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George Will Is Wrong about Masterpiece Cakeshop: The Right NOT to Promote a Message is Protected
National Review ^
| 12/05/2017
| David French
Posted on 12/05/2017 7:13:17 AM PST by SeekAndFind
Its astounding how many defenses of the states position in Masterpiece Cakeshop depend on misrepresentation and misconceptions. Last week I wrote about the most common misrepresentation that Jack Phillips discriminated on the basis of sexual orientation when he refused to design a custom cake for a same-sex-wedding celebration. After all, he served all customers regardless of race, sex, or sexual orientation. He just consistently refused to design cakes that advanced messages he disagreed with. No person of any identity has the legal authority to compel an artist to use his talents to advance a cause the artist finds offensive.
This weekend, unfortunately, one of the all-time greats of the conservative movement, George Will, advanced a different misconception to conclude that, yes, the state should be able to conscript Phillipss talents. After committing the common sin of declaring that a finding for Masterpiece Cakeshop would render key parts of the 1964 Civil Rights Act quite porous, Will declares that Phillipss expression is simply not constitutionally protected:
It is difficult to formulate a limiting principle that draws a bright line distinguishing essentially expressive conduct from conduct with incidental or negligible expressive possibilities. Nevertheless, it can be easy to identify some things that clearly are on one side of the line or the other. So, regarding Phillips creations:
A cake can be a medium for creativity; hence, in some not-too-expansive sense, it can be food for thought. However, it certainly, and primarily, is food. And the creators involvement with it ends when he sends it away to those who consume it.
Will is quite correct that there exists a line between conduct and expressive conduct. Lets take as one example the floodlights that illuminate the White House. On a normal evening they are certainly and primarily intended to do one thing and one thing only light up the building. But there are other times when the primary purpose changes. Such as the night of June 26, 2015, when the White house was set aglow with rainbow pride. The Supreme Court had just held that there exists a constitutional right to same-sex marriage, and to celebrate the occasion, the White House lights looked like this:
Is the lighting primarily intended for illumination here? Or is it intended to send a very specific political statement? Every reasonable observer knows the answer.
Now, lets consider the facts of the Masterpiece Cakeshop case. The gay couple eventually selected a rainbow cake to celebrate their nuptials. This decision was every bit as expressive as the White Houses decision to light up its façade. Given the context and the occasion, the meaning was abundantly clear to even the most casual attendee. There is no ambiguity here.
Theres a line, moreover, in Wills piece that demonstrates surprising ignorance about weddings despite the fact that Will has undoubtedly attended countless ceremonies in his long and illustrious career. Who has ever said that a wedding cake was primarily food? No one wants the cake to taste like trash, but is that the reason that brides, moms, and wedding planners agonize over their cake choice? (Grooms are more likely to be indifferent.) No, they want the cake to be beautiful. They want it to be dare I say it a work of art.
Rare is the person who attends the wedding reception eager to chow down on a piece of wedding cake. The common and nearly universal experience in weddings where the bride and groom have even the smallest budget to celebrate is the gathering of guests around the cake, to proclaim how amazing it looks, to admire the specific aspects that make it special, the perfect cake for the perfect couple.
In ordinary circumstances, the artistry of cake designers is so obvious that its presumed the same with photographers, calligraphers, and florists. This obvious artistry is a reason why no one bats an eye when a baker refuses to design, say, a Confederate-flag cake. The message it is sending is staring you in the face. But a message may be implicit instead, present though not obvious, even if the artistry is. For example, does anyone believe that the prohibitions against sex discrimination would compel a fashion designer to create a dress for Melania or Ivanka Trump?
There is no ambiguity as to whether the design of the cake in this case communicated a message.
There is no slippery slope between Masterpiece Cakeshop and segregated lunch counters. There is no ambiguity as to whether the design of the cake in this case communicated a message. The Supreme Court can, in fact, rule in favor of Jack Phillips without doing the slightest bit of harm to generations of civil-rights case law. In fact, it can explicitly reaffirm its rulings in those cases at the same time that it defends free speech. Its that simple.
It cannot, however, rule against Phillips without committing an act of judicial violence against both the First Amendment and common sense. Phillips doesnt discriminate on the basis of any persons identity. He was asked to engage in an act of artistic expression that communicated a specific cultural, religious, and political message. The Constitution and generations of Supreme Court precedent hold that he has the right to refuse to speak that message regardless of whether its delivered by punditry or by pastry.
David French is a senior writer for National Review, a senior fellow at the National Review Institute, and an attorney.
