker. And I believe that the baker should be allowed to not produce things that are against his beliefs, no matter how stupid his beliefs.
Yes, certainly. But the question is whether that discrimination should be a matter of judicial review or not. As you expertly point out, there are discriminations all the time in society, we just need to figure out the ones we are against and the ones we will let slide. This one, for instance, I think should be allowed to slide, because I don't think a society should be able to force people into producing things they don't want to, especially when there are other options available and also when the service to be provided is not essential, such as a wedding cake.
Now, if the baker was selling regular bread or even regular cake and refused to serve the couple, then that's something that shouldn't be allowed to stand.
I don't think the govt should be involved in this fight. This is not a relevant social issue, as per the above reasoning, and the Judiciary should have more pressing concerns.
It looks like an inevitable consequence indeed, especially when some of these are extremely contentious (and shouldn't be, more on this below). And the judiciary should be involved in matters that affect an entire group, not when it's an individual issue with little repercussion to the whole. Is that a hard standard to decide upon? Hell yeah. But that's why we treat things case by case, and why making general rules is so hard, the individual situations are varied to the point where it's impossible to predict every single variation thereof. But that's the challenge...
Why do I say most of these shouldn't be contentious? Because if you don't have skin in the game, you should STFU. I'm not gay, so why the fuck should I be giving out opinions on gay marriage? It doesn't affect me one bit, and therefore I have always been in favour of it. Being against gay marriage, for instance, when you're not gay, makes zero sense to me. I have zero skin in that game and don't care one bit what happens. Denying this sort of right for a group you're not a part of feels incredibly petty.
I was about to ask where a line might be, but you answered it before I got that far.
While I see (and appreciate) where you're coming from here, I think what I often hear from people who are concerned and opposed to gay marriage is that the institution of marriage does impact them and society more broadly. They might be inclined to point to increasing divorce rates as a scourge on the institution of family, and perhaps changing the economic reasons the state gives heterosexual marriages a bunch of legal benefits from being about raising a family to being about announcing your love for another person. I'm guessing from your answer that this sort of justification doesn't fly for you?
Well, are there societal institutions that are in the public interest to maintain?
No, it doesn't, because the data doesn't show a very different divorce rate in homossexual couples. Also, societal institutions are made for change. Less than 100 years ago, women were 2nd class citizens around the world. That changed along with a million other things. Marriage is two or more people loving each other and committing, within their own rules and parameters, to a life together. How sexual couples can raise families just as well, so why not give them the same benefits?
To me, it smells of refusal to grant equal rights just for discrimination against other people's choices. If gay couples get some tax breaks, so what? That barely makes a dent in the huge breaks other groups get, so it's not going to bankrupt the State.
I've seen great gay couples, I've seen shit ones, just like the hetero crowd. Shit, I got one divorce on my back, so by that standard maybe I shouldn't have married again, and produced one of the nicest, cutest, most delightful kids I've ever seen?
The institution of marriage has been used for some pretty shitty things (abuse of women, property grabs, etc.), so it's not like it is a holy purified thing that is being bismirched by the deviants (I'm obviously paraphrasing crazy shit I've heard, I don't think gays are deviants).
Equal rights, education, health care, sanitation, protection against unlawful actions from the govt and its agents, among others. Civility between citizens would be nice to have as well, but I know that's a pipe dream for most places.
Who marries who and/or what is irrelevant as a govt preoccupation in my book. There are much bigger issues to tackle. Just as an illustration, think of all the people society lost because of homosexuality laws. Just one example: couldn't we have used Turing for a few more years in our society? Compare that with "well, at least he stopped buttsexing with other men" with the loss of a true freaking genius. Is that worth it for society?? To uphold what? Some weird attempt at pretending something that has always existed isn't there?
I have a soap opera social theory. Before social media and reality shows, soap operas gave people something to gossip about. People slowly came to a national identity on social issues because it was "safe" to juice fictional characters doing "outrageous" things. Story lines would feed off of current events and a sort of viral group think would muddle through it.
So one thing I notice about the Cake issue is that the cake artist specifically mentioned having trouble keeping his business afloat after this hit national attention. I think that SCOTUS intentionally uses the slowness of the judicial process and the speed of current social media to have as light a hand as possible.
To scope out or nudge people. It is MUCH more effective to let the cake artist get ostracized out of business for idiot choices than use legal precedence to force him to do anything, and keeps future cases from taking up valuable court time.
@eladnarra points out that there have been some cases where social pressure/changes weren't fast enough, and that legal/judicial action was warranted (interracial marriage, for example.)
I also think intervention was warranted for that. But I wonder if it would have been necessary if social media was as developed then as it is now. Liberal culture used to be heavily influenced by geography. Coastal cities and trade hubs were always more progressive due to sheer volume of exposure, as opposed to rural and isolated areas with their xenophobia not worn off. But now the coastal city exposure is potentially deployed in a person's hand with their phone.
People can refuse to accept it like that baker, but the consequence of having people who do accept it avoiding his business...
It's social darwinism at its finest
Weirdly, this article, "The Tipping Point When Minority Views Take Over" popped up on my Twitter feed when we were chatting about this. And I think it relates to this idea of social media (or in the past, things like soap operas) spreading ideas faster and further.
The researchers found that the threshold for the scenario they tested was around 25% dissenters (aka people with a minority opinion). So that supports this idea that when people were more isolated, certain areas might not have reached whatever threshold is necessary for a population-level change of opinion for a certain issue, whereas today there are a lot more chances for people to come across a different view.
