What Can’t Be Said

I’ve been mulling over the recent case of the Colorado baker refusing to make a wedding cake for a same-sex couple. It has led me to finally understand how this kind of case differs from, say, Woolworths refusing to serve black people in the South in the 1960s. This has been an unanswered question for me, because the Woolworth’s example has been the way that people attacking the baker have framed the case—as a civil rights question about access to public services, the same as denying black people food and coffee in Woolworths in 1963.

And from the other side, it has been framed as an issue of religious freedom, of the right of a person to follow their deeply-held religious beliefs.

what he said 2.png

But it turns out that neither one of those is what is happening here.

Let me prefix my explanation by saying that I will be using “forbidden” words in this post. I’m doing so in order to emphasize a point. They are hurtful words that I would never use in my daily life; they are words that my beloved grandmother would have washed my mouth out with soap for saying; but they are words that are critically important to understanding the point I’m making.

Now, the issue in these cases has been, should a baker be forced by the government to make a special cake for something that offends the baker’s deeply held beliefs? In order to clarify the issues involved in this matter, let me ask the following two hypothetical questions, remembering that I am using forbidden words for effect. Here are the questions:

Should a Jewish baker be forced by the government to bake someone a special cake that says “Hitler was right to turn the kikes into soap!”?

… and …

Should a black baker be forced by the Government to bake someone a special cake that says “The KKK should hang every nigger that they can find!”?

That’s it for the banned words, they leave a bad taste in my mouth, but they make the point very clear. For me, the answer to both these questions is, Hell no, they shouldn’t be forced to do that!

And that highlights what I see as the difference between the Colorado baker case and the  Woolworths case.

The difference is, in the baker’s case the Government is forcing one person to carry a message for another person. This is NOT what was going on at Woolworths. This is not about refusing service, religion, civil rights, or gay rights.

It is about refusing to be a messenger for words we disagree with, which is a very different thing.

So let me propose a two-pronged test to differentiate the baker’s case from the Woolworths case. I would say that anyone is entitled to refuse a request to create something for someone IF:

1) The item in question is a special, one-off item and not a standard, off-the-shelf item,

and

2) The item is required to carry a message, either expressed or implied, in support of some cause or idea with which the maker does not agree.

Using this two-pronged test, neither the Jewish baker, the black baker, or the Colorado baker could be forced to create a special item containing a message that is odious to them.

This two-pronged test makes it clear that it’s not a religious issue. It’s not a civil rights issue. It’s not a gay rights issue. It’s not an issue of refusing service.

Instead, it is an issue of Freedom of Speech, or more to the point, an issue of Freedom NOT to Speak. I see nothing in the Constitution saying that the Government can force its citizens to say things that they object to, regardless of whether the objection is racial, religious, or for any other reason large or small.

And that’s what I learned from the story of the Colorado baker …


My best to all on a peaceful evening, clear on the land here with a low mist over the ocean … what a miraculous planet we inhabit.

w.

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49 thoughts on “What Can’t Be Said

  1. Yesterday I commented rather similarly on FB about this story. I think you’re right.

    https://www.dailysignal.com/2017/09/17/im-a-t-shirt-maker-with-gay-customers-and-gay-employees-i-still-was-sued/

    If I had a T-shirt business, I would certainly not print many messages: racist, sexist and anti-gay ones to start with. I wouldn’t print pro-Hamas or anti-Israel ones either. I think this guy is perfectly reasonable, as is the baker who refused to make a cake for a gay wedding: that couple could easily have found another baker, rather than legally harassing him for six years.

    Liked by 1 person

  2. Willis

    Your argument is entirely valid however I would frame it a little differently. To me the baker is an artist. How does the Govt get to compel any artist to do anything? Can I demand that an author write something I want? I am thinking of Isaac Asimov (and zillions of others) who was frequently paid to create a chapter for a textbook. Somehow I dont’t think that those who demand their ‘rights’ to a cake would demand that Issac should be required to write a poem for me.

    I know, I know, I’m old…RIP

    Best

    Jack

    Liked by 2 people

    • I view it in that same framework – a request for a custom product by an artist or artisan. Framing it as issues of religion or freedom of speech muddies the water.

