December 16, 2014

A surprisingly sympathetic article about the asserted right to decline to make cakes/floral arrangements/photographs for a same-sex wedding.

... in the NYT. There's also an excellent video — excellent other than a big on-screen misspelling ("accomodation") — about one very sincere and appealing cake decorator who was ordered by the Colorado Civil Rights Commission "to retrain all of his employees, who include his 87-year-old mother, and to produce a quarterly report detailing any refusals to bake." (It's not a refusal "to bake," I would emphasize, but a refusal to decorate. He's not refusing to bake cakes for gay people, if they want a cake without the message he believes God forbids him to express.)
“I do like doing the wedding cakes,” he said. “But I don’t like having the government tell me which ones I can make and which ones I can’t make, and trying to control that part of my life.”...

There have been more than a half-dozen other instances of business owners, most citing their understanding of Christian faith, declining to provide services for same-sex weddings....

[T]he defenders of the shop owners argue that creating an artistically involved or personalized service for a same-sex wedding is a form of expression that should not be compelled by the government. They reject the discrimination charge, noting that many of the businesses have gay and lesbian customers, and, in some cases, employees....

On a recent day, as Mr. Phillips decorated what he expected would be his final wedding cake until the issue was resolved — an elegant assemblage of gray and white tiers decorated with hydrangea, calla lilies and gerbera daisies — he reflected on his unexpected role in the debate. 
That description of the cake — and the sight of it in the video — has great persuasive effect, I think, on the minds of those who are most likely to resist the idea that some anti-gay-marriage baker has significant free speech rights. I suspect that many of the people on the anti-discrimination side of this argument were picturing a less elegant cake and a less thoughtful cake decorator.

I'm glad to see the NYT producing this article and video, especially after the way Linda Greenhouse treated the issue last spring, which I criticized here:
Bakers?! Isn't that like calling a fashion designer a seamstress? The "bakers" who are resisting government compulsion are wedding cake decorators. At some point, wedding cake decorating is an art, and maybe Linda Greenhouse thinks it's a low art, but please [look at some elegant wedding cakes]....

Where is the low and where is the high when it comes to expression deserving of freedom from government compulsion?...

... I'm stunned by Greenhouse's... phrase: "Despite its free-speech garb, the religious essence of Elane’s argument is clear...." This is horrifying, for at least 3 reasons: 1. The quick disparagement of expression rights as a flimsy coverup ("garb"). 2. The failure to recognize the interrelatedness of expression and religion — religion is expression and expression is often about or motivated by religion. (There's a reason free speech and freedom of religion were written into the same constitutional amendment.) 3. The most important speech is speech that has a core of deep and true belief, so if there's religious essence seeking protection under free-speech garb, the reasoning that begins with "Despite..." is garbage.

38 comments:

SomeoneHasToSayIt said...


Fascism is a phenomenon of the Left.

Brando said...

For those of us opposed to anti-gay discrimination but also supportive of both religious liberty and the right of businesses to cater to who they choose, this presents an interesting issue. Generally, these things can be reconciled with the free market approach--discrimination in any sense is wrong, but it's your choice to do so and people can take their business elsewhere. If you choose to turn down profits and harm yourself for the sake of your beliefs, that's up to you. Live and let live.

Where I think this idea became problemmatic was in the context of racial discrimination (culimating in the 1964 Civil Rights Act). At that time, in many if not most parts of the country the discrimination against blacks was so widespread that there simply weren't reasonable options for blacks--many towns would have no restaurant catering to them, or jobs available to them, and the discriminating businessmen would argue--not unreasonably--that even if they wanted to serve blacks, they would do so at the risk of losing far more white customers who'd object. The free market could not in the near future correct the racial discrimination problem naturally.

