Thursday, December 12, 2013

A Question of Morals and The Power Of The Court

Two people meet while students at the Culinary Institute of America.  They are attracted by their mutual love of the baking and pastry classes and their desire to one day own a bakery.  They fall in love and marry.

While still CIA students, they earn income by selling cookies, cakes, pies and other pastries that they bake in a church kitchen rented for a few hours several days weekly.  They have very good skills and there is a demand from family and friends and a few small cafés for the pastries they bake.
They graduate, and by crowd sourcing start-up money from relatives are able to rent a small previously closed bakery in a city neighborhood.  Using their own labor and that of friends, they refresh the baking equipment, paint the walls, clean the windows, paint the bakery’s name on the door and buy ingredients for the first few months.  The couple is Jewish and their plan is to have their goods certified kosher.  They go through the process and in a short time are able to add the word “Kosher” to their sign, an important thing since  they are observant Jews, and many residents of the neighborhood are also Jewish.

Three years later they have a robust business.  The bell above the door rings constantly as customers come in and out.  They have earned a reputation as excellent cake bakers, and a large part of their business is baking cakes for retirements, weddings, birthdays, bar mitzvahs, and other occasions.  The Food Network has done a 10 minute episode about them and their pastries.


Two men walk in one afternoon and announce that they want to order three sheet cakes for a party.  One of the owners sits down with them and learns that they are Skinheads and want cakes for their annual celebration of Adolph Hitler’s birthday.  One cake will say “Happy Birthday Adolph Hitler”, the second cake will have a drawing of an oven and a sign “Welcome to Auschwitz”, and the third cake has a caricature of naked Adolph Hitler with an exaggerated penis inserted in a the vagina of a caricature of an emaciated Jewish woman and script reading “Fuck the Jews!”

The owner pauses and tells the men “I cannot do this.  It is against my morals, my beliefs, and my religion.  There are other bakeries in this city; perhaps one of them can help you.”
The men return two days later with the same request and add “We picked your bakery because the “Kosher” sign in the window tells us you are Jews.  We demand that you make these cakes.”  The bakers again decline.

Three weeks later the owners receive a summons.  They are being sued by the Skinheads for discrimination, for not taking the Skinheads’ business on so-called moral and religious grounds.  Meanwhile, the owners’ names and the lawsuit have been made public and there are daily protestors on the sidewalk in front of the bakery. They receive harassing phone calls at home and at work, even death threats.
The owners appear in court, the case is heard, and a judge rules in favor of the Skinheads, telling the bakers “If you are in business, you have to take any business that comes into your bakery, no matter if it conflicts with your religion, morals or beliefs.  Case dismissed.”

The questions for you:  Should a court have the power to compel a business to do things that violate the morals, beliefs and conscience of the owners?  If you say yes, then put yourself into the scenario as the bakery owner, and change the prospective customers to members of NAMBLA who want to order cakes celebrating pedophilia.  Or racists who want cakes that say “Kill the Niggers!”

60 comments:

bagoh20 said...

You don't even have to make it that clearly evil. What if they came to a bakery with an Obama/Biden sign in the front window and wanted a cake that simply says "Obama sucks, and Biden loves it."

Could the bakers say "No thank you" to that business?

bagoh20 said...

Too bad the bakers aren't black so we could have the added specter of Blacks being forced to bake for the man. The court is basically telling the bakers that from now on their name is "Toby".

Evi L. Bloggerlady said...

Completely appropriate analogy: Short answer no.

I will qualify that: Merely discriminating because you don't like gays is wrong (although I am not sure the state should get involved, the market can do that more efficiently). Refusing to work a gay wedding because it offends your beliefs is a matter that absolutely should be protected. Using the power of the state to compel (and potentially put you out of business for acting on conscience) is an evil far worse than any perceived discrimination.

Dust Bunny Queen said...

Bake the cake and spike it with something that will give the skinheads a good bout of severe diarrhea.

Bake the cake and make it inedible. Make it taste like shit. Better yet. Make that one of the ingredients. Just a little e-coli in the chocolate icing.

Bake the cake with just a touch of fiberglass insulation in it. Roughage you know.

I can think of a lot of ways to bake the cake.

Evi L. Bloggerlady said...

Michael, could you have worked Crack into this and having him do music for a Mormon wedding or a Homeopath new age event? Just an idea.

