Can the government make me decorate a cake?

[chickenranch]

I want to know what you think about this.

If there are any lawyers or legal scholars here, I’m very interested in what you have to say!

The background

Some very basic facts below; a better story is here, but there are many accounts of this available online. I encourage you to read the items I have linked here, as there are more details and it makes little sense to rewrite all of them. I tried to include enough facts for a good running start, though.

Arizona lawmakers weigh in on case pitting gay rights, religious rights | Cronkite News

In 2012, a Colorado baker refused to make a wedding cake for a gay couple. The baker refused because of his religious beliefs. He said they could have anything else in the store, but he would not make a wedding cake. The couple filed a complaint with the CO Civil Rights claiming discrimination and the Colorado Court of Appeals agreed.

Yesterday, several US House and Senate members filed a court brief defending the baker. The Supreme Court has agreed to hear the appeal. The basis of the argument is that making the baker make wedding cakes for a gay couple is violating his freedom of expression and that the state shouldn’t be able to regulate it.

After this happened yesterday, the ACLU published this opinion by James Esseks: President Trump and Attorney General Sessions Want to Enshrine a Business Right to Discriminate Into the Constitution

It says that this court brief filed yesterday is farther reaching than freedom of expression and gives businesses the right to discriminate against lesbian, gay, and bisexual people. It goes one further step and says that this would give a business owner the right to say they don’t serve gays, for example, and it would authorize business to discriminate based on national origin, sex, religion, disability, etc.

My question
Does the court brief filed yesterday support the ACLU writer’s opinion: Allowing someone to object to creating something for a customer based on religious or other reasons means that being able to discriminate for any reason is the logical next conclusion?

My opinion

1) I separate “making a wedding cake” from “selling a cake” to someone. Making and decorating a wedding cake is artistic. I fully support an artist of any type being able to refuse to create art that they don’t agree with. If I were a baker I could think of many things I would not want to decorate a cake with. I wouldn’t want to create a “KKK ROCKS! College Recruitment Party 2017” cake. I’d ask that they go somewhere else. I’d sell them a blank cake, though. They could come in with hoods and I’d sell them cupcakes. But I couldn’t stomach creating art for them.

Why should the state be able to tell me what I’m required to create or express?

My spouse disagrees and says that not making the cake would be discrimination, as long as whatever is on the cake is not illegal. (e.g., ‘Yay, raping and pillaging!’)

What do you think? Can the state regulate artistic expression and tell me I MUST create for someone? It’s not electricity, medicine, or groceries. A wedding cake requires a person put their unique artistic abilities into something that is then sold solely because of that artistic input. If they did make me, and I did it, and I did a terrible job … did I violate the law? “OH! I spelled KKK wrong!? And no, those aren’t pooh emojis, I just can’t draw those silly hats right!”

2) I can see that there could be a slippery slope of which business are artistic vs not artistic, but it seems like that could be dealt with on a case by case basis and most things would be pretty obvious.

3) I think the ACLU opinion I linked to is doing a bit of fear mongering. I don’t think that saying that a person has a right to their freedom of expression is the same thing as saying any business could refuse business to anyone they want to. That seems like a huge leap to me. Is it?

 

[Mister Silver]

The government cannot make you bake a cake, but in this age where offending one person offends millions through social media don't be surprised if you lose business to the point where you no longer have a business.

When owning a business that caters to the public, the best thing that can be done is to keep one's beliefs separate from the business.

 

[chickenranch]

If I violate a law if I don't decorate a cake (or any other custom art that I sell) for a customer because I disagree with what it says, then the government is effectively legally compelling me to either decorate the cake how the customer wants or stop doing cake decorating business. Not baking the cake, not selling an existing baked good to a customer, but custom decorating - they are very different.

That is a completely different issue than the market responding to my choice. The market is free to respond to my choice. Some would be in favor, some not, but that's a business decision I could make when I wanted to, not a legal one.

 

[Mister Silver]

If I violate a law if I don't decorate a cake (or any other custom art that I sell) for a customer because I disagree with what it says, then the government is effectively legally compelling me to either decorate the cake how the customer wants or stop doing cake decorating business. Not baking the cake, not selling an existing baked good to a customer, but custom decorating - they are very different.

That is a completely different issue than the market responding to my choice. The market is free to respond to my choice. Some would be in favor, some not, but that's a business decision I could make when I wanted to, not a legal one.

The government is not making you do anything. By being vocal of your beliefs, you stopped your business from progressing. The blame lies with you, no where else.

 

[chickenranch]

You answered a question I did not ask, but thanks.

 

[Shadow Wolf]

If I violate a law if I don't decorate a cake (or any other custom art that I sell) for a customer because I disagree with what it says, then the government is effectively legally compelling me to either decorate the cake how the customer wants or stop doing cake decorating business. Not baking the cake, not selling an existing baked good to a customer, but custom decorating - they are very different.

That is a completely different issue than the market responding to my choice. The market is free to respond to my choice. Some would be in favor, some not, but that's a business decision I could make when I wanted to, not a legal one.

And yet the "free market" did nothing to fix the problems in the South. The government, in fact, had to step in and say no more.

