The Instigator
kenballer
Pro (for)
The Contender
PRS25
Con (against)

Masterpiece cakeshop v. CCRC

Do you like this debate?NoYes+0
Add this debate to Google Add this debate to Delicious Add this debate to FaceBook Add this debate to Digg  
Debate Round Forfeited
PRS25 has forfeited round #4.
Our system has not yet updated this debate. Please check back in a few minutes for more options.
Time Remaining
00days00hours00minutes00seconds
Voting Style: Open Point System: 7 Point
Started: 12/31/2017 Category: Politics
Updated: 2 weeks ago Status: Debating Period
Viewed: 188 times Debate No: 106270
Debate Rounds (4)
Comments (3)
Votes (0)

 

kenballer

Pro

I will be arguing for the baker where I show how the Colorado Civil Rights Commission (CCRC) violated his first amendment rights. My opponent will be arguing for the other side where he shows how the baker discriminated against the same sex couple's identity. Both sides have the BOP.

First round: Acceptance only
Second round: Arguments
Third round: Rebuttals
Fourth round: Rebuttals and Conclusions

Lastly, I expect my opponent to stay consistent with these facts while he makes his case because they are UNDISPUTED by the parties involved. This was included in the Joint Appendix delivered to the US Supreme Court in connection with this case (see page 168):
https://www.aclu.org...



70. On or about July 19, 2012, two men and a woman came to Masterpiece Cakeshop, Inc.
71. They did not have an appointment, nor do we offer appointments.
72. We sat down at the cake consulting table.
73. The woman was not at the table at any time.
74. She was elsewhere in the store during the interaction.
75. I greeted the two men and introduced myself.
76. The men introduced themselves as “David” and “Charlie.”
77. The men said that they wanted a wedding cake for “our wedding.”
78. I told them that I do not create wedding cakes for same-sex weddings.
79. I told them 'I'll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.'
80. Charlie Craig and David Mullins each immediately got up and left the store.



If anyone who steers away from these established facts, it will be a point loss.
PRS25

Con

I accept the challenge.
Debate Round No. 1
kenballer

Pro


Let me bring some background context to make sure the voters understand the case. Masterpiece Cakeshop v. Colorado Civil Rights Commission is a pending case before the Supreme Court of the United States on whether creative businesses can refuse certain services due to their First Amendment rights of free speech and free exercise of religion in light of public accommodation laws—in particular, by refusing to provide creative services, such as a custom wedding cake for same-sex marriage ceremonies, on the basis of one's religious beliefs (Wikipedia). There are two forms of speech that the constitution protects:

Pure speech in United States law is the communication of ideas through spoken or written words or through conduct limited in form to that necessary to convey the idea. It is distinguished from symbolic speech or "speech plus," which involves conveying an idea or message through behavior. Pure speech is accorded the highest degree of protection under the First Amendment to the U.S. Constitution while symbolic speech is accorded an intermediate scrutiny (Wikipedia).

The simple act of baking a cake even if its done in a highly stylized or creative and elegant manner, which would be a form of symbolic speech, is not the argument that is being put forth in this debate or in court. Instead, its about highly stylizing an idea or theme on a cake that has nothing to do with the person’s identity. There is no dispute that the baker was being required to express an idea of “marriage” on a cake because all of his wedding cakes are customized and whether it was gay or straight is irrelevant. Thus, expressing the idea of marriage on a cake is a form of Pure speech through conduct limited in form to that necessary to convey the idea rather than symbolic speech.

Furthermore, "Phillips specially designs each of his cakes after consulting with the couple to learn their story and vision for their wedding and future. He incorporates personal themes (e.g., mountain climbing) into his custom wedding cakes. He uses his artistic skills, including sketching, painting, sculpting, baking, and construction to design each unique wedding cake.

Writers tell stories on a page, and painters tell stories on a canvas. Jack Phillips and other cake designers tell stories through the medium of cake design. Their art is no less expressive because it can be consumed. Ice sculptures and skywriting are forms of expression that are equally ephemeral. The creativity involved in custom cake design has long been recognized and protected by the federal government as intellectual property and provided with copyright protection.

