The Restaurant, The Cake, The BBQ, And The Schadenfreude

I first became aware of the situation because my friend JG shared a Facebook post from Todd Starnes, who, if you don't know, is a Fox News Radio personality, and a staunch defender of right wing bigotry.  As I browsed my news feed, several posts, some from news sources, some from friends' posts, some expressing praise, some expressing outrage, the story became clearer: The owner of a tiny restaurant in Lexington, Virginia had asked Sarah Huckabee Sanders to leave because "the restaurant has certain standards that I feel it has to uphold, such as honesty, and compassion, and cooperation."

I don't remember if it was the next day or the day after that my friend MW posted this meme. I took issue with the "jump for joy" phrase, and decided to respond.  What follows is our annotated discussion.

Ron  Not exactly. As Jim Wright put it, "I think what happened to Sanders is a shitty damned deal. I honestly think it's awful.
I think Sanders should be able to go into any restaurant she likes and enjoy her meal in peace without conflict, attack, or persecution. And I think as a paying customer she deserves prompt, courteous service.
But, see, that's the thing, people like Sanders think that ONLY people like Sanders should have that right.
I think EVERYBODY should."
There is an attitude among several of my Facebook friends that they have the right to their bigotry, racism, Antisemitism, homophobia, xenophobia, Islamophobia, and nativism because it is part of their sincerely held religious and political beliefs, and that the symbols of those beliefs should be defended in the name of "history" and "heritage." And that no one has the right to call them out on it because that would be the one true form of discrimination.
There is a word that is being used a lot these days to describe a sort of satisfaction one feels when he observes someone falling victim to the same destructive policies he had been promoting, but that word is not "joy." It's not a word that I'm familiar with in my daily vocabulary, but I will recognize it when I see it, and I will amend this comment at that time.
In the meantime, Laura McGann has an opinion as well. 

The word I was looking for was Schadenfreude, which actually means to take pleasure in someone else's misfortune. In my head I was defining it as that feeling of satisfaction I get when a guest insists that his car get left out on the front drive, and then a homeless guy pees on his tires. In this case, it was about Mrs Sanders defending those who refuse service to someone, and then that being turned around on her.

MW Tossing names around like "homophobe" stops the discussion. And, as in the Masterpiece Cake case, the owner was not opposed to serving gays. What you want is to force him to participate in a ceremony that he cannot support. Forcing him to participate in a marriage that his faith cannot condone is the worst form of tyranny and bigotry, as long as we're calling names.

Peter Beinart had an excellent article in last December's Atlantic Magazine, in which he discussed the difference in perception of the word bigotry.  He says

Conservatives tend to define it in terms of intention: You’re guilty of bigotry if you’re trying to harm people because of their race, gender, or the like. Liberals are more likely to define it in terms of impact: You’re guilty if your actions disadvantage an already disadvantaged group, irrespective of your motives. You may genuinely believe that Georgia can’t afford to expand Medicaid. But given that the Georgians affected by this decision are disproportionately poor people of color—and that they lack coverage in large measure because they are poor people of color—your opposition to expanding Medicaid perpetuates a history of state-sponsored bigotry. As a conservative, you may feel an impulse to conserve the past. In a country whose history is marked by the subordination of blacks, women, and LGBT people, however, many liberals believe that conserving the past maintains that subordination.

MW is one of several friends who believe that the "participation" argument is valid.  It's not.  It's absurd on its face for a few reasons, the least of which is that the cake is not featured at the wedding, it's part of the reception.  The idea of "participation" in the argument seems to include baked goods produced hours before and possibly miles away by anonymous parties. 
And furthermore, MW's description of the Masterpiece Cake case is incorrect.  The baker flatly stated he would not provide a cake for a gay wedding, though they were free to purchase any other type of baked goods in the store.  They had not discussed the cake design or anything else.  Judges had rejected his arguments partly because their conversation was so brief -- both sides agreed that the conversation lasted about 20 seconds. His refusal was a violation of Colorado's anti-discrimination laws, and he was taken to court.  It was only after the case was progressing that they were offered a plain unadorned cake.

MW The owner of the Red Hen chose to cater to only Democrats and "right thinking" customers. She has that right. A foolish business decision, as she will find out, but she can do it.

Oh good grief. She did no such thing. She refused service to ONE person for a specific reason. Whether it was a bad business decision remains to be seen.


