Disappointing News

[_Res Ipsa]

I agree with your last sentence. But I don't think that's what you've been arguing. I think your argument denies that there has been any illegal discrimination at all.

Let's revisit our wedding cake baker who makes only wedding cakes. He will provide wedding cakes for everyone except gay couples. Is he offering his services fully and equally to gay couples? Are gay couples experiencing discrimination?

[_honorentheos]

Actually, that's a pretty good example of the question begging fallacy. The question to be determined is whether requiring a baker to sell wedding cakes to everyone regardless of sexual orientation is something that prohibits the free exercise of the baker's religion.

Yes, I think that is the question. Or rather, is forcing a baker to participate in a religious ceremony that is against his beliefs is interfering with his right to the free exercise of his religion?

Based on the Masterpiece ruling, I think you have to ask if baking a cake actually constitutes participation in the ceremony first. I think the writings from the Court leave it likely future rulings will say no to that.

[_Niadna]

Based on the Masterpiece ruling, I think you have to ask if baking a cake actually constitutes participation in the ceremony first. I think the writings from the Court leave it likely future rulings will say no to that.

It's a grey area, certainly. On the one hand, the baker isn't required to be present during the ceremony or any of the events that follow it the way a photographer is.

On the other hand, he DOES have to decorate that cake with the specific wedding in mind, and he does have to deliver it to the venue, set it up and in many cases, finish decorating it at the wedding venue. Whether he does it personally or sends employees, it can certainly be argued that this is 'participation.'

You know....I have referred to selling live chickens to people who intend to sacrifice them in a religious ceremony. Does the seller have to show up and slit the throats himself in order to be deemed 'participating,' or is knowingly providing the chickens, and perhaps even delivering them to the ceremony venue, considered participation and support?

.....and before anybody starts talking about how once the decision is made, (or the law is passed) the thinking/arguing is done, I might remind you of some previous Supreme Court decisions that turned out to be...uhmn....

Plessy v Fergusson and the Dred Scot case come to mind. Bogg's Extermination Order...Missouri's laws regarding people of color who want to live there...you know, stuff like that.

[_Res Ipsa]

So, this is where free exercise analysis gets into some deep weeds. It’s fine for folks like us on a message board to discuss the degree of participation required before there is a genuine interference with religious practice, but let’s step back and ask a more fundamental question: do we want the government to be in the business of defining what constitutes bona fide religious practice?

[_honorentheos]

On the other hand, he DOES have to decorate that cake with the specific wedding in mind, and he does have to deliver it to the venue, set it up and in many cases, finish decorating it at the wedding venue. Whether he does it personally or sends employees, it can certainly be argued that this is 'participation.'

...in an otherwise legal activity, but as a commodity or service provider.

You know....I have referred to selling live chickens to people who intend to sacrifice them in a religious ceremony. Does the seller have to show up and slit the throats himself in order to be deemed 'participating,' or is knowingly providing the chickens, and perhaps even delivering them to the ceremony venue, considered participation and support?

It's an illegal activity. There is extensive case law regarding this going back to at least the Reynolds decision in the late 1800's. Illegal activity is not protected by free exercise and would need to have legal exemptions established.

[_subgenius]

It's an illegal activity.

note necessarily illegal...the humane slaughter act allows for religious/ritual slaughter of animals (such as chickens)...reference also your local Kosher Butcher or local Muslim Butcher (dhabihah).

for your edification:
7 U.S.C.A. § 1902. Humane

No method of slaughtering or handling in connection with slaughtering shall be deemed to comply with the public policy of the United States unless it is humane. Either of the following two methods of slaughtering and handling are hereby found to be humane

(a) in the case of cattle, calves, horses, mules, sheep, swine, and other livestock, all animals are rendered insensible to pain by a single blow or gunshot or an electrical, chemical or other means that is rapid and effective, before being shackled, hoisted, thrown, cast, or cut.

(b) by slaughtering in accordance with the ritual requirements of the Islamic and Jewish faith or any other religious faith that prescribes a method of slaughter whereby the animal suffers loss of consciousness by anemia of the brain caused by the simultaneous and instantaneous severance of the carotid arteries with a sharp instrument and handling in connection with such slaughtering.

so yeah, there is that....religious slaughter- check!

[_Res Ipsa]

Nadia, I don’t think you appreciate the effect of the stare decisis doctrine on the Supreme Court. The Supreme Court never overruled the Dred Scott Decision. Plessy was around for 60 years before the Court started chipping away at it, and has never been expressly overruled. The legality of Boggs’s Order was never litigated.

Did you read the opinion I linked? It clearly decides the baker’s free exercise claim. The odds of the Court overturning that case range from slim to none. It was written by a religion friendly conservative, joined by the other conservatives on the court at that time. Do you understand why?

As a matter of constructional law, the concept of “participation” is irrelevant. The reason why is in Scalia’s opinion.

[_Res Ipsa]

It's an illegal activity.

note necessarily illegal...the humane slaughter act allows for religious/ritual slaughter of animals (such as chickens)...reference also your local Kosher Butcher or local Muslim Butcher (dhabihah).

for your edification:
7 U.S.C.A. § 1902. Humane

No method of slaughtering or handling in connection with slaughtering shall be deemed to comply with the public policy of the United States unless it is humane. Either of the following two methods of slaughtering and handling are hereby found to be humane

(a) in the case of cattle, calves, horses, mules, sheep, swine, and other livestock, all animals are rendered insensible to pain by a single blow or gunshot or an electrical, chemical or other means that is rapid and effective, before being shackled, hoisted, thrown, cast, or cut.

(b) by slaughtering in accordance with the ritual requirements of the Islamic and Jewish faith or any other religious faith that prescribes a method of slaughter whereby the animal suffers loss of consciousness by anemia of the brain caused by the simultaneous and instantaneous severance of the carotid arteries with a sharp instrument and handling in connection with such slaughtering.

so yeah, there is that....religious slaughter- check!

Yes, statutory religious exemption. Isn’t that what he said?

If there were no such exemption, the statute would not violate the Free Exercise clause as long as it applied generally and was not targeted at religion.

[_Niadna]

Nadia, I don’t think you appreciate the effect of the stare decisis doctrine on the Supreme Court. The Supreme Court never overruled the Dred Scott Decision. Plessy was around for 60 years before the Court started chipping away at it, and has never been expressly overruled. The legality of Boggs’s Order was never litigated.

No....but the point is, none of them are enforced and is pretty much universally accepted that all of these things were WRONG.

"Legal" and "moral" are NOT synonyms.

Did you read the opinion I linked?

I'm still slogging through it, frankly.

It clearly decides the baker’s free exercise claim. The odds of the Court overturning that case range from slim to none. It was written by a religion friendly conservative, joined by the other conservatives on the court at that time. Do you understand why?

As a matter of constructional law, the concept of “participation” is irrelevant. The reason why is in Scalia’s opinion.

[_Niadna]

So, this is where free exercise analysis gets into some deep weeds. It’s fine for folks like us on a message board to discuss the degree of participation required before there is a genuine interference with religious practice, but let’s step back and ask a more fundamental question: do we want the government to be in the business of defining what constitutes bona fide religious practice?

Nope...

which is why it's REALLY shaky ground to force someone to violate what he figures are his religious beliefs.