Custom cake designs also have artistic value that cannot be compared to off-the-shelf cakes purchased at a supermarket or even to the other items that Jack Phillips sells at Masterpiece Cakeshop. These custom creations take on special value because of the collaborative process between the couple and the designer and the unique story they agree to tell through the design of the cake. This artistic value is why Jack Phillips can charge customers several hundred dollars for custom wedding cakes that may feed the same number of people as a much less expensive off-the-shelf item. More well-known cake designers charge in the tens of thousands of dollars for their time and artistic input."

www.heritage.org/religious-liberty/report/enforcing-tolerance-through-intolerance-masterpiece-cakeshop-free-speech

Why is this important?

The baker telling the couple that "I am not going to lend my artistic abilities to doing something I don’t believe in" is a whole different constitutional question compared to just serving somebody. For example, if Walmart said “ we are denying service to all black folks" ( Regardless of context), this would be a denial of service because a Walmart is not doing anything artistic by putting stuff on the shelf and people buying and going to the check out counter. But, when someone is doing something artistic, it’s a whole different ball game and the supreme court has affirmed this.

the supreme court in the Hurley case said that the state could not force a parade to include a particular speaker and ,vice versa, they would not be able to force a speaker to attend a parade. This is because if you force a speaker to both engage in speech and contribute that speech to a expressive event that they disagreed with, you fundamentally transform the nature of their message from one that they want to say to one that they don’t want to say . Likewise, you cannot force a baker to express a “wedding” cake to a same sex “wedding” event that he disagrees with because it fundamentally transforms the nature of their message from a traditional view of marriage to an unnatural view of marriage.

PRS25

Con

Right"well first of all " and not to respond to his opening argument " he copied and pasted all of that information except for the last paragraph or two; 3/4 of your argument was someone else's. Also, you wanted to discuss the issues as they lay in the summary judgment decree that you posted, not any arguments made before the SCOTUS or any appellate arguments beyond summary judgment. So I do not understand why you are basing your argument on an argument of someone else"s after the ALJ delivered its decision for summary judgment. But that"s fine; I didn"t have to research anything outside of the summary judgment decree since I actually went to law school.

I want to also clarify my position: I am making a LEGAL argument based on the court"s interpretations of first amendment protections and the extent of those protections. Therefore it is important to remember that the Instigator has formatted this debate as a legal one. I will try to break down legal concepts into more simplified explanations to support my argument. I am also NOT approaching my argument in the same manner as the SCOTUS heard. In fact, I haven"t even listened to their oral arguments or read their briefs. I was under the assumption we were making our own arguments based on the link to the summary judgment decree that the Instigator posted.

The first amendment reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." In the case of the baker and the gay couple, the operative portion that was argued in court is, "Congress shall make no law"prohibiting the free exercise thereof (religion); or abridging the freedom of speech""

In order to understand how the court"s have interpreted the clause dealing with freedom of speech, they have laid out layers of precedent that explain what speech is - and how, when, where, and why the government may enact laws that directly limit or prohibit certain speech. In other words, this right is not unfettered; meaning there ARE times when it is in the public"s best interest to restrict speech, even if it violates that individual"s right. An example is yelling fire in a theater " it is technically free speech, yet the government has an interest in regulating it. Now, let"s look at what constitutes speech.
Speech is not limited to words, in fact, the Supreme Court has ruled that even campaign donations count as speech, since the symbolic donation of money is an extension of that person"s beliefs. But does that mean that campaign donations cannot be capped? No. In fact, the courts have decided that it IS constitutional to limit the amount given since even the appearance of corruption is not conducive with the purpose of our electoral process.

Now, facts are important when it comes to applying the law to any given situation. There are actually two issues at work here as it applies to the free speech clause: 1) Is the baker"s refusal considered a violation under the Colorado law? AND 2) Would the baker"s making of the cake be considered constitutionally protected speech? Here, the baker has not simply just refused to bake a cake for the men; he has EXPRESSED a discriminatory reason for his refusal " in violation of the Colorado law. If, for instance, the baker had simply stated that he did not want to make the cake for them because he didn"t like the color of their shoes, he would be in the clear. Colorado has their own civil rights laws to extend protections from the federal Civil Rights Act. These extensions can be made insofar as they do not violate any constitutional provisions (specifically the federal constitution, but the state constitution as well since it supersedes the state"s civil rights laws). Now let"s look at whether baking a cake is considered speech for first amendment purposes.

As stated in the summary judgment decree, the ALJ has found that since there was no genuine issue of material fact (meaning that both the baker and the gay men agree on what happened at the bakery), they have found that the facts do not support any violation of the free speech or religious freedom clause of the first amendment. My opponent is stating that he disagrees with the CCRC"s decision and presumably their reasoning. Having looked through their reasoning, it is quite compelling, and even overwhelmingly so.

