Wiki Research Page for Cases involving Freedom of Conscience -- Spring 2018

From Alfino
Jump to: navigation, search

Applied Ethical Analysis of Cases involving Freedom of Conscience

  • Applied Ethical Analysis: News article on Freedom of Conscience Case: Masterpiece Cakeshop v. Colorado Civil Rights Commission [1]

Preliminaries

Lesson One: Backing away from contested case, exploring norms for a range of related scenarios

  • News article on Freedom of Conscience Case: Masterpiece Cakeshop v. Colorado Civil Rights Commission [2]
  • From the article:
  • 1. Expression matters to this case. If it's expression then making Jack make the cake against his conscience is like coercing speech.
  • 2. Expression doesn't matter to this case. It's a commercial matter (public accomodation law applies)
  • 3. Discrimination is the issue: (1968 Newman v. Piggy Park Enterprises -- can't refuse African-Am customer.)
  • Philosophical Method Lesson: Giving an Applied Analysis: You might want to just jump in at this point and start arguing along the lines of 1, 2, or 3. But a good ethical analysis might start by "backing away" from the contested issue and starting in a different place. In small group, discuss and take notes on any significant results from these questions:
  • When is discrimination ok? Friendships, private clubs. What makes that ok? Think of concrete scenarios involving exemptions from anti-discrimination law. What judgements might you make of people in these scenarios?
  • What other contexts should do we already give exemptions for conscience? Are they similar to this case or different?
  • What are some other cases in which we should worry about violating someone's conscience?

Lesson Two: Finding Existing Ethical norms and standards

Lesson Three: Thinking of Additional and, possibly Unusual Cases

  • Can a baker refuse to make a cake with Satanic or pornographic representations? Can a baker refuse to put something disgusting on a cake? Would cases like that support the baker's claim that he/she can refuse to do other things that feel similar from his/her subjective standpoint?
  • Whatever you think of the case in question, imagine a case in which you think everyone would agree that someone would have complete discretion over clients.
  • An freelance artist not in business?
  • An artist devoted to Hispanic portraiture? painting Holocaust survivors?

Lesson Four: Lesson on Time and Meaning: Don't assume we're using the same words the same way or that they mean what they used to

  • Mill's concepts of freedom of conscience -- includes freedom to call out. Liberty of thought, expression, and toleration of individuality. Note tension. Harm principle. Words/Deeds. Note that Phillips case hinges a bit on this distinction. Largely focused on negative freedom. Freedom from constraint. (Recall the love story.)
  • Do we mean the same thing Mill meant? civil respect, social respect, discriminatory behavior, racism.
  • Relation of religion and rights.
  • Recent status of LGBT rights. Another SC decision to look at.

Recall 2/14 discussion of shunning and rights

Additional Resources

  • Contribute links to resources along with some summary information.

Link with video about "Cake Artist Addressing the Supreme Court" [3]


  • Regarding the gay marriage case: In 2015, facing a circuit split, the Supreme Court resolved the question of whether state bans on gay marriage violated the Equal Protection and.or Due Process Clause of the 14th Amendment. In Obergefell v Hodges, a five-member Court majority concluded that the bans did indeed violate both 14 Amendment provisions. Writing for the Court, Justice Kennedy said the Framers of the Constitution "did not presume to know the extent of freedom in all of its dimensions, and so they entrusted future generations a charter protecting the right of all persons to enjoy liberty as me we learn its meaning." With "new insights" into liberty's meaning, "The Court now holds that same sex couples may exercise the fundamental right to marry." In dissent, Chief Justice Roberts argued the "Constitution had nothing to do" with the right granted by the Court which, in his opinion, was making a decision left by the Framers to legislatures. Justice Scalia ridiculed the reasoning of the Court, indicating in a footnote that he would hold his head "in a bag" if he were compelled to join the majority's opinion.[4]
  • Note that the core intuition here was about "equal protection" specifically in regard to laws that prohibited legalization. The state has to have a reason to treat people unequally.
  • Also regarding the cake case, most of the material out there comes down to the question of lawful vs. unlawful discrimination. There is a lawful aspect to certain establishments that have a dress code, or do not allow pets or some such. However, this would be another case that deals with the problem of sexuality being a part of a protected class, as discriminating against a protected class is considered unlawful discrimination.