In the hotly-contested Colorado wedding cake case – in which the issue is whether a baker should be constitutionally allowed to discriminate and not create a cake for a same-sex wedding – the Supreme Court may be arguing toward a useful dividing line.
It has just heard oral arguments in the case, which probably is months off from a decision. But the justices’ questions were, as often, indicative of where their thinking was heading.
The New York Times reported on it, “The more liberal justices probed whether all sorts of artisans — tailors, hair stylists, makeup artists, chefs — could refuse to supply goods and services for same-sex weddings. Conservative justices considered whether artists can be required to convey messages with which they profoundly disagree.”
Justice Stephen Breyer asked, “Where is the line? That is what everyone is trying to get at.”
Let’s take a stab at it.
The anti-discrimination provisions in the law are intended to keep people from being shut out of society – especially the commercial side. Suppose it were legal for an electric company to deny service to some category of people its chief executive didn’t like? That alone would make a mockery of the idea of all of us living together in a cooperative society. That instance may be a made-up-case, but the Jim Crow years in this country, and not just in the South, did lead to bars to blacks and other citizens across a range of businesses where ordinary convenience and even health and safety were at stake. If you had the wrong skin color (or was in an otherwise disliked category), you could forget about eating at many restaurants, staying at many motels, getting served in a grocery or some other stores or even finding a rest room or a place to get a drink of water. That’s what the non-discrimination laws in “public accommodations” – in services generally open to the people – were intended to address.
Those kinds of goods and services, though, were not distinctive (or didn’t have to be) according to some category of person. Whether you were black or white, a motel room is a motel room, and a burger is a burger. If a business supplied you such things, you were being supplied the same kind of goods or services as everyone else gets. In other words, you weren’t asking for something particularized or unique, just a standard good or service.
Now on to the wedding cake.
The bakers involved is open to and says it serves the public. It may be a less-essential “accommodation” than a motel or restaurant but it seems to, at least loosely, fit the standard; members of the public ought to be able to expect to receive general relevant services there if they’re willing to pay for them.
Presumably, the shop offers various kinds of wedding cakes. Some may be relatively standard-issue, usable at almost any ceremony. Others may be special in design or in written message, particular to a specific ceremony and its participants.
One of the bakers said in the case that “he should not be forced to use his talents to convey a message of support for same-sex marriage.” There’s a point here: Should a person in effect be compelled under law to present and make attractive a message with which one disagrees?
But: What about simply agreeing to sell a cake, a generally usable wedding cake, while reserving the right to agree, or not agree, to contribute any specialized design or message – so that the baker would not be in a position of being forced to create a design or statement that he would not agree with?
There may be, in other words, room for a compromise here. It often happens in a society where everyone has rights that people don’t get everything they want. But the Supreme Court probably could, in a case like this, give the parties involved – and other cases to come – what they need.