Should a Christian baker be able to refuse to bake a cake for a gay wedding?

In 2012, a Christian baker and self-proclaimed “cake artist” in Colorado, Jack Phillips, decided he wasn’t going to bake a wedding cake for a gay couple, Charlie Craig and David Mullins, because the request violated his religious beliefs. The couple sued for violation of the state’s anti-discrimination lawsuit, and won. The case was appealed, and now it’s been argued at the Supreme Court, as it has never been decided whether the Civil Rights Act of 1964, prohibiting discrimination on the basis of religion, color, sex, or national origin, also applies to sexual orientation. Phillips claims that, at least in this case, his First Amendment rights were being violated: that he should be able “to use his artistic talents to promote only messages that align with his religious beliefs.” The court will probably rule in a few months.

Remember, while it may be illegal to not make a cake requested by a gay customer or a Jewish customer, this case is about baking a wedding cake for a gay marriage, which could be construed as discrimination not against a person, but an act that violates the baker’s religion, so there are First Amendment considerations here.

Nevertheless, my own view is that the gay couple should prevail, for one could use one’s religion to discriminate against other things that seem wrong, like a Christian baker choosing not to make a Bar Mitzvah cake for a Jewish family, which comes close to discriminating against religion itself. (Remember, again, this is discrimination not against sexual orientation, but against an act that violates one’s religious beliefs.). Further, it gives weight to acts like Catholic doctors refusing to perform abortions when the pregnancy is due to rape or incest since such an act violates the doctor’s religion. While I believe that’s illegal in the U.S. (I’m not sure), but it’s still legal in Ireland, where abortion can be performed only to save the life of the mother. Given our new Supreme Court, all kinds of acts that seem discriminatory or dangerous could be approved because they privilege one’s religious belief over secular notions of equality. (I still, of course, believe that religious beliefs should be accommodated in public when they are not overly onerous to society.)

Andrew Sullivan is also conflicted (he’s a Catholic but also gay), but comes down on the side of the baker. In New York Magazine, he writes this:

Which is why I think it was a prudential mistake to sue the baker. Live and let live would have been a far better response. The baker’s religious convictions are not trivial or obviously in bad faith, which means to say he is not just suddenly citing them solely when it comes to catering to gays. His fundamentalism makes him refuse to make even Halloween cakes, for Pete’s sake. More to the point, he has said he would provide any form of custom-designed cakes for gay couples — a birthday cake, for example — except for one designed for a specific celebration that he has religious objections to. And those religious convictions cannot be dismissed as arbitrary (even if you find them absurd). Opposition to same-sex marriage has been an uncontested pillar of every major world religion for aeons.

And so, if there are alternative solutions, like finding another baker, why force the point? Why take up arms to coerce someone when you can easily let him be — and still celebrate your wedding? That is particularly the case when much of the argument for marriage equality was that it would not force anyone outside that marriage to approve or disapprove of it. One reason we won that debate is because many straight people simply said to themselves, “How does someone else’s marriage affect me?” and decided on those grounds to support or acquiesce to such a deep social change. It seems grotesquely disingenuous now for the marriage-equality movement to bait and switch on that core “live and let live” argument. And it seems deeply insensitive and intolerant to force the clear losers in a culture war into not just defeat but personal humiliation.

Nonetheless, here we are. And it is a hard case constitutionally. It pits religious and artistic freedom against civil equality and nondiscrimination. Anyone on either side who claims this is an easy call are fanatics of one kind or other. I’m deeply conflicted. I worry that a decision that endorses religious freedom could effectively nullify a large swathe of antidiscrimination legislation — and have a feeling that Scalia, for example, would have backed the gays in this case on those grounds alone. Equally, I worry that a ruling that backs the right of the state to coerce someone into doing something that violates their religious conscience will also have terrible consequences. A law that controls an individual’s conscience violates a core liberal idea. It smacks of authoritarianism and of a contempt for religious faith. It feels downright anti-American to me.

I sympathize with Sullivan, and feel a bit conflicted as well, as we have two “rights” competing with each other, but in the end I think the “freedom of speech” defense is weaker than the anti-discrimination principles that underlie our society.

The Supreme Court, which recently heard arguments on the case, seemed from their questions to be divided—largely along ideological lines. The case isn’t completely straightforward because baker considers himself an artist who can choose for whom to practice his art, and he has a First Amendment (constitutional) defense for his actions. Justice Anthony Kennedy may again be the swing vote.

So let’s take two polls here: one on how you feel and the other on how you think the Supreme Court (which has a conservative majority) will rule. As always, this is just my attempt to gauge opinion; I’m not pretending that this is a scientific result, or representative of anything beyond a sample of WEIT readers. And please take a few seconds to vote!

and your prediction:

 

h/t: Simon

 

394 Comments

  1. Rita
    Posted December 8, 2017 at 1:37 pm | Permalink

    Since the Baker wants “to use his artistic talents to promote only messages that align with his religious beliefs.” I wonder if he has a vetting method he can demonstrate that he uses for ALL of the requests he receives. Somehow, I doubt it.

  2. Posted December 8, 2017 at 1:37 pm | Permalink

    I would not trust them. They may spit in the batter.

    • Jenny Haniver
      Posted December 8, 2017 at 2:15 pm | Permalink

      I’d be worried about more than spit in a cake that wasn’t baked willingly. No telling what might be in there.

      Re all this, double entendres aside, Ican’t but think of Gracie Fields singing “If I Knew You Were coming, I’d have Baked a Cake” https://www.youtube.com/watch?v=honSSKeXME8.

  3. Posted December 8, 2017 at 1:37 pm | Permalink

    Might as well let the “sandwich artist” at the lunch counter refuse to serve black folks if this decision goes for the baker.

    • Posted December 8, 2017 at 1:42 pm | Permalink

      It’s already illegal to discriminate on the basis of race, even if that violates some religious belief.

      • Posted December 8, 2017 at 1:46 pm | Permalink

        “It’s already illegal to discriminate on the basis of race, even if that violates some religious belief.”

        Illegal under statutes, but the constitution is above all statutes. Thus, if the Supremes want, they could easily apply a pro-baker ruling here to racial bigots who own stores.

        Not that I think it likely, but the exact same logical principles would apply. If one can discriminate against gays due to religion, why not blacks?

        • mordacious1
          Posted December 8, 2017 at 1:52 pm | Permalink

          Equal Protection Clause of the 14 Amendment, not “statutes “. And this clause should cover gay wedding cakes too. We will see if the Supremes agree.

          • Posted December 8, 2017 at 1:54 pm | Permalink

            “Equal Protection Clause of the 14 Amendment”

            Yes, as interpreted by…drum roll please… the US Supreme Court!

            The current court is of course not stopped from upending their 14th Amendment jurisprudence merely because a prior court ruled on it.

            • mordacious1
              Posted December 8, 2017 at 2:26 pm | Permalink

              Only if they wanted to overturn a hundred years of court rulings. Hint: They don’t.

              • Posted December 8, 2017 at 6:23 pm | Permalink

                I am not so sanguine about that. My poll vote was ‘No’ on the first and ‘Yes’ on the second – I fear that the SCOTUS will continue pandering to the orange draft dodger’s base. They just refused to hear the Houston case that blocks giving any benefits to same-sex spouses; basically, ‘just because we let you get married doesn’t meant that you are “really” married.’

        • Posted December 8, 2017 at 5:01 pm | Permalink

          if the Supremes want, they could easily apply a pro-baker ruling here to racial bigots who own stores.

          No.

      • eric
        Posted December 8, 2017 at 2:24 pm | Permalink

        Colorado’s law listed orientation as a protected class (along with race) 5 years before the baker got the order. So it’s the same. At least in this case, which took place in Colorado. For other states you have a good point, which is that if orientation isn’t listed as a protected class while race is, a state court could find that shopkeeeprs are free to discriminate based on orientation while not being free to discriminate based on race.

  4. Ann German
    Posted December 8, 2017 at 1:38 pm | Permalink

    I predict dire consequences for these “Christians” resulting from their insistence on their religious “rights.” The Muslim ganders are going to cite the Christian geese’s arguments, much to the dismay of the latter.

    • eric
      Posted December 8, 2017 at 2:27 pm | Permalink

      I am much more cynical than you. I predict that if the conservatives on SCOTUS convince Kennedy to rule with them in favor of Phillips, they’ll put all sorts of language in their ruling stating this doesn’t allow other forms of discrimination. They’re conservatives, not libertarians.

    • Posted January 27, 2018 at 3:42 am | Permalink

      Nobody ever wants from Muslim bakers to make a wedding cake for gays. Someone made an experiment and they refused of course. But everyone prefers to go after the Christians because they are not violent.

  5. Serendipitydawg
    Posted December 8, 2017 at 1:39 pm | Permalink

    We in the UK have already had this kind of thing with B&B owners turning gay couples away, catholic adoption agencies doing same, as well as bakers refusing to bake cake. Generally they cite religious freedom under the human rights act and all failed, AFAIK.

    • Posted December 8, 2017 at 1:42 pm | Permalink

      Remember, though, this is a specific cake for an ACT that violates the baker’s religion.

      • Serendipitydawg
        Posted December 8, 2017 at 2:01 pm | Permalink

        I shall have to listen to BBC R4’s program on The ‘Gay cake” affair. It would appear that this one had bigger ramifications than made it to the news in England with similar considerations of two right in conflict:

        “It began last year when Ashers Baking Company in Belfast refused to make a cake bearing the legend ‘Support Gay Marriage.’ The firm defended their decision, stating the message on the cake was contrary to their Christian beliefs. The Northern Ireland Equality Commission responded by supporting an anti-discrimination case against the bakery. At the Stormont Assembly, a draft Private Member’s Bill proposed a ‘Conscience Clause’ that would allow the refusal of goods and services on the grounds of strongly held religious beliefs. Opposition took to the streets of Belfast led mainly by gay activists and Sinn Féin.”

        I still can’t remember any of them winning their point.

        • gravelinspector-Aidan
          Posted December 9, 2017 at 11:02 am | Permalink

          It would appear that this one had bigger ramifications than made it to the news in England

          It’s not as simple as that. This case was about Northern Ireland and their partly-devolved legislative powers (since the separation of the Six from the Twenty-Six, even more complicated by the collapse of the Stormont government since, and the resumption of direct rule from London, without the involvement of the elected parliament of northern Ireland. Except for the indirect influence of the DUP’s ball-hold on Theresa May (yes, well, I can’t think of a better metaphor for how they’ve got her undivided attention). Remembering that the DUP are far and away the most socially conservative of the political parties in the defunct Stormont Parliament.
          As for how this affects matters in the other two legal systems in the “United” Kingdom … I bet some lawyers would love to investigate the question, at £200/hour.
          Who is affected? Damned if I know.
          How are they affected? Expensively.
          Which legislations are affected? Neither America not Outer Mongolia ; otherwise I’m not sure.
          Oh, BTW, it’s the “British Broadcasting Corp”, not the “English Broadcasting Corp”. Which makes more sense that the lethal Ulster joke of “Are you a Protestant atheist, or a Catholic atheist?”

      • Chris Lang
        Posted December 8, 2017 at 2:21 pm | Permalink

        If the Supreme Court is going to rule in favor of the baker, they need to find a reason for their ruling that does not undercut laws against discrimination based on race (or other protected groups). It’s my guess that they will uphold the Colorado law, because they won’t be able to do this.

        But while gay people should have every right to expect to be treated exactly like black people in regards to anti-discrimination laws, I think that enforcing these laws in cases like this is very counterproductive. It feeds a narrative of the religious right that gay people and same-sex marriage are a threat. It’s a battle that I as a gay person think is unnecessary, and only exacerbates the anger and division in this country.

        • eric
          Posted December 8, 2017 at 2:35 pm | Permalink

          Taking a lesson from civil rights, I fully expect that 50 years from now there will still be bakeries known by gays as place you shouldn’t necessarily go to for your wedding cakes, even if you legally can. However also from civil rights, I expect that keeping discrimination illegal will result in a lot less of them then than there are now.

        • Heather Hastie
          Posted December 8, 2017 at 10:20 pm | Permalink

          I agree. I think SCOTUS will uphold Colorado law i.e. they will find against the baker.

          However, I sort of agree with Andrew Sullivan in that the couple would have been better to go to another cake artist. If I were them I would have done something like put a big ad in the paper saying X baker refused to decorate a cake for our wedding because we’re gay, and so we went to Y, and look what a wonderful job s/he did. Baker X’s bigotry was a win for us!

          Our law in NZ includes prohibiting discrimination on the basis of sexual orientation and afaik there’s never been a major issue.

          • GBJames
            Posted December 9, 2017 at 9:02 am | Permalink

            You guys don’t have as many right wing Christians to deal with!

            • gravelinspector-Aidan
              Posted December 9, 2017 at 11:04 am | Permalink

              If you deal with them, aren’t they guilty of gambling and therefore required to perform an auto da fe?

            • Heather Hastie
              Posted December 9, 2017 at 12:25 pm | Permalink

              True! When the legislation for same-sex marriage was introduced here, the churches opposed it. The main ones (and most people here who are Christian belong to mainstream churches – C of E, Catholic, Presbyterian) soon gave up because their own parishioners didn’t agree with them, several individual churches announced they supported same-sex marriage in opposition to leadership, and it was giving them an anti-equality reputation. It was mostly seen here as an equality issue.

      • Posted December 8, 2017 at 6:35 pm | Permalink

        Minor point that may or may not be relevant. The couple planned to get married in Massachusetts and wanted the cake for their Colorado reception. Might be splitting hairs, but one could argue that the latter is not ‘participatory’.

      • Posted December 9, 2017 at 5:07 pm | Permalink

        I really find it hard to understand the distinction here. If somebody objects to providing a venue to an interracial wedding based on religious grounds while claiming to be not racist at all, how would the logic be any different? It is the specific act of the wedding, not the existence of the darker-skinned person, that the hotel owner is objecting to!

        Yet even most people who come down on the side of the baker in the present case would presumably immediately recognise the other scenario as completely unacceptable.

  6. Christopher
    Posted December 8, 2017 at 1:41 pm | Permalink

    For me this is little more than a rehash of old
    Jim Crow laws, after all, why should a restaurant be forced to serve black people when there are black restaurants that will? Is that not essentially the same argument as the gay men should go to another baker that wants to bake their cake? Any arguments against this have thus far failed to impress me.

    • Jenny Haniver
      Posted December 8, 2017 at 2:09 pm | Permalink

      This disgusts me. It’s laissez-faire bigotry to me. I assume you consider the Equal Protection Clause just so much ridiculous BS across the board.

      • GBJames
        Posted December 8, 2017 at 2:11 pm | Permalink

        I think, Jenny, that you have taken Christopher’s comment exactly upside down.

        • Jenny Haniver
          Posted December 8, 2017 at 3:55 pm | Permalink

          Please correct my misperception. I mean that sincerely.

          • Ken Kukec
            Posted December 8, 2017 at 6:54 pm | Permalink

            I think Christopher is arguing on the same side of this point as you, Jenny. He’s ridiculing the side that disgusts you.

          • Christopher
            Posted December 8, 2017 at 7:38 pm | Permalink

            That’s ok. I may not have been clear, so I apologize for any misinterpretation you may have had from my post. I meant that I see the refusal to name the cake as exactly the same as refusing to serve African-Americans in the Jim Crow era. Plenty of bigots claimed god as their defense then as well. The point is that if you open your business up to the public, you have to serve the public. If that violates your religion, than you should never have gone public. Bake privately for your white-sheet wearing homophobic friends instead.

            • Jenny Haniver
              Posted December 8, 2017 at 8:06 pm | Permalink

              Thanks to all for the correction. I was too quick on the trigger, and didn’t get the twist.

              • Christopher
                Posted December 8, 2017 at 8:08 pm | Permalink

                No worries. If I were such an a$$hole, I would certainly have earned your opprobrium. Cheers.

            • Christopher
              Posted December 8, 2017 at 8:06 pm | Permalink

              As for the rest of ya, geez! I’m sorry my comparisons between African-Americans in the South prior to the Civil Rights Act of 1964 and the asinine discrimination of gay people by certain bigoted bakers today didn’t meet with your approval! Didn’t mean to get yet knickers in a twist! It reminds me why I quit all social media. Mea culpa! I’m wrong, you’re right and I’ll bugger off. Cheers.

              • Ken Kukec
                Posted December 8, 2017 at 9:56 pm | Permalink

                Now ya got me confused as to whom you’re speaking to. 🙂 GB James & I were standing up for you.

              • GBJames
                Posted December 9, 2017 at 8:59 am | Permalink

                The rest of us? I understood you correctly. One person misunderstood. She now understands. What is the problem?

    • Craw
      Posted December 8, 2017 at 5:23 pm | Permalink

      Jim Crow laws did not saw a restaurant could not be forced to integrate its lunch counter. They said it could not do so.

      I am amazed at the level of ignorance of what Jim Crow laws were on this thread. Jim Crow laws *required* segregation. They *required* separate waiting rooms, fountains, etc.

      • Jenny Haniver
        Posted December 8, 2017 at 6:35 pm | Permalink

        In re “Any arguments against this have thus far failed to impress me,” I thought (incorrectly assumed?) that the writer was stating that arguments against Jim Crow laws leaves him unimpressed, and that statutes denying equal access were acceptable to him.

      • Ken Kukec
        Posted December 8, 2017 at 7:16 pm | Permalink

        In this instance, the ignorance is yours, my friend. While there was de jure segregation in the Jim Crow south in government buildings and public spaces, the vast amount of Jim Crow discrimination was private, enforced by custom and practice rather than formal law. This is the whole reason congress had to pass a statute to outlaw it, because it lay outside the ambit of the US Constitution inasmuch as it wasn’t required by law.

  7. dabertini
    Posted December 8, 2017 at 1:41 pm | Permalink

    I have a better idea. We should protect gays from marriage. Next to religion, marriage is the next most useless institution.

    • gravelinspector-Aidan
      Posted December 9, 2017 at 11:07 am | Permalink

      You’ve never had to deal with the immigration authorities, have you?

    • Posted January 27, 2018 at 3:46 am | Permalink

      Marriage is the commitment of the prospective father to care for his children and their mother and is the basis of every society. Societies that relax marriage spiral into negative population growth that forces them to welcome millions of immigrants from incompatible cultures.

  8. Harrison
    Posted December 8, 2017 at 1:43 pm | Permalink

    It comes down to whether a custom service like baking wedding cakes is participatory or not. A photographer has the right of refusal, but someone who sells bulk supplies like paper plates does not. I think it is very likely the court will rule that it is participatory.

    • mordacious1
      Posted December 8, 2017 at 2:00 pm | Permalink

      The baker said that they may buy any cake already made, but he refused to use his artistic talent to specifically design a cake for gay weddings. His claim then, is that this action is participatory.

      • Posted December 8, 2017 at 2:05 pm | Permalink

        Oh. I must have missed this bit. I may reconsider my “no”.

