I know this is old news, but it's still important. Below is a copy of my facebook thesis I posted on August 29, 2015 about how the Colorado Court of Appeals tortured reason and justice in upholding punishment against the baker man who conscientiously refused to bake a cake that celebrated someone else's gay marriage (case filed August 13, 2015). As in the original facebook post, the below blog post is only the introduction; the specific points - the meat of the discussion - take place in the Comments below it. So be sure to check out the Comments. Enjoy.
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I have spent over two weeks trying to make sense of the reasoning behind the Colorado Court of Appeals’ recent upholding judgment against the Masterpiece Cakeshop, Inc. for discrimination against patrons based on their sexual orientation. The entire court decision can be read at: http://www.adfmedia.org/files/MasterpieceAppealsDecision.pdf, as well as in Comments below.
This court decision involves many topics, like religious liberty, the right to refrain from speaking other people’s messages, motion to dismiss, etc. However, the only topic concerning me presently is the court’s decision to equate the baker’s actions with orientation-based discrimination. This topic is covered in paragraphs 25-39 of the decision. Here is my quick summary of these paragraphs:
Discrimination because of patron orientation is prohibited (para. 27). The baker insists that his discrimination was because of his moral refusal to get materially involved in a celebration of other people’s controversial behavior (para. 25, 30). Yet the court calls this a distinction without a difference, because “but for” patron orientation, the baker’s discrimination would never have happened and the patron was part of a “protected class” (para. 28, 34). The court asserts that same-sex marriage and same-sex orientation are “inextricably tied” (para. 35) and “cannot be divorced” because the act of same-sex marriage is “engaged in exclusively or predominantly” by gays (para. 34). When the baker’s defense cited a previous court case actually requiring plaintiffs in discrimination lawsuits to prove that defendants have some “class-based…discriminatory animus,” the Colorado Court disregarded this precedent, insisting that CADA (Colorado Anti-Discrimination Act) “requires no such showing of animus” (para. 36, 37), and added that even if CADA did require such “intent to discriminate” (animus), the previous judge could have simply “inferred” it from the baker’s conduct - that he intended to discriminate because of sexual orientation (para. 38). The court even likened the act of same-sex marrying by gays to the act of yarmulke-wearing by Jews, intimating that gays are expected to pursue same-sex marriage just as Jews are expected to wear yarmulkes on their heads at all times (para. 39).
But don’t take my word for it. Please read paragraphs 25-39 for yourself, either at the link above or in Comments below (which omit footnotes for space). Each Comment quotes one paragraph and includes my response to it. You are welcome to Reply to either of these or just add general Comments at the bottom. I’m not looking for fan support and don’t need inquisitions. If you want to discuss personal matters, please send a private message or post a new discussion on your own page with my name tagged in it.
You may now proceed to Comments. Make sure you start at paragraph 25. You may need to click "View more comments" or something.
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I have spent over two weeks trying to make sense of the reasoning behind the Colorado Court of Appeals’ recent upholding judgment against the Masterpiece Cakeshop, Inc. for discrimination against patrons based on their sexual orientation. The entire court decision can be read at: http://www.adfmedia.org/files/MasterpieceAppealsDecision.pdf, as well as in Comments below.
This court decision involves many topics, like religious liberty, the right to refrain from speaking other people’s messages, motion to dismiss, etc. However, the only topic concerning me presently is the court’s decision to equate the baker’s actions with orientation-based discrimination. This topic is covered in paragraphs 25-39 of the decision. Here is my quick summary of these paragraphs:
Discrimination because of patron orientation is prohibited (para. 27). The baker insists that his discrimination was because of his moral refusal to get materially involved in a celebration of other people’s controversial behavior (para. 25, 30). Yet the court calls this a distinction without a difference, because “but for” patron orientation, the baker’s discrimination would never have happened and the patron was part of a “protected class” (para. 28, 34). The court asserts that same-sex marriage and same-sex orientation are “inextricably tied” (para. 35) and “cannot be divorced” because the act of same-sex marriage is “engaged in exclusively or predominantly” by gays (para. 34). When the baker’s defense cited a previous court case actually requiring plaintiffs in discrimination lawsuits to prove that defendants have some “class-based…discriminatory animus,” the Colorado Court disregarded this precedent, insisting that CADA (Colorado Anti-Discrimination Act) “requires no such showing of animus” (para. 36, 37), and added that even if CADA did require such “intent to discriminate” (animus), the previous judge could have simply “inferred” it from the baker’s conduct - that he intended to discriminate because of sexual orientation (para. 38). The court even likened the act of same-sex marrying by gays to the act of yarmulke-wearing by Jews, intimating that gays are expected to pursue same-sex marriage just as Jews are expected to wear yarmulkes on their heads at all times (para. 39).
