Gay Marriage

Can States Compel You to Bake a Cake Against Your Will? The Supreme Court Will Decide.

Masterpiece is the first such case to make it to the justices.


Rainbow cake
Katherine Mangu-Ward

If cake artistry counts as speech, what doesn't qualify—and how do you tell the difference?

That was the essence of the question the Supreme Court asked this morning during oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case centers on whether a state may, in the interest of preventing discrimination, require a private baker to produce a custom wedding cake for a same-sex marriage celebration.

As Jack Phillips, the baker in question, put it yesterday in a USA Today op-ed, his creations are "not just a tower of flour and sugar, but a message tailored to a specific couple and a specific event—a message telling all who see it that this event is a wedding and that it is an occasion for celebration." Such a message in the case of a gay union, he wrote, "contradicts my deepest religious convictions." His lawyers argue that nonetheless forcing him to "sketch, sculpt, and hand paint" a cake, as the state civil rights commission has done, is "compelled speech" and a violation of his First Amendment rights.

But wouldn't the same logic, the justices wanted to know, permit someone to turn potential clients away based on their race or religion as well? Could someone refuse to make a birthday cake for an African-American child by saying his religion tells him it's wrong to "celebrate black lives"?

This is an important legal question, because unlike sexual orientation, race and religion are protected classes at the federal level—and laws against discrimination on those grounds have been frequently upheld. (In 1983, for example, the Court ruled that Bob Jones University could not claim a religious exemption to government desegregation efforts.) If Phillips' challenge to the Colorado rule necessarily implicates widely accepted decades-old protections against other forms of discrimination, it stands little chance of succeeding. Like it or not, the Court is not about to throw out a key provision of the Civil Rights Act.

On the other hand, if there is some aspect of the Colorado policy that clearly separates it from (and makes it more egregious than) the laws that came before, the justices might be willing to side with the cake artist. Thus, their frequent attempts to get Phillips' lawyers to narrowly define a theory about when the state can or can't butt in. "What is the line?" Justice Stephen Breyer asked at one point. "The reason we're asking these questions is because obviously we want some kind of distinction that will not undermine every civil rights law."

It wasn't just the baker's legal team that was pressed to state a limiting principle. When the attorneys representing Colorado took the floor, they were immediately interrupted with similar queries. Is there any form of compelled expression, the justices wanted to know, that would in the state's view cross the line? If the government can require you to make a cake against your will, what can't it do—and how do you tell the difference?

Could a state force Catholic Legal Services to represent a same-sex couple in a wedding-related dispute, Chief Justice John Roberts asked, since the nonprofit happily represents heterosexual couples in similar situations? What about a case that involves words and not just images, Justice Ruth Bader Ginsburg suggested—would Colorado say a baker must spell out "God Bless the Union of Charlie and David" in frosting? Justice Samuel Alito wondered if a writer who gets paid to pen wedding vows for couples could be made to do so for a gay marriage.

If any of these regulations fail, the justices were implicitly asking, what makes the Colorado law different? And if all these regulations are licit, well, what good is the Constitution?

The Supreme Court is left with something its members clearly see as a difficult task: defining the contours of a state's power to require people to do what their religion tells them they may not. But the justices might have found a sort of get-out-of-jail-free card allowing them not to make such a tricky ruling: In stark language, several questioned whether anti-religious animus may have motivated the Colorado Civil Rights Commission's judgment against Phillips.

Justice Anthony Kennedy pointed out that a couple of the commissioners were on the record making impolitic statements about people who hold traditional religious values. (Justice Neil Gorsuch paraphrased one of those comments as, "If someone has an issue with the laws impacting his personal belief system, he has to look at compromising that belief system.") Kennedy then all but demanded the state solicitor general disavow the comments publicly. Roberts noted that, in the context of a court ruling, "one biased judge might have influenced the views of the others," implying the same could be true here. Alito said the judgment looked to him like "discriminatory treatment based on viewpoint," because the commission had opted not to bring cases against bakers who refused to create cakes adorned with pro–traditional marriage messages. "Counselor, tolerance is essential in a free society," Kennedy concluded. "It seems to me the state in its position has been neither tolerant nor respectful of Mr. Phillips' religious beliefs."

If a majority of the justices think the evidence for that accusation is strong, it's possible they'll overturn this specific ruling without taking the additional step of throwing out the underlying state anti-discrimination law it was based on. Which would be good news for Jack Phillips—and for lawyers everywhere, since it would open the door for future challenges, and many more would certainly be forthcoming.

NEXT: GOP to Libertarian Legislator: Your It's a Wonderful Life Screening Is Against the Law

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263 responses to “Can States Compel You to Bake a Cake Against Your Will? The Supreme Court Will Decide.

  1. …race and religion are protected classes at the federal level?and laws against discrimination on those grounds have been frequently upheld.

    It’s right there in the Constitution.

    1. Our Supreme Court is investing its wisdom on who should be compelled to bake a cake. This is one more example about the United States of Idiocracy. If this doesn’t sink all of your respect for our Constitution enforcement, nothing will.

      1. The Supreme Court is merely being askedva question. It is the givernment of Colorado’s fault it is a stupid question.

        1. No, it’s also the fault of the state and lower federal courts that let the question get this far in the first place. This law should have been shot down by immediately at the lowest level as blatantly unconstitutional. The first appeal should have been dismissed with prejudice. SCOTUS should have never had to waste its time on something that is such a blatant attack on individual liberty.

          1. Too many progressives skulking everywhere. Need to thin out their numbers quite a bit.

            1. Progressive authoritarianism starts judicial authoritarianism, but pervades the government

              1. The number of progressives in this country has an inverse relationship to the amount of freedom we have.

          2. But it IS dealing with it, and ain’t we all glad it’s there TO deal with it?

            The fact that it should never have gotten this far is moot. It has. And most importantly, it’s the reason for the very existence of the Supreme Court.

            1. Where in the U.S. Constitution does it say the SCOTUS gets to decide what is or isn’t Constitutional?

          3. Oh, well, in that case, blame the… I dunno. What do we call the generations born in the first few decades of the 1900s?

            ’cause face it, the precedent for all this was set back in the 60s and 70s.

            1. What do we call the generations born in the first few decades of the 1900s?

              Old. next question?

          4. Civil Rights Laws concerning private businesses or private property on the state or federal are the problem for they CRUSH Freedom of Religion, Conscience, Association & Speech!!

            “Equality, rightly understood, as our founding fathers understood it, leads to liberty and to the emancipation of creative differences. Wrongly understood, as it has been so tragically in our time, it leads first to conformity and then to despotism.”

            -Barry Goldwater, 1965

          5. No, it’s also the fault of the state and lower federal courts that let the question get this far in the first place. This law should have been shot down by immediately at the lowest level as blatantly unconstitutional. The first appeal should have been dismissed with prejudice.

            With prejudice? Sounds pretty racist.

            It should’ve been shot down with dirisive laughter. Perhaps also with a thorough bitch slapping to every politician in CO who approved this.

            1. “with prejudice” is a legal term. It means, “you can’t start another lawsuit over the same set of facts.” The opposite is “without prejudice,” which means “your lawsuit as filed is defective, but you can fix the defects and start over.”

      2. It’s pretty straightforward. You are welcome to exercise your rights as long as they don’t infringe on someone else’s basic rights. I’m pretty sure I know which way this Supreme Court is going to go, just like they went with the forcing companies to pay for medical treatments that their religious leanings told them were wrong. Otherwise you open up a huge can of worms.

        1. Since the only way to violate the rights of others is to initiate force you’re saying the court will rule for the baker?

        2. so you hold that the two quires wanting that “specshul” cake have some “Constitutional right hidden right there in the umbras and penumbras of said document that DEMANDS they get to FORCE that baker to put whatever THEY want on their speshul cake…. when there have to be two dozen or more OTHER makers within a short bus ride that would GLADLY take their money and make whatever they want?

          Next thing ya know, CHarlie will be able to buy Pete despite the fact Pete does not want to be owned by Charlie, nor to do anything Charlie wants him to do. One man forcing another to do HIS will (that is, the one forcing is nothing short of slavery. Those two distorted putative customers want to OWN and CONTROL Mr. Phillips’ mind and soul. Not gonna happen. And if this court comes down against the baker, it will usher in a new era of forced compliance the like of which we’ve not seen since about 1765 or so when King George Three thought he OWNED the Colonies outright, and thus could force anyone to do his bidding or be hauled back to England for “trial” and sentencing…. which always included a rope.

          1. Drama queen much?

            A ruling against Phillips is for the status quo. You may not *like* the status quo, but it’ll won’t be “new” by any stretch of the imagination.

            1. Naw, Tionico is correct. The fact that Colorado required, in essence, thought control, by requiring the baker to approve the actions/choices of another, dramatically changed the … status quo. A reversal by the supremes would merely return things to the status quo ante.

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  2. Determinism > free will imo.

