The Supreme Court decision in favor of the owner of the Masterpiece Bakery who refused to bake a custom designed wedding cake for a gay couple. He had explained his refusal on religious and free speech grounds. His victory wasn’t based on any rights but turned on the animus of the commissioners. As such it settled nothing. This got us to thinking about our 4/2/15 post We’re Confused about Indiana. Re-reading this post relating to a persecuted pizza shop, we still think we were on the right track but realized we had missed the major point. Simply, the vast majority of these types of cases should-be been immediately tossed out of court. Hear us out. In April, New York attorney Steven Molo turned down a request to represent President Trump. A top-notch attorney was needed to replace the then lead attorney John Dowd and the well credentialed Molo fit the bill, but he said no. He didn’t have explain. Even the President couldn’t demand his personal service No was sufficient. Now imagine if President Trump had approached clothing designer Calvin Klein to design his inauguration wardrobe and Calvin said no. Could the President sue to compel Klein’s performance in his service? Obviously not! There never was a “meeting of the minds” so no contract. Further the 13th amendment precludes involuntary servitude and even if the President really pushed, coercion doesn’t work under our law. Simply in either case, you can’t demand personal performance. They could just say no and that’s the end of it. Did Molo and Klein have to give any reason for their refusal? No, unless they wanted to but it would be immaterial. Even the President isn’t legally owed an explanation. No is no and that’s the end of it. But what if either or both said they refused on religious grounds? Say, they’re Catholics and Trump is unrepentant Presbyterian. Could the President then take his case to the local civil right commission? Of course not. This would mean people could be stripped of their right to say no simply because they mentioned 1st amendment rights. This would lead to the absurdity of losing a right simply by bringing up another constitutional right. This would be turning the law on its head. Yet, this is exactly where we are. Now, the President has every right to go to Amazon and purchase any book on the law or anything else Molo wrote or go into Macy’s and purchase Calvin Klein branded clothes. These are offered to all for sale and cash payment completes the contract. This is general commerce and Molo and Klein can do nothing legally to prevent these sales. However, general commerce is different from personal unique services and products and we have always recognized the difference. One apples and the other oranges.
There are excellent reasons for this distinction. It protects both parties. It protects people from unwarranted demands for their personal skills. Also, it protects people from foolishly forcing the produce of people who have less than their best interests at heart. Imagine a President Trump on inauguration day realizing he’s being mocked for an ill-fitting ugly suit. Worse being perp-walked out of the white house after impeachment and realizing Nolo just might not have given his best advice and efforts. Further, it prevents the inevitable litigation that would arise and that certainly is in the courts interest.