The Colorado same-sex cake ruling


The US Supreme Court yesterday issued a 7-2 ruling that upheld the decision by a Colorado baker to not bake a cake for the wedding of a same-sex couple. While this is not a good thing, it could have been a lot worse. The ruling was very narrowly crafted to deal with very specific particulars of this case and so cannot be taken as a blanket license for private businesses to discriminate against the LGBTQ community. Justices Ginsburg and Sotomayor were the dissenters. You can read the opinions here.

Amy Howe discusses the facts of the case and the likely impact of the ruling.

The Supreme Court ruled today in favor of Jack Phillips, a Colorado baker who refused to make a custom cake for a same-sex couple because he believed that doing so would violate his religious beliefs. This was one of the most anticipated decisions of the term, and it was relatively narrow: Although Phillips prevailed today, the opinion by Justice Anthony Kennedy rested largely on the majority’s conclusion that the Colorado administrative agency that ruled against Phillips treated him unfairly by being too hostile to his sincere religious beliefs. The opinion seemed to leave open the possibility that, in a future case, a service provider’s sincere religious beliefs might have to yield to the state’s interest in protecting the rights of same-sex couples, and the majority did not rule at all on one of the central arguments in the case – whether compelling Phillips to bake a cake for a same-sex couple would violate his right to freedom of speech.

But the critical question of when and how Phillips’ right to exercise his religion can be limited had to be determined, Kennedy emphasized, in a proceeding that was not tainted by hostility to religion. Here, Kennedy observed, the “neutral and respectful consideration to which Phillips was entitled was compromised” by comments by members of the Colorado Civil Rights Commission. At one hearing, Kennedy stressed, commissioners repeatedly “endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.” And at a later meeting, Kennedy pointed out, one commissioner “even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.” “This sentiment,” Kennedy admonished, “is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.” Moreover, Kennedy added, the commission’s treatment of Phillips’ religious objections was at odds with its rulings in the cases of bakers who refused to create cakes “with images that conveyed disapproval of same-sex marriage.”

But the majority left open the possibility that a future case could come out differently, particularly if the decisionmaker in the case considered religious objections neutrally and fairly. Other cases, the majority emphasized, “must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.” Justice Ruth Bader Ginsburg dissented from the court’s ruling, in an opinion joined only by Justice Sonia Sotomayor. Ginsburg stressed that there “is much in the Court’s opinion with which I agree,” but she “strongly” disagreed with the idea that the same-sex couple “should lose this case.” In particular, she argued, neither the commissioners’ statements about religion nor the commission’s disparate treatment of other bakers who refused to make cakes disapproving of same-sex marriage justified a ruling in favor of Phillips.

This case is another example of how what parties to litigation say outside the actual legal proceedings can be taken into account in discerning the intent behind an action, and that prejudicial intent can undermine your legal case.

The opinion has resulted in a flurry of analyses about the implications and you can read a round up here.

Comments

  1. says

    Except as far as I have read everything that was said by the commission and included in the briefs was factually correct and not disrespectful. That fact that a committee members compares one form of discrimination with another is neutral. If the bakers in question infer from that that members of the commission think the bakers are bigots, then that is on the bigots…I mean bakers.

  2. kenbakermn says

    One wonders if he will have the courage of his convictions and post a sign on the door stating who he will not serve. And maybe it’s time for every gay couple in the state to ask him for a cake and sue him when he refuses.

  3. Quirky says

    “Congress shall pass no law…” !st Amendment.

    What part of “no law” do the losers here not understand?

    If the Supreme Court had ruled otherwise it would have accomplished what the Constitution forbids Congress (and the state legislators) as a matter of principle from doing.

    Should an individual be denied an unalienable natural right to express his/her deeply held religious beliefs just because someone claims a government created right/privilege to be accommodated?
    How could this occur without violating the !st Amendment in such a case?

  4. says

    This case is another example of how what parties to litigation say outside the actual legal proceedings can be taken into account in discerning the intent behind an action, and that prejudicial intent can undermine your legal case.