I don't see that as the same case here, with "anti-homosexual" discrimination. While there may be some towns somewhere where the only bakery around refuses to decorate a cake for a gay marriage, we're not talking about denial of more essential or regular services (e.g., a grocery store not letting gay people shop there) and frankly, if push came to shove, most people could decorate a cake themselves. Plus, attitudes regarding homosexuals have changed a great deal in the past couple decades, and are likely to continue to do so. This isn't really something to make too big a stink out of.

pm317 said...

My immediate reaction is what despicable couple of people to sue this guy and take away his (and others) livelihood. And he has the grace to end the video by saying it is an important issue and that if he has to be part of it, so be it. He has his freedom of speech and religious freedom. And the government singling him out to do this and that, has the discrimination angle. However, the question for me is when is discrimination real and harmful and is this one of it?

tim maguire said...

Can they continue to make cakes that look very much like wedding cakes, but are called something else?

Ann Althouse said...

"Can they continue to make cakes that look very much like wedding cakes, but are called something else?"

If you watch the video, you'll see that Phillips's method has been to sit down with the couple and find out about them in order to get inspiration to make a cake just for them. That's the service.

He could reconfigure his business to just make generic wedding cakes and not inquire into who's getting married. That might solve his spiritual problem, but it is forcing him to change the nature of the service from something that was individualistically expressive to something that lacks a dimension of expression that had been important to him.

Michael K said...

Cake decoration is only discrimination if you are not gay.

So we at Shoebat.com called some 13 prominent bakers who are either gay or pro-gay and requested that they make a pro-traditional marriage cake with the words “Gay marriage is wrong” placed on the cake. Each one denied us service, and even used deviant insults and obscenities against us. One baker even said that she would make me a cookie with a large phallus on it.

That's OK, though.

Skyler said...

"“It’s a clear, well-settled proposition that businesses who open the door to the public must serve the public,” said Evan Wolfson, the president of Freedom to Marry, an organization advocating same-sex marriage."

And therein lies the problem. Freedom means being free. A free people should be able to discriminate as they wish.

That way we know who is a racist. Or who is a bigot. Or who has morals. Or who agrees with us.

But more importantly, it's how we know that we are free.

Bob R said...

The problem with letting people trash the rights speech and association - even when there are good reasons - is that it's such fun. A joyful Linda Greenhouse will stamp her Joan and David in your face forever.

sinz52 said...

There are other wedding-related services that come even closer to artistic freedom of expression: Musicians, Wedding photographers, designers of personalized greeting cards, and portrait painters.

The Civil Rights Act of 1964 required any private business, even if engaged in a creative endeavor, not to discriminate.

Evidently a lot of folks didn't realize how this could trample on the First Amendment, when the business involved artistic freedom of expression.

Well, now they know.

tim maguire said...

Ann Althouse said...it is forcing him to change the nature of the service from something that was individualistically expressive to something that lacks a dimension of expression that had been important to him

No, in keeping with what seems to be your theme this morning, he doesn't need to do any such thing. He can have a nice chat with a nice young couple and be inspired to make a cake for them, with which they are free to do whatever they want. It's none of his concern if what they want is to use it in a wedding. And it's not his fault if he is not inspired to make a special cake for them. Such is the fickleness of inspiration.

Henry said...

The video is excellent.

As this is an expression of public accommodation law, it can be changed at the state level. I predict that it will become a legislative issue in those states where it can become a legislative issue (yes in Colorado; no in New York).

A court victory by a same-sex couple could lose the war if it leads to the overturning of public accommodation laws banning same-sex discrimination.

Preferable, in my opinion, is some accommodation within such laws for religious observance in the context of personal services.

pst314 said...

Brando "Where I think this idea became problemmatic was in the context of racial discrimination (culimating in the 1964 Civil Rights Act)..."

The issue at hand is not one of "we don't serve your kind", despite the constant misrepresentations of so many leftists. If one wants to make a fair comparison to the racial controversies of the sixties, a fair analogy would be a baker who happily sells break and cakes to all regardless of race, but who declines to decorate a cake with a political message he disagrees with ("Happy birthday Stokely Carmichael" or "Revolution Now!")

