Wedding Cakes Have Nothing To Do With Free Speech

Authored by Jacob Hornberger via Ther Future of Freedom Foundation,

The New York Times recently carried an interesting article on the wedding-cake controversy that is now before the U.S. Supreme Court. The article pointed out that prominent lawyers who specialize in First Amendment cases are “vexed” by the controversy.

The facts of the case are simple: A Colorado bakeshop refused to create a wedding cake for a gay couple. The state charged the baker with unlawful discrimination. Those vexed lawyers are having trouble deciding whether the baker has a First Amendment right to refuse to create a wedding cake for the gay couple. Some of them say yes and some say no.

Floyd Abrams, who the Times calls the nation’s most prominent First Amendment lawyer, at first leaned toward the baker, repelled by the notion that the state could require him to create some sort of artistic rendering that violated his conscience. But then he started leaning the other way, asking “Could a painter invite the public to his gallery at which he painted portraits of them for a fee but refused to paint black people?” Abrams finally came down on the side of the gay couple.


Eugene Volokh, who the Times describes as a “leading First Amendment scholar,” sided with the gay couple as well. While photographers and painters have the First Amendment right to decide which commissions to take, Volokh says, it’s different with bakers. A chef cannot claim a free speech right not to serve people at his restaurant, he said, no matter how beautiful his dishes look.


Ilya Shapiro, a lawyer with the Cato Institute, said that writers, singers, actors, and painters are entitled to First Amendment protection but not caterers and limousine drivers. Bakers, he said, are a close call because they are “close to the line.” Shapiro has sided with the baker.

The legal controversy vexing all these great legal minds is a classic example of what happens when the courts compromise (i.e., abandon) the principles of freedom. When that happens, it produces situations where lawyers are “vexed” and end up doing their best to pound square legal pegs into round legal holes.

The fact is that the wedding cake controversy has nothing to do with free speech. Instead, the issue is all about private property and the right to discriminate.

Let’s start with a simple example: the owner of a home.

I think everyone would agree that he has the right to decide who comes into his home.


He’s the owner, after all.


That’s part of what private ownership is all about — the right to exclude others from coming onto his property.


Suppose the homeowner throws a party in which he excludes blacks, Jews, immigrants, and poor people.


All of his 100 invited guests are rich white Americans.

Are there any First Amendment issues here? Would those lawyers in the wedding- cake controversy be vexed over whether the homeowner has the right to discriminate? Would they say that the issue turns on how “creative” the party is?

Of course not. Free speech and the First Amendment wouldn’t even enter the picture. Under principles of private property and liberty, the homeowner has the right to discriminate. If the state were to force him to invite blacks, Jews, immigrants, and poor people to his party, there is no way that he could be considered to be a free person. Freedom necessarily entails the right of the homeowner to discriminate on any grounds he wants when it comes to who enters onto his property.

The same principle applies to a person’s business. It’s his business. It’s his private property. He has just as much right to discriminate here as he does with his home.

Thus, by applying that principle, the wedding-cake controversy disintegrates. Bakers have the right to bake a cake for whomever they want and for whatever reason they want. It might well be that they hate blacks, Jews, immigrants, and poor people. Motive doesn’t matter. What matters is that under principles of liberty and private property, private business owners have as much right to discriminate as private homeowners.

By the same token, consumers have the right to boycott the business that is discriminating against others and to advocate that other people boycott it as well. That’s how the free market deals with businesses that people perceive are wrongfully discriminating against others. It nudges them to change their position through loss of sales revenues rather than force them to do so with the power of a government gun.

The problem, however, is that long ago the U.S. Supreme Court held that when people open their businesses to the public, everything changes. The Court held that when business owners do that, they subject themselves to governmental control, including state anti-discrimination laws.

But that’s ridiculous. Why should the fact that a person is selling privately owned things to others cause the principles of liberty and private property to be compromised or abandoned? Why shouldn’t the business owner still be free to discriminate in determining who enters his privately owned business and to whom he sells his private property?

By abandoning those principles of liberty and private property, it has naturally left lawyers vexed on how to resolve the wedding-cake dispute. It has left them relying on the First Amendment to come up with entirely subjective and arbitrary conclusions that have no consistent underlying legal principle undergirding them.

