Three reasons why baking a cake is NOT a free speech issue

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Bakers and photographers are at the center of the debate over same-sex marriage. First, it was a few conservative Christians who were sued and investigated for refusing to providing cakes or photography services to same-sex couples. And now, a baker in Colorado is facing a civil rights complaint for not making Bible-shaped cakes featuring anti-gay words and images.

Can bakers and photographer refuse to serve someone because they don’t want to endorse their marriage? Or because they don’t agree with their religious views?

Baseball wedding topNope.

Like it or not, the courts have ruled that bakers, photographers, and other businesses are exactly that — businesses. Their business decisions are not speech, they’re commercial transactions that are open to the public, the entire public regardless of race, gender, religion, and (in many states) sexual orientation.

Here’s three reasons why the courts have consistently ruled that free speech rights don’t trump civil rights laws.

1. They are public accommodations, not private individuals

Bakers and photographers aren’t individuals who spend their lives expressing their own views. They’re businesses who serve the general public. There is no difference between a baker and a bank. Businesses that do creative work must follow the same laws as everyone else.

Businesses can’t decide against some clients and not others — at least not those protected by civil rights laws. A baker who normally offers to make cakes for the general public can’t decide not to make a cake simply because of the client’s race, religion, and (in many states) sexual orientation. Either the business offers its services to everyone, or it doesn’t.

2. They are in the business of making products for clients, not expressing their own views

A baker is not in the business of spreading his or her own views. When he makes a cake that says “Happy Birthday Bob!”, he is not expressing his views on Bob or his birthday. Instead, a cake is given to a client only. Wedding photographs are bought by a couple. This is not like a newspaper being told what to write. People know that bakers and other businesses’ services are not endorsements. They are hired in an economic exchange. A cake that says “Congratulations to Bob and Mary!” doesn’t need to know who Bob or Mary are, let alone approve of their marriage.

3. They can express their own views through words, not by denying services

Bakers and photographers do have one free speech right. If they disapprove of a message, that business is free to express that disagreement. They can announce their disapproval both to the client and to the public. What they can’t do, however, is deny a service that they would normally provide to the public.

A conservative Christian can tell a client that he doesn’t approve of their nuptials. He can make public statements expressing his disdain for same-sex marriage. A baker can tell a client that she finds his views on God disdainful, even as she gives him the cake.

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  • Frank

    Completely unconvincing.

  • 1. I doubt any of the photographers or bakers would say they are denying service based on the client’s sexual orientation. If a gay man were to order a cake he would get the cake. Their issue is with an actual event, a “wedding”, the concept of which they find offensive and socially detrimental.

    2. However, according to your rationale, a black baker would be obliged to accept an order for a cake commemorating a KKK parade? Or a Jewish baker must not deny service to neo-nazis who order a cake praising Hitler? Again, we are talking about events and social/political messages here, not people.

    So following through with this, if a photographer was hired to do a session meant to glorify paedophilia, even if there was no crime committed during the shoot, he/she could not refuse…

    If you agree with all of these, then at least I’ll agree that your position is consistent. But if you insist on equating these refusals with the refusal to serve gay people just because they are gay, then you the rest of your argument is always going to be skewed.

  • Leo

    Unconvincing, like your substance-free critique of this article?

  • Larry

    1. What they say and what they are doing are two different things. You can call it, refusing to affirm the customer’s act. But at the end of the day you are denying services and goods on the basis of the customer’s sexual orientation. The issue is a business open to the public refusing to serve the public out of personal animosity and petty bigotries.

    2. We had that example in real life but the major difference being the baker was willing to accommodate the customer and find some other way to do business, other than make the frosting message which was patently offensive and tasteless. This was not a refusal of all business, it was a refusal to handle a special request in the process of doing business. Plus Nazis, Klansmen and pedophiles aren’t covered under any state’s anti-discrimination laws.

    The main issue is one of civility. There are many reasons to refuse certain kinds of business having nothing to do with expressing one’s personal bigotry. But in the case of the anti-gay businesses, they chose to avoid such things. They expressed the reason for refusing business was purely based on bigotry (cloaked as religious belief). The businesses owners specifically meant to demean and attack the potential customers.