Regarding the bonus question (slightly offtopic)
I disagree with the notion that a court judgement is inherently less democratic than a parliamentary act. A courts objective is to use the laws that were decided on by society and say what implications they have. If that implies in the EU that all MSs have to allow same sex spouses the same freedom of movement spouses of different sex then that is a rule which the people (or their elected representatives) have decided on.
Yeah that's fair. I was trying to convey the idea that perhaps the judiciary branch in most cases is insulated from most forms of public pressure. It isn't like judges in most courts are voted into office, especially in the US context. You can get a lot of state-level judges in their positions by vote, but the highest levels that are typically being called upon to answer these sorts of questions are almost always appointed positions, which does nest the democratic accountability away from the voter. I would say that makes it less democratic in that sense, the same way we might also reasonably say the Chinese democratic system, with its up-the-chain election system, is less democratic than a typical Western democracy where positions up to and including the highest civilian positions are answerable and chosen by a direct, (almost) universal suffrage vote.
So when it is a court that decides, like in the US case, that the constitution protects persons of a specific identity (i.e., sexual orientation vis-a-vis state interest in the institution of marriage), that does seem less democratic in the sense I'm talking about. But again, fair point that there are other understandings of "democratic" where that might not be the case.
"I was trying to convey the idea that perhaps the judiciary branch in most cases is insulated from most forms of public pressure."
I believe that thats a very good thing. The judiciary should be separated from public opinion in most cases. Laws should be clear and stand on their own. If public opinion switches, should the basic laws that society agreed and agrees to switch with it? In germany the basic law has a set of 20 fundamental rights that are part of an eternity clause. These include right to dignity and life, freedom of speech, freedom of association, but also things like the special protection of marriage and family or the right to property which entails the obligation that the use shall serve the public good. If I think that one of these fundamental rights has been violated I can ask the federal constitutional court to rule on the legality. One example of this was the "Luftsicherheitsgesetz" (Air security law) in 2005, where parliament passed a law, allowing the armed forces to shoot down civillian aircraft being used in a terrorist attack. However it was rejected and declared unconstitutional because sacrificing innocents to benefit someone else violates the dignity of that person and treats it as measurable and thus limited. If public opinion is in favour of allowing Aircraft to be shut down, should the court have taken a different position, considering that the first article of the german basic law reads: "Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority." Before the right to life is even mentioned?
On the topic of legitimising up the 'foodchain': it depends on whether the politicians for lack of a better word are held accountable for their actions. If there is a large disconnect between the lowest levels and the highest level then I would certainly agree that you venture into undemocratic territory.
I definitely agree that in most cases the judiciary branch being separated and insulated from public opinion is a good thing, and I definitely agree with the impulse of most courts to avoid making broad, sweeping rulings on topics that are better left to legislative or executive bodies.
But let's dig deep for a moment and consider Roe v. Wade, the American court case from the 1970s that made abortions legal as a matter of law nationally. This is THE example that conservatives will point to when talking about judicial activism from the bench (even if there are thousands of other examples to choose from that don't point in an ideologically convenient direction). Many states at that point were on the same sort of track as states were when gay marriage was legalized: moving in a less restrictive, more tolerant direction toward providing women access to safe abortions. It was not as far as activists wanted in all cases, but it was generally nation-wide.
When Roe v. Wade landed, that movement stopped. The power of people to choose to move further toward a more abortion-friendly environment was stripped from them, and simultaneously a counter-reaction organized to seek to impose new limits on abortions. From that starting point, we now have two roughly equally fervent groups on the issue, with the anti-abortion activists scoring more and more legislative victories lately. You had such a massive counter-reaction in Ireland that they only just a couple weeks ago voted to undo the amendment they put into place to outlaw their legislature from even considering legalizing abortions. It seems hard not to conclude that this particular counter-reaction grew directly from the swift and sudden success of abortion activists in the highest court in the United States.
So to me, I guess it doesn't much matter whether it's legitimate in terms of democratic governance. It matters more to me pragmatically whether people feel like they're being heard on an issue, and if a issue-based movement scores a massive victory from a judiciary that isn't supported by the people writ large, it seems hard to sustain.
Nope. It's a consumer good, just every other cake and pastry they make. Just like if I order a custom-made motorcycle. Or if I purchase a tailor-made suit. The customer asks for something, and the artisan (not artist!) makes it for them, in exchange for money. It's a negotiation, with the customer specifying their requirements, and the artisan saying whether they can or will provide something to meet those requirements. Not all artisans can or will make everything a customer wants, though.
Yes, it is. Which is why you don't tell the couple you're doing it for that reason. ;)
It is entirely the business owner's and/or manager's prerogative to decide what goods they will and will not supply. If you walk into a cake shop and ask for a negligee, the baker has a perfect right to deny your request: "I don't make those." Similarly, if you ask for a custom wedding cake which has a certain phrase or decoration on it, the baker has a perfect right to say, "I don't make that." It's the baker's unchallengeable prerogative to decide what they will and will not make.
By telling the couple to go to a baker (not artist!) that does make the goods they want to buy.
Judges should not advance or march back rights. They should interpret the law as written. If the law implies a right, then the judges should say that (as the Australian High Court did when it said that the constitution of Australia implied a right to freedom of political communication, to support the constitutional requirements that people be able to choose their elected representatives to Parliament). If the law does not imply a right, then the judges shouldn't force it.
I'm so confused the people in this discussion saying the guy was polite.
How does one go about saying "I'm so convinced it's morally wrong that you two are in love that I can't in good conscience take your money to provide services to you to celebrate that" in a way that's polite?
Bigotry is, by definition, not polite.