By this absurd rationale, any discriminatory acts would be protected speech.
3
Does he have a business that says “open”. Does he sell wedding cakes? Both questions can only be answered with yes. As such he is obligated to sell his product to any customer who is willing to pay the requested price. He does not operate a church but a bakery, for heaven’s sake.
6
The Gay coupled who sued are activists willing to corrupt their wedding for political purposes. The right for Gays to marry was hard fought and rightfully resulted in their legality.
Why push past the victory? I know many Gays who would not want to give their business to any anti-gay establishment.
They could have had an equally wonderful cake made by someone who was proud to participate in their special day. Instead they face the SCOTUS ruling against them and setting back Gay rights and allowing homophobes everywhere to claim a victory.
To bad.
6
When Jews were kicked out of the Gay Pride parade in Chicago for displaying Stars of David (which Islamic symbols and flags from countries that execute gays were welcome) I saw very few gays condemn it. The response was "I can see both sides to this" or "I don't have a dog in this fight" or "I have no opinion". Ever since then I have taken a similar stance when I hear gays complain about discrimination. I was a vocal advocate for gay rights since I was a child. The lack of reciprocity has hardened my heart significantly.
4
This whole thing is being taken to the extreme of ridiculousness. If Mr. Phillips and his oh so precious artistic cake baking refuses to produce such confectionary masterpieces for those he deems unworthy, then by all means indulge him.
The remedy it would seem, is competition. When an equally artistic baker of cakes opens an establishment that openly and proudly solicits business from all people, and takes business from Mr. Phillips, would he then claim his business is being unfairly discriminated against due to his religion? Bets anyone?
While I believe the law is correct and Mr. Phillips must provide a beautiful custom cake to any protected class of person that walks into his shop, it is also true that there are many perfectly legal reasons why he may choose not to bake a cake for someone.
Which leads me to my point. Since Mr. Phillips is not compelled to make a cake for every single potential customer (only those who are in a protected class) he seems to have made it a point to make certain that the gay couple who sought his services knew that he objected to their right lifestyle-- rather than simply demurring.
It is hard for me to understand how this silliness becomes a legal issue. By both parties seeking to enforce their perceived rights, they seek to make a point: The point is that neither is very interested in resolving this amicably.
On one hand, buttercream is not a commodity in short supply and artful bakers are equally plentiful. Plaintiffs==walk down the street and get your cake somewhere else. And make certain to tell all of your friends (gay & straight) about the awful treatment at Masterpiece Cakeshop. Mr. Phillips will get the point.
On the other hand, Mr. Phillips, you are a baker, not a religious tribunal. While your cooking inspiration may be Godly, you appear to be misreading Jesus's message in service to your very diminutive contribution to the world of edible art.
If we would all grow up, the Supreme Court would have a lot less to do and we would all be better off for it.
7
Interesting case, cannot wait to see how your courts resolve this. I would note, having read both arguments now, that I am more in agreement with this argument. It seems the key point here may be that he has not refused to sell them a cake - they can buy any cake he has already made and has for sale. But he has refused to "make" them a specific wedding cake because he does not support the notion that they should be married. If you deny him this right then he will not be able to refuse to make a Halloween or Happy Divorce cake if requested. And so too, the gay bakers referenced in earlier court cases will not be able to refuse to make a cake that celebrates a religion that considers their sexuality immoral. So too, a black carpenter could not refuse to build and deliver a bookcase for a local chapter of the KKK or some such equally offensive group. I am not sure justice will be served either way but it is clear common sense is taking a beating - why spend money with someone who would deny you something as fundamental as your sexuality and how you express love for another?. Best of luck to all - his cakes do look beautiful by the way.
6
If the baker can't bake the cake, he can take the order, then outsource the work to another baker. Handling the mechanics of outsourcing is not artistic expression.
I wish these devout evangelical Christians could find something else in the Bible worth not compromising. Jesus preached a lot about greed and demonstrated sharing by collecting the scraps of fish and bread and redistributing them to the crowd who didn't have food for the occasion. How much do those four-tier wedding cakes cost and what heterosexual Christian couple who can afford one really needs to spend that much on a Christian wedding to sanctify their vows?
1
So, if I own a bake shop and I decide I don't want to bake a cake for an evangelical couple because they are bigoted against gay couples, how would that play out?
Would the evangelical couple then proceed to call me out as a bigoted anti-Christian?
2
Mr. Phillip's believes that his religion trumps (pardon the pun) the U.S. Constitution. Gay marriage is legal, just as legal as women's right to vote.
The question then is do we follow god's law or our Constitution? If that is the case do we get to sell our daughters, stone sinners, own slaves?
5
When you are open to the public, you serve the public. To deny service based on your beliefs is discrimination, pure and simple.
2
The authors here advance an argument as weak as whipped cream frosting: it takes lots of effort to get it fluffy, but since it's full of air it collapses pretty quickly. Next time, they should try a buttercream. Oh, and stop condoning discrimination under the guise of religious freedom.
1
Since when is a custom wedding cake the artistic expression of the baker? The word custom, in this context and by definition, implies that the baker is simply a tool for expressing the client's vision. Wrapping this bigotry in a First Amendment argument is vacuous.
1
If the Supreme Court has deemed same sex marriage Constitutional, then refusing to bake a cake for a same sex wedding party is illegal, pure and simple. I do not get to choose which Supreme Court decisions apply to me or do not apply to me. Neither can a random baker.
2
Once upon a time, and for some that time lives on today, folks among us believed that God made people with light skin more uniquely human and therefore God's natural order justified refusal to serve darker-skinned people.
This might be perfectly OK with God, but I doubt it. It is certainly not OK with the US Constitution.
3
Just because Jack Philips may have what the Princeton and Yale authors describe as "religious and moral convictions" such that "he cannot in conscience" skillfully put the cake together for the gay couple, does not mean that those high-sounding convictions should be protected by law allowing him to refuse a service he would readily supply to others who has identity he approved of.
This is not complicated.
"Colorado’s order that he create same-sex wedding cakes... would force him to create expressive products carrying a message he rejects. That’s unconstitutional."
No, it is not unconstitutional, just as it would not be unconstitutional if Philips were required to supply one of his special cakes to a black person. If he were a racist, he might decide that supplying the cake to a person of color "would force him to create expressive products carrying a message he rejects". Switch race for sexual orientation, and you have the same issue.
Jack Philips' "religious and moral convictions" make him a bigot. It is that simple. That "he cannot in conscience" supply his speciality cakes to people with particular identities tells you that his institution-supported "conscience" is fairly rotten. Our two Princeton scholars are utterly obtuse on this. They have revealed themselves as like travelers -- something they likely will never admit to.
3
It is amusing how the authors of this piece dance around the elephant in the room. Their argument holds equally well for interracial marriage. Discrimination is discrimination, no matter how you try to twist it.
3
The author notes on this piece mention the authors' law and philosophy degrees, but neglect to mention any religious affiliation or other writings. George is well-known to have a very Catholic perspective. Is Girgis is also Catholic? It's hard to find a biography of him online. Both are co-authors of "What Is Marriage?" which argues against same-sex marriage. Noting these points is as important as noting that someone is affiliated with a political party: it affects every point in the text. Even better would be to put author notes before the article rather than after, as the Times does now.
2
Beautiful and valid legal reasoning. The mob will react with anger since they have zero understanding of constitutional law and base every opinion on feelings
The authors omit that the couple did not ask Mr. Phillips to use his artistic skills to put a specific message on the cake, but he had an issue with who it was sold to. Unless the quote from another opinion piece here (https://www.nytimes.com/2017/11/27/opinion/gay-wedding-cake.html) is incorrect:
"Phillips’s objection was about to whom it was sold; a user-based objection. The gay couple never even had the opportunity to discuss designs with Phillips, because the baker made it immediately clear that he would not sell them any wedding cake at all. Indeed, Masterpiece once even refused a cupcake order to lesbians upon learning that they were for the couple’s commitment ceremony."
2
This is a simple case of the State allowing someone to withdraw their services because they don't like someones supposed morality. For a baker, who cares, but what about a doctor, a soldier, a cop? That's the real issue here, the withdrawal of critical services on the grounds of personal freedom. I don't want to pay for birth control as part of your healthcare, so I withdraw it. I don't approve of your lifestyle so I don't enforce the law for you. This is the stake.
4
Trying to justify the baker's refusal to sell a wedding cake for use at a gay wedding on the ground that the cake constitutes some sort of "artisitic speech" is a stretch at best and would, for example, create a distinction between "custom" wedding cakes and "cookie cutter" wedding cakes.
But there is a much broader ground for justifying the baker's right to refuse to sell a wedding cake for use at a gay wedding. Consider the following scenario:
Let's say a straight, female friend of the gay fiancées walked into the bakery (or a jewelry store) and said my gay friends are getting married and as a surprise I would like to get them a (plain) wedding cake (or plain gold wedding bands) as a gift. The baker or jeweler then responded that they won't sell her those (ready-made) items because their intended use offends their sincere religious sensibilities.
What law would the baker or jeweler break? He/she is certainly not refusing to sell a product based on the sexual orientation of the customer, who is straight! And if it's legal for the baker or jeweler to refuse to sell their products in those circumstances, how could it all of a sudden become illegal if the gay couple themselves seek to purchase these items in connection with their wedding? This has nothing to do with artistic expression. Both cases are simply refusals of the store owner to sell a product for a specific purpose based on his/her sincere religious beliefs and has nothing to do with who the customer is.
George and Girgis is misrepresenting the facts of the case. When Jack Philips denied Charlie Craig and David Mullins their wedding cake, there was no discussion of decoration of the cake: Phillips denied them the cake on the basis of same-sex marriage alone. There is no dispute on this fact. For all Phillips knows, Craig and Mullins could have asked for a cake with no decoration alone. This is simply a classic example of rank discrimination pure and simple.
George and Girgis is simply appealing to our prejudices by injecting the issue of expression that isn't there. What should we imagine in our heads: the pious and tearful Phillips being forced to depict two gay men in an intimate act? They are clearly betting that the readers of their op-ed piece recoil at this example of state-forced coercion to create art. This is a ridiculous claim. I'm sure Craig and Mullins worked hard for their money, and they would surely avoid a cake decorator who's crying all over their expensive cake. This case is about the pain and humiliation inflicted on Craig and Mullins by a petty cake maker. In the U.S. you do not have the right to humiliate people in a public business based on your prejudices.
George and Girgis's editoral piece is itself an effort to humiliate Craig and Mullins. In a piece that mentions Phillips by name half dozen times, they do not have the decency to name Craig and Mullins. Prejudice works when you erase a person's name and individual identity. Shame on you both.
3
If you can't stand the heat, get out of the kitchen.
1
This is why people make lawyer jokes. A baker is not an artist, he/she is a baker. A cake is not a work of art, its a cake. He sells his wares in a store, not a gallery. His work is eaten, not collected by patrons etc...This is flat out discrimination. No different from refusing to make a cake for a Jewish couple, a black couple, a mixed race couple, etc.
The purpose of a wedding cake is not to be artistic but to be eaten. If the purpose was primarily to be displayed there would be a lot more uneaten wedding cakes in the world. And engaged couples wouldn't be spending a lot of time going cake tasting
It's disgusting to see so many here in the comments believe they have a RIGHT to someone's labor. You do not have a right to someone's labor, talent or time. They don't have to sell it to you and you should not be allowed to force them to.
1
While I applaud NYT for allowing Mrs. George and Girgis the space to offer their opinions they should have included that the two are authors of the book "What is Marriage?: Man and Woman". Where the description of the book goes: "Until yesterday, no society had seen marriage as anything other than a conjugal partnership: a male-female union. What Is Marriage? identifies and defends the reasons for this historic consensus and shows why redefining civil marriage is unnecessary, unreasonable, and contrary to the common good."
Simply posting their current positions within academia seems a disservice.
1
I could not agree more with this opinion piece! happy to see the New York Times is presenting an opinion contrary to what its majority of readers would agree on. Please keep it up!
2
Things conservative Republicans have taught me: cakes are speech and corporations are people.
3
The baker either sells wedding cakes or he doesn't.
1
The supreme court addressed this issue pretty definitively in 1878 (!!!!) in the case Reynolds V. US, which was about a man who was attempting to engage in plural marriage in violation of the ban on them. His argument was that the federal polygamy ban violated his religion. The court finding held, in part:
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband; would it be beyond the power of the civil government to prevent her carrying her belief into practice?
So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief?
To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.
3
If Jack Phillips refused to sell cakes to all sinners, adulterers, women who get abortions, people who engage in pre marital sex, I would endorse his right not to sell sell his cakes to "sinners".
But the moment he chooses to focus on just one group of sinners, he has forfeited his right to use the first amendment as a defense.
1
An interesting thoughtful argument for a difficult case.
Mr. Phillips can do as he pleases as Mr. Phillips. Masterpiece Cakeshop is a business, and is thus held to different requirements and awarded different rights than Mr. Phillips the citizen. In both examples cited in paragraph two, the "offending parties" were public entities - a state board of education (West Virginia) and a police officer (Wooley) - again, held to a different standard than a for-profit business. If you can't stomach cakes for everyone, get out of the kitchen.
2
The vast majority of people at a wedding reception don’t know who the baker of the cake is, nor do they care. They certainly do not see the cake as an artist statement made by the baker. They do see the cake as an aesthetic choice made by the couple in selecting it, and as a design, it reflects on them. And the cake is certainly intended to please the palette.
Consider this: A couple orders a custom wedding cake with certain ingredients and flavors (say, carrot cake) and of a particular design using colors that coordinate with other decoration at the wedding (say, cream colors), but when the day comes to make the cake, the baker just feels artistically that he wants to make something entirely different (perhaps that day he feels like making red velvet cake and putting dark chocolate frosting on it). When the cake is delivered to the reception, the couple is furious, but the baker insists that this cake is a statement that reflects only his “ideas and sensibilities.” The couple scream that this cake is awful and they hate red velvet, but the baker fires back, “That wedding cakes are edible is utterly beside the point.” Ridiculous!
1
I grew up in the segregated South. I clearly remember segregationists, in the 1960s, quoting scripture as an excuse for their oppression of African-Americans.
3
This article conveys one opinion: there are equally cogent arguments in favour of Colorado's decision. There is one thing which is clear. Since Gorsuch's appointment the result of the case before SCOTUS is a foregone conclusion, in favour of the un-Christian baker.
Authors Robert George and Sherif Girgis have, together, spent nearly a quarter century working to oppress and criminalize LGBT people, and to block civil marriage for same-gender couples. They do this because they are authoritarian theocrats who want their Vatican City religious superstitions written into the civil laws that govern everyone everywhere, including people of all other faiths, and people of no faith.
Modern, educated, democracies do not behave that way.
George and Girgis falsely pose as defenders of the First Amendment, but that's just a clever ruse. When they claim that granting equal civil rights to LGBT people denies the rights of bigots, they're actually just hiding their religious superstitions, and wrapping their fascism in a flag and a cross.
6
I don't understand how this is enforceable. How does Mr. Phillips determine who is heterosexual or homosexual when a customer walks into his shop. Does he have some kind of gaydar? If I wanted the wording on the cake to say: Love with the names of two women on it, do I need an affidavit to prove it is not for a gay couple? I think Mr. Phillips needed a psychiatrist to examine his homophobia and not a lawsuit.
1
although i grew up thinking it was best to be polite about other people's religion, i know feel obligated to denounce evangelical and fundamentallst relgion for the ignorant fraud it is. let trump help em if they need. i won't.
2
Don’t you just love lawyers and their scientific analysis of human behaviors. I could never be a lawyer as much as we need the rule of law. I could never defend a racist or a pedophile, and yet our constitution mandates their rights. It is a slippery slope,if you allow discrimination based on religion or some insane belief system than you have to allow it for everything. I wish I could discrimate against all religious people, all of them. Imagine no religion.
1
My first amendment rights let me believe that all black people are sub-human and should not be allowed to live in the same neighborhood, eat at the same lunch counter, or even sit on the same bus with any white person. That may be offensive to some, but all my friends agree with me, so too bad if it offends you. That was the argument 50 years ago. No different than what's being offered here -- except that the object is a gay couple.
Your right to your beliefs and you right to express them stops when your exercise of those rights becomes an act of discrimination against others.
Don't want to "sell" to "those" people? Then don't open a retail shop that by the very nature of it's business license is "open to the public."
Any twisted interpretation of "religion" that supports deliberately doing harm to others, discriminating against others, demeaning people who don't happen to believe what you want them to believe, and holding up a "holier than thou" standard in the name of "religion" is disgusting.
What a sad, sorry commentary on "freedom."
6
I have never understood this case. It is so pushy and narrow minded. Order the stupid cake somewhere else if you insist on having one. It is not as if a wedding cake is a human right or something, and it is not as if there are not loads and loads of bakers who would be all to glad to create one for same sex couples. Give the guy a break. The cultural war has already been won, and magnanimity in victory is a beautiful thing.
6
If he can refuse to bake a cake for a same sex couple, then it would follow that someone could refuse to bake a cake for a christian or a jew. Is the religious right ok with allowing business to refuse similar services to a christian?
2
I can't tell who's dumber in this situation. The baker, for turning down business (aren't small businesses fighting for each and every customer?), or the gay customers for not just buying a cake someplace else.
Don't eat where they don't want to feed you.
2
I wonder if a painter would be forced to paint a custom commissioned portrait of a gay couple?
2
I can't even get past that title. Ridiculous.
1
Can I get some help here? Will the courts support my not paying taxes because I have religious objections to using sacred land for oil wells lands the the government is leasing?
And those pesky highway signs, not for me, as I am of the "Freedom of Movement" church - are you going to force me to comply with this one?
When this new tax law goes into effect will church's freedom of speech extend to all the latest and hatest, from yammering on about how great pedophiles are to homilies on the grandeur of the white race?
1
Should a performing artist be compelled to sing at Trump's innauguation? Should any bake shop be compelled to bake a birthday cake for him?
1
Does this mean that it's o.k. for Phillips to deny a wedding cake to mixed race couples? How about those who are divorced and remarrying? How about a pregnant bride? Muslims? Jews? Order of the Eastern Star? Atheists? Democrats?These are all potentially objectionable people for Phillips. A bit of web browsing will show you all of these are violating some part or another of Christian Sharia law.
If claiming a religious prohibition works for gays, then all of the above are also fair game. Let the discrimination begin again - just like it used to be!
1
Forcing Jack Phillips to make cakes for mixed-race weddings is unconstitutional.
Forcing Jack Phillips to make cakes for Latino weddings is unconstitutional.
Forcing Jack Phillips to make cakes for Muslim weddings is unconstitutional.
Forcing Jack Phillips to make cakes for Jewish weddings is unconstitutional.
Where does it end, esteemed professors?
3
This guy the baker should get a real job in the actual world. Everyone else has to do things they don't necessarily like to stay employed. Could it be against the religious convictions of an artistic garbage collector not to empty his trash?
On the other hand, will some gay marriage be a failure because the bride and bride or groom and groom can't get a cake from Jack Phillips? I sure hope not.
1
This whole case is absurd. The position of the cake man is equally as absurd as the position of the gay couple. Take your business elsewhere and tell all your friends about the great bakery you found. Baker can go to church on Sunday vindicating himself that he didn't capitulate to the gays.
If their reasoning is ok, that it is a 1st amendment right then it would be perfectly ok to discriminate against anyone for any reason, inc race and religion. We go back to colored or white only. No jew or irish wanted, etc.
1
If the Christian cake maker wants to stay in business and make money from the sale of cakes all he has to do is ask the gay couple what they would want on the cake. He could simply explain to them he is not knowledgeable of the Gay lifestyle and does not have the creative wherewithal to create a Gay cake, and therefore would ask the gay couple to define the expressive elements to include on the cake. That way the gay couple would be the creative force and the cake baker would be the mechanical means of preparing the baked goods. He need not exert any creative talents while creating the cake, just the means of producing the creative ideas of the couple contracting the cake. This is standard business practice.
Really? Then I'll refuse to serve pay my increased taxes as an exercise in free speech and I'll refuse to do anything for any member of the GOP, they offend me because they are amoral, liars and thieves, particularly Trump who is working as fast as possible to turn this country into a garbage dump while stuffing all the money into his pockets...
2
And if a baker doesn't want to make a cake for blacks? No cakes for Chinese people? Where do you draw the line regarding tolerance of bigotry?
2
What if Jack sincerely doesn't think the Bible supports interracial marriage? What if Jack thinks that celebrating a gay birthday is supporting a gay lifestyle? What if Jack requires people to prove they are legally in the country before he makes them a cake just to make sure he's not supporting illegal border crossings?
What if Jack doesn't want to make you a cake because there's just something about you, and that something turns out to be your skin color?
2
All the baker is doing is baking a cake. why should he care what his customer does so long as they pay the bill. That is the capitalist system. lump it or leave it.
Religious beliefs should stay in a person's heart and not become a social crusade.
What is next a Christian jihad?
3
To those of you acting as if discouragement of homosexual activity is un-Christian, I suggest you read the Bible, or at least the New Testament. Better yet, read it in Greek, so you actually know what it says.
Paul writes of homosexual activity with moral outrage, calling it παρὰ φύσιν. Especially given Paul's Stoic influences, that epithet is as serious as it gets. And then of course there's all the stuff in the Torah about stoning gays with stones and whatnot.
There really is no historically honest way around the fact that the Bible is anti-homosexuality. If you think otherwise, you're just torturously twisting a brutal old text to make it chime with your gentle modern sensibilities.
Would this baker make a cake for two people named Pat?
Don't operate a public business if you have no intention of serving the public.
All of the public — not just those who pass your specific 'religious' litmus test. Denying service to same-sex couples is discrimination.
You're bigotry disguised as 'faith' is fooling no one.
3
So, is a white nationalist well within his constitutional rights to not make a cake for a black couple or an interracial couple b/c he has a first amendment right to discriminate b/c of his belief that a mixing of the races is biblicly wrong? Please.
2
Just to clarify: the authors are saying that it should be legal to make cakes for confirmations but refuse to make cakes for a Bar Mitzvah. Let's make America's anti-semitism great again!
1
You'd be more persuasive if you were defending speech you personally found offensive, but I don't think you are.
"In order to avoid making a bad impression on foreign visitors, signs with extreme content are to be removed; signs like 'Jews are not wanted here' are sufficient. 29.1.1936." Berlin-Schöneberg
3
Does Mr. Phillips bake cakes decorated for Chanukah? I know a gay couple about to get married who would like to order 50 of them.
2
You own a business that serves the public. You serve everyone who comes in the door. What if Starbucks refused to serve people with red hair? Would that be ok?
This man is just a bigot. Perhaps unsure of his own sexuality. Don’t we have more important worries aka our president than to worry about this?
1
So in conservative circles i) Corporations are people, ii) baked goods are "art" and bakers should have free right to discriminate against customers, iii) nazis and white-supremacists are "very fine people", and a pedophile is endorsed for the Senate by the sitting POTUS in the name of supporting principled "conservative values".
I don't fault the NYT for allowing free discourse and agree the first amendment is precious but the corollary is that responsible people need to counter this ridiculous wave of "intellectual thought" wherever it surfaces, including this winner from Professor George, Chairman Emeritus of hate group known as National Organization for Marriage.
2
Oh please.
The first time somebody tells me they can't sell me a jacket or a book because of my race or political beliefs or marital status, then you'll have an argument.
These people are just bigots and haters. Shame on them. The Bible doesn't give you armor to torment people you don't approve of.
3
I wonder what the top comments would be if the baker refused to decorate a cake for Donald Trump's inauguration.
1
The business sells to the public.
Gays, Jews, women, blacks, seniors, etc are the public.
Get over it Phillips. Paint a picture of one of your preferred "normal" cakes if you want to "express" yourself.
3
Wait a minute. Hasn't the Supreme Court ruled already that gay people come by their sexuality naturally and are inherently attracted to the same sex and thus deserve the rights of all individuals? You can't in any way discriminate against someone's natural state of being. A Nazi isn't born a Nazi (thank goodness), a war protester isn't born a war protester, so I don't buy your analogies.
Certainly countries around the world discriminate against such differences, but Americans have a Constitution that doesn't allow for such narrow and ignorant thinking. All men and women are create equal. Start from that premise and every right, including marriage and the benefits therein, then becomes the right of all men and women. Period. Nothing usurps equality in this country.
3
Nice try, but substitute 'black' or 'Jewish' for 'gay' here and ask yourself if that's not discriminatory.
3
How unbelievably misleading. The authors write: "custom wedding cakes are full-fledged speech under the First Amendment." The baker refused to sell ANY cake, custom-made or generic, to this couple. How can an article that fails to take into account this basic fact be published by the Times?
3
Phillips is clearly a bigot and the First Amendment does protect the Gay couple. It's that simple. Phillips will lose the high courts ruling and the writers of this article are clearly bigoted themselves. Shame on both of you for writing such a case for discrimination!
3
Could a Jewish baker or a Muslim baker deny Christians a wedding cake?
2
The only thing that confuses me is where does it end? How is this (and homosexual bakers not making a Christian cake) not the road back to a Jim Crowe like situation? Seems like I open a store, I need to accept everyone's money. Otherwise discrimination will run rampant. Coming soon to mall of America 3,000 water fountains!
2
The Times printed different facts about the case than those misrepresented here by George and Girgis:
https://www.nytimes.com/2017/09/16/us/supreme-court-baker-same-sex-marri...
2
My how we love to hate.
I'm surprised and pleased to see the Times give this argument space after an endless stream of articles for the other side.
1
Such weasel words. Let's turn this on its ear. A straight white couple comes into a black man's bake shop and asks for a representation of themselves on the cake. His "artistic and/or religious sensibilities" are offended - whites are devils that simply don't rise to the standards necessary to commit to "Holy Matrimony". Whatever. Substitute any person, race, religion, couple, event (bat-mitzvah? Only men should........) and you can summon offense. This case is about discriminating at will.
2
Rubbish. You may as well have a sign saying "no blacks, no dogs, no Irish".
It is hate, it is the exact same thing. Discrimination, denying a service based on hate. I hope this baker loses his business.
2
This is an easy one...
Should atheists be able to ask Jack to inscribe - or otherwise specifically ornament - a cake saying:
"Jesus was a fraud"
Should Nazis be able to ask Jack to inscribe a cake saying:
"Judaism is a fraud"
Should African-Americans be able to ask Jack to inscribe a cake saying:
"White Lives Don't Matter"
If not - why should he be asked to inscribe a cake saying:
"Heterosexuality is a fraud"
He should be required - and as an American citizen, want - to bake a cake for anyone who comes into his place of business...
Atheists, Nazis, African-or-Asian-or-Indian-Americans, or any/some/all of LGBTQ...
But asking him to inscribe...
We'll - it's the cake-writing analogue of:
"Your right to swing your fist ends where my jaw begins"
Good Luck Jack.
1
This is America. If you want a gay cake, hire a gay baker. Sorry.
If he sells wedding cakes he needs to sell them to ANYONE period. If I give haircuts I need to give them to ANYONE. It is pretty simple. This is a STORE. If he has religious objections to the laws of the land he needs to stop selling those products.
2
Artistic expression should not be legislated......I agree with the baker.......and I wouldn't design a house for him.
This guy--and his supporters--would, if confronted by the historic Jesus and His Disciples, label them as a bunch of degenerated living with a prostitute. So much for these "people of faith."
"Religious liberty" is code for "freedom to hate."
If this case isn't won by the baker we might as well give up on the American project as a whole
Freedom of religion trumps anyone being offended
Sexual orientation and race are not an analogue
Race is utterly inherent
Orientation - as the left so vigorously protests these days - can change at a whim
Would we permit a baker to refuse to make a cake for an African-American couple, because he believes in white supremacy? Would we permit him to refuse to make a cake for a Catholic couple, because his a Protestant? Would we permit him to refuse to make a cake for a couple in which a Protestant is marrying a Jew, because he does not believe in marrying across religions? No.
1
Let's see, the owner of the Heart of Atlanta motel has a religious belief that the races must be separated and accordingly denies rooms to any persons of color. His provision of motel space is "compelled speech"?
1
As a Christian, I believe that Jews do not accept Jesus Christ, so I should not have to serve them.
No wait as an Evangelical Christen, I believe Catholics practice idolatry, I should not be forced to serve them.
No wait as a White Christian I believe that the Bible teaches that races should not mix, so I should not be forced to serve interracial couples.
Of course, Muslims are out of the question.
