The Cake To End All Cakes

 

14051329877_ea1a6f2f9e_k

Folks, we need to talk about Masterpiece Cakeshop. Or as it’s more commonly known, the pending U.S. Supreme Court case about “can a bakery refuse to make a cake for a gay wedding.”

Yesterday I saw a lot of my liberal-feminist-LGBTQ-Mormon-affiliated-type-friends posting in horror that the Church of Jesus Christ of Latter-day Saints had signed onto an amicus brief in support of the baker. The same Church that had extended the olive branch to the Provo LGBTQ benefit concert last month now seems to be committing another act of political betrayal. It stung. The inconsistent messages, the never-ending barrage of hurt, the continued policies of exclusion, they’re maddening. I don’t dispute that.

But this brief is not in the same category. (Even if I quibble with some of its points and wording.) It was written by Douglas Laycock, who is an insanely well-respected non-Mormon scholar of religion law. Page two of the brief calls out LDS Church support for legislation “prohibiting sexual-orientation discrimination while providing religious exemptions.” It then emphasizes that Prof. Laycock vigorously supported Obergefell – the 2015 Supreme Court decision which held all bans on same-sex marriage to be unconstitutional.

Now, I’m a First Amendment maximalist. When I say that, I mean that I love all the clauses equally. Free speech and free press, free exercise and the Establishment Clause, and the oft-forgotten petition and assembly. They all matter. They’re all fundamental. But sometimes the First Amendment Clauses yell at each other. Sometimes a thorough analysis leads to counter-intuitive results.  Sometimes you have to protect a viewpoint you hate, in order to also protect the viewpoints you cherish.

In Masterpiece Cakeshop, the baker has set up a delightfully complex web of competing facts that make the First Amendment analysis exceptionally difficult. He is not claiming a general right to refuse service to LGBTQ individuals. He is fine if customers buy off-the-shelf cookies and pies, or ask him to custom-make birthday cakes. What he is uncomfortable with is designing a bespoke wedding cake to celebrate a ceremony that violates his religious beliefs.

Reasonable people can, and vigorously do, disagree about the best result here. The custom-made nature of the cake is, in my view, hugely significant. Precisely because the Constitution forbids slavery, an enormous body of law says you can’t force people to perform “personal services” against their will. And inherently artistic, subjective, client-focused, highly-tailored services? Things like photography and painting and cake decorating and wedding planning? They’re the epitome of that body of law. You can turn down customers for a million reasons in these fields – should a religious disagreement really be any different?

If the state is going to require personal services to not “discriminate,” it has to be consistent on what “discrimination” actually means. There’s evidence that Colorado was perfectly happy with bakers who refused to make cakes for anti-gay events, but then punished bakers who refused to make cakes for pro-gay events. The First Amendment doesn’t permit the State to have it both ways.

There’s a core “freedom of conscience” principle that criss-crosses the First Amendment, although the exact analytical approaches vary. I personally think the baker’s best argument is grounded in free speech. Doug Laycock, on behalf of the LDS Church (and others) makes a compelling argument why the best argument is grounded in free exercise of religion. And the State of Colorado and others – their briefs are coming later – have strong arguments as to why anti-discrimination laws should prevail here anyway. There’s a reason SCOTUSblog is running a massive symposium on this case, and various constitutional law forums I’m on are spinning themselves into circles trying to unpack this puzzle. It’s a mess.

Almost every opinion in this mess is valid.  Frankly, I’ve never even made up my own mind; I keep changing it whenever I read a new legal argument.  But whatever side you personally come down on, let me pose just one hypothetical scenario.

A neo-Nazi walks into a Jewish bakery in Charlottesville, VA. He’s planning a rally in front of Robert E. Lee’s statute and wants to supply themed snacks for his guests. A bunch of his friends from his church are coming, and he intends to start off the rally with a prayer for God’s favor in returning to the purer days of America. So he asks the bakery owner to custom-make chocolate-covered shortbread cookies, shaped like swastikas.  Can the Jewish baker refuse?

Your answer to that question should be the same as your answer in Masterpiece Cakeshop. If its not, have fun coming up with an exceptionally good – or at least intellectually consistent – reason why not.

UPDATE:  To more directly address the “Protected Class” distinctions, try this hypothetical, too.  The Jewish baker has discovered that there are so many cultural festivals in his city, there is a high-demand for sugar cookies decorated like various cultural symbols and flags.  One day, a Persian walks in and asks for custom Palestinian and Iranian flags.  Can the Jewish baker refuse?

*Photo Attribution: Chris JD pursuant to a creative commons license on Flickr

Comments

  1. Aaron Brown says:

    Thanks for this.

    It’s more than a little tiresome to listen to so many progressive Mormons and ex-Mormons talk as if defending the cake baker is prima facie evidence of anti-LGBT animus, and somehow totally inconsistent with the Church’s other views and actions in the LGBT space. The issues really are quite a bit more complicated than that.

    Aaron B

  2. Oh, come on, Nazis aren’t even *arguably* a protected class. Next question. :)

  3. I really appreciate the points you made and your approach to this situation. However, the parallel you draw at the end is a faulty one, because Neo-Nazis espouse supremacy over other races, and Nazis historically massacred the Jewish people. This is real hate and real harm directed at Jewish people. LGBT people have no congruous harm to religious people. A better parallel to your last example would perhaps to question if we are ok with Jewish bakers refusing customized goods to Neo-Nazis, would we be ok with LGBT people refusing cake to Mormons and other conservative Christians who have historically done much to repress and harm them?

    Also, I’ve heard the point brought up that a key issue is whether customized cake baking is considered an art form or a food service, because artists shouldn’t be forced to collaborate with anyone or produce art that is inconsistent with their vision and values. I agree with that, so that was an interesting consideration to me.

    I love so many of your points- Thank you for adding your voice and some nuance to this important conversation!

  4. Thanks Carolyn. I come down in favor of the baker on free speech grounds. But for those that don’t accept that analysis, don’t they just answer your hypotheticals noting that neo-Nazis aren’t a protected class, and LGBT are? Or does your hypothetical assume and require that the neo-Nazis claim to be a religious group?

  5. Kevin Barney says:

    Thanks for the analysis, Carolyn, I appreciate it.

    In my Religious Liberty Today blogpost, I gave some notes on the efforts of one of the presenters to craft a statutory compromise in the cake situation, which I’ll paste in below:

    Someone asked about religious accommodation in LGBT/Christian disputes over wedding cakes and the like. Steven says it’s a hard issue because there is a harm on both sides. The only way to make progress is by good faith negotiation. He is working with legislators in a state that are trying to do this (one LGBT. the other a conservative Christian). They both want to make this happen and are working well with each other. The template they’re working on would be something like this: if there are ample other providers, a Christian shop would have to maintain a list of alternatives to give to customers. (Noted perceived problem on Christian side has an element of being involved in the ceremony somehow, as opposed to just baking a cake.) But if they’re a unique provider or in a monopoly position, no one else within so many miles can do it, then the Christian bakers would have to suck it up and provide the service. They’re still working through it, but both legislators are very nervous about it, because their constituents are dug in and they don’t want compromise, nothing but total victory will be acceptable to them.

  6. Paul Ritchey says:

    The comments so far raise two issues, I think (legally, anyway):

    First, as Carolyn suggested, there’s a free speech argument here (or, rather, a compelled speech argument). The argument is that the baker ought not be forced to utter particular speech using his artistic voice. The anti-slavery argument is a variant of this one.

    Second, as Brady C. and Matt E suggest, there’s a nondiscrimination argument: the state is justified in preventing discrimination against protected class traits (e.g., sexual orientation), but must allow (some) discrimination against non-protected class traits (e.g., Nazism).

    The free exercise argument (which I take to be the nub of Laycock’s brief, though I haven’t read it) seems closely related to the first argument. So is it fatal to Carolyn’s analogy to distinguish between protected classes vel non?

  7. I have to agree with Brady C and Matt E here…this post is incomplete without an evaluation that nondiscrimination statutes are designed wit protected classes in mind for a reason…people are allowed to discriminate for *almost any reason imaginable*, but we set apart just a few categories that aren’t OK due to the historic animus against those classes.

    Part of what this case can help solidify is two things:

    1) Is LGBT orientation or gender identity (that doesn’t get protection in every state or city, btw) more like race (which certainly is protected), gender (certainly protected), or even religion (certainly protected), or like most other traits, which are not protected. And, does the protection of LGBT orientation or gender identity persist to things that LGBT folks *do*, such as getting married or actually identifying by the gender they identify as? (Because for trans folks, I have definitely seen where religious folks believe that out of their religious belief, they shouldn’t have to refer to a gender they don’t think applies.)

    2) Our nondiscrimination statutes generally apply to public accommodations, but not private clubs and religious institutions. Religious institutions, AFAIK, refer fairly narrowly to actual churches. It seems there has been a bevy of court cases, of which this is one, to expand religious exemptions across a series of laws. This just seems to be the latest: although Masterpiece avails themselves to the public, they want to be able to pick and choose against protected classes. Can they claim to be a public accommodation when they want to, but religiously motivated when they don’t?

    (I have seen variants such as: “the definition of a public accommodation should be limited to “essentials”…like, maybe housing/lodging, and things like that. And that a customized cake is just not a big deal so shouldn’t be included.)

  8. The Jewish baker does not have to make the cookies because he simply does not have that type of cookie on his menu. The cake maker, however, does sell wedding cakes. The issue is that they are descriminating against some types of weddings that are equal under the law. They could not say that they’ll make cakes for Christian weddings but not Muslim ones, or religious weddings but not secular ones because these are all marriages with equal standing under the law. If you sell wedding cakes, you sell them for all weddings, creating distinctions between weddings based on what you, but not the law, believes constitutes a wedding is what’s discriminatory.

  9. “people are allowed to discriminate for *almost any reason imaginable*, but we set apart just a few categories that aren’t OK due to the historic animus against those classes.”

    This is what I think is at the crux of it. Colin Trevorrow just got fired from the director’s chair of the Star Wars franchise. Was it because he was male? Over 40? White? No. It was because he and the producers had creative differences. Now, if the producers had fired him for any of the above reasons, he could reasonably sue for being discriminated against. This baker specifically set up a good that he would sell to any other group (not straw man swastika cookies) and gave a specific reason why he wouldn’t make that same good for this couple. That is textbook discrimination.

    I think we should also consider another option the Church’s legal department had at their disposal: do nothing. This baker’s case is not the strongest case for protecting religious liberty and they could have simply waited for a better case to come along to make their argument.

    Before anybody gets any ideas: I am an active member of the church, not an embittered ex-mo, LA, pror-mo, or whatever.

  10. Emma, Your first sentence assumes a fact not in evidence. For the sake of Carolyn’s hypothetical, we should instead assume the Jewish baker has on his menu “artistically custom-shaped, chocolate covered cookies.” Does this affect your analysis?

    Of course, I am assuming that the issue is a custom-made, artistic wedding cake and not a pre-made wedding cake off the shelf. It seems that it may be that custom/artistic issue that engages the personal services and free speech arguments. But I haven’t yet read closely enough to be sure of that assumption.

