Month: June 2018

Of Pizzas & Cakes

Dave Davis Commentary, Policy, Uncategorized

The Supreme Court decision in favor of the owner of the Masterpiece Bakery who refused to bake a custom designed wedding cake for a gay couple.  He had explained his refusal on religious and free speech grounds. His victory wasn’t based on any rights but turned on the animus of the commissioners. As such it settled nothing. This got us to thinking about our 4/2/15 post We’re Confused about Indiana.   Re-reading this post  relating to  a persecuted pizza shop, we still think we were on the right track but realized we had missed the major point.  Simply, the vast majority of these types of cases should-be been immediately tossed out of court.  Hear us out.  In April, New York attorney Steven Molo turned down a request to represent President Trump.  A top-notch attorney was needed to replace the then lead attorney John Dowd and the well credentialed Molo fit the bill, but he said no. He didn’t have explain.  Even the President couldn’t demand his personal service  No was sufficient. Now imagine if President Trump had approached clothing designer Calvin Klein to design his inauguration wardrobe and Calvin said no.  Could the President sue to compel  Klein’s performance in his service?  Obviously not!  There never was a “meeting of the minds” so no contract.  Further the 13th amendment precludes involuntary servitude and even if the President really pushed, coercion doesn’t work under our law. Simply in either case, you can’t demand personal performance.  They could just say no and that’s the end of it.  Did Molo and Klein have to give any reason for their refusal?  No, unless they wanted to but it would be immaterial. Even the President isn’t legally owed an explanation. No is no and that’s the end of it.  But what if either or both said they refused on religious grounds? Say, they’re Catholics and Trump  is unrepentant Presbyterian. Could the President then take his case to the local civil right commission?  Of course not.  This would mean people could be stripped of their right to say no simply because they mentioned 1st amendment rights.  This would lead to the absurdity of losing a right simply by bringing up another constitutional right.  This would be turning the law on its head. Yet, this is exactly where we are. Now, the President has every right to go to Amazon and purchase any book on the law or anything else Molo wrote or go into Macy’s and purchase Calvin Klein branded clothes.  These are offered to all for sale and cash payment completes the contract.  This is general commerce and Molo and Klein can do nothing legally to prevent these sales.  However,  general commerce is different from personal unique services and products and we have always recognized the difference.  One apples and the other oranges.

There are excellent reasons for this distinction. It protects both parties. It protects people from unwarranted demands for their personal skills.  Also, it protects people from foolishly forcing the produce of people who have less than their best interests at heart.  Imagine a President Trump on inauguration day realizing he’s being mocked for an ill-fitting ugly suit.  Worse being perp-walked out of the white house after impeachment and realizing Nolo just might not have given his best advice and efforts.  Further, it prevents the inevitable litigation that would arise and that certainly is in the courts interest.

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Baby out with the Bath Water

Dave Davis Commentary, Uncategorized

“Roseanne” a highly rated TV Show especially in middle America was tossed off the air shortly after its namesake star Roseanne Barr tweeted a weird and bizarrely racist tweet.  We agree it was out-of-bounds and she should suffer consequences, but was pulling the hit show the right way to go?   What struck us with all the elitist hand wringing by numerous panels across the airwaves from all sides of the political spectrum was how few of these talking heads ever saw the show. For instance, Rich Lowery the editor of the National Review on a CNN panel illustrated this best when after a long comment on the controversy admitted he had never watched the show.  Judging from the reactions from the rest of the panelists, actual knowledge of the show was limited if not non-existent.  Print commentators are no better.  Washington post Columnist Kathleen Parker put it to Roseanne this way, “she’s what happens when a struggling network (ABC) sells out in a bid to capture President Trump’s base.”  She obviously never took the time to watch the show or god forbid maybe she did but just didn’t understand it.  For all these elites who never saw the show, we would like to point out this is exactly the kind of show we need on TV.  A middle American family living pay check to pay check trying to survive in a sea of change.  A family with health problems, daughters stuck in dead-end jobs, a mixed race grandchild with ex and current military parents and a grandchild with possible gender identity problems.  One sister is conservative and the other liberal.  The patriarch is coping with a changing construction labor market.  Talk about diverse people dealing with real problems.  More importantly, the show did it with great humor. This is anything but the Trumpist propaganda as some people have portrayed it.  Like shows before it such as “All in the Family” and “Will and Grace” they presented  problems and situations not by hitting people over the head but by showing real people in ways the audience could relate to and begin to understand.  Humor can bring an understanding in ways other venues just can’t. While the program had big audience, apparently the elites demanding the cancellation of the show weren’t part of it.  If they watched the show, they might have seen its great value.

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