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  3. Yes it is speech, but also association. Association with the speech and ideas that violate ones freedom of conscience if forced to convey. Also association with the person or persons using force to compel the person to convey that message. Think about the Skokie case. A lawyer represents nazis seeking to march in Skokie. The lawyer is associated by the public with the nazis despite him not being a Nazi. Now, the lawyer can be compelled to represent the nazis in court because the lawyer is sworn as an officer of the court to represent all clients fairly and be a strong advocate for their case no matter how reprehensible it might be. Same for lawyers representing serial killers, mass murders, and child rapists.
    Cake bakers are not legally compelled like a lawyer to provide service to all. You cannot make a valid argument how doing so serves a valid public purpose that the market can provide simply by picking another baker.

    Liked by 1 person

  4. artist — that’s it exactly, what the artist does is a statement by the artist. The artist may be a musician and doesn’t want his/her song associated with certain politicians. The artist may be an actor and refuses to take parts of characters he/she doesn’t like. The artist gets to choose his/her art. The artist may refuse to make anything red for that matter, but forcing words into an artist’s mouth simply can’t be allowed to fly.

    Neither should gay couples be allowed to target Christians, knowing that they would refuse, knowing that they could bankrupt them and destroy their businesses and their lives. It’s getting to be commonplace.

    Liked by 1 person

    • Agree on the “not targeting Christians” thing. I’m surprised and disappointed to not hear voices from the LGBTQ+ community condemning the disproportionate response of the gay couple to being turned down – one of the two said that it made him cry in front of his mother, so his response was to attempt to destroy the livelihood of the baker and his employees. Not a good move, if you’re really interested in understanding and tolerance.

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      • Thanks, Pops. It’s been one of my recurrent questions as these things happen over and over … do these folks not understand that they are unnecessarily and wrongly making people hate members of the LGBTWTF community? Seriously, I have lots of gay relatives that I love dearly, and this nasty vicious suing of bakers pisses ME off … so what is it doing to the folks that are (were) undecided or ambivalent on the subject?

        w.

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        • I’m the same age now as Israel, the state created with enormous international sympathy and support for Jewish people after the horrific treatment meted out to them in the leadup and during WW2.
          But now consider the contempt that many “enlightened” people hold for Israel and its citizens, because they believe Israel has pushed beyond the threshold of empathy for their situation.
          My prediction is that in time, the gay rights agitators will arrive at the same point of public disdain as the Israelis suffer at present, because people will conclude that they’ve over-baked the push for sympathy and “rights”.

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  5. Thank you Willis, and all previous commenters, for putting so succinctly what the real response to this put-up-job should be.

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  6. There is much of your point about a “message” in the event, but there also is more. There IS the aspect of religion.

    To the true believer, the Bible clearly states that homosexuality is a mortal sin. Endorsement of sin is itself sinful. So, in essence, a compulsion to make a cake (or deliver flowers – less ‘message’ in flowers but the same legal case) is a compulsion to endorse the sin. I would assert it is closer to demanding that a Jewish butcher carve up and package your hog for you just as they would custom cut a sheep. Despite that it would render his whole shop non-kosher.

    To leave out that aspect is to diminish the issue.

    Similarly, ministers have been sued for not performing ceremonies. In many Christian sects, marriage is seen as a “3 way” of man, woman, and God “in holy matrimony”. To that point of view, a joining of two in mortal sin with God is a horrific thing to do. Compelling it is fundamentally saying that the religion is to be trashed. Again, not an issue of compelled speech so much as compelled action in sin.

    Now I’m not strongly Christian (more Buddhist in leanings) but I was raised in it. I know a lot of folks who truly do believe that were they to “endorse the sin” and participate in the process they would be damning their souls to hell. I find the notion of compelling them into that state repugnant. No forced communication needed.

    Then there is just the secular point that if you can compel me to provide service, I am no different from a slave. We all ought to be free to associate as we desire and to work as we desire. If I offend a large part of the potential customer base by my choices, I’ll feel it in an empty cash register soon enough. Freedom need not be free of consequences, but it ought to be free of lawfare…

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    • Mmm … thanks for your thoughts, E.M. I’m somewhere in the middle on this one. I do NOT think that people should be free to refuse to serve black people, for example.

      But on the other hand, I do think that no one should be forced to carry another man’s water, or their message for that matter.

