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

A 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?

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