The baker argues that baking a cake - in and of itself, knowing that these men are going to use it at their wedding/civil union - constitutes speech advocating for gay marriage, when the baker believes gay marriage is wrong. The problem here is that the baker would not have known the cake was for a gay marriage, had they not told them. He would"ve therefore made the same cake he chose not to make, and that cake would"ve been used for their wedding. How can the act of making a cake be considered a form of speech only when he/she knows what that cake is being used for? This seems like a large hurdle to get over. This is because baking the cake itself is not considered speech, for the purposes of the first amendment, unless the baker were to inscribe a message or a meaning on the cake that expressed something unique or personally held point of view. If the baker had been asked to celebrate the civil union with wording that said "Congratulations on your marriage!", or something that expressed acceptance of the marriage, the baker would have the right to deny service due to his religious beliefs (discussed later). But the court has consistently held that first amendment protections do not extend to actions that do not convey some sort of message " verbal or otherwise. This is just common first amendment precedent at work, which is why the summary judgment was not surprising to me. The baker"s lawyers, ironically, used an example of the Westboro Baptist Church asking an Islamic baker to bake a cake with degrading words towards the Quran on it, which actually supports the reason the court decided on summary judgment.

So, as it pertains to the free speech clause in the first amendment, baking a cake without any type of message or meaning behind doesn't rise to the level of speech. Now let"s look at the second portion of the baker"s claim " freedom to practice one"s religion without government interference. But first, let's look at how Colorado's anti-discrimination law operates.

Colorado's anti-discrimination law is constitutional, and forbids businesses from discriminating against customers/patrons based on their sexuality - very similar to the Civil Rights Act. If we look back to Jim Crow laws, these laws were deemed to be unconstitutional because even though businesses were technically not legally allowed to discriminate, they could as long as blacks had an alternative place to go (i.e.-white water fountain and a black water fountain; separate but equal). But this was deemed to still be in violation of the PURPOSE for having a prohibition on racial discrimination. In Colorado, the law closely mirrors this concept, meaning that the gay couple may have an alternative, but it defeats the purpose of the prohibition on discrimination over one"s sexuality.

The baker has a valid religious freedom claim here, unlike the speech claim, yet it still falls short of affording him the protections since (as mentioned in the beginning) the government CAN restrict the exercise of one"s religion for a number of reasons. But let"s also imagine that the act of baking a cake is considered speech as well. Can the government still prohibit speech or religious practice? Yes. What"s important to note here is that the government must have a compelling governmental interest IF the law is neutral on its face (meaning that the law does not explicitly target the practice of one"s religion or speech) and the law incidentally prohibits someone from doing something that happens to be a part of their religious practice/beliefs or speech. An example of this is when the government was challenged on its ability to regulate marijuana use for someone who smoked it for legitimate religious purposes. Well, the Supreme Court ruled that the law was constitutional because the government had not made the law to specifically target those who used marijuana for religious purposes (neutral on its face), and that the government had a compelling governmental interest in (what they believed to be) regulating intrastate commerce. Here it is a similar situation, in that the Colorado law does not specifically target those who are religious and believe homosexuality is a sin. So, the level of scrutiny is affected by these facts, and the level of scrutiny does not rise to strict. Strict scrutiny is only used when the government makes a law that explicitly targets a religion or type of speech that is protected by the first amendment. If this were the case, then the government would need to have a VERY compelling governmental interest in this type of regulation, AND it must be narrowly tailored so that it doesn"t "chill" the first amendment protections too much.

Since the court"s have clearly agreed that this does not rise to strict scrutiny, Colorado only needs to demonstrate that they have an interest in prohibiting discrimination. The Colorado law applies to all businesses, and compelling someone to go against one"s religious beliefs is only INCIDENTAL to the purpose of the law, which is to protect a minority population from discrimination.
Debate Round No. 2
kenballer

Pro

he copied and pasted all of that information except for the last paragraph or two; 3/4 of your argument was someone else's.

I dont get why this is a big deal since I cited my sources and put quotations on those paragraphs. So there is no foul.

Also, you wanted to discuss the issues as they lay in the summary judgment decree that you posted, not any arguments made before the SCOTUS or any appellate arguments beyond summary judgment.

