“SweetCakes by Melissa,” an Oregon cake bakery, is in the news after refusing to sell a wedding cake to a lesbian couple. The couple made a complaint to the state attorney general’s office, which is now investigating.
So is refusing to bake a cake for a lesbian wedding illegal? Maybe so. According to Oregon Law,
…all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older.
So what is a “place of public accommodation,” you ask? I gotcha covered:
(1) A place of public accommodation, subject to the exclusion in subsection (2) of this section, means any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise.
(2) However, a place of public accommodation does not include any institution, bona fide club or place of accommodation which is in its nature distinctly private.
You can read a fuller account of what happened at The Oregonian‘s website. Everyone agrees that a customer was turned away by Aaron Klein, the co-owner of SweetCakes, because she requested a cake for her same-sex wedding. The customer claims that Aaron used insulting language like “abomination” when turning her down; Aaron denies that.
According to the Oregonian, “the attorney general’s office is waiting for Sweet Cakes’ official account of the encounter before taking action. If the agency finds cause, it has the option of filing a discrimination complaint with the state Bureau of Labor and Industries.”
According to right-wing Christian blogger Denny Burk:
Klein contends that the first amendment guarantees his right to practice his religion without interference from the government. In short, he believes that he shouldn’t have to violate his conscience by providing his services to a same-sex wedding. He claims that his Constitutional right to freedom of religion trumps Oregon state law.
My thoughts:
1) My knee-jerk reaction is a Libertarian one: If the Kleins want to refuse to sell cakes to same-sex couples, then they should have that right. There are many other bakers in the Portland/Gresham area who will happily take the business the Kleins are refusing.
2) My next thought is “where does it end”? If the Kleins can refuse to sell to a lesbian couple’s wedding based on his religious beliefs, then couldn’t another cake-maker refuse to sell to any lesbian, gay or trans person based on that cake-maker’s religious beliefs? And if cake-makers can do that, why not restaurants and hotels? And what about a shop owner who thinks God doesn’t approve of Jewish weddings, or interracial weddings, or Asians – does that merchant get an out from anti-discrimination laws, too?
What about a teacher who says that her religious beliefs don’t allow her to teach the kids of same-sex couples – should she be given an out? SSM opponents often argue that public employees like city clerks should be allowed to refuse to serve same-sex couples; if clerks can do that, why not teachers? It’s surely much harder to break your religious convictions to deal with a student for a full school year, than it is to take two minutes to put a stamp on a form.
In short, if everyone is allowed to ignore state anti-discrimination law based on their claimed personal religious beliefs, then it seems to me that anti-discrimination laws must logically be void and unenforceable.
There are, of course, some people who are opposed to all anti-discrimination laws. My suspicion, however, is that most people who think that the Kleins should be allowed to ignore discrimination law based on their religious convictions, aren’t arguing that religion should be a general “get out of anti-discrimination law free” card. Rather, they want lgbt people singled out for lesser legal protections. Very few of those who think that religious business owners should have free reign to discriminate against lesbian and gay customers think the same when you ask them about the right to discriminate against Black people or against Jews.
3) This case, and others like it, actually has nothing to do with the same-sex marriage controversy.
It’s important to recognize that the issue being argued over, when we argue about same-sex marriage, is not “do same-sex couples have the right to hold weddings and call themselves married?” No one in mainstream America, not even in the GOP, not even Brian Brown, argues against the right of two women or men to dress up in formal wear, rent a hall, and make formal vows in front of their loved ones. Lesbians and gays have the right to get married, and have been getting married for decades, long before anti-SSM activists were aware of the practice.
The actual legal controversy is, will the state recognize same-sex marriages? And that controversy is not at all relevant to what’s currently happening with SweetCakes.
In fact, legal recognition of same-sex marriages was constitutionally banned in Oregon.
Although anti-SSM activists claim events like these are the result of same-sex marriage laws, banning legal same-sex marriage doesn’t actually prevent these legal conflicts, as SweetCakes demonstrates. That’s because the relevant law here is not marriage law, but anti-discrimination law.
That’s what’s at issue here. Not the “right” for Christians like the Kleins to prevent same-sex couples from legally recognized marriages, or the “right” to prevent a gay widow or widower from benefiting from their spouse’s Social Security, or the “right” to prevent children of same-sex couples from having the benefits of married parents, or the “right” to keep international couples apart, or the “right” to prevent same-sex couples from access to the hundreds of legal rights that the Kleins have access to.
The Kleins have already won all those “rights” in Oregon, much joy may it bring them. What they want is the right to discriminate against lesbian and gay customers.
And maybe they should have that right. I’m sympathetic to the idea that small businesses – businesses that are run by the owner or owners, that have fewer than five employees – should be exempt from being seen as “public accommodations” for the purpose of anti-discrimination laws. I’m especially open to this argument in the case of people whose work is expressive, such as photographers and cake-makers.
This is a true case of “goods in conflict” – the right of discriminated against groups to be fully equal members of society everywhere in the public square, versus the right of mom-and-pop businesses to choose who to do business with.
I know some readers will disagree with me strongly. The choice to discriminate against lesbian and gay customers is harmful, and irrational, and should not be tolerated, some will say, and I have great sympathy for that view. I agree that what SweetCakes did is harmful and irrational. In the case of larger businesses, it shouldn’t be legally tolerated – corporations are too large a chunk of society to be allowed to pick and choose which Americans they’re willing to treat as equals. (If we allowed McDonalds to refuse to serve Jews, for instance, that would be too great an injury to the ability of Jews to be thought of as equal citizens.) Nor should it be tolerated in businesses that provide potentially life-saving services, such as doctors, or innkeepers.
But in the case of mom-and-pop bakeries, I think we should err on the side of legal tolerance.
I don’t for a second doubt that some lgbt people find being refused service genuinely horrible and traumatic. (The effects of small bigotries are cumulative. What feels like a polite refusal of service to Klein, may feel like the 1000th attack on a lifelong weeping wound to the customer he’s refusing.)
However, this is the sort of harm that should be addressed by reforming society, not by force of law. We cannot legislate away small harms and prejudices; we can only beat them through gradual persuasion. And gradual persuasion will only be impeded by the use of government force on tiny businesses like SweetCakes.
And yet… now that I’ve written that, I wonder about someone living in a small town. What if half the mom-and-pop businesses in a small town – a town in which virtually all the businesses are mom-and-pop stores – decided not to serve the one Muslim family in town? If we say they’re legally allowed to do that, what we’re saying is that if all the little businesses in a town agree, they can informally collude to ostracize any despised minority, turning them into second-class citizens. Why should they be allowed to do that?
It’s not as if anti-discrimination law is handed down by some unaccountable dictator. It comes from democratically elected representatives – and in Oregon’s case, it reflects the fact that most Oregonians want to live in a society with formal equality. A society in which any lesbian or gay man can walk into any store and be assured treatment that’s just as good as the treatment heterosexuals get.
And just like that, I’ve convinced myself to change my mind. I really am torn on this issue.
Refusing to bake a cake for a lesbian wedding definitely _should_ be illegal. It should be illegal for stores to discriminate against LGBT people, period. This is the same as the conservative argument against the Civil Rights Act: bigotry might be wrong, but people are free to be bigoted. The Civil Rights Act seemed to do a pretty good job of gaining access to services for people of color…why is LGBT rights different?
Also, lots of big companies have a “mom-and-pop” element. Many motel and restaurant franchises are owned and operated by families. Lawyers and doctors are often self-employed or work in small firms. A law that allows “small firms” to discriminate could easily allow lawyers to refuse to represent gay people or mechanics to refuse to fix their cars or plumbers to refuse to fix their houses or all kinds of stuff like that–stuff that could really be necessarily in all the (many) rural parts of Oregon where there might only be one divorce lawyer or or one mechanic or whatever
This ultimately comes down to how big a sphere “public accommodation” is. I’ve argued here before that photography might be public accommodation, and if photography might be, baking definitely is.
But they are in the weird art/craft place where it might count as individual art, might count as public accommodation. I can see forming an argument for either side, and I’m not up enough on public accommodations law to really make a case.
The important thing, for society as a whole (rather than this particular couple or this particular craftsman) is that there is a line of public accommodation and it is drawn wide enough to live in, not the exact details of where it is drawn in any particular case.
yrs–
–Ben
I’m in the squishy middle here, pretty close to Amp (my fiance) for a change.
