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And what if they don't want to? What if they don't want to bake the cake? This appeal to freedom of association only ever flows in one direction.
I might point out that masterpiece cakeshop has won all of their court cases.
The problem is the asymmetry of legal remedies for the right and the left. When the left wins a case, it's done, they get to do whatever it is they wanted to do. When the right wins a case, there's another case which starts things all over again.
That's simply not true. Look at Roe v. Wade. After it was decided, the right spent decades trying every legal variant they could think of to get around it. Every side plays legal games.
Roe v. Wade is a popular allusion, but it's a really bad comparison. The right didn't spend decades trying every legal variant they could think of. The day after Roe v. Wade dropped, every single county in the country just treated abortion as legal through the first half of gestation. The closest immediate challenge was Danforth, and the restrictions there were either well outside of Roe's text (spousal approval, parental approval for minors) or within an area Roe specifically entertained (a methods-based ban on saline injection that the medical community had just started disfavoring in preference to prostaglandin and, the next year, D&E). Thornburgh was the sort of waiting period law and information-passing that The_Nybbler would consider an outright blessing compared to what New Jersey does for his interests. Hell, Akron did a specific thing Blackmun gave as acceptable (hospital requirements) and lost on it anyway because they had ill motive about it.
Most were just plainly outside of Roe, and not even arguably. Several major SCOTUS battles focused on federal funding, like Beal, Maher, Poelker, and the Hyde Amendment, but Roe never held that public facilities had to perform abortions. Connecticut v. Menillo had a state court invalidate a pre-Roe conviction for an unlicensed 'hobbyist' abortionist, and SCOTUS had to step in to say that Roe didn't mean randos could just go around pretending to be doctors for the purpose of abortion. Bigelow v. Virginia (in addition to being one of my go-to examples for why New Jersey can burn in hell) was about a statute that dated back to 1878, and turned on the First Amendment question.
It was only after replacing almost the entire SCOTUS bench and producing a widespread new judicial philosophy over two decades that we saw Casey, and even Casey was still futzing with the edges of how interest-balancing was done. It took another decade before you started to see serious efforts to actually go after its central ruling, and another two past that to actually overturn Roe.
Don't get me wrong; those were legal games. But they're a separate class from politicians in multiple states responding to Bruen the week of with press conferences explicitly stating they were going to make carry permits useless to carry anywhere (and then adding injury to insult by not issuing carry permits either), or Masterpiece Cake Shop by trying to support even dumber activist lawsuits with clearer malicious intent against the exact same target, or Calce after Caetano.
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Abortion is about the only partial exception, but the important thing is that for most of the life of that decision, none of those things worked. The right would pass laws, they'd be struck down without having effect. Even now it's easier to get an abortion as a resident of Texas than a firearm as a resident of New Jersey.
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Texas is just going to ban drag shows again, with slightly different wording.
If they try, the drag shows will still happen and the law will be stayed until it is dismissed. Nobody will spend more than a few hours in jail.
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I'm on the record elsewhere on the Motte saying that I would prefer to limit non-discrimination law to essential domains like housing, banking and hospitals. I don't think governments need to force gay wedding cakes at gunpoint.
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Not OP, but I think there's a difference between the freedom to provide a given service or not, and the freedom to refuse service to particular customers. Much as it should be clubs' choice whether they put on minstrel shows or drag shows, it should be a bakery's choice whether or not they want to sell rainbow-colored pride cakes. But the proper comparison for whether the bakery can refuse to sell a standard wedding cake to a pair of gay fiancés isn't that: it's whether the minstrel club can bar black people, or the gay club bar straight people, from entry.
Now you might argue that all of these fall under freedom-of-association, and I can certainly respect freedom-of-association absolutism as far as it goes. But they still seem like two easily-distinguished subcategories where I don't think you need to be biased in any specific direction to support one and not the other.
But of course if they want to bar people with incorrect political views, freedom-of-association is right back on the table.
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It’s a fuzzy line.
What if the person isn’t baking a cake but officiating weddings, should they be forced to accommodate gay ones as long as they follow the same script as straight ones?
On the other hand, the person baking cakes won’t know whether their clients are gay without obnoxious vetting which would hurt their business. A man and woman can walk into the store and order a cake, then give it to their gay friends.
I believe freedom of association should work like that: a seller can refuse “service”, but once they provide it, can’t restrict the buyer or force them to retract.
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