Wedding Cakes, Business, and Minority Groups

About 1 this afternoon, I pulled myself away from my book and went to the running trails to work off some steam. I have a ridiculous amount of work including one article that I think is a home-run. So, I shouldn’t have wasted a morning with the book. It’s just that I was very, very upset.

I needed a really fast, hard run, which usually calls for some very nasty pop music on the headphones. I think I was too upset even for Beyoncé. I wanted some angry news. I put on the New York Times podcast and got lost in the discussion about same sex marriages and that wedding cake guy.

It was a good debate. One side is humiliated and fears a slippery slope, and the other side demands the right to self expression.

I do suspect that both sides were hired by opposing groups and aren’t really aggrieved parties. Because who would buy a cake from someone who hates you. Spit happens.

Also, the podcast didn’t discuss the fact that all businesses discriminate. The GAP discriminates against obese people by not carrying sizes about a 12. Running stores discriminate against special needs people when they don’t carry sneakers with velcro. And public schools discriminate against special needs people.

Our school district hired an auditor to look at our town’s special education program. Now, it shouldn’t matter to me all that much because my son now attends another public school, because I figured out how bad things were and got him moved. He’s doing great. But the report does matter to me because I really, really like special needs kids.

So, this report was devastating, but the auditors buried the findings. I printed out the 90 page report and pulled out all the bad things. And then went to the school board meeting, which is televised, and told them what the auditors found. The School Board members tried to distract me and buzz me away with a timer. I kept talking. I told them how they really shouldn’t house the special needs kids in a windowless basement classroom. The superintendent told me that it was okay because they provided the room with ventilation. Yes, he actually said that we should be happy because the kids were given oxygen.

Anyway, getting off topic here. The point is that the wedding cake story has larger implications. If wedding cake suppliers have to provide cakes for all, then does the GAP have to offer super large sizes, do sneaker stores need to accommodate people who can’t tie shoe laces, do schools need to provide a windowed classroom for all kids?

I hope so.

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34 thoughts on “Wedding Cakes, Business, and Minority Groups

  1. “… The GAP discriminates against obese people by not carrying sizes about a 12…” Yah, but they will SELL anyone a size 10, whether that person can squeeze into it or not.
    Like you, Laura, I doubt the authenticity of this attempted transaction. But whether authentic or not, it’s an issue. I think the social goal ought to be, gay people should be able to buy wedding cakes. Not, we gleefully kick in the teeth of anyone who does not embrace gays as full partners in civic life. So, if there is a Walmart within ten miles which does wedding cakes, this guy can turn the business away. His funeral. If you are in Nome and there’s not another baker for a hundred miles, this guy has to take the job. It’s kind of a public accomodation standard: is there, or is there now, a reasonable alternative provider.
    This is sort of that the country did on housing, with the Mrs Murphy exemption. If you have four units or less and you don’t like living with black people in the small place you rent out, okay. If you are Fred Trump and you have hundreds of units, and you wouldn’t think of living with the tenants in your apartments anyhow: you have to rent without discrimination.

    1. think the social goal ought to be, gay people should be able to buy wedding cakes. Not, we gleefully kick in the teeth of anyone who does not embrace gays as full partners in civic life. So, if there is a Walmart within ten miles which does wedding cakes, this guy can turn the business away. His funeral. If you are in Nome and there’s not another baker for a hundred miles, this guy has to take the job. It’s kind of a public accomodation standard: is there, or is there now, a reasonable alternative provider.

      No. Never. If I walk into a business and ask for something off the shelf, I should be allowed to buy it. No questions asked.

      Your public accommodation standard does not take my time and convenience into account. My time, correctly compensated, is worth upwards of $100/hr. That’s what I get paid, in salary and benefits, and if I was billing myself out as a contractor I would charge well north of that. If I have to do the research to find somewhere else to go and then go miles out of my way to go there, that is hours of my time. Why should I foot that several hundred dollar bill rather than some doofus who has the heebie-jeebies about doing business with me.

      This is all about in-group bigots trying to cut people they don’t like out of the economy. They did it with the blacks, they did it with my group (Jews) and now they are *still* trying, over and over again, to do it to gay people. No. Never.

      1. Well, Jay, if you want more Trump, that’s how to get more Trump.

        This follows how, exactly?