But don’t take my word for it. Please read paragraphs 25-39 for yourself, either at the link above or in Comments below (which omit footnotes for space). Each Comment quotes one paragraph and includes my response to it. You are welcome to Reply to either of these or just add general Comments at the bottom. I’m not looking for fan support and don’t need inquisitions. If you want to discuss personal matters, please send a private message or post a new discussion on your own page with my name tagged in it.
You may now proceed to Comments. Make sure you start at paragraph 25. You may need to click "View more comments" or something.
16 comments:
Paragraph 25:
Masterpiece contends that the ALJ erred in concluding that its refusal to create a wedding cake for Craig and Mullins was “because of” their sexual orientation. Specifically, Masterpiece asserts that its refusal to create the cake was “because of” its opposition to same-sex marriage, not because of its opposition to their sexual orientation. We conclude that the act of same-sex marriage is closely correlated to Craig’s and Mullins’ sexual orientation, and therefore, the ALJ did not err when he found that Masterpiece’s refusal to create a wedding cake for Craig and Mullins was “because of” their sexual orientation, in violation of CADA.
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My response:
Again, “CADA” refers to the Colorado Anti-Discrimination Act.
This was one of the first times I had laid eyes on an actual courtroom decision, and I was shocked that a judge could so quickly equate a baker’s behavior-based discrimination with orientation-based discrimination, just because behavior and orientation are “closely correlated.” As we read on, we will discover that the legal system has many laws and precedents that sort of ‘justify’ this action. Some people will be quite content to say that the legal system has spoken and has provided all the justification it needs in this case. Others will wonder how we could end up with a legal system that so fails to understand the basics of morality and ethics.
Paragraph 26:
Whether Masterpiece violated CADA is a question of law reviewed de novo. § 24-4-106(7).
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My response:
A previous court gave judgment against the baker. Now, the Colorado Court of Appeals begins to give fresh consideration to the question of whether the baker violated CADA.
So it begins.
Paragraph 27:
Section 24-34-601(2)(a), C.R.S. 2014, reads, as relevant here:
It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of . . . sexual orientation . . . the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation . . . .
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My response:
We get that. Discrimination because of sexual orientation is wrong and illegal.
Paragraph 28:
In Tesmer v. Colorado High School Activities Association, 140 P.3d 249, 254 (Colo. App. 2006), a division of this court concluded that to prevail on a discrimination claim under CADA, plaintiffs must prove that, “but for” their membership in an enumerated class, they would not have been denied the full privileges of a place of public accommodation. The division explained that plaintiffs need not establish that their membership in the enumerated class was the “sole” cause of the denial of services. Id. Rather, it is sufficient that they show that the discriminatory action was based in whole or in part on their membership in the protected class. Id.
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My response:
Thus, the legal system permits a court to punish someone for discrimination that would not have happened “but for” the other party’s “membership in an enumerated” or “protected class.” More on this in paragraphs below.
Before moving on, let me discuss two matters. The first is “but for” logic. It is related to the Latin phrase, “sine qua non,” meaning “without which, nothing.” Drunk drivers may not intend to crash, but their drunkenness is a legitimate “but for” cause of the accident: “but for” the drunkenness, no accident would have happened. But be careful; there are other “but for” causes of that same accident: “but for” the gas station attendant that sold him gasoline just before the man drove to the bar, no accident would have happened; and “but for” prevailing traffic flow after the man drank, no accident would have happened. These are all “but for” causes of the accident. Yet nobody blames the gas station attendant or the traffic for the accident. “But for” logic is, therefore, a very dangerous game, especially in a nation in which innocent people often depend on the presumption of innocence for their hope of justice.
As for “protected classes,” who gets to be protected? And why? The next paragraph spells out which sexual orientations currently get to be protected in Colorado.