      • eric
        Posted December 8, 2017 at 2:53 pm | Permalink

        I would locate ‘participatory’ a little higher on the artisan scale, personally. If they’re asking for a duplicate copy of some object you create fairly regularly, then even if it takes a lot of skill it’s not really art. If it’s a new and unique creation, then okay I can maybe see that.

        Essentially I think pointing to a cake in a catalog or in the window and saying “make me one of those, but change the lettering to read Adam and Steve instead of Adam and Eve” is not participatory. Or at least it’s only minimally so. The baker makes that cake normally. The baker writes words on them using all the letters of the alphabet normally. You’re literally adding an ‘St” to an inscription on something he cranks out on a fairly regular basis. So while yes, I recognize that making a tasty and beautiful wedding cake takes skill, it’s IMO not art the same way a commissioned painting might be.

        Here’s a question to ponder (and I’m not 100% sure what my answer is). Think of those artists at amusement parks that draw the big-head pictures for your kids in about 5 minutes. They’re clearly drawing freehand art. And it’s clearly participatory. But they are also clearly cranking out basically the same 5-10 drawings (your big head in a tiny car! Your big head on a surfboard!) by rote, changing only the facial features they need to to get the job done quickly. Should they be allowed to deny service to gays? How about blacks? Jews? My gut tells me no. It may be participatory, and it may clearly be art, but the customer-by-customer variance isn’t enough to justify them claiming they should be allowed artistic latitude in who they accept as a customer.

        Considering those street cartoonists, I think I’m getting firmer on the baker being in the wrong. Because the more I think about it, the more I think ‘participatory artists’ that nevertheless deliver very similar content to many different customers should obey nondiscriminatory public accommodation law.

        • Dethpickle
          Posted December 8, 2017 at 4:34 pm | Permalink

          This is exactly the line of thinking I was stuck on.

          I voted yes/yes, though I entirely think the baker is just being a jerk. But I think the legal angle is completely dependent on the difference of getting a run of the mill cake the baker cranks out (regardless of if they’re simply amazing) or if they are commissioning a work of art from this “artist”. If he has a storefront and a front counter to order cakes, I don’t see how he’s got a place to pick and choose who he works for. He works for anyone that walks in. If they call a number and meet with him to describe the custom work he must envision and invent, then the baker will probably win. I honestly don’t know which it is, but the article suggests the latter.

          Whatever decision is reached, I don’t think it will benefit anyone. The losing side will be convinced of injustice.

        • Posted December 8, 2017 at 5:06 pm | Permalink

          If they’re asking for a duplicate copy of some object you create fairly regularly, then even if it takes a lot of skill it’s not really art. If it’s a new and unique creation, then okay I can maybe see that.

          Phillips, the baker, offers to produce replicas of other cakes he’s previously done. He objects to providing his consultation services to learn about the couple and develop bespoke themed decorations for them.

          • GBJames
            Posted December 9, 2017 at 8:47 am | Permalink

            What matters is if he provides his consultation services to other couples but denies the services to a protected class.

            • Posted December 9, 2017 at 10:11 am | Permalink

              It matters if that consultation constitutes participation.

              • GBJames
                Posted December 9, 2017 at 10:51 am | Permalink

                He’s a bloody stenographer. He’s not being asked to write an essay. He’s being asked to put down on the cake the things his customer is specifying. If this is “art” then the waiter writing down my order on a pad is “art”.

              • Posted December 9, 2017 at 3:46 pm | Permalink

                You’re arguing against the laws on the books, GB. A printer does not have to publish a Scientology tract. A t-shirt maker does not have to silk-screen a BLM shirt. And a baker does not have to decorate a cake with a swastika.

              • Gregory Kusnick
                Posted December 9, 2017 at 11:27 am | Permalink

                I don’t buy the claim that consultation equals participation. The interior designer I consult about my bedroom wallpaper does not thereby become a participant in my sex life. If I want to take the kids on a cross-country road trip to see the Ark Encounter, the tire salesman doesn’t get to refuse the consultation because he doesn’t want to participate in that kind of vacation. Nor can a vegetarian dentist refuse service to meat-eating customers on grounds that consultation equals participation.

              • Posted December 9, 2017 at 3:56 pm | Permalink

                How about a wedding planner?

              • Gregory Kusnick
                Posted December 10, 2017 at 12:34 am | Permalink

                I’d say the portion of a wedding planner’s job that involves consultation — i.e. interviewing the clients and developing a plan for the event — does not constitute participation in the wedding. If the planner also acts as director of operations during the event, then that would count as participation, but I don’t see any analogous participatory component to the baker’s job.

    • Liz
      Posted December 8, 2017 at 2:55 pm | Permalink

      Crafting the wedding cake toppers is probably participatory. Baking a regular sheet cake maybe not.

      https://www.iweddingcaketoppers.com/listing/262174367/mixed-race-gay-wedding-cake-topper-gay

  9. Posted December 8, 2017 at 1:43 pm | Permalink

    And it is a hard case constitutionally. It pits religious and artistic freedom against civil equality and nondiscrimination.

    I don’t see it as that hard, and don’t see it as about “religious and artistic freedom”.

    If one is operating as a business, offering a public service, then one should abide by non-discrimination standards when doing so.

    That’s very different from the freedoms of speech and religion that pertain to you as a person, not to your public-service business.

    If someone were a street artist, offering to draw anyone’s portrait for $20, they should still paint a portrait of a person complete with crucifix, or complete with pentogram.

    And that’s very different from an artist right to choose to draw, if they are *not* offering a “draw anyone’s portrait” service.

    • Posted December 8, 2017 at 5:08 pm | Permalink

      The street artist in your example would be within their legal rights to refuse to make such drawings.

    • Craw
      Posted December 8, 2017 at 5:19 pm | Permalink

      Well you beg the question by insisting on just faces. Let’s turn the knob a wee bit. How about a guy inking messages on t shirts, up to 40 characters. We can both think of some nasty phrases.

      Or drawing a face with a word bubble?

  10. ploubere
    Posted December 8, 2017 at 1:43 pm | Permalink

    I think the baker is ignorant to discriminate against gays, but there is a principle here that needs to be considered. And it has to do with whether a wedding cake is a creative expression. That may sound silly, but it is a hand-crafted item laden with symbology and meaning.

    So I’d say that it would be discriminatory for the baker to refuse to sell a generic loaf of bread to gays, but it would also be unconstitutional to force him to create a unique object that expresses ideas he’s opposed to.

    • Posted December 8, 2017 at 1:49 pm | Permalink

      The cake is not a “gay wedding” cake, it’s just a “wedding” cake. The baker need not write pro-gay messages on it (which would be actual speech).

      • Paul S
        Posted December 8, 2017 at 1:56 pm | Permalink

        I may be wrong, but I thought the issue was the message on the cake, not the cake itself.

        • Randall Schenck
          Posted December 8, 2017 at 2:05 pm | Permalink

          You are wrong. It was refusal to bake a cake period.

          • Ken Phelps
            Posted December 8, 2017 at 2:50 pm | Permalink

            No, you’re wrong.

            Say, this is fun.

            • mordacious1
              Posted December 8, 2017 at 3:03 pm | Permalink

              You’re both wrong.

              I win.

          • Posted December 8, 2017 at 2:56 pm | Permalink

            I don’t think it’s that simple: The baker said that they may buy any cake already made.

          • Posted December 8, 2017 at 5:18 pm | Permalink

            Phillips argument is four-fold:
            1) his consulting service = participation;
            2) the cake’s central role in the ceremony = participation;
            3) the cake itself is a message = compelled speech;
            4) consultation could lead to specific message-laden decoration = compelled speech.

            Points 2) & 3) are very weak. Point 4) is indisputable, and in fact acknowledged by the Colorado statute under which the case was adjudicated. Point 1) is worthy of consideration.

            Phillips did not help his case by refusing to bake the cake before any discussion of designs took place. (Implying discrimination based on class.)

            The couple hurt their case by having another baker create a cake with a rainbow motif. (Implying compelled speech.)

            • phil
              Posted December 8, 2017 at 7:11 pm | Permalink

              But wait, if I were to commission a cake that had “Kittens are cute” on it, how is that not compelled speech? Doesn’t that mean the customer can legitimately compel some speech? If the baker was a d_g lover and changed the wording to “D_gs are best” can the customer not refuse the cake, or sue?

              • Posted December 8, 2017 at 8:46 pm | Permalink

                If you truly despise kittens, you are morally depraved, but you still have a right to refuse to decorate a cake with “kittens are cute” on it.

            • D McCallum
              Posted December 9, 2017 at 11:03 am | Permalink

              2) the cake’s central role in the ceremony = participation;
              I do not see the cake having a role in the ceremony,that is the legal or religious rite.It is part of the celebration after the fact. Spiting hairs maybe but his whole case is. .

              • Posted December 9, 2017 at 3:54 pm | Permalink

                A wedding cake is most definitely an important part of the event celebrating and affirming the union. The cake carries definite symbolism. pace Phillips’ claim, however, I don’t believe this means the baker is also a part of the celebration.

    • eric
      Posted December 8, 2017 at 2:56 pm | Permalink

      What if it’s not unique? What if he wants the type shown in the window, or in your catalog, that you’ve made tens if not hundreds of time before.

      IOW what if the job is (almost literally) cookie-cutter?

      • Posted December 8, 2017 at 5:20 pm | Permalink

        Phillips attests that he will gladly sell non-bespoke cakes & products to anyone.

        • eric
          Posted December 8, 2017 at 7:10 pm | Permalink

          This is not exactly true. He stated he would sell gays birthday cakes, etc. but not wedding cakes, period.

          His defense is that he religiously objects to participating in “the event” of a gay marriage. Doesn’t matter if it’s a sheet cake or a work of art, it is (according to his legal defense) the event itself that is anathema to him.

          Maybe his defense evolved into the event thing after he offered to sell them a regular wedding cake. But that’s his defense now. And I see his hair-splitting (I’ll serve the customer but not the event) as discriminatory. After all, as I said below, it’s pretty much identical to a restaurant owner saying he has no problem cooking food for blacks and handing it to them out the back door, he just objects to the event of them sitting in his restaurant.

          • phil
            Posted December 8, 2017 at 7:14 pm | Permalink

            I’d argue that the baker is not really participate in the wedding, unless he got an invitation as well.

            • Gregory Kusnick
              Posted December 8, 2017 at 7:17 pm | Permalink

              Even if he did get an invitation, that still wouldn’t make his cake participatory.

          • eric
            Posted December 8, 2017 at 7:45 pm | Permalink

            Correction to my previous post: Phillps did offer to sell the couple any cake he had in the store. But wedding cakes are not kept like that; they are all made to order. So the offer was essentially an offer to sell them a regular sheet cake or round cake for use at their wedding. This is IMO just as discriminatory, and essentially equivalent to, saying you won’t sell wedding cakes to gays.

            To see how it’s discriminatory, just substitute any other group for ‘gays’ and see if you think it is. Wedding cakes for anyone except Jews just get sheet cake? Wedding cake for anyone except black just get sheet cake? Would that fly with you (the rhetorical you)?

          • Posted December 8, 2017 at 8:48 pm | Permalink

            His argument may not be compelling, but it differs significantly from the restaurant owners.

            • eric
              Posted December 8, 2017 at 9:23 pm | Permalink

              So if I open up a bakery that makes wedding cakes, so long as I keep an old stale sheet cake on hand to sell to Christians and state that I will sell the store cake to them but not make a cake for them, then I’m not discriminating against Christians?

              • Posted December 9, 2017 at 10:13 am | Permalink

                You can’t refuse to make for christians a generic cake from scratch. You can refuse to decorate that cake with christian messages or symbols.

              • eric
                Posted December 9, 2017 at 7:47 pm | Permalink

                You can’t refuse to make for christians a generic cake from scratch

                Matt, this is EXACTLY what Phillips did; he refused to make a generic wedding cake from scratch. Don’t believe me? Here is Jack Phillips’ own publicly released statement. And I quote:

                “I am here at the Supreme Court today because I respectfully declined to create a custom cake that would celebrate a view of marriage in direct conflict with my faith’s core teachings on marriage. I offered to sell the two gentlemen suing me anything else in my shop or to design a cake for them for another occasion.”

                He would sell them the sheet cake he kept in the fridge. Or he would make them a birthday cake. But he would not make them a wedding cake, of any type.

                So he’s met your exact conditions for what he can’t do. Gonna keep defending him?

  11. Ken Kukec
    Posted December 8, 2017 at 1:44 pm | Permalink

    If you have a business open to the public you should be prohibited from refusing the regular service or product provided to any member of the public who so requests it. If, however, the customer is requesting a product or service not ordinarily offered to the public, the business is under no obligation to provide it, and may refuse to do so on religious (or other) grounds.

    In this case, the baker offers wedding cakes, and his bakery enjoys the advantages provided by society to businesses of public accommodation. The baker can damn well bake a wedding cake for the gay couple.

    • Curt Nelson
      Posted December 8, 2017 at 2:11 pm | Permalink

      I think so, too.

      This is a fine example of how religion affects everyone and why it is silly to say that “as long no one tries to ram it down my throat I have no problem with any religion.”

      It gets rammed down everyone’s throat indirectly.

    • Posted December 8, 2017 at 2:19 pm | Permalink

      In fact I have no doubt the baker has a *license* to do business. This alone means we (the public) have a say in how his business is conducted.

    • Simon Hayward
      Posted December 8, 2017 at 3:04 pm | Permalink

      I’d think that’s true if it were an “off the shelf” item. Many people want a lot of personalization of wedding cakes (and other things) though. Which, I think is where an “artistic freedom” kind of response might work.

      My gut reaction to this is that the couple should prevail over the baker, however, the more I think about it the more torn I am.

      On a purely practical level, I don’t know why you’d want to buy a service like this from someone who doesn’t want to provide it.

      • Posted December 8, 2017 at 3:09 pm | Permalink

        I’m sure the gay couple want to create a precedent here and not just buy a cake.

        • Ken Kukec
          Posted December 8, 2017 at 4:29 pm | Permalink

          As did the snick students who sat at the lunch counters in Woolworth’s.

          • Craw
            Posted December 8, 2017 at 4:42 pm | Permalink

            You realize they were defying the law there, not a store policy? So it’s not Woolworth refusing to serve them. It’s the law forbidding Woolworths doing so.

            • Ken Kukec
              Posted December 8, 2017 at 5:25 pm | Permalink

              Not so. There were no affirmative laws prohibiting Woolworth’s from serving food to black folk. It was a private store policy, enforced by calling the police to remove the protesters per trespass law. That’s the way much of Jim Crow operated (although there was also de jure segregation in the Jim Crow south, too).

              This is why it took the statutory remedy of the CRA ’64 to banish segregation in places of public accommodation. The courts could not accomplish it on their own by striking down state and local laws that were discriminatory on their face.

            • Filippo
              Posted December 9, 2017 at 5:42 am | Permalink

              Ah, “The Rule of Law.”

        • Tom Waddell
          Posted December 8, 2017 at 4:37 pm | Permalink

          I am equally sure the baker and the ADF want to make a statement and not just refuse to sell a cake. What the ADF wants is to turn America into a theocracy, make no mistake about it. Make any argument you want, straight forward or convoluted, the bottom line is do we have a nation of laws or a nation where everyone makes their own law?

    • Posted December 8, 2017 at 5:21 pm | Permalink

      He may refuse to decorate a cake with a message he disagrees with.

      • GBJames
        Posted December 9, 2017 at 9:11 am | Permalink

        You keep saying that but it doesn’t hold up. If he is in the “I’ll make you a cake with your message on it” business, he can’t refuse to make one for black people.

        You keep repeating the trope that the baker’s free speech is involved. It isn’t. The message being put on the cake is an expression of the person paying for the cake and dictating the words.

        • Posted December 9, 2017 at 10:15 am | Permalink

          You keep saying that, but even the State of Colorado doesn’t agree with you.

        • Peter Nonacs
          Posted December 9, 2017 at 10:26 am | Permalink

          You are right; this has nothing to do with free speech. It is an issue as to whether or not a particular individual does or does not have the right to refuse to enter into a contractual relationship with someone else. A bakery presents products to sell to the general public. The gay couple are members of the general public and cannot be denied the opportunity to buy any generic product that is made available to everyone. However, the couple wants the baker to make a specific product that would be just for them. This, the baker ought to be able to refuse. It may be for a ‘good’ reason (at least in the eyes of people commenting here!), such as if the cake would have a message celebrating the KKK. Or a benign reason – the baker is too busy to do it. Or a ‘bad’ reason such as the baker is racist, sexist or whatever. The fact that the Christian baker’s actions may have negative economic consequences is acceptable, but not that they have legal consequences.

          • Ken Kukec
            Posted December 9, 2017 at 10:44 am | Permalink

            So would it be your position that a hotel must rent regular rooms to all comers, but could refuse to hold a special event in its ballroom for blacks or Jews?

            • Peter Nonacs
              Posted December 9, 2017 at 10:52 am | Permalink

              Sadly, yes. But it would also allow other hotels to refuse to host white supremacist conventions. We could then decide which hotel will get our future business.

              • GBJames
                Posted December 9, 2017 at 10:58 am | Permalink

                I think you are wrong about that. The hotel’s ballroom is as much a public accommodation as the restaurant and the bedrooms. They can not refuse to rent it to jews or blacks or gay people.

              • Peter Nonacs
                Posted December 9, 2017 at 11:15 am | Permalink

                If you are right (and you certainly may be), then add white supremacists or whatever group you find most despicable to your list, too.

              • Ken Kukec
                Posted December 9, 2017 at 11:43 am | Permalink

                Is it your position that the restaurant in the hotel could refuse to allow side orders and menu substitutions only for Asians or gay people?

              • Peter Nonacs
                Posted December 9, 2017 at 1:10 pm | Permalink

                Is your position that if a chef makes a special order for a friend, he is bound forever to honor anyone’s and everyone’s request for special treatment? Is a chef because he serves food in general, required to make anything anyone requests? My answer is that if it’s not on the menu, he can decide to honor or not honor special requests as he chooses. For good reasons or bad.

              • Ken Kukec
                Posted December 9, 2017 at 4:21 pm | Permalink

                So the gay couple in this case should be entitled to buy the same type of wedding cake, with the same type of decorations, that the baker customarily offers to, and bakes for, his other customers?

                Because, as I understand it, that’s all they’re asking for.

              • GBJames
                Posted December 10, 2017 at 9:12 am | Permalink

                @Peter:

                “then add white supremacists”

                White supremacists are not a protected class. This is something so many people just ignore!

                Anti-discrimination laws only operate in relation to a set of defined protected classes of people. The classes are race, sexual orientation, national origin, etc.

              • Peter Nonacs
                Posted December 10, 2017 at 9:32 am | Permalink

                Gay white supremacists then.

              • GBJames
                Posted December 10, 2017 at 12:25 pm | Permalink

                I would depend on whether the discrimination was based on the gayness or the white supremacy.