If it is not a cake but houses I am designing and building, as a skilled craftsman, I don’t want to sell to these people. Is that protected by the first amendment?
2
Assuming for one moment that this man's work is considered "art" how does the following play out? In the Civil Rights Act there is a section which states any business which sells food for consumption on the premises may not discriminate against any of the protected classes.
What happens then, based on this premise, when chefs decide their cooking is protected speech? It is called the "culinary arts" is it not? We're headed right back to the Woolworth's lunch counter with any chef declaring they don't have to serve African Americans, Gays, or *gasp* even CHRISTIANS. Who determines which food is ~art and what's merely grub? Will Muslim architects be allowed to turn down Christian clients? Will gay makeup artists be allowed to turn away Christian wedding parties?
The use of "religious freedom" as a tool to badger any group other than white evangelicals is a disgusting farce. I can't wait to hear how loudly they cry the first time they are turned away, especially when they are told they brought this upon themselves.
2
Of course. Next thing you know, "they" will be wanting cobblers to repair their shoes the same as any others.
Good heavens, man, are you really advocating for equality? Next thing you know, "they" will be expecting pharmacists to fill their prescriptions, too !
2
Take your business elsewhere. I'll bet there are other folks who would bake a glorious cake for a gay couple.
Let all your friends and family know about the bakers policy. Some will agree, some won't.
Is it so different than segregated lunch counters, drinking fountains?
Based on the article, it certainly that this is the salient point:
"At some level, Colorado itself gets it. Three times the state has declined to force pro-gay bakers to provide a Christian patron with a cake they could not in conscience create given their own convictions on sexuality and marriage."
If this is the case, then a double-standard is being applied that should not stand up to legal scrutiny. Either the gay bakers bake Christian cakes, or the Christian baker can refuse to bake gay cakes.
The law must be applied equally and fairly to everyone, period.
The facts of this care are not so different than the landmark 1968 decision: Newman v. Piggie Park Enterprises, Inc. that is the basis of public accommodation law in the US. It's really not much more than BBQ v. Pastry.
But if I understand Professor George and Serif Girgis correctly, if Maurice Bessinger made really special BBQ with a secret sauce that was his artistic impression he would have been able to deny service to Ms. Newman.
Or maybe is wasn't the BBQ sauce, maybe it was the decor that was his artistic expression. So if I am correct, according to Professor George and Serif Girgis any place of public accommodation that has uniquely styled decor can discriminate. So any franchise restaurant has to take all people, but a restaurant where the owner takes pride in how the look of the restaurant reflects his sensibilities can refuse to serve people of color, the LBQT community, or let's say Jews.
Does a picture of my family behind the cash register count? What about one of the personalize pizza boxes that are integral to the brand of the local pizzeria? I mean if we're splitting hairs, what the heck.
2
It's interesting that some folks don't get that while this is a 1st Amendment case, it's not a religious liberty case. It's about speech - or the right not to speak. Let's face it the largest group of bigots in the country are christians but this sort of case might have unintended consequences for our right not to profess any faith or belief in a god or gods.
The salient issue is customization vs off the shelf product. A business owner should have no basis for refusing to sell a commodity product to anyone who walks in the door of a business open to the public. On the other hand, no business owner should be compelled to make something customized, period. No one has a right to compel someone else's creativity. Based on other comments it appears the specifics of this CO case are questionable (not a custom cake??) however let's keep to the general issue and flip the situation around. What if a skinhead group went into a Jewish-owned bakery and demanded they create a custom Nazi-themed cake? The Jewish baker should have every right to refuse, and so should anyone else in a similar situation where customization and creativity are involved. It is not a first amendment issue.
Just let's just boycott this guy and move on. We have much larger problems than some weirdo who won't even make Halloween cakes. Who cares? The gay community should not make this our issue. How about protection from hate crimes?
This seems like more of an intellectual “cat-fight” than a case worthy of Supreme Court consideration.
Recently a chef would not “put the sauce on the side” for my entree as it ruined the artistic presentation and culinary delight of his fish creation. Was this discriminatory?
In an attempt to be pragmatic it appears the bakers attempted a reasonable accommodation. More so than in my example above.
What would the thoughts be if the couple asked for something as outrageous as “Heil Hitler.” Would the baker be forced to use their own cursive handwriting?
More disappointing is what this says about us as a society. Why couldn’t they just work it out?
Meanwhile, there are more substantive issues of discrimination in commerce than the final touch on a cake or my sauce on the side to help set more substantive precedent.
I have a hard time believing that Mr. Phillips' cakes are better than those being prepared by gay and other bakers. In fact, I don't believe it. My advice to gays is search them out. Why go out of your way to experience nastiness?
Could I force my local kosher butcher to sell me pork ?
Just asking.
1
Fight with you wallet and pocketbook, Denver. Put this man out of business - fast.
2
Sorry but I’m not buying this weak argument. I have no patience or compassion for bigots who try to hide their intolerance under the cloak of the first amendment. No one is restricting this Baker from using his free speech rights to get out on a soapbox and rail on about how gay marriage is supposedly destroying our country. Americans are just asking him not to discriminate against people...you know, kind of like the Golden rule
2
Can a Jewish bakery refuse to bake a cake for the wedding of a Jew to a Christian? 50 years ago, Many American racists cited the Bible as their justification for discrimination against blacks. The Bible says that women should be subject to their husbands. Can Chick-Fil-A refuse to promote women based on this passage. If you have a business, you should have to serve everyone and obey anti-discrimination laws.
1
Wouldn't it be a stronger case to argue that the Baker isn't discriminating but simply limiting his services? It sounds like if a gay couple had bought a birthday cake he would have sold it to them. Likewise if a straight couple had asked for a cake for a gay wedding he would have denied it. So it seems to me he's not discriminating against people but limiting his services: he doesn't sell cakes for gay weddings. Perhaps the way a Jewish deli doesn't sell bacon
Not only is baking a cake not creative work he is not being asked to endorse the wedding. His First Amendment rights do not even come into play. Thus if he does not want to make cakes for gay weddings then stop making cakes. If this causes him to go out of business good.
Mr. Phillips creates cakes. He creates cakes for everybody who comes in the door - oh - unless they're getting married. Then he creates cakes only for people whose sinlessness qualifies them for his extra-special super-duper BLESSED by the BAKER wedding cake. He does not post the disqualifying sins on a signboard. He hides his contempt until a couple arrives to choose the decorations. If the cake is for a same-sex couple, Mr. Phillips escorts them to the door, declaring that their wedding is not sanctioned by his church and does not meet the requirements for him to create that cake.
Oddly, Mr. Phillips does not have an opinion on adulterers, thieves, divorced persons, arsonists, coveters, home-wreckers, green-card shammers or gold-diggers when it comes to sins that might disqualify a seeker of tasty wedding bliss. Just that one sin makes all the difference for Mr. Phillips.
1
Thanks, Mr. George. You've established that Mr. Phillips is a bigot. I am puzzled why the couple would want to patronize a bigot, but so be it. Would his refusal to create this wondrous work of art entitle them to surround Mr. Philips's bakery,
with signs stating that he is a bigot?
This is a dispute between two private parties. It should never have reached the Supreme Court. A judge could have resolved it by requesting Mr. Phillips to pay a less prejudiced baker the cost of making this work of culinary art.
P.S. It should be noted that one of Mr. George's prize students was another bigot, Senator Ted Cruz.
This article is wrong because it got the facts of the case wrong!
Phillips refused to bake the cake before he even knew what the customers wanted. He refused because the customers were gay.
All of George's and Girgis's rant about forcing artistic expression about something that Phillips finds offensive is irrelevant, probably correct but irrelevant. Phillips indeed should have the right to refuse to bake a cake with depictions of pornography, nazi-ism, violence or overthrow of the government. But, a generic wedding cake would have been a standard product and refusing to provide that product to a gay couple is against the Colorado anti-discrimination statute.
All the blather in this article about Constitutional protections for Religious Freedom is simply a red herring and distracting smoke that may feel good as a point of discussion to the religious right, it just has nothing to do with the fundamental case.
2
It is very seldom that the right wing make a cogent, intelligent, thoughtful argument made on facts, logic or any thing that could remotely be considered common sense. I believe this argument is one of them or perhaps the only one in recent history. However, it is similar to the other argument with which California taxpayers (and others in the country) are forced to pay millions in taxes so that the right wing racists can also have their free speech. So perhaps the baker should be allowed to promote his version of hate because that's indeed what his so-called "Christian beliefs" really are - just another form of the pseudo-Christians espousing their despicable and contemptible racism, homophobia and ignorance.
Saluting a flag and placing a political logo on your car are tangible "expressions," not only of debatable ideas, but of ideologies. By analogy, fixing a gay couple's car could be denied to them if the mechanic found they were driving to a gay wedding, etc. etc. These analogies with "free speech" are too foolish to bear discussion, so I hope the SC tells him that. Once that's litigated, this Westboro baker should be legally able to refer the gay couple's order to a non-bigot baker on contract. Gays really should pick and choose their battles. Like, who wants to eat a bigot's cake??
Baking is not art. Period.
So...can you refuse to bake a cake for a mixed-race couple on religious grounds? (The writer mentions chair rentals as a red herring; that's not the equivalent case.) How about Jews, or the disabled, because you think G-d doesn't like those people?
The answer is, sure you can refuse, as long as you don't bake cakes for other people.
It's fine to refuse to bake for bigots, for Halloween party-goers, for lewd bachelor's parties because those aren't legally protected classes. Once society decides that a certain group (racial groups, women, gay people, the disabled) is protected because of an ongoing pattern of discrimination, you lose some of your freedom of action.
That's the whole point of anti-discrimination laws.
2
The baker is just mad because his boyfriend the candle-stick maker made it with the butcher--his meat was far superior to the baker--who has WAY too much sugar in his tank.
I feel bad that you wasted so much time writing this long piece when by sentence three you specified a false concept which undermines your entire argument: “...to say, do or create anything expressing a message”.
Actually, being gay isn’t a “message”, or an opinion, it’s a biological fact. Can someone refuse to serve women? African-Americans? Left-handed people?
If you don’t think being gay is something you’re born with, please go make some gay friends and ask them when they first remember choosing to be gay.
1
Baloney! A cake is not artistic expression. It's a decoration meant to be pretty or amusing. Anyone who thinks that a decorated wedding cake is art clearly knows nothing about art or is truly disingenuous. Anti-discrimination laws have been created to protect society from hate mongers like this baker who hides behind religion to practice discrimination. This bake'rs only expression is hate.
If Mr. Phillips was a bakery employee and refused to bake a cake for a gay couple, he would most likely find himself unemployed.
1
Here is the error in the Op-Ed. The couple is not asking Mr. Phillips to make a cake that celebrates gay marriage. They are not asking him to express an opinion. In fact, he would not even discuss the design of the cake,
He is refusing to make a cake solely on the basis of who is buying it. This is the very definition of discrimination.
1
So, if his religion "disagreed" with inter-racial opposite-sex marriages, then he could decide not to bake a cake for them, too? Hmm.
1
This isn't an easy problem to resolve. But why would you want someone to make a cake celebrating your wedding if he thinks you are immoral for marrying a person you love? Why support a business that is clearly homophobic?
Sorry boys, you're wrong, impressive credential notwithstanding.
The Supreme Court has ruled through Citizens United that money is free speech. And money is not a form of artistic expression- it permits us to purchase what we want. The plaintiffs had money, and were denied the right to spend it at a business that catered to everyone else but them. We don't denying corporations (aka 'people') the right to spend money, but Phillips denied the right of others to spend money on his product. And denying that is like denying others the right to speak.
And no false equivalents, please- compelling a same-sex cake isn't the same as compelling a swastika, a burning cross, etc., because those fall under hate speech. No court would support a white supremacist's 'right' to make someone bake a cake shaped like a death camp oven.
1
Remember when you could expect an open mind . . . when it had long hair and a beard?
George doesn't give the citation for the cases in which Colorado pro-gay bakers refused service to Christian bakers. I'd like to read those cases.
Let's be clear here. The plaintiff refused to make this cake not because of the content of the cake, but the use to which it would be put. Just as you could not compel a portraitist to include Nazi memorabilia in his depiction, no one suggested that Mr. Phillips here was being forced to design or produce explicitly gay themes on the cake in question. Instead, he objected to the *use* to which the cake was being put, a gay wedding.
Had the customer lied, and simply stated that the cake was for a straight wedding, there is little doubt that Mr. Phillips would have produced one on demand. If afterwards, the customer put a groom/groom topper on after Mr. Phillips was done, would Mr. Phillips then be justified at that point in taking back the cake? Obviously nothing in the creation itself violated his ethics, only the fact that it was for a gay wedding. The manner in which the product is employed is the speech of the client, not of the cake-maker. When white supremecists bring Tiki torches to a rally, that is not an expression of the torch's manufacturer, but of the bearers. The same logic applies to a cake, or a portrait, or a piece of commissioned music.
That distinction is what makes this a case of discrimination and not one of free expression.
Oh please. Selling cakes is his business. When you open your business you open it to the public, not just the public whose lifestyle you happen to approve of. This isn't hard. Discrimination is not a religious liberty.
Wedding cakes are speech? Then so are pulled pork sandwiches and Piggie Park was wrongly decided.
2
This article doesn't help me resolve what I discern as the crux of the issue: when can a private business owner choose to discriminate?
Could Mr. Phillips refuse to serve black customers if his religion dictated that?
It was not easy for white people to get served at Your Black Muslim Bakery in Oakland, CA. The clerks would not look in your eyes if your eyes were not brown. But they were serving stock items, just like Mr. Phillips. I have no idea if Your Black Muslim Bakery would make a custom cake for white people. But by law were they required to do so?
Really? What if he didn't like blacks? Or Jews? Or men over 6'6"? Are First Amendment Rights more important than bigotry or racism? He gave up his First Amendment Rights when he opened his doors to the public. If he doesn't want to serve the public equally and fairly then he should close his doors.
2
Is it okay, then, for gay firefighters to claim the First Amendment when his ovens overheat and his place catches on fire? Or for gay police to choose not to use their creative talents and investigate any robberies this man might have?
Is it okay for air traffic controllers to refuse to direct his flights? For gay medical personnel not to treat him?
No and no and no. This clown uses roads that are paid for by everyone and are crucial to his business. Ditto public safety. His bigoted "church" gets tax exemptions that are partially covered by gay taxpayers.
This is The Public Square. If he wants to only serve clientelle with whom he agrees, he should limit his business to members of his congregation. As soon as he uses the public marketplace, he is entering civil society and has to live by its rules.
Of course, he could make it easy on himself by posting big signs wherever his business is located - in person, in advertisements or online - that simply read "I will not serve gay people because I believe they are sinners".
He won't do this because he's a hypocrite - doesn't want to interact with the target of his bigotry, but doesn't want to admit it to the world because he knows his business will crash and burn. So he wants to be able to discriminate freely, but he doesn't want to have to freely admit it.
1
Such much baloney here it's hard to know where to start. Who knew that New Hampshire's state motto was "libertarian" in nature? Many of us who read history thought it was a sentiment expressed by a soldier who fought in the Revolutionary War. But let's not let facts stand in the way of a good confabulation.
Such as, making a cake is speech. Of course it is. What does the cake say? "Do you like chocolate? I like chocolate!" Or maybe, "Do you care about your waistline? I don't!"
The authors glibly float by the fact that "Mr. Phillips, who has run his bakery since 1993, sells off-the-shelf items to anyone, no questions asked." What a humanitarian!! But ask him for a cake; now, that's another matter entirely. The lawyer in me delights in anticipating the Supreme Court ruling that cookies and pastries don't speak, whereas cakes do. Cupcakes? Ooooh, gray area there!
So Mr. Phillips can't make a cake from the same ingredients with which he makes cupcakes, without incurring the wrath of God? So far as I can tell, that's the argument, and a pitiful one at that. Katzenbach v. McClung settled this issue 50 years ago. If you're involved in interstate commerce, you must serve all comers. Period, end of story. It doesn't matter if you like your customer's race, ethnicity, religion or hair color. Or sexual orientation. Hate other people? Then sell privately, to friends and family only.
There is no 1st Amendment issue here. There is just hate, for others and for our laws.
1
I sincerely wish that all the folks here saying this couple should have simply found another baker could actually experience this type of blatant prejudice directed toward them.
Imagine that I ran a pizza parlor and my pizzas were "unique artistic" creations. Then you come in to order one and I tell you because you are (pick any): black, divorced, old, fat, female, bald, white, Jewish, republican, blind, blonde, pregnant, Christian, parents, in a wheelchair, straight, ugly, etc., etc. that I will NOT serve you because as an artist I do not approve of you and I am claiming it's my religious right not to have to serve you.
I'll tell you what would happen. You'd be screaming bloody murder, posting videos on Facebook, threatening legal action and God knows what else when you finally experience what members of other groups have long faced. I can guarantee you would not be supporting me!
This is state-sanctioned bigotry and nothing more.
1
If they want to be in business, they must serve everyone equally. Anything else is discrimination. If they don't like it, then they can go clean toilets in the local chain store.
All he has to do is stop making wedding cakes. If he discriminates who gets a cake then he should go out of business.
Lots of people are confused about the difference between messaging and discrimination. A baker who refused to bake a confederate flag cake or a nazi symbol cake is not discriminating against anyone, they are refusing to create a message. A baker who refuses to sell a person a cake because that person is gay is discriminating. Those two scenarios are not the same.
1
"Or what about restaurant owners who exclude blacks because they think God wills segregation? "
We've already been though this back in the sixties.
Lester Maddox was ordered by a federal court to serve black people in his Pickrick restaurant but he refused. The judge then fined him $200 a day for everyday he denied black people service. Within a week he was out of business.
The law is the law for everyone. If Mr. Phillips doesn't want to bake gay wedding cakes then he can move to Georgia or try to change the law in his state.
Or find another profession.
That's what Lester Maddox did. He was so angry that those liberal outside agitators tried to make him serve black people that he went into politics and became the governor of Georgia.
The first amendment may protect bigotry but in no way can it be argued that it protects discriminatory acts. This baker (he's a bigot first, baker second), refused to make the same exact cake he would make for a mixed-gender wedding for this same-sex couple. No deal. Would the same claims be made if he refused to serve Jews or mixed-race couples?
1
I feel sorry for the baker. He wants to live in a time when gay weddings could be treated differently from straight weddings. Just like a racist baker in the 60s might have wanted to live in a time when interracial marriages could be treated differently from same-race marriages.
People always get left behind when society moves forward. If he can’t keep up with Colorado’s laws, he will have to drop out of making wedding cakes. At least now he can understand a bit better the pain his kind have inflicted on minorities as his bigotry becomes unacceptable.
Just one question--would the baker refuse to make a cake for a Hindu wedding, or an Islamic, Mormon, or Buddhist one, obviously religions that Evangelical Christians find to be heretical? or is it just gays that offend his delicate sensibilities?
1
He is probably correct that he has the right to refuse to put certain messages on a cake. If somebody requested a "Heil Hitler" cake, by all means it is his right to refuse. The gay couple did not even get a chance to request a specific cake, however; they were denied service before they even said what they wanted. Therefore his entire argument of saying he was refusing the message, not the couple, goes entirely out the window.
Cakes without writing are speech? Fuggetaboutit!
This, in the New York Times. Yes, the Times. It's such a short time since they stopped being a homophobic paper (I well recall the days when they wouldn't use the word "gay" or carry same-sex wedding announcements), and apparently it's such an easy journey back. Don't get complacent, my fellow LGBT. Our straight "allies" are becoming "fair and balanced."
Does he also have the right to refuse the business of Jews, Buddhists, Moslems, Atheists et al because their wedding ceremonies do not extol Jesus?
1
Since when has freedom of religion become freedom to impose your religion?
1
The baker is presumptuous to assume that the names on a cake suggest a homosexual cpuple and is under no obligation, just as he is not compelled to ask if the cake recipient has a criminal background that violates his religious beliefs, works on the sabbath or have stolen anything.
The baker has, in all likelihood unknowingly sold cakes to adulterers.
The baker should have customers fill out a questionnaire to satisfy his conscience, though that would be difficult to enforce and unconstitutional -
A cake isn't speech unless something is written on it. The whole basis of this argument is invalid.
And your photographer example is entirely wrong - any photographer who thinks Latinos are sub-human and don't deserve equal rights would have the exact same claim you embrace for the baker, to refuse to take pictures of Latinos.
1
Do George and Girgis think that a photographer has a First Amendment right to refuse to take pictures at an interracial wedding? Do they think that a baker has a First Amendment right to refuse to bake a cake for an interracial wedding?
Do think they that a Catholic baker has a First Amendment right to refuse to bake a wedding cake for a couple if one of the people to be married (in the eyes of the state) is divorced and has a living ex-spouse (and therefore is incapable of having a second marriage in the eyes of the baker)?
I could understand this first amendment argument if the couple wanted something written on the cake that the Baker didn’t agree with. But if the couple wanted a cake that didn’t have writing on it or something that would apply to any marriage then why would the Baker object? Apparently they didn’t get that far. The Baker didn’t want to serve them because of who they are not what they wanted on the cake.
5
There is a point at which legally forcing someone to make cakes they don’t want to becomes oppressive. But there is also a point at which telling people what kind of wedding they can have with the cake you provided becomes imperious and delusional.
To me, the right of a baker to control what is done with a cake is very limited. What if someone claims to be marrying a man, then marries a woman at the last second? What if someone buys a beautifully customized cake with ornate religious imagery then, in the privacy of their home, desecrates it in a Satanic ritual? Can the baker legally reclaim the cake to avoid misuse? How thoroughly can the purchaser’s intent fairly be vetted in advance?
1
"Unlike folding chairs or restaurant service, custom wedding cakes are full-fledged speech under the First Amendment." Not so fast. This is far from obvious. In fact, apparently the couple ordered a cake identical to one that would have been ordered by a heterosexual couple, but were refused because the cake would be USED in a same sex marriage, not because of any message the baker would put on the cake. So in fact, no different than ordering chairs. This is a slippery slope the court can't go down, or who knows where it will end? I wish the couple hadn't sued- I think it was to punish the baker. After all, once they learned of his views, why would they want a cake from him? But since they have, I think the court has no choice but to treat this as discrimination .
4
Shockingly, I cannot remember the name, or indeed appearance, of the person who baked my wedding cake lo these thirty years ago. I know it was chocolate, and people thought it tasted good. It was a nice, festive dessert. My husband and I are of different faiths, and the ceremony was chock-a-block with clergypeople, but no baker blessed our union. Public accomodation is a pretty simple principle to understand. So is cake.
4
'Note that this argument wouldn’t cover all requirements to make artistic items. The law may force photographers to do photo portraits for Latinos as well as whites since that doesn’t yet force them to create art bearing an idea they reject, which is all the compelled-speech doctrine forbids. But custom wedding cakes carry a message specific to each wedding: This is a marriage.'
This is the crucial paragraph in the authors' argument, yet it simply makes no sense. I don't mean that I disagree. I mean that I have no idea what the authors are trying to say in this paragraph. If this were a term paper, then I would have to give the writer a fail.
Sorry, but no. Just because a cake has some options -- round or square? Blue or green icing? -- and some design elements, that doesn't make it a meaningful expression about the wedding, except by its existence. And, as a brief by two law professors observed, “No one looks at a wedding cake and reflects, ‘The baker has blessed this union.’ ” The baker feels badly about using his skill to produce a cake, any cake, for a gay couple. Of the fact that he has those skills there is no doubt; the same is true of any merchant. Like them, he must be willing to use those skills in a non-discriminatory way.
3
I am getting sick of these lame excuses, and frankly both of the authors should have their law degrees revoked. They are making religious and cultural arguments in favor of discrimination. The law prohibits doing so.
Phillips is operating a business open to the public, therefore he has to serve the entire public. Everyone. Period (short of them coming in violating the health code, being threatening etc).
What's next? His religion or another business saying their faith does not allow them to serve other faiths? Other races? Mixed marriage? Second, third, or fourth marriages?
Bigotry, theocracy, and discrimination is all it is. This is not legal in the US. IF he does not want to follow the law he should close.
Why is this concept so difficult to understand? Any argument otherwise is frankly stupid.
2
Jack Phillips is to be commended for standing firm in his religious convictions. He feels decorating a cake for a gay couple is wrong and he will not sacrifice his values for a few dollars. There are not a lot of people today who would turn down profit because they do not agree with performing a service that goes against their principles. He has been forced to stop baking cakes and this is a travesty.
I hope the Supreme Court rules in his favor and let's him follow his conscience. He needs to get back to his cake business and start making cakes and earn the money he deserves. It is not just Mr. Phillips who has been affected by this injustice but his entire family. This is about religious freedom and expression and if this is denied what will be next.
1
Please don't spread this around, but I have actually changed my mind about this case. When I first heard it, I tried to argue that the baker was interfering with the First Amendment rights of the couple ... until I could no longer avoid the realization that the baker was facing a certainly limited, yet equally coercive demand upon HIS First Amendment rights.
What persuaded me, finally, was an entirely different case involving the public library in my home town. The library was sponsoring a program that offended a vocal opposition group. What the opposition did NOT want was a similar program at a different time to state their case. What they wanted was a very reasonable, easily understandable right to address the opposition audience and alert them that these folks were dirty, rotten liars, not to be trusted. What they really wanted was a public acknowledgment that they were being unjustly maligned by the opposition.
Because I decidedly disapproved of both parties, it was so plainly obvious that neither side in the dispute cared a whit about the First Amendment, and yet both sides wanted to use their right to speak freely while, perversely, arguing that the First Amendment demanded the coercion of their opposition. Local teachers on both sides eagerly came forward in the newspaper to argue that the First Amendment was clearly on their side!
I may not have been sufficiently polite when I explained their confusion to them.
1
I can see the authors' point here, but I have the following question. What part of the cake is the artistic expression? I assume the cake itself is generic, and according to Mr. Phillips a gay customer can come in and buy a pre-made cake. So is it the size and exact combination of cake and frosting color? You will have a hard time convincing me that this is an artistic expression any more than selecting two ice-cream flavors for a cone is an artistic choice. So it must be the decorative flourishes. A message written in frosting? Two male figures on the top? If this is what Mr. Phillips objects to, can he not pass this part onto someone else in his shop? (I do realize that he may, like many evangelicals, only hire other evangelicals) Otherwise it seems like a generic cake, made to order with certain stock embellishments, and there for is not really "speech" and shouldn't be protected.
Robwert George and Sherif Girgis opinion errs in numerous ways. Fundamentally, it errs by failing to take cognizance that the primary function of government to protect its citizens. One of those protective roles is to protection against specific types of discrimination. Colorado has chosen to protect sexual orientation, including prohibiting retailers from discriminating in this sphere -- e.g., bakers refusing to bake cakes for gay weddings. Colorado was correct in exercising its compelling interests. Second, it is interesting that George and Girgis's two examples of compelled speech involved government compelling individuals to promote government speech. That is not the situation in the Cupcake Case. Third, I would take issue with their valuation of the artistic endeavor. The difference between an "off the shelf" and a made to order cake typically doesn't require deeply personal skills. Bottom line, I find their arguments unpersuasive.
2
The baker's and the authors' argument based on the First Amendment's protection of speech is absurd. But so are the arguments claiming the baker's labor may be forced upon him. There is simply no Constitutional mandate for that. One would think the Thirteenth Amendment made that clear.
Not every wrong is amenable to government remedy. Societies that believe that such is possible are called totalitarian theocracies. All of us discriminate. It's called choosing. Some of us choose to hate the Yankees, and some of us (appallingly!) love the Yankees. Some choose to have an abortion, and some carry their fetus to a live birth. The American people have (so far) chosen to give Constitutional protection to some classes of people, as has been done by the Fifteenth Amendment, and have not chosen to give it (so far) to others. In this case, we are not talking about action that contravenes the Constitutionally mandated right of equal marriage access.
If the baker were, instead, engaged in an essential service, and there were effectively no reasonable alternative to his services, the case certainly could be made that, having an effective monopoly legitimated and maintained by state license, he must provide his service to all. In fact, that is the very legitimate reasoning that has been used successfully to argue against some state laws that have tried to restrict the ability to choose abortion by effectively making it extremely difficult for a woman to have access to a provider.
2
George and Girgis' own counter-examples point to a contradiction in their argument.
They agree that a photographer could not refuse to photograph a Latino couple because "that doesn't force them to create art bearing an idea they reject." Why not? The photograph is "art." I guess G and G's point is that the photograph reflects a fact, and the photographer apparently can't refuse to take the picture simply because he doesn't like the fact.