 

[The Emperor of Mankind]

If I violate a law if I don't decorate a cake (or any other custom art that I sell) for a customer because I disagree with what it says, then the government is effectively legally compelling me to either decorate the cake how the customer wants or stop doing cake decorating business.

You're not offering your agreement or personal opinion as part of the cake-making business - that's not what you're being paid for - you're offering a service to the public. In this case, baking a cake. Of course, you're free to discriminate as to whom you offer that service too but when you start operating a business you must conform to prescribed laws which state there are a number of factors upon which you may not discriminate in provision of services; sexual orientation is one of them.

Not baking the cake, not selling an existing baked good to a customer, but custom decorating - they are very different.

Not so - custom decoration is one feature of the overall service offered to the public by your average baker.

That is a completely different issue than the market responding to my choice. The market is free to respond to my choice. Some would be in favor, some not, but that's a business decision I could make when I wanted to, not a legal one.

As soon as you violate laws in the operation of your business the issue becomes a legal one. Market forces are notoriously unreliable for correcting social wrongs.

 

[Willamena]

What do you think? Can the state regulate artistic expression and tell me I MUST create for someone? It’s not electricity, medicine, or groceries. A wedding cake requires a person put their unique artistic abilities into something that is then sold solely because of that artistic input. If they did make me, and I did it, and I did a terrible job … did I violate the law? “OH! I spelled KKK wrong!? And no, those aren’t pooh emojis, I just can’t draw those silly hats right!”

2) I can see that there could be a slippery slope of which business are artistic vs not artistic, but it seems like that could be dealt with on a case by case basis and most things would be pretty obvious.

3) I think the ACLU opinion I linked to is doing a bit of fear mongering. I don’t think that saying that a person has a right to their freedom of expression is the same thing as saying any business could refuse business to anyone they want to. That seems like a huge leap to me. Is it?

You may have as much freedom from regulation as electricity, medicine, and groceries, all of which are subject to regulation. What you put into your cake is already regulated, why not also what you put on it?

 

[icehorse]

It seems like an interesting legal question to me. For those of you who are arguing that the religiously-anti-homosexual baker would be obligated to bake that cake, how does that stack up against the case that Hobby Lobby won, stating that they didn't have to follow the law because of their "religious freedom"?

 

[Nous]

I want to know what you think about this.

I provided a good deal of information on the case here: Do Public Accommodations Laws Violate Free Speech and Free Exercise Rights?

For a business to discriminate in the provision of goods and services on the basis of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry is a violation of Colorado Anti-discrimination Act. That is exactly what Phillips did. According to the record, Phillips refused to bake and sell Craig and Mullins a wedding cake as soon as he found it was to celebrate their upcoming wedding. As Colorado's Court of Appeals noted, this argues against Phillips' compelled expressive activity claim. After he discovered the cake was for the celebration of a same-sex couple's wedding, Phillips didn't even seek to learn what sort of cake they wanted.

My question
Does the court brief filed yesterday support the ACLU writer’s opinion: Allowing someone to object to creating something for a customer based on religious or other reasons means that being able to discriminate for any reason is the logical next conclusion?

I don't know what that question means. Nevertheless, as the Colorado COA made clear, Phillips is free to object and express his opposition to the law. What he can't do is violate the law by discriminating on the basis of the listed characteristics.

My opinion

1) I separate “making a wedding cake” from “selling a cake” to someone.

The law doesn't make any such distinction.

Making and decorating a wedding cake is artistic. I fully support an artist of any type being able to refuse to create art that they don’t agree with.

See above. Phillips did not seek to learn what sort of design the couple wanted. Phillips' compelled expressive activity claim is dead in the water.

If I were a baker I could think of many things I would not want to decorate a cake with. I wouldn’t want to create a “KKK ROCKS! College Recruitment Party 2017” cake.

You would be perfectly within the law to refuse to design and sell such a cake. The KKK is not one of the protected classes in Colorado' CADA or any other public accommodations law. In fact, I encourage you to legally discriminate against the KKK whenever you get the opportunity.

 

[Nous]

It seems like an interesting legal question to me. For those of you who are arguing that the religiously-anti-homosexual baker would be obligated to bake that cake, how does that stack up against the case that Hobby Lobby won, stating that they didn't have to follow the law because of their "religious freedom"?

The decision in Burwell v. Hobby Lobby was a consequence of the federal RFRA. Masterpiece concerns Colorado's public accommodations law. Colorado does not have an RFRA. Therefore Employment Division v. Smith is the controlling case law. In Smith, the Court held that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” (1) The activity that CADA regulates is not religious conduct. (2) CADA is a valid and neutral law of general applicability.

Phillips has no case. He ruined his compelled expressive activity claim by refusing Craig and Mullins service upon finding out the cake was for celebrating their wedding. That was his best claim. CADA does not regulate religious activity. Neither baking cakes nor businesses discriminating against customers is a religious exercise.

