One of the very contentious decisions before the U.S. Supreme Court is the appeal of a baker in Colorado, who refused to make a wedding cake for a same-sex couple. The couple sued, and said that the baker had violated Colorado law, which said it was wrong for a business or place of public accommodation to refuse service on grounds of sexual orientation (or race or gender or other of the usual reasons for discrimination). The baker contended that his cakes were artistic expressions, and he did not wish to sell one to this couple, based on his religious freedom rights.
Here are some interesting commentaries on this case, which was recently argued, and on which the Court will rule later.
This one by John Gehring appeared in the Catholic magazine Commonweal and represents the views of religious groups, who disagree with the baker.
Now that marriage equality has won in the courts and in the culture (even a majority of Republicans under the age of forty support same-sex marriage), conservative Christian activists are using new tactics to chip away at LGBT rights. By making a First Amendment appeal, lawyers for Phillips recognize that such an approach could have more salience and be more persuasive than a strict religious-liberty argument. David Cole of the American Civil Liberties Union, a co-counsel in the case, deconstructed the free-expression argument in the New York Review of Books this month. “Likening its cakes to the art of Jackson Pollock and Piet Mondrian, Masterpiece Cakeshop claims that they deserve protection as free speech no less than Pollock’s canvases,” Cole writes. “But whether the cakes are artistic is beside the point. As an individual artist, Pollock would not have been subject to a public accommodations law and could have chosen his customers. But if he had opened a commercial art studio to the public, he, too, would have been barred from refusing to sell a painting because a customer was black, female, disabled, or gay.” Cathleen Kaveny, a Boston College professor and Commonweal columnist, thinks there are compelling First Amendment arguments in the case, but worries about an overly broad interpretation of the Court’s eventual ruling. “Every bakery is not a Masterpiece Cakeshop,” she said. “Not everyone is asking for a unique wedding cake to exemplify their soul. The distinguishing features of this case really limit its application. I worry a ruling for Masterpiece would be read as accommodating anyone who is engaged in creative work. But there is a big difference between a couture shop that creates the perfect wedding dress or a cake that incorporates the designer’s artistic vision and a boutique selling off the rack. David’s Bridal isn’t Vera Wang.”
“These debates are not academic. Despite the seismic cultural shift in support for same-sex marriage over the last decade, LGBT people still face substantial discrimination. As shared in the amicus brief they filed, Lambda Legal detailed more than one thousand incidents of LGBT people being denied service in the United States. This demonstrates “an ugly truth,” according to the brief. “With disturbing frequency, LGBT people are confronted by ‘we don’t serve your kind’ refusals and other unequal treatment in a wide range of public accommodations contexts.” Only nineteen states and the District of Columbia have passed laws specifically protecting LGBT people in public accommodations.
“As a Catholic with a platform as a writer, I take seriously the public demands of faith. From the abolition of slavery to the civil-rights movement to the resurgence of progressive faith activism in the Trump-era, religion has been and will continue to be a part of the civic fabric of our nation. Religious Americans on the right also recognize that their faith comes with public responsibilities, and progressive people of faith should not blithely dismiss their sincere convictions. But respecting the sincerity of a conviction from a faithful fellow citizen and codifying that conviction into a law governing a diverse society are two different things. As the late Justice Antonin Scalia, a conservative Catholic, noted in a 1990 case, laws of general applicability “could not function” if they were subject to nearly unlimited religious exemptions. Quoting from an 1878 decision, Scalia warned that such exemptions would “permit every citizen to become a law unto himself.”
“Pope Francis describes religious liberty as “one of America’s most precious possessions.” We don’t honor religious liberty or the radical inclusivity of Christ by telling people made in the image of God that their love and commitment are not worth a cake.”