  11. Very interesting. Thank you. Fits in my mental shelf labeled “only the caricature of a hard case has an easy answer.”
    On a policy level I continue to be bothered by false narratives (suspicion of).
    >Is the baker’s objection really religious? Where’s the religious move from “I can’t marry” to “I can’t celebrate?”
    >Is the baker really an artist or really a craftsman? I don’t feel the same free expression vibe about bespoke as about design.
    >Is the pitch for a religious exemption really about control, or is it really about well-established religious norms, or is it really about privileging embedded and unexamined homophobia, or is it really about giving churches more time to make changes over generations that secular society is making much faster? Do all/any/some of those really deserve a religious exemption?
    >Are the protected class arguments really about where LGBTQ fits in our class hierarchies? Or really about a retrenchment in protections generally?
    >Is there a core principle to the consistency argument? Or is every consistency argument consequentialist? The obvious parallels AND obvious distinctions in the neo-nazi swastika cookie hypothetical make that one, anyway, seem consequentialist.
    >In arguing about high principle–expression and exercise and discrimination–in a politically charged environment, are we allowing for the real world difference between being the only baker in town and one of three on the same street? For the difference between individual personal service and directing a group of employees each with their own religious and expressive interests, in what personal service they might provide? For the wide variety of activities that might be swept into a religious exemption, from sacerdotal practices and principles to housing and employment and enforcement of secular laws in religious schools?
    >Are we really trying to solve a problem? Or just win?

  12. A couple of people here and on FB are disputing Carolyn’s example, pointing out that neo-Nazis are not a protected class. (Two observations: first, that consideration is likely to be quite germane to the anti-discrimination arguments which the state of Colorado is planning to file, but less so to free speech and free exercise arguments, because, second, it is not in fact settled law the LGBT individuals constitute a “protected class”: just because President Obama ordered the EEOC to interpret civil rights law in that manner doesn’t make it a legal precedent which courts are obliged to respect.) Since that strikes me as a distraction from the puzzle that Carolyn does a wonderful job describing here, may I suggest a few changes to the second-to-last paragraph: for “neo-Nazi,” put “member of the Nation of Islam”; for “Charlottesville, VA,” put “Chicago, IL”; for “Robert E. Lee” put “Louis Farrakhan”; for “God,” put “Allah”; for “swastika,” put “crescent.” Her puzzle–and in particular, her file, italicized question–still holds, I think.

  13. “her FINAL, italicized question,” I mean. Sheesh.

  14. “What he is uncomfortable with is designing a bespoke wedding cake to celebrate a ceremony that violates his religious beliefs.”

    Religion is whatever you make it to be. Suppose I claimed that my religious beliefs dictated that it was evil to interact with black people. I am free to choose not to interact with black people. I am free to claim that I belong to a religion that prohibits interaction with blacks, and I am free to establish such a religion. But I shouldn’t be free to own a for-profit business and then force black people to bear the burden of my religious beliefs by refusing business to them.

    Neo-Nazism is a changeable ideology, not an unchangeable sexual orientation. Being anti-gay is a changeable attitude, being gay is not. Big difference.

    Siding with the baker and foolishly claiming that he is acting out of some distorted idea of “free speech” (never mind the fact that he is forcing people with an unchangeable sexual orientation to bear the burden of his religious beliefs) automatically means that you are homophobic, much like siding with a baker who refused business to blacks simply because they were black would automatically mean that you were racist.

    You can’t support blatant homophobia and then turn around in the same breath and say that you are not homophobic. You are Carolyn. You are Aaron B.

  15. “I think we should also consider another option the Church’s legal department had at their disposal: do nothing.”

    Thx GWP, totally agree, and for oh so many reasons.

  16. I mean, nobody’s mentioned that swastikas are hate speech? Pretty sure that’s illegal?

    It definitely is here in Germany.

  17. Another wrinkle here is that there is a state law in Colorado that specifically forbids businesses from discriminating against LGBT* people. This isn’t a situation where a random marauding gay rights ninja (isn’t THAT an image?) kicked in the door of a random country baker and demanded service. Colorado state lawmakers passed a law that requires businesses in that state to accommodate LGBT* customers. That law does not exist in every city or state, and certainly doesn’t exist at the Federal level.

    In other words, this case is a relatively narrow hearing on that law. If the baker loses, it doesn’t automatically mean that the gay ninjas can force every LDS baker in the country to serve them. It *might* suggest that other states or communities passing similar laws can expect them to be upheld, but it doesn’t plunge the nation into the terrifying gay abyss all at once.

    As for myself, unless this case speaks to Andrew S’s point #1 and declares LGBT* folks to be a protected class based on sexual orientation, I’ll just assume that it’s a referendum on the Colorado law.

  18. (1) Hotels cannot turn away black patrons, but AirBnB canceled the reservations of Neo-Nazis.

    (2) FOR THE LOVE OF BRIGHAM WHY CANT THE CHURCH JUST STAY OUT OF IT? Whyyyy oh why does our legal team seem physically incapable of sitting still in their seat with their arms folded during even one opportunity to be anti-gay? Did nobody at Kirton McConkie attend Primary as a child? Nobody is arguing they should have filed a brief on behalf of the baker, but why couldn’t they just mercifully STFU for once?

  19. Religion is whatever you make it to be. Suppose I claimed that my religious beliefs dictated that it was evil to interact with black people. I am free to choose not to interact with black people. I am free to claim that I belong to a religion that prohibits interaction with blacks, and I am free to establish such a religion. But I shouldn’t be free to own a for-profit business and then force black people to bear the burden of my religious beliefs by refusing business to them.

    Well, but the bakers don’t generally refuse business to LGBTQ people. That point seems to be missed often. The bakers refuse to participate in a same-sex wedding. And not merely because it’s a wedding with gay people as participants and they don’t like gay people (again, they don’t generally refuse business to gay people simply on the basis of being gay), but because the wedding itself is objectionable to the bakers.

    So, refusing to cater a Muslim wedding isn’t a good analogy, because while many Christians believe that Islam is a false religion, I don’t know of any who specifically object to the practice of Muslim weddings. Similarly, refusing to cater a wedding where the bride and groom were black is also not a good analogy–that would not be about the wedding, just about the melanin.

    The issue is participation (or being compelled to participate) in something that the objector finds religiously objectionable, not merely providing services to a person that the objector finds religiously objectionable. And it’s hard to find good analogies because *most* things that a religious person might find objectionable are also objectionable to the general public (like a Nazi rally).

    Any good analogy has to be about someone objecting to having to participate in something they find religiously forbidden (not just objecting to serving a particular kind of person who they don’t like, even if their dislike is religious in nature), and the thing being objected to can’t be something that is generally understood to be harmful or dangerous. And the identities of the people being refused service would be protected if the objector refused to serve them strictly on the basis of their identities.

    Maybe good analogies would be:

    Someone who thinks the Bible forbids interracial marriages objecting to baking a cake for an interracial wedding? (Although it’s difficult to imagine that this hypothetical baker would otherwise happily serve people of all races, whereas Masterpiece Cakeshop does otherwise happily serve LGBTQ people.)

    A Jew or a Muslim being asked to bake custom bread for a Christian eucharist, maybe? Assuming the baker doesn’t otherwise refuse to serve Christians. Although “custom bread” seems dubious in this instance. A Jehovah’s Witness vintner being asked to put together a custom wine blend for an Episcopal diocese to use in communion? Also seems unlikely, but at least I think the analogy is better. I’m trying to think of things that aren’t just weddings, but to which a person might have a religious objection against participating.

    A Muslim graphic designer being asked to create a custom flyer for a Pentecostal tent revival? A Jehovah’s Witness general contractor being asked to build a baptismal font for a Southern Baptist church? (I mention Jehovah’s Witnesses multiple times because, as I understand it, they are specifically forbidden from participating in or even attending other faiths’ religious rituals. But I’m not sure if building a religious edifice is the same as participating in the rituals performed in it–maybe a Jehovah’s Witness would disagree.)

    A Mormon designer being asked to create promotional materials for a marijuana dispensary? Or a coffee shop? (Those are less good because marijuana and coffee enthusiasm are not protected classes nor do they need to be.)

    A Roman Catholic baker being asked to bake a cake for a divorce party? Or someone’s second marriage when there has not been an annulment? (Also not great analogies because “divorced person” or “second marrier” are not usually otherwise protected classes.)

  20. A better analogy might be an orthodox Jewish Baker asked to make cross-shape cookies for a Christian funeral — but My Name Is Asher Lev style he has a fundamental religious objection to supporting Christian religious exercise / artistically depicting anything cross-like.

  21. Some Mormon attorney examples, since so many people on the bloggernacle are attorneys;
    A Mormon attorney doing an adoption for a gay couple.
    A Mormon judge performing a wedding for a gay couple (although as a judge is a government employee this requires a different analysis).
    A Mormon attorney representing a married gay individual in a child custody case where the other party is straight.

    Frankly, I think any Mormon who objects to doing these things on religious grounds is either a bigot or misunderstands the gospel (or both), but I understand that many Mormons feel differently.

  22. On the whole Protected Class issue. That’s the distinction – the government has a compelling interest in promoting a civil society free of discrimination – that makes me favor the state often. It’s why I don’t think the religion law arguments work as well here. As I wrote in Zubik last year, I’m opposed to a religious test that amounts only to a pure-subjective “but I really believe that’s a sin!” Analysis, particularly when it’s used to justify harms on third parties.

    So I think I ultimately disagree with the church’s brief…but that brief was more nuanced than just “I have a religious right to discriminate.” It was “I have a right to object to a specific religious imbued activity, not against a class of people as a whole.”

    So then I fall back on free speech, which as mentioned above, is trickier. The same sort of protected class analysis doesn’t come into play. Free speech asks whether specific content has been targeted for disfavor. And that answer, to me, seems to be yes…

    I do agree with Cynthia though. If the Church doesn’t want to be accused of feeding into the Culture Wars it should stop intentionally and needlessly inserting itself into the Culture Wars.

  23. R. MacRobert says:

    I’m not a lawyer, as so many here are (or like to pretend they are), but I think that there are two points to make: 1) The LDS church on an organizational level is clearly anti-LGBTQ and it’s ridiculous to argue otherwise. Point to gay friendly quotes from general authorities all you like: I’ve got a slew of LGBTQ people who’ve been driven away by church leaders I’d like you to meet; 2) The baker has a right to refuse to bake the cake for whatever reason he or she sees fit. Doesn’t make it good. Doesn’t make it proper. Doesn’t make it fair. The baker is an asshole. But being an asshole isn’t a crime.

  24. David Tedder says:

    Of course, there’s always the option of going to another baker rather than drag this poor guy through the ringer and forcing him out of principle. Who wins here? That cake won’t taste very good knowing it came from an artisan whose product only brought him misery. Unless you’re just that kind of couple.

  25. In my opinion, conceptual severability under copyright should be the deciding issue. If the cake decoration is severable from the cake itself, then CR principles apply and the baker has rights to refuse a commission. OTOH, if not severable, then the cake is a mere chattel and the baker has no right to refuse service.

  26. No person should be forced to associate or do business with a person they find objectionable. You shouldn’t be able to compel people to pick your cotton, build your product, make your cake, cater your party, or attend your board meeting if THEY find you or your business objectionable. The ability to freely choose who we associate with should belong to all people as individuals, business owners, and service providers. The only realm this should not be the rule is gov’t. If you hold a position in gov’t (elected or non-elected) you should have to provide equal service and quality to everyone. Otherwise, leave people alone to associate with whom they choose.

