If I (As An Atheist) Were Running A Cake Baking Biz.....You'd Get What U Want - For A Price!

The Confederate flag birthday cake some bloggers don't believe I'd make for them. They're wrong. I'd do it for $400 a cake!

It appears some Reich wing bloggers are thoroughly exercised over the Colorado case now before the Supreme Court.  The case involves a religious Colorado baker who refused to do work for a gay couple who were getting married.  At issue is whether Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, had the legal right to turn away fiancés Charlie Craig and David Mullins when they asked him to bake a wedding cake in 2012.  Phillips, a strict religionist,  contended his cakes were art and that doing a "gay cake"  would defile that art and so  violate his Christian values . 

The blogger to whom I refer was incensed that the Supremes might allow that Jack Phillips was in the wrong when he refused to "perform his service for the two homos".  I suspect our friend is not aware that one doesn't use that pejorative these days, but anyway....

He made the further rash claim that he'd never expect the ACLU to defend him if he was turned down by an Atheist cake maker - say to make a cake extolling the Ten Commandments. He's flat wrong as the ACLU has always taken such cases, acknowledging that citizen rights can be trampled on the Left or Right side of the national divide.

Further, he doubted that if he went to an atheist or liberal cake maker he'd be able to get a Confederate battle flag cake made. In that he is again making an erroneous assumption. No atheist I know (including yours truly - if I was into making cakes) would turn down his request.

Heck, he could have a Confederate cake such as depicted above for a mere 400 bucks. Same thing with ANY wedding cake he'd want, including one featuring the Ten Commandments.

Now, as you will note, there is likely NO way in hell that our friend would pay that much for a cake - even a Rebel cake or highly religious one. But that is precisely my point as it pertains to the Masterpiece Cakeshop case. Phillips could have avoided all the kerfuffle and loss of business after  the state Civil Rights Commission declared Phillips' business practices discriminatory by simply charging more for the cake.  Say, $500.  This might break down along the lines of: $150 (cake, decorations, including creative design) and $350 (mental strain during creation. i.e. from going against one's pet beliefs).

The point being there's a  rational basis for the higher price which would be difficult to refute or invalidate in a law court (see end notes from Markham Law). After all, the guy IS performing the service- and selling, just at a somewhat higher cost to make it worth his mental-emotional investment.

It would then redound to them to go to seek a more economic cake choice elsewhere. The business -commercial law sphere would have remained intact, and also the "free speech" - rights issue, now expressed in terms of setting a higher price for the creative "self expression." That may be intangible but he (as an artist) has as much right to put his own price on it as a paint artist does his portrait.

This is no different, imho, in our currently getting bids (from Task Easy) to do a fall cleanup - which we can no longer do because of health (back) issues. While Task Easy claims $120 for a "package" deal - the first (and only) contractor who arrived wanted double that!  We said absolutely not. That was OUR choice, and HIS choice was to move on and look elsewhere for paid contract work.

Thus, the "freedom" issue is easily resolved and in a businesslike as opposed to ideological way.  The key is that creators or contractors can charge whatever they want for a service, but the customer is also at liberty to turn them down - if the price isn't right.

Our  conservative blogger friend also tried to use the argument that Phillips was perfectly willing to "bake the homos any other cake" e.g. birthday or what not. But he still misses the point. Once you enter into the for profit commercial trade domain you agree to provide the services - the same services - you provide to all other customers. Hence, if you bake other customers wedding cakes you cannot make an exception for "homos". It's quite simple.

The argument might be made that if I or anyone jacked up the cost of a cake for an ideology or person we don't fancy that is "discriminatory pricing".  Well, tell that to the contractor who wanted to charge $240 to clear some leaves out of our yard! I simply don't buy it would hold that much legal water, certainly not to the level of the federal case Masterpiece Cakeshop faces now.

In other words, I'd take a "discriminatory" pricing case any day before having to deal with an outright, refusal of service,  discrimination of civil rights case.

From Markham Law P.C.  website;

Price Discrimination Is Often Lawful. Presumptively, a seller is entitled to set prices as he chooses when dealing with his different customers. Most sellers would resent any effort to restrict their discretion to set and vary their prices for different sales. In market economies such as our own, firms decide for themselves what to charge for their products and to whom they wish to make sales. It is contrary to the fundamental principles of market economics to regulate what sellers charge for their products or impose a rule that they cannot vary their prices for the same goods when selling them to different customers.

Unlawful Price Discrimination, Defined. Stated as a rule, price discrimination becomes unlawful under federal antitrust law only when it threatens to undermine competitive processes in an affected market and otherwise meets the specific criteria of the federal price discrimination statutes (viz., the simultaneous, ongoing sale of the same or similar products to commercial customers at different prices in transactions that implicate interstate commerce).

This harm is said to occur within the meaning of the federal price-discrimination statutes when the following circumstances are present: (1) the seller makes sales of goods in interstate commerce to commercial customers; (2) the seller sells the same goods in the same quantities at around the same times to different commercial customers, offering lower prices only to one or some of these customers; (3) this price discrimination persists over a substantial period of time; and (4) at least one favored customer and one disfavored customer use these goods in order to compete against one another to sell their own offerings, or a favored customer so competes against one or more customers of the disfavored customer. If a disfavored customer can make these showings, it can bring suit under the Robinson-Patman Act .

The Great Supreme Court Wedding Cake Face Off - Should Be A No Brainer

It's safe to say that businesses across the wedding industry will be closely watching what happens today when the U.S. Supreme Court convenes to hear the case of a religious Colorado baker who refused to do work for a gay couple who were getting married.  At issue is whether Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, had the legal right to turn away fiancés Charlie Craig and David Mullins when they asked him to bake a wedding cake in 2012.