Ron  I will refer you once again to Newman v. Piggy Park Enterprises, where Mr. Bessinger was also being "forced to participate." Also, I have to question your use of the word "Democrats" and your rejection of the word "homophobe," since the reason she was asked to leave was NOT because of her political party, but because she had taken a public stand against gay rights.

Newman v. Piggy Park Enterprises is my go to in discussions about cases like this. In August of 1964, a young woman named Anne Newman and her friend were denied service in a Barbecue restaurant in Columbia, South Carolina, simply because they happened to be black. This was after the passage of the Civil Rights Act of 1964.  The owner of the restaurant chain was a man named Maurice Bessinger, a Southern Baptist, who claimed that his restaurants were exempt from Title II of the Civil rights act because, among other things, "his religious beliefs compel him to oppose any integration of the races whatever." The courts disagreed, of course. US District Court Judge Charles Earl Simons Jr wrote, 

"It is unquestioned that the First Amendment prohibits compulsion by law of any creed or the practice of any form of religion, but it also safeguards the free exercise of one's chosen religion. The free exercise of one's beliefs, however, as distinguished from the absolute right to a belief, is subject to regulation when religious acts require accommodation to society. Undoubtedly defendant Bessinger has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens.

The Supreme Court was more blunt. They described that defense as "patently frivolous." I've brought up Newman v. Piggy Park Enterprises in past discussions with MW, but he's given no indication that he has any kind of opinion concerning the case, nor even that he has read about it, despite my providing him with links to the case.

Ron  Those who support the baker’s right to refuse to make the wedding cake should also support the restaurant owner’s right to refuse service to someone whose stances on immigration, health care, human rights, and other issues run counter to her staff's political beliefs. Picking one over the other is a massive display of hypocrisy. But it is a huge indignity to be turned away from a place that is open to the public, and neither of these things should be happening in American society.

This comment prompted a short side discussion.

       SS Political views and religious beliefs are two different things. Make the democratic party a recognized religious organization, and we'll talk.

       Ron  I think Robert Jeffress disagrees with you.

       MW   Ron So you make no distinction between religious beliefs and political beliefs?

       Ron  I do.

Of course I make that distinction. What a ridiculous question. But in this context, the question might be justified. (It should be noted here that MW and his friends regard ideology and party affiliation as a lot more relevant than I do.)
I had never heard of Robert Jeffress until that day, when his name came up in my news feed, but apparently he's a big deal in evangelical politics right now. I could just as easily said Franklin Graham, or any of the other "court evangelicals."

MW Again, the couple was not "turned away." The baker was asked to participate in a ceremony he cannot, based on his faith, participate in. You want to force him, and me, to participate by law. By your logic, as a licensed Southern Baptist minister, I must agree to perform the marriage ceremony for a gay or lesbian couple, regardless of my religious or moral beliefs. is that where your headed? And my objection to your list of "phobes" was based on your comment.

That is not my logic, but he's brought this up before. Back when the Obergefell case had first been decided in the Supreme Court, MW had expressed the same concern, that he would personally be compelled to perform same sex marriages. He said that the pastor and deacons of his church had met together to go over the bylaws of their church to see where they might be vulnerable. Personally, I think they could have saved themselves a lot of paranoia if they had just read the decision itself. As Justice Kennedy wrote, 

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.  The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.  The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex. 

MW Are political beliefs the same as religious beliefs? I think that's the question here. Doing the moral equivalency argument between The Red Hen incident and Masterpiece is based on how you answer that  question.

This is actually a complicated question. I tried a sort of tu quoque argument during the conversation (below,) but I've had to rewrite this paragraph a couple of times because I keep seeing different ways to think about it. I don't think it's "the question here," though.
  On the surface, no, I don't see them as being the same. There are obvious differences both in subject matter, and how they are perceived in society. But I got to thinking about conversations that I've had with my brother ages ago.  Peeling the two ideas away from their subject matter, both are simply opinions.  A belief is simply an opinion about whether or not something is true.  Faith is simply an opinion about whether something or someone is deserving of trust or confidence. It's only when you wrap those opinions around certain concepts, such as politics or religion, that they start to take on another meaning.