By apparent contrast, George and Girgis suggest that "custom wedding cakes carry a message specific to each wedding: this is a marriage." But the marriage is a fact, under the law, and not the subject of a "message" that Mr. Phillips gets to endorse or not endorse. He is not expressing an opinion, he is recognizing a fact.
I'm not suggesting this is the only, or the main reason why the Colorado law should be upheld. But it reflects a contradiction in George and Girgis' own argument, by which they try to sneak in a contention that a gay marriage is something less than, or more questionable than someone else's marriage, just because some people don't like the idea of it. This should be rejected, and I hope the court does so.
3
'Note that this argument wouldn’t cover all requirements to make artistic items. The law may force photographers to do photo portraits for Latinos as well as whites since that doesn’t yet force them to create art bearing an idea they reject, which is all the compelled-speech doctrine forbids. But custom wedding cakes carry a message specific to each wedding: This is a marriage.'
This is the crucial sentence in the authors' argument, yet it simply makes no sense. I don't mean that I disagree. I mean that I have no idea what the authors are trying to say in this sentence. If this were a term paper, then I would have to give the writer a fail.
3
Another obvious argument against this baker's bigotry.
Let's say the customers he refuses to serve live in the same city or state as his bakery. Let's say their tax dollars help maintain and keep clear the public streets that let customers travel to his shop. Let's say this couple helps pay for the police who will speed to his aid in case of a burglary, or the fire department that will rush to put out a fire in his building.
He can still refuse to serve them? He can take away even THOSE rights?
3
"All have sinned and fall short of the glory of God." That should be a bible verse most Christians are familiar with as it reinforces that no one is without sin. It's a reminder that none of us are perfect and we still help each other and not ostracize others. "He who is without sin cast the first stone." The baker states he wants to live and express his faith, yet he is open to the public. I've read the bible, I don't recall ever seeing a ranking of sin that iterates which sinners are okay to serve and which are not. He wants to say it is not discrimination, but every person that walks through his door is a sinner. Does the baker get the lists of sins from every patron? Does he get sin background checks on every mother buying cupcakes for their child? What if he's selling to an unmarried mother, does that violate his religious beliefs? I get the feeling it would be too cumbersome for a baker to get the sin background of all his patrons so if his religious sensibilities are not compromised by selling to other sinners then why is his soul compromised for this sin? If he is fine serving other sinners including wedding cakes for people who had multiple marriages, who may be drunks, adulterers, rapists, child molesters and who knows what else, why this sin? If he was truly worried about forced speech, he would have to perform sin background checks on all patrons before he sold a single pastry. Why this sin if it's not discrimination?
1
I'm sure the baker's cakes are very artful, but are they "art"? Free speech? My wedding cake was indeed desert, and not a centerpiece or sculpture, as George and Girgis assert. It was a sweet vanilla confection with pink roses intended to sate the sweet tooth of my guests. Moreover, the "message" of the cake was mine, as the cake was made according to my specifications and design.
As far as the assertion that most bakers won't feel like this one, and therefore there won't be widespread discrimination is ridiculous. In a rural place there might only be one baker. A protected class is protected, regardless of the number of bigots who choose to discriminate against them. What's next? Religious objection to inter-racial marriage? Would it be legal to withhold a cake from an inter-racial couple?
And how does the baker determine if the bachelor party will be lewd, so he can withhold a cake? Does he demand an accounting of the evenings activities, or does he simply bake the cake if he is not asked to produce lewd decorations. I'm fairly certain the gay couple did not demand a cake with obscene or "gay" images. If we allow jewelers, fashion designers, chefs, caterers etc. to discriminate against protected groups because it violates their beliefs there will be no end to the "artists" who can reject customers based on their bigotry.
2
I think it's counter-productive to force someone to bake you a cake if they don't want to. Take your business elsewhere. (General life rule, don't eat food prepared by others out of spite)
That said, if people want to use their religion as license to discriminate, whether against gays, blacks, latinos, whatever the courts allow, their business needs to post their policy in a prominent place, so everyone can see. I'm not likely to be discriminated against but I sure won't spend my money with people who do.
2
Is the couple asking for something that is that unique. Would Mr. Phillips make a wedding cake congratulating Pat and Phil, if he thought one was a man and the other a woman, but be allowed to refuse to make the same cake if he finds out both are of the same sex? I can see his right not to paint sex acts on the cake, but not to make a cake and decorate it pretty much the same way he makes other cakes and decorates them.
1
If we take this out of the kitchen (too hot?) and into the studio, would we be ok with a portraitist who declined the offer of a commission to paint someone whom she loathed?
Tough? Agreed. Torn? Yes. Will I buy a cake from Mr. Phillips? Not likely.
The man is a baker. Bakers make and sell cakes. If I were a baker, I would want to sell as many cakes as possible. Who ever heard of a business saying they don't want to sell their product? Why is this so complicated?
2
There is an issue here I think not addressed by the authors. The baker decided to make a business out of his artistic expression. At that point it seems that he has to abide by the same rules as others and not discriminate based on who the consumer is. If he made these cakes at his home and used them to express his artistic sensibility or his political views, he could make a cake with a rabidly anti-gay massage and none could object. But deciding to make a business makse this a different story. Doesn' t it?
2
Some years ago, public businesses refused to serve African-Americans. Now we have public businesses refusing to serve same-sex couples. This should not stand. If you are open to the public, you cannot discriminate among your customers for any reason other than illegal behavior. If you wish to hide behind a religious argument, then stop being open to the public. Make your business private, and then you can do what you want.
You just cannot have it both ways.
2
The writers never actually rebut the obvious corollaries: if baking a cake is a form of expression by "celebrating" a marriage, then surely installing a water fountain to be used by both blacks and whites is a form of expression by "celebrating" dignity and equality between the races. Jim Crow southerners, you know, hated the do-gooders who were always staging public displays -- expressions -- of their own racial virtue.
Secondly, if the state cannot compel commerce which offends religious sensibilities, then next in line to be discriminated against will be ...religious minorities. Including Christian fundamentalists.
Finally, slippery arguments often can be identified by a lie. The lie I noticed here is that a wedding cake is expressive because it "celebrates" a marriage the proprietor doesn't believe in. But a cake celebrates nothing. It sits there until eaten. It's the people who celebrate a wedding. And the proprietor defies reality if he thinks that the couple is not already married, whether he likes it or not. He can't argue that he "doesn't believe in" the reality of a marriage.
2
I will assume that the cake in question had words and/or props (like two male statues) that proclaimed this as a cake for a gay marriage. Otherwise, it would be just another wedding cake and the baker is certainly discriminating against the gay men.
If the cake was to be adorned with obvious gay words or props, they were likely described to the baker, and therefore not really his art but the gay couple that told him what they wanted. Doesn't that mean that the "gay speech" was designed by the couple, making them the artist?
The artist is the one with the concept. Often artists have helpers or tradespeople involved in their art but they are just hired hands.
1
Jesus was explicit (Matthew 22:21) that people should "render unto Caesar the things which are Caesar's; and unto God the things that are God's." Since our civil laws are our version of Caesar, and our civil laws explicitly prevent discrimination against people because of their sexual orientation, Mr. Phillips ought not to be able to legally claim his Christian faith prevents him from selling his cake in business open to the public. If he wants to practice his closed form of Christianity, he should simply get out of the business of being open to the public.
But get real. The real story here is that this is a morally arrogant individual who's full of himself for happily spinning his own version of Christianity.
The sleight of hand used by the authors is clever, but not intellectually honest. They aver that forcing a baker to make a cake for a gay couple doesn't mean a photographer can refuse to take pictures of Latinos getting married because he/she prefers white couples. The level of artistic expression--in an abstract legal sense--is somehow different. All well and good, but can a baker refuse--and state openly his reason for refusal--to make a cake for Latinos (or blacks, or Jews, or Muslims, or an interracial couple, or, or, or) because said baker is offended? I think not. Nobody would support this action. Sorry Mr. George and Mr. Girgis but allowing a baker to refuse to make a cake for gay couples is, in fact, a slippery slope that we should not allow. The baker has the right to say publicly that he abhors gay weddings. He can attend a church or live in a town that is not supportive of gay people. He can give money to political candidates who try to change the law that allows gay couples to get married. But he cannot, under any circumstances, say that his public business, in the town square, won't provide a service to gay people that it provides other customers because of his religious convictions. Allowing that to occur is dangerous in more ways than one can imagine.
fyi, wedding cakes don't usually say anything. There is not usually a written message like on a birthday cake, or other event.
1
My own wedding was religious in nature. If the caterer had told me that our dessert was an acknowledgement of the religious sacrament, that would have been a bizarre statement.
1
The authors argue that there is no slippery slope, because "Unlike folding chairs or restaurant service, custom wedding cakes are full-fledged speech," because baking custom wedding cakes involves creativity and making design decisions.
But restaurant service is just as much of a creative activity as baking and decorating cakes. Chefs design their dishes with a particular aesthetic intent in mind, paying homage to some traditions and challenging others. They choose the ingredients and prepare the food with as much intent as a baker or cake decorator. They decide how to arrange the food on the plate, and even how the servers will present the dish. Even frequent orders are adjusted and tailored to meet the request of individual customers.
If a custom-baked cake is a form of speech, then so is a meal at a restaurant. If the first amendment gives a baker the right to discriminate, then it gives the restauranteur that as well. Once you claim that any craft that involves creativity and design is a protected form of speech, then anyone who practices a craft can discriminate.
35
I feel that the analogy is inappropriate. A chef crafts his dishes ahead of time using preplanned ingredients with a vision of what he would like his dishes and menu to be and to present to the diners. However a wedding cake baker customizes the cake for each individual customers entirely based on their preferences from the ingredients to the shape to the style to the message to the decorations. Dishes from a restaurant kitchen (while slightly customizable) are essentially mass produced (albeit on a smaller scale) based on a set template whereas each wedding cake is truly unique and cannot be anticipated or preplanned by the baker ahead of time. To say that a restaurant dish is similar to a wedding cake in terms of artistic expression would be like saying a Thomas Kinkade lithograph is similar to the Mona Lisa.
21
Sometimes a cake is a cake. Whose speech is this: the baker's or the couple's?
15
Suppose an inter racial heterosexual couple wanted a special wedding cake and suppose a baker believed inter racial marriage is a horrible sin.
May the baker deny service.
36
If couple wanted a wedding cake for an Islamic wedding does a gay baker have to do it despite being offended that their religion executes people for being gay?
There has been an Isreali boycott for a long time. If a baker refused to make a cake for an Isreali couple many of the left, including many gay activists, would loudly support it. Similarly, If a baker refused to bake a cake for people he knew voted for Trump the left would be rally to his side. Any reason why some prejudices are okay with the left and others aren't? The left has schizo views on who you can discriminate against and who you can't.
So did the couple ask the baker to put a message on the cake that would go against the baker's convictions? If so, then I agree with the authors. But if not, then how is the cake sending any kind of message? How is that comparable to waving a flag or displaying a motto on a license plate?
So, here would be the test: take the cake that the baker was requested to make, show it to 100 randomly selected people, and ask them what kind of message, if anything, they feel that cake is supporting.
23
@Bram,
It's not a cake - it's a WEDDING cake. For a SAME-SEX wedding. It's a CUSTOM made cake to CELEBRATE a WEDDING. And the baker doesn't want his CUSTOM product made with his artistic personal inspiration and feelings to be one of the vehicles of celebrating this kind of marriage. A WEDDING cake (is there a wedding caviar or a wedding salad?) IS a MESSAGE - of endorsing the wedding.
1
BOS and NFC (of, respectively, Boston and Cambridge MA) both argue for Jack Phillip's right to, let's say, make his distinctions from two perspectives. From the left, BOS says his fellow liberals should bow to the "disagreement" and "discomfort" of Phillips' supporters in the hope that that will make them more open to considering other liberal positions. From the right, NFC says Phillips' supporters should be given this one for the "tactical" reason of better "optics." It's interesting to see the same argument from both sides. And the same trivialization of an issue of great moment to an allegedly protected group whose protections Mr. Phillips is refusing to recognize---of great moment to anyone concerned with the current movement to establish religious stances against the explicit intent of the Constitution.
6
This is one of the best op-ed I've read in a long time. Whether or not one agrees with the conclusion, I think it presents the nuances and subtleties of the case in a way that is both clear and concise. Unfortunately, it seems that much of that nuance and subtlety, especially that surrounding the question of what constitutes "artistic expression" seems to be lost upon the majority of the commenters here. It does sadden me greatly that overgeneralization and strawman attacks are not just confined to pundits on the right.
29
Running a business that makes something and refuses to sell it to someone based on race, gender, etc, is against the law. It's called discrimination. By offering a service in the marketplace and then refusing to serve gays is the same as putting a sign in the window saying he doesn't serve gays (or blacks, or people from Ireland, etc). There is nothing subtle about that.
There is no over generalization here. Many are saying you cannot discriminate against a protected class by calling the commodity you produce art. Caterers, chefs, fashion designers, florists, etc. can all declare their products "art". Can they refuse service to an inter-racial couple based on religious conviction. Why no, they cannot. Would he refuse a Jewish person a cake for a holiday because he dies not share their beliefs? Not a straw man attack. The logical extension of the claims of the baker.
Well if that is how they feel and that is his right, let's play devil's advocate here.
I have worked in Emergency Medicine for 15 years, I think I have right not to treat this man if he is dying.
Here is my argument, same-sex couple is a sin and there is only one unforgivable sin in the entire Bible. So if he is able to place judgment on sins being a sinner himself even if the Bible tells us we shouldn't. I think he isn't following the Bible correctly and he is acting as he is without sin and I can no longer serve him medically. I only serve one Perfect God, and he doesn't make wedding cakes.
So please crash and start dying in front of me because I think I now have the legal standing to enjoy watching you die because we don't need haters in this world hiding behind a Bible. I would take the chance to see that go to court, to see how quick they will protect my religious rights.
14
@Virgilio Rodriguez,
I think there was a case where a doctor had asked to be recused from implementing some procedure to a lesbian couple on the reasoning that she couldn't guarantee her professional ability to help wouldn't be diminished by having her beliefs opposing their lifestyle. And she was accommodated.
1
Except your medical expertise wouldn't qualify as creative expression.
There is only one rational public policy for handling all matters that boil down to someone asserting that "God" has a stand on some issue that cannot be denied. All of them should be denied.
32
This Op-Ed piece seems to start from a deliberately mis-represented premise. Mr. Philips was not asked to produce a cake with a message that promoted gay marriage -- I would agree that his first amendment rights should apply in that case. He was simply asked to produce a cake that would be used in a gay marriage. His opposition is not to the artistic message that would be on his cake but to the fact that it would be used at a gay marriage.
By the (strained) logic of this piece, the owner of a gasoline station could refuse to sell gasoline to a homosexual customer simply because the owner found homosexuality offensive. Or to use a different example, the owner of the gasoline station could refuse to sell gasoline to a black customer. As the authors well know (I assume) the courts have already decided that such a refusal would be illegal.
41
No one's forcing Mr. Philips to do anything. If he finds baking cakes for customers to be against his religious beliefs, he's more than welcome to close shop and do something else.
As long as he runs a business, though, he has to follow the law. And the law won't allow him to discriminate. Period.
48
“Colorado’s order that he create same-sex wedding cakes (or quit making any cakes at all) would force him to create expressive products carrying a message he rejects.”
This is a mis-statement of the situation. The point is selling to gays, not making cakes that support gay marriage.
Maybe the baker should decorate all his cakes so no gay person was likely to want one of them? The gay couple would decide if they still wanted the cake, but would be free to buy one if they wished.
And if a gay couple chooses to revise the decoration on their purchased cake so it becomes a gay cake, well that’s fine for all.
9
Poor Jack Phillips. Regardless of what happens in the Supreme Court, he already lost. Acceptance of same-sex couples by a majority of Americans is here to stay. And acceptance of marriage will only grow. Certain Christians can try to stem the tide by changing laws, but no law can legislate how people REALLY feel. And if the Court supports Phillips, it will not make people who accept and support same-sex couples stop doing so. Where gay couples are accepted by their communities, well, no law can undo that. We WILL outnumber the bigots.
19
"... divorce parties, lewd bachelor parties, Halloween parties or same-sex weddings."
The authors lost me right there. Putting the last item in the same breath as the other three betrays the sleight of hand at the core of their argument. If they said, "... divorce parties, lewd bachelor parties, Halloween parties or wedding parties," the statement would make sense: each one is about an activity that's a choice by the organizers and participants.
But apparently the baker does make cakes for wedding parties. (It helps to keep in mind that the cake is for the reception and has nothing to do with the wedding ceremony. So it really is just about a party, just like the other items in the list.)
So the key modifier is "same-sex". But this says nothing about the wedding or the party, unlike "lewd" (itself a rather blatant attempt to inject a negative association); it's just a reminder that the couple are of the same sex--which they can do nothing about. A wedding is wedding; a given couple cannot order a same-sex wedding or a mixed-sex wedding from a menu, based on preference.
This is not the only example of disingenuous argument. "Colorado’s order that he create same-sex wedding cakes" is another one. As above, it's a wedding cake. A cake for a wedding party. Not a same-sex cake. The order was not to create cakes with same-sex figurines in wedding attire, or whatever else might make a cake a same-sex cake.
42
How is creating a custom cake any different from selling one off the shelf? Mr. Phillips is essentially putting up a sign that says "we don't serve gays," which even you may object to if it said "we don't serve blacks." But all of your arguments may be moot when straights stop buying his wedding cakes, too. Or has that already happened?
21
He isn't being "forced to say, do or create anything expressing a message." He's being asked to bake the same wedding cake he bakes for all couples. What he's doing is refusing to sell that same cake to a gay couple. That's discrimination. Period.
40
"Forcing Jack Phillips to make cakes for same-sex weddings is unconstitutional" is equivalent to saying that forcing lunch counters to serve blacks is unconstitutional, and both views are unethical and immoral. It's a tragedy that this has to be argued in 2017.
Keep the wall of separation between church and state strong. We must defend civil law and never trim it to fit the whims and prejudices of individuals, no matter what religious motivations they claim.
42
If the baker wants to make art, perhaps a museum can find a place for his cake. And instead of customers he might find a patron. As long as he sells his cakes to the public and as long as same-sex marriages are legal in the United States he should treat every customer the same. If he can't do this, he has no business being in business.
I have yet to find anyone favoring the argument developed in this article who can explain why the baker can't refuse to sell his cakes to Blacks, Jews, women, Mormons, but he can refuse to sell it to gay customers. If the former is discrimination, so is the latter. If it is not, than you can, well, discriminate against everyone and not just against gays and lesbians.
BTW, to confuse Hurley v. Irish (1995) and TX v. Johnson (1989), which clearly were about political speech, with baking AND SELLING a cake is so ludicrous that I wonder whether this law professor and this philosophy doctoral student are payed for by "Liberty" "University" or some such entity.
34
What if the couple bought a cake off this baker's shelf, paid for it and on the way out the bakery door told the baker they were using it to celebrate their marriage. It seems to me the meaning and the "free speech" here comes from the couple, not from the baker. The cake has no meaning until the married couple say it does.
19
He must be extremely successful to be willing to turn away people who want to give him money. No capitalist, he!
I remember the Erotic Bakery, which was in the Village in the 70s...cakes to make you blush, but in a good way!
2
It’s not the customer who the baker is discriminating against. It’s the product.
3
The authors write:
Is it to ensure that all couples have access to a cake? But they do: Colorado hasn’t even suggested otherwise.
Haven't we already had this discussion?
Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public . . . .
—Senate Commerce Committee Report on the Civil Rights Act of 1964 (S. REP. NO. 88-872, at 2370 (1964).)
30
In fact, the only speech here is the refusal, and the only idea communicated is that the buyers aren’t good enough. Many commenters wonder why the spurned buyers persisted in a complaint, and I suspect it is because the refusal made them feel bad.
The Backer's defense is claiming he has the right to be prejudiced in selling his services, because he's an artist who communicates through his creations. He refuses, he says, to communicate his approval of same sex marriage through his edible art. Question: I consider my surgical skills as a form of art. Is it OK with him if he comes to the ER needing my services, but I refuse to treat him because I don't approve of his bigotry?
21
By this logic, a lunch counter chef could declare himself a "sandwich artist" and deny his artistic ham-on-rye creations to black people at his lunch counter in the basis that his religion teaches blacks are inferior. Or a corporate manager could declare his staff composition to be a work of art, and thus his refusal to hire anyone but white men would infringe his right to artistic expression. So too with this alleged "cake artist," who, having opened a shop that sells to the public, may not discriminate against members of the public on the basis of race, sexual orientation, or other protected classes.
This case was resolved decades ago, on the side of anti-discrimination. Robert George's argument belongs on the ash heap of a vicious history.
24
I so agree Jason. I felt like these fellows were wading in the reeds looking for their arguments and all the while the Greensboro four and all the retail segregation of Jim Crow were back at square one. Of course Robert George was only 5 years old when the Greensboro sit ins were going on - maybe another one of those who thinks if they don't remember it, it didn't happen?
Go ahead, re-segregate the lunch counters. Those of us with morals will re-fight the battles of the 1950's and 60's if we have to.
21
Can a music artist refuse to perform for gay people? Can a teacher refuse to teach a lecture to women?
9
There are single-sex educational institutions at all levels, so teachers at those schools are presumably perfectly free, indeed forced, to refrain from dealing with members of one sex, and it is done quite openly and without apology. (Not that I personally approve of these institutions.)
I disagree with the merits of the author’s argument (see my earlier comment about photography) but I also worry about my personal bias against those who choose to discriminate against gay marriage.
What if this case wasn’t a Christian baker vs. a gay couple?
What if it was a Holocaust survivor who made a living playing the piano at weddings and celebrations, and a neo-nazi organization wanted to hire him to perform at one of their banquets?
It would seem reprehensible to force the piano performer to provide his artistic services to such a group.
And yet, this baker may feel a similar violation in the court case.
I absolutely disagree with his reasonings for feeling that way, and don’t think he has the legal right to deny his services to the couple (again, see my comment about photographers from earlier,) but it’s an interesting experiment to try and view it from the perspective of a vendor I would emotionally agree with...
8
Is the baker required to be at the wedding reception for his services to be rendered? No. Then it is not the same.
A cake is a product. He may have the right to refuse to put a gay-friendly message on the cake under his 1st amendment rights, but he does not have the right to refuse to sell the cake.
It's the same argument that that those Picasso's of the flat grill at the Birmingham Alabama Woolworth's lunch counter made.
9
Utter nonsense from these sophists. The cake is a product of commerce, no matter how artfully done. The product is purchased and used as the buyer desires. The First Amendment does not apply to commercial transactions. If you put out a sign, I have the same right to expect service as every other customer. Nobody asked for a message, just a good cake for the money.
13
Let's make this clear. The cake was not for a same-sex wedding. The wedding was to take place in Massachusetts. The cake was for a reception in Denver. To argue that he was being forced to participate in a wedding is an outright lie.
15
“At some level, Colorado itself gets it. Three times the state has declined to force pro-gay bakers to provide a Christian patron with a cake they could not in conscience create given their own convictions on sexuality and marriage. Colorado was right to recognize their First Amendment right against compelled speech. It’s wrong to deny Jack Phillips that same right.”
I’m troubled by Colorado’s lack of consistency here. The authors raise a valid point.
9
There is no inconsistency. The other bakeries refused to make cakes bearing specific anti gay marriage messages, but were willing to make other cakes for the guy (who was trying to play gotcha in support of Masterpiece). In Masterpiece, any "custom" cake was refused because ol the couple was gay, not because of a particular message of the cake (they could've been trying to order a generic wedding cake the baker had previously made).
The rejections by the other bakeries had nothing to do with the religious beliefs of the customer, as no customer could've ordered the requested cakes. Masterpiece explicitly refused to make cakes that straight couples could order, because the couple was gay.
Rejected message vs rejected customer status. That's why the situations are different.
Not quite. The other Colorado baker agreed to sell the anti-gay purchaser an ordinary wedding cake. She declined to write an anti-gay message on the cake, but agreed to give the purchaser a decorating kit to write his own message on it. Phillips refused to sell a generic wedding cake--a product he sells to the public--to the gay couple because of who they were. There was no request to personalize it or write a pro-gay message on it to make it a "gay" wedding cake. This isn't about freedom of expression.
Where does it say the freedom of (or from) religion of the First Amendment trumps (sorry, but that's the right verb) every other freedom in the Bill of Rights? Where does it say your right to practice your religion allows you to discriminate against me and make me a second class citizen? Where does it say that your right to go to any church you choose takes precedence over my right to life, liberty and the pursuit of happiness?
8
So Jack Phillips is such a strong believer in his religion that he cannot, for the love of his god, close his cake shop and find another occupation. Cakes trump god.
The Pilgrims who came to America from England and gave up all because they wanted to worship their own way were such whimps by contrast.
America is and always has been for the greater good of all. If each personal belief is used to interact or not with others, pretty soon we have no country!
We seem to be heading that way anyway. So, come on Supreme Court, bow to your base and give them a "win"!
Such small mindedness in the name of god is incomprehensible. No doubt, this court with Gorsuch on the stolen seat will find a way!
6
The declaration, “This is a marriage,” is made by the person who officiates the vows, not by the cake. The cake that Mr Phillips refused to sell was an off-the-shelf item, useful for any wedding reception, not a custom design for homosexuals. Mr Phillips fails to explain how his sale of a product is an endorsement of a buyer, or of anything other than money. Any endorsement message in the transaction is an endorsement of the seller by the buyer.
8
This is terrific!
2
Should a Christian baker, open to the public, be obliged by religious conviction to reject making a wedding cake (a piece of art or just a cake) for an atheist couple, that couple, perhaps, being white, black, brown, and/or of mixed hue?
Might it be helpful for the baker to have a sign in the window listing that part of the public to be turned away -- as in former times?
For example: http://p2.la-img.com/1056/32333/12959355_1_l.jpg
4
The baker is discriminating against the customers because they are gay. Creating the cake is only compelled speech if the customer requires the cake contain a message with which he disagrees. Unless the happy couple wants the baker to spell out “Gay Marriage Forever” in the frosting how is requiring him to make a cake for a particular couple any more compelling speech than requiring a sculptor to create a sculpture of flowers for a gay couple even though the sculptor opposes gay marriage? The sculpture may be a work of art, but a generic sculpture of flowers sends no particular message, other than about the flowers.
10
Many Americans, conscious of the motivations behind this baker and his supporters, recognize the similarity between his attempt to attack same-sex marriage, now legal in all 50 states and LGBT rights and other Civil Rights issues. When lunch counters at Woolworth's et al were patronized by African-Americans who sat at those counters and were refused service or Rosa Parks on her selection of a bus seat in the front "white" section, or any of the Jim Crow laws and poll tax levies were used to keep "those people in their place," we finally made progress towards equality. Now these racists and bigots want to bring those horrible and insulting tactics back. Gorsuch, being a Colorado judge before his illegal appointment to the Supreme Court, may choose to side with the baker. But he does so at his peril.
9
If the Supreme Court allows this, what is to stop one from reserving the right to sell cakes only to whites, or only to men, etc.? The baker wasn't asked to make a specific cake, he was asked to sell the same wedding cake he sells everyone else. Common decency aside, discrimination is unlawful.
9
Nothing. Nothing stops it. And every anti-discrimination law would immediately become unenforceable.
My understanding is that the baker said NO before they even got to a discussion of what the cake would look like. That's just plain discrimination.
9
This is not a free speech case. By what merits are you even arguing that it is? Phillips' lawyers are only arguing that his freedom of speech is being abridged because Colorado has a very strong public accommodations law.
Under such a law, any business that's open to the public must serve all members of the public and provide the same services to them that the business provides to anyone else. Mr. Phillips is a baker. The couple in question asked him to bake a cake. They didn't ask him to attend their wedding, dance at the party, send them a gift or anything else.
They asked him to provide the same service that he is in the business of providing to the general public--baking a cake.
Free speech does not even begin to enter in to the discussion. His lawyers are only choosing this argument because he would certainly lose under Colorado's public accommodations law. He should lose and he deserves to lose.
12
Imagine a religion in which hetersexual marriage were at question - say, patterned according to the laws of ancient Sparta. It would be of great interest to me as a gay man married as i am to another man, how heterosexual apologists of Mr. Phillips would argue if some baker refused to decorate a cake for a hetersexual wedding or anniversary.
3
I think we are getting close to having the right Justices in the right numbers to OK racism and discrimination.
