On Wedding Cakes, Gay Weddings, And Free Speech

wedding cake

This is a reply to a comment left by MJJ on the Muslim Ban thread. I’m putting my response here, and hopefully further discussion of this issue will move to this thread.

I didn’t think Melissa’s cakes has gone bankrupt? They were fined $135,000, but they also received over $500,000 in donations to help them pay the fine, so if they really did go bankrupt it’s hard not to suspect that it wasn’t because of the fine.

Personally, I’m iffy about that case – both the size of the fine, and the ruling itself. But it’s a complex issue. IF we say that wedding cake makers can discriminate, how about grocers and hotels? How about doctors, pharmacists, and lawyers? Many of the same people arguing that Melissa’s Cakes should have been able to discriminate against a gay wedding say the same thing about city clerks – but it seems REALLY dubious to say that government employees should be able to pick and choose who to provide government services to.

This sort of discrimination has, in the past, been a cudgel for bigots to punish marginalized groups with, by making some basic necessities of life unavailable on the market to disfavored people. Everyone has a right to say and think whatever they want; but businesses the provide public accommodations (like selling to people) are more limited. What if the Kleins had refused to provide a cake for a wedding of two Asian customers – should that be legal, in your view?

Regarding two other arguments you made, I’m going to quote from the Judge’s ruling in the Colorado case. Regarding the idea that they weren’t discriminating against lgb people:

Respondents deny that they hold any animus toward homosexuals or gay couples, and would willingly provide other types of baked goods to Complainants or any other gay customer. On the other hand, Respondents would refuse to provide a wedding cake to a heterosexual customer if it was for a same-sex wedding. The ALJ rejects Respondents’ argument as a distinction without a difference.

The salient feature distinguishing same-sex weddings from heterosexual ones is the sexual orientation of its participants. Only same-sex couples engage in same-sex weddings. Therefore, it makes little sense to argue that refusal to provide a cake to a same-sex couple for use at their wedding is not “because of” their sexual orientation.

And regarding the idea that baking a cake is an act of speech (which might therefore receive first amendment protection):

The undisputed evidence is that Phillips categorically refused to prepare a cake for Complainants’ same-sex wedding before there was any discussion about what the cake would look like. Phillips was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage. After being refused, Complainants immediately left the shop. For all Phillips knew at the time, Complainants might have wanted a nondescript cake that would have been suitable for consumption at any wedding. Therefore, Respondents’ claim that they refused to provide a cake because it would convey a message supporting same-sex marriage is specious. The act of preparing a cake is simply not “speech” warranting First Amendment protection.

The same thing is true of Melissa Klein; she refuses to bake a cake for a same-sex wedding, regardless of what message the cake conveys or what the content of the cake is. I don’t see how her speech is infringed by a generic wedding cake with no words or figures on it, for example. And if providing a generic good is an infringement on speech, then who else can claim that providing goods to a wedding is speech? The company that sells the aisle runner? The company that sells the disposable plates?

This entry posted in Free speech, censorship, copyright law, etc., Same-Sex Marriage. Bookmark the permalink. 

146 Responses to On Wedding Cakes, Gay Weddings, And Free Speech

  1. 101
    nobody.really says:

    The Republicans had to pass continuing resolutions because they didn’t do their f***ing jobs and pass actual budgets.

    I am shocked – SHOCKED – at such negligence. According to the Congressional Research Service,

    The Congressional Budget and Impoundment Control Act of 1974 (CBA) provides for the annual consideration of a concurrent resolution on the budget….

    The CBA establishes April 15 as the target date for congressional adoption of the budget resolution. Since FY1977, Congress has frequently not met this target date. In many instances in recent years (FY1999, FY2003, FY2005, FY2007, FY2011-FY2015, and FY2017), Congress did not adopt a budget resolution. [Citations omitted.]

    For better or worse, passing budgets is as much the exception as the rule.

    That wasn’t on Democrats, either. That was on their right wing refusing to compromise with their moderates.

    In other words, the Republican Right doesn’t get everything they want, either. They want a certain kind of budget, but haven to settle for continuing resolutions that fall short of their ideals.

    There has never been a Democratic congress that has obstructed the way the last three Republican ones did.

    Ok, I’ll grant you, Congressional Republicans have been unprecedentedly obstreperous with Obama–and Democrats may well hope to use the same strategy against the Republicans.

    [S]ome Democrats are supporting some of [Trump’s] horrible, horrible nominees and letting votes go forward.

    “Letting votes go forward”? As opposed to what—pulling the fire alarm?

    It is precisely because Senate Democrats decided, over the objections of Republicans, to remove the traditional power of the minority party to stop confirmation votes from going forward (a/k/a implemented the “nuclear option”) that Democrats are now powerless to stop these confirmations. Nevertheless, Democrats have marshalled what little resources they have to the best of their abilities.

  2. 102
    nobody.really says:

    What compromise to you expect pro-choice people to make?

    Well, we’re getting pretty far afield now, but since you asked….

    People anticipating procreating should be liable if they engage in conduct other than seeking an abortion that poses undue risk to their resulting child. (For example, pregnant women consuming harmful recreational drugs.)

    Some pro-choice people express concern that such laws imply fetal “personhood.” For me, they don’t. Instead, they imply externality.

    Kids are a form of pollution: Parents choose to procreate and/or raise kids, but the consequences of those decisions will be felt by people who had no role in those choices. In short, society has an interest here that deserves to be protected. We do not currently compel people to procreate and/or raise kids. But if people choose to do so, society has an interest in ensuring that they do it well. Where child rearing is concerned, we require compulsory education, for example, and we sanction parents who fail to comply. I see no reason why society’s interest in promoting healthy procreation shouldn’t warrant similar protection.

    Viewed from within our contemporary legal norms, the choice to refrain from procreating–whether via abstinence, birth control, abortion, or otherwise–does not create an externality, and thus does not warrant the same restrictions.

    In any event, concerns about “personhood” are irrelevant to the analysis.

  3. 103
    Kate says:

    For better or worse, passing budgets is as much the exception as the rule.

    Yes, but if your party is in control of congress, and doesn’t pass a budget, you don’t get to style passing a continuing resolution as a “compromise” with the other party.

  4. 104
    Charles S says:

    The “well, the election could have been shifted by almost anything, so therefore we should have erected my hobbyhorse,” line of argument is painfully ridiculous.

    I tell you, if only Clinton had made more of a play for vegans! 7% of Americans are vegans! Shifting even a small portion of them from non-voters to voters would have won Clinton the presidency! Henceforth, appeals to veganism need to be central to Democratic policy!

