I could be wrong, but that’s not a valid argument against what I said.
Really? I don’t think I’ve ever seen names on a wedding cake in my life. Google Image Search for wedding cakes shows some cakes with “Mr. and Mrs.” on it, but few if any with actual names on them.
Edit: ninja’ed. John, why isn’t that a valid argument?
I’m not sure why you think that’s weak: the point is that wedding cakes generally aren’t gendered. If he ever makes wedding cakes that aren’t gendered, he could just as easily make a non-gendered wedding cake for a gay couple as for a straight couple. It’s not about the speech, it’s about the customer.
I think there would normally be some indication if it was for a SSM or not. Either the names on the cake, or the couple coming in to pick it out or the billing or something. Bricker was saying that it’s customized for a “specific wedding” and you respond by seeming to downplay the idea that the baker would have knowledge about the specifics of the wedding. I think he normally would. I think the argument is weak that the baker would normally be ignorant of the wedding specifics, as it applies to the genders of the couple.
It doesn’t matter whether he knows specifics of the wedding. It matters whether his cake–his “speech”–communicates those specifics.
If every cake he makes has a “Mr. and Mrs.” on top of it, or little human genitalia or something, his case strengthens–although the happy gay couple could presumably just remove that tacky plastic cake-topper and Bob’s your uncle. But if he makes cakes where the only gender is the sex of the flowers atop them, no mention of human gender, there’s no reason he couldn’t communicate the exact same text to a same-sex couple.
If wedding cakes “typically have the names of the happy couple on them” and it’s “almost always the case” then I think that would be evidenced by a simple search for pictures of wedding cakes.
Wedding cakes exist to show off a bakers skill with fondant, butter cream and a piping bag. Think butter cream flowers, not calligraphy.
CMC fnord!
What is your understanding of the compelled speech doctrine?
You just said “Yes” you would be OK with it.
cite. It is a stipulated fact that the Colorado baker has sold cakes to gay people. So he will sell them a birthday cake but he will not sell them a gay themed wedding cake.
Yes those facts are in dispute. In fact they are wrong.
Homosexuals are not a protected class under federal law.
I think there will be a multi pronged analysis. The first step would determine if the activity implicates speech. The second step would determine if there is a type of protected class/suspect class involved. If the answer to the first two steps is yes, then an interest balancing would take place and determine which is the greater harm based on the totality of the circumstances.
So if I apply that to the current case, I think the court will rule that the first step is not met and that the cake design/creation in this case doesn’t implicate speech sufficient to meet this hurdle. Once that is dispensed with, the issue of protected class would control and Masterpiece will lose. This also has the seemingly desirable outcome of not overturning a bunch of other precedent.
Applied to your hypotheticals, I’d say a dance studio, and auto garage, and a burger joint don’t implicate speech. What would implicate speech are things like a painter (art), a lobbyist, a lawyer, and probably many others.
That’ my take. Of course, I thought Hillary would win so my predictive ability is questionable.
It’ll be interesting because it will almost certainly come down to Kennedy, who has been a pretty strong supporter of gay rights, but who is also a very strong supporter of the 1st amendment. I tend to think he’ll vote in favor the gay couple, but I’m not highly confident of that prediction. I could see it going the other way.
No, I said “Sure, if that’s what they ordered”.
What exactly is a “gay themed wedding cake”? What specific traits of the custom cake the couple was requesting made it “gay themed”? This article seems to indicate that the refusal had nothing to do with the theme of the cake, but everything to do with the sexual orientation of the participants. What am I missing? Simply put he offered a service (custom wedding cakes) to everyone except gay couples. Colorado says he can’t do that. He says compelling him to bake cakes is a violation of freedom of expression. Couldn’t it then be argued that compelling architects to design buildings with emergency exits a violation of their freedom of expression?
On this messageboard, it is that you cannot compel me to answer this sort of leading question. Just say what you want to say, Bricker.
One possible way the court may analyze the competing interests is similar to a strict scrutiny analysis. If a right warrants strict scrutiny the government may still apply a neutral law which meets a compelling government interest and which is narrowly tailored to meet that interest.
So an architect could be compelled to include emergency exits in his building design since fire safety and looking after the needs of the public in an emergency are compelling government interests, the requirement for emergency exits is narrowly tailored to meet that interest.
Preventing discrimination in commerce is also a compelling government interest. So part of what the court must address in the case of the baker is if strict scrutiny applies and , if so, whether compelling each and every baker to produce goods against his will is the most narrowly tailored means by which government can address that problem.
Perhaps this question has already been answered, but; to what extent does context change a generic message?
Let’s say the baker has a range of non-custom, not-individualised cakes that pull a Diamond Joe Quimby and say “I endorse this event and/or product” on the top. The content of the speech, such as it is, is exactly the same for each cake. A gay couple make to buy one and mention that it’s for their wedding; the baker refuses them specifically. Other than the couple’s taste in cakes, is there a problem here, legally speaking?
I used to work for a full-service bridal salon and it was rare for a cake then to have names on it. Birthday cakes, yes. Wedding cakes, no.
Things may have changed in the meantime, though.
The court dabbled with the idea of context. Justice Alito offered a hypothetical that more or less it was, “One couple buys a cake with the message “November 9, the best day in history” in celebration of their wedding anniversary which falls on November 9. A neo Nazi orders a cake with the message, " November 9, the best day in history” in celebration of Kristalnacht. And the justices wanted to know that if the baker offered to produce the cake with that message for a wedding anniversary could they refuse a cake with the same message to celebrate Kristalnacht?
This was in response to a reply to a line of questioning from Mr Yarger, Solicitor General of Colorado representing the state. Yarger stated that, “That’s – that’s right, just as he would have to sell a happy birthday cake to a member of the Jewish faith or an African-American couple.” Justice Alito sought to show that perhaps there is a set of circumstances in which the same words might convey a very different meaning so having a bright line rule that you must write for one customer anything you have previously written for another customer might not be a good universal rule.
So at least Justice Alito has in mind that context matters.
So, maybe Alito will vote in favor of the baker? 
But that’s an interesting question, since “Happy Birthday” could apply to… well, you know who else has a birthday?
I think the real difficulty in this debate is confusion over how this baker designs and makes his cake. The baker’s brief claims that “Before designing [the cake], he meets with the couple to learn their desires, personalities, preferences, and wedding details.” But it provides no other detail over what that means.
There was an amicus brief filed by several (pro-same-sex marriage) bakers which argued that wedding cakes were a real art form and used a number of examples of cakes specifically tailored to the couple and their interests, etc. (and it had pictures!). I found that brief rather persuasive about the level of personalization and artistry that could go into wedding cakes.
I don’t know if this baker goes to that extreme with every couple. But if so, it seems to me to be materially different than refusing to bake Design #5 for a particular event (which was how we picked the cake when I got married. You chose from a list cake types and then looked through a book of designs and chose one and we got the number 7 in chocolate with vanilla icing – or something, I don’t really remember. But this guy is claiming that he doesn’t do that, I think.) .