There’s a difference but legally the business should suffer the same penalty, that is either make the damn cake/serve black people or go out of business.
As I recall, the justification for refusing to make those jerseys was that the intent of the customization was so customers could have their own names on the back of a jersey. The selections were obviously not the customers’ own names, but were references to a current event - clearly rejectable under the NFL’s policy of why they offered customizable jerseys.
“Support Traditional Marriage” wouldn’t fit under that policy, either, so they’d be able to refuse that, too.
Businesses can refuse a customer’s business - as long as that refusal can’t be shown to be substantially discriminatory toward a protected class of citizen.
In the context of a business that sells wedding cakes?
No, I don’t.
Maybe so. But it’s a distinction worth drawing to ensure that we’re not simply talking around each other.
I don’t know what you think of the original case (the requirement that a baker make a cake which expressly advocates a political message he finds offensive). Or if there’s a difference between a generic wedding cake or a custom cake. (And there’s a grey area: my wedding cake was custom made for us, but it was devoid of any custom markings like names or political slogans). But if we don’t agree that these are (conceptually) different questions, the discussion isn’t going to go anywhere.
Then I don’t know how to advance the conversation. Do you see a distinction between a baker who refuses to make a cake for a bris celebration and one who refuses to serve Jews? I’m assuming the distinction here isn’t whether the baker also makes cakes for other occasions.
But if a business won’t produce a customized “Support Traditional Marriage” message, doesn’t that discriminate against heterosexual customers in the same way that refusing to customize “support gay marriage” discriminates against homosexual customers? Sexual orientation is itself a protected class.
Businesses do not have to offer every service that they might be capable of. If they are challenged, they can say “This is our policy on what we offer”. As long as that policy is not discriminatory, they’re fine.
“We’ll put your last name on a jersey” is a fine, non-discriminatory policy. Someone coming in and claiming they’re discriminatory because they won’t put “Support [Whatever]” on a jersey is going to be refused because that’s not the service they offer - and the courts will back them up on it.
I suppose if you want to get your rage on, you can go have your last name legally changed to “Support Traditional Marriage”… but I’d bet the NFL jersey has a character limit to last names, too, so you’ll still be SOL.
I agree with Miller, I don’t see a distinction between saying “we don’t make cakes for black weddings” and “we don’t serve black customers,” at least for a business that does make wedding cakes. What distinction do you see? A cake for a black wedding is still being served to black people, but maybe indirectly? Like if a white guy wanted to buy a cake for a black wedding, you think that’s different from a black guy wanting to buy a cake?
What you’re skipping over here is that “support traditional marriage” actually means “oppose same-sex marriage.” It tries to be deceptive, but everyone knows what it really means. And “support gay marriage” does NOT mean “oppose opposite-sex marriage,” it means equality for all.
We certainly can’t just say “anti-discrimination is great, I’m all for it, anyone who isn’t is just trying to justify bigtory”, as some have done on this thread. Any anti-discrimination law does compromise freedom of speech. If I were a cake-maker I would certainly refuse to decorate a wedding cake with Nazi slogans, so I must acknowledge that if a baker makes a cake for a gay wedding he is implicitly endorsing SSM.
The issues becomes, then, under what specific circumstances is it justifiable and desirable for anti-discrimination to override a business owner’s rights to free speech?
I think anti-discrimination is justified when it’s required for a member of a protected class to doing equivalent things or receiving equivalent services, but only when those activities are services are a basic and necessary part of the enjoyment of a normal life in a diverse society, reasonably construed.
Anti-discrimination should therefore apply to, for example:
(a) staying in a hotel room;
(b) eating the food that a restaurant generally chooses to provide;
© having a wedding celebration, including the usual trappings such as a personalized wedding cake with your names on it, of whatever sex.
But I don’t think that buying customized products with generalized political slogans passes the test of being something that’s a necessary part of the enjoyment of a normal life to the point where overriding the business owner’s right to free speech is justified. Nor do I think that specific religious practices pass any test that justifies forcing businesses to accommodate them. So, for example:
(1) A cake-maker should be quite free to restrict the range of generalized political statements that he’s willing to put on his cakes. For example, he can say “any bible verse is ok, but I won’t make a cake that says gay marriage is awesome”. The right to have a normal personalized wedding cake (with your names on it) is fundamental; the right to force others to participate in the production of an explicitly politicized wedding cake is not, even if it makes expression of your political views inconvenient and difficult for you.
