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The Necessary Thinness of (Most) Commercial Interactions

[Cross-posted at PrawfsBlawg]  A few days ago, AP had a story about a gay couple in Colorado who, in the course of shopping for a wedding cake, had been turned away by a baker who did not approve of the use of his products in a gay marriage ceremony.  The ACLU has filed a complaint against the baker on the couple's behalf.  The baker is, of course, claiming that, as a matter of religious freedom, he is entitled to discriminate against gay couples.  Colorado law prohibits places of public accommodation from discriminating on the basis of, among other things, sexual orientation.  So the question, legally, is whether the state's antidiscrimination law violates the First Amendment's Free Exercise Clause.  The argument that it does will run into Employment Division v. Smith, which says that the Free Exercise Clause does not require exemptions from laws of general applicability.  The baker is going to have a hard time making that case. 

We can expect to see more of these sorts of disputes as gay marriage proliferates across the country.  In fact, the Colorado case resembles a case that has been rising through the New Mexico state courts and is currently pending before the New Mexico Supreme Court.  The New Mexico case involves a wedding photographer who refused to provide her services at a gay comitment ceremony because, in her words, she only handled "traditional weddings."  In that case, lower state courts found the photographer's actions to have violated the New Mexico laws prohibiting discrimination in places of public accommodation and rejected First Amendment challenges to the application of those laws to the photographer.  The wrinkle in the New Mexico case is that the photographer is arguing that the law burdens freedom of expression, rather than simply the exercise of religion.

The two cases raise an interesting question about the degree to which restrictions on the right to pick and choose among customers inappropriately burden a business owner's legitimate autonomy, whether conceived as religious or expressive freedom.  Implicit in both the baker and the photographer's argument is that requiring a business owner to provide a good or service to someone of whom he disapproves (either because of that person's conduct or identity) improperly forces him to identify with or endorse the customer in question.  In assessing that argument, I think it is helpful to consider how the law has traditionally defined the rights of owners to select among their customers.  As it turns out, for most of the history of the common law, owners of businesses who have held themselves out as open to the public have had quite limited rights to arbitrarily refuse service to customers who have presented themselves as willing patrons.  This is a valuable and important principle to affirm.  I'll explain why below the jump.

Before the American Civil War, it was understood that at least certain business owners had a duty to serve anyone who sought their services and was able to pay. The precise reach of this duty is a matter of some disagreement.  Blackstone described the law in 1765 as follows: ‘‘if an inn-keeper, or other victualler, hangs out a sign and opens his house for travelers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action on the case will lie against him for damages, if he without good reason refuses to admit a traveler.’’  Writing in 1911, Professor and future dean of the Cornell Law School, Charles Burdick, described the duty of the “inn-keeper, or other victualler” of which Blackstone spoke as merely illustrative of a broader duty owed by “anyone who held himself out [as open to the public] to serve all who might apply.”

The duty to serve reached back as early as the fourteenth century, and required any business – known as a “common” or “public” calling – that held itself out as open to the public to serve any member of the public who applied. The distinction the law drew was between someone who practiced a calling on a “common” basis (i.e., putatively open to all who applied) and someone who practiced a particular calling only on a case-by-case basis.  The duty to serve applied to the former, and not the latter, but it extended beyond the modern categories of common carriers and innkeepers and encompassed other businesses as well.  Burdick describes tailors, farriers (horse-shoers) and even surgeons as "common" in the relevant sense.  The limitation of the duty to serve to the categories of innkeepers and common carriers is a later development.

Early U.S. cases affirmed the obligation on public accommodations to serve the public. The usual justification for this obligation was the broad assumption underlying the traditional law of “common callings” that an owner assumes public duties by hanging a sign holding himself out as open to the public.  Although before the Civil War cases affirming the duty to serve the public involved innkeepers and common carriers, as Joe Singer has observed, only one pre-Civil War case held that other types of establishments (in that case, a store) were free to choose their customers at will, and that case may rest on fairly narrow grounds, since the patron had gotten into a physical altercation with the owner.  The notion that -- with the exception of inkeepers and other narrow exceptions -- business owners who hold themselves out as open to the public nonetheless retain a right to exclude arbitrarily seems to be a product of the Civil War era, and seems to be linked with a desire to preserve the prerogative of business owners to exclude black patrons.  Although critics of the Civil Rights Act of 1964 (an its state-law analogs) characterize it as rolling back rights of private ownership, it would be more accurate to say that civil rights laws (partially) restored the status quo that prevailed through most of the history o the common law.