Does the baker have a legal duty to sell his artistic designs to everyone? Does he have the legal right to refrain from selling his artistic designs to certain classes of people? Is a cake an artistic design? Is it like a painting? Is the owner of a painting required to make the sale of his painting open to everyone, like at a public auction? How about the owner of a cake?

Do you see how ludicrous all this is? And it’s all because many decades ago the courts abandoned the principle that liberty and private property necessarily entail the right of freedom of association, which necessarily entails the right to discriminate. If they hadn’t abandoned that principle, there wouldn’t be a wedding-cake controversy before the Supreme Court, and Americans would a less controlled and regulated by the state than they are today.


IH8OBAMA boattrash Wed, 12/06/2017 - 14:01 Permalink

In the past, discrimination meant taking action AGAINST someone or a group.  In the wedding cake controversy, liberals have made discrimination pro-active in that you also MUST provide personal services in support of discrimination.I'm sure the Supreme court will see this illegal action and allow businesses to refuse service to anyone they don't wish to serve ESPECIALLY WHEN IT CAN BE SHOWN THAT IT GOES AGAINST ONE'S RELIGIOUS BELIEFS. 

In reply to by boattrash

pods LSD - Lower Sl… Wed, 12/06/2017 - 14:08 Permalink

Yep, government making another mistake trying to make up for a past mistake.Yeah, it's shitty if a business owner wants to discriminate against you, but where there is a need, it will be fulfilled by someone.Nope, now we will get some convoluted ruling that make everyone shake their heads.If you have private property, you determine who you deal with with said property.  Simple. What about those signs that state that the shopowner retains the right to refuse service for any reason?  pods

In reply to by LSD - Lower Sl…

all-priced-in Antifaschistische Wed, 12/06/2017 - 15:13 Permalink

"I'm just curious....if I go to a cake maker in Hollywood, and request a cake made in the shape of a giant penis" White frosting they would be allowed to say no black or brown frosting you would have to make it because that would be racist. -------------I use to work with a girl - sweet - nice - shy - She had a side business making cakes for bachelorette parties. A few of the ladies in the office were laughing - so I asked what was so funny - she showed me the cake she had made for someone. It was a giant penis - it looked like it could have just been chopped off someone - it looked real.     

In reply to by Antifaschistische

Lost My Shorts pods Wed, 12/06/2017 - 14:37 Permalink

It's not that simple.  Economies of scale operate in the business world.  A small town may be able to support one cafe on main street, and only one hotel.  If those establishments discriminate, some citizens will be excluded from all services.  It's not always true that every need will be fulfilled by someone.There is a good case that strongly location-based services, a.k.a. public accommodations like restaurants, hospitals, hotels, or sports facilities, where rendering of the service takes place on premises, should be prohibited from discrimination.  Private property is subject to lots of restrictions for the common good, such as your next-door neighbor can't open a toxic waste dump (even though it might be very profitable for him).  This whole private property argument is a bit middle-schoolish and ought to be dropped.A better argument is:  with services that are not location-based, and where the provider has small market share, the provider should be allowed to discriminate because the impact on the public is minimal and does not merit crushing all freedom of conscience.  If it were the only cake baker in Bearbutt, Alaska it's like a public accommodation and should be subject to non-descrimination laws.  But if there are 100 bakers grubbing for business in Denver, leave the Christian alone.  The purpose of the laws against bakers is to crush Christianity and drive those people from the community, and it's disgusting.  But you still have to make the right argument.If it's any consolation, the whole world is noticing how this goes.  In particular, Moslems have noticed what happend to Christianity when it tried to introduce some tolerance of LGBTQIP etc.  Those groups aren't interested in "some tolerance."  Open the door a crack and they don't let up until they have destroyed you.  The Taliban won't ever make that mistake.

