Can the government make me decorate a cake?

[Akivah]

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.

The KKK is a commonly hated group. Must a baker decorate a cake with slogans that the KKK wants?

 

[McBell]

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?

Seems to me this "argument" is leaving out a very specific detail....
Was the "wedding cake" in question somehow a "gay wedding" specific cake or was it merely a wedding cake?

Seems to me this thread is moving the goal posts from the point of the lawsuit referenced in the OP.

 

[9-10ths_Penguin]

The KKK is a commonly hated group. Must a baker decorate a cake with slogans that the KKK wants?

- KKK members aren't a protected class. In the US, it's legal to discriminate against someone for belonging to the KKK.

- the issue in the OP isn't about the design of the cake; it's about who the baker will or won't sell to. The baker in the OP refused to sell *any* wedding cake to the same-sex couple, including cake designs that he would have been happy to sell to an opposite-sex couple.

 

[9-10ths_Penguin]

Seems to me this "argument" is leaving out a very specific detail....
Was the "wedding cake" in question somehow a "gay wedding" specific cake or was it merely a wedding cake?

Seems to me this thread is moving the goal posts from the point of the lawsuit referenced in the OP.

My impression from the OP's story was that the couple was refused before they even got to the point of talking about the design of the cake.

 

[Nous]

The KKK is a commonly hated group. Must a baker decorate a cake with slogans that the KKK wants?

@9-10ths_Penguin answered your question perfectly in #163.

 

[chickenranch]

My impression from the OP's story was that the couple was refused before they even got to the point of talking about the design of the cake.

That is correct.
Look for replies from Nous, which contain links to information that was helpful and that I did not know when I posted my original question.

 

[Nous]

@9-10ths_Penguin

I don't understand why doing that sometimes doesn't work.

 

[McBell]

My impression from the OP's story was that the couple was refused before they even got to the point of talking about the design of the cake.

Same as mine.
And to further the specific, I have not once seen or heard anything from any source mentioning the topic that it was anything other than a wedding cake.

Which presents the point that it seems the baker flat refused to make anything the baker considers a "wedding cake".

So sticking with the thread topic, it is my opinion that the baker will have to show in court that there is a difference between a "wedding cake" and a "gay wedding cake"AND that the cake he refused to make was in fact a "gay wedding cake" in order to show that the requested wedding cake "violated" his religion.

 

[Nous]

Same as mine.
And to further the specific, I have not once seen or heard anything from any source mentioning the topic that it was anything other than a wedding cake.

Which presents the point that it seems the baker flat refused to make anything the baker considers a "wedding cake".

So sticking with the thread topic, it is my opinion that the baker will have to show in court that there is a difference between a "wedding cake" and a "gay wedding cake"AND that the cake he refused to make was in fact a "gay wedding cake" in order to show that the requested wedding cake "violated" his religion.

Phillips argues (inter alia) that abiding by CADA compels him to engage in expressive activity that he disapproves of. The problem with this is that he didn't bother to find out what sort of cake Craig and Mullins were seeking.

He also claims that he has a Free Exercise right to not abide by CADA.

None of the cases in which business-owners (florists, photographers, venue-owners) violated public accommodations laws by discriminating against same-sex couples have ever found that the business-owners may do so. The Court has repeatedly held that there is a compelling governmental interest in public accommodations laws. Kennedy definitely won't be siding with Phillips, and Roberts probably won't.

 

[McBell]

Phillips argues (inter alia) that abiding by CADA compels him to engage in expressive activity that he disapproves of. The problem with this is that he didn't bother to find out what sort of cake Craig and Mullins were seeking.

He also claims that he has a Free Exercise right to not abide by CADA.

None of the cases in which business-owners (florists, photographers, venue-owners) violated public accommodations laws by discriminating against same-sex couples have ever found that the business-owners may do so. The Court has repeatedly held that there is a compelling governmental interest in public accommodations laws. Kennedy definitely won't be siding with Phillips, and Roberts probably won't.

Seems to me the baker is merely grasping at straws in the hope that enough people will support him that he gets by.

I also suspect that at this point he is in a win win situation.
If he loses the court case, he still wins as one who was "wronged" by the government.

 

[chickenranch]

Same as mine.
And to further the specific, I have not once seen or heard anything from any source mentioning the topic that it was anything other than a wedding cake.

Which presents the point that it seems the baker flat refused to make anything the baker considers a "wedding cake".

So sticking with the thread topic, it is my opinion that the baker will have to show in court that there is a difference between a "wedding cake" and a "gay wedding cake"AND that the cake he refused to make was in fact a "gay wedding cake" in order to show that the requested wedding cake "violated" his religion.

I did summarize my conclusions here:
Can the government make me decorate a cake?

And this post may help with some of your background information:
Do Public Accommodations Laws Violate Free Speech and Free Exercise Rights?

I think those might answer your questions.

 

[McBell]

I did summarize my conclusions here:
Can the government make me decorate a cake?

And this post may help with some of your background information:
Do Public Accommodations Laws Violate Free Speech and Free Exercise Rights?

I think those might answer your questions.

The answer to the thread title is no.
But then, the thread title has nothing to do with the case referenced in the OP.

 

[Nous]

Seems to me the baker is merely grasping at straws in the hope that enough people will support him that he gets by.

I also suspect that at this point he is in a win win situation.
If he loses the court case, he still wins as one who was "wronged" by the government.

Actually I've read that he has lost a large portion of his business. Homophobic bigotry in the provision in goods and services is largely condemned these days. Phillips made the decision that he'd rather be a martyr than to not discriminate--it seems his livelihood might be the thing martyred.

 

[chickenranch]

I think we've all been pointing out for several pages now that the answer to the original question posed is, indeed, no.

[Edited... sounds better this way: People have been pointing out to ME for several pages that the answer to my question is no, which I agreed to in my summary above.]

And the title and the case do have to do with each other; well enough for me, anyway, as I posted it and got the answers I wanted.