Let them Eat Cake

Just Made By Someone Else, Part II.

     You don't get a wedding cake typically at Safeway, Giant or the local Shoprite. A wedding cake maker is a specialty baker who knows how to tier large cakes and decorate them appropriately. There are wedding cake design contests, there are people who do nothing but wedding cakes. There are mom and pop bakeries who specialize in them.

   A wedding cake is a custom service creating a custom product, which typically involves sitting down with clients/customers and discussing their preferences for flavor cake and icing, style of decoration and topper. They can run on average between $500 and $1,000 a cake, (or more) and delivery arrangements sometimes have fees attached to the wedding reception venue location. A baker uses massive amounts of labor, time and other resources to make a huge wedding cake. The baker knows its for a wedding (sometimes even where the reception is) and knows it is for a gay wedding.

   Some Restaurants reserve the right to refuse service to people without shoes. Others without jacket and tie. Some at the beach insist you must wear a shirt to be served-no dining in your bathing suit. These are right of refusals based on objectionable conduct.

   If a gay person wants to get a special custom cake for the behavior and the baker disapproves of the conduct should that baker have a similar right of refusal to reject service based on objectionable conduct. This is not the same as a public accommodation anti-discrimination based on race because there is no conduct involved in simply being black. Neither is this like where there a public accommodation problem if a gay person wanted to get a cake and they were being denied service because they self-identify as gay, like, for example,  if someone refused to sell them a birthday cake.  A baker disapproving of a gay wedding is disapproving of the CONDUCT of the gay person or two gay people, not disapproving of the person, qua gay person.

    The constitution does not demand that all CONDUCT must be accepted by every public accommodation. Public accommodations like bars are all allowed to throw people out for being loud drunks who throw glasses against the wall. Public accommodations like restaurants can declare themselves "No Smoking" restaurants and refuse service to people who smoke. A bar can blatantly discriminate against all drunks who throw glasses against the walls. Restaurants can blatantly discriminate against people smoking.

  Even public accommodations anti-discrimination  state statutes which say you cannot discriminate against anyone on the basis of their race, gender, religion or sexual orientation, can reserve the right to discriminate based on CONDUCT of those classifications. A restaurant can kick out a black person smoking or a female who comes in topless by refusing service.

A bar can discriminate against gender of a woman if she comes in topless and refuse service. A restaurant can discriminate against any black person if he comes in carrying firearms shouting he will kill someone by refusing service. Any bar or any restaurant can refuse service to a drunk disruptive patron who is a designated driver by refusing service and kicking them out.

     To make any baker liable under the anti-discrimination public accommodation rules based on their refusal to cater a gay wedding is not legally supportable because they are not discriminating on the basis of sexual orientation in doing that. They are discriminating on the basis of the CONDUCT of
someone with a sexual orientation.

The difference between CONDUCT (or behavior) and generic traits- race, gender, gender- oriented, national origin, classifications is the difference that makes a difference. All laws are predicated on morality attached and imputed to CONDUCT, otherwise known as BEHAVIOR.

And all CONDUCT is not born Equally.  That is not ANYWHERE in the Constitution.