(2) No business owner should be forced to cooperate with or accommodate unusual religious practices where they are either inconvenient or conflict with the business owner’s views. For example a Muslim has a fundamental right to eat out at any restaurant in town; he does not have the right to insist that any restaurant he goes to must provide halal food. A photographer should not be obliged to provide services for a bris ceremony if he disagrees with the practice. The right to practice religion is fundamental; the right to force others to participate is not, even if that makes practicing your religion inconvenient and difficult for you.
Do you have a link to the case you’re referring to? If this was in the US, I think political beliefs are also a protected class (might be just state, not federal, not sure), so it would seem like there would be a case for the customer suing the baker.
For the Oregon bakers, its my understanding that they ran a cake business that also did wedding cakes. That’s enough information necessary to make them guilty of a civil rights violation. They made wedding cakes, they chose not to for the gay couple for the reason that they are gay, therefore they are wrong and should be shut down. Not to mention they harassed the couple after the fact too.
These are fair beliefs to have, but I don’t see any real principle that (c) it is grounded in; it seems sort of tacked on to attempt to equate it to (a) and (b).
Why is (c) not just like (b) in that the cake place generally does not choose to provide cakes which celebrate same sex marriage, just like the restaurant generally does not provide non-pork alternatives, or the bookstore that does not provide non-religious alternatives?
IOW, why is the category for (c) drawn so broadly as to mean “all usual trappings” of a wedding, and (b) is only “what is strictly on the menu”?
It seems to me that the gay customer of the bakery can order all of the custom products that the owner offers, just as the heterosexual customer. No heterosexual customer can demand a wedding cake if, say, he is divorced and marrying the woman he committed adultery with. The owner can tell him to pound sand. The common factor is the owner’s moral and/or religious beliefs, not the sexual orientation of the customer (because, as has been said twice before, heterosexual customers might order same sex marriage cakes and vice versa…the issue is the product, not the customer).
I think there’s a clear difference of principle here. Beef is substantially different from pork. If I choose not to eat pork because of my religious beliefs, I cannot reasonably go to a “barbequed pork store” and expect my special requirements to be accommodated.
But any wedding cake with two names on it is clearly in a substantial physical sense always the exact same product, whatever the sex of the two names. Any claim otherwise clearly lies only in prejudice against a protected class of people* and is motivated by the belief that you think they should not be allowed to do the exact same thing as everyone else. To be clear, I don’t dispute that the baker’s freedom of speech is being compromised here, because there is a difference in the cakes solely in the sense that the baker is in a limited way implicitly endorsing same-sex marriage. But I think his free speech should take a back seat to anti-discrimination in these circumstances, when he’s trying to deny the exact same thing to a gay couple.
*assuming sexual orientation is protected, I realize that it’s currently not currently protected on a federal level
And it is doubtful that any court will interpret it that way. “We only sell heterosexual wedding cakes, but anyone can buy them” is still going to be seen as substantially discriminating against same-sex couples - who are, of course, the most likely people to be buying same-sex wedding cakes. All sorts of shenanigans like that were tried during Segregation, and all knocked down.
Because the product being sold is just “wedding cake,” not “gay wedding cake” and “straight wedding cake.” What you’re arguing here is akin a lunch counter trying to duck anti-discrimination measures by claiming that their menu only has “white sandwiches,” and that making “black sandwiches” is forcing them to offer a product that’s not on their menu.
Is there any evidence that the bakery refused to sell them ANY cake or just one with a message they thought offensive?
I don’t see how the free speech of the baker enters into this at all – the writing on the cake isn’t his speech, it is what the customer specified on the order. The baker is expected & obligated to provide exactly that. And if he doesn’t (like spelling one of the names differently than on the customers order), the baker is required to fix or replace the cake, at his own expense.