Evi L. Bloggerlady said...

DBQ: I like how you think.

Remind me never to get on your bad side.

Dust Bunny Queen said...

And of course the answer is no. The government should have no right to force you to do business in a way that violates your religious and civil rights. Just as you as a business owner do not have the right to discriminate. For instance refusing to sell a product to someone because they are black, skinhead, or any other reason.

Although....what about the no shirt, no shoes, no service signs. Is this discriminating against nudist and barefoot hippies? :-)

If people don't want to do business with you because they object to your religious principles (Chic fil a) then the market will determine if you stay in business or not.

AllenS said...

If I could, discrimination would be legal in this country. You shouldn't have to put up with anyone you don't want to do business with.

Above every business there needs to be a sign:

My Place, and I Make the Rules

Eric the Fruit Bat said...

The upside is you could make Althouse cry if you tell her you're not worried that other people will think you're a racist.

rcocean said...

People should be able to refuse business without getting sued. Shows how naive I am, I thought that was common sense and/or protected by some sort of law/judicial precedent.

Of course, I didn't realize they could put you jail in the UK for writing something "racist" on the internet. But they can.

Michael Haz said...

Okay, let's change the details, but not the circumstances. How is this different than my story above?
Judge Orders Colorado Bakery To Cater For Same Sex Weddings

chickelit said...

The silver lining is that this case should be appealed all the way to SCOTUS. The two sides have been itching for a fight over this and I say have it -- sooner rather than later. The facts test the limits of government intrusion. An ideal case would be if the business owners were religious because their standing could be the Establishment Clause, and Colorado's infringement of it.

On the other hand, Colorado has been the site of some wacky Progressive legislation and attempted legislation. There are legislative avenues available.

Dust Bunny Queen said...

How is this different than my story above?

Serious answer.

The difference is that in the first scenario the Jewish bakers were being asked to depict on the actual cake things that are offensive to them, an affront not only against their religion but against them as an ethnic group. The intent in the first scenario is to demean, insult and force the Jewish bakery to do something completely against their principles.

In the other case. If the gay guys asked for a wedding cake without any homosexual references or depictions of homosexual actions......just a cake.....and it was a straight up transaction, I don't think that the bakery can refuse to make a cake.

If people buy donuts at a shop and plan to use them for some weird sexual purposes or in a religious ceremony....it really isn't any business of the provider. (Unless the provider knows that they are going to harm someone with their product) They are selling donuts. How you dunk them is your business.

IF....the catering aspect of the gay marriage scenario meant that the provider had to attend the event and by being there be seen as tacitly approving of something that they have religious scruples about, then that would be a different issue. They should not be forced to participate. By their presence they would be violating their religious feelings.

I'm with Allen, though, in general principles you should be able to refuse to serve/do business with anyone you want. I'm libertarian on this issue.

chickelit said...

Of course, I didn't realize they could put you jail in the UK for writing something "racist" on the internet. But they can.

Clergy have been arrested in Britain for less: link.

Michael Haz said...

In the other case. If the gay guys asked for a wedding cake without any homosexual references or depictions of homosexual actions......just a cake.....and it was a straight up transaction, I don't think that the bakery can refuse to make a cake

What if the cake had two grooms as part of the decorations?

Beyond that, what right doe the court have to compel a business to do business with a person it doesn't want to do business with? When does a court's ruling become superior to a person's religious or moral views.

chickelit said...

What were the facts of the initial business encounter? Did the customers and shop owners meet randomly or were the owners targeted for confrontation?

Unknown said...

Bakery in Denver forced by court to bake wedding cakes for gay couples.

If you are gay, why not take your business to a bakery who celebrates gay marriage? Surely these bakeries exist. What about the rights and the religious views of the business owner?

Michael Haz said...

The shop was targeted.

chickelit said...

The shop was targeted.

Well there you go. This is why the targeters will lose in court of public opinion.

chickelit said...
This comment has been removed by the author.
AllenS said...

Thanks, DBQ. If the Congressional Black Caucus doesn't want to have half of their members white, they shouldn't have to. Oh, wait!

Leland said...

While I like the line of thought DBQ, you can't spike the food. That would open the business up to health violations, and I could actually support a case against the baker.

