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?

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. Based on the comments here, “Affirmative Action Privilege” is (the Russians are) winning.

  1. Although every case is unique, which is why we have judges and juries weighing the unique facts of each case – the wisdom and rationale that created our federal “color of law” statutes, created during the Jim Crow era, may be a key factor in deciding each unique case.

    These laws essentially address the “good ole boy” network crimes, when the entire community black-balls or penalizes anyone different from the majority group or the group essentially controlling that community. For example: giving sub-standard service to an African-American, Jewish or LGBT person. It usually happens when the group running the town perceives themselves as little fiefdoms NOT governed by the Bill of Rights and U.S. Constitution – which every local and state official take an oath of office to.

    These federal laws also apply to non-governmental citizens (ex: it’s a felony crime under federal law for two people – police or citizens – to stalk and intimidate any driver in traffic). Federal “color of law” statutes essentially define constitutional amendments like the 14th Amendment – which makes it a federal crime for a local police officer to subject any citizen to special treatment (ex: ticketing an African-American driver for driving 5 miles over the speed limit but allowing others to drive faster).

    Using the rare examples above: a judge or jury may have a different ruling if the cake maker were located in New York City (many options for customers to choose from) than it would in a small town in Wyoming where the good ole boy network has more leverage in black-balling and penalizing anyone different than the local tribal chieftains. It might also matter when the business owner refuses, do they refuse 6 months before the wedding or on the wedding day.

    It might also matter what type of offense. If the brakes on your car aren’t working properly and the good ole boy car mechanic tells you “problem fixed” but doesn’t charge the customer any money – it might still be a felony crime if the customer gets hurt or killed.

    1. You deeply confuse public and private action.

      Jim Crow was Law – public action, and subject to the 14th amendment.

      I am not sure what you mean by “Color of Law” laws.
      Regardless, the 14th amendment applies to all actions by government – federal state and local.

      Your stalking by a private citizen example is tangential, and I would ask for the law – the federal govenrment does not have a general police power, a federal stalking law would have to have a federal nexus to be constitutional.

      Judges and or juries weigh the facts to determine if the required elements of the crime are present.
      They do not get to make up the law. If they find the required elements present – they can convict.
      Otherwise they can not.

      The intentions of those who commit crimes are at best relevant because juries like to know motive.
      Except that many crimes are required to be deliberate and have mens rea, it is acts that are relevant to the law.

      The intentions of law makers are also not relevant. A law is interpreted as written, not as someone wishes it was.

      The rulings in NYC and Denver would be different because the law may be different and the facts may be different.

      I would suggest to you that if you are concerned about political corruption – NYC is a better place to look than Kenesaw GA.

      It is a long trip from cakes to brakes, and your affectation for “good ole boy networks” distorts your response. You are looking for snipes.

  2. The act of the Christian baker is evil bigotry which must be stopped at all costs.

    The act of the coffee shop owner is a brave act fighting bigotry.

    Get it? If you don’t, you’re a horrible bigot who needs to be sought out, doxxed and economically destroyed.

    Consistency? Don’t count on leftists to exercise it.

    I would love to be a fly on the wall if a group of Muslims walked in to his establishment after passing out flyers on the street. He would be drooling all over to serve them. Of course, Muslims in their natural element would be throwing him off of a building.

    1. The Christian Baker is fully in his rights under the 1st Amendment, not the part about Freedom of Speech, but the part about Freedom of Religion. He should not have to give up his !st Amendment rights for the 1st Amendment rights of those who admittedly taunted him, as they knew he was religious and would be a good case to take for the big payoff!!

      Why does he only have to bow down to the bigots of the left, who go around making issues like that for personal gain? The gays (in the baker’s case), and others who attack Christians, and others, should be required to pay all court costs of both parties if they lose. Then maybe they will think twice about it, rather than putting a taxpaying Christian businessman out of business, to pay for the appeals of their rightful Constitutional freedoms that are justified under the Constitution.