    1. You only say that because you couldn’t have said something else.

  3. But wouldn’t the same logic, the justices wanted to know, permit someone to turn potential clients away based on their race or religion as well? Could someone refuse to make a birthday cake for an African-American child by saying his religion tells him it’s wrong to “celebrate black lives”?

    How many times do I have to tell you? Yes.

    1. “It’s not a crime and no one’s committing it but if it were a crime and people were doing it then it would have relevance to this case then wouldn’t it?”

      “… Yes.”

      And people wonder why Thomas sleeps through opening arguments.

      1. In a case like this I wonder why he bothers to show up at all. He could have written his decision the moment they agreed to hear the case.

    2. If such a religion existed, I think it would be involved in some controversies a bit more serious than whether it should or shouldn’t bake birthday cakes.

      1. Pretty much.

      2. You mean like whether or not black people were inherently sinful and cursed with the Mark of Cain?

        1. Joseph Smith approves.

          1. Funny, but not true today.

            There are plenty of black Mormons and a Mormon baker would almost assuredly back a wedding cake for a gay couple.

            1. Nah, I read the comment section over at Deseret News. They want to deny me service as much as Phillips does.

  4. But wouldn’t the same logic, the justices wanted to know, permit someone to turn potential clients away based on their race or religion as well? Could someone refuse to make a birthday cake for an African-American child by saying his religion tells him it’s wrong to “celebrate black lives”?

    OK, so the justices didn’t actually ask this, it was part of oral arguments being made by the Civil Rights Council. Otherwise, depending on the justice, some pretty epic trolling going from gay wedding cakes to black children’s birthday cakes.

    1. It’s a profoundly stupid question. Is there any bona fide religious belief that Blacks should not have birthdays? Not some hypothetical the progressives make up on the spot, but actual, for reals, in this universe, example of a genuine religious text saying African Americans should not have birthdays? There are none. Period.

      Now of course, there are some religions that don’t celebrate birthdays. But they don’t celebrate them for anyone, not just for non-Blacks. If a Jehovahs Witness congregant decides to become a baker, then he doesn’t make birthday cakes for anyone. White or black. We don’t need a supreme court ruling on the matter. It’s stupid. It’s some shit some progressive made up just to look more hand wringy than he really is.

      1. bona fide religious belief

        There’s your problem.

        1. I kind of agree. I don’t know why religion gets a special case because it’s all made up bullshit. It used to be important when we didn’t have scientific explanations for most things in nature. However, it’s in the Constitution so the judges have to respect it for now.

          1. you seem to hold that “religion” and “science” are mutually exclusive. Amd yet, all science is the discipline of trying to figure out what God did when He made all this and how it all works. How many milennia did man exist before anyone first thought up the concept of “atmos”, yet how long have “atoms” been in existence? Since long before man ever set foot on this big ol dirtball…..

      2. The courts are not in the business of deciding whether any given purported religious belief is sincere, just in whether or not it’s acceptable for the government to compromise it.

        That is to say… it doesn’t matter if Pastafarians are just trolling you. If we agree that Jews can wear their yarmulkes in driver’s license photos, then Pastafarians can wear pasta strainers.

        1. Well, they shouldn’t be in that business. They sometimes are.

        2. That is to say… it doesn’t matter if Pastafarians are just trolling you. If we agree that Jews can wear their yarmulkes in driver’s license photos, then Pastafarians can wear pasta strainers.

          You are so obviously correct! No court in all the land, especially not the Supreme Court, has decided that a case or argument was without merit and/or that parties involved lacked standing.

          Your Pastafarians v. Jews example could not be more pristinely perfect! After all, the Pastafarians are just seeking more religious freedom for everyone and since the DMV is specifically charged with enforcing cultural and religious equality per The Constitution, they’re naturally the department you’d choose to erect and enforce such policies.

          1. My example wasn’t theoretical, dude.

            1. Neither was mine, dude.

              The baker’s religious convictions aren’t exactly at issue here. Even if they are, it’s half at best.

              1. I never claimed or suggested they were. In fact, I explicitly said that isn’t the Court’s concern.

            2. 9 justices because there is and can be only one interpretation of the law? Successive appeals and explicit ways to overturn even Supreme Court decisions because, once interpreted, the law can never be reinterpreted? Get over yourself.

              1. What are you even responding to here?

      3. But birthday celebrants are not a protected class.

      4. Who decides which religious beliefs are “bona fide”?

        I really don’t want the government deciding that, and the free exercise clause pretty much says the government must not decide that.

        That’s why Scientology, frex, gets all the benefits of being a religion, even though it’s all (recently) made-up bullshit for the purpose of making money. Hubbard said as much: “You don’t get rich writing science fiction. If you want to get rich, you start a religion”

  5. I really like to see how much the webathon box is overflowing now. It’s looks silly, feels like bragging, and is somehow a perfect symbol for the quality of the sites web code.

  6. Justice Samuel Alito wondered if a writer who gets paid to pen wedding vows for couples could be made to do so for a gay marriage.

    Without mining Cher lyrics to do so.

    1. Why would anyone, regardless of sexual orientation, want a Cherless wedding vow?

    2. You don’t have to wonder about Alito. He lacks the judgment to know how not to waste his time on nonsense.

    3. I found someone
      Strong enough
      After all
      I got you babe

      1. ::smashes Sparky-shaped alarm clock::

        1. Music played and people sang
          Just for me the church bells rang

          Bang! Bang! He Shot me down.
          Bang! Bang! I hit the ground….

    4. Those Supreme Court justice, like most judges, are so up on what citizens are up to.

      It is usually reflected in their fantastic opinions about current discotheques.

  7. Why would you want someone to spend hours of their lives baking a cake for you after they have specifically said they don’t want to do that?

    1. Seriously. You KNOW that a dick is going into that batter.

      Which… actually, for some gay weddings, might not be a deal breaker.

      1. Seriously. You KNOW that a dick is going into that batter.

        Which… actually, for some gay weddings, might not be a deal breaker.

        So can the stripper refuse to jump out of a cake at a gay wedding/bachelor party?

        1. I think you’ve put your finger on found the next lawsuit.

          1. Are you fucking kidding me? One of the side-bar advertisements here at reason is apparently for ‘all gay cruises’.

            Gee, I wonder if that’s a different way of saying ‘straights need not attempt’. Although, lets be honest here, you’re not straight if you’re checking out that cruise. What would the point be? They might as well advertise it as a hook-up-cruise and you’re not getting any strange as a straight dude except maybe at the stops with some of the locals.

            1. I have never seen such a side-bar advertisement. Algorithms don’t lie, bitch.

            2. Cookies, brah.

            3. You do know that straight people can go to gay bars, gay cruises, pride parades and Lady Gaga concerts, right?

              There’s a difference between “this want planned with you in mind” and “we are prohibiting you from joining”.

              That said, plenty of straight folks like gay bars and cruises. The may prefer the atmosphere, being around fold more likely to share their values, or (in the case of women) might like not being harassed so much.

      2. no, no dick will be going into that batter at the christian baker’s place.

    2. Because some people find that popping the whip on another human being has a sweetness all its own.

      1. I have to admit, the thought of progressives in chains, being marched into labor camps, or deported to some third world shithole forever really warms my heart. Just rewards for their villainy and evil.

        1. It won’t happen. Now back to your shitty reality.

    3. That is an easy question to answer. You want to live in a country inhabited by citizens who are constantly worried about what the laws will do to them.

    4. Because FYTW.

    5. If we repealed the CRA (1964) today, how many diners do you think would put up “Whites Only” signs? Do you think we’d see “Irish need not apply” lines in job advertisements? Aside from Trump, how many folks do you think would go out of the way to only hire Jewish accountants?

      That’s the goal of these laws. They’re not really about a better world today. They’re about making “don’t discriminate” a knee-jerk reaction such that people don’t even try tomorrow.

      So this guy? Honestly, if people google his name before going to his bakery, I doubt he’ll ever get a gay customer again, custom services or pre-baked. But because of his case, and Elane Photography, and Sweet Cakes by Melissa, and Arelene’s Flowers, and so-on, folks in twenty years probably won’t even try. Just as it’s the rare guy today that’d even think of putting up a “whites only” sign.

      Now, you can disagree with whether reducing discrimination in the public sphere is a legitimate government interest, but you shouldn’t fool yourself into thinking that anyone is expecting a cake at the end of this.

      1. The problem in 1964 was state and local law mandating segregation.

        1. Also that there were a fair amount of racists about. I mean, there’s a reason laws get passed.

          I still think that we’d have a much lower amount of discrimination than we had then and that equality between races would be generally accepted today without laws demanding no discrimination (and no laws demanding segreagation), but those laws got passed for a reason.

          1. What reason? Jim Crow was the law. How was stripping the right to freedom of association from businesses make things better? Jim Crow was wrong, Civil Rights laws are wrong.

            1. They got passed because a racist population wanted to force businesses to be racist. Not saying there wouldn’t have been racist businesses anyway, but those laws got passed in the first place because racists wanted to force everyone else to be racist too.