      As to the question of making a special floral arrangement for a gay wedding, I would point to my two-pronged test—it is a special item, and it carries an implicit message (that gay marriage is something to celebrate, a message which is odious to certain religious folks), so nobody should be forced to do that.

      w.

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      • Can’t really go with you on this one. I think your two prong argument makes a distinction without a difference. In a government by and of the people then yes “equal” (all parties) under the law. In the private/economic sector I should be free to discriminate based on anything I believe. Usually economics levels it’s own field. There will be bakeries more than willing to cater to LBQT and whatever. And yes, I believe the bakery case was using the courts as targeting an agenda. (Same as climate lawsuits). I think Starbucks is committing suicide in their open door no purchase policy in areas where there are a lot of people that will take advantage of the policy. I also believe that Duncan Doughnuts (so far) is going to be delighted with the Starbucks policies.

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      • Well, you’re making me smile with a memory anyway. In the 80’s college/fraternity we were hosting a party. Very Animal Houseish; One of the girls had a little too much. Being so gallant, we figured maybe to let her sober up a little bit before taking her home. The Black Student Counsel was having a dance in the cafeteria so we figured (naively) we hang there for a little. We were the only white people there. The DJ was calling us out as unwelcome. So we had the “can we dance with you dates” moment. Actually we didn’t leave any troops behind but wow.

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      • Thanks, Taz. The problem lies in something called “The Tyranny of the Majority”. When I was a kid there were still states where white people and black people could not marry. How does that fit with “all men are created equal”?

        Power, particularly in a democracy, should never be absolute. Otherwise, the tyranny of the majority can deprive any minority of their rights under the Constitution.

        w.

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        • Tyranny of the majority; 100% with you there. Look to Hans Hermann Hoppe. Democracy the God that failed. Makes an interesting case that Monarchies are better suited rulers than democratically elected. The king has a vested interest in keeping and increasing the value of his property.

          I’ve thought about it a long time and never come up with a good answer. Maybe it’s the human family structure but humans seem to always want to construct some type of government structure. Any government beyond the kin circle seems to become both abusive and unstable.

          It’s like the United States current foreign policy (bombs away) War seems to be in human nature. Probably when the crops died then raiding made sense. Now we have a global economy where most all war is counter productive to cooperation. Tulip mania I don’t know.

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          • You can tell me if this Wikipedia article is fair or not, but in any case Hans Hermann Hoppe definitely looks controversial and provocative.
            https://en.wikipedia.org/wiki/Hans-Hermann_Hoppe

            “a German-born American Austrian School economist, and paleolibertarian anarcho-capitalist philosopher”
            That’s an unusual combination of adjectives.

            “Hoppe writes that towns and villages could have warning signs saying “no beggars, bums, or homeless, but also no homosexuals, drug users, Jews, Moslems, Germans, or Zulus”.”

            Does that mean he would also say that towns and villages could have warning signs saying “only beggars, bums, homeless, homosexuals, drug users, Jews, Moslems, Germans, and Zulus”?
            The answer is probably yes:
            “As for homosexuality, it is entirely possible that some areas of the country, parts of Gotham and San Francisco for example, will require this practice, and ban, entirely, heterosexuality. If this is done through contract, private property rights, restrictive covenants, it will be entirely compatible with the libertarian legal code.”

            * * *

            Back to The Tyranny of the Majority, democracy has not failed just because it’s not perfect, it’s still better than the available alternatives. Someone could argue that a benevolent dictator, or an enlightened king, or a perfect version of communism might be better … if only human nature permitted them to exist outside of the imagination. One of democracy’s less known advantages is that it gives hope to the losing side. There will be another election and another chance to win. This usually has a calming effect because it’s much easier convince people to vote than it is to convince them to have a revolution. So it avoids some revolutions.

            But democracy is misunderstood. People think it is about voting. It is not ONLY about voting; the most important part is the discussion, the exchange of ideas, the trying to convince others of the good and bad effects of any action. To keep it short, just one example: slavery was not abolished because the slaves voted against it.

            Democracy as we know it is has had a long, hard evolution, mostly by the English, but the American Founding Fathers, after serious deliberations, improved it further. The catch is, it still relies on good will. It has checks and balances against human nature, although imperfect.

