The Colorado baker case at the Supreme Court

“The Colorado Wedding Cake Case: A Gay Couple Versus A Principled Baker” (WGBH), by Harvey Silverglate:

The Supreme Court soon will issue its opinion in one of the most contentious, but least understood cases on that court’s docket, the clash between gay rights advocates on the one hand, and a merchant’s claim that his religious conscience forbids him from selling to a gay couple the same services and product (a custom-made wedding cake) that he readily provides to straight couples.

The legal analysis is sort of interesting. In a country that is ever more packed with people, do we want to allow someone to get off and stay off the reservation when the standards for correct thought change?

What continues to baffle me about this case and similar is why there are people who consider civil marriage to be a sacred institution from which same-sex couples, threesomes, or person-cat unions should be excluded. “America, Home of the Transactional Marriage” (Atlantic) says that Americans marry based on cash incentives. Colorado family law, which covers the baker’s region, provides for on-demand unilateral (“no-fault”) divorce. Maybe it would be logically reasonable (albeit morally deplorable) for the baker to object to a same-sex religious marriage in his church. But if a civil marriage is primarily about giving one partner the right to sue the other, possibly as soon as the day after the wedding, why did the baker get his panties in a twist? (and keep them twisted all the way to the U.S. Supreme Court!)

From one of my smart friends (who happens to be gay):

First, an observation: whatever legal and ethical principle applies to gay weddings also applies to, say, interracial or Jewish weddings, if particular vendors have religious or philosophical objections to those.

I strongly support free speech even for views I consider despicable. And free speech has to include not only being able to express one’s views, but also not being forced to express view one disagrees with.

However, merely having to provide services to someone (when those services are offered to the public) does not reasonably constitute having to express any particular view, whether the services are in the form of a cake, or other food, or renting out a hall or chairs, or whatever. If it did, why draw the line at the wedding itself? Why not permit refusing certain couples when they try to rent apartments or hotel rooms, or be served dinner together at a restaurant, etc.?

If the baker had been asked to create artwork on the cake that explicitly championed a form of marriage he disapproved of, there would at least start to be a legitimate competing interest (though the artistic contribution would be so minimal that I’m still skeptical that consideration should prevail, particularly since the baker’s own views would not plausibly be inferred by anyone from his providing that service, at least no more than if he had merely provided bagels for the wedding).

And in the case at hand, my understanding is that the baker turned the customers away before even discussing what the cake would look like. If it was just to be a generic wedding cake, then denying it to a gay (or interracial or Jewish) couple would be no different than refusing to sell them beer or napkins for the wedding, no different from refusing to rent them an apartment or serve them together at a restaurant.

I followed up with him by asking

So let’s say that A goes into a cake shop and asks B to make a cake and B says “I won’t do it.” If there is a law against B refusing to bake cakes for certain reasons then the court system is trying to sort out what B’s internal feelings are. Why did B refuse to do this? Too busy at the time? Did not think the project was interesting? Disliked A because A belonged to some protected class?

His response:

There’s a curious, selectively-invoked conservative myth that taking account of the intent behind an action is somehow establishing a novel kind of thought-crime.

In fact, at least as far back as the Hammurabi Code, it has been recognized that ascertaining an act’s intent is a crucial aspect of justice. Common sense concurs. If I sell someone a product I’ve misrepresented, whether there’s criminal fraud depends on whether I knowingly and intentionally deceived them. Possession of lock-picks may be legal or not depending on intent to use them for a burglary. If I knock someone over and they fall off a ledge, the extent of my culpability depends on whether I meant to collide with them at all, and if so whether I intended to shove them off the ledge (or even knew it was there). Etc.

Determining intent is also, of course, a key element of antidiscrimination law. It’s one of many practical problems that must be solved in enforcing most laws. Like all the other elements of establishing guilt (was the defendant even present at the scene?; did the victim shoot first?; etc.), the task can be difficult but is not necessarily insurmountable. The practical difficulty of proving intent certainly does not warrant a 4,000-year rollback in civilization’s understanding of justice.

In the case before the Supreme Court, intent is easy to establish because it’s openly acknowledged. In other cases–for example, landlords refusing to rent to blacks or Jews, but hiding behind a pretext–it’s sometimes necessary to show a pattern by comparing a sufficiently large sample of otherwise-similar applicants who are systematically approved or rejected consistently with a proscribed criterion.

