Gay Wedding Cakes

[Analytics]

The scope of this thread is limited to discussing specific examples of when non-discrimination laws have punished people for not producing so-called "gay wedding cakes."  We are not talking about fanciful hypothetical situations, but rather what actual judges have ruled in real-life cases.  The purpose of this is to shed light on what non-discrimination laws do and don't do. 

 

The first example is Craig vs. Masterpiece Cake Shop.  Here is the actual court decision:

 

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&cad=rja&uact=8&ved=0CDIQFjAD&url=https%3A%2F%2Fwww.aclu.org%2Fsites%2Fdefault%2Ffiles%2Fassets%2Finitial_decision_case_no._cr_2013-0008.pdf&ei=q2UlVe6vLIfZsAWBzICYDA&usg=AFQjCNEKTCoLEWspSP__zgb-QQ1RmSRWfg

 

What actually happened is that Charlie Craig, David Mullins, and Charlie's mother Deborah Munn entered into Masterpiece Cake Shop, sat down at the cake consulting table with Jack Phillips, the owner of the store.  They said they wanted a cake for their wedding.  Phillips responded, "I just don't make cakes for same-sex weddings."  There was no discussion about what the cake would look like.

 

Did the judge make the right decision in this specific case?

[Analytics]

Phillips (i.e. the Christian wedding cake paker i.e. the Respondent) made at least one argument that is similar to some of the arguments that have been used on this board. Here is the Administrative Law Judge's (ALJ's) analysis:

 

Respondents argue that compelling them to prepare a cake for a same-sex wedding is equivalent to forcing them to “speak” in favor of same-sex weddings – something they are unwilling to do. Indeed, the right to free speech means that the government may not compel an individual to communicate by word or deed an unwanted message or expression. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (compelling a student to pledge allegiance to the flag “invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control”); Wooley v. Maynard, 430 U.S. 705, 715 (1977) (compelling a motorist to display the state’s motto, “Live Free of Die,” on his license plate forces him “to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable.”)

 

The ALJ, however, rejects Respondents’ argument that preparing a wedding cake is necessarily a medium of expression amounting to protected “speech,” or that compelling Respondents to treat same-sex and heterosexual couples equally is the equivalent of forcing Respondents to adhere to “an ideological point of view.” There is no doubt that decorating a wedding cake involves considerable skill and artistry. However, the finished product does not necessarily qualify as “speech,” as would saluting a flag, marching in a parade, or displaying a motto. United States v. O’Brien, 391 U.S. 367, 376 (1968) (“We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”)6 The undisputed evidence is that Phillips categorically refused to prepare a cake for Complainants’ same-sex wedding before there was any discussion about what that cake would look like. Phillips was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage. After being refused, Complainants immediately left the shop. For all Phillips knew at the time, Complainants might have wanted a nondescript cake that would have been suitable for consumption at any wedding.7 Therefore, Respondents’ claim that they refused to provide a cake because it would convey a message supporting same-sex marriage is specious. The act of preparing a cake is simply not “speech” warranting First Amendment protection....

[Analytics]

The "free speech" argument concluded with this:

 

Respondents argue that if they are compelled to make a cake for a same-sex wedding, then a black baker could not refuse to make a cake bearing a white-supremacist message for a member of the Aryan Nation; and an Islamic baker could not refuse to make a cake denigrating the Koran for the Westboro Baptist Church. However, neither of these fanciful hypothetical situations proves Respondents’ point. In both cases, it is the explicit, unmistakable, offensive message that the bakers are asked to put on the cake that gives rise to the bakers’ free speech right to refuse. That, however, is not the case here, where Respondents refused to bake any cake for Complainants regardless of what was written on it or what it looked like. Respondents have no free speech right to refuse because they were only asked to bake a cake, not make a speech.

[rockpond]

The scope of this thread is limited to discussing specific examples of when non-discrimination laws have punished people for not producing so-called "gay wedding cakes."  We are not talking about fanciful hypothetical situations, but rather what actual judges have ruled in real-life cases.  The purpose of this is to shed light on what non-discrimination laws do and don't do. 

