> It sounds like our hypothetical baker can't object to giving service on any grounds by your explanation. Are there truly no limits in your mind?
Of course there are limits. There are all kinds of legal bases for discrimination. For example, if someone comes into your shop and starts screaming at the top of their lungs you can kick them out and refuse to serve them. But you can't legally discriminate based on skin color, gender, religious beliefs, sexual orientation, or any other legal behavior that occurs outside of your shop.
> Must the Muslim baker need to bake the gay marriage cake and deliver it to the ceremony just because some customer wants one made? Must the Christian baker bake a cake with a pentagram and goat head on it and deliver it to the sacrificial altar just because some customer wants one made?
If they offer delivery as part of their service, then yes, they do. If not, then they don't.
> Shall we force the black baker to bake a rebel flag cake with some racist epithet on it because some a-hole customer wants it?
That's a different situation. That's forcing the proprietor to make a particular kind of product rather than serving a particular kind of customer. If a white supremacist orders a cake from a black baker, then the baker has a legal obligation to comply (assuming the customer conducts himself civilly in the store). But no, you can't force someone to make a cake with the word "nigger" on it just as you can't force someone to make a cake with the word "fuck" on it. You just can't make the decision on whether or not to make the sale based on who the customer is.
> Can't we back off here and simply respect one another's personal or religious beliefs?
Of course we can. But we can't be legally obligated to.
> If the baker doesn't want to participate in the target celebration based on personal or religious beliefs, why not just amicably part ways?
Because that's not how we do business here in the U.S. Here in the U.S. if you want to run a business you are not allowed to serve only white customers no matter how deep and sincere your belief is that black people are the spawn of satan. Ditto for handicapped people. Ditto for Christians and Muslims and Raellians and atheists. And ditto for gay people.
I think there's some potential inconsistencies in what you're saying here.
Let the _particular kind of product_ (your emphasis), for the purposes of this discussion, to be the theme of the cake. The theme could be gay marriage, rebel flag/racist, birthday, straight marriage, etc. You seem to be operating from the premise that the theme-to-baker pairing matters.
And let the way the transaction goes here is: customer and baker negotiate over what goes on the cake/cake size/etc, collect details about delivery or pickup, exchange money, then the cake is made in time for the agreed upon date, and the cake is picked up by customer or delivered to the target site by baker.
What I hear you're saying is there's a difference in the discretion the baker has between making the racist-themed cake and gay marriage-themed cake. And, then you said,
> If they offer delivery as part of their service, then yes, they do. If not, then they don't.
You seem to indicate there's allowed baker discretion depending on whether the cake shall be delivered or not? What does that have to do with it? Participation is participation, right? Participation begins in the initial conversation about what goes on the cake. I think maybe you were talking about something else.
I'm just trying to understand your mental baker discretion matrix of offense-level vs. religious freedom vs. protected class. Like, legally would a white baker have to bake the rebel flag racist cake but not a black baker? Also, is there some legal wiggle room? For example, could you legally make the justification that a Muslim bakery would not have to bake the gay marriage cake because it's SO offensive/disruptive to them, but Christian bakeries WOULD have to make the gay marriage cake because Christians are normally so tolerant and docile? Maybe I'm not forming my questions properly, I'm just trying to untangle what you're saying.
> Of course we can. But we can't be legally obligated to.
Issue 1 is: can a baker be forced to make a cake for a gay couple? The answer is yes.
Issue 2 is: can a baker be forced to make an X-themed cake for some value of X? The answer is no.
AFAIK the only difference between a cake for a gay wedding and a straight one is the little statue on top. I suppose one might quibble over whether a baker can be forced to put two little groom statues on top of the cake they've made. But no one is actually fighting over that. What is at issue is whether a baker can refuse to make a cake -- any kind of cake -- for a gay wedding because they don't believe in gay marriage. And the answer to that is a definitive no.
(And a baker can choose to offer delivery or not. But if they offer delivery, they can't refuse to deliver to a gay wedding -- or a mosque or a synagogue or a satanic temple.)
> What you're saying about delivery makes sense, thanks for explaining.
My pleasure.
> Issue 1 is just Issue 2 in my mind with X filled in. These kinds of inconsistencies bother me.
But they are completely different. In case #2 we're talking about two different products. In case #1 we're talking about two different customers. That's the difference.
> That's a different situation. That's forcing the proprietor to make a particular kind of product rather than serving a particular kind of customer. If a white supremacist orders a cake from a black baker, then the baker has a legal obligation to comply
No, that's not true. You can serve, or not serve, anyone you like, so long as the reasons you don't serve them are not protected characteristics.