    On the other hand, I think Ed Brayton is correct when he predicts that the conservative justices of SCOTUS will ignore what Trump has said in regards to his Muslim ban:

    Indeed, the Court will soon rule in the case involving Donald Trump’s travel ban from some Muslim countries and a core argument from the plaintiffs in that case is that Trump repeatedly stated his desire to discriminate against Muslims with that order. The government has responded by arguing that Trump’s statements on the campaign trail are irrelevant, if the policy itself if constitutional, his motivation or intention is irrelevant. And I will guarantee you that every single conservative justice on the court will agree with the government’s argument on that. And that will be a rather obvious contradiction with this ruling.

    Ed also pointed out that the exact quote that Kennedy is oddly bothered by was as follows:

    Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

    This looks to be quoted by Kennedy himself in his opinion. This is a bit disturbing as it seems Kennedy read more into that quote than was actually there because it’s not clear, from what Kennedy quoted, that this was stated as a comparison, as Kennedy claims there was, to what Phillips was doing. Or else there is more to what the commissioners said that Kennedy left out of his opinion.

  5. says

    Should an individual be denied an unalienable natural right to express his/her deeply held religious beliefs just because someone claims a government created right/privilege to be accommodated?

    Bless your heart.

  6. flex says

    Should an individual be denied an unalienable natural right to express his/her deeply held religious beliefs just because someone claims a government created right/privilege to be accommodated?

    Yes.

    Let my try to get this through to you in a few different ways.

    First, your sentence also applies to religiously motivated human sacrifice. This is not a ‘slippery-slope’ argument, I’m not suggesting that anyone was waiting for this USSC ruling to start sacrificing their parents to Baal. I’m simply pointing out that a deeply held religious belief is not given an unalienable natural right of expression. The question is not whether the right to express your religious belief is accommodated, but where we draw the line. You probably would draw the line somewhere before religiously inspired murder (although I have no evidence to support this assertion), but it is appropriate to discuss where the religious belief can be accommodated and where is should be restricted. Many people will say the religious beliefs which cause harm to residents of a state should not be allowed in the public and business sphere. Denying service is causing harm.

    Second, businesses are regulated by society through government. Various levels of government, from the local municipality, through the state and to the federal level all regulate businesses in some fashion. This can be as benign as taxation to an onerous as significant restrictions due to things like zoning regulations, municipal or state safety codes, state and federal anti-discrimination laws, etc. The ideal of a democratic government is to treat all citizens equally. To that end; local, state, and federal governments are expected to require public business to treat all citizens equally. Citizens expect to be treated equally by all public businesses and they expect governments to help enforce their expectation of equal treatment. If a deeply held religious belief prevents a public business from treating citizens equally, the government has a duty to intervene and either correct the actions of the business or revoke the businesses privilege to operate publicly. This has nothing to do with what the religious belief is, or how the discrimination occurs. A business providing goods to the public cannot refuse service to a member of the public because of a religious (or any other) belief. Service can be refused for other reasons, e.g., the business is too busy to perform the service in the expected time-frame is a common one. But a religious belief, no matter how deeply held, is not an acceptable reason.

    Third, all rights are created by governments. There are no unalienable natural rights. The unalienable rights so famously listed in the Declaration of Independence are a statement from a body of men. Men who are stating that because they believe in these rights, they need to change their government to create a government which protects those rights. All rights are created by, and protected by, governments. One right which has been neglected by government is the right for two consenting adults, who happen to be of the same sex, to marry. The right to marry between two consenting adults of opposite sex has been protected, even encouraged, by government for centuries. The government has not created any new rights by recognizing same-sex marriage, it has only extended the already existing marriage rights to a class of people which has been denied that right.

    I am disappointed in this ruling. The ruing appears to have looked for, and found, a way to kick the can down the road for another few years. While I understand that there is a need for official commissions to be respectful of the deeply held religious beliefs of the citizens they represent, the language used by the Colorado commission seemed (to my eyes), to be trying to respectfully explain to the plaintiffs the problems that deeply held religious beliefs have caused in the past as an explanation as to why their decision was made to protect the citizens over the business. If the Colorado commission was dismissive of the plaintiff’s arguments, that could have been corrected by the USSC while still ruling that the Colorado commission’s final ruling was accurate. I would not be surprised to learn that a bargain was made to narrowly rule for the bakery in this case in order to get some votes for another decision which has yet to be released. I don’t like the idea that this happens, but we know that it does.

