New York Times: "Mr. Phillips, who has run his bakery since 1993, sells off-the-shelf items to anyone, no questions asked. But he cannot deploy his artistic skills to create cakes celebrating themes that violate his religious and moral convictions. Thus he does not design cakes for divorce parties, lewd bachelor parties, Halloween parties or same-sex weddings."
Yeah, my thoughts about the cake case changed when I figured out that there wasn't a particular gay theme or even a set of same-sex toppers being suggested, it was just flat out who the customers were (My mom makes wedding cakes professionally and has been rolling her eyes a lot about this).
(I kind of hate the situations that amount to "you can do X - refuse a client, fire an employee - for no reason at all, but you can't do it for bad reasons (discriminating against protected classes)", because it seems to be so difficult to enforce as to make a mockery of having a rule.)
I have wondered how this will play out with regards to the ride-"sharing" company Safr, which claims not to discriminate based on gender but will let you specify what gender driver you want. I see what they're trying to do but it seems pretty fraught.
Sounds like Justice Kennedy is going to work to find same sort of narrow ground that doesn't kill all the discrimination statutes, not least because the Colorado authorities said some unnecessarily negative stuff. Or maybe he'll write something sweeping that'll allow explicit discrimination against Christians.
Reminds me f when I was talking with a foreign client about how much it matters who was on the panel of a particular DC Circuit case and he told me that the rule of law should not, and cannot, depend on which particular people are randomly drawn. Sorry man, it's people all the way down.
3.last: At least until you get to the turtles.
1: What's his policy on visibly pregnant brides?
I wonder if anyone asked whether the same rule would apply if the baker had a religious objection to miscegenation? You know, he was willing to sell off-the-shelf cakes to people of any race, but he couldn't possibly make a custom cake for an interracial marriage?
What if they had to make the cake but could make the couple put their own cake topper on it?
the ride-"sharing" company Safr, which claims not to discriminate based on gender but will let you specify what gender driver you want. I see what they're trying to do but it seems pretty fraught.
Yeah, that's interesting. There's the sex discrimination that's about women not hurting their pretty heads for thinking too hard and there's the sex discrimination that's about not getting raped.
I wonder if anyone asked whether the same rule would apply if the baker had a religious objection to miscegenation?
They did.
Of more interest might be that one of the lawyers is General Francisco. How many justices are of the right age that they had to bite their lips and ask if Generalissimo Franciso was still dead?
7: Yeah, and what about invisibly pregnant brides?
12: YOU WERE EXCELLENT IN THAT MOVIE YOU DID WITH DARYL HANNAH!
"You get to control the message on your product" and since "gay wedding cakes" are not a thing, a wedding cake is not a message, so you can't discriminate
What about a wedding planner? (If there are any wedding planners who aren't gay men or straight women who love to air kiss gay men, the queenier the better.) Planning is just a service, so could you require the planner to find a venue or order flowers for a gay couple?
Possibly off topic: Fondant looks nice but doesn't taste as good as regular frosting.
Stipulating that hair stylists are equally good at both seems to be going too far. It seems perfectly plausible to me that there are different skills involved in being a good barber and a good hairdresser (though of course you can be both) and it is therefore legitimate for someone to say "I choose to spend my limited time becoming a really good barber so I will only cut men's hair in order to hone my skills." Specialisation. Similarly African and European hair.
There's a men's barber in town I've thought about crashing but I tried once and was intimidated and there was a long line, so I left and never went back. I would see a black stylist. I would not let the girls see a white one.
Presumably, a man's-style haircut on a woman's head isn't any harder than a man's-style haircut on a man's head. If it is, it probably means the barber is trying to look down your blouse.
18: I think Heebie's take covers that, even in a weaker iteration: "We specialize in men's styles; if you come in seeking a femme haircut, prepare to waste $20."
I mean, I know for a fact that black barbers will have occasional white customers, but those guys are (presumably) mostly getting cuts done mostly with clippers, not Andy Travis 'dos.
I'm guessing that somebody who specialized in men's styles for women would charge at least $40.
18. "Not all hair stylists." My barber (a woman) does men's and women's hair, and appears to be good at both. I haven't seen her do a man's style cut of a woman's hair, though. It's just regular salon cuts on women. She also does hair styling: perms, coloring, etc.
15: I suspect that the answer is the same--that you can't officially refuse your services because of their sexes.