    If one is so overcome by such petty hatreds that they cannot serve the general public, then there are other ways to do business. One can do business by word of mouth, limit advertising to churches and the like, do business as a private club, do not keep a store open to the general public. But being lazy and expecting undue privileges from the public, such “Christian businesses” want all the advantages of open commerce but none of the responsibilities.

  • Frank

    No substance needed here.

  • Leo

    1) If a baker publicly advertises wedding cakes as a service they provide, and refuses to exchange that publicly-advertised service for a gay customer’s money because he or she is gay, then they have in fact denied service because of the customer’s sexual orientation. That fact doesn’t change just because the bakers would prefer that their actions be described otherwise.

    2) If a baker chooses to advertise Hitler cakes and KKK cakes, then they have to sell them to whoever wants to buy them without regard to their membership in a protected class. If they don’t advertise such cakes, then they don’t have to sell them to anyone. Anti-discrimination law doesn’t entitle anyone to demand a product or service that is not part of a business’s advertised lineup. But a wedding cake isn’t magically transubstantiated into a different product the minute a gay couple requests it. Again, if a baker advertises wedding cakes, they have to sell them to people who want to buy them without regard to their membership in a legally-protected class. That brings us to the second major problem with your analogies: believing in Hitler, belonging to the KKK, or being a pedophile or pedophilia advocate are not legally-protected classes anywhere, therefore, no businessperson could ever be sued for refusing to provide service to a KKK member, a neo-nazi, or a pedophile or pedophile-sympathizer, that kind of discrimination is perfectly legal.

    Your argument is the one that is fatally skewed by facile false equivalences; you equate gay couples with KKK members, neo-nazis, and child rapists, and you equate their request to purchase publicly-advertised goods and services with a demand to create an unadvertised product to express a malicious and hateful message. Don’t you think there’s something just a little bit “skewed” about equating a same-sex couple’s wedding with a neo-nazi rally or a pro-pedophilia event? Do you find gay couples that inherently loathesome and offensive? Do you think it’s reasonable to?

  • Thanks for your thoughtful defense of civility and civil rights.

  • Leo

    I guess, if you don’t care about persuading anyone.

  • Larry

    Some boneheaded Christian bigot tried to “set up” a bakery with the hate speech hypothetical. The problem with the set up was the baker was willing to bake the cake just not write the message on it as requested. The baker was even willing to supply the materials so the bigot customer could write his own message.

    There is a big difference between “we don’t serve your kind here” and “that request is ridiculous, here is how you can do it”.

  • Frank

    I don’t need to persuade anyone. It’s all about religious liberty. Everyone has failed to prove its not.

  • Ben in oakland

    So many fallacies, so little time.

    1. They are denying service because they find the alleged a ts of their potential clients offensive to their religious beliefs. They are not being required to endorse those acts or participate in those acts. They are denying service based upon their religious beliefs, something that is forbidden at every level of government. So do you believe that laws that forbid such discrimination should be done away with? Or are you arguing that the cake made for the Hindu couple who reject the totality of this bakr’s religious beliefs is a legal requirement, but the cake made for the Christian gay couple who reject a teeny tiny part of this baker,s beliefs is not?

    2) The KKK is not a protected legal class. nor are nazi’s. Nor is it likely that a black baker or a jEwish baker would be given business by an pro-discrimination group.

    3) AS ALWAYS, if you don’t wish to serve a particular customer, there are entirely legal ways for a vendor to do it, starting with “I’m booked.” But the so called christians really desire to make their bigoted views known to the persons they despise.

    And THAT, my friend, is what this is really about: their completely unwarranted belief in their wholly imaginary superioirty as human beings, but especially as babble-believing christians. And the rather nasty need to let the people they despise know about it no uncertain terms.

  • You continue to insist that business is being refused on the basis that the client(s) are homossexual. That is not the case, it doesn’t become the case by you insisting on it.