  5. 105
    Kate says:

    People anticipating procreating should be liable if they engage in conduct other than seeking an abortion that poses undue risk to their resulting child. (For example, pregnant women consuming harmful recreational drugs.)

    nobody.really – have you ever had a child – or been the partner to a person going though a pregnancy? Do you have any concept of how little is known about what may or may not cause harm to a fetus? Have you seen a list of the things that pregnant women are supposed to avoid “just in case” – hair dye, undercooked meat and eggs, STRESS ffs?
    Just take opiates, for example. If a woman addicted to opiates suddenly stops taking them when pregnant, that can lead to miscarriage. On the other hand, there is actually little evidence that opiates will harm a fetus. But, the reality that opiate addicted women who become pregnant should continue to consume opiates in moderation, and be phased off for the benefit of the fetus isn’t likely to make it into legislation – is it?
    The time in a pregnancy when alcohol is likely to cause most harm is early, even before a woman might know she is pregnant. Should all women who might become pregnant be required to abstain from alcohol, just in case?

    Kids are a form of pollution

    That is repulsive. Kids are human beings. Disabled children are human beings.

  6. 106
    nobody.really says:

    The “well, the election could have been shifted by almost anything, so therefore we should have erected my hobbyhorse,” line of argument is painfully ridiculous.

    Uh … ok, maybe so. But also accurate. If the margin of victory is small, there are multiple plausible scenarios that could have changed the outcome. As far as I can tell, that’s just a function of math.

    And in any event, I proffer both the theory that the Democrats could have been more moderate AND that they could have been more doctrinaire. So I’m arguing for my hobby horse AND for a horse of a different color. Which just illustrates the point: Various scenarios might have plausibly produced a different outcome.

  7. 107
    nobody.really says:

    People anticipating procreating should be liable if they engage in conduct other than seeking an abortion that poses undue risk to their resulting child. (For example, pregnant women consuming harmful recreational drugs.)

    nobody.really – have you ever had a child – or been the partner to a person going though a pregnancy?

    Yup, both.

    Do you have any concept of how little is known about what may or may not cause harm to a fetus?

    Fair enough. Let’s make that “People anticipating procreating should be liable if they engage in conduct other than seeking an abortion that they have cause to know poses undue risk to their resulting child.”

    Kids are a form of pollution.

    That is repulsive. Kids are human beings.

    Now I have to ask: Have you ever had a child? :-)

    I say “pollution” as the familiar illustration of externality. And I mention externality as a familiar example of a phenomena that may warrant regulation because the consequences fall on those who cannot avoid them.

    Again, if you choose to have an abortion, as far as I am concerned, the only legally cognizable person affected is you: no externality. In contrast, if you choose to give birth and/or raise a child, all of society may be affected: big externality. This difference justifies different regulatory treatment.

  8. 108
    pillsy says:

    1. Why must liberals always be the ones to compromise?

    If it were conservatives that were the ones who were constantly saying this, I would be much more swayed by your analysis. Of course conservatives are going to say that, for all the reasons you outline and more.

    The problem is that, especially but not solely since Trump’s election, I’ve seen supposed non-conservatives assert that liberals are the ones who should be compromising in order to keep guys like Trump out of the White House. The right got that advice following Romney’s defeat in 2012, to be fair, but they were smart enough to reject it utterly.

  9. 109
    pillsy says:

    What makes it so clear that entrenching on issues like forcing photographers to attend gay weddings can only turn off Republican voters? Politics is largely tribal.

    Exactly. The kind of people who want cakes baked for their gay weddings are very clearly part of the Democratic tribe, while the people who want to refuse to bake cakes for gay weddings very clearly aren’t. Hell, in general small business owners like bakers are a very heavily Republican constituency to begin with, even when you subtract egregious reactionary dingbattery from the picture. Thus, worrying about the feelings of bigoted bakers at the expense of people getting gay weddings is exactly the sort of tribal signaling that Democrats should not be doing.

    If the GOP hadn’t just been swept into complete control by Trump I would be more receptive to the idea that being very tribal is bad strategy. If they hadn’t embraced “Fuck Your Feelings” as a campaign slogan, I would be more receptive to the idea that I should be more solicitous of the feelings of the poor oppressed bakers.

  10. 110
    Sebastian H says:

    Nobody.really

    “I agree–but I suspect we might disagree about what what behaviors signal membership in the Democratic tribe. In this context, I’d say that solicitude for the concerns of the LGBT signals such membership. I’m sensing you have some different signal in mind.”

    If you think that LGBT votes are at risk, the Democratic Party could have nominated someone who supported gay marriage before Obama, worked as senator against the end of Don’t Ask Don’t Tell before it got to the point that even a majority of Republicans were against it, wasn’t involved in supporting a candidate who actively campaigned on the Defense of Marriage Act, and didn’t think that Nancy Reagan was a hero during the AIDS crisis. But they nominated Clinton instead of Sanders (or any of a number of better Democrats on gay issues). So if you’re worried about signalling gays that they aren’t wanted in the Democratic Party you’re right that the party did stupid things. I don’t think anyone is actually worried about that gays are being pushed out the Democratic Party, so I may be misunderstanding your point.

    Lower economic status white people from the Rust Belt however, have expressed worry that they are being pushed out of the Democratic Party. So maybe we could have taken their concern seriously 20, 10 or 5 years ago. Their expressions of concern aren’t new (though they are often made fun of by Democrats, which I’m sure doesn’t help).

    The “well, the election could have been shifted by almost anything, so therefore we should have erected my hobbyhorse,” line of argument is painfully ridiculous.

    I tell you, if only Clinton had made more of a play for vegans! 7% of Americans are vegans! Shifting even a small portion of them from non-voters to voters would have won Clinton the presidency! Henceforth, appeals to veganism need to be central to Democratic policy!

    I’m pretty sure you’re not arguing that NOTHING effects elections, so we are talking about which things are important and which things aren’t. You can agree or disagree, but otherwise your comment isn’t helping us discern which ones are important and which ones aren’t. If you were seriously advancing the idea of vegan outreach, I’d point out that the majority of them are in areas already strongly voting Democratic which isn’t likely to help on the Presidential scale. The same is not true for other at-risk-of-not-voting-Democratic groups.

    The argument comes down to whether or not you believe that purposely increasing polarization is good for a multi-cultural society, and specifically if it is to the advantage of Democrats to increase polarization.

    I would tend to say that when possible it is hugely in the interest of the country to decrease polarization.

    Now it is certainly possible that something which is good for the country isn’t in the best interest of politicians seeking power. So in theory, you might seek to increase polarization so that Democrats can gain power. But that doesn’t seem to be the case either. The evidence is mixed to be sure, but it seems to lean that increased polarization helps Republicans and hurts Democrats. This makes sense to me as a matter of political philosophy and practical reality.