But unofficially, it seems like this just pushes people to rein in their open racism/etc. enough to say, "Oh, I'm booked for X" or "I can't squeeze you in my schedule", but discriminate in practice. I suspect the courts aren't going to actually go through people's books and say "You could have squeezed them in," unless we get to the point of stings like the rental housing discrimination cases.
Yeah, rather than a docent at a national battlefield, my retirement job will be a tester for barbers! Big money in that, I bet.
Somebody should try to get a wedding cake that says "Congratulations Adam and Steve" but the tricky part is that Adam is a woman.
To the OP: Ladies Night at bars is illegal in California, under state law due to one enterprising lawyer.* Single sex public colleges are unconstitutional since the Virginia Military Institute case, but single sex private colleges are not. Single sex public elementary schools are making a comeback in some inner cities, but they're probably unconstitutional.
Single sex bathrooms are an odd case. The Supreme Court had no trouble outlawing single race bathrooms shortly after Brown v Board of Education, but never wrote a full decision so it's not clear why. It is, after all, no trouble to actually provide truly equal facilities in separate race bathrooms.** Fear of unisex bathrooms killed the equal Rights Amendment in the 1970's, and the effort to revive that fear regarding trans folk continues.
**Duke University Hospital was built in the 1930's. Its mostly stone and is not susceptible to remodeling. There are four restrooms next to each other in several places. There is no longer a "Colored" label on any of them. The architecture was extraordinarily progressive at the time, because the facilities offered equal convenience to all.
There is no longer a "Colored" label on any of them.
But there could be. That's all I'm saying.
Anyway, I don't think I've ever seen a bar with Ladies Night. Or at least not in a while.
I remember there used to a big deal made about dry cleaners charging more for women's garments than the for same garment for men. I haven't heard about it in a while, so I assume either justice was achieved or men mostly stopped wearing dry clean-only clothing.
for an oddball theory of sexual orientation discrimination, see Evenchik v. Avis:
https://law.justia.com/cases/federal/district-courts/california/casdce/3:2012cv00061/373518/19/
Avis offered a discount to individuals who booked through the International Gay and Lesbian Travel Association. The plaintiff rented a car from Avis and claimed that she had to pay more than the members of the Association because she was straight. The case eventually settled.
The lawyers are professional friends. they aren't anti-gay, just pro-money. Car rental companies have a justified fear of juries.
I used to hate rental car companies, but now the airlines are too horrible for me to hate anything else travel-related.
gay-cake-fear is the name of my new band.
Our debut album to be entitled "fear of a gay cake."
There is something a bit Gilbertian about the combination of extremely serious political concerns and a frankly fairly silly specific case.
Our debut album to be entitled "fear of a gay cake."
"Fear of a fruit cake", surely.
I don't really have any insight to contribute, but on the subject of gender discrimination, I really enjoyed (and was educated by) the recent More Perfect podcast on the aftermath of the ERA ratification failure and Craig v Boren.
gay-cake-fear is the name of my new band.
Marzipanic.
A year ago, Caperton asked about a slightly different cake hypothetical in this thread at Feministe:
(And, okay, this is just me being curious: If you're a baker, and you get a request for a wedding cake for "Sam and Chris," and you deliver it to the reception and find out that Sam and Chris are both dudes, do you just not give them the cake? Do you drop it off and then go home and scourge yourself until you're cleansed of your sin? How does it work? Do you take the cake home and eat it yourself, and if you do, do you have to scrape the names off, or does the whole sin-cake have to go in the trash, but isn't wasting food also a sin? I so want to know this.)
Caperton - as a long-time Marriage Equality supporter, I can't speak for opponents on exactly what they would or wouldn't be willing to do in that cake scenario. I suspect the answer would vary from one individual to another. But I can feel empathy for those who feel caught between their principles and what society appears to be demanding of them, even if I disagree with their principles, because I was once in a similar position on a different issue.
My maternal grandfather became an alcoholic for many years when my mother was growing up, following the premature death of his own father. That had a lot of consequences for the family. So she was vehemently opposed to the use of alcohol, although recognizing it as a legal choice that other adults could make, and I grew up in a teetotalling household, sharing my parents' values on this issue until well after I went away to college.