  27. “So then I fall back on free speech”

    Carolyn, the issue never was free speech. That baker has every right to shout homophobia in the streets. The issue is owning a for-profit business and discriminating against a class of people. Your cries of free speech are nothing but a muddying of the waters.

    You’re presenting a Trump-like “both sides” argument. And just like the “both sides” argument revealed Trump’s sympathies for white supremacists, the “both sides” argument reveals your sympathies for homophobes. You clearly have sympathies for the LDS church and its homophobia, which is the main motivating factor behind what you write. The fact that you conveniently ignore Jim Crow is telling. Why would businesses have any more right to discriminate against LGBTQs than blacks?

  28. Here’s my view: The swastika shaped cookies are offensive because of what they are. I would expect the baker to object to making those cookies for a neo-nazi, or some college students hosting an incredibly distasteful party, or an 8th grader playing a bad prank. I can look at the cookies and explain why the cookies themselves are a speech that is fundamentally objectionable. You don’t have to bake swastikas for the neo-nazi, but you do have to sell him sugar cookies even if you know he’s going to take them to a klan picnic.

    The bakers refusing to make the wedding cake are not, on the other hand, objecting to making the cake because of what the cake is, but because of where the cake is being taken. Unless they can explain to someone how the specific cake they have been asked to make is by itself objectionable, they should be required to make it. As such, I am willing to cut them plenty of slack in refusing a commission for a cake with text that says, “Gay marriage is the best,” or has a groom & groom topper, or even one that is rainbow colored. (Though I would wonder if they refuse requests for rainbow colored cakes for children’s birthdays.) Perhaps the cake in question fits into this category, but I’d be surprised if it did. Unless they can explain why a four tiered white cake with flowers on it for a straight wedding is differed from a four tiered white cake with flowers on it for a gay wedding (or a four tiered white cake with flowers on it to celebrate by bowling team’s victory), they are objecting to the people buying the cake, not the making of the cake.

    Furthermore, I think it is useful to distinguish between a marriage ceremony and party that people tend to hold on or around the day of their marriage ceremony. I have sympathy toward people that do not want to participate in a marriage ceremony that they object to (religious leaders, photographers, judges, ceremony planners, etc.) I don’t know where all the right lines are to draw for what they should be required to do. I have never, however, seen a cake (let alone a baker) involved in a marriage ceremony.

  29. In my opinion, conceptual severability under copyright should be the deciding issue. If the cake decoration is severable from the cake itself, then CR principles apply and the baker has rights to refuse a commission. OTOH, if not severable, then the cake is a mere chattel and the baker has no right to refuse service.

    What? No. First Amendment jurisprudence does not incorporate copyright law by reference for so many reasons.

    Carolyn, the issue never was free speech. That baker has every right to shout homophobia in the streets. The issue is owning a for-profit business and discriminating against a class of people. Your cries of free speech are nothing but a muddying of the waters.

    You’re presenting a Trump-like “both sides” argument. And just like the “both sides” argument revealed Trump’s sympathies for white supremacists, the “both sides” argument reveals your sympathies for homophobes. You clearly have sympathies for the LDS church and its homophobia, which is the main motivating factor behind what you write. The fact that you conveniently ignore Jim Crow is telling. Why would businesses have any more right to discriminate against LGBTQs than blacks?

    Mark C., it has been pointed out repeatedly that the bakers don’t generally refuse to serve LGBTQ people.

  30. In a jurisdiction like Nevada where prostitution is legal, could a call girl decline to do a . . . er . . . “job”, for a lesbian client?

  31. Kullarvo, repeating disingenuous arguments does not make them correct. We know the baker’s motivations. Suppose a baker refused service to an interracial couple because of his religious opposition to racial mixing. But then turns around and says, “hey, I have nothing against black people they can patronize my business.” No one in their right mind would say that such a refusal wasn’t motivated by racism and targeted a class of people.

  32. FYI: To address all of the “protected class” protests, I just updated the post to add this: UPDATE:  To more directly address the “Protected Class” distinctions, try this hypothetical, too.  The Jewish baker has discovered that there are so many cultural festivals in his city, there is a high-demand for sugar cookies decorated like various cultural symbols and flags.  One day, a Persian walks in and asks for custom Palestinian and Iranian flags.  Can the Jewish baker refuse?

  33. You clearly have sympathies for the LDS church and its homophobia, which is the main motivating factor behind what you write.

    Just last week a reader of one of Carolyn’s posts had the impression that the author is “a former LDS member, now converted to Catholicism.” I don’t think she’s changed much in the meantime, but maybe what Carolyn is and thinks isn’t quite as obvious as one might first assume.

  34. Maybe Carolyn is a lawyer who likes intellectual exploration for the sake of intellectual exploration, and also understands that if she’s writing an analytical essay (er, short “blog post”) her “argument” can’t fully explore every angle of every perspective without dying under its own weight?

    Carolyn has a post planned for soon about how to re-do all of LDS theology to make space for LGTBQ beliefs. Carolyn is sure she will be called an apostate from many quarters on that one.

    Carolyn likes writing in third person.

  35. The Catholic church is also a homophobic organization.

  36. Surely there is a difference between swastika cookies and a wedding cake. Unless the cake being requested is supposed to say a specific message the baker disagrees with on religious grounds (like “gay marriage is ordained of god!”) that’s not a great comparison. It’s possible that a gay couple and a straight couple could be requesting the same wedding cake design, but the baker would be turning away the gay couple because of their sexual orientation. The issue here isn’t the design. It’s the event.

  37. Great post, Carolyn. Thank you for this. I agree that it is not as simple as many want to make it out to be. I thought the brief made a few minor errors in word choice/strategy, but overall it was well-written and pretty nuanced. I appreciated the call to reconsider Smith. I still think the baker should lose under current law, but I would be very happy if this case did result in Smith being overruled. Not optimistic for that, though.

    A couple minor points on the comments:

    (1) “Protected class” is a terrible term. It gets thrown around, but to be precise, antidiscrimination law (whether statutory or under constitutional EP jurisprudence) doesn’t single out classes of people to protect; it singles out bases of discrimination to prohibit. You can discriminate against minorities, gay people, religious people all day long for other reasons; you just can’t do it because of their race, sexual orientation or religion (well, sexual orientation is a little more complicated under Federal law, as Russell points out above, but many state anti-discrimination statutes expressly prohibit discrimination on the basis of sexual orientation). Of course, if your “other reason” is just a pre-text, that’s not going to work, but it is not the class that is protected, it is the basis of discrimination that is prohibited. This matters because prohibiting a basis of discrimination protects everyone equally. So prohibiting discrimination on the basis of race protects both black people and white people from discrimination because of their race. Prohibiting discrimination on the basis of sexual orientation protects both gay and straight people from discrimination because of their sexual orientation. “Protected status” is a little better, but it’s a lot clearer, IMO, to just stick with “prohibited basis of discrimination.”

    (2) “Hate speech” is not a thing. At least, it’s not an exception to the first amendment. Some state laws may make “hate speech” illegal, but those laws are generally only valid if they can fit into one of the already-recognized reasons why the state is allowed to regulate speech; you don’t get to outlaw speech just because it is hateful. That’s a classic content-based restriction that the first amendment really frowns upon.

  38. Yes, why can’t the Church just STFU on this? Parallels to the Westboro church are clear.

  39. The inability to see the difference between a Jewish cake shop owner refusing business to a hate group that says vile things against Jews and a homophobic bigot refusing business to LGBTQs because he hates that gays can marry doesn’t sound terribly intellectual to me. Sounds like you get your talking points from Trump.

  40. @MarkC: You clearly don’t know me, because there is literally nothing more hilarious than the idea that I support Donald Trump. My dream in life is to join the ACLU and build an entire career around suing him.

  41. Mark C., sure there’s a difference, that’s not the question. The question is whether that’s a difference that constitutional law recognizes (or should recognize). If the only difference is “but I agree with the Jewish baker and disagree with the homophobe baker,” then the danger is that we put ourselves at the mercy of whether a majority of the supreme court agrees with the action. The law’s not perfect, but we generally strive for distinctions that are more principled than that.

  42. @JKC: Thanks for the protected class primer. Original post could have been clearer on that — the distinction that this baker is refusing to support a specific –event–, rather than discriminating against –all LGBTQ people– is a distinction with a difference.

  43. Brilliant analysis and explanation. Brava.

  44. I actually thought the OP was fine. It was just in the comments that people were throwing around “protected class” a lot. And that’s not to fault the commenters here, because it gets thrown around a lot everywhere this conversation takes place. It’s just sort of the my hobby-horse that I make myself annoying over.

  45. Another distinction that potentially makes a difference to me re the compelled speech argument is whether it is a custom-made cake that actually has a pro-gay message written on it or not. I mean, if it’s a cake that could have been served at a straight wedding without alteration, that seems to make it clear that it is the event, not the design of the cake that is the issue, and it seems like a harder argument to say that the cake is the baker’s expressive speech based not on the cake, but on the setting where it is served–presumably after it has left the baker’s control. I think there’s still an argument, but it seems a lot harder.

    By contrast, being forced to bake a cake that says “Gay marriage is ordained of God” or “Congratulations Bruce and Steve!” or even that has two groom figurines seems like a better candidate for a compelled speech argument. But if the baker just refuses to bake any custom wedding cake for a gay couple at all, regardless of the message on it, then you never even get to that point.

  46. One fact of the case that hasn’t been mentioned yet in this discussion — and I think it’s significant to the legal argument — is that the baker refused to talk with the potential customers about what the cake would look like. To me, it’s obvious that on First Amendment grounds the baker could have refused to provide a cake with a design (such as having a cake topper with two men) that endorses gay marriage. That’s not the case before us. The baker’s legal position is that the mere decision on providing a cake, regardless of design, is a matter of religious freedom and/or free speech. For all we know, the customers may have wanted a routine three-layer cake. I simply don’t see providing a cake for a post-wedding festivities (which, in this case, took place in a different state than the wedding) as participation in a religious ceremony, as does the amicus brief.

    And to answer Olea’s question above: In the U.S., swastikas are perfectly legal. Display of a swastika might be used as evidence of motive in a prosecution for a hate crime, but the swastika itself is protected speech. Hate speech usually is legal as long as it doesn’t constitute a separate offense, such as harassment or incitement.

  47. JKC: If the words are somebody else’s words, and the baker is just the scribe, does that fall under the compelled speech doctrine? (A genuine question, albeit asked with a hint of “I don’t think so”).
    I would have thought that if the specifications are all delivered, and the baker is just making to order, then the speech arguments are pretty weak and the baker would be advised to turn to religion for advocacy purposes?

  48. Thanks Carolyn. This is an excellent explanation of what’s actually going on, and of the competing rights and sensibilities.

    And the question is much harder than both sides make it out to be. It pits two fundamental values in opposition to each other. I actually think, on one level, that this is a deceptively easy case. The harm to an LGBT couple is real, but it’s largely a dignitary harm, one that lacks the emotional resonance of, for example, denying them housing or firing them from their jobs (or worse). It’s easy enough to argue, “What’s the harm?”