        I mean, this stupid argument could be used to extort any number of hostage negotiating. “If you want more terrorism this is how you get more terrorism.” How about making an argument on the merits?

      2. Honestly, when people say things like “if you want more Trump, that’s how to get more Trump” I’m just waiting for all of those people to stop voting (which will happen when they are the outsiders they fear now to become).

      3. Yes. It’s not the case that we’re dealing with people who are uncomfortable with gay marriage but otherwise willing to accept civil rights for all. What’s happening with voter suppression makes it clear that the actual goal is to make it legal to re-segregate the lunch counters and start Jim Crow. It’s better to have the fight at this line now than to give in here, convince all the gay people and others paying attention that the Democratic Party is too weak or compromised to be effective, and then have the fight again without their support.

      4. “Well, Jay, if you want more Trump, that’s how to get more Trump. This follows how, exactly?
        I mean, this stupid argument could be used to extort any number of hostage negotiating. “If you want more terrorism this is how you get more terrorism.” How about making an argument on the merits?”

        I guess I need to do my best to fill in the blanks for you, Jay. I am making a claim that our aim ought not be to make sure that no (gay man, Jew, lesbian, African-American) ever has a sad because someone is rude. We’re going to fail at that, we are going to concentrate all of our efforts on anti-sad policing and someone who doesn’t like gay men, Jews, lesbians, African-Americans is STILL gonna go all eppur se muove on us. Compliance will be grudging, there will be spit in the cakes, and hackles will be raised. Years ago my then Senator said: “Let’s enjoy knocking their soft teeth down their whiny throats.” And that was part of how he became a former Senator, that and ‘macaca’…

        I think the aim should rather be that gay men, Jews, lesbians, African-Americans have reasonable access to cakes. In general, there will be a willing provider of most services. Again, if it’s the only bake shop for fifty miles, there’s a public accommodation aspect to it. But if there are three bakeries within five miles, what the hell, let the baker keep his scruples.

      5. Again, if it’s the only bake shop for fifty miles, there’s a public accommodation aspect to it. But if there are three bakeries within five miles, what the hell, let the baker keep his scruples.

        Again, having to go somewhere else can cost me several hundred dollars. Why should *I* have to foot that bill?

        And what about if the guy with alleged “scruples” is the best service. Separate but equal isn’t equal. I thought we had decided this decades ago. Apparently not.

  2. Good, Laura. And, though it might not feel like success at any particular moment, but without the fighting, there’s no hope.

    I thought this article told a compelling case for the wedding cake. I do not know what the courts will decide (was not surprised but saddened by the lift of the stay on the ban on imigration from the muslim-majority target countries). But, I think the argument that Masterpiece Cakeshop refused to sell a cake to the couple, and not to make a specific kind of cake was compelling.

    “Phillips’s objection was about to whom it was sold; a user-based objection. The gay couple never even had the opportunity to discuss designs with Phillips, because the baker made it immediately clear that he would not sell them any wedding cake at all. Indeed, Masterpiece once even refused a cupcake order to lesbians upon learning that they were for the couple’s commitment ceremony.”

    In your Gap analogy (and mind you, they do sell size 12, and size 12s are huge, since they seem to have some sort of adaptive sizing of jeans), it would be equivalent to refusing to sell jeans (even small ones) to large people, say because they think that’s supporting the unhealthy eating choices they are making.

  3. It sounds like your district is under-identifying special needs children. Unless it’s a really small district, all the special needs kids shouldn’t fit in one classroom.

    I don’t think the Gap needs to stock anything they don’t want to. There are lots of competitors. Of course, they may find their market share shrinking, but that is literally their business.

    And then there’s Amazon, through which anyone can have anything delivered.

    For me, a sign of the end for stores is when their inventory loses all coherence. Has anyone been to Staples recently? I visited last month, and they had the strangest selection of stuff.

    J. Crew fired their chief designer recently, and you can tell when you visit the store. To me, it’s now all very meh–very Gap-like.

  4. The “art” argument I’ve heard around the bakery seems weird. A lot of things are an art. Medicine is in many ways an art and certainly I’ve seen bad things happen when providers decide not to do their job for religious reasons. I know one woman now in her 70s whose lumpectomy became badly infected due to the nurse’s refusal to take care of her in the hospital because of her being there with a female partner. She ended up with a mastectomy.

