The difference between the bar and the bakery

What’s the difference between that bar that was allowed to kick out someone wearing a Trump hat and a baker not baking a cake for a gay couple?

Well, for one thing, the bar isn’t just selling items like a baker is. A bar is a place where you stay and drink and possibly cause arguments and fights. It’s more like a club, where they can have a doorman who decides who gets in (as long as it doesn’t violate protected classes like race and sex).hate hat

This guy went there looking for a fight, according to witnesses. It was just after the election and out of the thousands of places to go in Manhattan, he went to a gay bar where he knew he would be unwelcome and sure enough, caused a scene. In other words, it’s less about the hat and more about whether a bar can kick out someone who will clearly be disruptive.

A store or a bakery is completely different. There’s no reason to stop someone wearing a Trump hat from going into a Target. However, if you go into a cake store and start arguing with the people there and causing a scene, they can ask you to leave, too.

Further, the baker who refused to bake a cake for the gay couple was not discriminating against the gay couple for anything political the couple had said. The couple was not causing a scene. The couple simply wanted the same product that the baker would sell to a straight couple. That’s the very definition of prohibited discrimination, and is the same thing as saying to a black person that you won’t serve them at the lunch counter.

Discriminating on the basis of political speech is not the same as discriminating on the basis of prohibited categories such as race or sex or sexual orientation. You chose to have that speech and to do it publicly.

And “symbolic speech” is treated the same as actual speech. Think of it this way:

If someone walks into a gay bar and loudly say “I am against everything gay people stand for and want to take away all your rights, you terrible people” would you have the right to kick that person out?

If they’re wearing a t-shirt that says it, how about then?

What about a hat that pretty much says the same thing?

Just because you’re not speaking it out loud doesn’t mean you’re not conveying your hate. A hat like that in a bar like that is pretty much the same as going to a women’s rights meeting wearing a shirt that says “Bitch, make my sandwich.” You’re there to antagonize.

This guy was there to cause a scene, make a name for himself, file a lawsuit, and get popular on Fox News.  And it worked! He’s suddenly a hero to those people who think it’s perfectly fine to be an asshole to others and face no consequences.


Let them eat cake

A conservative who thought he was being clever recently called a bunch of bakeries owned by gays and demanded that they make him a cake saying “Gay marriage is wrong” and all said no.

Aha! Clearly there is a double standard here.cake

Well, no, there isn’t. A bakery has the right to say they won’t make a cake that says “gay marriage is wrong” or “gay marriage is right” or “support Barack Obama” or “Vote Republican.”

If a bakery gladly makes penis-shaped cakes for heterosexual parties but refuses to make one for a homosexual party, then I think that is wrong. Clearly, they do not object to what they are making at that point, just who they are selling to. And that’s the problem. It’s the exact same product!

If you offer a product to the world, you should not be allowed to discriminate. You can’t say “I will sell this wedding cake design to everyone except the Irish,” for instance. And that’s the issue — when a gay couple asks a baker to give them a cake exactly like a straight couple gets, the bakery should not be allowed to say no. (I say “should” because in most states, it is perfectly legal for individuals to discriminate against gays, even when the state can’t discriminate.)

This is different from a service. A band can certainly refuse to play at a KKK rally or even a “Ted Cruz for President” event. A caterer can say that they don’t want to cater to you. A hall can refuse to rent to a group it disagrees with. I, as a lawyer, do not have to accept every single client that comes into my office with money.

There are plenty of gray areas here, but I think this is the basic distinction that many do not understand (or agree with).