When Is Making a Cake Constitutionally Protected Speech?

Hate to inform Mr. Will, but professional chefs -and this applies in particular to pastry chefs- are artists. When a cake is simply a cake, then picking up a frozen or pre-made pastry at the local deli or supermarket is fine. But to order one at a specialized bakery, that takes things to a different level. People choose them because they want something special -a cut above. This isn't a donut.

And regardless, no business should be FORCED to do business by the government. Whatever happened to "we reserve the right to refuse"? AS customers, we reserve the right to choose, after all, and as was pointed out -there were plenty of options (other bakeries) so in no way were these two individuals inconvenienced.

 

Maybe. They had been patrons of his before. He had served them and many other gays before. Everyone had been happy until they DEMANDED that he make a cake for something he refused to do on the grounds of his religious beliefs. He would have made a cake, but refused to make a wedding cake for their particular wedding (two men). He and his business was well known to them. They were known to him.

Comments

Bill Kamps Added Dec 5, 2017 - 9:57am
Nightbiker,  Im sure many attorneys have looked at this, and which part of the law is most applicable.  The problem is that if you dont want to do business with someone you cant just say "I dont want to business with you because you are black, gay, hispanic, whatever"
 
You have to be more creative and say things like, "I am all booked up right now with other orders", or "I am short staff and dont have time, blah, blah".  There have been projects we were offered in our business, and we didnt want to do them because the people at the customer company were a pain in the ass to deal with, well you cant say that, so we said we were busy, and put in a high priced bid.
 
Sometimes it isnt worth trying to stand on principal because while you can refuse to serve people, you cant say you are refusing to serve them because they are a member of a minority group.
Bill H. Added Dec 5, 2017 - 11:34am
What if the local Korean American liquor store owner decided that he didn't want to do business with all of the Caucasians in neighborhood?
What if the local Iranian American gas station owner decided he didn't want to sell gas to Chevrolet owners?
What if the local soccer team would not allow girls with red hair to participate?
 
 
 
Bill Kamps Added Dec 5, 2017 - 11:47am
Bill H, it is not the same thing.  The cake needed to be custom made.  They were not refusing to sell standard off the shelf cakes, or otherwise do business with gay people.  They had done business with these people in the past.
 
This was a specialty job, and there are any number of ways of not doing a specialty job without saying, it is because you are gay, have red hair, are black or whatever.
Dave Volek Added Dec 5, 2017 - 2:11pm
Back in the 1950s, African Americans who wanted to travel by car were often turned down by hotels, restaurants, and gas stations. This necessitated the publishing of the Negro Motorist Green Book that guided African Americans to businesses that would accept their patronage.
 
We could argue that it was within the rights of these business owners to refuse the business of African Americans. And we could argue that similar businesses who catered to these customers were probably more profitable, hence the marketplace would have eventually  worked its magic. But that is not how we went, and various forms of civil rights legislation made it a criminal offense to refuse African-American customers.  
 
Should we go back in time where businesses are allowed to discriminate? If this store is successful in making its point, then we should also go back to the 1950s. The publishers of the green book would be back in business.
 
But I think Bill Kamps has stated better strategies to deal with this battle of morals. I used to be in business--and some customers needed to be fired. There are tactful ways of doing that.
 
 
Mike Haluska Added Dec 5, 2017 - 3:36pm
If these two guys walked into a Muslim bakery and were turned down when they asked for a Gay Wedding Cake, I have NO DOUBT this stupid story would have made the local shopping news - much less get to the Supreme Court! 
 
If a PRIVATELY HELD business owner doesn't want to sell to someone for whatever reason, that is his right.  I can see a case where a publicly traded business that is composed of many owners of all sorts of backgrounds might not be allowed to make that distinction.
 
When you think about it, who is really being hurt by refusing business?  The business owner who lost a sale or the Gay Couple who can go down the street to another bakery willing to take their business???
rycK the JFK Democrat Added Dec 5, 2017 - 4:12pm
"Whatever happened to "we reserve the right to refuse"? "
 
Now, if some group came in and wanted a cake festooned with swastikas to celebrate the birth of Hitler, would SCOTUS rule that they had to do so? Would the ACLU be swarming in to protect first amendment rights?
 
I don't think so. 
 
And Mike:
 
"If these two guys walked into a Muslim bakery and were turned down when they asked for a Gay Wedding Cake, I have NO DOUBT this stupid story would [not? ed] have made the local shopping news - much less get to the Supreme Court! "
 
Same argument. 
Bill Kamps Added Dec 5, 2017 - 4:38pm
Mike H, your comments are true, no one would have taken the case, under those circumstances.  The ACLU of course is free to back whatever causes they wish. 
 