Well, this debate is formatted according to what was presented and argued at the Supreme court; hence, the title Masterpiece cakeshop v. CCRC. Moreover, when I said both parties have to be consistent with undisputed facts of the case, I never said we had to only discuss the issues layed out in summary judgement. Nevertheless, it is fine if Con wants to base his arguments strictly on legal reasoning and law but this is not a requirement in this debate.

Is the baker"s refusal considered a violation under the Colorado law? AND 2) Would the baker"s making of the cake be considered constitutionally protected speech? Here, the baker has not simply just refused to bake a cake for the men;

According to the undisputed facts of the case, this is not an accurate description of what happenedat all. The baker was not denying them service altogether but ,at the most, denying the order within the service. For example, If a Chinese man goes into a Japanese sushi restaurant and the employee denies service because he is Chinese, then this would be the illegal discrimination that CON is talking about. However, if the Chinese man goes into the Japanese sushi restaurant and the Chinese man asked them to prepare Chinese food and the employee denies their order, then this would be what we are talking about here.

Furthermore, the baker NEVER refused to bake a cake for them. The baker told them he would bake other types of cakes celebrating different themes and ideas that he regularly does for everybody else. Thus, making a wedding cake in a way that celebrated the idea of a same sex wedding was NOT on the menu of things they normally do. This is why he let them know in advance so the couple did not have to waste their time just like he presumably would tell other customers if they asked for a Halloween cake regardless of who was asking.

he has EXPRESSED a discriminatory reason for his refusal " in violation of the Colorado law. If, for instance, the baker had simply stated that he did not want to make the cake for them because he didn"t like the color of their shoes, he would be in the clear.

Jack Phillips, the baker, never provided a reason why he does not make gay wedding cakes during his meeting with the couple. However, he did explain why to their mother afterwards: "The next day, Ms.Munn called Masterpiece Cakeshop and spoke with Phillips. Phillips advised Ms. Munn that he does not create wedding cakes for same-sex weddings because of is religious beliefs, and because Colorado does not recognize same-sex marriages. " https://www.aclu.org...

As you can read, Phillips rectified his action because Colorado did not allow same sex marriage at the time of the incident. Since this is the case, there was no violation of the law in fulfilling this order, as the public service is to provide a cake for marriage which would be to a man and woman at the time. More importantly, He rectified his action because of his religious beliefs about marriage NOT gay people in general or their homosexual behavior.

the ALJ has found that since there was no genuine issue of material fact (meaning that both the baker and the gay men agree on what happened at the bakery),they have found that the facts do not support any violation of the free speech or religious freedom clause of the first amendment.

Again, There is no dispute from the facts that the baker was being required to express an idea of “marriage” on a cake regardless as to whether it was gay or straight. Thus, expressing the idea of marriage on a cake is a form of Pure speech through conduct limited in form to that necessary to convey the idea and an issue involving his religious beliefs about marriage.

The problem here is that the baker would not have known the cake was for a gay marriage, had they not told them. He would"ve therefore made the same cake he chose not to make, and that cake would"ve been used for their wedding. How can the act of making a cake be considered a form of speech only when he/she knows what that cake is being used for? This seems like a large hurdle to get over.

Again, The simple act of baking a cake even if its done in a highly stylized or creative and elegant manner is not the argument that is being put forth in this debate or in court nor is it consistent with the facts. Instead, its about highly stylizing an idea or theme on a cake that has nothing to do with the person’s identity.

On the other hand, If their desires were truly that generic as Con describes it, then the other items that they acknowledge Jack Phillips offered to sell and bake them, such as cakes for showers or birthdays or brownies, could just as easily have served the purpose of “consumption” for their wedding. Nevertheless, Mr. Craig and Mr. Mullins had a unique message they wanted to express about their wedding and about same-sex weddings in general, which is why nothing less than a custom-designed wedding cake would do. In fact, they even brought a pamphlet with them full of custom design ideas that they wanted to put on the cake showing that they wanted him to do more than just bake any cake let alone a generic wedding cake.

Colorado's anti-discrimination law is constitutional, and forbids businesses from discriminating against customers/patrons based on their sexuality - very similar to the Civil Rights Act.