              1. I’m not arguing Jim Crow wasn’t wrong, or that Civil Rights laws don’t infringe upon freedom; I’m just saying that the problem in 1964 wasn’t just laws demanding segregation, but also that there were still a fair few openly racist people.

                1. I’m not arguing Jim Crow wasn’t wrong, or that Civil Rights laws don’t infringe upon freedom; I’m just saying that the problem in 1964 wasn’t just laws demanding segregation, but also that there were still a fair few openly racist people.

                  No doubt. But a problem that is partially caused by terrible government policy is seldom made better by MORE government policy.

              2. But to fix that they didn’t need new laws they just needed to invalidate the old racist ones. You see the Jim Crow laws controlled people now Civil Rights laws control people. Either way we are controlled.

                1. And if their were a few who were not racist they would get rich, the racists would go out of business and everything would be fine.

                  1. Not necessarily; if you make more money serving racists than you do serving everyone (that is, if racists make up a large enough segment of the population and boycott your business because they don’t want to sit next to black people), then you put up a sign saying “Whites Only” or whatever. That has something to do with why Jim Crow laws got passed in the first place (beyond the whole “what I want should be forced on everyone”); the racists were not powerless and could enforce their preferences in political ways, and therefore presumably could enforce them in economic ways as well.

                    Note that I’m not arguing for Jim Crow laws or the Civil Rights Act; I’m just saying that the fact that racism was much more palatable and having racist preferences was accepted definitely had an impact.

                    1. You realize other businesses besides sit down restaurants exist right?

      2. Gays are such a small part of the market. Would it even matter to a business if they were exclusionary?

        1. There is a Libertarian solution:

          Any business *doing business with the public* has to meet certain common public standards of hygiene, safety, honesty, and *civility*. Any business that wants to cut out on any of those standards for whatever reason, should be free to do so, but *it must give potential customers fair warning* before they set foot in the shop (or order from its website). So let “Masterpiece” go ahead and refuse service to Gays because the boss’ preacher said that his holy-book said that his god said that Gays are icky-poo — but only if he posts a big sign on his front door, and website, saying “No Gays Allowed”. With fair warning, the public could choose freely whether they want to support that business or not. Likewise, other sorts of bigots can discriminate as much as they please — with accurate warnings. I wonder how long a business bragging “No queers, no n!ggers, no sp!cs, no k!kes, no gooks, no broads, and no Irish need apply” would last in the open market. People who are Offended at such warning-signs can show their offendedness by not patronizing the business. Otherwise, “offense” being in the mind of the beholder, they can go right on being righteously offended, if it pleases them.

          1. Just to be clear, Masterpiece would sell off the rack, they just refused the hand-job.

      3. Read up on the Sweet Cakes Case….. those two things went shopping for a baker they KNEW would not want to serve them, and learned from their website the values held by this couple. They went THERE with the explicit intention and hope of crafing a legal case out of their request being politely declined. So far, its worked.. as the stinking State of Oregon stole $135K from the baker family and gave it to the two things that set them up and sued them.

        And THAT is a large part of WHY SCOTUS need to find against the State of Colorado. These state kangaroo aadminsitrative “law” courts need to go away. Prejudiced judges (alluded to in the oral questioning described above, and certianly in play in the Oregon case) , unconstitutional rules of evidence and proceedure, lack of ability for defendants to examine plaintiffs and other witnesses…. and the rules they adminster being ones legislatures never properly passed into law. THis sort of “principle” is lawyer and lawsuit bait. Time it gets nipped.

        1. Yes, you *should* read up on that case. You’ve bought the right-wing myth of Christian persecution Hook line and sinker.

          1. Since you have read up on the case, would you point out the errors in his reporting. (Aside from his use of Things one and two.)

            Was it an administrative court? Did the judges exhibit prejudicial actions, were the rules of evidence and procedure constitutional or not, were the defendants unable to examine the plaintiffs and other witnesses. Were the rules passed by legislature or bureaucratic fiat?

    6. It is very simple….On some level deep within, every LGBT person knows they are abnormal & living a perverse lifestyle…When someone like Phillips calls them on it, they get incensed & vengeful & intolerant….Basically saying “How dare they call be abnormal & how dare they turn me down because of it?”

      The whole LGBT agenda is simply about normalizing & legitimizing abnormality & sickness by bullying everyone in society to agree that their lifestyles are healthy, natural & wholesome, etc…or else pay the consequences like Philips has!!

      1. Ask gays how they feel about polygamy.

      2. I have been to gay weddings, and they do not know what you seem to think they know. They’re people, like everyone else I know.

      3. “PS vote Roy Moore!”

      4. And for every self hating gay, there’s a closeted conservative trying (and failing btw) to convince everyone else that he doesn’t long for a strong man to put him in his little GOPiggy place.

      5. So, I’m now taking bets: is this guy a right-wing troll, left-winger imitating what he/she thinks is a right-winger, or some rando who’ll never show up here again?

        Odds are at 10:1 right wing, 15:1 left wing, 2:1 rando. Winner gets absolutely nothing.

        1. Guy thinks he’s Colbert

        2. Left-winger, and not a rando. A sock.

      6. the stated goal of the quire movement is to effect full reversal….. they who (think they) hav been rejected, marginalised, discriminated against, punished, scorned, etc, now want to turn the tables and make those whom they THINK have been doing this to them (the quires)the new generation of marginalised, rejected, discriminated against, punished, scorned, etc…..

        and, wiht the “help” of these bogus aministrative law rules and courts, they are winning. Or at least have established a beachhead.

    7. because the root desire is NOT for a cake, but for the pride of ownership of the baker or florist or preacher. Control is the goal. Just like the izlammies.. THEY demand to control the hearts and minds of all. How is this any different? The same spirit drives both. All the baker/florist/videographer want to do is live their own life before the God they serve, and be left alone to do so in the manner they believe He requires. NONE have yet to make any attempt to push their values o their putative customers.

      However, it seems the putative customers ARE certainly forcing their viewpoing upon their victims, the tradesmen they demand WILL perform as demanded……..

      1. WOW! gays == islamists (which Tionico apparently can’t even spell)

        Now there’s a great equation. NOT!

        1. Any metaphor breaks down, the question is it useful for the aspect being considered. After all one translation of Islam is “submission”. But lots of groups seek the control of others.

    8. That’s exactly why
      The gratification of *forcing* someone to submit to your demands

  8. That cake looks FABULOUS!

    1. That cake looks disgusting. That amount of food coloring skeeves me out.

  9. I wish the baker was basing his case on contract law than religious liberty. Ordering a specific item to be produced means entering into a contract with deposits and such which is completely different than purchasing a product off the shelf.

    1. I wish the baker was basing his case on contract law than religious liberty.

      He would lose. Law trumps contracts.

      1. So there is a law that you HAVE to sign a contract?

        1. First of all, a contract does not need to be in writing to be valid.

          But, to answer your question, it seems the law does require a business owner to participate in contracts against his will.

          1. That’s only because they think property taxes forms the basis of a contract.

          2. Yet for instance doctors can refuse Medicaid patients.

    2. But you can see why they argued it as they did. Contract law is not going to get a justice indignant in the face of a conflict with their civil rights jurisprudence.

    3. This is the first question in the oral arguments and they’re avoiding specifically because it’s been hammered as part of public accommodations. Otherwise, public accommodations could be completely avoided by keeping products in inventory or not abundantly on display. You’re allowed to be free with private cake clubs and made-to-order products, otherwise, you’re open to the public. So, this is free speech because the ‘artist’ is being forced to sculpt and decorate a cake against his will religious convictions. It’d be awesome if they could just say “Nuh-uh, we don wanna!” and the gay couple went to the next cake shop down the road, but modern America doesn’t work like that.

      1. But products in inventory would already have been produced and no deposit would be required therefore no contract would be required.

        1. Yeah, I think this is the way to go. Products that are standardized (whether or not in inventory) should be made available to all. That seems like the best way to protect speech as best you can without overturning the CRA. And the justices aren’t going to overturn the CRA.

          Custom products are by definition speech.

          e.g. If the gay couple orders the rainbow cake from the menu, they get the cake. If the bakery doesn’t want to make rainbow wedding cakes, they don’t have to make rainbow wedding cakes.

          I think an important question is whether that bakery would make that same cake for a hetero couple. Are they objecting to the message inherent in the cake, or are they objecting to doing business with the gay couple?

          And why the hell would you eat anything that you forced someone to make for you? That is just ridiculous.

          1. Products that are standardized (whether or not in inventory) should be made available to all.

            You realize that ‘whether or not in inventory’ is rather explicitly saying, ‘the customer has a right to the cake, fuck the logistics’, right? That a one-off, custom cake is one word-of-mouth/compelled speech/allegation away from being a ‘standardized cake not in inventory’, right? I wonder what Amazon would think of rolling up the whole logistics industry into public accommodation.

          2. Are they objecting to the message inherent in the cake, or are they objecting to doing business with the gay couple?

            the VERY clear position of this baker, the florists, videographers, venue pwners, photpgraphers, musicians, etc, that decline to be forced to participate as creative aretists in such events is NOT for whom they are asked to provide the serivied.. but the service itself.

