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Tag Archives: Culture

Custom-made disagreement

I’ve written a few times before about U.S. Supreme Court cases, without claiming legal expertise. This time it’s the Masterpiece Cakeshop case, with oral arguments presented yesterday. This case is important because of the culture war implications and interesting because of the need to draw a line between behavior the state can prohibit and behavior the state can’t prohibit.

The case is complicated by several factors: it concerns a business, not an individual; it concerns a corporation, not a sole proprietorship; it concerns a message without knowing any text associated with that message; it concerns freedom of speech, though it seems like freedom of religion; and it concerns food, which seems removed from freedom of speech.

The justices seemed to see the case in a larger context, which is good because that’s the rub. Where do we draw the line? The principle that a business must serve all comers is well recognized and accepted. But can a business refuse a customer on the basis of their purpose for buying the goods or services?

In most cases, a business does not know what that the customer’s purpose is, other than the obvious one – e.g., food is purchased to eat. But in the case of a custom product or service the business needs to know the customer’s purpose. What if the business does not want to be part of fulfilling that purpose?

There are straightforward cases of a customer of a print shop who wants a message printed that the print shop objects to. The customer has the freedom of speech to speak the message but the business has the freedom to refuse to assist them because of the message. The refusal is focused on the message, not the customer themselves.

Although a message wasn’t yet part of the transaction, the parallel with the cakeshop is clear. The cakeshop objected to the purpose of the custom-made cake the customer wanted. The state should not be able to force a business to make something for a purpose they object to.

The cakeshop could advertise that they custom-make wedding cakes for traditional weddings and (perhaps in small print) they don’t custom-make cakes for non-traditional weddings – except that a customer may purchase any off-the-shelf cake and use it for any purpose they choose.

Is that too difficult to understand?