      The baker did not, per the info released, say anything to offend their religious beliefs. But they were fully intent in restricting his Constitutional rights under the 1st Amendment to practice his religion as he saw fit.

      The Constitution protects their rights as well as the leftist accusers. It isn’t a case of one gets to use the 1st Amendment and therefore, the other can’t, as the left seems to think.

      No one should have to make a cake or serve coffee to someone that has beliefs opposing theirs. If the snowflakes are offended, they have a choice. They came in the door that is there for them to use to exit as well, without offending the owner. They can keep their money and not patronize the business. If enough are offended, that will put them out of business and as there was no aggression on their part, He could not say they did it with malice.


  3. They should have just told him they’re Muslim. That would have shut him down completely. He wouldn’t know what to do or say. In fact, he may have even denounced his own sexuality in order to appear tolerant of their faith and show his solidarity with them. Seattle is a really weird place like that.

  4. hey peeps, cakes,etc. aside: latest update on the Awan bros infiltration into the House via DWS

      1. “I agree. Why is there not a special counsel investigating this?”

        Joseph Rago won the Pulitzer prize for his expose of the debacle that is Obamacare.

        Then he died at the age of 34.

        See what Hillary did as Obama’s Sec. of State:


        Joseph Rago –

        “Wall Street Journal Reporter Asks Russia For “Clinton Information” —-Turns Up DEAD 2 Days Later”

        “A Wall Street Journal Editor who was investigating how a Russian
        Pharmaceutical firm could have been purchased in 2014 by an American
        Pharmaceutical firm while Sanctions against Russia existed against such
        business transactions, has been found dead in his New York City
        apartment. The crux of the dead journalists investigation was how
        then-Secretary of State Hillary Clinton influenced the transaction to be
        finalized, but only AFTER her husband Bill was paid $500,000 for giving
        a speech in Moscow.

        The Russia Consulate General’s office in New York City was contacted
        by Wall Street Journal reporter/editor Joseph Rago who requested a
        Thursday (20 July) in person interview with consular officials regarding
        an upcoming article he was preparing on Hillary Clinton and her links
        to Russia. Rago failed to attend the meeting and was later discovered
        dead in his apartment of as yet “unknown causes” just hours prior to
        this meeting occurring.”


  5. According to everyone that supports NFL kneelers, certainly a business owner can deny a customer service. NFL customers are the fans who believe players should stand for the anthem. How is it that they can’t get the product they paid for?

    Maybe where it gets different is that the NFL isn’t really a private business the way a bakery on Main Street is a private business. Is that why more is demanded of the bakery? Is it more important to smash the little guy running a private enterprise than some collusion between state and corporate monolith?

  6. Let the free market decide. Then the so-called christians will sue everybody for not believing in their religion.

    1. Absolutely let the free market decide. If a bunch of gay activists want a cake, let them patronize the bakery that will produce it and not the Christian one.

      Know what I don’t get? If I go somewhere (and I have gone places and been denied service in these United States) and they don’t want to serve me, why should I persist? I work hard for my money. If I’m enslaving someone to my dollars, I probably will not get the best product for my dollar. But, if I go to a place that values my business, I’ll get top quality for my dollar.

      Were I a baker forced to make someone a cake, I’d do the bare minimum.

    2. Then the so-called christians will sue everybody for not believing in their religion.

      You are projecting again. Wow! Show me a Christian that believes they can sue you into believing in their religion and I’ll show you a hypocrite. Suing people to bow to the beliefs of others is what we have come to expect of atheists, climate change supporters and the modern progressives.

      1. I see that the right-wing does not have a sense of humor, if they did they would be laughing their asses off about Trump.

        1. Fishwings, humor is age sensitive. I’ll try your humor out on my youngest grandchildren.

    3. I am not hearing the christians sue here.

      Regardless, if you actually have legitimate government rooted in the rule of law,
      you can only sue for actual harm.

      Unless you can prove real harm – not lost oportunity, not unfullfilled wishes, then you have no basis to sue, whether you are christian or homosexual or the white rabbit.