In reply to by pods

pods Lost My Shorts Wed, 12/06/2017 - 14:50 Permalink

So you are saying you are for government involvement in use of private property. That's fine.Just don't pretend that it's anything more than your desire to affect outcomes through the force of government.It seems all of your arguments involve many many bureaucrats determining how big of a market share is big enough to require them to abide by your rules.And your appeal to fear fallacy about my next door neighbor having a toxic waste dump on his land would be fine, if no harm was caused to anyone else.  Shit, you ALREADY have toxic waste in your house.  The issue is damage to another.I wont get involved in your religious arguments. Not worth my time.Sorry, if there is one baker in bumfuck Alaska, it is NOT a public accomodation. There is no law against baking your own fucking cake.  Public accomodations involve something public, aka tax money.  So sports stadiums, etc, by taking public moneys, become public accomodations.  A single baker is just that. A single baker. Or would you have a commission to determine the proper number of bakers that need to be in an area of a given population density?Could said baker refuse to do business with a man who had raped his daughter?  In your view, no.  Because he is operating a public accomodation.  Hey, there's only 1 baker, therefore he must bake for everyone, right?pods

In reply to by Lost My Shorts

Lost My Shorts pods Wed, 12/06/2017 - 16:01 Permalink

Even if your time is very valuable, you still might want to spend a little bit of it getting a clue.Discrimination law is normally based on the idea of "protected classes."  They don't eliminate all your choice regarding whom you will do business with.  They just prevent you from refusing if your motive is the other person's membership in a protected class.  Of course it's fuzzy, because even if race and sex are protected classes there is a wink-wink understanding that white and male aren't really protected; and if you are cagey in your actions (i.e. not posting racist stuff on fourchan), there could be lots of arguments in court about the real motive for your actions.  But the baker was reamed out in Colorado because he made no secret about his motive, and sexual orientation is a protected class under Colorado law.It's quite legal, for example, in most places, to descriminate in housing based on criminal history.  They do a background check, and if you have convictions, they don't have to rent to you.  (Progressives in some places are trying to make criminal history a protected class, because that's how such things are treated under law.)  Laws are usually stricter involving businesses with premises frequented by the public, like stores and restaurants, but in general nothing prevents you from refusing to deal with someone you don't like unless the other party is willing to go to court and try to prove that you were motivated by membership in a protected class.That is clue number one.  Clue number two is:  this sophomoric libertarian private property argument is deeply hopeless.  There is no chance to win with it.  Grown-ups recognize that private and communal interests must be balanced, and you will never prevail with arguments to pursue one to the complete exclusion of the other. Private property extremism is not even traditional, and has never prevailed in any society anywhere.  It wouldn't work either. Admittedly it's hard to argue with PC pinheads about anything, but if there is any argument worth having, it's how to balance private and public interests, and where individual liberty can be advanced with little harm to the public good.  You might not like that, but reality has a way of not caring what you like.

In reply to by pods

The Wizard pods Wed, 12/06/2017 - 15:03 Permalink

What makes the author believe there is "private" property. The business is a creation of govt., the people converted to "persons" under the 14th amendment, created by govt. The govt. owns your labor and your possessions. Your land is not private property, it is called "real" property, real estate or personal property. Show me in a court or registration documents where it uses the term private property. We don't even have the true title to automobiles, they are certificates of title for a motor vehicle.Learn the law people. It will teach how we are getting screwed.

In reply to by pods

swmnguy The Wizard Wed, 12/06/2017 - 16:25 Permalink

You are correct.  As soon as you incorporate a business, you're now licensed by the government and have to follow their rules.  It really is that simple.There's nothing to keep you from baking cakes in your kitchen for a clientele of your selection, because then you're operating in a strictly private environment.  But as soon as you want the protections and privileges of lincensing a business that serves the public, you have to play by those rules.  That means you have to let the Health Department inspect your facilities.  You have to pay taxes.  You have to have doors of a certain width, at least two ways to get out of the building in case of fire, no rats on the premises, etc.So if you really can't stand homos or niggers or chinks or Episcopalians, you shouldn't be in a business that's accessible to the public.  Some us aren't cut out for the service sector.Just as if you want to operate your car on the public road, you have to have license plates, insurance, and a duly-issued license.  You can own a car that's sitting in your garage and you never drive it off your property without those things, but few us have circumstances where that would do us any good.