            A musician would refuse to perform a pro-sodomite piece to be recorded and distributed, even if the owner, manager, agent, of the recording company were a hetero promoting individual.
            It is definiteluy CONTENT

        2. But products in inventory would already have been produced and no deposit would be required therefore no contract would be required.

          In inventory simply means held by the merchant. They may be otherwise contractually obligated to other customers for these goods, stockpiling in anticipation of high demand or low supply, or simply being kept away from the icky gayz, or any one of a million other reasons. The point is, the customer isn’t aware of them (at least a priori anyway) and the merchant isn’t advertising them or selling them publicly if at all.

          Otherwise, you’re compelling speech and ripping the (all) business out of the merchants hands by the books and handing it to the customer(‘s Civil Rights Commission).

          1. If the merchant isn’t advertising them or selling them publicly if at all I doubt they would stay in business, if it is a business, very long. Problem solved.

            1. If the merchant isn’t advertising them or selling them publicly if at all I doubt they would stay in business, if it is a business, very long. Problem solved.

              Sure. Private order and/or member’s only steaks, wine/spirits, cheeses, tobacco, pajamas/lingerie, fruit baskets, flowers, golf courses, hotels, salons, colleges and universities, credit cards, cars, etc., etc., etc. businesses don’t exist.

              Are you guys really this dense with regard to the business side of public/private business relationships? I can’t fathom that you are. I mean do private auctions and invitation-only events not exist in your world? How do wills, private trusts, exclusive licensing agreements, or even fundamental economic concepts like price stratification and cost optimization, etc. work if a (potential) customer can demand anything on any merchant’s books whether it belongs to them or not, or if all businesses are inherently open to the public? Is it really that hard to fathom a business that doesn’t explicitly serve every single member of the general public?

              The fact that you are so hell bent on making sure that the merchant can’t have any reason to refuse service while the customer needn’t have any reason at all to expect full and even unrealistic compliance from the merchant leads me to strongly believe that you don’t actually give any fucks about the contracts (or lack thereof) involved and that you slavers need to fuck off.

  10. Robby held his own in quite a spirited debate on Twitter about this topic. He still can’t change a tire, though

    1. He still can’t change a tire, though

      Still? I thought after all the shit he god for that admission he might have given it a try. I don’t believe that anyone who is not physically disabled really couldn’t change a tire if they had to. Maybe I overestimate people.

      1. That was sort of my argument. Just learn it because it’s so trivially easy to do. Though I realize now that not knowing how to do physical labor such as that is actually a sign of prestige for many who feel themselves elite.

        1. Is gout becoming a fashionable malady again as well?

          I don’t get that mentality. I know I’m better than other people, largely because I can do all sorts of manual labor and understand how many things work.

        2. You don’t score with ENB when your fingers have axle grease and tire dust under the nails

        3. Watch a youtube video and then claim you can do it. No reason he needs to actually get his hands dirty. It’s just twitter.

      2. Ability is not the issue. It’s a matter of desire.

      3. Unless he’s had a car break down, why would he bother? Going to change your tire in the garage just to prove you can? That’s some he-man machismo bullshit there.

        1. Not necessarily that, but maybe take a look at the jack in your car and make sure you know how it works so you will be somewhat prepared if you do find yourself in a situation where that would be useful. It’s not like it’s something you need to practice to get right.

          And I think that the context of his original admission was that his car did in fact break down and he had to call someone to put the spare tire on.

      4. Manual labor is for the little people
        Robby imports foreigners for that

  11. It might be interesting if some protected religious group, say the Westboro Baptist Church, went to a gay bakery and asked for a “God says homos are sinners” cake.

    1. I bieve sometjing like that has happened and any lawsuit was rejected out of hand.

      1. Probably because they asked for something to be written. They need to ask for Pepe the frog.

    2. I want a cake that says “God loves fags”. That will just confuse everyone.

      1. He can quit any time he wants.

        1. And he’s done it infinitely often.

      2. I encourage you to bake one and post it on FaceSpace or MyBook (your choice).

  12. Dad is great! He gave us the chocolate cake!

    1. Rape apologist.

  13. This is such a stupid question- no it’s entirely different to turn someone away because of their race or religion.

    If lesbian Sally were to marry gay Bernard, and the refusal were on the grounds that “We don’t serve people like you”… that would be a different matter. But no, every indication suggests that he’d be fine with that.

    On the other hand, he’d presumably refuse if straight Cindy were to be marrying straight Amanda.

    But this is a case of “I don’t approve of this sort of event, and so I don’t want to participate in it”, not a case of “I don’t approve of from whom you happen to receive your orgasms”.

    1. This is exactly the truth.

    2. Discrimination based on a perception of a trait, even if the perception is wrong, is still discrimination based on the trait.

      Or to put it in other words… if I think you’re Jewish, and kick you out saying “I don’t serve Jews here”, it doesn’t matter that you’re Catholic.

      1. You seem to be missing the distinction he is making. The claim is that the baker isn’t refusing to make the cake because he doesn’t want to sell to gay people, but that he doesn’t want to participate even in a minor way in a same sex wedding. It’s not about the people but the event.
        You may well still disagree, but it’s a real distinction.

        1. I understand just fine. He’s trying to hide “discriminating against the event, not the person” behind “they might not even be gay!”

          The first part is a well-flogged dead horse, the second hadn’t been discussed here as much.

      2. in the cases of two males or two females wanting a cake that celebrates their attempt at “marriage”, the perceived trait is the ctual trait, else why would Steohen and DOuglas come in together and want a cake for OUR “wedding”? There is no chance for confusion in cases such as this… the pair make their intent quite clear.

        In your farcical example, how bout if the catholic guy was wearing a yarmulke as he entered your shop? Would you kick him out for “cultural appropiriation”, as some of the current crop of barmy college kids are now doing? (oh but they’re fine with sexual appropriation, aren’t they” Taking up an impossibility between two people from what is possible between two others, of complementing gender….

        1. It’s not a farcical example at all.

          Let’s use another example to show you what you’re arguing here. Someone walks into the baker and asks for a cake that says “Congratulations on your successful abortion”.

          If he refuses, is he discriminating against women? Presumably, the vast majority of people who undergo the procedure are female, so is he discriminating against a protected class (sex)?

          Of course not… so why is it different in this case?

    3. not a case of “I don’t approve of from whom you happen to receive your orgasms”.

      the baker in this case would ONLY be willing to provide custom cakes forthose who ONLY receive their orgasms from their lawfully wedded spouse who would necessarily be an individual of the OTHER gender/ses/chromosome configuration. Even if someone had been married, then divorced for cause other than adultery, and wanted to marry someone else later, this baker would not provide the cake for their hetero wedding, as it is, per God’s clear command, an adulterous wedding, prohibited, just exactly as are two males or two females “marrying”. This man upholds God’s laws concerning these things, and does so faithfully in ALL cases. Its not a matter of which bodily protrusion is likely to be inserted into which bodily orifice….. though that CAN be a determining factor in some cases.

  14. The problematic phrase in the CO Appeals Court decision is:
    We conclude that the act of same-sex marriage is closely correlated to Craig’s and Mullins’ sexual orientation, and
    therefore, the ALJ did not err when he found that Masterpiece’s refusal to create a wedding cake for Craig and Mullins was “because
    of” their sexual orientation, in violation of CADA

    Since when has marriage been a legally-enforceable requirement/protection for ‘sexual orientation’ (which has long been protected in CO)? Hell – the definition of sexual orientation in CO – an individual’s orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or another individual’s perception thereof is pretty much a 1st amendment violation itself if the state tries to compel compliance to what can only be considered a personal belief system.

  15. I don’t know what a ‘private baker’ is. But I do see that Materpiece Cakes operates out of a strip mall. They have a website. They probably have a business license, etc. A person who bakes cakes in their home and sells them to friends and family might be considered a private baker. Or one who bakes cakes for a private club or for a church. Masterpiece Cakes is not private and the author is not being honest here. Why?

    1. Private just means it is not run by the Govt., but an individual who should have the Right to Refuse Service to Anyone for any Reason…..At least the signs in the 1960’s in many restaurants & stores said that!!

      Civil Rights Laws relating to private enterprise or private property should be Unconstitutional!!

      1. Slow clap.

      2. Well except for the right to be free from the initiatory use of force of course.

    2. And the gays were welcome to enter and buy anything on the shelves. Asking for a custom product is another issue.

    3. And the gays were welcome to enter and buy anything on the shelves. Asking for a custom product is another issue.

    4. We do not live under a fascist system. At least we are not supposed to.

      1. It’s not fascism if every employee and all goods and services they produce publicly and privately is wholly owned by their employer (and their customers).

        Plenty would argue that slavery is worse than fascism but few would argue near or absolute equivalence.