    That said, my impulse is toward the LGBT couple. Because, while there’s limited harm to them of not getting a cake, it also seems to me that the harm to the baker of baking the cake is also limited, at least (as JKC says above) if they’re in the business of making custom cakes, and there’s nothing explicitly pro-same sex marriage about the cake. (As others have said, I think I’m comfortable with saying that the baker can’t be required to write an explicit message in favor of views he or she doesn’t hold; otoh, I don’t remember seeing any explicit messaging on any wedding cakes I’ve seen in the recent past.) But balancing the harms, it does seem like the dignitary harms to a minority couple outweigh any potential religious harm to the baker.

    But again, even as I come to that conclusion, I necessarily have to say, it’s a hard question, and if someone tells you there’s an easy answer, that person hasn’t actually considered the question.

  49. Good question, Christian. I don’t know. I don’t think so. The Colorado courts didn’t think so. But I don’t think whether the baker is just a scribe is a simple question. It sure seems to me like the design process is more than just copy-work, but I don’t know where you would draw the line. That’s not an issue that I’ve ever had occasion to look at.

  50. Re your second question, Christian, I think the free speech argument comes in b/c the Supreme Court’s decisions over the last 20-30 years have limited religious freedom arguments. It used to be that to win on a religious freedom claim all you had to do was show that the state action substantially burdened your religious exercise, and it was then the state’s burden to show that that burden was necessary to accomplish a compelling government interest. But in the Smith case (a case involving a challenge to laws that denied unemployment to people who were fired for religious use of peyote) the Court basically said that standard doesn’t apply as long as the law in question is neutral and generally applicable–that is, if the law doesn’t single out religion for special disfavor, and it only burdens religious exercise incidentally, then the law is valid, end of analysis. Since in that case the law applied to all peyote use, not just sacramental use, the Court decided that the law was valid.

    As a result, religious freedom claims are a lot harder, and because anti-discrimination laws are generally neutral and generally applicable, first amendment free exercise claims aren’t likely to succeed as a means to challenge such laws. (Though it seems that in this case there is some evidence that the state didn’t enforce the anti-discrimination statute neutrally–it may have enforced it against anti-gay bakers, but not against bakers that refused to bake an anti-gay cake–and that may change the analysis.)

  51. JKC – thanks for correction. To refine my own comment, I’m waiting to see if SCOTUS declares sexual orientation to be a protected class (not LGBT* folks themselves).

  52. scott roskelley says:

    I think the request for a jewish owned bakery to make nazi cookies is a false one, because nazi’s in the US have not deserved the right to ‘strict scrutiny’ on the guarantee to equal protection. It’ s also an aggressive move to walk into a jewish owned bakery and make such a request. So, I’m fine with jewish bouncers throwing the thugs out of the bakery and dusting the shoes from off their feet. A better analogy would be a mormon owned bakery in North Carolina post Loving v. Virginia in 1967. At the time of Loving there were still 16 states who still had miscegenation laws on the books, and North Carolina was one of the states that took an extra protective measure by barring the state legislation from ever legalizing a white + Negro marriage. They even institutionalized miscegenation in the state constitution – with the law stating that mixed race marital abomination was “forever prohibited”. The mormons at the time after pressure of potential naacp protests in Oct 1963 issued a civil rights statement that “all men, without regard to race or color” were honored to receive “full civil rights and liberties, social, economic, and political, as provided in the Constitution and laws”. This statement separated civil rights support by the church from the right to continue teaching religious sanctioned racism. This allowed the church prophets to continue embracing evil folk doctrine on the pre-existence as support to banning blacks from marrying in the temple – which professor bott at byu embraced, and roy doxey defended against Lowry Nelson’s prophetic and inspired visions. So this couple in NC in 1968 arrives at a mormon owned bakery elated that the supreme court Loving decision has overturned the racial prejudice of the NC miscegenation laws they walk in to purchase a cake for their wedding. Let’s say that the owner of the bakery is Marian Petersen (daughter of Mark E Petersen). Should she proudly deny service on religious grounds?

  53. From a pure ethics policy perspective, a baker should sell an off the shelf cake to anybody who frequents her establishment, but never be compelled to make a bespoke cake. Similar policy for photographers. A photographer should take photos of any group of individuals who frequent their open to the public studio, but never be compelled to attend a gathering against his desire. There are multiple paths to get to this outcome by law, but it is the public policy that really matters.

  54. Bro. Jones, I don’t think this would be the case for that, because it’s not the gay couple suing under a constitutional equal protection theory, or making a discrimination claim under federal anti-discrimination statutes; the state statute already makes sexual orientation a prohibited basis of discrimination, and it is the baker arguing that the state statute violates his first amendment rights.

  55. Michael Davis says:

    What if instead of being a baker, this individual was a clown. And the couple wanted a circus themed wedding. Any right to refuse?

  56. Thank you Carolyn for this post. It went in a different direction than I was expecting!

    After reading through all the comments, the question I have is why does the government have a compelling interest to force bakers to do anything? Federal power is… well… powerful and for me is the chief concern in this case. That the federal government intervened in the 1960s on behalf of blacks should be seen as a rare and extraordinary thing and an option of last resort rather than as a precedent. State and local governments were working to systematically discriminate against a minority group and the only way to stop it was through congress and the supreme court.

    All of the cases of denial of service to LGBT folks that I have heard of involve nothing life threatening, essential, rare, nor is it state sponsored. Wedding cakes, flowers and photography are not hotels, hospitals and banks or access to business licenses or the voting booth. For every one that might deny service, there are likely 50 more that won’t.

    It seems a small price to pay to live in a free society to allow the owners of these sorts of non-essential businesses to do what they want. While I might be offended or hurt, I am perfectly willing to walk into a bakery and be turned away based on my religion or race or the message I want on my cake.

  57. I honestly have no idea why we are having arguments over the premise that people should be free to choose who and how they associate with other people. That just seems obvious, right?

    It is morally wrong to force someone else into a sexual relationship, and laws allowing it would be reprehensible. It is morally wrong to force someone into a financial relationship (blackmail/extortion/etc) and laws allowing it would be reprehensible. It is morally wrong to force someone into a labor relationship (slavery anyone?), and laws allowing it would be reprehensible. It is morally wrong to force someone into a business relationship, and laws allowing it are reprehensible.

    Forcing anyone into any type of relationship which they object to, regardless of the reason for the objection, is wrong. And using the power of government coercion to do it is reprehensible!

    Would you force a black mechanic to repair the car of the racist jerk who yells racist slurs at him all over town? Would you force a rape victim to serve their rapist customer? What about requiring the parents of a murder victim who own a bakery to bake a cake for the murderer’s wedding?

    All parties to any relationship should be consensual, on purpose, with both parties willing to participate. End of story!

  58. @JaxJensen – problem with that argument is that if literally every transaction in the United States could be governed by “I don’t like those people,” then civil society and commerce would be insanely affected and minorities would suffer dramatically as a result.

  59. That society would be affected is true, but are we sure that it would be in a bad way? Society will be affected no matter how this case is decided. I propose that keeping society free, especially in terms of relationships and who we associate with, is a fundamental function of what gov’t SHOULD do. This extends to gov’t not making laws forbidding inter-racial marriage. Everyone should be free to associate with whom they choose. We look back now and say, “How crazy/stupid/racist that the gov’t would make a law forbidding people to associate with whom they want.” And that is because it violated what should be a very clear principle to follow: All people should be free from all force (especially gov’t coercion) in deciding who they associate with, and how.

  60. jazz, it would unquestionably be a bad thing. It wasn’t that long ago that lunch counters wouldn’t serve African American customers. It wasn’t that long ago that law firms refused to hire Catholic and Jewish attorneys. It wasn’t that long ago (and, in fact, it still may happen some places) that you could be fired for being gay. The US would be considerable different—and considerably worse—without the government intervening with anti-discrimination laws. It’s nice to posit a world where the market drives non-discrimination, but that doesn’t appear to be the world we live in.

  61. Sorry, “jax.” I blame autocorrect.

  62. scott roskelley says:

    I’m curious, after the LDS church enthusiastically pressured lawmakers to pass HB281 (59 – 16) against “apostate” religious freedom, overturning Waddoups, and recriminalizing plural marriage throughout the state, what happens if Bill Hendrickson with his 2 wives one on each arm go in person to an LDS owned cake shop in Sandy and request a custom plural marriage cake to add a 3rd wife Margy? Would the LDS church bakery owner proudly point to articleIII of the utah constitution and testify with great feeling the beautiful inspiration of the federal government to force the church to add the “plural marriages are forever prohibited” exception to the religious freedom section and deny service on ethical grounds and repeat with hand raised to the square the 12th article of faith?

  63. So, freedom to want swastika cookies and freedom to refuse to bake them.
    Thanks for sharing!

  64. Look, just come out and say you think queer folks are as bad as Nazis, and you want us to never know if we can ask a cake decorator to put “CONGRATULATIONS BREE AND JENNA” on top in icing without being told our existence is abominable.

    There’s totally harm on both sides here. We get reminded, yet again, that we aren’t actually people to you, and you get reminded that we exist. Both sides, man!

  65. Sam, its a small point, but I don’t give a rat’s @ss about “the market” driving things. I don’t care at all if any one at all makes any money. I’m interested in personal liberty to make ones own choices. I think that is a principle that ought to be defended vigorously and that even though there would be some negative consequences (there are to EVERY arrangement) that maximizing personal liberty ought to be an objective we strive to achieve. I think maximizing liberty is far more important, and would to much more societal good, than legislating around emotions and personal feelings.

    As a Mormon resident of a southern “bible-belt” state, I know that that could negatively impact me, but the principle is one that is worth defending none-the-less.

  66. Jewelfox, I hear you. I don’t think your comment accurately captures where Carolyn comes down, though.

  67. Clown should be able to refuse. Inherent in the right of freedom of association is the right not to associate. With a few notable exceptions where prefession intersects public health and safety, no self employed individual should be compelled to attend any type of gathering.

  68. How do you know that the people getting same-sex married are in fact homosexuals?

  69. jaxjensen: The personal liberty argument has a lot of appeal (ethically and in the law) when we’re talking about flesh-and-blood people, private individuals. My typical rejoinder is that a lot of the real questions are a step up in abstraction, where we’re talking about a company (a big one? or a small one? owned by thousands of shareholders? owned by one person? one family? What if the family is the Waltons?), or a storefront, or the electric utility, or a collection of people such as a private club? Or even just a title–I do tend to think that a President (of whatever) has some obligations and responsibilities different from that same person when they take off the tiara and come home for dinner. At some level of abstraction away from the single private individual I find it easy to see countervailing arguments and principles.

  70. Legalistic questions aside (they seem very thorny and I am definitely out of my league), the supposed Christian baker is an embarrassment. He/she needs to quit being an asshole and just bake the cake.

    As for the Church, I’m bothered that the Church expends its precious political capital on this type of thing. We need to quit committing unforced errors.

  71. Constance Reader, Esq. says:

    Surely if the baker could refuse to make a cake for a gay wedding the same baker could refuse to make a cake for a temple wedding as well. Doesn’t this open the door to legalizing explicit discrimination against Mormons?

  72. your food allergy is fake says:

    Really wanting some cake right about now.

  73. My POV is I go to another baker. I get a better cake at a better price. Then I go onto yelp and I say this baker refuse to make me a wedding cake because of a religious preference. This makes them sound like Westboro Baptists. No one goes to his shop and he goes out of business.
    45 years ago I was refused a job because being a single woman I was too flighty and not stable enough and they needed a married woman. I went on to another job and made my employer scads of money. Place went out of business.