Phillips, a strict religionist,  contends his cakes were art and that doing a "gay cake"  would defile that art and so  violate his Christian values .  Also his right to free expression; Craig and Mullins counter that it’s discriminatory to refuse them a service offered to other customers for a business in the public domain..

Supporters of Phillips argue that if he loses his legal fight then like-minded entrepreneurs with a religious objection to same-sex marriage effectively would be "barred" from doing wedding work. (In fact it would be their choice not to do such work, i.e. opt out.)  The claim is that a loss would also “provide a road map for litigation against Christian photographers who are bound by religious conviction not to offer their artistic talents to photograph a same-sex wedding ceremony or celebration,” wrote the International Christian Photographers in a brief filed to the high court.

Of course, all of this is codswallop which mixes apples and oranges within a civil,  legal framework. At issue then, is whether the cake maker - and the assorted Xtian photographers for that matter- have entered into a business or not. If not, if they simply follow their art or self-expression - with NO public sales or commerce- then they are not obliged to do anyone's bidding. They are not in the commercial marketplace but operating in their own private domain.

If, however, they are businesses and operating in the public, commercial sphere, then no such rights apply. That's why this ought to be a no brainer for the Supreme Court. Consider the consequences if Phillips' argument and associated  memes were extended willy-nilly so that anyone could apply it. Pharmacies could refuse serving people they regarded as "violating God's  laws"   - say denying birth control pills to young, single women ..

Owners of football teams could well decide that they want no Jews, blacks, or gays entering their stadiums and they might put that into place. Private Catholic hospitals -operating as businesses - might decide that they want no Muslims, Jews or gays on their premises either. Restaurants would feel free to bar anyone they think is marginal, including those who look like 'thugs' - or  whoever doesn't fit flitty criteria like hair length, or quality of dress.

In other words, you'd invite a society bordering on chaos.  Thus,  attorneys aligned ideologically with Craig and Mullins argue that a ruling in favor of Masterpiece Cakeshop would open the door for widespread discrimination — starting with weddings and spiraling outward- as I described above. In the words of one of the lawyers for the Denver Metro Chamber of Commerce:

"It is not hard to imagine the claims that will follow this case: A jeweler may argue that his religion forbids him from selling wedding rings to an interfaith couple; a shop owner may refuse service to women customers to avoid contact prohibited by his religion,” 

What would there be to stop it? Well, nothing, if each little special "private business"  decides to whom it will sell and who will be rejected as miscreants. Here's the bottom line truth: The restaurateur, cake maker, photographer is afforded certain privileges (via a licensing) to trade or provide services (such as food) in the public domain. However, their so called "freedom" (to trade)  is limited. Hence,  that can't include refusal of service unless there are extenuating circumstances, i.e. the customers enter drunk and disorderly. The trader doesn't have the latitude to refuse service on basis of race, skin color, OR the customer perceived as violating the trader's religious predilections..

For his part, Phillips,  in one brief, argues the “market already provides existing means to address this (issue), such as private websites apprising consumers of professionals in a geographical area who will celebrate same-sex weddings,”.  But he totally misses the point. That is, the existence of these other special  or private "niche" services have nothing to do with his own setting up a business that is supposed to provide general services to the whole public. You can't say "I don't have to obey common trade practices because other businesses will".  That's not the way business works in this country,

The dueling arguments are what one wedding professional described as the “unfinished business” of an industry that’s had to rapidly adjust to shifting American attitudes toward same-sex marriage — support since 2001 has risen from 35 percent to 62 percent, according to the Pew Research Center — culminating with its 2015 legal blessing by the Supreme Court.

This is why the state Civil Rights Commission “declared Phillips’s religious beliefs about marriage to be discriminatory”.   

According to one expert  (and publisher) on the wedding cake business, Kathryn Hamm:

“The vast majority of the industry is on board with working with same-sex couples,” 

One big reason for this is to do with the clientele. Most weddings are for young people, and most young people accept same-sex marriage — an attitude that weddings vendors increasingly have adopted too, Hamm said.

But she added that acceptance is not universal and some same-sex couples still experience discrimination — which is why legal protections are necessary.

How will the Court ruling go? I don't know but it is safe to say if the justices truly adhere to the legal principles and aren't swayed by emotions (or "free speech" red herrings), they will side with Craig and Mullins.  Not because they are gay and gay people "deserve a break".  But because the operation of the law  in the commercial trade sphere cannot be a free for all where everyone does what he wants - selling services to some because they conform to one's notions of  "self expression", rejecting others out of a sense of violating their  religious faith or personal dignity. That is a prescription for economic anarchy.

Selection of people who benefit from your "art" works is only allowable if the cake makers, photographers etc. are merely pursuing hobbies with no entry in the commercial domain, and no profits. Hobbies are private matters and certainly each person can pursue them as modes of self expression, as he or she sees fit. No law obliges a hobbyist to cede his interest, art or craft to others for their benefit. But - if he's out to make money in a pubic trade, that is a no go. 

When the two sides appear today for oral arguments at the Supreme Court, much of the focus will be on Justice Anthony Kennedy — a frequent swing vote on the nine-member court. According to Alan Chen, a professor at the University of Denver’s Sturm College of Law, Kennedy’s longtime support of free speech could come into play.  According to Chen:

"That suggests that he might be open-minded to the baker’s claim that there is some expressive component to baking a wedding cake that distinguishes it from other businesses,”

Expressive component? Give me a break. That would be a dangerous path to take indeed and one sincerely hopes that Justice Kennedy has enough sense to see it.  If we willy nilly allow every business to run according to "expressive components" we can be sure bedlam will be the result- utter and total. This is a slippery slope no justice ought to be going on - especially Justice Kennedy.