I don’t think a bakery is a public accommodation, if they aren’t set up as restaurant. I think the practical test there runs along the lines, if you’re a stranger in a town and all the businesses of class X are closed to you, are you fucked? IE, are you going to end up moving closer to starvation, or closer to death from exposure, or death in general? Hotel, restaurant, bus station, doctors office, taxicabs…those people have to serve everyone. Wedding cake bakery? Photographer? Not so much.
While my libertartian-inclination is stronger than Amp’s, I also see a perfectly legitimate (or at least practical) way for genuinely small businesses that genuinely don’t want a certain group of customers to avoid serving them, without running afoul of the law, at least the law as narrowly construed: claim personal, not group, animus. “I don’t care that she’s a lesbian. I hate her fucking guts, and I don’t want her in my store and I sure as hell am not gonna bake her a cake. Why? Because she makes my teeth hurt, that’s why. It’s personal. Fuck off.”
Not exactly Gold Star customer service, but almost impossible to prove to the contrary if you aren’t running your mouth about how secretly it’s the lesbian thing.
The problem with your example, in this particular case, Robert is that the very same woman they refused to sell a cake to for her wedding previously purchased a cake for her fiance’s mother’s wedding. “I was okay with her last year, but I hater her guts now,” doesn’t pass the smell test.
My obligatory criticism aside, I was thinking of the small town example paragraphs before Amp got there. I fall much more on that side. Sure, not being able to purchase a cake isn’t going to edge me towards starvation or eviction, but it sure as hell impinges on my pursuit of happiness.
Back to obligatory criticism, now. Sweet Cakes isn’t a wedding cake bakery, it’s a bakery. You can walk in and purchase any of a number of different cakes – wedding or not- cupcakes, etc. If they’re not a public accomodation, neither is the small grocery around the corner from me.
From Sweet Cakes site:
Is that false advertising? They don’t do cakes for same-sex occasions.
I totally agree that discrimination is wrong, but what SweetCakes did isn’t remotely harmful. The right way to think about this is in terms of damage. If the lesbian couple have suffered damage because of SweetCakes wrongful actions, then they should be awarded compensation.
So how much compensation should they be due? Well, it’s a case by case judgement. But if SweetCakes is baking cakes for $20 and refuse to serve them, and if TastyCakes next door is baking cakes of equal quality for $20 and will serve them, then they’ve suffered no damage and deserve no compensation. That would be the judgment if SweetCakes had contracted to make a cake but been unable to do so and broken the contract.
The problem is people are trying to go much further than that and use the law or other purposes. The motive behind complaints like this is that discrimination and these people’s views are so vile they should be bankrupted and penurised. That is what this and similar cases are about, people who are ideologically driven seeking to inflict vastly disproportionate punishment for very trivial wrongs just because the other party disagrees with them. That’s completely unreasonable and we shouldn’t let the law allow them to do it.
[Citation needed]
Jake – I missed that about her being a previous customer. Yeah, that would tend to be wee red flag.
Re: the pursuit of happiness, that’s a valid point and is, in fact, the reason we have a government at all – to secure in our present state the natural rights that we all inalienably have. That’s a big part of why I switched sides on gay marriage, for what it’s worth; the state must seek rights for all, not just some.
But all means all, and that includes bigoted cake bakers. There’s a strong argument to be made that forcing someone to do something they dislike is about as bad for that person, as is not being allowed to do something you want to do is to you. You want me to bake you a cake, I don’t want to do it; there’s no government intervention or rulemaking here, in any direction, that doesn’t end up with one of us being unhappy.
So we tend to cautious about that sort of thing. Is it worth it, to push around racist hoteliers and restaurant owners and gas station managers and say “you have to serve black people”? And as it happens, yes, yes it is – it used to be difficult for black people to enjoy the Constitutionally-protected right to travel, for example, because so many places that travelers utterly depend on were not open to blacks. (They used to have guidebooks that circulated in the black community for particular major routes, listing places that *would* serve blacks.) If we didn’t (hadn’t) push(ed) the hoteliers and headwaiters etc. around, that injustice would have continued.
So I think on balance that ‘pursuit of happiness’ is very powerful as a tool when the question is, ‘can I do this thing that I want to do that doesn’t impinge on other people’ – like, “can I get married to my same-sex partner?” It’s even powerful enough, for example, to override some things that DO impinge on other people (like gay marriage) if that impingement is purely emotional or reactive on the part of the infringed-upon person. Tough shit, Westboro Baptist Church; their marriage outrages you, that outrage is a real harm in an abstract sense, and that is too damn bad for you.
It’s still a usable tool, but one that is much less of a trump card, when the question is “can I make other people do things they don’t want to do, in the pursuit of my otherwise legitimate aspiration or goal?’
Alex is wrong when he says that no harm is done to the lesbian couple seeking a cake; they are suffering a harm similar to what the anti-gay people are suffering – the emotional trauma (and it is real, or can be) of having people disapprove, or reject, or otherwise be non-supportive, of a course of action or lifestyle reality.
It seems to me that there are two components to the harm suffered when one cannot access a business or service that is broadly open to the public. One, there is the inconvenience and suffering, if any, caused by the denial. Two, there is the emotional trauma of being rejected or made to feel less-than.
A black person in 1950 trying to drive with her children to a distant city is faced with rebuffs from many hotels and restaurants along the way. The inconvenience is major, the suffering potentially great – all the way up to death, in theory anyway. The emotional trauma is major as well. So Big + Big = Really Big.
A lesbian couple in 2013 trying to find a bakery that will do their cake is faced with…well, most likely, having to make another call to find a baker who is SSM friendly or neutral, and at most having to drive to another town. The small-town example is slightly compelling when you’re talking about emergency contraception or medical service, less so when it’s a cake for an event months in the future. The emotional trauma could well be major. So Piddly-Shit + Big = Big and a smidge.
I think it has to sum up to Really Big before the state gets involved.
Yeah, Robert, you do have valid points in there. It’s tough to say where bigotry in public accommodation hurts which party more and I’m not sure there is an objective way to decide. So it’s just a discussion of where to draw the line, assuming it isn’t possible to go on a case by case basis.
OK, Amp, Jake and I have reached broad agreement in principle, and from what you wrote above you’re in about the same place, so you can shut down the blog, now. And the Internet, too, I guess. Unless anyone is using it to transmit cat pictures. Anyone? No? OK, pull the plug, we’re all done here.
Back outside, everyone. Fresh air and healthy exercise. Or reading books, you can do that too.
@ robert
It was a few years back, late in the evening in (truely) the middle of nowhere. My girlfriend and I wanted a room in a hotel. The hotel keeper agreed to sell me a room for two with one queen bed, until he saw that I was a woman traveling with a woman. Then he would only give me a room with two beds, $25 more. That cheaper single-queen room was suddenly not available. So there was the $25, but what I really remember was the humiliation not the money. Major emotional trauma? I dunno, but upsetting for sure. All the little cuts add up. I’d bet the hotel keeper doesn’t remember this at all now.
Should the government have rules about this kind of thing? I hate slippery slope arguments, but pretty applicable in cases like these.
Small town, one gas station owned by a devout Muslim man. The owner will not sell gas to any women unless they are accompanied by a close male family member. He should be allowed to do this because it is firmly held religious belief, right?
A Christian Bakery owner refuses to sell a wedding cake to 2 lesbians because it is contrary to his firmly held religious belief. He should be allowed to do this because it is firmly held religious belief, right?
The only thing that surprised me is that Amp even considered that discrimination might be okay. On Main-street all must be treated equally, no exceptions. Anyone who holds such deep beliefs that would require of them to discriminate against members of a disfavored group, then they need to get out of their profession, as we cannot as a country, accommodate discrimination. These people need to become cowboys or writers or any profession that accommodates their religious beliefs. The Bakery owner wants us to accommodate his discrimination.
What will happen I predict is that there will be organized testers who go around testing. This was widely used by black people in the 1970’s. A black couple would respond to a newspaper ad and attempt to rent an apartment. The next day a similarly situated white couple would go to the same landlord and apply. There was organized racial testing all over the country. The tested banks, they tested fire and casualty insurance companies. And the testing revealed that there was widespread discrimination.