Jack Wayne said...

I wonder when Americans will realize that the
constitution is mostly just a scrap of useless paper? Except for a few rights - implemented AGAINST the desires of the 3 statists who pushed the
Constitution - we would be in figurative chains like most of the world.

chillblaine said...

The baker is impairing the gay's pleasure and convenience because the gay is continually uncertain of finding gay cakes. There is evidence that this uncertainty stemming from discrimination had the effect of discouraging marriage on the part of a substantial portion of the gay community.

Fernandinande said...

SomeoneHasToSayIt said...
Fascism is a phenomenon of the Left.


phenomenon -> subset.

Let them eat wedding cake.

Brando said...

"The issue at hand is not one of "we don't serve your kind", despite the constant misrepresentations of so many leftists. If one wants to make a fair comparison to the racial controversies of the sixties, a fair analogy would be a baker who happily sells break and cakes to all regardless of race, but who declines to decorate a cake with a political message he disagrees with ("Happy birthday Stokely Carmichael" or "Revolution Now!")"

Yeah, this isn't exactly like racial discrimination in that sense. But the main principle--the right to refuse service for any reason--remains the same. With racial discrimination 50 years ago, the problem was widespread enough (and affected far more fundamental needs, like ability to live in a neighborhood, attend schools, feed the family or get a job) that it trumped the idea that businesses should have an absolute right to deny services (or hire who they want). I don't see that really applying in the gay rights context, even though I oppose anti-gay discrimination in general.

jacksonjay said...

This hater did not get the word. IT'S OVER, asshole! Free Fucking Speech has nothing to do with it! You will comply!

The guy really is an artist! He just failed to connect with "the correct people."

Shanna said...

"“It’s a clear, well-settled proposition that businesses who open the door to the public must serve the public,”

Which would be fine, if he was selling a standard cake in a store. He's not, though. He is creating a specific thing for a specific occasion. That was always my issue with this. A wedding cake is a huge thing and this information about his artistic process is very interesting for putting this instance in context.

Personally, it is hard to understand why someone would turn down business - but if he is very good at what he does he is probably in high demand at peak times and has to pick and choose. I wondered if that was the case.

Also, as a general rule, you never want to piss off the people making your food.

jacksonjay said...

"We don't do Halloween cakes and we don't do adult themes."

Well, we'll see about that, asshole!

EDH said...

I still think the "You're Gonna Burn in Hell" themed wedding cake is the solution. Could the government go so far as to proscribe or prescribe the content of the required religious inspired speech once the decorating service is offered?

sean said...

However shocked Prof. Althouse may be, the majority of federal judges and law professors agree with Greenhouse's analysis, not with Althouse's. Having promoted gay marriage so enthusiastically, Althouse should acknowledge that she and her comrades have trampled on other people's First Amendment rights, rather than protesting, "O, I didn't mean that."

Bart Hall (Kansas, USA) said...

People really do not understand the power-of-government implications here.

If pork is a legal product, government can mandate that Jewish and Muslim merchants sell it, despite any religious objections.

And any product or service the government can mandate be offered a future government can quite equally *prohibit*.

Too much government power can cut both ways, especially if (as has happened in the past) that government chooses quite simply to ignore couts decisionsl

tim in vermont said...

I hadn't thought of it that way, but isn't it also a long settled legal principle that "You can't make the producer hire the singer, and you can't make the singer sing?"

- They stomp on the first amendment.
- They are working on the second, as we speak.
-They deny the accused the right to confront their accuser or to a defense.

What scum these lefties are.

Hagar said...

If we are down to discussing whether a wedding cake or photograph is "art" or not, this obviously is not a major social issue and does not need a military solution.

Michael The Magnificent said...