He cited a New York Times article that says that this particular case is not about free expression:

Although Phillips’s cakes are undeniably quite artistic, he did not reject a particular design option, such as a topper with two grooms — in which case, his First Amendment argument would be more compelling. Instead, he flatly told Craig and Mullins that he would not sell them a wedding cake.

Readers: Who wants to bet on how the Supreme Court rules?

[My bet is that they rule in favor of the baker. My first reason is that the justices are super old. They grew up in a country of 150 million with plenty of elbow room and haven’t thought about how when the U.S. hits 400 million in population there is a high cost to having an outlier/throwback/Neanderthal such as the baker running around loose. Second, they will be concerned about a slippery slope. If this baker can be fined or imprisoned due to his irrational (see above) thoughtcrime, how far does the government have to go to stamp out non-violent dissent from the latest and greatest official thinking on social issues? Finally, the justices know that about half of Americans are at least sort of religious (Pew). They won’t want these 165 million people to see the Supreme Court as illegitimate so it would make sense to throw religious Americans a bone of some sort. (Based on their selection of people for stories on furniture-, house-, or car-shopping, our media suggests that at least 30 percent of married couples are same-sex, so the typical business owner will not want to alienate this group of consumers.)]

There is a separate economics angle to this. Back in December 2017, I wrote to my friend as part of the above exchange

The U.S. spends about $300 billion per year on lawyers and for every $1 spent on a lawyer there are probably $2 spent on non-lawyer time and money worrying about litigation, being deposed, trying to avoid litigation, trying to comply with various regulations, etc. (see for the source of the numbers on the total legal spend).

The NYT piece you referenced sounds reasonable, but it is not cost-free to have a legal system figure out what happened. Figure a minimum of $500,000 in legal fees, depositions, etc. to figure out whether a dispute was about the message on the cake or the customer. And you won’t know the “truth” after this. You will just maybe have a better idea of what most likely happened. Just having Americans print and then read that article shrinks the GDP. Americans could have been learning a skill instead with that time.

Same deal with all of the arguments about who had sex with whom and in exchange for how much cash or career advancement 20 years ago. The GDP shrinks every time people are contemplating Kevin Spacey or Harvey Weinstein and their various sex partners.

40 thoughts on “The Colorado baker case at the Supreme Court

  1. The point ought to be that private citizens can do business with whomever they want, the only exceptions should be when there is a barrier to competition (a baker’s cartel in restraint of gay weddings would be illegal, but as long as the brides or grooms can go elsewhere to get the same service there shouldn’t be an issue).

  2. I hope the baker prevails.

    And the notion that the happy couple initially selected this baker because they knew he would turn them down has nothing to do with it.

  3. Let’s do an experiment: if one goes to a baker and asks for a custom Nazi/KKK decorated cake, can the baker refuse? if so, why? if not, why not?

    What if I am simply odious, and annoying? what if I am unreasonable? and how do we define unreasonable?

    We could argue that political affiliation is not the same as biology but, most annoying people are so by their own nature. I subscribe to the line of thought that homosexuality is not a choice but a biological predisposition (and thus discrimination is odious and legally wrong), but it is irrelevant: if two people of the same sex want to have sex with one another, or to marry, they have the right to do so irrespective of whether they match whatever definition of ‘true homosexual’. In many way the issue does not seem to be a matter of ‘protected group’ but one of how far a covenant of trade on condition of availability to all on an equal basis can actually go.

  4. But I’m also going to say the baker either never thought about this issue beforehand or walked right into a trap.

    In my dealings with consumers, I never said I didn’t want to do business with anyone, I just raised my price to the point where I thought it would either be turned down or worth the additional effort that particular deal would consume.

    I wonder if the baker could have lived with charging 2X the normal price and donating X to a cause/charity of his choice knowing the happy couple would not have approved of his choice?

    For the record, I’ve sold numerous gay couples a kitchen over the years. Lesbians? Not so much. Don’t really know why either.

    And gay and lesbian couples get the same deal as everyone else.

  5. I am with toucan sam.

    The law in this country is full of magical rules that often have unintended consequences.

    One of those rules is the notion of “public accommodation”. A business that is considered a “public accommodation” (the majority of private businesses and, natch, all government related outfits) cannot refuse service to a “protected class” (another magical rule as to who is classified as such). The baker loses, therefore, as that’s exactly what he did.