Eventually sexual minorities, once they have gained protection against discrimination via Civil Law will go out and run similar tests. After Equal Civil Marriage for Sexual Minorities, Equal Employment Protections etc. our big, and also local, gay rights groups will focus on testing I imagine. Testing puts theory into Practice. I like testing, I saw how effective it was for black citizens in my City and State, how it made people scared to discriminate because they could be sued. You get out there and do some testing, and get exposure, and people do change. I will probably still be around (alive) to see this beginning of the end, and that is what testing is, the beginning of the end of discrimination. Certainly we have not eliminated discrimination against racial and ethnic minorities but it is a hell of a lot better nowadays than in the 1960’s and 1970’s.
“On Main-street all must be treated equally, no exceptions. Anyone who holds such deep beliefs that would require of them to discriminate against members of a disfavored group, then they need to get out of their profession, as we cannot as a country, accommodate discrimination.”
As a sentiment meant to indicate intent, this is warmly admirable. As a categorical statement, this fails many tests of both theory and practice, and is a dangerously blind way of going through life.
I’m not going to rehash the entire argument, because it’s been held many times, but a couple of high points: child molesters are a disfavored group. Thieves are a disfavored group. People who refuse to bathe, ever, are a disfavored group. Main Street and all the other streets have, do, and will continue to discriminate against these and similar groups, and rightly so.
Further, what is demanded by a decent and humane civil society is not non-discrimination. Non-discrimination, taken as an absolute, is literally insane; we discriminate against the young in refusing them liquor, we discriminate against the very old in refusing them driving privileges, we discriminate against the stupid in refusing to make them college professors, we discriminate against the weak in refusing to let them work as NFL linemen.
Rather, a decent and humane civil society needs an ethic of mutual tolerance and acceptance – a conscious decision to, when it is rationally appropriate, set down these incredibly useful mental toolkits of discrimination and group stereotyping, and instead deal humanely with one another individually and case-by-case. We try to do this generally; we specifically encourage ourselves to do it in cases where we know there has been historical prejudice and ill treatment.
But we do not throw away the tool itself; we merely try to focus its application to the places where it benefits us all rather than hurting us all. It is rational to decide to stop discriminating against black people in the matter of eating arrangements; it is not rational to decide to stop discriminating against children in the distribution of vodka.
Yes, yes, a general ethos of non-discrimination is often stated when what is actually meant is the specific ethos of non-discrimination along specific axes such as gender, religion, race, ethnicity, national origin, sexual orientation, gender identity, marital status, family status, and probably a few more I’m failing to remember at the moment. Not everyone agrees that all of those should be included as axes in the ethos of non-discrimination, but no one is actually confused that non-discrimination should actually be applied to every possible categorical axis.
Robert, pretending to be confused on this point and pretending to believe that SG needed to be corrected on this issue is a nice way of trying to avoid responding to her actual point, but maybe you should try addressing her actual point instead?
Yeah, I can see both sides of this one. Based on Oregon’s specific definition of public accommodation, which is pretty broad, I would think a bakery counts as a public accommodation.
If it were an interracial couple, or an interfaith couple, or a couple whose religious beliefs they found objectionable, or a pair of divorcees on their second or third marriage, and the Kleins had a religious opposition to those particular marriages, would they be allowed to refuse? It doesn’t seem like they would.
Quote from Aaron Klein (http://www.oregonlive.com/gresham/index.ssf/2013/02/same-sex_couple_files_complain.html)
My eye-rolling response: So, if you find out a couple is getting married by a justice of the peace, you refuse to do their cake too? Somehow, I’m thinking not.
“So, if you find out a couple is getting married by a justice of the peace, you refuse to do their cake too?”
Find me in the Bible where getting married by a justice of the peace is inherently unbiblical.
Not under anyone’s standards in this thread. Gas (like housing, food, etc.) would be considered major enough that this would be illegal.
Whether or not you believe that anyone should be allowed to discriminate, there’s still a practical difference in EFFECT of discrimination between “only gas station in town” and “wedding cake purveyor.”
What does this mean? I don’t think you mean to imply that it’s OK to discriminate against members of a favored group (maybe I’m wrong…) can you clarify?
I see no reason to grant businesses the right to exercise unlawful discrimination against customers.
Businesses do not have ‘religious beliefs;’ people do. You can sneer at blacks, or Jews, or gays, all you like as a private citizen. But when you operate a business, you have to treat all members of the public equally and within the law. Giving a bakery the right to discriminate against gays is no different from allowing a so-called “Catholic hospital” to discriminate against providing birth-control benefits to employees.
I had a business for a while doing freelance corporate communications. Suppose that someone wanted to hire me to write an anti-abortion brochure. I would not have accepted the business and if anyone asked me why I would have given at least two reasons: 1. As a matter of personal politics, I would not have wanted to do anything that would support an anti-abortion agenda; 2. As a matter of business practice, I would not want any other potential clients to conclude that I in any way endorsed an anti-abortion position.
I recognize that this is not an exact parallel to the situation in Amp’s post, and I also think that whether or not government should get involved in the case he’s writing about is a difficult question, but I do think it’s instructive to turn situations like this around and think about whom we might not want to serve in a business capacity because of our values.
@gin – the “disfavored group” language is a proxy for availability of an alternative and assessment of the harm of discrimination. It’s the idea that a Jewish bakery in a mostly Christian town/city/state/country only serving Jews would not prevent a Christian from finding a bakery nearby to serve them. But a Christian bakery refusing to serve Jews would be much more likely to: 1) be part of a group effort to not serve Jews such that NO Christian bakeries/no bakeries at all in that particular area serve Jews; 2) be contributing to a society-wide message that Jews are not a part of “our” community – and thus be causing more harm.
Discrimination against “disfavored” groups causes more harm than discrimination against favored groups because favored groups have the protection of a larger community. They are less likely to suffer practical harm (“no where to get my cake”/have to pay more for a worse cake, etc.) or emotional harm (“I am not accepted as a member of this political/social community/I am being singled out as an outsider” etc.)
Ta-Nehisi Coates at the Atlantic has a recent series of blog posts on how housing segregation lead to significantly less wealth in the Black community because blacks had to pay more for less valuable properties. Redlining lead to Blacks having to pay more for less valuable properties because whole swaths of the market were unavailable to them.
I like my ability to discriminate. Sure, I imagine that I’m using it in a right-minded and justified manner. I prefer to represent abuse victims over abusers; employees over employers; and so on. I would not want to serve people wearing swastikas, or people with Westboro Baptist Church Supporter t-shirts.
But although my own particular set of discrimination preferences are unique, I think I’m entirely average when it comes to the firm belief that they’re “right” and “justified.”
I don’t want to give up my own right to discriminate. But I acknowledge that other people have different values than I do.
Those values are important. They’re part of what defines me. And ACTING on those values is part of how I try to propagate them. I don’t want to give up my values, or the right to act on them.
I think that the blanket rules are ultimately more liberty-enhancing than the case-by-case distinctions some people are talking about. Imagine the level of intrusion into your personal life, the lives and beliefs of your neighbors, personal conversations between you and everyone associated with anyone who ran a similar business and so forth that would be required to determine whether individual discrimination was a cover for concerted action, or whether someone could truly get alternative service without serious inconvenience. That level of pervasive, detailed questioning about people’s beliefs and would be way, way worse than just having to serve people who persons, actions or beliefs you object to.
Now of course, if you’re using “case by case examination” to mean “sorry, you don’t fit in, no redress for you” that’s another matter.
“I see no reason to grant businesses the right to exercise unlawful discrimination against customers.”
If they have the right to do it then it’s not unlawful.
Okay Robert point taken, I’ll work on rephrasing no discrimination to no discrimination without a valid reason (murderers, child molestors et. )
Obviously there is no valid reason for Discriminating against sexual minorities.
If we permit the bakery owner to refuse to make a wedding cake for the lesbian couple we as a society must also agree the Muslim gas station owner can refuse to sell gas to women who are unaccompanied by a close male family member. Is this the road we want to go down or isn’t it?
I like this example because straight people who do not see the discrimination against sexual minorities suddenly see it, because they themselves could then be discriminated against. When you change it up and give them the same set of rules and they can then see how they would be discriminated against, (Muslim gas station), then they see the underlying injustice
perpetrated on religious belief.
I’d let the Muslim gas station owner discriminate and lead a boycott.