 

[icehorse]

The decision in Burwell v. Hobby Lobby was a consequence of the federal RFRA. Masterpiece concerns Colorado's public accommodations law. Colorado does not have an RFRA. Therefore Employment Division v. Smith is the controlling case law. In Smith, the Court held that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” (1) The activity that CADA regulates is not religious conduct. (2) CADA is a valid and neutral law of general applicability.

Phillips has no case. He ruined his compelled expressive activity claim by refusing Craig and Mullins service upon finding out the cake was for celebrating their wedding. That was his best claim. CADA does not regulate religious activity. Neither baking cakes nor businesses discriminating against customers is a religious exercise.

I'm not a lawyer - would you say that - from a common sense perspective - the RFRA ruling seems to run counter to the Colorado law?

 

[Nous]

I'm not a lawyer - would you say that - from a common sense perspective - the RFRA ruling seems to run counter to the Colorado law?

I don't know what you're asking. If by "the RFRA ruling," you are referring to Hobby Lobby, that case had nothing to do with Colorado law. It was a challenge to the constitutionality of an ACA provision.

 

[columbus]

I want to know what you think about this.

I think a better question would be "Should the government make me decorate a cake?".
Personally, I don't think so.
There are services that must be provided without regard for the characteristics of the person. Medical, government, emergency, housing and others.
Utterly nonessential goods like fancy cakes, not so much. The world is a very different place than it was in the 60's.
Tom

 

[Nous]

Utterly nonessential goods like fancy cakes, not so much.

A meal in a restaurant is (in most cases) far from an essential good. Restaurant owners should be able to make an interracial couple get up and walk out? Or make one of them get up and leave the section designated for "Whites Only"?

Anyway, public accommodations laws do not distinguish between "essential" and "non-essential" goods. There is no bright line between such designations. The purpose of public accommodations laws is to combat discrimination and prejudice against commonly targeted groups. It certainly defeats the purpose of these laws to allow businesses to discriminate against commonly hated groups.

 

[columbus]

A meal in a restaurant is (in most cases) far from an essential good. Restaurant owners should be able to make an interracial couple get up and walk out? Or make one of them get up and leave the section designated for "Whites Only"?

Restaurants can't even have a dress code anymore without being bullied on social media.
The world is not the same as it was in the 60's.
Tom

 

[chickenranch]

OK, I see that if the baker said no before the design was even proposed, that he was not objecting from a creative point of view.
I also see that the KKK is not protected.

Thank you for a legal interpretation.
I'm still interested in whether or not the ACLU writer's opinion is a stretch - if the Supreme Court overturns [is that the correct verb here?] this decision, is the logical legal conclusion then that the baker could just go ahead and post a sign that says "No ...any protected group... allowed in here?"

That seems like a very big - impossible even - leap to me, a non lawyer who would never even want to put a sign up like that, legal or not, but would it be?

Also, I'm not so clear on the standard product vs creative product difference.
Baking and selling a non-custom cake is different from custom decorating one.
Selling ready to hang art is different from selling a custom painting.
How can there be no difference between custom and non-custom product? If you ask an artist for their expression of something, you are getting their opinion of it. That's what a creative product is - an opinion or expression.

You can't make someone have a favorable opinion of anything - so how can you make them create reasonable art about it? Do they get to object to a requested design on any basis? Could the baker have seen the design and then said no? Of course, we don't know what it was, but is "I'm sorry, I can't make candy figures of two men holding hands because it really bothers me" not a valid reason then? What if he had counter proposed a design that he would do - maybe Bob + Fred and the date on a blue cake. Is that discriminatory? Yes, I'll decorate something for you, but ... ?

I'm not at all comfortable with the government being able to tell anyone that they need to set their ideals aside and create art for something they disagree with if they don't want to, especially when competition down the street is likely perfectly willing to do so. If I were a wedding cake maker I'd have no problem creating a cake for Bob and Fred, 2gether 4ever!

 

[Nous]

Restaurants can't even have a dress code anymore without being bullied on social media.

Completely irrelevant to the topic.

The world is not the same as it was in the 60's.

Who said anything about the 60s? What is that supposed to mean? Are you denying that discrimination in public accommodations occurs today? It does occur. Masterpiece Cakeshop v. Colorado Civil Rights Commission and a variety of other such cases are proof.

 

[icehorse]

I don't know what you're asking. If by "the RFRA ruling," you are referring to Hobby Lobby, that case had nothing to do with Colorado law. It was a challenge to the constitutionality of an ACA provision.

For the sake of discussion, if we can forget about legal jurisdictions and such...

It strikes me that from a common sense perspective the Hobby Lobby ruling runs counter to the Colorado law. In other words the Hobby Lobby folks were able to avoid following a law due to their religious beliefs, but the baker was not allowed an exception due to his religious beliefs.

That seems inconsistent to me. (Again, ignoring the legal mumbo jumbo)

 

[Twilight Hue]

The government cannot make you bake a cake, but in this age where offending one person offends millions through social media don't be surprised if you lose business to the point where you no longer have a business.

When owning a business that caters to the public, the best thing that can be done is to keep one's beliefs separate from the business.

That's my thoughts, let the market itself deal any penalty for making wrong decisions.

There's enough government meddling into people's lives as it is.