Yes, please humor me and destroy this argument. I’m not advocating this position, nor am I against it. I think the '64 Act did what it did and no more.
Let’s say my bakery has a policy that “No Negroes who are Republicans will be served.” Do I discriminate on the basis of race?
Does the analysis change if I am Al Sharpton? David Duke?
No. I was your monkey often enough during SSM debates when you trotted it out repeatedly.
Again, while I stand by my SSM position, the action of a private business is not the same as the government. Even if we say that by the government saying that it is not discriminating against a particular gender by denying a SSM, by its rule through the iron first of law, it prevents ALL same sex couples from being married.
A simple baker who refuses to bake one cake for one marriage does not do that, nor does he discriminate against someone who might not even be his customer. If I, a heterosexual male, purchase a wedding cake for my same sex friends who are getting married, and the baker refuses, who did he discriminate against? Me? My friends? The law does not say he has to do anything good or bad to my friends. They are not his customers.
Conversely, a government law against same sex marriage does not affect me…only my friends. Bad analogy.
A black woman comes in, and says, “Make me a cake for my wedding to this guy,” and shows you a picture of her black fiance. You make her a cake.
A white woman comes in, and says, “Make me a cake for my wedding to this guy,” and shows you a picture of her black fiance. You refuse to make her a cake.
Seems to me that’s disparate treatment on the basis of race, no? You’re not refusing the second woman because you hate white people - but you are refusing her on the grounds that she shouldn’t be engaging in certain actions (marrying black guys) based solely on her race.
As an observer, I think your argument was sufficiently destroyed with this post:
The point is if the decision is made because of race, it’s discrimination. And you’ve discriminated against both parties. Equality of discrimination doesn’t negate the fact of it. **mhendo **spelled it out concisely. If you would perform similar services for non-interracial couples that you refuse to perform for interracial couples, you are effectively discriminating on the basis of race. The key is that your decision to refuse service is solely due to their race because that is what you deem to be the problem with their union. It’s not the ceremony that offends you because it doesn’t offend you in any other circumstance.
I think it’s officially called discrimination based on racial association and affiliation.
The reason they’re using the argument they’re using is to flip it around. Don’t compare to selling something; compare to a painter that offers commissions. Does a painter have the right to refuse to paint something he’s asked to paint, based on a racial decision, if he normally works by commission? If this painter would paint a white man and woman in an intimate embrace, but refuses to do so if one of the pair was black, is he required to paint them regardless? Could you come to this painter’s place of work with a painting he’s done of others, say, essentially, “I want a painting like this, but of us” where ‘us’ is an interracial couple, and he would be compelled to paint it otherwise it’s discrimination? As I understand it, no, because you can’t compel a person to make art they don’t choose to, even if they sell their artistic services in general.
That’s the point of their argument about it being an artistic work, to say that it’s not about just refusing to sell something, it’s that they refuse to be compelled to make ‘art’ they don’t choose to. To my (non-lawyer) eyes, the argument actually has some merit. Assuming you consider decorating a cake to be an artistic work (and I’d say it can be, at least, although I would not say it always is), then unless the painter can be compelled to paint, I don’t see how the baker can be forced to decorate. Now, if they refused to sell a cake that they had already made and was ready for sale, then it’s not an argument, but if their refusal is because of customizing the cake, then I can see the argument. I don’t like it, but I can’t dispute that it seems like there’s some validity there.
That said, even if there’s some merit to it, I don’t think I’d be opposed to having it go against them. The precedent it might set - that an artist is compelled, in a rather narrow situation of refusing to create a work very similar to works they regularly do, but with an element they would prefer to discriminate against - seems like a more just outcome overall and one that’s easier to live with, and better for society, than to have anyone who’s able to claim that something has artistic merit able to freely discriminate.
Let’s try Bob Jones University v. United States in which SCOTUS ruled that the IRS could pull the tax exempt status of a private organization specifically because it imposed a policy banning interracial dating.