When I was a senior in high school, we were invited to a neighbor's wedding. One of my favorite teachers was also there, and at one point during the reception, she asked me to get her a glass of champagne from the bar across the room. Now I recognized her right to make that choice, and I would have been fine with it if she had gone over to get the glass herself. But I did feel it was wrong, and I felt that actually carrying the glass to her would make me complicit in that wrongness. It certainly felt like a moral dilemma to me, trying to balance the demands of courtesy against my very strong desire not to be complicit in someone else's drinking. I begged off with some excuse. She later came up to me, telling me that she had talked to the minister and learned of my family's feelings about alcohol, and apologized for putting me in that position.
Years later, when I was getting married, we arranged to hold the rehearsal dinner (which my parents were paying for) in a restaurant with a bar in a different room. That way, those guests who wanted to drink alcohol could go buy it in the other room and bring it back, without forcing my parents to serve or pay for alcohol as part of what they provided. Some people might criticize that choice as shirking a presumed duty of a host to provide the wedding booze. We saw it as a way to honor my parents' desire to not be complicit in another person's drinking, while still allowing those who wanted to indulge to do so.
So when I read about opponents of same-sex marriage who feel that they are being forced to be complicit in something they believe to be wrong, I can remember how my 17 year old self felt and empathize with their feelings, while also recognizing the effect their actions may have on a couple who just want to celebrate their union like any other committed couple. At the very least, I recognize that there is a moral dilemma present that requires some sort of balancing of interests, and that the rest of us don't necessarily get to minimize the opponents' feelings of complicity just because the action involved would be no big deal for us. Lots of people would have thought that simply carrying a glass of champagne across a room to someone else was no big deal. It was a very big deal for me that evening.
In seeking that balancing test, I think we need to consider at least a couple of factors. To what degree is the opponent in question being asked to personally participate in the wedding or reception? The higher the degree of involvement, the more I think we need to consider the opponent's concerns. In my situation, I think I would have been ok if my teacher had asked me to call a waiter to come take her order (if that had been an option). Even though that might also be seen as a form of complicity, calling a waiter would be more indirect and a sufficiently generic action that I could accept it.
A second factor is how easy or costly would it be for the couple to use someone else's services? The easier it is to accommodate someone else's scruples without injury, the more we should be willing to do so. Conversely, standing on abstract principles at the expense of ruining someone else's special occasion makes you an asshole, and we should try to avoid being assholes.
So in your hypothetical cake example, I think both of the balancing factors point towards "just drop off the cake already" as the resolution we should support. The level of involvement in just dropping off an already-inscribed cake is about as minimal as it gets*, and if the cake is being dropped off on the day of the reception, there's no time for the couple to get another cake. On the other hand, if I think about the woman who baked our wedding cake, she was a lot more involved. She spent hours in the reception hall setting up the cake and coordinating with the wedding planner, and she offered as part of her standard services to bake us a duplicate top level on our first anniversary so that we didn't have to share stale frozen cake for the anniversary. So that's a higher level of involvement with both the wedding and the couple than your hypothetical. If she had had a moral concern about our wedding, I would at least recognize that the issue was more complex than the hypothetical.
*I don't think this contradicts what I said above about not getting to minimize how complicit someone else feels. They may still feel plenty uncomfortable about even this level of involvement, but we get to decide as a society how far we are willing to go to accommodate their feelings in constructing that balance. The balancing is partly a collective judgement.
In the case of wedding photographers, which was one of the early court cases about same-sex marriage involvement, I think the level of involvement is even higher than cake bakers. Can we imagine a different hypothetical in which a photographer might have moral concerns about the wedding? How do you feel about child marriage? At least until a few years ago, there were states where a person as young as 13 could get married with parental permission (Kansas raised their minimum age to 15 in 2006; New Hampshire seems to still allow 13 with both parental consent and a judicial waiver; South Carolina allows 14 with parental consent).
So let's say you were a wedding photographer in one of those states, and a couple comes in with her parents to make arrangements. The groom is 22, the bride-to-be is 13 (or barely 14) and homeschooled. If it weren't for the magic words "marriage" and "parental consent" she would be well under the age of consent. As you see her interacting with her parents, you get a sense that maybe she is more going along with this to meet their expectations than out of her own desires. There's nothing definite there, nothing you could use to call the cops or CPS, but maybe you catch her being a bit weepy in a moment you would expect most brides to be excited about. (Feel free to tinker with the details of the scenario if necessary to get the "it's legal, but feels wrong" vibe that I'm going for.)
They don't just want some shots of the couple in your studio - they want you there during the service, taking pictures up front as they say their vows. Do you feel ok about that? Is it just another job, or do you want to decline to participate?