JD Personally, I think you should be able to serve or not serve whomever you want in private business. If enough people are pissed off that you’re not serving a certain group or only serving a certain group, then you won’t be in business long. It’s the beauty of capitalism and the freedom of our country.

       PA-SA I remember the days when an owner of a business could hang a sign that says "We reserve the right to refuse service to anyone." (or something to that effect). Actually-- I believe we had it hanging in our skating rink!

So JD thinks the free market will weed out discrimination. This is a Libertarian idea (I know because I have 1½ Libertarian friends,) and like most Libertarian ideas, it sounds good on paper, but doesn't actually work in real life. To begin with, it is built on the assumption that people act in their own best [economic] interests.  This assumption is false. Books have been written explaining how false this is. People act on their emotions, their predjudices, and their loyalties (no matter how misplaced those loyalties actually are,) regardless of how much pain and suffering it causes them or their neighbors. Furthermore, if these attitudinal motivations are part of the larger culture, they are not going to be weeded out. This is why Jim Crow lasted for decades, and this is why we have antidiscrimination laws, like the Civil Rights Act of 1964, which demanded that barbecue restaurants in the South must serve African American customers, even though the culture they existed in made it perfectly acceptable for them to refuse to do so.

Ron @MW: I've never thought of the Baptist Church as a commercial venture, so no.
On the second question, I wouldn't normally, but I have a lot of Fb friends, almost exclusively on the right, who mix their politics and their religion inextricably. A friend of a friend recently commented that Trump was "God's gift to America," and another said that Republicans who opposed the family separation policy were revealing themselves to be "fake Christians."
@ JD: Maurice Bessinger would agree with you. Back in his day that was the norm (remember the movie Giant?) until things like this started happening.

BP I think MW has made it clear that the baker wasn't being all "we don't serve your kind here" in the same sense that the restaurant was to Sanders. He would have sold them any cake in the store, even a wedding cake. What he opposed to, with the Supreme Court agreeing to (7-2) was being forced to participate in a gay ceremony. Much different than Sarah Huckabee Sanders scenario.

In answering JD, as you can see, my mind immediately went to the Civil Rights Act and Jim Crow.  But she was, in fact, right about a thing. Businesses do have the right to refuse service to individuals. Ms Wilkinson, for instance, asked Ms Sanders, an individual, to leave her restaurant, and her reason was that Ms Sanders made the staff uncomfortable because of her public statements on gay rights. What landed Mr Phillips in court was that he did not say, no, I won't serve you, Mr Craig, or you, Mr Mullins, because I have an issue with you personally. He said he didn't provide cakes for "gay weddings." "Gay" is a class of people, and it happens to be a class that's protected from discrimination under Colorado law.  As BP said, much different from the Sarah Huckabee Sanders scenario.

       Ron That's not what SCOTUS agreed to, as that was not the issue they addressed in their decision.
And the Red Hen is not a grocery store. Ms Sanders was not just buying anything that was already packaged and ready to go. The cook and the waitress, among others, would indeed be participating in Ms Sander's dining experience -- more so than the baker, as they would actually be in the room as it was happening. They chose not to.
And please understand this: I am NOT validating the "participation" argument. As SCOTUS said in Newman v Piggy Park, that defense is "patently frivolous."

AT The baker did not refuse to serve the gay couple, he refused to make a custom cake. They could have purchased any product from the shelves. An artist would sell any painting in his gallery to any customer but would refuse to produce a painting of a scene that was counter to his beliefs. No Jew should be forced to produce a work of art (custom cake, painting, photographs, etc.) for the Nazi Party USA. No black should be forced to similarly serve the KKK.

It is the custom, artistic nature of the product. Some think a photographer should have to take wedding photos, but what if it also included pictures of the consummation of the marriage on the honeymoon? What if the gay couple's cake required two erect penis (peni?) in 3d glory? Selling a tank of gas, deli sandwich, or cake off the shelf to any willing customer is not the issue here. It is not just a religious issue, it encompasses many other ideological perspectives.