Since Con supports CCRC and is taking their position in this debate, I am going to assume Con is espousing their main argument. The CCRC and court of appeals suggested that being against gay marriage is equivalent of being biased toward gay people in the same way that being against interracial marriage was equivalent of being biased towards blacks. I can understand why Con and the CCRC are relying heavily on this argument because if it was true, then there would be solid concrete evidence supporting the class discrimination argument. Nonetheless, I am afraid there are some case law refuting this argument. In Bray v. Alexandria Women's Health Clinic:

"Some activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed. A tax on wearing yarmulkes is a tax on Jews. But opposition to voluntary abortion cannot possibly be considered such an irrational surrogate for opposition to (or paternalism towards) women. Whatever one thinks of abortion, it cannot be denied that there are common and respectable reasons for opposing it, other than hatred of, or condescension toward (or indeed any view at all concerning), women as a class-as is evident from the fact that men and women are on both sides of the issue, just as men and women are on both sides of petitioners' unlawful demonstrations."

Likewise, opposition to same sex marriage cannot be considered an "irrational surrogate" for opposition towards Homosexuals. In fact, the majority in the Obergerfell decision has even made it very clear that the first amendment gives them the right to promote their views of marriage over the government’s revised view of marriage. Moreover, they said that objections to same sex marriage were valid and never suggested that they were based upon bigotry towards gay people nor did they say it was the same situation as people who opposed interracial marriage:

“it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. “

“Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here."

On the other hand, I actually would agree with Con’s and CCRC’s argument if there was any evidence outside of this argument that suggested the baker was biased toward the people and thus suggest that the baker was simply using the first amendment as a shield. For example, evidence of this would be if the baker told the couple that “ I don’t do wedding cakes for same sex couples” rather than “ I don’t do same sex wedding cakes for same sex weddings”. However, proof of this would be if the baker made same sex wedding cakes for heterosexual couples or denied to make heterosexual wedding cakes for same sex couples. If this was the case, then the free exercise argument would indeed be irrelevant, but suffice to say this is not the case here.

PRS25

Con

[I don"t get why this is a big deal since I cited my sources and put quotations on those paragraphs. So there is no foul.]

This is a big deal because you have literally used someone else's argument as your own. It is one thing to quote an argument or cite a portion of an argument to expand on your position, but it is another to placard the entire argument as 3/4 of your thesis. Also, you cited Wikipedia, which isn't a source, it is a collection of sources that requires citation from the original source.

[Well, this debate is formatted according to what was presented and argued at the Supreme court; hence, the title "Masterpiece cakeshop v. CCRC". Moreover, when I said both parties have to be consistent with undisputed facts of the case, I never said we had to only discuss the issues laid out in summary judgement. Nevertheless, it is fine if Con wants to base his arguments strictly on legal reasoning and law but this is not a requirement in this debate.]

Masterpiece Cake shop v. CCRC is a generic administrative docket identifier, not a representation of the current state of the case's appellate status. You also seem to confuse facts with issues. Facts are the events that took place, as you briefed in your proposition; Issues are the legal questions that arise out of those stated facts, based on legal precedent. I realize that you didn't say we only had to discuss the "issues" in summary judgment, but you clearly opined to the DISPUTE that arose from summary judgment as it pertains to the first amendment. This would indicate that you are interested in formulating a unique legal argument based on the ruling and facts within the summary judgment decree you cited and posted in the opening. I get that you don't think that the format of this debate necessarily needs to be a legal one, but you literally formatted the debate as a legal one (i.e.-issue surrounding the first amendment based on the facts=legal argument, NOT solely a philosophical or existential one).

[According to the undisputed facts of the case, this is not an accurate description of what happenedat all. The baker was not denying them service altogether but ,at the most, denying the order within the service. For example, If a Chinese man goes into a Japanese sushi restaurant and the employee denies service because he is Chinese, then this would be the illegal discrimination that CON is talking about. However, if the Chinese man goes into the Japanese sushi restaurant and the Chinese man asked them to prepare Chinese food and the employee denies their order, then this would be what we are talking about here.]

This is a distinction without a difference. What you're saying is that he didn't deny ALL service, but that infers that there was more service for them to get, which is illogical. They went in to get a wedding cake and nothing more. Therefore the service in which they sought was denied. It's an irrelevant point and actually proves my point on Jim Crow laws being closely analogous, whereby since you have other cake options then you don't have a claim; separate but equal. And your analogy doesn't add up. If it were logically constructed correctly, it would read: If a Chinese man goes into a Japanese sushi restaurant and is denied service because he orders Japanese food for his Chinese wedding. It is still discrimination based on his Chinese descent, not on the food he chose to order. This is just semantic word play.