I guess I’m essentially where Robert, Amp, GNW, & Jake are … the government ought not make people do stuff they don’t want to do, unless it’s really important, and not getting your cake baked at the bakery you want seems to be less than really important.
One difference, though, (in the general discussion, not specific to this case) is that I think the government ought to put its thumb on the scales a bit here. Not entirely. Not in a “make homophobia illegal and ship homophobes off to a gulag” kind of way, but in terms of weighing harms, I don’t weigh the harms done to someone who’s not free to enact their homophobia as strongly as I weigh the harms done to someone who has homophobia done to them.
Additionally, I think that one of these values is constructive to the creation of a multicultural society and one of them destructive, and I don’t think it’s unreasonable for that society to privilege one over the other.
—Myca
It really depends. As Charles says, the law identifies various axis along which you can’t discriminate. It is usually neutral as to direction – e.g. race, religion, ethnicity. Take race as an example, discriminating against someone for being Black is illegal, as is discriminating against people for being White.
But there are a couple of exceptions, for gender the law often contains loopholes – like very broadly interpreted ‘decency’ provisions – to allow for de facto discrimination, women only gym sessions and the like. Age, marital status, and pregancy are three others, these tend to be explicitly directional. So discriminating against people for being married is wrong (a response to the marriage bar) but discriminating against people for being unmarried is fine (so marital employee benefits can continue).
There’s no distinction in the case of sole traders and partnerships.
I don’t think there are. The emotional trauma’s there, but it’s there whatever – irrespective of the commercial aspect. If people hate you, make it clear, and only serve you because they fear being make to pay damages, then the emotional damage is still there. The law only prevents it impacting a commercial transaction (and perhaps by symbolically showing the majority are on your side).
I just remembered another cake case from several years ago — a neo-Nazi couple had a son named Adolf Hitler, and he was turning 3, and they wanted to get a cake for him with “Happy Birthday Adolf Hitler” written on it. The supermarket bakery refused — they’d write “Happy Birthday,” or even “Happy Birthday Adolf,” but would not write “Happy Birthday Adolf Hitler” on a cake. The general consensus in coverage of this seemed to be that the parents were idiots, possibly dangerous idiots, and I think I saw an article a few months later that social services had removed the kids from the home, but is that case legally any different from this one?
Sure there is. Like Charles said, the whole idea of what gets included as a prohibited axis of discrimination is an absolute minefield. Discriminating against people based on sexual orientation is currently illegal, but it’s open season on other sexual minorities (BDSM, foot fetishists, etc).
But in the case of mom-and-pop bakeries, I think we should err on the side of legal tolerance.
By “legal tolerance”, you mean that the law will protect bigotry as long as the business owner practicing it isn’t successful enough?
Seriously, Amp, I am baffled that you would make such an argument. Probably a rather high percentage of the hotels and restaurants and gas stations in the Jim Crow South that refused to serve ‘colored’ were mom-and-pop businesses, not McDonald’s or WalMart sized institutions. You’re arguing it doesn’t matter if we have a forest because the important thing is how big around each tree is.
The “it’s not important” argument also strikes me as not only misguided, but invites more government scrutiny. Is getting a cake baked important? How about buying a shirt? Or getting a cup of coffee at a lunch counter? Do we take into account how many other cake bakers there are? Does it matter what kind of options there are – if there are fifty ‘premium’ cake-bakers who won’t serve LGBT couples but the Safeway bakery does, is that OK? What if SweetCakes is the only one selling gluten-free cakes and the brides have celiac disease? “It’s a business” is a lot simpler than trying to create some kind of insane ratings system.
I also can’t help but wonder why so-called progressives get caught up short whenever the discrimination is against LGBTs and the excuse is religion. It’s like y’all are a bunch of political vampires cowering at the sign of the cross. If SweetCakes were refusing to sell cakes to an interracial couple because the owner’s religion taught race-mixing was an abomination, how many of us would be dragging our toes in the dirt and mumbling “well it’s not like he’s a big business”? Fucking zero, is my guess.
@mythago: I think in this case there might be some confusion with respect to employment laws like ENDA which do distinguish between businesses of different sizes. (I don’t know if that’s true for other employment discrimination laws, but I do know I’ve heard business size as an issue in ENDA discussions before.)
@Harlequin: I believe you are right. It’s worth noting that ENDA is federal (not state) and that federal anti-discrimination laws do not uniformly exempt “mom and pop” businesses; for example, there is no exemption whatsoever in the ADA. I’m just not following the argument that it’s wrong if the guy who bought and runs a McDonald’s franchise refuses to serve a gay couple, but if it’s Mom and Pop’s Burger Truck, then we should cut them some slack.
Mom-and-pop businesses are much more likely to be transparent pass-throughs for their owner/operators and their individual values. The McDonalds corporation makes a decision, probably technocratic if it reflects any value system whatsoever besides ‘maximize profit’, to be open or closed on Sundays. Frank’s Hot Dog Stand closes, because Frank is a devout [insert religious flavor here] and he personally thinks it is wrong to come in to work.
Along comes the Damnit I Wanted Food Today Act of 2013, mandating all businesses be open on Sunday. I think Frank has a hell of a good case that he should be able to say “fuck the law” and do what he wants. McDonalds, much less so.
It’s not size per se, it’s the transparency of the business’ policy – is there an identifiable individual human being or small group of human beings in there, exercising their own strong, defined, respected natural or Constitutional right?
I thought corporations were people?
That said, I don’t get the ‘transparency’ argument. If I and my buddy* are the sole owners of a corporation that employs a thousand people, why are we forbidden from refusing service to icky straight people, but if we’re shitty at growing our business so that we only employ three people, we can do as we please?
*Not the pool boy. He’s awful with money.
mythago,
I don’t entirely agree with it, but the idea is that if you, as sole proprietor and employee, refuse to make cakes for straight people, then your business doesn’t make cakes for straight people, but if you have two employees, then you can ask them to make the cakes for breeders and keep your hands clean.
If you push it one step further, and say that you only bake cakes for members of the sweet cakes bakery club, and the admittance process involves an interview where your discuss the customers religion and sexual orientation, then you are within the law to exclude straight people from your club and not make cakes for them. The idea is that the relationship between a self-employed baker (or pair of bakers) and their customers is closer to the private club relationship than to the relationship between a business with employees and their customers.
Certainly, in the previously discussed case of the wedding photographer, the fact that the wedding photography company had previously hired sub-contractor photographers was a strong argument to me that the wedding photograph service was a public accommodation rather than artistic expression. Likewise, if SweetCakes materials made clear that they only made cakes for people they approved of, and if the Kliens have no employees, then the argument that their cakes are personal expression of approval of the events they make cakes for would come closer to holding water.
Ruchama and RJN,
Political beliefs are not an axis along which most locations have laws prohibiting discrimination in public accommodations. If you want to refuse to sell gas to Republicans or people with NRA bumper stickers, you are entirely within the law.
Eh, I don’t know about the ‘private club’ argument. That’s what certain organizations used to claim, and then they were offering public accommodations (restaurants, bars) while their members were getting corporate sponsorships and tax write-offs for membership fees.
I’m also not buying the ‘personal expression’ argument. Surely the way that certain hipster coffee bars make coffee is a kind of artistic culinary expression, so if they didn’t want to serve people of a certain ethnic group would that be OK? If you are a sole proprietor of the business, then you are a business owner. You are not personally making cakes for your buddies; you are a business, and the difference is that as a sole proprietor your taxes and liability are handled differently than if your ownership was built on the corporate model.
So could he have legitimately discriminated against them, not because they’re gay, but on the grounds they support gay marriage.
I didn’t say it was. *Aaron Klein* said that marriage is a religious institution between a man and a woman. Therefore, *not* having a religious marriage is a different definition than the one he just stated.
But if you don’t like that example, I also doubt he discriminates against interfaith couples (2 Cor 6:14) or divorced couples remarrying (not each other) (1 Cor 7:10).
As I recall, mythago, most of the ‘private club’ arguers ended up losing their cases and opening up, did they not? And for reasons much like you laid out; they weren’t bona fide private places. A few places were able to make the case that no, by gum, they really were private so piss off, Johnny Law.
I agree with Charles that there are lots of ways that even a small business can lose the organic connection to the views of the owner(s) and not be entitled to go around discriminating against people.
