I don’t think that’s clear cut at all. If you were a cake decorator would you on the same basis be willing to decorate a cake with “all homos are going to hell”, just shrugging it off as doing your job to express somebody else’s opinion? I certainly wouldn’t, and I would reject the notion that this disqualifies me from running a cake decorating business, or from running a cake decorating business that would decorate a cake with a pro-SSM message.
That’s why I think free speech trumps anti-discrimination when we’re talking about generalized political slogans. Anti-discrimination should apply to discrimination against particular people getting a similar service such as a hotel room, or a cake decorate with their names and those litltle model figures.
Any business can refuse whatever customers it doesn’t like, as long as that discrimination is not because of race, national origin, or religion, or in some localities, sexual orientation.
So I would think that if prostitution is legal, a sex worker couldn’t discriminate because the race or religion of the customer. They could however discriminate on other qualities however they like.
Which makes me wonder - are any places where prostitution is legal, also places where sexual orientation is a protected class under civil rights laws? Would a sex worker be able, in those places, to be able to refuse service to someone of the same sex? Hmmm
My understanding is that any business owner can refuse service on subjective or even whimsical grounds (I don’t like the look of you, I don’t serve people whose names begins with “S”), provided that’s not cover for a true motivation of excluding a protected class.
The more entertaining example is surely the question of whether (say) a heterosexual prostitute can refuse same-sex clients in a jurisdiction where (a) prostitution is legal and (b) sexual orientation is protected!
The most real-world example of this I can think of would be male strippers hired to perform for a group of men, and refusing to perform. Has this happened? Is it actionable?
You could imagine a stripper (or prostitute) that refused to give a lap dance to a black man. I can imagine the brief: Question presented: Is a woman a public accommodation?
Also, there is the Chippendale’s example from California where banning men from a show of male exotic dancers was impermissible sex discrimination.
I addressed this earlier. Denying a customer use of the machine to write a message is denying them the exact same service provided to others. Take it a little further though, the bakery may have a self-service system, but all messages entered through the keyboard require approval first. Maybe that’s the point where the bakery would have to disallow explicitly political speech to maintain fairness.
When there is no machine it’s a little tougher to deal with the cake in the OP though, it requires a picture and writing (which is also creative expression in form because it’s not machine generated). Should the state be able to compel the baker to produce such expressions? Aside from this message pertaining to this protected class what other messages should the baker be compelled to produce in a fair society?
Yeah, the sex worker or exotic dancer question would fall more under sex discrimination rather than same-sex provisions of civil rights laws, it would seem to me. Sex isn’t a protected class under the Civil Rights Act, but it is protected by other laws especially in the area of employment. I’m not familiar enough with the details to speculate.
If your ideology ends up with telling a woman (prostitute or otherwise) who she is legally required to have sex with, you may want to rethink your ideology.
There is no rule of law that I am aware of that requires a private person or business to give a platform, whether offered remuneration or not, to another’s free speech. The prohibition against outlawing free speech applies only to the government.
What if there is only one print shop in town and a customer wants ten thousand signs printed that say “Keep Out All Spics!” with a picture of Trump’s wall underneath it? The print shop refuses. Nobody would contend that the print shop is denying free speech, or that the shop should be required to print the sign because it is not the print shop’s message, but the customer’s. Nor would there be an exception made because it is the only print shop in town.
I realize that bigoted comments against Hispanics are not protected under civil rights laws, but neither are same sex wedding announcements, or proclamations that legal same sex marriage is good or bad.
The prohibition is against discrimination against gay customers wanting my services. If my services do not include making cakes for same sex weddings or printing posters praising legal same sex marriage, then nobody, gay or straight is being discriminated against.
Yes, my decision regarding what products I offer in this instance will have the effect of making gay customers less likely to patronize my store, but this is no different than the example above regarding pork BBQ joints and Christian book stores.
The examples given by LHOD (such as requiring customers to have natural or made up skin color lighter than a template hanging by the door) are an absurd end arounds regarding the civil rights laws. Those customers cannot buy the same donut or coffee that lighter skinned customers could buy. They related clearly to the customers who may not buy my products and not the products themselves.
Some might object that the description of the product offered (opposite sex wedding cakes) is too narrow and should be the more general “wedding cakes” and therefore bring my offerings into the larger category that is offered to all. I see no limiting principle there. Instead of Pork BBQ, aren’t I really just offering “BBQ” thereby meaning I could easily sell beef? Or should my product be considered “food” in general?