Yes, the baker did refuse to bake the cake, because it was a wedding cake that they wanted. They didn't go in there for a birthday cake, cupcake, or anything else. In fact, he made it clear that he would provide those other cakes because he doesn't support gay marriage. And it's not because he doesn't support MARRIAGE; he doesn't support GAY marriage. Here is an actual analogy: Chinese guy walks into a Japanese restaurant and asks for a rainbow roll for his birthday. Japanese guy says he can't give him a rainbow roll for his birthday because he doesn't support Chinese rainbow roll birthday eating, but he does support Japanese rainbow roll birthday eating. Then the Japanese guy says you can eat any other roll - even the rainbow roll - if you're not celebrating anything Chinese.

[Jack Phillips, the baker, never provided a reason why he does not make gay wedding cakes during his meeting with the couple. However, he did explain why to their mother afterwards: "The next day, Ms.Munn called Masterpiece Cakeshop and spoke with Phillips. Phillips advised Ms. Munn that he does not create wedding cakes for same-sex weddings because of is religious beliefs, and because Colorado does not recognize same-sex marriages.]

A legal distinction without a difference. Even when he retroactively states why he didn't provide that wedding cake, he has still been legally foolish enough to provide substantive intent for his denial. Here's an example: Millionaire burns down his house; is then deposed for a civil suit from the insurance agency; he admits that he was trying to get the insurance money; that intent is then retroactively introduced into evidence to support the case going forward. Take away here is, "Don't say why you did it", because it doesn't matter what you told them at the bakery. What matters is the fact that they now have an admission from you stating that you had discriminatory intent at the time of the denial.

[As you can read, Phillips rectified his action because Colorado did not allow same sex marriage at the time of the incident. Since this is the case, there was no violation of the law in fulfilling this order, as the public service is to provide a cake for marriage which would be to a man and woman at the time. More importantly, He rectified his action because of his religious beliefs about marriage NOT gay people in general or their homosexual behavior.]

The fact that Colorado had no law legalizing gay marriage is not at issue here, nor is it legally relevant. His knowledge that they were not legal has no bearing on the issues at hand. If he had stated that, "I cannot provide you with a wedding cake because the laws prohibit same sex marriage...even though you cannot even violate the law, since the law is what gives you validation", then it would make sense for (ignorant denial and for non-discriminatory intent purposes) but that's not the case. This not an issue as to whether the couple were potentially planning on "breaking the law" against one that doesn't even exist to validate their union.

[Again, There is no dispute from the facts that the baker was being required to express an idea of "marriage" on a cake regardless as to whether it was gay or straight. Thus, expressing the idea of marriage on a cake is a form of Pure speech through conduct limited in form to that necessary to convey the idea and an issue involving his religious beliefs about marriage]

You've conflated a few things here and I'm not sure you understand what you're saying, but I will try and comprehend. I know there was no genuine issue of material fact, that's why I stated it. But you seem to think pure speech includes protected religious speech through symbolic messages. This may be true under certain circumstances, but here we have a questionable form of speech, in the form of baking a wedding cake (just like a million others with no specific message beyond the decoration), and this does not automatically constitute speech - hence the reason it has risen to SCOTUS. Furthermore, you also have the idea of freedom to practice one's religion, and here it is reliant on the idea that his baking of the wedding cake is considered speech. Without those two disjunctive concepts being capable of linking together, neither uphold. If baking a wedding cake is considered speech, and then the denial of such is a valid exercise of one's freedom of religion, the problem still remains that the government has the ability to regulate both speech and religious practice. And, as I noted, the level of scrutiny here does not rise to strict scrutiny, which is problematic since the state government's interest in preventing discriminatory business practices supersedes an INCIDENTAL prohibition against a baker refusing to bake a wedding cake for a gay couple on religious grounds. I would urge anyone reading this to visit my section where I discuss this. As an aside - the 10th amendment would be good to check out here too.

You cite the Bray case, which I don't think is controlling here. As a side - there legally exists a class of people and then there is a protected class of people, which is the point of the Civil Rights Act and the Colorado civil rights law. The portion of the opinion you quoted is actually called "dicta", which means most of it is non-controlling, only analogous. I'm not sure why you did not quote the holding from that case, which is the controlling portion. But, ironically, the opening portion of the dicta you quoted states that "A tax on wearing yarmulkes is a tax on Jews." Well, a denial to bake a wedding cake for two gay men getting married is a denial for gays, if you want to actually use dicta as your holding. Bray involved facts that are wholly unrelated to this case. Bray involved protests by people who were not engaged in business and protesting an abortion clinic; not an abortion clinic refusing to give abortions to women. You might read the whole opinion before you cut and paste.

