Thursday, October 12, 2017

Is this discrimination?

Oozielionel: It seems that there is an attempt at a distinction between refusing service to a person and declining to perform a specific service. Masterpiece will sell any cake to any person. However, he will not create certain cakes (Halloween, erotic, same sex weddings). Refusing to sell specific products is different than refusing to serve specific people. On the face it is defensible. However, it may be possible to orient your product offerings in such a way that effectively and purposely eliminates a specific clientele. In most cases this is simple market segmentation. It may break across protected class lines. A clothing store may select product lines specific to ethnic or religious preferences. A book store can select titles favorable to one religion and refuse to care those contrary. Masterpiece Bakery has a viable argument.

VR: That is just the point I was trying to make when I presented the Bar Mitzvah argument. Does Lifeway stores discriminate against atheists by not selling The God Delusion? Of course they will sell a copy of Mere Christianity to any atheist who walks in the door. If a Masterpiece were to tell the gay couple "Sure, we'll bake you a cake. We just refuse to put anything on the cake that indicates that you are a same-sex couple That is not a product we provide." are they discriminating? 

In some cases I think wedding service providers can begin not with refusal but by unrecommending themselves, such as in the case of wedding photography. "It's not that we won't do it, it's just that we need to let you know we're against gay marriage, and think that someone who believes in gay marriage would do a better job." Is THAT discrimination, or just honesty?


Jimmy S. M. said...

How do I tell the difference between a same sex wedding cake and any other?

Victor Reppert said...

It says "Congratulations, Adam and Steve." It has two grooms pictured on top, and a rainbow decoration.

Jimmy S. M. said...

Just a regular cake: no writing, no plastic figurines, no unusual decorations, just flowers and lace, straight out of a sample book on the counter. Should the baker sell that cake to be used in a same sex wedding ceremony?

(your hypothetical cake is absurd, names aren't inherently gendered, and a heterosexual couple may want rainbow colors)

Jimmy S. M. said...

Most wedding cakes seemingly have no writing, and maybe 1/3 of these have representations of the couple

Victor Reppert said...

I am talking about a baker that puts limits on inscriptions and representations.

If the baker were to bake for a gay couple but not for a gay wedding, is it really anti-gay discrimination, since gayness was not sufficient for refusal? This is the issue in the Arlene's Flowers case.

oozzielionel said...

I think people are not paying attention to the Masterpiece case. His cakes are like paintings. They are not plain white frosting. He states he will sell any basic cake to anyone. He offered to sell them a birthday cake or any other cake. He just refused to create a cake with art promoting a same sex wedding. He also declines to create other themes.

The Colorado Court of Appeals decision gets into the interesting nuances of the issue. The court concluded that refusing to endorse same sex marriage is the same as refusing to serve a protected class. But this is on shaky ground.

"Masterpiece contends that the ALJ erred in concluding that its
refusal to create a wedding cake for Craig and Mullins was “because
of” their sexual orientation. Specifically, Masterpiece asserts that
its refusal to create the cake was “because of” its opposition to
same-sex marriage, not because of its opposition to their sexual
orientation. We conclude that the act of same-sex marriage is
closely correlated to Craig’s and Mullins’ sexual orientation, and
therefore, the ALJ did not err when he found that Masterpiece’s
refusal to create a wedding cake for Craig and Mullins was “because
of” their sexual orientation, in violation of CADA.

Masterpiece asserts that it did not decline to make Craig’s and
Mullins’ wedding cake “because of” their sexual orientation. It
argues that it does not object to or refuse to serve patrons because
of their sexual orientation, and that it assured Craig and Mullins
that it would design and create any other bakery product for them,
just not a wedding cake. Masterpiece asserts that its decision was
solely “because of” Craig’s and Mullins’ intended conduct —
entering into marriage with a same-sex partner — and the
celebratory message about same-sex marriage that baking a
wedding cake would convey. Therefore, because its refusal to serve
Craig and Mullins was not “because of” their sexual orientation,
Masterpiece contends that it did not violate CADA. "