 

The first example is Craig vs. Masterpiece Cake Shop.  Here is the actual court decision:

 

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&cad=rja&uact=8&ved=0CDIQFjAD&url=https%3A%2F%2Fwww.aclu.org%2Fsites%2Fdefault%2Ffiles%2Fassets%2Finitial_decision_case_no._cr_2013-0008.pdf&ei=q2UlVe6vLIfZsAWBzICYDA&usg=AFQjCNEKTCoLEWspSP__zgb-QQ1RmSRWfg

 

What actually happened is that Charlie Craig, David Mullins, and Charlie's mother Deborah Munn entered into Masterpiece Cake Shop, sat down at the cake consulting table with Jack Phillips, the owner of the store.  They said they wanted a cake for their wedding.  Phillips responded, "I just don't make cakes for same-sex weddings."  There was no discussion about what the cake would look like.

 

Did the judge make the right decision in this specific case?

 

I think he made the right decision within the confines of state law.  But, I believe, under our federal constitution the baker should have been able to decline.

Edited April 8, 2015 by rockpond

[Brian 2.0]

Good thread, Analytics.

I think the judge made the right decision. And I think the laws behind the decision are right as I believe sexual orientation should be a protected class against discrimination from businesses just as race and sex are.

[Analytics]

I think he made the right decision within the confines of state law.  But, I believe, under our federal constitution the baker should have been able to decline.

 

The baker argued that his Constitutional rights of freedom of speech and freedom of religion take precedence over the public accommodation law in this case.  The judge considered those arguments and rejected them.  What I posted above is a fair summary of why he rejected the freedom of speech claim.  The freedom of religion argument is more complicated and has to do with esoteric things such as whether this is a "hybrid claim" that merits "strict scrutiny."  

 

Can you elaborate on what Constitutional rights would be violated if he were forced to decorated a simple, generic wedding cake for this event?

[Mormonmaniac]

I disagree based on the angle of ones work is a representation or extension of what they condone and support. Suppose for instance that a gay couple came into the bake shop and requested 2,000 cupcakes that would be at a celebratory event in favor of a court case that had just ruled against a Christian church? Should the Christian baker be able to deny that service because it would indeed show support for a cause or ruling against him and his beliefs? Who cares whether the cupcakes are just plain standard cupcakes or are written with pro-gay words or decorations, that is not the point. The point is the "cause" and where free speech comes into play. In the case cited above, the baker is refusing to serve them because of the "cause" it supports which he is firmly against. That cause of course is "same sex marriage". He has a right under the constitution to worship and believe as he wishes. His business is an extension of his beliefs and practices- its a type of ministry where he serves others in doing what he believes is Gods will of how traditional marriage is defined.

[rockpond]

The baker argued that his Constitutional rights of freedom of speech and freedom of religion take precedence over the public accommodation law in this case.  The judge considered those arguments and rejected them.  What I posted above is a fair summary of why he rejected the freedom of speech claim.  The freedom of religion argument is more complicated and has to do with esoteric things such as whether this is a "hybrid claim" that merits "strict scrutiny."  

 

Can you elaborate on what Constitutional rights would be violated if he were forced to decorated a simple, generic wedding cake for this event?

 

It's just my crazy libertarian views.  I know that a majority of judges in the country do not see it my way and that's why we have laws like the one that the judge supported in his decision.  But I do see it as a first amendment issue with maybe a little 13th amendment thrown in.

 

The gay couple should have the right to a legally recognized marriage.

The baker should have the right to bake or not bake a cake for the happy couple... for whatever reason.

And a Christian should absolutely bake the cake, make the best one possible, and hand deliver it to the wedding because that's what we're called on to do as disciples of Christ.

 

In my humble opinion.

[thesometimesaint]

I disagree based on the angle of ones work is a representation or extension of what they condone and support. Suppose for instance that a gay couple came into the bake shop and requested 2,000 cupcakes that would be at a celebratory event in favor of a court case that had just ruled against a Christian church? Should the Christian baker be able to deny that service because it would indeed show support for a cause or ruling against him and his beliefs? Who cares whether the cupcakes are just plain standard cupcakes or are written with pro-gay words or decorations, that is not the point. The point is the "cause" and where free speech comes into play. In the case cited above, the baker is refusing to serve them because of the "cause" it supports which he is firmly against. That cause of course is "same sex marriage". He has a right under the constitution to worship and believe as he wishes. His business is an extension of his beliefs and practices- its a type of ministry where he serves others in doing what he believes is Gods will of how traditional marriage is defined.

 

The point comes in where the baker who is in the business of baking thousands of cakes for the public can legally refuse to bake those thousands of cake for someone based on race, creed, color, religion, national origin, sex, and increasingly sexual orientation.