  6. I’ll bet that at no point will the Supreme Court, the media, or anyone else with any kind of audience ever mention that the Thirteenth Amendment might have something to say on the matter.

  7. I’m expecting the baker will prevails for the same reason that @Federico gave.

    As another example, what if I walk into a black bakery and ask for a KKK or the “N” word design and the baker must design it for me? If the Supreme Court agrees with the gay couples, then civil right is dead.

    @Mike: You cannot raise your price for customers you don’t want to deal with. That is direct discrimination and you will lose in a lower court big time.

  8. George A: It seems easier for people in other businesses to practice price discrimination and get away with it.

    On the Baker: I predict he wins 5-4. Justice Kennedy loves the first amendment. Chief Justice Roberts loves to expand the first amendment. I hope he wins. He does happily serve gay customers in his bakery, he just refuses to make a custom wedding cake for him, which he claims requires his artistic talents.

  9. At one time it was believed that a restaurant or a hotel was a private business and the restaurant owner or the hotelier could decide which customers he wanted to accomodate or not. So if he wanted to say “no Jews can stay here” (in real life the euphemism used was “Restricted”) this was perfectly OK – it was none of the government’s business. But, we crossed that bridge a long time ago. It is well understood in the law, at least since the Civil Rights Act of 1964 (and even before that in some respects) that the government has the power to outlaw discrimination based upon enumerated protected categories (race, religion, gender, sexual orientation, etc.). So a restaurant can reject you for any reason (you don’t meet our dress code) and an employer can fire you for no reason (we just don’t want you to work here any more) but not for a discriminatory reason. Discrimination can be inferred statistically (you only fire workers who are black) or by your own words (“We don’t serve blacks”) but as your friend say, intent is an element of the law in many cases and the finder of fact is often called upon to discern intent. The baker would have been better off not making his intent so clear and just saying, “Sorry I’m booked for that date.” Even in the old America, when a Jew mistakenly wandered into a restricted hotel they wouldn’t rudely tell him “Get out of here, dirty Jew”. It was done more politely – “I’m sorry Mr. Greenspun, we don’t have a room available for you. I can call over to the [Name of Unrestricted Hotel] and see if they have anything for you. “

  10. I think the “artistic” thing is a red herring. Where does “artistic” stop? If I am a chef making meals in a restaurant, does this not involve “artistic” creativity? If I am a clothing designer, can I turn away black customers?

  11. Jackie: No argument on public accommodation for anyone selling a standard product (restaurant meal off a menu, hotel room, bag of cupcakes). But I do think that there is a difference when it comes to anything that is customized. Suppose that someone comes into a Honda dealer and says “My lifestyle demands that I drive a Honda Odyssey painted in purple and gold.” I think this presents a different question than if the customer comes in asking for a color from the brochure. Maybe the Honda dealer shouldn’t be required to participate in making a car that is crazy ugly (in his or her opinion).

  12. I think @Jackie found a really pragmatic solution: ask what people want (so you know if you are ok with it), then tell them you need to check your availability (which will magically turn out to be ‘unavailable’) if you dislike them or the job.

    Having said that this is far from an obvious and trivial case. On one hand it is easy to see it would seem unfair to force people to do jobs they do not want to to protect equality among the customers. Yet equality among the customers is damn well important and well worth protecting. Hopefully SCOTUS finds a reasonable and workable balance (this could be a win/win situation, if an intelligent balance is found, but it can damn well go to a lose/lose one).

  13. Jackie: My wikipedia research seems to indicate that the Civil Rights Act bans discrimination in “public accommodations” engaged in “interstate commerce”, with the exception of “private clubs”.

    It would seem like he has an argument that his shop is a public accommodation, which he does not discriminate in and does not want to discriminate in, but the wedding cakes are not a public accommodation. I won’t bother to beat the deadest horse in the world and talk about interstate commerce.

    p.s. How does one create a new enumerated protected group? Say a hypothetical President and Congress wanted to add political beliefs or explicitly say that “reverse” discrimination is not allowed either.

  14. Phil: It may seem a stretch to believe that a custom wedding cake is a “public accommodation” remember that Title II also states that it applies only to those engaged in “interstate commerce”.

  15. @Jackie

    Those days, even a polite answer, such as “Sorry I’m booked for that date” may not stick. If the gay couples refuse to accept this and send someone else few minutes later to test the “availability” the gay couples will come back and scream “discrimination” and thus we are back where we started.