So a straight person who is denied purchase of a gay marriage cake has no legal standing, but a gay person being denied purchase of a gay marriage cake does have legal standing? It all hinges on what the customer declares themselves to be, the slip-and-fall lawyers must love this kind of thing.
I know this is a silly premise, but it sounds like unequal treatment.
A straight person who goes to a gay balers and tries to buy a straight wedding cake for his straight wedding, and who is refused service by gay bakers who say "We don't make straight wedding cakes!" has a case. He was denied service based on a protected characteristic: his sexuality.
If he asks for the cake and the gay bakers say "sadly we are fully booked and we just don't have time to male the cake for your planned wedding date" then he doesn't have a case because there's no protected characteristic stuff happening.
Ok, but is this discrimination based on sexuality only? It doesn't seem so black and white to me because there is a religious objection/religious freedom component to it. This is similar (albeit a much less grave subject) to the Amish who weren't eligible for the draft because they were pacifists religion-wise.
Yes, the "we're all booked" excuse seems like a plausible, but dishonest, out. I suppose another out would be to take the order and then outsource the work to some baker who doesn't have any qualms about the nature of the work.
A gay / straight baker cannot refuse service based on sexuality
A religious baker cannot refuse service based on religion
A gay baker cannot refuse service based on religion
It follows that a religious baker can't refuse service based on sexuality.
Your concientious objecter point is good. I don't really have much of an answer. I suppose that asking a man to kill another man is different to asking a man to bake a cake for another man. And we used to threaten to execute concientious objectors - we did put them in prisons.
Edit: as Eddie Izzard would say - "cake? Or DEATH?"
Yep, being a conscientious objector wasn't enough to get off the hook, thank goodness for volunteer military.
Well, so I think I can comment on the "gay sex, big deal?" question from a deeply Christian religious/believer person's standpoint.
I'm not hardcore into the bible, but I took some bible study on the old testament for the first time this year. We studied Moses and we ran through the "man laying down with another man being detestable to God" passage and the study notes didn't really address it directly other than to say God gave the people sexual purity laws and you gotta pray about it and decide for yourself. As I recall there was also a bit in there about chopping a woman's hands off if she touched a man's junk inappropriately, so yeah, lots to pray about...
Well ok fine, so I get into the discussion group, and the men were much more specific and clear on the topic - the Word said gay sex is abhorrent to God, so there you go, case closed. I can tell you one of the main points they wanted to get across to me was that God doesn't just want your praises, He wants you to OBEY.
So, with that kind of mindset, I can see how deeply screwed a religious baker would be if the law tells them they must do one thing or get sued and God is saying, no, you gotta set yourself apart from that and not participate in or bless that thing.
The men in my discussion group also said that Jesus discussed marriage specifically in the context of man and woman too, although I'm not well-versed in the new testament and I never read that myself. One of the most interesting things I learned was Jesus said that God HATES divorce because of what it does to the family.
You're not supposed to refuse to do business with someone on the basis of your religion (or theirs). However, even though it's illegal, but plenty of people get away with it - "We don't like yer kind in here!"
Getting out of the draft is different, you aren't offering a business to the government.
Of course there are limits. There are all kinds of legal bases for discrimination. For example, if someone comes into your shop and starts screaming at the top of their lungs you can kick them out and refuse to serve them. But you can't legally discriminate based on skin color, gender, religious beliefs, sexual orientation, or any other legal behavior that occurs outside of your shop.
> Must the Muslim baker need to bake the gay marriage cake and deliver it to the ceremony just because some customer wants one made? Must the Christian baker bake a cake with a pentagram and goat head on it and deliver it to the sacrificial altar just because some customer wants one made?
If they offer delivery as part of their service, then yes, they do. If not, then they don't.
> Shall we force the black baker to bake a rebel flag cake with some racist epithet on it because some a-hole customer wants it?
That's a different situation. That's forcing the proprietor to make a particular kind of product rather than serving a particular kind of customer. If a white supremacist orders a cake from a black baker, then the baker has a legal obligation to comply (assuming the customer conducts himself civilly in the store). But no, you can't force someone to make a cake with the word "nigger" on it just as you can't force someone to make a cake with the word "fuck" on it. You just can't make the decision on whether or not to make the sale based on who the customer is.
> Can't we back off here and simply respect one another's personal or religious beliefs?
Of course we can. But we can't be legally obligated to.
> If the baker doesn't want to participate in the target celebration based on personal or religious beliefs, why not just amicably part ways?
Because that's not how we do business here in the U.S. Here in the U.S. if you want to run a business you are not allowed to serve only white customers no matter how deep and sincere your belief is that black people are the spawn of satan. Ditto for handicapped people. Ditto for Christians and Muslims and Raellians and atheists. And ditto for gay people.