Of Cake Shops and Coffee Shops: Recent Controversies Raise The Question Of When Owners Can Refuse Service To Those With Opposing Views

275px-A_small_cup_of_coffeeWedding_cake_with_pillar_supports,_2009A viral video from a Seattle coffee shop illustrates the growing tension between free speech and religious exercise values.  In the Facebook video, Ben Borgman — the owner of Bedlam Coffee shop — threw a Christian group out of his shop while spewing vulgar and obscene comments about their views.  There are a growing number of such conflicts as store owners assert their right to refuse to serve those with opposing religious or social values.  On December 5, the Supreme Court will hear the argument in Masterpiece Cakeshop v. Colorado Rights Commission.  That case will determine if a cake shop owner could refuse to prepare a cake for a same-sex couple on the basis of his opposing religious values.

I have supported a free speech approach to such cases.  I believe that a Jewish cake shop owner should be able to refuse to make a Mein Kampf cake or an African American owner should be able to refuse to make a White Supremacist cake.  While they cannot refuse to sell existing cases, a line can be drawn over expressive acts like the preparation of cakes or work as photographers.  I can see no other approach that can thread this needle.

The Seattle case reflects the difficult line drawing for such cases.  In the video, Borgman confronts the group, Abolish Human Abortion, and says “I’m gay. You have to leave.”   One of the advocates, Caytie Davis, asks if he is denying them service, and Borgman says that he is.  He is doing so based on their religious and political views as reflected on a flier that he obtained outside.  However, the group was not engaging in advocacy inside the coffee shop.  He was not being asked to prepare a special dish or drink referencing opposing values.  Rather, they simply came in for coffee after handing out religious pamphlets.   They tell Borgman that they did not pass out literature in his shop but he tells them to “shut up.”

Borgman holds up one of the pamphlets and declares “This is offensive to me. I own the place. I have the right to be offended.”  True, but does he have to right to bar people solely on the views that they hold?

Borgman then becomes highly offensive and demands to know if activist Jonathan Sutherland would “tolerate” a sex act between two men.  He adds “Can you tolerate my presence? Really?” the owner asked. “If I go get my boyfriend and f**k him in the a** right here you’re going to tolerate that? Are you going to tolerate it?”

Sutherland remains calm and says “That would be your choice.”

Borgman yells in response “Answer my f***ing question!” No, you’re going to sit right here and f***ing watch it! Leave, all of you! Tell all your f**king friends don’t come here!”

As the group leaves, one of the women stops to tell Borgman that Christ can save him “from that lifestyle.”  Borgman responds “Yeah, I like a**,” the owner spat. “I’m not going to be saved by anything. I’d f**k Christ in the a**. Okay? He’s hot.”

 

 

The question is whether Borgman has a right to toss out people simply because they do not share his values.  If so, can a cake shop owner refuse to prepare a cake for a same-sex couple?  In the Supreme Court case, owner Jack Phillips did not refuse to serve the same-sex couple if they wanted to buy an existing cake. He refused to prepare a cake with a message that he found offensive.  This is in line with the long-standing principle that the government cannot require a person “to utter what is not in his mind.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 634 (1943). In Seattle, Borgman refuses to serve the group in an non-expressive act of supplying existing coffee or other items.   Under Borgman’s approach, any owner could toss out people who did not support their views on homosexuality or the environment or religion — even though they are not demanding to express those values in this business.

Where would you draw the line in cases like those of cake shop owner Phillips and coffee shop owner Borgman?

387 thoughts on “Of Cake Shops and Coffee Shops: Recent Controversies Raise The Question Of When Owners Can Refuse Service To Those With Opposing Views

  1. The SPLC “a fomenter of hate”

    On an earlier posting one or more than one person claimed that a certain group or certain groups were hate groups. I think there was a bit of race-baiting involved. The SPLC was used as a source for those claims. A new video was released showing the SPLC as an “a fomenter of hate” whose intent was to destroy certain organizations even though no hate was involved. This short video explains the dynamics behind the hateful attitude of the SPLC

    • Actually, the $PLC is sleazy direct mail mill and was exposed as such in Harper‘s magazine 17 years ago. That newspapers quote it is indicative of pig ignorance or dishonesty.

      • Absolutely. I learned that many years ago when they changed from reasonable legal advocacy to hate, but there are many race-baiters who like to use the SPLC as a weapon, but what they are actually doing is using hate as a weapon.

        • They were never engaged in ‘reasonable advocacy’. It’s a money racket and has never been anything other than that.

          • TSFS, I don’t agree.They are a hate group today, but I don’t think they started off that way. They lost sight of their mission.

            “SPLC used to be in my will. They aren’t now.” Maybe Dave (Dhlii) wishes to be more specific.

            • No. Dees was always a direct-mail scammer. Their signature case was a suit against United Klans of America. They collected pots of money to fight that suit. The woman they represented (whose son had been killed by UKA members) got all of UKA’s property: a quonset hut worth about $50,000 at that time. That was 30 years ago. Dees et al have been quite handsomely compensated.