Having promoted gay marriage so enthusiastically, Althouse should acknowledge that she and her comrades have trampled on other people's First Amendment rights, rather than protesting, "O, I didn't mean that.

Indeed. If the jackboot fits...

Jupiter said...

Brando said ...
"At that time, in many if not most parts of the country the discrimination against blacks was so widespread that there simply weren't reasonable options for blacks--many towns would have no restaurant catering to them, or jobs available to them, and the discriminating businessmen would argue--not unreasonably--that even if they wanted to serve blacks, they would do so at the risk of losing far more white customers who'd object. The free market could not in the near future correct the racial discrimination problem naturally."

That is simply false. Discrimination was required by law. It would have been entirely possible for the CRA to simply eliminate the legal apparatus of discrimination, by regulating the actions of governments, without impairing the rights of private citizens to make use of their property as they saw fit. There is no way of knowing what this might have accomplished, because it was never tried.

jr565 said...

tHIS whole issue is brought about because instead of creating a civil union for gays they redefinied marriage to also include gay marriage. Prior to this there is no religious issue since the civil marriage and the religious marriage were the same formula, and so there would be no reason to invoke any sort of objection. (Even if those marrying weren't necessarily religious they were still marrying in a way endorsed by the church). But now the govt is saying gay marriage is marriage, and not changing its name in any way thus forcing said bakers to bake cakes for wedding that now no longer conform to their religious view.

It would be similar to the idea that jews only serve kosher foods. THen govt steps in and decides that other non kosher food should also be kosher, and call it kosher. And then demand that kosher delis serve it because it's kosher under law.
Civil society therefore forced this conflict on religious types, not the other way around.

Bryan C said...

"There are other wedding-related services that come even closer to artistic freedom of expression: Musicians, Wedding photographers, designers of personalized greeting cards, and portrait painters."

For the purposes of government compelled speech let's just say they're all equal. They're already suing wedding photographers, BTW.

"Evidently a lot of folks didn't realize how this could trample on the First Amendment, when the business involved artistic freedom of expression."

Actually most everyone did. Which is why "public accommodation" was seen as distinct from a privately contracted service. The distinction was deliberately muddied by people who cared less about freedom or discrimination than about expanding their power to control and censor people by threat of force. Any excuse will do.

Julie C said...

There used to be a bakery in Oakland called Your Black Muslim Bakery (now closed due to major crimes being committed by owners etc. - it's in Wikipedia).

I don't think they would have done a wedding cake for a gay marriage. In fact, I read somewhere that they wouldn't serve you if you were white and stupid enough to go in and try to buy something.

Doubtful anyone would have the guts to sue them, though.

Richard Dolan said...

The ACLU (both the NYC office and a Colorado office) is serving as co-counsel to the couple suing Masterpiece Cakeshop. They've come a long way since Skokie.

W James Casper said...

"This whole issue is brought about because instead of creating a civil union for gays they redefinied marriage to also include gay marriage. Prior to this there is no religious issue since the civil marriage and the religious marriage were the same formula, and so there would be no reason to invoke any sort of objection."

In my opinion you have it exactly backward, in that legislators never should've inserted the word for a religious sacrament into secular law. As far as the state is concerned, all legal unions should be civil unions, leaving the sacrament marriage to be defined by one's place of worship. The state can agree to recognize a sacred marriage as a civil union for the purposes of civil law (or not), but cannot define what sacred marriage is and is not for anyone's faith or place of worship. And the church should have no more say in defining what a civil union is and is not than any other citizen, either.

S'never going to happen that way, but that's how I think it ought to be...

That said, I reluctantly have to come down on the side of viewpoint discrimination in these matters and against public accommodation--in the case of creative businesses, at least. (I'm less swayed in cases involving more generic fare such as venues available for use by the general public...but even there, I'm on the fence.)

