Liberty cake wrecks, cont’d

by Walter Olson on December 8, 2013

Turned down by all 150 (or however many) Denver bakers in their quest for a wedding cake, this couple had no choice but to sue. Oh, not really: they had an endless supply of perfectly good alternative options, but they apparently wanted to make a point by suing, as did the ACLU which represented them. [Associated Press; earlier here, here, etc.]

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1 Richard Nieporent 12.08.13 at 1:01 pm

This ruling is not surprising. It was inevitable that once the courts/ legislative branch ruled that discrimination against a particular group is illegal that (in this case) gay rights would prevail over religion. You cannot have it both ways. That would require government to be able to distinguish between conflicting rights, which is something that government is incapable of doing. Think of this as just another manifestation of zero tolerance. Moreover, the advocates for the particular group will not allow there to be any nuance in the enforcement of the law. They do not want there to be a modicum of doubt that their viewpoint is the only acceptable one. There cannot be any toleration of a different point of view. Everyone must adhere to the letter of the law on pain of fine or worse.

2 James 12.08.13 at 5:42 pm

They didn’t sue. It’s an administrative proceeding before the Colorado Civil Rights Commission. The only relief was declaratory—i.e., your religious freedom does not trump anti-discrimination laws. That conclusion is not very hard to reach. Otherwise, people who were (or still are) opposed to, for instance, mixed-race couples because of their religious beliefs could similarly flout civil rights laws. It’s not a matter of conflicting rights. These people have every right to dislike gays or think gay marriage is wrong. Once they make the choice to do business, they must do so without discriminating. No one required them to open a cake shop.

3 Boblipton 12.08.13 at 5:46 pm

I don’t think it was inevitable, Richard. I can see the tension between religious toleration and the new, hip, anyone-should-be-able-to-marry-whomever-they-want-and-we-must-approve viewpoint. Just as the Mormons had to do away with polygamy to suit then-current ideas of what marriage should be about, this lawsuit is more of the same.

It’s also an example of mean-spirited behavior, as Walter implies in his discussion and is sure to have repercussions further down the road. Except that this is the end of history and once this happens, things will never, ever be different, of course.



4 ras 12.08.13 at 7:13 pm


Excepting when the distinction is between a constitutional right such as freedom of association and a statutory one such as in this case, in which case I would have thought that the constitutional right should prevail … else why all the bother of passing the 13th amendment back in the day when a simple statutory law would have sufficed?

5 DEM 12.08.13 at 8:06 pm

Interesting, James. I wonder, did anyone force “these people” to try and earn a living? Because that seems to me to be what they’re doing. In your view, I suppose, trying to earn a living means forfeiting one’s moral and religious views, insofar as they may conflict with whatever the majority deems to constitute a civil right at the time. And those civil rights seem to be cheapening by the minute, as we are talking about obtaining one’s wedding cake of choice. Rosa Parks this is not.

6 gitarcarver 12.08.13 at 8:19 pm

I am sorry James, but I didn’t realize that it was mandated that people give up their rights in order to make a living.

I also didn’t realize that a customer or government can force a certain set of beliefs contrary to my own upon me.

There is, in my opinion, a difference between selling something to someone (like a hammer or even a hamburger) and being forced to create something in support of something that is contrary the to religious beliefs of a person and in fact supports the idea that is contrary to the religious belief.

The world and marketplaces are large enough to not force beliefs on people who are trying to make a living.

7 DensityDuck 12.08.13 at 10:50 pm

” Once they make the choice to do business, they must do so without discriminating. ”

As guaranteed by something or other, the Constitution says we get life and liberty and the pursuit of whatever, it’s fucking inalienable, right?

8 Alan K. Henderson 12.09.13 at 1:44 am

As children we are (ideally) taught that not everyone wants to play with us. We have no manifest destiny to expect whomever we want to share and join our cultural pursuits.

When hired for an event, the job of a caterer, or photographer, or musical entertainment, or whatever, is to magnify the coolness of the event – to become part of the celebration. It is insensitive, intolerant, and totalitarian to force people to sacrifice their consciences to celebrate events they oppose.

9 kimsch 12.09.13 at 4:11 am

When the couple was turned down, they had every right to shout from the rooftops that they felt the baker was a bigot and discriminatory. That’s their opinion. And they could tell all the people they know not to use that baker. That’s word of mouth. The baker will stay in business or he will not. Free Market, freedom of association. One doesn’t need to leave one’s personal convictions at the door when one decides to do business. ALL discrimination laws should be abolished.

Why is it that a customer can make a decision whether or not to do business with any particular vendor or service provider, but the vendor or service provider MUST take all comers and doesn’t have a choice?

10 spodula 12.09.13 at 6:48 am

“I am sorry James, but I didn’t realize that it was mandated that people give up their rights in order to make a living. ”

Of course there is. Ignoring all the stuff about interracial marrage et al, Suppose its your belief that women shouldnt drive and you work at your local licence issuer? or a baker that believes that illegal immigrants shouldnt get service? If you choose to practice what you preach there, the government will land on you from a very large height. I dont see any difference here. just the cake makers are a little more bespoke.