  16. My understanding from what I’ve read here is that the US Constitutionality of public accommodations anti-discrimination laws was based on a narrow concept of places of public accommodation as those facilities practically necessary for one to travel thru or exist in a place, i.e. having to do with the necessities of life, such as shelter & food?& that since then the concept of “public accommodation” has been broadened w/o legal analysis to all types of biz, such as cake making. Is anybody challenging that dragging of the pivot foot, the unmooring of the anti-discrimination basis from its fundament of the biz’s being a necessity for customers? Is anybody pointing out the theft of the concept there, & saying a new analysis needs be made? Was there really never a case where that omission of thought, that equivocation, was raised as an objection?

    1. The US SC opened that up in their two 1964 CRA cases. In Heart of Atlanta v US (a motel case), public accommodations discrimination was determined to be strictly an infringement of that customers right to exist in public space and to travel. In Katzenbach v McClung (a restaurant case where white customers could sit but blacks could only takeout from a segregated area)), that first definition did apply to the plaintiff (most customers were travellers) – but the court wanted to expand ‘interstate commerce’ authority to deal with the bigger Jim Crow problem so that ‘public accommodations’ became everything that involves interstate commerce even if interstate commerce is only on the purchasing side not the customer side.

    2. That’s a good question. The argument can be made that hotels and gas stations and whatnot are essential in a way that bakeries aren’t and that refusing to serve a class of people at the former does real harm.

      1. Maybe if you’re in the desert at the one gas station for miles and your empty. Anywhere else you go across the street and give them your money. Jim Crow was a problem because it was the law. Individuals who discriminate will go out of business from competition.

        1. “Individuals who discriminate will go out of business from competition.”
          [Citation needed]

          Phillips is still in business. As are the other vendors and services that have made newspapers for discrimination.

          There are good arguments against non-discrimination laws. “The markets will fix it” is not supported by the evidence.

  17. “…no it’s entirely different to turn someone away because of their race or religion.”

    You can’t be an advocate of individual rights and deny the right of another to disassociate themselves for ANY reason, including race, religion or sexual orientation.

    You may think it stupid (it is). You may consider them a racist (they are), or a bigot. But what you may not do is force them to your view of things using the law.

    The fact that the law DOES force such compliance is a failure in the law.

    1. Fully agree, and it doesn’t help that the current hysterical national climate is more than willing to lump this nuanced, principled point of view in with “anti-gay.” Sort of how principled freedom of speech advocates are now “nazi sympathizers.”

      Groups like the Southern Poverty Law Center are riding this wave gleefully. It enables their arbitrary criteria that attempts to destroy people out of spite.

      1. Indeed.

        A big part of this is the unwillingness of many libertarians to defend freedom of association to the hilt because they are damned as being supporters of racism, etc. This may be a shortcoming in many libertarians who haven’t bothered to enunciate clearly and succinctly the difference between defending a racist’s right to hold racist views and defending the racist’s views per se.

        Just because you HAVE a right it doesn’t mean you ARE right.

        1. unwillingness of many libertarians to defend freedom of association

          Maybe because, in the real world, freedom of association was used in US v Cruikshank to free KKK members accused of participating in the Colfax massacre against a different group of blacks exercising freedom of association (and then used for the next 80 years to acquit every white who was accused of being part of a lynch mob). And with voter intimidation, murder, and the judiciary in pocket – political parties and white primaries used freedom of association to set up Jim Crow. And then implement Jim Crow – and keep it enforced. ALL kept in place using that perverse view of freedom of association.

          So maybe there is good reason to be suspicious of racists who are throwing the phrase around solely in order to find useful idiots who will crap in their own punch bowl. I ain’t gonna die on that hill.

          1. You have confused the actions of the state (Jim Crow) with the rights of individuals.

            The state has NO rights. It certainly has no rights to segregate one race from the other. Are you confused on this issue? I’m not.

            How does MY right not to associate with you give the state the power to prevent YOU from associating with whoever you so chose?

            Your beef is with the unwarranted power of the state, not with my freedom of association.

            1. The state did not fall out of the sky deus ex machina. In the South, a significant/powerful group defined their freedom of association in zero-sum terms – my freedom comes at your expense and your freedom comes at my expense. Or in the parlance of the day – If I’m not better than a n* then who am I better than. That mindset itself was made prevalent by a divide et impera strategy among the ante-bellum planter elites who held a more economic zero-sum view as king of the mountain.

              Every single person who frames freedom in those zero-sum terms will view coercion (defined broadly – violence or physical force are both merely crude/simplistic forms of coercion) as both necessary to their freedom and an instrument of their freedom. As will eventually everyone on the receiving end of that zero-sum mindset.

              You cannot force someone to have a positive-sum mindset instead of a zero-sum mindset. Which is why freedom itself can never be an absolute positive. Some people are more inclined towards that framing than others – and everyone has that framing at some point in life or on some issue. It is part of human nature – and compounded by the external world where scarcity and natural monopoly (eg land) create/reinforce a zero-sum mindset. -archy and -cracy and tyrannos arises out of that zero-sum mindset. Anarchy is not utopia – it is rule by the KKK and their freedom of association.

              1. If the KKK rules then it’s not anarchy.

              2. So you’re here to provide a history lesson? If so, you’re do so in tortuous and somewhat supercilious terms.

                You obviously don’t think culture changes. I wonder how you’d explain the evolution of classical liberalism, the Enlightenment, the industrial revolution and the birth of America in terms of your historiography, which borders on Marxist. Ain’t no salvation in capitalism, Comrade, so let’s jump out of the oligarchical frying pan and into the statist fire.

                Your beef now seems to be with the anarchists and the KKK, two quite different groups, one denying the state, the other relying upon its power.

                You have a great deal of trouble speaking plainly: do you, or do you not, reserve the right to force me to associate with those I choose not to associate with?

  18. I keep bringing up the obvious. Equal rights demands demands that business owners have the same rights (whatever they are) as their customers. The blatant discrimination against business owners and landlords continues to be swept under the rug. Yeah, I know there’s a commerce clause. And I know, as does anyone else in possession of a brain, that the commerce clause does not apply to a guy baking wedding cakes that he does not distribute across state lines. I want to see courts that don’t blatantly discriminate against the people who put their asses on the line every day, and only want to be treated equally. And, oh yes, screw the federal government. 90% of today’s federal government is unconstitutional, and they’ve got their pants in a bunch over some little baker? Assholes.

  19. That’s what happens when you compromise your principles, in this case freedom of association, freedom to be left alone, individual rights, and who knows how many others. All so you can force “public” businesses to cater to everybody regardless because social justice.

    Or to put it a more pragmatic way, the more the government interferes in daily life, the more it has to interfere elsewhere to enforce the prior interferences.

    Or a third way …. Keep It Simple, Stupid. The more complex something is, the more all the parts have to be redesigned and fussed over to work with each other.

    1. This is too nuanced, full of thought and can’t be conveyed in a hashtag. You have to dumb it down and play to hysterics to get some traction these days. You know, like on Twitter.

      1. #fuckyoucutspending

  20. “Could someone refuse to make a birthday cake for an African-American child by saying his religion tells him it’s wrong to “celebrate black lives”?”

    More realistically, can a Black Muslim baker be forced to cater an interracial wedding, even though his faith teaches him that whites are demonic?

  21. Can’t they leave religion out of it? Why can’t the baker just say “i don’t support gay marriage, and i just don’t want to bake a cake.”

    1. This is something I have been thinking about for awhile. Like, why can a person not just say, “gays weird me out dude. I don’t want to do business with you.”

      Sure, the business owner is acting like a homophobe and an a-hole. But I do no get why it should be illegal to be owner and a homophobe/a-hole.

      My dad owns a roofing company. If a couple that owns a home gives him a vibe he does not like, he will either just tell them he is not submitting a quote because he is not doing their roof, or submit a bid at twice the amount he normally would or something. If he does that to a gay couple, and this gay baker loses the cake, will a gay couple attack his randomness about what a “bad vibe” is and sue him for discrimination? It’d be hard for my dad to explain the “bad vibe” he got as anything but being discriminatory against the gay couple since he has never done a roof for a gay couple (although he had a lesbian work for him for a couple of months once).

    2. Mostly because it is NOT about baking a cake. The baker is more than willing to sell the cake.
      It is the act of decorating the cake to appear to support what Christians, Jews, and Muslims consider a sin that the
      baker objects to, and which Colorado wishes to compel him to do.
      A more accurate analogy would be forcing the same baker to decorate a cake with pro abortion sentiments.

  22. An important issue that is unremarked is why they are asserting a free speech right. Presumably they decided a freedom of religious exercise assertion would fail, not because of constitutional issues, but because the Supreme Court has long decided that it will just ignore that part of the First Amendment.

    So, instead, they go for free speech. The progressives on the court will do their best to twist that oo.

    The country has gone to hell. I hope the Libertarians who were all in favor of government licensed gay marriage are examining their consciences now.

    But I doubt it.

