Is it because he is a member of a protected class?
No, because that’s not what they ordered. I’m not the one defending a business changing the quality of its service based on the customer’s sex life.
Again, though, there’s an important difference between:
- “I’ll make this artistic product, but not that artistic product, I don’t care who you are”; and
- “I’ll make this artistic product for them, but not for you, based on who you are.”
The baker in question seems to be saying the latter, not the former. If he refuses to bake a rainbow-themed cake, whether it’s for a gay couple or for a little girl’s birthday party, I think he’s on solid ground. But if he refuses to bake a wedding cake for a gay couple, that’s not refusing certain artistic expression; that’s refusing a certain customer.
Yes, he would’ve baked something else for them. That’s fine, and that’s also what’s required. But it’s not sufficient to do one required thing: you gotta do ALL required things. If there’s a particular service he offers the public (bake a wedding cake with flowers and fondant and all that crap), that particular service must be offered irrespective of the customer’s protected status.
Surely the point of this is exercise is that they are trying to prevent homophobes from spoiling other happy, special occasions? Just ignoring the homophobes allows them to go on springing their homophobia on innocent, unsuspecting, cake shoppers.
Again, you are speak of things that simply don’t exist in our jurisprudence. We don’t treat religion the way we treat “clubs”, so speaking of a religion as if it were just a “club” isn’t germane. And the reason for that is simple: There is nothing in the constitution about “clubs”, but there is something in the constitution about “religion”.
In which country’s jurisprudence are you getting that from?
Can, per our existing laws, or should they be able to IMO? Discriminate against whom? There is no law that I’m aware of that forbids discrimination in all cases.
And actually, the current jurisprudence in the US is that private clubs can discriminate against anyone. Blacks, Jews, Gays, people with dental related names. So yeah, belonging to certain clubs gives you the right to discriminate against anyone you wish to discriminate against, in the US. But you may be talking about some other country since much of what you are posting is factually incorrect wrt the US.
Via your publicly open business?
Can a restaurant in the United States with an individualized tasting menu refuse to serve black people, citing the artistic component of the creation of such food?
No, not black people. Race is a suspect class, and any law that would allow discrimination by race would be subject to the highest level of judicial scrutiny (strict scrutiny). If the restaurant were part of a private club, they could, but if they are open to the public, they have to be open to blacks and women and Catholics and Jews and people from Estonia. If the restaurant is in certain states, they could discriminate against gays, but such an act could spur a lawsuit that might go the SCOTUS and finally get gays listed as a suspect or quasi-suspect class.
No country’s jurisprudence. It’s just logic.
“I believe in God.” Now tell me: which religion am I practicing? “I believe it’s wrong to eat bacon.” Am I Jewish, Muslim, or just of the opinion we all consume way too much salt?
Believing something is not a religious practice, it’s just believing something. I’m honestly surprised others can’t see how obvious this is, and I don’t understand the reasoning others use (haven’t seen any reasoning yet, just the proclamation that it’s so) to determine otherwise. Unless you belong to a religion that requires you to open a bakery and refuse custom to gay people, doing so is not a religious practice.
Do you understand, though, that your inability to understand this is not likely to affect the Supreme Court’s decision?
Do you think there is a free speech component to having to make an individualized tasting menu for people you don’t want to serve, since you think the “create” part of “create and sell” changes the entire conversation?
It sounds like you are, though. And the only practical difference between a gay wedding and a straight wedding is the sexual orientation of the participants. The cakes they eat at receptions, though…no practical difference. It’s my understanding that the dispute is not that they wanted a special cake that would have been practically different from any other wedding cake, but that he refused to provide the same exact service he provides to any other engaged couple solely based on their sexual orientation. He did not refuse to make a cake that included symbolism specific to their sexual orientation, but refused to make any cake for that couple specifically *because *of their sexual orientation. He even admitted to doing so.
Are those facts in dispute? Because if they are not, it’s absolutely clear to the Colorado Civil Rights Division and previous courts.
Of course. I wasn’t under the impression they were reading this thread or had been made aware of anything I’ve said.
I asked because you seem to be focused on sharing your concrete, certain ideas about how everyone should think about the law, as opposed to using the existing legal framework to analyze what results might be derived therefrom.
If we’re talking about me, personally, and the way I think things should be… I think private companies should be able to discriminate however they want. If we’re talking about the current jurisprudence, and how I think it should be interpreted, I think race trumps tasting “creation” since you don’t create tastes for particular races.
His position is that he doesn’t make “the exact same cake,” but rather creates a custom cake for every wedding.
So “the exact same service,” is not really an accurate synopsis. The exact same service is not the exact same cake.
From the oral argument:
So Phillips has conceded that the state can require him to sell his pre-made or non-customized items to everyone. That’s not the issue the Supreme Court is deciding.
OK?
But what if they said: Our friends, Pedro and Maria, had this great wedding cake and we want one exactly like it. They said it would be OK if we copied theirs.
If it’s a custom cake, then in my view it’s still compelled speech to ask him to duplicate the customization. If the evidence shows that Pedro and Maria’s cake looks just like Elena and Aaron’s, and the Rudy/Anna cake is also that same cake, then his assertion won’t fly, but if Pedro and Maria truly got a unique cake, he is (in my view) protected by the compelled speech doctrine from being forced to re-create it for Gordon and Barry.
I’m not sure I follow this completely. When does the cake stop being a “custom design”? It seems you are implying that twice is not enough, but 4 times is over the line. How are you determining what number of repeats negates the claim?