I'm going to skip over the mangled facts of the case, as this has already been covered. And AT's appalling second paragraph, ugh! not touching it. But this is not like a Jew being forced to make a Nazi cake. This is a Nazi being forced to make a Hanukkah cake.  This is not about an African American being forced to make a cake for the KKK.  This is about  a KKK member being forced to make a MLK Day cake.  What's the difference? White supremacists' speech is protected under the 1st Amendment; they can say anything they want.  But they are not, under any law that I am aware of, a protected class of citizen.  Laws protect people from discrimination based on their religion and their race, and in Colorado and twenty other states, their sexual identity/orientation. And if you are running a business that is open to the public, you cannot use your opinion, even a religious opinion, of certain classes of people as an excuse to break the law.  You have a perfect right to have an opinion and to express an opinion, but you do not have the right to use that opinion to deny someone else their civil rights. You can believe whatever you feel is right, and say so, but how you act, particularly when it comes to your treatment of other people, can be regulated by law. As the saying goes, your right to swing your arms ends where my nose begins.

A note here on the "artist" reference. Commissioned paintings are a contractual agreement, and not subject to the same laws.  My daughter bakes cakes and she can decide she doesn't want to bake for someone for any reason.  Why her and not Mr Phillips? (No, it's not because she lives in Oklahoma.) It's because she does not have a store that is open to the public.  When she bakes a cake for someone, it is a contractual agreement between her and the customer, and she is free to decide whether she wants to make that contract or not.

Mr. Phillips did not come before the Court as an individual seeking to express himself through his art or his worship. He came "before the Court instead as the proprietor of a storefront bakery selling to the general public. It is in this role that he is subject to the antidiscrimination laws, and it is well within a state’s power to rid the public marketplace of discrimination against those invited in to purchase goods and services, whether or not these goods are creatively designed." 

       AT Preparing a meal in the café is hardly "participating in the dining experience" in the same sense as the baker.

That is true. The restaurant staff actually participates, the baker does not.

       AT Read libertarian Milton Friedman's books "Capitalism and Freedom" or "Free To Choose" for a refreshing take on choosing to serve or not serve a segment of society.

Milton Freidman. Mostly famous for not having stood the test of time.

BP

Ultra-sensitive political correctness and extreme victimology? Is that a FOX thing? It sounds like a FOX thing.

PJ They were served appetizers then ask to leave because the staff took a vote and didn't want them in the restaurant. Sarah and her husband went home. Sarah's in laws who are VERY LIBERAL went to a restaurant across the street where they were also harassed so much that her brother-in-law went out to speak to the protesters and tell them that Sarah was NOT at the restaurant.

Ron Incidentally, had the Sanders chosen to dine in DC, it would have been illegal for them to have been refused service by the restaurant over politics. Not so in Lexington. Similarly, while it's not legal to discriminate against someone based on their sexual orientation in Colorado, it's perfectly legal to fire someone, or deny them service or housing here in Oklahoma if they happen to be LBGT.

Well, after that, everybody moved on. 
In researching this post, I actually learned a lot about case law on this topic. Of particular interest was the Brief of Amici Curiae submitted to the Supreme Court for this case.  It was written by six public accommodation law scholars, and relevant cases were spread through it like punctuation (which kinda made it hard to read sometimes.)  
One of the things pointed out early on was that the law makes no distinction between the different sets of protected classes.  If an exception is carved out so that group X has the right to discriminate against group G, then they will also have the right to discriminate against groups A, B, C, D, E, and F.  But this paragraph from page 15 summed it all up: 

This Court has consistently recognized a distinction between private, selective, and primarily expressive activities where constitutional interests are at their peak, and the public sphere inhabited by outward- facing, nonselective associations and commercial businesses—like Masterpiece—where constitutional interests are at their weakest. Retail businesses, like Masterpiece, falling at the far public end of the spectrum, are subject to rational regulation of their commercial activities. Masterpiece’s use of “fine-art skills” to create custom wedding cakes  does not change this result. The business transaction at issue—like many others that involve bespoke goods or custom services provided through an open invitation to the general public—is not afforded First Amendment protection against the public accommodation laws. Masterpiece is not a nonprofit whose purpose is expression, a selective club, an individual entering into a personal contractual relationship, or any other entity that might warrant special First Amendment solicitude. Accordingly, the Constitution does not grant the bakery a license to discriminate.

I'll leave you with this quote from Nate Pyle:

"The question now being asked of Christians is, 'Will you treat us as human beings?' That's what's behind wanting a cake for a same sex wedding. Or photographs. It isn't shoving a lifestyle down people's throats. It's simply a desire to be seen as human. To be treated as human. To enjoy life as we all want to enjoy life.