TOPICS: Business/Economy; Constitution/Conservatism; Culture/Society; Government; News/Current Events; US: Colorado
KEYWORDS: 1stamendment; anthonykennedy; atheism; christians; colorado; fakeconservative; firstamendment; gaymarriage; gaystapo; georgewill; gopestablishment; homofascism; homosexualagenda; jackphillips; lakewood; lavendermafia; liberalagenda; masterpiececakeshop; obama; obamalegacy; obergefellopinion; phillips; religiousliberty; rino; scotus; sodomandgomorrah; ssm; will
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To: Behind the Blue Wall
“Sounds like were going to have to get some people to run around San Francisco asking businesses to bake Confederate flag and swastika cakes.”
Even worse for them, we can ask for cakes honoring President Trump’s successful first year.
41
posted on
12/05/2017 9:21:23 AM PST
by
Grampa Dave
(Build Kate's wall and keep the illegals and illegal murderers/criminals out of America! SLAP!!!)
To: PSUGOP
In fact this is not the first "theme cake" he has refused to make. He has also refused to make Halloween cakes for example.
Everyone has the right to refuse to work for someone. You do not lose that right when you start a business.
42
posted on
12/05/2017 9:24:29 AM PST
by
Harmless Teddy Bear
(Not a Romantic, not a hero worshiper and stop trying to tug my heartstrings. It tickles! (pink bow))
To: SauronOfMordor
I guarantee that these men were delighted when the baker turned them down———they WANTED this to happen so they could publicize it-————and make waves for their “cause”.
.
.
43
posted on
12/05/2017 9:26:04 AM PST
by
Mears
To: Harmless Teddy Bear
Everyone has the right to refuse to work for someone. You do not lose that right when you start a business. That's what this court case will decide.
To: Behind the Blue Wall
Sounds like were going to have to get some people to run around San Francisco asking businesses to bake Confederate flag and swastika cakes. Rebels and Nazis are not protected classes.
To: Anima Mundi
But design and the skill to decorate a cake beautifully = artistic expression. Suppose the customer came in and gave specific instructions on exactly how they wanted the cake to look. Doesn't that take the artistic expression away from the baker and gives it to the customer?
That's why I think this case should have been fought on freedom of religion grounds and not freedom of expression.
To: SeekAndFind
viz,
If a heterosexual comes into a Christian bakery and asks for a wedding cake for two homosexual friends, the baker should tell him:
“Tell your mother to bake you a queer cake coz she knows how to make queer things in her oven.”
47
posted on
12/05/2017 9:35:29 AM PST
by
bunkerhill7
((((("The Second Amendment has no limits on firepower"-NY State Senator Kathleen A. Marchione.")))))))
To: All
George need to take a sabbatical and go away into some wilderness and not come back until President Trump has finished his second term.
Then, he would have to have two vows:
1. Never write anything!
2. A vow of silence for the rest of his life!
In the meantime, George take a hike and tell your lies to the DC swamp people, you slither around with.
48
posted on
12/05/2017 9:41:04 AM PST
by
Grampa Dave
(Build Kate's wall and keep the illegals and illegal murderers/criminals out of America! SLAP!!!)
To: SeekAndFind
Suppose a baker or a printer is gay and is asked to provide services for an event promoting traditional marriage. Is it OK for that baker or printer to say no?
49
posted on
12/05/2017 9:48:59 AM PST
by
TBP
(Progressives lack compassion and tolerance. Their self-aggrandizement is all that matters.)
To: DoodleDawg
No, the courts will not decide if you have the right to refuse to work for someone.
You have that right.
They might uphold it or not but they can not change the reality.
50
posted on
12/05/2017 10:06:55 AM PST
by
Harmless Teddy Bear
(Not a Romantic, not a hero worshiper and stop trying to tug my heartstrings. It tickles! (pink bow))
To: SeekAndFind
Will is a self-described “amiable, low voltage atheist.”
Which now sounds an awful lot like “moderate Muslim”, as far as his tolerance of other religions goes.
51
posted on
12/05/2017 10:09:06 AM PST
by
yefragetuwrabrumuy
(Liberals have become moralistic, dogmatic, sententious, self-righteous, pinch-faced prudes.)
To: Harmless Teddy Bear
No, the courts will not decide if you have the right to refuse to work for someone. You have that right.
Not currently. That's what this court case is all about.
To: SeekAndFind
The plaintiffs wanted a custom wedding cake design that celebrated their gay wedding. The defendant wanted to abide by his religious belief that homosexuality is sinful.
