Don’t beat yourself up over it. I thought you were explaining it quite well. 
It might be easier to move to another medium. One with less direct and common commercial experience. Maybe chartered poetry? I’m not sure that’s a thing but I think we can imagine it.
Clearly the baker needs to establish a private cake club where only members can get cakes, and membership requires an application process up to the discretion of the baker.
And what’s so personal about “Until Death Do Us Part?”. Why would it be against your religion to put it on one cake but not another? It’s the exact same message.
What if this highly religious baker accidentally sold an “Until Death Do Us Part” cake to a gay couple, maybe because no one asked the purchaser about his sex practices or future spouse. I know no one has ever asked me about my sex life when I buy a cake. Do you think he would have any recourse against this assault on his religious beliefs?
OK. We get it. Your argument boils down to there is no such things as custom work because any design could, hypothetically, be reproduced in the future. :rolleyes:
In the context of customized wedding cakes this just doesn’t fly. These cakes may have certain similar components but the end product is unique.
Even that doesn’t always work. There have been cases where “private clubs” with exclusionary policies have been ordered to open their doors.
(The one I am thinking of was a “breakfast club” for men only. But the court in question – not the SC – noted that a lot of actual business was done over these breakfasts – deals were made, orders taken, shipments scheduled, whatnot – and women business owners were being excluded from equal access. If the guys wanted to get together and just gossip and eat, that would have been okay. The “Free Association” clause can’t be used as a back-door to discrimination.)
Well, I have ordered a custom cake from a fancy cake-making place. We selected shapes, frosting colors, cake flavors, decoration styles, and they would have taken any other requests. I saw other people getting cakes there in the shape of Spongebob and the Cookie Monster (3D, not just flat). This was for a high school graduation party for my son and several of his friends. They never had a need to ask about the sexual orientation of any of the participants (although one of the kids is gay).
I’m coming up empty-handed, trying to find any reason that it would unacceptably violate a baker’s religious sensibilities to make a cake for a same-sex marriage, but we wouldn’t let them get away with refusing service to a black couple getting married.
What about an architect who is asked to design a house for a same sex couple? Is the architect like the baker creating a custom cake?
Having abandoned my attempts to explain any contrary reasoning, I will now discuss what the Court might do.
First Amendment law (Employment Division v Smith) seems to favor the state:
But that inquiry was related to the Free Exercise Clause, and I’m not sure how “both the right to speak freely and the right to refrain from speaking at all," (Wooley v. Maynard) might apply here. But the focus of the challenge is on the compelled creation of unique art. If the Court believes that there’s not much in the way of unique expressive art going on, I suspect the bakers will lose.
bolding mine
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I would imagine that a baker can quite rightly refuse to produce a copyrighted image on a cake such as Cookie Monster or Spongebob. Arguably they should refuse to do so unless an appropriately license was obtained.
An Northern Ireland bakery was caught up in a case involving production of a cake using the image of Sesame Street characters Bert and Ernie with the wording “Support Gay Marriage”.
The bakery did not wish to make the cake on religious grounds. The court found their refusal discriminatory on the grounds of sexual orientation.
Not sure why the baker didn’t simply cite copyright violation as a reason to refuse that particular design? Of course the customer may have returned with a different design with similar wording.
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But a cake-maker such as you describe is precisely in the business of the compelled creation of unique art. I mean, if a perfectly ordinary cis hetero etc. couple contracted with them for a wedding cake, and at some point before the wedding the baker just said “Sorry, my muse is coming up blank, I can’t come up with a good artistic creation for your wedding like you paid me to do”, the couple could sue for breach of contract, couldn’t they? If the cake-maker isn’t comfortable with creating art on demand, then they’re in the wrong line of work to begin with.
EDIT: Not that it changes your point, Iggy, but those images would be protected by trademark, not by copyright.
Probably because, like most commercial bakers, they had already previously produced a metric shit-ton of cakes with copyrighted characters on without qualm. I mean, I don’t know for sure but I’d be very surprised if they hadn’t; all the bakers around here do it. And if so, that’d be a legal argument that would collapse immediately.
From all of the sea-men.
You next step is to abandon making references to said abandonment?
That may be a marketing decision but is not a technical requirement. And the customer is still irrelevant.
I would expect a contract used by such businesses to typically say that any failure to deliver means only that the fee paid must be returned.
How would an architect, designing custom homes, fit into your description of how things work?
I do not know how they normally write such contracts but I would hope there is more sting for failing to deliver than merely returning the initial deposit. I mean, if it is the day of the wedding and the baker says, “Sorry, couldn’t come up with anything, here’s your $50 deposit back. Apologies to your 100 guests.” seems pretty lame.
The contract is written by the baker, so there’s not much incentive for the baker to include a liquidated damages clause against himself. If you as a customer want to ensure that you don’t get left holding the bag when the baker decides not to perform on your wedding day, well, that’s on you. Write it into the agreement.
Note that regardless of the contract terms, a court will award the actual cost of substitute performance - i.e., getting another baker to make the cake - as damages. But it won’t award, say, “pain and suffering,” if you wind up going cakeless at your wedding. It might consider what the monetary value of a cakeless wedding is versus a caked wedding, and award that amount as expectation damages - but it’s pretty hard to put a number on that sort of thing.
I see. So you are saying (I think) that these cakes are effectively unique works of art and thus the artist (cake maker in this case) cannot be compelled to produce art. If I got that wrong let me know.
If that is the crux of what you are on about I would suggest this would open a massive can of worms in trying to decide what constitutes an “artist”. If the guy making your Big Mac takes particular pride in his work and tries to arrange the pickles and onions in a particular way to make the sandwich aesthetically pleasing would that be art? I mean, there are people who actually do just that when preparing a Big Mac for an advertising shot (they have to use the actual ingredients but take particular care to make the sandwich seem as appetizing as possible). There is an art to it.
I would suggest if the artist is a person who just creates art on their own then hopes to sell it then you cannot compel them to produce art for anyone.
On the flip side, if you have a business producing art (whatever it is, say a cake maker or photographer) then you cannot discriminate against your potential customers.
For instance, Ansel Adams ran around taking beautiful outdoor shots then sold those shots. He would be under no compulsion to photograph anyone’s wedding. If, however, he advertised himself as a wedding photographer, had a Yellow Pages ad as a wedding photographer and had examples of the last 100 weddings he photographed then he cannot discriminate as to whose wedding he photographs.
Likewise if the cake maker merely made cakes and set them on the shelf for people to buy you cannot make them produce a custom cake. But if they are in the business of making custom cakes then they cannot discriminate against their customers any more than they could discriminate against who walks in the store and buys a cake off the shelf.