@Robert, correct.
I’m not sure what size has to do with it. Either wedding cakes are a public accommodation or they aren’t. Whether it’s “Bob the Bigot’s Cake House” which is solely owned and run by Bob, or whether it’s “CAKECO, a division of General Megafoods” the issue seems exactly the same.
Ben – The moral issue of “is it wrong to discriminate against someone because of [x]” may be the same, but the legal issue is not.
Left and right disagree about where the boundary ought to be drawn, but both agree that there is some distinction between a corporate and a natural person. Natural persons have intrinsic rights; corporate persons have rights that derive either from an explicit grant by the state, or by inheritance from the natural persons that own or operate the corporation. (Citizens United, for example, is a holding that the free speech rights of people who own corporations pass through to those corporations, which then ought to be treated as if they were people when their right to free speech is weighed by a court.)
What the state can tell Bob in his role as CEO of BobCakeCo, and what the state can tell Bob in his role as individual sovereign citizen, master of his fate and captain of his soul, are two VERY different things. Many of the rights that Bob has in his natural person are attenuated or removed in his role as corporate honcho.
@Robert – the corporate form has nothing to do with this. A mom-and-pop shop can still be a corporation (or an LLC). Bob the baker can still sell millions of dollars worth of stuff and employ dozens of people as a sole proprietor.
I understand the argument that businesses of any size or form should be able to do as they please and antidiscrimination laws should not exist, even if I don’t agree with it. But “except mom and pop stores” or “except if Jesus” are poor arguments.
Yeah, looking at private club precedents, it is hard to see how you could reconstruct a bakery business as a private club. Particularly, you couldn’t do so now, since the law does not look favorably on private clubs created to avoid anti-discrimination law.
If a particular church has a wedding cake baking association that requires members to belong to the church and that only bakes for church approved weddings, that would probably be legitimately categorized as a private association, but it wouldn’t look much like a bakery.
But the form is important, Mythago. So long as the state is even-handed, they can put restrictions on corporate behavior that they can’t put on individual people, simply by making the restrictions part of the qualifying process for corporate status – corporate status isn’t a right. There’s a very real power differential in what government can do. It’s not just an emotional connection to mom-and-pop stores or a belief that Jesus wants it a certain way.
But anti-discrimination law in public accommodations has nothing to do with corporate charter law.
We’ve been making racists and religious bigots who run unincorporated tiny bakeries sell wedding cakes to people they despise for more than 40 years. Now some states also make homophobic bigots do the same. This isn’t some new puzzling subject the details of which still need to be worked out, this is long settled law.
If someone wanted to hire Amp to write a political cartoon extolling the virtues of the ex-gay movement, would we be ok with that person suing Amp for every cent he had if he said no?
If a mural artist refused to do a painting of gay people sent to the lake of fire for eternity, would we be ok with letting the person turned down sue the mural artist for everything they owned because she said no?
And I’m not even remotely convinced by the employer distinction. Is all good art only solo art? Michelangelo’s greatest works were done as an employee and with a team of people working under him.
If you’re selling undifferentiated goods, open to the public–fine so far as the undifferentiated goods go. You have to take all comers. And we have historically made a very limited subset of services such that you can’t turn people away–almost always transportation and housing (but even then not in your own house if you’re renting a room) and emergency medical.
At some point forcing people to do what they don’t want to do with their minds and bodies isn’t justifiable just because you want a cake. If they are putting you in danger, the government should step in. The fact that you have to get a cake from someone who is ok with gay marriage instead of someone who hates you is not the kind of thing that you should be able to force the government to step in on.
Creating wedding cakes for a wedding is an artistic endeavor. Maybe it isn’t an artistic endeavor you respect much. Maybe it is ‘low art’ kinda of like cartoons and comics. If you REALLY think that the government should be in the business of forcing people to engage in artistic endeavors (even low art) that they don’t like/agree with, I’m going to think you’re really wrong and kinda crazy.
The line isn’t that hard to draw here, and it is nowhere near a gas station.
The line isn’t that hard to draw, and it has included commercial cake bakers for 50 years. Racist cake bakers have had to bake cakes for black people for 50 years. Religiously bigoted cake bakers have had to bake cakes for Catholics for 50 years. Baking a cake for a Catholic wedding doesn’t require you to have a fanatical devotion to the Pope. Baking a cake for a black couple’s wedding doesn’t require you to think black people are your equals. Baking a cake for an inter-religious couple’s wedding doesn’t require you to not think that mixed marriages are an abomination before the Lord. It just requires you to do what you have decided is your fucking job: baking cakes.
I can find no discussion online of the question of whether refusing to paint a mural or draw a cartoon based on the theological, ideological or intellectual content of the work would violate anti-discrimination law. If anyone has links to that, that would be useful. Unless anyone has such links, I think it is reasonable to assume that such discussion of this is hard to find because refusing a job based on the content of the job (and not on any characteristic of the person offering the job) has not been found to be a violation of anti-discrimination law in the 50 years we have had anti-discrimination law.
Sebastian H @ 49, all of your analogies are about the content of the art, not about who it’s for. If the content/design of the *cake* was objectionable to them, that’s a different thing than if they found the *customers* objectionable. Nowhere did they say, “I don’t want to do a cake covered in rainbows, with two bride toppers.” They said they didn’t want to make a cake for *that couple.*
Perhaps this is a confusing example.
If there’s a wedding cake in the window, then anyone should be able to buy it.
In my experience (I know a few bakers and used to work in a bakery), most wedding cakes are custom made to order through consultation with a baker. It’s the consultation and custom aspects which make the matter debatable, at least in my view.
To use a personal analogy, I wouldn’t be all that upset if the state demanded that I agree to provide generic notary services to the public irrespective of what they were. I wouldn’t like to notarize a passport application for a Nazi but I’d do it if I had to. It’s quite different from requiring that I work with her on a will.
A business of any size is still a business. It’s obligated to obey nondiscrimination laws whether it’s a huge megacorp like Wal-Mart or a sole proprietorship.
No one operating a business should be allowed to discriminate against blacks, gays, Jews, Klan members, Tea Party radicals, etc. No one. When you start a business, you enter the role of a business–not a person. Even if you’re the only employer/employee and your ‘office’ is your spare bedroom, you still have to follow the same nondiscrimination rules as McDonald’s does.
Two options here.
1) You actually DO mean that in an entirely general sense; many people do. In which case, I’ll start talking about why it may not be reasonable to require John Doe, a black man who offers cleaning services, to clean the house of Poobah the Grand Wizard and dust his KKK memorabilia. And so on.
2) You actually DON’T mean that in a complete sense, and have some exceptions in mind. In which case, you should stop using such sweeping language, and should recognize that we are trying to discuss where the line is for that sort of exception.
Copyleft, the reason that most people choose #2 is that there’s such a wide range of variables. Sometimes it seems very intrusive on the person who is being restricted from discrimination; other times it seems far too burdensome on the recipient of discrimination. but all situations aren’t the same. If you look at this random selection:
1 treating ___ in your ER
2 selling a candy bar to ___
3 seating ___ in your restaurant
4 hiring ____ to work as a partner alongside you in your at-home business
5 providing custom tailoring services to _____
6 agreeing to draw a portrait of _____ across multiple sittings
7 working in _____’s home providing services to ____
8 drafting legal documents for ____
9 representing ____ in a legal matter
10 agreeing to privately tutor ____
11 advertising rental restrictions against ____
12 renting your investment property to ______
13 renting an apartment in your shared house to ___
14 renting a room in your shared apartment to ____
Perhaps it’s easiest to demonstrate with #11-14. Folks may not believe that I should be able to refuse to rent an investment apartment to straight white christians. But folks are more likely to believe that I should be able to refuse to share my owner-occupied two family house with them. And there’s almost universal agreement that I don’t have to actually share an apartment (and living room, and kitchen…) with people I can’t stand.
Robert @47: Again, you’re mixing up two entirely separate things. I’m not sure why this is difficult.
One thing that people haven’t mentioned here is that by law (and for good reason) you can’t compel people to perform personal-service contracts. You can only compel them to pay for any damages resulting from their refusal to do so (and, in some cases where they are licensed, to give up their licensed status for some period).