There is a wrinkle to the case.  First this is not like turning down blacks at a restaurant.  The baker routinely sold standard products to the gay individuals.  This is a case where the baker didnt want to do a custom gay wedding cake, just like Im sure there are bakers that would turn down doing a custom Nazi cake.  The custom work gave the baker a better leg to stand on, however, stating his reason for not doing the  deal was unwise.
 
In this case, people made a mountain out of a molehill, and away to  the courts we go.   Unfortunately for the baker he manged to ruin his business because he wasnt clever enough to turn the business down without telling these guys he wont do a custom wedding cake for gays.  Sometimes giving people the reason is too much information, just drop the moral outrage and find a way to avoid doing the deal.
 
Even if the baker wins, he loses because of court costs and damages to his business.  That is often the case when going to court, so the best advice is try your best to avoid  the courts.
 
 
Bill Kamps Added Dec 5, 2017 - 4:49pm
I might add that telling someone you wont do business with them because they are gay, black, a Nazi or what have you, is kind of rude, and bad for business.  There are endless ways of turning business down without offending someone, and making a bad name for yourself in the community. 
Leroy Added Dec 5, 2017 - 5:29pm
We are beyond the point of discriminating against anyone based on sexual orientation.  If they simply wanted a cake, they should bake a cake for them.  Where I draw the line is if they wanted two male replicas on top of the cake or a message of love between two males or if they wanted them to cater at the wedding.  Do bakers really ask someone's sexual orientation before selling a cake to them?
Jeff Michka Added Dec 5, 2017 - 7:31pm
syck ryck the Barry Goldwater republican sez: birth of Hitler, would SCOTUS rule that they had to do so? Would the ACLU be swarming in to protect first amendment rights?-You might be surprised at what side the ACLU might choose, preconceived notion rightist. Take yer head outta the right side of you ass and get real, syck.And LEROY ASKS: Do bakers really ask someone's sexual orientation before selling a cake to them? Apparently some do.  According to testimony in the case, the baker's standing is from the assertion he is some form of "Artiste," so deserves the first amendment rights (?) to refuse service of his artistic expression.  Personally, in their place, I'd want a cake from someone that didn't hate me.  This seems almost a non issue in the scope of gender rights, but that's my view.
Bill H. Added Dec 5, 2017 - 7:42pm
So were now comparing Nazis to gays?
sheesh!
Jeff Michka Added Dec 5, 2017 - 8:28pm
Bill H sez: So were now comparing Nazis to gays? sheesh! - I wasn't, and I don't think Bill Kamp was either.:  is kind of rude, and bad for business. OTOH, ol syck probably does equate gays and Nazis.
Tamara Wilhite Added Dec 5, 2017 - 8:29pm
There are several overlapping issues on the "cake" case:
 
1. Unfair double standards for homosexual business owners versus Christian ones. The Colorado Civil Rights Commission has ruled three times that homosexual business owners can refuse service they disagree with - including to traditional marriage groups - per their First Amendment rights. But if you're a Christian, civil rights ordinances are interpreted to say you MUST provide service to an official victim group. Your own beliefs, your freedom of speech and association, irrelevant.
In short, when civil rights legislation "protects" a group, their rights trump yours.
 
2. Unfair double standards in religious accommodation rules. The Obama administration's DoJ said that if a Muslim says I don't want to ring up ham or drive a beer truck, employers had to accommodate them and let them refuse the job. But if the Christian doesn't want to serve the client per their faith, they have to do what the other groups do. Now we have unfair treatment of faiths, singling out Christianity while privileging Islam.
 
All of which is a result of liberals, in the name of equality, creating a new social and moral hierarchy where one's status is dependent on your faith and your demographics.
Jeff Michka Added Dec 5, 2017 - 8:38pm
Tamara Wilbwhite sings her same ol song:Now we have unfair treatment of faiths, singling out Christianity while privileging Islam.-All of which is a result of liberals, in the name of equality, creating a new social and moral hierarchy-You go on and on about this crap, write what I call "Rifi" tales (Rifi: Rightist Fiction)...a new genre is born for Wilbwhite's silly attempts at Heinlein.
Jeffrey Kelly Added Dec 5, 2017 - 9:48pm
Oddly, I get it.
 
I actually don’t have a problem with the shop owner not wanting to bake a particular cake for the couple.  He is entitled to his beliefs, he wasn’t discriminatory per se, he simply didn’t want to bake a particular cake.  
 
