Supreme Court Same Sex Marriage Argumet

[Ace]

R

Ace;

You asked a lot in a single post so let me see if I can answer to the best of my knowledge.  Grant me a slight re-categorization of your questions as pertaining to:
1.  Contract for Service:
2.  Contract for Goods:
3.  Enumerated Vs. Substantive Right:
4.  Enumerated Vs. Enumerated Right:
5.  Small vs Big Business:
6.  Protected Class:

1.  Contract for Service:  Your first question about the cake shop is in regards to contracts for services and is asked in two parts.  In response to the first (under common law); a party may not be compelled to enter into a contract if there is a readily available substitute for the goods or services in question.  This hold so long as the goods or service is not of such unique character that it cannot be performed by another party.  Under this same argument a cake baker may enter into a contract to bake a cake and thereby assign the benefits of the baking (the pay) and the duty to bake to another baker.  In general all contracts are presumed assignable and delegatable unless expressly prohibited in the contract or the goods or service to be provide is of such unique quality as to not be performed by any party but the original contractor.  The same applies for the sale of goods under the UCC.

2.  Contract for Goods:  The second part of your question is framed in terms of a contract for goods rather than services.  As such it may be said the terms of a contract for goods under the UCC do not need to be explicitly expressed as those terms will be supplied by those in accordance with the standard of the industry.  With that said a party may not be compelled to enter into a contract for goods or services requiring them to perform acts which are not in keeping with the general course of business dealing if the party does not wish to enter the contract volitionally.  Also, existing contracts are to be fulfilled in accordance with the general business practice exercised by the contracting parties as historically established unless expressly specified otherwise.  So in this regard you would be correct that a party does not need to engage in business practices it does not normally engage in, unless it has agreed to do so from the start.

3.  Enumerated Vs. Substantive:  In regards to your 1st amendment question we are splitting it into two parts.  Under constitutional law conflict between an enumerated right (expressly stated right) such as the freedoms stated in the 1st amen will override substantive (implied rights) derived from other amendments in the constitution.  This is as a general rule and is not to say efforts are not made to accommodate both rights.  But if one must stand the precedence is to hold the enumerated overrides the substantive.

4.  Enumerated Vs. Enumerated:  In regards to an enumerated right being pitted against an enumerated right.  The Supreme Court has ruled and precedence on the matter has held the first 10 amendments (Bill of rights) override the remaining amendments should there be an unresolvable conflict among them.  In regards to conflicts between the enumerated rights in the Bill of Rights (meaning the first 10) both the Court and Legal precedence has held in general the rights are enumerated in order of priority where 1 is the highest priority and 10 is the lowest.  Thus (without stating any specifics of the cases) the 1st amendment would override the 2-10 should there be a conflict which cannot be reconciled.

5.  Small Vs. Big Business:  This question required me to look up somethings.  The courts are very mixed on the subject.  The main distinction is in regards to the extent of the market the business avails itself or intends to avail itself of.  A business which is intended to be local and to only engage in close proximity to a single or regionally proximate location is not treated as a large business which intends to transact across a broad spectrum of regions and clientele.  The precedence of the majority is that a small local business need only conform to local laws and customs of doing business and may refuse service in accordance with those laws and customs.  A large business on the other hand intending to engage in business across many regions must abide by the local laws and customs of a given business region and must adhere to the privileges and immunities of the Privileges and Immunities Clause (Art. 4 Sec. 2)

6.  Protected Class:  Finally in regards to your question of a protected class.  To be defined as a protected class the:

"Courts consider four rough factors in deciding whether to treat a legislative classification as suspect and presumptively unconstitutional: whether the group has been historically victimized by governmental discrimination; whether it has a defining characteristic that legitimately bears on the classification; whether it exhibits  unchanging characteristics that define it as a discrete group; and whether it is politically powerless" (Deboer V. Snyder; http://www.ca6.uscourts.gov/opinions.pdf...75p-06.pdf)

In this regard it was ruled by the 6th Circuit court of appeals that persons of same sex orientations at best only satisfy the governmental discrimination factor.  The class does not have a defining characteristic, unchanging characteristic defining them a discrete group, and they are not politically powerless.

On the issue of government discrimination. What is considered discrimination? If something is illegal and changes then those who were affected by the law are a protected group? For example drug users who were arrested, now are they a protected class? If so anyone who is a criminal can argue that the government has persiquted them can fight for protected class. Murders, robbers, car boosters? I.e what is government persiqution/discrimination