# 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:** 52
**Author:** ![Una\_Persson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/una_persson/32/346_2.png) [@Una\_Persson](https://boards.straightdope.com/u/Una_Persson)\ **Post date:** [December 20, 2017, 3:44am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1021 "2017-12-20T03:44:54Z")
> [@Slash1972](#): > > How would the restaurant owner know they were gay? I’ve personally been evicted from a club/restaurant because I held hands, danced with, and kissed my wife at dinner. No more or less than any other couple was doing so. We were even told it was because we were two women. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [December 20, 2017, 1:51pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1022 "2017-12-20T13:51:07Z")
> [@k9bfriender](#): > > I am just thinking that some bigoted restaurant owner may use this as an excuse to discriminate against a gay couple wishing to eat in his restaurant. > > Dunno if it would hold up, but I am of the opinion that the current subject, the baker, was in the wrong. If SCOTUS sides with the baker, I don’t know where the right to discriminate will end. The right to discriminate would only apply to “sincerely held religious beliefs”. The number of people willing to turn down money is exeedingly small. Also, SCOTUS doesn’t have to issue a ruling that broad anyway. They can distinguish between expressive conduct, public accomodations, and personal services. Expressive conduct and personal services would allow for conscience opt outs, while public accomodations would not. Serious question: Is a lesbian bar a public accomodation? Can they legally bar men? Or would they be subject to the “nature of business” exception to the Civil Rights Act? ---
**Author:** ![Slash1972](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slash1972/32/6461_2.png) [@Slash1972](https://boards.straightdope.com/u/Slash1972)\ **Post date:** [December 20, 2017, 2:15pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1023 "2017-12-20T14:15:03Z")
> [@Una\_Persson](#): > > I’ve personally been evicted from a club/restaurant because I held hands, danced with, and kissed my wife at dinner. No more or less than any other couple was doing so. We were even told it was because we were two women. Seems strange to me that someone would turn down the chance to watch two women kissing, but that’s just me 🙂 ---
**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 20, 2017, 3:26pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1024 "2017-12-20T15:26:59Z")
> [@adaher](#): > > … > Serious question: Is a lesbian bar a public accomodation? Can they legally bar men? Or would they be subject to the “nature of business” exception to the Civil Rights Act? It depends. [Private clubs](http://blogs.findlaw.com/free_enterprise/2015/04/is-your-private-business-a-public-accomodation.html) which are only open to their membership (and possibly invited guests) are not public accommodations subject to ADA and Civil Rights law limitations. The term private club is not defined in the relevant laws. But if someone is at the door controlling entrance to only those with a membership card then the bar may a private club. This is not the same as a bouncer collecting a cover charge. Other factors tending to indicate that a place is a private club and not a public accommodation include the size of the membership, the reason for formation of the club, whether membership is limited, and whether an application fee is charged for membership. So the bar located within the yacht club, where access is limited to members of the yacht club, is likely a private club. The bar and restaurant adjacent to the public marina which is open to anyone who shows up is a public accommodation. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [December 20, 2017, 3:58pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1025 "2017-12-20T15:58:34Z")
There is an exception to civil rights laws having to do with if compliance alters the nature of your business you could be exempt. So a lesbian or gay bar could probably get away with barring members of the opposite sex because it is after all, a “safe place” for gay men and women to be free of heterosexuals bugging them. I also wonder how this kind of law applies to overtly religious businesses. This bakery has long been Christian and does not just have a bee up its bonnet about gays. ---