I think the cases involving gay couples show the wisdom of the common law in limiting the discretionary power of business owners to turn away willing and nondisruptive customers on an ad hoc basis.  The reason is not just the harm this kind of exclusion does to the dignity of the people turned away.  That is surely part of the story, and that dignitary harm should not be understated.  Importatly, though, the broad rule protects the shop owner as well, by making the provision of service a normatively thin act.  If owners are required to serve all who present themselves, then the act of service communicates no signal of endorsement of the customer or of the group to which the cusomter belongs or of the customer's lifestyle.  A message of endorsement crucially depends on imbuing that act of serving the customer with a meaning that is only possible if the act is within the owner's discretion.  Creating a robust right of access therefore protects the dignity of prospective customers while minimally intruding on the expressive freedom of owners by emptying the most acts of service of expressive meaning.

Now, pointing to the dotrine of common callings does not answer the question of what to do with the photographer or the baker.  But it provides a useful way of reframing the question:  are the businesses in question the sort that hold themselves out as open to the public at large such that requiring them to serve is not properly construed as requiring them to endorse or cooperate with the identity or actions of their customers?  If so, then it seems appropriate to treat as insubstantial the burden imposed on owners by using the state antidsicrimination law to force them to provide the service (whether sounding in expressive or religious freedom).  I think the bakery fairly easily fits within the common callings doctrine.  The photographer is a trickier case, because of the personal and somewhat more customized nature of the service rendered.  And so it seems appropriate to me that the courts and commentators appear to be taking the photographer's claim fairly seriously.

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I just want to point out the dynamics.  We've all been trained to perceive a gay couple as a discriminated-against minority, fighting for equal rights against a tyrannical majority.

But in this case, a small business owner is being sued by the ACLU.  The tables have turned.  Gay activists now are using the deep pockets of the ACLU and the power of the court to ride roughshod over religious liberty.

That is the plain meaning of the case in question.  If Employment Division v Smith prevents that meaning from being recognized in law, then something should be done about Employment Division v Smith.

Why must the ACLU sue this small business owner?  In the name of civil peace, why can't the ACLU let well enough alone?

Perhaps a useful distinction would be where the service is provided.  In my shop with the sign:  all comers; at another location:  complete discretion.  The logic being something like 'I speak with my body'.  Not moving it, eg at my shop, I'm not making any statement other than serving a customer.  Moving it, eg traveling to a wedding, I'm now adding some level of personal endorsement.

I also agree with Jim's comment and would go one step farther.  We are not being asked only to treat LGBTQ with the respect due to any human being, but rather to accept and affirm their lifestyle.  Its the affirmation that is problematic and which the government, ACLU, and gay lobby are trying to tyrannically enforce.

This issue was settled quite some time ago here in Massachusetts. Apart from other things, if you rent houses or apartments you can not discriminate against unmarried or same-sex couples regardless of what your religious beliefs may be.

The only exception is if you live yourself in a house that has a single rental apartment in addition to your own.  But to take advantage of the exception you must rent it yourself without advertising in a newspaper or using a real estate agent 

the first case that I remember was that of a Christian couple who owned a building with a few apartments and refused to rent to an unmarried heterosexual couple. The court said that they could not refuse for that reason. That was many years ago. 

