# 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:** 43
**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:** [December 13, 2017, 2:14am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/841 "2017-12-13T02:14:44Z")
> [@crowmanyclouds](#): > > [No.](https://www.google.com/search?newwindow=1&tbm=isch&q=wedding+cake&backchip=g_7:modern&chips=q:wedding+cake&sa=X&ved=0ahUKEwiYqfnc84XYAhUCMt8KHWtaCnQQ3VYIJSgA&biw=1067&bih=449&dpr=1.5) > > CMC fnord! I could be wrong, but that’s not a valid argument against what I said. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [December 13, 2017, 2:15am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/842 "2017-12-13T02:15:12Z")
> [@John\_Mace](#): > > If we’re speaking of what is common practice, then don’t wedding cakes typically have the names of the happy couple on them? I suppose it’s not always the case, but isn’t it almost always the case? Would it be so odd for a baker to assume that would be the case. I mean, if it’s going to come down to what you are saying, then I think you’re argument is pretty weak. Really? I don’t think I’ve ever seen names on a wedding cake in my life. [Google Image Search for wedding cakes](https://www.google.com/search?q=wedding+cake&client=firefox-b-1-ab&source=lnms&tbm=isch&sa=X&ved=0ahUKEwig6pW-9IXYAhXp4IMKHRsfA8gQ_AUICigB&biw=2144&bih=1101#imgrc=zuqgtNCw_c9CIM:) shows some cakes with “Mr. and Mrs.” on it, but few if any with actual names on them. Edit: ninja’ed. John, why isn’t that a valid argument? I’m not sure why you think that’s weak: the point is that wedding cakes generally aren’t gendered. If he ever makes wedding cakes that aren’t gendered, he could just as easily make a non-gendered wedding cake for a gay couple as for a straight couple. It’s not about the speech, it’s about the customer. ---
**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:** [December 13, 2017, 2:23am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/843 "2017-12-13T02:23:00Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Really? I don’t think I’ve ever seen names on a wedding cake in my life. [Google Image Search for wedding cakes](https://www.google.com/search?q=wedding+cake&client=firefox-b-1-ab&source=lnms&tbm=isch&sa=X&ved=0ahUKEwig6pW-9IXYAhXp4IMKHRsfA8gQ_AUICigB&biw=2144&bih=1101#imgrc=zuqgtNCw_c9CIM:) shows some cakes with “Mr. and Mrs.” on it, but few if any with actual names on them. > > Edit: ninja’ed. John, why isn’t that a valid argument? > > I’m not sure why you think that’s weak: the point is that wedding cakes generally aren’t gendered. If he ever makes wedding cakes that aren’t gendered, he could just as easily make a non-gendered wedding cake for a gay couple as for a straight couple. It’s not about the speech, it’s about the customer. I think there would normally be some indication if it was for a SSM or not. Either the names on the cake, or the couple coming in to pick it out or the billing or something. **Bricker** was saying that it’s customized for a “specific wedding” and you respond by seeming to downplay the idea that the baker would have knowledge about the specifics of the wedding. I think he normally would. I think the argument is weak that the baker would normally be ignorant of the wedding specifics, as it applies to the genders of the couple. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [December 13, 2017, 2:27am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/844 "2017-12-13T02:27:54Z")
> [@John\_Mace](#): > > I think there would normally be some indication if it was for a SSM or not. Either the names on the cake, or the couple coming in to pick it out or the billing or something. **Bricker** was saying that it’s customized for a “specific wedding” and you respond by seeming to downplay the idea that the baker would have knowledge about the specifics of the wedding. I think he normally would. I think the argument is weak that the baker would normally be ignorant of the wedding specifics, as it applies to the genders of the couple. It doesn’t matter whether he knows specifics of the wedding. It matters whether his cake–his “speech”– **communicates** those specifics. If every cake he makes has a “Mr. and Mrs.” on top of it, or little human genitalia or something, his case strengthens–although the happy gay couple could presumably just remove that tacky plastic cake-topper and Bob’s your uncle. But if he makes cakes where the only gender is the sex of the flowers atop them, no mention of human gender, there’s no reason he couldn’t communicate **the exact same text** to a same-sex couple. ---
**Author:** ![crowmanyclouds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crowmanyclouds/32/19884_2.png) [@crowmanyclouds](https://boards.straightdope.com/u/crowmanyclouds)\ **Post date:** [December 13, 2017, 2:28am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/845 "2017-12-13T02:28:27Z")
> [@John\_Mace](#): > > I could be wrong, but that’s not a valid argument against what I said. If wedding cakes “typically have the names of the happy couple on them” and it’s “almost always the case” then I think that would be evidenced by a simple search for pictures of wedding cakes. Wedding cakes _exist_ to show off a bakers skill with fondant, butter cream and a piping bag. Think butter cream flowers, not calligraphy. CMC fnord! ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 13, 2017, 4:02am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/846 "2017-12-13T04:02:05Z")