Let's see how this case plays out.
4
I agree that Mr. Phillips should not be allowed to discriminate over
who gets his precious cakes and for what reason they get them.
Odd that he discriminates against Halloween as well. Though
I do not think there is a case there. And I understand why the couple
involved is protesting. What kind of cakes did they have in biblical
days anyway? Some kind of honey and seeds and spelt mess?
Probably no messages and decorations aside from crystalized
violets and raisins. Would Jesus not bake a wedding cake back
then for a gay couple, do you think? If he had
the ingredients and got his Mom to help him?
I am betting he would. He just saw and honored love.
It is about serving one's religious beliefs along with
the products one sells and that aint right. I would fight
for my right to buy that wedding cake if I was those guys
but I sure would not want to eat it. All the resentment
from the maker would poison it for me. And who knows
if he wouldn't spit in it.
it does set a dangerous precedent for him to be allowed to do so.
3
The fault in this argument is plain. The minute the man opens his doors he becomes a member of the public sphere. He therefore must meet publicly enacted laws to operate his business. This argument is the same argument used by those who claimed their religious beliefs prevented them from having to serve African-Americans. It was a bogus free-speech issue then, and it's a bogus free-speech issue now.
7
If a racially mixed couple were to come to a baker and ask for a wedding cake, the law would currently not permit the baker to use his religious prejudices to refuse to make such a cake. It is currently illegal for someone to discriminate on the basis of race, religion and sex. But it is still legal to discriminate on the basis of sexual orientation.
If this decision goes to the baker, don't you think that there will be Alabama cooks whose religious "scruples" lead them to turn away mixed race couples? Or do the writers of this editorial really believe that they can contain discrimination so that it can only be used against LGBT customers? This opens a pandora's box of opportunities for prejudice and discrimination. The First Amendment permits people a right to believe what they want, not to act upon their belief when it contradicts the law.
5
This is a half-baked argument.
If the cake's proclamation said, 'Congratulations Pat and Leslie,' what would Mr. Philips do?
Either name could apply to male or female.
Would Mr. Philips be entitled to demand medical proof of physical sexual identity before agreeing to make a cake or being allowed to discriminate?
This slope is slippery because the authors are laying on a thick coat of frosting to obfuscate blatant discrimination.
10
I'm looking at the cakes in the picture and they look pretty gay to me. Or straight. Honestly, I can't really tell. Seems to me the problem Mr. Phillips had was with people that wanted to buy the cake, not the artistic expression required to make the cake itself.
7
There seems a level of entitlement here that one should be allowed to trample other's rights while attempting to exercise their own. The couple was not denied access to cakes outright, yet they would most certainly be asking the baker to deny his religious view. However, creating the confusion is the hypocritical notion that Christian's are somehow superior in their faith and as such can determine the validity of other's morality - something the Bible says not to do in all too many scripture verses as I learned growing up in the church.
To be honest I'm wondering why this wasn't settled with an angry Yelp review?
3
The couple didn't sue the bakery (and gave up the right to do so by reporting to the commission). They reported the violation of their rights, which was investigated and substantiated. The commission ordered the bakery to stop illegally discriminating going forward, and to train the staff that gay couples couldn't be denied service for being gay. The baker was required to report the instances of denied service to the state to ensure his compliance with the law (and he could always refuse a rainbow flag cake proclaiming "gay marriage is the best!"). No money damages ever, and he never had to make a cake for the couple.
The law doesn't require "access" to services from somewhere, it prohibits discrimination in public accommodations for certain reasons (race, gender, nationality, etc, and in Colorado sexual orientation). I don't get to refuse service to black people because they can go to another restaurant, any more than the baker can refuse the gay couple because there are other bakeries.
When you define everything down as "speech," you open the Pandora's box to everything the right wing holds dear. Corporations are people "speaking" with their political bribes. Wedding cakes are "protected speech." Is putting a sign in a window "Whites only" going to become protected speech again? Or signs declaring a "Colored Entrance"? Is politicizing from the pulpit while holding a tax exempt status protected speech?
What if a male boss threatens a female underling that her career will go nowhere unless she submits to his sexual advances. Is that just more protected speech? He didn't lay a hand on her, after all, so what's the problem?
We Americans have a marvelous constitution, one that was forged out of centuries of strife on the European continent and on the British Isles, written by men of good will who left the old countries, put on their Enlightenment thinking caps and did their best to promulgate some universal truths about human freedom.
Calling everything speech in order to write oneself permission to hate or to discriminate flies in the face of all the other clauses in our Constitution. Cake is a confection. Speech is, or should be, the trumpet of righteousness.
8
If he is creating the design of the cake himself, then it might be (it's a stretch but let's give him the benefit of the doubt) an artistic creation. But is that what custom cakes are? What about a cake designed by the couple and he is just asked to make it? That is not an off-the-shelf cake but it is not his artistic creation either. Will he then claim that it is his "technique" that makes them an artistic expression? Does he then use a different technique for the off-the-shelf cakes?
Does he really have a "shelf" of ready to go wedding cakes? How many drive-by wedding chapels in Colorado that bakeries must stock wedding cakes for walk-ins? Or do the customers just get to buy 3 cakes, some plastic columns and an instruction sheet on how to tier them themselves?
2
If a person holds themselves out to the public, it would seem that they are saying welcome to all comers. What prevents anyone from saying that because of religious convictions they won't serve/sell to people of color or interracial couples? (see Bob Jones) What gets me is that these closely held convictions don't extend to adulterers, thieves, idolaters, or liars.(see Bible, 10 commandments)
2
The state cannot prevent the baker from refusing to put icing on the cake saying "Gay is Good" but it can and should prevent the baker from making the same kind of cake he'd make for any customer. The gay couple can add its own icing to the cake.
2
The baker was asked to make a wedding cake, not a same sex wedding cake. He refused to make a wedding cake because the people buying it were both men. That is discrimination.
The supreme Court upheld a case against some Christian Scientists who let their child die rather than get him medical help, all because of their superstitions.
In that decision, it maintained "Although one is free to believe what one will," the Court said,"religious freedom ends when one's conduct offends the law by, for example, endangering a child's life." The same holds true for cases where so-called religious people claim their religion permits them to violate laws protecting gays from discrimination. Conduct must be separated from belief when one talks about freedom of religion under the First Amendment.
6
So can he discriminate against interratical couples?
Or can secular businesses discriminate against Christian customers?
That should be the precedent. It goes both ways.
3
I must say, this essay is incoherent. For example:
"Note that this argument wouldn’t cover all requirements to make artistic items. The law may force photographers to do photo portraits for Latinos as well as whites since that doesn’t yet force them to create art bearing an idea they reject, which is all the compelled-speech doctrine forbids. But custom wedding cakes carry a message specific to each wedding: This is a marriage."
This is reaching: you literally are saying that one art is by nature expressive (abstract wedding designs) and one is not (photos of people), with a weak argument that the photo doesn't convey the photographer's message in the same way that the abstract design on the cake does. You fail to make your case.
You fail to show that 1) a cake is considered speech by the baker and that 2) a photograph is not if it's taken in a portrait gallery.
Weak, sad argument.
5
Everybody is a critic or an artist. What happened to just doing your job and contributing to the economy? While I understand the First Amendment arguments, at a bigger level the personalization of everything in our lives is bordering on the ridiculous. This is why other countries get it right - sell a product, make money.
2
So-called "religious" beliefs should not be used to cloak discrimination.
3
But can't an expressive claim be invented to justify any form of discrimination? An anti-immigration activist might claim that by taking photographs of a Latino couple at a wedding he is expressing the idea that they deserve to live in the U.S., which he disagrees with. A racist might claim that by serving an Asian couple in the same way as whites he is expressing the idea they are equal, which is odious to him. Indeed, a sexist male boss could claim that by promoting a woman he is expressing the belief that women should work -- but what if he believes they should stay at home? Aren't all of our anti-discrimination laws threatened by the authors' analysis? But maybe that's where they are trying to go...
5
A side observation: this man's cake designs are not very inspired. There must be a better one in town.
3
An outstanding analysis.
I will never go to his shop even for freebie stuff. People should boycott this kind of shops in their towns, if exist any.
2
What exactly makes the cake an affirmation of same-sex marriage? Does it have to say "Hooray for Gay Marriage!" on it, or is it simply the act of displaying the cake at an event the creator finds offensive? Are they obligated to identify who the cake baker is? What if they never told the baker what the cake was for, got a non-personalized wedding cake made by him, and then added the names and other decorations later? Is that a violation of his artistic rights? Seems that once you buy someone's art they lose all rights to dictate where, when, and how it gets displayed. Or am I wrong about that?
4
This is beyond absurd. The baker makes a cake. How it is used is up to the people who purchased the cake. The baker no more participates in the wedding (or any other event his wares might be served) than does a gun manufacturer participate in a murder.
4
"The law may force photographers to do photo portraits for Latinos as well as whites since that doesn’t yet force them to create art bearing an idea they reject, which is all the compelled-speech doctrine forbids." Really? What if they are wedding photos? Same sex wedding photos? What about wedding planners? Home designers and interior decorators? Home builders? Home architects? Chefs? Clothing designers? These are all services provided to the public.
1
May I put up a sign that says "We do not provide services to evangelicals?"
5
Next we'll have lunch counters that refuse service to those who don't meet the religious test from the owners or permitted employees, such as: "We'll serve you your burger and fries, but you must kneel in prayer to Jesus before your food is served."
You can have your religious beliefs, but neither you nor the government can force them upon anyone else, and that is particularly true if you open a business to all.
4
I am a baker that refuses to sell products to Christians. How fast will my case get to the Supreme Court and what will happen?
Slippery slope indeed.
2
Hobby Lobby will prove to be the worst mistake the Supreme Court has issued in a long time. Religious bigotry is no excuse for violating other people's rights.
6
So a gay couple comes into his store and asks him to bake a cake for their wedding and he refuses to do that. An hour later a gay couple comes into his store and wants to buy a cake for their wedding that he has already made. He will sell that cake to them, because "Mr. Phillips, who has run his bakery since 1993, sells off-the-shelf items to anyone, no questions asked."
Depending on when the cake is bought, therefore, he will sell it for a gay wedding or not. He will sell an existing cake to be used in "celebrating themes that violate his religious and moral convictions", but asking him to bake a new cake for the same purpose is a First Amendment violation.
Somebody explain this to me.
6
There is an easy way to solve this. He has a business selling cakes, so he must sell to everyone. The state however, can no more tell him he must sell a cake with two men on top then tell my business I must sell mocha and lime colored kitchen cabinets.
So sell them a cake with nothing on top and they can put whatever they wish on it. If you refuse to sell them a cake however, you should be shut down.
2
It's a pretty big assumption that the Latino photo portrait example Mr. George and Mr. Girgis offer to distinguish wedding cake design is not itself susceptible to an "expressive message" exception swallowing the rule. A bigot could very easily decide that he does not approve of ANY activity a Latino wants photographed based on his nebulous objection to Latinos as a class, inclusive of the mere act of donning fine clothing for a portrait. He'd then posit himself as no different than the artistic cake-maker -- declining to create "art" that carries the specific message that Latinos are, well, worthy subjects of photography.
But as we all should know by now, freedom of expression is not absolute. It may be quite obvious that I have a message in mind if I flip the bird at another driver and cut them off -- but regardless of my motives for doing so, that won't be much of a defense to the resulting traffic citation for causing an accident.
1
Following this logic, it would be OK for a baker to refuse to sell a wedding cake to a mixed race couple, or a muslim couple, if his religion told him it was wrong to do so. There is no choice under the doctrine of public accommodation. Jack Phillips runs a bakery. He is open to the public. He is obliged to sell wedding cakes to everyone who can pay him for his goods and services. He certainly couldn't be compelled to write something on the cake he disagreed with - that's a matter of speech. But a cake? It's not artistic speech. It's just a cake.
3
Why is baking a cake speech but cooking a meal at a diner not speech?
Can you have a business that operates in public space denying people a wedding cake because they are a mixed race couple?
1
malarkey. He should not be allowed to discriminate because he deeply held beliefs. The slippery slope will be breached if we side with the baker.
4
It would be very interesting to see how the evangelical Christian movement would respond if the case involved a Muslim baker who refused to serve women who were not veiled and accompanied by a male relative. One can just imagine the level of outrage this would provoke from the religious right.
4
It isn't a distinction based on Free speech but on equality. Bakers, like a lunch counter, or buses, cannot discriminate against patrons because of that person's beliefs, skin color, or religion. It is none of the baker's business that someone wants a wedding cake to celebrate a wedding, or to dump into the garbage; whether they are LGBT, Black, or Jewish. Either he sells wedding cakes or he doesn't. Once sold it isn't his responsibility or his business to what use that cake is going or the personal lives of who is paying for it. Trying to make it up as something else is his way to cover up his discriminatory behavior.
4
Attempting to justify the baker’s refusal to sell a wedding cake for use at a gay wedding on the grounds that the cake constitutes some sort of “artistic expression” is a stretch at best and would, for example, create a distinction between “custom” wedding cakes and “cookie cutter” wedding cakes.
But defenders of the baker need not go that far. Consider the following scenario:
A “straight” female friend of the gay couple walks into the bakery (or a jewelry store) and advises the proprietor that her gay friends are getting married and that she would like to give them a surprise gift of a (simple) wedding cake (or simple gold wedding bands). The proprietor responds that he/she will not sell her those ready-made items because their intended use offends his/her sincere religious sensibilities.
What law would the proprietor be violating? He/she is certainly not refusing to sell a product based on the customer’s sexual preferences since the woman is “straight”. So, if it’s legal for the proprietor to refuse to sell these products to the woman in this scenario, how could it suddenly become illegal if the gay couple themselves seek to purchase these items in connection with their wedding?
This has nothing to do with artistic expression. Both cases simply involve a refusal of the proprietor to sell a product for a specific purpose based on the proprietor’s sincere religious beliefs, and not based on the identity or sexual preference of the customer.
1
I support same sex marriage but the litigants in this case should just buy their cake somewhere else. Why do they even *want* to support a business that is evidently hostile to their way of life?
This seems to me like thought control. It's apparently not enough to be allowed to live your life your own way, others must be forced to publicly accept it. This is why we have an evangelical backlash that gives us a Donald Trump and a Roy Moore.
2
We have Trump and Moore because of 30 years of creeping fascism bankrolled by billionaires and their Republican toadies. They fan the flames of bigotry, jingoism, and religious extremism to get the gullible to vote against their own economic interest, and to fatten the wallets and increase the power of the one-percenters. It's a rolling scam. Don't be a sucker.
His stance is ridiculous. Why not allow free speech to permit discrimination against any group a merchant chooses? This is no longer the 1940s or before, though many wish otherwise. I agree that this gentleman can't be forced to make a cake but then he should have to close his shop. You either serve the public or you don't. You can't have it both ways.
4
I went to my nephew's wedding a couple of months ago. There was the ceremonial cutting of the cake, but I cannot tell you what that cake looked like- layers, tiers, decorations, wording, etc. The closest view I had of the cake was of the slices of cake sitting on the table at the back of the room. Cutting the cake was like the bride throwing the bouquet- a custom, no more.
It was a pretty, edible decoration. What was more important to everyone was the (religious) wedding ceremony itself.
If the baker won't bake a Halloween cake, perhaps he shouldn't make a wedding cake, for anyone. The original intent of the cake was based in superstition- the cake signified good luck to the couple and guests. Also a sign of wealth and status (not everyone could afford one).
4
Can a Jewish butcher be forced to sell pork to Jews?
1
I'd say, either he sells pork to everyone, or to no one.
It was Phillps who created the conundrum. If he had simply said he was "too busy and couldn't handle the order" he could have made his point quietly to satisfy his "conscience" regarding his creation of a cake, in his mind, tantamount to a "blessing" of a same sex union, legal in America. This entire matter was avoidable. His sanctimonious view that flour sugar and eggs amount to a gift to God is rather self righteous. According to your opinion, Woolworths had a valid argument to deny black from being served at a white's only lunch counter because that was the status quo at the time. Social progress makes people uncomfortable for a time. Instilling the right to pick and choose who they will provide service is an archaic and dangerous notion that will license tribalism.
1
So based on that reasoning, people who are racist and do not want to serve coloured people should be permitted to do so and protected because the first amendment is intended to protect the expression of unpopular ideas? my mind is boggled. if you were to substitute an interracial couple and a baker who doesn't believe in mixing of the races we wouldn't be having this conversation. forward not backward.
4
I don't necessarily agree with the article, but no, that's not what it says. Serving someone is not an artistic expression. Making them a cake, or a sign or a sculpture is.
Mr. Phillips sells cakes that celebrate marriage. That is what he sells. Period. What happens to the cake after it leaves his store is none of his business. He may choose to not put a pair of same-sex dolls on top of the cake, that's his right. He may refuse to write "Bless this gay marriage," in icing on the cake, that is his right. What he may not do is to refuse to sell a cake that celebrates marriage to the people who walk into his shop based solely on the buyer's race, religion, or sexual orientation. That is discrimination and that is un-American.
5
The authors of this article are in for a rude awakening in this gentleman win his case is under freedom of religion and in the New York Times another shocked!
I think I've changed my mind on this, to the extent it was ever made up. Liberals simply cannot separate their distaste, which I share, for Jack Phillips's beliefs from the merits of the argument being made in defense of his right to hold and act upon them. They don't want him to do what he's doing, and thus wish to believe that it's unconstitutional for him to do it. If Mr. Phillips was withholding his creative talents from two white supremacists, they'd have not the slightest complaint about it. We aren't likely to advance the goals of tolerance by forcing people to undertake actions that violate not only their beliefs but their rights. And even if we were, should we?
It's truly impossible to make the argument Messieurs George and Girgis have made without getting the omnipresent riposte: "You're defending Jim Crow!" Ignoring this nonsense, their argument, which I perused twice, seems quite correct. Considering that he is only withholding services in which he himself is asked to employ his artistic talents, such as they are, it is his right to make this decision, however much (we) others may abhor it.
6
I have huge respect for you and this opinion. Well done.
The free speech comes in with the message. The baker cannot be forced to put a message on the cake that he does not agree to. But the cake itself?
Not so much.
I wish some Christians would go back and read the New Testament again.
Jesus never asked anyone if they were gay before he helped them, fed them, or healed them. Why should any Christian today do so, if the Master did not?
If a doctor religiously objects to homosexuals - can he decline to treat them?
If a printer designs flyers for gay party - does he endorse them?
To quote a french queen: let them eat cake!
2
What an incredibly lame argument they make on the premise of this freedom of free speech. Would the same argument hold if a couple of color wanted a cake with a representation of the couple. What if it’s a bi racial couple? A baker's job is to make cakes. PERIOD. We need to resist these fundamentalists cracks against tolerance.
3
It would seem to me that an individual citizen does not have to sell cakes, or display messages, or serve people who they are racially or ethically biased against. But once a person becomes a business owner, he or she is no longer acting as an individual, but as proprietor of a state licensed commercial endeavor, and as such, must observe any state laws proscribing racial and sexual discrimination. This bake either sells gay cakes, or gets out of the kitchen - LOL!
2
So, what “artistic expression” was this baker asked to express, copulation between a gay couple? If not, the baker is just refusing to use his talent because it was sought by someone he doesn’t like, in this case because they are gay. What if the couple were not gay, but the cake would be consumed by wedding guests who were? Shouldn’t the artist be entitled to assurance that his creation would not be compromised by such consumption? The creative artist argument is a bridge too far. Beyond that, what religion’s tenet forbids the baking of cakes, or the taking of photographs? One might well observe a religion’s ban on homosexuality, but that should not be permitted to justify discrimination in the undertaking of ordinary commercial activities.
1
Actually, the discusion between him and the copule never went far enough to discuss what the “expressive” work would be, they never got a chance to talk about the messgae; when Mr. Philips realized they were gay he refused to do businees with them. The claim that he could not as a Christian craft the message is put together after the whole affair became public.
1
You are wrong. To use your analogy of chairs, say a company considers its dressing up of chairs (fabric wrappings, bows, ribbons, custom colors and textures, thoughtful layouts) to be a form of artistic expression? By your logic, the chaise-artiste could refuse to create a chair pallette for a gay wedding or for a black wedding or for a second wedding. Same for floral arrangements.
This is not so far-fetched. Kristo and Jean-Claude are certainly artists, and all they do is wrap stuff in drapery.
Nobody is forcing this guy to create art for something he abhors, and nobody is forcing him to quit his art. All he is being told is that if he wants to run a publicly accessible business in Colorado, he has to serve all comers equally without regard to protected status of his customers. That's called living in a democracy.
3
This particular case has nothing to do with first amendment rights.
The baker refused to create a cake for the couple based on who they are, not on the design of the cake. The couple never even had the chance to review the available cakes and make a decision on a design. They were denied service before the process of choosing a design even started, based solely on being a same sex couple.
The baker does not sell Halloween cakes to anyone, so he is not denying services to a particular group. He's just denying himself potential income.
He does not create "lewd" bachelor party cakes. One assumes, then, that he will create bachelor party cakes he considers not to be lewd. That means that he does not discriminate against bachelors, but rather refused to create cakes with "lewd" designs.
If the couple had requested a custom cake in the shape of two penises intertwined, then the cake maker would be able to say no based on being offended by the design of the cake.
If the couple had requested a cake with buttercream flowers that matched the centerpieces at their wedding. A cake that the baker would gladly make for any straight couple. Then the baker would have to make the cake, because his objection to that cake is not the design but who he is selling the cake to, and you can't deny services to people based on who they are.
Seems incredibly simple to me.
He had a public business, and he has to provide the same services to everyone.
4
Baloney. what does it typically say on a cake: "Congratulations?" If so, he has no argument.
Wrong.
We saw the same fight with segregated lunch counters. In this case, the proprietor is selling cake instead of hamburgers, and the patrons are gay rather than African Americans.
2
It is a buisness that is open to the public that means gays too.
3
What twisted, petty and hateful non-logic you apply in order to discriminate against two people -- or a whole class of people based on religion.
...
Why don't you take up a sword and journey to Jerusalem and fight the Muslims?
1
Would there be the same case if he were asked to make a cake for a Jewish or Hindu wedding?
Shut up and bake the dang cake!
1
I’m gay. I’ve mostly been on the side of the decorators, but I’ve got a lot of questions. The authors didn’t answer them. Yeah, cake decoration is a form of expression. At least, it has the potential to be. On one end, there are supermarkets where decoration operates more like a factory. Employees in the baking section use stencils and pre-existing designs. On the other end, there’s Cake Boss. Where does purely transactional service end and free speech begin?
Then we have to ask ourselves if we’d feel the same way were the service denied to an interracial wedding or a bar mitzvah. What if a certain alt-right rabble-rouser ordered a cake for a neo-Nazi rally?
But what angers me is that LGBT activist organizations thought it politically wise to jump on discrimination in the private sphere before the dust even settled on Obergefell. For a same-sex wedding service, no less—exactly like the fear-mongers ‘warned’ SCOTUS. If they needed a representative case, they should have sued on behalf of the married lesbian couple denied fertility treatment in California. Freedom of expression wouldn’t even come up. Meanwhile, same-sex marriage still faces significant challenges by Texas and Alabama.
It’s like they abandoned the incrementalist approach that had proved so successful. Americans need time to absorb change. There’s always backlash when they don’t get it. It’s one of the reasons Trump won. The irony is he’s packing the courts with conservatives who’ll make it even harder to win.
2
Does your argument mean a Holocaust survivor, who is now a baker, should be compelled to make a cake with Nazi swastikas on it for a customer?
1
Mr. George and Girgis’ argument is completely bass ackwards. The defendant certainly has the right to his religious beliefs and expression, but he has no right to discriminate against customers in a public business based on those beliefs.
Their pathetic argument is just another example of religion being used as a weapon of segregation and hate.
3
If I were a Jewish baker- a profession that was widely engaged in by the first and second generation Americans of my family - and was called on to make a cake for a Neo Nazi wedding - I very well might refuse, but I would accept whatever state sanction was meted out and not claim that being able to pick and choose customers when I was open to the public is some sort of constitutional right.
4
So everyone has an opinion on this subject = for year. Why would these people trust a bigot to bake their wedding cake. Yech! His cakes in the photo look ordinary to me so get someone else to do it. I know they are fighting against senseless bigotry. That's good but what's the price. Very unfortunately for our country the powers that be are strongly against any any improvements to our culture.
Right now we have bigger fish to fry like the new TAX law especialy for the rich with the poor paying for it.
People need to learn compromise. I do not believe that the same couple has the guts to go to a store owned by a Muslim cake owner, and ask him to write messages that goes against or quite nasty to his religion, or to a liberal-minded store and demand pro-Mike Pence messages. Similarly, they probably wouldn't dare to ask a Jewish store to write anti-Semitic messages on the cake.
The owner made it clear that the couple can buy any cakes at the store, no questions asked, and I am sure he would be more than happy to sell the necessary kit to the couples to write the message that they want by themselves.
If the argument is about slippery slope, everybody will be in support of refusing to write messages on the cake that implies violence against women and children, or total submission of women. Why the double standard, as if one thought is absolutely correct over the other one, what if we are wrong?
Forcing someone to write messages that goes against his conscience means you are violating his rights. Let's not have a double standard here.
3
The baker is not creating speech, he’s baking a cake and selling it to two members of the cake buying public. He does not get to pick and choose who he is willing to bake for and sell to. Despite attempts like this op ed to put lipstick on the free speech pig, the case is nothing more than about public accommodations.
2
Utter nonsense. Sincerely held religious beliefs have been the foundation of some of the worst abuses in history, starting with the Pope at the time of Columbus giving his "blessing" on Columbus passing out 12 year "native" girls to be raped at will by his crew as rewards for their loyalty. More recently, sincerely held religious beliefs were a basis for killing 6 million in the Nazi death camps, for murdering little "Black" girls at Southern Churches; for polygamy; for forced continuation of pregnancy; and for murdering abortion rights supports. The State of Colorado did not force Mr. Phillips to open a bakery; that was his choice. Once opened, it must be kept open to all, no ifs, ands, or buts. This sincerely held religious belief nonsense as an excuse to put such folks above the law must stop and stop now. Outrageous and those making the claim, including Mr. Phillips, need to look at the guy in the mirror as a root cause of why so many find "religion" a buzz word for "hate."
2
Pure nonsense. The exact same argument could be used to discriminate against Jews. Once you get a business license you give up the right to pick and choose your customers.
1
When did Christianity become all about hate?
3
A bit of word substitution helps clarify this claim:
"Forcing Jack Phillips to make cakes for [mixed-race] weddings is unconstitutional. Here’s why."
"Forcing Jack Phillips to make cakes for [Jewish] weddings is unconstitutional. Here’s why."
I'm sick of this garbage that a cake is an expressive product. It is not. It is dessert.
“Unlike folding chairs or restaurant service, custom wedding cakes are full-fledged speech under the First Amendment.”
Citation needed. Is this satire? Words have meaning. Is a custom folding chair “speech?” Is a custom dress “speech?” No.
There is a difference between artistic creativity and expressive speech. Aesthetics and expression may overlap sometimes, but are not synonymous. Creating a rose out of frosting takes some (marginal) artistic creativity, sure. But it is not expressive speech. What is being said? “This baker supports roses?” Or how about “save the bees so we have more flowers!” or maybe even “stop and smell the roses”? See? Can’t tell, can you? A fondant rose is not expressive.
“That wedding cakes are edible is utterly beside the point. Their main purpose isn’t to sate hunger or even please the palate; it is aesthetic and expressive.”
This would be hysterical if it wasn’t so insane. Who are the authors to state that the primary purpose of a wedding cake is “expressive” rather than as ….*food*? This assertion belies common sense. Would you ever believe that the marriage of a couple who served pie, or no cake at all, at their reception because the couple has diabetes, was in some way defective or invalid? No, you wouldn’t because everyone would say “well the cake is a dessert that has nothing to do with the actual marriage.”
1
There is no constitutional right to discriminate. If his religious beliefs prevent him from making cakes for African-Americans, or Muslims, or Democrats, or disabled people, can he do that? Are gays a special group for which constitutional rights can be suspended in the name of religion? It's a cake, dude. Not a work of art. Bigotry and hatred cannot be hidden under the name of religious liberty.
No he refused to sell any cake to this man because he was gay. That is wrong.
