Water Dog wrote:Res Ipsa wrote:If you're asking what I've posted here, you remind me. I've got better things to do than comb through my old posts. If you have an argument, lay it out.
You make everything so difficult, don't you? If you don't want to answer the question, okay then.
You asked me what my view was, which I assumed referred to past postings here. I recall posting a whole lot about the baker, but I think it was mostly about the free exercise claim and not the free speech issues.
If you want to know what I think about free speech in the case of the baker, I think there are tricky issues there that the Supreme Court hasn't specifically addressed. I think it's pretty clear that the government cannot force the baker to sell a cake that says "Gay marriage is awesome" on it. The government cannot force the baker to put any sort of writing on a cake, because that's clearly speech.
As interpreted by the Supreme Court, speech isn't limited to talking and writing. It also includes conduct intended to communicate. Stuff like art. Or nude dancing. So, we can't say there's no free speech issue with the baker just because we're not talking about writing words on a cake.
The baker case that I'm most familiar with comes down to something like this: a baker has two identical wedding cakes in the shop. She'll sell the first one to opposite sex couples. She won't sell the second to same-sex couples. So, the issue is whether the act of selling the cake is "speech." I'm inclined to think not, although I acknowledge that it's a tricky question.
Now, the case I'm most familiar with, if I recall correctly, involved refusal even to sell off the shelf cupcakes if they were going to be eaten at a reception for a same sex wedding. But with a wedding cake, there are other acts involved other than just selling the cake. There's delivering the cake, there's setting up the cake. So you have to look at the entirety of what's involved to adequately examine the speech issues. Again, I don't think that those actions can be taken as conduct intended to communicate some kind of approval of the wedding. It's a cake being consumed at a party to celebrate the wedding.
In contrast, I don't think the government can require anyone to conduct a wedding ceremony for the same sex couple. That does involve speaking and does communicate an official recognition of the wedding itself. I also think the photographer has a better free speech case than does the baker, because the photography is intertwined with the ceremony itself.
So, please proceed.
“The ideal subject of totalitarian rule is not the convinced Nazi or the dedicated communist, but people for whom the distinction between fact and fiction, true and false, no longer exists.”
― Hannah Arendt, The Origins of Totalitarianism, 1951