    Like you said, we crossed a bridge a long time ago, but what we crossed into is some La-La land that common sense no longer holds.

    It is really simple for me to see this: If the gay couples have right, doesn’t the baker too?

  16. The law has defined “interstate commerce” so broadly that virtually everything involves interstate commerce. Did the flour that the cake is made from grow in the same state as where the cake is baked? Was the oven made in that state?

    If a Honda dealer tells you (regardless of whether you are gay, straight, black, white, etc.), ” I think that color combo is really ugly and I won’t do it for anyone” that’s perfectly 100% legal. But if he would paint it that way for a Christian buyer and not for a Jew then that’s a different issue.

  17. Jackie: Do we know that this particular baker would have made a same-sex-themed cake for an opposite-sex couple? Or a cake celebrating plural marriage for a two-spouse couple?

  18. How does one enumerate new protected classes? Say a hypothetical President and Congress wanted to include political beliefs as a protected class, as we tried to do with the Genocide conventions(though we were stymied by Stalin)? Or if they wanted to make it explicit that “reverse” discrimination is discrimination?

  19. @Bill: You are of course technically correct. I have no posted prices and provide product and service. My discriminatory actions do not have a racial, sex, sexual preference, marital status, national origin, gender status, etc. component. I will just try to charge more if I determine a particular client is a PITA. They will either go to one of my competitors or hire me at a price for which I’m willing to work.

    I think this sort of discrimination is defensible as reasonable business practice. It occurs daily in tens of thousands of transactions. In fact, pretty much every time a credit card is employed. I’m in effect changing the terms of payment for a particular client for a particular project.

    My heuristic is a seat of the pants equivalent of a credit score.

  20. I have a solution to every legal post ever posted on this blog. Complete, 100% abolition of “at equity” in the civil courts and abolition of plea bargains in the criminal courts. If you want to bring state power in any form against a citizen, you have to be subject to jury nullification.

  21. Jackie: The “interstate commerce” is irrelevant here: the baker violated a Colorado state law (Colorado Anti-Discrimination Act) and presumably the federal law too (“Title whatever”) if he did engage in “interstate commerce” as he likely did according to Phil.

    Since any “civil rights” law, either state or federal, is the most sacred cow of them all, it is likely it will trump the religious freedom or free speech less sacred cows.,+Inc&hl=en&as_sdt=40000006&as_vis=1

  22. “Do we know that this particular baker would have made a same-sex-themed cake for an opposite-sex couple? Or a cake celebrating plural marriage for a two-spouse couple?”

    I am not familiar with the exact cake that they requested, but I am guessing that (other than perhaps having the name of the couple on the cake) that there was nothing “sex themed” about the cake at all – it was just supposed to be the usual wedding cake with flowers and such on it. As I understand it, the baker was opposed to using his “creativity” to make a cake for a gay wedding period. Would your answer change if the baker said that he was religiously opposed to baking cakes for a black/white or Jewish/Christian (opposite sex) couple?

    As I said before, I think the “creativity” thing is weak sauce. No one would have any sympathy for the baker if the gay couple had come into the bakery and asked for a dozen bagels and were refused. Just because he was supposed to pipe out some flowers and maybe the name of the couple doesn’t fundamentally change the case, to me at least.

  23. “pipe out some flowers […] doesn’t fundamentally change the case”

    Sure, it’s a distinction without difference.

    More interesting is the tension between libertarian dogmas, such as freedom of association, and the public accommodation laws. Rand Paul was perhaps the most famous libertarian who dared to argue against Title II in 2010 on that ground (he supported the parts of the law that prohibited discrimination by state, but not the private actors).

  24. Intent matters when you pull the trigger on a gun and somebody dies.

    We do not need to litigate the intent of someone baking a cake.

  25. It’s an interesting fact that as a society we have millions to spend on this.

    Jackie: if you think the creativity argument is weak, what is an example of commerce that is not public accomodation? There’s no point in the public accommodation element if everything is public accommodation. The Baker did say gays are 100% welcome to buy anything else at his bakery.

    It would be a great thing if every time someone wanted to interpret a law beyond its original intent if they were required to draw a line somewhere.

  26. If the baker loses I look forward to purchasing halal and kosher bacon, along with attending gay weddings at my local mosque.

  27. “what is an example of commerce that is not public accomodation”

    It is pretty safe to say that almost no business can rely on the creative/expressive argument, “public accommodation” seems to always prevail. There was an attempt to use the argument that the expressive part is more important than the commercial side of the business in the Elane Photography case, but they lost. So will the baker.