Nice try. You almost got away with justifying bigotry. But unfortunately, this baker is a BUSINESS man first and foremost, and thus is subject to obeying the laws which govern business practices - which in Colorado, expressly forbid denying service to ANYONE based on sexual preferences. He is not an artist. He is SELLING products to the general public. He must follow the laws established for businesses. Trying to make this a moral, religious or free speech argument simply muddies the waters and is incorrect - this is a simple case for the court: If you want to conduct your business in the PUBLIC sphere (thereby enjoying all the privileges that come with that, ie: roads) then you are subject to the PUBLIC laws that protect individuals against persecution. Jack Phillips is a sanctimonious, self-righteous, bible-banging Evangelical - I bet his cakes taste like crap - he does not deserve having his hatred and bigotry protected, this is America (not 'Murica). Sadly, I have no faith that our current Supreme Court is sophisticated enough in it's ideology to rule properly.
2
So is having access to the cake baker of one's choice what is referred to as a "first world problem"?
1
The author bios should mention that both of them have argued against same-sex marriage.
2
Don't let the Ivy League credentials fool you. These bozos have made careers of opposing gay civil rights.
2
A better more reasoned analysis was printed by the times a few days ago https://www.nytimes.com/2017/11/27/opinion/gay-wedding-cake.html. Highlights include "No one looks at a wedding cake and reflects, ‘the baker has blessed this union.’ " and his " ...objection was about to whom it was sold; a user-based objection."
1
I am pleased, but quite surprised that the NYTIMES published a viewpoint which does not correspond to liberal orthodoxy. Good for you. Now just go to equal printing space for alternative opinions in the opinion section and we can start having a real dialogue.
4
If he had the same attitude of discrimination and the couple were Black, there would be a riot! You can not refuse to sell to one group and not the other based on discrimination. I thought we’d come beyond that in 2017 but apparently we haven’t. Why is it so hard to make a frigging cake and leave out the discrimination? This baker needs some gay friends and hopefully his homophobia will get cured.
1
Bakers of which religions are allowed to refuse to create a cake for a gay marriage?
1
So is forcing restaurant owners to serve black or gay people against their "rights"? Under this definition of selling food, why wouldn't it be? Just have to wait for a white, straight Christian to be discriminated against before people like you actually care what truly makes people "free" in the USA.
Could Mr. Phillips refuse to make a cake for a Muslim wedding because that would constitute endorsement of religious beliefs he objects to?
Why don't we just forget about all the legal mumbo jumbo and stipulate McConnel's right wing SCOTUS heist will ensure right wing opinions for the next few generations. You can pretend they'll be legitimate, but you know they're really not. Unless we can figure out a way to impeach Gorsuch for dishonorable conduct or force Thomas out for his history of sexual predation, the final word on the laws of the land will be tainted.
Such a bad argument. What if he had said: “I won’t sell a cake to African-Americans?” He is open to the public therefore he must accommodate the public. full. Stop.
1
Why is that every time I read these arguments, my mind harkens back to the segregation arguments in the deep south? Denying service to gays sounds just like denying service to blacks... And for pretty much the same reasons...
2
If he doesn't want to accommodate ALL the public then he should not offer his services to the public. If he wants to be a bigot, run for Senate in Alabama.
2
A generation ago the authors of this piece would have supported bakers refusing to serve Blacks out of “sincere religious beliefs” under the 1st Amendment.
1
What a tired argument. Wrapping all of this around the 1st Amendment.
Call it what it is, Bigotry. Why would anyone want a cake from a bigot in the 1st place?
I would find another establishment and support them with my business before I forced some bigot to do something for me. That’s the power of ones choice via Capitalism.
On a side note.....Looks like Yale and Princeton are producing intellectual bigots also. They should be ashamed of themselves as well.
1
A cake is NOT art. Period. The deep misunderstanding the authors of this absurd piece contort themselves to justify is their thinking that anything endeavored to be made is art and therefore speech. Being that these two are clearly neither artists nor would know art of it happened to topple, as the sculpture they cite, onto their feet, allow me to aid you. I make art. Often. And am paid for it. Ready? Art cannot have any utility. That the cake is eaten is of extraordinary importance. It’s primary purpose is to be consumed. That it is crafted prettily is a distant and silly second. It is a cake. It is not a sculpture made to be a cake that is only seen. For all their time spent at institutions of Ivy League proportions (which is all they lost to recommend them) they clearly neither understand art nor public accommodation. If this idiot’s (and he is an idiot) claim that what he makes is art is protected, any slop on any plate in any tavern, restaurant or lunch counter will be equally so claimed and religious or private belief will usher back in degradation once more. A cake is a cake. You eat it. Therefore it cannot he art. Just like a Ferrari, a bottle of Lafite Rothschild, a $20 bill nor a House. If it has any utility except to be seen, heard, watched and thought about, it is not art.
1
Try this thought experiment: Suppose that instead of a gay couple, the customers are an alt-right couple seeking an anti-semetic themed cake.
1
A sincere question, I'm asking honestly - could somebody please explain if a baker can refuse to make a custom cake for a polygamous wedding? Why a same-sex marriage is lawful but a polygamous marriage is not?
2
The authors of this article both oppose same sex marriage, so no surprise here they would support someone who discriminated against a same sex couple about to get married.
Shameful. Men of God, you are not.
1
What on Earth is a "same-sex wedding cake"?
So two Nazis are getting married. They go into a cake shop and request the owner to make a sheet cake with the Nazi flag. The owner is Jewish who lost his parents/grandparents in the Holocaust. Is the state of Colorado saying that the owner should be forced to make this cake? If so, I've got issues with it. Now if the two Nazis walk in, in full Nazi regalia, and want to buy a cake, already made and sitting on the shelf, then yes, they should not be denied the cake. But to force a person to create sometime that they find objectionable, then I have to side with the individual's right to refuse. He is not an employee, like a pharmacy clerk who refuses to dispense birth control or a county clerk who's job is to issue marriage licenses.
1
Important distinction: No one is telling Jack Phillips to put something offensive on his cake. It's just two guys who want to buy a cake from him - like he would sell to anyone else. You don't need to evoke Nazis to get a rise out of people - trying desperately to rationalize bigotry is offensive enough.
vis a vis the photographer and the Latino photo and the white photo, what about a mixed race couple? Or a mixed religious couple?, or same sex?
1
A Cake,like money talking is a crock! How about a talking horse!
What message? It's a piece of pastry. There is no written word here, you can't tell a same sex wedding cake from a straight wedding cake.
This kind of idiocy is stunning.
A wedding cake has nothing to do
So can Baptist bakers refuse to bake cakes for Jewish weddings because Jews killed Jesus. Can atheist bakers refuse to bake cakes for Christian weddings because they believe Christians are immoral and condone pedophelia, at least in Alabama? Can Democratic bakers refuse to make wedding cakes for Republicans because they condone sexual assault, at least by Trump? I don’t want to live in your world. And, as a former Philosophy PhD student and longtime awyer, I don’t believe you believe this nonsense. You make me ashamed as a lawyer. And as someone who loves logic.
4
This is the " Lester Maddox" argument. I'm surprised the writers didn't promote an "axe handles" solution. I find their argument "morally" reprehensible therefore I can deny them anything as long as it's "creative" or "expressive".... and that's in the public sphere? ABSURD!
With this argument everyone is susceptible to victimization by anyone who disagrees with them "on moral grounds".
KEEP YOUR MORALITY TO YOURSELF.
1
Here's a hypothetical for the authors:
Adam and Steve are getting married. Adam goes to Masterpiece Cakes and says he wants to orders wedding cake. Jack Phillips says "It's not for a gay wedding is it? I don't do gay weddings". Adam lies and says he's marrying his girlfriend, Eve. He gets the cake, picks it up on the day and serves it at the reception. If Mr Phillips later finds out his cake was served at a gay wedding, does he have a case to sue for fraud?
1
Boo- hoo. Mr. Phillips is now a professional victim, for Jesus. What a martyr. No, what a crock of something. Dude, we are onto this scam, please grow up and ACT like a real businessperson, or just close your shop and take your sideshow on the road. This is really tiresome.
1
Sophistic poppycock. If you hold yourself out to the general public as a vendor, you serve everyone, period. If you allow this bigoted baker to pick and choose, then it's just as valid for him, or anyone to say that his religion forbids him serving black people, or Muslims with his "art."
Whether what Jack the Bigoted Baker does is art or not is irrelevant. We wouldn't allow a gallery owner to discriminate against artists who happen to be of different religious opinions, or to bar black people from his openings. If he were a Muslim, we wouldn't allow him to ban works by Jewish artists or bar Christian patrons.
2
There is so much wrong with the arguments made here.
1) replace "same sex marriage" with "interracial marriage", and explain how the exemption from generally applicable content neutral laws sought by the baker doesn't also require permitting a baker to refuse to make a cake for an interracial marriage. There is no principled distinction.
2) the inconsistent reference to "context" as changing speech. Yes, context create speech or change its meaning. But context reflects the speech of the one creating the context. Any "speech" of a baker stops the moment a cake is picked up by a customer. Either a cake violates the baker's beliefs at the time he sells it or it doesn't. A made to order undecorated chocolate cake does not suggest the baker's support for Halloween or divorce if I take the cake to a celebration of either. That message is mine. And if I create the context, how is it that supposed to be the baker's speech rather than mine?
3) Hurley and Dale explicitly rejected the authors' arguments as applied to businesses, because the private organizations were not to be subject to public accommodations laws. Masterpiece is a business, not a private organization. The authors turn these cases upside down.
4) the other bakeries. Oh boy, not again. The other bakeries refused to make cakes with specific messages that they wouldn't make for anyone. The refusals had nothing to do with the customer. Masterpiece is entirely about the status of the customers.
5
Refusing to stand for the national anthem or salute the flag or display the state motto on your vehicle is a far cry from using your right to free speech to discriminate against someone because you disagree with their lifestyle choices. As a business owner you either serve all of the public or none of the public and that goes for both sides. A gay Baker has no more right to refuse to serve a Christian because they disagree with their beliefs then a Christian baker has to deny service to someone who is gay.
These arguments didn't work after the civil rights movement and they won't work now. Freedom of speech means you can't punish someone for having contrary views. It doesn't give public businesses the right to discriminate against a portion of the public based on race, religion or sexual orientation.
2
I'm proud of the New York Times for publishing this op-ed piece. It upholds a basic tenet of liberalism, free speech, in a way that sometimes does not feel convenient to our current liberal convictions – – which is exactly what good liberals do! I actually agree with Jack Phillips' right not to make a custom wedding cake for a wedding that goes against his religious convictions. I agree not because I am against gay marriage (my own father was gay), but because the state should never be able to compel us to "say" something that we do not believe in, and as these writers correctly affirm, artistic expression is a form of "saying" something. Imagine if he had been asked to make a custom wedding cake with an overtly anti-gay theme – – no one would dispute his right to refuse. But his rights in each case are the same, no matter which direction our sympathies may lie.
4
As a gay man, I do not see why anyone takes so personally such rejections. If the man is prejudiced, go elsewhere for your cake. There are literally hundreds of business owners who will openly accept your money. The argument: “Well if we allow him to discriminate then others will discriminate!” is absurd seeing that society has and continues to become more open and inclusive over time. To sue the man will now only ruin his livelihood and/or his willingness to openly change in an organic manner after realizing that maybe all should be respected and treated equally under the eyes of his God.
In my opinion: Let people develop over time and accept that not everyone will change overnight with their decades of inbuilt biases. In a generation or two we won’t even be having these discussions.
7
" To sue the man will now only ruin his livelihood"
Good! If he doesn't want to make wedding cakes for everyone, he should make them for no one.
By this logic, one could claim that cooking a hamburger or hot dog is a form of free speech and they could decide not to cook them for anyone they don't want.
1
The underlying basis of the Freedom of Religion Clause is the right to practice one's religion free from persecution. It does not include the right to persecute others who do not share your religious views. It's a shield. Not a sword. Using free speech to weaponize religious views would permit what the Freedom of Religion Clause prohibits.
2
Very well. Suppose an abortionist claims that performing an abortion is speech and that they have sincerely-held religious beliefs that abortion is fine. Would the court rule that laws banning abortion were a violation of free speech and religious liberty? I bet not.
1
No no no no no. Setting aside the argument that baking a cake is speech (which is preposterous and specious to the point of absurdity), when you hold yourself out to the public to make money off that public by peddling your wares and services, you implicitly agree to follow the law (i.e. not to discriminate based on protected statuses). In short, if you want to enjoy the benefits of a free marketplace, you must also abide by the rules the Constitution puts in place for doing so. Here, that means you may not discriminate.
Regarding the absurd argument that the cake is speech, even if it were, which it is not, it is not the baker's speech anyway. Wedding cakes are fundamentally different than expressive art wherein the artist is the primary decision maker in conveying the message. All cakes follow a general formula and have limited ability to convey politically complex messages. The protections invoked are not needed for items of limited artistic value like cakes.
Last, instead of cherry-picking favorable language from precedent to distort the meaning of the law, try applying this standard: it is a general principle of law that when a law is passed, the body passing that law is presumed to know all other laws passed before, and when that body passes a law in conflict with a previous law, the one later in time abrogates the earlier. When the 14th amendment was enacted in 1868, it abrogated the 1st amendment as it pertains to discrimination. So you are simply wrong.
2
What if the design (by someone else) were presented to Phillips and his role was simply to execute the design. That would remove the artistic expression (free speech) argument would it not? In that case, even though the cake is "custom" it is equivalent to the standard cakes anyone can buy, since it doesn't involve Philips' speech.
Sorry Mr. Phillips, "Ars longa, vita brevis" is a truth that supersedes your claim to creating "art" when you take an order for a custom wedding cake. Where a bakery is concerned there can be no difference between off-the-shelf cakes and so-called custom cakes in terms of the commercial offering. All of Mr. Phillips cakes are his creation. Any of them, including cakes he would not admire because they satisfy a customer's taste rather than his own, should be considered commercial products for sale to any customer. He may choose not to display cakes he would not approve of, but has no right to deny a customer a product he otherwise sells to customers who meet his personal approval.
2
Instead of arguing over what constitutes an expressive act, or what constitutes a bona fide religious objection, it might be better simply to apply the Thirteenth Amendment's prohibition on involuntary servitude, which guarantees the right to just say no, for any reason or no reason at all. Further, given that people in other lines of work decline opportunities to work with particular clients all the time (e.g., advertising agencies who pass on working with white supremacist groups), there is something elitist about denying the same latitude to this baker.
3
The anonymous "Rella" argues that if ad agencies can refuse white supremacist groups, then bakers can refuse LGBT customers.
She is wrong, for 2 reasons.
Firstly, ad agencies can refuse a white supremacist customer only if they refuse ALL white supremacist work. Secondly, bakers may not sell cakes to heterosexual couples while refusing to sell the same cakes to gay/lesbian couples, because those couples are protected by the public accommodations law.
I guess if one can argue "free speech" to justify unlimited political contribons (AKA bribery or money is speech), or corporations are religious persons (Hobby Lobby), then it is not too large a leap to use "free speech" to allow virtually anything. "Stolen-seat" Gorsuch is likely to use the same kind of pretzel "free speech" logic that his predecessor Scalia used in his various 'frees speach' decisions (eg Citizens United).
Of course the issue is purely about discrimination, not free speech.
One can find in the Christian sacred text, the bible, the support for virtually anything (eg slavery, read the history of SBCC founder reverend Fuller).
A wedding cake is an ephemeral, common, consumer item. Its primary purpose is to provide a type of traditional dessert at a wedding. Although some wedding cakes may be more elaborately crafted and pleasing to the eye than others, they all share a common, centuries old raison d'être: to be ritually cut by the married couple, served, and then eaten by the assembled guests to end the ceremonial meal. I have never observed a wedding cake "signed" by its baker, unlike a painting, sculpture, or other piece of fine, expressive art. To claim that a wedding cake is an aesthetic object stretches language and common human experience to the breaking point.
I hope that the Justices appreciate and reject the actual purpose for this contrived, subsidized litigation, a "backdoor" attempt by religious zealots to weaken constitutional protections for gay people, whom they deeply hate and wish to marginalize. Amen.
1
If Mr Phillips were being asked to condone, endorse, or participate in a ceremony he finds religiously objectionable, that would indeed violate his First Amendment rights. But he is not being so asked. He is being asked to create a confection and deliver it to customers who are free to use it as they see fit. That does not (or should not) affront anyone's religious conscience.
1
Since we are coming to the understanding that sexual orientation is as innate as race or gender and is not a "choice," then it seems obvious that any discrimination is unacceptable.
Marriage equality is the law of the land. Wedding cake equality shouldn't be an issue at all.
1
Just flat wrong. No one is going to prevent the baker from baking and selling cakes. He's welcome to do that privately. But if he comes into the public square, he must serve the whole public. Would you defend his refusal to bake a cake for a biracial wedding? For the wedding of a divorced person? For the wedding of two non-Christians or, God forbid, a Christian and a non-Christian? This is not about same-sex marriage or sham "deeply-held" religious beliefs. It's about the equality of every American on the public square.
2
Why on earth, as a couple, would you want to compel Mr. Phillips to do something which goes against his beliefs?
[Full disclosure: I'm an Atheist liberal, and supporter gays' choice to marry, although I don't believe in marriage in general . And I take offense at hiding behind dogma to justify any actions. I don't like Mr. Phillips' views, but they aren't mine to dismiss.]
For practical reasons, the man should not be made to create that which he believes goes against the will of his God: his heart won't be in it, and that mojo will infect the union (psychologically speaking). There's no point in tormenting a man who's only real "sin" is that he still goes along with stuff some guys wrote a couple of thousand years ago and which has come to be regarded "The Word of God".
1
This isn't a First Amendment case; it's a discrimination case. If Jack Phillips doesn't want to serve the public, he shouldn't be operating a business that is ostensibly open to the public. Remember, he didn't object to the form or content of the cake (the discussion never got that far); he objected to the people trying to buy it.
2
The entire world may disagree with me but I believe that if I am a private business receiving no public monies than I am free to decide who I do business with. Period. Of course, the rules of the game change if I accept public monies.
1
It would be pretty much impossible to not use the public arena to some extent or in some form. If you occupy a space, you pay taxes on that space. You use public roads to arrive at your space. On your car, you pay registration fees and taxes. You collect sales tax. You pay income tax. You use the publicly-regulated internet to provide information about your product or service.
You are right and I anticipated such a response. I pay my taxes so I don't really get subsidies for those general services (let's not argue about the exact dollar amounts I pay vs. what I get back). I was thinking of government grants or tax-exempt status or such.
That is incorrect. If you are selling to the public you may not discriminate. Google "public accommodations."
I completely agree with the writers of this piece. Artistic expression is not the same as basic commerce.
What I just don't get is why it is worth suing this man or passing such a law in a place where there are many, many alternatives. Why would you want someone who didn't support what you were doing involved? Spite? Then why would you trust someone who didn't believe in what you are celebrating to do it well?
And what about this baker's potential liability if the couple finds some trivial fault in the cake? If the cake isn't perfect, the assumption is all but certainly going to be that he made it poorly on purpose leading to more hurt feelings and more litigation.
1
I'm not sure it's just a cake he's objecting to, it's the specific design being asked for, although it isn't clear from this article. I assume that he would sell a pre-made cake to anyone (as he should/must) but if you ask him to, say, create a unique design of two men getting married (which would be speech, yes?) that he would object to creating that. but not selling a pre-made wedding cake to whomever.
I am a writer and I believe I have the right to turn down a job request by, say, an alt-right person asking me to write a poem about how great Bannon is. that is different from me having a bookshop and not allowing people to buy my pre-made books based on their race/gender/etc.
1
Wrong. Wrong. Wrong. The cake would not be expressing Mr. Phillips's views (or their opposite). It would express the views of the clients who ordered it. Mr. Phillips is just a means, a publicly available means for the grooms to convey their message. No one at the wedding will say, "As Phillips the baker said, 'Best Wishes!'" No, those are not Phillips's words--like a sign painter or printer he was simply paid to put them there. As a 1st Amendment fundamentalist I find this sophistry and trivialization of free speech rights unfortunate.
1
All of these clear words, their underlying logic and their real-virtual and faux ethics overlooks an important issue: just as the map is not the territory, the cake, whatever its aesthetics is not the wedding. The divorce. An expressed value. Norm. Or whatever. This article doesn't help the reader to consider the influence, if any, that "free choice," to create, sell, give, rent. etc. has in enabling, empowering, a daily, toxic, violating WE-THEY culture in a democracy.There may not be an acceptable, viable, normative, legal, response to this complex issue in which unnecessary pain is created and sustained. By flawed humans, Whatever our beliefs. Principles of faith.Power, Status. If that is so, it should be stated. As for policy "bedrock principles," in our reality of uncertainties, unpredictabilities, lack of total control no matter what we do, over time, it is useful to consider that there is no "rock bottom,"
and that porosity is a dimension of daily life.Be it of blocking barriers, or of enabling bridges, to needed changes to create and sustain lifestyles of menschlichkeit for individuals. Families, Communities. Their identities. And levels and qualities of safe well being in one's life spaces.In what way(s) will/ can the current case clarify any of these complex issue?
The authors go to great length to make the case that a wedding cake is somehow a work of art above and beyond, say, a mere birthday cake, going so far as to state: "custom wedding cakes are full-fledged speech under the First Amendment" - by what measure? They fail to cite precedent for the elevation of custom wedding cakes and even this falls apart if the baker refused to make a custom wedding cake for an interracial couple, for example. By their logic would that refusal be justified as well?
Essentially we are allowed to hold prejudiced views as part of our cherished freedom of belief and speech. The attacks on Professor George are ad hominem and do not get to the issues. Certainly the baker cannot refuse to sell a ready-made cake off the shelf. The case will be decided on the facts as to whether there is any significant creative act involved here. If there is, it's a free speech case and I agree with the writers.
2
The intrusion of religious claims into commercial discrimination should not happen at all, ever. The problem with religious claims, all of them, is that all religions are essentially an arbitrary choice of arbitrary doctrine. One is free to choose any religion. Apparently one can choose any set of doctrines and call it religion. The varieties of christianity and islam for that matter are wildly variable yet ostensibly based on the same sources. And your religion may be based on something else entirely and thus completely unrestricted. In this sense religion is no different than any other preference or opinion. And other preferences and opinions cannot be used to discriminate in commercial setting.
Because of its arbitrary nature, religion (no matter how deeply "felt") should not be held to be something more than any other opinion or preference, and should not be taken into consideration in enforcing commercial rules. Nor should it have any place at all in government. Roy Moore's 10 commandment shenanigans in the courtroom are in outrageous disregard of the constitution he was supposed to uphold. Separation of church and state is a bedrock principle as is free speech.
Some context the NY Times didn't provide:
During the fight for marriage equality, Robert George and Sherif Girgis were staunch opponents of same-sex marriage, offering arguments that were ultimately rejected by the courts. They do not have a history of staunch defense of artistic rights, rather this is just another convenient argument by which they seek to limit the rights of gay people, to make the LGBT community a class against which they could discriminate.
Jack Phillips was not asked to endorse the couple's union, merely to bake a cake. One identical to a cake he had made for an opposite-sex couple probably would have been perfectly in line with what the couple wanted. He never found out what they wanted.
This is not a question of offended artistic sensibilities. This is someone seeking a license to discriminate.
3
The first amendment says," no law respecting an establishment of religion, or prohibiting the free exercise thereof;" His not decorating the cake is about his free exercise of his religion. In the same state another chef would not decorate a cake with nazie symbols or words. She claimed she felt it was morally wrong. Her approval was allowed. There is nothing in the first amendment that talks about the free exercise if her morals. But we recognize she shouldn't be forced to do something she feels is morally wrong. Likewise should the baker be forced to do something he feels is against his religion. Both should have a right of refusal. Should a guard in a prison, who belongs to no religious group and is in fact an atheist. be forced to push the plunger ao a condemned to death prisoner. The First Amendment is not about political correctness. If we don't want the baker to be allowed to exercise his religious rights or the other baker her moral rights, the get rid of the first amendment. Them we can have congress or some local authority decide the right of the day.
2
It's not the baker being 'forced' to wish the gay couple well despite his objection to their marriage. He isn't communicating anything, he's just making a cake. It's the people at the wedding, the families and friends who are communication their congratulations and good feelings.
1
If Jack Phillips doesn't want to take all customers who are willing to pay what he charges for his goods, he should withdraw from the market place. The market is no place for morality.
As a non-lawyer to question I have upon reading this are:
1. How are wedding photos dufferent from wrdding cakes? Both are works for hire, and for a specific wedding. Seems like a slippery slope to me.
2. How can we say that gay couples have many options without falling back on something like ugly "separate but equal" arguments?
I am not quibbling for it's own sake though--just curious. I actually support a baker's right to make whatever cakes he wants and a customer's right to take his business elsewhere.
1
My own wedding was religious in nature, and the ceremony took place at a Christian Church. If the dessert caterer for the reception had told she was participating in a religious sacrament, that would have been a bizarre statement.
1
The writers have not addressed the matter of authorship, which I would suggest is the pivotal issue.
Our first instinct on beholding a beautiful sculpture is to ask for the name of the artist. Consider how odd it would be to see such a sculpture in a museum and no signage alongside naming the artist.
Now consider a wedding cake. Is our first instinct on beholding a beautiful wedding cake to ask for the name of the baker? Perhaps if we were in the market for a wedding cake ourselves; otherwise, of course not. Because the matter of authorship is moot -- we understand that the wedding cake is a "ghost written" product created for the buyer. In fact, that is part of the legal contract between baker and buyer: no assertion of moral rights. No public credit necessary.
The writers of this piece, in omitting this important distinction between a work of art such as a sculpture -- in which the moral rights of the creator are paramount -- and a "work for hire" item such as a cake -- in which the moral rights of the creator are bought together with the item -- undermine their own argument.
3
"Now consider a wedding cake. Is our first instinct on beholding a beautiful wedding cake to ask for the name of the baker? Perhaps if we were in the market for a wedding cake ourselves; otherwise, of course not."
Your premise is debatable, if not totally erroneous. Upon seeing a particularly original or creative cake any wedding guest might be inclined to say, "where did you get it?", regardless of they're in the market for a wedding cake at that moment.
You miss my point, which is that the cake buyer's have no legal obligation to publicize who baked the cake. They have purchased the moral rights to that creation. The baker therefore cannot legally claim the cake is an expression of the cake -- he has sold his moral rights, per "work for her" protocol. Thank you!
Imagine the owner of a breakfast restaurant who won't serve bacon as he has a religious objection to handling that meat. You can't legally compel that owner/chef to prepare and serve bacon to his customers that desire bacon.
But if such an owner/chef has no objection to bacon, and serves it in the normal course of his operations, he is not permitted to decide that he won't serve it to a particular customer.
You can't reasonably compel a green grocer to sell auto parts against his will. But if that green grocer sells apples, he cannot legally choose which of his customers he will sell apples to and which he won't.
This is not a first amendment case.
Jack Phillips has no objections to marriage. He has no objections to weddings. He has no objections to the cooking and preparing and decorating and buying and selling of wedding cakes. Indeed, he is the proprietor of a operation with that specific purpose.
Mr Phillips, as he has decided to be in the wedding cake business, cannot decide to whom he will not sell a wedding cake.
7
I wonder how a couple other scenarios would play out:
1) A strong Pro-Choice owner of a print shop is asked by Focus on the Family (Pro-Life) to print brochures outlining why abortion is wrong. Or even just invites to a semi-annual meeting.
2) A catering service run by a Native American is asked to cater a movie set that includes negative portrayals of a Native American tribe. Or perhaps it's a catering business run by a strong feminist, who is asked to cater an adult film shooting where the women are apparently demeaned.
Can either refuse on the basis of their beliefs, or are they compelled by the state to provide service? It would seem they have no scripture to demonstrate a principled opposition to these activities.
2
Political views aren’t a protected category; it’s fine to discriminate based on them.
As a non-lawyer, two questions I have upon reading this are:
1. How are wedding photos different from wedding cakes? Both are works for hire, and for a specific wedding. Seems like a slippery slope to me.
2. How can we say that gay couples have many options without falling back on something like ugly "separate but equal" arguments?
I am not quibbling for it's own sake though--just curious. I actually support a baker's right to make whatever cakes he wants and a customer's right to take his business elsewhere.
A wedding cake is a symbol - it symbolizes a wedding.
If he doesn't want to serve the public, he should close his doors, and start a private wedding cake club - he can't have it both ways. Also - if the supreme court sees fit to give this guy what he want - the legal right to discriminate - then we are in for a world we haven't seen since the 30s. Back to the bad old days.
