Not according to the brief filed on behalf of the couple:
In Phillips’ reply, he claims that the evidence that the couple wanted him to create a cake specific design that included rainbows is that the wedding cake that the couple ultimately ended up with included rainbow filling:
IOW, there is no stipulation that the couple actually got around to requesting a rainbow design. Only that they ultimately ended up with one from someone else. But that they were denied a custom cake based on their orientation before even discussion the details of the design of that cake.
How about you answer the question that I asked instead of replying with yet another hypothetical? Jesus.
It happens constantly in the employment law context.
Well, that’s kind of the point. He didn’t refuse to do a cake for any type of wedding. Just one type.
That’s exactly what his argument boils down to once we take away the stuff that isn’t supported by the facts (that is, that he refused to make a cake for the couple because they asked for a cake with a message he felt was incompatible with his religious beliefs). It was specifically the fact that the cake was for a gay wedding that he actually objected to.
Once again, I think you are missing the post I was responding to, which in this case was:
“What the baker is really after is avoiding ‘guilt by association’ - he doesn’t want to be known as the baker that provided a cake to the gay wedding - because, fr him, that equates to supporting gay marriage.”
Do you have evidence that he didn’t want to be known as the baker that provided gay wedding cakes, or was it that he personally didn’t want to do it due to his religious beliefs?
That may be. Do you have a cite from the stipulated facts because it seems we have conflicting news reports. I see some that say that there was a rainbow involved and other say that they hadn’t gotten down to discussing anything other than the fact that it was a wedding cake.?
So lets say Freddie Mercury was still alive and he made himself available for gigs including political events and lets say that Moore won the election in Alabama. Would Mercury have to sing “we Are the Champions” at Moore’s victory party?
If not then why does the baker have to make a cake for the gay couple? Being gay is not a suspect class.
Bad analogy. No one can be compelled to sing, perform or otherwise speak at or even attend a political rally. That would be compelled political speech.
That is not stipulated fact. That is respondent’s brief. But I think the appellate court decision finding of facts is pretty convincing unless there is some reason to believe they got it wrong.
Because your question seem to be saying that as long as he is doing something he has done before there is no other context that matters.
But I would say no. He is not obligated to create exactly the same art for a different purpose. But he would be obligated to sell stuff off the shelf to anyone.
You’re assuming that the cake baking is speech. If it’s not speech, there is no first amendment issue and the Colorado law would prevail. If it is, then the 1st amendment issues need to be reconciled with the laws of Colorado that do prohibit this type of discrimination.
If we were only talking about Colorado law, then this case is easy and the baker loses. Only when a higher authority supersedes the Colorado law does the baker have a chance to win. Protected class at the federal level is inapplicable, as is public accommodation at the federal level because sexual orientation is not protected at the federal level. The only other federal level objection is free exercise, and that is very weak. That’s why the case will hinge on speech - compelled speech. This is very similar to Elane Photography, LLC v. Willock in which cert was ultimately denied. The reasoning by the Supreme Court of New Mexico can be read here where they go through the compelled speech analysis. I happen to think they got it wrong, but SCOTUS denied cert so their decision stands.
While I am not Damuri Ajashi, I think this is the question your were wanting an answer to? Maybe?
Justice Alito seemingly provided an answer to this while addressing the issue of context. A baker who made a custom cake with an inscription of “November 9, the best day in history” for a couple celebrating their wedding anniversary on that date may choose to express support for the love shared by the couple on the anniversary of their wedding.
But Alito implied that the same baker could later refuse to produce a cake with that same inscription of “November 9, the best day in history” for sale to a neo Nazi who wishes to celebrate the anniversary of Kristalnacht as the baker does not wish to express support for the idea that such a hateful event should be celebrated.
So no, it does not seem to be a good universal rule that once a particular design has been custom made that a baker must therefore produce a duplicate of that design for any future customer. Compelled speech and Freedom of Association are both implicated.