  12. Paul S
    Posted December 8, 2017 at 1:48 pm | Permalink

    This is difficult for me. I don’t think private citizens should be legally forced to provide a service to anyone. That doesn’t mean you should be free from consequence or opprobrium.
    Worse, if the baker wins on religious grounds, where do you place the limit on religious freedom. After all, religions are made up and you can claim anything as a religious belief.

    • Historian
      Posted December 8, 2017 at 2:54 pm | Permalink

      “I don’t think private citizens should be legally forced to provide a service to anyone.”

      This is the standard libertarian argument. But, you seem conflicted because religion is involved in the case. I don’t understand why you feel like this. You’ve just stated that there should be no legal obligation to provide a service to anyone. You’re contradicting yourself.

      • Posted December 8, 2017 at 2:59 pm | Permalink

        Please read Comment #33.

        I also think the the comment at (number I can’t find) that noted that a poet cannot be forced to write a poem celebrating a gay wedding (or any other) is germane here too.

        Again, as stated, I voted No on both; and think it shouldn’t be allowed in this case; but I don’t find it to be black and white.

      • Paul S
        Posted December 8, 2017 at 6:44 pm | Permalink

        My point is that I’m conflicted. I have a business owner friend that has refused to take jobs fro certain people based on past experiences of late payments, high crime neighborhoods and once because he knew it would put him in a a legal dispute between homeowners. He didn’t take those customers and I don’t think he should be forced.
        It’s different than baking a cake, but that’s my conundrum.
        My second point is that I don’t think you should be allowed to use religion as an excuse for anything.

        • GBJames
          Posted December 9, 2017 at 8:54 am | Permalink

          The law does not protect people from discrimination based on a history of late payments or to avoid legal disputes between neighbors. These are not protected classes under the law.

    • eric
      Posted December 8, 2017 at 2:57 pm | Permalink

      So, should we roll back civil rights laws then and let restaurants put out “no blacks served here” signs?

    • phil
      Posted December 8, 2017 at 7:20 pm | Permalink

      Nobody is forcing the baker to be a baker. I think the baker could avoid all trouble if they specialised in anything other than wedding cakes.

  13. Jay Baldwin
    Posted December 8, 2017 at 1:48 pm | Permalink

    I’m sympathetic to Sullivan’s argument. The state should step in if the market doesn’t solve the problem. This just isn’t the same as Jim Crow or widespread denial of public accommodation. I suspect that there are more bakers willing to bake/decorate the cake than there are who’d refuse. Forcing religious bakers to do so seems unnecessary and a bit retaliatory.

    • a-non
      Posted December 8, 2017 at 2:03 pm | Permalink

      This is a good point: we should use the big hammer when there’s a real & widespread problem, but only then.

      If I understand right, though, the law doesn’t look at things that way, they want a black-and-white “is X legal” answer. I wonder though whether anti-discrimination wouldn’t be better handled more like anti-monopoly laws.

    • Ken Kukec
      Posted December 8, 2017 at 2:47 pm | Permalink

      Why is this not like Jim Crow and the widespread denial of public accommodation? The history of discrimination against gay folk is very much the same. Read some of the old literature from the Mattachine Society, or ask someone who was around before Stonewall.

      These arguments about markets (and about rights to private association) are exactly the same as those made by the states-rights’ crowd in opposition to the Civil Rights Act of 1964. How is this any different from a white supremacist refusing to bake a wedding cake for an interracial couple on religious grounds?

      • Posted December 8, 2017 at 2:56 pm | Permalink

        He’s not refusing to bake cakes for gay people, he’s refusing to bake a cake that endorses their beliefs.

        It’s not like tefusing to serve black people, it’s like refusing to endorse #blacklivesmatter.

        • johnw
          Posted December 8, 2017 at 3:04 pm | Permalink

          Completely wrong. A cake is not an endorsement by the baker of whatever people use it for. It’s a cake that they buy and own from a vendor in the public square. Selling something to someone does not give one the right to dictate how it’s used.

          • Posted December 8, 2017 at 3:43 pm | Permalink

            He hasn’t sold them a cake so what they might do with the cake is irrelevant. The gay coupke are demanding rights over a cake that doesn’t exist.

          • Posted December 8, 2017 at 5:25 pm | Permalink

            The couple found another baker who made them a rainbow cake. A baker who opposes gay marriage has the legal right to refuse to bake a rainbow cake.

            • phil
              Posted December 8, 2017 at 7:36 pm | Permalink

              Would it be ok for the baker to bake a rainbow cake if I didn’t tell them its purpose?

              In Australia it has only recently (yesterday?) become legal for same sex people to marry. We had a whole pointless vote costing over $100 million to tell the parliament to pass the required legislation.

              Before that it was illegal to discriminate against someone on the grounds of their sexual orientation, so one wag (Shaun Micallef) asked if a baker who objected to baking cakes for gay couples marrying would be voting “Yes” on the survey so they could then gain the right to discriminate (by not baking cakes).

              At the same time I have read that many bakers are happy to see SSM legalised because of the extra business, and (as it turned out) most Australians, and by extension most Australain bakers, support SSM (same sex marriage).

              Personally, I my opinion of those religious people who argued against SSM fell considerably to the point that I now think they are disgusting and dishonest. They certainly do not deserve any further consideration and their influence in society is damaging.

              • Posted December 8, 2017 at 8:55 pm | Permalink

                Would it be ok for the baker to bake a rainbow cake if I didn’t tell them its purpose?

                Not if he bakes rainbow cakes for other people. Otherwise, yes. Or if the purpose of the rainbow is reasonably understood to convey a gay pride /pro gay marriage message, yes.

              • Posted December 8, 2017 at 8:56 pm | Permalink

                Not ok to refuse if you gave no purpose and he bakes rainbow cakes for others.

              • Ken Kukec
                Posted December 9, 2017 at 11:36 am | Permalink

                So a baker who regularly makes rainbow cakes for straight people can refuse to make a rainbow cake for gay people, but only if knows they’re gay people, not if he doesn’t know they’re gay — is that your contention?

        • Ken Kukec
          Posted December 8, 2017 at 4:05 pm | Permalink

          How is it different than a baker refusing to bake a cake for an interracial wedding because that violates the baker’s religious sensibilities. You cool with that one, too?

          Plenty of hardshell Baptists during the Jim Crow era (and even some still today) had religious objections to “race mixing.”

          You open your doors to the public, you’re forbidden from discriminating on the basis of race, creed, color, sexual orientation, or disability here in the US of A. You can’t live by those rules, find another vocation.

          • phil
            Posted December 8, 2017 at 7:37 pm | Permalink

            Exactly.

      • johnw
        Posted December 8, 2017 at 3:00 pm | Permalink

        100% agree. Further, how is this different from a catholic baker refusing to make a cake for a couple one of whom is divorced, or the lived together before marriage? I think the the court and most people would find such unacceptable. No, the root of this is about this baker’s opprobrious attitude toward homosexuals and his using the fig leaf of religious liberty.

        • Posted December 8, 2017 at 3:46 pm | Permalink

          Would they?

          You are granting the state to dictate what a baker bakes.

          Is there a power so pointless you wouldn’t grant it to the state?

          • Ken Kukec
            Posted December 8, 2017 at 4:11 pm | Permalink

            How ’bout a baker who refuses a wedding cake for a mixed marriage of Christian and Jew?

            Is there any prejudice so repugnant you wouldn’t force the law to exempt it?

            • Posted December 8, 2017 at 5:29 pm | Permalink

              If they asked for a cross intertwined with a Magen David, then yes, the baker could refuse.

              • Ken Kukec
                Posted December 8, 2017 at 6:42 pm | Permalink

                And a cake with a miniature bride & groom of different colors on top?

              • Posted December 8, 2017 at 9:12 pm | Permalink

                And a cake with a miniature bride & groom of different colors on top?

                I’m unaware of that ever being adjudicated, but I’d say, if the baker sincerely opposed mixed marriages, then he could refuse to adorn a cake with those figurines. What he could not do is refuse generic service to a mixed-race couple because they were mixed race.

              • Ken Kukec
                Posted December 8, 2017 at 10:21 pm | Permalink

                Even if the baker regularly offers same-race figurines to the general public?

                What is magic about figurines that distinguishes it from the generic case?

            • Posted December 9, 2017 at 10:18 am | Permalink

              Even if the baker regularly offers same-race figurines to the general public?

              What is magic about figurines that distinguishes it from the generic case?

              If you may refuse to convey a message using frosting, you may refuse to convey a message using plastic figurines.

              • Ken Kukec
                Posted December 9, 2017 at 10:57 am | Permalink

                When you say “refuse to convey a message using frosting” does that apply to any customized frosting job, or only frosting that forms words like “Happy Birthday” or “Best Wishes”?

      • Craw
        Posted December 8, 2017 at 4:45 pm | Permalink

        One way is that Jim Crow was the law. Businesses sued to be able to not discriminate, but lost those suits.

        • Ken Kukec
          Posted December 8, 2017 at 6:46 pm | Permalink

          That’s the third time you’ve said that, and the third time you’re wrong.

          Ask not for whom the cock crows …

    • Posted January 27, 2018 at 4:31 am | Permalink

      I agree. To me, such incidents portray the gay people involved is vindictive and hateful. The law should be on their side, but any victories won this way will be Pyrrhic. As for the civil rights movement… I think that today’s racial relations in the USA are not great, and the reason is partly that the pendulum swung in the other extreme, with poor white children reduced to tools shipped by buses to improve black schools, and non-black university applicants left out to make space for less competent blacks.

      • GBJames
        Posted January 27, 2018 at 9:12 am | Permalink

        I do not think you are well informed on the history of busing in the US. It is largely a history of taking black kids to predominately white schools. Race relations here are not, for the most part, deteriorating because of bussing.

        • Posted January 27, 2018 at 10:12 am | Permalink

          I have read about a Boston judge who ordered a poor Irish school and a black school to swap half of their students. Maybe such cases were few; I hope so. But even if they were exceptional, they sent a powerful message, namely, that civil rights of blacks were harmful for whites.

  14. jay
    Posted December 8, 2017 at 1:49 pm | Permalink

    I see no difference between this and a Jewish deli owner refusing to make ham sandwiches. Or how about a book store owner who doesn’t sell Bibles, or Korans?

    There is not constitutional right to a wedding cake. It’s simply a product that someone chooses not to sell. In many cases it’s NOT that a gay person was refused service because that person asked for a pie or donuts, they WOULD be served. It’s a case of the owner not wanting to take part in something they personally consider immoral.

    There is a need for allowances for conscience in terms of morality and other issues and I don’t agree that the government’s belief of what is moral or not should necessarily override the individual. Conscience is personal. I don’t want my conscience trampled, I have no desire to trample someone else’s.

    Part of the problem as developed is that a legal concept that made some sense in it’s original setting makes less sense the farther you get from that situation. Twisting gay relationships into the same mold as differences of race is really a matter of false equivalence.

    BTW, I was on the ‘other end’ of a case like this, when looking at a wedding venue. One owner did not want to have an atheist wedding. As far as I am concerned, that is his conscientious right–we just went somewhere else–just like gay people can do.

    This whole thing strikes me has hideously spiteful.

    • Posted December 8, 2017 at 1:55 pm | Permalink

      “I see no difference between this and a Jewish deli owner refusing to make ham sandwiches. Or how about a book store owner who doesn’t sell Bibles, or Korans?”

      The difference is easy to see. This is more like the jewish deli having ham sandwiches on the menu, but refusing to sell them to Christians. Or it is more like the book store having bibles in stock, but refusing to sell them to muslims.

      • Posted December 8, 2017 at 5:11 pm | Permalink

        A jewish deli that has ham sandwiches (!) but won’t sell them to Christians? That I would like to see.

    • Posted December 8, 2017 at 1:59 pm | Permalink

      There is not constitutional right to a wedding cake. It’s simply a product that someone chooses not to sell.

      It would be fine if they didn’t offer any wedding cakes at all. A business can decide what products and services it wants to sell, so a deli can decide whether to offer bacon or not.

      But, if a product is offered to the public, then it should be offered on a non-discriminatory, service-to-all basis.

    • Peter Nonacs
      Posted December 8, 2017 at 2:51 pm | Permalink

      I totally agree. If one is providing a general product to the public (e.g., already baked cakes in shop), you cannot post a sign saying “No gays, Jews or blacks” allowed in the store. But you can refuse to enter into a contractual arrangement for a specific service with anyone you don’t want as a client – for whatever reason. A Jewish lawyer does not have to accept a Nazi as a client. A religious photographer can refuse to photograph a gay wedding. A fanatical Packers fan of a baker ought to be able to refuse to make a cake celebrating the Chicago Bears. None of these may be “good” or ethical reasons for the refusal, but neither should they be illegal.

    • eric
      Posted December 8, 2017 at 2:59 pm | Permalink

      The difference is the deli owner refuses to make ham sandwiches for anyone. The baker, OTOH, happily makes wedding cakes for lots of customers…just not gays ones.

      If a baker wants to say “no wedding cakes, period”, that would be analogous to your deli owner. And it would be perfectly legal.

  15. Posted December 8, 2017 at 1:49 pm | Permalink

    It’s a tough one, I agree. It smacks of the lunch counter fights in the Civil Rights movement, but that was addressing widespread systematic racism. These nasty christian bakers are few and far between -in most places.

    The suit will force the SCOTUS to uphold blatant discrimination (they will vote in favor of the baker – you heard it here).

    In the end I feel the religious should NOT get special treatment for anything that is not accorded to the non-religious, so personally I’d be on the losing side of the upcoming SCOTUS decision and voted no.

    • Ken Kukec
      Posted December 8, 2017 at 2:55 pm | Permalink

      And white supremacists who refuse to serve black folk are few and far between now. Doesn’t mean we should abandon laws against such discrimination — for black people or gay people. A generation ago, discrimination against both was rampant. Difference was, it was a little easier for gay people to “pass” by staying in the closet.

  16. BobTerrace
    Posted December 8, 2017 at 1:50 pm | Permalink

    A. If the Baker wants to be in business, he/she needs to sell to everyone. Anything else is discrimination.

    B. The artistic argument is bogus. Otherwise any artist could then claim that he/she is not going to sell the result of his/her art to someone that may put it in a place they don’t like (a gay wedding, church, mosque, satanic temple, etc.) Again, this is discrimination.

    Freedom of religion stops when it interferes with rights of others. They can do whatever silly dogma they want with their own group.

    Speech does not interfere with rights of others because others are free to counter with their own speech.

    • infiniteimprobabilit
      Posted December 8, 2017 at 4:18 pm | Permalink

      I think you’ve misquoted the artistic argument.

      The artist can’t refuse to sell a painting already created on the basis of e.g. race or religion. (But he might refuse to sell to a gallery owner he thought was profiteering unduly? I don’t know).

      But this is more like an artist refusing a commission – which he can certainly do for any reason or none at all.

      cr

      • Posted December 8, 2017 at 5:32 pm | Permalink

        Precisely.

      • D McCallum
        Posted December 9, 2017 at 11:17 am | Permalink

        He’s a baker. His lawyers created the “cake artist ” label to allow him the first amendment argument and give the court cover to legalize discrimination.

        • infiniteimprobabilit
          Posted December 9, 2017 at 6:07 pm | Permalink

          I was addressing the argument of what an artist can or cannot do.

          Whether the baker qualifies as an artist is a whole different argument. It may well depend on the extent to which the desired cake was customised or a special creation (in which case it would be analogous to an artist accepting/declining a commission).

          cr

  17. a-non
    Posted December 8, 2017 at 1:50 pm | Permalink

    I forget where this is from, but two helpful easier questions are:

    * should a chair rental company be allowed to refuse to cater to gay weddings?

    * should a poet be allowed to refuse a commission celebrating a gay wedding?

    I believe the law is pretty clear about the answers being “no” and “yes”. Then the entity of the case is where along the line between chairs and poems does the cake sit? Somewhere there’s a transition point.

    I thought I remembered that the cake in question was going to have a message on it. To my mind words (or other clear symbols) might be a reasonable place to draw the line.

    • Ken Phelps
      Posted December 8, 2017 at 2:52 pm | Permalink

      +1

    • eric
      Posted December 8, 2017 at 3:02 pm | Permalink

      I’d agree, but I’d locate most stuff below the ‘discrimination allowed above here’ transition. Cake below. Simple phrases and words you do for everyone (like “Congratulations!”) below. Only customer-unique messages above.

    • Ken Kukec
      Posted December 8, 2017 at 3:08 pm | Permalink

      Last I checked, poetry isn’t a business of public accommodation. But if a poet wants to open a kiosk and sell to the public — like Lucy selling psychiatric help to Charlie Brown (maybe 5¢ a stanza?) — then that bard better be prepared to sell verse to all comers, gay or straight, black or white, able or dis-, or any other permutation of the human condition to be found in the Spiritus Mundi.

      • Posted December 8, 2017 at 5:35 pm | Permalink

        No. Your hypothetical kiosk poet would still have the legal right to refuse to write a poem containing a message they opposed.

        • Ken Kukec
          Posted December 8, 2017 at 6:38 pm | Permalink

          He wouldn’t have the right to refuse to churn out his generic poetry for customers on account of their race or religion or ethnicity or disability or sexual preference.

          • Peter Nonacs
            Posted December 8, 2017 at 7:19 pm | Permalink

            The gay couple can buy a cake and they can write whatever they want on it. The baker cannot deny selling them a cake that he has available for anyone else to buy, as is. He cannot prevent them from doing whatever they want with it. However, the couple ought not to be able to compel the baker to do the writing for them. likewise, the generic poet should not be compelled to write an ode to an odious person. If the couple prevails in this case, then a Jewish baker could be equally made to write “Happy Birthday Adolf Hitler” for any Nazi that happened to walk in the store. The baker’s “right” should not be affected by whether or not we agree with his justification.

            • Gregory Kusnick
              Posted December 8, 2017 at 7:41 pm | Permalink

              “However, the couple ought not to be able to compel the baker to do the writing for them.”

              If he’s willing to write “Bless This Marriage” for anybody else, then the law says he has to write it for them too.

              But as it turns out, they hadn’t asked him to write anything at all on the cake. He showed them the door before it ever got to that stage. (See this comment.)

            • eric
              Posted December 8, 2017 at 7:49 pm | Permalink

              The baker cannot deny selling them a cake that he has available for anyone else to buy, as is.

              Wedding cakes are not kept on hand, they are all made to order. So “I’ll sell gays any cake in my store but not make one for them” is functionally equivalent to “I won’t sell wedding cakes to gays.”

            • Ken Kukec
              Posted December 8, 2017 at 8:23 pm | Permalink

              The baker isn’t being required to swear to or affirm any personal beliefs. No one thinks it’s his own personal sentiments being expressed on the cake; they’re the sentiments of the couple getting married. The baker is no different in this regard than an engraver. Could an engraver refuse to make business cards for Jews — not because the customer is a Jew, but because the engraver doesn’t like writing Jewish names on paper stock?