2
If in fact, the following is true:
"Three times the state has declined to force pro-gay bakers to provide a Christian patron with a cake they could not in conscience create given their own convictions on sexuality and marriage,"
then I cannot understand the reason why the state can force a Christian baker to provide a gay patron with a cake that he cannot in conscience create given his on convictions on sexuality and marriage.
Am I missing something here? If it's not true, then we have a different situation. If it is, I am very puzzled.
5
Colorado's law is not at issue. This is a federal case presenting a constitutional question.
SCOTUS doesn't care what CO thinks.
It seems to me that the “three times” cases were “artfully described” in an attempt to make them seem analogous to the Phillips case. Before accepting this premise, I would try to determine exactly what messages these so-Called “pro-gay bakers” were asked to convey, who asked them (and why), and what were the alternatives they proposed.
Because that's not what happened. Three bakeries were asked to make cakes with anti gay marriage slogans. The requests were refused, because the bakeries said they wouldn't make those cakes for anyone. The guy claimed they were discriminating against him because of his religious beliefs, but was rejected by the commission because the refusals had nothing to do with the religious beliefs of the guy, only the message expressed in the cakes (which the bakeries wouldn't make for anyone).
In Masterpiece, the baker refused (by refusing before any design was discussed) to make any "custom" cake for the gay couple, because they were gay, not because of a message that the cake would express. This is because the couple could've asked for a copy of a cake the baker previously made for a straight couple's wedding, but were refused before any design could be discussed. Hell, the gay couple could've been trying to order a cake reading "Adam and Eve, not Adam and Steve", but we'll never know because they never discussed the design with the baker.
The other bakeries were only about refusing specific messages, regardless of the customer. Masterpiece is about refusing any message, because of the protected class status of the customer.
How is it that custom cake is artistic speech because it will be at a same sex wedding but an pre-made cake at the same wedding is not? Both are acts of artistic expression. Masterpiece refuses to make custom cakes for same-sex couples regardless of the potential design of the custom cakes so there is no reason to assume that a custom cake would be immediately distinguishable from one that came from the cooler. If simply having your art at a gay wedding counts as speech, how is Masterpiece not already engaging in such speech when they sell their non-custom cakes for use in gay weddings? If Masterpiece is already willing to engage in such speech, how is this a free speech argument?
2
Exactly. That's the incoherence of any arguments in support of the baker.
It can't be the can't at the gay wedding or the act of selling the cake, because the baker says he's willing to sell a premade cake. It can't be the design of the cake, because the refusal before discussion precluded copies of cakes the baker had previously made. That leaves nothing.
The issue here is more subtle. Colorado isn't compelling Mr. Phillips to create a wedding cake. Instead, it's stipulating that if he chooses to create and sell wedding cakes, he cannot discriminate among potential customers based on race, gender or sexual orientation. Should a wedding photographer be able to refuse to photograph a wedding solely because the bride is African American? Should a sculptor be able to refuse to create a sculpture for the lobby of a business solely because the owner is female?
3
Mr. Phillips' bigotry cloaked in the sanctimonious posturing of "religious beliefs" is just that and nothing more. He needs to get over himself.
While he is working on that, potential customers are free to patronize another establishment and encourage others to do so, as well.
3
When a transgender non-binary family member of mine decided to marry their partner about a year ago, the cake became an issue because there were no available plastic people that adequately depicted the young couple, both of whom were assigned the female gender at birth but chose to wear men's-style suits, ties, and shoes at the event. They bought their own little golden unicorns and the cake was both unique and delicious. The world is a complicated place and if he wants to make his professional way in it, Phillips should bake for everyone. I'm certain that God is not smiling on this guy.
1
I don't know why anyone would want one of Mr. Phillips ugly cakes. But if they do, and if it has a picture of a flower on it, or some other generic poorly executed decoration, then Mr. Phillips should be compelled to provide it. If he refuses he is being illegally discriminatory. But if the clients want a specific message, such as two little male figures at the top, then Mr. Phillips is within his rights to refuse. My personal preference would be to have a lawyer baked into the cake.
1
Both authors are fierce opponents of same sex marriage. Can't help but think they're driven more by anti-gay bigotry than they are reasonable legal analysis.
3
Replace "same sex marriage" with "interracial marriage" and you see exactly this. There is no principled distinction between the two.
Further, the authors make no substantive attempt to explain why wedding cakes are somehow different than gourmet dining, but would surely never suggest a 3 Michelin star restaurant could refuse to serve a black person or an interracial couple.
This is a well reasoned piece. If the facts asserted are true, it is an excellent basis for discussion. HOWEVER, like several others commenting, I remember the facts differently. The baker had initially agreed to make the wedding cake, so there was nothing wrong in the design itself in his opinion. Then he discovered it was for a gay wedding, AND SAID HE COULD NOT MAKE A CAKE FOR A GAY WEDDING.
The case mentioned in the last paragraph, of a "Christian" patron who had ordered a cake from pro-gay bakers, is also instructive. The cake was to have an open book with anti-gay writings on it. The bakers readily agreed to make the cake including the book (thus surpassing the anti-gay baker) but declined to themselves do the anti-gay insult. They even offered to provide the "Christian" with the necessary tools to do the writing. Clearly by the logic of this article, the pro-gay bakers did all that was required and more. The anti-gay baker from his own statements does not fall within the logic of the article.
I grew up in the South, which had the nation's strongest public accommodation laws. If you were open for business, you legally gave up most of your right to refuse service. OF COURSE THE PROTECTION OF THE LAWS DID NOT APPLY TO BLACK PEOPLE! So now gays wishing to get married are not protected by the laws? I do not agree.
4
Colorado declined to force pro-gay bakers to provide a Christian patron with a cake they could not in conscience create? In one case the baker said she'd make the cake and provide the Christian patron with icing and icing tools to create the message himself. This is VERY different from Mr. Phillips's refusal to bake the cake outright. Robert George is also the founder of the National Organization for Marriage, the group that lost when Obergefell v Baker was decided. He's cherrypicking, the same way fundamentalist Christians do when they read Leviticus.
5
This just in.
Stephen George, the well known conservative commentator announced toady that, even though he is a member of his local volunteer fire department in New Jersey, that if he gets a call to put out a fire at the house occupied by a same sex couple up the street, he will invoke his first amendment right not to respond to the call because he objects to the life style of the two females who occupy that particular household.
When contacted Mr. George responded: "I'm sure the Supreme Court will side with me that I need respond only to distress calls from people whose life styles I support."
1
The government is not prohibiting the expression of an idea in this case. It is prohibiting discrimination in the marketplace. Mr. Phillips is free to express his religious convictions all he wants. However, if those convictions are so strong that he feels compelled to discriminate against a certain class of citizens, he is free to not be a baker. His choice. To allow him not to serve a gay couple allows him to impose his religious views on others, and that is not acceptable in an open, democratic society.
20
They are free to purchase one his off the shelf cakes - he just doesn't want to use his artistic skills to celebrate the event.
But his cakes aren't particularly artistic. Looking at his website, and what is shown here, his cakes are mostly reproductions--not necessarily artistic creations.
5
Then someone can buy an "off the shelf" cake - no questions asked.
What this issue makes me think of is whether or not this is even a first amendment issue. Sure, it's about free speech, but there is a difference between the first amendment and free speech. The first amendment, and most of the Bill of Rights, only apply to the government infringing on one's rights. This isn't a matter of the government preventing someone from saying anything; it's about a business owner and a customer. Calling this a first amendment issue is misguided and misinterprets an extremely important founding principle of the country. It says, right off the bat, "Congress shall make no law..." and that gets forgotten.
10
But government is controlling the baker’s speech - if he fails to use his artistic skills in a manner to which he objects, he is fined by the government. That’s precisely what the lawsuit is all about.
2
If Jack Phillips doesn't like being compelled to decorate a cake the way he is told to do by the customer, first of all, this refusal should not be predicated on his interpretation of the edicts of his religion. Freedom of speech stands alone, and is not enforced only when it is an expression of religion.
If a baker or writer specializes in any form of expression, it is protected speech. It is disturbing that what should be a clear protection of freedom of conscience, is diminished when first amendment protection is only validated when it is an expression of a religion, certified- de facto- by the U.S. Internal Revenue Department.
3
Not really Al. He has a commercial business and can't discriminate. That's what the law says. He is discriminating solely on the basis of sexual orientation.
2
Exactly.
The article makes this point:
"In these cases, after all, the precise act being targeted just is the speaker’s choosing (“discriminating”) among which ideas to express — exactly what the First Amendment exists to protect. As the court put it in Hurley, the “point of all speech protection” is “to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.”
You conclude (discriminate) that my view and the baker is harmful to a main tenet of our current society, which is to choose to create not only a color blind society but one blind to the biological necessity of defining the institution that supports biological reproduction as being exclusive to complementary genders.
Federal law does not include sexual orientation as a protected class, nor does the state that this occurred. You or anyone who disagrees with this baker may boycott him, but may not use a law that does not exist to sanction him
As appealing on the surface as this article is, there are just no satisfactory grounds for Mr. Phillips to assert that any of his cakes are speech that must be protected IN THE SENSE OF ALLOWING A RESTRICTIVE WITHHOLDING OF SERVICE IF they are also products which are available for purchase in a publicly licensed and incorporated commercial enterprise. Furthermore, I would argue in court that any attempt to try to press the argument advanced in the article must contend with this direct challenge: does Mr. Phillips regularly assess and make judgments about the (discernible) identities of all customers, and regularly assess and make judgments about the uses to which his products will be put, in order to ascertain if they align with his religious beliefs? If the answer is yes, show me proof that he does it, and how he does it. If the answer is no, then he is--quite literally--discriminating. Finally, the entire project of strumming the First Amendment with these kinds of cases is, deep down, the cause celebre of a phalanx of conservative Christian religious faith groups who feel like US society is...no longer recognizably theirs, and no longer recognizably Christian in the ways they take to be orthodox, incontestable, and universal. Nope, it isn't, and wasn't, and won't be.
40
BB,
It is not for you to judge Mr. Phillips Conscience.
That is why we have the 1st Amendment.
You go against all the Constitution Stands for and
what the Founding Fathers sought when you deny
Mr. Phillips the right to follow his conscience -
not yours or anyone else's.
1
If the standard now is engagement in artistic expression, then why couldn't anyone refuse to make any kind of art for anyone he deems unworthy? Why couldn't a photographer refuse to take wedding pictures of an African-American couple, or a biographer refuse to write a story for a Jewish or Muslim client?
Create an exclusionary zone to allow discrimination in public accomodations, and you will see a whole lot of people try to claim it for themselves, as long as they have lawyers to claim the mantle of artistic expression, right or wrong.
23
Anyone can, and should, be able to refuse to make art if the ideas behind the art are ideas that they disagree with. The government should not have the ability to mandate a writer put pen to paper on a topic that they have fundamental ideological disagreements with. The entire purpose of the First Amendment is to prevent the government from controlling narratives by commanding expression.
2
So if the diner on the corner considers its french fries to be art, can it refuse to sell them to a Buddhist customer?
2
Those are false comparisons which the op-ed has clearly addressed. Why is this case different from a photographer refusing to take pictures of black couples? Because being black is not a concept to be expressed. It's an ethnicity. One doesn't generally take a photograph to express their ethnicity. Marriage, on the other hand, is an expressive concept. It's a celebration of a legal union with another person. As such, a commission to photograph someone in the general sense (meaning the most commonly understood sense) is usually not considered an expressive act connected with conferring meaning through one's ethnicity whereas a commission to bake a wedding cake can be considered an expressive act connected with celebration of marriage. That there is the key difference, the context under which an act is commissioned and how that context is connected with the element that the objector is objecting to.
Mr. Phillips is missing an opportunity for charity and generosity in this case. He is not supporting gay marriage by making a cake for a gay marriage couple. It is a case of commerce and not a religious request. He is not being asked to attend the ceremony. He could have kept his religious views and feelings to himself and not try to impose them as a condition on this couple. We are not here to judge others, we are here to love others and let God take care of the judgement.
21
Except the crux of the article is that he should feel obligated or be legally obligated to. Refusing to make a custom cake for a ceremony that he does not agree with is not imposing his feeling on another couple or the public. His actions in no way prevents the couple from either marrying, celebrating their marriage, or having a cake. However, by forcing his compliance, the state and the couple is imposing their views on Mr. Phillips. Whereas the couple could always find a cake elsewhere (or even buy a premade cake from Mr. Phillips), Mr. Phillips cannot un-make a cake or un-violate his beliefs once he makes the cake.
1
Are you will to extend the standard you give voice to in your last sentence to Mr. Phillips? If so, then how to do you rationalize your directive to him regarding his religious views and feelings and whether he's imposing them on anyone or not? I'm not saying that your message is wrong, only pointing out that you aren't doing a very good job of following it, yourself. I think what you propose is harder than it looks.
1
Joe Parrot,
And if Mr. Phillips conscience tells him not to be a part
of this wedding and its celebration - who are you to judge him
and tell him he must make the cake ?
1
Mr. Phillips has had his 15 minutes of fame. May we shut him down if he breaks anti-discrimination laws and then just ignore him? Bigots are a dime a dozen.
24
Laws are not always right, that is why judicial review is a thing and the courts exist. Your absolutist approach here is based on the (false and dangerous) assumption that laws must always be right and punishment pursuant is always just. Neither are valid assumptions and are in fact anathema to free society.
winchestereast,
And if Mr. Phillips's conscience does not find favour with yours -
it is he who is the bigot and not you ?
Holy cow, shut him down and ignore him? Shall we do the same to whomever we disagree with? What next?
My concern is that, having attended Mr Phillips church in Lakewood Colorado, i perceive religiously justified intolerance to many groups, including divorced people, Catholics, Jews, Muslims, Freemasons, etc etc.
So Mr Phillips conceivably could refuse service to any of the above.
A Catholic baker could refuse to make a wedding cake for a fellow Catholic marrying outside the church.
And so on.
Perhaps the essential point is that given the baker's prejudices, why would anyone he views in a demeaning way wish to patronize his services? Do the gay couple imagine that by forcing Phillips to do business with them his attitude will change?
18
No, and that is precisely the point of this article. The context of the refusal and services requested matters when judging whether discrimination is a valid complaint and whether the refusal is protected expression. Refusing service on the basis of race is not generally permissible because race is not a factor in the provision of the service. In other words, the service requested generally do not depend on race. Baking a wedding cake however, is not the same. A wedding cake is a custom creation tailored for the occasion and often contain personal touches reflective of the occasion and people being celebrated. Thus, mo reasonable person would perceive that baking a wedding cake is not an expression directly relating to the occasion being celebrated. Thus, refusing to bake a wedding cake for a black couple is not the same thing as refusing to bake a wedding cake for a gay couple.
Let me put it this way. If you are this baker and you say to yourself: I am refusing to bake this wedding cake because this marriage celebrates ______. If you say the "couple being black", it makes no sense to a reasonable person because ethnicity is generally not celebrated through a wedding. But if you put in the "couple being gay", then homosexuality is an integral part of the concept of the celebration and thus the context under which the service is commissioned. To refuse the black couple would be impermissible discrimination, to refuse the gay couple would be protected artistic expression.
1
I don't want to CHANGE HIS ATTITUDE. I just want to be able to walk into a shop and make a purchase without defending my life. He can nurture his beliefs and attitudes at home, in church, and anywhere an unlucky audience might find itself, but we can't turn every American shop counter into an inquisition.
1
Your last question misses the point entirely. The gay couple couldn't care less about changing his attitude.
They were refused service for their sexual orientation. Gay marriage is legal in America. Phillips is practicing discrimination, and the couple wish the courts to rule on the legality of this practice.
Suppose....
In the window of Mr. Phillps' bakery are two signs displayed to for the public entering his place of business to view.
- One sign says: I do not create wedding cakes that express my support for gay marriage.
- The other sign says: I do not create wedding cakes to be used at a marriage of people who are gay.
Which sign do you object to? Which sign does the law object to?
Now, on both signs, replace the words that reference gay people getting married with words that reference people who are in the U.S. military, then apply the same question as above.
To me, the answer for the court is more straight-forward than some suggest.
9
Is he gonna put up a sign that says, no gay married police officer should risk his/her life to protect me or my property? Married gay firemen/women/other have no obligation to douse my premises or haul me from the flames?
12
My word... As the article states, he would not refuse to sell an off-the-shelf cake to anybody, no questions asked. What he refused to do was to use his artistic skills to create a custom, celebratory piece of artwork celebrating something he rejects in religious grounds. There is a monumental difference between the two.
1
Again, false comparison. The point of the article is that the creation of a wedding cake is not an ancillary activity to the celebration of a wedding. Wedding cakes are not your run of the mill birthday cakes or retirement party cakes. It's a custom made cake that you can't just walk in and buy. Indeed Mr. Phillips sells off the shelf cakes to anyone regardless of sexual orientation. As a baker, a wedding cake is an artistic expression irrevocably tied to the occasion being celebrated. No two wedding cakes from the same baker is the same. Thus, expressing support of through artistic expression and creating a wedding cake is essentially the same thing to a professional baker.
Also a few flaws in your military analogy. One military servicemembers are not considered a protected class under civil rights law. And two, a marriage is not (by reasonable standards) a celebration of military service. Thus, a better analogy would be what if it's a black couple that he refused on basis of race. In that case, it would be illegal because a marriage is not a celebration of race, thus to refuse based on race would not be justified on artistic expression grounds.
As for the commenter below, his comparisons are even more offbase. Would a gay firefighter doing his job putting out a fire violate any beliefs he may hold in relation to his sexual orientation? No. However, an artisan or artist performing his craft through artistic expression could violate his religious beliefs based on context.
1
It's too bad this case even came up. I'm sure the couple could easily have taken their business elsewhere. Why they wanted to buy a cake from someone who was anti-gay is beyond me. What if he agreed, and then gave them a cake that tasted terrible?
I do believe the court will find this a difficult case, contrary to those who think it's a slam dunk one way or the other. It would be better for the court of public opinion to decide - a baker who refuses the business of gay people must be willing to accept the risk of boycotts or other actions based on his decision.
12
The couple had gone to this baker for years and had no inkling of his anti-gay stance. So they wanted to buy a cake from him, and his policy came as a shock to them. Naturally, they are objecting to the second-rate status being afforded them in public accommodations by this baker; they don't particularly want his cake anymore. As for letting public opinion decide, Colorado did decide by electing state representatives who passed the law in question. And public opinion pressure in the form of boycotts frequently falls short, as in the case of the Jim Crow South.
1
They did take their business elsewhere. They had no reason that he would decline to do business with him once he found they were a couple.
They're not even in the case. The other party is the State of Colorado which seeks to defend its laws against discrimination.
1
I believe they had bought cakes from him before, but for a wedding he said no.
1
I am a proud leftist, and therefore also a strong First Amendment advocate as well as a strong advocate of LGQBT rights.
That is WHY I agree with the columnists here. Mr. Phillips should NOT be compelled to create a cake violating his fundamental beliefs, whether it involves Satanism, divorce parties, lewd bachelor parties, Halloween parties--or same sex marriages. If he can be compelled to do the latter, then he can be compelled to do all the others as well. That, to me, violates the First Amendment's right to freedom of speech, and quite possibly the free exercise clause as well.
Consider this: if you force Mr. Philipps to make such cakes, then what is to stop a requirement that gay bakers make cakes calling for a ban on gay marriage, or celebrating an anti-gay protest dinner party? To me, to ask that question is to answer it.
30
No one is asking Mr. Phillips to write a statement in support of anything. It's a cake. You eat it. No swastikas, KKK banners, nooses, kiddie porn requested on the darn cake. Nothing offensive or illegal or abusive to any other human person.
19
Mr. Phillips NEVER makes Halloween cakes. It doesn't matter who you are. Mr. Phillips commonly makes wedding cakes, just not for gays. That is the difference. That is what Colorado makes illegal.
The gay bakers could refuse to write "we hate gays" on a cake, and they would be protected by the 1st amendment. But they can't decide what a customer is allowed to DO with a cake they make, if the cake is simply a nice cake with flowers and such. Generic.
A dressmaker cannot design and sew a ballgown for someone, and then dictate where it can and cannot be worn. She can refuse to sew swastikas onto it, but cannot tell the purchaser that she can wear it to a wedding, but not to a KKK ball.
The authors' opinions are worthy of attention, given their legal backgrounds. However, their pontification: "That's unconstitutional." is for the courts to decide, not attorneys or even law professors.
What is at question is not free speech, or even freedom to express speech through cake-making. It is about the right of states to regulate business. That certainly is constitutional. The Civil Rights Act of 1964 bases its business restrictions on the inter-state commerce clause which explicitly empowers federal regulation of such commerce, while implicitly allowing such regulation within states. The Barnette and Wolley cases they cite are about the relation between speech and state laws about public schools or state license plate mottos.
I have been a single proprietor in small photo shops, licensed by three states. In each case, my commerce but not my speech was subject to appropriate regulation. I understood then as now that my actions as owner doing business were public. I did not ask people their views on politics or 'culture war' issues. I did portraits of self-proclaimed racists, my job.
Mr Phillips sees his making a Halloween cake as a violation of his religious principles. He is free to have his beliefs, and if Christ requires, to choose another profession. But if he presents himself as a maker of custom cakes, that is his commerce and he must not discriminate between customers. The cake expresses the buyer's opinion, not the baker's.
23
Tom Jeff,
The Interstate Commerce Clause was written to prevent States
from placing tariffs on items crossing states lines to be sold.
That the 1964 Civil Rights Bill gives Congress the power to
tell businesses that happen to buy materials that crossed State Lines
that they cannot "discriminate" is to misconstrue the Constitution.
Why you wish to force Mr. Phillips to violate his conscience is beyond me
and is certainly un-Constitutional.
1
As usual, you take the Times's identification of the writers at face value. What The Times isn't telling you here is that George of the founder of the National Organization for Marriage which opposed same-sex marriage until Obergefell. Does that change your attitude any?
If you have a business that serves the public, and benefits from all us contributing to the streets that lead people to your shop, the police and fire departments that protect it, etc., then you should serve the public--period.
22
The same streets, police and fire departments, etc., are used by the occupants of residences. Someone could use this argument to by accepting these public services, you forfeit the right to decide whom you may or may not invite into your home.
1
The authors mentioned the slippery slope but did not address it. There are Religions which consider it a sin to support integration. Is it legal to discriminate because discrimination is consistent with a religious belief? I can just imagine the uproar if a Muslim business refused to sell to Christians.
12
What are those religions that consider iintegration to be a sin?
I see that my former professor continues to push for separate-but-equal treatment for all Americans who aren't cis-gender heterosexuals. It's a shame that George cannot help sully his reputation as a legal scholar by his continued insistence that LGBTQ people have no place in the body politic.
Despite George's claim otherwise, this case is not actually about the 1st Amendment, but instead the federal government's powers under the Commerce Clause and the 14th Amendment. Plain and simple. Of course Mr. Phillips cannot be compelled to create art that he does not wish to create, and that he can reasonably argue is not just against his will but against his conscience. No one is disputing this.
Mr. Phillips cannot, however, open a business and then choose his customers on the basis of the customer's physical characteristics or membership within a protected class of citizens, even if that business is ostensibly involved in selling a product Mr. Phillips considers to be his art.
If you open a business, you are subject to the police powers of the state wherein that business resides and federal law as authorized by the Commerce Clause and the 14th Amendment (implemented through the Civil Rights Act of 1964 and the Americans with Disabilities Act, among others).
Mr. Phillips can, in his private life, deny cakes to LGBTQ people all he wants. He could even sell homophobic cakes if he so desired. He cannot, however, discriminate as a businessman. The law is clear as day.
71
S,
The law is not as clear as day.
If you wish to be a Model, if your body type does not fit the image
the Modeling Agency wishes have in its models - you are discriminated against.
If you wish to be a TV Anchor-person and don't have a perfect smile
and perfect hair - you are discriminated against.
Seeking entrance into the trendiest Night Club -
not quite hip and good looking enough - you are discriminated against.
Did not attend the right Law School - forget about being on the
Supreme Court - you are discriminated against.
Mr. Phillips has a conscience - you have no right under the 1st Amendment
to force him to violate it - why do you seek to discriminate against Mr. Phillips ?
3
He is not denying service to gay people. They are welcome to buy cookies, or cupcakes from his cakes. He does it want to create a cake that requires imagination, thought, and sincere artisty. Should a musician be required to perform music at a pagan ceremony?
4
Interesting justification.
I do know one thing: he's jettisoned 40% of his business so he can make a judgment call.
This is capitalism?
2
No. This is someone who follows his conscience, whatever the cost. You may not agree with him, but I think that is pretty admirable.
1
Most busineses do likewise. Consider womens clothing. Designers ignore fat women. Very high end designers won't create clothes even for average sized women. Elomi makes bras in my size, but Victoria's Secret does not. Should they be compelled to?
I want these guys to have their cake. And I want to help them celebrate their wedding. But I'm having trouble getting anything to wear that I haven't gone to great lengths to alter myself.
The analysis in another Times OpEd.on this case, by John Corvino, was more convincing, noting that the baker rejected the order without discussing design, making it clear 5hat he was rejecting the customers rather than any particular message. Most wedding cakes don’t express a message - their use in the wedding, which is at the hand of the customer, not the baker, provides the message.
17
While I don’t believe someone should be compelled to express a position they disagree with, the issue for me is the hypocrisy inherent in denying a gay couple a wedding cake on religious grounds. If the baker in question had a history of denying cakes for people who had divorced or committed some other violation of his religious beliefs, his standing would be firmer. As it stands, he appears to be selecting a single religious tenet to apply to a specific class of person, which indicates a specific bias. Roll in the fact that this class of person has been historically disadvantaged and persecuted by such biases, and it seems like a pretty clear-cut case of discrimination.
13
They are commercial establishments and as such can't discriminate, IF your state has LGBT as a protected class.
Did you read the article? It mentions that this baker has policies concerning divorce parties, lewd bachelor parties, Halloween parties, and perhaps other things.
Whichever way the SCOTUS decision goes, Mr. Phillips got a lot of what he may have wished: a tremendous amount of free publicity for his business.
3
And his hideous cakes, I might add.
Professor George's opinion as to the right of Mr. Phillips to not speak is not surprising given his affiliation with organizations that advocate against LGBT rights. Robert George was one of the founders and Chairman of the Board for the National Organization for Marriage (NOM). He currently is on the board for the Family Research Council, an organization identified by the Southern Poverty Law Center as a purveyor of hate.
What is disappointing is that the NYTimes did not flag these affiliations of Robert George. His vaunted title at Princeton gives him apparent sway. His leadership roles with organizations that have organized for years to deny the LGBT community basic rights should be similarly flagged.
43
If a Colorado baker can deny a heterosexual couple a custom wedding cake because of their believes then Jack Phillips can deny a gay couple a custom cake because of his religious beliefs. It would appear that the courts were showing favoritism to the gay bakers and discrimination to Mr. Phillips, the heterosexual, if Mr. Phillips is forced to make a custom cake for the gay couple. Mr. Phillips could contend that the gay bakers refused the heterosexual couple because they did not like heterosexuals. Mr. Phillips does not dislike gays and will sell them ready made goods anytime.
The Supreme Court must take into account Mr. Phillips plight if they are to be fair. He is a deeply religious man and this goes against his religion. As mentioned he does not make cakes for divorced couples. They could also file suit against him saying he discriminates against their lifestyles. They did not probably because they respected his belief system. Hopefully the Supreme Court will take his religious views seriously too.
3
You're ignoring the difference between the cases. The previous ruling was that the pro-gay baker couldn't be forced to include an anti-gay message on the cake.
Also, you compare divorced people to gay people. Being divorced isn't an innate personal trait. Being gay is.
In this case, no message was discussed at all. The baker refused to serve the customers upon seeing that they were gay. No message is involved. If his business is open to the public, he's not allowed to refuse to serve a protected class of people.
You must read closely. Jack Phillips does not make "divorce cakes" that celebrate divorce, so therefore he does not sell them to anyone. He DOES sell "wedding cakes" and he will sell a "wedding cake" to people who have been divorced in the past. Wedding cakes are a staple of his business and a common product which, legally, if he is open for business in Colorado, he needs to sell to any tax-paying citizen.
A Jewish butcher can refuse to carry pork in his shop.
But can he refuse to sell veal to you, when he knows you will bake it in a dish that contains cheese?
Can he refuse to sell you a chicken if he knows you will make cream of chicken soup with it?