  7. Quirky says

    First Tabby mistakenly surmises, “First, your sentence also applies to religiously motivated human sacrifice”.

    Not so. No one has an unalienable right to sacrifice/murder/harm/initiate aggression against another person.
    On the other hand everyone has an unalienable right to believe and to express their beliefs. The baker’s refusal to bake the cake was an unalienable expression of his deeply held beliefs. Naturally occurring unalienable rights are beyond the purview of government/public regulation. No private individual person is vested with the authority to regulate the beliefs and expressions of another. If you disagree then please offer the source of that authorization as evidence please.

    Secondly with respect to acting outside of governmental regulations and democratic ideals, Tabby falsely premises, “But a religious belief, no matter how deeply held, is not an acceptable reason.”

    Tabby, you are conflating religious beliefs in general with an individual’s right to hold and express religious beliefs that are inalienable. The two are not the same. You do understand what inalienable means, do you not?
    For example, you hold the belief, (whether right or wrong is not the issue here), that same sex marriage is acceptable and should be condoned by society at large. Many persons disagree with you. However your inalienable right to believe and to express that belief is merely EQUAL to the inalienable right of those who believe and express their disagreement with you. Neither group has any authority to divest the other of their inalienable right (under color of law) to believe and to freely Do you Tabby have the authority to compel another to believe and express the beliefs to which you subscribe. From whence did you receive that authority?

    As a legal matter, standing to sue premised upon a real injury and must be present and well pleaded. Except for the Public Accommodation statute and the statutes and regulations promulgated in accordance with the Colorado Anti-Discrimination Act and the interpretation afforded to those statutes and regulations by the Colorado Civil Rights Commission the original Plaintiffs in this matter would have no standing to sue. None of these statutes take into consideration the argument of inalienable rights I am making. Most people have no comprehension of this class of rights.

    Finally Tabby makes the biggest blunder of all, claiming that “all rights are created by governments. There are no unalienable natural rights”.

    Now either Tabby is a Nihilist (but if she is then why argue for the rights of those protected by discrimination laws) who doesn’t believe in the concepts of right and wrong or she just doesn’t have a good grasp of history. Before governments existed mankind recognized the concept of rights (unless you are suggesting the right to property, for instance, didn’t exist before governments were instituted. Supposedly governments were created to protect these rights.

    Tabby would prefer to overlook the self-evident laws of nature and the inalienable rights that arise from their consideration and to create a world where her idea of law is Supreme. That’s probably why she is disappointed with the ruling..
    P.S. Tabby if you are a male, please forgive me for not being gender inclusive in my use of pronouns, but you just struck me as being overly feminine..

  8. Quirky says

    Correction edit. The statement above “Neither group has any authority to divest the other of their inalienable right (under color of law) to believe and to freely” should read as follows:

    Neither group has any authority to divest the other of their inalienable right to believe and to freely express those beliefs by some regulation, (under color of law) as such laws are violative of unalienable rights.

    I hope that is clearer. Sorry for the oversight.

  9. says

    My last two comments were to “flex” not Tabby. Sorry

    Quirky, at least Quirky realizes Quirky was patronizingly repeating the name of the wrong person over and over again, Quirky.

  10. flex says

    Let’s start at the back…

    Before governments existed mankind recognized the concept of rights…

    Citation sorely needed. Our earliest historical records are from governments (Babylonian, Hittite, and Egyptian texts), so your claim that mankind recognized that rights existed prior to the existence of government is at best a sign of ignorance, at worst a known lie. Please note, religious texts are not considered historical.

    As a legal matter, standing to sue premised upon a real injury and must be present and well pleaded

    I made no mention of a standing to sue, I mentioned that denying service is causing harm. These are different things. There are quite a few things which cause harm which do not create a standing to sue. Either you miss-understood what I wrote (possibly deliberately) or worse, could not read what I wrote with comprehension.

    And so we get back to the core of the disagreement. The belief you have that certain rights are “inalienable”.

    On the other hand everyone has an unalienable right to believe and to express their beliefs.

    Half that statement I will agree with (with some reservations); everyone has the right to believe what they wish. They will likely be wrong in some of those beliefs, I’m undoubtedly wrong in some of the things I believe in, but that does not give anyone an inalienable right to act on those beliefs.

