# 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:** 53
**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, 11:01pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1041 "2017-12-20T23:01:02Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Because that finding was not challenged on appeal, obviously. On appeal, they certainly challenged the substance of the factual finding. They specifically argued that they told the couple that they would would design and create any other bakery product for them except a custom wedding cake. The cake shop also argued specifically on appeal that the CRHRC order forces them to create and convey a celebratory message about same-sex marriage when making cakes for same-sex weddings, and the Colorado Court of Appeals decided, upon no factual record that spoke to the issue, that “…such conduct, even if compelled by the government, is not sufficiently expressive to warrant First Amendment protections.” There’s no factual finding here; the court merely repeats the ALJ’s conclusion that because Phillips refused to prepare a cake for the couple before any substantive discussion of the cake’s design, the ALJ could not determine whether Craig’s and Mullins’ desired wedding cake would constitute symbolic speech subject to First Amendment protections. How in the world is that a sufficient factual record? ---
**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 21, 2017, 1:16am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1042 "2017-12-21T01:16:32Z")
> [@k9bfriender](#): > > I dunno, a gay couple sitting down and eating in a restaurant like a normal couple would seems to me to be the restaurant endorsing gay marriage. They aren’t being turned away because they are gay, if they want to come in individually, or come as a group, or sit at the bar, that’s fine. But allowing them to sit at a table, just the two of them, could be considered to be too violative of the sanctity of marriage for a religious owned restaurant to tolerate. > > Especially when it comes to restaurants that are know to be romantic spots. Seems seating a gay couple there would be a very strong endorsement of gay marriage. > > (Note, I am not endorsing this view, just pointing out that I see that as the next step if the SCOTUS rules in favor of the baker.) > Agreed. > ETA: Sorry, not a legal expert, just IMHO… Most lawyers have little more than their opinions to guide them. Aside from a few constitutional types we have no better an opinion than you. I think it John is right on number 2 but number 1 is iffy. How do we know who the gay diners are and who the non-gay diners are? I think there are a lot of people outside of liberal bubble America who think this as clear as some of the inside the bubble liberals on this site seem to think. They were cool with gays serving in the military. They were cool with gays getting married. They were cool with gays adopting orphans. They are cool with gays being coaches and teachers and all that stuff. But when gays are trying to force people to do things they don’t want to do and drag this baker through the courts after they got a cake down the street that they wanted. One that most people even on THIS site seem to think the baker should have been able to refuse making. I dunno… ---
**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 21, 2017, 1:22am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1043 "2017-12-21T01:22:24Z")
> [@adaher](#): > > 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? Women only bars seems fine to me. Not just for lesbians but women who want to go grab a drink in a grope free, testosterone free environment, to watch Outlander with other women. Oddly, women seem to be somewhat welcome at gay bars when travelling with gay men. ---
**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 21, 2017, 1:25am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1044 "2017-12-21T01:25:56Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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. OK fine then a feminist artist who does not have to attend the inauguration. > [@](#): > > 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. Because you’re ordering off a menu and not making a request for special gay themed carrot flowers. > [@](#): > > 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. There is no artistry in renting a space. This would be a pure religious freedom case and as someone pointed out before, religious freedom rarely trumps neutrally applied laws. ---
**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 21, 2017, 1:33am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1045 "2017-12-21T01:33:01Z")
> [@Bricker](#): > > 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? Wait. The trial level decision was summary judgment?!?!?! Then no facts were established at all!?!?!?! Shouldn’t there have been a stipulation of facts? If the court can rule without the facts then design doesn’t matter, does 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 21, 2017, 1:36am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1046 "2017-12-21T01:36:44Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Because that finding was not challenged on appeal, obviously. I always thought that summary judgement without stipulated facts were supposed to view the facts in the light most favorable to the non-moving party. IOW, you can’t find for the gay couple on summary judgement unless you give the baker every benefit of you doubt, that includes accepting the baker’s version of the facts. That means the trial level court did not care whether the baker would have had to make a design incorporating gay buttsecks when they found for the couple. ---