For details, see:  http://www.mass.gov/mcad/regs804cmr0200.html

It does not seem at all to me that the baker or the photographer is being asked to affirm anybody's "lifestyle."   They are being asked to enter into a contractual relationship with another party on the basis of the business' solicitation of such goods/services being available to the general public.  I do not endorse Jamie Dimon's "lifestyle" by virtue of opening a bank account at Chase, nor does he endorse mine.  Perhaps more to the point in the specific cases, why are the buinesses being asked to affirm the couples' "lifestyle," whereas the couple's decision to order a cake or photos does not - very obviously - involve an endorsement of the "lifestyle" of the baker or photographer? 

If you think this is tyrrany, we should organize a field trip to some places where tyrrany is an everyday part of life.

Mark

 

Two cases have been filed, not decided. Jim Pauwels has already raised the spectre of courts riding "roughshod" over religious liberty. If a court decides for the defendant, will it have ridden roughshod over the plaintiff? Will not serving a gay couple be a victory for religious liberty? Will someone please give Jim Pauwals a definition of "roughshod." Can we please stay calm?

Did the baker refuse to do business with a homosexual?  If they had popped in to buy a chocolate chip cookie, would they have been refused?

 

That is the plain meaning of the case in question.  If Employment Division v Smith prevents that meaning from being recognized in law, then something should be done about Employment Division v Smith.

 

Congress attempted to undo Emploment Division v Smith by passing the Religious Freedom Restoration Act some years ago, but the Supreme Court ruled that RFRA can only apply to federal laws not state laws (like those I described in Massachusetts). 

 

Incidentally, after looking up the case of the couple I mentioned, I see that during the years that that particular case was in the courts, they got married and the case was dropped. However, the law in MA is as I described. 

Some years ago my wife and I took an ancient lady to one of our pricier restaurants on Mother's Day, Our guest needed to use a walker. That alone meant she was not of the appearance, style, orthodontia, etc., etc. preferred at this establishment. After a considerable wait, during which we could see empty tables, we were ushered across the room, forcing our guest to navigate her walker around diners. To our lovely table next to the kitchen door. We have never been back to the restaurant, and when it is suggested to us, I absolutely refuse and explain why: They let us know they didn't want us, so I will spend my money where I am loved.

If we had been a gay couple instead of an aging trio with a walker, maybe they would have refused to seat us. I suspect the walker and the possibility that we were the suing type had something to do with us even being seated. But I am not unhappy to have quietly severed relations with that joint. There are a lot of places in town where I can get a better meal without being insulted.

ISTM that that would be a better way for gay folks to treat the baker and the photographer. They are making a legal case out of something that should be easier -- identifying the kind of jerks you don't want to deal with. Wedding cakes, photographs and restaurant meals are simply not life-or-death issues. The world is full of jerks who can be allowed to rot at their own rate in their own bile.

 

 

Jim P.,

We've all been trained to perceive a gay couple as a discriminated-against minority,...

That requires training? It's been clear as daylight to everyone, going back all the way to the "abomination and stone 'em" boys of the Bible, and right on up to today.

But in this case, a small business owner is being sued by the ACLU.  The tables have turned.  Gay activists now are using the deep pockets of the ACLU and the power of the court to ride roughshod over religious liberty.

Me David, you Goliath! So unfair! Or possibly just citizens using the resources available to them to settle a point of law affecting them and others in the ordinary way established by the Constitution, and arguably better than street violence or civil war. Another plaintiff in a recent case has even deeper pockets. Its initials are RCC. In both cases, I hope, arguments will count for more than pockets.

The ACLU also defends religious liberty, and probably has a better record on that than some religions.

Why must the ACLU sue this small business owner?  In the name of civil peace, why can't the ACLU let well enough alone?

Why do those people have to sit at our lunch counter? Why do those people think they can just walk over that bridge in Selma? Why did the DOJ have to send those mean federal marshalls to communicate with our governor? Peace, sweet peace, Lord, is all we want.

On the other hand, I would hesitate to serve my family and friends any food prepared by someone who felt toward me what this baker feels toward the plaintiffs.

 

 

Why not make an allowance for Christian and other religious bakers and then force remaining bakeries to provide the service for free, a la Obamacare and HHS re contracepton? Every one gets their cake and they can eat it too.  Plus the Obamacare arrangement doesn't seem to bother progressives inordinately.  