Yes and thank you. This is exactly the answer to my question. This makes a lot of sense if the message of the design choice is clear (i.e., a rainbow cake or text) and it seems right to allow the baker to determine which messages he’s willing to create, but it seems harder to justify his freedom of speech if the gay couple wants a white cake with white fondant and purple flowers which are design elements that have no particular meaning (that I know of) and that he’s created for other couples.
What’s so special about Trump that he needs to be protected class? Has he experienced systemic and rampant discrimination? I don’t have any problem with any “artist” determining which jobs to take and which to refuse. I only take exception when they determine to refuse service ***because ***the customer is a member of a class that is protected from discrimination.
To be clear, IF Trump were a member of a protected class and IF the artist refused the job BECAUSE of his status, then yes, the artist should be compelled to PAY A FINE and be subject to review (and possible revocation) of whatever government issued licensing may be associated with his business.
But how are the justices to draw a line between what is and what isn’t a “gay symbol”? Are we going to see an endless litigation of whether a purple rose is or is not a gay symbol or does it have to contain X number of colors from the rainbow before it crosses the line into gayness?
I’m quoting Brown Eyed Girl, but am asking that question more generally to folks here. I don’t know the answer.
If it wasn’t a symbol for gayness when he made it for a straight couple, it’s not a symbol of gayness when he makes it for a gay couple. If it is, then it’s suddenly about the client, not the expression.
As for how we judge, we seem to muddle along with figuring out similar questions when it comes to why landlords don’t rent to black families but do rent to white families. No, it ain’t easy; that doesn’t mean it’s not worth attempting.
But what if it’s a symbol he’s never used before? Perhaps our baker wises up and says “I don’t make copies of custom cakes that I’ve made before. Every custom cake I make is a new design.”
In what way does a landlord customize a home for white vs black families? I’m not seeing how that analogy helps.
Then what would be the basis for refusing to bake a cake for a gay couple other than their status? It seems to me given no other reason, he runs the risk that his refusal will be viewed as discriminatory. Just how many design elements for wedding cakes are there? Eventually he’s going to repeat a design element, be it flowers, ribbons, flourishes, icing colors, cake flavors, shape, height, etc. and which of these elements (or what combination of such) reflects an endorsement of same sex marriage?
I’ll go back to my earlier question: How do you (you, or the generic you) craft a ruling that allows the baker to decline if the cake contains certain “gay symbols” vs when it doesn’t? What specific language would the ruling have?
Honestly, I dunno. I don’t know how to craft a ruling because I’m not a judge, lawyer or anything of the sort. But in this case, if the facts are that design was never discussed before the refusal of service, I’m going to suggest that the design the couple wanted to commission was irrelevant. The relevance here is that the baker opted not to make any cake of any design for this couple because of their protected status. It had nothing to do with speech and freedom of religion shouldn’t allow one to discriminate against other people.
Maybe a better analogy is to hiring: every job is different, every candidate is different, and it’s extremely difficult to prove that someone is engaging in race-based hiring decisions. That doesn’t mean we don’t try.
The “customization” isn’t important here: what’s important is that we as a society recognize that we can’t know what’s going on in someone’s head, but by their actions we can figure out whether they’re making their decision for discriminatory reasons. It’s hard, but we do it anyway.
Similarly, we’ll never know for sure whether the baker refuses lavender flowers because they’re gay or because he’s got a policy against that particular color combination. So what? We can look at the evidence and figure out where it most likely points.
Well first, this idea of a “protected class” is pretty weak in case law. A class is only “protected” to the extent that the government takes a much more serious view of discrimination against them. But first the discrimination has to be illegal in the first place. If it’s legal to discriminate in a particular case, then it’s legal to discriminate whether or not the person is a member of a protected class. If there is a case where you can legally discriminate against a straight white male, then you can also discriminate against an African-American in that same case.
For example, a public accomodation cannot say, “no whites allowed” or have a general policy of discrimination in the serving of white customers. But any entity that can bar whites can also bar blacks. Anything else violates equal protection.