[Mormonmaniac]

The point comes in where the baker who is in the business of baking thousands of cakes for the public can legally refuse to bake those thousands of cake for someone based on race, creed, color, religion, national origin, sex, and increasingly sexual orientation.

Its for the "cause" that effects his free speech. This isnt merely about discrimination based solely off of an individuals sexual preferences. Its about the offense their "cause" is having on his beliefs.

[Brian 2.0]

It's just my crazy libertarian views.  I know that a majority of judges in the country do not see it my way and that's why we have laws like the one that the judge supported in his decision.  But I do see it as a first amendment issue with maybe a little 13th amendment thrown in.

 

The gay couple should have the right to a legally recognized marriage.

The baker should have the right to bake or not bake a cake for the happy couple... for whatever reason.

And a Christian should absolutely bake the cake, make the best one possible, and hand deliver it to the wedding because that's what we're called on to do as disciples of Christ.

 

In my humble opinion.

 

I see your view.  And don't think you are nut or a bigot or anything at all.  And I actually like a bit of of "crazy libertarian" stuff sometimes and I used to tout its merits myself... but it's just gets really messy when a majority starts to act in a way that disempowers or slights a minority group.  I'm not saying that is fully happening right now, but it definitely has in the past which is why we have some of these laws on the books protecting such a thing from happening. 

Edited April 8, 2015 by Brian 2.0

[thesometimesaint]

Its for the "cause" that effects his free speech. This isnt merely about discrimination based solely off of an individuals sexual preferences. Its about the offense their "cause" is having on his beliefs.

 

 

Interracial marriages offended many including prominent leaders of the Church. It certainly offended Virgina enough to outlaw it until Loving v Virginia

SEE http://en.wikipedia.org/wiki/Loving_v._Virginia

[Brian 2.0]

Its for the "cause" that effects his free speech. This isnt merely about discrimination based solely off of an individuals sexual preferences. Its about the offense their "cause" is having on his beliefs.

 

Just to be clear on where you are coming from...

 

Would support a law making it illegal for the baker to refuse baking a plain cake that would be used for a gay person's birthday or graduation?

Edited April 8, 2015 by Brian 2.0

[Brian 2.0]

Just to be clear on where you are coming from...

 

Would support a law making it illegal for the baker to refuse baking a plain cake that would be used for a gay person's birthday or graduation?

 

I guess that doesn't even work.  Because of Jahovah's witness could say they don't support the "cause" of birthdays so they could refuse to bake a plain cake for a customer once they found out it would be used for a birthday event.

[Analytics]

Here is the actual ruling of the Oregon case (i.e. Sweet Cakes by Melissa):

 

http://www.oregon.gov/boli/SiteAssets/pages/press/BOLI%20Sweet%20Cakes%20Interim%20Order.pdf

 

The basic arguments and conclusions are the same as Colorado:

 

1- Arguments such as, "I have no problem baking cakes for Mormons.  I just refuse to bake cakes for Mormon weddings" are not convincing: refusing to perform services because you are prejudiced against Mormon weddings is the same thing as refusing to perform services because you are prejudiced against Mormons.

 

2- Defenses relating to a Constitutional right of freedom of religion and freedom of speech would hold water if actual practice of religion or actual speech were being requested.  Baking cakes is neither speech nor the exercise of religion.  

 

3- If the cake maker were asked to write something he found offensive on the cake, or if he were asked to actually participate in the wedding ceremony, freedom of religion and freedom of speech defenses would hold.  But again, preparing a wordless at a cake-making business that is subject to public accommodation laws is neither neither speech nor religion.

 

It's clear that the same legal principles are being consistently applied in both cases.   

[Brian 2.0]

3- If the cake maker were asked to write something he found offensive on the cake, or if he were asked to actually participate in the wedding ceremony, freedom of religion and freedom of speech defenses would hold.  But again, preparing a wordless at a cake-making business that is subject to public accommodation laws is neither neither speech nor religion.

 

This is where the rubber meets the road a little in other cases (such as a photographer).  So if the wedding cake provider offers a "full-service" option where they deliver the cake, set it up, cut it all into slices and onto plates after the first cut is made by the same-sex couple... is that crossing over into "participating in the wedding ceremony"?