  7. Aaron Smith – refusing to fill prescriptions based on your religion is something I support. It is the same as forcing Catholic doctors and nurses to perform abortions against their will. That is going on now, did you know that? Now, I’m agnostic, so I support all religions or followers in these causes.

    1. Can I refuse to sell you booze because I don’t drink? Can I refuse to sell you a car because I believe they might be dangerous? Can I sell you a gun without ammo because of my beliefs? If you refuse service to someone because of your beliefs then find other work.

      1. If you refuse service to someone because of your beliefs then find other work.

        You mean I can only enter a trade if I set my custom where ‘FishWings’, internet juvenile, wants it set. Thanks for the education.

        1. And I would think you are the type that screams about taking down confederate symbols, but hate it when people take a knee.

      2. “Can I refuse to sell you booze because I don’t drink?
        Can I refuse to sell you a car because I believe they might be dangerous?
        Can I sell you a gun without ammo because of my beliefs? ”

        Actually all of those things are legal now. The current state of the law is that you can not refuse service for a few very specific reasons with regard to the attributes of the buyer.

        “If you refuse service to someone because of your beliefs then find other work.”

        That is probably good advice, but it is not and should not be the law.

        I would also note that you can refuse to buy coffee from someone because they are gay.
        You can refuse to buy chicken nugets from someone because they are homophobic.

        You can refuse to buy from someone for pretty much any reason or none at all.

        There is no difference between buying and selling.

        All commerce is the exchange of something you value for something you value more.
        money for hamburgers, hamburgers for money.

        Same deal.

        Further if you are selling your labor, then you are in exactly the same position as a store owner.

        Are you free to refuse to sell your labor to a bigot ?
        Are you free to refuse to sell your labor to a racist ?

        I would suggest a refresher in logic 101.
        You have overdosed in advanced outrage and intolerance.

        1. “You have overdosed in advanced outrage and intolerance.

          Excellent comment. Though it makes no sense to “overdose…” and can be irritating to the logical man, he or she does have that right to do just that. We need no laws to prevent sophomoric thinking. We do need a better education system.

  8. Jon Turley compares the Christian baker to the gay coffee shop owner. Not a lawyer but the baker I understand didn’t refuse service(he would have made the cake) but didn’t want to be part of the wedding(be there to serve the cake), while the coffee shop owner completely refused service. If there is a distinction I believe the baker is on the stronger legal ground. However we are no longer a country who has the rule of law. Whatever laws we have are applied arbitrarily by the people in power at the time. For those that make the Christian baker bake a cake or lose his business, would they make a black restaurant owner cater a KKK meeting or a Jewish Deli owner cater a Neo-Nazi meeting? I suspect not. We are no longer a nation of laws.

  9. First of all, it’s important to note that the Seattle municipal code include political ideology as a protected class from discrimination in public accommodation. Unless the shop owner can prove that the abortion protesters disrupted or threatened his business, they can sue him.

    Secondly, this is not the case outside Seattle, DC and perhaps a few other municipalities. But in approximately 21 states, sexual orientation IS a protected class.

    A generic wedding cake (with no message written on it, or symbolism such as a pair of same-sex statuettes) is not a form of “speech,” contrary to the author’s assertion. It is a food item made by a skilled artisan. The cake is not used in the wedding ceremony itself but in the party. The baker is not being forced to approve of or “participate in” that party – certainly no more so than a gun seller does when his merchandise is used to commit a crime.

    There is a clear and compelling government interest in upholding antidiscrimination laws that protect certain historically targeted categories such as race, sex, religion, disability, etc. Societal change is trending towards adding sexual orientation and gender identity to that list, but so far NOT political ideology.

    1. A generic wedding cake (with no message written on it, or symbolism such as a pair of same-sex statuettes) is not a form of “speech,” contrary to the author’s assertion. I

      The baker did not wish to participate in a gay ‘wedding’. Appellate courts which can be inventive enough to declare torching an American flag (but not Justice Brennan’s robes) a protected ‘speech-act’ can be inventive enough to say that statutory law is out of bounds when it compels random merchants to participate in these burlesques. These decisions have nothing to do with law and everything to do with what is fashionable among judges and law professors.