    To argue that it is the case you must present gay marriage as being inseperable from homossexuality. But this is clearly not so, as there are gay men and women who have no interest whatsoever in the gay marriage agenda and do not defend it. Being gay and gay marriage are not the same thing, and therefore refusal to participate in any way in a gay marriage cannot be equated to discrimination on the basis of sexual orientation.

    Having said this, the “protected class” issue falls through. This is not discrimination of a protected class, it is discrimination (which in itself is a neutral term) of a specific act with far reaching social implications, regardless of the individuals involved.

    To imply that I was in any way saying that homossexuals are in the same league as peadophiles or neonazis is absurd, since, I repeat, this is not about people as homossexuals, it is about the social events involved.

    Finally, the fact that the baker advertises wedding cakes is part of the point. In his mind and according to his beliefs, which can be supported by his religion, but are don’t necessarily have to be, what is taking place is not a marriage, regardless of whether the state decides to call it that, since neither the state nor federal government nor churches have the authority to rename and redefine an institution which precedes them and is independent of them.

    I am not saying you have to agree with this, you clearly don’t, but that is how the baker/photographer/I see the issue.

    Thank you for your replies.

    All the best,

  • Ben in oakland

    Well, then! If it’s not a marriage, you have just undermined your own statements, haven’t you?

  • Ben in oakland

    Not to mention, in 21 states and a large number of municipalities, gay people ARE a protected class. and where they are not, it is STILL discrimination on the basis of religious belief. Just becuase you prefer to not believe that, doesn’t make your statement any the more true.

    Here’s what I suggest: let’s eliminate all laws which protect anybody from discrimination, especially for that choice of religious belief. But trying to find exceptions to them just underlines why we have them. I also suspect that the loudest howls will come from the conservative Christians who are all of a sudden not so special.

  • Filipe

    Undermined my own statements in what way? That is the whole point.

    And, again, for it to be discrimination on the basis of religious belief, this would have to be an exclusively religious issue, which it isn’t. You can be an atheist and disagree with gay marriage, you can be an agnostic and disagree with gay marriage, you can be gay and disagree with gay marriage.

  • Larry

    “To argue that it is the case you must present gay marriage as being inseperable from homossexuality.”

    Like arguing interracial marriage is inseparable from issues of racial prejudice. Done. Easy. You are talking about homosexuals getting married. Trying to redefine terms or making excuses for clearly bigoted and discriminatory conduct merely shows an unwillingness to deal with the issue at hand in an honest fashion.

    You are trying to describe discriminatory conduct which is meant to be malicious and harmful to the person on the receiving end. Those “Christian bakers” chose to tell the gay couple they didn’t want to bake the cake because they held the gay couple in religious inspired contempt. it was meant to demean and attack the customers.

    If your religious beliefs so derange your ability to do business to the open public, then you should not keep your business public. This way you can discriminate to your heart’s content without fear of laws working against you. Nobody said your “deeply held” religious beliefs should come free of personal cost.

    “Thank you for your replies.”

    Because its not like you took the time to read them or understand why your arguments are so weak.

  • Scott

    We have had enough with people who say that those of us who don’t believe in same-sex marriage are bigots and homophobes. That is a lie. Pure and simple. The radical left continues to commit libel and slander on this issue.

  • Larry

    But you ARE bigots and homophobes. There is nothing about such a stance which isn’t informed by bigotry. There is no rational or secular purpose behind banning marriage equality. It is all about telling gay couples that they should be discriminated under the color of law for no apparent socially redeeming reasons.

    its only lies, libel or slander if its untrue. You aren’t doing anything to show why such labels should be considered such. Scott, your statement brings up one of the most brain dead, canned, overused argument thrown around by conservatives playing the politics of bigotry.

    Rather than refute being labeled as a bigot, they only complain about being called one. As if honest evaluation of their position should be seen as an attack. If you don’t want to be called a bigot, don’t act like one. If you want to complain about being called one, tell us why the label is mistaken somehow.