My take on that scenario is that if it's 4:30 on the day before the wedding and I can make it, I swallow my scruples and do it, because there's a chance the marriage will work out, and I don't want them sitting there on their 25th anniversary remembering the jerk of a photographer who is the reason they don't have any pictures of the wedding (see not being an asshole, above). But if it's four months ahead and there's plenty of time for them to find another photographer, I probably decline if I can. Being personally involved in the service makes a difference to me.
I hope this scenario is at least somewhat helpful in thinking about how we should or shouldn't be willing to accommodate various concerns of SSM opponents.
Single sex private clubs in MA were prohibited by the legislature on the grounds that they were being used for business. The Chilton club which was a ladies club and predominantly social could have probably gotten an exemption, but they let in a few men.
There is a women's/only gym called Healthworks. Some patent lawyer made a big deal about it and sued. So the legislature changed the law for single-sex gyms.
a fair number of evangelicals also have religious scruples about explicit lying.
That was a thoughtful post and doesn't deserve this reply but I read that and I think fuck evangelicals, fuck their beliefs, and fuck their so-called scruples, they don't believe in jack-shit.
44: This is maybe the most important Lesson Of Trump. There's nothing religious about the religious right. So many people who thought they were expert evangelical-wranglers thought they would stop him. But they had no followers. They were all at the Trump rally. The absence of any detectable religion in the Trump mix wasn't a problem at all.
On topic, the problem here is that nobody has any objection to, say, specialising as a barber except trolls. The general principle here is "Don't be an asshole about it", but it's extremely difficult to make "Don't be an asshole about it" into black-letter law.
This has much wider application - all sorts of issues people get extremely angry about boil down to whether you're being an asshole or not. But people hunger for specific, measurable, enumerated rules.
The thing is that analogies around alcohol, child brides etc don't apply because "drinker" is not a protected class under the law. You don't have a right to have your desire for a quiet pint accommodated by others. Nor do you have a right to have your proposed wedding to a 14-year-old accommodated by others. I can refuse to bake a cake for your wedding simply because I don't like your dress sense or I don't like your politics or I just think you're a dick, and the law will be on my side.
But the law has decided that certain attributes are actually protected and, if you're running a business, you can't discriminate against people who have them, whatever your personal beliefs. So, if you're running a hotel and someone comes in and wants a room, you don't get to turn them away because they're black (or because they're black and their spouse is white, or whatever). That's why they've gone for this "the cake is a speech act" argument. Because the law can force you to give them a hotel room in which to miscegenate, but it can't force you to say "I think miscegenation's great!"
But if baking a cake is a speech act, what isn't?
Isn't it a much more emotionally meaningful and symbolic act to welcome someone to sleep in your house? It has been for thousands of years. Guest-host relations are really important in all kinds of societies. So if you give someone a room in your house to sleep in... isn't that much more of a speech act than simply selling them a cake?
THE CAKE IS A CONSTITUTIONALLY PROTECTED LIE
Question for people who don't know: how does "compelled speech" apply to publishers and so on? Does a printer have the right to refuse service to black customers because anything he prints in his workshop counts as a speech act? (A printed document is surely much more speechy than a cake!) A photographer?
Guest-host relations are really important in all kinds of societies.
Finally someone who understands what I've been saying all these years.
47.1: The New Testament has more about God will give you wine at a wedding that it does about not gay-marrying.
46: Right, but here "trolls" means "various well-funded right-wing organizations that are trying to undermine the entire concept of a protected class because they think everything post-Brown is a travesty."
In conclusion, this is why we can't have nice things.
I love 51, not least because I had him quoted at me in grad school for years.
42 is thoughtful and wise, but I think ajay is correct to bring into the conversation the concept of "protected class." You're not just talking about individual rights to free association, but public accommodations as well.
Re 49 last, the New Mexico Supreme Court said a wedding photographer couldn't fit into the expressive conduct exception and the US Supreme Court denied cert.
What if the photographer frosted the pictures?
57: In that case the photographs would qualify as a cake under New Mexico law. (cf. State of New Mexico v. Hamble, in which it was held that a rhinoceros may not be treated as rolling stock simply because it is proceeding down a railroad with a cloud of black sulphurous smoke issuing from its ears.)
Anyway, my guess is that at some point decades down the road, America will either be a dystopian dictatorship or "white total shithead*" will be a protected class that is about 10% of the population.