David Cole of the ACLU, a co-counsel in the case, wrote in the New York Review of Books:
It is one of the most talked-about cases of the term, in part because it’s so easy to conjure hypothetical variations: What if the cake includes the message “God bless this union”? What if a wedding photographer, who has to be present at the ceremony in order to provide her services, objects to same-sex marriage? Should bakeries or photographers be permitted to refuse their services to an interracial or interfaith couple? Could a bakery refuse to make a birthday cake for a black family because its owner objects to celebrating black lives?…
“The Trump administration has filed a friend-of-the-court brief supporting the bakery, the first time in history that the solicitor general has supported a constitutional exemption from an antidiscrimination law. One of the Justice Department’s principal responsibilities is to enforce public accommodations and antidiscrimination laws, so it is generally skeptical of arguments for allowing citizens to evade their strictures. But not this administration, at least not when what’s at issue is a religious objection to selling a cake to a same-sex couple…
“Masterpiece Cakeshop’s objection rests on its owner’s Christian beliefs. And its complaint is ultimately a desire not to be associated with a same-sex couple’s wedding celebration; it objected to selling Craig and Mullins even a nondescript cake. But because the Supreme Court has flatly rejected both association- and religion-based claims in such cases already, the bakery stresses that it is making a free speech claim. It maintains that it speaks through its cakes, which should make this case different.
“The reasons for rejecting exemptions based on religion and association, however, are equally applicable to free speech claims. Because almost any conduct can be engaged in for “expressive” purposes, the exceptions would very quickly swallow the rule. As the Supreme Court has recognized, “it is possible to find some kernel of expression in almost every activity a person undertakes.”6 Any business that uses creative or artisanal skills to produce something that communicates in some way could claim an exemption. A law firm, which provides its services entirely through words, could refuse to serve black clients. Photographs are undeniably expressive, so a commercial photography studio could post a sign saying it takes pictures only of men if it objected to depicting women. A sign-painting business whose owner objects to immigration could refuse to provide signs to Latino-owned businesses.
“Likening its cakes to the art of Jackson Pollock and Piet Mondrian, Masterpiece Cakeshop claims that they deserve protection as free speech no less than Pollock’s canvases. But whether the cakes are artistic is beside the point. As an individual artist, Pollock would not have been subject to a public accommodations law and could have chosen his customers. But if he had opened a commercial art studio to the public, he, too, would have been barred from refusing to sell a painting because a customer was black, female, disabled, or gay…
“Only laws that target religion, or that are intended to deny equal treatment to a protected class, trigger heightened scrutiny under the First Amendment’s religion clause and the Equal Protection clause. In a pluralist society, it is inevitable that many generally applicable laws will have incidental effects on different community members. But unless every man is to be a “law unto himself,” there cannot be an exemption for everyone who complains about a law’s indirect effect on his constitutional rights.
“That principle is especially appropriate for antidiscrimination laws, like the Colorado law that Masterpiece Cakeshop seeks to evade. Such laws are by their very nature designed to ensure equal treatment for all, so that no one has to endure the stigma and shame of being turned away by a business that disapproves of who they are. If those laws were subject to exemptions for anyone who could claim his product or service was expressive, they would become not a safeguard against discrimination, but a license to discriminate.”
If the Supreme Court favors the baker, expect businesses to claim that they don’t sell to interracial couples or to Muslims or Catholics or blacks or Jews or any group that offends their religious beliefs. This is an important decision.

Should anyone have to pay taxes to support the firefighters, police, street-sweepers, etc., etc, etc. who serve the public place of business of anyone who offends his or her moral convictions?
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There is a fundamental error being made here. The maker of a wedding cake is not endorsing anything through their artistry. A sign supporting a political candidate does not include the sign as an endorser. Bakers are deliberately butting in to business that is not theirs. The conservatives insist that gun sellers have no culpability when the guns they sell are used to commit crimes. Therefore how can a wedding cake have any connection to the wedding at all? (The ring is symbolic, the wedding dress, but the effing cake?!)
This is like the Kim Davies case in which she was hired by her state to certify whether the laws of the state and county were obeyed in the issuance of wedding licenses (among other duties). She injected herself into this transaction in the form of her signature representing an endorsement of the marriages. Her signature merely represented a bureaucrat’s certification that “all applicable laws were followed.” When the laws became something she disliked, she changed her own job description and should have been fired forthwith.