    There are restrictions on our actions created by the society we live in. This is necessary to create a society. Most people believe these restrictions, if they think seriously about them at all, are generally to the benefit of society. These restrictions include not murdering our neighbors, not robbing trains, and stopping at stop signs. There are thousands of these restrictions placed on our behavior by our society and our governments (governments generally simply codify the norms of society).

    There are no inalienable rights on our actions. If you spent a couple moments looking up the definition of the term “inalienable” you would learn that it means that anything that it refers to cannot be taken away. There are few inalienable rights, and none in found in nature; unless you count the law of gravity to be one of your rights. Alive or dead, the mass which currently makes up your body will be drawn toward the center of the earth (again, simplified).

    Other than that what inalienable rights do you have? You have the right to think, but the right to speak your opinion is not inalienable; it is guaranteed by law. Many societies in history did not allow people the right to express you opinion, making this right not inalienable. Freedom of religion? Nope, not inalienable, the Pilgrims killed Quakers because of their proselytizing. Your freedom of religion is guaranteed, and limited, by laws. Freedom to talk to your neighbor? Guaranteed by the laws of society and not any laws of nature (talk to the Stasi about that one). You may want to believe some of these activities are inalienable, but in reality they are not.

    How about the right to breathe? Nope, not inalienable. It can be taken away. In our current American society, it is possible to take away the right of a person to breathe (it’s called the death penalty). Breathing may be considered an involuntary action, but society can take it away. You have the right to be punished, sent to jail, and even be killed over rights you might believe are inalienable. You might not think this is right, neither do I, but the term ‘inalienable’ is not a term describing reality, everything you own and are can be taken away. There is no protection in religion, there are no natural rights, there is law. I do not worship the law, I know it’s weaknesses and strengths, but it is also the only bulwark we have against anarchy. The only bulwark we have against the strong preying on the weak, and all the misery and death which will ensue.

    You live by the sufferance of your community. This is a very blunt way of putting it, but it is absolutely true. If you, strong religious beliefs or not, violate too many of the strictures placed on you by our society, society will execute you. The Quakers which were killed by the Pilgrims had very strong, deep, religious beliefs; yet they still died.

    There are no inalienable rights. There are only rights granted to you by the society you exist within. If you hate this idea, you can isolate yourself from society, but you will have to interface them in some fashion for food, shelter, etc.

    This isn’t nihilism, this is reality.

    … prefer to overlook the self-evident laws of nature….

    There are no self-evident laws of nature. Laws are created by people, not nature or gods. I challenge you to show evidence otherwise (obviously I’m speaking of laws dealing with human interaction, not physics).

    Since laws are made by people, they can be evaluated by other people and judged for their fairness and applicability. Laws can be changed if fairness is lacking. Conversely, they can also be changed to be less fair and create privileges for a subset of people. Laws can help level the playing-field of life, or so perversely contort the playing-field of life as to make it impossible for some to live. Laws are not sacred, they are a tool. Laws can be a weapon or a boon, depending on how they are written and implemented.

    P.S. The fact that you feel the need to comment on your impression of my gender says a lot more about you than I.

  11. EnlightenmentLiberal says

    To Quirky

    “Congress shall pass no law…” !st Amendment.

    What part of “no law” do the losers here not understand?

    Apparently it is you who understands nothing. You say that this is about congress making a law that restricts freedom of speech and freedom of religion, which is verifiable nonsense. This particular court case has nothing to do with federal restrictions on speech. Rather, this is about a Colorado state law, and whether the state law and/or this particular enforcement of the state law violated the federal first amendment. So, you have no idea what you’re talking about here. You should really try to educate yourself on the matter before mouthing off about it.

    The baker’s refusal to bake the cake was an unalienable expression of his deeply held beliefs.

    Are you against the public accommodations provision of the Civil Rights Act of 1964? In other words, are you against the law which forbids public accommodation businesses from denying service to black people? How is that sort of law any different in any relevant sense than a law forbidding discrimination against gay people?

