If he will sell cakes to two men, then he clearly is not refusing to sell to the gay couple because of their sex
Clearly the fact that he makes wedding cakes for man/woman customers, but refuses to make wedding cakes for man/man or woman/woman customers.
That is the very clearly differentiating sales based on the sex of the customers. That is his behavior and what he stated in court documents.
Which is only relevant if that is why he's not selling them the cake. Sex discrimination would require that he's not selling them a cake because of their sex.
He did refuse to sell them a product that he normally supplied based on their sex. Since they were being married as a "same-sex" couple that is pretty much defining it. If they were a "different-sex" couple he would have sold them the wedding cake.
And as pop keeps pointing out and you're not grasping, he won't sell a same sex wedding cake to a man and a woman or a heterosexual couple either.
First of all the product is "wedding cake", the customers are different-sex and same-sex. He clearly indicated he would sell wedding cakes to different-sex couples and refused to sell wedding cakes to same-sex couples.
The sex of the customers is not the reason he won't sell the cake. There is no way you can argue therefore that the sex of the customers is why he won't sell the cake
You confuse "reason" with "behavior". His act/behavior was to refuse service. There is no exception in the law for reasons for an act. The SCOTUS punted on that question because the hostile comments of the Commission tainted the process. But note:
The "reason" for the behavior was not sufficient in Employment Division v. Smith.
The "reason" for the behavior was not sufficient in Newman v. Piggie Park.
The "reason" for the behavior was not sufficient in Bob Jones University v. United States.
The "reason" for the behavior was not sufficient in the Muslim Taxi driver case from Minnesota.
The "reason" for the behavior was not sufficient for Mormons that believed in polygamy.
The "reason" for the behavior was not sufficient in Elane Photography v. New Mexico (where the SCOTUS allowed the State Supreme Court ruling to remain in effect)
Two gay men. Will you sell us a birthday cake?
Baker: Sure, you're gay aren't you?
Two gay men. As a kite
Baker: Just wondered. What name do you want on the cake?
Irrelevant as the law does not say "pick and choose" what goods and services need to be made available under the Colorado PA law, the law clearly states "full and equal" access to all "goods and services", not a subset of goods and services.
Their sex isn't relevant, it's just not
I know, it wasn't part of the case.
Now if Mr. Phillips had argued before the court that sexual orientation wasn't the issue in providing full and equal goods and services to the male/male customers but it was the sex composition of the customers - then we would be having a different discussion with different case history to comment on.
Right now we are just discussing Pops theoretical justification to absolve Mr. Phillips of being exempt from the law (i.e. it wasn't about sexual orientation) because he wouldn't have sold the wedding cake based on the sex of the couples regardless of their sexual orientation. By selling to different-sex couples and - by his own words - refusing to sell them to "same-sex" couples the criteria causing the behavior is clearly defined as the sex composition of the couple.
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