Bakers do not get to choose their customers based up faith (or race or creed, or color of skin). Just do your damned job and shut up about it.
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I don’t think this should be regulated. However, economically, people who refuse because they don’t like who you are, lose in the long run. Those prospective customers either take their business elsewhere and tell friends or they decide to make their own cake. It is pure ignorance.
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That was the same argument that was used in the Civil Rights Era – let the market decide. Except that when your “market” consists of a large number of bigots, along with those who are intimidated by the bigots, you lose services for people who don’t meet other people’s standards. You’d think the Southern business owners would want to take black people’s money (and many probably did), but the problem was that by doing so they would have lost white people’s money (and risked other forms of white people’s wrath, such as bricks (and worse) through their windows). The laws actually protect the business as well as the people who would otherwise be discriminated against. With a law in place, a baker who actually is okay with baking a cake for a gay couple can do so and pass it off as “well, the law makes me”, and is thereby protected from any backlash from “true Christians” (ahem) who would boycott him (or worse).
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Nope, they shouldn’t. But anyone who has such strong religious beliefs should be required to post such notice on their place of business, website, facebook page, etc. so that I know not to attempt to patronize said business. Perhaps we could make the symbol a rainbow with a swastika over it?
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Again, no, because if you live in a strongly reactionary small town, every place of business is going to be displaying such signs (some proudly, some for fear of intimidation or harassment) and the targeted group will have nowhere to get service. Again, this is exactly what happened during Jim Crow.
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I’d kind of like the bigots in my community to identify themselves. If I am going to be refused service for something I’d like to know ahead of time. I’d also enjoy watching it go out of business, which it eventually would.
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And what if your community is overwhelmingly bigoted? What if everywhere you could go would refuse you service? What if those businesses not only didn’t go out of business but rather thrived because of their bigotry?
Personally, I don’t care what anyone thinks or their “sincerely held religious beliefs” (cough, cough). I care about getting service. I want laws protecting that.
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It wasn’t that long ago that restaurateurs would refuse to serve someone based on race. Clearly an example of racism, prejudice, bigotry and bias. The same goes for a business discriminating against someone based on sexual orientation. What if a baker refused to make a cake based on the fact that the customer was disabled, such as a blind person with a guide dog? Businesses are already regulated in various ways to ensure the health and safety of the public; they damn well should not be allowed to discriminate against gay people based on who they are and who they choose to marry. Enough already with the anti-gay garbage.
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I would like to know the whole story. Test cases always have a story. Designed to put a small town north of Chattanooga, TN on the map,as a stunt, the famous Scopes Trial was not even about the teaching of evolution. Scopes was a part of a drugstore conversation that ended up with Scopes teaching that part of the textbook to the offended student in a car. Like the Scopes trial, this issue has the potential to stir strong attention from the right. This will keep those on the right distracted long enough to continue to rob their pockets of their wages.
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I think the whole story is what you see on its face. The two young men went to the bakery to order a cake. The baker was taking their order. When they said it was a wedding cake for themselves, he refused to complete the transaction because it offended his religious beliefs. They filed a complaint with the Colorado Civil Rights Commission, based on Colorado Law, which ruled in favor of the couple. The baker sued, and he lost at the state level. Now the case is on the Supreme Court docket.
Neil Gorsuch is From Colorado and can always be relied on to say that religious beliefs rule over all rights. Justice Kennedy is probably the deciding vote.
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Does selling the cake require the baker to become gay? Is selling things against a religion? Not seeing the religious conflict just personal intolerance and/or prejudice. Not very Jesusy that’s for sure.
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Here’s the petitioners’ version of the facts:
“In July 2012, Respondents David Mullins and Charlie Craig were planning their wedding reception in Denver, Colorado. Craig’s mother, Deborah Munn, was helping the couple shop for a wedding cake. Pet. App. 64a. The three of them visited Petitioner Masterpiece Cakeshop, a retail business in Colorado that sells wedding cakes and other baked goods to the public. Pet. App. 64a. Petitioner Jack Phillips owns and operates the Company. Pet. App. 64a.
