# Judge orders Colorado baker to serve gay couples **URL:** \ **Category:** Great Debates\ **Created:** [December 8, 2013, 1:57am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792 "2013-12-08T01:57:00Z")\ **Posts on this page:** 20\ **Page:** 22
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 1, 2017, 12:11pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/421 "2017-07-01T12:11:54Z")
> [@Monty](#): > > [QUOTE=k9bfriender] > > It would be more like refusing a client, because in order to defend them, you would have to say some things that you personally disagree with. Could one of the lawyers posting here weigh in on this? IANAL; however, I’m fairly certain that a defending attorney is not supposed to do that. [/QUOTE] We can’t mislead the court as to the facts or the law. But our duty is to put forward the client’s position, as long as it’s consistent with the facts and law. For instance, in a custody case, the client might take the position that he’s the better parent and should have custody. I may have my own personal opinion about that, but that’s irrelevant. Provided the client’s position is consistent with the law and facts, I have to put that position forward. Similar examples can be imagined for defence counsel in criminal cases, counsel acting on contract disputes, etc. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [July 1, 2017, 1:34pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/422 "2017-07-01T13:34:25Z")
> [@Chronos](#): > > OK, so we’ve established that if Mary goes into the bakery and says “I want a cake that says ‘I love you, John’”, that that’s Mary’s speech, not the baker’s, and he can’t object to that on artistic grounds. I don’t think this is the correct analytical framework. Artistic grounds is too vague. The reason whether it is art or not is important is because art is speech and generally compelling speech has a fairly high standard to meet. Consider that in Wooley v. Maynard the court ruled that even a state motto on a vehicle license plate was disallowed compelled speech. > [@BigT](#): > > That would be religious discrimination, for which there is no legal problem. Not that I would object if they did make one. The Civil Rights Act disagrees with you. > [@Bryan\_Ekers](#): > > So _do_ the specifics actually not matter? I don’t think they much do. Either the painter can refuse based on whatever reasons they want because their first amendment right to not speak outweighs any other equal protection right or it doesn’t. It’s clear they could refuse based on non-suspect class criteria (too tall, smells bad, can’t pay, too lazy, etc.). So the question is how far do the 1st amendment rights to not speak extend. Using the painter example is simply to eliminate the question of art since painting a portrait is art (if you disagree, substituting anything you believe is art would work as well) and gets right to the question of weighing the 1st amendment aspects against the public accommodation aspects. However, if the court were to say that cake making in this way was not sufficiently artistic to warrant 1st amendment protections then I think the cake maker loses and the latter question doesn’t get addressed. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [July 1, 2017, 1:50pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/423 "2017-07-01T13:50:04Z")
> [@Bricker](#): > > The Code of the Baker? 😃 Not totally impossible actually. I don’t know exactly if modern bakers have such a code, but both the bakers profession and that of Court Advocates emerged from medieval guilds, who had some pretty extensive regulations about its member’s actions. Many of the modern Bar code of conducts find their roots in them. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [July 1, 2017, 2:00pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/424 "2017-07-01T14:00:53Z")
> [@Northern\_Piper](#): > > We can’t mislead the court as to the facts or the law. But our duty is to put forward the client’s position, as long as it’s consistent with the facts and law. > > For instance, in a custody case, the client might take the position that he’s the better parent and should have custody. I may have my own personal opinion about that, but that’s irrelevant. **Provided the client’s position is consistent with the law and facts, I have to put that position forward.** > > Similar examples can be imagined for defence counsel in criminal cases, counsel acting on contract disputes, etc. Bolding mine. Further to that. There is a further complication in many commonwealth countries, that is the [Cab Rank Rule.](https://en.wikipedia.org/wiki/Cab-rank_rule). It means an Advocate in Court has to accept any work in a field in which they profess themselves competent to practice, at a court at which they normally appear, when they are available, and at their usual rates. I think the US does not have that. In any event, I think most people can agree that there is a compelling public interest in ensuring that parties to a legal case get adequate representation, an interest that overrides Free Speech concerns. This is not necessarily the case with a Baker. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [July 1, 2017, 2:13pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/425 "2017-07-01T14:13:26Z")
> [@RitterSport](#): > > Right, but race is already a protected class at the Federal level but sexual orientation isn’t. I gather it soon will be. The Republicans will do their best to slow the process down, though I doubt many of them actually care about the issue but rather see it as a wedge they can use to try to keep the more-religious/less-rational Americans voting for them. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 1, 2017, 3:11pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/426 "2017-07-01T15:11:00Z")