The questions that the court should answer are these: Would the gay couple suffer harm by obtaining their cake elsewhere from a baker willing to provide it? The answer is no.
Would a baker who is forced to make a cake for a ceremony that violates his religious beliefs be harmed by doing so? The answer is yes.
There are numerous sources for wedding cakes. But an individual only has one conscience and there is no available substitute.
53
posted on
12/05/2017 10:23:46 AM PST
by
catpuppy
To: Reno89519
Conservatives (or any political affiliation) are not a “protected class”, so legally anyone or any business can discriminate against them at will. So the conflict that you cite as basis for removing 1st amendment rights from businesses doesn’t actually exist.
To: DoodleDawg
You always have that right.
Now they may infringe on that right but you still have that right.
55
posted on
12/05/2017 10:50:20 AM PST
by
Harmless Teddy Bear
(Not a Romantic, not a hero worshiper and stop trying to tug my heartstrings. It tickles! (pink bow))
To: catpuppy
The question should be, just because someone offers you money to do something are you obliged to do it?
If I do yard work and the Church of Satan wants me to do theirs am I obliged to do so?
Then we are wage slaves not free citizens and it is time to cut the ties that binds and gag.
56
posted on
12/05/2017 10:54:40 AM PST
by
Harmless Teddy Bear
(Not a Romantic, not a hero worshiper and stop trying to tug my heartstrings. It tickles! (pink bow))
To: Harmless Teddy Bear
You always have that right. Now they may infringe on that right but you still have that right.
You have the right not to go into business, too.
To: SeekAndFind
George Will is a DemocRAT who got SO OFFENDED by the DemocRATS, that he couldn't tolerate being associated with all those "CRAZIES" .
Now for a deeper understanding of just WHO George Will IS:
The word "neocons" is ONLY used by LIBERALS, trying to insult Conservatives.
The is no such thing as a "NEW" Conservative.
Conservatives ARE Conservative, plain and simple.
But read this"Liberals, Conservatives, and Neocons Learn the Difference!
March 12, 2014
Almost everybody is confused about the word "neoconservative" and its shortened form, "neocon."
I find that liberals/Democrats seem to use it as a sort of disrespectful form of "conservative,"and probably have no idea the the words have distinct meanings.
On the other hand, I know of some conservatives who define it as "new conservatives,"meaning people who were formerly something else, but have converted to conservatism.
Both are wrong.
As near as I can tell, "neo-" doesn't apply to any other word that way formerly not X, but having become X.
No, "neo-" almost always refers to an ideology that is different from the root word in a significant way.Neoconfederates are not people who want to secede and become a separate country.
They want the ideals of the Confederacy to be applied to modern politics, more or less, but not all of them.
Neoliberal is a more vague term,but it specifically applies to people who may have SOME of the attributes of liberals,
but who contradict liberalism in their advocacy of free trade and privatization
and other ideas usually thought of as conservative.
And, finally, neoconservatives are mostly those moderate cold war LIBERALS who defected to the Republican party when the Democrats got totally flaky with McGovern and his ilk.
Their ultimate origin, however, is not the Democratic party but the Trotskyite movement.
Jack Kerwick elaborates.
Read this: Most "Conservatives" Are Secretly Neoconservatives
12 March, 2014, by Jack Kerwick, Ph.D.
A colleague of mine has drawn my attention to a Washington Post blog post Why Most Conservatives Are Secretly Liberals by a Professor John Sides, a political scientist at Georgetown University.
Sides agrees with fellow political scientists Christopher Ellis and James Stimson, co-authors of Ideology in America.
Ellis and Stimson CONTEND thatAmerica is, at bottom, a center-left nation,
for while 30 percent of self-described liberals are consistent in endorsing liberal policy prescriptions,
the same sort of consistency can be ascribed to only 15 percent of conservatives.
And another 30 percent of conservatives actually advance liberal positions.
In short, Americans may TALK the talk of conservatism, but they WALK the walk of liberalism.
That is, they favor Big Government.
Sides, Ellis, and Stimson, it seems clear to me, are liberals.
It doesnt require much reading between the lines to discern this.
That they associate liberals, and liberals ALONE, with such virtues as consistency and such lofty ideals as a cleaner environment and a stronger safety net is enough to bear this out.
Yet in peddling the ridiculous, patently absurd notion thatconservatives see the media as PROMOTING conservatism,
the verdict regarding their liberalism is seen for the NO-BRAINER that it is.