    The only case that comes to one’s mind where freedom of association/discrimination prevailed was St. Patrick’s Day parade exactly because it was a non-commercial “expressive” activity :

  28. Jackie: I would be okay with a shop that put a sign out front saying “We don’t serve Jews.” Even without social media shaming, I don’t think this is a way to be successful in the current U.S. economy. And there are usually alternative vendors for most things. As you’ve maybe seen in my responses to commenters on this blog who hold anti-Jewish points of view, I don’t think it is effective to tell people who dislike Jews “You have to like Jews and/or deal with Jews.” A society where people are coerced by threats of fines or prison to pretend that they aren’t prejudiced is, I think, worse than one where the prejudiced people or businesses are readily identifiable.

    What if I couldn’t find any shop to bake me a “Jew cake”? I would bake my own cake! In fact, I did just that the other night with the help of two kids and we served the result to a neighbor with tea. There were no complaints.

    [Separately, I purchased two cat-shaped cake molds some years ago and would use them to bake birthday cakes for my Samoyeds to share with party guests. I can see a cat-loving baker rejecting my demand to create this commercially.]

  29. If I understand it correctly the baker was happy to sell any of his cakes to the couple, what he refused to do was to decorate it. Because cakes need to be actively decorated, demanding that the baker did so does seem personal and potentially intrusive, especially if the decoration demanded was more than flowery stuff, but an actual mention of the fact it was for a same sex wedding. This is a much more specific issue than just a broad ‘can we deny service based on’, because it is ‘can we deny a very specific kind of service based on’.

    It is easy to imagine situations where people might ask for stuff that is both legal and yet repellent (‘jewish bacon’) to the service provider. Clearly a balance is needed to protect the equality of everyone in society while avoiding abuses (assuming that this specific request could be successfully described as an abuse).

  30. This reminds me of the dispute between Lilliput and Blefuscu over which end to open a hard boiled egg. Frustration is building up in the collective subconscious and people just want to fight.

  31. Phil, the question is not what you personally would be OK with (BTW, maybe you can find another bakery, but what if it is say the subway or the electric utility?) but what is the law in this area? The “no Jews” sign is a clear loser under current law. If you say that baking cakes is a creative activity and creatively baking cakes for Jews is against your religion, you would still lose (as I think will the baker) because religious law does not trump civil law – e.g. if you say that your religion commands you to have multiple wives the government can still put you in jail for it.

  32. Our social contract is one of “You can live your life as you see fit as long as you afford that to everyone else”. That contract has been watered down considerably, but it has not been destroyed. If constitutional America is destroyed, you will see just how valuable that pact was.

    The Jim Crow apartheid was such an extreme abuse of freedom of association that it justified a use of federal power to redress. In many cases, it went beyond discrimination into denial of constitutional rights and violence. It’s ugly record is hopefully well known to everyone reading. Before that use of federal power was exercised, it underwent vigorous debate and was passed by two thirds majorities in both houses of congress and signed by the President. Today, it’s being used for something that I promise you those politicians couldn’t have imagined in their wildest dreams, making freedom of association a mere privilege. Certainly readers know that specific liberty is violated in many ways, often worse than what the couple is requesting.

    I can only ask people to consider what will happen when the deplorable side says “screw it” and begins violating the constitutional order with the same vigor. I would fear such a day if it comes. For the people who strongly support the couple, you should fear it much more than me.

  33. Jack: What about the subway system or an electric utility saying “no juice for Jews”? The rules for monopolies in the U.S. are different than the rules for ordinary enterprises that don’t have a government-guaranteed monopoly (though, of course, you can be like the Silicon Valley giants and have a de facto monopoly without any regulation!).

  34. philg: Not if you engage in bullshit practices like making your own browser the default on your own operating system which you bought from someone who copied someone else’s operating system without consent who copied someone else’s operating system with consent(though was it really consent if it was withdrawn years later?)

  35. It’ll be interesting to see how this crosses over into the gun debate. I would like the salespersons at the gun counter to have almost unlimited discretion about whom they can refuse to sell a gun. Also: there’s a lot of pressure on banks to not do business with sellers of guns, pornography, cannabis; are banks not public accommodations?

  36. superMike – I think the point is that those aren’t ‘protected classes’, as opposed to this cake case.

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