Commerce is an exchange of goods between a willing buyer and a willing seller. If we regulate that a seller must always be willing, but the buyer can be discriminatory; then we have a corrupt system. Imagine if the court said a woman must always be willing but a man can be discriminatory? Oh, but the progressive will say, the business isn't a person! Oh really, so the baker is denied the rights of a person, because they happen to be the seller and not the buyer?

Unknown said...

ack. I'm not so good at multi-tasking. I should be fined by the government. I didn't see that Haz had already linked.

Leland said...

Also with DBQ's honest answer about the differences... I think the CO baker's willingness to make cakes for dogs does hurt their standings along religious grounds. If the Jewish bakery made special cakes for the NAACP but refused the skinheads; then they would have a difficult time in court; which is essentially the claim by the gay couple.

For me, the argument shouldn't be on religious grounds. It should be on the right of free commerce, in which we have a willing buyer and a willing seller. If the seller isn't willing, too bad for the buyer.

deborah said...

Haz, I know your example was purposely extreme, but the Holocaust was a hate crime, and no court would uphold the skinheads' point of view.

"Beyond that, what right doe the court have to compel a business to do business with a person it doesn't want to do business with? When does a court's ruling become superior to a person's religious or moral views."

Do you include not serving blacks in this?

Michael Haz said...

No. The issue isn't framed in racial terms. It's a religious or morals issue.

deborah said...

Okay. I meant from the point of view that some take that it is morally wrong to associate with another race, and that it would be morally wrong to force people to interact...freedom of association.

Methadras said...

The answer is an emphatic NO!

rcocean said...

What does the Holocaust have to do with it?

The Jews are an "ethnic group" what does that mean? That they're a "race" like Hitler said? Or they share a common language or background -which isn't often the case?

IRC, there have been 100's of volumes arguing over who is a Jew. Jews disagree.

rcocean said...

Sorry, for getting off topic

deborah said...

rc, in Michael's example, the skinheads want a cake baked with an Auschwitz reference.

Michael Haz said...

The case in Denver, on which my hypothetical story is based, shows us a dilemma being caused by a politically correct court.

A business's owners, in this case a bakery is told by the court that if they are to remain in business, they are REQUIRED to act against their own religious or moral beliefs.

And in our society, sadly, there are people who would much rather cause a business to close rather than to just go down the street to a different vendor. It's political correctness enforced by a court a the expense of individual liberty.

chickelit said...

deborah said...
Okay. I meant from the point of view that some take that it is morally wrong to associate with another race, and that it would be morally wrong to force people to interact...freedom of association.

What would the doctrinal basis be for a religious-based opposition to freedom of association?

chickelit said...

The decision is here.

chickelit said...

As noted in the decision, the cake makers argued that they would refuse to provide a cake to anyone (gay or straight) knowing that it was intended for a same sex marriage. This was rejected by the court as a "distinction without a difference" as grounds for circumventing the letter of the law. Interestingly, a similar decision in NM (regarding a wedding photographer) was upheld because there was no free speech infringement, i.e., no actual speech was involved.

Dust Bunny Queen said...

When does a court's ruling become superior to a person's religious or moral views."

Do you include not serving blacks in this?

Strict libertarians would say yes. Each business has the right to refuse to business with whomever they chose. It is a freedom of association issue. Morally, I would be not in favor of re-establishing segregation by race as a "societal rule".

People have the right to associate or NOT associate. For any reason. But especially if association makes you violate your religious and moral principles. The Boy Scouts not wanting to have homosexual scout leaders comes to mind as a prime example of freedom of association. No one MAKES you belong to the Boy Scouts so if you want to have homosexual leaders....start your own organization.

Smoking in business establishments is another. Libertarians would say...fine. Go ahead and allow smoking or ban smoking. It is your right. No one is forcing you to go into that bar or restaurant. If enough people object by not patronizing, then the business will fail.

Re: the bad cakes. I was joking. Sort of. If they are going to force you to go out of business, why not do it with a bang. /wink

Icepick said...

Of course, the idea that one shouldn't have to do business with people you don't approve cuts several different ways. In the Colorado case, the state can stop doing business with the shops by not licensing them.

chickelit said...

In the Colorado case, the state can stop doing business with the shops by not licensing them.

Doesn't this assume an equivalency of the state and individuals?

Trooper York said...

This battle has already been lost.

