I usually see good faith in the tone of your comments @Jazzhead , and I appreciate that; it's a standard I hope to maintain.
But there is more to good faith than tone; "good faith" also means replying directly to a question or argument made by someone else, and directly comparing critical details of your position to critical details of the other guy's position. That's what I tried to do when I asked you what you mean by "custom", I explained through questions why I found your suggested compromise ineffective, and I made clear as best I could my position. But you did not respond directly to any of that. You did not explain what you meant by "custom" and you offered no reaction to my argument that you're actually forcing the baker to surrender *completely* his own self-expression. Instead you referenced a different case and simply re-stated your own position, just talking past me without addressing me at all. So you actually left on the table my entire position with no rebuttal; I can only conclude that you concede it completely.
I've tried again to be clear and, I hope, intellectually honest by suggesting that the crux of the conflict on this board might be saying "sell" when we mean "make." I believe a fair compromise would be to require selling what is already prepared but not to require making something fresh for a specific purpose. Can you please speak to that suggestion directly?
Unfortunately your reputation is for avoiding direct, intellectually honest discussion, ignoring critical analysis, evading questions, and simply re-stating your own position ad nauseum. That approach is not considered discussion in good faith, no matter how courteously it might be stated. I believe that you do intend to discuss in good faith, so I hope you'll consider this input constructive.
Thanks for your response,
@HoustonSam . I do accept it as constructive criticism. Keep in mind the dynamic of this board. I am in the distinct minority here, and find it impractical to reply to all. So I often provide responses that try to address points made by various posters.
I don't believe your formulation works with respect to a restaurant or purveyor of food products that, by their nature, require fresh preparation. Each posts a menu representing what the storeowner will make or prepare for the customer. He's under no obligation to make something not on the menu. (As an example, a kosher butcher is under no obligation to serve a customer's demand for pork). But the crux of the non-discrimination rule is that that he will serve (in this context, make or prepare) any item he's chosen to place on his menu to any customer who walks in the door to request it. And why shouldn't a customer have the right to expect a restaurant or bakery to make what his menu says, without regard to the color of the customer's skin, or gender, or religion, or (as here) sexual orientation? Isn't the power dynamic with the storeowner?
I am comfortable with the idea that "artistry" is inherently personal, and that an artist can refuse a commission (indeed, that's hardly controversial, but here the context is the owner of a public accommodation, for which special rules apply, who also portrays himself to be an artist). The restaurant owner in Piggie Park thought he made the best BBQ in the South (indeed, the shop, still family owned, continues to this day). But he still couldn't deny the sandwiches he prepared to black customers on the basis of his religious belief that the races should not mix. A LAW OF GENERAL APPLICATION CANNOT BE AVOIDED BY CITING RELIGION. That's not a controversial statement; the Court has held that view for years and continues to do so.
What is unique, and which provides the basis for compromise, is the idea that freedom of speech and expression (NOT the free exercise of religion) may permit a baker serving the public to refrain from providing certain services to gay people. But the idea only holds weight if the exercise of speech/expression, if forced by the state, is oppressive. Asking the baker to provide the same non-custom menu items he advertises to the public to be provided to all is not oppressive. But forcing him to use his artistic talents in an individualized manner to support a customer who he believes is acting sinfully may well be oppressive, and unconstitutional.
Thomas's opinion spells out a lot of this, but as of now only one other Justice has joined him. I think that's because Phillips' commitment to obey the law with respect to his non-customized wedding cakes was unclear from the record. Yes, he "makes" such non-customized wedding cakes. But he has advertised such cakes to the public. Why shouldn't he be obliged to keep his word?
Again - and I understand you haven't read the case - the immediate task is to distinguish Phillips from Piggie Park. I have suggested a way to do so (sell non-customized wedding cakes to all; exercise conscience with respect to custom orders where expressive conduct is involved). Is that a compromise? Sure - but it is respectful of the legitimate rights and expectations of both the baker and his customer.
I hope that helps, Houstonsam. I appreciate your constructive criticism, and the comity you display.