              And religion isn’t some private “justification” for the baker’s refusal in this case. He’s claiming he has the right to refuse to bake the cake precisely because of his religion, a right arising under the Free Exercise clause of the First Amendment, a right unavailable to the non-religious.

              • Peter Nonacs
                Posted December 8, 2017 at 8:58 pm | Permalink

                Suppose upon the couple’s request, the baker had simply said no because he just didn’t feel like doing it. No explanation. Can you take him to court for being lazy, an ass, or a bad businessman? Don’t think so. So you are convicting him not on his actions but on the motivation and beliefs he enunciated. Whose side would you be on if a gay atheist baker refused to make a homophobic cake for Westboro Baptist? If you are not also supporting Westboro in this hypothetical, than your position is no more than applying a political litmus test.

              • ploubere
                Posted December 8, 2017 at 9:24 pm | Permalink

                A more apt analogy would be a jewish graphic designer being asked to design a pro-nazi poster.
                It does come down to what the message is being written on the cake, and if there are other commonly understood symbols such as a rainbow. If so, the baker is being forced to endorse a message he doesn’t agree with.

              • Ken Kukec
                Posted December 8, 2017 at 9:46 pm | Permalink

                What is a “homophobic cake”?

                If Westboro church orders a cake, the gay, atheist baker has to make them the same cake — plain or with whatever generic “Good Luck!”-type messages — it offers to all other customers.

                What if a black family walks into a diner and the guy behind the counter simply says “no food” because “I’m lazy and don’t feel like it.” Do you see how quickly your hypothetical would gut anti-discrimination laws?

                If a business holds itself out as a place of public accommodation, it cannot discriminate invidiously against its potential clientele. Such a de minimus restriction on personal liberty is not too much to ask in return for the privilege operating a public business.

              • Peter Nonacs
                Posted December 8, 2017 at 10:06 pm | Permalink

                I appreciate that you are being consistent and would support Westboro ordering a “All sodomites will burn in hell” cake and the baker being compelled to make it. I’m on the other side. The black family analogy is not quite the same. It would be more similar if the black family asked the diner owner to cater an event specifically for them. It should be perfectly legal to refuse to contract for this specialized service. No reason need be given, and it is immaterial whether the underlying reason is pure or impure. I agree there are slippery slopes on both sides of this question. One leads legalizing discrimination, the other to prosecuting thought crimes.

          • Posted December 8, 2017 at 9:01 pm | Permalink

            No, he wouldn’t.

  18. GBJames
    Posted December 8, 2017 at 1:51 pm | Permalink

    Religion can be, and has been, used to justify all manner of discrimination. There’s no limit to how it can be bent towards those ends. It, therefore, should carry zero weight as legal justification.

    If a baker can justify this, then can a gas station owner artist can decline to sell gas, too. No?

    • GBJames
      Posted December 8, 2017 at 1:55 pm | Permalink

      and sub.

    • Posted December 8, 2017 at 3:29 pm | Permalink

      That his objection is religious is irrelevant. He could object for any belief. What about a publisher refusing to publish creationist or homeopathy books? Should they be forced to?

      There is a big difference between a PETROL station and a baker. Buying fuel does not normally imply any sort of support for a customer’s worldview. However a cake with a supportive message to celebrate gay marriage is not neutral on the issue. Perhaps a more fitting example would be if a service station owner refused to sell fuel for the KKK to burn crosses.

      I don’t think religion is an important part of the question. The question is more between people’s freedom to follow their conscience and anti-discrimination. I do not think it’s an easy question to answer in this situation. I saw one comment here said it mattered on the amount of participation of the person providing a service.(e.g. Was it okay for those singers to refuse to perform for Trump?) In this specific example, I would cautiously say the baker is more in the right to refuse a cake that endorses a specific action that he objects to as long as he does not refuse to sell to gay people as a general rule.

  19. William Bill Fish
    Posted December 8, 2017 at 1:52 pm | Permalink

    Should a gay baker be able to refuse to bake a cake for a Christian wedding?

    Oh wait a minute, a Christian wouldn’t have a gay bake a cake, fix a car, cut his etc. for fear of catching the disease.

  20. JonLynnHarvey
    Posted December 8, 2017 at 1:53 pm | Permalink

    I am ever-so-slightly inclined to say let the baker refuse to make the cake provided he states clearly in ALL his marketing/advertising that he will not make a custom cake for a gay marriage.

  21. George
    Posted December 8, 2017 at 1:57 pm | Permalink

    IMHO there is one critical element missing in the background story: Is the baker self-employed (running his own bakery/shop) or is he working as an employee in a bakery? In the first case I don’t see how he can in any way be forced to serve *any* customer.

    • GBJames
      Posted December 8, 2017 at 2:00 pm | Permalink

      It makes no difference if he owns the place or just works there. The law prohibits discriminating on the basis of race, gender, sexual orientation.

      This dispute is not whether it is illegal to discriminate, it is whether religion provides you a get out of jail free card. When you violate the law.

      • Posted December 8, 2017 at 5:37 pm | Permalink

        He runs a sole proprietorship. If he worked for a commercial bakery, he could not object to producing a gay-themed cake.

        • GBJames
          Posted December 9, 2017 at 9:13 am | Permalink

          It does not matter that he runs a sole proprietorship. He is in the business of making cakes for the public and putting the messages that they request on the cakes.

      • George
        Posted December 9, 2017 at 4:51 am | Permalink

        It does matter, significantly. Can I, as the owner of a place, be forced to serve somebody, or am I free in deciding this? And if you answer “yes”, where is the limit? Can I be forced to serve clients who haven’t payed in the past, a client who had an affair with my wife, a client who bullied me years ago at school?

        • Ken Kukec
          Posted December 9, 2017 at 7:47 am | Permalink

          These are the same arguments raised in opposition to the Civil rights Act of 1964, and were all litigated to a fare-thee-well a half-century ago. A business open to the general public cannot discriminate invidiously on the basis of race, religion, ethnicity (and per most state counterparts to the CRA, disability and sexual orientation). Nothing prevents a business owner from refusing a customer on the grounds you cite.

          • George
            Posted December 9, 2017 at 10:33 am | Permalink

            So I get fined (or have to go to prison) if I state “religion” as a reason, but not if I state “I don’t like that guy”? Tell me why I would ever do the former then…

            • Ken Kukec
              Posted December 9, 2017 at 10:52 am | Permalink

              You can’t use “I don’t like that guy” as a pretext for invidious discrimination. Whether your reason is a pretext or not is precisely the type of determination that triers-of-fact are called upon to make in court everyday.

  22. Randall Schenck
    Posted December 8, 2017 at 1:57 pm | Permalink

    I voted no and no. Probably wishful thinking. When religious belief gets in the way of civil rights or other laws for that matter, religion should always take a back seat. Just like the Hobby Lobby disaster, religion should always yield to decided laws and individual rights. As we saw many years ago anyone can sit at the counter and if you are a baker you bake cakes. If you want to be able to determine who you bake cakes for then you are discriminating. If you are a barber do you get to decide who’s hair you cut? If you get to discriminate based on religion then we need a constitutional amendment.

    • GBJames
      Posted December 8, 2017 at 2:06 pm | Permalink

      Only some forms of discrimination are illegal. You can’t do it on the basis of race, or gender, etc. But it is not illegal to refuse to serve people on the basis of (for example) clothing styles, excessive body odor, or kind of car they own.

      I would never sell a cake to someone who drives a Hummer H2.

      • Posted December 8, 2017 at 2:13 pm | Permalink

        “I would never sell a cake to someone who drives a Hummer H2.”

        Hee hee hee! You’re so evil! 🙂

      • Randall Schenck
        Posted December 8, 2017 at 3:12 pm | Permalink

        And some forms of argument are ridiculous too. You stink, you driving a car I don’t like and you wear funny clothes. Yes, let’s get that to the supreme court right away.

        • GBJames
          Posted December 8, 2017 at 8:22 pm | Permalink

          Huh?

      • Ken Kukec
        Posted December 8, 2017 at 3:22 pm | Permalink

        I used to have a thing against Rambler drivers — then I got woke and figured, what the hell, everybody’s gotta drive something, live and let live.

    • BobTerrace
      Posted December 8, 2017 at 2:16 pm | Permalink

      Barbers don’t get to discriminate on whose hair they cut, just which hairs to cut.

    • Ken Phelps
      Posted December 8, 2017 at 3:30 pm | Permalink

      “If you want to be able to determine who you bake cakes for then you are discriminating…If you are a barber do you get to decide who’s hair you cut? ”

      This is the essential disconnect in the discussion. The baker isn’t refusing to bake cakes for, or sell cakes to, gay people. He is refusing to accept a commission to perform a specific artistic expression on one of those cakes that he is otherwise happy to sell to anyone. I’m pretty sure a barber can refuse to shave a swastika into someone’s buzzcut.

      • Randall Schenck
        Posted December 8, 2017 at 4:30 pm | Permalink

        Not what I said. The baker is discriminating and the barber would also be discriminating. When you are licensed and open to the public you must serve the public. There might be some reason you could not cut someone’s hair but religion would not be one.

        • Posted December 8, 2017 at 5:39 pm | Permalink

          The barber has a legal right to refuse to shave a swastika.

          • GBJames
            Posted December 9, 2017 at 8:49 am | Permalink

            This is because swastika-wearers are not a protected class.

  23. Posted December 8, 2017 at 2:04 pm | Permalink

    Anyone coming down on the side of the baker, arguing that “he could have avoided the problem by …” is missing the point. He wanted the problem and he wants the state to enforce his prejudice. I have a simple solution. If you run a secular business, you play by secular rules. No special rules, no special dispensations. If you want to run a religious organization, then run a religious organization, but with no help from the government. But cake baking is not a religious practice, it is a fucking bakery. If you do not want to play by the rules, take up another business. But if they were to open a welding or auto repair shop, they would still have gay customers.

    And who the fuck looks at a wedding cake and considers it an endorsement of the bride and grooms actions? I call this the Kim Davies disease. She had a job certifying the the state and local laws were complied with in issuance of certain licenses, including marriage licenses. She inserted her nose into the state’s business by claiming to not approve of certain licenses being given out, which certainly was not part of her job description. She is currently running for political office and I hope she wins and then can sit down with her constiuents to listen to their whining like the assholes they are.

    On Fri, Dec 8, 2017 at 1:31 PM, Why Evolution Is True wrote:

    > whyevolutionistrue posted: “In 2012, a Christian baker and self-proclaimed > “cake artist” in Colorado, Jack Phillips, decided he wasn’t going to bake a > wedding cake for a gay couple, Charlie Craig and David Mullins because the > request violated his religious beliefs. The couple sued f” >

  24. Gregory Kusnick
    Posted December 8, 2017 at 2:04 pm | Permalink

    My take is that it’s none of the baker’s damn business what happens to the cake after the money has changed hands.

    Suppose a straight(-looking) couple comes in to buy a wedding cake. Does the baker ask to see the marriage license, or follow up to make sure the cake is actually used in a Church-sanctioned male-and-female marriage ceremony? Of course not. Once the cake leaves the store, the customers are free to use it however they please, including as a prop in some role-playing bondage fantasy if that’s what floats their boat.

    Saying that the baker has a right to decide how the cake is used is like saying the pharmacist has veto power over what kind of sex you can have with the condoms he sells you. I just don’t buy it.

    • Posted December 8, 2017 at 2:23 pm | Permalink

      As I understand it the issue is about what the baker is compelled to do with the cake, not what the buyers do with it. They can shove it up their arses for all I care. That’s not the issue. It’s that the baker should or should not be compelled to bake a cake endorsing gay marriage. The baker may be a homophobe for all I know, but thus is about state power to compel the baker to endorse beliefs. Should a baker be forced to endorse transgenderism? Climate change delial? Sharia? Anti-vaxism?

      • GBJames
        Posted December 8, 2017 at 2:28 pm | Permalink

        I do not think you understand the issue correctly. This is about whether people for whom the law provides anti-discrimination protection can expect to go into a public-serving business and receive the same kind of treatment as everyone else.

        The baker is perfectly happy to provide “I’ll make you the cake you want” service to the public. He can not do this for white people but not black people. He can not provide this service to male/female couples but refuse it to same sex couples.

        • Gregory Kusnick
          Posted December 8, 2017 at 2:35 pm | Permalink

          Right; if the service being offered is “custom cakes for any occasion” or something along those lines, then the baker should be obliged to live up to that claim.

        • Posted December 8, 2017 at 2:51 pm | Permalink

          So if this was a Muslim couple demanding that the cake supported their beliefs that would be okay?

          Because religion has been a protected category a hell of a lot longer than sexual orientation.

          • GBJames
            Posted December 8, 2017 at 3:41 pm | Permalink

            Yep. Even a Muslim can buy a cake. Horrors!

        • Craw
          Posted December 8, 2017 at 5:11 pm | Permalink

          So, if muslims are protected, And the law changes to allow screwing 6 year olds, and a 50 year old Muslim wants a marriage consummation cake for his 6 year old bride, it’s ok to force the baker? Even if her 6 year old was raped last month?

          You can say these are extreme hypotheticals. Indeed, that’s how you probe answers and intuitions and rules.

          Your argument about protected classes is relevant to what the court will decide but not to what it should, because we can imagine any group being protected, or none.

          • Ken Kukec
            Posted December 8, 2017 at 5:43 pm | Permalink

            Those aren’t “extreme” hypotheticals; they’re simply fanciful ones. What if a hotelier’s daughter was raped by a Jew? Is she permitted thereafter to refuse to rent rooms to Jews? Such easily made (and hard to disprove) claims would’ve made the Civil Rights Act of 1964 completely unenforceable.

            And no, we can’t “imagine any group being protected.” Discrimination laws in the US target prejudices with long, nasty histories of invidious enforcement.

        • Posted December 8, 2017 at 5:41 pm | Permalink

          I don’t think you understand the issue correctly. Prove me wrong by briefly summarizing the baker’s claims.

          • GBJames
            Posted December 9, 2017 at 8:52 am | Permalink

            His claim is that his freedom of expression is being stymied. He’s wrong. He offers a service to the public in exchange for money. He can’t use his faith to discriminate against a protected class of people.

            This isn’t that hard. He can get out to the business of offering his “art” for sale, but he can’t differentially offer his “art” to white people but not black ones, etc.

      • Gregory Kusnick
        Posted December 8, 2017 at 2:43 pm | Permalink

        I don’t see that the baker is being compelled to endorse anything; they’re just being asked to bake a cake.

        If I walk into a tattoo parlor with a Chinese inscription that I want inked onto my arm, does the artist have the right to bring in a translator to make sure it’s a message he can stand behind? I’m not asking him to stand behind it; I’m just asking him to ink it, and I’ll take responsibility for the content.

        • Posted December 8, 2017 at 3:34 pm | Permalink

          Some tattoo artists will refuse to do tattoos with messages that they disagree with.

          “Marcus, for his part, has an ironclad rule against doing any tattoos that involve hate, racism, or misogyny and makes a point of speaking up or refusing service if a client asks for something that gives him pause for either aesthetic or moral reasons. ”
          http://www.slate.com/blogs/always_right/2017/10/04/should_a_tattoo_artist_tell_you_the_tattoo_you_re_asking_for_is_a_terrible.html

          We also know that subways and billboards will refuse to run certain ads that they find objectionable.

          • Posted December 8, 2017 at 3:54 pm | Permalink

            And if they don’t refuse to run the ads people will run campaigns to force them to refuse to run them.

        • a-non
          Posted December 8, 2017 at 3:36 pm | Permalink

          Actually this is an interesting example. If it’s a swastika? A cartoon of mohammed with a bomb in his turban? Child porn? When exactly can your tattoo artist refuse service?

          If his shop got a reputation as being the place to get… fake russian mafia tattoos, perhaps, is he allowed to worry about that?

          (Certainly if a chinese guy walks in and wants the standard anchor & chain, the law would not allow him to refuse, I believe.)

          • Posted December 8, 2017 at 5:44 pm | Permalink

            An artist may refuse to produce any image, symbol, or message, as they see fit.

            • Gregory Kusnick
              Posted December 8, 2017 at 5:56 pm | Permalink

              Fair enough, but this seems to argue against Speaker’s claim that compelling the artist to produce such images or messages would constitute endorsement of them by the artist.

              If the artist is under no such compulsion, and refuses to produce the message, then we may reasonably infer that they disapprove of it.

              If the artist has the freedom to refuse but declines to exercise it, any inference that they endorse the message would be weak at best.

              If they lack the freedom to refuse, then we can infer nothing at all about their endorsement of the messages they produce.

              “Compelled to produce” does not imply “compelled to endorse”.

              • Posted December 8, 2017 at 9:04 pm | Permalink

                I have no idea what you’re talking about.

            • Ken Kukec
              Posted December 9, 2017 at 7:58 am | Permalink

              Any image, symbol, or message? Even generic images, symbols, and messages the baker routinely provides for others in the baker’s regular course of business? So a baker can refuse to write “Happy Birthday” on a cake for a biracial kid?

              I doubt that will be the outcome of this, or any other case, case.

            • GBJames
              Posted December 9, 2017 at 9:19 am | Permalink

              You’re hiding behind the word “artist”, as is the baker. The baker is just transcribing a message dictated by the customer. He is in a service business. He isn’t baking cakes as self expression and then offering them for sale in a studio.

    • Ken Kukec
      Posted December 8, 2017 at 3:29 pm | Permalink

      Baker to customer: “… and during the honeymoon, it’s gotta be straight P-in-V action, no butt stuff.”

    • Filippo
      Posted December 8, 2017 at 3:39 pm | Permalink

      “Does the baker ask to see the marriage license, or follow up to make sure the cake is actually used in a Church-sanctioned male-and-female marriage ceremony?”

      I’ve wondered if the baker asks that question. It may be customary for both people to go to the baker, but not necessary. Suppose one went in by him- or herself, and asked the baker to indulge his artistic whimsy by creating a cake with brilliant autumn foliage with snow-capped peaks and clear blue sky for an October wedding, with no names on it? Seems he would be hard-pressed to outright ask about the couple’s orientation (though I wouldn’t put it past him to make leading small-talk statements for the purpose of provoking the customer to leak some intel).

  25. mordacious1
    Posted December 8, 2017 at 2:08 pm | Permalink

    I think the baker wins his case. He’s not refusing, as some have claimed, to sell them a wedding cake. They could have bought any of the pre-made cakes in his store, but he didn’t want to participate in the wedding by specifically designing a cake for this type of wedding. As someone stated above, the Court has used participation in past rulings.

    • eric
      Posted December 8, 2017 at 3:04 pm | Permalink

      Quibble: wedding cakes aren’t pre-made. The things on display are fakes; everything is made to order.

      • Filippo
        Posted December 8, 2017 at 3:42 pm | Permalink

        Right. How long can such a cake sit there and the baker expect it to be scarfed up as a matter of course? (Maybe he has them made up for the occasional shotgun wedding. ;))

      • mordacious1
        Posted December 8, 2017 at 3:52 pm | Permalink

        Most bakeries have cakes ready to go, they might not be the standard tiered wedding cake, but you can walk in and they will write “Happy Birthday John” or “Happy Anniversary “. Maybe the baker said, “pre-designed” and I misquoted him…the point is, he was willing to sell them a cake.