I get it.  A person is entitled to their beliefs, this is a private business, not a public one.  The problem is the precedent it sets, not the action itself.  The baker seems like an honorable man but where does that line get drawn?  At sexual orientation?  Who can say?  
Bill H. Added Dec 5, 2017 - 10:22pm
A surprise for Tamara - Yes there are actually Christian Homosexuals!!
OMG!!, she says. It can't be!
I actually know one quite well, as he is a close relative.
He just happens to go to a church (Methodist) where they apparently have an understanding of the human race and haven't interpreted the Bible to meet their prejudicial needs.
 
 
Bill Kamps Added Dec 6, 2017 - 7:21am
Bill H, I know Christian homosexuals as well.  As you say they just go to a church that interprets the Bible generously with love rather than with prejudice to accomplish some end.
 
As many have pointed out.  You cant SAY you wont do business with a protected class, but you CAN say you are too busy to design a special cake for a gay marriage, or any other event you prefer not to be involved with.  This is not a difficult problem to solve for intelligent people. 
Mike Haluska Added Dec 6, 2017 - 10:38am
Bill H -
 
The Catholic Church priesthood is full of homosexuals, according to the "Progressive Left"!  Remember the outcry against priests abusing altar boys and the demands of the "Progressive Left" to dismantle the Church?  Of course, the "Progressive Left" always fails to mention that these pervert child abusers were ALL HOMOSEXUALS!!!   
Mike Haluska Added Dec 6, 2017 - 10:44am
Tamara - 
 
We need to add assurances to the US Citizenship requirements that demand that anyone wanting to become a US citizen obey and respect the customs, freedoms and religious beliefs of others and ASSIMILATE into American culture.  My grandparents didn't try to remake the US into a Ukrainian colony - they became Americans and taught their children they were Americans.  We NEVER referred to ourselves as "Ukrainian Americans" - and we never expected the US government to accommodate existing signs, documents, newscasts, etc. to our language. 
Jeff Michka Added Dec 6, 2017 - 11:03am
raving Mikey HaHaHaluska implies: Of course, the "Progressive Left" always fails to mention that these pervert child abusers were ALL HOMOSEXUALS!!!-So then Roy Moore must be, according to your "logic", a homosexual on top of a pedophile. eh?  Well, Mr. & Mrs. rightwing paranoid homophobe, where do you get your "information" from? Oh let us guess, from your facebook feed, right, rightist dog? or is this more of "...everyone KNOWS?"
Mike Haluska Added Dec 6, 2017 - 12:50pm
Jeff - are you addle-brained?  Are you heterosexual?  If so, had a desire to engage with MALE partners (regardless of age)????  Didn't think so - check with Kevin Spacey if you're still confused.
rycK the JFK Democrat Added Dec 6, 2017 - 12:51pm
Mike,
 
"We need to add assurances to the US Citizenship requirements that demand that anyone wanting to become a US citizen obey and respect the customs, freedoms and religious beliefs of others and ASSIMILATE into American culture."
 
That is for sure. But, the drooling left gets political points for bring in terrorists, racists, criminals, drug dealers and such from left-wing voters and, of course, they vote for Dems.  Latrines are more sanitary than this process. 
wsucram15 Added Dec 6, 2017 - 1:20pm
I am sure those of you that agree with this article still feel that  "negro bathrooms" or "whites only sections" is an acceptable thing for public places like buses and restaurants.
This case depends upon IF the Supreme Court feels the gay couple is a protected class of people (it is on Colorado).  You CANNOT by law refuse service, after making an appointment with them for the "specialized cake", based on a PROTECTED CLASS of PEOPLE under the BILL OF RIGHTS OR a SC COURT CASE, making them that way.

I am not sure how this will go however. This is a touchy issue since there IS A STATE LAW WHICH PROHIBITS THIS IN BUSINESS for the State of Masterpiece Cakes.  The Cake store owner is asking the Federal Court to override the State.  It has NOT done so to date, in fact upholding Gay rights. AND...
While the cake is artistic, it isnt the creator of the cake who is being challenged for his art or freedom of speech-just his business practices.   BIG DIFFERENCE.   Which do violate the law in many states (take the example of bathrooms and NC)  if the persons are of a protected class or perhaps if he has any federal or state loans which prohibit that.
 