  12. Quirky says

    Flex, are you asserting that in the absence of society individual men or women do not have rights to property or self-ownership? Do you possess yourself or does someone else, society or the government for instance, possess a higher claim on you than yourself? If an individual does not enjoy the highest unalienable right to freely possess his life then it could be logically argued that slavery is as morally and ethically acceptable as any other estate of possession, including self ownership..
    .
    You seem to be confused as to your understanding of the meaning of ‘unalienable”. Simply put unalienable rights are those rights that all members of the human family are vested as an incident to being human. These rights are not transferable to another, however they can be violated; murder for instance is theft of a life that another rightfully possesses. This is why most virtuous/good people recognize murder as wrong/immoral? I bet you do too.
    .
    If unalienable property rights do not exist as an incident to the human estate as well as existing both antecedent to and in the absence of the forces of society and government then just what would you assert as the legitimate purpose of instituting government?
    .

    Finally I only pointed out the “standing to sue” issue to show that it was only by the use of statutes and regulations that operate to contravene the unalienable rights of the baker that the Plaintiffs could claim standing. The harm to their feelings wouldn’t be any greater than the harm to the baker’s feelings if he were forced to violate his moral principles.
    .
    Can you name one individual among the public that has any individual authority to compel the baker to perform an act that violates his conscience?

    Or do you have faith in the religion of Democracy that asserts that majorities have the right to determine what the law is to be? Do you have faith that the might of a democratic majority, a mob rule, makes things right? Are you of the Thrasymachus religion?

  13. Quirky says

    Enlightenment Liberal, surely you are enlightened enough to know that state laws must conform with the federal Constitutional provisions.
    .
    I am against any public accommodation law or other law that violates the unalienable rights of any individual. I would hope you would be too. Read “The Law” by Bastiat.

  14. Quirky says

    Tabby, Would you have preferred a totalitarian? I mean an Involuntariast?

    Well, Bless your heart!

  15. Dunc says

    Flex, are you asserting that in the absence of society individual men or women do not have rights to property or self-ownership?

    In the absence of society there is no such thing as property. How could there be? What would you need the concept of property for?

    As for the concept of “self-ownership”, I’m very sorry to hear that your mind has been so thoroughly colonised by totalitarian capitalism that you can only relate to yourself as property, and can only conceptualise the idea of personal autonomy as an expression of property rights.

    Can you name one individual among the public that has any individual authority to compel the baker to perform an act that violates his conscience?

    Nobody’s compelling him to do anything. He doesn’t have to bake cakes for money, nor does he have to run a legally-registered business to do so, so he’s perfectly free to choose not to perform the act in question. However, if he wants to bake cakes for money and take advantage of the various legal protections that society extends to legally-registered businesses, those things carry certain responsibilities. The problem here is that he wants to have his cake and eat it – he wants the advantages without the responsibilities.

  16. says

    This is a conversation that isn’t going to go anywhere. Quirk is a libertarian. Based on libertarians who tweeted at me the other day, they believe that laws that make businesses not discriminate are exactly the same thing as slavery.

    I wish I was being hyperbolic.

  17. flex says

    Let’s start at the back again…

    Or do you have faith in the religion of Democracy…

    The idea of democracy is not a religion, it is a tool to help construct human society. Tools can be used well, or poorly. Tools can help, or harm. Calling democracy a religion shows a lack of understanding of what the idea of democracy is and stands for. Democracy is not something you can have faith in.

    Can you name one individual among the public that has any individual authority to compel the baker to perform an act that violates his conscience?

    Well, I don’t know his wife… Seriously though, some societies are structured, and have been structured in the past where individuals could have compelled the baker to perform an act which violates his conscience, or compel the baker to die if they wouldn’t. But maybe a different example will illustrate the point, we have individuals in our society who do compel people to act against their conscience. There are laws requiring people to carry car insurance, and there are religious groups who strongly believe that insurance is evil. And yet, people called policemen will detain and issue fines against these people who drive without car insurance. Eventually, a person with a strongly held religious belief that insurance is evil will lose their privilege to drive on public roads.

    Do you think that people who have a strongly held religious belief against carrying insurance should be allowed to drive on public roads?

    Simply put unalienable rights are those rights that all members of the human family are vested as an incident to being human.

