December 5, 2017

Justice Alito's Kristallnacht hypothetical (in the Masterpiece Cake case).

From the Wall Street Journal's excellent coverage of today's oral argument:
Justice Alito continued to poke at Colorado’s insistence that all would be well if Mr. Phillips simply provided an identical product--such as the same cake with the same words--without regard to characteristics the state protects from discrimination. What if one couple ordered a cake celebrating its anniversary, with icing that read something like, “Nov. 9 is the greatest day in history.” And then someone else came in and ordered the identical cake, explaining, “We’re going to have a party to celebrate Kristallnacht”--the Nazi pogrom that began Nov. 9, 1938, marking a major step toward the Holocaust.

23 comments:

Big Mike said...

Oof. Good question. How did they respond?

Big Mike said...

I hope somebody asks a variation on my question about whether it would be legal to provide a cake with no icing because an artist can always refuse a commission.

Big Mike said...

Or can artists legally refuse a commission?

Bay Area Guy said...

The Left doesn't believe in free speech. They oppose free speech that offends them, and they require folks to make speech they support.

Yancey Ward said...

Big Mike,

If Colorado wins this case, then logically artists won't be able to refuse the commission of art whose statement they don't like. However, don't we already know that if Colorado wins this case, the result will be applied with a full and complete double-standard- you will be able to refuse a commission as long as you have the right beliefs you are defending.

rhhardin said...

Germans thought Hitler meant well until Krystalnacht. It's like the left until Bush II.

3 conflicting edits in a row so far.

bgates said...

One objection to the hypothetical is that it is widely known that Nazis consider November 9th the greatest day ever.

Especially those of us who had felt too hopeless to stay up and hear the news the night of the 8th.

Paddy O said...

From the 11:05 WSJ update:

"Mr. Phillips is not basing his decisions on who his customers are, but what they are doing."

This is the fundamental disagreement. And it's a question of theological anthropology. Fundamentally Christian theology says that identity is not formed by sexuality. Sex is something people do.

Whereas, current philosophical climate insists that sex is identity, who you do is who you are. That said, there's a good argument that it is the church that led to such a philosophical climate as it ontologized sin, calling people by titles of their sin ("you are a...") rather than calling out sin as just behavior (You should not do...") In adopting this language, the Church used it's moral/social authority for regulating behavior but as that authority was lost, people co-opted the ontology as being a good.

What we need to come back to is that attraction is not identity it is behavior. But to say that is to run up against very strong cultural assumptions that are really religious in nature on every side.

Jim S. said...

I've said it here before: it seems to me that this whole issue hangs on whether the baker is considered a participant in the event or is merely a merchant. In the latter case, choosing not to sell a wedding cake to a gay couple would be on the same level as not selling a donut to a gay person: it's discriminatory. In the former case, however, the baker is being asked to play a role in a ceremony, and they are now being told that they do not have the right to say no, even if that ceremony violates their conscience and religious beliefs. A Jewish baker should not be forced to cater a neo-Nazi meeting. I note that wedding cake bakers have usually seen themselves as participants, but I'd want to hear some defense of this. I'd also want to hear some defense of the claim that they are merely merchants and not participants.

Pettifogger said...

Real estate, not constitutional law, is my field, but I have supposed that Colorado's case depends on sexual orientation being an immutable characteristic and therefore a protected one. If so, I can see compelling someone to bake a wedding cake for a gay wedding while allowing refusal to bake a Nazi cake. Being a Nazi is not, I hope, an immutable characteristic.

Maybe my analysis of this matter is out of date or otherwise misguided.

All that said, while my sympathies are with the baker, I am troubled by the notion the baker is a public accommodation. I would not want to see people turned away because of race or ethnicity.

John Tuffnell said...

The answer is Alito loses because Godwin.

And Colorado doesn't have to answer because gay people wanting a cake are not Nazis.

Of course, using the power of the state to compel an individual to participate in activities that offend that person's beliefs is a bit like fascism, but let's not explore that too closely, as it exposes the lie that this is an easy-as-pie question.

n.n said...

The [qualified] progressive slope is a real concern.

Gospace said...

rhhardin said...
Germans thought Hitler meant well until Krystalnacht.


Let's be honest here. A lot of Germans fully approved of Kristallnacht. Regrets about it occurred after they surrendered.

Chris Breisch said...

Nov. 9 is my birthday. It's also the day the Berlin Wall came down.

It IS the greatest day in history.

Ok, maybe not. Kristallnacht is beyond horrible, and some of my ancestors/relatives were caught up in it.

What, you thought "Breisch" was Italian?

Rick Turley said...

Jim S. said..."

"In the latter case, choosing not to sell a wedding cake to a gay couple would be on the same level as not selling a donut to a gay person."

I am fairly certain they would be happy to sell you a regular donut from the case, just not decorate for you celebrating gay events.

Patrick Henry said...

While I'm very sympathetic to the notion that we should not discriminate. I'm opposed to any laws that forbid private individuals in any type of commercial (or non-commercial) interaction from choosing to participate for any reason whatsoever, including any of the ones that we now deem morally abhorrent.

This doesn't mean that such discrimination is good, moral or wise - and in most cases it's not good business. I'm actually against such discrimination. I just don't think there ought to be law against it...

jimbino said...

@Patrick Henry

laws that forbid private individuals in any type of commercial (or non-commercial) interaction from choosing to participate

in English would read

laws that forbid private individuals in any type of commercial (or non-commercial) interaction to choose to participate

Kristian Holvoet said...

but I have supposed that Colorado's case depends on sexual orientation being an immutable characteristic

Then please explain at least half of LGBTQQIA ...

HoodlumDoodlum said...

Big Mike said...I hope somebody asks a variation on my question about whether it would be legal to provide a cake with no icing because an artist can always refuse a commission.

It depends. If you're refusing the commission for the wrong reason--wrong meaning in some way that can be construed to harm some protected group--then it'd be illegal to do so. If not then refuse away! Ambiguity? See you in court, buddy; bring some cash for your lawyer.

Jupiter said...

Patrick Henry said...
"While I'm very sympathetic to the notion that we should not discriminate. I'm opposed to any laws that forbid private individuals in any type of commercial (or non-commercial) interaction from choosing to participate for any reason whatsoever, including any of the ones that we now deem morally abhorrent."

Mr. Henry is referring to a rather archaic institution known as "private property". Hard though it is to believe, there have been societies -- fairly successful ones at that -- in which private individuals were allowed to own physical property and put it to such uses as they saw fit.

Jason said...

Pettifogger: why would you aasume the baker, making a cake to be consumed off the premises, is a public accommodation?

Marcus said...

I think it all boils down to some definition of "contracted services". I have yet to meet a lawyer who will take a case from anyone who walks in the door with money. They get to pick and choose. Why not a baker?

narayanan said...

public accommodation is no longer private property?

to be in business = make an offer of goods to willing public, and sometimes an invitation to listen to their offers, with no promise of contract or delivery.

only govt buildings are truly publically public accommodation.