The Colorado Supreme Court has ruled against a baker who refused to bake a cake for a same-sex wedding, arguing that baking a cake was an artistic act and that by forcing him to do so, he was being subjected to forced speech, thus violating his First Amendment rights. The court disagreed.
The Colorado Court of Appeals ruled that the owners of Masterpiece Cakeshop in Lakewood, Colorado, violated the state’s public-accommodations law when its owner, Jack Phillips, refused to make a cake for Charlie Craig and David Mullins, a gay couple who wanted to marry in 2012.
The baker argued that baking a cake is a form of speech that he was being compelled to make.
“Phillips believes that decorating cakes is a form of art, that he can honor God through his artistic talents, and that he would displease God by creating cakes for same-sex marriages,” the court wrote in its decision.
This question of what constitutes ‘speech’ is an important one because restricting a person’s right to speak or forcing them to say something they do not want raise serious First Amendment considerations.
Under the law, there’s an important distinction between refusing to provide a service and refusing to “say” something. As Doug NeJaime, a UCLA law professor, put it to me in July, “It’s the difference between not providing service because the person’s gay and not doing something in particular because it’s particular speech.” This has been an important factor in other, similar cases, so it’s significant that the Colorado court rejected the idea that cake-baking is primarily a form of artistic expression and speech.
The idea that one ‘honors god’ through the mundane things one does in life can, if taken seriously, result in pretty much refusing to provide any services to gay people. The court was not buying it.
“The act of designing and selling a wedding cake to all customers free of discrimination does not convey a celebratory message about same-sex weddings,” the justices wrote. “To the extent that the public infers from a Masterpiece wedding cake a message celebrating same-sex marriage, that message is more likely to be attributed to the customer than to Masterpiece.”
Right. When I go to a wedding and eat a piece of cake, I do not think, “it is so great that the baker is celebrating the wedding with us.” To the extent that I think of the baker at all, it is to note if the cake is so good that I may seek their business or so bad that I want to avoid them.
The court said that the baker also violated Colorado’s public accommodations law that forbids discrimination on the basis of sexual orientation in housing, employment, and the like.
Right. It is takes so much artistic talent to bake round disks of various sizes, stack them on top of one another, cover them with white icing, put two figurines on top, and write “Congratulations name 1 and name 2“.
I’ve seen pictures and movies of fancy weddings with very fancy cakes, but every single real life wedding reception I attended in person, all the wedding cakes I’ve seen have all pretty much looked alike. It’s like calling the marriage licenses “literature” because they have writing on them.
Jack Phillips might have had a better claim to being an artist if he had refused to bake and decorate a cake to order and instead have produced a “take it or leave it Masterpiece.”
Most artists would not consider “pretty” productions made to specification as art, but merely a subsidy to make possible their real art. I’m also sure that even Michelangelo would not turn down a cash job if it allowed him to produce his own “Masterpieces.”
Mr Phillip’s productions are nothing more than commissioned work (produced to order) and therefore should not be considered as “art,” but instead as “illustration” done for money, a very public accommodation.
Chiroptera says
August 14, 2015 at 3:14 pm
Hey, whoa. I suggest you attempt to duplicate a wedding cake before you pop off like that. I’ll wait here with this tea while you give it a shot. It’s not something any fool can just do. Maybe criticize Jack Phillips without disparaging skilled labor, eh?
Chiroptera @ 1
It’s worth pointing out that the court explicitly did not address the issue of whether refusing to write something on the cake would be protected. See Paragraph 71 of the decision:
qwints,
Could you please post a link to the decision?
@4 qwints It will be interesting to see what happens when/if the courts take up the issue of the line between a generic wedding cake and a wedding cake with a specific message.
ceesays, #3:
I’m not disparaging “skilled labor.” I’m criticizing the notion that making a standardized product (like the wedding cakes that I have personal seen) counts as “artistic expression.” Maybe the wedding cakes you see are different; I’m just commenting based on what I have seen as I tried to make clear in my comment.
Some book shelves are strikingly beautiful and impressive. But if someone is just mass producing something that is basically horizontal boards glued into vertical boards, then it would be bit rich to claim “artistic expression” even if I couldn’t do the same without making some lopsided and wobbly.