  11. 111
    Charles says:

    Hand-waving about how some large-scale social change would have made a tiny difference in a critical but extremely close election is pointless because the arguments about what tiny difference would have happened are unsupported and unsupportable.

    The question of whether polarization is good or bad (for the country or for the Democrats), and what actions increase or decrease polarization, are entirely separate from arguing that some broad political/social course of action over the last 50 years would have caused Clinton to just barely win instead of just barely losing. Argue them on their merits. Bringing in the imagined effect on Clinton-Trump adds nothing to the argument.

    In Oregon, we got LGBT inclusion in public accommodation law as a direct result of losing the marriage equality fight, but we started the marriage equality fight in Oregon (although we did it partly because we knew that they were about to start the fight, in response to the Massachusetts marriage equality SC decision). Did LGBT inclusion in public accommodation law create more polarization in Oregon? I have no idea. Did it hurt Democrats in Oregon races? Pretty clearly not, or maybe it did, who knows, maybe without LGBT inclusion Democrats would have done slightly better (they did very well anyway). There’s no evidence for that, but there isn’t really any evidence against it. Maybe pushing for marriage equality in 2012 would have helped Democrats in Oregon. Again, no evidence either way, so we can make up whatever nonsense we want and it will be hard to substantively rebut.

    As it happens, the Oregon legislature is a single vote short of a Democratic super-majority required to pass tax increases required to prevent a massive budget shortfall, so any just-so story you or I want to make up about what tiny effect the last 13 years of LGBT law-making in Oregon has had on Democratic electoral prospects, we could tie that effect to an important final outcome other than the important outcome of a massive increase in LGBT legal rights in Oregon, but that would still make our just-so story tiresome bullshit.

    Meanwhile, national support for LGBT equality has risen steadily for the past 20 years. It has risen among pretty much every subgroup in the country, evangelicals included. I’m sure anti-gay and anti-trans agitation has been useful for Republicans in some elections. I’m sure it has harmed Republicans in some elections (bye-bye, Pat McCrory!). I’m sure fighting for LGBT rights has helped some Democrats in some elections. I’m sure it is has hurt some Democrats in some other elections. I doubt that the information exists to determine that overall, and I’m sure that nothing that anyone has referenced in this discussion even comes close to moving in the direction of determining that. Certainly “Clinton would have won if…” claims don’t add anything on this question.

    Is this really even an issue that is increasing polarization, when every subgroup is moving in the same direction on the issue? That looks like an issue where there is decreasing polarization.

    You and nobody.really have a fundamental argument that racists should be able to exclude black people from everything except essential services (and homophobes should be able to do the same to LGBT people, and religious bigots etc…) and that that right to treat others as second-class citizens would create a more functional multi-cultural society (nobody.really’s desired structure is admittedly absurdly more convoluted than that). That argument is not improved by tacking on an argument that if your preferences has been enacted over the last half century (starting with private dance lessons from a dance studio as public accommodation, 1960, and all of the attendant laws that supported that interpretation passed in the 1950s and 60s), then maybe Democrats would have done marginally better in elections this year, leading to a Clinton presidency.

  12. 112
    Sebastian H says:

    So to be clear, you think that a photographer should be able to be sued over not wanting to photograph a gay wedding?

    You think that if a Christianist neo-Nazi group wanted to throw a party, they should be able to sue (religious discrimination) if a Jewish party planner didn’t want to participate?

    There really is a level of forcing people to do things they don’t want to do that becomes very ugly. Who chooses which things we can force? What are the limits? You don’t appear to want to look closely at the choices or their effects on the political dynamic.

  13. 113
    Charles S says:

    I think that a photography company that publicly advertises that they photograph weddings or events should be required to provide that service for gay weddings. I think that it would be legitimate for them to subcontract the work if they feel they are not capable of working to their standard quality under those conditions.

    I think California’s treatment of political belief as a protected class is probably a bad idea, and that most states would not treat refusing to work for white supremacists because you object to the political beliefs of their White Power church as being religious discrimination.

    People who don’t want to serve the public can organize their businesses so that they don’t serve the public, or they can move to states where they are still free to be bigots in their place of business.

    Also, public accommodation discrimination is very hard to prove if you aren’t overt about it- none of the cases I’ve seen so far for homophobic wedding discriminati0n cases have been cases where the original interaction was something other than, “We don’t do any work for same-sex weddings/commitment ceremonies!” I’m sure that there are plenty of cases of “Oh wait, you meant June 3rd of this year? No, we’re totally booked for that date, and for every date anywhere near there, I’m so sorry we can’t help you,” and those suck too, but they don’t get prosecuted.

    No one is ever forced to work for or serve anyone. There are just limitations on what kind of business you can be in if there are people in certain categories that you are unwilling to serve. For most people, those limits are set by their employer anyway. For a small number of people who are lucky enough to be able to be business owners, some of those limits are set by the state (in some states).

  14. 114
    nobody.really says:

    You and nobody.really have a fundamental argument that racists should be able to exclude black people from everything except essential services (and homophobes should be able to do the same to LGBT people, and religious bigots etc…) and that that right to treat others as second-class citizens would create a more functional multi-cultural society (nobody.really’s desired structure is admittedly absurdly more convoluted than that).

    * * *

    I think that a photography company that publicly advertises that they photograph weddings or events should be required to provide that service for gay weddings. I think that it would be legitimate for them to subcontract the work if they feel they are not capable of working to their standard quality under those conditions.

    Let me see if I understand what you’re proposing: A businessman could (1) publicly advertise to provide some good or service, and then (2) refuse to provide that good or service, even for the purpose of avoiding the need to associate with members of a protected class—yet still evade liability if the businessman finds someone else to provide the goods/services demanded?

    And this proposal would be different than my proposal … how?

  15. 115
    Jake Squid says:

    And this proposal would be different than my proposal … how?

    In your proposal the business merely suggests alternative sources of the service or goods. What Charles is saying is that the business must contract for the services it refuses to offer. In your proposal, the onus is on the customer to find an alternative and transact that business. In the model Charles puts forth, the onus is on the original business to find a way to provide the goods or services for the customer.

    It’s a small difference, semantically, but a big difference in practice.

  16. 116
    Harlequin says:

    And this proposal would be different than my proposal … how?

    In addition to what Jake Squid said, one of them involves a business telling a customer they have a moral objection to their relationship/orientation, and one does not.

  17. 117
    nobody.really says:

    Charles S:

    You and nobody.really have a fundamental argument that racists should be able to exclude black people from everything except essential services (and homophobes should be able to do the same to LGBT people, and religious bigots etc…) and that that right to treat others as second-class citizens would create a more functional multi-cultural society (nobody.really’s desired structure is admittedly absurdly more convoluted than that).