**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 21, 2017, 3:05pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1047 "2017-12-21T15:05:26Z")
> [@Damuri\_Ajashi](#): > > I always thought that summary judgement without stipulated facts were supposed to view the facts in the light most favorable to the non-moving party. IOW, you can’t find for the gay couple on summary judgement unless you give the baker every benefit of you doubt, that includes accepting the baker’s version of the facts. That means the trial level court did not care whether the baker would have had to make a design incorporating gay buttsecks when they found for the couple. It was a summary judgment _with_ stipulated facts; the parties in fact filed cross-motions for summary judgment. The baker didn’t argue a contrary version of the facts until now. Had he done so, the ALJ would have been compelled to deny entry of a summary final order. > [@Bricker](#): > > On appeal, they certainly challenged the substance of the factual finding. They specifically argued that they told the couple that they would would design and create any other bakery product for them except a custom wedding cake. The cake shop also argued specifically on appeal that the CRHRC order forces them to create and convey a > celebratory message about same-sex marriage when making cakes for same-sex weddings, and the Colorado Court of Appeals decided, upon no factual record that spoke to the issue, that “…such conduct, even if compelled by the government, is not sufficiently expressive to warrant First Amendment protections.” That is not a challenge to “the substance” of any factual finding (whatever that means). Whether they agreed to make other bakery products _has nothing to do_ with whether they refused to make the wedding cake before or after discussion of the cake design. To challenge the underlying finding, Phillips would have to have argued that he did talk to the couple about the cake design. He never has. He has only challenged the conclusions of law. > [@](#): > > There’s no factual finding here; the court merely repeats the ALJ’s conclusion that because Phillips refused to prepare a cake for the couple before any substantive discussion of the cake’s design, the ALJ could not determine whether Craig’s and Mullins’ desired wedding cake would constitute symbolic speech subject to First Amendment protections. The fact that Phillips refused before discussing the issue _is_ a factual finding, and it was unchallenged by Masterpiece. I think you are confused by the term “factual finding” in this context. The ALJ (and CRC) did not have to weigh the parties’ evidence as to what was discussed, because the facts that underlay the conclusion of law were not (then) in dispute. To analogize, let’s pretend Dan is suing John. Dan says that John punched him in the face. John says that he cannot be liable for the punch, because he had a syncopal episode and was unable to control his movements. Dan - for whatever reason - does not challenge these assertions. The court grants John summary judgment, as it concludes that John lacked the intent to commit a battery. Dan cannot argue for the first time on appeal that there was no seizure and John was just fine at the time of the punch - regardless of whether he _should_ have. I don’t know if new issues can be raised for the first time on appeal in criminal proceedings, but they can’t in civil proceedings unless the case originates in an administrative tribunal which is permitted to hear and decide only certain issues (e.g., it may not rule on constitutional questions). Even in that case, parties are obligated to build whatever factual record they feel will be necessary to support the new issue on appeal during the administrative proceeding. From the Colorado Court of Appeals’ opinion: > [@](#): > > The parties did not dispute any material facts. Masterpiece and Phillips admitted that the bakery is a place of public accommodation and that they refused to sell Craig and Mullins a cake because of their intent to engage in a same-sex marriage ceremony. After the parties filed cross-motions for summary judgment, the ALJ issued a lengthy written order finding in favor of Craig and Mullins. In other words, from start to finish this litigation has been based on a stipulated record. As I explained, Waggoner is now trying to add facts that - if true - should have been adduced at the trial level. > [@](#): > > Masterpiece contends that wedding cakes inherently communicate a celebratory message about marriage and that, by forcing it to make cakes for same-sex weddings, the Commission’s cease and desist order unconstitutionally compels it to express a celebratory message about same-sex marriage that it does not support. Nothing about being forced to design cakes with same-sex themes - only a general challenge to being required to make cakes for same-sex weddings. > [@](#): > > We recognize that a wedding cake, in some circumstances, may convey a particularized message celebrating same-sex marriage and, in such cases, First Amendment speech protections may be implicated. However, we need not reach this issue. We note, again, that Phillips denied Craig’s and Mullins’ request without any discussion regarding the wedding cake’s design or any possible written inscriptions. So, we’re back to whether simply _having one’s cake present at a particular event_ is protected speech. The particulars of the cake are not relevant to this case. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 21, 2017, 3:53pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1048 "2017-12-21T15:53:53Z")
I’m suggesting that the set of stipulated facts were insufficient to allow the ALJ to reach his conclusion of law. That is, while Masterpiece admittedly did not contest the claim about denial prior to discussing specific design, their contention is that they have NO “off-the-shelf” wedding cakes. Therefore, any cake done for a wedding would involve artistic creation. Nothing in the couple’s alleged facts contradicts this. Now, you tell me, because maybe my lack of civil procedure smarts is biting me in the ass, here: to preserve their record, was Masterpiece required to allege, specifically, their lack of cookie-cutter (if you’ll pardon the baking pun) vending of wedding cakes? Wouldn’t that be the industry standard? Must they allege that they do what ordinary high-end wedding cake designers routinely do? The very fact that the proprietor met with them at all supports this claim; if they were ordering a standard cake, how is a meeting necessary? I guess I’m willing to accept that Masterpiece procedurally defaulted, if indeed they did. But that only means that Masterpiece II is on the horizon, with a factual record that addresses that failure. (Summary judgement not really a huge player in crim law 🙂 ). ---
**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 21, 2017, 8:11pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1049 "2017-12-21T20:11:08Z")
> [@Bricker](#): > > Now, you tell me, because maybe my lack of civil procedure smarts is biting me in the ass, here: to preserve their record, was Masterpiece required to allege, specifically, their lack of cookie-cutter (if you’ll pardon the baking pun) vending of wedding cakes? Wouldn’t that be the industry standard? Must they allege that they do what ordinary high-end wedding cake designers routinely do? The very fact that the proprietor met with them at all supports this claim; if they were ordering a standard cake, how is a meeting necessary? > > I guess I’m willing to accept that Masterpiece procedurally defaulted, if indeed they did. But that only means that Masterpiece II is on the horizon, with a factual record that addresses that failure. (Summary judgement not really a huge player in crim law 🙂 ). Their legal argument isn’t that they don’t offer “standard” wedding cakes, and as far as I can tell nobody considers that to be a determinative factor. Masterpiece’s argument is that making a custom cake inherently expresses approval of a same-sex wedding. The facts are not fatal to that argument. What the facts don’t permit them to do is argue that they were effectively compelled to “speak” in favor of the wedding _by making the cake the CraigMullinses wanted_. That’s because they did not establish that there was any speech involved other than the presence of the cake at a wedding (since there wasn’t any discussion of cake design). I wouldn’t call it a procedural default exactly. I think it’s more that whoever represented them at the time had a much more expansive view of speech protections, and didn’t think of Plan B. And yes, I agree this probably means we are coming back for Masterpiece II - in fact, I alluded to that in post 1007: > [@Really\_Not\_All\_That\_Bright](#): > > Obviously, that sort of narrow ruling is a problematic because it likely means we’ll be back here in five years with a baker who actually has a colorable argument about speech, but it is what it is. ---
**Author:** ![drachillix](https://avatars.discourse-cdn.com/v4/letter/d/48db29/32.png) [@drachillix](https://boards.straightdope.com/u/drachillix)\ **Post date:** [December 23, 2017, 7:52am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1050 "2017-12-23T07:52:38Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Their legal argument isn’t that they don’t offer “standard” wedding cakes, and as far as I can tell nobody considers that to be a determinative factor. Masterpiece’s argument is that making a custom cake inherently expresses approval of a same-sex wedding. The facts are not fatal to that argument. As someone who makes a portion of my income in artistic endeavors, bullshit. I make glass beads, if they end up in a wedding ceremony, a funeral, mixed into a string of rosary beads, or some kid ends up choking to death on one, I don’t need to approve of their mate, become Catholic, or assume responsibility for the kids death. Baking a cake is not dictated by religious practices, making frosting roses and garlands does not imply anything religious. Application of strands of little pearl looking sugar beads does not require Devine guidance. I seriously doubt any religious laws/texts have anything to say about wedding cake decorating. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [December 23, 2017, 12:04pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1051 "2017-12-23T12:04:09Z")
And yet bakers have found secular reasons to refuse to decorate cakes a certain way. A Wal-mart refused to make a pro-police cake, another Colorado baker refused to make a cake with an anti-gay message. So you’re argument is that they should have made the cakes as requested? Well, I’d think we’d agree on the Wal-mart, since that was rogue employees and not Wal-mart’s official policy. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [December 23, 2017, 12:14pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1052 "2017-12-23T12:14:33Z")
The key question here is, “can bakers refuse to make custom cakes with decorations they object to?” The Colorado civil rights commission says yes. So even if the baker “loses” the case, he still doesn’t have to provide anything but pre-made cakes for gay weddings. Or a “custom” cake that’s indistinguishable from the cakes he makes for straight weddings. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 23, 2017, 2:12pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1053 "2017-12-23T14:12:05Z")
> [@drachillix](#): > > I seriously doubt any religious laws/texts have anything to say about wedding cake decorating. A couple asks for a cake decorated in fancy script with the words, “May our love be blessed by God.” Might any religious laws or texts forbid that? ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [December 23, 2017, 2:23pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1054 "2017-12-23T14:23:10Z")
> [@](#): > > Quoth **adaher** : > > The key question here is, “can bakers refuse to make custom cakes with decorations they object to?” The Colorado civil rights commission says yes. So even if the baker “loses” the case, he still doesn’t have to provide anything but pre-made cakes for gay weddings. Or a “custom” cake that’s indistinguishable from the cakes he makes for straight weddings. Which is exactly what the “Gay Lobby” wants: To be treated the same way as everyone else. ---
**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 23, 2017, 3:57pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1055 "2017-12-23T15:57:15Z")
> [@Bricker](#): > > A couple asks for a cake decorated in fancy script with the words, “May our love be blessed by God.” > > Might any religious laws or texts forbid that? Apparently only if the love is between two of the same sex. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 23, 2017, 4:09pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1056 "2017-12-23T16:09:01Z")
> [@k9bfriender](#): > > Apparently only if the love is between two of the same sex. No, factually incorrect. ---
**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 23, 2017, 4:13pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1057 "2017-12-23T16:13:06Z")
> [@Bricker](#): > > No, factually incorrect. Oh, then you should go tell that baker and the supreme court that. On second thought, you may be implying that there is some religion or sect that has a problem using those words at all. If that is the case, why don’t you just go ahead and say that, rather than trying to get us to guess what religion you happen to be thinking of? ---
**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 23, 2017, 4:15pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1058 "2017-12-23T16:15:13Z")
> [@k9bfriender](#): > > Oh, then you should go tell that baker and the supreme court that. > On second thought, you may be implying that there is some religion or sect that has a problem using those words at all. If that is the case, why don’t you just go ahead and say that, rather than trying to get us to guess what religion you happen to be thinking of? I think he means that there are some religious laws against incest or underage marriages or polygamy or stuff like that. Some even forbid “mixed” marriages between the correct religion and “those other folks”. ---
**Author:** ![Annie-Xmas](https://avatars.discourse-cdn.com/v4/letter/a/ecc23a/32.png) [@Annie-Xmas](https://boards.straightdope.com/u/Annie-Xmas)\ **Post date:** [December 23, 2017, 6:54pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1059 "2017-12-23T18:54:43Z")
What’s next? Banning “To The Happy Couple”? After all, it doesn’t say the “Happy Couple” isn’t a gay one, too. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [December 23, 2017, 7:16pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/1060 "2017-12-23T19:16:44Z")
A baker could claim that “May our marriage be blessed by God” is against his religious beliefs, but in order to make that claim, he would have to deny that message to all customers, not just to some of them. [Previous page](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792.md?page=52) [Next page](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792.md?page=54)