Edited April 8, 2015 by Brian 2.0

[rockpond]

I see your view.  And don't think you are nut or a bigot or anything at all.  And I actually like a bit of of "crazy libertarian" stuff sometimes and I used to tout its merits myself... but it's just gets really messy when a majority starts to act in a way that disempowers or slights a minority group.  I'm not saying that is fully happening right now, but it definitely has in the past which is why we have some of these laws on the books protecting such a thing from happening. 

 

Yeah, and I understand that logic as well.  So I understand how/why those laws came to be.  I guess I just feel that, right now... in this period of America's development, the non-discrimination laws and the corresponding RFRA laws, are just pushing both sides further apart.  It's painful to watch but I don't have a great solution either.

[california boy]

I disagree based on the angle of ones work is a representation or extension of what they condone and support. Suppose for instance that a gay couple came into the bake shop and requested 2,000 cupcakes that would be at a celebratory event in favor of a court case that had just ruled against a Christian church? Should the Christian baker be able to deny that service because it would indeed show support for a cause or ruling against him and his beliefs? Who cares whether the cupcakes are just plain standard cupcakes or are written with pro-gay words or decorations, that is not the point. The point is the "cause" and where free speech comes into play. In the case cited above, the baker is refusing to serve them because of the "cause" it supports which he is firmly against. That cause of course is "same sex marriage". He has a right under the constitution to worship and believe as he wishes. His business is an extension of his beliefs and practices- its a type of ministry where he serves others in doing what he believes is Gods will of how traditional marriage is defined.

 

You seriously believe that EVERY cake, cupcake, cookie, loaf of bread etc. sold means the baker supports each and every event the baked goods are purchased for?????

[carbon dioxide]

1- Arguments such as, "I have no problem baking cakes for Mormons.  I just refuse to bake cakes for Mormon weddings" are not convincing: refusing to perform services because you are prejudiced against Mormon weddings is the same thing as refusing to perform services because you are prejudiced against Mormons.

There is an easy fix to that if that was to happen.  Just don't tell them you are a Mormon or don't tell them it is for a wedding or tell them it is for a non-Mormon wedding.  I am just glad I am not a photographer, florist (I personally hate flowers) and only bake for my family or someone in my ward.    So I never have to worry about this. 

[Analytics]

There is an easy fix to that if that was to happen.  Just don't tell them you are a Mormon or don't tell them it is for a wedding or tell them it is for a non-Mormon wedding.  I am just glad I am not a photographer, florist (I personally hate flowers) and only bake for my family or someone in my ward.    So I never have to worry about this. 

 

In other words, lie to the baker in order to trick him into obeying the law.

[Brian 2.0]

There is an easy fix to that if that was to happen. Just don't tell them you are a Mormon or don't tell them it is for a wedding or tell them it is for a non-Mormon wedding. I am just glad I am not a photographer, florist (I personally hate flowers) and only bake for my family or someone in my ward. So I never have to worry about this.

Don't ask, don't tell

[jwhitlock]

We got a wedding cake for my son's wedding receiption and the baker stipulated that it could be the only cake used at the receiption. We had to agree not to buy a Costco cake or anything else to go along with it. The reasoning was that if another cake was served along with it, the people eating it might assume that they came from the same place. The baker didn't want any such association; she indicated it would be detrimental to her business reputation.

 

Is the baker allowed to make this stipulation from a legal standpoint? If the baker is allowed to stipulate how and where the cake will be used, what's the difference between what we experienced and a baker specifying that the cake cannot be used at a SSM wedding?

[thesometimesaint]

She has a legal right to ask. You are under no legal obligation to agree or even follow through with the agreement made under duress.

[jwhitlock]

She has a legal right to ask. You are under no legal obligation to agree or even follow through with the agreement made under duress.

 

So how would that be different than a baker being asked to make a cake for a gay wedding?

[carbon dioxide]

We got a wedding cake for my son's wedding receiption and the baker stipulated that it could be the only cake used at the receiption. We had to agree not to buy a Costco cake or anything else to go along with it. The reasoning was that if another cake was served along with it, the people eating it might assume that they came from the same place. The baker didn't want any such association; she indicated it would be detrimental to her business reputation.

 

Is the baker allowed to make this stipulation from a legal standpoint? If the baker is allowed to stipulate how and where the cake will be used, what's the difference between what we experienced and a baker specifying that the cake cannot be used at a SSM wedding?

How would the baker know that you followed through with that unless she was there the whole time.