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Let Them Eat Wedding Cake


Let Them Eat Wedding Cake

Jeff Milchen

A Colorado baker's bid to discriminate against gay couples sets a precedent that would harm both small businesses and civil rights. Independent business advocates arguing for enforcement of public accommodation laws make their case in a dispute that will be argued before the Supreme Court today.

Free window decals by the American Independent Business Alliance (Photo: amiba.net/bab)


Not quite. What he said is that he doesn’t do wedding cakes for homosexual weddings. The discrimination was against the kind of ceremony, not the people. He could do other custom baked good for them, and they could buy any of the readymade goods in the shop for sale to the general public. It was only a commission for his custom cake art services which he was declining.

“Phillips was not asked to participate in their wedding”

If they wanted one of his art cakes, that’s exactly what they would have been asking of him. He sees his involvement as central and it’s part of his process. If they wanted a baker who would not have been involved, then they needed someone else.

“no one presumes a print shop is endorsing an event simply because the print material promoting it --surely an activity closer to free speech activities than cake.”

That’s just fatuous. Yes, printed material is closer to free speech activities, but that’s free speech for the customer, not the print shop. The technical contribution of the print shop is not speech and has no message. And yes, a generic cake is typically not speech, art, or expression, but the couple here did not want one of Jack’s generic cakes. They specifically wanted his custom artistry, and they are laying claim to it as a public accommodation.

“While the Colorado couple enjoyed the option of choosing another baker at their leisure, many people in rural areas must rely on a single provider for many essential goods and services.”

This issue only pertains to creative, artistic, and expressive custom services. These are not essential goods and services.

“Allowing businesses to discriminate against customers invites real harm. In a 2015 case, a Michigan pediatrician refused to treat an infant solely because her parents were lesbians.”

I’m guessing Milchen used this irrelevant example because he could not find one where real harm came from someone’s refusal to provide custom art services.

“While our federal Civil Rights Act explicitly prohibits racial discrimination in public accommodations, sexual preference is not mentioned. Colorado is among 21 states with laws explicitly closing that loophole.”

And yet, this couple had to go outside of Colorado to get married. Why was that?

“Opening the door to religious claims as basis for discrimination could endanger the rights of millions.”

This is a fundamental conflict between sets of rights that apply to everyone. Everyone is going to have some of their rights strengthened and some of their rights diminished, whichever way the Supreme Court rules here.

“Many faiths have at least some citable, scriptural basis for shunning people with disabilities.”

Okay, first, we already accept discrimination against disabilities when they are relevant. Nobody is going to require a cab company to hire a blind driver for example. Second, declining custom commissions for creative and art services isn’t about shunning. It’s about retaining rights of free expression, including the right of abstention. Jack Phillips would not do anything which went against the Bible, as he understood it. In this case, it happened to be about a homosexual wedding. But if he has ever accepted a custom commission to do Christ-glorifying art work for a Christian, the same theory of non-discrimination and public accommodation could have required him to accept a commission to produce Lucifer-glorifying art work for a Luciferian.

“If public accommodation laws are undermined, atheists and other religious minorities also will be subject to abuse.”

I’m an atheist and I’m on the side of freedom of expression here–even if it happens to be represented by a Christian in this particular case. And as an atheist, I’m very familiar with abuse, and declining to provide custom art or creative services is not abuse. Not even close.

“The intolerant baker and those who back him are fighting a battle many Americans assume already had been decided in favor of protecting vulnerable groups.”

The baker happens to be on the side of free expression here, and free expression is important to a lot of people. Taking the side of free expression is not the same thing as backing the baker.

“we also must realize no civil rights can be taken for granted today.”

What Milchen fails to comprehend is that both sides are fighting for civil rights here. They are just different sets of civil rights.


Your example of discrimination of people with disabilities is appalling. First because discrimination would be based on qualified applicants with the choice being made on the basis of something other than ability. It would include a “protected class”. and really has no comparison to shopping for cake.


Nope. As I related yesterday on the other topic, the couple and one of their mothers were indeed there strictly about the party; cake is not generally served in a wedding ceremony. They were referred to Masterpiece by their “reception planner.” They came in with a binder of their own ideas, but never got to open it. Phillips asked which two of the 3 people were the couple, and when they answered, Phillips sent them packing. He never opened his “look book,” and he never learned anything about their ideas. He simply dismissed them because he disapproves of the other event of that day.


Jack’s account of what he said was “‘Sorry, guys, I don’t make cakes for same-sex weddings.’” And he further elaborated ‘You know, I’ll make you a birthday cake, shower cake, I’ll sell you cookies and brownies, I just don’t do cakes for same-sex weddings.’

And the couple in question here has made no substantive denial of that account, and so far as I know, that was uncontested in the lower court. So whether or not that was verbatim what transpired, the case is going to be decided on that basis.