“I also didn’t realize that a customer or government can force a certain set of beliefs contrary to my own upon me. ”

There not. They are forcing you not to discriminate if you choose to work in serving the public.

11 captnhal 12.09.13 at 11:44 am

Am I the only one that thinks this gay couple will never use this bakery again regardless of the quality of their product?

12 KB 12.09.13 at 2:14 pm

How do you force an someone to create something? What happens if they make a crappy cake, one that looks to tastes so bad no one would want to use it? Or the customer “feels” it’s not as good as one a hetero couple had? I’m not saying anyone would make a bad one on purpose (but possible) but if someone’s heart isn’t into it, all you’re going to get is just enough so that all the baker has to say is “I tried” and refund the money. To me, this is what someone would do who is trying to discriminate, not someone who has objections due to religious beliefs.

13 David Eggers 12.09.13 at 3:11 pm


I love that whole philosophy: “You have all the freedoms in the world, but if you want to put food in your mouth, you must do what we say”.

14 gitarcarver 12.09.13 at 3:40 pm

They are forcing you not to discriminate if you choose to work in serving the public.

The bakery is not “serving the public.” The bakery is in business to make a profit for the owners and employees.

I don’t understand how the government can force accommodations for just about anything (including religious accommodations, sexual preference accommodations, gender accommodations, etc) within the company or business and then say “government will not allow for an accommodation for the business itself.”

In other words, employees, customers and the government can tell a company and the company owners what they have to believe and support but the owners of the company can’t have a say in what they support and believe.

(BTW – I think your example of the license is a bit out of left field as you seem to be saying that the government itself would not issue licenses to women. That is a scenario that I can’t see happening.)

No one should be forced to create or support something in which they do not believe or have a legitimate, recognized objection of conscience to.

15 Mannie 12.09.13 at 6:00 pm

I think the crux of the issue, here, is not the cake, but the decorating of the cake. If it was just a matter of taking a cake and putting it in a box, I would argue that the baker hasn’t a leg to stand on.

The issue, for me, is the decoration of the cake. That is a Freedom of Speech issue. The State, under the First Amendment, cannot compel speech. They cannot compel a creative act, just as they cannot forbid one. Should a Jewish baker be compelled to decorate a cake with swastikas? Should a gay baker be compelled to decorate a cake with “Homosexuality is an abomination?” It would be fun to be an a’ole and test those boundaries.

I think the case for tyranny is more clear in the case of the photog who declined to shoot a gay wedding, but it is the same issue of compelling creativity.

If I had been so compelled, they probably would not like the cake much.

16 L. C. Burgundy 12.10.13 at 1:45 am

Blech. I wish people wouldn’t bring these sorts of complaints to a governmental body. Why fight to give people money whose views you find repugnant and who sell an overrated commodity anyway? Let the world know the baker is a troglodyte, go patronize a baker that respects you, and run the troglodytes out of business. Freedom of association for the win.

17 Alan K. Henderson 12.10.13 at 5:02 am

I think the wedding photographer case applies. From the amicus filed by Cato Institute, Dale Carpenter, and Eugene Volokh:

“This case is largely controlled by a United States Supreme Court precedent that the court of appeals never mentioned: Wooley v. Maynard, 430 U.S. 705 (1977). Wooley, the New Hampshire license plate case that we discuss in detail below, makes clear that speech compulsions are generally as unconstitutional as speech restrictions. Wooley’s logic applies to photographs and other displays, and not just verbal expression. And that logic applies also to compulsions to create photographs and other works (including when the creation is done for money), not just to compulsions to display such works.”

18 Jack Wilson 12.10.13 at 11:30 am

I like Mannie’s example:
Should a gay baker be compelled to decorate a cake with “Homosexuality is an abomination?”

19 Richard Nieporent 12.10.13 at 12:37 pm

Let the world know the baker is a troglodyte, go patronize a baker that respects you, and run the troglodytes out of business.

So it is not the result that bothers you L.C. Burgundy, but who is doing it. Only people who agree with your views should be able to make a living?

20 L. C. Burgundy 12.10.13 at 4:25 pm

I am content to see people with repugnant and/or stupid business sense go out of business. Pretending one is striking some sort of brave moral stance when one refuses to bake a commodity is pretty silly. I don’t think the government should force the issue. This sort of stupidity tends to flame out on its own.

21 gitarcarver 12.10.13 at 7:11 pm

I, on the other hand, am more likely to patronize a business that has taken a moral stance rather than bow down to the moronic and illegal pressure of others to force the business to do something.

If having principle and morals is “repugnant and/or stupid business sense,” then I would put forth that when you walk into a business that has no morals or standards in which they believe, you’d better watch your wallet.

22 Richard Nieporent 12.10.13 at 7:34 pm

That begs the question L.C. Burgundy, repugnant to whom? What is repugnant to you is fine with someone else and vice versa. I know it is hard for you to believe, but not everyone thinks the same way you do about what is and is not acceptable. Thus if others were to follow your lead we would have many different businesses being boycotted by different groups based on the perceived social/political/religious views of the businesses.

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