[In fact, the majority in the Obergerfell decision has even made it very clear that the first amendment gives them the right to promote their views of marriage over the government"s revised view of marriage.]

Please read my portion on levels of scrutiny, I have run out of room and do not want to repeat myself.
Debate Round No. 3
kenballer

Pro

Yes, I did format the debate to be primarily a legal one, but not strictly according to current state of affairs. For example, SinceThe Supreme Court is a "review court", The Appellant/Petitioner on my side has the burden of proof in a review court.This means that it has already been inscribed into law that the baker discriminated against them despite no evidence. However, I wanted both parties to share the BOP in the debate so I can refute the other side's arguments.


They went in to get a wedding cake and nothing more. Therefore the service in which they sought was denied. It's an irrelevant point and actually proves my point on Jim Crow laws being closely analogous, whereby since you have other cake options then you don't have a claim; separate but equal.

Con is operating on what seems like a convoluted or false premise to support his position. His arguments are either implying that Jack sells "Pre-made wedding cake with a custom text" or that his wedding cakes are crafted with the same quality that he makes with his off-the-shelf items or other literary theme cakes. This is totally false. The baker does not create wedding cakes and then stick them onto the shelf PRE-made ready to be customized into something better or different. Instead, all “wedding” cakes are customized or created upon request by Jack who is the only one qualified to make those type of cakes in a special way. This means that when the gay couple said they wanted a wedding cake for “their wedding”, it is no different than saying they wanted a wedding cake customized according to our wedding, which happens to be a same sex wedding.

Since Jack is only qualified to make heterosexual wedding cakes given his religious beliefs and same sex marriage was NOT legally recognized, same sex wedding cakes was NOT on the menu. Thus, there is a difference between equal accommodations and SPECIAL accommodations, which is why I brought up the Chinese versus japenese food example to show how it is valid. Again, if the Chinese man asks the Japanese sushi restaurant to prepare Chinese food despite NOT being qualified nor is it a service that has been provided to ANYONE, this is asking for special accommodations or NEW rights even though they are similar products derived from similar ethnicities.

Even when he retroactively states why he didn't provide that wedding cake, he has still been legally foolish enough to provide substantive intent for his denial.

Well, this is legally irrelevant because the government cannot force someone to engage in speech against their will regardless of the context unless there is a very good reason. For example, If the baker expresses cakes saying “God bless this union” for heterosexual couples upon their request, he does NOT have to do the same thing for same sex couples upon their request despite what you and the lawyers on your side have claimed. This also means that the motivation behind it, such as religion or even personal animus toward a group, is irrelevant because either way it is still compelling speech . Your argument would only apply if the content of the message or speech solely involved the person’s identity, such as painting a portrait of people but choose to exclude black people because they are black. Or, if it was a pre-made static food item he put on the shelf saying "God bless this union", then he would have to sell it to them because there is no compulsion of speech or expression.

we have a questionable form of speech, in the form of baking a wedding cake (just like a million others with no specific message beyond the decoration), and this does not automatically constitute speech

Even if Jack Phillips’ custom cakes are not considered artistic expression/pure speech, his designs would still merit First Amendment protection because they are at least considered to be expressive conduct/symbolic speech, which would require intermediate scrutiny. In Texas v. Johnson, the Supreme Court established that there are two elements of expressive conduct: (1) a subjective intent to convey a message, (2) coupled with the significant likelihood that this message will be understood by an objective observer. For example, "the United States Supreme Court has held, several times, that burning the flag is a protected form of speech even when the US Code states that it is illegal to burn the flag.

Clearly, this is considered speech or else burning the flag would not be so controversial. When one sees the flag burning, it is not just a piece of cloth, it is a representation of the American country and its values. Those who would support a constitutional amendment to protect the flag from being burned believe that the symbol is sancrosanct, and that there is never a justification for it.

Those who oppose it believe that, while it is just cloth, the burning of the flag is the strongest possible statement that America's values (like the flag) have gone up in flames, and that the leaders no longer stand for the values made dear by the country and its framers". Likewise, while it is just a cake, the mere attempt of making a stylized wedding cake for a wedding is considered a ritual that happens in marriages all the time symbolizing the uniting forever of individuals in holy matrimony. This is why specifically creating a "wedding" cake would obviously be a very artistic action that involves a lot of feeling from the artist and eating the wedding cake would merely be a secondary function as a result.