 

BTW, has anyone tried this with Muslim bakers? 

 

Also, if photographers are exempt because of their alleged creativity, couldn't extremely creative bakers qualify for an exemption?  The exemption should be based on creativity rather than occupation.  Bakers have given us cronuts.  What have photographers done for us recently?  It's an odd distinction that perhaps only sophisticated legal analysis can make clear.

I would hesitate to serve my family and friends any food prepared by someone who felt toward me what this baker feels toward the plaintiff

So true. I always worry in restaurants and take care not to upset the waiter, because who knows what is done to our food in the kitchen before it is served at our table.

Tom - I've also boycotted restaurants that for whatever reason I thought warranted it.  Apparently you think your anecdote is analogous to the case in question.  In your view, did the restaurant treat your party differently because it had genuine conscience objections to one particular thing that your dining partner wished to do?

 

It does not seem at all to me that the baker or the photographer is being asked to affirm anybody's "lifestyle." 

Quite right.  There is no evidence presented here that the baker refused to affirm anybody's "lifestyle".

 

John  P - go do something that gets you personally sued by the ACLU, then report back to us as to whether or not you see it as a contest of equals.  Or get audited by the IRS.  Or get put on an NSA terrorism list.  Or try to persuade your electric utility that you shouldn't have to pay your electric bill for a few months because you're short of cash.  Or have the same conversation with the institution that holds your mortgage.  At the risk of stating the obvious, not everyone is equal in our society.

 

Why do those people have to sit at our lunch counter? Why do those people think they can just walk over that bridge in Selma? Why did the DOJ have to send those mean federal marshalls to communicate with our governor? Peace, sweet peace, Lord, is all we want. 

Except that three or four seconds of thought illustrate that the parallel is not apt, at all.  Does the baker refuse to serve any homosexual all of his products in all situations?  Was there no other merchant from whom to procure a wedding cake - is there a league of discriminatory bakers in this burg?  Is the baker's business policy part of a pervasive legal and cultural regime of systematic discrimination?   Should homosexuals tolerate the presence of neighbors whose religious beliefs may lead them to wish to not personally collaborate with gay marriage?

 

 

Jim (8:54 a.m.) I don't think of it as boycotting. I think of it as avoiding jerks who annoy me. If I were boycotting I'd actively fry to keep others away from the place as well as myself.

But I brought it up because I think the experience is about as close as I can get as a white hetero to what discriminated-against groups run into day in and day out. And I agree that here are occasions -- many -- when victims of prejudice have to fight. In the lunch counter sit-ins, for example, they could not go down the street or (most of them) even across state lines because they would run into the same thing. It's one thing to have a special occasion marred by a policy of insulting the unwanted and another to have every day marred by having to meet the demands of people who are intentionally mean.

Even today, people of color are discriminated against in some eating establishments. They know which ones they are, but now they know the alternatives where they wil be welcomed, and they have such alternatives.

You raise the question of "genuine conscience objections" that calls for a mind reader. I have no doubt that the people who demanded that lunch counters be segregated felt it was a matter of conscience for them not to eat with black people. I don't know whether the Christian baker and photographer are acting out of the consciences they developed studying their Bibles or if they are acting, like most bigots, out of fear of the "different."

It really doesn't make much difference as long as their victims can choose to go where they won't be victimized. But out of my own extremely limited experience on the receiving end, I wouldn't be in a hurry to support a law in favor of the conscientious objector knowing the prime beneficiary of such a law would be the bigot.

Btw, it appears that Eduardo didn't link to the news story he references in his post.  Here is a Washington Post story.  Not sure whether any of these particular circumstances will contribute to the conversation.  The story does call out that Colorado's civil union law doesn't include religious conscience protections.  (Apparently, gay marriage is not legal in Colorado; the couple in question was married in Massachusetts.)

 

 

Tom - those are some very good points.  However we feel about jerks and bigots, it's not illegal to be a jerk or a bigot, and I don't believe it should be.  Nor is it clear that the baker in question is a jerk or a bigot (nor is it clear that he's not - it's entirely possible).  

