# Did the Colorado cake maker refuse to sell the gay couple any cake, or just a custom "gay" design?
**URL:** https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925
**Category:** Factual Questions
**Created:** [December 8, 2017, 4:50pm UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925 "2017-12-08T16:50:40Z")
**Posts on this page:** 20
**Page:** 3
### Author:  [@Chronos](https://boards.straightdope.com/u/Chronos)
#### Post date: [December 14, 2017, 6:18pm UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/41 "2017-12-14T18:18:58Z")
How can it be an issue? The couple can just say that they chose his bakery because they liked his work, and thought that he was the best baker in town. Heck, maybe, on the purely gustatory merits, he actually is the best. How would he answer that? By saying that no, his cakes are terrible, and that they couldn’t have actually wanted one of them?
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### Author:  [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)
#### Post date: [December 14, 2017, 6:35pm UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/42 "2017-12-14T18:35:03Z")
> [@TriPolar](#):
>
> 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?).
embargo?
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### Author:  [@SlackerInc](https://boards.straightdope.com/u/SlackerInc)
#### Post date: [December 14, 2017, 11:06pm UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/43 "2017-12-14T23:06:55Z")
> [@md2000](#):
>
> More likely, an artist may pick and choose what expressive result he produces - I.e. I only want happy scenes, I only want scenes from Nordic mythology, I only do a few commissions a year and yours is not one. Or a comedian, “I only do bar mitzvahs”. Or a clown who only does girls’ birthdays…
>
> As opposed to a hotel - you want to open the business, you are open to anyone who walks in and meets certain non-discriminatory criteria (ability to pay, doesn’t smell too bad, clean, etc.) Or a plumber - people call, you fix their pipes. Similarly, say, a shoe store - there’s no artistry, you post a sign and sell inventory.
>
> So what is a wedding cake baker? Presumably every cake is custom made, but only because nobody walks in and says “I’m getting married tomorrow, can I get a cake off the shelf?”; it’s the sort of thing planned weeks to months in advance for a particular time. Similarly, without a market for off-the-shelf cakes, (almost?) nobody makes cakes to wedding standard on spec that someone will walk in and buy that expensive creation. So the business is by definition a custom bakery. the question still is - how much is art, how much is the equivalent of plumbing - more formula than creativity? (a) generally, and (b) for this particular baker. How different is baking a cake like 1,000 other cakes the last year? Is it really different than ordering different pairs of shoes for sale, or cutting lengths of pipe and soldering them together? Or does it suddenly become art when you go for the brown icing roses instead of the pink ones? Or when you put that first icing decoration on?
>
> The trick for the Supremes is to write an explanation of where to draw the line without allowing any business to discriminate however they want.
>
> IMHO (which counts for as much as **Guestchaz** ’s, i.e. nothing) the likely outcome will be that as a business, he is obliged to provide the cake for all customers first come, first serve until his card is full; but he can provide basic, generic output rather than putting his heart and soul into it… or if they have a fully formed design that he is capable of executing, he can follow that. For example, any half-way competent cake decorator could produce a red rose in icing or copy design elements from a set of directions - so the “art” level falls more to that of sign painter than Picasso.
Interesting points. But I suspect the Court will be reluctant to say that just because a cake decorator could copy design elements like a Mohammed cartoon, an antigay Leviticus verse, or an image of two men kissing, s/he would be required to do so upon request.
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### Author:  [@Rutherford\_B](https://boards.straightdope.com/u/Rutherford_B)
#### Post date: [December 15, 2017, 2:23am UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/44 "2017-12-15T02:23:49Z")
I would have told the gay couple…" since I have no experience baking a gay wedding cake, it might be so bad that you never recommend me to another gay couple "
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### Author:  [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)
#### Post date: [December 16, 2017, 9:16pm UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/45 "2017-12-16T21:16:48Z")
> [@Iggy](#):
>
> Whether the couple involved in this case intentionally passed by those other bakeries in order to target Masterpiece Cakeshop might be an issue if the case gets kicked back for a trial. The couple have said in interviews that they saw the bakery’s website and liked some of what they saw so they decided to go there to order a cake for their wedding.