  74. Would a Satanist couple be a protected class on the basis of religious belief and would the Christian cake designer be thus obligated to design a Satanist wedding cake for them?

  75. Aaron Brown says:

    “You can’t support blatant homophobia and then turn around in the same breath and say that you are not homophobic. You are Carolyn. You are Aaron B.”

    LOL. That was funny.

    Mark C’s inept hyperventilating throughout notwithstanding, this has been an enjoyable, informative thread. Thanks to almost everyone, especially JKC.

    Aaron B

  76. I’m not a legal expert, but another alternative scenario that maybe brings this closer to home: could a a fundamentalist protestant caterer refuse to service an LDS baptism party (although I know we’re not usually in the habit of having baptism parties), because they think our baptisms are an abomination unto God? Beyond the legal issue, whether or not I as a member of the Church would be upset hinges on the class versus practice distinction. If they just thought Mormons were icky I would be angry, regardless of the legal merits, but if they had a sincere belief that our baptism was apostate/abominable ordinance, but otherwise they’re great neighbors whose kids play with my kids, I would have a hard time getting upset over it. I think a lot of the LGBT backlash against this particular business misses this distinction (although I sense that these sorts of nuances and gradients are not popular in some corners that see these things in a black/white, pure ally or bigot dichotomy).

  77. I don’t think many fundamentalist protestants think that LDS baptisms are an abomination unto God, but a Jehovah’s Witness caterer might have an objection (since AFAIK, they have a specific injunction against participating in or even attending other faith’s religious ceremonies). But I already talked through this upthread in the long comment that I guess nobody read.

  78. Surely if the baker could refuse to make a cake for a gay wedding the same baker could refuse to make a cake for a temple wedding as well. Doesn’t this open the door to legalizing explicit discrimination against Mormons?

    It opens the door to refusing to be compelled to participate in other faiths’ religious ceremonies, sure. But in the Mormon temple wedding situation, the objector would have to show that there was something about participating on a Mormon marriage celebration that was religiously objectionable beyond “I don’t like Mormons.”

  79. How about this one: a woman wants to celebrate her abortion. Can the state force a baker to bake a cake for this celebration of a legal event?

  80. @Cody Hatch: Just want to echo — I utterly agree that the best argument here about what the Church did isn’t actually on “the law”, it’s on the optics. Wading into a silly battle you know is hypercharged and your brief will have marginal value if any in a court docket that already has 50 similar brief, and in the mean time you’re intentionally offending an enormous number of people you claim you love, while generating bad press? THAT is a silly decision.

  81. Constance Reader, Esq. says:

    “I believe Mormonism to be a satanic cult whose marriages in temples Satan Satan. No cake.”

  82. Come on people, it’s a stupid cake. If I were in the Cake business, I would be willing to cook any cake for anyone, who cares. For a fee, I would be willing to deliver that cake. It’s called business, hopefully to make a profit.

  83. Constance Reader, Esq. says:

    Surely this will legalize discrimination against disfavored religious groups. Last time I checked, in a Pew study on how America feels about religious groups (I believe I read here first), Mormonism ranks above Atheists and Muslims and below everyone else. I suspect that I am not the only person here to have been unable to convince any number of people that Mormons are Christians, for goodness sakes. So, I find this amicus brief self-defeating, as Mormons will be amongst those now with bulls-eyes on our shirts — discriminate here!

  84. Come on people, it’s a stupid cake. If I were in the Cake business, I would be willing to cook any cake for anyone, who cares. For a fee, I would be willing to deliver that cake. It’s called business, hopefully to make a profit.

    Okay, then this case isn’t about you. The question isn’t about cake, it’s about freedom of conscience as a subset of freedom of religion–do you have the right to opt out of participating in something that violates your conscience? Can the state compel you to do something that conflicts with your religious principles (or worse, to do something specifically forbidden by your religion)? And, most importantly, what are the limits of this freedom?

  85. Just for fun, I’ll respond to the hypos people have raised:

    1) Does a clown have the right to discriminate against a gay couple by refusing to perform at their circus-themed wedding because it is a gay wedding? If the clown would perform at straight weddings, then refusing to perform at a gay wedding would be unlawful discrimination under the Colo. statute. And under current free exercise law, I don’t think making it a clown performance instead of a cake changes the analysis. (But this one might arguably require more actual participation in the ceremony than baking a cake does, so an establishment clause argument might fare better).

    2) Does a baker have the right to discriminate against a Satanist couple by refusing to bake a cake for their Satanist wedding because it is a Satanist wedding? No. The customer’s religion is just as much a prohibited basis of discrimination as the customer’s sexual orientation; I don’t think swapping Satanist in for gay changes the analysis.

    3) Does a protestant fundamentalist caterer have the right to discriminate against Mormons by refusing to cater for an LDS baptism because it is an LDS baptism? No. This is discrimination on the basis of the customer’s religion.

    All three of those answers, though, are based on current religious liberty law. If the Supreme Court were to overrule Smith, the answers would depend on how substantial the burden was on the baker/clown’s religious exercise, and whether there was any less restrictive way in each case for the state to accomplish the goal of eliminating discrimination on the basis of religion or sexual orientation (and whether that goal is a compelling interest), but the chances would be a lot better.

    4) Does a baker have the right to discriminate against a woman having an abortion by refusing to bake a cake for her abortion party because it is an abortion party? Yes. Discrimination on the basis of a person having had an abortion is not a prohibited basis of discrimination. I could see an argument that it is a kind of sex discrimination, based on the fact that only women can have abortions, but assuming that the baker would refuse the same request from a man that was throwing an abortion party, I think that argument probably wouldn’t do it. If the baker would bake such a cake for a man, but not for a woman, that would be unlawful discrimination.

    But would the baker’s first amendment rights trump the anti-discrimination statute? Again, under current free exercise law, no, I don’t think so. If Smith were overruled, quite possibly.

  86. JKC, do you think there’s a distinction between (i) refusing to cater an event because of animus directed at the identities of the people holding the event and (ii) the event itself, distinct from the mere identities of the parties?

    What if the bakers are fine with catering a gay man’s birthday party, a gay couple’s housewarming party, or a gay business organization’s networking lunch, but in conscience feel like they can’t participate in a same-sex wedding? Is there a relevant distinction?

  87. Good question. The issue under most anti-discrimination statutes is simply whether it is discrimination because of the customer’s religion, race, gender, sexual orientation, etc. I don’t think you can convincingly separate the nature of the event from the identities of the parties when the very thing that makes a gay wedding objectionable to the baker is the fact that it is a union of gay people instead of straight people. And I doubt most state agencies charged w/ administering anti-discrimination statutes would find such a distinction convincing.

    But that might make a religious liberty claim more convincing, to the extent that it shows that the religious reason isn’t just a pretext. (That’s complicated, because court’s often assume that a religious liberty claim is not a pretext and dismiss it for other reasons, but my theory is that such reasons are themselves often pretextual and are cover for the fact that the Court just doesn’t buy the argument that the religion requires this, b/c the Court can’t get into that without getting into some dangerous ground.)

  88. @ kullervo: apologies; I read that comment but came back later to write mine, maybe it was subconscious plagiarism on my part; but I think the beyond-the-legality discussion was the main point. Regardless of the legality, is this something that is morally atrocious enough to stigmatize this bakery?

    @ Lucinda: I think nearly everybody here would just bake the cake, but this relatively minor issue has a lot of implications as a rule-setter, which is what makes it much bigger than a local bakery.

    @ Carolyn & @CodyHatch: Whenever people invoke “optics” in these discussions it’s usually optics towards a certain left-of-center American mindset. This is a contentious issue, but that’s because it has people on both sides, and if PR is what we’re concerned about we need to take into account the right-of-centers and libertarians for which this may reflect favorably on the Church. To not is to imply that we don’t care about how “those people” see the Church.

    As far as priorities, it’s easy to say that the Church should only be concerned with feeding poor people, protesting wars, etc. but it’s also a very real institution with real threats and needs, and some of the LGBT anti-discrimination laws have the potential to threaten its subsidiary institutions such as BYU in a very concrete way, so it is in the Church’s immediate self-interest to be involved in these things in ways that it isn’t for, say, global warming.

    Also, in the Church doing this I see the advantages of more precisely defining the Church’s position–whenever the Church says something that is slightly pro-LGBT a lot of people read it as a manifestation of some intra-quorum of the 12 conflict over this issue, or the next blacks and the priesthood, yada yada.

    Some might not think they can thread the needle between remaining heteronormative while loving LGBT individuals, but they certainly believe that they can, and by coming out publicly for both this and the LoveLoud festival/anti-discriminationi ordinances they are more precisely delineating where they are. On a similar note, many of us had a hard time not taking the Church seriously in their pro-religious rights rhetoric when they were vague about what it actually means in practice. This helps operationalize the soundbites.

  89. “How do you know that the people getting same-sex married are in fact homosexuals?”

    Probably mostly because “I Now Pronounce You Chuck and Larry” is a work of fiction. A marginal one at that.

    “Sam, its a small point, but I don’t give a rat’s @ss about ‘the market’ driving things…”

    Have you ever wondered why we don’t use this term in the inverse? I.e., “that’s a very good opinion, Carolyn, I’ll give you 12.5 rats’ @sses for it.”

  90. I don’t think you can convincingly separate the nature of the event from the identities of the parties when the very thing that makes a gay wedding objectionable to the baker is the fact that it is a union of gay people instead of straight people.

    Right; that’s the line-drawing problem here, and the crux of the issue. The bakers want to say it’s not about the LGBTQ identity of the couple, but the nature of the event, but it seems like the nature of the event (or, certainly the objection to it!) is inseparable from the LGBTQ identity of the couple. Its what I tried to approximate in my hypotheticals above. Probably the best comparison would be someone with a religious objection to interracial marriage (they still exist) who otherwise is happy to cater to people of all races–and would even cater to an interracial couple, but just doesn’t want to participate in an interracial wedding. But it’s not that illuminative as an analytical tool because the emotions and sympathies are likely to line up the same way as in Masterpiece Cakeshop.

  91. Can a Jehovah’s Witness baker (who, again, is specifically forbidden from participating in or even attending non-JW religious ceremonies of any kind) who otherwise is happy to bake for and serve Jews be compelled to bake a cake for a bar mitzvah?

    That might be my favorite alternative hypothetical.

  92. To elaborate on Kullervo’s question, I would wonder if the baker would refuse to bake a “coming out” cake. Regardless, I fail to see which whorl of frosting or speck of confectioner’s sugar or fondant figurine it is that is in violation of a religious belief.

    The law states that gay marriage is legal. It should be illegal for businesses who are engaging in the public sphere to discriminate on the basis of protected class (categories that have a demonstrated history of receiving discrimination). Mormons who join this fight against treating gay people with dignity will doubtless themselves be subject to the same types of discrimination. We are reviled in the deep south and midwest as being non-Christian. If we wouldn’t try to uphold the right of a baker to refuse service to a Mormon, then we shouldn’t try to uphold the baker’s “right” to refuse service to a gay couple.