@Chiroptera #7: a horizontal board nailed to a vertical board is … a cross in the mind of an Xian, so there’s no way a flat-pack MDF bit of furniture can be anything but praising Jesus with all its four corners. The wobbly back of the cupboard is praising the … I dunno, probably the table at the last supper or something.
It took me a few minutes, but this seems to be the link: https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2015/14CA1351-PD.pdf
Chiroptera:
This is what wedding cakes look like. Like I said, try and make one yourself.
And there is also the question of whether it is acceptable for a public accommodation to deny a member of a group protected by the anti-discrimination statutes any of its services, even if one of those services are unambiguously “artistic expression.”
But, honestly, considering how evangelicals are always screaming how they are discriminated against and how they are only one jack booted thug away from being hauled to FEMA camps, you’d think they’d be all in favor of anti-discrimination laws.
I’m a professional artist (technically), and if I’m being paid to produce artwork, then my job is to support the client’s artistic “vision” (I use the word loosely), it is not protected free speech or expression if it’s being done for a paycheck unless the job specifically calls for it.
Leo @#9,
Thanks for the link!
Baking a cake isn’t speech. Well yep. Of course and good.
But somehow corporations are still people?
Still chalk one up for the good guys here.
Why is it that, in a commercial transaction, gov’t. can involve itself only on the side of the consumer of a service/product and not its provider?
What if a racist in a small town refuses to shop at that towns hardware store because of the race of the owner and takes his business to the store in another town,is his action illegal?Should it be?
I think that even if it were possible to regulate the actions of consumers like we do providers,and it isn’t,most people would be opposed to it in principle.
But why?
Why do we let ‘freedom of association’ prevail for consumers but not providers?
This is an honest question.I think we sometimes get tunnel vision in the single-minded pursuit of a certain end and we don’t stop to think about all the implications of the premises we’re acting on.
I’m not certain what you are asking in your comment. Are you suggesting that government should regulate consumers, and require them to purchase goods without regard to the characteristics of the seller? Or are you suggesting that government regulations which prevent the seller from discriminating against the buyer are an unwarranted limitation on the freedom of the seller?
If it is the second argument, I’ll warn you right now that this is an argument used by bigots to justify their bigotry. So if you are called a bigot by others, don’t be too surprised. But assuming that your are asking this question in earnest, the short answer is; “We tried that and it didn’t work.”
To go into more detail, if people were not part of society, the idea that bigots would destroy their business by refusing to sell to some subset of the population might have some justification. However, people belong to a culture, to society, and their opinions and prejudices are shaped by the people around them. Bigotry is largely generated by culture, few people one wake up one morning and says, “I think black people are icky and I’m not going associate with them any more.” Instead, people absorb parts of the culture which says, “black people were once slaves, so they are inferior”, or “gay people are unrepentant sinners.”
Historically, and there are many, many examples of this in the history of most cultures of the world, this leads to a hierarchy of citizens. A codified version of this is a caste system, but even without a codified version this pecking order will develop. There are a number of cultural spectrum which even in today’s U.S.A., are used to classify and place people into a hierarchy.
Color is still used by many people as a signifier of worth, so is gender, so is religion. It is not uncommon for Americans to feel that the darker a person skin, the less status they have in society. It is not uncommon for Americans to feel that women have less status than men. It is not uncommon for Americans to feel that Catholics have less status than Protestants. It is not uncommon for Americans to feel that poor people have less status than rich people.
These attitudes are not limited to Americans, when reading literature from other countries I regularly spot similar attitudes. Even from countries with very different cultures.
A bigot may be alone, there are people who develop an unreasonable dislike of some trait. But prejudice is largely cultural, it’s bigotry on a large scale. It’s creating a pecking order of the status of people, and often using traits which might well be beyond the control of the individuals who are being relegated to a lower status. Black people cannot control the color of their skin, woman do not choose to be female.
The result of the creation of second-class citizens, is the formation of second-class facilities. The schools they attend are poorly funded. They are prevented from working at certain jobs, or living in certain areas. If they are ambitious, they have a harder time getting loans. There are dozens, probably hundreds, of restrictions on their freedom. Restrictions not created by government, not created by the codified laws they live by, but by the society they live in.
Our society let nature take its course for close to 100 years. The thought was that as Americans we are supposed to highly value freedom and fair-play, so the former slaves and women of ambition would be treated equally, eventually. Regrettably, being human, we did not live up to our highly-touted values of freedom and fair-play. Our culture continued, and still continues, to rate members of our society based on the color of their skin, their sex or gender, their religion, and their wealth. This seems to be a common trait for humans.
