Does that really matter? Can someone be compelled to create a one-off item? The baker was willing to sell them a generic, pre-made cake. Had he been unwilling to do that, I can see where there would be a problem with the law.
I don’t see why not so long as the baker is willing to create that same one-off item for a straight couple.
In those jurisdictions where civil rights laws have been extended to protect sexual orientation as a class (such as Colorado), I think it’s really helpful to think about the same situation, but with race exchanged for orientation. If a cakery were willing to sell a generic cake to an interracial couple, but not make them a custom cake because his religious beliefs were opposed to interracial marriage, would anyone think that would be OK?
No, he runs a cake shop making cakes for weddings; he can’t deny some services to customers based on their orientation any more than he could deny it based on their race.
Did he? Because I don’t remember seeing anything that suggested this was even the sort of bakery that sells pre-made cakes - from their website, it seems to be the sort of place that only does at least somewhat custom type cakes. I mean, I’m sure you can order a plain cake with white frosting and some flowers but the point is , you’d have to order it. It’s not like going to Costco and buying a sheet cake.
I do recall reading that he wouldn’t sell a lesbian couple cupcakes that were to be used for a wedding/commitment ceremony , which suggests to me that the issue is not some sort of “expression” involved in making a wedding cake ( which after all, can be almost indistinguishable from a birthday cake until something is written on it) but rather where it is going to be served.
But isn’t that useful only if the current case will be decide on the basis of strict scrutiny (as is he case when race is the issue)? Will this case be decide that way?
As I understand their argument, Masterpiece is saying they would have happily sold a cake to a homosexual customer. But they are not willing to violate their religious beliefs by making and “artistic statement” in support of same sex marriage by designing and baking a cake for a same sex wedding.
Not sure this argument will get much traction, but it is one of their lines of argument.
Could RFRA come into play? Not sure if the federal law applies and it looks like CO does not have a similar state law in place, although one was proposed in 2015.
I don’t think the analysis is that simple. The way the question is framed, I continue to believe that SCOTUS will have to resolve whether free speech, and the right to not speak, can prevail when that is in conflict with equal protection. The punting move is if SCOTUS says that cake making does not fall under the protections of speech.
No. The discriminatory act was a state law issue. RFRA does not apply. At least it should not… no telling what the court might do.
But if, in response, CO votes again on a state RFRA and approves it this time, do we revisit? Assuming this or another baker brings a suit.
If Colorado were to pass a RFRA then I suppose it would be up to Colorado courts to decide if they would revisit the issue for the current case. Should a similar case arise from another baker after a hypothetical state level RFRA were passed then I would expect that to be an issue in state court.
And, as always, IANAL.
Wait a minute. Why did I think you were? (No insult intended, btw.)
Has this been decided in any court? Let’s say I own a supermarket bakery. I will sell cakes to anyone. However an interracial couple comes in and wants a wedding cake. I refuse.
Did I refuse service to a customer on the basis of race? How so? I would serve them with any item I offered, including cakes. The only thing I objected to was a cake for their wedding.
It could be argued that because of that fact I discriminated based upon race. But, against whom and against what race? Did I refuse service to the white person or the black person? If I refused service to both of them, well, then that is evidence that I discriminate equally against both of them!
What if instead of both of them, only a white woman comes in and wants a wedding cake for her upcoming marriage to a black guy. I tell her to get lost. I am refusing a white person service. I am refusing service to nobody based upon their race.
IOW, although I can see how insulting it would be to an interracial couple to be refused service, I’m not convinced that it is discrimination based upon “race” under the law.
It’s not discrimination against a particular race that’s banned, but discrimination on the basis of race.
Right…so who under my hypo is being discriminated against on the basis of his or her race? Keeping in mind that the purpose behind the law was to make sure that blacks were not denied service in restaurants and motels over hundreds of miles of southern territory. The customer him or herself could not be discriminated against of the basis of race.
I mean, I see your thin textual argument, but a baker saying he won’t bake an interracial marriage cake does not discriminate against a customer, black or white, on the basis of his or her race.
That customer is free to buy cookies, cupcakes, or even wedding cakes. The baker only refuses to sell wedding cakes celebrating interracial couples: whether either member of that couple is his customer or not.
I’m just not certain that the text or the spirit of the law would prohibit such a policy…however, I’m sure there is a case on it.
What distinguishes a cake that “celebrates interracial couples” from other cakes?
Nothing, really. I suppose it is a plain text argument about the meaning of the 1964 Civil Rights Act. Suppose I had an individual candle next to the register that celebrated a happy event in one’s life. I would sell it to anyone, black, white, gay, straight.
But, if told that the candle would celebrate an interracial or gay marriage or any other interracial or gay happy event, I would refuse the sale to anyone telling me that whether black, white, gay, or straight.
I understand the counterargument, but how did I refuse service to one of my customers based upon the customer’s race or sexual orientation?
Here’s some questions the Department of Justice is likely to have for you:
Have you refused similar services to couples where both members of the couple were white?
Have you refused similar services to couples where both members of the couple were black?
Then they’re probably going to ask similar questions of your other customers, and look to see what sort of other complaints might have been filed against you.
Do you really think that the DoJ and a federal court are going to accept that discriminating against inter-racial couples is not racial discrimination, based on the argument that such discrimination targets both the white member and the black member of the couple?
What do you think they’d say if, instead of cakes, you were talking about renting out your property to a new tenant? There are anti-discrimination organizations in a number of American cities who send mixed-race and black couples to look at properties precisely to check out this sort of discrimination, and they have filed (and won) lawsuits against landlords who do this stuff.
By your logic, the Supreme Court should have ruled in favor of Virginia’s marriage restrictions, based on the fact that they discriminated equally against blacks and whites.
#1 That’s what I am asking.
#2 That’s why I am asking for cases.
#3 Dead wrong. The Virginia law was government action based upon a fundamental right about whether one could marry the person (of the opposite sex) he wanted. If some idiot in Bumblefuck, VA refuses to bake a cake for the interracial marriage: 1) it is not government action, 2) it does not stop the parties from marrying, 3) it does not have the force of law to stop the couple from getting a cake elsewhere, and 4) the specific text and purpose of the 1964 Civil Rights Act is so different from the SDP right of marriage or equal protection as to not even justify a response.
Even today, I can have a policy that says, “No faggots allowed in my home.” That does not mean that gay people cannot live in their home. The government can say that gays are allowed to marry, but it cannot say that a specific person must marry them.
The policy behind the 64 Civil Rights Act was pretty clear: if I sell gasoline, I must sell gasoline to black people and white people the same. Under recent modifications, I must sell gasoline to gay people and straight people the same way.
I am again looking for cites that I must accept the next step, the intermingling step. There’s probably a case, but you haven’t cited it.
You’re still trying this argument?