Paragraph 29:
Further, a “place of public accommodation” is “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering wholesale or retail sales to the public.” § 24-34-601(1). Finally, CADA defines “sexual orientation” as “an individual’s orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or another individual’s perception thereof.” § 24-34-301(7), C.R.S. 2014.
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My response:
Skipping past the matter of “place of public accommodation”…
So sexual-orientation is a protected class. We get that. People should be protected from discrimination that is truly “because of” their sexual orientation. What I fear is that the “protected class” status offers protections that go way beyond that. If it’s not clear why just yet, it should be very shortly.
(Note: I assuming the court is using “status” synonymously with “orientation.” Otherwise I would have to wonder how people attain a particular status. I mean, what if they gained it through their behavior? ‘Behave thus and your behavior will be protected.’ I will suppose better things that this.)
Paragraph 30:
Masterpiece asserts that it did not decline to make Craig’s and Mullins’ wedding cake “because of” their sexual orientation. It argues that it does not object to or refuse to serve patrons because of their sexual orientation, and that it assured Craig and Mullins that it would design and create any other bakery product for them, just not a wedding cake. Masterpiece asserts that its decision was solely “because of” Craig’s and Mullins’ intended conduct — entering into marriage with a same-sex partner — and the celebratory message about same-sex marriage that baking a wedding cake would convey. Therefore, because its refusal to serve Craig and Mullins was not “because of” their sexual orientation, Masterpiece contends that it did not violate CADA. We disagree.
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My response:
This is just like paragraph 25, plus the bonus information that the baker demonstrated his lack of orientation-based discrimination in that he was willing to sell them other things despite their orientation. The court disagreed. We must read on for an explanation.
Paragraph 31:
Masterpiece argues that the ALJ made two incorrect presumptions. First, it contends that the ALJ incorrectly presumed that opposing same-sex marriage is tantamount to opposing the rights of gays, lesbians, and bisexuals to the equal enjoyment of public accommodations. Second, it contends that the ALJ incorrectly presumed that only gay, lesbian, and bisexual couples engage in same-sex marriage.
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My response:
I think Masterpiece should not have bothered to assert that gays are not the only ones that engage in same-sex marriage, all for the purpose of foiling the “but for” logic of the legal system (discussed above in para. 28, as well as below). I know lawyers throw all kinds of desperate obstructions against the other side all the time, but why give an easy slap-down point to the other side? It only discredits one’s case and appears desperate.
Paragraph 32:
Masterpiece thus distinguishes between discrimination based on a person’s status and discrimination based on conduct closely correlated with that status. However, the United States Supreme Court has recognized that such distinctions are generally inappropriate. See Christian Legal Soc’y Chapter of Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 689 (2010) (“[The Christian Legal Society] contends that it does not exclude individuals because of sexual orientation, but rather ‘on the basis of a conjunction of conduct and the belief that the conduct is not wrong.’ . . . Our decisions have declined to distinguish between status and conduct in this context.”); Lawrence v. Texas, 539 U.S. 558, 575 (2003) (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.”); id. at 583 (O’Connor, J., concurring in the judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is . . . directed toward gay persons as a class.”); see also Bob Jones Univ. v. United States, 461 U.S. 574, 605 (1983) (concluding that prohibiting admission to students married to someone of a different race was a form of racial discrimination, although the ban restricted conduct).
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My response:
This long paragraph makes it official: The Supreme Court itself has “declined to distinguish between status and conduct in this context.” What context, I wonder? Is it when discrimination is involved? Anyway, the legal system subsequently allows the Colorado Court to proceed to connect this Supreme Court dot to the baker’s dot and uphold punishment accordingly. What can I say? I fault the legal system for this one.
Paragraph 33:
Further, in Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015), the Supreme Court equated laws precluding same-sex marriage to discrimination on the basis of sexual orientation. Id. at ___, 135 S. Ct. at 2604 (observing that the “denial to same-sex couples of the right to marry” is a “disability on gays and lesbians” which “serves to disrespect and subordinate them”). The Court stated: “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever 17 their sexual orientation.” Id. at ___, 135 S. Ct. at 2599 (emphasis added). “Were the Court to stay its hand . . . it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.” Id. at ___, 135 S. Ct. at 2606.
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My response:
This paragraph is about “laws” and how the Supreme Court supposedly “equated laws precluding same-sex marriage to discrimination on the basis of sexual orientation.”