In reply to by The Wizard

The Wizard swmnguy Wed, 12/06/2017 - 16:34 Permalink

Good post.One correction. "Operate" "Operating" are terms of commerce. When you are operating you are presumed to be in commerce with govt. privileges, not in a "car" or "automobile", rather a motor vehicle. If you are "traveling" by right, you are on the common roadways in a private automobile (not motor vehicle) without a govt. issued license. These common roadways are free from incumberance.

In reply to by swmnguy

Lost My Shorts swmnguy Wed, 12/06/2017 - 18:02 Permalink

I am not sure this is a great post.  It seems factually wrong that you would be allowed to run a "private" business out of your kitchen in most jurisdictions, especially involving food.  Most jurisdictions require a business license for any non-trivial commerce involving food, or any business above a low revenue threshold, or any business that uses a name other than your personal name.Also, I'm not sure about the flippant argument that if you happen to have religious convictions, maybe you just aren't the right person to be making a living.  It's the sort of arrogance that is often seen in retrospect to represent a high water mark.

In reply to by swmnguy

pods bpgnp210 Wed, 12/06/2017 - 15:51 Permalink

People should be allowed to discriminate.  That is what freedom of association is. If you want a men's club, you have a men's club. If you want a (gasp) white only club, you have that.  If you want a club of geniuses only (Mensa), you only let in people who have a high enough IQ.  You should have the freedom to associate with whoever you want.  Either you have the freedom of association or you don't.Clearly, we don't.  That right is being infringed by our government.  And look where it has gotten us, compulsive labor for something you disagree with.pods

In reply to by bpgnp210

swmnguy Friedrich not Salma Wed, 12/06/2017 - 16:28 Permalink

I always wonder at the depth of people's values and beliefs, that are so focused on other people's behavior.  I much prefer to define myself in terms of my beliefs and values and behavior and goals, and leave other people to their own reckoning.  I don't want to define myself in terms of other people and find it trivializing.  I'd like to know what you stand for, not what you think other people should and shouldn't do in their private lives.  And if that's all you stand for, you aren't offering much to anyone.

In reply to by Friedrich not Salma

boattrash IH8OBAMA Wed, 12/06/2017 - 14:25 Permalink

Below you will see a comment re-posted (unrelated to this topic at first glance) regarding the CIA being "for hire". Wouldn't it be ironic if SCOTUS set a precedent that a "business" can NOT turn any customer away? Hahaha...and this statement, pulled from the CIA help wanted ad... "We uphold the highest standards of conduct. We seek and speak the truth – to our colleagues and to our customers." I was not aware that the CIA was openly a "for hire" agency. Can we start a Go-Fund-Me Page and "hire" them to take care of Mueller, Comey, Lynch, Clinton, Obama, Soros, Etc...?...Also, can I get my Congress-Critters to send me a list of the CIAs "Customer List"? Didn't think so...

In reply to by IH8OBAMA

NurseRatched BlindMonkey Wed, 12/06/2017 - 14:40 Permalink

I do not recall the uproar when a bunch of gay designers refused to make fancy dresses for Melania Trump.  Did I miss something? It is one thing for people to come into my business and asked to be servrved.   It is quite another when they ask me to participate in a religious ceremony of theirs which runs counter to every fiber in my being.Next up for libs: persecute Jewish tailors who refuse to make custom explosive-carrying vests for arab terrorists.

In reply to by BlindMonkey

bpgnp210 NurseRatched Wed, 12/06/2017 - 15:08 Permalink

Yes, the law.  Read it. "Public accommodation laws require businesses to serve the public without discriminating because of race, gender, religion and, in the case of Colorado and more than 20 other states, sexual orientation."  If you don't agree with the law change it.... but it's the law. No law on the books states you can't discriminate b/c your husband is a racist imbecile.

In reply to by NurseRatched

effendi NurseRatched Wed, 12/06/2017 - 18:33 Permalink

If a queer couple wants to buy a standard wedding cake then the baker should provide it. Then the fags can put 2 groom figurines on top after they leave the shop. If however they want the baker to bake a cake in the shape of a dick, decorate the cake with their names (Adam and Steve perhaps) and use rainbow icing then the baker should have every right to say NO!

In reply to by NurseRatched