And what is or is not part of the ceremony involved is arbitrary. Some people will say it is just the official registration. Some people will say it is some religious ceremony. Some will say that the symbolic cutting of the cake–the first traditional act as a couple–is itself part of the ceremony. What is unambiguous is that the cake is there in celebration of the wedding.


I’ll agree that the issue of disabilities that Milchen tried to drag in is irrelevant to this case.


How is a shower cake different from a wedding cake? Two parties celebrating the same relationship. And you’ve given no indication whatsoever where you got “Jack’s account.” I’ve no idea why you think that will be the basis for the SCOTUS decision.


I take it you’ve never heard of a baby shower.

“And you’ve given no indication whatsoever where you got “Jack’s account.””

I’ve seen it several places. Here’s one:

“I’ve no idea why you think that will be the basis for the SCOTUS decision.”

To say a case will be decided on the basis of some uncontested testimony only means the testimony will be accepted as factual and it will form the working framework for the case. The reasoning the Justices bring to bear on that scenario will form the substance of the decision.


The issue of people with disabilities being the object of discrimination as a possible outcome of this decision is valid. The example in your post is point of fact discrimination, not irrelevant, and deserving an apology.


Oddly enough, one of the arguments I made in the LGBT ordination/wedding wars in the Presbyterian Church (USA) was to ask opponents what they would do if a same-sex couple brought their child for baptism. That’s a whole lot more serious than a baby shower. And has Phillips said he would make a cake for this couple’s baby shower, but not their wedding? That’s pretty weird. I was thinking bridal shower. No need to get snarky.

The dailysignal.com is “uncontested testimony”? Did it come up in the oral arguments today? What happened today will be the primary basis for the SCOTUS decision, but there was no testimony, it being an appellate court. Your argument has no weight whatsoever.


What, you mean the example of how we would not expect a cab company to hire a blind driver? Yes, of course that is discrimination against a disability. That is what I was using it as an example of.

“not irrelevant,”

I was clearly citing it as a relevant disability. We accept discrimination against disabilities when they are relevant.

“and deserving an apology.”

I don’t see why.


That doesn’t look like an argument to me, but it does sound like an interesting question. Is baptism a sacrament for the child or for the parents?


This is what you wrote:

“Okay, first, we already accept discrimination against disabilities when they are relevant. Nobody is going to require a cab company to hire a blind driver for example. Second, declining custom commissions for creative and art services isn’t about shunning.”

This is what I said (the part at issue here)

First because discrimination would be based on qualified applicants with the choice being made on the basis of something other than ability.

Using this example (as awful as it is) Were a blind person to interview for a cab driver position they would not be a qualified applicant and not hired, Not because of an accepted discrimination.,

Maybe you should re-read your post.


All you did was repeat the exchange. I know what I said and I still don’t get what point you are trying to make. To discriminate is to differentiate and to treat differently based on some attribute or quality. We allow discrimination against disabilities when the disabilities are relevant to a job–in other words where they would adversely affect performance or simply make it impossible or impractical to do the job. From everything I’ve seen, that is simply the reality we live in. I don’t see anything awful about it, and I definitely don’t see where alluding to it means somebody (who?) is owed an apology.


Here are the rules of employment for people with disabilities. I don’t think you will find your provision accepted practice.



Totally irrelevant. The point was that churches are always looking for “young families,” but then some folks let their prejudices against certain kinds of families cut off their own noses. Sort of like a cake “artist” sitting in judgment over certain kinds of customers.


In my experience, it is both accepted and common. Your link skirts the issue by putting the onus on the disabled applicant. See the section that starts “Make sure you can do the job’s essential functions – the basic job duties that are necessary to the position” Notice the last line: “As long as you can perform the essential functions, you are protected from discrimination.” The unspoken counterpart to that is that if you can’t perform the essential functions due to your disability, you are not protected from discrimination–because discrimination on that basis is allowed.


I wasn’t suggesting it was relevant. I was only saying it sounded like an interesting question. But nevermind. I was probably wrong about that.


I think you are being obtuse on purpose. Common or accepted does not make it right. It does happen in the absence of ethical standards. If someone cannot do a job that is one thing, if they are prevented from doing a job that is another. The ADA is only one level of protection there are also state standards and in my state those protections are expanded. In any hiring situation everyone has responsibilities.


I was arriving at the same conclusion about you.

“Common or accepted does not make it right.”

But it is not unusual for a practice to be accepted because it agrees with our sense of right.

“If someone cannot do a job that is one thing,”

I think that’s the exact thing I was talking about–specifically, in cases where they cannot fulfill the essential job requirements due to a disability.

“if they are prevented from doing a job that is another.”

Well, maybe. It depends on what is preventing them from doing a job. If it is their disability, then that would be the same thing.