Gays, women, blacks, hispanics..etc..are not the minorities anymore.  You cant just lock them away.
Mike Haluska Added Dec 6, 2017 - 2:10pm
wsucram - your contention:
 
"This case depends upon IF the Supreme Court feels the gay couple is a protected class of people (it is on Colorado).  You CANNOT by law refuse service, after making an appointment with them for the "specialized cake", based on a PROTECTED CLASS of PEOPLE under the BILL OF RIGHTS OR a SC COURT CASE, making them that way."
 
is Constitutionally wrong despite the liberal attempts to put things in the Constitution that simply aren't there.  The Bill of Rights protects the rights of INDIVIDUALS - not groups or classes of people - period! 
There is NO SUCH THING AS:
- gay rights
- straight rights
- black rights
- white rights
- men's rights
- women's rights
All people of all groups have the same IDENTICAL RIGHTS - which makes the "assignment" of rights superfluous.  What many on the Left want is SPECIAL RIGHTS above and beyond those granted to individuals, and that is Unconstitutional and immoral.  We're all equal in the sight of God.
 
Jeff Michka Added Dec 6, 2017 - 2:52pm
Mikey "paranoid homophobe HaHaHaluska raves: Jeff - are you addle-brained?  Are you heterosexual?-And you're just responding like the rightist homophobe you are, pulling the "gay card." Jeff - are you addle-brained?  Are you heterosexual?.  The way you framed your question, gotta ask: You wanting to have sex with Kevin Spacey?  Or maybe you can no longer resist the charms of syck ryck the Barry Goldwater republican: But, the drooling left gets political points for bring in terrorists, racists, criminals, drug dealers and such from left-wing voters and, of course, they vote for Dems.-more rightist ravings from another that gotten out of their straight jacket.  Just syck's "opinion" from his font of racism and hatred, trying to buy suckers off with his JFK crap.
rycK the JFK Democrat Added Dec 6, 2017 - 4:23pm
Jeff
 
"Are you heterosexual?"
 
Are you biased against heterosexuals? Race-baiting and more from this specimen.
 
Thanx for this truth:
 
"But, the drooling left gets political points for bring in terrorists, racists, criminals, drug dealers and such from left-wing voters and, of course, they vote for Dems."
 
Facts are sometimes dredged up from the latrines. The narrow political training, emphasizing slogans sans facts are apparent in this specimen. The drooling left needs youse on the Supreme Court. 
Jeff Michka Added Dec 6, 2017 - 7:15pm
syck ryck the Barry Goldwater republican sez: Thanx for this truth:
"But, the drooling left gets political points for bring in terrorists, racists, criminals, drug dealers and such from left-wing voters and, of course, they vote for Dems."-You are as idiotic as you've indicated.  Those are YOUR words quoted.  defining as always, YOUR truth, which is as specious as your claim to use JFK in your worthless ass handle.
Bill Kamps Added Dec 8, 2017 - 8:08am
Mike, agreed, the Constitution grants equal protection under the law.  When people are discriminated against, as blacks were in the 1960s, then the courts step in to remedy the problem.  The Constitution through the Equal Protection Clause gives the courts the ability to do this remedy, and the remedy, sadly, has to be assigned to a group of people.  So black's rights then equal everyone else's rights, and the courts are on alert to make sure that is enforced.  Unfortunately as you point out the courts sometimes go overboard.  Its not a perfect world out there. 
 
A business that TELLS YOU they wont create a cake for you because you are tall, fat, have red hair, or any other reason runs the risk of a court suit.  If they tell you they wont do it because you are black, or a member of some group where the courts have stepped in to remedy discrimination, then they run a greater risk.
 
If however, you dont bake the cake because  you are busy, then you are off the hook, and can go about your business.  It is not very difficult to turn down specialized business without saying your real reasons.
Brewingbiker Added Dec 8, 2017 - 11:26am
Jeff Michka " Do bakers really ask someone's sexual orientation before selling a cake to them? Apparently, some do."
I don't know if bakers ask that or not (why would they?) but these certainly did not.  They KNEW the two customers, they had been customers of theirs for some time, and by all accounts had quite a few gay customers.  They DID offer to sell a wedding cake just as they had other cakes -the REFUSED to make a CUSTOM wedding cake for them (themed).
You either didn't read the story or don't know much about the whole story -and in any case, you've gone to great lengths to derail the discussion.
The other silliness is really irrelevant to the subject at hand.
These two were not refused service -they were refused a customization based on religious standings.
IT SHOULD BE NOTED that this very same bakery will NOT make cakes themed for certain holidays (like Halloween) because they are pagan holidays, not in keeping with their faith.
These two could simply have gone to another of the many fine bakeries in the area (and they did) but chose to really make a federal case out of it in order to make their little point.
Was it wise for the baker to cost his business so dearly by standing up for himself?  Financially, no.  BUT as my parents always taught me: "If you don't stand for something, you will stand for nothing".  Its doublespeak, but its true.
MY only regret is that the two throwing their hissy-fit aren't liable for any of the money they have cost the business.  They will eventually find someone else that displeases them and sue them as well.  They aren't the first.
Brewingbiker Added Dec 8, 2017 - 11:31am
Bill, I agree.  The baker should have come up with a better excuse and kept religion out of it.  He stood for his principles VOCALLY, and that has cost him dearly.  But by that same coin, we aren't talking about racial discrimination and a private business should not be forced to create something that is contrary to its principles -simply because the government wants them to.  I just don't think that this is right.
When handled properly, the free market will solve this (just go to the competition and spread the word to your friends, etc).  But we live in a time and a society where suits are encouraged.  Organizations will practically fall all over themselves to get you to sue someone.
Jeff Michka Added Dec 8, 2017 - 2:44pm
You either didn't read the story or don't know much about the whole story -and in any case, you've gone to great lengths to derail the discussion.-HUH?  Seems you like to shoot messengers as much as you like to ride.  You haven't challenged anyone here save me.  Don't you read comments?  LOL
Tamara Wilhite Added Dec 8, 2017 - 5:10pm
 

