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“We Don’t Serve Gays”


“We Don’t Serve Gays”

Pierre Tristam

Whenever anyone inhales religious values to justify any kind of exclusivity or superiority, discrimination exhales.

Charlie Craig and David Mullins. (ACLU)


Sometimes analogies fail even though the underlying argument doesn’t. Bach was an artist and, as such, could refuse to do his art for any one, for any reason. Composing music is different than making a cake from a catalogue.

Phillips is not an artist and needs to be a nondiscriminating, retail baker who makes his product for everyone who comes in with sufficient money in hand. The defense attorneys are more original than their client.


This is like saying framing hammers are often misused to drive nails.

“Jack Phillips, the owner, told them he’d make them any baked goods, just not a custom-made wedding cake. (In other words, you can ride but just go to the back of the bus.)”

No, in other words, the bake shop was a public accommodation and they could buy anything in the shop which was for sale to the general public. But Phillips did not hold his artistry to be a public accommodation in the same way. (And in other cases, Colorado agreed that bakers had the right not to create cakes which conveyed messages the bakers did not agree with.)

“Charlie and David were not asking Phillips to create anything suggestive.”

Oh right. Because wedding cakes convey nothing and have no meaning or significance.

“They were not even asking him to write a message he disagreed with.”

Not in literal script, but they were indeed asking him to create and convey a message he disagreed with.

“All they wanted was a cake,”

If that was really all they wanted, they could have bought any of the readymade cakes sold in the shop. What they wanted, in particular, were the custom creative services Phillips was known for.

“They invented a craftier strategy. Cake as art.”

What excludes cake from being a possible medium for art?

“Cake as speech.”

Not literal speech, but in the more general sense of expression.

“It’s part of that broader assault on the gay-marriage decision, to undermine it by a thousand seemingly constitutional cuts”

It doesn’t matter if some of the people behind the case have motivations we don’t agree with, or if they associate with people we dislike. The case should be argued and decided on the merits. And free expression is more than a “seemingly constitutional” right.

“Phillips considers himself an artist.”

So did Jackson Pollock. Who’s to say either of them is wrong?

“He makes a strong argument that speech may not be compelled: you can’t force someone to say something and still pretend he has free speech. At that point it’s not his speech but yours.”

A strong argument is all that is needed to give his case merit.

“That’s assuming that his cakes are speech. It’s a stretch: you can’t eat speech,”

And that would be the opposite of a strong argument. Indeed, if you actually gave the matter some thought, you’d eat those words. Speech, in this context, refers to the expression of meaning or message. Is there anyone who thinks that art cannot do that? And if it is granted that a sculpture in rock, wood, metal, fiberglass, plaster, ice, or styrofoam can be art, then what, specifically, excludes crafting in an edible medium from being art?

“His lawyer’s argument to justices this week made all sorts of hair-splitting distinctions”

You’ve already accepted the basic principle that it is a violation of free expression to compel people to convey messages. The boundary line where public accommodation runs into free expression has to be drawn somewhere. If it isn’t cake art, it will be some other form of custom art, and wherever the line is drawn, there will be hair-splitting distinctions regarding what falls on which side of that line.

““Certainly not all cakes would be considered speech,” his lawyer said.”

Cakes can be mass produced in factories. This is like how lumber is not considered art, even though it is shapes cut from wood and it has that in common with wood sculptures which are art.

“So Phillips is the arbiter of art? Seems so: He considers his sculptures artistic expression”

That’s his belief, his position, and his claim. That doesn’t make him the arbiter of art any moreso than any other person having the same belief. We are all individually the arbiters of art, and it is up to us whether we accept his claim. What the courts will have to work out is what a hypothetical reasonable mind would accept as being art–which in some ways is an unreasonable thing to ask of them, but it’s the best solution we’ve got.

“but for some reason work of hair stylists or make-up artists or even chefs is not artistic expression.”

And for some reason, sculpting in some other medium can qualify as artistic expression. It goes both ways.

“But for argument’s sake let’s grant that Phillips is a cake artist,”

Gee, how magnanimous.

“By opening a store in a public venue and agreeing to the rules of retail under Colorado’s anti-discrimination law, which also enable Phillips to conduct business in a safe and civil manner, Phillips, whether artist or not, gives up at least some of his absolute rights to free speech,”

Voluntarily, yes.

“Instead, Phillips wants to carve out the equivalent of retail’s gated community: some of you are welcome, some of you not.”

The gay couple was welcome to buy anything in the store which was available to the general public. He would even do custom bake orders of other kinds. What Phillips carved out apart from the store was selling his custom creative services where it would go against his principles. He would not lend his creative skills to anything unpatriotic, or obscene, or derogatory (including derogatory to gays) and he would not do anything un-Christian (as he understood it). At issue here is whether his creative services should count as a public accommodation, and whether refusal to convey a particular message counts as discrimination against a protected class of people.

“it’s no different than placing a sign in the window that says: we don’t serve gays.”

I see clear and obvious differences. So does the Supreme Court or they never would have taken this case.

“So let’s assume he opened a music shop in Lakewood and pasted in his window a handsome sign: “Cantatas For All Occasions.” Charlie and David go in and ask for a cantata for their wedding–not one off the shelf Bach had already written, but one for them alone. Would he have the right to refuse?”

That goes to truth in advertising. “All occasions” doesn’t leave any room for exceptions. But that isn’t how Jack Phillips billed his services. Let’s turn it around and say Phillips posted a sign that said he will not accept custom commissions for any un-Christian creations. No Halloween themes. Nothing Islamic. Nothing Hindu. Nothing Wiccan. Nothing Luciferian. etc. Should he have the right to carve out that exception when it comes to his custom creative services?


I really like and trust this baker because he is a regular guy.