        • eric
          Posted December 8, 2017 at 7:21 pm | Permalink

          He offered to sell them any cake in the shop, but since all wedding cakes are made to order this is in practice the same as saying he’ll sell them any sort of cake except a wedding cake.

          Are you telling me that if a baker said, essentially “I’ll sell all the regular wedding cakes to whites but blacks can only get whatever sheet cake I have on hand,” you wouldn’t consider that racial discrimination?

          And if someone complained, would you really buy the defense “well since they can still buy a sheet cake for their wedding, I’m not discriminating based on race.”

          I wouldn’t. That difference in service is clearly racially discriminatory (IMO). And substituting orientation for race in the policy and defensive statement above is likewise discrimination based on orientation.

          • mordacious1
            Posted December 8, 2017 at 8:39 pm | Permalink

            Black couple: We need a cake for a special function, I hope you sell cakes to black people.
            Baker: Of course we do. Not only is it the law, but our preferred method of doing business.
            Couple: Great, we’d like this one.
            Baker: Good choice, delicious cake.
            Couple: We’d like you to design a “Down With Cops” theme for the cake.
            Baker: (appalled) No! My dad was a cop who died in the line of duty. We support the police. You can have a cake, but I won’t design anything like that.
            Couple: Racist!

            I see this as a similar situation. The baker cannot be forced into speech by the government and can refuse this service.

            • Gregory Kusnick
              Posted December 8, 2017 at 8:52 pm | Permalink

              But it’s not similar. The gay couple in Masterpiece weren’t asking for a pro-gay message. The baker’s argument is that the cake itself, with no writing on it, constitutes a pro-gay message just by being served at a same-sex wedding reception.

              • Posted December 8, 2017 at 9:06 pm | Permalink

                That’s one of his arguments, and imo the weakest by far.

              • Ken Kukec
                Posted December 8, 2017 at 9:22 pm | Permalink

                @Matt

                Is it your position that a baker scrawling something on top the cake like “Congratulations” or “Best Wishes” somehow transmogrifies this into a free-speech case because, you know, “words”?

              • mordacious1
                Posted December 8, 2017 at 10:03 pm | Permalink

                I’m basing my comments on statements the baker made (I think on the courthouse steps). He said he offered to sell them a cake, just not a customized one. Admittedly, that may have changed after lawyers got involved.

              • Ken Kukec
                Posted December 8, 2017 at 10:49 pm | Permalink

                @mordacious1

                Are you saying that a baker who offers customized cakes to the public can refuse to do the same type of cake customization for a gay couple — say, that they want the florets on top made from pistachio icing or whatever?

              • mordacious1
                Posted December 9, 2017 at 10:16 am | Permalink

                @Ken
                The government cannot force a butcher, a baker or a t-shirt maker into speech that they don’t agree with. And yes, if the couple wants black flowers and he doesn’t do black flowers for anyone, he can refuse that too…or pistachio, or anything else.

              • Ken Kukec
                Posted December 9, 2017 at 11:04 am | Permalink

                Is the rule you’re proposing unique to bakers, or does it apply to other culinary artistes?

                Could one of those upscale molecular gourmet restaurants, where they do 14-course customized dinners, refuse to take a reservation for a gay couple?

              • eric
                Posted December 9, 2017 at 7:52 pm | Permalink

                Mordacious1, your understanding of Phillips’ position is incorrect. While he did mention custom, all wedding cakes are custom – even the ones with no message on them. What he did was refuse to make them any sort of wedding cake at all. Here is the relevant quote from his publicly released statement:

                “I am here at the Supreme Court today because I respectfully declined to create a custom cake that would celebrate a view of marriage in direct conflict with my faith’s core teachings on marriage. I offered to sell the two gentlemen suing me anything else in my shop or to design a cake for them for another occasion.”

                So, he would sell them a pre-made cake…but wedding cakes are never pre-made. And he offered to sell them a birthday cake. So his offer excluded any sort of wedding cake at all.

            • GBJames
              Posted December 9, 2017 at 9:22 am | Permalink

              “Down With Cops” in your example is not the speech of the baker, it is the speech of the customers.

              • mordacious1
                Posted December 9, 2017 at 10:21 am | Permalink

                What’s your point? He doesn’t have to put it on the cake.

              • GBJames
                Posted December 9, 2017 at 10:53 am | Permalink

                The point is that all of these assertions of forcing this baker to say things he doesn’t believe in (because Jesus) are mis-directed. The speech is that of the customer. The baker is not being forced to endorse anything. He’s being forced to not discriminate against customers on the basis of sexual orientation.

            • mordacious1
              Posted December 9, 2017 at 1:53 pm | Permalink

              No

    • Tom Waddell
      Posted December 30, 2017 at 10:19 pm | Permalink

      So if a straight couple come in to have a wedding cake created and one or both admit to not being a virgin, would it be OK for the baker to refuse to make the cake because his religious beliefs say one must be a virgin on their wedding day?

      • GBJames
        Posted December 31, 2017 at 8:38 am | Permalink

        Virginity, or the absence thereof, is not a protected class.

        • Tom Waddell
          Posted December 31, 2017 at 10:08 am | Permalink

          And what does one’s sexual experience status have to do with discriminating against anyone on the basis of religious belief? What the baker is claiming is that he can refuse service to anyone if who they are or what they do offends his religious beliefs. As even Scalia, the staunchest advocate of religious privilege said, allowing one to discriminate on the basis of religious belief makes everyone a law unto themselves and will lead to anarchy.

          • GBJames
            Posted December 31, 2017 at 1:52 pm | Permalink

            It matters what the reason for discrimination is.

            It is perfectly legal, for example, to discriminate against dog owners. Your reason might be that you just don’t like dogs. Or your reason may be that your religion instructs you that dogs are filthy and their owners disgusting. Doesn’t matter. The law does not protect dog owners from discrimination.

            • Tom Waddell
              Posted December 31, 2017 at 3:00 pm | Permalink

              I disagree. In your scenario it is the dog that is being discriminated against, not the dog owner. If a dog owner wants to say rent a hotel room and bring their dog with them then yes, the hotel owner can refuse to rent them the room. If the dog owner does not have the dog with them then no, the hotel owner can’t refuse to rent them a room.

              • GBJames
                Posted December 31, 2017 at 3:26 pm | Permalink

                No. Your disagreement is futile. It is my scenario and I dictated that dog ownership was being discriminated against.

                The hotel owner refuses to rent to someone who owns a dog, whether or not the dog is present. He hates dog owners because god told him that dogs should be free from being owned.

                The hotel owner is within his legal rights. Pet ownership is not legally protected from discrimination. Anti-discrimination laws prohibit specific forms of discrimination, not discrimination in genera.

              • Tom Waddell
                Posted December 31, 2017 at 3:51 pm | Permalink

                Well back to the baker and his refusal to serve a Gay couple simply because who they are offends his religious beliefs. His religious privilege ends where the couples human rights begin. This overly conservative rightwing evangelical SCOTUS is most likely not to see it that way and vote to let anyone discriminate against anyone else for any reason. That is the direction this country is going with Trump and company. I hope the majority of people recognize what is going on by the 2018 election, vote to put the brakes on this administration and elect a qualified president in 2020.

              • GBJames
                Posted December 31, 2017 at 5:01 pm | Permalink

                The gay couple is protected, by the laws of Colorado. Their protection results from being members of a protected class.

                If the Supremes rule the way you and I think they should not, then they will be overturning this protection.

                In no case are arguments about virginity (or fondness for dogs) supportive of their legal status.

  26. Posted December 8, 2017 at 2:09 pm | Permalink

    My feelings are congruent with yours, Jerry.

    I have quite mixed feelings about it, as you seem to and also Andrew Sullivan. Because, as you note, it’s a confrontation between two legitimate (at least classes of) rights.

    But, like you, I think the non-discrimination in public accommodations must rule in this case.

    I have customers. It makes me queasy to think someone could legally force me to create a musical instrument for them.

    I’ve never run into such a situation. I have avoided working for some specific potential customers. I have done it by telling them that I do not have capacity to make their instrument (“we’re all full up!”). This is a lie; and I don’t like that; but it is the no-argument way to deflect someone*.

    I have never turned someone away for their: Race, religion (many of my customers want their instruments to play in church!), class, color, sexual orientation, etc.

    The only ones I’ve turned away have been ones that clearly were going to be monumental pains in the tuchus or have tried to tell me how to do my work (ummm, aren’t you hiring me because I’m the one that actually knows how to to do this?!)

    (* I learned this from a colleague who also owned and operated a B&B. Only once did he turn a potential customer away by saying he and his family were on vacation that week. After that, it was always: Sorry, booked!)

  27. Posted December 8, 2017 at 2:16 pm | Permalink

    End of the day, this is compelled speech. It’s the opposite of free speech.

  28. Craw
    Posted December 8, 2017 at 2:18 pm | Permalink

    I always consider hypotheticals. As in the case, imagine special requests for cakes.

    1. An interracial couple. Baker objects.
    2. Roy Moore victory party. Baker objects.
    3. Hitler’s birthday. Baker objects.
    4. Celebrating the slaughter by Omar Mateen. Baker objects.
    5. Linda Sarsour campaign event. Baker objects.
    6. Marriage of a 50 year old man to a 6 year old girl, where legal. Baker objects.

    I want to side with the baker in every case but 1. I’m not sure I can find a principled rationale that would let me have him lose only in case 1. And I wonder if the harm to his conscience should be easily disregarded even in case 1. So I am with the baker.

    I predict the court will try to find a narrow ground for finding for the baker.

    • GBJames
      Posted December 8, 2017 at 2:21 pm | Permalink

      It doesn’t really matter if you side with the baker or not. Discrimination law doesn’t apply in all of those cases. Roy Moore supporters and Hitler aficionados are not classes protected by law. The interracial couple are.

      • Craw
        Posted December 8, 2017 at 4:48 pm | Permalink

        Why wouldn’t Point 6 apply? Or apply as well if they were both male?
        This is what I mean by lack of a principled argument. Your answer does not address the point I make and just pushes it off to what is a “protected” group. But the question is should they be, and should they be in this regard?

  29. eric
    Posted December 8, 2017 at 2:19 pm | Permalink

    Sullivan:

    More to the point, he has said he would provide any form of custom-designed cakes for gay couples — a birthday cake, for example — except for one designed for a specific celebration that he has religious objections to.

    (Some) restaurants in the pre-civil-rights south would serve blacks anything from the menu they wanted, so long as they didn’t sit at the whites-only counter to eat it. This sounds the same to me. “Yes, except…” service is still discriminatory.

    • Craw
      Posted December 8, 2017 at 4:52 pm | Permalink

      You realize it was the LAW not business policy that they couldn’t sit there? Lots of businesses wanted to not discriminate. Some sued to be able to not discriminate, but lost. (Google about bus companies, railway companies, and Jim Crow). Jim Crow laws were LAWS.

      • Ken Kukec
        Posted December 8, 2017 at 5:48 pm | Permalink

        That’s simply incorrect, Craw, as I explained in my response to you in thread #11 above.

        • Ken Kukec
          Posted December 8, 2017 at 5:53 pm | Permalink

          If it dimply had been a LAW, the courts could have easily struck it down under the US Constitution’s equal protection guarantee. Because it was instead <bprivate discrimination, Congress had to enact a statute prohibiting private discrimination in places of public accommodation.

  30. HNthursday
    Posted December 8, 2017 at 2:27 pm | Permalink

    In my view, the baker should have the right to refuse to make a cake for a gay wedding or anything of that sort. I think that the baker (or any other person in the private sector) should have a right to refuse their service for any event, not only to refuse to make a cake for a gay wedding but also to refuse to make a cake for a christian wedding, muslim wedding, church worship or whatever else.

    Should a gay-christian/muslim baker have a right to refuse to make a cake based on Bible or Quran passages that are clearly anti-gay (or anti-gay lifestyle)? Absolutely! I don’t think that he should be forced to make a cake on which it says that he (gays) should be killed/or that they will go to hell.

    If you say that the 2. case should be legal and the 1. case illegal, then you are asking the government to regulate what’s free speech and what’s hate speech.

    In my view, free speech is much more important than almost anything else.

  31. Tom Waddell
    Posted December 8, 2017 at 2:28 pm | Permalink

    This is a clear case of discrimination. SCOUTS should have refused to hear the case but since they did my guess is the Conservative majority will vote in favor of the baker, just as they did in the Hobby Lobby case. As others have said, if the baker wins there will be no limit to what bigots and those who believe will be allowed to do.

    I said believe and not religious belief for a reason. Why is it that claiming belief in the supernatural is considered a valid objection for not following the law but a personally held belief is not? Why does religion get a pass but personally held moral beliefs, not tied to any supernatural being does not?

    In my opinion any legal claim based on one’s belief in the supernatural should not be considered a valid objection. Either that or allow anyone to simply say they don’t have to do anything because they believe they don’t have to. Pandora’s box anyone?

    • Posted December 8, 2017 at 2:47 pm | Permalink

      Well, there is this “Free Exercise” clause in the US Constitution, so it actually is a right that has to be balanced against other rights.

      I come down on the side against the baker; but it’s not black and white — which is why it’s made its way to the SCOTUS.

      There’s a long track record in the courts in the USA around religious freedom and rights.

      I agree that it would be better if we could discount this as a legal ground (excepting forcing people to abandon their religion or some such); but this is not the way it is.

      • Tom Waddell
        Posted December 8, 2017 at 2:56 pm | Permalink

        One’s right to freely exercise (do) what they think an invisible supernatural being is telling them to do stops where my 14th amendment rights begin.

        • Posted December 8, 2017 at 3:02 pm | Permalink

          Well, we have courts to make those decisions.

          I agree that this stuff is dopey. But I don’t believe in religious compulsion — in either direction.

        • mordacious1
          Posted December 8, 2017 at 8:53 pm | Permalink

          I think the baker wins even if he doesn’t make a religious argument. Some people who don’t like the idea of gay marriage aren’t religious at all. The issue is whether the government can force you into speech that you’re opposed to. A cake is not speech, a rainbow flag on the cake is.

          • Gregory Kusnick
            Posted December 8, 2017 at 9:01 pm | Permalink

            What evidence do you have that the couple asked for a rainbow flag? As I read the brief at comment #39, they didn’t ask for any symbol or message on the cake. It was just a cake, and therefore not speech by your definition.

            • mordacious1
              Posted December 8, 2017 at 9:50 pm | Permalink

              Where did I say that this specific baker was asked to make a flag? It’s just an example of speech. I’m just saying that bakers in general can make an argument without it being religious based. I will sell you a cake, a wedding cake…but not a gay themed cake. Perfectly within his rights imo.

  32. Historian
    Posted December 8, 2017 at 2:33 pm | Permalink

    The notion that this case has anything to do with freedom of speech takes the cake! Linda Greenhouse of the New York Times cited this article for a detailed analysis of the case.

    https://takecareblog.com/blog/what-masterpiece-cakeshop-is-really-about

    Here are a few key quotes from the article:

    ——————–

    “The Alliance Defending Freedom (ADF, formerly Alliance Defense Fund), which represents Masterpiece Cakeshop, is driving the litigation and many similar cases around the country. ADF is not interested in a narrow resolution to a narrow question; rather, ADF is taking aim at the very legitimacy of LGBT people and legal protections for them.”

    “With an understanding of ADF’s views and the positions its lawyers are taking around the world, one can see that this case is not merely an attempt to achieve a narrow exception to a legal order that recognizes LGBT equality; rather, part of the point is to undermine that legal order.”

    “ADF and its allies support laws that criminalize same-sex sex; and they oppose laws that would protect gays and lesbians against discrimination.”

    “So how are we to understand ADF’s aims in litigating Masterpiece Cakeshop? As we have shown, after suffering losses in the last decade, opponents of same-sex marriage have shifted from speaking as a majority seeking to enforce traditional morality through laws of general application to speaking as a minority seeking exemptions from laws that have only recently come to protect gays and lesbians. No longer able to control the law of marriage or discrimination, ADF seeks religious exemptions from it.”

    “But in seeking religious exemptions, is the organization simply seeking settlement for Christian bakers? The aim is much larger. In Masterpiece Cakeshop, ADF seeks to establish precedent—whether through the First Amendment’s speech or free exercise clause—that would provide the basis for refusals to serve same-sex couples in a much broader range of settings, and thus alter the exercise of the right to marry. ADF may emphasize the distinctive features of wedding cakes, but this case is not simply about cakes.”

    “And, widespread religious refusals can erode the foundations of antidiscrimination law and marriage equality, as the example of religious refusals in the reproductive healthcare context illustrates.”

    “In short, ADF’s appeal to seemingly narrow arguments for religious exemption is part of a broader strategy to erode the foundations of marriage equality and antidiscrimination law.”

    “Attending to ADF’s own words—across time and space—leaves no doubt about what Masterpiece Cakeshop is really about. It is not a narrow case. It is a case that implicates the very status of LGBT people and the fragile legal advances they have secured in the U.S.”

    ——————–

    Make no mistake about it. This case has nothing to do with freedom of speech. It has everything to do with religion. Its purpose is to legalize discrimination by the religious right in all areas of life. The wedding cake incident is merely the opening wedge. If the religious right can discriminate against gays today, why not blacks or Jews or immigrants tomorrow? Only Justice Kennedy stands in the way of preventing this. Once again, the fundamental nature of this country rests with one man. The religious right will never stop to impose its values on society. They give no quarter and those who oppose them should also not give it.

    • Randall Schenck
      Posted December 8, 2017 at 4:54 pm | Permalink

      Your last paragraph here says it all. Everything I’ve heard about this case says it should go against the baker. All the what ifs should be thrown out because this guy is simply refusing to bake a cake. Has nothing to do with any decorations or anything.

      • mordacious1
        Posted December 8, 2017 at 9:08 pm | Permalink

        He wasn’t refusing to bake a cake. He was refusing to add content that went against his personal beliefs. Night and day.

  33. Kyle B.
    Posted December 8, 2017 at 2:47 pm | Permalink

    Apparently some bakers in Colorado refused to put on quotations from Leviticus on their cakes and were not penalized under the same law, see http://www.vox.com/the-big-idea/2017/12/6/16741602/masterpiece-cakeshop-same-sex-wedding,”The Colorado Court of Appeals ruled that Phillips discriminated on the basis of sexual orientation by refusing to create a cake celebrating a same-sex marriage — because that celebratory message is closely associated with gays and lesbians. But it explicitly approved three cases holding that other bakers did not discriminate on the basis of religion when they refused to create cakes with a quotation from Leviticus condemning homosexuality — a message obviously associated with a certain set of religious believers.”