  5. If you are going to force the Gap to make larger sizes, what is the limit? If only one person wears a size 43, do they have to make every style and color in size 43? If they don’t, they are still discriminating. I think trying to force every retailer to meet everyone’s needs is dumb.

  6. The Gap analogy is really kind of a silly and non-applicable one. The Gap sells anything it stocks to anyone who walks in. It’s not saying that some people can buy the jeans they have and some people don’t.

    1. This article is about designers and who they want to donate their clothes and time to. I think these lines are worth discussing because I do think there is possibility for clashes of individual rights.

      The generic argument made by those who wish to allow people to discriminate, premised on some theory of individual rights or private property presumes a reality that did not exist when we started passing laws compelling people to serve everyone. There was rarely another lunch counter, bus system, . . . for people to go to and when those places existed they were systematically inferior to those provided by the descriptors. And furthermore, as the Nashville streetcar boycott, as early as 1905 showed, targeted groups who tried to develop their own, equivalent services were further discriminated against and prevented from the joining the marketplace.

      And now, when the argument is made, it is almost always made with the power of the majority. Say, for example, when those who wish to impose prayers at graduations argue that well, in theory, if the valedictorian wants to pray to the Great Spaghetti Monster they can, they are always relying on the “in theory” reality. Not surprisingly, in those schools, the valedictorian always wants to pray to a Christian god. For some minorities targets (say, gay people) the assumption of always being the majority might be valid (though I think not — because of the concentrations that can occur in subsets of society). But, I think these assumptions are shifting overall, that the presumption that when you argue taxi drivers or businesses can discriminate at will that white people (men, potentially to make spaces safer and women through religious discrimination) won’t be the target is quickly becoming false. I think people arguing for these “in theory” ideas had better get used to the idea of their reality, affecting them.

  7. The line between discrimination against gay people and against people who wear sizes bigger than 12 is that in the one case there’s a state statute forbidding the discrimination and in the other case there isn’t — that’s not a slippery conceptual distinction, it’s a legislative action.

    The complex legal argumentation is around whether Colorado is constitutionally permitted to forbid discriminating against gay people as to the extent that it has.

    1. I think it further complicates matters that at the time, gay couples were not recognized in Colorado – they could not get marriage licenses. So the state could and did discriminate, but is saying that the baker was not allowed to do so.

    2. But the Constitution overrides state statutes. If it were not for the Constitution, there wouldn’t be a Supreme Court case at all. There was, in case anyone has forgotten, plenty of state legislative action enforcing racial segregation. So that can’t be the legally relevant distinction. The Constitution was intended to protect fundamental rights, like religious freedom, from transitory legislative majorities.

      1. I think we are sort of distracted by legalities in this thing: we may or may not have a way to get there, given what the laws require and how they play out, but we have a situation in which somebody is going to feel aggrieved and alienated – either gays in general who will feel that others are not forced to acknowledge their place in society or evangelicals and others who are squeamish/morally disapproving of gays and who will feel that their beliefs are being overridden. And if we can get there, I think we are better off in general if gays (Jews, blacks, Amish, 7th Day Adventists, Mormons, etc) can get their needs met by willing providers and if there are a few small business sore heads who don’t want to play, it’s their commercial loss.
        The example I used earlier – the Mrs Murphy exemption from fair housing if under 4 units, but Fred Trump with his hundreds/thousands of units must rent to all – still seems like the one which leads to the least social alienation.

      2. ut we have a situation in which somebody is going to feel aggrieved and alienated – either gays in general who will feel that others are not forced to acknowledge their place in society or evangelicals and others who are squeamish/morally disapproving of gays and who will feel that their beliefs are being overridden.

        I honestly don’t see any basis for compromise, because I am unwilling to allow any sort of legal space or acknowledgement of any sort of second class status or diminished place in society for me and I am unwilling to extend any sort of sympathy or accommodation for people who want this. I am quite willing to literally fight to the death over this.

      3. Well, Jay, I certainly hope there are enough people out there who are less doctrinaire, aggressive, and rigid than you are to keep the society from going further into schism.