    1. If you favor government licensing you’re not a libertarian.

    2. This case for started before Colorado had gay marriage, so you’re cause/effect is bjorked.

  23. Can we please stop saying this is about “baking a cake”? Producing a wedding cake is far more involved than that. Baking, assembling and decorating a wedding cake to the specifications of a particular customer is a skilled and complex work of artistry done in close collaboration with the customer. Usually, providing a wedding cake involves delivering it, setting it up on the serving table, and, often, serving it to the guests. Catering a wedding cake is most certainly an act of creative expression and involves personal participation in the event. It’s entirely different from simply selling someone a cake out of your case.

    1. It isn’t about baking a cake at all. That’s right. But all you’ve done with your expanded definition is turn it into an issue to do with designing, baking, delivering and arranging a cake. But that’s not the issue either. It’s about freedom of association and nothing else, and it applies to all human interactions be they in business or not.

      Which means we have to support a bigot’s right to be a bigot while also condemning the bigot’s views.

      1. Why is bigot a bad thing? It simply means being intolerant of others opinions. I’m a bigot towards religions and governments does that make me a bad person?

        1. Having discriminating tastes is a good thing. I discriminate all the time. I don’t hang out with baby rapers, I discriminate against businesses that support statists, I’ve not bought at businesses where the proprietors treated me like I was going to steal stuff.

  24. Most of the commentary on this case misses two big points.

    1. There’s a difference between selling a product and creating a custom product. The shop owner was perfectly willing to sell the same-sex couple a cake. The owner was not willing to undertake a personal services contract to work with the couple to create a custom cake for their special event, because creating a custom gay-marriage cake is not something he feels he can do. If you have looked at pictures of wedding cakes (or watched that British baking competition show), it’s blazingly obvious that creating baked masterpieces/showstoppers is not the same as selling widgets.

    2. The shop owner could have taken their money and baked them a crappy cake, or perhaps a masterpiece cake that fully expressed his artistic vision of what a gay marriage cake should be (a hellish cake, without a doubt). Instead, he was honest with them about his professional stance, that he does not take contracts where he knows he cannot do a good job for the client.

    That should have been the end of it. It’s sad that contemporary society celebrates offendedness more than honesty.

    Justice Stevens was right in his comments in oral arguments – the lack of tolerance and respect is on the side of the plaintiffs.

    1. creating baked masterpieces/showstoppers is not the same as selling widgets.

      But it is the same as doing makeup or designing clothes or decorating tables for the wedding, and the bakery lawyer said those aren’t protected like cakes, which seems to be a completely irrational distinction.

      1. Other than all the ways those things are completely different, they’re totally the same.

        We call this “embracing complexity.”

    2. They legal arguments ignored both those points because of precedent.

      It’s possible that the SCOTUS will make (1) relevant in the future, but that’s not what the lawyers for the baker are arguing.

  25. My Dad has a saying, “Shut up & take the money”
    as a self-employed person I have walked away from a few
    jobs I didn’t like the look of– nothing should compel anyone to do anything
    that they don’t want to do, I thought that was part of Freedom
    Seems like this wouldn’t work out so well, if your surgeon decided he didn’t want
    to finish what he started tho

    1. When the state forces you to get a business license it comes with a loss of rights.

  26. Next up, a kosher butcher is forced to sell ham on easter because it was requested by a christian and a christian deli is forced to cook halal food because muslims have to eat too. Boy this could get to be a long list.

    1. Mmm I think they have to be in the business of selling those things. The bakery already sold wedding cakes.

      1. The type of things are dependent on your types, which are dependent on your categories, which are dependent on your values.

        The bakery did not sell cakes for gay weddings. They weren’t in the business of selling that type of product.

        1. Ah yes, “I don’t sell White peanut butter, just peanut butter. What makes it White peanut butter? If I’m seeking peanut butter to a white person”.

          There’s a reason that argument hadn’t been made in court.

  27. If the justices are not compelled by the insulting standard they set that “decent people can oppose same-sex marriage” (something they’d have said 50 years ago about mixed race marriage, but not today), I wonder if they might rule narrowly that the courts forcing the bakery to teach corrective seminars is unconstitutional but they have to serve gays equally as straights. I’m afraid 5 of them might be under the impression that hating gays is a valid enough religious belief to provide an exemption under antidiscrimination law.

    1. The baker doesn’t hate gays. The gays were long time customers. The baker’s objection was to same sex marriage.

      1. How about interracial marriage then?

        How about objecting to *whatever it is that you do*?

        And then how about its *every* provider of whatever service you need?

        And it’s all “their religion” so now protected by precedent

        Let me guess, you’re going to pretend you’d live without whatever it is and not mind because “freedum”

        Yeah right. Libertarians are morally bankrupt hypocrites who *never* have to worry about having their BS tested *because they’re a white wealthy majority*

        As the demographics shift, let’s see how “true to the philosophy” you BS artists remain

        1. Well I admit I don’t support public accommodation laws. I also don’t support government issued business licenses. I don’t support government issued marriage license. You should be able to run a business however you want as long as you don’t initiate force. You should be free to hate whoever you want to hate. You see the problem with Jim Crow was it was mandated BY THE GOVERNMENT! Now it’s gone the other way and stripped individuals of their freedom of association. Their of those is correct.

          1. Their=Neither

            Stupid no edits Reason comments.

          2. Yeah poor white shop owners who desperately wanted to serve blacks if not for those meddling legislators they voted for.

            You’re saying the whole point: if classes aren’t protected from discrimination, the owners get to employ the cops, at our expense, to come expel them from the shop. That’s initiation of force. But then you define that however you need to, right? Cops dragging blacks from counters isn’t “initiation”–that happened when the blacks dared to step foot in the shop and ask for lunch.

            1. You realize it would work the same for black owners who don’t want to serve whites?

              1. I wish the last two Black barbers I went to had refused me service.

  28. bespoke (custom) creation? Up to BOTH the CREATOR and the CLIENT to agree. If they can’t agree on a subject or price, then no sale. This is the libertarian rule.

    OTOH, mass produced / pre-produced? Then you can’t discriminate.This is the ‘Many People Suck’ rule.

    1. OTOH, mass produced / pre-produced? Then you can’t discriminate.This is the ‘Many People Suck’ rule.

      At what exact point does the cloth pass from being a mass produced textile to a bespoke suit? Oh wait, whether you favor the government deciding or the business deciding, you don’t actually get to decide or dictate it. So the choice is either let the merchant try to do his best to sell you a product that meets your expectations at a price you both can afford or fuck off slaver.

      Your ‘Many People Suck’ rule sounds a lot like the basis for a 5-year plan or great leap forward.

  29. Its cute how hypocritical libertarians selectively apply their half assed ideology

    Let us know when you all will so vocally support a Muslim baker who refuses to sell cakes to Christians.

    Until then STFU

    1. So just to be clear you support forcing people to act against their will a.k.a. tyranny.

    2. Please let us know when your scenario happens and we will be glad to support said Muslim baker.

      1. You should go check out the comments in the article about the “gay coffeeshop owner” who ejected the anti-gay Christian abortion activists from his store.

    3. I support all people exercising their right to freedom of association for any reason.

  30. Another gross example of democracy/federalism gone bad …which always occurs… given sufficient time.

    But more specifically, such cases show the limitation of nearly all laws, but especially those which create arbitrary classes and bright-line definitions that eventually reveal substantial uncertainty, create confusion, and then worse, become the basis for legal conclusions that are beyond absurd …like forcing a baker to bake a cake for someone …for whatever reason. And, not to mention, that such laws are not practically enforceable; thus, a waste of resources.

    But perhaps most importantly, affirmation of such laws fuels the expansion of the veiled slavery under which virtually all of us live. I can only pray that SCOTUS doesn’t it take itself too seriously, and relieves us of another pseudo-intellectual juggernaut against those who earn their livelihood through mutual consent versus those that feel compelled to enforce this tripe, and can afford to do so only through the force government because there is no economic check on the theft of taxation.

  31. Hint Hint:

    For those of you screaming equality and all that, isn’t it equally important that the baker isn’t forced to do something he doesn’t like? Remember, the issue here is freedom of speech and NOT gay rights.

    To make this matter crystal clear, let’s reverse the situation. Suppose a homophobic guy asks the baker to bake a cake featuring anti-gay remarks, and the baker refuses. Would y’all liberals be taking the government’s side then?

    I’m all for equality, but that doesn’t mean one person gets to play the discrimination card to get his way all the time. This is exactly the type of shit that needs to get shot down just like “special gender” bathrooms. This culture of “me too” is both greedy and toxic.

    I could easily pout “why do Native Americans get land and special treatment from the government? Asians were really mistreated too in the past, so Asians also want a chunk of land and special treatment.” It would just be an endless cycle of bitch-protesting until everyone gets their way. It has to stop now.

  32. Forced labor is a form of slavery. We have a right to refuse service to anyone for any reason or no reason at all. It is only our government that may not discriminate between human beings and must not violate their inalienable rights (regardless of where they are or whether or not they’re citizens).

    On the plus side, any state law that violates a person’s right to refuse service is not really a law, because it’s null and void. But unfortunately, that hasn’t stopped them from trying to enforce such “laws.” The right to refuse service is an important individual right that we all share and should be upheld.