Look, I’m not so concerned about gays having rights, and I might even be able to live at peace in a world with laws that allow gay marriage, as long as people who conscientiously object to getting materially involved in celebrating other people’s gay marriages were not in danger of judgment and mandatory ‘sensitivity training’ all because someone demanded such involvement from them in the name of equality. Countless gay people – including many gay bakers – understand and agree with this.
Paragraph 34:
In these decisions, the Supreme Court recognized that, in some cases, conduct cannot be divorced from status. This is so when the conduct is so closely correlated with the status that it is engaged in exclusively or predominantly by persons who have that particular status. We conclude that the act of same-sex marriage constitutes such conduct because it is “engaged in exclusively or predominantly” by gays, lesbians, and bisexuals. Masterpiece’s distinction, therefore, is one without a difference. But for their sexual orientation, Craig and Mullins would not have sought to enter into a same-sex marriage, and but for their intent to do so, Masterpiece would not have denied them its services.
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My response [Part 1][due to Comment size limitations!]:
The court wrote: “conduct cannot be divorced from status.” At first glance, it is tempting to judge this phrase at face value and conclude that the court has simply lost its mind. Everybody knows that status does not guarantee conduct. However, I suspect that the court is simply giving a dramatic overstatement of its point. The context does seem to ‘interpret’ the statement for us: “…conduct cannot be divorced from status. THIS IS SO WHEN the conduct is so closely correlated with the status that it is engaged in exclusively or predominantly by persons who have that particular status” (emphasis added). So when the court says, “conduct cannot be divorced from status,” the court apparently means nothing more than “conduct would not happen ‘but for’ status.”
Where do I start? First, courts should not be allowed to state a claim that is forceful but not accurate in place of another claim that is accurate but not forceful. It feels like this court is trying to pull a fast one on us while contextually retaining its right to deny doing so. Second, common moral reasoning does not concern itself to protect a behavior based on its related orientation. But apparently the legal system allows just that, protecting behavior based on orientation, at least when discrimination is involved and when the orientation is in a protected class. How much of this will society bear?
The court goes on to declare that the baker’s distinction between his conscience-based discrimination and some orientation-based discrimination is a “distinction…without a difference.” No difference! And the explanation?
“But for their sexual orientation, Craig and Mullins would not have sought to enter into a same-sex marriage, and but for their intent to do so, Masterpiece would not have denied them its services.”
[My response continues in next Comment]
My response [Part 2] [to Paragraph 34 in comment above]
I need to discuss the logic of this last sentence. I know the court has found legal basis to apply this kind of “but for” logic and that such logic may satisfy the technical requirements of the legal system. But I can’t help but wonder if the court is hoping that this sentence will come across to us sounding like some kind of proof that sexual orientation guaranteed or even caused the baker’s discrimination. So if you can tolerate a lesson in syllogism, great. If it feels like bad memories from first semester geometry, you may skip to paragraph 35. But this is really important to me, please try to bear with me. Let:
O = orientation (of patrons),
S = same-sex marriage (and its celebration), and
D = discrimination (by the baker).
‘but for orientation, no same-sex marriage’ translates to:
~O->~S
‘but for same-sex marriage, no discrimination” translates to:
~S->~D
(The ~ means “no” or “but for.” The arrow means “guarantees” or “is a sufficient condition of”; if left side, then right side.)
Thanks to syllogism, we can put the logic together and get ~O->~D, because:
If ~O->~S
And ~S->~D
Then ~O->~D
So far, this (~O->~D) is quite accurate, and the judge has already asserted this conclusion numerous times – that ‘but for’ orientation, there’d be no discrimination. But so what? So what if the discrimination would not have happened but for the orientation? In case “so what” still rings hollow to some people, let me reword it purely logically. The contrapositive of a true conditional statement (or “if-then” statement) is equivalent to the original statement; both are true together or false together; they mean exactly the same thing. Now, what the heck is a contrapositive? It’s the converse of the inverse; it’s where you negate both sides and reverse their order. What? Check this out:
The contrapositive of
~O->~D
is simply
D->O
which means precisely that the baker’s discrimination guarantees that there was, in fact, a patron orientation. This is true, but it is also totally WORTHLESS. So what! The discrimination would just as easily guarantee that the patron was born, which (contrapositively speaking) means that “but for” the birth of the patron, the discrimination would not have happened! Can you now understand why I cry, “So what?” at all this “but for” logic the court and the justice system find so relevant?