    * * *

    I think that a photography company that publicly advertises that they photograph weddings or events should be required to provide that service for gay weddings. I think that it would be legitimate for them to subcontract the work if they feel they are not capable of working to their standard quality under those conditions.

    nobody.really:

    And this proposal would be different than my proposal … how?

    Jake Squid:

    In your proposal the business merely suggests alternative sources of the service or goods. What Charles is saying is that the business must contract for the services it refuses to offer….

    It’s a small difference, semantically, but a big difference in practice.

    Indeed it is, as we’ll discuss.

    There’s also another difference: My proposal requires that the substitute goods/services be comparable. And how do we promote comparability? My proposal has two enforcement mechanisms: First, the person making the referral bears liability if a fact-finder later concludes that the goods/services were NOT comparable. Second, the initial provider must inform the customer, and the consumer gets to interact with the new provider beforehand to make the judgment about comparability.

    In contrast, Charles’s proposal provides NO mechanism for promoting comparability of quality or cost, or for promoting communication with the customer. The gay couple could contract with a Maxim photographer to do the wedding, and the photographer could say to himself, “Ick, gays!” Only on the day of the wedding would the happy couple learn that the photography job was subcontracted to a five-year-old with a disposable camera.

    Now, I can only assume that Charles does not intend this result. I expect he intends for the subcontracted provider to be comparable in quality and price, and for the customer to learn about the substitution promptly. Charles may even have in mind some mechanism for enforcing all these arrangements.

    But Charles hasn’t gotten around to spelling any of that out yet. Which is too bad.

    Charles regards some aspects of my proposal as absurd (lacking in purpose). Why? Once possibility is that aspects of my proposal simply lack a purpose, and should be pruned. I’m open to that possibility; that’s why I invite people to suggest alternative mechanisms for achieving the same results–and I’m grateful that Charles has offered a proposal.

    But another possibility is that Charles simply hasn’t seen the purpose yet. And wrestling with the practicalities might be eye-opening.

  18. 118
    Sarah says:

    Is Charles’s proposal actually a proposal, though? I was under the impression that was how businesses are currently allowed to operate. I could be wrong, though. Are businesses that find themselves unable (for whatever unspecified reason) to fulfill an order for a customer not allowed to subcontract out the work, as long as the customer gets what they paid for?

  19. 119
    Charles S says:

    nobody.really,

    I didn’t spell out the mechanism because the mechanism is already existing law. My proposal is that we continue to use long-established law. If you want to know how my proposal handles substandard service, you can look up how existing law handles discriminatory substandard service.

    The answer is that there isn’t a great legal solution to the substandard service problem, largely because of the plausible deniability problem, but you can look up the Cracker Barrel case for a good example of the process and limitation. I’m not offering a solution to the substandard service problem, beyond what exists currently, but you aren’t offering a solution to it either.

    Substandard service will continue to be a problem under your proposed version of public accommodation law, as there will be lots of businesses that want to refuse service but can’t offer an equivalent, or who prefer to offer substandard service rather than go through the trouble and legal risk of refusing service.

    Additionally, while the substandard service problem is well-recognized and long-standing, I know of no affected group that argues for the restoration of the right to refuse service as a solution to the substandard service problem. I think many people’s feeling is that validating the right to refuse service (as your proposal does) validates provision of substandard service (“Just be glad we are willing to serve your kind at all!”), rather than providing a clean division between people who want to provide no service and people who want to provide standard service. And that people actually prefer bad service to no service.

    For a service like wedding photography, I’d assume that a good contract would specify who will provide the service, whether the business subcontracts, and the rights of the client with respect to the subcontractor. People providing substandard service in public accommodations that involve contracts face the additional risk of contract law protections, and people facing discrimination in public accommodations that involve contracts would be well served to evaluate the contract carefully.

  20. 120
    gin-and-whiskey says:

    Questions for the folks who support the required cake-baking:

    1) I assume you all believe that there’s a category of “things which you dislike, but where you don’t think the solution should come from government.” Where is that category line for you? How far outside it is “unavailable wedding photography”? (*1)

    2) Do you generally agree that the government should be able to regulate any business merely because it sells to the public? If not, are you concerned with the means that the government used to assert jurisdiction in this case? (*2)

    3) What value do you put on freedom of association, in your own life? How much control are you willing to cede over who you work for; where you choose to work; whether you want to work for the customers at Company A versus Company B; who you choose to live with? (*3)

    *1: This is my own perspective, FWIW. It isn’t a “non problem,” it’s a problem which we should not assail with the sledgehammer of regulation.

    *2: Historically, “going into business for yourself” was one of the most cherished ways to maximize your freedom of choice and association, and to take fewer orders from the man. Sure, there were always some regulated careers but by and large you could do what you wanted, somewhere. The “holding out to the public” jurisdictional claim makes that impossible.

  21. 121
    gin-and-whiskey says:

    Charles S says:
    March 22, 2017 at 12:10 am
    I think that a photography company that publicly advertises that they photograph weddings or events should be required to provide that service for gay weddings. I think that it would be legitimate for them to subcontract the work if they feel they are not capable of working to their standard quality under those conditions.

    The problem with substitution is that no customer wants it. There is always a gray area unless you’re selling packaged widgets. The person providing the substitute always feels like they’re at the top of the gray area (overpaying) and the person getting it always feels like they’ve received a lower-quality product. Not to mention that it adds a needless level of complexity.

    You should just allow an ad which says “…except for gay weddings, we don’t do those” and which thereby allows the customer to make a good selection of someone else in the first place. Otherwise they’re dealing with someone who hates them and asking the hater to make the choice of substitute. Not to mention that the customer is wasting time, which is appealing to activists but not normal folks.

    Speaking of the argument

    …that racists should be able to exclude black people from everything except essential services (and homophobes should be able to do the same to LGBT people, and religious bigots etc…)

    In all seriousness: Imagine that (a) non-essential businesses could discriminate so long as you publicly advertised it; and (b) there were huge penalties for failing to live up to your ad. What percentage of businesses do you actually think would discriminate? How many bakeries would give up all of their gay customers, and gay referrers, and gay supporters, and their friends, in order to avoid making gay wedding cakes?

  22. 122
    nobody.really says:

    I didn’t spell out the mechanism because the mechanism is already existing law.

    Uh … really? It’s been a few years since Contracts class, and contracts is a matter that varies by state, but this is not my recollection. So I type “personal service agreements” into Google, and it completes the phrase with “cannot be assigned.” Here’s a link for a standard clause entitled “Non-Assignable Contract (Personal Service Agreement)”.

    An article at US Legal.com begins—

    Generally, all ordinary business contracts are assignable. However, contracts for personal services or those involving a relationship of confidence are not assignable by either party.