    All such rights are granted by the society that a given human exists in. Simply being human (however you define it) does not automatically grant you any rights. Consider our American history. Slaves were not vested with any rights of property, personal autonomy, or even the option of creating family groups. These rights were never taken away because they were never granted.

    If unalienable property rights do not exist as an incident to the human estate as well as existing both antecedent to and in the absence of the forces of society and government then just what would you assert as the legitimate purpose of instituting government?

    While that is a very confused sentence, I think I grasp your meaning. You want to know why government exists. Government exists for several reasons. First, human beings are primates. As primates we are both social and hierarchal creatures. In any group of primates there will be a leader (or a clique of leaders). There are modern examples (although fewer and fewer) of stone-age cultures which are ruled in the “big-man” structure, where a single man is the head of the group. A hierarchal structure to human society is probably inevitable.

    The second reason governments form is because government allows for planning. If a hierarchal structure exists, then there will be people giving orders and people following orders. Orders can, and often are, given which enhance the prestige/wealth of the people giving the orders. Eventually we have monarchies or oligarchies as the power differential solidifies into castes. There will be a ruling class and a working class. Since society is messy, there may also develop other classes, like a merchant caste or a warrior caste. Please note, the rights people have in each of these castes varies. For example, in some cultures a merchant could be punished for carrying weapons. Most of the cultures, until very recently in human history, also allowed slavery. Meaning that there were human beings in those cultures without any rights of their own.

    Governments once formed had a natural desire to protect those privileges they created for themselves. This is accomplished through setting boundaries with other governments. Since a good way to increase the privileges for the ruling class is to expand the territory controlled by a government, defensive and offensive armies were created within a country. Governments are interested in generating wealth for themselves, and wealth within a society is generally created through a stable system of laws as well as investments in infrastructure and education. Allowing merchants to use their talents to accumulate wealth and then requiring them to give part of their accumulation to the government is natural. The really wealthy merchants ended up joining the ruling class.

    Our modern idea of government is really quite new. The idea that government doesn’t need to be a bludgeon to keep the oligarchs in power is a recent one. Instead there is a modern idea that government can be a tool to reduce or even erase the differences between castes of society. Government can be a tool to promote the idea that all of the primates which are called homo sapiens should have the same rights and privileges.

    Did you notice that none of this explanation for how governments historically develop has anything to do with inalienable rights of humanity? Governments, historical and modern, give lip-service to the idea of inalienable rights, and as citizens living in a democratic republic we can encourage our government to extend the same rights to all people within our borders.

    One of those rights, not inalienable, which we ask our government to protect is the right to equal access to any public business. Refusing equal access on the grounds that the vendor doesn’t like the customer is not sufficient.

  18. Quirky says

    Dunc asserts and questions, “In the absence of society there is no such thing as property. How could there be? What would you need the concept of property for?”
    .

    I was using the word ‘society’ in the contemporary sense of tribal or naton societies having some sort of constructed governments. But before that sort of constructed estate arose men and women as members of the human family historically interacted with one another. These interactions would not necessarily prove the existence of a society in the sense I was trying to convey.
    If you argue otherwise then one would have to assert that the construct we know as society originated at the moment two prehistoric individuals began to interact. Not sure that could rightly be called society.
    However for purposes of the discussion, I suppose that you would argue that at the very moment two historic or prehistoric individuals interacted, if one of these individuals attempted to enslave the other or take the production of the other that the concept of property rights would arise at that moment, not having existed before.
    So if you make that argument then we must admit that the recognition of property rights emerged at the moment one party attempted to control the actions or production of the other. But this has nothing to do with the estate of society as we have come to presently understand it.
    So I hope this better explains how in the absence of society as we know it property rights would still have existed.
    .
    I would agree with your point if there were only one person on the earth or in a given region never having contact with another and having full access and control to all the resources for themselves that property rights with respect to other humans would not exist. However, one would still enjoy a property right to protect his production from any animal that might attempt to destroy it. So it is easy to see that the right is not dependent upon the existence of a human society or even another human. Rather the right to ones production exists because such a one has the highest just claim.
    .
    Even the animals, a bee for instance among many others, will attack another who encroaches in an attempt to take their production or trespass into their domain.. So the right to what is properly ones own production, hence property, is even understood by members of the animal kingdom.
    Many humans seem to have devolved to a place where this is hard to accept.
    .
    When individual production occurs, a property right to 100% of that production arises. If an artist paints a portrait it is his sole property and neither the public nor any another individual is entitled to any part of it.
    .
    So what happens if he exchanges it with another artist for another painting? Is anyone or the public entitled to any part of either painting? Is anyone or the public entitled to regulate that exchange?