Whichever way the Court rules, going forward, if any baker has a problem baking for a customer for any reason, I guess the safest thing to say would be they're too busy to bake the cake that weekend and let the customers go to a different bakery.
4
Like a custom car, a custom chair, a custom suit, a custom hat - a custom cake may be capable of acting as a platform for a speech act. It is clearly not a speech act in itself.
The authors’ argument defies sense.
4
I know Robert George to be brilliant, but here he loses me. I do not see how baking the cake is forcing the baker himself to express celebration here (that's what George says is required for the First Amendment protection). He isn't signing the cake, after all. And suppose it's always been his practice to sign his cakes. He's still free not to do so in this instance. How can it plausibly be considered his expression, as opposed to the actual celebrants', if no one can in principle hear it or see it?
6
Whether one supports gay marriage or not, one's right to disagree with an act conducted by others, legal or not, is surely a pillar of any democracy. This man doesn't seem to be discriminating against gays - I believe he has said he has no issue with gay customers - but is expressing his opposition to an act, gay marriage, with which he disagrees. I don't think anyone can deny him that right.
6
A Jewish butcher is not required to sell pork, and a Hindu butcher is not required to sell beef.
A Jewish butcher cannot refuse to sell veal to an Italian because he knows it will be cooked in a dish that contains cheese.
Can a tailor refuse to make a suit for a person, if that person is wearing it to a gay wedding?
Can a Jewish butcher refuse to sell you veal, if he knows you will bake it in a dish that contains cheese?
The trajectory of this case has been fascinating.
Initially, Mr. Phillips was also pressing the 'freedom of religion' proviso of the first amendment (the intuitive go-to in a case where the central concern is something that Phillips finds sinful). At some point, however, it became clear that the optics objecting solely on the basis of religion were not in his favour: An anti-discrimination law (as in Colorado's) is designed so that, while freedom to practice religion is fundamental, this practice cannot become an imposition on others in everyday encounters.
The move to a strict 'freedom of speech' proviso – it's the message that Phillips doesn't want to send – is what in the end brought the case to SCOTUS, yet this move has two strange features. First, it requires a case for cake-making as a form of artistic expression (there is something here of course – every medium is potentially artistic – but cake-making is certainly not understood as traditionally or inherently 'artistic'). Second, it elides the religious motivations for the message, which the author thus emptily paraphrases as "this couple has formed a marriage." (No normative content here: No "... and that is good," or "... and I believe this was god's will".)
I can't say I'm 100% for a process of dragging Phillips through the mud because of a request that made him feel very uncomfortable.
I can say that I'm 100% against using freedom of speech as a screen where freedom of religion was explicitly insufficient.
4
In the Land of the Free (a) an adult citizen should be free to marry another adult of the same gender if he or she so chooses and (b) a private citizen or privately held business should be within their legal rights to refrain from baking a custom cake for a gay wedding if doing so would violate their good faith religious beliefs. In the Land of the Free, both should be free to express their views and neither should be able to use the force of law to impose their views on the other.
The baker should not be able to block the wedding and the gay couple should not be able to force the baker to make a cake his conscience tells him he should not make. The baker should mind his own business when the wedding comes around and the gay couple should get their custom wedding cake somewhere else.
This is what it means to live in a free and tolerant society where people having differing life experiences and world views can live in freedom, peace and prosperity. These conditions offer the best hope for continued progress based on science, reason and compassion and the gradual abandonment of harmful prejudices. Trying to force people to act against their deeply held religious beliefs is dangerous and, in the vast majority of circumstances, unnecessary.
6
This is the best comment I have read. Unfortunately, it seems that we are living in a less civil society.
1
You say the couple should go to another baker. At the same time, you say every baker can rightfully refuse them. Contradictory viewpoints?
If you want to purchase veal, the Jewish butcher should have the right to refuse you, if he knows you will bake it in a dish that contains cheese. You should get your veal somewhere else, then?
I found it disappointing that the authors raised an important issue, namely "Some fear a slippery slope... If we exempt Mr. Phillips, won’t we have to exempt these people [segregationistsl other businesses that refuse to sell services to such weddings; pharmacists who refuse to sell birth control] from anti-discrimination law?" I had to go back because I thought I had missed their argument on this, but it's just not there--they raise the issue and then neglect to respond.
3
Not selling a cake sitting on the counter to a couple for the sole reason that they are from LGBTQ is discrimination. But when LGBTQ couple insists that the baker create a cake for them despite his religious beliefs to the contrary, they are forcing the baker into an act against his will. No one should be subjected to that and that is the purpose of this case.
Now what would have happened if Mr. Phillips was a doctor? He would have violated his oath and subject to malpractice claims and that would have deterred him from the same action.
3
Wow. That is the most common sense I have seen in a New York Times article in a long time. Thank you!
The final paragraph adds strong clarity. "Three times the state has declined to force pro-gay bakers to provide a Christian patron with a cake they could not in conscience create given their own convictions on sexuality and marriage. Colorado was right to recognize their First Amendment right against compelled speech. It’s wrong to deny Jack Phillips that same right."
5
If Mr. Phillips is forced to make "the cake," will it have to be perfect? What if it is lopsided? What if it doesn't taste right? Who will be the judge? Will experts be called in? If it is not up to "standards," will he be found in contempt . . . ? Will he be jailed? Where does this end?
1
I do not believe that any stretch of the law can sat baking a cake contributes to free speech.
I am a physician. You should see the theatric flair with which I treat my patients sometimes. If I refused to treat evangelical Christians because as a humanist I cannot abide people who flaunt evolution, I would be sued, lose my job, and lose my livelihood.
This a specious argument by Professor George.
1
Something tells me you have very few Evangelical Christians patients anyway. I'm sure it's quite obvious to them the contempt in which you hold them. Do you think it would have been ok for the baker to agree to bake a cake yet demonstrate such contempt?
This is disappointing. The first amendment is not at issue here because the speech is for hire and work for hire is not "free" speech. Under this doctrine, a gay couple has the same right under the civil rights act to contract for a publicly available accommodation as a straight couple. This suit is not authentic for two reasons. First, as a businessman Phillips could have set his fees to be uncompetitively high which would have avoided the problem. It would be discriminatory but a lot harder to nail down. Second, what self-respecting couple of any orientation would want to give business to someone like Phillips who hates what they stand for? This shouldn't be a SCOTUS case and I am not sure either side deserves to win.
What if it’s the baker anywhere near by? are they out of luck?
By the logic of you opinion, a printing service could refuse to make invitations on the grounds that they're beautifully embossed and aesthetically appealing invitations are also a form of artistic expression. Same for the caterers: they could claim that the manner in which they prepare and present the food is a form of artistic expression. The banquet hall could argue that the way the reception is decorated and lighted is also a form of artistic expression. There's no arguing that a live band is producing a form of artistic expression so bands could refuse to play for the couple. By your argument, most businesses that provide wedding services could refuse service to a gay couple with the possible exceptions of the janitorial and limo services.
As for you argument about photographers, huh?
1
Here's the problem with this argument: the baker is not solely an artist, but is a businessman and , if you will, an artist. I make art. I discuss ideas and terms before I agree to do a project, and I can say no to anything or anyone, and I don't have to give a reason.
This man has a store. He is registered to do business under the laws of Colorado as a baker. As a business he cannot discriminate. He lost his first amendment protection to say no to Anyone for Any reason the moment he set up shop.
3
How many deli trays, how many pizzas, how many trays of canapés, all thoughtfully and carefully assembled, have been delivered over the years in the U.S. to board meetings or ceremonies or luncheons at which the attendees espouse personal, economic, or political views that the chefs behind the food found abhorrent? The people who spread mayo, slice pepperoni, and devil eggs, however "artfully," don't get to interrogate the end uses of their dishes, nor are any of them "participating" in or endorsing the events of their customers. The baker in this has a grandiose view of his role.
1
"A plaster sculpture of the same size and look would without question be protected. That wedding cakes are edible is utterly beside the point. Their main purpose isn’t to sate hunger or even please the palate; it is aesthetic and expressive. They figure at receptions as a centerpiece and then part of the live program, much like a prop in a play."
The authors display their convoluted logic here! A wedding cake IS meant to "please the palate"; this is precisely why people don't order plaster sculptures (just to look at) instead of real cakes. The cake isn't just a visual decoration; in fact, the "live program" typically involves the couple feeding each other a forkful (which you can't do with plaster.)
"If wedding cakes are expressive, whether by words or mere festive design, what’s their message? A wedding cake’s context specifies its message: This couple has formed a marriage. When the specific context is a same-sex wedding, that message is one Mr. Phillips doesn’t believe and cannot in conscience affirm. So coercing him to create a cake for the occasion is compelled artistic speech."
Again, the authors contradict themselves! If the cake's message isn't fully created until it's used in a specific context, then the baker has no right to claim that the cake represents HIS expression!
Suppose that I don't think that Muslims deserve to be America citizens and they will burn flags; that doesn't give me the right to not sell a flag to a Muslim. Same thing here.
Honestly, I would agree with you if Phillips was asked to decorate the cake with rainbow colors, or provide a cake topper with two grooms. But this isn't what happened. Rather, he turned away Craig and Mullins upon learning of how they intended to use his product. So no, Colorado's law banning discrimination didn't compel Phillips' speech, it compelled his basic decency.
4
"The only claim left is that Mr. Phillips’s expressive choice causes what some refer to as dignitary harm: the distress of confronting ideas one finds demeaning or hurtful. Yet accepting that justification would shatter what the court in Texas v. Johnson (1989) called a “bedrock principle” — namely that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive.”
Yeah, no. You're wrong. There is a difference between having to tolerate offensive or hurtful ideas, and having to tolerate being treated like a second-class citizen and prohibited from enjoying equal rights.
There are three parties involved: the baker, the couple, and the State of Colorado. The individuals who think the baker should be punished are only focused on two of the parties, but it has to be asked if the State of Colorado's punishment and power is proportional to the harm done to the couple. I don't think it is. Discrimination is bad, but we routinely live with bad things in favor of not allowing the government too much power. For example, we could surely reduce murder rates by doing away with due process and removing protections from unreasonable search and seizure, but few would agree we should do those things. The analogy holds here, discrimination is bad, but we should not allow the government the power of micro-managing the voluntary transactions of mom and pop shops. In 1964 we passed public accommodations laws, which was a good thing. But like all good things, the powers originally outlined in those laws has steadily grown and is hardly recognizable. No common sense understanding of the word "public accomodation" includes (or should include) a custom wedding cake for a PRIVATE ceremony. Yet here we are in 2017, and the government is asserting it's power over that space.
I encourage everyone to read Richard Epstein's take on the development of public accommodations over the last 50 years.
http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=8104&...
1
A cake and baked goods are food. Food is perishable and meant to be eaten. Uneaten, food will turn to mold and rot.
Food is not art. Unlike food, art does not perish in a matter of days.
To call food a protected work of free speech art is Orwellian Newspeak, something the United States Supreme Court is good at, having held that a an artificially-created business corporation is a person and a citizen with greater rights than human citizens.
1
Mr. Phillips runs a business. That business is subject to laws that the state has laid down. The 1st amendment is ruse to find in Mr. Phillips favor. Whether you are a bakery owner or service station owner, the law is the same. Mr. Phillips doesn't want to serve gay people. And there are service station owners who don't want to serve gay people. The question is should Colorado's anti discrimination which go beyond federal laws carry the day?
In the end, this is a stupid case on which to decide such an important matter. One side will win and the other side will lose. All this over a cake. This case would be much more important if the discrimination was over a married gay couple being denied housing for example. Colorado's law would be better if it was more narrowly tailored.
When I look at Phillips' ornate cakes, I can't tell if they are for gay marriage, Catholic marriage, Jewish marriage, or Martian marriage.
Thus it is difficult to see how they could be compelled speech in favor of gay marriage.
2
He's a man of principle. He won't watch a movie on TV if he learns that one of the cameramen is gay. And he certainly won't go to church if he learns that the sermon is about David and Jonathan. (As for David and another man's wife... well, that's another story.)
A cake can be artistic, but that does not make it art. A haircut can be artistic, but that does not make it art. The baker sold a service, not art--and his service, like other services, should not discriminate.
2
Because when you create an artistic exception to our laws forbidding discrimination in public accomodations, watch as all sorts of people work to exploit it.
Well there's the rub init? He is not being forced to bake wedding cakes he chose to bake wedding cakes. What he is falsely claiming as a religious right is the right to discriminate and choose not to bake for people doing something he does not approve of.
No one who runs a business open to the general public has that right under any circumstance. I'm pretty sure even if you have a club store like Costco you still cannot discriminate because you do not approve of a legal activity.
There is civil life and private life. Religion is in the second category. Our civil society is intended to serve all according to law, not according to religious dogma or beliefs of any kind.
If you choose to open a business that serves the public, you are subject to civil law...period. You may not discriminate using your religious or social or whatever beliefs as your guide. If you choose to serve only your fellow believers, you will have to find a venue other than public life in which to do it.
This was the founding idea of America...to be free of religious interference in public life. It was a great idea then ....and is a great idea now...and it is the law. And to the extent religion has encroached into public life, those encroachments should be reversed and the wall separating the two reinforced.
This is not an analysis of the issue but a one-sided advocacy piece. As evidence, I submit (Your Honor) that the authors do not discuss the obvious question of whether Mr. Phillips would be justified in refusing to decorate interracial wedding cakes. Or Jewish or Muslim wedding cakes. All their arguments, as far as I can tell, would support this.
If Mr. Phillips is offering wedding cakes to the public, he shouldn't be discriminating on the basis of sexual orientation any more than on the basis of color or religion. The sincerity of his own religious beliefs is irrelevant -- it's the demonstrably harmful effects of his actions which matters.
1
A business transaction is not free speech.
This baker is operating under governmental authority. He runs a business with a Taxpayer Identification Number. His city issued him a business license. As such, he is subject to the laws of the land, including anti-discrimination laws.
If the U.S. Supreme Court allows him to discriminate by refusing to sell baked goods to same-sex couples, what is to prevent him from discriminating against black people, or Buddhists, or any other group that he wants to refuse to serve?
His business is open to the public, it is not a personal services business, but a business that produces a product: cakes and baked goods. He is not like an artist who provides specialized personal services from whom one commissions a painting. Rather, the baker runs a shop that is open to the public and under the law he is required to serve the public without discrimination on race, religion, color, creed or sexual orientation.
1
It would appear that Mr. Phillips’ religion is getting in the way of economic reality.
While gays and lesbians represent only approximately 10% of the population at large, and while only a fraction of them actually get married, this community statistically has more education and more disposable income, both of which predispose the LGBTQ community to far outspend their straight counterparts on luxury items (read WEDDING CAKE).
If he is so wealthy and so busy as to turn down this cake request, thereby turning away all of the repeat and/or referral business that such an event would generate, more power to him. But the bakers I know here in Chicago would NEVER turn down such an offer and the potential lucre that might result.
As such - suffer in silence and in poverty, Mr. Phillips. You have made your cake; it’s time to eat it.
The authors ask "Or what about restaurant owners who exclude blacks because they think God wills segregation? If we exempt Mr. Phillips, won’t we have to exempt these people from anti-discrimination law?"
Mr. X, a baker who believes, as a matter of sincere religious conviction, that a "mixed" black and white couple cannot form a valid marriage, because miscegenation is against God's law, is situated in exactly the same place as Mr. Phillips. Any attempt to distinguish between the arguments that Mr. X and Mr. Phillips might make necessarily states that discrimination on the basis of race is justly forbidden, while discrimination on the basis of sexual orientation is not.
But seriously now, a cake is a stack of sugar and flour and bits of food coloring. The decoration, colors, lettering, etc. on a cake for any festive occasion is determined by the customer's order. One of Mr.Phillips' products may be tasty, but a Picasso it ain't. The court should allow the 1st Amendment to be hijacked to immunize Mr. hillips' prejudices from the effects of laws that protect all Americans from discrimination.
34
I'm a gay, tax paying, voting citizen. As anyone who reads the news or history knows full well, civil rights in this country are often hard won. In each and every case where equal rights have been advanced by way of the courts, it's the strict and rigorous interpretation of the rule of law and the Constitution that has gotten us there. I have to say, uncomfortable though it makes me, this free speech argument has real merit. It's hard to support a law, even if it's intended in my personal best interest, that could also possibly someday compel me to make some gesture of support for anything that I find morally objectionable. It may really be as simple a question as is stated here: freedom of speech also means freedom from being compelled to speak. And yes, his craft is his personal expression. It is his speech.
6
The constitutional argument is pretty specious. Both Hurley and BSA v Dale involve private clubs which, unlike this bakery, are not businesses open to the public and not subject to these kinds of laws. He argues that "no one denies that forcing artists to design props for plays promoting a state-imposed message would be unconstitutional" but doesn't cite any case law to support that statement. He definitely doesn't cite any cases where businesses try to circumvent non-discrimination ordinances based on religious objection to integration or how his argument couldn't just as easily apply to interracial or interfaith couples.
1
Your argument puts me back on the fence. It seems that we're asking the courts to consider speech and services as two distinct things. In this case, the editorial contends that they're the same – which seems to have some logic. But maybe that position does not hold up, especially considering your hypothetical but plausible example where a religious objection to providing services (even in the form of expression) would extend to issues of race.
One thing I'm finding very interesting about this case is the use of language, specifically "create" a cake vs "sell" a cake.
For those supporting the baker, "creation" of a cake makes it an artistic endeavor, ie a free speech issue.
For those supporting the gay couple, he refused to "sell them" a cake, which puts it alongside refusing to rent them chairs or a wedding venue, ie, discrimination in trade.
It's going to be very interesting to see how this plays out.
13
This is just false.
The couple would have been more than welcome to purchase a pre-made cake form the cooler.
The creationists would say that only god can create a cake, we just assemble the ingredients.
1
I believe we are now at a point where we can repeal the various laws against discrimination and without unleashing any adverse impact on any group. Let businesses discriminate for any reason of their choosing, and the markets will determine their fates.
6
Right, Steve. You'll find your level and I'll find mine. Let black people sink to the bottom.
14
If they choose to discriminate, and we "let the market decide," then the business has to publicly inform the market, i.e. the public, that they discriminate and for what reasons. I suggest a visible sign, much like the Health department scores in restaurants, along with language or symbols in all advertisements, flyers, documents, websites, locations, vehicles, and all government and financial filings.
They cannot be allowed to hide behind a presumption of fairness as that would be unfair to their competitors who don't discriminate. If the market is to be free and fair, then that information must not be hidden.
79
We thought we were at that point every day for the last 75 years, and we weren't. The markets are statistical abstractions. This argument is in the real arena of real people's lives.
5
The authors conveniently leave out a very important point. The Masterpiece Cakeshop is a corporation. In creating his corporation, Jack Phillips received considerable benefits, principally he is shielded from corporate liability. A corporation is a legal person, separate and distinct, from the it's shareholders. As such, it has obligations separate and distinct from the shareholders in that corporation. Jack Philips wants the shield of the corporation when it benefits him, but none of the obligations when it doesn't benefit him.
79
I agree with your sentiment but isn't this exactly what the Supreme Court ruled on in the Hobby Lobby case? As a "closely held" corporation, they apparently have the right to make decisions based on their faith. I don't know if a privately owned "closely held" corporation is the same as what this bakery is organized under.
2
Yeah, but ain't that the way of all corporations?
A simple wedding cake, even if artistic, does not celebrate a theme or "carry a message he rejects." It does not create content, an endorsement, or speech. It is a cake. At heart, this case is all about the religious right trying to impose its will on the rest of us and to dilute, if not eviscerate, Title VII of the Civil Rights Act, by bootstrapping First Amendment arguments to what is simply a commercial transaction. The very same arguments Phillips is using could, and will be, be used if he is successful, to deny black people, Muslims, women, interracial families, etc., service. Phillips can be as big a bigot as he wants to be at church or in his home. But, once he opens a store or service that is part of commerce, he cannot impose his personal biases on the public.
Although the religious rights is strenuously trying subject America to its version of faith and so-called morality, they should be careful what they wish for - any country on this planet that has allowed religion to permeate politics and government is a violent, uncivil place no American would want to live.
61
No one should be forced by the government to do something they do not wish to do - subject to the rights to life, liberty, and pursuit of their happiness. Phillips is not imposing "his personal biases" on anyone - unless you believe the wedding couple is imposing their personal biases on him. You cannot have it one way for the customers and different for the baker - unless you're a child.
3
If it is "just a cake", is an ISIS flag "just a piece of cloth"?
Using this argument, a restaurant owner absolutely could decide his food is speech, and therefore refuse to serve PoC because he does not condone integration. Serving food - a creative enterprise and product in its own right - would been seen as forced speech celebrating racial integration. Where do you draw the distinction between 'speech' as a creative product, and simply a product? Would segregation under these terms be permitted in a Michelin star restaurant, but not a diner? What if the diner had especially good pie..? There are strictly aesthetic aspects to product design of all kinds, but as a designer of products, you don't get to decide who uses them or how. If he doesn't want to write the names on the cake of the two grooms, that's something he can discuss with the couple as his clients and they can find a compromise, but to say they can't have a cake at all is ridiculous, for starters, and does set a dangerous precedent - dangerous precedent precisely for the reasons at the core of the author's argument.
Allowing discrimination in creative avenues because creative enterprise is somehow sacrosanct to the creator puts the lawmaker in the position of defining the boundaries of creative expression - something akin to the distinction between 'art' and 'craft', that has yet to be made after decades of debate.
46
There are two things at play here. 1) the service of selling a cake, and 2) the artistic expression on decorating the cake. I would argue that he cannot refuse to sell the cake--that is defined and upheld by the Civil Right Act and the Constitution of equal protection for all groups. The government cannot force the artistic expression of what he puts on the cake--that is the free speech element. The government cannot force the NYTimes on what it publishes, again the 1st Amendment, so the cake decorator can do what he wants on the cake.
My guess as to where you'd draw the line is, is the product you're being asked to create substantively different from what you would under other circumstances have no problem creating? Phillips says he has no problem selling something off the shelf, but refuses to create unique designs that celebrate themes that violate his religious and moral convictions.
If, for instance, he refused to sell any cakes at all to same-sex couples -- or to use your hypothetical, if a chef refused to serve PoC the same pie she serves her white clientele -- that would violate the principle of public accommodation and would therefore not be protected. I don't like this case any more than you do, but it's important to think very carefully about calls to weaken freedom of speech/freedom of expression. Plus I don't see this case setting a precedent for wider discrimination for many of the reasons the authors acknowledge.
Given Phillips' prejudices, why would any self respecting gay couple (an Oxymoron?) wish to patronize his services? Why not let his business die on the vine?
Talk about a slippery slope. If Mr. Phillips doesn't want to service "certain" clients, then he can close his doors, which is fine by me. He is a business and that's part of the deal, serving all customers. You can't pick and choose.
38
Sounds like you would force a Jewish tailor to sew swastikas into a uniform for a white nationalist. Really?
As a Christian pacifist I feel it is a sin to support military spending. Since military sending makes up the largest portion of my taxes, paying taxes is sinful, yet my government has forced me, my ancestors, and members of my faith to pay these taxes for centuries. However, the claim that bakers can descriminate against God’s children based on faith should extend to allowing Christian pacifists to discontinue paying war taxes based on our faith.
37
Indeed. If cakes are speech now, surely paying taxes is speech.
You are not personally or directly responsible for our military actions, just because you pay taxes. Some portion of all our taxes are used to maintain our military services. Our military protects our borders and our lives. You and your religious sect benefit from that protection, therefore you are obligated to pay taxes. You can refuse to serve in the military as a combatant, even if there is a military draft in force. That is the remedy you can use. The United States is not a theocracy. We practice a separation between church and state which is better for all concerned. Iran is a theocracy based on the Islamic religion. I do not want to live in a theocracy, in Iran or here, I would be willing to bet that you would not like it either. Once you allow religion to have power over law, the critical question is, "Whose religion?"
Not true Vicky. Jesus and Paul both supported paying taxes to an evil militaristic empire. The State has power of fiscal coercion.
If Mr. Phillips really likes, he can create a new kind of wedding cake, one that specifies "Marriage for hetero-couples only!" But even in that case, having sold it to one customer, he cannot choose not to sell one to another. And he has no power over what happens to the cake once it leaves his shop.
10
No one is forcing the baker to do anything. He chose to offer a public accommodation. If he doesn't want to serve everyone then he can close up shop. No loss whatsoever. There are plenty of other bakers who will take his place.
32
Yes I agree. But what do you do in a very small community where there may be only one baker? There are plenty of situation in this country like that. One solution to that is now that we have the internet, there are many bakers nationwide who would accept the order to bake a cake for whoever. Shipping could prove problematic but that would be one solution, at least on the artistic expression side of this problem.
When Picasso painted, it was art. When he took the commission, it was commerce. Commerce isn’t speech.
30
Actually commerce is protected speech, just with less protection than political speech.
3
I agree with you; but a Supreme Court that says corporations have the free speech rights of people may decide otherwise.
6
There is a difference here. When you, as a patron of Picasso, you went to him with money in hand, you had some idea of what he was going to create and you knew his artistic mode. You as the patron are willing to accept whatever he created, you did not tell him what to create. Now in days of old, there were artists who kinda blew it. The patron was very dissatisfied with the result--usually the artist was killed or, at best, put in prison. A dissatisfied patron could be dangerous. Nowadays, we frown on killing, rampaging, or burning a shop to the ground.
I suspect that Mr. Phillips and I would probably disagree on many political and religious topics but, not knowing this, he would likely bake, decorate, and sell a cake to me and my heterosexual partner should we be getting married. Maybe Mr. Phillips should have a questionnaire that he gives to all potential customers, before he agrees to serve them, to make sure they don't have any views, such as pro-choice perhaps, that he would find wrong.
I'd also like any business, which has exclusionary policies such as his, to say so "loud and proud" in all their advertisements and in signage near the entrance so I don't unknowingly give them my business. If he wants to be exclusionary, it's only fair that he allow any potential customers the same choice before they do business with him.
55
Absolutely on target! Yes, if you are going to be exclusionary that you must advertise your business as such. I too would exclude myself from such a business.
1
I agree with this logic, however much I support gay marriage.
With the placement of the little girl on Wall Street so that she would face off with the bull sculpture, the sculptor objected, saying that he had stipulated a particular way to display the statue - not in reference to another that would thwart his meaning - which the little girl did by making the bull an object to be opposed and challenged.
A lot of people (especially tourists who then posed their own little girls next to the girl statue) loved it, but the sculptor had intended and specified a use that was being thwarted.
I'm not merely advocating against the force of popular sentiment, I am saying that those sentiments shouldn't override an artists intention, regardless of how offensive that intention may be.
13
The sculpture isn't the same thing. If the artist sold the piece it is the property rights choice of the new owner to display it how and where she may...The art is already made. This case is about offering a public accommodation to create a product only to withdraw that offer at the point of contract.
You appear to be confused. This case involves a baker, not an artist.
Throwing out the baby with the bath water. You protect his right to discriminate in the name of free speech?
Years ago, it was Blacks. We said no to separate but equal.
No.
No.
No.
“Note that this argument wouldn’t cover all requirements to make artistic items. The law may force photographers to do photo portraits for Latinos as well as whites since that doesn’t yet force them to create art bearing an idea they reject, which is all the compelled-speech doctrine forbids. But custom wedding cakes carry a message specific to each wedding: This is a marriage.”
How would this argument change if the issue was a photographer refusing to photograph a Latino and Caucasian couple because he disagrees with mixed race marriages? Does a photographer (clearly an artist, whose work would be considered a protected form of speech) have the right to deny his services to interracial couples?
Let’s remove the whole ‘wedding’ element from the scenario. If the author’s argument is that artists shouldn’t be “forced to create art bearing an idea they reject”, would it be acceptable to refuse basic studio portraits to mixed race families? Or even just friends of different ethnic backgrounds, if the “idea an artist rejects” is the very notion of any mixing of the races? Should a studio photographer be allowed to refuse to take portraits of a woman in hijab? Or force a grandmother to remove her cross necklace before the photo session takes place? Would having an automated photo booth available for use by the “undesirables” make it okay for the photographer to deny his commercial services to the public based on their race or religion?
15
these folks did not ask for a custom cake just a generic wedding cake
The government provides the infrastructure by which this baker can conduct his business. Police, fire, water, roads, communications, general order of the society. All our taxes, all of our society provides this baker with they system that allows him to ply his trade and make his living. What the law says is fair, what is just, is that this person serves every part of society equally. A social contract.