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  • Chaplain Martin

    Re: Tobin Grant,
    “Don’t miss any more posts from the Corner of Church & State”.
    I’m interested in where Grant got his title for his blog.
    A seventy-nine year old organization, Baptist Joint Committee for Religious Liberty has used in their advertising a logo of street signs which depict “At the Corner of Church and State. I don’t know if they have registered it as a trade mark, but it is interesting what inspired this title for Grants Blog.

    Another matter to quote: “He is a political science professor at Southern Illinois University and associate editor of the Journal for the Scientific Study of Religion.”

    First, there is nothing in this statement that indicates he is a constitutional attorney, but he feels free to give his opinion as if he is a expert.

    “Scientific study of Religion”? I guess it all depends on how you define scientific. Come on Grant educate me on that matter.

    The so-called Christian suing the Baker just wanted to make a case, No way do I think the baker is denying the civil rights of the customer by refusing to put the vile lettering on the cake. Yes I know I’m not an attorney.

    I am a Christian and I don’t agree at all with the customer. The first use of the name “Christian” was first applied at Antioch. It was actually a derogatory remark. As in “those are just followers of the philosophy of that dead Jew.” Well it’s again become something derogatory in for many in our day. Early Christians lived up to being actual followers of Christ and made the name Christian honorable name.

  • Larry

    The so-called Christian suing the Baker just wanted to make a case, No way do I think the baker is denying the civil rights of the customer by refusing to put the vile lettering on the cake. Yes I know I’m not an attorney.”

    But there are plenty of Christian groups, especially ones chafing at anti-discrimination laws who want to see the incident as “turnabout”. The case is entirely frivolous. But given the charged political climate it will get undue attention by the courts (before being dismissed).

    Misrepresenting facts and claiming illusory civil rights being violated is part in parcel with false claims by American Christian conservatives of being “persecuted”. We see it every time a self-professed Christian gets rebuked in public for acting in obnoxious and inappropriate ways.

    We saw how the deliberate distortion affected the public view of incidents Houston and several pastors and Atlanta with its wayward Fire Chief.
    The conservative Christian narrative is that these people are being attacked for their reactionary religious views. The reality is they were under scrutiny for acting badly. Religious views were not relevant to the situation.

    The ultimate goal of such lies and distortion being the passage of laws which undermine all notions of civil rights protections by carving out arbitrary and vague “religious exceptions”. Essentially making any claim of a strongly held Christian belief grounds for discrimination without consequence. When it comes to other faiths, the expectation is that they have to follow “laws of general application. Hypocrisy is a major component to these arguments

  • Monson is Devils disciple

    Frank, we don’t have to prove a negative. It is you that must prove your positive claim that it’s about religious liberty.

    People have civil rights. First, public accommodation isn’t something we need to prove. It’s a fact. You need to prove an exception to it and give a compelling reason why non-specific is recognition of something. Does banking with members of the evil Mormon cult mean we financially support them? If I’m a doctor and the evil Mormon prophet is rushed into my Ex can i let Satan’s follower die like the scum that he is?

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  • Chaplain Martin

    Tobin Grant,
    I am waiting for your response to my comments. Surely, you would want to answer anyone who expresses any doubts on your qualifications for such a blog. Being a political science professor, I would think you would come back with your expertise on the U.S. Constitution and especially the development of the Bill of Rights which would serve to express and informed decision about that poor baker. Now I usually contact the Baptist Joint Committee for Religious Liberty with questions about how constitutional law might come into play, but I’m just a dumb Baptist preacher. I know, I’m baiting you, but a negative response is better than no response at all, or is it?

    Larry, have you read my response to the Atlanta Fire Chief firing? Frankly, I have reached a place where I’m sick and tired of ALL Christians being painted with such a negative brush. I don’t know that I agree with the pastors, and they should have gotten more legal advise and investigated the issue more before speaking, so what? This stuff has gone on in different ways as long as and before this nations founding. Look up the presidential election of 1800. That election the Baptist and other dissenters sided with Thomas Jefferson to defeat John Adams. in an election in which “Elect Adams and God, elect Jefferson and no God.” That election did a lot for religious freedom in America. Jefferson quoted Baptist John Leland, to the fact that if a person believed in one god, two gods, twenty gods or no gods he should have the right to do so. I know these are not exact quotes but you can look them up in Frank Lambert’s book on the Founding Fathers and the Place of Religion in America. Some of Leland’s writings are still around if you want to read it from the source.