So everyone who abhors doing some they have contracted to do (either explicitly in writing or voice or implicitly by operating a public accommodation) has the option to subcontract or hire out or otherwise arrange that the work they abhor doing gets done and thus avoid liability. It’s only when they act, in effect, to prevent or obstruct that work from getting done that they run into a problem.
That’s not really an “out,” it’s just semantics.
Personal services are basically those things which we have decided are exempt from ND laws.
The “implicitly by operating a public accommodation” language doesn’t work either, for the same reasons. A public accommodation is functionally just a definition for something which is not exempt from ND laws.
If you prefer, we can have the debate about how to define something as a personal service or a public accommodation, and what the boundaries should be. But it’s the same debate.
No, it really isn’t. What “personal services” means is simply that you can’t get have people with guns come and tell the person to do the thing they abhor or go to jail. You can force them to pay damages, or to lose their job, or to pay for someone else to do it, but you can’t force them to do it themselves. So it’s subject to antidiscrimination law, but in a different way.
For example, if you sat down (today) at Walmart lunch counter and the staff refused to serve you because of your color, you could (hypothetically) get the police to come and tell the manager to tell the staff to serve you. Hash-slinging: not personal services.
But if you engaged Jean-Jacques FancyChef (via email) to come to your house and personally cook a spectacularly creative dinner for you and a dozen friends, and J-J arrived and said “Merde! You did not tell me the color of your skin” you could not compel J-J to cook. You could only sue J-J’s toque off for all the costs both financial and emotional.
The difference isn’t in whether or not there’s liability, only what the remedy is.
Sorry, GAW, I’m with Option #1. And yes, I would force a black owner of a cleaning business to do the Klan’s laundry if they requested it and paid for it in the same manner as any other customer.
Businesses do not have the right to discriminate on the basis of race, religion, gender, sexuality, etc.–not if they want to continue operating.
“Sorry, GAW, I’m with Option #1. And yes, I would force a black owner of a cleaning business to do the Klan’s laundry if they requested it and paid for it in the same manner as any other customer.” That’s your opinion, but it isn’t the law. For almost everything except public accommodations and products which can be bought off the shelf, we don’t require that. Even for race. If the KKK lawn cutting service contracts with individuals to cut their lawn, they are free not to agree to cut a black person’s lawn. There are probably a few states which restrict it, but I’ve never heard of it.
Now I’m open to the idea that specialty bakers have been ruled against on racial grounds before. But I’d be a little surprised, bald assertions up thread to the contrary.
Btw, lots of people are talking about public accommodation laws as the default setting with exceptions to be justified from there. My understanding (though I’m not claiming to be an expert on it) is that the right to refuse service is the default setting, with public accommodation laws for taxis, hotels, restaurants and hospitals carving out exceptions.
“Sebastian H @ 49, all of your analogies are about the content of the art, not about who it’s for. If the content/design of the *cake* was objectionable to them, that’s a different thing than if they found the *customers* objectionable. Nowhere did they say, “I don’t want to do a cake covered in rainbows, with two bride toppers.” They said they didn’t want to make a cake for *that couple.*”
Working with them to make the cake to the purchasers content specifications is part of working for them. The whole reason we don’t force services in the way we are discussing is because people who hate each other have incentives to screw the process up. You don’t want just a nasty tasting cake with a bride and groom on top. You want a good tasting cake, with Love Forever Sue and Sharron, across the biggest tier and two brides on top. That’s content. And you know how artists control content? By saying no to people who are going to want them to create content they don’t like. They discriminate. And we let them.
Now I believe the copyleft position is that amp ought to be required to accept the commission, and do a good job on the pro ex gay cartoon. But that isn’t the current state of the law at all. And we should be glad it isn’t!
Sebastian H or g&w,
Could either of you please link to any supporting evidence for your claims of what existing law is? I can find nothing to support your claims.
Let’s say a manufacturer of ammunition or guns decides that they don’t like the new anti-civil rights laws passed in New York State and declines to sign any contracts with or accept any purchase orders from the New York State Police or any other law enforcement agency in New York. Is that legal?
To add context; if you walk into any retailer that sells guns or ammunition these days you’re going to see a lot of empty shelves. As soon as a store announces that they will be receiving a shipment of any kind of semi-automatic gun or ammunition for such people line up to buy it. Prices have doubled or tripled. Stock sells out faster than it can be produced. The point being that this boycott would bring no economic penalty to the manufacturer.
Which claims are you talking about, Charles?
The distinction between personal services and public accommodations, and that anti-discrimination law does not apply to personal services.
From you: “Personal services are basically those things which we have decided are exempt from ND laws.” What is the test for what constitutes a personal service? Where is this exemption established either in the text of the laws or in case law?
Sebastian H: “Now I believe the copyleft position is that amp ought to be required to accept the commission, and do a good job on the pro ex gay cartoon. But that isn’t the current state of the law at all. And we should be glad it isn’t!” As far as I can tell, California ND law covers political affiliation, and forbids discrimination on almost all arbitrary reasons. What in California law, case law, or Federal SC decisions forms the basis for your claim on the current state of the law?
Did they? Serious question. I don’t know. But I assume it’s the cake that they objected to, not the customers. If the lesbian couple had gone in and asked for a Christmas cake, they baker might have been fine; or if I’d gone in with my wife and asked for a cake for our daughters gay marriage, they may have still had problems.
If they’d asked for an iced fruit cake, and sorted out the rainbows and toppers themselves, would it have still been an issue?
Going back to a much earlier point, could the “Small Town” issue be solved by imposing a distance test? Something like, “Blah blah Discrimination Law Right Now Blah… but if no other business offers substantially equivalent service/product within X driving distance (not straight-line), there are no exemption at all in any cases.”
It doesn’t solve any of the other problems above, but it would solve the “only ____ in Smallville” problem. X could be a fixed number, or could be scaled to the cost of the product (i.e., you’d be expected to drive further if the product was high-cost because the cost of doing so is a small % of the total item or service cost, while nobody expects you to drive 50 miles to find another source of a $5 item).
I dunno, Mokele, I see what you mean …. But say I walk into an ice cream store hand-in-hand with my girlfriend and ask for a scoop. Is it ok for the employee to refuse to make us an ice cream cone even if there’s another scoop next door? Does my right to equal public accomodation depend on how many ice cream shops there are in Portland?
(Hmm, and is it different if I’m refused service because the employee says “I don’t like the size of your grin” vs. “you’re an immoral dyke”? somehow I’m almost sympathertic to the former but not the latter)
There’s nothing there about the cake itself, only that he doesn’t want to make a cake for a same-sex wedding.
Yeah, that’s a fair point. Though that doesn’t necessarily rule out paying money to someone you hate for wasting their time and messing up their day. (Whether it rises to the level where you *should* have to pay them money is a different question, but no one is actually saying they should be forced at gunpoint to make the couple a cake.)
So, Duff Goldman has offered to make the couple a free cake. http://www.ktvb.com/news/regional/Ace-of-Cakes-star-offers-wedding-cake-to-gay-couple-an-Oregon-baker-denied-189868581.html
That’s pretty fantastic.
I don’t recall the test precisely. Generally speaking it’s something of a sufficiently personal nature that you can’t force specific performance. As a practical matter, this also tends to align with some of the thinking behind ND laws. The simplest corollary might be housing, where the level of permitted discrimination is unlimited for roommates but enirely barred for people who own large housing complexes.
I don’t remember. It’s in the “things I know generally” category; I’ve learned it and I used to be able to write a 20 page exm question on it, but not any more.
Can you point me to anything that where I would be able to read up on this? Googling “personal services non-discrimination” and “personal services public accommodation” and similar turns up nothing relevant and I can’t find any reference to this exception in anything I’ve read on non-discrimination law.
“personal services” appears several times in Oregon ND law but not in a manner that is at all similar to your description of its relevance.
[headscratch] not without putting in some research time which I am too lazy to do at the moment. Perhaps an old Con Law textbook at your local library; I think Cornell Law might have some of that stuff online….?
It’s possible I’m wrong, of course. I don’t think so, or I wouldn’t have posted it in the first place–but unlike some other areas this isn’t something that I routinely read up on or otherwise use in my practice.
To clarify: personal service issues are not legally the same as ND issues. They are functionally very similar to ND issues, which is to say that they share many of the same underlying morality and pros/cons.
Those include, for example, a consideration of the needs/values of the person demanding the service; a consideration of the relative harm of the parties; the benefit to society from having people able to refuse; etc.