* Under a different name
What else do you do when a substantial minority perpetually threatens to blow shit up if they don't get their way and "their way" involves misery for nearly everybody else (and probably themselves if they thought about it)? You find a way to let them live in their own area with as little impact on others as possible or they win.
The cake argument really rests on equivocation of what it means to 'express' something through a 'custom' cake. That is, the right nominally being defended is the baker's right to not 'express' some idea related to gay marriage by providing a custom cake, and the custom nature of the cake is what makes it an expressive act rather than just selling a consumer good: they're not arguing that a religious party-supplies store could refuse to sell paper napkins for a gay wedding.
But when you poke at it, the baker is refusing to sell any 'custom' cake for a gay couple's wedding, including cakes identical to ones he would make and sell for straight couples. The 'expression' he's objecting to isn't anything that happens during the design (which he did without a specific customer in mind, these were designs in a catalog) or in the baking and decoration (which is identical regardless of the sexuality of the customer), because those stages in the transaction are unaffected by the orientation or identity of the customers. What he's objecting to really does come down to the transaction of sale to those particular customers for that purpose, and there's no meaningful distinction between refusing to sell a custom cake to them or refusing to sell them a case of wine.
But when you poke at it, the baker is refusing to sell any 'custom' cake for a gay couple's wedding, including cakes identical to ones he would make and sell for straight couples.
But if you're granting that "a cake is an expressive act", then the cakes he would make and sell to straight couples are not identical to those he's being asked to make for gay couples. They are physically identical, but they aren't identical in the message they express, because one is effectively saying "I support the marriage of Alice and Bob" and one is saying "I support the marriage of Alan and Bob". Context matters for expressive acts.
That might make sense except everybody who knows Alice knows every single baker hates her guts.
The expression isn't the baking, though, it's the sale. Imagine the baker isn't the one who takes the orders, and the sales-clerk doesn't know he's a bigot. She takes the order, and yells back into the kitchen "We need a number 323 in ivory fondant, lemon cake filling, for a wedding Saturday at ten." The baker does his artistic magic, and expresses his little heart out with the icing flourishes, and none of that expression had anything to do with the identity of the customers. He puts the last flourish on, and then asks the sales clerk "Who's the happy couple?" at which point she says "Adam Smith and Steve Jones," and he is horrified at the prospect of selling his cake for a gay wedding.
The cake didn't change when he found out who the couple was, and the cake wouldn't have been different if he'd known about the identity of the couple before he picked up the icing bag. The expressive act he's objecting to isn't the creation of the cake, it's the sale.
I know this is not the practical lawyerly way to think about it, but I can't get past the fact that it's actually wrong to discriminate against gay people, whereas if this were a child-bride, it would not be wrong to feel morally uncomfortable.
So all these carve outs and legal arguments seem a little like an arcane IQ test - given an absurd world, how can you play by absurd rules to get a moral result? I guess all of law is like that.
66 makes it clear that we need double-blind bakeries in order to trust that our cakes are scientifically sound.
Why can't the racists and bigots just go back to the days when they secretly spit in the cake and no one ever knew about it?
66: I think I recall ordering a wedding cake to be much more involved that that. Like you're supposed to meet with the baker and express things and then wait several days the baker draws something and then you look at it and then you express more things and then I say "holy shit, that's a lot of money for cake" and then people shut me up and so on.
I'm sure that when all is said and done, the baker writes "Number 323 in ivory fondant, lemon cake filling" on the order form. But the whole process is designed to hide that.
Or to put it another way, sure, a cake may be an expressive act, but the creation of the cake doesn't express anything that cannot be perceived from the physical nature of the cake. If you can change some part of what's being expressed by the cake by selling it to a different person without changing anything about the physical nature of the cake, then the specific expressive act that's changing is the sale of the cake, not the creation of the cake.
Right, cake-tasting is a thing where you go and there are 40 spoons with bits of cake, and you basically have a Baskin Robbins experience picking out the flavors for your tiers.
that it's actually wrong to discriminate against gay people, whereas if this were a child-bride, it would not be wrong to feel morally uncomfortable.
It's not just actually wrong, it's illegal to discriminate against people for being gay, and it's not illegal to discriminate against people for marrying children.
And then you think you're done and they say "what do you want for the groom cake." And you say "I don't even get to eat a part of the big cake?"
74: Right, but what the homophobic cake baker wants to say is "It's wrong that it is illegal to discriminate against people for being gay." Since they're almost certainly Roy Moore fans, they may also want to say that they wish it would be illegal to discriminate against people for marrying children as long as the children are white girls being married to white men with the permission of their parents.