> [@](#): > > If every cake he makes has a “Mr. and Mrs.” on top of it, or little human genitalia or something, his case strengthens–although the happy gay couple could presumably just remove that tacky plastic cake-topper and Bob’s your uncle. But if he makes cakes where the only gender is the sex of the flowers atop them, no mention of human gender, there’s no reason he couldn’t communicate the exact same text to a same-sex couple. What is your understanding of the compelled speech doctrine? ---
**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:** [December 13, 2017, 4:36am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/847 "2017-12-13T04:36:03Z")
> [@The\_Tooth](#): > > No, because that’s not what they ordered. I’m not the one defending a business changing the quality of its service based on the customer’s sex life. You just said “Yes” you would be OK with it. ---
**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:** [December 13, 2017, 4:42am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/848 "2017-12-13T04:42:15Z")
> [@Brown\_Eyed\_Girl](#): > > It sounds like you are, though. And the only practical difference between a gay wedding and a straight wedding is the sexual orientation of the participants. The cakes they eat at receptions, though…no practical difference. It’s my understanding that the dispute is not that they wanted a special cake that would have been practically different from any other wedding cake, but that he refused to provide the same exact service he provides to any other engaged couple solely based on their sexual orientation. He did not refuse to make a cake that included symbolism specific to their sexual orientation, but refused to make any cake for that couple specifically \*because \*of their sexual orientation. He even admitted to doing so. cite. It is a stipulated fact that the Colorado baker has sold cakes to gay people. So he will sell them a birthday cake but he will not sell them a gay themed wedding cake. > [@](#): > > Are those facts in dispute? Because if they are not, it’s absolutely clear to the Colorado Civil Rights Division and previous courts. Yes those facts are in dispute. In fact they are wrong. ---
**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:** [December 13, 2017, 4:46am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/849 "2017-12-13T04:46:09Z")
> [@Left\_Hand\_of\_Dorkness](#): > > It also seems to me that this opens the floodgates for trivially easy discrimination. Let’s say I run a restaurant that offers a lot of different burger toppings, resulting in as many possible burgers as there are wedding cakes. Can I declare my burgers an artistic statement, and refuse to serve Muslims? > If I run an auto garage, can I write a short poem to put on the window of each car when it’s done, and, declaring this poetry a part of my service, thereby refuse to serve Mexicans? Can my aforementioned dance studio turn away black students, because dance is an integral part of my service, and the state can’t compel speech? > > It seems to me that the state shouldn’t be able to compel specific content, but it should be able to compel people to offer the fee-for-service speech on an equal basis to all protected classes. If there’s specific content you don’t want to offer to protected classes, it’s simple enough not to offer it to anyone. Homosexuals are not a protected class under federal law. ---
**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:** [December 13, 2017, 6:06am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/850 "2017-12-13T06:06:02Z")
> [@Left\_Hand\_of\_Dorkness](#): > > You & John are coming at it differently. Given your position, what about my other examples–the dance studio, the auto garage, the burger joint? Do you agree that in any of those cases I can discriminate? I think there will be a multi pronged analysis. The first step would determine if the activity implicates speech. The second step would determine if there is a type of protected class/suspect class involved. If the answer to the first two steps is yes, then an interest balancing would take place and determine which is the greater harm based on the totality of the circumstances. So if I apply that to the current case, I think the court will rule that the first step is not met and that the cake design/creation in this case doesn’t implicate speech sufficient to meet this hurdle. Once that is dispensed with, the issue of protected class would control and Masterpiece will lose. This also has the seemingly desirable outcome of not overturning a bunch of other precedent. Applied to your hypotheticals, I’d say a dance studio, and auto garage, and a burger joint don’t implicate speech. What would implicate speech are things like a painter (art), a lobbyist, a lawyer, and probably many others. That’ my take. Of course, I thought Hillary would win so my predictive ability is questionable. ---