Every business establishment or religious institution will be forced by means of legal means to follow the agenda of the progressive forces that brought us the delights of gay marriage.

Soon enough we will see churches, temples and mosques forced to perform gay marriage ceremonies or suffer some sort of penalty. Either huge fines or the loss of tax exempt status. It is coming sooner than you think.

Michael Haz said...

I put this topic up because I believe that it's wrong that simply by opening a business, the state can override the business owner's religious beliefs.

And it is especially odious where the state does so just to enforce politically correct behavior toward one protected group or another.

.

Icepick said...

Doesn't this assume an equivalency of the state and individuals?

Aren't others assuming an equivalency of individuals and businesses?

And anyone doing contract work with the government knows they have to achieve a certain amount of disadvantaged business enterprise participation rates, or the government will end the contract.

The point is, this issue isn't as cut and dried an issue, either way, as people would have it.

chickelit said...

The complaint and the decision name a person and a business as defendants. I'm not sure how the two are disentwined.

Icepick said...

And it is especially odious where the state does so just to enforce politically correct behavior toward one protected group or another.

Again, that cuts both ways. Do you really think they should allow a Klan rally in a town like Eatonville (home of Zora Neale Hurston, historically and currently a black community) on MLK Jr. Day?

The problem is, we're not Denmark. (For that matter, Denmark is a little less Denmark every day.) All this lousy fucking diversity means we're stuck with problems like these.

chickelit said...

All this lousy fucking diversity means we're stuck with problems like these.

Decorum and etiquette used to decide these matters. Who approves of the Klan doing that? Who approves of a gay couple targeting Christian cake makers? The answer is, tolerated extremists.

Icepick said...

What if it were a chain, and there were, say, ten different owners. You end up with the same lawsuit if six out of the ten owners don't want to do business with the gay couple.

Personally I think it's repugnant to force someone to do business with me when they clearly don't want to do so - especially since the intent is clearly to rub their noses in it, and the complainants don't actually give a fuck about doing anything OTHER than humiliating the owners. But there it is.

There's also the state's rights angle. Does Colorado have the right, as a state, to add such conditions to businesses entirely within its own borders?

The larger problem is that the Constitution was set up to be a governing document for a group of societies that were each fairly self-contained. The document was not meant to dictate how the societies should work, just how they should work together for the purposes of mutual self-government. Now the Constitution is supposed to tell people how the society itself is supposed to be. So now abortion and privacy are rights, and damned if you can find any mention of either in the constitution. Gay marriage is becoming a right, and being forced down people's throats, by judicial fiat. That old document just isn't up to the demands placed upon it now.

Shorter: The Constitution is now expected to dictate to society how it should be, instead of merely serving it as a governmental framework. This is not a good thing.

Icepick said...

Decorum and etiquette used to decide these matters.

My previous comment was in reply to your comment of 7:56, but it works in reply to your 8:05 comment, too.

Still, the "decorum and etiquette" principle has problems, too. D&E would have had blacks accepting segregation in the South (and elsewhere) because that was what was accepted.

The real lesson of the American Experience is that white people should have picked their own damned cotton. But it isn't polite to say that, as the implications aren't acceptable according to the decorum and etiquette of the current age, such as it is.

Synova said...

"Strict libertarians would say yes."

True.

I think there are two issues. One of them is that no one should have to do business with anyone they chose not to serve... for whatever reason, including really bigoted ones.

To this we can say, "Yes, but racism?" And we might have a real problem with allowing that.

But there is another issue, and that is 1st Amendment guarantees to the free exercise of religious faith.

When homeschoolers were required to prove in court that home education was a 1st Am requirement for their family they didn't just get to say, "But I waaaaant to!" They used scripture and claimed religious conviction... not even just religious options, as in that their church allowed it. It had to be a conviction. A command from God.

Even then, yes, the state could have proved (if they actually *could* have proved) that there was some overwhelming necessity involved *and* that outlawing homeschool was, not the *easiest* solution, but the only solution to the problem.

So... you've got your racist bakery owner. Does this bakery owner adhere to a religious faith or tradition (even if no one else on the planet does) that has a prohibition about , oh, speaking to black people? If not, then it's not a religious freedom issue subject to religious freedom protections.