There is, though, another CLUE that unveils Sides, Ellis, and Stimsons ideological PREJUDICES:They equate the term liberalism with a robust affirmation of Big Government.
They treat liberalism synonymously with its modern, Welfare-Statist incarnation.
There is no mention here of the fact that, originally, liberalism referred toa vision that attached supreme value to individual liberty,
a vision in which government played, and had to play, a minimal role in the lives of its citizens.
And there is no mention of the fact that, if liberalism is now an ugly word,
it is because the very same socialists who made socialism an ugly word hijacked liberalism when it enjoyed a favorable reception
and visited upon it the same fate that they secured for socialism.
In other words, if Sides himself wanted to be bluntly honest, hed have to admit that liberals are secretly socialists.
Still, though their premises are bogus, Sides and his colleagues draw the correct conclusion thatmost conservatives are NOTHING OF THE KIND.
The truth of the matter is thatthe vast majority of contemporary conservatives are neoconservatives.
Now, neoconservatism is a term that hasnt the best reputation.
It has ALWAYS BEEN CONTROVERSIAL,
and most of its proponents have DISAVOWED IT to the point of, preposterously, condemning it as an anti-Semitic SLUR.
But George W. Bush and his party inflicted potentially irrevocable damage upon the label.
Conservatism is a more marketable label.
Nevertheless, the reality is that neoconservatism is indeed a distinct school of political thought.
Beyond this, it is fundamentally different in kind from classical conservatism.
Irving Kristol, the so-called Godfather of neoconservatism, an appellation that he readily endorsed, ADMITS this in noting boththat neoconservatism exists
and that conservative can be misleading when used to describe it.
Neoconservatism, you see, is THE INVENTION OF LEFTISTS like Kristol himself.
When the Democratic Party began veering too far to the Left in the 1960s, Kristol and more moderate leftists began turning toward the Republican Party.
So as TO DISTINGUISH THEMSELVES FROM traditional conservatives, they coined the term neoconservatism.
Neoconservatives, Kristol asserts, are not at all hostile to the idea of a welfare state even if they reject the vast and energetic bureaucracies created by the Great Society.
Neoconservatives ENDORSE social security, unemployment insurance, and some kind of family assistance plan, among other measures.
But whats most interesting, particularly at a time when ObamaCare has DIVIDED the country, is that Kristol reminds us thatneoconservatives SUPPORT some form of national health insurance.
In all truthfulness, however, neither a degree in political science nor an IQ above four is required to know thatneoconservatism has always championed Big Government
for it is its foreign policy vision more than anything else that distinguishes it from its competitors.
For neoconservatives, America is exceptional in being, as Kristol puts it, a creedal nation,the only nation in all of human history to have been founded upon an ideology of equality, of natural rights.
The U.S.A., then, has a responsibility to promote this ideology throughout the world.
And it is by way of a potentially boundless military i.e. Big Government that this ideological patriotism is to be executed.
Had the foregoing political scientists been looking in the right places, they would BE FORCED TO CONCLUDE that most conservatives are secretly neoconservatives.
So, you see that those WHO THEY CALL
"neoconservatives", are really nothing more than
the old moderate side of the DemocRATS.
It's just THAT SIMPLE .
58
posted on
12/05/2017 11:13:30 AM PST
by
Yosemitest
(It's SIMPLE ! ... Fight, ... or Die !)
To: DoodleDawg
Rebels and Nazis are not protected classes. Here is an interesting thought exercise:
At what point do "protected class" laws become a bill of attainder? In other words, if the application of "protected class" becomes such that, in effect, everyone EXCEPT Christian white males becomes protected by law, then is that law unconstitutional?
Or, are you using the term "protected" to mean privileged by society?
-PJ
59
posted on
12/05/2017 11:27:08 AM PST
by
Political Junkie Too
(The 1st Amendment gives the People the right to a free press, not CNN the right to the 1st question.)
To: DoodleDawg
I don’t think so because there is skill and artistry involved in mixing the colors and making the whole design work spatially and otherwise. I have tried to make those little flowers from icing and it is hard to get one to look like a flower, much like an artist knows just how to draw so that something appears dimensional and real using shading, etc. Besides, look at what they have deemed as “art”, ie. a cross placed in a jar of urine, so the standard for what is “art” seems extremely wide. There are many ways to look at this I guess.
60
posted on
12/05/2017 11:34:45 AM PST
by
Anima Mundi
(Socialism is theft.)
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