**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:** [December 20, 2017, 4:00pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1026 "2017-12-20T16:00:25Z")
> [@Damuri\_Ajashi](#): > > That’s actually a fairly broad ruling. That is saying that you cannot object to the event itself, you can only object to design elements. IOW the baker would have been obligated to make a generic looking cake to celebrate an event he profoundly disagreed with. > > So by that token if “political ideology” (or something like that) were a "Colorado protected class then Donald Trump could get a feminist band to perform at his inauguration if they were generally for hire. This is only true if you accept the premise that the baker is being compelled to engage in “speech” by making a cake for an event that (1) he doesn’t have to attend, and (2) that would not in any way indicate his support for the event assuming his services could even be identified. That’s quite a bit different from forcing a band to play _at_ an event. I think the feminist anti-Trumpist band (or a homophobic viola player) would have a much better version of the baker’s argument. > [@John\_Mace](#): > > A question for our legal experts. If the Supremes rule in favor of the baker, would we see this play out: > > 1. Adam and Steve could not be turned away by a restaurant just because they were gay. They could eat dinner without fear of being kicked out. (Someone might try to kick them out, but Adam and Steve would have legal recourse.) > > 2. If Adam and Steve wanted to host their wedding rehearsal dinner a the restaurant, they could be turned down, even if there were no “gay symbols” that were planned as part of the celebration. It’s hard to distinguish a meal from a cake. Food - particularly in fine restaurants - can include “artistic” elements such as carrot flowers, and presentation is part of the restauranteur’s business. It’s a bit of a stretch to suggest that serving a gay couple implies endorsement of same-sex relationships, but I don’t see how the restaurant doesn’t have an equally valid claim. I don’t think #2 is legally distinguishable. It’s a more explicit “endorsement,” but we’ve already drawn the line _before_ scenario #1 so it doesn’t matter. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 20, 2017, 4:03pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1027 "2017-12-20T16:03:14Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It’s a bit of a stretch to suggest that serving a gay couple implies endorsement of same-sex relationships, but I don’t see how the restaurant doesn’t have an equally valid claim. Does the chef meet the diners ahead of time and craft a meal based on his sense of them as a group? If so, then sure, the restaurant has a good claim. But if the chef is simply reacting to the waiter’s request for a #5, light on the Hollandaise sauce, then no. ---
**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 20, 2017, 4:09pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1028 "2017-12-20T16:09:44Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It’s hard to distinguish a meal from a cake. Food - particularly in fine restaurants - can include “artistic” elements such as carrot flowers, and presentation is part of the restauranteur’s business. It’s a bit of a stretch to suggest that serving a gay couple implies endorsement of same-sex relationships, but I don’t see how the restaurant doesn’t have an equally valid claim. I was thinking along the lines of the baker saying “I’ll sell you [gay people] anything I have in the shop right now, but I’m not going to bake a cake for your wedding.” If that is distinguishable, then so is “You [gay people] can have dinner here if you want, but I’m not going to participate in what is a part of your wedding ceremony [the rehearsal dinner].” ---
**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:** [December 20, 2017, 4:09pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1029 "2017-12-20T16:09:59Z")
> [@Bricker](#): > > Does the chef meet the diners ahead of time and craft a meal based on his sense of them as a group? No. But as I’ve pointed out repeatedly, the baker didn’t do that either. He booted the couple before discussing what they wanted. The Court is going to have to rule on the record in front of it, not on a hypothetical set of facts. ---
**Author:** ![Gyrate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gyrate/32/3588_2.png) [@Gyrate](https://boards.straightdope.com/u/Gyrate)\ **Post date:** [December 20, 2017, 4:16pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1030 "2017-12-20T16:16:42Z")
> [@adaher](#): > > There is an exception to civil rights laws having to do with if compliance alters the nature of your business you could be exempt. So a lesbian or gay bar could probably get away with barring members of the opposite sex because it is after all, a “safe place” for gay men and women to be free of heterosexuals bugging them. While the underlying rationale is true (case in point)… > [@Slash1972](#): > > Seems strange to me that someone would turn down the chance to watch two women kissing, but that’s just me 🙂 …I have a hard time believing that would form a legal basis for exclusion. I’d always assumed such clubs were established as private establishments specifically so they could exclude undesirables. ---