    I am curious if people think this analogy between cake-making cases holds. It seems to me (although I am by no means certain) if you think the baker should be forced to make a cake in the wedding cake case, the bakers here should have been forced to create a “Leviticus cake”, as well. There may be ways out of this interpretation, (you could perhaps argue, for example, that a custom “Leviticus cake” is outside the normal bounds of a cake shop while a wedding cake is not, but if the baker offers custom cakes in general, then I’m not so sure.) but the analogy seems fairly strong to me.

    • Posted December 8, 2017 at 2:49 pm | Permalink

      I think this is an interesting test of people’s opinions. Seems to me they are pretty equivalent.

      (As someone who produces custom products for individuals.)

    • Curtis
      Posted December 8, 2017 at 3:24 pm | Permalink

      My legal opinion as non-lawyer. There is a difference because free speech includes writing words on a cake which means you do not have to make a Leviticus cake. However, a gay baker would have to provide a cake to a church for their anti-gay marriage Leviticus party.

      • Craw
        Posted December 8, 2017 at 4:59 pm | Permalink

        Ok then, swastika cakes. Cakes in the shape of the SS death’s head insignia for a Nazi celebration. Cakes of caricatures of blacks for KKK rallies.

  34. Torbjörn Larsson
    Posted December 8, 2017 at 3:06 pm | Permalink

    I guess I do not understand the culture and its legal framework, or Sullivan’s insistence that such a gap in my understanding should be interpreted as fanaticism.

    Since a baker is working in a profession – goes public on a market – and religion is a private matter, he or she should not discriminate without legal sanction.

    • Craw
      Posted December 8, 2017 at 4:54 pm | Permalink

      So a billboard owner must accept nazi posters?

  35. mirandaga
    Posted December 8, 2017 at 3:16 pm | Permalink

    I’m with the baker. I don’t see that this has to do with religion so much as how one defines marriage. If a baker in the business of making wedding cakes considers a wedding to be a union between one man and one woman (and this age-old definition isn’t per se a “religious” one, though it seems to be in this case), then he should be free to provide his services in keeping with that definition. He should not, for example, be coerced to bake a cake for a bigamist with, say, a man and three women on top of it. Ditto for two men or two women.

    Nor do I see that the baker’s beliefs or behavior meet Jerry’s standard of being “overly onerous to society.” Sullivan is right: the humane (let alone Christian) thing to do would be to take your business elsewhere.

    • mirandaga
      Posted December 8, 2017 at 3:30 pm | Permalink

      “bigamist”: make that polygamist. (There are three kinds of people in the world: those who can do math and those who can’t.)

    • Ken Kukec
      Posted December 8, 2017 at 3:41 pm | Permalink

      Would you apply the same rule to a baker who refused a cake to an interracial couple because (as the trial judge said in Loving v. Virginia) “Almighty God created the races, white, black, yellow, malay, and red and he placed them on separate continents”?

      • mirandaga
        Posted December 8, 2017 at 7:23 pm | Permalink

        Find me one and I’ll let you know. And let’s hope that in 50 years, which is how long interracial marriage has been legal in this country, a baker who turns away a gay couple will be equally as hard to find.

        • Ken Kukec
          Posted December 8, 2017 at 8:38 pm | Permalink

          Here’s a recent incident where a justice of the peace refused to marry interracial couple, and here’s another where a church did the same.

          So, now, let me know. 🙂

          • mirandaga
            Posted December 9, 2017 at 2:20 pm | Permalink

            The law is meant to protect, and the fact that you had to go so far afield to find such a baker is an indication of how far an interracial couple is from needing the protection of the law when it comes to finding a wedding cake. So the answer to your question is yes, I would apply the same rule: if someone’s definition of marriage is integral to what they consider a wedding cake, then they should be free to deny their product to people who don’t meet the definition—up to the point where such a policy become what Jerry calls “overly onerous to society.” Since an interracial couple would have no trouble finding a baker who would provide a wedding cake (in fact, they’d have to search far and wide to find one who wouldn’t), such a baker’s policy can hardly be considered “overly onerous.”

            This does not amount to racial discrimination (presumably the baker would have no grounds for denying a cake to a black couple as opposed to an interracial couple), nor does it require protection under any law other than that of supply and demand. A baker whose definition of marriage included preserving racial purity wouldn’t stay in business very long, and I suspect, per my previous response, that the same will eventually be true of a baker whose definition of marriage includes the potential to propogate, thereby excluding same-sex couples.

            In the meantime, if I disagree with either of the above definitions of marriage, I’m free to take my business elsewhere at very little inconvenience. What I should not be free to do is legally force my own definition of marriage on bakers who think otherwise.

            • Gregory Kusnick
              Posted December 9, 2017 at 3:12 pm | Permalink

              “if someone’s definition of marriage is integral to what they consider a wedding cake, then they should be free to deny their product to people who don’t meet the definition”

              I’d lay long odds that this baker sold any number of wedding cakes to straight couples without bothering to check their qualifications for getting married, and that his definition of marriage didn’t become integral to his concept of a wedding cake until the moment a gay couple walked into his shop.

            • Ken Kukec
              Posted December 9, 2017 at 4:45 pm | Permalink

              Can a restaurateur whose definition of marriage is integral to his religious beliefs refuse to serve a gay couple who’re celebrating their wedding anniversary?

              How about denying them service in general because the restaurateur feels that to do so would give his personal imprimatur of approval to their union?

              • mirandaga
                Posted December 9, 2017 at 6:12 pm | Permalink

                In both cases, I would say no. In neither case is the product that the restauranteur is providing—namely, a meal—integrally related to his definition of marriage in the way that a wedding cake is integral to the baker’s definition of marriage. By the same token, even the baker in question should not be free to refuse to serve the gay couple anything other than a wedding cake, regardless of what they plan to “celebrate” by eating it. To do so, IMO, would be blatant discrimination.

                Are we having fun yet?

              • Ken Kukec
                Posted December 9, 2017 at 10:40 pm | Permalink

                So the baker’s “right” arises due his discomfort in knowing that, at some future point, his cake is going to be used in some ceremony he does not approve of, but which he need not attend or known anything more about? Seems like awfully thin gruel on which to hang a legal right.

                And if that’s the case, why doesn’t he have the same right to refuse to sell the gay couple a ready-made cake off his shelf, since it will be used in the same ceremony for the same purpose? And why wouldn’t he have the same right to refuse to sell a cake for a biracial kid’s birthday, if he has religious compunctions concerning interracial marriage?

              • mirandaga
                Posted December 10, 2017 at 2:47 am | Permalink

                Your hypotheticals are getting out of hand. Put most simply, if the baker is in the business of selling wedding cakes, then he has the right to define what he means by a wedding cake. Anyone who disagrees with that definition should go elsewhere.

              • Gregory Kusnick
                Posted December 10, 2017 at 11:28 am | Permalink

                The problem with accepting the baker’s definition of “wedding cake” is that it has nothing to do with the cake, and everything to do with the people buying it. If we allow that, what stops the restauranteur from defining “dinner” to mean “a meal eaten by white people”? It’s his sincere belief, let’s imagine, that only whites are capable of civilized dining. How is that definition any less legitimate than the one you’re allowing the baker to confect?

              • Ken Kukec
                Posted December 10, 2017 at 9:19 am | Permalink

                I’m not proposing outré hypotheticals; I’m asking how a rule of constitutional law that allows the baker to give vent to his religious biases in this case would not also allow reach these other cases. Can you propose a rule that distinguishes these circumstances?

              • mirandaga
                Posted December 10, 2017 at 2:33 pm | Permalink

                If you look up “wedding cake” in Google Images, you’ll see that it’s a very specific and recognizable product designed for a very specific purpose—namely, a wedding. A broadminded baker might say, “Sure, I’ll make you a wedding cake and you can use it for any occasion you choose—no skin off my nose, and I can use the business.” Our baker is saying, “We make wedding cakes only for weddings, and we don’t recognize the occasion that you’re intending to be a wedding. If you want to buy something off the shelf and use it as a wedding cake, that’s fine. But we will not make you a wedding cake to be used for something that we don’t consider a wedding. I’m sure you can find other bakers in town who will.” End of story.

                A comparable situation might be a funeral home refusing to cremate someone because, for religious or other reasons, they define a funeral as a ceremony at which someone’s body is interred and therefore don’t consider that cremation constitutes a funeral.

                Too outré?

              • Gregory Kusnick
                Posted December 10, 2017 at 2:50 pm | Permalink

                So if I go into his shop and order a wedding cake to be served at a birthday party, your prediction is that he’ll refuse me on precisely the same grounds he refused the gay couple, because the occasion doesn’t meet his definition of a proper wedding?

                I’ll take that bet.

            • Ken Kukec
              Posted December 11, 2017 at 9:15 am | Permalink

              @mirandaga

              That’s fine for this case. but any decision by SCOTUS will set a precedent of much broader application. What happens if the next baker has religious sensibilities that would be offended by selling the gay couple a cake off the rack, that boxing it and ringing up the sale would be too much “participation” for his religion to tolerate? And who’s to say that the cook or waiter doesn’t have equally genuine religious compunctions against serving gay people in a restaurant?

              Your standard isn’t too outré; it’s just not a feasible legal test that lends itself to broad application.

  36. Posted December 8, 2017 at 3:23 pm | Permalink

    I’m with the baker. I don’t think a Christian/atheist printer should be forced to print fliers he disapproves of because of their religious/antireligious content, and I think this is analogous.

  37. Curtis
    Posted December 8, 2017 at 3:31 pm | Permalink

    I have been in favor of gay marriage for decades but I think the baker is morally right for standing up for his bigoted beliefs. However, I think the law is in against him.

    Personally, I find the gay couple despicable for trying to force the baker to go against his religious belief when they have other options. I also find it unlikely that they would really want a cake by someone who disapproves of their actions.

    I also find the intolerance shown by people allegedly for “tolerance” abhorrent and self defeating.

    • Historian
      Posted December 8, 2017 at 3:47 pm | Permalink

      Let’s take your view of the principles involved in this case back to a southern lunch counter in 1956. Here is what millions of segregationists thought, often based on religious beliefs:

      “Personally, I find the black people despicable for trying to force the lunch counter owner to go against his religious belief to serve blacks when they have other options. I also find it unlikely that the black people would really want to eat at a lunch counter owned by someone who disapproves of their actions (advocating integration).”

      Do you believe in the above paragraph? If not, what’s the difference?

      • Curtis
        Posted December 8, 2017 at 4:36 pm | Permalink

        That is an excellent question which I can answer but it leads to a harder one which I cannot.

        There is a difference between serving someone in a restaurant (not a core part of religion) and participating in a sacred rite that is found repugnant by your religion.

        The harder question is what does this say about a baker who is in a religion that finds interracial marriages repugnant? My not very satisfying answer is that interracial marriages have been legal (but rare) for centuries while the first gay marriage in the US was in 1975. I think the historical precedence matters on whether it is a core part of the religion or not.

        Thank you challenging me and making me think.

        • Ken Kukec
          Posted December 8, 2017 at 6:19 pm | Permalink

          Nobody’s asking the baker to participate “in a sacred rite.” They’re not invited to the ceremony and reception, asked to toast the bride and groom — anymore than when they bake a birthday cake, they show up to sing “Happy Birthday,” Bake the cake, push it across the counter, and take the goddamn money, already.

          Also, state anti-miscegenation laws prohibiting interracial marriages in the US were struck down only in 1967. Your “historical precedence” standard would merely enshrine in religion those prejudices that have been entrenched the longest.

  38. Brian salkas
    Posted December 8, 2017 at 4:19 pm | Permalink

    I’m ok with it as long as he would not serve any cake with a gay message regardless of the sexual orientation of the people buying it. If he denied them service because they are gay, that is indefensible, but if he just said that the he wont make a cake that says something gay, then I think he has a right not to make that cake.
    However if I were the baker, I would bake the gayest cake ever if the customer wanted me to, and I find it very petty and ridiculous that this man refused to bake the gay cake. Nonetheless, I think it is within he rights to be a jerk and not bake the cake as long as he is discriminating against the message on the cake and not the people he refused to serve.
    To make this crystal clear, if the message on the cake was simply “just married” and it happened to be two gay men who wanted the cake, then I see no reason why he should not be required to serve them.

    • Ken Kukec
      Posted December 8, 2017 at 6:23 pm | Permalink

      How about “Congratulations Adam & Steve”?

      Also, “The Gayest Cake Ever” would make a cool name for a short story. 🙂

  39. Posted December 8, 2017 at 4:37 pm | Permalink

    Not sure if this has been mentioned, but Brian Leiter posted a link to the brief for the respondents which is well worth reading. In particular, I think this paragraph expresses well when refusal to sell is unlawful:

    Colorado does not regulate the creation of messages. An artisan may refuse to create a message if he would refuse to create such a message for any customer. Thus a Colorado artisan may decline to create for any and all customers messages saying “God Bless This Gay Marriage” or “The South Will
    Rise Again,” for the simple reason that the Colorado law does not seek to regulate messages but to prohibit discrimination against customers. But if a cakemaker willingly creates and sells cakes saying “God Bless This Marriage,” he cannot decline to complete such a sale upon finding out that the purchaser or user is gay.

    http://www.scotusblog.com/wp-content/uploads/2017/11/16-111_bsac_floyd-abrams.pdf

    So it really boils down to a matter of fact; did the baker discriminate against a particular group of customers? If yes, he *should* lose the case. If he refused to bake a cake with “God Bless This Gay Marriage” because he never sells such a cake to anyone, he could get away with it. But the brief says:

    The essence of petitioners’ argument is that they will appear complicit in respondents’ expressive conduct by supplying merchandise for it—that they will be understood to endorse same-sex marriage by serving same-sex customers.

    So it seems to be a clear case of discrimination.

    • Brian salkas
      Posted December 8, 2017 at 5:18 pm | Permalink

      “So it seems to be a clear case of discrimination.”

      Thanks for clearing that up for us, based on what you have said and the link you provided, this does NOT sound like the “cake artist” was refusing to bake a specific cake, but was indeed refusing to serve a specific customer based on the costumer’s sexuality regardless of the message on the cake.

    • Gregory Kusnick
      Posted December 8, 2017 at 6:45 pm | Permalink

      Another quote from the linked brief:

      The stipulated record, as it comes to this Court, reflects that petitioners “categorically refused” to accept the cake order without any discussion of “what the cake would look like,” and that they were “not asked to apply any message or symbol to the cake.” Pet. App. 75a. This is thus not a case in which the artisan has been asked to create a message he does not otherwise produce for commercial purposes.

      This seems to undercut claims by some commenters here that the cake would have “endorsed gay marriage” and that the baker has a right to refuse for that reason.

  40. Liz Strahle
    Posted December 8, 2017 at 4:52 pm | Permalink

    Any Christian worth his salt knows the message of Jesus was love. The baker is trying to have his cake and eat it too.

    • Craw
      Posted December 8, 2017 at 5:02 pm | Permalink

      I think we all agree the baker is being an ass. Even asses have rights though. The real question is one of precedent. If the baker can be forced, then who else can be, under what circumstances?

      • Liz Strahle
        Posted December 8, 2017 at 6:00 pm | Permalink

        I think it is a relevant issue. Christianity as a religion misinterpreted and is now asking for that misinterpretation to be protected. On the matter of forcing someone, especially an “artist” (for wedding cakes usually they are artists), I don’t think you can force someone to be inspired to create.

        • Filippo
          Posted December 9, 2017 at 6:02 am | Permalink

          “I don’t think you can force someone to be inspired to create.”

          Seems it would be easy enough for the artist to do such a bad job that the buyer wouldn’t pay. The artist wouldn’t charge, and that would be the end of it.

  41. ThyroidPlanet
    Posted December 8, 2017 at 5:23 pm | Permalink

    Why can’t they find another baker?

    What if the baker feels uncomfortable with participating in gay activities?

    Off the top of my head :
    It seems this is a trivial problem to resolve, but instead is a means to make a statement- all well and good – but I don’t see it teaching us any deep insights into law, or morals…

    • Gregory Kusnick
      Posted December 8, 2017 at 5:39 pm | Permalink

      “Why can’t they find another baker?”

      This is exactly the argument used by opponents of morning-after contraceptives: just find another pharmacist — even if in practice that means driving hundreds of miles and crossing state lines to find one willing to serve you.

      • ThyroidPlanet
        Posted December 8, 2017 at 6:26 pm | Permalink

        I think that’d constitute an exception

        At any rate, it’s nobody’s fault if for some reason there’s only one baker within100 miles. And there’s nothing stopping a competing baker to cone to town and take the business.

        All in principle of course – ‘course there could be an anti-gay citizenry that shuts that down…

      • Ken Kukec
        Posted December 8, 2017 at 6:28 pm | Permalink

        It was also Kim Davis’s answer — find another Kentucky clerk to issue your marriage certificate.

        • Posted December 8, 2017 at 7:34 pm | Permalink

          We all agree, I hope, that the government absolutely cannot discriminate. The issue is our rights as the people.

          • Posted December 8, 2017 at 7:35 pm | Permalink

            And I do not think anyone has the right to compel another to create a custom cake f

            • Ken Kukec
              Posted December 8, 2017 at 10:58 pm | Permalink

              Cannot be compelled to create any type of customized cake, even if they hold themselves out to the public as cake customizers?

              • Posted December 9, 2017 at 3:56 pm | Permalink

                I think so, Ken. I expect that is what this case will hinge on.

                Suppose you are in a custom or bespoke business and a potential customer asks you to make something that you view as utterly repellent, say make a cake that looks like a penis (or fill in your own blank). Do you lose the right not to do something you find abhorrent just because you are in a custom business? Now you and I may not find a “gay wedding cake” (whatever that might look like) abhorrent but Phillips does, and I guess that is his right. I doubt that the court wants to be the arbiter of what is and what is not bad taste.

                However, if Phillips has a catalogue of custom cake designs and the gay couple pointed to one and asked him to make one for them and he refused, then I think he hasn’t got a case. There would have to be something objectionable about the cake design they requested in order for him to refuse.

              • Posted December 9, 2017 at 4:09 pm | Permalink

                I don’t know, but I am guessing the customers requested that Phillips put a same-sex couple on the top of the cake.

              • Ken Kukec
                Posted December 9, 2017 at 4:57 pm | Permalink

                So it’s not just a matter of “participating” by making a customized cake, but there has to be some express endorsement of same-sex marriage in order for him to refuse?

                What if they simply ask that the cake say “Good Luck, Adam & Steve” (similar to the way the baker may have made hundreds of other cakes that say “Good Luck, Adam & Eve”) — is that sufficient?

              • Posted December 9, 2017 at 5:25 pm | Permalink

                I don’t know. But I expect Phillips would claim that being asked to write “Good luck, Adam and Steve” on the cake is equivalent to his being asked to endorse gay marriage.

                It is unfortunate that a divisive case like this was pushed so soon. Obergefell v Hodges was decided by a narrow majority and with tenuous Constitutional reasoning. Easily overturned after Kennedy departs. This case gives fodder to the opponents of the decision.