    A discussion paper from Harvard’s Olin Center for Law, Economics, and Business states at 7–

    In the assignment (often termed “delegation”) of performance obligations, the general default rule is that performance obligations are not assignable “only to the extent that the oblige has a substantial interest in having that person perform or control the acts promised.”12 The general implementation of this standard is the prohibition on delegation of “personal service contracts.” [Citing Sisco v. Empiregas, Inc., 237 So. 2d 463, 466 (Ala. 1970) (“personal service contracts are not assignable”); E. ALLAN FARNSWORTH, CONTRACTS § 11.10 at 744 (3d ed. 1999) (“One of the most significant of [the substantial-interest] circumstances is the extent to which the performance is ‘personal’ . . . .”).]

    Moreover, does the idea of people assigning out contracts for personal services even make sense? People seem rather particular when hiring wedding photographers, picking wedding cakes, picking flower arrangements, picking reception venues, etc. (I know I was!) If vendors could simply swap these things out willy-nilly, why would couples go through all the trouble of picking specific people? Talk about yer last-minute wedding substitutions….

    Hey Amp, you were in the wedding biz. How common was it for vendors to sub-contract out their work without telling the couple beforehand?

  23. 123
    Charles S says:

    Elane Photography subcontracted wedding photography work. This is established as a matter of fact. Are you saying it was illegal for them to do that? Or was their contract not a personal service contract? Or perhaps, quoting one of your links:

    “Generally, all ordinary business contracts are assignable. However, contracts for personal services or those involving a relationship of confidence are not assignable by either party. Such contracts are assignable if a specific provision in the contract provides so.[i] The other party to the contract should also agree to the assignment in a personal or confidential contract. ”

    So, if the contract specifies that the service is assignable, then the service is assignable and can be subcontracted. So if you are a bigoted wedding photographer and don’t want to personally photograph weddings involving British citizens, make your standard contract make your service assignable. Then, if a British citizen hires you, or if you find out after the contract is signed that one of the participants is British, you can subcontract your work. If you aren’t a bigot and are willing to personally attend and photograph all weddings, then don’t make your standard contract make your services assignable.

    If I read the last line of that quote correctly, if you make your personal service contract assignable, you still need to get agreement from the client on the replacement person, so the 5 year old with a disposable camera ploy is probably not going to work.

    Negotiating something other than your standard contract, the thing you provide as a service to the public, is not a public accommodation in any state as far as I can tell.

    When you hire a florist company, you are hiring the company to do the work. You are generally not assured that a specific employee of the company will actually arrange the flowers.

    But yes, if you choose to offer your unsubstitutable personal service to the public, then I agree that you should be bound by that offer and should actually have to provide your personal service to the public. Offering your personal service to the public is a choice one makes, it is not forced on anyone.

    If I misstated existing law, then I misstated existing law (IANAL). In any case, I am not proposing a new carve out specifically for homophobes. I’m proposing that homophobes provide or not provide their services in exactly the same way that racists have been providing or not providing their services for 50 years or more.

  24. 124
    Sebastian H says:

    Charles, you are misstating the law. Nothing in the decision on Elane Photography suggests that a solo photographer who never subcontracts is free to avoid gay weddings. In fact nothing in the court decision whatsoever turns on any subcontracting issue. The state of the law does NOT allow you to avoid it by subcontracting.

    You are also misstating how sub-contracting works for specialized services. For personal services it requires consent of the hiring party, for obvious reasons. If someone were to hire Amp to draw a cartoon, it wouldn’t be ok for him to them say “oh by the way I’m having Sebastian draw it”.

    Last, I would have sworn that someone linked to something that mentioned subcontracting and Elane, but I can’t find it now. Can you point me to that? I don’t want to be the only person uninformed about the subcontracting facts now that they are turning out to be so important.

  25. 125
    Sebastian H says:

    Never mind, I found it here. The only place subcontractors are mentioned at all is point 3. Literally nothing in the opinion turns on that point, and it is not at all clear from point 3 that such people were hired to REPLACE Elaine (I don’t have access to the underlying Exhibit 4) rather than aid Elaine at a large event. Nothing further in the decision suggests that Elaine herself could have avoided the lawsuit by replacing herself with some other photographer if the plaintiffs had not requested it. In fact the opinion seems to suggest otherwise:

    In paragraph 20 we have the e-mail that apparently caused the problem: “Sorry if our last response was a confusing one. Yes, you are correct in saying we do not photograph same-sex weddings, but again, thanks for checking out our site! Have a great day.”

    In paragraph 21 we find “Ms. Willock was also fearful, because she considered the opposition to same-sex to be so blatant. Ms. Willock that that Ms. Elaine Huguenin’s response was an expression of hatred at what Ms. Willock had hoped to be a happy occasion.”

    Note that the refusal is probably the politest refusal imaginable. If that refusal is going to cause fear and be interpreted as an expression of hatred, it isn’t going to get better by saying “I don’t personally photograph same-sex weddings but I will have someone else do it”.

    The meat of the ruling is the public accommodation section in which Elane Photography was found to advertise on the internet, on a website, and in the Yellow Pages. Such advertising was “available to anyone who wished to access it”.

    It also specifically states “The express provisions of the statutory definition do not exclude a business entity which is by its nature expressive and artistic”.

    I would also note that sole proprietors are “business entities” so don’t be fooled by the language into thinking that they would be excluded.

  26. 126
    Charles S says:

    Fair enough. We don’t know how Elane Photography constructed its contracts or how it used sub-contractors. Are you arguing that it would be impossible for a wedding photography company to regularly hire sub-contractors to photograph entire weddings and to structure its contracts with its clients so that it was allowed to do that?

    I’d agree that you couldn’t only use that contract with same-sex couples (or black people or Catholics etc) without getting in trouble.

    If you offer your unsubstitutable personal services to the public, I’m fine with you being stuck providing your personal services to the public.

    From the housing contractor case in Oregon and from the Lewis & Clark part of the Vejo v. PPS case, it seems like you can also avoid being a public accommodation if you get business primarily through word of mouth, if you meaningfully negotiate each contract, or if you turn down some significant portion of potential clients, so there are other ways of organizing your business than offering your services to the public that don’t make you liable (unless you are in California, which doesn’t mention public accommodations, and instead talks about “all business establishments of every kind whatsoever.”).

  27. 127
    Charles S says:

    But I recognize I’m not a lawyer, and so my statement that “… it would be legitimate for them to subcontract the work if they feel they are not capable of working to their standard quality under those conditions,” may well be wrong.

  28. 128
    Ampersand says:

    Different photography companies work in different ways.