If I stock Christian books, couldn’t I easily stock other religious books, or just plain “books” (so atheists aren’t excluded)? Doesn’t my store just print “posters” meaning that I should be required to produce obscene and/or bigoted posters?
It’s a good point. A woman certainly may decide who she has sex with, just like a person can decide the guests he or she admits into his home. Full stop.
However, under the line of thought put forward by civil rights laws, this type of personal autonomy ends when you offer for sale products or services to the general public. When this is done, you may not decide that you will only rent a room in your house to white people only. Why would there be a counter exception to legal prostitution?
It is no longer a private and personal decision; it is a service offered to the public which must be made on non-discriminatory grounds. Under my proposals above, the woman could offer only natural vaginal sex. My opponents would likely argue that the broader term “sex” should apply.
Actually when the Fair Housing Act was originally passed, there was in fact an exception of owner occupied housing: you could racially discriminate in terms of renting a room (up to three, IIRC) in your house. This was on the basis that, as you point out, who you let into your home is a somewhat intimate decision. I believe that subsequent legal precedent has struck down the exception with respect to race, so you can no longer discriminate in this way, but it still applies to religion, sexual orientation, national origin etc… as long as you are legitimately only renting a couple rooms in your house.
I think striking down that portion of the law was the wrong choice, but in any case the whole existence of the debate underscores that there is a genuine trade-off between personal freedom and nondiscrimination laws, and nondiscrimination laws are not absolute. Since the choice to have sex is a more intimate one than the choice of who to allow in your home (e.g. burglary is less bad than rape) it makes sense that exceptions to nondiscrimination law should apply to prostitutes even when they don’t to homeowners.
There are several countries which share our English legal tradition and have legal prostitution (Australia, New Zealand, parts of the UK). I would be very surprised if any of them legally required prostitutes to have sex with men of all different races or none.
I’d think sexual preferences for prostitutes would fall under the bona fide occupational qualification stuff - if the prostitute professes that he or she is unable to perform with a particular client, they’re probably off the hook for refusing service to otherwise protected categories. Although it would be interesting if anyone had ever brought such a suit.
It seems to me that the Colorado court’s ruling is saying exactly the opposite - discriminating against making cakes for same-sex weddings is effectively refusing service based on a protected class. Apparently sexual orientation is protected in Colorado; may be acceptable in other states where it is not so protected (e.g., like Missouri, where I live).
Why would you think that refusing to make cakes for same-sex weddings doesn’t discriminate preferentially against gay couples?
Would it be worth setting up a bakery for wedding cake tops (the top of the cake, that is, no reference to the sexual dynamics of the couple) that can say anything the clients want? I’ll use an icing printer with absolutely any message and show up before the reception to put it on top of the wedding cake, just let me know the dimensions and the text beforehand.
Gay wedding, neo-Nazi, polygamous-cult-child-bride-giveaway… I honesty wouldn’t give the slightest of fucks about the specifics of your blessed day. Call me!
Part of me says to deny them. Another part says laissez faire. But most of me suggests I make a reasonable, not excessive, amount of money. One must be a human, with the option of also being a businessman. Which a customer should expect.
I’m not sure I see a distinction between a bakery saying, “We don’t make cakes for gay weddings,” and a bakery saying, “We don’t make cakes for black weddings.”
I think the bolded is right. I think there are two questions here:
When dealing with a product that requires speech or expression, in what situations can the business owner contend that the end product is their speech?
Even where we agree that the business owner is not engaging in speech, are there situations where a business owner might be able to refuse to participate in an event that they find offensive on the grounds that their moral convictions forbid enabling it? (This is going to be more controversial, I’m sure. But intuitively, it seems like the answer should be yes).
And I guess question 3: Who gets to decide? Do I tell the wedding photographer that they’re not really an artist, so photographing the same-sex wedding is not compelled expression? Or do they get to decide what is and is not art? This question becomes even more problematic when it comes to telling people whether they are immorally enabling an event.
To put another hypothetical: Imagine the Westboro Baptist Church decides to hire a sign language interpreter for its protests. We agree (I think) that the interpreter can’t claim that they are being forced to “speak,” but can they refuse to engage in this sort of religious translation because of its content? On the grounds that they don’t want to support (or be seen as supporting) such a protest.
But do you see a distinction between “We don’t make cakes for black weddings” and “we don’t serve black people here”?
A while ago, the NFL refused to make certain customized Michael Vick jerseys because people were customizing them in such a way as to have a racially questionable message.
Suppose a fan wanted the NFL to make “Support Traditional Marriage” customized jerseys. Would the NFL be allowed to refuse?