It also seems to me that this opens the floodgates for trivially easy discrimination. Let’s say I run a restaurant that offers a lot of different burger toppings, resulting in as many possible burgers as there are wedding cakes. Can I declare my burgers an artistic statement, and refuse to serve Muslims? If I run an auto garage, can I write a short poem to put on the window of each car when it’s done, and, declaring this poetry a part of my service, thereby refuse to serve Mexicans? Can my aforementioned dance studio turn away black students, because dance is an integral part of my service, and the state can’t compel speech?
It seems to me that the state shouldn’t be able to compel specific content, but it should be able to compel people to offer the fee-for-service speech on an equal basis to all protected classes. If there’s specific content you don’t want to offer to protected classes, it’s simple enough not to offer it to anyone.
Yes, it does, but a state law can’t trump the federal constitution, which gets interpreted per federal jurisprudence. Hence the tension between the CO law, and the 1st amendment. It all depends on how one interprets the 1st amendment and if gays get to be a suspect or quasi-suspect class at the federal level or not. But there could still be some tension between the suspect class and the 1st amendment.
Can a Muslim be compelled to bake a cake that says “Christianity > Islam”? Probably not. But if the content is not religious, I don’t think you can discriminate against religion. You can’t say "I won’t bake a cake that says “Happy Birthday Ali” because Ali is a Muslim and I’m a Christian.
Even if gays are a suspect class at the federal level, this may still not be sufficient to overcome the hurdle of compelled speech, if it is speech. I’ve made my prediction before oral arguments, and feel better about it now after orals.
You & John are coming at it differently. Given your position, what about my other examples–the dance studio, the auto garage, the burger joint? Do you agree that in any of those cases I can discriminate?
Right–but that’s about the content of the speech. If the Muslim would bake this cake for one person, she can’t decide not to bake it for another person based on that person’s status. Right?
If you claim to teach dance to each person differently, perhaps you have the beginnings of some defense, but I am pretty confident that while many people can see that a cake is individualized for a wedding, not too many people will have heard of race-individualized dance instruction, and of course this is ignoring the fact that racial classifications enjoy strict scrutiny and sexual preference ones do not.
The problem is that the exercise of both speech and religion are themselves protected practices. It’s right there in the First Amendment’s text. I would suggest that this gives it more constitutional heft than protection of things merely implied or extrapolated. For this reason, I reject your thinking that the constitutionally safe solution is to advise the expressive speaker, “Yeah, just don’t offer that to anyone.” He can respond, “Actually, the Constitution says that I can offer such expressive services and if you try to stop me, it’s violating my First Amendment rights.”
If he makes a unique cake for one couple, he can still claim it’s a unique cake if he copies it for another couple.
But if he does the same for 2 other couples, he can no longer claim that.
That’s how I read your analysis: 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.
Whit if Rudy and Anna got the custom cake and he copied the custom cake for Elana and Aaron, then also copied the custom design for Pedro and Maria? Or were you thinking of some other scenario?
But again, in this case, the issue is the creation of a custom cake.It’s not simply “a wedding cake.” It’s a wedding cake customized for the specific wedding.
My analysis was actually intended to say that even a single duplication weakens his claim. I’m not sure why you assign me the view that two copies is fine. “If it’s a custom cake, then in my view it’s still compelled speech to ask him to duplicate the customization.”
It depends on what the status is. If the status is religion or national origin, no. If the status is “guys who don’t wear shirts in bakery shops”, then she probably can. If the status is “gay”, then it depends on which state you live in.
I’m not saying, “just don’t offer that to anyone.” I’m saying, “If you’re offering that in the public sphere, offer it to paying customers regardless of their membership in a protected class.” You’re welcome to offer it, or not to offer it. You’re not [or IMO shouldn’t be] welcome to offer it specifically to one group but not the other.
To analogize, I don’t need to claim race-individualized dance instruction. This baker didn’t claim sexual-preference-individualized cakes. He was unwilling to bake a cake exactly parallel to a cake he’d be willing to bake for a straight couple; all he said was it was different each time. By that logic, if my dance instruction were different each time, I could thereby refuse lessons for a member of a protected class, whether or not the differentiation itself was specific to the class trait.
Does it have a little penis and little vagina on it? Do all his cakes have tuxedos and gowns? Do they all say, “FOR HIM AND HER”?
If not, they may be customized, but their customization doesn’t specify the sexual preferences, or genders, of the happy couple; he should no more be able to hide behind that irrelevant customization to back up his discrimination than should the dance studio.
If we’re speaking of what is common practice, then don’t wedding cakes typically have the names of the happy couple on them? I suppose it’s not always the case, but isn’t it almost always the case? Would it be so odd for a baker to assume that would be the case. I mean, if it’s going to come down to what you are saying, then I think you’re argument is pretty weak.