    Some companies expressly employ a bunch of different photographers, all of whom are expected to adhere to a house style. Their websites and ads will often expressly refer to their “teams.” Other companies are basically one photographer and their non-photographer assistants. If you hire the former company, then you’re expecting to be assigned a photographer to work with you; if you hire the latter kind of company, then you’re expecting that one particular photographer to be taking the photos.

    Personally, I do think that wedding photographers should be free to turn down weddings for any reason, including being bigots. Photography is expressive in a way that typical cake baking or flower providing is not, and I think that means photographers have a first amendment right to decline to take photos that express beliefs contrary to their own.

    But Sebastian and Nobody Really don’t seem to be arguing for a first amendment right to not be coerced into expression; rather, they seem to be arguing that EVERYONE should have the right to refuse to serve gay/black/Jewish/etc customers. And that seems too far to me.

    Organizing a wedding can easily involve hiring a dozen vendors or more. (For example: flowers, caterers, officiant, site, wedding coordinator, wedding dress store, tuxedo store, makeup/hair person, cakemaker, rehearsal dinner restaurant, reception site, party supply company (for specialty items like aisle runners), invitation printer, city clerk, and that’s just off the top of my head). If all of those venders had a legal right to turn people away because they’re gay/black/Jewish/etc, I do think that could end up being a substantial burden. In contrast, the burden of a dove wrangler having to accept money to release doves at a same-sex wedding doesn’t seem as substantial. Limiting any exception to antidescrimination laws to clearly expressive services, like officiant and photographer, seems reasonable to me.

    (Oh, and also: What if the florist doesn’t know it’s a same-sex wedding until they arrive with the flowers the day of the wedding and spots the photo of the happy couple by the guest book table? (Not at all an unrealistic scenario, for florists that do standard wedding packages – which is to say, almost all of them – because the people who place the order aren’t always the wedding couple themselves). Should the florist be allowed to turn around and walk out at that point, taking their flowers with them?).

  29. 129
    nobody.really says:

    What if the florist doesn’t know it’s a same-sex wedding until they arrive with the flowers the day of the wedding and spots the photo of the happy couple by the guest book table? (Not at all an unrealistic scenario, for florists that do standard wedding packages – which is to say, almost all of them – because the people who place the order aren’t always the wedding couple themselves). Should the florist be allowed to turn around and walk out at that point, taking their flowers with them?

    Yes, the florist should be allowed to walk out. Common law tort and criminal laws impose sanctions for wrongful imprisonment.

    And the florist should be allowed to withhold service. The 13th Amendment bans slavery.

    But the florist might face liability for breach of contract, and civil sanctions for violating anti-discrimination laws.

    That said, if the florist could offer a referral to someone who could offer comparable goods/services at comparable terms nearby, the damages for breach of contract might be mitigated. And under my affirmative defense, the florist might escape liability for violating anti-discrimination laws. But if the wedding is about to start, it seems pretty unlikely that anyone could practically provide comparable services to a florist who has driven up with a minivan full of the precise flower arrangements selected by the happy couple.

    The concept I’ve been hunting for is reasonable accommodation. But the florist bears the burden of proof. And if you tell a jury that you’ve asking the couple to review new flower arrangements as the bridal march is already playing, I suspect they’re not going to find this accommodation reasonable.

  30. 130
    Ampersand says:

    Yes, the florist should be allowed to walk out. Common law tort and criminal laws impose sanctions for wrongful imprisonment.

    And the florist should be allowed to withhold service. The 13th Amendment bans slavery.

    LOL!

  31. 131
    Sebastian H says:

    At the day of wedding stage the florist would be liable for breach of contract at a minimum and likely other damages.

    I’m not saying that ANYONE can discriminate. I except common carriers, actual accommodations (places where one might stay on a journey), housing (where one might live), restaurants (where one might eat on a journey), medical services, sellers of undifferentiated goods and commercial places where people generally congregate. Which not coincidentally was how the issue was generally treated with respect to race and religion.

    The main area of contention is non-vital services. I don’t really see why an artist gets off in ways that a housekeeper doesn’t. The first amendment doesn’t help nearly as much as people keep asserting if you agree with much of the Supreme Court’s “commercial speech” exception to the 1st amendment. As it happens I think the commercial speech exception is way too broad (it should probably be limited to false claims) but if you are on board with the way commercial speech is currently treated I don’t see how it helps us decide this issue. An artist isn’t being ‘forced’ to do any more than a housekeeper for someone they don’t like–just their job.

  32. 132
    Sebastian H says:

    One thing that seems underappreciated in this discussion is that providers of non-essential services turn down clients all the time for all sorts of reasons.

    If a massage expert thinks a client is too creepy, she can say no to him. If she thinks men in general have been too creepy she should be able to advertise that she massages only women without drawing a gender discrimination suit. Housekeepers turn down annoying clients all the time.

  33. 133
    Ampersand says:

    Sebastian, it seems unlikely to me that either a wedding photographer, or me, would be “commercial speech” as the Supreme Court defined it. Quoting Wikipedia:

    The Court developed a three factor inquiry in determining whether speech is commercial in the 1983 case Bolger v. Youngs Drug Products namely, (1) is the material meant to be an advertisement, (2) does the material reference a particular product, and (3) is there is an economic motivation for disseminating the material? If all of these attributes are present, then it is commercial speech.

    I don’t think either wedding photography or my cartoons are commercial speech under this definition.

  34. 134
    gin-and-whiskey says:

    A

    mpersand says:
    March 22, 2017 at 7:26 pm
    But Sebastian and Nobody Really don’t seem to be arguing for a first amendment right to not be coerced into expression; rather, they seem to be arguing that EVERYONE should have the right to refuse to serve gay/black/Jewish/etc customers. And that seems too far to me.

    I read that as a baseline starting point. i.e., that freedom of expression and freedom of contract should be universal absent some limited exceptions. I don’t see them as unwilling to consider exceptions. Perhaps I’m wrong:

    Sebastian and Nobody, are you willing to allow for exceptions, for example in places of public accommodation as the law was first considered?

  35. 135
    Sebastian H says:

    Gin and whiskey. Yes. See my comment 133.

  36. 136
    nobody.really says:

    But Sebastian and Nobody Really don’t seem to be arguing for a first amendment right to not be coerced into expression; rather, they seem to be arguing that EVERYONE should have the right to refuse to serve gay/black/Jewish/etc customers. And that seems too far to me.

    Nobody, are you willing to allow for exceptions, for example in places of public accommodation as the law was first considered?

    Short version: nope.

    Every commentor (as far as I can tell) favors providing legal mechanisms for members of protected groups to gain access to “essential” goods/services. And everyone agrees that there should be some limits on where state compulsion applies. People just differ about where to draw the line.

