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 products (e.g., wedding cakes and floral arrangements) or services (e.g., wedding photography) to gay couples despite the small business owners' 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 most relevant part of the Constitution here.  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) shows a clear differentiation between slavery and involuntary servitude.  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.

In other words, the actual ruling requires the baker to bake the cake or face fines and potentially jail time.  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 ten 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.

Jim Yardley, a retired financial controller and two-tour Vietnam veteran, writes frequently about political idiocy, business and economic idiocy, and American cultural idiocy.  Jim also blogs at and can be contacted directly at

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