Conservatives have no interest in Free Speech, only legalized discrimination.
30
"Conservatives have no interest in Free Speech, only legalized discrimination."
Exactly!
Or to put it another way: the Religious Right wants Big Government to do for it what it has failed to do for itself: convince the public to adopt its system of values.
Even as it pretends to oppose Big Government for liberals.
Never in my 50+ years have I attended a wedding reception at which the cake conveyed any "message" or "expression" beyond a plastic trinket at the top, something that is mass-produced and extraneous to the baker's task. Nor has any wedding I've seen ever brought the baker of the cake to the attention of the guests. It's a dessert, it's a prop at some weddings for a display of dominance, but it's always an anonymous pile of white at the back of the room. Calling them "art" is an insult to real artists.
28
Everything is speech now. Cake are speech. What could go wrong?
Now money is speech. You cannot make distinctions, you cannot have democracy, because it requires thinking, which requires distinctions.
12
This is a free speech issue in spite of the attempt to spin it as artistic expression. He's not Picasso and if he wants to sell wedding cakes he can sell them to everybody.
If he doesn't like public accommodations he should have worked for a church.
13
What if the same-sex couple designed the cake themselves (the flavors, the aesthetics, etc.) and simply approached Jack Phillips to make that cake for them. If Mr. Phillips contributed no expressive conduct, could he be compelled to make the requested cake?
4
In the Land of the Free (a) an adult should be free to marry another adult of the same gender if he or she so chooses to do so and (b) an individual or privately owned business should be within their rights to decline to provide custom services for the wedding that violate their good faith religious principles. In the Land of the Free, both should be free to express their views and neither should be able to use the force of law to impose their views on the other.
11
Cool story. How would you analyze the civil rights situation in America during the 1960s when businesses were allowed to openly discriminate against people for their race?
That would overturn all civil right laws where discrimination is not allowed due to race, religion, etc. Might as well go back to jim crow laws then.
Why would a gay couple want to support a business that doesn't support their right to marriage? It's good that Mr. Phillips is able to deny gay couples his services. Now the rest of know to avoid his business. This'll all work itself out in the end. No need to coerce anyone to do anything they don't want to do.
7
When a person takes out a business license, he agrees to serve everyone without discrimination. Period. Don't start dividing customers on someone's whim or prejudice.
1
Unless of course this kind of thing happens in a small, rural community in which there aren't any practical alternatives within 50 miles. Business that hang out a shingle for public trade are obligated to serve the public without discrimination.
i'm reasonably sure that if they had known about mr phillip's proclivities prior to their initial contact they would not have had any thing to do with him but he advertised himself as a baker of cakes no signage saying that no gays need to enter (witch i'm pretty sure is illegal even in colorado)
The third paragraph of this essay embodies an ambiguity that is exploited throughout the rest of the argument. I can see the point that is being made here if the cakes Mr. Philips is being asked to make actual state something along the lines "May God Bless Our Gay Union". But here we are told that "he cannot in conscience create" custom wedding cakes for same sex couples. Now suppose two men want a cake that is covered with flowers but has no text. Would refusing this service not be like those who might say that serving food for blacks violates there belief that whites and blacks ought to be segregated due to the Tower of Babel story (Gen. 11:1-9)? An honest court might draw the line at this place, that Mr. Philips cannot refuse to sell pre-made cakes nor can he refuse to make customized cakes (when they lack written or symbolic messages),but that he can refuse to make any cake with a message that he does not agree with on religious or ethical grounds. I think the authors are aware of this distinction but they are obscuring it, that is fine in a brief but it is intellectually dishonest in this context.
7
If you play in the public space, you must play by its rules. The benefits of the public space come with these rules. Alternatively, work in private. Don't hold yourself out to the public. Then, you can conduct private transactions on private terms.
9
I've never yet seen a cake used in a wedding. They are, without exception, used in the reception, which is a social gathering. They are a part of the menu, and the wedding would proceed if the cake were omitted altogether.
He needs to get over himself as making edible art. This is just food Nice food. Pleasantly decorated, but edible, and not likely to wind up in an art museum.
Someone might want to notify him that wearing protective gloves is pretty much negated when you touch the table and counter while wearing them. They kinda lose that sterile quality...
18
So, what expression is Mr. Phillips being asked to make on the cake? If he's being compelled to write "Hooray for gay marriage" on the cake, this argument has a point. If the cake is just a cake, it doesn't express anything but Mr. Phillips' artistic vision of what a beautiful cake is. How other people use the cake is their expression, not his. A woodworker may create a beautiful inlaid walnut box. The customer may use it as a gift to his beloved--or he may store his pistol in it. The use of box is the expression of the customer, not the woodworker. The use of the cake is likewise the expression of the customer, not Mr. Phillips.
No, this case is about public accommodation.
12
Mr. George and Mr. Girgis use a lot of words to justify discrimination. If Phillips wants to freely make "speeches" by giving away cakes as he sees fit then no one is stopping him. He's selling his product in the public sphere though and putting up the equivalent of a sign saying gays will not be served and that is illegal.
8
We surrender our individual propensities when we open a business to the general public. Unless that business treats every potential customer equally, we have a case of discrimination. I believe that Masterpiece is required, as a business, to receive customer requests for custom baked goods.
Mr. Phillips has every right, as an artist, to explain that he cannot conceive a design suited to an occasion. In that light, the customer may purchase something already on the shelf as an alternative - or, seek another baker who can conceive the desired design.
Art is speech, and Mr. Phillips has the right to "remain silent" with his art, but open with his business.
1
This argument is based on the rather flimsy premise that because of the complexity, customization, and quality that these cakes rise to the level of art and thus deserve the protection afforded art. Given how notoriously difficult it is to define art, it seems a bad idea to extend this protection to commercial products meant to be eaten. At what point does a cake become art? Can a sandwich be art? I frankly do not want to see the court choked with cases debating the ability to discriminate based on the artistic merits of the product denied. Also, while a person can make whatever art they wish, the art dealer is not permitted to deny sales based on race, gender, or sexual orientation. The issue is not making the cake, the issue is allowing discrimination to impede free trade.
2
Professor George and Mr. Girgis make a convincing argument for free speech protection based on the cake-maker's case until about half-way through. Then the argument begins to fall apart. They say that the protection does not apply to the peace flag and portait photo examples when "applied in a peculiar way". Peculiar indeed. Why does the protection apply to a wedding cake, which may or may not be a unique artistic expression, and not to a peace flag or prortait photo that could be unique and artistic, depending on the maker or photographer. These make for some pretty peculiar legalistic distinctions.
5
Mr. Phillips is not the one expressing his views at these weddings. Those expressing their views are the newlyweds, who are using Mr. Phillips' cakes to publicize their union and express their own happiness. It sounds like Mr. Phillips is trying to appropriate these events for himself, just because he made a cake that is used as part of the event.
1
Well written. Hopefully it will be a brief trial, and we can all go on with our lives.
There's a problem with the premise of a clumsily-worded sentence near the top of this piece. "Colorado’s order that [Phillips] create same-sex wedding cakes..."
There's no such thing as a same-sex wedding cake. Cakes are things, and wedding cakes are a style of them. But there are no ingredients or designs that would have made this cake gay; the couple didn't ask him to add a topper or message of any sort. They asked for a cake, exactly the same sort of cake Phillips made his living by selling. What made it a "same-sex wedding cake" had to do with the people who wanted to buy it, not the cake itself.
I can't see this as a case of artistic freedom since the couple didn't ask him to alter his art in any way. This is a case of discrimination in a business that was open to the public.
The authors try to confuse the issue with that phrase, "same-sex wedding cakes." They are trying to change the question from being about the relationship between Phillips and his (gay) customers to being between Phillips and the art of making unswervingly heterosexual cakes.
I don't buy it, and neither should the court.
7
It is against my religious beliefs that I should have to pay overtime.
It is against my religious beliefs that I should have to provide a safe work environment.
It is against my religious beliefs that I should have to give my employees days off.
If you're going to play in the secular world, you play by the secular world's rules. Though I may disagree with the decision of a church to not provide contraceptive coverage to their employees, that is their right. A bakery is not a church. Any business open to the public must serve the public, in full. No exceptions.
6
The baker is not expressing anything. In the transaction, he becomes a baker and a scribe, not an artist, not a poet. He may opt to delegate the task, but as a public business, the service must be provided regardless of who is paying for it. Freedom of expression is what allows him to morally object to same sex marriage.
3
Wouldn't it be interesting if every restaurant and barber n St Joseph county refused to serve tall men with receding hairlines and white goatees?
I have a feeling he'd be "baked" out of shape.
False equivalence. West Virginia v. Barnette (1943) and Wooley v. Maynard both involved citizens being denied access to the public square. What is access is Mr Phillips being denied?
He chose to engage in a business, in exchange for all the services the govt provides him, he is compelled to serve everyone regardless whether he approves of them or not.
4
What specifically was the customers' request? Did they ask Mr. Phillips to prepare a rainbow-colored cake with a picture of two men holding hands?
1
The first amendment says," no law respecting an establishment of religion, or prohibiting the free exercise thereof;" His not decorating the cake is about his free exercise of his religion. In the same state another chef would not decorate a cake with nazie symbols or words. She claimed she felt it was morally wrong. Her approval was allowed. There is nothing in the first amendment that talks about the free exercise if her morals. But we recognize she shouldn't be forced to do something she feels is morally wrong. Likewise should the baker be forced to do something he feels is against his religion. Both should have a right of refusal. Should a guard in a prison, who belongs to no religious group and is in fact an atheist. be forced to push the plunger ao a condemned to death prisoner. The First Amendment is not about political correctness. If we don't want the baker to be allowed to exercise his religious rights or the other baker her moral rights, the get rid of the first amendment. Them we can have congress or some local authority decide the right of the day.
He's discriminating against customers for being who they are. Just because a majority group has been bullying gays for millennia creating artificial distinctions between humans, does not mean you are getting away with discrimination anymore. You cannot discriminate in a public space; this debate was had in the 60s and we decided you cannot discriminate against people for who they are when you operate in public space, even private businesses. If someone decides they can discriminate because their religion hates dark people, the first amendment does not provide a loophole to discriminate against dark people. No!
Hardly convincing.
When you begin to argue about cake decorating as a first amendment issue, you have lost me.
Mr. Phillips may choose not to make a cake on any basis he chooses-- except one prohibited by law. Divorce proceedings and bachelor parties aside, discrimination based upon the sexual orientation of the celebrants is prohibited and so it should be.
Part of living in civil society (as opposed to, for example, a theocracy) is that you adhere to the rule of law. In this case, the law has spoken clearly and it does not allow Mr. Phillips to do what he wishes to do.
While few people care that much about wedding cakes, we wouldn't want doctors, lawyers, hospitals, public utilities and other services to feel free to refuse a patient or customer based upon suspect criteria.
2
I see a lot of comments here from readers who want what they want and are prepared to twist the laws to suit, in whichever direction. I see few comments to defend the freedom of the individual to conduct life and work according to personal choices and not have the sword of Damocles (carefully fashioned from available materials) hanging over them.
Those who are ready to use the state power of licensing to fulfill their political ends are in for a nasty shock down the line when that power is used against them.
4
We decided as a society, in which we are all members, that discrimination is illegal and immoral. So the state enforces that will onto everyone. The state has always used his force to fulfill the political ends of those who are the majority. Always have and always will.
As long as the baker uses flour trucked over taxpayer roads and water drawn out of a public water system then he should not have the ability to discriminate based on his customer's sexual choices (which generally fall into their choice of religious conventions). Period, the end.
When the baker moves his shop to private property and does not use any collectively paid-for public good then I'd agree with the author's supposition.
does the baker not pay taxes?
This is not a 1st Amendment issue. This is a discrimination issue. Change gay to Black, Asian, Republican, Democrat, or Irish and many of the commenters would have a different view. It is not surprising that that two people in academia would find a ridiculous argument about the artistic expression in a cake to have merit without any concern for the real world implication. I am sure Van Gogh would not like all the houses (or even museums) in which his paintings hang. (By the way, I am not necessarily endorsing the view that the cake is the equivalent of the painting). However, that is the risk we take when we put things out in the world of commerce. If Jack Phillips wants to close shop and only make cakes for his friends, he is free to do so.
2
Enough with this discrimination nonsense now ! I am a very heavy woman. Should I sue every store in town that sells only size 2-8 to force them to carry size 18, or do I just go to stores that carry the plus size? Americans are obsessed with discrimination. And social justice warriors jump on the band wagon to feel good about themselves.
The couple could have just gone to a different baker, without all this nonsensical waist of money and energy. But somehow they chose to feel good about being discriminated.
1
The Baker has no more obligation to violate his conscience by baking a cake for a gay couple any more than a guy couple has an obligation to impose their lifestyle on straight people. That is what the gay couple is doing n this lawsuit: imposing it's lifestyle choice on someone who for religious reasons is opposed to that lifestyle. The gay couple has the freedom to take their business elsewhere, which is what they should have done. There are plenty of bakers willing to celebrate gay marriage or bake a cake for them so long as they can come up with the dough.
2
A cake does not carry an idea, the guests at a wedding turn a cake into a symbol of marriage by projecting an idea onto it, just as they do the other various accoutrements of a wedding. The event transforms the cake, not the cake the event. If Twinkes were used instead of a flowery cake then Twinkies serve as well and Hostess has no special hand in it.
The baker is not an author of a baked good, he is a manufacturer of a repeatable and therefore generic product. He does not sign his cake. A polite request that the purchaser not make the baker's identity known is all that is required here, if the baker were not a delusional believer in superstition. Alas he is and that's not illegal in America. This baker may imagine he is investing himself in a marriage by virtue of creating a food item for it's guests, but that is fanciful at best, evidence of mental issues at worst and completely his problem. He should bake it to earn a living, or not and suffer simply that loss.
That said certainly nobody wants an adversary to fix them a sandwich no less bake them a specialty product, so why the legal action? It would seem the lawsuit is spurious and perhaps intended as harassment. Last point, I've worked in fine bakery products, those cakes look heavy handed, commercial, and tacky.
1
My husband and I got married last year in Washington State. Our wedding had about half a dozen vendors. We felt we had to awkwardly ask every vendor and contractor whether they had “religious objections” to serving a same-sex couple. While nobody we asked had such an objection, it was demeaning and embarrassing nonetheless. Straight people don’t realize what privilege they have in being able to assume everyone they meet doesn’t question the legal or moral validity of their marriage.
6
So you defend the right to refuse to any of these things for a marriage between races or religions as well, if there is a purported personal "religious" objection? If not please explain the differences and how a religious objection to mixing of the races in public spaces shouldn't be permitted.
So perhaps the answer is to have the baker post a sign, with large letters spelling out he will and will not serve. Perhaps all businesses should do the same. Or perhaps the baker's personal opinion should remain unspoken. I just wonder what else he might find objectionable. As others have suggested, interracial marriages, anti-(anything) parties? Where to draw the line. Not wishing to deflect but the Bible is a tremendously diverse publication and frequently inconsistent from one sect to another. Which then seems to me would mean the baker needs to specify which particular version of the Bible he is referring to.
I have realized as a result of this case that I must put in writing at my door and on my website what I will not do for any customer. I also cease custom items for public clients, but treat all customers the same. There are things I will not do for anyone, I'm guessing since all are treated equally that this is OK?
1
Use the infrastructure that ALL Americans pay for and you agree tacitly to provide goods and services to ALL Americans without any restrictions.
1
To go even further on what Jack the professor conveyed in his comments, there are other teaching-related examples I’ve experienced as a professor and tutor myself. With great regularity, I have not only proofread but also helped students make stronger arguments for positions that I find morally repugnant. Are teachers working one-on-one and using many of their creative skills to be given the option of abandoning a student who aspires to convey messages and ideas we don’t agree with? After all, I have become a coauthor of an odious message. Do I check only the grammar and punctuation but never dare reorder or rewrite a student’s words with my red pen if I find them offensive? The final draft, which could never exist without the give-and-take that is the dialogue essential to teaching, is a combined effort in creativity that will celebrate some idea whether I like it or not. In the end, I cannot control the outcome, but I am not a teacher if I am not willing to teach.
There is only one flaw with this argument - no where in the bible does it say don't bake a cake or provide services of any kind to anyone you consider to be a sinner - otherwise, you wouldn't service anyone. The bottom line is when you open a business, that is a secular endeavor. As such, you have to abide by secular rules. He can have someone else on his staff do the work or he can take the money raised by baking the cake and donate it a religious or anti-gay group if he doesn't want the profits. The business is a separate entity that is obligated to act in a dispassionate and non-judgmental manner. It can't have any religious convictions.
2
Cake making is not a religious ritual or exercise. If the provider of this commercial product is allowed to impose his religious views, the door to widespread discrimination will be opened. If the baker may not legally discriminate against customers because of race, religion, or national origin, despite the fact he may have religious views which consider other religions to be blasphemous, why should he be permitted to claim his "religious" beliefs need protection from gay marriage?
1
So many pronunciations like this ignore the arbitrariness and enormous range of religious beliefs that are flatly incompatible with the tolerance and cooperation that is required for social stability.
At the extremes are MANY people that believe it is their religious duty to hurt or kill (certain) other people and who believe those other people's religious views mean they are essentially animals, and deserve it.
Satanism is a religion. There are Death Worshippers.
We're no longer talking about accommodating a roundtable discussion among political philosophers devoted to Enlightenment Ideals, such as our Founders surely envisioned.
For these reasons there should be absolute, total separation of Church and State AND total separation of church and commerce.
In a society where no one can provide even basic resources like Food for themselves Except thru commerce, no one offering goods or services to the public should ever be allowed to refuse to do so for ANY non-commercial reason.
I'm sorry. I have yet to see a wedding cake with any actual writing on it so the interpretation and artistic protection is in the what? Buttercream versus fondant? A beautiful cake made for someone's personal celebration. A business providing goods to the public. No one asked him to write "Happy Gay Wedding" on a cake. This is no different than going to the back of the bus or refusing service at a lunch counter. What a great amount of words these two use to obfuscate the very simple transaction asked for and refused. Mr. Phillips is not being denied any right other than the right to refuse to accommodate someone based upon his own biases. Maybe Mr. Phillips needs to figure out a business that has him interacting less with the public. It's clear he lacks the ability to put the customer first.
the smarter, more effective approach would have been to organize a boycott. It's amazing how religious principles change when confronted with reduced profits.
"religious principles change when confronted with reduced profits."
WOULD YOURS?
Oh boy. Artists and art dealers. Playwrights and actors. Film and tv artists (including technicians), musicians and dancers would be empowered to red line undesirables to ensure purity. How about evamgelical architects? "No LGBT folks may live or work or visit a building I've designed!" Makers of perfumes, soaps and aromatic candles, too. Why force them to cleanse people they regard as unclean? If this cake-decorator wins, the social strife will be virulent and probably violent.
Thank You,
Professor George,
You have brought needed clarity to this Constitutional Issue.
One of the main reasons for the 1st Amendment was to prevent
the majority from forcing the minority into violating their consciences.
It is not up to the State of Colorado,
it is not up to Federal Judges
and
it is not up to the Commentators
in the New York Times
to decide what Mr. Phillips' conscience
must abide.
No one will force anyone to shop at Mr. Phillips' bakery
if they disagree with how he exercises his 1st Amendment Rights.
And no one should force Mr. Phillips to make a cake
that he would not rather bake.
5
Girgis and George's argument is faulty for a number of reasons - not least of all because it rests on the assumption that Phillips is unduly harmed by being forced to bake this cake. Phillips simply cannot make the case that he suffers any legitimate harm from mixing a set of ingredients, baking them at 350 degrees, and then getting money from it. He is not required to be at the wedding, nor is his cake an endorsement, tacit or otherwise, of the couple's union. After all, few would consider a cake made for a second or third marriage to be infringing upon one's freedom of expression or acting as an endorsement simply because the Catholic Church does not allow such weddings.
Girgis in particular is deeply committed to his belief that same-sex marriage has corrupted the institution, given his book "What is Marriage?" in which he argues that the only true purpose of marriage is a formal consecration of husband and wife (presumably in order to bear children). But his logic, and that employed by the Court in Hurley and Dale, two cases he references, is now several decades old. The Court overruled Bowers v. Hardwick, which maintained sodomy laws, in Lawrence v. Hardwick a mere twenty years after their initial decision. For the author to discuss case precedent as if it is immutable, and to use a framework of marriage the Court has explicitly rejected much more recently in Obergefell, is to deliberately misread the legal landscape as it currently exists.
3
If I lived in that area, I would boycott this bakery because I don't agree with his opinion. Taken further, he might also not bake cakes for racially-mixed couples either. All in all, I see this as nothing more than outright hatred being supported by right wing faction.
Very well written article. If anyone can go in and buy a cake, seems that Mr. Phillips has been meeting folks halfway.
A cake is a cake, is a cake, is a cake. It's not art. It's not self expression. At best it's a craft and probably just a commodity. As such, it carries no ideology. The bakers attempt to freight it with his first amendment rights is a ruse to discriminate. The baker's option is simple, sell to everyone or no one and leave his religious beliefs at home. These are baked goods, and with that in mind, we don't want to or need to know the baker's religious beliefs nor should he his customer's. Let them eat cake.
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A wedding cake expresses the sentiment of those purchasing a cake. The maker of New Hampshire's license plates is not engaging in speech when he (usually a prisoner) makes the license plate. Rather, the state of New Hampshire is speaking. Similarly, if anyone is "speaking" through their wedding cake, it is the celebrants, and not the baker.
Moreover, finding in favor of the baker would allow all sorts of discrimination to flourish - photographers at same sex weddings, wedding venues, limousine services etc.
Oh come on. Baking a wedding cake is not free speech. I do not know what this baker thinks he is doing when he bakes a wedding cake, but unless they are asking for some obscene cake topper, then he does not have a leg to stand on. Even if he creates a unique design for each one, it is not free speech. Here is the hypothetical that I believe everyone is forgetting. If only one of the couple came in and ordered the cake, how would he determine if it was a gay, lesbian, LGBT, or straight couple. If he asks, the person does not have to answer, so then what. The other issue is how do you distinguish selling an off the shelf cake from a custom cake, as he is willing to sell an off the shelf cake to anybody. As he said, no questions asked. So what gives him the right to ask a question about the couple, whether it is off the shelf or not. This is all simply an excuse for another form of bigotry. If it’s not this, it will be something else.
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With retail services, as long as customers aren't humiliated and ambushed by entering a store that withholds services, let them discriminate provided there is a big sign or symbol posted on the outside that clearly states these limits.
IMO, I think it's its wrong for a retail business to discriminate about a wedding cake for gay people. It's not as if they asked for pornography. This is a slippery slope. If the rightwing gets away with this, they will come back for more.
As a liberal, I find myself worrying about situations where I might be compelled to express views I disagree with, which is our cake master's complaint.
For instance, suppose I run a small advertising business. I do graphic design, print ads, photos, and so on. Certainly there's some aesthetic design at play with my work, just as much as creating cakes. Would I be compelled to take the business of, say, a pro-life campaign, if I personally am pro-choice?
Let's say you print signage, rather than design it. (Removing the aesthetic.) Businesses come to you for awnings, for canvas banners, and any matter of publicly displayed advertisement. Are you compelled to create signage for a local gun shop when you personally think gun laws should be reformed? Does it make a difference if the store is called "Regal Rifles" or "Gun 'Em & Weep"?
Let's say you aren't the talent, but you run a billboard company. You simply rent space on the side of the road. Are you compelled to run billboards that are contrary to your values, common sense or not?
What if I'm not actually religious, but just morally opposed? Can I refuse the business of those I find morally problematic? Potentially hurtful? (And hurtful to whom? Me? Society?)
The New York Times, for instance, does not accept ads for cigarettes due to public health concerns — a potential harm. This does deny commercial speech all the same, though.
In short, what are the allowable exceptions (if any) to "you must accept all clients"?
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"Would I be compelled to take the business of, say, a pro-life campaign, if I personally am pro-choice" -- no, because political views are not a protected category. You can legally deny service to conservatives.
Simple: you can continue to refuse printing anything you find offensive... as long as it’s not based on your customer’s status as a protected class. In Colorado, gay people are a protected class. We can’t be refused service outright, based on simply being gay or being a gay couple.
Gun ownership, political viewpoint, etc are not protected classes.
Many artists refused to perform for Trump. Were they subsequently forced to do so?
I believe the baker or any business owner should be allowed to serve whomever he wants and to deny service in the same manner.
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I wouldn't want a cake that was baked by this bakery.
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I'm sorry, but this argument is absurd. Mr. Phillips was not asked to design a cake with writing on it, along the lines of "Congratulations Adam and Steve!" He was not asked to place a topper of two grooms on the cake. He was simply asked to make this couple a cake. A cake. Period. A cake is not speech. It's just . . . a cake.
Mr. Phillips refused to sell the couple a cake not because his freedom speech was in any way violated but because he didn't like what they were going to use the cake for. But that's none of his business. They wanted a cake. A generic cake. He makes cakes. End of story.
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It wasn't business he was after.
It was the publicity.
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Some commenters here seem to think that "well, you could always go to another baker." You must all live in big cities. In smaller towns, you might not have another baker, or butcher, or candlestick maker. It's cakes today, but tomorrow it could be any other food product, or indeed any other product. So let's admit that bakers are licensed businesspeople who you must obey antidiscrimination laws like any other business.
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None of the cakes shown in that photo would not be perfectly appropriate for a gay wedding. If the gay couple just want a cake out of the baker's catalogue, a cake that the baker would be perfectly happy to sell to a straight couple, then it is not speech, but discrimination. Just as a painter can't refuse to sell his paintings to gay people.
I'm all for protecting the right to free speech, but there are limits and this baker has pushed them too far.
Then become a full-fledged "artisan" and design cakes by appointment only for those you vet in advance. And honestly, if you make even a dime off of any group or team or association that pays for your cakes with federal funds, stop and don't take the business. You don't agree with the laws in this country, so no need to reward you only when convenient.
But even so, why would anyone want to eat food by someone that didn’t want to make it for them ?
Unless a lewd act is performed by a customer, or an obscenity portrayed in a proposed design, it is only within the baker's imagination what goes on when he's not looking. Just because someone says they are one way or the other, doesn't make it so, and there's no way to tell if they do it where you can't witness it.
Example, I move into a new area and someone comes walking up on my lawn and starts jawboning, believe me, I don't believe a word of what comes out of their mouth, so why does a baker consider Gospel what a client says they are or are not?
The clients didn't even force him to look at their membership cards.
The question here is more about the baker's assumptions of what a client looks like or sounds like more than anything actual and that probably comes from being alone looking at cakes all time.
What an absolute perversion of our Constitution!
There's a simple but crucial distinction that keeps being overlooked: under the Colorado law, a baker *cannot* deny a white person a birthday cake because they are white, but a baker can refuse to frost a message celebrating white supremacy if it's reasonable to assume they would have refused to make that cake for anyone, regardless of race. Re: the last paragraph, Colorado declined to force the pro-gay bakers to bake the Christian patron a cake, because he wanted an *explicitly anti-gay message* frosted on the cake, and it was reasonable to assume that those bakers would have refused to make that cake for anyone, regardless of religion.
In the case of Phillips, it's obvious that he wouldn't have refused to bake a wedding cake for a heterosexual couple—his refusal was based on their identity, rather than the message/design. The facts of the case, agreed upon by both parties, actually say the conversation between the couple and baker was seconds-long and design wasn't mentioned at all. This never-ending campaign to enshrine a "right to discriminate" in the Constitution is dangerous and shameful.
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Da Vinci did work for people whose official dogmas conflicted with his personal reality.
Now, I don't recall him making any custom cakes, true...
There's no "speech" component to Mr. Phillips artistry. Whatever words appear on the cake are not his but the choice of the customer.
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So an atheist actor-for-hire can't refuse a commission to appear in a religious play, since the words he'd speak "are not his but the choice of the customer"?
There seems to be a fundamental difference between a situation where the cake itself is a statement about gay marriage, versus a cake that is simply beautiful and customized, but based on its design could be used for any occasion. It may make some sense that you can’t compel a baker (assuming cake is speech, of course) to make a cake that is clearly endorsing an issue the baker disagrees with. However, merely making an artistic cake is not pro-gay marriage speech in and of itself - and a statement that depends on how and when the cake is used — an issue completely out of he baker’s control — would seem to render this as beyond protected speech.
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A baker would have a pretty good idea how the cake is going to be used for a wedding ceremony. And he should be allowed to make decisions over what he makes based on those ideas.