Mullins and Craig expressed interest in buying a cake for “our wedding.” Pet. App. 64a. Phillips refused to serve them, explaining that the Company had a policy of refusing to sell baked goods for weddings of same-sex couples. Pet. App. 65a.2 Phillips did not ask for, and Mullins and Craig did not offer, any details about the design of the cake. Phillips was unwilling to make any cake for the wedding because they were a same-sex couple, and therefore any further discussion would have been fruitless. Pet. App. 65a. As the Administrative Law Judge in the Colorado administrative proceedings found, “[f]or all Phillips knew at the time, [Mullins and Craig] might have wanted a nondescript cake that would have been suitable for consumption at any wedding.” Pet. App. 75a.”
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Interesting trivia about the Scopes case. Mr. Scopes was not even a biology teacher. When the word got around, he was told not to mention that detail. Dayton TN, needed the case, for economic reasons, mostly.
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The word “evolution” is currently banned from all tests and most textbooks.
The Scopes case could be relitigated.
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From a bio of Scopes:
Quote: Early Life
A high school science teacher, John Scopes found himself at the center of one of the 20th century’s most famous court battles. He served as the defendant in a case meant to challenge a state law against teaching Charles Darwin’s theories of evolution in public schools.
End quote
https://www.biography.com/people/john-scopes-17183774#!
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And your point is, Charles?
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@markstextterminal: No real point, just that I find it interesting, that John Scopes did not teach evolution in his classroom. The film “Inherit the WInd”, is more or less accurate, the city of Dayton Tenn, instigated the lawsuit, primarily for the economic boost it would give to the town.
I did not know that the word “evolution” was banned in textbooks. I am not a biologist, but it is impossibly for biology to exist, without evolution.
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Thanks, Diane. I had not heard the whole thing. Sounds to me like the baker was spoiling for a fight and got one. We cannot have peace unless we are able to accept each other.
It has long been my contention that the business right wing uses issues like this to split social conservatives away from voting for their economic self-interest. They create fear, then offer a saving political force. You are in danger from the ……. Vote for us. While you see us as protection for your fears, we can pick your pockets. We can keep your wages low and get fat on your vote.
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Yup
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My students watch the student news program CNN10 every day. Last week, they interviewed both the plaintiffs and the defendant on this. The baker feels like it’s “artistic expression” to make a wedding cake. He said that he would sell them anything else, except a wedding cake. He said that he felt like weddings are “a ceremony between the couple and Christ,” and so he wouldn’t bake the cake.
He’s lost 40% of his business because he now won’t bake wedding cakes at all.
The arguments are ridiculous, of course. If a wedding is truly between the couple and Christ, does he not bake for Jewish, Muslim, HIndu, or Buddhist weddings, or for agnostics or atheists?
But with the Supreme Court as it stands right now, they may vote for this baker. During oral arguments, Gorsuch made a big convulted argument for this baker, and Kennedy, the swing vote, seemed to agree with Gorsuch.
The thought of this becoming law is ludicrous.
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“He’s lost 40% of his business because he now won’t bake wedding cakes at all.”
GOOD! There is some justice in this matter.
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Back in the day, the racial bigots would use the bible as a cover and come up with bible quotes to justify segregation and their hatred for black people. They would also vomit up the states’ rights deflection and that their basic freedoms to be a flaming bigot were being infringed upon.
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Likewise, I believe the Hobby Lobby decision is flawed. I do not believe Obama’s people should have compromised. If the ACA states that they have to provide comprehensive coverage including birth control, “ethical” Hobby Lobby, that was fined $3 million for illegally buying Iraqi artifacts, should have had to comply regardless of their religion. IMHO, they are buying insurance complying with the ACA and not the right to decide what recipients do with it. Obama’s people tried to keep the piece by sending the plan money to a third party that gave workers comprehensive coverage. We shouldn’t yield to right wing extremists and bigots.