    Maybe Professor Grant can help out here. Actually I sometimes wonder what RNS hopes to accomplish with the blogs and why in the h… I comment on them.

  • Larry

    “Frankly, I have reached a place where I’m sick and tired of ALL Christians being painted with such a negative brush.”

    Well, I am sick and tired of Christians using the “We are not all like that” argument when they are feeling defensive. Rather than wait until it is no longer relevant, it would be far more helpful to call out the nonsense of Christian extremists in a timely manner.

    Btw I usually qualify my use of “Christian” as either “Conservative” or “Fundamentalist” varieties. But then again those groups, don’t bother to distinguish themselves from the entirety of Christendom. They feel the urge to speak on behalf of the entire faith, usually without objection from other sects. I don’t feel the need to make a distinction if they won’t either.

  • Brian Ferguson

    Nazi’s are not covered? Gays are not covered under anti-discrimination laws in many states either, so do you support the baker’s rights in these states?

    Also, the Supreme Court has already granted person hood (including religious rights ) to corporations in the Hobby Lobby case.

    Sorry, but those lower courts are off base.

  • Brian Ferguson

    But the bakers don’t define that as a “wedding”.

    And if a bakery says it bakes cakes “for all occasions” (and many of them do) then according to your logic they would have to accommodate the neo-nazi.

  • Brian Ferguson

    Of course they are being forced to participate in the act. The “act” in question is this ” marriage ceremony” which they take to be a corruption of the true concept of marriage. Without the cake the ceremony would be incomplete so they are certainly participants. Do you believe they must be present to participate? Not hardly.

    Baking a cake for a Hindu couple? That’s a horrible analogy. The issue here is not the identity of the person but the nature of the ceremony.

    For goodness sake do some historical research. The Ancient Greeks who openly embraced homoeroticism nevertheless thought marriage was between a man and a woman. a Greek baker would not refuse to bake a wedding cake for a two men because he was discriminating against them as “gays”, he would refuse to bake it because he would say “that is not what marriage is according to Greek tradition”.

  • Brian Ferguson

    Except that race has never been part of the social DEFINITION. Find me a single English dictionary or lexicon that includes the concept of race. I will give you a heap of dictionaries throughout history that define it in relation to gender.

  • Brian Ferguson

    I agree, it should not have been banned (DOMA laws).
    Just as the corrupt judges within the states should not have overturned the marriage laws through judicial activism.

  • Jack2211

    But what is there to disagree with? If you don’t agree with same sex marriage, then don’t marry someone of the same sex.

    And if you’re in the wedding cake business, you’re not allowed to baldly discriminate, just like you’re not allowed in any other business (although you could say you’re booked).

    And I don’t know why you’d turn down business anyway. You’re baking cakes. What difference does it really make who’ll be eating them?

  • Jack2211

    You seem to have probems with language. Enforcing existing laws (like the Constitution) is not judicial activism. It’s the job of the courts. It just gets called judicial activism when people don’t agree with the outcome.

    And disagreeing with same-sex marriage fits the definition of homophobia. And how is it slander to say otherwise. What other reason is there to reject it? You’re trying to make decisions for someone else’s life? And what does it have to do with you, or your marriage or your religion, anyway? What difference will it make to your life? Nobody is making you marry someone of the same sex. And nobody will make your pastor officiate a gay ceremony.

    The same goes with these wedding cake people. What difference will selling one more wedding cake make to their actual day-to-day lives? They’re not participating in a ceremony — they’re baking a cake. The same goes for a florist, or butcher or anyone else.

  • Thales

    This article is completely refuted by the fact that a Christian called 13 bakeries to request a cake simply saying “Homosexuality is Wrong” and was refused every time. Were all those baker ignorant of the “fact” that their free speech was not paramount? Or did they simply understand the reality is “Who? Whom?” and all pretense of principle is just rationalization?