    Sebastian H draws the line at “non-vital services”–no matter how plentiful they may be. It’s a fine proposal, but it certainly requires identifying a list of vital (or, alternatively, non-vital) services (and also goods?).

    My Market Power Affirmative Defense does not draw a distinction there. Rather, it draws the distinction at the issue of scarcity, forcing on whether a member of a protected class has access to the good/service at terms and in locations that are comparable to those available to people who are not members of that class. The goal is to ensure that customers get what they want–but NOT that they get to dictate from whom they get it.

    Ex. 9: The sole commercial baker in town wants to refrain from selling goods for a same-sex wedding. What result?
    • 1964 Civil Rights Act: No remedy; not covered.
    • Some states public accommodations law: Remedy; covered.
    • Sebastian H: No remedy; excluded as a “non-vital service.”
    • nobody.really: Remedy; no comparable substitutes available.

    Ex. 10: One fast-food restaurant out of ten adjoining, comparable restaurants refuses to serve a customer due to animus toward patient’s race. Remedy?
    • 1964 Civil Rights Act: Remedy; covered.
    • Some states public accommodations law: Remedy; covered.
    • Sebastian H: Unclear; depends on whether fast food is deemed a “non-vital service.”
    • nobody.really: No remedy if discriminating restaurant gives referral to comparable non-discriminating restaurant nearby.

  37. 137
    pillsy says:

    I think that denying business owners the right to discriminate on the basis of race, sex, sexual orientation, and religion is already making a very narrow set of exceptions to broad freedoms of association and contract, and the history (and present) of discrimination provides a solid justification for it.

    This remains true regardless of corner-cases about wedding photographers.

  38. 138
    gin-and-whiskey says:

    Nobody, it’s almost like your plan is designed to look like it’s allowing for freedom of association and freedom of contract, while functionally making it nearly impossible.

    1) It gives no predictability. Under a reasonable “required business” standard, an owner KNEW she could not open one of the listed businesses and still refuse to serve Martians. Similarly, under the old standard, Martians KNEW that they had a right to visit certain all of the listed businesses. That lowered transaction costs considerably. Under your plan, that is gone. You can indeed have a no-Martian gas station, and Martians can no longer assume they can always buy gas somewhere.

    2) The old way allowed business owners to make choices and intelligently invest: if you don’t want to be required to do business with Martians, you should open something other than a gas station. Under your plan, this is gone, because there is no business at all which cannot be liable for failing to provide an adequate substitute.

    3) The old plan was a single-user viewpoint: it looked at a business standing alone. Even when a law is complex, you can still make a good prediction about an outcome. Your plan makes every single business subject to the decisions and actions of every other business, which makes it impossible to predict an outcome. In other words, Wally the anti-Martian widget-shop owner has to constantly monitor the existence, business practices, opening/closing, hours, and product of every other widget business in his area. Unless Wally is omnipotent, his actions may be legal on Monday, illegal on Tuesday, and legal again on Wednesday.

    Just using those three examples, it’s pretty clear to me that you’re creating something akin to a paper road here.

    Sebastian H draws the line at “non-vital services”–no matter how plentiful they may be. It’s a fine proposal, but it certainly requires identifying a list of vital (or, alternatively, non-vital) services (and also goods?).

    Why do you think this is so hard? We designate protected classes and actions all the time. Sure, it takes a bit of work and there is always a gray area which leads to litigation–but in comparison to your incredibly-complex litigation-happy plan this would be simple.

    And I will continue to ask, in the hopes of getting an answer: Who thinks this would actually be a major real-life problem, and how big of a problem do you actually claim it would be? We are not in 1930 anymore.

    Try answering this simple question:
    Business A has a “NO ____ ALLOWED” sign in the window/webpage/yellow page ad (my proposal allows for discrimination but requires you to advertise your discrimination everywhere you advertise the business)

    Business B has a “We Proudly Serve Everyone” sign (voluntarily.)

    Can someone please give a few specific examples where they claim Business A will not be out-competed by Business B? Hell, even in a rich lily-white sunset town I’ll eat my hat if those folks are willing to be caught on cellphone camera walking out of a “WHITES ONLY” bar.

  39. 139
    pillsy says:

    I don’t think either wedding photography or my cartoons are commercial speech under this definition.

    FWIW, it looks like Sebastian’s definition of “commercial speech”–being any sort of speech produced by a business–would also mean that the New York Times has, at best, very limited free speech rights. This is pretty obviously wrong, however, with regards to current case law.

  40. 140
    nobody.really says:

    At the risk of re-plowing well-plowed ground:

    Every commentor (as far as I can tell) favors providing legal mechanisms for members of protected groups to gain access to “essential” goods/services. And everyone agrees that there should be some limits on where state compulsion applies. People just differ about where to draw the line….

    My Market Power Affirmative Defense …. draws the distinction at the issue of scarcity, focusing on whether a member of a protected class has access to the good/service at terms and in locations that are comparable to those available to people who are not members of that class. The goal is to ensure that customers get what they want–but NOT that they get to dictate from whom they get it.

    I think that denying business owners the right to discriminate on the basis of race, sex, sexual orientation, and religion is aready making a very narrow set of exceptions to broad freedoms of association and contract, and the history (and present) of discrimination provides a solid justification for it.

    I agree that the history (and present) of discrimination demonstrates the need to defend people’s access to goods and services. It is less clear to me that it demonstrates the need to defend a customer’s right to demand service from THIS cab rather than its neighbor, or THAT clerk rather than some other clerk. If we can think of instances when this would result in harm other than the harm we are all expected to endure as the cost of living in a society with free speech/association/religion, please share.

  41. 141
    Fibi says:

    If we can think of instances when this would result in harm other than the harm we are all expected to endure as the cost of living in a society with free speech/association/religion, please share.

    I think I’m probably far less progressive than most of the people on this blog; but that’s a question that has an answer related to our history as a nation (the U.S., in particular).

    Imagine a bar on Main Street that has a Happy Hour special. It draws a big crowd from local business owners. But it doesn’t allow [women][blacks][gays][jews]. No worries, there’s a bar right down the street that offers the same bud light longnecks. They cost 25 cents more down the street but our place with the big crowd will send you on your way with a bunch of coupons. So the business owner who is excluded still gets their drink on. But they don’t get to socialize and network with the other business leaders in town. That’s a real harm.

  42. 142
    nobody.really says:

    But they don’t get to socialize and network with the other business leaders in town. That’s a real harm.

    Yup — ergo, the proffered substitute is not comparable.

    This is akin to the issue of the black customer wanting to attend Joe’s wedding reception, and being referred to the restaurant down the street. If the customer is seeking the company of specific other people, then no other establishment is comparable.

    The practical upshot is that establishments hosting “events” would not want to rely on the Market Power Affirmative Defense. And, as in the happy hour example, the discriminating proprietor would bear the risk.