            These are trying times. The list of “what can’t be said” is long and growing. The attack on free speech, justified by the attack on hate speech, is an attack right to the heart of democracy. No free discussion, no democracy. Period.

            https://www.nationalreview.com/2018/06/facebook-twitter-censorship-unfair-and-unequal/

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  7. All of these gay discrimination cases are false. In each one the “gay” couple sought out businesses which they knew beforehand did not support their life choice. Yes, choice. Each was intended to drag people into court and bankrupt them in order to push forward the leftist political agenda. IN the Colorado case both of the denied marriage participants were on multiple national “news” shows and admitted they targeted this business because they wanted to force him to make a product he did not want to produce. Political coercion, with a big dose of stealing other people’s money. Well past time for these “activists” to be prosecuted.

    Liked by 1 person

    • 2hotel9, I wouldn’t say that they should be prosecuted, but they certainly should not be able to sue, and they should be called out loud and clear by responsible gay people. The silence of the larger gay community on this question is a mystery to me, since it has occasioned such bad feeling against gays in general.

      w.

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      • Yes, prosecuted. They are using the US judicial system to attack people based on political ideology. They should also pay all the legal costs inflicted on their targets and the public. And yes, our tax dollars are being stolen for this crap and we damned well should get every penny back. People are getting angry about this all this and a backlash is building. It ain’t gonna be pretty and the wrong people will end up hurt.

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    • Years ago, when the ‘legalisation’ of homosexuality was being debated in the English Parliament, one female MP is supposed to have said “As long as they don’t do it in the street and frighten the horses”. Now, it seems that the LGBwhatever activists are actively TRYING to frighten the horses!

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      • Acceptance was never the goal, forced compliance with the leftist political agenda has always been the goal. Civil unions have always been available for people who wish to co-habitat, and yet that was never good enough. A better idea is to remove government from “marriage” period. THAT will not be accepted by the lgbtwtf crowd, forced compliance with their agenda is all they settle for. Just as the palestinians will never accept a 2 state solution, the eradication of all jews is the only answer they will agree to. And once all jews are dead they will move on to all infidels. Same “thinking” in the leftist lgbtwtf, acceptance is not good enough.

        The backlash is growing, it will not be pretty when it comes and all the wrong people will be hurt by it.

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  8. It’s the same as ‘compelled speech’ that Jordan Peterson has spoken about in the context of transgenders. It’s becoming forbidden to hold an opinion that is regarded as politically incorrect. You can’t even joke about it. In London a guy observed to a mounted policeman that his horse was gay. He was immediately surrounded by police officers, handcuffed and put in the slammer. He was fined £80.

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  9. It’s not a civil rights issue. […]

    Instead, it is an issue of Freedom of Speech, or more to the point, an issue of Freedom NOT to Speak

    In the US, the freedom of speech is considered a civil right. The first amendment also protects us against compelled speech.

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    • Thanks, Lucia, always good to hear from you. I agree with you, but despite that the Oregon bakers were put out of business because they refused to let their speech be compelled …

      Best to you and yours,

      w.

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  10. “It’s not an issue of refusing service.”

    There used to be signs everywhere “No shirt, no shoes, no service”. Clearly intended to discriminate. There are restaurants where you are required to dress appropriately, some even require a tie. Obvious discrimination. But a reasonable case for it can be made. Any law overriding the individuals’ judgements, rational or not, should be considered very carefully.

    Say I am considering picking up a hitchhiker. If the way he dresses makes me nervous, I don’t stop. It’s my risk, so it’s my decision. Same thing if I am renting an apartment. If there needs to be more “equality”, the solution is not force. Try education or “building awareness”. Most “victims” automatically assume they were denied service because of their preferred identity choice; bad assumption, but a good one for getting media attention.

    “No shirt, no shoes, no service — not even if you are gay, not even if you are not white, and so on.”

    The groups targeting Christian bakers should try it on Muslim bakers… then we can bet on whether gay rights or religious beliefs prevail.

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    • There are already being laws passed in the progressive cities that forbid you to inquire about a person’s criminal past or refuse to rent to them for their looks.

      Oh, it’s all right for protected groups to discriminate. At least if they’re discriminating against (non LBGTQ) whites or asians and doubly so if their Christians or Jews. You know, the “oppressors”.

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    • Since muslims routinely crucify gays, by throwing them from building tops, setting them on fire, stoning or simply shooting them, we all know why gays don’t pull their scams on muslims.