Does that matter, legally? Shopping for a test case has plenty of history in precedent-setting legal decisions.
I mean, if the court decides that bakers need to serve customers regardless of the event that the cake is going to be served at, then it won’t matter if other bakers would have served this couple; this guy legally needs to as well.
I guess it matters _if they lied_ about it in court, like any lie would matter. But it doesn’t seem to have any bearing on the facts of the case.
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### Author:  [@kayaker](https://boards.straightdope.com/u/kayaker)
#### Post date: [December 16, 2017, 9:48pm UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/46 "2017-12-16T21:48:00Z")
> [@Rutherford\_B](#):
>
> I would have told the gay couple…" since I have no experience baking a gay wedding cake, it might be so bad that you never recommend me to another gay couple "
They were gay, not retarded.
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### Author:  [@Ludovic](https://boards.straightdope.com/u/Ludovic)
#### Post date: [December 16, 2017, 10:52pm UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/47 "2017-12-16T22:52:53Z")
Why can’t they be both, like the late Earl Warren?
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### Author:  [@Iggy](https://boards.straightdope.com/u/Iggy)
#### Post date: [December 17, 2017, 12:28am UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/48 "2017-12-17T00:28:49Z")
> [@iamthewalrus\_3](#):
>
> Does that matter, legally? Shopping for a test case has plenty of history in precedent-setting legal decisions.
>
> I mean, if the court decides that bakers need to serve customers regardless of the event that the cake is going to be served at, then it won’t matter if other bakers would have served this couple; this guy legally needs to as well. …
Normally I would think it wouldn’t mater. There was a side statement one of the justices made during oral arguments that seemed to hint that a targeted suit might be looked upon a bit differently.
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### Author:  [@md2000](https://boards.straightdope.com/u/md2000)
#### Post date: [December 18, 2017, 6:03am UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/49 "2017-12-18T06:03:33Z")
> [@SlackerInc](#):
>
> Interesting points. But I suspect the Court will be reluctant to say that just because a cake decorator could copy design elements like a Mohammed cartoon, an antigay Leviticus verse, or an image of two men kissing, s/he would be required to do so upon request.
Yes, but we’re not talking offensive content here - if the baker frequently reproduces (in icing) pink roses, encircling ivy and cala lilies, etc. for plenty of hetero-cakes, then he’s essentially like a sign painter not an artist. Nothing stops him from reproducing those same designs for Bob and Ted, other than his desire to discriminate.
True, if Bob and Ted had asked him to produce something offensive to him (hmmm, say Bubba came in and asked for an image of a KKK mask superimposed on a confederate flag) then he might have grounds to say “that’s going too far”. But if he has no problem producing the exact same product if the couple had been somewhat different, then it’s hard to yell “artists” in a crowded courtroom.
Which brings us to the next “artist” question, which no doubt the Supremes will mull over. Is “art” the output of the artist, or the identity of the buyer(s)? If you saw a cake without a wedding topper or names on it (do people put names on a fancy wedding cake?) could you look at a cake and say “that’s gay” or not?
If the baker could produce the exact same cake for a straight couple and they would be happy with it, how is his art constrained if he has to produce it for a gay couple? in this case, he’s discriminating against the people by reason of their orientation, not _being discriminating_ in his art due to personal beliefs. (IMHO)
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### Author:  [@Iggy](https://boards.straightdope.com/u/Iggy)
#### Post date: [December 18, 2017, 6:22am UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/50 "2017-12-18T06:22:46Z")
Two points from the Justices on md2000’s post…
Justice Alito posited a hypothetical in which the same message would have very different connotations depending upon the customer. He asked whether a baker must repeat a message ( “November 9, the best day in history”) that he had been willing to produce for one customer to celebrate a wedding anniversary if the next customer is a neo nazi wanting the exact same message on a cake to celebrate the anniversary of a Nazi atrocity, Kristalnacht. It was clear from that discussion that the Justices want a standard that would allow differentiation based upon the intent behind the message, and thus the customer, in such a case.
Which ties to another question from the Justices (Gorsuch, IIRC) which somehow went unanswered. If they are to author some standard exempting certain types of compelled expression then are they basing that expression on what the artist intended or based upon what an observer would perceive? It is a key point that cuts to the heart of any rule they may fashion yet somehow the panel let the attorney off the hook when they did not force an answer.