> [@Northern\_Piper](#): > > We can’t mislead the court as to the facts or the law. But our duty is to put forward the client’s position, as long as it’s consistent with the facts and law. > > For instance, in a custody case, the client might take the position that he’s the better parent and should have custody. I may have my own personal opinion about that, but that’s irrelevant. Provided the client’s position is consistent with the law and facts, I have to put that position forward. > > Similar examples can be imagined for defence counsel in criminal cases, counsel acting on contract disputes, etc. This is a good example. Say you had a father in a custody dispute and you had prepared an argument as to why he should be the primary custodian. The night before the hearing he admits to you that he is a homosexual. You believe strongly (not really, but for this hypo) that this will be very bad for his children to have a gay person as primary custodian. You attempt to withdraw from representation, but the judge says “Too late. No continuance, no withdrawal because it would prejudice him.” What do you do? You go into court and argue that he should be the primary custodian regardless of your own personal views. Is that compelled speech? ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [July 2, 2017, 4:40am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/427 "2017-07-02T04:40:30Z")
> [@k9bfriender](#): > > She would have had to resign before the 2014 congress sat, and even then would have had to overcome a filibuster to be replaced with an Obama pick. > > If she was going to retire, she really should have retired in 2010, when it would only take one republican senator to break a filibuster. I don’t think that Obama could have gotten a justice confirmed past that. > > McConnell would have gone on about how a president in his last term cannot pick a SCOTUS, and by the 2016 election, there would have been 2 open seats to be filled. I don’t know about the 2010 deadline. I think McConnell would have been fine with replacing a liberal justice with another liberal justice. It was shifting the balance of the court by replacing scalia with a liberal that he was willing to achieve by hook or by crook ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 3, 2017, 1:14pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/428 "2017-07-03T13:14:01Z")
> [@UltraVires](#): > > Why would there be an exception for art when an individual is in the business of creating art? If I am in the business of hanging drywall, selling vegetables, skinning deer, or repairing shoes, I must do so, at least in Colorado, without any regard for sexual orientation of the customers. > > The argument is that art is creative and expressive conduct. If I am doing it for myself, to sell at auction, lets say, I can create what I want, and refrain from every making any pro-gay painting or other creation. > > If I am in the business of creating things _for others_, it would seem that it is not my expressive conduct, but expressive conduct done for a fee so that others may express their beliefs. But presumably you would agree that the Cab Rank Rule (thanks, **AK84**!) does not apply to us, and that you or I could permissibly refuse to represent a gay couple seeking - let’s say - to challenge a state law forbidding same sex adoption. We’re being asked to put forward their facts and their legal argument, but the law does not compel us to work for them as Colorado law compels the baker to. What’s the difference? ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [November 27, 2017, 6:28pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/429 "2017-11-27T18:28:54Z")
Bumping in anticipation of oral arguments at the Supreme Court. Arguments are set for Tuesday, December 5, 2017 at 10am EST. The case is formally Masterpiece Cakeshop v. CO Civil Rights Comm’n (16-111). The court has structured [the question](https://www.supremecourt.gov/docket/DocketFiles/HTML/qp/16-00111qp.pdf) (pdf link - text quoted below) as follows: > [@](#): > > QUESTION PRESENTED: > Jack Phillips is a cake artist. The Colorado Civil Rights Commission ruled that he engaged in sexual orientation discrimination under the Colorado Anti- Discrimination Act ("CADA’') when he declined to design and create a custom cake honoring a same-sex marriage because doing so conflicts with his sincerely held religious beliefs. > > ``` > The Colorado Court of Appeals found no violation of the Free Speech or Free Exercise Clauses because it deemed Phillips' speech to be mere conduct compelled by a neutral and generally applicable law. It reached this conclusion despite the artistry of Phillips' cakes and the Commission's exemption of other cake artists who declined to create custom cakes based on their message. This analysis (1) flouts this Court's controlling precedent, (2) conflicts with Ninth and Eleventh Circuit decisions regarding the free speech protection of art, (3) deepens an existing conflict between the Second, Third, Sixth, and Eleventh Circuits as to the proper test for identifying expressive conduct, and (4) conflicts with free exercise rulings by the Third, Sixth, and Tenth Circuits. > > ``` > > The question presented is: > Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment. There has been [quite a number of amici (“friend of the court”) briefs](http://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/) about a variety of aspects of the case. Plenty of pro and plenty of con arguments. I found [one amici](http://www.scotusblog.com/wp-content/uploads/2017/09/16-111_ac_cake_artists.pdf) (pdf link) interesting - a group of cake designers who express no opinion on how the case should be ruled but just want to emphasize that cake design is an artistic endeavor. The way the official question is stated it almost seems the court has already accepted that cake design is an artistic endeavor. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [November 27, 2017, 6:38pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/430 "2017-11-27T18:38:10Z")
> [@Iggy](#): > > … The way the official question is stated it almost seems the court has already accepted that cake design is an artistic endeavor. Yeah, “compel Phillips to create expression that violates his sincerely held religious beliefs” sure does sound like they’re framing it as a violation of the First Amendment. ---
**Author:** ![CurtC](https://avatars.discourse-cdn.com/v4/letter/c/ce73a5/32.png) [@CurtC](https://boards.straightdope.com/u/CurtC)\ **Post date:** [November 27, 2017, 8:08pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/431 "2017-11-27T20:08:45Z")
> [@HurricaneDitka](#): > > Yeah, “compel Phillips to create expression that violates his sincerely held religious beliefs” sure does sound like they’re framing it as a violation of the First Amendment. Obviously, whoever wrote that “question presented” is spinning it like that, but who was that? I was assuming it was the people doing the appeal, which would be the lawyers for the cake place, right? Or does the obviously biased language come from the court itself? ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [November 27, 2017, 8:18pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/432 "2017-11-27T20:18:09Z")