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  11. Some irony here in that legalizing same sex marriages was sold on the idea that extending marriage to these unions did not take anything away from other people. Now we see the attempt to take away from others their right to disagree.

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    • Similar things were said during the Civil Rights bill passage. We were assured that there wouldn’t be quota’s for example and of course there are just that they’re couched in terms that obfuscate the fact.

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  12. Your right except that for progressives your rights and beliefs don’t count if they conflict with what they’ve decided are the rights of a protected class. IIRC the baker in question had no problem selling his cakes to gays, just not wedding cakes for gay weddings. Of course that’s not deemed acceptable to those progressives and it seems that acts that they would condemn if they were perpetrated against one of the own are perfectly acceptable if they’re inflicted on someone they deem pariahs. Imagine the reverse where a Christian came into a t-shirt shop owned by a gay or progressive and asked for a shirt that said “marriage is between a man and a woman” and the owner refused. Do you think that the civil rights commission of Colorado would condemn the owner?

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  13. Should a sail maker be forced to make a sail that carries an “odious message”, and a reference to the maker of the sail, possibly in smaller print.
    Where does it stop ??

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  14. There is an important element of the argument you are missing.

    The CCRC held contemporaneously that THREE different bakers were justified in NOT serving a fellow named Jack who wanted baked goods that contained an “anti-gay” message. The bakers did not want to participate in a message they disagreed with.

    In the subject case, the governments own approval and disapproval of the message was the defining difference. If that isn’t a First Amendment issue, what is?

    Government approval of the message as key to the CCRC decision was the argument of the Thomas/Gorsuch concurring opinion. The tragedy was only those two put there name to the opinion.

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  15. What can’t be said. Here’s a classic Mark Steyn article on that.
    https://www.nationalreview.com/2013/12/age-intolerance-mark-steyn/

    Here are two jokes one can no longer tell on American television. But you can still find them in the archives, out on the edge of town, in Sub-Basement Level 12 of the ever-expanding Smithsonian Mausoleum of the Unsayable. First, Bob Hope, touring the world in the year or so after the passage of the 1975 Consenting Adult Sex Bill: “I’ve just flown in from California, where they’ve made homosexuality legal. I thought I’d get out before they make it compulsory.”

    I’ll let you look up the other one. “As Christian bakers ordered to provide wedding cakes for gay nuptials and many others well understand, America’s much-vaunted “freedom of religion” is dwindling down to something you can exercise behind closed doors in the privacy of your own abode or at a specialist venue for those of such tastes for an hour or so on Sunday morning, but when you enter the public square you have to leave your faith back home hanging in the closet.” (The closet is empty now after the gays have come out)

    I suspect the gay cake warriors are angry at all Christians, having been told the what the Bible says about it too many times, yet the cold blooded revenge makes one wish for a more Christian attitude.

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  16. Your second question is unnecessary. Should a furniture maker be required to put Regency claw feet legs on an Art Deco table? No. An artisan has a right to refuse a one-off contract. The baker doesn’t have the right to refuse sale of a standard item, but does have the right to refuse any one-off adaption that a customer might request.

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    • Gary, I still think it is a question of freedom of speech. Remember that the Supremes have already ruled (in the flag-burning case) that symbolic speech is speech, and art is definitely symbolic speech.

      Interesting question, though …

      w.

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      • Context. It’s a shop, not a public arena. Two people enter the room where one person wants to purchase something, the other wants to sell something. Transactions should comply with contract law and common practice. Flag burning is a single person expressing an opinion in a public space. Context.

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  17. I make stuff out of wood, portraits, signs, stuff. You want a standard item off the shelf, have at it. You want me to make something special for you, I may or may not be interested.

    Now, make a federal case out of that. Do I need a reason to not make your special item, or is it simply enough that it does not interest me? Say I have fishing theme items, and you want tennis. Can you enlist the Government to compel me to make your special item?

    One need not include sex or religion or any other factor. Can you be compelled to make things on demand?

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  18. Willis,

    You make a very good argument but have it contained within a narrow window to be valid. The real issue is Political Correctness in general and flourishes cloaked in freedom of speech, freedom of religion, civil rights, etc.

