Does the Constitution Force Bakers to Bake?

Several recent court cases have resulted in small business owners, who create the wares and services that they sell, being ordered by a judge to sell their custom-made wares (e.g., wedding cakes and floral arrangements) or services (e.g. wedding photography) to gay couples despite the small business owner’s refusal to do so based on their religious principles.

If the business in question sold standard, mass produced items, such as rings, then denying gay couples the right to purchase such things would be clearly discriminatory in the same way that a realtor would be discriminating if they refused to show a house that was for sale to any and all interested potential buyers.  The sexual orientation of the buyers should not be an issue in that sort of transaction.

However, the sensitivities of gay couples who claim to feel slighted is not the real issue.  The plaintiff in a recent wedding cake related suit, one David Mullins, is reported to have said:

“Being denied service by Masterpiece Cakeshop [the defendant] was offensive and dehumanizing especially in the midst of arranging what should be a joyful family celebration.”

While vigorously defending the plaintiffs’ claims that they have a right not to be offended, the judge, the ACLU and others in the LGBT community seem to be ignoring (in this particular case) the rights of the  baker who chose not to fulfill the plaintiffs’ request.  Most people would immediately think of the 1st Amendment’s protection of freedom of religion, but in truth that is not the part of the Constitution that leapt immediately to mind.  In truth, it is the 13th Amendment, Section 1, which should be the controlling part of the legal debate in this situation.

For those who don’t have their pocket copy of the Constitution handy, the 13th Amendment, Section 1, reads:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

If Walmart, Sears or any other retailer denied a gay couple the ability to purchase something that had been mass produced, even if it was to be used for a wedding, nearly all Americans would agree that such a denial would be discriminatory.  On the other hand, the cases that have gone to trial, and have had a judge find in favor of the plaintiffs, have been based on a refusal by the defendant, not to sell a mass produced product but rather to perform a personal service.  The baker would have to personally bake and decorate a cake.  The florist would personally have to arrange flowers.  The photographer would personally have to take the photographs of the plaintiffs’ wedding and possibly reception.  In all three cases, the labor would have to be performed personally by the defendants against their clearly stated will.

An article on the website (where one can reasonably assume a certain sensitivity to the subject), a clear differentiation between slavery and involuntary servitude is shown.  According to Andrea C. Armstrong, the author:

“Involuntary servitude is, at its core, forced labor for the benefit of another. Such labor may be compelled by physical force or coerced. Coercion must amount to the laborer justifiably believing he has no choice but to perform the ordered work. Such coercion may, but need not necessarily, be physical.”

Ms. Armstrong expands on this thought, saying:

“It could be argued that the key difference between slavery and involuntary servitude is that slavery status attaches for life, but involuntary servitude for only a definite period of time. This supposed distinction, however, is meaningless when we consider the purpose behind a future possibility of freedom. Involuntary servitude need not necessarily be for life but rather may exist for a few days, months, or years.”

This being noted, it seems that Administrative Law Judge Robert N. Spencer has ordered Mr. Jack Phillips into a condition of involuntary servitude.  Apparently Judge Spencer did not find Mr. Phillips guilty of a crime, as required in the 13th Amendment, yet ordered that he do work for the plaintiffs anyway.  If a black robed judge orders something, and you are unaware of the intricacies of the law, it could be logically argued that you were being coerced.

The actual ruling requires the baker to bake the cake or face fines and potentially jail time.  Now that sounds a lot like coercion to most people.

There are three possible ways for Mr. Phillips to deal with this situation.

Obviously the first way would just do what the judge told him to do and bake the cake.

The second is to agree to bake the cake, but unless the judge also specified the retail price of the cake, establish a price for the gay couple’s cake of, just to pick a number, $10,000.  If they are willing to pony up the $10 grand, take the money, and donate it to the church.  I’m pretty sure God would understand.

Finally, bake the cake, but make it the most unattractive cake imaginable.  Or in a related case, take the photos, making sure that none are in focus, or that they capture the most unattractive facial expressions possible.  You can be pretty sure that the plaintiffs would not be sending more gay couples your way with rave reviews of your work.


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About Jim Yardley

Retired after 30 years as a financial controller for a variety of manufacturing firms, a two-tour Vietnam veteran, and independent voter.
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4 Responses to Does the Constitution Force Bakers to Bake?

  1. Pete Morin says:

    Definitely a thought provoking article, Jim. The issue of denying a service to a willing customer is controversial to say the least. For a judge to require such a service to be performed, with the threat of fine, or imprisonment, is even more disturbing.

    Your reference to the 13th amendment may seem to be an appropriate remedy for defense of the denial of service, but a closer look, and better understanding, of the reasons for this amendment’s enactment may weaken the case.

    Referring to ‘The Heritage Guide to the Constituion’ concerning this particular amendment it states the following: “The Thirteenth Amendment was intended to complete the destruction of slavery begun by the U.S. government……to establish a positive guarantee of personal liberty, expressed in the negative form of a proscription of slavery or involuntary servitude.”

    We mustn’t forget that the meaning of words matter, and in this case the meaning of the amendment( passed in December, 1865) was to apply to blacks and their slavery or involuntary servitude.

    Liberals love to apply intent and meaning to various amendments for which there is no basis. The 14th amendment is of particular attraction to equal rights proponents. That amendment, however, was written to remedy any exclusion against blacks for equal treatment before the law, not as a catchall for various groups to remedy their alleged loss of equal rights.

    Not providing a service due to religious beliefs should be sufficient to withhold same, but since a judge has ruled otherwise, I believe your remedy in having the baker charge a higher fee, or produce a totally unpalatable cake, makes sense.

    In other words–let them eat lousy cake!!

    • Jim Yardley says:

      Naturally I agree, the meaning of the words matter, but keep in mind the part about it being OK to impose involuntary servitude if you are convicted of a crime. That phrase is the basis for forcing prison inmates to work in order to defray the cost of keeping them in the prison for food, medical care and so on. Also keep in mind that the words are always interpreted. In these cases, the interpretation may delay the case during a series of appeals making the case itself moot. I doubt the two guys, or girls or the guy and his goat are going to wait until the appeals have run their course to tie the knot. Any order to bake a cake or take some pictures would more than likely be stayed pending those appeals.

      I have to admit though, I like the idea of totally screwing with their photos, myself. I’ve shot a few weddings and the money is OK, but dealing with all the drunk relatives can be a pain. I imagine in these cases it would be abnormally annoying.

  2. Pete Morin says:

    I forgot to answer your question at the beginning of the article. Yes, the judge is acting unconstitutionally. He’s probably using the 14th amendment to support his decision, and as I stated above that is not what a judge should reference in making his case for a discriminatory act.

  3. kathy says:

    How mean spirited of the gay couple to force a man to go against his conscience. And the judge is a bully. The baker could always bake them a tiered wedding fruitcake and frost it with two lttile plastic grooms on top. They won’t know until they cut into it.
    If anyone physically hurts a gay person just for being gay, they deserve a punishment. If someone does not want to personally support gay marriage they do not deserve a punishemnt. I applaud the baker for turning down money to stand up for what is right. And gay activists are trolling just to make these kind of cases. More of the left’s devices to break down the American family. Break the family and ruin the nation and get rid of the Constitution. The left trifecta!

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