  42. Posted December 8, 2017 at 5:28 pm | Permalink

    My libertarian instincts are to support the baker, even though his beliefs are asinine. But if SCOTUS finds for the gay couple, I won’t lose any sleep over it. I think it will come down to whether Justice Kennedy thinks a custom cake is expression and protected by the First Amendment.

  43. chris moffatt
    Posted December 8, 2017 at 5:45 pm | Permalink

    Let’s look at this rationally. Should a power company deny service to those whom its CEO does not like or approve? How about a telephone company? or an ISP? or a hospital ER? or an airline? or a government? A UN agency? A service to the public must be a service to all the public.

    These would all be first amendment cases – or would they be? It seems to me that recently SCOTUS has been remarkably oblivious of the difference between a company and the people who manage that company. The discrimination we see so often is NOT discrimination by the legal company entities it is discrimination by the bigots who manage those companies. This is not even a very fine distinction.

  44. claudia baker
    Posted December 8, 2017 at 6:14 pm | Permalink

    Sullivan says: ‘It smacks…of a contempt for religious faith.” So what? I have contempt for religious faith. A “faith” doesn’t deserve my respect.

  45. Posted December 8, 2017 at 6:24 pm | Permalink

    I am not so sanguine about that. My poll vote was ‘No’ on the first and ‘Yes’ on the second – I fear that the SCOTUS will continue pandering to the orange draft dodger’s base. They just refused to hear the Houston case that blocks giving any benefits to same-sex spouses; basically, ‘just because we let you get married doesn’t meant that you are “really” married.’

  46. Liz Strahle
    Posted December 8, 2017 at 7:04 pm | Permalink

    I’m six and one half baker’s dozen to the other on this and the +1 is with the gay couple.

  47. David Duncan
    Posted December 8, 2017 at 7:13 pm | Permalink

    People should be allowed to discriminate. If Jerry was a baker and someone wanted him to bake a cake with “In the beginning, God…” on it (this has appeared on a US postage stamp) should he be compelled, as an evolutionist, to make it? Hell no.

    Why the hell do cases like this clog up the court system. The customers should just go somewhere else.

    • eric
      Posted December 8, 2017 at 7:54 pm | Permalink

      You are getting the issue wrong. The baker is free to refuse to write specific content messages on his cake…as long as he refuses to write the same content for everyone. What he’s not free to do is offer a service to straights but refuse to give exactly the same service to gays.

      So the actual analogy to the current case would be if Jerry the baker happily produced “In the Beginning…” cakes for atheists (maybe because the irony tickles him), but refuses to produce his same famous “In the beginning…” cakes for Christians. That would be discriminatory, and illegal. Either he bakes “In the Beginning…” cakes for all customers, or none of them.

      • Posted December 9, 2017 at 2:26 am | Permalink

        Someone photoshop that into a meme, quick!

      • Posted December 9, 2017 at 11:22 am | Permalink

        I’m not sure that analogy is correct. That implies that the baker would decorate a cake with a pro-gay message on it as long as the person purchasing the cake was straight. And if I understand the baker’s position correctly, I don’t think he would.

        • eric
          Posted December 9, 2017 at 7:57 pm | Permalink

          Yes the analogy is imperfect, because the actual legal case has nothing to do with the writing on the cake. That was a different, earlier case. This one is about a baker refusing to make any sort of wedding cake for them at all, even one with no words icing’ed on to it. The baker has stated that he would sell them a pre-made cake (but wedding cakes are never pre-made, so this is equivalent to saying no wedding cakes), or a cake for another occasion (again, = no wedding cake at all). So his offer was to provide them with two alternate services, neither of which was a wedding cake.

  48. Posted December 8, 2017 at 7:13 pm | Permalink

    I didn’t vote on one because I’m conflicted. I voted “yes” on two because I have no “faith” in our predominantly right leaning supreme court judges.

    Despite laws to the contrary, business people have always found ways around serving certain groups of people. “No shirt, no shoes, no service”, for example. “There’s no room in the inn” for another. Examples have already been given above of ways one can get around serving people you don’t choose to serve.

    I don’t know which far-right religious moneybags offered to support this baker in the fight, but there’s no doubt in my mind that he is being used.

    • mordacious1
      Posted December 8, 2017 at 9:29 pm | Permalink

      What group is not being served by the no shoes/ shirts rule? The under clothed?
      Put your shoes on and come in.

      • Posted December 9, 2017 at 1:44 am | Permalink

        But… why?

        I don’t usually go barefoot outside cause who knows what’s on the ground but I know people that do because they prefer being barefoot. Why should they have to wear shoes to receive service?

        • infiniteimprobabilit
          Posted December 9, 2017 at 4:39 am | Permalink

          I usually go barefoot because I prefer it. (I used to wear shoes to the office though).

          I’ve been asked to leave one cafe (for ‘health reasons’ – which I did, it was overpriced anyway); and one shopping mall for ‘health & safety’ (i.e. bullshit) reasons. I went and put some sandals on.

          I wouldn’t argue about it. If I’m catching planes or trains I wear sandals because the apparatchiks are often paranoid about ‘health & safety’.

          If somebody tried to make me wear stupid Nikes or something to walk on one of our bush tracks, now, then they’d get an argument…

          cr

          • Posted December 10, 2017 at 7:06 pm | Permalink

            I am always a “barefoot girl” at home (now, for instance.) I wear sandals or shoes outside the house, having once as a child when barefoot stepped on a nail that went almost all the way through my foot. Hopped to the house to avoid putting that foot down on the soil.

            There are many, many people at present that I wouldn’t want to see in a restaurant (or anywhere else) without a shirt (including me!) We may all be lovable, but many of us are fat, flabby or hairy.

            Remember the days when restaurants required men to wear suit coats and ties? Are there still places like that.

            • infiniteimprobabilit
              Posted December 12, 2017 at 12:42 am | Permalink

              I did that (the nail thing) when I was about 5, in West Australia. And hence arises my phobia for sharp pointy things (which I am very slowly getting over). Not from the nail, but from the fact that after it was extracted with a commendably modest amount of yelling and screaming – and I thought ice cream and sympathy were in order – I got hauled off to the doctor’s for a tetanus shot – penicillin in those days. Now I was a shy kid who thought letting anyone else see my dangly bits was the ultimate humiliation.
              And guess where the tetanus shot was? In my butt. With a bloody enormous needle. Intramuscular – which hurts like *hell*. And my butt muscles clenched so tight the needle stuck and the quack had to unscrew the syringe and go off in search of pliers to yank it out.
              So there I was, doubled over, screaming in agony and dying of embarrassment and humiliation, in front of everybody in the surgery.

              But I don’t think the sponge rubber sole of a jandal would have made any difference to the nail.

              cr

        • Filippo
          Posted December 9, 2017 at 4:16 pm | Permalink

          Would you say the same for shirts, including women?

          • Posted December 10, 2017 at 12:09 am | Permalink

            Sure, especially at the beach or something. It’s a bit strange in other places perhaps and with women but that’s just one area where culture could change.

            I once went to a hot spring in Germany where from a certain point you had to be naked. They also had a restaurant so it was interesting to go to a restaurant just wrapped in a towel.

            • Filippo
              Posted December 10, 2017 at 12:30 pm | Permalink

              “Sure, especially at the beach or something . . . .”

              Am I missing something? Wasn’t the topic what one ought to properly wear, or be forced or not forced to wear (shirts, shoes, trousers, etc.) in an establishment like a restaurant?

              After all, there are places where one might not be terribly surprised to see women topless, “especially at the beach.”

              • Posted December 11, 2017 at 6:38 am | Permalink

                I wasn’t very clear. By at the beach in this context I also meant ships and restaurants that are right by the beach and so would cater to beach goers.

    • Posted December 9, 2017 at 2:27 am | Permalink

      I didn’t vote on one because I’m not American.

    • Posted December 9, 2017 at 5:43 am | Permalink

      The “no shoes” sign was just one example. Some stores have signs indicating that they have the right to refuse service to one category or another of patrons. As long as they’re careful how they state or do it, businesses now do not serve all people if they can do it discreetly.

      We have never gotten over discriminatory behavior regardless of the law. There are still places in the U.S. where certain people may be not only not served, but mistreated if they come to town and stay after dark.

  49. Posted December 8, 2017 at 7:56 pm | Permalink

    I didn’t respond to the poll, as my opinion about it is a bit unusual and doesn’t fit into the choices provided. I think if a baker simply advertises that they are a baker and they’re open for business, then they have no right to then discriminate; declaring that you are open for public commerce means you have, effectively, made an oral contract with any potential customer, and you can be held to that contract. But if the baker explicitly limits that contract – in their advertising, for example, and on their signage – with a clear statement that they do not perform specific services (“we do not bake cakes for same-sex weddings”), then they have every right to do so, and are under no obligation to do anything they don’t want to do. I think this is actually deeper than the First Amendment; it actually goes to the right not to be enslaved. And I think it ought to extend not only to refusing to bake cakes for same-sex weddings, but also to simply refusing to serve black people because you’re a racist, or to any other kind of prejudice at all. If you’re willing to state it up front and in public, then you are under no obligation. Not a popular position; but believing in the fundamental importance of freedom takes one in strange directions. :-> But I think it also leads to a fairly positive outcome for all concerned. The religious wingnuts get to be religious wingnuts, without anybody forcing them to violate their (ridiculous but deeply held) beliefs; and everybody else gets to say “eww!” and boycott their business. The final outcome is probably that the baker goes out of business, unless there are so many other wingnuts in the community that they can sustain the wingnut baker all by themselves. And even if that happens, hey, at least all the rest of us can just avoid them, since they have clearly labeled themselves and segregated themselves away from the rest of society. To me, that seems like a pretty good outcome – maybe the best that can be hoped for.

    • Gregory Kusnick
      Posted December 8, 2017 at 8:10 pm | Permalink

      “we do not bake cakes for same-sex weddings”

      How is it any of the baker’s business what the cake will be used for after it leaves the store? Doesn’t that violate the customer’s freedom to do what they please with their own property?

      The baker can legitimately refuse to enter into an agreement to make a cake with a particular message on it. But once the deal is done and the money changes hands, his right to dictate what happens to the cake vanishes.

      • Posted December 8, 2017 at 8:22 pm | Permalink

        I certainly think one has a right to re-sell a cake that one has bought, to a same-sex couple getting married if one wishes. Sure. But that’s completely orthogonal to the question at hand here, which is: should a same-sex couple have the right to walk into a baker’s business, say “hi, we’re a same-sex couple and we want to buy a cake for our wedding”, and force that baker to bake a cake for their wedding against the baker’s wishes?

        • Gregory Kusnick
          Posted December 8, 2017 at 8:41 pm | Permalink

          You asserted that the baker has a right to refuse to bake cakes “for” same-sex weddings. I’m saying that right is vacuous, because (a) it’s trivially subverted, and (b) in the context of the baker’s business, there are no cakes “for X”; there are just cakes, of various styles and flavors and decorative motifs, which the purchasers are free to use as they see fit.

          So “we don’t make cakes for same-sex weddings” collapses to “we don’t make this style of cake for that kind of customer”. The decision of what the cake is for was never the baker’s to make.

          • Posted December 8, 2017 at 9:16 pm | Permalink

            The fact that a right is trivially subverted does not mean it is not a right. As for (b), this is of course just your opinion. If I sold guns, I would most certainly be interested in whether a customer wanted to buy the gun to do target practice or to commit murder. And in any case, I think “we don’t make this style of cake for that kind of customer” should also be within a baker’s rights, as long as it is announced publicly as that baker’s policy; see my original post above.

          • Posted December 9, 2017 at 10:29 am | Permalink

            The baker argues: 1) that producing a custom cake for a gay wedding constitutes participation in the wedding;
            2) producing a cake with a pro gay marriage message constitutes speech.

            Neither participation nor speech may be compelled. That is the law and is not in dispute. The question is whether the production of a custom wedding cake constitutes either participation or speech.

            • Ken Kukec
              Posted December 9, 2017 at 5:04 pm | Permalink

              “Participation” may not be compelled? What’s the source of that right?

              If that’s the case, then any restaurateur who has a religiously based objection to same sex marriage can refuse to serve a gay couple (or religiously based white-separatist views, refuse to serve an interracial couple).

              • Posted December 9, 2017 at 7:33 pm | Permalink

                No, Ken, because serving someone a meal is not participating in their wedding.

                It’s clear that before launching into Outrage! orbit, you made no effort to inform yourself of either this particular case or the relevant laws. I’m not about to tutor you on those. Go to Scotusblog’s page on the case for several informative essays pro and con and neutral. You should also definitely read the baker’s petition, and I especially recommend Volokh & Carpenter’s amicus curiae (which argues against the baker, btw.)

              • Ken Kukec
                Posted December 9, 2017 at 10:24 pm | Permalink

                How is the baker’s “participation” any different from that of a chef required to cook a meal for a gay couple who make dinner reservations to celebrate their anniversary at his restaurant?

                There is no “right” to opt out of “participating” in the observance of duly enacted law — and anti-discrimination laws, including the Civil Rights Act of 1964, have been duly enacted.

              • Ken Kukec
                Posted December 9, 2017 at 11:11 pm | Permalink

                Also, I’m neither outraged nor ignorant of the facts and law of the baker’s case. You’re advocating for a new rule of constitutional law, and I’m trying to test its limits, to see if it conflicts with existing law and to determine what its impact might be on future cases. It’s what lawyers and judges do with any new proposed precedent.

        • Ken Kukec
          Posted December 8, 2017 at 9:01 pm | Permalink

          How is that any different from a black college student sitting down at the Woolworth’s lunch counter in Greensboro NC in 1960 and ordering a cheeseburger?

          • Posted December 8, 2017 at 9:17 pm | Permalink

            Ken, not sure whether you’re addressing Gregory or me. As far as my opinion goes, see what I wrote above; in short, I don’t think it is substantively different.

            • Ken Kukec
              Posted December 8, 2017 at 11:06 pm | Permalink

              So McDonald’s or Burger King could just post a sign on the door saying “No colored or Irish served”?

              You do realize that you’ve just rolled back 70 years of advances made by the Civil Rights movement, don’t you?

              • Posted December 8, 2017 at 11:23 pm | Permalink

                “So McDonald’s or Burger King…” Yep. And then every decent person could boycott that business. Seems pretty straightforward to me.

                “You do realize that you’ve just rolled back 70 years of advances made by the Civil Rights movement, don’t you?” Nope. As the current state of the country shows quite vividly, those advances were largely illusory. There is still plenty of racism to go around, and trying to force people not to be racist doesn’t work. In any case, people have a right to be racist; you and I may not like it, but that is immaterial. Using the force of the government to make other people behave the way you think they ought to behave is wrong.

              • Ken Kukec
                Posted December 9, 2017 at 8:13 am | Permalink

                … then every decent person could boycott that business.

                You mean, like happened during the Jim Crow era? That era reigned for nearly a century, and wasn’t rolled back by decent persons boycotting; it was rolled back only through the intervention of the US congress and courts.

                If you want to the privilege of running a business of public accommodation in the US, you have to forego the personal liberty of discriminating invidiously against potential customers on the basis of race, religion, ethnicity, etc.

                That’s the law, as well it should be.

              • Posted December 9, 2017 at 7:13 pm | Permalink

                You are assuming what you need to prove: that the progress we have made in the U.S. (such as it is) is the result of holding guns to people’s heads and forcing them to behave in the manner you want them to behave. That is nothing but an evidence-free assertion from you. I think the whole sweep of human history indicates, to the contrary, that as MLK Jr. said, the arc of the moral universe is long, but it bends toward justice. Nobody changes their mind as a result of having a gun held to their head; if anything, that causes people to become entrenched and stubborn in their views. And in any case, using force to make people act according to your particular morality is quite simply wrong. Their racism/sexism/homophobia is also wrong, of course. But two wrongs don’t make a right, and the way to change people’s minds is with reason, not at the point of a gun.

              • Ken Kukec
                Posted December 9, 2017 at 10:14 pm | Permalink

                I said nothing about “guns.” But if you know anything about the Jim Crow era, you should know that it took the force of law to end segregation in the US south. Jim Crow prevailed for a century, with no end in sight, until passage of the Civil Rights Act of 1964. And black folk in the south were prevented from voting until the Voting Rights Act of 1965. And it took the Fair Housing Act of 1967 to make inroads into segregated neighborhoods. That’s why Dr. King was a staunch advocate for that legislation. That’s hard historical fact, not speculation.

                And since you raised guns, you realize, don’t you, that southern schools had to be desegregated at the point of a bayonet? Ike had to send the 82nd Airborne into Little Rock to enforce Brown v. Board of Education, and JFK had to send troops to desegregate the University of Alabama and Ole Miss. Do you think they were mistaken to do so, that they should have simply waited until southern whites decided to desegregate on their own?

              • Posted December 9, 2017 at 10:37 pm | Permalink

                “I said nothing about “guns.”” … “And since you raised guns, you realize, don’t you, that southern schools had to be desegregated at the point of a bayonet?” Uh, that’s precisely why I said “at the point of a gun”. When the government uses “the force of law” it is always, in the end, at the point of a gun.

                “Do you think they were mistaken to do so, that they should have simply waited until southern whites decided to desegregate on their own?” Everything associated with the government or funded by the government should of course have been desegregated – should not have been segregated in the first place, of course. But that’s not what we’re talking about in this thread; we’re talking about using the force of law – the point of a government gun – to force private business owners to serve customers they don’t want to serve. And in that case, yes, I think the government should not have done that; I think that was an overreach, and unjust, although obviously done with the best of intentions. People should be free to be racists if they want to be. And other people should be free to point, and laugh, and unfriend, and boycott. Nobody’s morality should be imposed on other private citizens by government force. If you disagree, I am curious what you will say when Trump and his minions make abortion illegal in the U.S., for example. When they do that, they will just be doing precisely what you advocate doing – imposing their own personal morality on everyone, at the point of a government gun. It seems to me you will then have no substantive grounds to object. So be careful what you wish for.

              • Ken Kukec
                Posted December 10, 2017 at 9:43 am | Permalink

                So your answer is yes, congress should’ve sat on its hands as even more decades went by while black US citizens travelling in the south could not buy a meal, could not rent a room, had to squat on the side of the road like animals to relieve themselves?

                The 14th Amendment, adopted in the wake of the Civil War, guarantees to all, regardless of race, the equal protection of the law and the “privileges and immunities of all citizens of the United States.” Section 5 of that amendment authorizes congress “to enforce, by appropriate legislation, the provisions of this article.”

                The federal government provides the legal foundation and essential infrastructure (such as the interstate highway system) by which interstate commerce can be conducted in this country. I do not think it is too much for congress to require businesses that benefit from that foundation and infrastructure be open to all citizens regardless of race, religion, ethnicity, sexual orientation, or handicap.

                Do you really think the Civil Rights Act of 1964 was a bad thing, an abuse of congress’s authority? Are you in favor of its being repealed?