**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:** [December 13, 2017, 6:21am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/851 "2017-12-13T06:21:29Z")
It’ll be interesting because it will almost certainly come down to Kennedy, who has been a pretty strong supporter of gay rights, but who is also a very strong supporter of the 1st amendment. I tend to think he’ll vote in favor the gay couple, but I’m not highly confident of that prediction. I could see it going the other way. ---
**Author:** ![The\_Tooth](https://avatars.discourse-cdn.com/v4/letter/t/c67d28/32.png) [@The\_Tooth](https://boards.straightdope.com/u/The_Tooth)\ **Post date:** [December 13, 2017, 6:27am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/852 "2017-12-13T06:27:44Z")
> [@Damuri\_Ajashi](#): > > You just said “Yes” you would be OK with it. No, I said “Sure, if that’s what they ordered”. ---
**Author:** ![Brown\_Eyed\_Girl](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/brown_eyed_girl/32/3574_2.png) [@Brown\_Eyed\_Girl](https://boards.straightdope.com/u/Brown_Eyed_Girl)\ **Post date:** [December 13, 2017, 7:24am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/853 "2017-12-13T07:24:45Z")
> [@Damuri\_Ajashi](#): > > cite. It is a stipulated fact that the Colorado baker has sold cakes to gay people. So he will sell them a birthday cake but he will not sell them a gay themed wedding cake. What exactly is a “gay themed wedding cake”? What specific traits of the custom cake the couple was requesting made it “gay themed”? [This article](https://www.washingtonpost.com/politics/courts_law/supreme-court-asked-if-wedding-cake-bakers-case-protects-religious-freedom-or-illegal-discrimination/2017/12/05/c73e6efa-d969-11e7-a841-2066faf731ef_story.html?utm_term=.501193c9e7d8) seems to indicate that the refusal had nothing to do with the theme of the cake, but everything to do with the sexual orientation of the participants. What am I missing? Simply put he offered a service (custom wedding cakes) to everyone except gay couples. Colorado says he can’t do that. He says compelling him to bake cakes is a violation of freedom of expression. Couldn’t it then be argued that compelling architects to design buildings with emergency exits a violation of their freedom of expression? ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [December 13, 2017, 11:50am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/854 "2017-12-13T11:50:04Z")
> [@Bricker](#): > > What is your understanding of the compelled speech doctrine? On this messageboard, it is that you cannot compel me to answer this sort of leading question. Just say what you want to say, Bricker. ---
**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:** [December 13, 2017, 12:11pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/855 "2017-12-13T12:11:33Z")
> [@Brown\_Eyed\_Girl](#): > > … He says compelling him to bake cakes is a violation of freedom of expression. Couldn’t it then be argued that compelling architects to design buildings with emergency exits a violation of their freedom of expression? One possible way the court may analyze the competing interests is similar to a strict scrutiny analysis. If a right warrants strict scrutiny the government may still apply a neutral law which meets a compelling government interest and which is narrowly tailored to meet that interest. So an architect could be compelled to include emergency exits in his building design since fire safety and looking after the needs of the public in an emergency are compelling government interests, the requirement for emergency exits is narrowly tailored to meet that interest. Preventing discrimination in commerce is also a compelling government interest. So part of what the court must address in the case of the baker is if strict scrutiny applies and , if so, whether compelling each and every baker to produce goods against his will is the most narrowly tailored means by which government can address that problem. ---
**Author:** ![Revenant\_Threshold](https://avatars.discourse-cdn.com/v4/letter/r/f1d935/32.png) [@Revenant\_Threshold](https://boards.straightdope.com/u/Revenant_Threshold)\ **Post date:** [December 13, 2017, 1:20pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/856 "2017-12-13T13:20:44Z")
Perhaps this question has already been answered, but; to what extent does context change a generic message? Let’s say the baker has a range of non-custom, not-individualised cakes that pull a Diamond Joe Quimby and say “I endorse this event and/or product” on the top. The content of the speech, such as it is, is exactly the same for each cake. A gay couple make to buy one and mention that it’s for their wedding; the baker refuses them specifically. Other than the couple’s taste in cakes, is there a problem here, legally speaking? ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [December 13, 2017, 1:48pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/857 "2017-12-13T13:48:45Z")