    Compare Roberts v. United States Jaycees (Jaycees are a networking opportunity, so prohibitions on women membership can be banned) to Boy Scouts of America v. Dale (prohibition on gay ass’t scoutmaster legal).

  43. 143
    pillsy says:

    If we can think of instances when this would result in harm other than the harm we are all expected to endure as the cost of living in a society with free speech/association/religion, please share.

    The idea that we are all expected to endure the cost of being subject to discrimination is pretty questionable, though. The costs of that sort of discrimination are hardly equally distributed. Having fewer choices in the marketplace is actually pretty intimately tied up with having the market serve you poorly.

    I mean, if there are 10 fast food restaurants in town, and only one of them serves minorities, it’s likely that one restaurant is going to have leeway to offer worse service at higher prices. Your argument about “comparable” seems to have real issues, and indeed is remarkably close to saying “separate but equal” is just fine.

    Fibi’s point about being excluded from high-value social networks is also on point.

  44. 144
    nobody.really says:

    Fibi’s point about being excluded from high-value social networks is also on point.

    Indeed—which is why the Market Power Affirmative Defense would not apply to that circumstance.

    The idea that we are all expected to endure the cost of being subject to discrimination is pretty questionable, though. The costs of that sort of discrimination are hardly equally distributed.

    I agree that the burdens of free speech/etc. are not equally distributed. But that’s not the same thing as saying that we’re not all subject to them.

    The Supreme Court upheld the rights of the Westborough Baptist Church to picket funerals—the bereaved family’s sympathetic posture, white privilege, etc., notwithstanding. To say that the free speech requires the family of a fallen soldier to endure virulent expressions of hate—but asking a gay couple to contract with a different baker is GOING TOO FAR!—strikes me as a weak argument.

    [I]f there are 10 fast food restaurants in town, and only one of them serves minorities, it’s likely that one restaurant is going to have leeway to offer worse service at higher prices. Your argument about “comparable” seems … remarkably close to saying “separate but equal” is just fine.

    Indeed it is—with important provisos.

    First, the policy would impose liability on any proprietor that discriminated if there were were no integrated competitors available. So we wouldn’t revert to Jim Crow days.

    Second, if the integrated facility was not comparable in service/price/location, then the customer would have a cause of action against the discriminator—just as the customer would under current law.

    Let’s talk about Separate but Equal: Should all-women’s colleges be subject to liability for discrimination? I’d say yes–if there were no comparable colleges available. But not otherwise. They’re blatantly discriminatory—but that doesn’t offend me if there are plenty of other comparable colleges that don’t discriminate on the basis of gender. Indeed, I think the world is richer because of the existence of all-women’s colleges. Do you disagree?

    Arguably the biggest problem with Separate but Equal under Brown v. Bd. of Education was not Separate, but Equal: the schools weren’t. It is unclear to me that we have much of a history of Separate but Equal to evaluate, because it was never really tried.

    Having stated this proposition, let me state two other, related but distinct propositions:

    1. There were political dynamics that undermined any impulse to provide equality. Some of those political dynamics remain. Thus, even with Separate but Equal deemed unconstitutional, our public schools largely remain Separate and Unequal. I don’t mean to be Polly-Annaish. Litigants under my Market Power Affirmative Defense will encounter enormous practical challenges getting relief from government—but it’s unclear that they’d encounter any more challenges than they encounter under existing law.

    (After all, under what circumstances could a government service provider refer someone to a different service provider? I find it plausible that one clerk might hand off a ministerial duty to another clerk– but otherwise? “I’m sorry to hear about your house fire. Were you aware that to service people such as yourselves, we sub-contract with the Hillsdale Fire Dept…?”)

    2. There is an entire economic literature about status goods (and services)—things that come to have value in whole or part because of their capacity to signal a person’s place in a hierarchy. Identical cars might command different prices if you attach different nameplates to them, based on the perceived prestige that attaches to the nameplates.

    Under my Market Power Affirmative Defense, these “identical” cars would not be comparable. The fact that they commanded different prices would provide evidence of their incomparability. The nameplate matters.

    Likewise,people speak of the “badges of inferiority” associated with attending the black school rather than the white school in the 1950s. So if the Topeka School Bd has asserted the Market Power Affirmative Defense against Brown’s claim of wrongful discrimination, it would have lost—not just because of unequal facilities, but because of unequal prestige.

    I sense that many people object to my proposal because they conclude that all forms of discrimination against members of a protected class must entail a loss of prestige. Of course, if this were accurate, then my affirmative defense would do no harm; it would simply never apply.

    But I don’t know that discrimination against members of protected classes always convey hierarchy or a loss of prestige. If an all-women’s college refused the application of a black man, would that signal a loss of prestige to that black man? Would it reinforce hierarchy?

    To conclude: Again, my proposal is merely a proposal. If you find some aspect of it unpalatable, you can propose modifications. I’m not (yet) persuaded that every example of invidious discrimination imposes unendurable harm warranting legal recourse. But I appreciate the evidentiary challenges that arise from identifying the comparability of different accommodations that involve social interactions between members of the public. (“Yes, the proffered substitute restaurant was very nice. But I wanted to be able to tell my friend that I ate at the restaurant we had talked about. Ergo, the proffered substitute wasn’t really comparable to me.”) So maybe it would be simpler to acknowledge that there’s no practical way that providers of public accommodation could rely on this defense—whether or not they acknowledge hosting “events.” Perhaps gin-and-whiskey was hinting at that conclusion @ 134.

    (This acknowledgement doesn’t mean that providers of public accommodation couldn’t try to use the defense. It just means that they should expect to lose. So this option would only be available to contentious objectors who were already resigned to violating anti-discrimination laws, and were seeking to make themselves appear more sympathetic in order to get a smaller sanction from the jury.)

  45. 145
    closetpuritan says:

    I’m not at all optimistic that if nobody.really’s law was in place, the courts would rule against the businesses when the harms to the customer were relatively intangible, as in Fibi’s happy hour example, or in nobody.really’s “I wanted to be able to tell my friend that I ate at the restaurant we had talked about” example.

  46. 146
    Jane Doh says:

    I agree with closetpuritan and fibi–the intangible harms and human nature make nobody.really’s proposal unworkable. I’ve been to plenty of conferences where after hours networking events were held at Hooters (or even strip clubs) and then people acted all surprised that so few women attended. If Joe’s Bar doesn’t serve gays/blacks/women/atheists/whatever, and a group from a conference wants to go there, odds are that the group goes anyway, and the person is excluded from a professional opportunity. I was a child, but didn’t we spend the 80’s arguing about this stuff?

Leave a Reply

Your email address will not be published. Required fields are marked *