I looked up the Human Right Act in Illinois when the Catholic threatened to close down their adoption and FOSTER CARE business after Illinois approved Civil Unions. The Illinois Act does a nice job of being very specific on defining a Public Accomodation.
http://law.onecle.com/illinois/775ilcs5/5-101.html
And what is not a Public Accomodation
http://law.onecle.com/illinois/775ilcs5/5-102.html
http://law.onecle.com/illinois/775ilcs5/5-102.2.html
http://law.onecle.com/illinois/775ilcs5/5-103.html
Oregon definition of public accommodation is quite broad,
but case law does exclude people who negotiate the contract of their services, even those of a non-expressive nature.
e.g.
quoting further from the decision:
SweetCakes probably runs afoul of the fact that it has a store front with regular business hours (open to the general public) and that it advertises (“Remember we do cakes for any occasion” seems particularly damning). If it were a purely “by appointment” wedding cake business with no retail sales, advertised by word of mouth, it would probably fall into the same category as Henry the custom builder, since it does contract for the design, construction and delivery of cakes.
OK: you call a cab to take you to the airport, but when the cab arrives, the cabbie notices you are wearing a little Christian cross around your neck, and since he’s a Muslim, he refuses to take you.
OK, now suppose the majority of cabbies in your town are Muslim.
I think this exchange with President Kennedy is relevant:
http://www.youtube.com/watch?v=VncggFlkuNw&t=11m22s
…and funny. And there’s a whole lot of subtexts fighting for position there.
GoodAsYou has a video of the bakery owner. What jumped out at me was when the owner declared he has the “freedom of religion, which includes the freedom to exercise his religion”. Yes BUT. Some States do curb, or if you will wall off, where and when you may exercise your religion IF your religious beliefs tell you to discriminate against people based on their sexual orientation. The right not to be discriminated against in Public Accommodations trumps your freedom to exercise your religion. If your brother is gay, and you are not in the bakery business you may tell your brother that you are not going to bake him a cake. If you are in the bakery business you have to bake that cake for your brother.
It cannot be both ways. Freedom of Religion, the freedom to discriminate against sexual minorities can never exist simultaneously with the rights of sexual minorities to be free from discrimination based on their sexual orientation. In 29 States they have decided that it is perfectly okay to discriminate against sexual minorities simply because they are a sexual minority. “Gays need not apply” IS legal in 29 States, but Oregon is not one of them.
We have decided as a society that the Muslim gas station owner may not refuse to serve women unless the women are accompanied by a close male family member, because that is sex discrimination against women. You are treating women customers differently than male customers. We are currently deciding if these same protections against discrimination should be granted to sexual minorities. I think we should. I think that we should curb people’s freedom to exercise their religion in public commerce, if their religion causes them to discriminate against sexual minorities. We should, because there is no other legitimate reason to discriminate against sexual minorities other than religion. Then whose religious views should prevail in our civil laws? The freedom from discrimination based on a persons sexual orientation is more important than the right to discriminate. Death by a thousand paper cuts is still death. People should not have to worry, or even have to think about if they will be served or not, when their hand is on the entry door to a business. The indignity of being refused service because of your sexual orientation has to leave a little cut on that person every time. Those indignities accumulate (death by a thousand paper cuts). We as a society are better than that. Since it cannot be both ways, we need to limit the exercise of Religion in public commerce.
Charles, I think the phrase is “intimate settings” and I think it can be found in the Fair Housing Act (1968cra) as opposed to the the 1964 one. They were known at the time as the “Mrs. Murphy Exemptions” (see video link above).
As far as the title VII of the 64cra goes, there are exceptions for small employers (or at least there were…I’m not a lawyer…I’m just recalling the legislative history of the CRAs).
Then you have the 1A exceptions, but those aren’t encoded in the CRA’s, with the exception of religious ones. But these days, led by Scalia, SCOTUS generally funnels all expressive content (religious or otherwise) thru the free speech clause. Bakers or wedding photographers would have to argue that they are expressive organizations (as in the Boy Scouts as opposed to say MSFT) and therefore protected by the 1A.
Returning to something where I am 100% certain I’m correct, I’ll also note that anti-discrimination laws in employment don’t generally apply to very small businesses (federal laws never apply to small businesses and have relatively high caps. I haven’t done a 50-state survey but my own state of Massachusetts has a 6-employee cap below which you can discriminate at will; given how employee-friendly we are, I doubt that other states are much better.)
Again, this is a similar moral analysis:
The right of employees to have a particular job irrespective of their personal characteristics is balanced by the right of an employer to hire who they choose. That’s true even when the employer’s choices derive from internal prejudices which we find distasteful.
We’re willing to make an imposition on the employer’s choices in order to benefit the public good. But we limit the extent of that imposition by using “company size” as a proxy.
Housing discrimination law; employment discrimination law; public accommodation law; personal services exemptions: All of those things are inherently looking at very similar sets of moral analyses, whether or not that similarity is immediately obvious from the laws themselves.
gin-and-whiskey @83: actually the ADA is a notable exception of a business that has no cap, IIRC. But that aside, we do treat public accommodations differently from employment; the burden on the business is different, and there’s a recognition that the purpose of the law is frustrated if a huge number of public accommodations can get around it by virtue of being “mom and pops”.
I think you’re right about the ADA, though it has some other odd features like grandfathering.
From my point of view they’re all stemming from the same framework of moral analysis, but that’s just a point of view.
Worldwide, people have answered this question in many ways, ranging from state-sponsored discrimination in some countries, to England’s rules regarding barristers, who technically cannot decline representation even of clients they dislike.
It really revolves around how you answer the questions
“When we are considering whether or not to protect the interests of a minority group, can we ever decide that we WON’T enact the protection?”
and
“When we are considering how to protect the interests of a minority group, should we take into account the costs/feelings/interests/etc. of the majority group, and if so, how?”
There are a non-insubstantial number of people who appear to answer the questions as “no” and “no.” For them, the whole moralistic discussion is moot.
The thing about the context of the cake seems to be confusing a lot of issues. The bakery owner says that he has gay customers. So, I see a few scenarios here:
1. Selling a “Happy Birthday” cake to a customer who he knows to be gay. This one, I think he should be required to do, and it seems like he already does it. So, no problems here.
2. Selling a “Congratulations on your marriage” cake for an occasion that he doesn’t consider to be a marriage. This one, he doesn’t think that he should be required to do. I’m a little uncertain on how I feel about this one — I’d put it with the “Happy Birthday Adolf Hitler” cake in terms of “people shouldn’t be required to write things that they don’t want to on cakes,” I think, but I could be persuaded to feel otherwise.
3. Selling a cake without a message written on it, and which is not obviously a wedding cake, which he knows will be served at a same-sex wedding. This one, I’d say he should be required to do — he has control over what kind of cakes he’ll make, but he doesn’t get a say in where those cakes are served once they leave his bakery.
Cake bakers aren’t home owners renting a room in their house (and there is no legal carve out for tenants subletting a room in their house, this is established law).
Expressive group defense is only allowed for non-profits, and for semi-private groups, not public accommodations.
The defense the bakers would use is the same one that Amp would use for refusing to make a cartoon he didn’t approve of, that he is not a public accommodation because he only does jobs that interest him or that he approves of, that he doesn’t advertise his services except to specific people (so sending out solicitation letters is not the same as publicly advertising), and that he negotiates a contract with each client. Since the bakers don’t do those things, they’ll have a hard time making their case.
House building and cake baking are not expressive, but expressiveness is only a carve-out for non-profit groups, not public accommodations. If you stand on the street corner and offer to write a poem on anything for $5, you have created a public accommodation and you can not refuse to write a poem congratulating a lesbian couple on their recent marriage, nor can you refuse to write a poem for a black person. If you are a poet who sometimes writes poems on commission, and you don’t advertise this service, you are not a public accommodation and you can choose your clients and your subjects as you please.
The state is not forcing you to be a public accommodation, it is merely providing a means of enforcement of the implicit contract you enter into with everyone who walks through the door of your public accommodation, that you will provide the services advertised and will do so without prejudice based on protected categorical axes.
Huh?