Bob Jones admitted students without regard to race*. And had no issue with white students dating other white students (within their very puritanical definition of suitably modest behavior) or black students dating other black students. Their issue was specifically interracial dating (or marriage), believing this somehow went against God’s plan.
To my eyes, zero merit whatever. They’re a business, with an open offer of services for pay. They either serve all the public fairly and equally under the law – or they can go into some other line.
Even if it’s absolutely “art” with no doubt about it at all – you don’t get to say, “Yes, I’ll work for whites, but I will not work for blacks.”
You can say, “You’re too short,” or “You’re so ugly, I won’t do it.” But you can’t say, “No blacks, no gays, no Irish, no women, no Catholics.”
Well, according to the NY Times article I linked to above, there was nothing gay-marriagy about the cake itself. The baker refused to make any cake for the couple because it would be used in a marriage ceremony. The article mentions another case where it was the design itself that was offensive to the baker, and says that’s different and probably allowed – they wouldn’t make that design for anyone. Here, the baker won’t make any design for a gay marriage. So, I think your example is not apt.
So, it’s OK to say I won’t make swastika cakes for anyone, to pick a design that many would consider offensive, but it’s not OK for me to say I won’t make a swastika cake for your gay marriage if I’ll make it for their straight marriage. (I figure this thread is far enough along to invite a Nazi reference)
Just to be clear, you can’t say “…no gays…” in Colorado and some other states, right? I don’t think sexual orientation is yet on a par with religion and race as far as the Supreme Court is concerned.
If they were basically asking for ‘standard wedding cake’, then I see less (possibly no) real merit in their argument, then. I hadn’t seen that link, and the ones I’ve read about this issue don’t really detail that about the cake. If they weren’t designing something special and artistic for this couple in particular, and the couple was simply trying to purchase a normal wedding cake without much of anything special about it, then the comparison to a painter would be closer to an artist that paints landscapes refusing to sell you a landscape he would/did paint anyway, rather than refusing to paint a thing at your request. That seems more on the lines of this particular level of cake decoration not really reaching the point of an artistic work, or at least, not an artistic work specific to the client, so who it’s sold to is still subject to discrimination laws.
That said, I believe that anyone whose business is the creation of expressive work like art is allowed to refuse for basically no reason or any reason. A painter could paint a mural but refuse when told the mural will be in a church. He can do so because you can’t compel artistic expression from someone. At least, that is how I understand it; I might be wrong, but I would be surprised.
Correct; apologies for being sloppy. Colorado, California, and others: 22 states, and D.C. and Puerto Rico.
IMHO the interesting question is if a person comes in, shows a picture of an interracial couple, and says “Make me a cake for this couple”. If the baker says no, who are they discriminating against and on what basis?
I’m not sure I buy that the answer is anything other than the couple and race
That would seem to fall under discrimination by racial association and affiliation.
My understanding, and I’m getting to the very edge of my understanding of this case here, is that the baker in question makes custom cakes. That’s what he does. He declined to make a custom cake for the gay couple because gay marriage is against his beliefs. However, the cake design itself wasn’t all rainbows and Gay Marriage Rulez!, but rather just a custom cake. It was the ceremony that it would be used for that was offensive to the baker.
I don’t think he has a “standard wedding cake” design – his very business is custom cakes. I admit I could be wrong about this, and welcome correction.
All well and good, but what quality of art work can the artists be compelled to create? If I paint portraits, are you willing to give me my commission up front, and accept the painting I produce?
MMMMMM, cake.
I don’t know…don’t particularly care. So long as there isn’t discrimination on the basis of protected categories, that’s up to other avenues of recourse. If the painting is butt-ugly, I can sue for the cost back; a jury might agree.
If a pattern can be demonstrated, of a painter consistently painting ugly pictures of blacks, but not of whites, it might be a matter for an equal opportunity commission lawsuit…exactly as in housing.
Yeah, that’s certainly a possibility for B of A or Cornish and Carrey. For Jill’s Portrait Shop? I doubt it.
There is a point at which there are diminishing returns to these types of lawsuits. Everyone has the the right to sue, but at some point one asks: what is the point?