  10. Did someone say “Jim Crow?”

    The homosexuals abusively denigrate and remove the normal people? What?

    The homosexual business owner should have called the police.

    The homosexual in this video must be arrested for a “misdemeanor” at a minimum.

    SNL and Michael Che use the “c” word (i.e. cracker) with impunity.

    Professor, when does our freedom of speech regain dominion and the blog allow the resumption of the use of the “n” word?

    Minorities must adapt to the outcome of freedom.

    1. You don’t have to use the actual word for all of us to know what’s in your heart. I wasn’t aware this blog prevented its use as I’ve seen it a few times. Calling “cracker” the C word is a bit of a stretch as a comparison don’t you think?

      Photo of the Atlanta Braves former minor league team.

        1. What was that noise? Merit? Achievement?

          Did anyone hear the sound of “Affirmative Action Privilege?”

          Abraham Lincoln:

          “If all earthly power were given me,” said Lincoln in a speech delivered in Peoria, Illinois, on October 16, 1854, “I should not know what to do, as to the existing institution [of slavery]. My first impulse would be to free all the slaves, and send them to Liberia, to their own native land.” After acknowledging that this plan’s “sudden execution is impossible,” he asked whether freed blacks should be made “politically and socially our equals?” “My own feelings will not admit of this,” he said, “and [even] if mine would, we well know that those of the great mass of white people will not … We can not, then, make them equals.”

        2. There is no law forcing players to stand. But if they do not they might be out of a job.

          Further as I understand player compensation is now tied to revenue. If a players actions diminish revenue, even if they are not fired they will suffer.

  11. Would it be that the state AG [WA] goes after this shop owner with the same vigor as he did with the florist?

  12. Freedom requires the right to do business with whomever you choose, not who others choose. The same goes for private gatherings. The Government has no business telling you who to associate with.

    If you don’t like how a business operates, don’t patronize it.

    If you don’t like a private organization’s membership requirements,, don’t join it.

  13. Refuse to make the special cake but offer for sale all existing products.

    Sue the coffee shop owner, close him down and bankrupt him.

  14. I haven’t read every reply above me, but my inclination would have been to simply close my shop. Throw everyone out. (There appeared to only be one person in the shop who wasn’t part of the group, perhaps he could be quietly be offered a free coffee in the future, or an invite to return to the shop when it re-opens in 10 minutes.) From my POV, the abortion group was looking for a fight and they got one. They learned that trick from our President. And they very well may have the law on their side.

    1. From my POV, the abortion group was looking for a fight and they got one. T

      Yeah, they breathe in and out. Terribly provacative.

      Those of us who recall the greatest generation recall progressives who were decent human beings. Now progressives are like you.

      1. “Those of us who recall the greatest generation recall progressives who were decent human beings.”

        And gee, guess what? It’s still true.

        1. I have no doubt many progressives are decent human beings. Many however reflect that decency through unconstitutional government force. This is the face of the modern progressive movement and it has its supporters in both major political parties.

        2. It’s true of progressives who are not emotionally invested in public affairs. The rest are like you.

    2. From my POV, the abortion group was looking for a fight and they got one.

      What abortion group are you seeing from your POV? The video and post by JT is talking about a Christian group. What was their action inside this coffee shop that demonstrated they were looking for a fight? When your POV begins to see things that don’t actually exist, then seek medical attention.

      1. They didn’t do anything. They exist. They might have table talk about some common activity. That’s what bothers ‘molly’.

    3. ” From my POV, the abortion group was looking for a fight and they got one.”

      I’m not sure I follow how the pro-life group was looking for a fight. They went into a coffee shop to get a cup of coffee. They did not hand out literature or promote their views in the shop. The owner got his copy of the pamphlet from outside the shop. He was informed by a member of his wait staff that the people who were passing out the pamphlets were inside the shop. He then asked them to leave, using rude and vulgar language.