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Correction: peace
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So, let’s see, taxpayers are required to pay for a discriminatory church school’s playground mats, but the bakery next door is not required to do business with the public without discriminating. Life, Liberty, and the Pursuit of Irony.
The conservative majority of the United States Supreme Court walks into a bar, each one carrying a duck. The bartender says, “Where’d you get all those pigs?” Neil Gorsuch says, “These are ducks.” The bartender says, “I was talking to the ducks.”
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“No cake for you!”
When rights are in collision
There’s often much at stake
But freedom of religion?
That really takes the cake
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Good one, spot on!! The cake Nazi.
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Well, I make baklava to sell at my Greek church’s food festivals. We have been told that it’s some of the best baklava people have tried (not meaning to brag, but there it is).
I am going to refuse to sell my baklava to bigoted @ssholes. The baklava is my artistic expression. If the Supremes make the wrong, pro-bigot decision in this case, the he!! with the bigots who want some.
Do you love my baklava?
My baklava loves you.
Unless you are a bigot, then
No baklava for you!
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“Supreme Court Brief”
A wedding cake is sacred
For woman and a man
And never will I bake it
For any other fan
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Ha!
Let them join MY church. Let the be straight.
Let them be just like me.
Then, let them eat cake!
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“Cake for the Masses”
The cake is for the masses
The Catholic ones, that is
And LGBT classes
Are banished from my biz
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Being a pastry bigot is a piece of cake, easy as pie.
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“But there is a big difference between a couture shop that creates the perfect wedding dress or a cake that incorporates the designer’s artistic vision and a boutique selling off the rack. David’s Bridal isn’t Vera Wang.”
The baker’s counsel conceded at oral argument that the first amendment “coerced speech” argument would not apply to “off the rack” goods, because in such cases the “speech” would have already happened prior to the encounter with the customer.
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Can we stop pretending that we live in a Democracy . What ever the court rules, will be a political decision and a decision skewed by a flawed nominating process of Judges. . If our elections have not been free and fair due to gerrymandering and voter suppression ,then we no longer live in a Democracy. The fact that the congressional votes infrequently represent the will of the majority another ruse . This morning there was a piece in Alternet that quoted 538 as saying Democrats needed a 9% national advantage to take over the congress .
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What’s a process for nominating federal judges that would prevent judicial decisions from being political decisions?
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FLERP!
Perhaps there never has been such a process . But when Republicans refused to hold hearings for Merrick Garland for 10 months they took it to a new level. Before that every Federal appointee was blocked by filibuster to again a new level .
“The President shall nominate with the advise and consent of the senate ” Tough to give advice and consent when you refuse to meet with the nominee . .
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Ah, I see what you’re saying. “Process” is getting to existentially terrible levels.
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When process is recess
The progress is regress
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YES. Progression cannot occur when implemented through repression.
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Thanks for referencing this article, Joel. I read it with interest. The interesting point it made to me was that the voter ID requirements would penalize the democratic voters by about 3%. As for judges, citizens United seems to assure us a return to the Guilded Age of outright purchase of powerful men, if we were not there already.
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yes.
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Exactly how far would these Xtians (not to be confused with Christians) take this? If a baker knows that a son has been disrespecting his father or that a woman has been cheating on her husband, is he allowed to refuse to bake cakes for them too? Can he take them out and stone them?
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From the baker’s petition for cert:
“Because of the artistry associated with custom cakes, Phillips also honors God through his work by declining to use his creative talents to design and create cakes that violate his religious beliefs. This includes cakes with offensive written messages and cakes celebrating events or ideas that violate his beliefs, including cakes celebrating Halloween (a decision that costs him significant revenue), anti-American or antifamily themes, atheism, racism, or indecency. He also will not create cakes with hateful, vulgar, or profane messages, or sell any products containing alcohol.”