    One angle that I think is important is that the church’s push for religious freedom feels primarily like we want to give individuals freedoms that have been afforded to churches. The problem with that is that people are sometimes awful and often totally inconsistent nut jobs incapable of explaining their personal beliefs in any sort of defensible way. If so, that feels like a bad strategy to me. I wouldn’t want my religion’s justification to start sounding or being affiliated with the average weirdo who hangs a shingle out selling cakes. If it comes to that, maybe we should do away with religious special accommodation in general.

    Tiberius: “Whenever people invoke “optics” in these discussions it’s usually optics towards a certain left-of-center American mindset.” That’s because in our current political climate, looking terrible is a feature rather than a bug for the GOP. It’s a fricken badge of honor to be a “deplorable” or to lack political correctness (which is usually just common courtesy).

  93. @Tiberius, you bring up a good point about the optics of this to all political perspectives.
    Politically, I lean toward libertarian (more classical, Jeffersonian liberal, but close enough for this discussion) but I disagree with the idea of businesses having a green light to discriminate against what we have defined as protected classes. In a market or town square, society has determined that, if a business is going to participate in that market, there is a certain standard of behavior that is expected, and refusing to do business with people in a protected class is not tolerated. I’m okay with that standard.

    On a religious point, those who refuse to be kind in this situation and just bake the cake, while trying to wear the cloak of Christianity, are embarrassing us. They are the reason we are losing credibility. It is petty and beneath us. To paraphrase Paul, they are causing Gentiles to blaspheme God.

  94. Aussie Mormon says:

    Kevin: ” But if they’re a unique provider or in a monopoly position, no one else within so many miles can do it, then the Christian bakers would have to suck it up and provide the service.”

    I’d be ok with that if were “essential” services that they were providing (hospital, pharmaceutical provider, doctor, telecommunications, energy provider, crisis support, etc), however for something that hasn’t shown to be essential (such as designing and making custom wedding cakes), I don’t think that should be the case.

    —–
    On the neo-Nazi issue:
    For those taking issue with the use of the neo-Nazi example, replace neo-Nazi with Hindu.
    From wikipedia: “The swastika is an important Hindu symbol….The swastika symbol is commonly used before entrances or on doorways of homes or temples, to mark the starting page of financial statements, and mandala constructed for rituals such as weddings or welcoming a new born.”

    Since it is commonly used at weddings, could a Jew in the business of providing a customised service often used for weddings (be it cake baking, decorations etc) refuse to provide services for a Hindu wedding? Remember, the swastika is important to Hindus and isn’t going to be used in a hateful or anti-Semitic way.
    —–

    For me it comes down to:
    1) Can someone be compelled to produce an item of speech/expression which goes against their religious beliefs?
    2) Is a work of art art speech/expression?
    3) Is a custom made cake a work of art?
    3a) At what point does a generic cake become a work of art?
    4) Is the work of art that of the baker/decorator or of the requester?
    5) Do these facts change when money is involved?

    As an example:
    1) Could a Mormon be compelled to express that Joseph Smith was [derogatory description]?
    2) Is a work of art containing the words “Joseph Smith was [derogatory description]” expressing that belief/opinion?
    3,3a) Would a cake with the words “Joseph Smith was [derogatory description] in nice cursive writing, different colours, making shapes etc, be a “work of art”?
    4) If the Mormon cake maker was provided with the design, but still had to do baking and decorating, would it be the Mormon’s work of art, or the client’s?
    5) Does it matter that the Mormon is getting paid for his services?

  95. There are two reactions I see in my (mostly left-leaning) online circles:

    Group 1 says the baker as a right to refuse to bake the cake, even if the baker’s reasons are offensive.

    Group 2 says discrimination is discrimination, full stop, and may go as far as to say that anyone that supports the baker’s rights is as bigoted as the baker and amici.

    I really sympathize with group 2; by and large they are people more affected by this decision than I am.

    But I guess I fall closer to group 1. I mean, I haven’t actually decided if the baker does have a right to refuse service, but I certainly would allow them that right under certain circumstances (more likely if they had made their case on free speech grounds rather than freedom of religion). In one sense you might say I trying to have my cake and eat it, too, but the way I see it morality is not the same as legality.

    This case is a boundary case; it has been specifically chosen because it has the ingredients to set precedent in civil rights law for many years to come. It could go either way, but who wouldn’t be surprised to see it cut along party lines?

    Okay. Time for me to be done stirring the pot. Thank you, Carolyn and others, for presenting the issue in all its layered complexity.

  96. Sometimes you can’t have it both ways, as part of normalizing a protected class.
    When I was an intern, my manager was Black. One day we got into a discussion, and my argument was that Affirmative Action should only be needed for a generation, and therefore isn’t needed anymore. Her response was “You should be right. But quota’s still help.”
    The bakers argument is because its bespoke it makes it appear that he is supporting the wedding. Given that he does not need to attend the wedding, I don’t think that it’s inherently interpreted that he is supporting the wedding. I think attending is important.

  97. Angela C. wrote, “I fail to see which whorl of frosting or speck of confectioner’s sugar or fondant figurine it is that is in violation of a religious belief.”

    This point, specifically in the context of Mormon belief, is what bothers me most about the church’s signing on to this amicus brief. Baking a wedding cake for a same-sex couple does not violate Mormon religious belief. But by joining the brief and saying nothing more, leaders of the church allow the implication that it does. They allow members of the church to confuse bigotry for religious belief and practice.

    I understand the value of defending the principle of religious freedom for others, even when one does not share their beliefs. I can grant for the sake of argument that this is what the church thinks it’s doing here. If that is so, then the church’s fraught relationship to LGBT rights cries out for the church to clarify that its own religious principles are not at stake on the facts of the case. Regardless of how the brief might affect the church’s image at large, it is damaging to the community of saints when our leaders imply that for Mormons, behavior like Masterpiece Cakeshop’s is somehow religiously noble.

  98. The most aggravating thing about all of this, to me, is this: He could have refused service for any other of a thousand reasons. “Will you bake us a cake?” could be answered LEGALLY with:

    “Hell No! Turn the “eff” around!”
    “You have funny looking eyes, go somewhere else!”
    “It’s cloudy today, so leave now!”
    “No thanks. Maybe later.”
    “I’ve never seen an uglier bunch of slovenly pigs. Get out before I vomit!”
    “I’m still upset by the Game of Thrones episode last night, so maybe next season”
    “Not a chance. I’m busy doing Sudoku.”
    “I don’t serve people with green eyes if they enter the store with someone with hazel ones.”
    “I find myself physically attracted to you and can’t in good conscience serve someone like you.”
    “Bugger off”

    A million reasons could have legally been given and this baker wouldn’t have any problems at all. None of those reasons are prohibited. Refusal could have been given for an unlimited number of small and unimportant reasons. But because he had the merit to give a very personally valid reason (a religious objection) he is dragged into the court system. Can anyone give a good, valid reason that refusal for stupid arbitrary reasons is just fine, but refusal for reasons with deep personal meaning aren’t?

  99. jaxjensen: If the reason the baker gives is revealed (probably through litigation) to be a cover for discrimination of a protected class, then the baker’s refusal is not permitted. For example, a gay couple is refused on the grounds that “it’s cloudy today, and I’m closing early,” the burden of proof on them to show that the baker probably acted out of discrimination is greater (because he didn’t tell the true reason), but it could potentially be demonstrated through a pattern of behavior.

    If I were a gay couple in this case, I’d send 10 friends in at random intervals to make the same request. If it’s only ever “cloudy” when gay couples request cakes, then that case could be made.

    I’m no lawyer, but I have watched a lot of Law & Order, so it’s similar.

  100. Angela C… I know the legal process behind it. But does that process make sense? Is it logical? Why can they legally refuse for pointless reasons, but it is illegal to refuse on significant ones? I’m not asking for a legal ruling. I’m wondering if anyone sees any logic in that at all?

  101. There isn’t anything inherently wrong with the swastika. It’s an ancient symbol for many different cultures, including Jews. Just wanted to point that out. http://www.proswastika.org/

  102. tamsynspackman, There isn’t anything inherently wrong with lots of things, like say, erect penises or breasts or vagina, but, you know, that doesn’t mean they should be posted everywhere. Just wanted to point that out.

  103. In regards to the church staying out, how about another hypothetical? A gay couple walks into a bishops’ office and requests being sealed in the temple. The church performs sealing all the time for others, but this sealing is unique. I might suggest this possibility is why they might weigh in.

  104. Seems like a reasonable response to this could be the following…

    “What if it was applied differently to big businesses and small businesses?

    It’s tricky if you’re a one man shop because you are personally making all of the cakes. So maybe the law allows for that. Businesses with fewer than X employees are allowed some leeway because they are practically individuals. But businesses with more employees can surely find someone who does not object to whatever it is.”

  105. Some verses to consider…

    “That every man may act in doctrine and principle pertaining to futurity, according to the moral agency which I have given unto him…Therefore, it is not right that any man should be in bondage one to another.
    And for this purpose have I established the Constitution of this land, by the hands of wise men whom I raised up unto this very purpose, and redeemed the land by the shedding of blood..” – D&C 101:78-80

    “We believe that no government can exist in peace, except such laws are framed and held inviolate as will secure to each individual the free exercise of conscience, the right and control of property, and the protection of life.”- D&C 134:2. Right and control of property means you can use it as you choose, associating or doing business as you choose.

  106. Just a question, if a black neo-nazi was to request swastika cookies from a Jewish baker who refused, and was then sued for racial discrimination – would this hypothetical add anything?

  107. On second thought let’s make that a female nazi and gender discrimination.

  108. stephenchardy says:

    marcusnorton: What you said simply isn’t true. I can’t use my property to use or raise slaves. I can’t use my property to produce chemical weapons used to kill others. I can’t use my property to raise opium to sell on the streets. I can’t use my property for many many things. We have countless restraints about how we use and control our property. This argument isn’t about whether we can use our property freely. If we use our property freely without restraint then we will live in chaos. In this sense warlords in Somalia are much more free than we are. This argument is about balancing property rights against discrimination. Because refusal to bake a cake for one couple and not for another is a form of discrimination. Rights regularly run up against each other. The answers aren’t as easy as the simple right to do what we want with what is ours.

  109. Antonio Parr says:

    Title VII of the Civil Rights Act of 1964 is informative. That law – which prohibits discrimination on the basis of sex, race, color, national origin and religion – only applies to employers with 15 or more employees. Small employers are immune from Title VII claims, one reason being the catastrophic costs of defending lawsuits, something that can be borne by employers with a large infrastructure, but which would be devastating for a “Mom and Pop” shop that employs only a few individuals. That reasoning should drive the outcome of the wedding cake case. Large bakeries that have a material impact on commerce should not be able to point to conscience as a reason to avoid a wedding cake for a same-sex marriage (or some of the non-sexual orientation examples listed above). However, small enterprises should be afforded the kinds of protections that are given to small employers with respect to Title VII. To do otherwise could result in the demise of small, innocent employers that collapse under the weight of defending against a civil rights lawsuit.

  110. Stephenchardy… the reason you can’t “raise slaves” is that slavery takes away the free exercise of conscience for those people. If they were working of their own free will then it wouldn’t be slavery. And I won’t even address the idea of plotting murder via chemical weapons except to say that in the end it destroys people’s agency as well. Forcing a business owner into a transaction against their will is deplorable for the same reason. ALL parties to a transaction, whether personal or professional, ought to be free to refuse and ought not be constrained by gov’t authority/power to participate in any act against their will. Any law allowing such a use of gov’t force is a massive usurpation of power and contributes to our society becoming less and less free, including those “countless restraints about how we use and control our property.”