63 et seq: Gay cakes are gay when they are conceived, and there's nothing a baker can do to change that.
The cake didn't change when he found out who the couple was, and the cake wouldn't have been different if he'd known about the identity of the couple before he picked up the icing bag. The expressive act he's objecting to isn't the creation of the cake, it's the sale.
Does that matter? in the context of whether he should be allowed to do it?
Cakes are actually very progressive. They get conceived and fully baked, and it's not until they are fully grown that you have a gender reveal party, where the cake is stabbed to death and mutilated and you see if it was pink or blue all along on the inside, and then cannibalized.
78: Yes, it matters a lot. Because if you're letting the baker call the sale of an already created object to someone because they will use it pursuing an act or lifestyle he religiously disapproves of, then the religious argument can cover everything. What about the religious chef who doesn't want to sell dinner to a gay couple on a date? If the sale, rather than the creation, is the expressive act, what about the religious pharmacist who doesn't want to sell condoms to the gay kid? And looping right back around to miscegenation, what about any of the above who doesn't want to serve interracial couples?
Or even more strongly, what about the argument that was rejected back in the civil rights era, that you can have a religious objection to different races eating together, so you shouldn't have to serve black people at your lunch counter? If the sale, rather than the creation, is the protected expression, then that should be protected too.
That's why menus say "No Substitutions". Because the chef is a homophobe and doesn't want to have to turn away gay couples.
74
Right, this is where the protected class aspect comes in. It's illegal to discriminate for (A,B,C) reasons, but not for (X,Y,Z) reasons, and that's pretty cut and dried.
Anyway, I'm willing to bet that whoever is sponsoring the baker in the case thinks it is perfectly reasonable for a restaurant to not serve black people if the owner is a racist. I don't think this is about trying to find a way to accommodate gay marriage while not undoing the gains of the civil rights era, but how to use discomfort with gay marriage to undo the gains of the civil rights era.
The sentence structure of 80 went terribly, terribly wrong somehow. I think it's comprehensible, but if anyone doesn't get it, I'll rewrite.
I think 80 is comprehensible, and is in violent agreement with 47. Also I am in non-violent but supportive and nurturing agreement with 84.
I think the apparent disagreement is because I think that it is bollocks that selling a cake is an expressive act, and also that it is bollocks that making a cake is an expressive act.
Now I want cake, but shouldn't go get one because I'm fat and we have the office holiday party tomorrow anyway.
Now I want cake, but shouldn't go get one
Moby is a closeted self-hating cakeophile.
Also, I have my annual physical tomorrow.
that it is bollocks that making a cake is an expressive act.
The thing is, I don't think this is total bollocks, because cakes can have words or symbols on them. I would, not sympathize with, but probably agree with the legal position of a bigoted baker who didn't want to decorate a cake with a rainbow flag. That's a clear symbolic utterance, just like a swastika decoration might be (for something that I'd agree with a baker refusing to put on a cake). Or, for something even a little more controversial, I'd agree with a religious baker who wouldn't put symbols from other religions on their cakes (a Jewish baker who wouldn't make a special Easter cake, for example). That seems to be to be a solid cake-related expressive argument.
But this case looks to me to be equivocating between the argument I agree with, and the argument that a bigot with a religious belief in segregation doesn't have to serve black people at his lunch counter. They're completely different arguments.
87 - I would add that it is bollocks that selling/making cakes is a religious act. Eating cake is not a part of the marriage ceremony. It's not a sacrament. It's just a cake.
I take seriously the idea that icing a cake can be an expressive act. If I ran a bakery and someone came in asking for a cake with Swastikas and "Heil Trump" on it, I would rather turn them away than go for option B which would involve accidental contamination of the batter with DMT.
We had a gay cake case in Norn Iron last year and earlier this year (Asher's) where it was quite clear that the couple involved had picked on this particular baker to fuck them up for being fundamentalists. So both sides there wanted the fight.
This rather spoiled the purity of the test case, which would require Samuel and David to come in holding hands and order a cake iced for their friends Evelyn and Evelyn who are getting straight married. That would make clear whether the objection was to the customer or to the message.
