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?