In case anyone’s head is spinning and wants to discuss the legitimacy of all this logic talk, we can do that. It should be easy, since I tutor geometry for a living.
Paragraph 35:
In Elane Photography, LLC v. Willock, the New Mexico Supreme Court rejected a similar argument raised by a wedding photographer. 309 P.3d 53, 60-64 (N.M. 2013). The court concluded that by prohibiting discrimination on the basis of sexual orientation, New Mexico’s antidiscrimination law similarly protects “conduct that is inextricably tied to sexual orientation,” including the act of same-sex marriage. Id. at 62. The court observed that “[o]therwise, we would interpret [the New Mexico public accommodations law] as protecting same-gender couples against discriminatory treatment, but only to the extent that they do not openly display their same-gender sexual orientation.” Id. We agree with the reasoning of the New Mexico Supreme Court.
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My response:
Colorado Court cites as relevant a decision by a New Mexico Court that similarly included same-sex marriage in the category of “conduct that is inextricably tied to sexual orientation.” This New Mexico decision makes no attempt to clarify this expression’s meaning to be somehow contextually or otherwise limited to something like ‘conduct that would not happen but for orientation.’ “Inextricably tied” has strong and clear implications that orientation actually guarantees behavior.
So what could the court mean by this?
That orientation guarantees behavior? Factual nonsense!
That orientation justifies behavior? Moral nonsense!
That orientation obligates behavior? Moral nonsense with horns!
That orientation motivates behavior? True! But so what? We don’t just let people behave as their orientation motivates them. Or does compassion mandate otherwise? Is this why we need “sensitivity training”?
Maybe it’s…
That orientation… is a “but for” cause of behavior? This, too, is true, and the courts have cited it as relevant. But again, so what? Neither the courts nor morally minded citizens excuse a person for doing things he would not have done if he didn’t feel like doing them. Right?
So I cannot understand how the New Mexico Court can say that same-sex marriage is “conduct that is inextricably tied to sexual orientation.” The statement’s plain meaning is completely false, and its context does not lift a finger to reinterpret the phrase for them.
Paragraph 36:
Masterpiece relies on Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993), which declined to equate opposition to voluntary abortion with discrimination against women. Id. at 269-70. As in Bray, it asks us to decline to equate opposition to same-sex marriage with discrimination against gays, lesbians, and bisexuals. Masterpiece’s reliance on Bray is misplaced.
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My response:
Introducing Bray, a court precedent cited by baker’s defense as a basis on which to ask the Colorado Court “to decline to equate opposition to same-sex marriage with discrimination against gays…” This is basically telling the judge, “Please don’t consider me discriminatory against gays based on my opposition to their behavior. After all, the Bray Court didn’t consider other folks discriminatory against women based on the other folks’ opposition to the practice of getting abortions, a practice exclusively or predominantly engaged in by women.” No-brainer, right? But the Colorado Court replies, “Masterpiece’s reliance on Bray is misplaced.” The following two paragraphs will provide the court’s explanation.
Paragraph 37:
Bray considered whether the defendants, several organizations that coordinated antiabortion emonstrations, could be subject to tort liability under 42 U.S.C. § 1985(3) (1988).7 Established precedent required that plaintiffs in section 1985(3) actions prove that “some . . . class-based, invidiously discriminatory animus [lay] behind the [defendant’s] actions.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). However, CADA requires no such showing of “animus.” See Tesmer, 140 P.3d at 253 (plaintiffs need only prove that “but for” their membership in an enumerated class they would not have been denied the full privileges of a place of public accommodation).
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My response:
So plaintiffs charging defendants with discrimination are “required” to “prove that ‘some...class-based, invidiously discriminatory animus [lay] behind the [defendant’s] actions.” That makes sense. You should have to demonstrate that the discriminator has a personal animus against someone before you can convict them of wrongful discrimination. But no, the Colorado Court rejects this precedent: “However, CADA requires no such showing of ‘animus.’” Apparently there is other precedent saying that “plaintiffs need only prove that ‘but for’ their membership in an enumerated class they would not have been denied the full privileges of a place of public accommodation.”