The Asher family maintained, not entirely convincingly, that their objection was to the message to be iced into the cake rather than the couple buying it, or the purpose it was bought for. That might have convinced an English court. But it turns out that Norn Irish law protects all forms of political speech. A measure intended to ensure that no one could be sacked for their opinions ended up defeating the best efforts of the fundies. I can see the justification for that law in the special circumstances of the province, but I am not a free speech absolutist and would be happier to restrict some forms of speech if the tradeoff were that no adult could be compelled to express an opinion they did not hold. For children, of course, it is compulsory. Civilisation rests on that fact.
I think there was a court case at the other end of the state where Walmart refused to decorate a cake with "Happy Birthday Adolf Hitler" because some fuck named their kid Adolf Hitler.
In the example of Evelyn and Evelyn above, I should add that there is no question of religious discrimination. Neither party to that marriage was a Catholic at the time.
92 - To take that scenario in the opposite direction: Imagine a same-sex couple are walking into the bakery just as an opposite-sex couple are picking up their completed cake. The same-sex couple say to the baker, "We want a cake identical to theirs." Clearly the baker has no artistic objection to making such a cake, so I would think they could not make an artistic-based objection to baking a cake for the same-sex couple.
A same-sex couple and an opposite-sex couple both enter a small cake shop at relativistic speeds. Will spatial Lorentz dilation be sufficient that they can all fit at the same time?
95
Probably by the end of Trump I's reign, "people named Adolf Hitler" will be a protected class.
"The thing is, I don't think this is total bollocks, because cakes can have words or symbols on them."
I think in that case you can usefully separate this into two acts: making the cake, which is not an expressive act and which the baker has to do for anyone under public-accommodation grounds, from writing stuff on it, which is an expressive act.
I mean, anything can have words or symbols on it. A van can have words or symbols on it. If a gay couple wants to buy a van they should be permitted to do so, but if they want the van emblazoned with "EQUAL MARRIAGE RIGHTS ARE GREAT" (or indeed something unrelated like "LOWER CORPORATE TAX RATES ARE A TERRIBLE IDEA") then I think the painter might be within his rights to say no.
Making a cake can be an expressive act, but I'm curious why this isn't (conceptually, if not legally) work-for-hire. If there's an expressive act involved, it's the customer's.
101: That brings you back to cakes with swastikas, which is where the idea of a protected class becomes important. US Nazis aren't a protected class (yet), but I hope gay people are.
It's probably easier just to require a swastika on all cakes and let people who don't want one scrape it off.
66 and 72 seem right.
80: if you're letting the baker call the sale of an already created object to someone because they will use it pursuing an act or lifestyle he religiously disapproves of [an expressive act], then the religious argument can cover everything.
Right - which raises the question whether the baker would have been willing to sell a cake he'd prepared yesterday for another (straight) couple to the gay couple. Perhaps the straight couple called off their wedding, so this is an abandoned cake here, which happens to look very like the one the gay couple were looking for.
I've heard it opined at least once that the baker would indeed have sold them that cake. Did this come up in oral arguments?
Another oddball case at the intersection of freedom of expression and discrimination against a protected class:
The local organizers for Catholics for Choice go into a print shop to have posters for their event made. the shopkeeper refused the job, and said something like, I'm not going to print that because if you're pro-choice, you aren't Catholic.
Was he discriminating on the basis of the pro-choice message (legal), or the Catholic identity of the organizers (illegal)?
Defense to the religious discrimination argument: I'm Catholic myself! That's why I object to the political message! I can't discriminate against myself.
Response:
You just admitted that the only reason you threw us out is because we're Catholic.
I can't find the case, I think it was the New Hampshire or Vermont Supreme Court, but the judges wrote a whole bunch of concurrences and dissents.
I would have the slightest problem ruling for the state here. But there are 4 sure votes to make religion trump the rights of LGQTB people all the time, and one voter who seems to have been offended by how the state acted. All the rationality in the world isn't going to make any difference here.
Can Kennedy find a narrow ground? It doesn't sound like the baker's lawyer or the SG's office were any help at all on that.
What would be the narrow ruling? That the cake baker is engaging in artistic expression while the florist, makeup artist, dress shop, photographer and so on are not? That's not going to fly.
What else would make it a narrow ruling?
It just seems clear that the baker's claim is essentially that by actively participating in the couple's wedding, he's endorsing it. This is why issues of religious freedom are so apposite: but RFRA is a federal statute, and Colorado doesn't have a state-level RFRA.
Can Kennedy find a narrow ground?