The Hurley case is another great example of why it does not have to be an expression in the form of words or spoken language. “The Court ruled that private organizations, even if they were planning on and had permits for a public demonstration, were permitted to exclude groups if those groups presented a message contrary to the one the organizing group wanted to convey. Addressing the specific issues of the case, the Court found that private citizens organizing a public demonstration may not be compelled by the state to include groups who impart a message the organizers do not want to be presented by their demonstration, even if the intent of the state was to prevent discrimination”. https://en.wikipedia.org...

Likewise, the baker has a right of free speech to exclude a particular group who impart a message the baker does not want to be presented within his wedding cakes even within public accommodations.

And, as I noted, the level of scrutiny here does not rise to strict scrutiny, which is problematic since the state government's interest in preventing discriminatory business practices supersedes an INCIDENTAL prohibition against a baker refusing to bake a wedding cake for a gay couple on religious grounds.

Even if there was any evidence showing that he discriminated against them based upon personal animus toward the person, it would not matter. Discrimination against Sexual orientation only requires rational basis test to satisfy since they are not a suspect or quasi-suspect class. On the other hand, infringing on free speech rights in regards to symbolic speech warrants heightened scructiny, which would trump the rights of the gay couple as a result. Lastly, this infringement of speech rights cannot be considered incidental because the baker was not being required by the state to simply bake a cake or bake a customized heterosexual wedding cake like he does for EVERYBODY. He was required to specifically customize it to look like a same sex wedding cake. This leads to address something else Con said...

But, ironically, the opening portion of the dicta you quoted states that "A tax on wearing yarmulkes is a tax on Jews." Well, a denial to bake a wedding cake for two gay men getting married is a denial for gays, if you want to actually use dicta as your holding.

This is a blanket contradiction with the Obergerfell decision, which is totally related and has controlling precedent over this case. As the supreme court suggested, there are valid reasons for opposing same sex marriage that have nothing to do with sexual orientation. However, even though his argument is entirely dependent on this premise being true, Con neglected to address this refutation, which is a fatal mistake on his part. He should have spent majority of his time addressing this because there is no other basis to conclude class discrimination outside of this argument.

Summary and Conclusions


To summarize my argument, even if expressing a customized wedding cake is not pure speech warranting strict scrutiny, it definitely warrants heightened scruntiny because its clearly symbolic speech similar to burning the flag. I doubt even Con would disagree or object to.

Now, let me summarize my refutation of Con’s argument attempting to justify this infringement. Con’s central argument for why we should believe class discrimination took place in the cakeshop is that all opposition toward same sex marriage is an “irrational surrogate” for being bias toward all same sex couples. The controlling opinion of the Obergerfell decision completely undermines this argument so that it cannot be used to imply such a thing. Since I can’t respond to his attempt to address this flaw within his argument, This concedes the debate.

However, even if we assume this argument was valid, discrimination against sexual orientation only warrants rational basis test. This means the rational basis test is automatically satisfied by the fact that treating them the same infringes on free speech rights of the baker. Finally, Con cannot claim that this was “incidental” infringement on his rights because we are not talking about simply baking a cake for everyone, which would be a government interest. Instead, its about “decorating” a wedding cake to potentially look like a same sex wedding. Thus, there was NO state interests to force that baker to make same sex wedding cakes, especially when same sex marriage was NOT even legal in Colorado!!!!!!!!

This round has not been posted yet.
Debate Round No. 4
3 comments have been posted on this debate. Showing 1 through 3 records.
Posted by PRS25 2 weeks ago
PRS25
Okay, I wrote this in Microsoft Word, then copied and pasted it into the website. All of my dashes (-) for some reason have been converted to quotation marks. So when voting, know that I wasn't using those quotation marks intentionally.
Posted by KZC 3 weeks ago
KZC
@Inconvenient_Truth, I'm assuming Pro is arguing the case for Masterpiece Cakeshop and Con is arguing the CCRC. That's why the title is Masterpiece Cakeshop v. CCRC.
Posted by Inconvenient_Truth 3 weeks ago
Inconvenient_Truth
Hi Kenballer, I'm not sure what argument you want CON to make? I'm not sure what you mean by "discriminating against their identity"? Also, it seems you are insinuating that the BOP is shared, otherwise why does CON have any argument to make?

Thanks.
This debate has 0 more rounds before the voting begins. If you want to receive email updates for this debate, click the Add to My Favorites link at the top of the page.