> [@John\_Mace](#): > > If we’re speaking of what is common practice, then don’t wedding cakes typically have the names of the happy couple on them? I suppose it’s not always the case, but isn’t it almost always the case? Would it be so odd for a baker to assume that would be the case. I mean, if it’s going to come down to what you are saying, then I think you’re argument is pretty weak. I used to work for a full-service bridal salon and it was rare for a cake then to have names on it. Birthday cakes, yes. Wedding cakes, no. Things may have changed in the meantime, though. ---
**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:** [December 13, 2017, 1:58pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/858 "2017-12-13T13:58:24Z")
The court dabbled with the idea of context. Justice Alito offered a hypothetical that more or less it was, “One couple buys a cake with the message “November 9, the best day in history” in celebration of their wedding anniversary which falls on November 9. A neo Nazi orders a cake with the message, " November 9, the best day in history” in celebration of Kristalnacht. And the justices wanted to know that if the baker offered to produce the cake with that message for a wedding anniversary could they refuse a cake with the same message to celebrate Kristalnacht? This was in response to a reply to a line of questioning from Mr Yarger, Solicitor General of Colorado representing the state. Yarger stated that, “That’s – that’s right, just as he would have to sell a happy birthday cake to a member of the Jewish faith or an African-American couple.” Justice Alito sought to show that perhaps there is a set of circumstances in which the same words might convey a very different meaning so having a bright line rule that you must write for one customer anything you have previously written for another customer might not be a good universal rule. So at least Justice Alito has in mind that context matters. ---
**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:** [December 13, 2017, 2:10pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/859 "2017-12-13T14:10:20Z")
> [@Iggy](#): > > The court dabbled with the idea of context. Justice Alito offered a hypothetical that more or less it was, “One couple buys a cake with the message “November 9, the best day in history” in celebration of their wedding anniversary which falls on November 9. A neo Nazi orders a cake with the message, " November 9, the best day in history” in celebration of Kristalnacht. And the justices wanted to know that if the baker offered to produce the cake with that message for a wedding anniversary could they refuse a cake with the same message to celebrate Kristalnacht? > > This was in response to a reply to a line of questioning from Mr Yarger, Solicitor General of Colorado representing the state. Yarger stated that, “That’s – that’s right, just as he would have to sell a happy birthday cake to a member of the Jewish faith or an African-American couple.” Justice Alito sought to show that perhaps there is a set of circumstances in which the same words might convey a very different meaning so having a bright line rule that you must write for one customer anything you have previously written for another customer might not be a good universal rule. > > So at least Justice Alito has in mind that context matters. So, maybe Alito will vote in favor of the baker? 🙂 But that’s an interesting question, since “Happy Birthday” could apply to… well, you know who else has a birthday? ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [December 13, 2017, 2:42pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/860 "2017-12-13T14:42:39Z")
> [@Left\_Hand\_of\_Dorkness](#): > > If not, they may be customized, but their customization doesn’t specify the sexual preferences, or genders, of the happy couple; he should no more be able to hide behind that irrelevant customization to back up his discrimination than should the dance studio. I think the real difficulty in this debate is confusion over how this baker designs and makes his cake. The baker’s brief claims that “Before designing [the cake], he meets with the couple to learn their desires, personalities, preferences, and wedding details.” But it provides no other detail over what that means. There was an amicus brief filed by several (pro-same-sex marriage) bakers which argued that wedding cakes were a real art form and used a number of examples of cakes specifically tailored to the couple and their interests, etc. (and it had pictures!). I found that brief rather persuasive about the level of personalization and artistry that could go into wedding cakes. I don’t know if this baker goes to that extreme with every couple. But if so, it seems to me to be materially different than refusing to bake Design #5 for a particular event (which was how we picked the cake when I got married. You chose from a list cake types and then looked through a book of designs and chose one and we got the number 7 in chocolate with vanilla icing – or something, I don’t really remember. But this guy is claiming that he doesn’t do that, I think.) . [Previous page](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792.md?page=42) [Next page](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792.md?page=44)