**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:** [December 20, 2017, 4:17pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1031 "2017-12-20T16:17:55Z")
> [@John\_Mace](#): > > I was thinking along the lines of the baker saying “I’ll sell you [gay people] anything I have in the shop right now, but I’m not going to bake a cake for your wedding.” If that is distinguishable, then so is “You [gay people] can have dinner here if you want, but I’m not going to participate in what is a part of your wedding ceremony [the rehearsal dinner].” The problem is that restaurants don’t just sell you what they have in the kitchen. They make a meal to order (albeit generally from a preset list). ---
**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 20, 2017, 4:21pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1032 "2017-12-20T16:21:14Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The problem is that restaurants don’t just sell you what they have in the kitchen. They make a meal to order (albeit generally from a preset list). That’s not the issue I was addressing. For example, if the Supremes rule in favor of the baker in this narrow case, hey baker still can’t refuse to make a cake for gay person’s birthday. There is nothing “gay” about having a birthday just as there is nothing “gay” about dining out. The difference is the connection to the gay wedding. ---
**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:** [December 20, 2017, 4:41pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1033 "2017-12-20T16:41:59Z")
> [@John\_Mace](#): > > That’s not the issue I was addressing. For example, if the Supremes rule in favor of the baker in this narrow case, hey baker still can’t refuse to make a cake for gay person’s birthday. There is nothing “gay” about having a birthday just as there is nothing “gay” about dining out. The difference is the connection to the gay wedding. What if the gay birthday cake includes rainbows and other LGBT symbols? ---
**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 20, 2017, 5:12pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1034 "2017-12-20T17:12:23Z")
> [@Really\_Not\_All\_That\_Bright](#): > > What if the gay birthday cake includes rainbows and other LGBT symbols? That’s not a birthday cake. That’s a gay birthday cake. 😉 But seriously, can a baker be compelled to make a custom cake with two guys kissing on it, regardless of what gets decided in this case? ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [December 20, 2017, 5:25pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1035 "2017-12-20T17:25:50Z")
> [@adaher](#): > > There is an exception to civil rights laws having to do with if compliance alters the nature of your business you could be exempt. So a lesbian or gay bar could probably get away with barring members of the opposite sex because it is after all, a “safe place” for gay men and women to be free of heterosexuals bugging them. > > I also wonder how this kind of law applies to overtly religious businesses. This bakery has long been Christian and does not just have a bee up its bonnet about gays. If it were a christian baker, specializing only in christian themed cakes, then he could say, “I only do christian themed cakes.” As he was a secular baker, who happened to have christian beliefs, he was not only selling christian themed cakes, he was selling cakes with nearly any theme asked. If he is going to refuse a theme or a venue, then he needs to have a legally recognizable reason to discriminate against them. Discriminating against them for something that is protected under state law is not one of them. > [@John\_Mace](#): > > I was thinking along the lines of the baker saying “I’ll sell you [gay people] anything I have in the shop right now, but I’m not going to bake a cake for your wedding.” If that is distinguishable, then so is “You [gay people] can have dinner here if you want, but I’m not going to participate in what is a part of your wedding ceremony [the rehearsal dinner].” I would see it more as “We are not refusing you service, you can order your food, and we will make it for you. We just won’t let you sit at a table by yourselves, as that would be the restaurant endorsing a gay activity. You can take it to go, or you can sit separately or at the bar, just not at a table like a normal (heterosexual) couple would.” It’s going to be a “slippery slope” either way. If the baker loses, then there will probably be a suit against a photographer or a wedding planner next that goes to the SC, and will keep going until the supremes nail down the line where doing your job and creative expression meet. If the baker wins, then that will embolden other shopkeepers to refuse service, starting up lawsuits on that side, until the SC determines the line between religious freedom and discrimination lies. When it comes to slippery slopes, I am of the opinion that equality and fairness are at the top of that slope. Movement in that direction does not concern me that it will go too far. The other direction seems to go fairly quickly fairly easily. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 20, 2017, 5:37pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1036 "2017-12-20T17:37:53Z")