If the artist’s intent is the point of view (and Alito’s hypothetical hints at that vantage point) then any rule fashioned may offer broader protections against any compelled speech. If the point of view of the observer is the standard then that might bode better for the customer’s case.
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### Author:  [@SlackerInc](https://boards.straightdope.com/u/SlackerInc)
#### Post date: [December 19, 2017, 3:06am UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/51 "2017-12-19T03:06:52Z")
> [@md2000](#):
>
> Yes, but we’re not talking offensive content here - if the baker frequently reproduces (in icing) pink roses, encircling ivy and cala lilies, etc. for plenty of hetero-cakes, then he’s essentially like a sign painter not an artist. Nothing stops him from reproducing those same designs for Bob and Ted, other than his desire to discriminate.
>
> True, if Bob and Ted had asked him to produce something offensive to him (hmmm, say Bubba came in and asked for an image of a KKK mask superimposed on a confederate flag) then he might have grounds to say “that’s going too far”. But if he has no problem producing the exact same product if the couple had been somewhat different, then it’s hard to yell “artists” in a crowded courtroom.
I think you’re probably right. But what if the request is to portray two men (perhaps both with beards, so it is clearly two men) kissing? That might be offensive to many people, while to many other people it’s offensive to _find_ that offensive.
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### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [December 19, 2017, 3:21am UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/52 "2017-12-19T03:21:50Z")
> [@md2000](#):
>
> If the baker could produce the exact same cake for a straight couple and they would be happy with it, how is his art constrained if he has to produce it for a gay couple? in this case, he’s discriminating against the people by reason of their orientation, not _being discriminating_ in his art due to personal beliefs. (IMHO)
So, if the baker will produce a cake for Steve and Patricia that says: “Rejoice in the union of Steve and Pat in Matrimony”, he should have no qualms about producing the same cake for Steve and Patrick, if his personal belief is that homosexuality is sin?
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### Author:  [@md2000](https://boards.straightdope.com/u/md2000)
#### Post date: [December 19, 2017, 4:58am UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/53 "2017-12-19T04:58:35Z")
> [@John\_Mace](#):
>
> So, if the baker will produce a cake for Steve and Patricia that says: “Rejoice in the union of Steve and Pat in Matrimony”, he should have no qualms about producing the same cake for Steve and Patrick, if his personal belief is that homosexuality is sin?
If he were required to write a double entendre on the cake for a straight couple, maybe he would refuse too. If you ask the artist/non-artist to produce output that implies he approves (even indirectly) of a something, then he would likely have reasonable grounds to say “I wouldn’t do that”.
After all, even if the word says “Pat” the people seeing the product at the event know whether it means Patricia or Patrick, and therefore what the quote implies.
But still doesn’t answer, if he could produce the same arrangement in icing and marzipan and it would be appropriate for a straight couple, why would it not be appropriate for a gay couple, or a mixed race couple, or a Muslim or Jewish couple, or a wedding performed in Klingon - if those couples were satisfied with that cake.
The fact that they did not even get to cake design before he dismissed the couple suggests that it had nothing to do with art and more to do with discrimination against the couple and what they represented. He didn’t say “I don’t make cakes that are appropriate for gay weddings” he said “I won’t serve you”.
His argument is that every cake is made specifically for each wedding, so therefore he is an artiste. However, it can also be argued because it is a manual labour production facility, \*of course \*every piece is made by hand. Therefore, there is nothing specially artistic about this process beyond journeyman capability in cake decorating.
That’s the question the Supremes have to answer - is it fine art or plumbing?