While I think it's awful that any business would choose to turn potential customers away because they're availing themselves of the legal right to unite, I think businesses ought to have the right to do so. (I'd also like to see big signs in the windows of "welcoming" businesses -- "We proudly serve all," or some such thing -- and lists of those who choose not to be so welcoming, as well -- because frankly, I don't want to give my business to those who choose to discriminate -- but I agree that this isn't the same situation as Jim Crow laws, and most folks will find another bakery or photographer.

Like Skyler said above (12/16/14, 7:40 AM), I want to know who--well, not who the bigots are exactly, but who is willing to stand up for or against what--and the only way to know that is to let people express their views.

jr565 said...

"In my opinion you have it exactly backward, in that legislators never should've inserted the word for a religious sacrament into secular law. As far as the state is concerned, all legal unions should be civil unions, leaving the sacrament marriage to be defined by one's place of worship. The state can agree to recognize a sacred marriage as a civil union for the purposes of civil law (or not), but cannot define what sacred marriage is and is not for anyone's faith or place of worship. And the church should have no more say in defining what a civil union is and is not than any other citizen, either."

The point being that whether it was religious or civil,it was the same definition. So if a Christian was making wedding cakes it eoncompasses his view of marriage by default. And so he would never challenge it on religious grounds since there was no conflict.
If he was selling wedding cakes and a polygamist came to him and wanted him to bake a wedding cake, he could say "well polygamy is not defined as a wedding legally, nor is it in my religion to have marriage be defined that way". ANd my guess is they wouldn't be required to bake the cake. Nor would the govt go after them if they didnt'.

Incidentally gay marriage wasn't legal in the sate when this challenge was made, so govt was compelling bakers to bake cakes for weddings that they themselves hadn't recognized legally yet.

The Godfather said...

I've told my Gay friends for years that the same liberal (or, if you prefer, libertarian) principles that lead me to support their right to marry, equally lead me to support the rights of others not to participate in such a marriage ceremony. I wish this issue weren't being framed as a religious freedom issue, because an atheist opponent of Gay marriage ought to have the same right not to participate by decorating a cake or playing the organ or whatever.

RecChief said...

the reason the NYT is surprisingly sympathetic is that there are gay bakers on tape, refusing to make cakes for non-supporters of gay marriage. Duh

W James Casper said...

"I wish this issue weren't being framed as a religious freedom issue, because an atheist opponent of Gay marriage ought to have the same right not to participate by decorating a cake or playing the organ or whatever."

Yep. I have to agree with that, too.

But for the libertarians and liberaltarians among us who believe that folks ought to have the freedom to discriminate on the basis of viewpoint (the business's or the customer's), and given that the pervasive discrimination (both in law and in custom) that led to the accommodation section of the civil rights act for the most part no longer exists, the question becomes whether we'd advocate for the repeal of public accommodation laws altogether, and let people refuse service to anyone for any reason.

In the name of freedom anyway, I find the argument compelling...

(I'd like to think that any business refusing service to black people, Christians, or men--just because they are black, Christian or male--would fail... I'd like to think that, but I'm not so sure...)

JamesB.BKK said...

The State has no business being involved in marriage. Coercing blood tests is not sufficient. Taxing differently based on relationship status is evil. Marriage should not confer power to make life or death decisions on others. Only consent should do that.

b33z3lbub said...

If you watch the video, you'll see that Phillips's method has been to sit down with the couple and find out about them in order to get inspiration to make a cake just for them. That's the service.

He could reconfigure his business to just make generic wedding cakes and not inquire into who's getting married. That might solve his spiritual problem, but it is forcing him to change the nature of the service from something that was individualistically expressive to something that lacks a dimension of expression that had been important to him. WOW! This guy really gets into making these cakes. I was wondering if he might be gay. ???

DKWalser said...

I've never understood how the courts could so easily dismiss the free expression arguments against forcing artists such as cake decorators and photographers to use their art to celebrate something the artists disagree with. Topless dancers seemingly have greater claim to 1st Amendment protections than do cake decorators.