So, since prejudice and bigotry appear in every culture I’ve studied, why is it bad? Maybe we should just accept that as primates we automatically try to establish a pecking order in our societies. The reason prejudice and bigotry is bad is because of the misery they can cause. I could also point out the loss of opportunity, and thus the possible loss of economic growth or advancements in knowledge, caused by poor education and lack of investment in lower-class citizens. But what is probably even more appalling is that for reasons entirely outside of their control, people will be forced to take low-wage jobs, live in substandard housing, get few educational opportunities, and be frightened of the higher-status police force (which can terrorize them with impunity).
So, even though, as primates, we tend to establish social levels, we can, because we have empathy, and can use our primate brains to recognize that skin color and gender are not important differentiators between human beings. We can use our sense of fair-play (also a primate trait) which encourages us to try to reduce as far as we can the differences between social status, at least in terms of those traits which are not important.
For 100 years we let things go, with the hope that businesses would take down the “Whites Only” signs. With the hope that woman would get equal pay for equal work. With the hope that the WASPs would let others reach their level of status. It didn’t work.
Businesses were not hurt by their “No Negros” signs, there were enough people who either agreed, or didn’t care because it didn’t directly impact them. Employers were, and still are, happy to hire woman at a lower wage. Municipalities were more than happy to ignore the people who lived on the wrong side of the tracks. The culture allowed only a token integration, a few highly ambitious individuals who could break free. Improvements were not happening, instead a caste society was forming. With all the bigotry and prejudice and misery that a caste system creates.
So what action could be taken? Telling people they shouldn’t carry and act on prejudices doesn’t work. I have prejudices, I hope I’m aware of most of them, but I can’t ensure that they don’t influence my actions. You can’t legislate my prejudices away. You have prejudices, if you are honest to yourself you will recognize them. Everyone carries some level of prejudice, it’s part of being human.
But what we can do is limit the ability of people to act on those prejudices in ways which directly harm others. We can create, as much as possible, a level playing-field. We can attempt to ensure bank loans are given on merit, not refused because of someone’s skin color or gender. We can legislate to prevent land-lords to deny rentals to people of color. Or home-owners from selling their house to a black person.
And we legislate to prevent businesses from selling to only people they like, to prevent them from harming those they don’t like.
For there is a cost for the buyer to have to drive to another town. If the buyer chooses to pay that cost, that’s a choice they can make. If the buyer is forced to pay the cost of going to another town, then the buyer hasn’t made the choice, it is imposed by the bigot, and that is a limitation on the buyer’s freedom. A more severe limitation than requiring the seller to sell to anyone.
Sorry about the mis-formed link. Thanks for posting it Leo.
Nightshade #15
You are confusing class discrimination vs. individual discrimination. If that cake maker had discriminated against that gay couple for something they had individually done, such as not pay for a previously ordered cake, he would have had every right to refuse to serve them anymore. But he is discriminating against ALL gay couples who want wedding cakes. His only option to maintain his refusal would be to stop selling wedding cakes to anyone. THAT is legal.
I’d say you are right that a racist who refuses to shop at any black-owned business IS discriminating against a class, and maybe they could be considered technically in violation of the law, but the practical result is they are only depriving those stores of a single customer. I’m pretty sure a court would refuse to prosecute such a case simply because the potential harm is so minuscule.
@moarscienceplz @#18,
I don’t think so. The violation was because the businesses were public accommodations that purported to offer their goods and services to anyone who was willing to pay.
An individual (or private club) can discriminate all they want on any basis. For example, the Augusta gold club where the Masters tournament is held for the longest time did not allow women or people of color as members. They finally relented but only because of public pressure, not because they were sued.
@16 Flex,why put such a high premium on ‘fair-play’? After all, our moral sentiments, whether a sense of’ ‘fairness’ or avoiding harm to others, are products of undirected natural selection.just like our sentiments that lead us feel loyalty to a particular group and to discriminate in favor of those similar to us.In short these often conflicting sentiments have the same ontological status.
Both of these are part of our primate heritage and there is no good reason to say one sentiment is superior ‘morally’ or should be preferred as the ‘fundamental’ organizing principle around which we build our societies.