Bill H. I know several Christian homosexuals, including one who graciously understood when I declined to attend her wedding because of our disagreement on this issue.
There's an interesting assumption in your biased statement, that "if you just know one, you'll totally agree with all of the far left LGBT demands". That isn't true. At least both women understood my views and our boys continue to play together.
Bill H. Added Dec 8, 2017 - 10:01pm
 
And of course Tamara, you probably have no clue that homosexuality is one of natures methods of controlling overpopulation in many species. 
Dr. Rupert Green Added Dec 8, 2017 - 11:22pm
@  Bill. "And of course Tamara, you probably have no clue that homosexuality is one of natures methods of controlling overpopulation in many species."
 
 
You raised an interesting point.  Where can I find evidence of same? Will we find the animal with the 8 ft dick trying to jump another male of the specie?
 
Recently I visited Jamaica and observed  male stray dogs trying to jump other males, and then began to wonder if homosexuality exists in lower animals. The curious thing is that dogs may have been doing it in my youthful day. However, I did not see it because i did not know about homosexuality until I came to live in America. In JA, it was a deviant practice that cost individuals their lives.
 
 
 
Bill H. Added Dec 9, 2017 - 1:08am
Dr.-
Homosexuality is very common among schooling fish (some are even capable of changing their sex during their lives) to control populations. It is also common for the same reason among many social and herding animals, especially with apes and monkeys.
Without natural controls like this, many species would have wiped themselves due to overpopulations with limited food supplies, especially in isolated "pockets".
Dr. Rupert Green Added Dec 9, 2017 - 1:47am
Thanks Bill.  I now see the potential benefit to the US. It is more palpable than the one ( or 2) child China mandate, leading to the killing of females. Problem is in America, babies are wanted by those whose life style prevent same. They then pay others to have babies for them, violating the assumption of population control from such relation.
Dr. Rupert Green Added Dec 9, 2017 - 2:03am
"When Is Making a Cake Constitutionally Protected Speech?"
 
When it is not made for a man eater.
wsucram15 Added Dec 9, 2017 - 12:14pm
Mike..
you are insane, the bill of rights IS part of the Constitution.  Especially when you guys bitch about the 2nd amendment.
Look Mike..I have studied Con law since the 90s, (it does change since we are a common law system).  I promise you, Blacks are a protected class of people, as are women and other minorities.    I know this because I spent YEARS keeping a company OUT of violations towards a specific set of people, gay people being one of the classes of people that needed to be considered.
 
Now The  amendments are to CORRECT the errors by white men, like yourself and to CLARIFY the actions that can be taken BUT only to EQUAL RIGHTS, you are correct. Which would NEVER have been done if up to people like you.
It should never have had to be this way....why did black people have to ride in the back of the bus or have different bathrooms? Why were women prevented from working or STILL paid less than men for more work?
Why did we have to make an amendment at all to EQUAL our rights..to vote, ride in a bus, use a bathroom..work..anything?
White, privileged men.  Thats why.  Dont give me shit about the law, I dont give you shit about your corvette.
Jeff Michka Added Dec 10, 2017 - 7:07pm
wsucram15 sez: you are insane, the bill of rights IS part of the Constitution.  Especially when you guys bitch about the 2nd amendment.
Look Mike..I have studied Con law since the 90s, (it does change since we are a common law system).  I promise you, Blacks are a protected class of people-But Mikey and the other rightist, wrapping the,selves, supposedly, in the Constitution know it's only as they see things, not as it is.  The constitution, in their minds, was designed to keep those now protected by it, enslaved, keeping the country "safe for white people like themselves."  you know: White, privileged men...