    Putting the political process in charge of who we serve is also a danger to society: governments almost always acheive the opposite of the stated benefit. Do we really want to tell people that they must serve cake to those listed by politicians? If you went to a wedding where the cake was baked under duress, would you risk eating it? Or would you be glad to reward the bigoted baker with an increase in sales?

    Frankly, I think it is better for society that bigots be able to express themselves by refusing service, and risky to force them to be underhanded and sneaky. Why would one advocate that rattlesnakes not be allowed to rattle?

    1. P.S. Government is our servant, not our master. Government can be forced to serve. Elected officials and bureaucrats are public servants, and must serve or quit. The rest of us can refuse service to anyone.

  33. The only right that anyone has to the services of a baker to bake anything is if the baker has agreed to bake something and then reneges. I think that’s what lawyers call a tort. If anyone did have a right to have someone bake something absent a contract or consent of some sort, then the baker would be enslaved to the requester – clearly a violation of the baker’s rights. This case isn’t (or at least shouldn’t be) about religion, gay marriage, speech, or any reason at all. It is (or should be) about freedom.

  34. Setting aside the question of whether the state should be involved in the business of marriage at all, I have always found the arguments supporting the baker’s rights to be specious. If we are going to regard cake decoration as an “art” then there is virtually no one who cannot fall back on that argument to refuse service to gay couples. A chef can refuse to cook for a gay couple because his work is “art.” A landscaper can refuse to contract with a gay couple because his craft is “art.” There is no end. Furthermore, the act of selling a cake is one of commerce not of approbation. There is no approval, conveyed or implied, in selling a gay couple a cake. Any more than there is when selling a cake to a divorcee, a jewelry thief, a congressman. The Bible warns: man shall not lie with man as he lies with woman, not that man shall not sell baked goods to men who lie with men. If public accommodation laws are going to protect the rights of blacks, Jews, Muslims, and other ethnicities and religions then they should protect gay Americans as well. Whether such public accommodation laws should exist at all…? That is a different question. Were the right of the baker to deny his services to gay couples part of a larger argument about accommodation laws, my answer to this question might be different. But really: we all know that this is simply about denying rights to gays, not rolling back laws that prevent businesses from determining who they will and will not serve.

    1. No one has a right to the labor of another.

      1. Morally? That’s between you and your code of ethics.

        Legally? No. There are plenty of cases where people do have that right.

          1. Cite

            Stupid Reaon comments.

            1. What, you mean besides taxes, the draft, non-discrimination laws, prison labor, and civil judgements?

              I feel like a bike record here, but you folk really need to distinguish between what the law *is* and what you *want* it to be. Being in denial of reality makes it harder for you to persuasively argue to change it.

              1. “…taxes, the draft, non-discrimination laws, prison labor, and civil judgements?”

                None of those give an individual the right to the labor of another.

  35. The issue is being misrepresented by the media and by many of the posters here.

    He is not refusing to bake a cake for gays. He is not refusing service to gays. They are welcome to shop in his bakery like anyone else.

    He is refusing to participate in the “marriage” ceremony by baking a cake with a message on his that contradicts with his views. He is refusing to put a message on a cake that contradicts his religious views.

    The couple getting married were, I suspect, welcome to come in and buy any cake that was on the shelf, but not to force him to put a congratulatory message on it.

  36. It’s painful to get into the weeds of stuff like “is a cake expression?” and “is this really a religious issue?” and so on.

    People should be free to buy from whoever they want, and they should be free to sell to whoever they want. We have this attitude that once you start engaging in trade (only as a SELLER, for some reason), you lose almost all of your rights, and the government has near-plenary power to control what you do. We’re insane.

    1. The government forces you to get a business license then they use it to strip you of your rights.

  37. But wouldn’t the same logic, the justices wanted to know, permit someone to turn potential clients away based on their race or religion as well? Could someone refuse to make a birthday cake for an African-American child by saying his religion tells him it’s wrong to “celebrate black lives”?

    This is an important legal question, because unlike sexual orientation, race and religion are protected classes at the federal level?and laws against discrimination on those grounds have been frequently upheld.

    Is sexual orientation a constitutionally protected class with the same status as race or religion? If not, I don’t see the constitutional issue.

    Deciding *what classes should be constitutionally protected* is a matter for the constitutional amendment process, not for judges to pull out of their asses. It’s not a judge’s job to decide which classes *should be* protected classes; it’s their job to faithfully apply the law according to which classes *are* constitutionally protected.

    1. Looking over the comments, I see a boatload about what *should be*, and next to nothing on what is *constitutional*


      1. Seeing as libertarians are notoriously bad at confusing what “should be” with what’s “constitutional”, that shouldn’t be a surprise.

      2. Well the Constitution also says only gold and silver coins are legal tender. It says nothing about health insurance. My point being the government doesn’t follow the Constitution anymore.

    2. Ogberfell opened the door for the Court at some point to say sexual orientation is a constitutionally protected class, hence why this case is already at SCOTUS. The logic in that case really only withstands scrutiny if you view same sex couples as a protected class. Why would progressives want to go through the difficult amendment process if they can get what they want via unelected gods who do will throw out the rule of law for them and replace it with the rule of “whatever we want today”?

      Judicial activism is the biggest reason I am not hating on Trump as hard as most people. The idea of Clinton appointing the replacement of Scalia, and potentially Kennedy, RGB, Thomas and others is terrifying. My biggest fear is Trump loses 2020, Kennedy retires and we get a SCOTUS that has 5 people who believe in a “living constitution” more than the rule of law. The next step will be saying the Civil Rights Act is a “living statute” that can be updated by SCOTUS whenever it wants.

      1. Sexual orientation is a protected class in Colorado already. Not at the federal level though, like religion.

      2. Non-discrimination laws that include sexual orientation predate Obergefel by decades. Even this case got started before that decision.

  38. “The case centers on whether a state may, in the interest of preventing discrimination, require a private baker to produce a custom wedding cake for a same-sex marriage celebration.”

    Colorado’s argument boils down to, in order to stop discrimination among two private parties, the state will will discriminate against the religious beliefs of one of those parties. Why do people love giving the state, with a monopoly on force, the power to discriminate to stop discrimination? What a nutty world

    1. Why do people love giving the state, with a monopoly on force, the power to discriminate to stop discrimination?

      Because most people are theocrats at heart, and want government to force us to do good, not just protect people’s rights.

    2. “Why do people love giving the state, with a monopoly on force, the power to discriminate to stop discrimination?”
      In my case, it’s a sense of “fair-play”.

      To put it simply, if I am legally obligated to ignore how your holy book literally calls for my death and serve you anyway, then I have no problem legally obligating you to to also ignore how your holy book literally calls for my death and serve me anyway.

      I would also accept both of us being free to consider your holy book’s text in making our decisions.

      But me being required to ignore it, while you get to consider it? There is no reason I should accept that.

      And before you or anyone else tries: no, I am not a Libertarian, and yes I know what insults you have for me and what you would like to do with a woodchipper.

      1. So in other words, you support the state using its monopoly on force to discriminate against people you do not like. Got it.

  39. The analogies to racism throughout so many of these comments are misplaced. I can love Justice Thomas, loath Justice Thomas, or not give a damn about him: TOMORROW, he still will be a Negro. Ruth Bader Ginsburg will be a Caucasian female, and the Chief Justice a Caucasian male. I cannot change that, and it’s silly to argue with 3 billion years of evolution or condemn someone for being byproduct of it.

    But, Homosexuals CHOSE whom they sleep with and CHOOSE how they do it, and this is true even if “sexual orientation” is fixed (which I seriously doubt). The Biblical prohibition (Lev. 18), from a time when men believed in gods and knew nothing of microbes, stigmatizes CONDUCT, not BEING. It is not bigotry to quote not the Bible but the Merck Manual, “the most widely read medical text in the world.” People engaging in anal intercourse are asking to be infected with deadly, incurable diseases through the lesions anal intercourse commonly causes. Maybe some day, this won’t be true, and Jewish prohibitions against anal intercourse will make no more sense than prohibitions against eating ((cooked) pork or (cooked) snails. Until that day, however, the rest of us have a right to condemn the practice and not be made to advance the militant homosexual agenda demanding the contrary.

  40. Prostitution is legal in Nevada as long as it is in a brothel. Does a straight female prostitute have the right to refuse services to a lesbian female? Should the prostitute be compelled by the state to perform such services?

    1. In order: Yes. No.

      Seriously people, Google shit before you ask stupid questions.

      1. Explain why this would or not be discrimination?

        1. Sorry, poorly worded question. Why would this or would this not be discrimination?

          1. Questions like this really highlight how ignorant you folks are about the laws you hate.

            Yes, it is sex-based discrimination. No, it’s not *illegal* sex-based discrimination.

            1. Alternate comeback: is discrimination not a synonyn of choice? sophistication? preference?
              Once you begin adopting the very terminology contrived by communo-fascist totalitarians as a weapon against individual rights, you surrender.

      2. “Google shit” is not an answer to any question.

        Provide your argument, please. Why would a straight female prostitute be permitted to refuse services to a lesbian female?