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### Author:  [@SlackerInc](https://boards.straightdope.com/u/SlackerInc)
#### Post date: [December 19, 2017, 5:06am UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/54 "2017-12-19T05:06:40Z")
Yeah, I predict they will rule that \*this \*baker was in the wrong given the facts of _this specific case_, but that doesn’t mean he would have been wrong to refuse a more specific design request that he didn’t agree with, morally or aesthetically. And then the Court may offer some guidelines as to what is and isn’t acceptable in terms of the right to refuse. Which may then lead to a scenario where gay couples have a choice: they can go to a cake shop run by someone they know to be religiously conservative and insist the baker make a cake that goes right up to the line but not across it…in which case they will also have to simply hope there’s not secretly something gross mixed into the batter. Or they can go to the cake shop with the rainbow in the window and have that baker happily make them their dream cake. At which point the law will probably only really be relevant in small towns in conservative rural areas where the second type of baker does not exist within any reasonable radius.
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### Author:  [@Iggy](https://boards.straightdope.com/u/Iggy)
#### Post date: [December 19, 2017, 5:20am UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/55 "2017-12-19T05:20:19Z")
> [@md2000](#):
>
> …
> The fact that they did not even get to cake design before he dismissed the couple suggests that it had nothing to do with art and more to do with discrimination against the couple and what they represented. He didn’t say “I don’t make cakes that are appropriate for gay weddings” he said “I won’t serve you”.
> …
According to Jack Phillips he did offer to serve them anything in his store but he was not willing to make a wedding cake for a same sex event. So perhaps it would be more correct to paraphrase his statement as “I won’t serve you _that_.”
And indeed, the baker who works at a factory churning out thousands of loaves of Wonder bread daily probably would not get far with an argument putting forth expressive conduct in relation to his work. The baker who made [this](https://www.thedailymeal.com/sites/default/files/styles/tdm_slideshow_large/public/slides/aquarium-cakeboss-tlc.jpg?itok=NvcWOSZQ) might.
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### Author:  [@md2000](https://boards.straightdope.com/u/md2000)
#### Post date: [December 19, 2017, 5:36am UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/56 "2017-12-19T05:36:03Z")
> [@SlackerInc](#):
>
> …
> And then the Court may offer some guidelines as to what is and isn’t acceptable in terms of the right to refuse.
> …
Unfortunaely, especially lately, the court has tended to be less willing to go out on a limb and actually produce directions on what to do; typically the lines to be drawn as inferred from the wording of the decision and discussion of the facts in the judgement and how they apply. Then another case will come along in a decade to help clarify the decision.
> [@Iggy](#):
>
> According to Jack Phillips he did offer to serve them anything in his store but he was not willing to make a wedding cake for a same sex event. So perhaps it would be more correct to paraphrase his statement as “I won’t serve you _that_.”
>
> And indeed, the baker who works at a factory churning out thousands of loaves of Wonder bread daily probably would not get far with an argument putting forth expressive conduct in relation to his work. The baker who made [this](https://www.thedailymeal.com/sites/default/files/styles/tdm_slideshow_large/public/slides/aquarium-cakeboss-tlc.jpg?itok=NvcWOSZQ) might.
Yeah, but a guy who cranks out a dozen or more floral decorated cakes each week would have a hard time arguing that each construction is so unique and original that they always qualify as art. Saying “I also produce lots of unartistic standard baked goods - take some of those” probably doesn’t enhance his case that he’s an artist.
Nevertheless, how the supremes justify their decision, the logic they use to get to their decision, is probably more interesting than the final outcome -which will be re-litigated in a variety of new cases with assorted nuances, for clarification, for the next few decades.
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### Author:  [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)
#### Post date: [December 19, 2017, 5:42am UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/57 "2017-12-19T05:42:18Z")
> [@md2000](#):
>
> Saying “I also produce lots of unartistic standard baked goods - take some of those” probably doesn’t enhance his case that he’s an artist.
Does it have any effect at all (I think you’re implying that it detracts from that case, but maybe you aren’t)? If Van Gogh painted houses to make ends meet, does that say anything about his art?
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### Author:  [@md2000](https://boards.straightdope.com/u/md2000)
#### Post date: [December 20, 2017, 10:44pm UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/58 "2017-12-20T22:44:37Z")
> [@iamthewalrus\_3](#):
>
> Does it have any effect at all (I think you’re implying that it detracts from that case, but maybe you aren’t)? If Van Gogh painted houses to make ends meet, does that say anything about his art?