              • Posted December 10, 2017 at 6:19 pm | Permalink

                Here’s an NYT article from two days ago: https://www.nytimes.com/2017/12/09/us/police-shooting-video-arizona.html?smid=fb-nytimes&smtyp=cur . So, thank goodness we solved that pesky racism problem with those laws we passed. :->

                Do I think the Civil Rights Act of 1964 was a bad thing? I think it’s complicated. I don’t doubt that it did some good. I also don’t doubt that in some ways it was counterproductive. As I’ve said repeatedly, using force to try to change people’s beliefs simply doesn’t work. I am not convinced that people in the Deep South are any less racist now than they would be in an alternate reality in which the Civil Rights Act of 1964 had never existed. But that whole question really comes at the issue from a consequentialist perspective, and I am not a consequentialist, so I like your second question better: Was it an abuse of Congress’s authority? Yes, I think so. Forcing a person to do business with someone they don’t want to do business with is wrong. Using words to convince people that their racism is bad is the right approach. Perhaps if we had focused on that approach, instead of trying to legislate morality at the point of a gun, we would be in a better situation now than we are. Obama said a number of times that we need, as a nation, to have an actual conversation about race. That is what we have never done – instead, we have tried to force other people to simply adopt our views about race by force. And it hasn’t worked. Am I in favor of it being repealed? Yes. It continues to be the case that trying to force people not to be racist is useless and even counterproductive. It would be much more useful, in my opinion, for the whole world to see some businesses shift back to declaring themselves to be open to whites only. The wave of revulsion and boycotts and protests, and the resulting national conversation about the racism that still festers in America, might actually do some good. Covering that racism up with a band-aid looks pretty but solves nothing.

                You paint quite a straw man with your words: “So your answer is yes, congress should’ve sat on its hands as even more decades went by while black US citizens travelling in the south could not buy a meal, could not rent a room, had to squat on the side of the road like animals to relieve themselves?” That is not, of course, the alternative I propose, and if you think it is, you’re not paying any attention to my words at all. I’m actually quite radical in my views about racism in America. I think the U.S. government ought to pay reparations for slavery to every black person in America who descends from slaves. I think the Federal government ought to take over police departments in which officers gun down unarmed black men, and run them for as long as needed. I think public schools ought to be desegregated much more aggressively than they are now; in much of the country de facto segregation continues. Etc. But I don’t think forcing private citizens to pretend they’re not racist, at the point of a government gun, solves anything. And so far you haven’t actually said anything that addresses that objection, it seems to me. If you want to actually engage with the argument I’m making, I’m all ears. If you continue to just throw up straw men, I’m done.

              • Ken Kukec
                Posted December 11, 2017 at 9:05 am | Permalink

                That wasn’t a straw man; that was an accurate depiction of what the Jim Crow south was like before passage of the the Civil Rights Act of 1964. And the civil rights statute wasn’t enacted to change people’s minds; it was enacted to change people’s actions. Bigots remained free to hate people on account of their race or religion or ethnicity after passage of the act. They were simply unable to refuse them service in places of public accommodation that benefit from the legal foundations and infrastructure provided by society and the US government.

              • Posted December 11, 2017 at 7:07 pm | Permalink

                “That wasn’t a straw man; that was an accurate depiction of what the Jim Crow south was like before passage of the the Civil Rights Act of 1964.” The straw man was, of course, your claim that that state of affairs would have continued on, unchanged, for decades, if it weren’t for the Civil Rights Act of 1964. As I have pointed out above, you are simply assuming what you need to prove: that the progress made in race relations in the U.S. since the Jim Crow era (such as it is) is due to forcing people, at the point of a government gun, to act according to a government-dictated morality, rather than simply being natural social progress. You continue not to address any of my arguments, and to simply insist, without offering any evidence, that using force to police morality leads to social progress, and is thus moral (the end justifying the means, I gather). Well, we’re getting nowhere, so I’m done arguing with you. Feel free to have the last word. Buh-bye.

  50. Mark Joseph
    Posted December 8, 2017 at 8:44 pm | Permalink

    I have two comments, both in the form of other people’s observations.

    Here’s one.

    Here’s the other.

    • mordacious1
      Posted December 8, 2017 at 9:35 pm | Permalink

      For the 2nd one, yes, if he knowingly sells a gun to a murderer, he participated in the murder.

  51. Marina
    Posted December 8, 2017 at 9:05 pm | Permalink

    Mark Joseph, great comments: they put the blame where it should be. As for me, if a baker doesn’t want to bake my cake, I’m going to look for a different one. If a minister refuses to celebrate my wedding or a school refuses my children I put up an endless fight.

  52. Jon Gallant
    Posted December 8, 2017 at 10:48 pm | Permalink

    Introducing the issue, our host wrote: “Nevertheless, my own view is that the gay couple should prevail, for one could use one’s religion to discriminate against other things that seem wrong, like a Christian baker choosing not to make a Bar Mitzvah cake for a Jewish family.”

    There have undoubtedly been many Christian bakers inclined this way over the centuries. But for us Jews, this particular form of the problem has not been near the top of our concerns for quite a long time—let’s say roughly since the Babylonian Captivity 2600 years ago.

    I found Andrew Sullivan’s comment on this case to be eminently sensible.

    • Ken Kukec
      Posted December 9, 2017 at 8:23 am | Permalink

      “But for us Jews, this particular form of the problem has not been near the top of our concerns for quite a long time—let’s say roughly since the Babylonian Captivity 2600 years ago.”

      Really? Because I recall a lot of more-recent, 20th-century litigation putting an end to “No Jews Allowed” country clubs and swimming pools, and putting an end to the Jewish quotas at private colleges.

      • Jon Gallant
        Posted December 9, 2017 at 2:12 pm | Permalink

        I wrote “not been near the top of our concerns” regarding the hypothetical request for a cake for a bar mitzvah. Jewish quotas for college admission is another matter, inasmuch as such quotas had major effects on the applicants’ life-chances. As for the country club admissions, I have to tell you THAT wasn’t really high on the worry list in my own mishpokha—there were quite a few things ahead of it.

        • Ken Kukec
          Posted December 9, 2017 at 5:28 pm | Permalink

          There are, of course, different degrees of seriousness, Jon, but it is all the same essential issue — private discrimination in places of public accommodation (and, thus, should be covered by the same rule).

          Hope your mishpokha hasn’t had too rough a go of it of late. 🙂

  53. Thanny
    Posted December 9, 2017 at 1:14 am | Permalink

    I prefer to leave religion out of the equation altogether, and pretend that it’s a baker who doesn’t want to make the cake just because he doesn’t like gay marriage. It’s not really freedom of religion that’s at stake here, but freedom of association.

    Any liberal must start from the premise that it’s his right to refuse service to anyone on any grounds.

    If you don’t start from there, you aren’t a liberal.

    But then you have to consider the full consequences. Compare it to another service, such as that provided by a doctor. Same starting premise – right to refuse for any reason – but now the consequences are easier to see.

    The pure libertarian view is that the person seeking service just needs to go elsewhere, and find someone who will provide it. And the really pure libertarian view is that holds true even if the next provider is hundreds of miles away – move, says that purest of libertarian, to a place where you can get service.

    It’s at that point where the issue takes a turn, for me. I don’t think it’s reasonable to force someone to move just to get medical service. If you’re going to offer such an important service to the public, you must take on certain obligations beyond your own whims.

    But we’re not talking about a doctor refusing potentially life-saving service, but a baker refusing a cake. So it’s moving well into First-World-Problem territory. Does anyone have the right to a damn cake?

    So I see the full value in compelling certain public service providers to provide their services regardless of their preferences. You give up freedom of association when you put out a shingle.

    But does that extend to a baker? There is absolutely nothing essential about a cake. No one needs a cake.

    Whichever way this decision goes, someone’s rights are being violated. Anyone who doesn’t acknowledge that is also disqualified from being a liberal.

    I’d actually prefer something of a compromise. Anyone providing a non-essential service (though defining that is another can of worms) can discriminate arbitrarily, but only if there’s direct competition. So if there’s at least one other competent baker, let the guy refuse. But if both bakers refuse, they’re both on the hook for fines.

    But that’s not going to happen.

    • Historian
      Posted December 9, 2017 at 12:28 pm | Permalink

      “Any liberal must start from the premise that it’s his right to refuse service to anyone on any grounds.”

      “If you don’t start from there, you aren’t a liberal.”

      ————-
      You seem to be confusing liberal with libertarian. Each has very different views on this topic. You make reference to the latter in the rest of your comment. No modern liberal would agree with your premise, but the libertarian would.

      • Thanny
        Posted December 16, 2017 at 2:45 pm | Permalink

        No, you are confusing libertarian with Libertarian.

        All liberals are libertarian. If you are not libertarian, you are not liberal.

        While political views can’t be completely reduced to simple concepts, there is still a lot of explanatory power in the political compass. The left/right axis is about fiscal policy, where liberals are somewhere to the left of center. The up/down axis is about freedom, where liberals are below the center, in libertarian territory.

        A conservative is someone on the authoritarian right. A Libertarian is someone on the libertarian right. A liberal is someone on the libertarian left. A “progressive” is either a liberal using the new hip term, or someone on the authoritarian left.

        It sounds like you may believe yourself to be a liberal, but are instead a member of the illiberal left.

  54. ccmclaugh
    Posted December 9, 2017 at 6:54 am | Permalink

    I think that this case comes down to a single factor: the baker made his shop open to the public. Once one offers one’s services to the public, one is no longer at liberty to discriminate on the basis of gender, race, and sexual preference, as is the law in Colorado.

    The case of the baker refusing service to gays is basically no different than the case of a lunch counter that refuses to serve blacks.

    • mordacious1
      Posted December 9, 2017 at 10:41 am | Permalink

      If the baker’s position is (as some here have reported) that if he sells them any product for the wedding, he’s participating, then his refusal violates the 14th Amendment. If his position is (as I heard him state on the news) that he will sell them a cake as long as it’s one of his already-designed cakes, then I think he’s got a case. His position is that by using his creative talents to design a unique cake, that would be participating in the wedding. We will just have to wait to see what happens. Obviously there’s an issue here or SCOTUS would not have taken the case.

      • Ken Kukec
        Posted December 9, 2017 at 1:37 pm | Permalink

        How about a chef that doesn’t want to use his unique talents to serve food to a gay couple because he feels that would sanctify their union?

        How about a white-separatist short-order cook in Alabama who refuses to prepare the blue-plate special for a black patron at a lunch counter because he has religious compunctions against integration?

        • mordacious1
          Posted December 9, 2017 at 1:47 pm | Permalink

          None of your examples would be legal. If a gay couple go into “Chez Redneck” and order the filet flambé, then the chef has to serve them because everyone orders this. If they want the mashed potatoes colored like a rainbow flag to celebrate their anniversary, the chef can say no.

          • Ken Kukec
            Posted December 9, 2017 at 5:37 pm | Permalink

            What if the gay couple orders a cake just like the one the baker previously made for a straight couple — can he refuse because theirs will say “Congratulations, Adam & Steve” instead of “Congratulations, Adam & Eve”?

            • mordacious1
              Posted December 9, 2017 at 7:11 pm | Permalink

              Yep. That would be compelled speech, IMO. It’s not the additional 2 letters, it’s the idea or thought behind the speech.

              Btw, I’m beginning to have second thoughts about this baker. Lately, he’s been saying that he was willing to sell them a cake, just not design it. But YouTube has videos from 5 years ago, where he said he was willing to sell them anything in the store, but not a cake for a gay wedding. That’s two entirely different situations.

              Part of me wants this guy to lose his case because I want the government to force Islamic bakeries to make gay wedding cakes. Fun stuff…you think the christians have a problem with this.

              • mordacious1
                Posted December 9, 2017 at 7:41 pm | Permalink

                Of course, this doesn’t mean that the regressive left will go after muslim owned businesses…they’d be kicked out of the club if they did.

  55. GregZ
    Posted December 9, 2017 at 10:08 am | Permalink

    It’s about commercial and public accommodation. Given that one of the 10 Commandments concerns adultery, and the Bible says someone who divorces and remarries is committing adultery, does the baker sell products to divorced-remarried people?

    • Posted December 9, 2017 at 11:33 am | Permalink

      If a customer asked him to decorate a cake with a pro-adultery message on it, I suspect he would decline to do so. (Whether or not his own definition of adultery is consistent with the Bible’s is beside the point.)

      • Ken Kukec
        Posted December 9, 2017 at 1:23 pm | Permalink

        When did putting such slogans on wedding cakes get to be a thing? As I understand the facts of this case, the gay couple wasn’t asking for a cake slogan like “Sodomites Rule!”; they were asking for precisely the same kind of cake this baker customarily churns out for straight couples.

        • mordacious1
          Posted December 9, 2017 at 1:49 pm | Permalink

          Depends on who’s relaying the story.

        • Posted December 9, 2017 at 5:02 pm | Permalink

          Ok. Let’s say, then, that a man and a woman he’s cheating on his wife with come into the bakery and tell the baker that they’d like a custom cake for celebrating their extramarital affair. No adultery-specific slogan on the cake, but they’re frank with the baker about who they are, what they’re doing, and what the cake is for.

          It’s not difficult for me to imagine that the baker would decline for the same reason: that he would not wish to produce such a cake knowing that it would be used to celebrate something he holds in his conscience to be immoral.

          We can certainly roll our eyes at his choice to lose business over something like that, but I don’t find it unreasonable to hold that it ought to be within his freedom of conscience to do so.

          • Ken Kukec
            Posted December 9, 2017 at 5:20 pm | Permalink

            And how is this distinguishable (if at all) from a baker who says his god commands that the races remain separate so refuses to sell cakes (or serve food, or rent rooms) to black people — or who refuses to sell to Jews, because he thinks they killed Jesus?

            • Posted December 10, 2017 at 12:45 pm | Permalink

              I don’t see why it needs to be distinguishable, unless you think, in 2017, businesses that would refuse to offer their services to blacks or Jews if given the opportunity are so common and would be so popular that they would pose a practical obstacle to public accommodation. The boycotts and bad PR would come so hard and so fast to any business that announced a No Blacks or No Jews policy that any legal consequences would be redundant. In other words, the marketplace is already capable of doling out harsh consequences for these kinds of practices (though to be sure, it wasn’t always).

              Laws prohibiting businesses from discriminating against classes of customers are necessary in times and places where the absence of such laws creates practical obstacles for people. (If you’re the owner of the only bakery in Point Barrow, Alaska, and there’s literally no where else to get a cake within a thousand miles, then anti-discrimination laws in the name of public accommodation make a whole lot of sense.) Otherwise, we ought to default on the side of freedom, including the freedom of shop owners to make foolish business decisions by wearing their bigotry on their sleeve.

          • Gregory Kusnick
            Posted December 10, 2017 at 1:01 am | Permalink

            Let’s imagine a further hypothetical. Let’s suppose the baker regularly gets requests for wedding cakes from couples he suspects of being adulterous lovers, or from known philanderers preparing for their second or third marriage, but he keeps his lip buttoned, takes their money, and bakes them the cake anyway. It’s only when they openly confess their adultery that he suddenly has an attack of conscience and balks at taking the commission.

            Surely this would make his claim to be acting on principle a lot less convincing. Surely, if this were truly a matter of conscience for him, he would have taken the trouble to vet all his clients to make sure they treat marriage with the requisite degree of solemnity.

            It seems likely that something like this applies in the Masterpiece case. Straight couples get no special scrutiny and are sold a cake with no questions asked. It’s only gay couples that trigger the attack of conscience and the invocation of the baker’s alleged “right not to participate”.

  56. tomh
    Posted December 9, 2017 at 3:49 pm | Permalink

    Why do people keep going on about a message on the cake? There was never a request for any specific message, the baker shut down the discussion before any details were discussed, as soon as he found out they were a same-sex couple. And it wasn’t for a wedding, they were already married. Allowing this conduct from a business open to the public just opens the door to all kinds of discrimination in the name of religion. As if religion doesn’t have enough self-righteous privilege already.

  57. Zoolady
    Posted December 9, 2017 at 6:09 pm | Permalink

    My guess is that the baker just CREAMED himself by getting to humiliate these potential customers. If we made it perfectly legitimate to deny service for same-gender wedding cakes AS LONG AS HE POSTS A SIGN OUTSIDE, STATING HIS REFUSAL TO DO SO.

    I’ll bet money he’d not be willing to do that. It would spoil the chance to explode in RIGHTEOUS ANGER and, godishly POINT TO THE DOOR!

  58. ThyroidPlanet
    Posted December 28, 2017 at 8:45 pm | Permalink

    I think the verdict is in?

    http://www.oregonlive.com/politics/index.ssf/2017/12/appeals_court_upholds_fine_aga.html

    • Gregory Kusnick
      Posted December 29, 2017 at 12:08 pm | Permalink

      While it’s possible, perhaps even likely, that SCOTUS will factor the reasoning of this Oregon appeals court into their deliberations, the Oregon decision is not the final word on the Colorado case (or even on the Oregon case). It ain’t over till the Supremes sing.

  59. Posted January 6, 2018 at 5:52 pm | Permalink

    Look whether we like it or not it was his choice and he said no so come on people be realistic. He has no problem with the “gays” being in his shop and they are welcomed anytime but he simply cannot go against his religion and I’m not being um descriminative I’m gay but you must understand his reasons them telling him to bake a cake for them is like asking someone not to love themself or not to be gay and that’s my opinion

    • GBJames
      Posted January 6, 2018 at 8:41 pm | Permalink

      No. It’s simply expecting people in business to follow the law. Not all that complicated, really.

      • Posted January 6, 2018 at 9:03 pm | Permalink

        oh come on when someone starts a business their main object isn’t to go against their religion it is to make a profit and to provide for their families that’s it

        • GBJames
          Posted January 6, 2018 at 9:17 pm | Permalink

          Olorado law prohibits businesses from discriminating on the basis of sexual orientation. It doesn’t matter what the baker thinks that Jesus wants. It matters that he not discriminate on that basis. He violated the law. Rambling on about whether it is against his religion is vapid. Irrelevant. If he can’t abide the law he should find another line of work that doeesn’t get him in trouble with his imaginary friend.

          • Posted January 6, 2018 at 9:25 pm | Permalink

            I see your point I really do but I don’t think I’m ever going to agree with you on this I think that they both have rights and besides this happened like over six years ago haven’t persons moved on by now

            • GBJames
              Posted January 7, 2018 at 9:00 am | Permalink

              You’re not disagreeing with me, you are disagreeing with the law.

              I’m sure you think black people should just “move on” when facing illegal discrimination.

              • Posted January 7, 2018 at 2:01 pm | Permalink

                ok fine so this guy should just pack up and leave because he refuses to render his services to a gay couple you are not seeing it from this man’s point of view. I’m not saying that he should have done it but this is what he believes in and we can’t change that so

              • GBJames
                Posted January 7, 2018 at 2:13 pm | Permalink

                Read the other comments on this page. There’s plenty for you to consider.

              • Posted January 9, 2018 at 9:46 pm | Permalink

                OK fine you’ve got a point you are right. But what I was trying to say is that both parties have rights and i think personally they could have handled it better


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