    We shouldn’t force a Jew to bake for a Nazi, and we shouldn’t force the Nazi to bake for the Jew. Insert any new “scenarios” you’d like (as almost everyone above has done) but keep the principle the same. Don’t force the gay to bake for the Christian, nor the Christian for the gay. Muslim for Jew, Jew for Muslim. Man for woman, woman for man. Indian for Pakistani, Pakistani for Indian (dots, not feathers). Allow all people to freely enter, or not to enter, associations/transactions/relationships as they choose.

    Yes this will lead to some hurt feelings and “harm” in society. “Harm” happens either way (but I don’t see any actual harm to either side tbh). But both sides claim harm, so be it. But by allowing free association at least the harm will be as a result of some jack-@$$ racist/bigot/etc on an (hopefully) individual basis, rather than a gov’t mandated and allowed harm, applied across the nation. And since the entire purpose of the Constitution and Bill of Rights is to limit GOV’T, to limit gov’t “harm”/authority against citizens, I propose that is the best way for this case to end. When deciding which “harm” wins out (harm caused by an individual or harm by the gov’t), the harm caused by gov’t action should be the one removed and prohibited.

  111. Deep Thoughts by Eric Nielson

  112. Antonio Parr–interesting policy argument, but it’s not going to go anywhere in this case. This case was brought under the Colo. anti-discrimination statute, not Title VII, and the Colo. courts have already decided that that statute applies to this employer. The Supreme Court is not going to disturb that ruling. The only issue left to decide is whether the statute infringes on the bakers’ first amendment rights.

  113. I’m pleased that the comments have generally refrained from the “Church should stay out of this…” or “Leaders are terrible people” vein. But for those who feel that way, I would say…

    I don’t think we can pick & choose where the church (and supposedly the Lord through His authority) comments on. Whether it be refugees, treatment of illegal immigrants, LGBQ rights – we can’t choose to praise the church for one and criticize for the other because it goes against our opinion.

    I also think that if we’re humble, we’ll allow them inspired insight beyond our own in anticipation of problems beyond “the world doesn’t like our opinion”, but perhaps if government is going to require secular service providers to provide services against their beliefs, how long until their religious services (like temple sealings) are dictated by the government?

    And, if they’re wrong, the Lord will straighten out their understanding in due time. And if we’re wrong, He will do the same ;-) In the meantime, let’s assume we’re both driven to our opinions because of our understanding of Christ.

  114. Donna Doughrrty says:

    The baker should have a large sign
    saying he reserves the right to refuse
    service to anyone he chooses. Otherwise
    I suppose the Hobby Lobby case should prevail. We are now in the 21st century!
    I have enough trouble managing myself
    I don’t have time or inclination to manage
    others

  115. Okay. Let’s change the hypothetical. Let’s say the baker moonlights as a clown, and therefore has a natural aversion to the furry community. Let’s further say that Colorado has changed the law to make those who like to go to fur-cons a protected class for some reason, but only with intermediate scrutiny. Also, important to this hypothetical is the fact that the clown/baker goes to two churches: the local chapter of the “Atheists for Jesus” church; and, because he’s prone to ambivalence, a “Clowns for the True Incantation of Baal,” of which he is the founder. In addition, assume that the baker/clown is operating his bakery on public land, but that he has a license from the state to do so, a license he relied on in good faith when he built the improvement of the bakery itself (for the sake of argument, it can be a 99-year lease). Now, let’s further assume that an adult male in a racoon costume comes into the bakery while the baker is in his clown costume and tells the baker/clown that he wants donut-holes made in the shape of acorns for an upcoming fur-con, and that he wants the baker/clown to rent and/or temporarily sublicense the unimproved property which the baker/clown is licensing from the state so that the racoon-man can hold the fur-con there. Also, assume that the baker/clown has more than once rented out that unimproved property to other persons and events, such as “Magic the Gathering” throwdowns and, of course, his “Clowns for Baal” potlucks. The baker/clown refuses to rent the property, but is willing to make the donut-holes for the racoon-man’s fur-con, but only so long as they are in the shape of actual donut-holes, rather than acorns, since he doesn’t want to be seen as endorsing what he perceives to be the racoon-man’s reckless lifestyle.

    Using only Boy Scouts v. Dale, Wooley v. Maynard, Lee v. International Society for Krishna Consciousness, and Hill v. Colorado, please analyze and let me know just how tasty you think those donut-holes would be.

  116. Well, nobody but Sandra Day O’Connor knows what intermediate scrutiny means anyway, so…

  117. We need to read the record of this case before drawing widespread conclusions. The case is not analogous to the Nazi situation. Nazis, and those who seek to exterminate an entire religion, are not a protected class. That concept is important. Second, with regard to the Iran/Palestine situation, that is not the situation here. The baker refused to sell the gay couple a wedding cake of any kind. To wit:

    “The judge distinguished hypothetical scenarios involving bakeries that might refuse to serve customers because of the particular design of a requested cake. “In [those] cases, it [would be] the explicit, unmistakable, offensive message” that would allow the baker to refuse the order. Id. at 78a. In this case, in contrast, Petitioners refused to bake any cake, without regard to what was written on it or what it might look like. Id.”

  118. Sorry, forgot a part of the quote: “[f]or all Phillips knew at the time, [Craig and Mullins] might have wanted a nondescript cake that would have been suitable for consumption at any wedding.” Id.

  119. Just two minor points. There are people with changeable sexual orientations. That is one of the possible symptoms of borderline personality disorder. Is the fact that neo-Nazism is considered a changeable belief as opposed to something you are born with of any actual relevance to the argument when sexual orientation for some people is also changeable? Because if being born with an unchangeable sexual orientation is the difference between the two, the high percentages of people with borderline who consider themselves LGBTQ undercuts the argument that it is the unchangeableness that makes it a different case than the Nazi. (If you are looking for a well-known example of this situation, look at Lindsay Lohan, who has been down this road of changing sexual orientation a number of times now).
    Second, what if I am a Hindu from India and want the Jewish baker to bake a swastika wedding cake because the swastika is an ancient good luck symbol, far more ancient than the use the Nazis made of the symbol. Is he allowed to refuse to bake me a swastika wedding cake based on his religious beliefs and a personal repugnance to the meaning of the symbol in his culture? (And if you do not believe me, visit India and you will see all the swastikas painted on many things. I traveled there with a German woman, who was having a hard time coming to terms with the symbol’s regular appearance.)

  120. Hypothetically Speaking says:

    A white male asks a Muslim-owned bakery for baked goods to be made in the likeness of the prophet Muhammad. Lather, rinse, repeat for various protected and non-protected classes.

  121. Ryan Thornton says:

    So here is another parallel. There were several reporters that went Muslim bakers to have a gay wedding cake made. They in turn said we won’t make it but try this bakery. In turn each bakery suggested another bakery to deflect from themselves (and their anti-gay rhetoric) but no one has sued them or made a case against them. It seems all minority groups are OK with giving subgroups a pass but a white Christian baker is racist, mysogonist, despicable, and should be sued for their beliefs. Muslims throw gays off roofs and buildings, treat women and children as slaves, sex toys, and lowlifes. But its OK to defend those Muslim bakers because they are discriminated against. Show me one case against a Muslim baker and I will get off my soapbox. What about ordering a cake, not telling anyone what it is intended for, add your own cake topper and voila wedding cake for an LGBTQIIA wedding without throwing it in someone’s face. You get the cake you want from the place you want it from because you respect the quality and love they put into their baked goods. It seems we LGBTQIIA want to not be judged but are the first to scream judgements and indignation over something that is in our own wheelhouse to correct ourselves by using our brains, common sense, and empathy which we are supposedly so well known for!

  122. JKC, if you don’t think that “CONGRATULATIONS BREE AND JENNA” and “ALL JEWS MUST DIE” are comparable statements then don’t freaking compare them. Unless you’re telling people how Hitler also put gay men in concentration camps, which is a sobering reminder of the threat that fascism poses to religious and sexual minorities.

    Same to Ryan Thornton. Dear goddess, this freaking thread. Everyone accuses progressives of being “moral relativists,” then proves they themselves have no moral compass. And no understanding of basic terms like “hate speech,” “public accommodations,” and “protected class.”

  123. As others have mentioned, I would much prefer that the Church had not gotten involved with this fight. It is a loser for the Church. It looks like we are using religion as a reason to discriminate against the LGBTQ community. Would it be wrong to refuse to make a cake for a African American wedding? Of course it would.

    The Church leadership is wasting way too much of its financial and political capital on lawyers, PR consultants, and lobbyists. Another example of wasted money would be the intervention (using their lawyer consultants) in the Utah medical marijuana legislation. It was not only wrong, but made the Church look Utah-centric, instead of a global church like it aspires to be.

  124. “Would it be wrong to refuse to make a cake for a African American wedding? Of course it would.”

    It seems simple minded and disingenuous to keep making the point that this is solely about making a cake when the baker offered the couple an alternative off the shelf cake.

    Your more than welcome to keep ignoring the point that the baker was willing to offer them a cake but was unwilling to use his artistic abilities to celebrate an event that he disagreed with for religious reasons.

    Jim crow laws made it so blacks couldn’t serve whites and whites couldn’t serve blacks. The government fixed that and more or less said that you can’t force a business to not do business with anyone. We like to believe that everyone was racist in that time but because of the laws even those who weren’t racist couldn’t do business with blacks because the laws didn’t allow them to do so.

    In that same vein just as the government can’t force businesses not to do business I don’t believe the government should necessarily force businesses to do business. There are plenty of businesses out there and if you find one that isn’t willing to serve all then tell your friends, family, and internet about it. Market forces should make it difficult for them to continue their business.

    I don’t see this as a loser case for the church and there’s plenty of church members that feel the same. If you are convinced that the baker is going to lose then take a look at the Burwell Hobby Lobby case.

  125. To me, the simple minded one, it doesn’t make one bit of difference if they offered an off-the-shelf cake. They didn’t provide the desired cake. Shame on them. I have no interest in lame, simple-minded excuses of the baker.

    It is a loser for the Church. For the vast majority of Americans and Europeans, the LDS Church is fighting for its right to discriminate. That is a PR nightmare. And the theology behind the action is questionable. And think of all the tithing money that is being wasted on lawyers.

  126. I used to meditate at Bodhi Monastery in New Jersey at their Buddha hall sometimes and noticed when I was looking at its giant Buddha statue onetime in its minute details that it contained a relief of a swastika on it, I forget whereabouts.

    Anyway, hmmm … here’s mine:

    A Hindu Jain asks for cookies with universally recognized Jain symbols on them: “non-rotated” swastikas above “Ahimsa” hand-outlines, the customer explaining that their four arms each represent respective states of beings: (iv.) flora & fauna (iii.) demons (ii.) mankind (i.) gods – and are the original swastikas and NOT ones incorrectly tilted 45 degrees, teetering on one of their corners, as were those mis-appropriated, from so many “primordial” religions, by the Nazi party only recentl: that is, 1920 A.D.