It’s OK if you think I’m wrong, because arguing about what the law IS is a lot less interesting to me than arguing about what the law should BE (since the former is a lot more limited)
But for the sake of discussion, you make an interesting statement here:
If you stand on the street corner and offer to write a poem on anything for $5, you have created a public accommodation
If that’s your view, how about if you stand on the street corner and offer to “write a poem on anything for $5 so long as you like the subject and/or author?”
The state is not forcing you to be a public accommodation, it is merely providing a means of enforcement of the implicit contract you enter into with everyone who walks through the door of your public accommodation, that you will provide the services advertised and will do so without prejudice based on protected categorical axes.
Well, sure. If I agreed that operating a business was akin to that sort of implicit contract, then that would make sense. But I think we’ll politely have to rest on different sides of this oft-contentious issue.
At heart, it’s probably an approach from two different sides: do you come at it from the sense of individual rights, subject to limitation by government in certain cases in an attempt to equalize things? Or do you start from the perspective of government-imposed equality, subject to limitations which allow some people to exercise some individual rights?
“there is no legal carve out for tenants subletting a room in their house”
If you advertise on Craigslist that you are looking for a roommate, and then you refuse to sublet to Asian-American roommates, you are violating the Fair Housing Act unless you own the house that you are subletting part of. There is a specific exemption for owners renting a room in their house in the law. There is no specific exemption for tenants subletting, and the courts have ruled that that lack of specific exemption means no such exemption exists. That is what the law is. You presumably think the law should be different, but presumably you don’t think the law isdifferent? If you do think it is different, please go look it up. I can’t be bothered to hunt up the specific case that affirmed that it does not extend to subletting.
I realize that you believe that more forms of discrimination should be allowed than currently are. My point is that non-discrimination law for sexual orientation should be modeled on existing non-discrimination law.
Oregon non-discrimination law forbids discrimination of services in public accommodations, and defines public accommodations as places or services where commerce with the general public takes place. If you declare that you will write poems on any topic for $5 for anyone, you have to write poems on any topic for anyone. If you declare that you will write poems on some topics of your choice for anyone, then you can refuse to write poems on topics you don’t want to write on, but you can’t refuse to write poems on topics you normally write on based on the categories your customer belongs to.
Your Manichean dichotomy in the last paragraph is just silly and not accurate or useful.
Actually it doesn’t have to be the house you own and live in; if you are a property owner with less than four units, and you live in any of the units, you can discriminate against anyone you like in all four units. You can’t advertise the discriminatory preference, but you can have it.
Additionally, in roommate-type properties where there is a common area (bathroom, kitchen, etc.) it is permissible both to discriminate and to advertise the discrimination, but only on the basis of sex.
There are a few other exemptions but they don’t affect many people – but, see below.
(Source for the above: http://newyork.craigslist.org/about/FHA)
While it is logically attractive for reasons of consistency, the idea that existing anti-discrimination law should be the model for extensions of the law into the area of sexual orientation is too reactionary, hidebound, and tradition-respecting for my modern, liberal sensibility. Those laws may be well-written or they may be poorly-written; it is difficult to get agreement on what they say, never mind what they ought to be. Clearly any new laws should start from a tabula rasa and attempt to address the problem from first principles, using pure reason.
I snark, but the existing laws seem rather a mess, and they certainly aren’t followed by default; I’ve seen any number of discriminatory preferences posted in advertisements or expressed tacitly or explicitly in face-to-face meetings with landlords. Sexual orientation is also, practically, different from race, gender, etc. in that most of the categories of existing law are things about a person, not things that a person might be likely to do. Black people can like hip-hop and/or opera, men and women both knit and play baseball, etc. Although not nearly so changeable as religion theoretically is, sexual orientation is more akin to religious affiliation in that it gives some predictable generalizations. Bob the devout Catholic retiree is likely to be leaving the house every day at 5:30 AM to catch morning Mass. Bob the gay party boy is likely to be arriving at the house most mornings around 5:30 AM to get a quick shower and get to work.
And the housing laws allow religious communities to discriminate on the basis of religion, so long as the underlying faith community doesn’t discriminate on race, national origin, etc. So Bob the Catholic is free, in fact, to form a Catholic commune and explicitly tell everyone else to fuck right off.
Which from your POV might indicate that we should get AWAY from existing law; existing law seems to carve out, vaguely but effectually, a sphere of greater freedom of action for discrimination based on behavioral group membership, rather than innate genetics or family history.
Charles S,
I see now that you know more about the specific legal principles in play than I do and that I’m leading you astray by pointing to the ’68 Fair Housing Act… since a bakery has nothing to do with housing. I really just came here to post the Kennedy video, so Mrs Murphy was on my mind and her objections seemed to vaguely // the baker’s.
I was not aware that the “expressive group defense is only allowed for non-profits, and for semi-private groups, not public accommodations.” The only thing I have to add now is to look into “Elane Photography v. Willock”. Here, the photographer did what the baker did and is arguing that, even though her business is a public accommodation, she engages in protected expressive conduct (creating artisitc works for $$) and thus can’t be compelled to create something.
Not sure if the conduct/group distinction flies, but you might want to look into it. I think the case is still working its way up the ladder.
Manju,
Thanks, I don’t really know that much about this, but this is my second round of googling and reading. Previously, I mostly only know about this stuff from reading up on it in response to the discussion of Elane Photography v. Willock.
Robert,
“Although not nearly so changeable as religion theoretically is, sexual orientation is more akin to religious affiliation in that it gives some predictable generalizations. Bob the devout Catholic retiree is likely to be leaving the house every day at 5:30 AM to catch morning Mass. Bob the gay party boy is likely to be arriving at the house most mornings around 5:30 AM to get a quick shower and get to work.” [emphasis added]
This is beneath you and absurdly offensive. Fuck right the fuck off you fucking fuck.
You had some other yammering in that comment, but I’m sure as hell not going to grant it the dignity of a response. Fuck off and, after that, fuck off some more. For good measure, go fuck the horse you rode in on.
Seriously, Robert, what the fuck? Did you actually just write that shit, or did someone hijack your keyboard?
Are you under the impression that there are no gay men who stay out late at night partying? I suspect that we must know different gay people, then. More power to them, the lucky devils.
In any event, that was a thoughtless and clumsy comment, but the intent was to reference in a veiled way the fact that the issue some landlords have with renting to gay folks is that they find the sexual practices of many gay people to be icky, and not unreasonably they do not want people doing things they find icky in their house or apartment building. I am sympathetic at least in a general sense to this icky-phobia, without specifically identifying it as a gay thing; undoubtedly there are landlords who don’t want straight people doing icky things either, and I sympathize with that, too. This is all opposed to, say, black people or women or people with terrible arthritis; those groups don’t generally have a collective set of practices that are unpopular.
‘I don’t really object to Jews! I just find it icky that they go to synagogue and wear those beanie things. But that doesn’t make me anti-semitic.”
Oh, its been a while since I posted here, so i was unaware of this ongoing discussion. I’m thrilled to see the libertarian view of anti-discrimination laws being taken seriously.
Having said that, my own view is that while property rights and broad free speech protections are critical principles for a liberal regime, so is equal protection under the law. Therefore, until we figure out that the original meaning (as opposed to intent) of the Equal Protection Clause makes same-sex marriage bans unconstitutional, I don’t plan to do a damn thing about rolling back anti-discrimination laws. To do otherwise strikes me as perverse and disingenuous.
And even then, I might demand reparations for Af-ams first. After that, we can talk.
You could be anti-Semitic as hell. I’m not saying that the ‘gay sex is teh icky’ people aren’t homophobic; indeed, that would seem to be exactly what they are, literally. But the law doesn’t and won’t (and shouldn’t) ban ‘homophobia’, it bans certain types of discrimination.
Ampersand, I don’t understand why you seem torn on this. The argument is based on a big fat (sorry Chris Christie, obese) lie: “…his Constitutional right to freedom of religion….” He can go a practice his religion. No one says they want to stop him. He can make chicken blood cakes for all I care. But that has nothing to do with the discrimination.
The argument is based on a big fat (sorry Chris Christie, obese)
Wow, hilarious.
No no no, if you want to properly parody political correctness, you wanna go with “people of size”.
Seriously, parodies are just not funny if the person making the parody doesn’t properly understand the subject of the parody. Then it just looks really off the mark and poorly done for people who do understand it. Not that understanding the subject is more than a minimum requirement for teh funny.