How is it the free speech of the baker when it is the customer who specifies what is to be written on the cake, and the customer who judges if the writing accurately follows his specifications?
You can’t abstract this away from “ideas I personally agree with” to see how it doesn’t hold up? If you were a cake maker, would you be willing on the same basis to decorate a cake with (say) a Nazi theme for a wedding between white supremacists, and you wouldn’t feel tainted? I think it’s disingenuous to claim that the baker’s free speech is not at stake here if the law obliges him to customize a cake for a same-sex wedding. A baker is certainly implicitly condoning SSM to some degree if he prepares a wedding cake customized to a same-sex couple. But, if (say) we’re talking about decorating a cake with two men’s names and two male figures, the exact same service that’s provided to heterosexual couples, then I think the baker’s freedom of speech should take a back seat to the overriding interest of equal treatment.
It is a matter of degree. A cake with two men on it is not the exact same thing as one with a man and a woman on it. You sort of hedge and say that it is “in a substantial physical sense” the same thing, but that is just a matter of degrees and subjectivity. Beef and pork are both food, part of the meat group and arguably substantially similar. A Bible and a Quran the same.
How is this any different than pork or religious books? Is a Christian bookstore a “shenanigan” to keep out Jews, Muslims, and atheists?
The difference here is not the product. Just because I call two slices of bread, with mayo, bacon, lettuce, and tomato between the slices served to a white person a “white BLT” does not make the exact same thing served to a black person a different product.
Suppose the male and female figurines I buy for wedding cakes are white. Should I be required to stock figurines that are black, Asian, American Indian, etc? What if I do stock black figurines, but some customers believe that the lips are a bit too big on the figurines and accuse me of doing that on purpose? Should the federal government regulate the size of lips on the black figurines or noses on Jewish or Italian figurines?
This whole thing goes way beyond the original purpose for civil rights laws. If it could be shown that gay people were unable to get cakes for their weddings throughout giant swaths of the country, then I might agree with this unprecedented assault on the rights of private business, but there is no such societal harm that exists.
As long as it is simply a middle finger to those who continue to support traditional marriage, then I will not support using our laws for that purpose.
If it were possible to prove you did that on purpose, you could be sued for it. Deliberately providing substandard service is actionable.
Sure, and that’s exactly my point. Just because you call something a “gay wedding cake,” it doesn’t make it some wholly different thing from a straight wedding cake. It’s still made up of eggs, wheat, flour, sugar, regardless of who buys it.
Well, you’re clearly taking this subject seriously.
We know that this country is capable of widespread discrimination against classes of people. Why not set things up right now, to prevent it from getting to that state? Wouldn’t it have been better if the federal government had stepped in at the beginning of Jim Crow and put a stop to it, rather then letting it get to the point it did in the '50s and '60s? Considering that I’m someone who would be directly effected by such a thing, I’m pretty keen to make sure it never gets to that point. What argument can you give me, a gay man, that would convince me I should be okay with only being discriminated against, so long as it’s only “occasionally,” or a “little bit?” And who gets to define “occasionally” or “a little bit?” You, or me?
Everything is a matter of degree. Poking you in the chest during an argument and shooting you with a howitzer are both a form of assault. We have to make judgments, and I don’t think many reasonable people would agree with your suggestion that two cakes that only differ in the sex of the names & figures on them are different in the same way that beef & pork let alone the Bible and the Koran are different.
It’s not a middle figure to anyone. It’s saying that our society as a whole has determined that certain groups that have historically been demonized now deserve to be able to live without shame or handicap. If you choose still to demonize them, you are entitled to your bigotry; but under certain limited circumstances, if you choose to participate in public commerce, part of your social contract is that you you do not have the right to impose your bigotry while conducting that commerce.
Even so, you will never be required to explicitly endorse any political or social view. The requirement is simply that your right to free speech is not absolute, there may be limited circumstances in which anti-discrimination requires that you step back from actively imposing your bigotry. And surely better for all if this is made into federal law: a homophobic baker who feels that would previously have been voluntarily endorsing SSM by baking such a cake may still make it to his heaven by noting that he had no choice under the law, and citing “render unto Caesar what is Caesar’s”, etc.