> [@Really\_Not\_All\_That\_Bright](#): > > No. But as I’ve pointed out repeatedly, the baker didn’t do that either. He booted the couple before discussing what they wanted. The Court is going to have to rule on the record in front of it, not on a hypothetical set of facts. True, but the record in front of the Court doesn’t support your characterization. From the oral argument: > [@](#): > > JUSTICE SOTOMAYOR: I’m sorry, didn’t he refuse to sell cupcakes that he sells regularly to the public to some same-sex couples who intended to marry? > > MS. WAGGONER: That allegation was never involved in the complaint, the formal charges, the ALJ’s decision. > > JUSTICE SOTOMAYOR: But I thought - I’m a little bit surprised by what you’re saying because your briefs seem to suggest differently – that the couple was looking at his already pre-designed cakes that he appears to sell without any customization, and they sat down with him, and he said I don’t supply cakes of any kind to gay couples. So I thought this cake was about his refusal to supply a cake for any wedding ceremony. > > MS. WAGGONER: Justice Sotomayor, that’s not how he responded to the couple. The couple came in and they requested a custom cake for their wedding. At that point, they brought in a folder with all kinds of designs they wanted to discuss and ended up purchasing a rainbow-layered cake or – or received a free rainbow-layered cake, which certainly is expression. > > The order below requires Mr. Phillips also to include words and symbols on his cakes. It’s that broad. So if, for example, Mr. Phillips had used a Bible verse on a cake in the past, he would be compelled to use that Bible verse in a different context. ---
**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:** [December 20, 2017, 5:46pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1037 "2017-12-20T17:46:50Z")
Waggoner’s characterization of the conversation is inconsistent with the administrative tribunal’s findings and those of the circuit court (which I linked to earlier). He is correct that Masterpiece didn’t refuse to sell the couple non-custom cakes, but the part about the folder full of designs is, if not made up of whole cloth, a factual contention the trial court rejected. In a previous thread I was able to link to the CRHRC’s order, but it seems to have been removed from Scribd now. The couple wound up getting a rainbow cake specifically _because_ they had been turned away by Masterpiece. ---
**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 20, 2017, 5:56pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1038 "2017-12-20T17:56:15Z")
Does anyone know which Western, industrialized countries have laws that would require the baker to provide a custom cake for a SSM? For the sake of simplicity, let’s assume that the cake in question doesn’t have any “gay symbols” on it. It’s just that the baker does not want to bake a cake for a gay wedding. In which countries would the baker be legally required to do so whether he wanted to or not? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 20, 2017, 6:12pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1039 "2017-12-20T18:12:50Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Waggoner’s characterization of the conversation is inconsistent with the administrative tribunal’s findings and those of the circuit court (which I linked to earlier). He is correct that Masterpiece didn’t refuse to sell the couple non-custom cakes, but the part about the folder full of designs is, if not made up of whole cloth, a factual contention the trial court rejected. In a previous thread I was able to link to the CRHRC’s order, but it seems to have been removed from Scribd now. The couple wound up getting a rainbow cake specifically _because_ they had been turned away by Masterpiece. Even if the court below “rejected,” Masterpiece’s version of facts, it was not a “trial court,” and those facts were never subject to a full adversarial fact-finding process. The CRHRC affirmed the decision of an ALJ. And that ALJ who ruled in favor of the wedding couple and against Phillips did so on cross-motions for summary judgment. Since the two stories appear to differ materially, how are you hanging your hat on the correctness of a “fact finding” that was merely a summary judgement win? ---
**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:** [December 20, 2017, 6:23pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1040 "2017-12-20T18:23:09Z")
Because that finding was not challenged on appeal, obviously. [Previous page](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792.md?page=51) [Next page](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792.md?page=53)