FWIW - my own view is that people who oppose gay marriage for religious/conscience reasons have a particular obligation to be neither a jerk nor a bigot.  Of course, that is true for Christians in general, not just for Christians as it pertains to questions of gay marriage; but given the history of how homosexuals have been treated, it's particularly important around this issue.

Thought experiment: We have all had experiences where we wondered if our business was wanted (Tom B. offers an example of an old lady with a walker; seems far fetched, but...). We are treated rudely or made to wait, or.... but if we finally get in, or get served, we can only complain and/or boycott as Tom has done. We can't sue and neither can the business.

But what about a really pricey service, what if the baker or photographer quote an exorbitant price. The photographer can more easily do this because there is no "set" price: that will be $3000 to show up and take pictures for an hour, $500 a print, and $500 for every 15 minutes beyond the hour. The baker can, of course, agree and then not produce the cake. I doubt there is a suit in these examples.

What seems to be missing here is the discretion we often exercise when we see our business is not wanted. Are the gay couple making a point about equality? Are they getting even? Has the ACLU chosen to make an example of the case? So it goes. It seems like a waste of time and money. I bet they found a baker and a photographer.

Supposedly the court will be the final arbiter here, but wouldn't everyone be better off taking their business to a place where it was wanted, even welcomed.

Jim P.,

not everyone is equal in our society

No. And that means what, that smallness should be an automatic winning defense for a businessman who discriminates agains a segment of the public? We should all just stipulate that his claimed conscientious objection is sincere, and that if it is, that will be sufficient? And how small do the plaintiffs have to be to get the same favorable consideration? I see a possible conflict arising? How should they settle it? Throw rocks at each other?

Defendants in these cases will generally have law firms tripping over each other to represent them. I suspect the Thomas More Law Center would take an interest. They call themselves "The Sword and the Shield for People of Faith" and "Christianity's answer to the ACLU." Sounds perfect.

 

Except that three or four seconds of thought illustrate that the parallel [with the civil rights issues of the 1960s] is not apt, at all.  Does the baker refuse to serve any homosexual all of his products in all situations?  Was there no other merchant from whom to procure a wedding cake - is there a league of discriminatory bakers in this burg?  Is the baker's business policy part of a pervasive legal and cultural regime of systematic discrimination?   Should homosexuals tolerate the presence of neighbors whose religious beliefs may lead them to wish to not personally collaborate with gay marriage?

No, the cases are far different in principle, scale, intensity, and consequence. What is similar is the attitude that we shouldn't have to bother our little heads over this, because it's not our ox that is being gored. Or as you put it, "Why can't the ACLU let well enough alone?" Maybe because they think it's not well enough, just as the Catholic Church thinks that no accommodation is good enough in the HHS mandate case. People disagree. That's why we have courts. You can see alternatives on the nightly news. They're not pretty.

That last question of yours seems out of context. No one has suggested the contrary.

I wonder if the ACLU could represent both sides in this case -- the gay couple on prejudice grounds and the baker on religious freedom grounds.  Isn't this a case of conflicting basic rights though neither side's case is a matter of great intrinsic importance?

AO: Then it wouldn't be the ACLU, which often shows itself, especially in recent decades, to be a partisam legal defense group, just like the Thomas More Legal Center.

NCR has a story about the Diocese of Sacramento buying a funeral home that it intends to operate as such. That should open a can of worms, at least for some people. Here's a case where the law cited by Eduardo seems to be a very good one. Otherwise, people could be denied the funeral home's services if they were on the outs with the Church about things like same-sex mariage, apostacy, etc.

Substitute mixed-race or minority couple for gay couple and you'll see the absolute nonsense being prattled here about the poor, picked-upon small merchant.

Either you are open for business or you are not.  If you are, then you are open to any and all customers so long as they are not misbehaving, obviously intoxicated or drugged out, dressed inappropriately or anything other that  common sense would tell you that they should not be served.