      The pro-life group could have been asking for trouble only if they knew that the owner was gay and that his reaction would be the kind of over-the-top diatribe they received. If you have any sources confirming this, please cite them; otherwise, it’s just speculation. I have to admit that had you asked me if I thought a gay man was likely to become furiously angry about abortion, I would have said no; it is, after all, the least likely of all social issues to affect him personally.

      “They learned that trick from our President.”

      I expect that, if it was a ‘learned trick’ they learned it from watching SJWs in their area use it with great success to shut down opposition to their agenda. Because if you have looked at the news in the last few years, it’s a tactic that’s been used over and over again…by the gay rights activists, who tolerate no dissent.

    4. I do not know if this was planned – and do not care – the bake shop and wedding planner cases were planned too.

      There is only one rational way out of this – kill off public acomidation laws.

      If you wish to be offended by some group – your choice.
      And they can picket and boycott you.

      Let these issues work themselves out without government trying to decide who is right and who is wrong.

      Every problem does not have a government solution.

      Whether you are prolife, or gay or ….

      Who in their right mind thinks it is a good idea to force someone else to do your will ?
      If you are lucky they will say no.
      If you are not they can ruin your wedding or your coffee.

      If you are gay – why do you want a person who thinks your lifetyle is evil involved in your wedding ?

      Regardless, as Seattle just demonstrated, this is a game two can play.

      We can shut down every christian baker and pro-choice coffee shop in the country,
      or we can let the free market sort this out.

      My guess is that gay coffeehouses in Seattle do not likely need prolife patrons. But I could be wrong.

      We are seeing this same issue play out writ large every Sunday with the NFL.

      Players are free to kneel.
      Owners are free to fire them or not.
      The president is free to tweet.
      fans can boo or not show up.

      The matter will work itself out – and government can stay out of it.

      We can manage the same in the rest of our lives.

  15. Phillips also offered to send the gay couple to another bake shop which would accommodate them. He would have sold them anything else in his shop. He wasn’t mean to the gay couple as was the gay coffee shop owner to patrons with whom he disagreed. According to his religion, he believes he should try hard to be kind in his interactions to all people. Gay people and people who believe in gay rights, including marriage who know him, have supported him is his cause, given him money for legal defense They believe in free speech and in people not being compelled to act against their firm beliefs and conscience. He believes using his art to decorate cakes is god given and HE wants to use it as he, not the government, or any customer, sees fit. But he’s nice about it. Now, the Supremes will decide whether he has the freedom he wants, or not.

      1. Whether or not you think they are bad people has nothing to do with the legal issues. Sometimes even really awful people, whose views you do not agree with, are nevertheless in the right in the eyes of the law.
        Example: Brandenburg v Ohio.

        1. No, there is no ‘right in the eyes of the law’ here. This is appellate judges and their shallow smart-assed clerks abusing people of the sort not likely to be part of their circle of friends.

      2. So what. It does nto matter.

        The most rights any of us can be sure of are the least rights we allow those we hate the most.

        Public accomidation laws are a stupid idea.

        We can play this game of trying to figure out which side of which issue can provoke the other to do the stupidest most egrious thing.

        Or we can grasp that we are all free to trade, that buyers are also sellors and that there is nothing unique to sellers that justifies restricting their freedom uniquely.

        That the purpose of government is not to right every wrong.
        It is to protect our rights and freedoms from those who would use force to violate them.

        Government should not be the force doing the violation.

        Free people often do stupid or offensive things. But we punish actual harm, and not being sold a cake or a cup of coffee is not a an actual harm.

  16. I support the private property rights of homosexual bigots and racists alike. I believe we should return to the regime of “we reserve the right to seat our customers” and agree to disagree and let small businesses decide to exclude customers for any reason at all. That is freedom. Without more such freedom to separate socially in this society, potential Civil War looms over the horizon.

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