But if you’re painting/baking pretty much the same thing all the time, at what point is it selling production rather than selling artwork? If everything is sufficiently different from what went before that it obviously includes an artistic expression, rather than tedious reproduction, then it is art protected by the first amendment. That’s one issue.
The other issue is, as we’ve also beaten to death, the question of whether if he could easily produce the exact same result for a straight couple, what is it in the artistic expression stops him from producing that result for a gay couple?
What exactly is the free expression limitation that having gay customers is imposing?
If you run a theatre, can you or the actors refuse to allow gay people (or blacks) to buy tickets to the play? How about a movie theatre? Movies are artistic expression… but again, here, the question is - in what way does having that particular class as customers prevent you from being freely expressive?
After all, for everyone who exclaims about a fancy baker “but then he would be forced to do something he does not want to do!” - well, that is exactly what the prejudiced hotel owner, house painter, or custom tailor is already encountering.
As I’ve said - whatever SCOTUS decides, the twists and turns of their logic - especially if they allow this - will be fascinating, considering also how they word it to prevent anyone who does anything commercial from being able to use religion, first amendment, etc. as an excuse to avoid serving a class they don’t want to. They shot themselves in the first foot with Hobby Lobby.
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### Author:  [@PastTense](https://boards.straightdope.com/u/PastTense)
#### Post date: [June 4, 2018, 8:53pm UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/59 "2018-06-04T20:53:31Z")
Updating this thread:
> [@](#):
>
> The U.S. Supreme Court ruled in a 7-2 decision Monday that a Colorado baker had the constitutional right to deny service to a gay couple in 2012 because of his religious beliefs.
>
> “The Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality. The reason and motive for the baker’s refusal were based on his sincere religious beliefs and convictions,” Justice Anthony Kennedy wrote in the majority opinion.
> **[Baker Wins Gay Wedding Case in Supreme Court](https://www.newsweek.com/masterpiece-cakeshop-wins-supreme-court-decision-956900)**
>
> The U.S. Supreme Court ruled in a 7-2 decision Monday that a Colorado baker had the constitutional right to deny service to a gay couple in 2012 because of his religious beliefs.
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### Author:  [@DavidwithanR](https://boards.straightdope.com/u/DavidwithanR)
#### Post date: [June 4, 2018, 9:14pm UTC](https://boards.straightdope.com/t/did-the-colorado-cake-maker-refuse-to-sell-the-gay-couple-any-cake-or-just-a-custom-gay-design/803925/60 "2018-06-04T21:14:39Z")
> [@Mr.Bill](#):
>
> Thanks to all who responded to my post—
>
> I do understand the principle of standing up to bigotry. I do, however, think there is a difference between being refused lunch, which is an everyday thing, and a wedding cake which is part of a celebration which is supposed to be a happy, joyous occasion (and, hopefully, once in a lifetime…). Why give a bigot the opportunity to spoil your special day? And even if nothing goes wrong, one’s memory of the day would include the fact that the cake was baked by someone who was only doing it under duress because a Judge said he had to. That’s not how I would want to remember my wedding.
>
> As far as confronting bigotry on every front, to use an admittedly loose analogy, the U.S. won the war in the Pacific, not by capturing every single Japanese-held island, but by capturing the strategically important ones and leaving others to wither on the vine when the Japanese navy could no longer supply them. It is impossible to drag every homophobe into court for his/her attitudes and actions. Nor, I think, is it desirable. Society should focus on correcting the manifestations which are most important and impactful, such as discrimination in housing, employment, health-care, ability to marry and so forth. the individual bigot will either change on his own (which is not so likely, but not impossible), or he will be left behind by a changing society. That won’t happen overnight, but it will happen.
>
> As for the suggestion that this bakery may be the only game in town - well that would have to be a very small town.
>
> There is also no requirement for a fancy wedding cake. When my niece was married last year, she had several of her friends make batches of very fancy cupcakes. The result was much more meaningful than a fancy cake baked by a business. And, people got their choice of cupcakes, all of which were fresher and better quality than a commercial cake baked a few days in advance.
>
> This is just my opinion and I realize not everyone will agree.
You can’t bring in every racist either. So you set it up so that racists, and bigots, and the WW2 Japanese navy, starve to death. That’s the appropriate thing.
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