Thank you @Jazzhead for a gracious response. I think a fair summary of your position is that a business owner doesn't have to offer any particular item or service, but if he does offer it, he must offer it to everyone. That's not unreasonable, but of course the issue here is where the item or service inherently makes a value statement.
I think I can understand more clearly why you have cited the Piggie Park case - to make clear that the baker cannot rely on his religious beliefs to do something which would otherwise be illegal. Of course this should not be a controversial idea, otherwise we could, in theory, be forced to tolerate human sacrifice. Stated differently, Freedom of Religion in fact is not absolute.
And I recognize that you hold out the possibility that the baker's freedom of expression might allow him to exercise some degree of discrimination in the creative part of his work.
Your counter-example of the restaurant is well-chosen and forces me to think more carefully. Indeed, a restaurant is in the business of making each item fresh for each customer; a "strict constructionist" interpretation of my suggested compromise might lead some to argue that a restaurant could therefore broadly deny service, at least to the extent the restaurant could argue that its product was fundamentally an expression. It is not my intent here to find a way to enable Denny's to deny service to any class of people. A Michelin 5 star chef certainly believes that his work is an expression, but neither it is my intent to give him legal protection in denying service to a class of people.
The distinction I drew was making an item fresh *for a specific purpose*, and I can perhaps improve that expression by saying "for a specific purpose other than the intrinsic utility of the item." The items already prepared in the baker's shop were prepared simply for their intrinsic utility, and certainly he would refresh those ready stocks for the same reason; a wedding cake carries additional meaning, which the baker necessarily affirms by creating the cake. In the case of the restaurant I think a meaningful distinction would be between the normal walk-in business and catering a banquet. It seems to me that the former would be considered within intrinsic utility, the latter would not. So I would apply my compromise by arguing that the restaurant could not deny routine business to any class of people, but also could not be compelled to host a banquet the meaning of which was repugnant to the restaurant owner.
If we stick with your compromise that non-custom items must be offered in all cases involving expressive conduct, what would prevent that expressive 5 star Michelin restaurant from arguing that hillbillies like HoustonSam can only order the non-custom dish of liver burned black with brussel sprouts on the side, while all others can select their own main course and degree of seasoning and choose from a dazzling array of side dishes? Honestly it seems to me that could lead to indignities much worse than what we're really talking about here.
Thanks for your response,
@HoustonSam I don't personally have any quarrel with the compromise you propose - require a restaurant to serve all with respect to its regular menu items but allow it to pick and choose its customers with respect to its catering business. I'm actually not sure whether a catering business is a "public accommodation" subject to non-discrimination rules, although I suspect it is (IIRC, there's a case involving a Christian caterer that is winding its way through the courts).
But I'm not convinced a court would buy it. The $64,000 question, of course, is whether the conduct of a catering business represents "expressive conduct" that falls within the right of free speech. Justice Thomas articulated the case quite well, I thought, with respect to Mr. Phillip's creation of custom cakes, but I'm not so sure what aspects of catering are "expressive". The menu is usually selected by the customer; and unless the customer is demanding something above and beyond the caterer's menu, I'm not sure I quite see the "artistry" component.
But I think there may be another way to get to the result you want - based on the majority opinion in Masterpiece Cakeshop. If I were to be hired (God forbid!) by Jack Phillips the next time he gets sued, here's the argument I would make:
1. Masterpiece stands for the proposition that a religious objection to performing a service is just as valid as a secular objection. The religious objection must be taken seriously, and evaluated through the prism of the religious objector, not the government and its own priorities.
2. Masterpiece acknowledged the correctness of the decisions of the Colorado Commission in upholding the right of a baker (3 different bakers, actually) to refuse to bake a cake containing an anti-gay message deemed offensive by the baker.
3. So a Christian baker could refuse to bake a cake containing a message deemed offensive to his religion. That's clear.
4. Now here's the leap: If a baker can refuse to bake a cake with a
message deemed offensive, why could he not be equally justified in refusing to bake a cake for a
use that he deems offensive? Let's look at the secular situation first. If a customer comes in and orders a cake, and tells the baker he intends to take the cake, place it in the town square, drop trou and sit on it balls deep, would not the baker be justified to tell him to go pound sand? Cannot a baker refuse to bake a cake that he's been told will be "desecrated" in a secular sense? And if the answer is yes, then why cannot a Christian baker refuse to bake a cake that he knows will be "desecrated" in a religious sense by being used in a same-sex wedding ceremony?
5. Again - if there can be valid
secular reasons to refuse to make a product for a particular use, then Masterpiece would appear to stand for the proposition that a court must also recognize the validity of a sincere religious reason to refuse to make a product for a particular use. Such a holding would get to the root of the problem that many have alleged - why did the gay couple insist on buying a cake from this particular baker? Why could they not have gone somewhere else? If a Christian baker can validly deny his products for uses he deems offensive on religious grounds, then the customer will just have to go somewhere else.
Thoughts?