    It appears you are arguing however that if the artist or in this case the baker were to sell the painting or the cake for money, then his unalienable right of free expression is then subject to regulation and control by the public.

    It appears that you are also saying that because he was a legally registered business that he had relinquished his unalienable rights. Was there some fine print in the registration form explaining that he must transfer his non-transferable/unalienable rights to the public if he wanted to exchange his talent/autonomy/and production for money? I bet not.

  19. flex says

    Even the animals, a bee for instance among many others, will attack another who encroaches in an attempt to take their production or trespass into their domain.. So the right to what is properly ones own production, hence property, is even understood by members of the animal kingdom.

    Ha, ha, ha, ha, ha, ha. Bees, which often exist in colonies consisting of hundred of individuals, with clearly defined castes, which establish a common storage of resources in a very communal hive are hardly a good example of the animal kingdom’s awareness of an individual’s right to own their own production. True, not all bees are hive dwellers, but the common conception of a bee is.

    You have descended into self-parody.

    But, to answer your point, to suggest that behaviors of animals are examples of understanding property rights is fallacious for several reasons. One, it is a prime example of the naturalistic fallacy. Just because you can cite an example of some animal’s typical behavior does not make it a model for human behavior. We have an advantage over animals, we can reflect on our past behavior and we can prejudge our future behavior.

    Second, for any example you can come up with for an animal which exhibits behavior you want to suggest is something humans should emulate, I can come up with an animal who’s behavior is different. There are many examples of social animals, most multi-cellular animals are social to a fairly large degree. There are exceptions, even among primates, but generally once a species develops limbs, they also develop cohesive groups because that enhances their survival. From the herds of horses, to the pods of whales, to the flocks of finches, to the troops of baboons, animals congregate in groups.

    In other news;

    When individual production occurs, a property right to 100% of that production arises.

    When an individual is publicly offering their services to produce something, they no longer have a 100% property right in the production. If your painter offers a completed painting for sale, the painter has 100% property rights until the sale (but still cannot discriminate among buyers). If your painter is selling the service of painting portraits for money, and I hire them, the painter no longer has 100% property rights in the painting. The painter does not have the right to deny me this service because I’m overweight, or my skin is the wrong color, or I’m a gender the painter doesn’t like. I may get a lousy painting, but when a person offers a service to the public, that service is offered to the entire public. Painting my portrait is not an expression of the painter’s beliefs, it is a contract I’ve entered into between the painter and myself.

    Further, if your painter offers a completed painting for sale, the painter cannot refuse to sell it to me because the painter doesn’t like the color of my skin, or who I choose as a sexual partner. In this case the painter may have expressed their beliefs, and endorsed certain views, in their work. But if the painter is offering the painting to the public for $10, and I have $10 to give them, the painter cannot refuse to sell it to me. The painter’s opinion doesn’t matter as soon as the painter puts a price tag on the item.

    The baker in this case was selling a service, the making of cakes. Yes, there is creativity in the process of making a wedding cake. But the service is offered to the public, which forfeits any argument that the baker’s deeply held religious beliefs precludes them from baking a cake. If the baker doesn’t want to bake cakes for anyone who has the money to purchase them, the baker can choose to get out of the business of baking cakes.

    Was there some fine print in the registration form explaining that he must transfer his non-transferable/unalienable rights to the public if he wanted to exchange his talent/autonomy/and production for money? I bet not.

    Again with the inalienable rights, Moriarty, again with the inalienable rights.

    This has nothing to do with inalienable rights (which you still haven’t shown exist), it has to do with equal access to services in the marketplace. By law, refusing to provide services to a protected class, for the reason of an individual being of that class, is illegal in Colorado. A Muslim butcher cannot refuse service to a Jewish customer because the customer is Jewish.