> [@CurtC](#): > > Obviously, whoever wrote that “question presented” is spinning it like that, but who was that? I was assuming it was the people doing the appeal, which would be the lawyers for the cake place, right? > > Or does the obviously biased language come from the court itself? I don’t know. Perhaps one of our resident lawyers will chime in with the info. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 27, 2017, 8:22pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/433 "2017-11-27T20:22:54Z")
It comes from the [petition for certiorari](http://www.scotusblog.com/wp-content/uploads/2016/08/16-111-cert-petition.pdf) (or in other words from the appealing party). It’s normal. [Here](https://www.supremecourt.gov/qp/142%20origqp.pdf)’s a statement of questions presented in Florida v. Georgia, also currently pending before the Court. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [November 27, 2017, 8:43pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/434 "2017-11-27T20:43:42Z")
Rarely, the court may add its own questions too. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [November 27, 2017, 8:50pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/435 "2017-11-27T20:50:33Z")
> [@Bone](#): > > Rarely, the court may add its own questions too. Wouldn’t that just be icing on the cake, though? ---
**Author:** ![octopus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/octopus/32/3716_2.png) [@octopus](https://boards.straightdope.com/u/octopus)\ **Post date:** [November 28, 2017, 4:12am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/436 "2017-11-28T04:12:15Z")
I doubt that the court is going to force the creation of custom content. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 28, 2017, 4:20am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/437 "2017-11-28T04:20:43Z")
No, but that’s not what is at issue here. The baker refused to make a cake for a same-sex wedding. Had he refused based on the specifications provided by the couple, the analysis would perhaps be different, but he refused to create any content for a wedding - expressive or not. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 28, 2017, 12:22pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/438 "2017-11-28T12:22:21Z")
> [@Really\_Not\_All\_That\_Bright](#): > > But presumably you would agree that the Cab Rank Rule (thanks, **AK84**!) does not apply to us, and that you or I could permissibly refuse to represent a gay couple seeking - let’s say - to challenge a state law forbidding same sex adoption. We’re being asked to put forward their facts and their legal argument, but the law does not compel us to work for them as Colorado law compels the baker to. What’s the difference? I’m not sure how I missed this earlier. Yes, I agree the Cab Rank Rule does not apply. However, lawyers, like bakers, cannot refuse clients on the basis of race, religion, etc. (those things covered in the 1964 Civil Rights Act) I can’t post a sign outside my door saying “No Black Clients Accepted.” The question arises in a state, like Colorado, that has added sexual orientation to the list of people that businesses cannot discriminate against. If I go into court and argue that a same sex couple should be able to adopt a child, it is my speech in a way, but it is only my speech because the client hired me to say that. If Conservatives Against Gay Adoption PAC hired me, I would be arguing about how terrible it would be for the deviant sexual people to be in a position to poison the minds of the next generation. Now, I agree that as lawyers or bakers, we don’t have to accept a particular client. But the question becomes when are we discriminating against the class. If a baker won’t bake same sex marriage cakes or if I won’t argue a case in favor of gay adoption, at what point does this violate the general public accommodation law? And, the further question in this case, is that assuming it does violate the law, does the law compel speech on the lawyer or baker’s part? I contend that the answer to the last question, the one taken by the Court, is “no.” The stuff I say in court has no relationship to my actual beliefs on the subject. It’s a nice case and rewarding when that happens, but my job is to represent the client. My speech in court is not my own, but done on behalf of who I represent. I do not see a First Amendment issue. ---
**Author:** ![puzzlegal](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/puzzlegal/32/3827_2.png) [@puzzlegal](https://boards.straightdope.com/u/puzzlegal)\ **Post date:** [November 28, 2017, 1:00pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/439 "2017-11-28T13:00:54Z")
I would think it would matter what the couple asked for. Did they ask for “a wedding cake”? Or did they request a cake celebrating the specifics of their marriage, perhaps featuring their names or a cake topper with two men (women?). ---
**Author:** ![RitterSport](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rittersport/32/6326_2.png) [@RitterSport](https://boards.straightdope.com/u/RitterSport)\ **Post date:** [November 28, 2017, 2:58pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/440 "2017-11-28T14:58:16Z")
> [@Really\_Not\_All\_That\_Bright](#): > > No, but that’s not what is at issue here. The baker refused to make a cake for a same-sex wedding. Had he refused based on the specifications provided by the couple, the analysis would perhaps be different, but he refused to create any content for a wedding - expressive or not. Exactly. There was a NY Times Op-Ed yesterday, which I can’t seem to find today, annoyingly, that lays out that exact difference, and also includes a different case where the baker refused to design a cake based on content. ETA: Here’s the article: [https://www.nytimes.com/2017/11/27/opinion/gay-wedding-cake.html](https://www.nytimes.com/2017/11/27/opinion/gay-wedding-cake.html) [Previous page](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792.md?page=21) [Next page](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792.md?page=23)