    Seems that if one can slide in under one or more of these constructs of freedom or rights and pacify the Thought Police, it becomes a new standard that other standards will be built on. Soon the standard standards will be no standards at all, just accommodation of the most far reaching of the newly protected class.

    There has become a mindset among left-wing activists that all things must change.

    Will restaurants be required to make special order vegan spaghetti sauce? Will a defendant face an accuser in a burka in court? We already have nameless accusers in court with fictitious/redacted names in rape charges. No background checks or past history allowed with regards to the accuser.

    The past 20 – 30 years of “women’s rights” have scared a lot of men from the institution of marriage, me included. If she gets mad and goes for a restraining order because you took the credit card away and yelled at her, well you’re moved out of your home, your guns instantly impounded, and you may be jailed until court proceedings. Oh yeah, now you have a criminal/court record.
    But the sad but funny pert is when a previously ‘militant feminist’ mother’s son is charged by law under the PC regulations/changes she advocated for. Or her daughter fails to find a mate to father and raise her children. Apples don’t fall far from the tree. But the best part is when the current activist fails to find a mate as a result of their present activism and attitude. I’ll bake them that cake and they can have it and eat it too.

    I have lived through the era of “quotas” and faced it in job opportunities, SBA lending and related as well as having to put up with being captive in all of it and needing to keep my mouth shut.

    Anyway, the Political Correctness Brigade is marching onward and getting real change through court action but for no other reason than just change based on a perversion of “rights”.

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  19. You don’t need to use the nazi or kkk examples. Just go to a gay baker and ask for a cake to be made with the following scripture on it: “You shall not lie with a male as with a woman; it is an abomination.” Leviticus, Chapter 18 verse 22

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  20. I have an idea. Political strength is in numbers in the US (dollars included). A minority group organizes to promote their ‘religion’. They are persecuted and not given the respect they demand. They march and protest for their rights. The MSM acknowledges their rights and repression and calls for diversity. Traditional norms call bullshit but diversity is a Politically Correct goal and the actions of a few are not proof of those of the entire group. We just need to be more tolerant of others with different views and opinions. They are given protected status and must now be revered by all least you be jailed. We become a more diverse society, what’s not to like. You shall not judge a book of group by it’s cover or appearance. After all change is on the menu. You will be labeled a bigot if you don’t agree. That group is MS-13 and diversity requires you to embrace their ideology.

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  21. How about that incident over the weekend where a guy, going to dinner with his minister, was denied entrance/service at a restaurant in Indianapolis because the cross on his necklace violated the “Dress Code”?

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  22. …Instead, it is an issue of Freedom of Speech, or more to the point, an issue of Freedom NOT to Speak. I see nothing in the Constitution saying that the Government can force its citizens to say things that they object to, regardless of whether the objection is racial, religious, or for any other reason large or small….

    How does that fundamentally differ from being forced to serve a person if you object to that person’s race? I might feel very strongly that some races are sub-human and ought to be extermnated – and certainly should not be let into my coffee-shop. Simply letting them walk down the street without harrassment could, to my eyes, be equivalent to admitting that they have a right to exist (a statement I greatly object to).

    It seems to me that, as with so many imponderable questions (like abortion) we are faced here with an issue which has infinitesimal graduations, and we are trying to find a point at which is is logical to divide it. In this case there is a gradation of acceptable attitude – much like the ‘taking the knee’ controversy. And attitude can be inferred from words, actions or even facial expressions, while the law has to pick some dividing point where a grimace may be acceptable while a hand gesture is not…. The Greeks used the Sorites paradox to describe this situation, and the failure of philosophers to solve it satisfactorily probably indicates that it is not able to be resolved…

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  23. Your “How does that fundamentally differ” paragraph isn’t so hypothetical. That is more or less exactly the Muslim extremist’s view, supported buy the Koran. Jihad. Not only do non-Muslims (and homosexuals) have no right to exist, they must be killed.

    Your last paragraph “as with so many imponderable questions” is almost the very definition of “politics”. If there is no consensus, then it’s political.

    “and the failure of philosophers to solve it satisfactorily probably indicates that it is not able to be resolved…”

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  24. One of the problems I saw was the courts getting off on the “art” angle rather than the “speech” angle. Your hypotheticals are exactly right. There also is a religious angle: gay activists are gunning to force all churches to perform gay weddings under the same “cake” logic–it is just a service.

    Like

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