              #litigationtheatre

              • TSFS, my historical recollection of the SPLC is colored by what they became so without researching in depth I can’t draw any conclusions more than the impressions I already provided. I believe initially the SPLC was suing members of the KKK that caused harm to black people. Perhaps the people involved weren’t the nicest people (I have drawn no conclusions), but the KKK needed to be sued in the same fashion Antifa and BLM members should be sued today.

                Suits of this nature (if not abusive) make people think twice, so I approve.

                • Between 1953 and 1982, various and sundry sets of klansmen were responsible for about 15 murders, nine of them occurring before the $PLC was ever incorporated. The murder of three members of the Congress of Racial Equality in Neshoba County, Ms and the murder of five members of the Workers Viewpoint Organization in Greensboro, NC in 1979 incorporated some advanced planning by the klaverns responsible. Do not believe that was the case with all of them. I don’t think the $PLC has been keeping itself busy this way.

                  • The problem in researching the SPLC’s history is its radical turn further to the left and towards creating hate. One would have to go into great detail and look at their early cases to fairly establish what they were doing in their earliest days. If you can demonstrate that the first 5 cases they handled were part of a scam along with any other claims you may make then you might have a good case against them in their earliest years. I don’t have the knowledge to draw a conclusion.

                    • Allan. He’s notable as a direct-mail impresario and was established in business decades ago. His ideology is an advertising pitch. You contribute to $PLC and you add to Mrs. Morris Dees’ collection of odd and expensive knick-knacks.

                      You keep not getting it about this guy.

                    • TSFS, I am not commenting on the man only the actions of the SPLC at its very beginnings. I don’t believe Dees is a good person. I am commenting based upon the early days of the SPLC and the cases they might have dealt with at a time when few were willing to deal with such cases. I don’t know the answer and I don’t think you do either though in retrospect we conclude Dees is a bad man and the SPLC of today is a hate group.

                      If you did some research, not of opinions, but of fact, of the early days of the SPLC let us hear the facts. Your conclusions are your own whether based on someone else’s opinion or not. Those conclusions do not satisfy my query for the facts.

                    • Allan, the antics various and sundry klan members and klaverns would never have provided enough business for even their small staff. There are not that many of them and they do not have deep-pockets.

                      IIRC, he was in the direct mail business before forming $PLC.

                    • TSFS, it seems you failed to provide the requisite proof, but feel you can make an argument based on questions that are on the fringe and by pointing out a few non-specific facts. That isn’t good enough. Dees developed his marketing career and I believe a good portion of his wealth before the founding of the SPLC. Whether he is a scoundrel or not I do not know, but in the early days if I am correct they sued KKK members for damages which are an effective method of stopping groups like Antifa from destroying property. That was important at the time even though the power of the KKK had waned.

                      Now it is time for you to put up more than the nonsense that has prevailed in your last several comments. I don’t know who you are, but at least one suspects you of being DSS. If that is the case then one has to wonder why you lack the integrity of maintaining your positions under one name..

                      It is strange that I am in part defending the SPLC that I know to be a hate group, but I suspect in their early days they did some good as mentioned above. How much good? I am not sure.

    • SPLC used to be in my will. They aren’t now.

      This hateful, hating haters identity politics nonsense brought us Donald Trump as president.

      Have any of these people read John Stuart Mill “On Liberty” ?

      Or

      As Supreme Court Justice Louis Brandeis advised, in his famous Whitney v. California opinion in 1927, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

      Brandeis was a progressive.

      Has the left lost its mind ?

          • To everyone who read The Sellout, it is time to start the discussion group. What I am going to suggest is we go around with our general opinions and then come back for specific questions. enigma found a list of discussion questions so hopefully, he will be happy to share those one at a time. 😉 So, my first question is did you like the book, why and would you recommend it?

            After almost losing a mouthful of coffee on my keyboard by what the black Assoc. Justice says to the Sellout I was already sold on the book. It took me places I never in my wildest dreams expected to go. The book was unpredictable and I liked that it left you hanging at the end. And watching Foy’s film collection was such an act of revenge, pure delight. However, we do now have two new great characters in literature, The Sellout, and Hominy. And two great secondary characters in Foy Cheshire and Marpesa.

            I think the book is a noir comedy (I hesitate to say black comedy) and I will admit that if I were Carisma, I would love to have an all-white school going up across from one of the inner city schools I was teaching at. The only problem is, once it was built, my kids would go over and beat their kids up. 🙂 But, it was an inspired plan which required little money.

            I have already recommended this book, but have done so carefully. I have friends who would never get that it was funny, so you have to find someone with a sense of humor, especially if they like noir humor. I also think the older you are the more you get out of the book because of the references. I also think this book will never be made into a movie, even by the Wayans Bros. or Spike Lee. Nobody in Hollywood is going to touch a book with this many N words in it. And the whole subject matter? No matter, no way, it is radioactive.

            Now over to the next reader. 🙂

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