If some nut-case has his own personal racist religion and the conviction he'll go to hell or something if ... well, nut-case... is there actually a real necessity for the state to solve this problem? I don't see how there would be. It's just some individual nut-case being stupid.

Barring people with inconvenient religious convictions from commerce is not *freedom* of any of those things our Constitution guarantees. That is a religious test, not for public office, but a religious test for the right to so much as feed your own children in our society. What else should we start to apply this religious test toward? What else can the state deny you if you don't have acceptable opinions?

Dust Bunny Queen said...

The Constitution is now expected to dictate to society how it should be, instead of merely serving it as a governmental framework. This is not a good thing.

Agreed. The framers never intended the Constitution to be more than a skeletal framework for a Federal Government. The powers of the Federal Gov are quite limited. It is through mission creep that we have this all intrusive, overpowering Big Brother type of government. Not only at the Fed level but also at the State and local levels.

That the Government is involved in your personal business. What you eat. What you decide to wear. How you live your life, even to extent of your sexual preferences. This intrusion is horrific and frightening.

On a business level, of course there should be some governmental oversight to make sure that your product is safe or that your business practices are not predatory. We all want safe food, so that cake should be baked with good ingredients and you shouldn't have to worry about the chocolate frosting :-) You should be confident that your doctor has been vetted to be a competent physician and not a butcher and that your butcher is competent and clean in his work too.

BUT....that is the extent of it.

The government should have no say in WHO you do business with and no ability to FORCE you to do business with people you do not. It should have no ability to FORCE you to associate with people with whom you do not want.

Whether it is morally wrong to not wish to be associated or to not do business...and often it is morally wrong..... it is not the business of the Government. It is the responsibility of the community to enforce moral codes. It is the responsibility of the government to enforce LEGAL codes. These are NOT necessarily the same.

chickelit said...

@Synova said: It had to be a conviction. A command from God.

The decision I linked above has a summary of the defendant's beliefs including Scripture passages. I wonder if they were too generic though for it seemed to carry no weight with the Court. Suppose instead that the bakery owners were Catholic...couldn't they simply rely on the current doctrinal definition of marriage? Pope Francis hasn't yet gotten round to changing that.

Trooper York said...

You should be able to refuse service to anyone.

If you own a bar you should be able to refuse to sell to a drunk.

If you own a pet store you should be able to refuse to sell a pet to someone who would abuse or kill it.

If you own a bakery you should be able to refuse to sell to someone because you don't like the color of their eyes or the pants that they are wearing.

The government does not own us. At least not yet. But the way it is going soon it will.

Trooper York said...

As a store owner why should I have to even give a reason? It's my store and I should be able to do what I want. When you pay my bills then you can tell me what to do.

rcocean said...

This is why "Libertarians" are so fucking useless. This is probably the most 'Libertarian' issue in the world, the right to do or not do business with whoever you wish.

But you got "Libertarians" - the not strict kind- who disagree. What about racism, sexism, gay rights, etc. etc.

Just more evidence most of them are just liberals going by a different name.

deborah said...

Chick:
"What would the doctrinal basis be for a religious-based opposition to freedom of association?"

Interpretation of scripture.

deborah said...

DBQ:
"Re: the bad cakes. I was joking. Sort of. If they are going to force you to go out of business, why not do it with a bang. /wink"

'Cause they'll come back and kill you :)

chickelit said...

Interpretation of scripture.

Is it at least written down anywhere?

deborah said...

I don't know of a specific text that is considered to apply to race, but religions use passages to justify the exclusion of women. So I'm sure there is a racial 'justification' somewhere.

chickelit said...

So I'm sure there is a racial 'justification' somewhere.

Would you mind making me a Ham sammich?

chickelit said...

I'll take that sammich on wry if you're agreeable, deborah.

N.B.:
Ham himself is not cursed and race or skin color is never mentioned.

deborah said...

lol thanks, Chick :)

Bruce said...

A commercial transaction should be between a willing seller and willing buyer. A business should be able to choose whether or not to engage in a sale.

I think there are ways (other than DBQ's suggested ingredients) that they could deal with it, though.

"That particular artwork is difficult for us to do well; it's going to take a lot of time and effort. I'd estimate $10000 a piece for each of the three cakes. Of course, you are welcome to shop around and try to beat that price."

Then they have not "refused" to do business with anyone. Surely a court can't set their prices for them.