Just because you don't like their looks, "lifestyle", religion, politics or hair color doesn't give you the right to discriminate.  And if you do, be prepared to have your knickers sued off each and every time until you get the message.

And have a very nice day, OK?

Maybe the baker's mistake was in being honest. He could have said, sorry, we're all booked for that week-end. Isn't that how it usually works? The customer goes off and finds someone who is happy to have their business. Perhaps offering a religious reason for turning down the gay couple is what set them off.

Here's he determination by the state Civil Rights Division  that the baker violated the state anti-discrimination law. There will be a trial in September

 

The Charging Party is a member of a protected class based on his sexual orientation. The Charging Party visited the Respondent's place of business for the purpose of ordering a wedding cake for his wedding reception. The evidence indicates that the Charging Party and his partner were otherwise qualified to receive services or goods from the Respondent's bakery. During this visit, the Respondent informed the Charging Party that his standard business practice is to deny baking wedding cakes to same-sex couples based on his religious beliefs. The evidence shows that on multiple occasions, the Respondent turned away potential customers on the basis of their sexual orientation, stating that he could not create a cake for a same-sex wedding ceremony or reception based on his religious beliefs. The Respondent's representatives stated that it would be unable to provide a cake because "according to the company, (the potential same-sex customers] were doing something 'illegal,"' and "because the owners believed in the word of Jesus." The Respondent indicates it will bake other goods for same sex couples such as birthday cakes, shower cakes or any other type of cake, but not a wedding cake. As such, the evidence shows that the Respondent refused to allow the Charging Party and his partner to patronize its business in order to purchase a wedding cake under circumstances that give rise to an inference of unlawful discrimination based on the Charging Party's sexual orientation.

 

Based on the evidence contained above, I determine that the Respondent has violated C.R.S. 24- 34-402, as re-enacted.

 

http://aclu-co.org/sites/default/files/Probable%20Cause%20Determination%20(2).pdf

 

See ACLU blog post here: http://aclu-co.org/case/masterpiece-cakeshop

If that link doesn't work when you click it, copy and paste it into your browser.

Thank you, John Hayes, for putting some case-specific information into these comments and reminding me that there is a process already at work here that will probably reach a reasonable conclusion without ever having to hear my opinion. What a relief!

The Respondent indicates it will bake other goods for same sex couples such as birthday cakes, shower cakes or any other type of cake

What a hate-monger.

 

The Respondent indicates it will bake other goods for same sex couples such as birthday cakes, shower cakes or any other type of cake.

The law the baker is accused of violating forbids discrimination against a person on the basis of sexual orientation. I suppose the baker's argument is that they are not discriminating against the people but against their activity (sounds familiar) and that they shouldn't be forced to produce a cake that because of its personalization (names, figures of two men or women, custom design) appears to endorse an activity or idea that they oppose.  

That argument would have been clearer if they had said that they were willing to sell the couple one of their standard design wedding cakes without names or figures. To be consistent, they would also argue that they should not be required to sell them any kind of personalized cake endorisng their marriage (shower, anniversaries, etc) so I was suprised to see the offer to sell a shower cake.

It seems to me that the personalization is the "expression" that they would claim to be protected - just as the photographer would argue that his or her artistic input to to the photos is protected expression which is different from simply printing photos someone else took. 

i don't know where the courts would come out on balancing compelled expression with discrimination. 

 

The baker and his litigious customers deserve each other.

If you had asked me yesterday, I would have said a shower cake was soap.

That argument would have been clearer if they had said that they were willing to sell the couple one of their standard design wedding cakes without names or figures.

Good point.  Another possibility could be that the baker could simply ask an employee who doesn't share his conscience objection to fill the order.  Or if there aren't any employees who can do that, he could have a subcontractor or referral arrangement with another baker.

 

 

What a hate-monger.

Jim,

I don't see the word hate used anywhere else in this thread other than by you. It is certainly possible to discriminate against gay people or black people without being "hate mongers."

