Gay cakes

curse More law. This time not even climate law, so I have no excuse other than interest. The story so far: gay folk sue a cakeshop that won't make a cake for their wedding. The true lesson of this is just how water-fat our society has become, but there are other points too. Recall that law is custom, not command, and is there so that the reasonable expectations of reasonable people may be maintained; so the question is "what is custom?". And the answer is unclear. This is a problem of different people's liberties2 clashing, and attempting to assert that there is One True Great Justice Answer simply means you haven't understood the question.

The govt, of course, is not allowed to discriminate on grounds of race, sexual orientation, creed and a host of other similar issues1. But individuals in their daily lives constantly do so discriminate, in who they choose to interact with and how. They have liberty to do so. Then again, people have a "right" not to be discriminated against when out validating their lives by shopping.

How do you balance the two? In daily life, you expect reasonable people to disagree peacefully. If you can't get one baker to bake your cake, look for another. I haven't - of course - studied the fine details of the case but I'm pretty sure the said GF made no attempt to do this; indeed my suspicion is that they did the very opposite.

Twenty years ago this case would have been laughable, and would have been laughed out of court. Today, it makes it to the supreme court. Twenty years from now perhaps the custom will have shifted so far towards the GF that intransigent bakers will tremble with fear; I'd rather hope not. The SCOTUS decision, wisely, is narrow4. This winds up my source but I think wrongly. Similarly, the digs at the overt hostility that the Colorado commission showed toward Phillips make sense. Really, the SCOTUS is trying to tell the idiot litigious children to play nicely together and stop bothering the adults; they don't want to make the same mistake the Pope made over Galileo.


It would seem that the UK is fat, too. Ashers 'gay cake' row: Bakers win Supreme Court appeal (and in the ECHR (though it looks like the ECHR wimped out, the pathetic weeds)). Again, happily, it looks like free speech wins. Gay rights have gone to kind of a weird place, campaigner admits says the DailyMash.

2023/07: don't miss Gay cakes part two: Gay websites.


1. So the USAnians bizarre Separate Car Act is unacceptable; the whole equal, but separate nonsense3 should remind us that all law requires interpretation.

2. In most people's framing, it is important that the baker's objections are religious. I don't see why that matters. In others, because of "deeply held beliefs". As far as I'm concerned, he simply didn't want to serve these customers for [reasons], exactly what those reasons are is unimportant.

3. This is part of, but not the entirely, of the necessary "of course this isn't the same as institutional racism in the USA during the Jim Crow era" argument. The precise means you use to distinguish it are somewhat up for grabs. Another is the "one-off" argument, but that smells of special pleading. Better is the "no compelled speech" idea; for example WE.

4. 2024/06: this is almost worth a post of its own but: the court often tries deperately to be as narrow as possible. They are fully aware that people will read and cite their rulings; and they are doing their best not to screw the world over by inadvertently ruling too widely. E.g. Gonzalez, where we read Because we agree with Gonzalez’s first argument, we do not need to reach her second; a common form of words. And they don't even decide the case; again as common, they merely vacate the judgment below and remand the case for the lower courts to assess whether Gonzalez’s evidence suffices to satisfy the Nieves exception. See-also: Book review: the Raven Tower.


Anonymous said...

In the US, there are "protected classes" (https://en.wikipedia.org/wiki/Protected_group): entities which want to participate in the public sphere (e.g., by selling goods) are not allowed to discriminate due to membership in those classes. This exists because of a long history in the US of discriminating explicitly on these lines - whether "white-only" water fountains, excluding women from some careers, etc. etc.

People are still allowed to discriminate in their private lives, or, as store-owners, to discriminate against non-protected classes (e.g., anyone wearing red shirts).

On the "no compelled speech" argument: I draw the line at the product: a baker should be allowed to refuse to make certain designs (e.g., "I love gays", "I hate gays", cakes with swastikas on them, or whatever): but if they are willing to make a design for one person, they should be willing to make that exact same design for anyone else who is in a protected class. E.g., if they are willing to make a rainbow cake for a kid's birthday party, they should also be required to provide a rainbow cake for a gay marriage party.

Unfortunately, I think some of the Supremes did not get this distinction.

This is one of the costs of running a business, and I have less sympathy for a store owner who is forced to sell to people they don't like than for an innocent people who don't deserve to be rejected from a store based on something in their inherent nature.


William M. Connolley said...

> they should be willing to make that exact same design for anyone else

Is that relevant in this case; a wedding cake is usually a one-off, is there a reason to think this one wasn't?

> entities... are not allowed to discriminate due to membership in those classes

That page says "U.S. federal law protects individuals from discrimination or harassment based on the following nine protected classes..." which is weaker than your claim. https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964#Title_II tells me that " discrimination based on race, color, religion or national origin in hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce" is outlawed.

However, I'm not desperately interested in that, because that's just the legislation of a particular country and time. I'm more interested in the general point of how the competing interests *should* be balanced.

Anonymous said...

"Is that relevant in this case; a wedding cake is usually a one-off, is there a reason to think this one wasn't?"

You are correct: the cake was explicitly a one-off. That does create a possible solution of drawing the line between "custom" and "mass-market". But my opinion is that isn't a good solution: there are too many services that can qualify as "custom"*. My rainbow cake example was meant to a custom-cake example, where the baker doesn't have one sitting on the shelf (or in a catalog). I acknowledge that this makes for a slippery area where a baker could claim that some request from a same-sex couple fell "out of their comfort zone" when in fact, they would have made such a cake for an opposite-sex couple... but I'm okay with some grey, I just want the grey to be further over on the side of gay people (or females, or blacks, or muslims) to acquire goods and services than business owners to refuse them.


*E.g.: some of the things that one acquires for a wedding that can be considered "custom-made": hair-arrangements, flower arrangements (there's actually a flower case right now that is pending), food menus, photography, invitation design, place card design, lighting set-up, sound & music. For some of these, employees might actually need to be present at the ceremony, which could be considered a bigger imposition on their faith than pre-making a cake and delivering it. Arranging all the things that go into a wedding is hard enough without having to check for each & every provider whether they are okay with one's lifestyle. And while in most big cities, finding alternatives might be very possible, that might not be true in rural Utah or Idaho.