      4. Well, Jay, I certainly hope there are enough people out there who are less doctrinaire, aggressive, and rigid than you are to keep the society from going further into schism.

        Yes, the schism. Who will think of the schism. I’m sure that you would have been one of those people in 1960s Virginia sadly shaking their heads and saying “You want more Wallace. *This* is how you get more Wallace…”

        But *I’m* not the one you should be worried about. About 70% of the millennials coming up behind me hate your friend in Colorado and everything he stands for and the generation coming up behind them is even more manichean. You should be trying to figure out what sort of compromises they will accept rather than shaking your finger at them and demanding compromises that soothe *your* feelings.

      5. Jay, you have some problem with reading comprehension. I have said nothing to indicate that the cake baker is my friend, nor that I support what he did. I am eager for this country to live in harmony.
        I support initiatives for even treatment in the workplace for all, and in the provision of government services. Even though your reading skills seem to be deficient, I recommend that you go and apply them to the essay written prior to the election http://claremont.org/crb/basicpage/the-flight-93-election/ as one of the best discussions I’ve seen of the perceptions of evangelicals and working class people of the disdain and lack of sympathy they are getting from the chattering class.
        I’m a chattering class member myself, despite your clear failure to understand what I have written, but I do strive to understand how we look to others, and it’s not pleasant.

      6. Jay, you have some problem with reading comprehension…I’m a chattering class member myself…

        I don’t think so. I read just fine and I’ve read your precious “Flight 93 essay.”

        And what does it matter that you claim membership in the so-called “chattering class?” He is the guy chanting about “segregation now, segregation tomorrow, segregation forever” and you are the chattering class chatterer who shakes his head and says “See. This is how you get more Wallace.” We should have listened to them then?

      7. “I know there are only 60 days left to make our case — and don’t get complacent; don’t see the latest outrageous, offensive, inappropriate comment and think, “Well, he’s done this time.” We are living in a volatile political environment.

        You know, to just be grossly generalistic, you could put half of Trump’s supporters into what I call the basket of deplorables. (Laughter/applause) Right? (Laughter/applause) They’re racist, sexist, homophobic, xenophobic — Islamophobic — you name it. And unfortunately, there are people like that. And he has lifted them up. He has given voice to their websites that used to only have 11,000 people — now have 11 million. He tweets and retweets their offensive hateful mean-spirited rhetoric. Now, some of those folks — they are irredeemable, but thankfully, they are not America.””

        I think, this is a lot of how we got Trump. Jay, I don’t really know what you think. But I think you are pretty close to Hillary, here. And we are all dealing with the results of this kind of sneering discourse from the chattering class, and will be for several years to come.

      8. Jay, Andrew Sullivan’s views seem a lot closer to mine than to yours. Not surprisingly, I like them:

        http://nymag.com/daily/intelligencer/2017/12/andrew-sullivan-let-him-have-his-cake.html

        “.. The staggering victories of the marriage-equality movement (now, Australia!) have led us here — far sooner than most of us pioneers ever contemplated. And the speed and finality of this social change has — understandably — frightened, disturbed, and alienated many on the other side. They are still smarting from the sting of defeat, defensibly regrouping and obsessing over their victimhood.
        Which is why I think it was a prudential mistake to sue the baker. Live and let live would have been a far better response. The baker’s religious convictions are not trivial or obviously in bad faith, which means to say he is not just suddenly citing them solely when it comes to catering to gays. His fundamentalism makes him refuse to make even Halloween cakes, for Pete’s sake. More to the point, he has said he would provide any form of custom-designed cakes for gay couples — a birthday cake, for example — except for one designed for a specific celebration that he has religious objections to. And those religious convictions cannot be dismissed as arbitrary (even if you find them absurd). Opposition to same-sex marriage has been an uncontested pillar of every major world religion for aeons.
        And so, if there are alternative solutions, like finding another baker, why force the point? ..”

      1. Also, it’s one of the few NYT articles were I learned something useful that I remembered (e.g. edibles don’t kick in right away).

  8. Good work with the school board, Laura. Going through a 90-page report and pulling out the salient and unsavory bits – that’s putting your academic training to excellent use.

    I taught a whole class on law and religion last year, and it is amazing the different positions even the most experienced jurists have on what counts as free exercise or establishment.

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