        1. As the saying goes, “give a man a fish […]”

          Also: (A) it’s not *my* argument. At best it would be a paraphrase. And (B) giving you, or anyone else, armchair analyst legal answers to your questions regarding how non-discrimination law works is a *charity*. I don’t owe you anything, you aren’t entitled to anything.

          So if you’re going to be a rude ass making demands, you can go fuck yourself with a rake (sideways).

          1. Bake my cake, bitch!

          2. Then I, who am not a rude ass (at least not intentionally), respectfully request that you explain the legal reasoning why the straight female sex worker is not required to serve the lesbian. It is a reasonable question.

  41. In order to overturn the state court decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court would have to either find that baking and decorating a cake is “speech”, or to expand the protection given to individuals and businesses under the First Amendment’s free exercise clause.

    The latter would throw out 139 years of jurisprudence. The Court decided in 1878, in Reynolds v. United States, that a law against polygamy did not violate the religious freedom of Mormons. From the Wikipedia article:
    ‘The Court investigated the history of religious freedom in the United States and quoted a letter from Thomas Jefferson in which he wrote that there was a distinction between religious belief and action that flowed from religious belief. The former “lies solely between man and his God,” therefore “the legislative powers of the government reach actions only, and not opinions.” The Court believed the First Amendment forbade Congress from legislating against opinion, but allowed it to legislate against action.’

    That would apply here. If (and I said *IF*) Congress or a state can legislate against discrimination in the marketplace, then religion is not a valid excuse.

    1. The case also involves freedom of speech.

  42. [continuing]

    The basic principle is that a “law of general application,” which does not discriminate for or against any religion, is valid even if it “burdens the practice of religion”: Employment Division v. Smith, 1990. That partly overturned Sherbet v. Verner, 1963, where a Seventh Day Adventist sued South Carolina: she was denied unemployment benefits because she refused to work on Saturdays. Also Wisconsin v. Yoder, 1972, where the Court ruled that a law that “unduly burdens the practice of religion” without a compelling interest, even though it might be “neutral on its face,” would be unconstitutional.

    The Religious Freedom Restoration Act (RFRA) attempted to restore the “compelling interest” standard, but the Supremes struck down the part that affected state and local governments. The RFRA still applies to federal laws.

    Another option would be to find that making and decorating a cake constituted speech. It is fairly well established that the government may not compel you to speak against your will, with narrow exceptions(*). So if decorating a cake is “artistic expression” and therefore “speech”, then Colorado’s ruling against Masterpiece would be unconstitutional.

    The majority of the Supreme Court appears to be skeptical of that argument. It’s a narrow argument, but consider three situations:


  43. [continuing]

    1. I go into a shop that provides stock images and will put a short slogan provided by the customer onto them (number of characters limited for practical reasons). The customer chooses the color, font, and location on where the slogan goes, all from a menu of choices provided by the shop.

    I choose an image, color, and font from their stock, and ask that they print me a copy with “Black Lives Matter” in the bottom center. They refuse, and I sue under federal and state laws against race discrimination. Should their refusal be protected because of “compelled speech”? [AS DISTINCT FROM OTHER REASONS]

    2. I go into a bakery and ask for a cake to be baked and decorated for my Jewish wedding. The bakery’s owner doesn’t like Jews and refuses. I sue under both the federal and state laws against religious discrimination. Should their refusal be protected under “compelled speech”? Note that no creative action is being requested. Just one of their standard cakes, with a standard design — in fact, the design is a licensed image of a Disney princess — and the message that I provided written in block letters.


  44. [continuing]

    3. A bakery advertises as one of its services that they will draw the bride and groom from photographs provided by the customer. The customer demands this service, providing photographs of a black groom and a white bride. The customer also demands that they write a “nice message for the couple” on the cake. THere’s a fair amount of artistry in translating photographs to drawn images, and in addition the customer is demanding that the bakery create the message to be written. The owner has a religious objection to interracial marriage. Should this bakery be exempt on the basis of “compelled speech”?

    I would argue that the first two are not “compelled speech” but the third is.


  45. [continuing]

    There is, of course, another option: the court could simply rule that people have a right to decide for themselves what they will do and what they will not in the marketplace, as long as their action or inaction does not violate somebody else’s inherent rights.

    This would be the right thing from a libertarian point of view. Maximum freedom, “Your right to swing your fist ends where my nose begins.” (and extends exactly that far).

    The problem of course, is that such a ruling would (a) be be way more than at least 6 and maybe 7 of the Justices is willing to do, and (b) be politically disastrous. While “gay rights” are still somewhat contentious in the US, laws against discrimination on the basis of race or religion are pretty widely accepted. [Even though a violation of individual rights as seen by us libertarians.]

    (*) For example, you can be compelled to testify in court (except for self-incrimination). And the “surgeon general’s warning on cigarette packages was held to be constitutional — at least partly because the speech was attributed to the Surgeon General — that is, the package quoted the Surgeon General, rather than pretending to speak for the tobacco company.

  46. I’m wondering if one of the liberal justices is about to become a Nazi? You know, like some liberal college professors who had the courage gall to suggest, “Guys, I feel this action right here – not all of it mind you, just this one little bit – might be a step too far …”

  47. Ironically, lawyers routinely refuse service to clients due to negative personal feelings about them, and no one suggests there’s anything wrong with that.

    1. Well, lawyers are a special class

  48. Some of the justicedas are leaning in favor of equal protection

    Had the Commission applied the same analysis
    that it used in Phillips’s case, punishment for those
    cake artists would have been undeniable. Both the
    Commission and the Court of Appeals held that
    CADA forbids cake artists from declining requests for
    reasons “closely correlated” to a protected
    characteristic. Pet.App.13a; accord Pet.App.70a
    (“inextricably tied”). The three cake artists’ reason for
    refusal was not just closely correlated to something
    protected under CADA, it was based squarely on a
    protected religious belief. Craig and Mullins’s
    suggestion that quotations of Bible verses on Bibleshaped
    cakes are not “closely associated” with religion
    cannot be taken seriously. C&M 52 n.8.

  49. We went through this in the 1980s on whether churches should be taxed. Much as I hate to side with the very mystical bigots who in Germany, Italy and These States have striven to replace individual rights with the initiation of force, I will not send men with guns to force them to bake a goddamn cake for anyone. I am confident that John Hospers would concur. Still, I do hear karmic laughter at God’s Own Prohibitionists suddenly being prodded with the initiation of force they themselves worship as THE preferred panacea for all problems, real or imaginary.

    1. The men with guns did not force them to decorate (not bake) the cake. Instead the men with guns took their money.

  50. Didn’t read any of the comments, but the obvious answer here is that they should invalidate the Civil Rights Act, because it is a bunch of bullshit in the first place!

    I’ve always liked the viewpoint that if people are overly racist/sexist/whatever then it is better for them to be able to out themselves. Then as a customer people can choose to support them or not. Obviously “No Blacks Allowed” bars would lose a lot of customers… Although I suspect in many areas they would stay in business too, which is what the progressives are afraid of. It is not allowed to not agree with their world view because it is blasphemy!

    Me myself, my bar would be “No Communists Allowed,” which would be pretty sweet!

    1. The public accommodations section of the original federal Civil Rights Act was a reasonable remedy for Jim Crow. Unfortunately, since then case law and overreaching state laws have expanded the definition of “public accommodation” to include virtually all retail businesses. The original act was crafted in recognition of the fact that it was an infringement on freedom of association and freedom of conscience. Today, no such restraint applies to public accommodations laws.

  51. If they can order you to bake a cake, what couldn’t they order you to do?
    We have entered an Age of Intolerance.

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  53. Religious beliefs are not special – they’re just beliefs. So fucking stupid. Your personal beliefs have no business in your business. Religion is for stupid people and stupid people do stupid shit. Let the market decide. The majority of consumers don’t want to do business with morons or enable their stupidity so these idiots will be out of business soon enough.

  54. I do not think the main issue is a free speech issue. It appears to be a private property issue. I am not infringing on anybody’s rights if I do not bake them a cake. No FORCE is used against them. My shop and my labor. If I have signs up that say “No Smoking” or “No shirt,No Shoes, No Service” am I infringing on people’s right to smoke or to go topless and shoeless? Of course not. Even forcing me to have a handicap bathroom stall is an infringement on MY property rights. ( Nothing against handicapped people, of course. It would probably be good for business also) Forcing people to do things with their private property that they do not wish to do means they do not own their property.

    1. “Forcing people to do things with their private property that they do not wish to do means they do not own their property.” Add “Unless there is a contract or special agreement”

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  57. The problem comes from the notion of a “public accommodation”. No person or business should be compelled to serve anyone. Any business should be able to refuse service for any reason or for no reason at all. That’s what liberty and freedom are all about. If you want to call it discrimination, OK. People discriminate every day in their private lives. They decide who to associate with or who to let in their homes. Discrimination law should only apply to employers and to the government.

  58. Sure they can. The State has guns, an army of cops and prisons.

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