    A photographer who specializes in wedding photos, and offers that service to the public, cannot refuse to photograph a wedding just because the couple is fat, or old, or ugly, or swarthy. Or of the same sex. The photographer has openly offered their talent in exchange for money in the marketplace. That action alone limits their property rights in the final product. You are asking for an imbalance in the marketplace, a marketplace where seller’s can choose their clientele based on their prejudices. That is not a free market, where buyer’s can choose between multiple seller’s offering the same service. That is very much an closed market, where some buyer’s have more choice than other buyer’s, and possibly some potential buyer’s have forgo the service they desire because no seller will serve them. This was the reason there were the famous Green Books in the 1950’s. There were places where human beings with darker-hued skin could not get service. They could not purchase gasoline for their cars; they could not stop, let alone eat, at restaurants; and in certain areas of the country they could be killed with impunity.

    Requiring, under penalty of law, that services which are offered to the public be offered to all the public, is a necessary foundation for an equal society. We haven’t had an equal society in the past, and we don’t have one now, but those of us who
    are progressives think that the tool of democracy can be used to make things better than they are today.

  20. Quirky says

    Sory Flex, your “tool” of Democracy”, the democratic state and the pseudo authority generated by those democratic rituals is a faith based religion.

    Watch the following for proof.

  21. chigau (違う) says

    Quirky #23
    Golly.
    That video was shit from beginning to end.
    Twelve-year-olds should have their internets access restricted.

  22. Dunc says

    Human beings are social primates, and our pre-human ancestors were also social primates. We had society of one form or another long before we were human.

  23. Quirky says

    Dunc and flex, see if you can help Tabby sniff out the evidence proving the existence of your Faith.
    The Faith of atheist Statists is provably more absurd and insane than that of all other religious believers.
    Its foundations are provably nonexistent.
    In the case of other imaginary gods their non-existence can be asserted but never fully proven.
    But the imaginary foundations of Statist Faith are easily shown to be nothing more than imaginary constructs that are fully non-existent.
    .
    .For instance,
    .
    (1) which one of you can legitimately authorize another to do what you do not first have the legitimate authority to do?
    .
    (2) Did legitimate authority instantly materialize when the democratic group you claim to be a part of became the majority?
    .
    (3) Did the legitimate authority you believe exists become legitimate when the democratic group you claim to be a part of became the majority?
    .
    (4) What is the real foundation of the supposed authority you imagine yourself and others to possess?
    .
    (5) Where do these foundations exist?
    .
    (6) Did this authority exist before you and other members of the faith of Democracy believed it so?
    .
    (7) As to your faith in this concept of Democracy upon which your claim to the existence of legitimate authority rests, do you consider it legitimate to harm others in order to maintain that claim?
    .
    (8) Which individual member within the group composition referred to by the faithful as the ‘majority’ possesses the authority to to order the life of another?
    ..
    (9) Other than within the imagination of your cohorts where does this supposed authority exist?
    .
    (10) Do either of you have any legitimate authority to initiate harm to another human?
    .
    OK, time to start sniffing

  24. Quirky says

    48+ hours have expired and Faithful Statists Dunc, flex and Tabby have failed to present any evidence for the imaginary powers and authorities they rely on for the legitimacy of their Statist Faith. I suppose they are no different than other Religionists who are unable to support their Faith with evidence.
    .
    At least we have discovered they are not Atheists. That is very important. We have determined that they live within their own imaginations as well as others of Faith.
    .
    But who knows, they might be able to one day discover concrete evidence of the existence of the imaginary authority in which they have chosen to believe.
    .
    Until then, we will have to presume that the source of the imaginary authority in which they believe originated in and was extracted out of the majority’s arse.
    .
    With respect to any Statist who think themselves to be an Atheist, Isn’t it extremely sad that such an Atheist cannot be intellectually consistent when it comes to the exercise of their Faith/Belief in imagined political constructs?
    Well if it was a harmless and childish belief such as Santa-Clausism, it would be one thing; but where the faithful believers in Statism are willing to murder, steal, imprison (or have their representatives and agents do it for them) and who only knows what else in order to impose their Imagined Authority on others, one must ask whether these Believers are at their core sociopathic?
    Some of us learned at the age of 3 or so that the initiation of violence as a means to achieve one’s desires was unacceptable and wrong.

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