Did the Colorado cake maker refuse to sell the gay couple any cake, or just a custom "gay" design?

I have tried to uncover these basic and crucial facts of the case, and have not been able to find them anywhere. Not interested in debating the issue, which is why I posted here. Just want to know the factual answer to this question if anyone knows the answer for sure.

You mean like a two groom cake topper?

Yes, or two men’s names, something like that.

In the reports I have seen the baker Jack Phillips states the entire encounter was about 20 seconds.

In this YouTube video he explaines his point of view.

He states two men came into the bakery and sat down at their wedding desk. They said “We’re here to look at our - uh, for a wedding cake, and it’s for our wedding.” Phillips says at that point he was thinking he could not help these two guys out because I don’t make cakes for same sex weddings. Phillips says he told the men, “Sorry guys, I don’t do cakes for same sex weddings.”

There have been very slight variations in his retelling the encounter (He more typically refers to the men as gentlemen and in some retellings he mentions that they brought with them some designs.) In none that I have seen does Phillips claim that a particular design was requested.

In several longer interviews Phillips has said he told the men that he was willing to sell them anything in the store, just not a wedding cake for a same sex wedding. He continues to say (video link. Watch from 0:25 to 1:05) the men are welcome in his store today and everyday, but he does not make every cake for every event…

Since the basic issue is:

Is the cake maker an artist, in which case his artistic expression, pretty cakes, is protected free speech under the first amendment and cannot be compelled?

Or is he instead a tradesman, like a plumber and hotel owner and house painter, and cannot discriminate against protected classes?
(“Sorry, I don’t fix plumbing for black people.”)

Discussion on the bench revolved around whether cakes were artistic works for looks or simply food (Gorsuch said he had not yet found a wedding cake that was tasty to eat…)

So the question about the process of cake design and the level of creativity and originality is critical to this case. Good question, I haven’t seen a response. The closest I’ve seen is that the couple (and the mother of one of them) wen into the store and if the case summary reports I’ve read are right, were immediately rejected before they even got into design issues as soon as they said who the cake was for. I guess the parallel question is, how creative is this fellow with his usual creations?

According to the baker’s brief (pdf) filed at the Supreme Court, all of his wedding cakes are custom-made, and he would not make one for their ceremony, but he says he offered to make them “other items.”

From the petitioner’s summary of the case (Scotus Blog)

Here is an opinion piece written by the baker.

In this (watch from 0:58) FoxBusiness interview from a couple years ago Phillips states he said he would sell the men “cookies, brownies, birthday cakes, shower cakes, I just don’t do cakes for same sex weddings.”

Huh, so each side unsurprisingly has a different story. I suppose the Court could say they don’t know exactly what happened in this case, but in future such cases a baker has to offer a generic cake at least, but cannot be forced to make a custom design he doesn’t agree with.

Just to be clear, your quote comes from the state’s brief (pdf) in opposition to cert., not a filing by the baker. The references therein are to “Pet. App.” because the petitioner’s appendix is often the only factual record available at the cert. stage (i.e., where they’re arguing over whether the S.Ct. should take the case, not over the merits of the matter).

Thank You. IANAL, but you are correct to point out the details are important in legal issues.

It is I assume copied or paraphrased from a filing by the original aggrieved couple with the civil rights commission, since the case at this point is the bake shop vs. the Colorado civil rights commission. (Which I assume told the shop to “put up or shut down”?)

This is how I hope it gets settled by the court. There will still be problems, someone could make their cake store policy that they will only produce custom wedding cakes but then most of those custom cakes will be effectively identical. Every cake store in a town could start the same policy effectively creating a reverse boycott (is there a name for that?).

He refused to sell them a “custom” cake , but as far as I could tell he never defined what he meant by a “custom” cake. I mean, anything that’s not sold premade, off the shelf with no changes can be described as a custom cake - writing “Happy Birthday” customizes a cake, choosing the exact size, filing and/or frosting customizes a cake , having a cake made in a specific shape customizes a cake. And it seems to me that the level of customization would have an impact on how much the baker is expressing his artistry. There a difference between a cake baked and decorated like a sculpture of two grooms standing next to each other and one where the only customization is that the cake is a full sheet with apricot filling and whipped cream frosting while the ones on the shelf are 8" squares with chocolate filling and buttercream frosting.

My understanding is that they never got to the point of a specific design, so I don’t know if you can accurately call the hypothetical cake a cake with a “gay design”. It was to be used at a Same Sex Marriage, but that’s all the baker knew at that point.

I’m a bit confused. Are artists protected from not selling their paintings to black people?

Hmm, I guess in this case it would be a commission. Could an artist legally refuse to do commissioned artwork for someone with the explanation, “I don’t do paintings for black people”?

If that’s not the case I don’t understand the distinction the courts are trying to make.

There’s a GD thread on this subject, FYI.


Keeping it GQ, I think the baker’s lawyers would say that the relevant analogy is “I don’t do paintings of black people.” That’s a stronger First Amendment claim; think of a film director insisting that a particular role has to go to a white actor.

The baker kicked him out before he even got a chance to start describing the cake he wanted.

EDIT: that was phrased too strong. He wasn’t physically kicked out of the place, but the baker made it 100% clear he would not make a wedding cake for him, and it happened very quickly in the conversation before any specifics were discussed at all.