If he doesn't go for a remand to determine whether the Commission engaged in viewpoint discrimination because one of its members expressed the crazy idea that sometimes bigots hide behind their religion (which seems unlikely), the one putative narrow ground (it wouldn't actually be narrow at all) that I saw pitched is that under these circumstances, where the couple had plenty of other cake shops to choose from, the Colorado law is not sufficiently tailored to a legitimate interest in ensuring access to wedding cakes. That would of course be profoundly incoherent as precedent for lower courts to apply, but that's never been a deterrent for Kennedy, and it would be conceptually similar to his approach in Hobby Lobby. (And of course they'd have to throw in something about race being different because reasons.)
I'm sure he can write up some Rube Goldberg crap like they have for the birth control mandate. Gay people who want to have a wedding cake would need to go through a third party cake purchaser who would purchase a cake without names and then transport it to a certified independent name writer who is not allowed to communicate with the baker lest the baker's religion be offended.
It goes without saying that no decent person should patronize this guy's shop. Certainly no decent wedding planner should be including its offerings when presenting clients with cake options.
I'm sure he can write up some Rube Goldberg crap like they have for the birth control mandate. Gay people who want to have a wedding cake would need to go through a third party cake purchaser who would purchase a cake without names and then transport it to a certified independent name writer who is not allowed to communicate with the baker lest the baker's religion be offended.
This system is already well established, gay people can use a "shabbas goy" like so many Jews use to flip lightswitches and whatnot.
Why not do like with the elevators in buildings with lots of observant Jews and have a person giving wedding cakes to random gay people on the assumption that at least some of them will be getting married?
In case that isn't clear, I think they just have the elevator stop on every floor of a building with no button pushing. I'm not saying the give random cakes to Orthodox Jews on Shabbot.
108: If he doesn't go for a remand to determine whether the Commission engaged in viewpoint discrimination because one of its members expressed the crazy idea that sometimes bigots hide behind their religion (which seems unlikely)
Why does that seem unlikely? Just because, given that the Court has declined to take this case several times until Gorsuch joined, the last thing they want to do now is punt? But that's precisely what they should do: they should never have taken this case in the first place.
It takes four to take the case, five to decide it, and six to lift a standard VW Bug.
I'm not a lawyer, that's not legal advice, but it's pretty close.
To Moby & Barry:
Sex seems like the hard* one.***
the single asterisk on "hard" leads to you to this footnote:
*It seems like no one brings us cock jokes anymore.**
the double asterisk leads to the next footnote:
**Earworm!
and then you jump back to the main text for the triple asterisk on "one"
Sex seems like the hard* one.***
which leads you to
***I'm leaving out things plausibly based on (assumed) biology****
and that quadruple asterisk goes to
****I don't mean that I'm leaving out cis/trans...
Will spatial Lorentz dilation be sufficient that they can all fit at the same time?
I was at a student presentation last week where they tangentially mentioned Lawrence attractors (it was written out on their PPT in several places) and I was so confused until their advisor spoke up.
117: I saw and appreciated that. But I was asking about a different thing.
Imagine a same-sex couple are walking into the bakery just as an opposite-sex couple are picking up their completed cake. The same-sex couple say to the baker, "We want a cake identical to theirs."
Assuming that the baker then creates a second cake in a state of entanglement with the first cake, he will exist in a state of superposition, both disgusted and non-disgusted.
Quantum entanglement between disgust and non-disgust is the state the Buddha achieved on day 48 of sitting under the bodhi tree.
Imagine a same-sex couple are walking into the bakery just as an opposite-sex couple are picking up their completed cake. The same-sex couple say to the baker, "We want a cake identical to theirs."
This When Harry Met Sally remake has ruined my childhood.
Imagine the baker only has one cake, which is on a trolley (a gateau trolley, obvs) rolling downhill towards a gay couple. If the baker throws a bowl of raspberry trifle at the trolley, it will be diverted towards a straight couple, also standing at the bottom of the hill.
Quaere:
does the baker have an affirmative duty not to throw the bowl?
if he does so, should the court presume that (in the absence of other evidence) he did so for reasons other than bigotry? Or is the onus on the baker to prove that he threw the trifle in an orientation-blind manner?
how does the argument change if there are two straight couples standing side by side, intending to have a double wedding at which they will share the cake?
If he throws the bowl, will this be a protected expressive act?
See, it can never be improved upon.
123 is misleading. This question would never come in front of a judge: the law does not concern itself with trifle.
60: It's called the United States.