What if a baker who was perfectly happy to sell wedding cakes to black couples and to white couples refused to sell a wedding cake to a mixed race couple? What if he had a sincere religious conviction that it was wrong to mix the races? Or what if he believed it was wrong to bring mixed-race children into the world because he believed they had hard lives.

Don't assume that because people are accused of discrimination they are being accused of hatred. 

What a hate-monger.

Jim,

I don't see the word hate used anywhere else in this thread other than by you. It is certainly possible to discriminate against gay people or black people without being "hate mongers."

What if a baker who was perfectly happy to sell wedding cakes to black couples and to white couples refused to sell a wedding cake to a mixed race couple? What if he had a sincere religious conviction that it was wrong to mix the races? Or what if he believed it was wrong to bring mixed-race children into the world because he believed they had hard lives.

Don't assume that because people are accused of discrimination they are being accused of hatred. 

What a hate-monger.

Jim,

I don't see the word hate used anywhere else in this thread other than by you. It is certainly possible to discriminate against gay people or black people without being "hate mongers."

What if a baker who was perfectly happy to sell wedding cakes to black couples and to white couples refused to sell a wedding cake to a mixed race couple? What if he had a sincere religious conviction that it was wrong to mix the races? Or what if he believed it was wrong to bring mixed-race children into the world because he believed they had hard lives.

Don't assume that because people are accused of discrimination they are being accused of hatred. 

Oops. It seemed like nothing was happening when I pressed "Save," so I kept pressing it. That's why there are three copies of my last message. 

What happened to the "edit" feature?

What I would love to know is what are Eduardo opinions of the particulars of the cases he describes sans all the legalese? 

I don't see the word hate used anywhere else in this thread other than by you. It is certainly possible to discriminate against gay people or black people without being "hate mongers."  What if a baker who was perfectly happy to sell wedding cakes to black couples and to white couples refused to sell a wedding cake to a mixed race couple? What if he had a sincere religious conviction that it was wrong to mix the races?

Regarding the word "hate" - fair enough, although without using the word, a few of the comments in this topic have implied hatred or ignorance or both on the part of the baker.

Regarding your mixed race couple scenario - that attitude on the part of the baker would arouse my anger; but in the US, I do think we're obligated to give some latitude to religious beliefs, even those we dislike or find difficult to understand.  Tom Cruise's public advocacy of Scientology has, ironically, shed a light on that religion that has resulted in it being subjected to a level of scorn that probably is unequaled in our society today.  But to the degree that Scientology is merely loony and not harmfully fraudulent or abusive, I think we have to put up with it.

In the wedding-cake case in Colorado, what harm has been done the couple?  Perhaps their feelings are injured; but in the US, we have to put up with injured feelings from those who don't agree with us.  Probably there are quite a few folks who hang out here who would be genuinely offended if a commenter scoffed at the notion that global warming is a problem; and those offended probably are even convinced that the scoffing attitude toward global warming is dangerous to our common welfare; but the scoffers shouldn't be sued, should they?

That WaPo article I linked to above reviews the history of conflict between the Christian Right and gay activists in Colorado (of which I wasn't aware until Eduardo brought this story to our attention).  I take that history to indicate that, in Colorado, most likely there are hundreds of thousands of residents, perhaps even a couple of million or more, who sympathize with the baker and his views.    Colorado already has civil unions.  It's quite possible that marriage will be legalized there someday soon.  If that happens, there still will be hundreds of thousands of people who see things the way the baker does.  Coloradans have to find a way to live in peace despite sharp disagreement.  I don't see this lawsuit as advancing that worthy objective.

 

I have a problem with a law that would penalize a merchant for refusing to engage in an activity he believes would harm a customer, even if the customer requests it.    Should a bartender be forced to serve a patron he knows is on the wagon?   Or the man who lives down the street who has already had one too many?

Speaking of the "thinness" of commercial interacions, this blog has an ad that if you click leads to this:

http://www.tynon.com/ldp/tynontc1.html?type=google&adv=TNa1g1&faid=02&gclid=CLeP-_y457cCFVKf4Aod3WQAgQ

Isn't that a bit inappropriate for a blog of this stature, or am I just being a  fuddy duddy?