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“The cake as religion”
The cake as religion
With baker as God
A church in the kitchen
Where pastries are gnawed
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In the name of the Father, Son and Holey cake 🍩
Amen
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Well, that does it! I am going to start praying to Bill Gates because he has a holely brain.
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For my two cents this is the same as the luncheonette dilemma which were private businesses run by racists. There, government said discrimination was illegal because it was a moral failing as interpreted through the Constitution.
So is this the same? It depends on the modern church – if they shun homosexuality after their own history, the history will just repeat. This baker should make a sign saying “appointment only” – who knows if they are glory seekers looking to corner the homophobe market, or puppets of others, they are pushing the majority of states and the states could push this right back like a pie in the face.
I’d be fine with states rights, because the homophobe states would be boycotted overnight. The solution is reachable through democracy, provided that the vote is in verifiable paper ballots.
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I cannot stand the bigotry and hatred that people have for each other. Life would be so much easier if we would respect our fellow man and work to help each other. No religion should be an excuse to discriminate against another human.
Mankind has a long way to go before we become a force for good. Progress is so terribly slow. Humans have been around for centuries and we still discriminate against each other.
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“Möbias”
I am better than her
And she is better than me
Möbias has allure
For all of humanity
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We’ve had months of this nasty sort of debate in Australia, leading up to the postal “vote” and subsequent victory by the “yes” side (62% of respondents). There was a very good analysis of the “wedding cake” argument in our progressive weekly, The Saturday Paper:
https://www.thesaturdaypaper.com.au/2017/09/09/inside-the-yes-case/15048792005186
(Don’t know if you can access this in the USA)
When they got home, the mother told Laurel what the cake shop owner had said. Laurel tried to comfort Rachel, who pushed her away. It was then she got angry and decided to make a complaint. And there, again, it might have ended, if the Kleins had relented.
Instead, on January 29, Aaron Klein posted an image of their complaint on his Facebook page, with the comment: “This is what happens when you tell gay people you won’t do their wedding cake.”
The image included the complainants’ personal details, and the next day they got the first phone call from a right-wing radio talk-show host. The case became national news. Hate-filled comments poured in on social media.
Fundamentalist family members turned on them. Laurel’s aunt contacted her to say that if she ever set foot on the family’s property she would be shot in the face. Rachel’s sister wrote a Facebook post in support of the Kleins [the name of the baker]. Adding to the pressure, the couple feared they would lose the chance to adopt their children. The two women became increasingly scared for their safety, and physically ill, and their relationship suffered.
There was a boycott of Sweet Cakes, although Rachel and Laurel had no part in organising it. A commissioner of the Bureau of Labor and Industries, in July 2015, ordered the Kleins to pay $US135,000 – not a fine, but rather compensation for the “emotional and mental suffering” endured over two years by the couple.
The compensation has not yet been paid to the two women. An appeal by the Kleins is proceeding – crowd-funded, according to recent reports, to the tune of more than $US500,000.
There is more than one point to the story. The obvious one is that the version of the Sweet Cakes saga that keeps getting dished up by the opponents of same-sex marriage omits a huge amount of salient detail.
The second is that in this country, bakers – and florists, and various other commercial operators often cited by anti-marriage equality advocates as being threatened by same-sex marriage – are already subject to anti-discrimination laws. Changing the Marriage Act will not change that in any way. It is no more illegal to discriminate against married people on the basis of their sexuality than it is illegal to discriminate against unmarried ones.
So why does it keep cropping up in right-wing talking points and media articles and submissions to parliamentary inquiries?
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Thanks for the link David Perry!
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When I lived in Kentucky, two gay men near my town, opened a gay-friendly resort. This occurred in rural Kentucky, in a very conservative part of the state.
http://articles.latimes.com/1992-11-08/news/mn-320_1_gay-bar
When the local people tried to close the resort down, the story went national.
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The sad thing is that the Republicans will use issues like this to defuse what might otherwise be pure voter anger over Republican tax policy. Social issues are the gifts that never stop giving to be Republican party.
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Should Woolworths be required to serve black people at their lunch counter? Hell YES!
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