    Family running custom bakery is Jewish with many members murdered by the Nazis in the Holocaust and cannot bring themselves to consider accommodating this custom request, politely referring customer elsewhere. Customer goes from bake shop to bake shop but can find no takers, so, say, Jay Sekulow’s American Center for Law and Justice decides takes up the case on family’s behalf.

  127. Sept. 16 NYT:

    >>>>>… … …

    >>>>>“The point isn’t that we could get a cake elsewhere,” Mr. Mullins said. “Of course we could get a cake somewhere else. This was about us being turned away from and denied service at a business because of who we are and who we love.”

    >>>>>Mr. Phillips, who calls his bakery Masterpiece Cakeshop, said he chose the name with care. It was partly to emphasize the creativity that informs his craft, he said.

    >>>>>“It says ‘masterpiece,’” he said, “which hopefully indicates painting and art.”

    >>>>>The name is also a nod to Jesus Christ, Mr. Phillips said. “It’s not just the art,” he said. “It’s not just the cakes. It’s not just the baking. It’s my faith.”

    >>>>>The case has taken a financial toll, Mr. Phillips said. A judge ordered him to create custom wedding cakes for same-sex marriages if he did so for opposite-sex ones. He instead stopped making custom wedding cakes entirely.

    >>>>>“The civil rights commission says you have to violate your faith,” he said. “Use your talents and make cakes for religious events you don’t agree with. The only way I can avoid disobeying the ruling of the court is to not make wedding cakes, period.”<<<<<

  128. Jewelfox, I get that it sounds like a comparison, and I’m not going to blame you for feeling hurt by that. But I promise you that Carolyn didn’t intend to compare them. If it feels like a comparison, that’s just b/c first amendment law generally doesn’t allow us to make decisions about whether speech is protected or not based on the content of the speech. In a discussion about whether such speech is morally comparable, there’s no question that it isn’t. In a discussion about whether such speech is protected by the first amendment, though, we can’t generally rely on such distinctions. The point is just that the same legal principle that would protect offensive speech would also protect virtuous speech.

    But again, I don’t blame you for feeling hurt by what feels like a comparison.

  129. Yes. I literally wrote that example as a first Amendment lawyer where all content is treated equally. But the single most powerful criticism I’ve received since publication is that even implicit comparison of LGBTQ friends to Nazis is insanely hurtful given historical persecution and justifications for poor treatment. Call it privilege, because it is, but I literally didn’t even think of that. I hope I have learned something. I am sorry.

  130. Gosh, that’s a lot more charitably than I would have put it. This isn’t an issue with moral relativism. With very limited exceptions, the First Amendment doesn’t care about which of “CONGRATULATIONS BREE AND JENNA” or “ALL JEWS MUST DIE” is more offensive to you, or to me, or to anyone. Nor does it care which of these two is morally more repugnant. Indeed, of the two, the latter probably is entitled to *more* First Amendment protections, offensive as we all find it, since it’s much closer to political speech (assuming it isn’t an actionable threat).

    If you can’t get behind the idea that we even protect speech that we find offensive or troubling or wrongheaded (“JEWS MUST DIE”), in the exact same way you would protect the speech you like (“BREE AND JENNA GOT MARRIED”), then you can’t get behind the First Amendment. Period.

  131. “It is a loser for the Church. For the vast majority of Americans and Europeans, the LDS Church is fighting for its right to discriminate.”

    Vast majority…really? A vast majority…lol..smh. You do realize there is more conservatives in America than liberals. Right? Also..the LDS church consists of a majority of conservatives. The LDS church is fighting to protect religious freedom.

    “That is a PR nightmare. And the theology behind the action is questionable. And think of all the tithing money that is being wasted on lawyers.”

    Sorry I don’t see the PR nightmare that you and other liberals do. Show me where the Church says to its members “don’t make food for LGBT people.” You can’t because that’s not why the church is supporting the baker in this case.

  132. “[T]hat’s not why the church is supporting the baker in this case.”

    You know, I think this is probably true, but I didn’t have that perspective until I read the brief. Most people won’t read it, and many who do won’t make sense of it without legal training or at least experience reading these kinds of documents. If that’s not why the church is joining this brief in support of the baker, it would be smart, I think, to do something to make that clear.

  133. JKC: “Most people won’t read it, and many who do won’t make sense of it …” There has been ample evidence of that in the bloggernacle comments. This is precisely the reason I wish the Church had stayed out of the fray.
    Most will not bother to understand that the case is not simply a question of refusing to sell a cake to a gay couple. Instead, the point of the brief is a challenge to the Colorado statute “as applied”, that is to challenge the Colorado court’s inconsistent application of the statute in the hope that a way can be found to protect “conscientious objectors” including both the cake designer/baker in the Masterpiece case and the baker in an earlier case who was allowed by the Colorado court to refuse to produce a cake with an anti-same-sex message for a celebration of that position. There are parts of the brief that should make this clear enough to anyone who can read and will take the time to do so rather than react emotionally to what they imagine, e.g., “Amici think the consciences of both sets of bakers should be protected. But whatever rule the state adopts must be applied consistently.” But most will not have the interest or patience to read and understand a legal brief to find such statements. It is so much easier to get angry over what one imagines are the facts and the arguments. Many of the reactions have reminded me that there are a good many people who seem to think that “unconstitutional” means “I don’t like it.” It remains my view that the Church’s participation in the brief is more likely to result in offense to many and harm to the Church than it will be significant to whatever decision the Supreme Court will ultimately make. I rather wish the Church had been more interested in the past in the personal consciences of those who could not support Proposition 8 and those who felt that civil same-sex marriage should be legal in our pluralistic society. But I am pleased to see a more even-handed approach to protection of the consciences of “both sets of bakers.” Maybe something, even if not enough, was learned from the Prop 8 debacle.

  134. As I wrote in an earlier comment, I agree with JKC that if the LDS Church is determined to join a brief like this one, then it should make clear that its purpose is not to defend its own religious practices, but to defend the principle of religious conscience for others. Otherwise, the church allows the incorrect inference that it shares the Masterpiece Cakeshop baker’s objection to serving this gay couple. It is not enough to expect that the brief will speak for itself on this point. The church needs to be proactive in shaping this message, not only for the sake of its public image, but more importantly so that the church’s own members do not misunderstand the church’s teachings.

    During the decade or so since the church started wading into political and legal fights over same-sex marriage, the church has done a lot of fumbling in public relations. The church has made big progress in many aspects of its PR, but when it comes to PR about politics, it seems to be learning quite slowly. Of course, this is a very difficult set of institutional skills to master. But if you’re going to get into politics, it’s something you have to do. If you don’t cover these aspects of the job, there is a great risk of losing on the back end as much as you gain on the front.

  135. Yes, Loursat. BTW, I understand from a reliable confidential source that the group of astute LDS folks in the Washington D.C. area that President Hinckley used to use as an unofficial advisory committee were not consulted in advance about the Church’s getting into the Prop 8 campaign, that they would have said, had they been consulted, that the Church would suffer much more significant damage from such an effort than anything that could be gained in the end. I’m not convinced that that lesson has yet been learned. This statement — “some deeply religious Americans, including some of amici’s members, cannot in good conscience assist with same-sex weddings” — included in the brief may make it clear to a careful reader that the Church is not asserting that its members cannot in good conscience assist with same-sex weddings as a matter of Church doctrine or practice. In fact, that statement is very similar to the Church’s position with respect to members who were conscientious objectors as to the military draft — that it is a matter of individual conscience and NOT of Church doctrine, that one could be a military conscientious objector or not and be a good Mormon either way. But most news readers are not careful readers of legal briefs. Including that statement in the brief is very far from enough to prevent their inference that the Church somehow officially shares the Masterpiece Cakeshop baker’s objection.

  136. “It remains my view that the Church’s participation in the brief is more likely to result in offense to many and harm to the Church than it will be significant to whatever decision the Supreme Court will ultimately make.”

    This might be true considering that large portions of the American public seem quite clueless concerning the constitution.

    See..”Only 39 Percent of College Students Know That Hate Speech Is Protected Speech” I would post the link to go with the title but am unaware if posting links is allowed in this comment section.

  137. @ Neither here nor there, I think I know who these “astute folks” in the D.C. area are. While they like to name drop I always had the sense that they tended to blow their influence up way out of proportion. The doddering Utah farm boy General Authorities being saved from their provinicialism by the urbane and sophisticated outside Mormons makes good fodder and stokes some common messiah complexes, but the Church has dozens of PR professionals and dozens of social science PhDs on staff all feeding into the collective decision making process. Occasionally getting PR to get an outside read does not mean that certain people close to the Beltway were on President Hinckley’s speed dial or formed some group of shadow counselors to the Brethren.

    Sorry for the thread jack.

  138. Tiberius, yes, it only means President Hinckley used them more than once. I’ve not heard any report that any of the other Brethren did.

  139. Okay, we might be talking about a different group; one prominent member in the DC area in particular liked to imply that he had the ear of the brethren on a routine basis.

  140. Tiberius, I might know who you mean. There could be some overlap in group(s). I have chosen not to ask my source to name names and not to evaluate his claim of astuteness or their claims of hypothetical prescience.

  141. What about ordering a cake from a custom baker with a confederate flag design?

    The baker could refuse, as long as they didn’t know it was for? But once the baker knows it to celebrate a protected class, like a gay wedding, then they have to bake the cake because the customer is protected class?

  142. One point I’m not seeing here: the lower courts did NOT force Masterpiece Cakes to create the cake. They ruled that under Colorado law and Title VII, engaging in creation of custom cakes meant that those had to be prepared without discrimination. Masterpiece Cakes now no longer provides custom wedding cakes, in accordance with the lower court decisions. Of course the government can’t compel a business owner to do something. They can say, however, that if a business owner engages in X, they are forced to serve all customers equally, up to and including extremes. I’m content with that – a Jewish bakery doesn’t make custom orders because they don’t want to be asked to make swastikas cookies. A JW bakery doesn’t do custom orders because of the likelihood of violating their own religious principles. If you engage in the specific form of commerce, you must do so evenhandedly. If you would prefer not to do so evenhandedly, you do not engage in the specific form of commerce.

  143. KLN – your position basically kills the custom cake business. To kill any business, you just have to find what they won’t do and sue them out of doing it at all. Great way to kill the competition.

    There’s got to be some balance between proclaiming everyone must make anything in their creation and no one should be allowed to make anything if they have reservations about making one thing.

  144. Frank, Title VII of the Civil Rights Act didn’t kill public accommodations. This wouldn’t kill custom cakes. Masterpiece Cakes is still open for business – they still make custom cakes. Just not custom wedding cakes. This didn’t kill their business and it didn’t even stop them from making custom cakes altogether. That’s taking the slippery slope too far, with provable examples from similar laws previously upheld by the Supreme Court.

  145. KLN, it’s your slope. –

    ” I’m content with that – a Jewish bakery doesn’t make custom orders because they don’t want to be asked to make swastikas cookies. A JW bakery doesn’t do custom orders because of the likelihood of violating their own religious principles. If you engage in the specific form of commerce, you must do so evenhandedly.”

    So all you have to do to stop custom orders in any business is to find what they don’t want to do. The only people who win are those who don’t care how horrible or offensive their creation could be.

  146. Forgive me – perhaps more relevant for your comment: the government does not have as compelling an interest in preserving custom cake production as it does in preventing market discrimination.