I have a problem with a law that would penalize a merchant for refusing to engage in an activity he believes would harm a customer, even if the customer requests it. 

That's an argument that the baker himself has refrained from making, at least according to the Civil Rights Division determination posted by John Hayes. And wisely refrained, because it would be ludicrous for any baker to claim that he cannot provide a cake for a customer because it would harm that customer, unless perhaps the baker knows the customer suffers from diabetes mellitus, or he knows that the cakes he bakes are poisonous. The baker may believe that the customer's prospective marriage will somehow prove harmful, but surely not the cake.

No, this baker is claiming that he himself will suffer harm in the transaction by going against his religious beliefs, which is already a hard enough argument to make. He doesn't need anyone to burden him further.

 “…because it would be ludicrous for any baker to claim that he cannot provide a cake for a customer because it would harm that customer, unless perhaps the baker knows the customer suffers from diabetes mellitus, or he knows that the cakes he bakes are poisonous.”

 

By that logic, by penalty of law, the bartender would have to provide the drink to the alcoholic, the pharmacist would have to provide Plan B to the 12-year old daughter of his next door neighbor…

 

What a shame it would be if in our zeal to protect some people from unjust discrimination we visit it upon others.

Here's Eugene Volokh's legal argument as to why a wedding photographer shouldn't be required to photgraph a same-sex wedding:

http://www.volokh.com/2012/11/02/amicus-brief-in-elane-photography-v-wil...

John H. --

About "compelled speech" -- it seems to me that when the bakers place two male dolls on top of the cake they are not communicating/intending the message which the gay grooms want to be communicated, any more than the bakers are wishing "Happy birthday to Jack" when they write that on the top of a commissioned birthday cake.

The issue is:  if there IS a message, then whose message is it -- the grooms" or the bakers'?  I say it is obviously only the grooms, and therefore there is no compelled speech of the bakers.  One can repeat someone else's words without meaning them.

 

 

Ann, Volokh says his argument works for wedding phoographers but not caterers. I don't know where bakers fit into that. 

And although the cases haven't arisen yet (but surely will), what about liquor store owners, dry cleaners, liveried vehicle services, invitation printers, balloon vendors, florists, cummerbund salesmen, South American coffee growers, and maybe even Mendocino pot planters and Afghan poppy farmers? The whole world is implicated.

By that logic, by penalty of law, the bartender would have to provide the drink to the alcoholic . . . . 

Mark Proska,

Only if there were anti-discrimination laws protecting the rights of alcoholics to be served as many drinks as they wanted.

You seem to be forgetting that in the cases under discussion, there are state statutes forbidding discrimination on the basis of sexual orientation. The people alleging discrimination are bringing actions under their own state laws. 

Anti-discrimination laws don't protect everybody. They protect the specific groups named in the laws. I remember, for example, a case in New York where a landlord refused to rent an apartment to a lawyer, because he thought that lawyers were nothing but trouble. The lawyer tried to sue, but the judge ruled he had no basis for a discrimination suit because lawyers aren't a protected class in New York. So just because a landlord can't discriminate against black people doesn't mean he or she must rent apartments to anyone who applies. 

 

South American coffee growers . . .  and Afghan poppy farmers? The whole world is implicated. 

John Prior,

I wasn't aware there were worldwide antidiscrimination laws. Who passed them? Where exactly would I go to sue an Afghan poppy farmer for discrimination based on sexual orientation? The World Court? 

Don't you feel a need to limit your remarks to situations with at least some vague connection to the real world? 

 

You seem to be forgetting that in the cases under discussion, there are state statutes forbidding discrimination on the basis of [insert protected class here]…Anti-discrimination laws don't protect everybody. They protect the specific groups named in the laws.

 David Nickol—

 Not at all, I addressed  just that point in my comment, but perhaps I was too subtle for you.

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About the Author

Eduardo Moisés Peñalver is the John P. Wilson Professor of Law at the University of Chicago Law School. He is the author of numerous books and articles on the subjects of property and land use law.