BAKE ME A CAKE AS FAST AS YOU CAN

If you offer a product or service to anyone, you must offer it to everyone, but you don’t have to accept an order for something you are not in business to build, even if the would-be buyer is gay.

Based on initial reports of the Supreme Court’s oral-arguments phase of the appeal on the Colorado baker who refused to bake a wedding cake for a gay wedding, sounds like the Supremes might be inching toward what this observer considers the crux of the case:  just what, exactly, did the baker refuse to do?

Seems clear enough the engaged couple made it known they were gay (i.e., they introduced themselves as the parties to be married), and asked the baker to bake them a wedding cake.  Also seems clear enough that in the end, the baker refused to bake them a wedding cake.  What has been missing from press accounts of the case is this:  did the customers indicate what kind of cake they wanted?  Did they want any old wedding cake, like one of the cakes on display, or a cake of a particular design, like a design that in some way commemorated the fact that it was in celebration of a gay wedding?  More specifically, did the customers indicate they wanted the design to include, for example, two male figures as the wedding partners, or some other design that denoted, at least to the congnoscenti, that it was a gay marriage – e.g., the special flag that the celebrants eventually ordered and bought from another baker?  Initial accounts suggest that Justices Kennedy and Gorsuch, through their lines of questioning, were heading toward this issue.

Why does the design of the cake matter?   Answer:  (i) no problem if the guys wanted a generic cake, like the ones the baker displayed – it is indisputable that the baker offered to sell them a standard-design cake, despite their being gay.  In other words, the baker will sell all of his conventional cakes to anyone, regardless of the customer’s sexual orientation;  but (ii) big problem if the customer wants the baker to produce a transparently-gay cake.

The law is, you cannot offer a particular product to some people but not to others, when the reason for the discrimination is the others’ sexual orientation.  But what about refusing to make and sell a particular product that you do not offer to anyone, regardless of their sexual orientation?  If that behavior were illegal, then a person could walk into a bakery and order cupcakes and a new Mercedes, and if that person were gay, the owner would have to build him a Mercedes. Moral of the story:  if you offer a product or service to anyone, you must offer it to everyone, but you don’t have to accept an order for something you are not in business to build, even if the would-be buyer is gay.

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