FAN 168.1 (First Amendment News) Prof. Alan Morrison Weighs in on Facts Issue in Cake Case

Scenario # 1: Gay couple walks into Christian bakery and attempts to buy a generic wedding cake from refrigerator display. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 2: Gay couple walks into Christian bakery and orders a generic wedding cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 3:  Gay couple walks into Christian bakery and asks if they design cakes for same sex couples. Owner says no. Couple then attempts to buy generic wedding cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 4: Gay couple walks into Christian bakery and orders a generic wedding cake. They then ask to purchase  two grooms to place on the cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 5: Gay couple walks into Christian bakery and asks if they will create and design a wedding cake for them. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

It appears that the exchange between the buyers and the seller that gave rise to this case was very brief and was almost surely not carried out with the legal issue now before the Court in the minds of anyone.  From what I have read, the alternatives Ron discusses were not fleshed out in this exchange and so what each party now says it wanted may have no bearing on what, if anything, was going through their minds at the time.  To add to the uncertainty, the exchange was so brief, and perhaps infused with emotion on both sides, that any nuances now suggested were either not picked up or lost in the moment.

If the Court’s decision turns on which scenario it accepts as what actually happened, how much confidence should we have that the Court’s “facts” will be the “real” facts — whatever that means?  The only saving grace is that the remedy ordered does not include money damages and any injunction that is upheld is likely to be quite targetted, which brings me to my next thought.

Despite its emotional importance, this decision is likely to be of only modest significance, unless the Court takes an extreme position one way or the other. Suppose the Court says that artistic cake making is protected, but only if the baker is clear that this is a very limited exception. And assume further that cake makers — and perhaps florists and photographers — get the word and now know what they must say, and may not say, if they want to honor their consciences and avoid liability.  My hunch is that they will probably able to find a way to do that, and the cake buyers will still be able to get their cakes (and eat them too) in most situations.

Finally. I think (perhaps hope ) that this decision may have limited real world impact based on the fact that there are probably very few people in business who will turn away customers for reasons of conscience, not only because of the direct lost income, but because of what an adverse Internet posting may do for their business more generally.  And on the other side, will those few buyers who are turned down for reasons of conscience care enough to spend the time and money to establish a principle, or instead go to another shop that actually wants to serve them?

— Alan Morrison