So thanks to the justice system, the Colorado Court gets to choose between (1) the Bray precedent requiring “animus” as a basis for conviction; and (2) another precedent that affirms “but for” logic as sufficient to convict even without such animus. The Colorado Court chose the second, and I still do not read any moral argument as to why this was the right choice. Basic ethics and the presumption of innocence should have tilted the decision in favor of the Bray option that required “animus” prior to conviction. But the court seems to hide behind court precedents, and arbitrarily-selected ones at that.
Paragraph 38:
Further, Masterpiece admits that it refused to serve Craig and Mullins “because of” its opposition to persons entering into same-sex marriages, conduct which we conclude is closely correlated with sexual orientation. Therefore, even if we assume that CADA requires plaintiffs to establish an intent to discriminate, as in section 1985(3) action, the ALJ reasonably could have inferred from Masterpiece’s conduct an intent to discriminate against Craig and Mullins “because of” their sexual orientation.
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My response:
It appears that the Colorado Court is creating a backup plan, just in case its decision not to find an “animus” requirement in CADA should be found baselessly arbitrary in higher courts. If that happens, the court basically says that even if such an “animus” requirement should exist, the court system “could have inferred from Masterpiece’s conduct an intent to discriminate against Craig and Mullins ‘because of’ their sexual orientation.” That’s right, if the Colorado Court needed to “prove…animus” before conviction (per Bray, etc.), the court claims the right to simply “infer it” from “Masterpiece’s conduct.” What conduct?
Where is the court going with this? Are they judging the baker to have real animus or technical animus? Actually, I have already read the next paragraph, and it is plain that the court finds real animus in the baker. But there is much more coming, so stay tuned.
Paragraph 39:
We also note that although the Bray Court held that opposition to voluntary abortion did not equate to discrimination against women, it observed that “[s]ome activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed.” 506 U.S. at 270. The Court provided, by way of example, that “[a] tax on wearing yarmulkes is a tax on Jews.” Id. Likewise, discrimination on the basis of one’s opposition to same-sex marriage is discrimination on the basis of sexual orientation.
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My response:
Now it appears that the court actually quotes some comments in Bray in order to justify the Colorado Court’s judgment that “an intent to discriminate can be readily presumed” in the Colorado case, because the court apparently finds the baker guilty of “targeting” some “activities [that are] … an irrational object of disfavor” and “also happen to be engaged in exclusively or predominantly by a particular class of people,” gays. And that spells “but for” logic. So standing one’s ground and refusing to get materially involvement in others’ behaviors equals “targeting” those behaviors; and when such “targeting” just “happens” to affect a member of a protected class, “an intent to disfavor that class can readily be presumed.” (It looks like theory 1 from last paragraph is the winner: the court presumes to find real animus in the baker.)
Let me get this straight. I thought Bray declined to convict anti-abortionists who did, in fact, go out and “target” abortion behavior committed by people who happened to be in a protected class – women. Bray “declined to equate opposition to voluntary abortion with discrimination against women.” And yet now, in Colorado, we’re supposed to think that Bray would consider the baker to be actually “targeting” behavior despite his having an even less aggressive position than anti-abortion position which Bray declined to convict? It seems to me that Bray should be interpreted to be even MORE supportive of the baker than it was of the anti-abortionists.
Then there’s the Jewish yarmulke logic. (Yarmulkes are “customary requirement held by orthodox halachic authorities that the head be covered at all times” - Wikipedia). In order to justify ‘readily presuming’ to find ‘animus’ or ‘intent to discriminate’ in the Colorado case, the court cites this example from Bray: “[a] tax on wearing yarmulkes is a tax on Jews.” But aren’t yarmulkes generally a “customary requirement” for Jews to wear? Underline “requirement.” How does this apply to the Colorado case? Are we supposed to think that same-sex marriage is likewise a “customary requirement” for gay-oriented people to practice?
Finally, based on all the above reasoning, paragraph 39 concludes by repeating its legal-system claim that “discrimination on the basis of one’s opposition to same-sex marriage is discrimination on the basis of sexual orientation.” Had enough?
In closing, C. S. Lewis wrote, “Good philosophy must exist, if for no reason, because bad philosophy needs to be answered.” And why does bad philosophy need to be answered? Because on its basis cake bakers for Jesus are being fined six figures, gag-ordered, and subject to “sensitivity training” at the hands of their enemies. This is not simply the flip side of equal rights. This is persecution.
Thank you for reading.
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