In one of the cases on which the Christian right bases its howls of persecution, a Colorado case involving a bakery refusing to do a wedding cake for a same-sex wedding celebration, a state judge has rejected the bakery’s claim that state law forbidding such discrimination violates their free speech or religious freedom rights. You can read the full ruling here.
Colorado does not recognize same-sex marriages, but it does forbid discrimination on the basis of sexual orientation. When a gay couple that got married in Massachusetts came to the Masterpiece Cakeshop in 2012 to have a cake made for a celebration party they were having, the bakery said no. The couple filed a complaint under state law and Administrative Law Judge Robert Spencer has now ruled in their favor, rejecting the bakery’s arguments about how this was an outrageous violation of their rights. There are several important elements of the ruling. The bakery tried to claim that making a cake is an act of speech and therefore the law is forcing compelled speech. The judge rejected that argumen:
The ALJ, however, rejects Respondents’ argument that preparing a wedding cake is necessarily a medium of expression amounting to protected “speech,” or that compelling Respondents to treat same-sex and heterosexual couples equally is the equivalent of forcing Respondents to adhere to “an ideological point of view.” There is no doubt that decorating a wedding cake involves considerable skill and artistry. However, the finished product does not necessarily qualify as “speech,” as would saluting a flag, marching in a parade, or displaying a motto.
The undisputed evidence is that Phillips categorically refused to prepare a cake for Complainants’ same-sex wedding before there was any discussion about what the cake would look like. Phillips was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage. After being refused, Complainants immediately left the shop. For all Phillips knew at the time, Complainants might have wanted a nondescript cake that would have been suitable for consumption at any wedding. Therefore, Respondents’ claim that they refused to provide a cake because it would convey a message supporting same-sex marriage is specious. The act of preparing a cake is simply not “speech” warranting First Amendment protection…
Compelling a bakery that sells wedding cakes to heterosexual couples to also sell wedding cakes to same-sex couples is incidental to the state’s right to prohibit discrimination on the basis of sexual orientation, and is not the same as forcing a person to pledge allegiance to the government or to display a motto with which they disagree. To say otherwise trivializes the right to free speech…
Respondents argue that if they are compelled to make a cake for a same-sex wedding, then a black baker could not refuse to make a cake bearing a white-supremacist message for a member of the Aryan Nation; and an Islamic baker could not refuse to make a cake denigrating the Koran for the Westboro Baptist Church. However, neither of these fanciful hypothetical situations proves Respondents’ point. In both cases, it is the explicit, unmistakable, offensive message that the bakers are asked to put on the cake that gives rise to the bakers’ free speech right to refuse. That, however, is not the case here, where Respodnents refused to bake any cake for Complainants regardless of what was written on it or what it looked like. Respondents have no free speech right to refuse because they were only asked to bake a cake, not make a speech.
Secondly, the bakery claimed that they were engaged in religious conduct that cannot be regulated by the state. But the court said what I have been saying for years, that claiming the right to discriminate against same-sex couples is precisely the same legally as claiming a right to discriminate against interracial couples:
Respondents’ refusal to provide a cake for Complainants’ same-sex wedding is distinctly the type of conduct that the Supreme Court has repeatedly found subject to legitimate regulation. Such discrimination is against the law; it adversely affects the rights of Complainants to be free from discrimination in the marketplace; and the impact upon Respondents is incidental to the state’s legitimate regulation of commercial activity. Respondents therefore have no valid claim that barring them from discriminating against same-sex customers violates their right to free exercise of religion. Conceptually, Respondents’ refusal to serve a same-sex couple due to religious objection to same-sex weddings is no different from refusing to serve a biracial couple because of religious objection to biracial marriage. However, that argument was struck down long ago in Bob Jones Univ. v. United States.
If you have a right to violate anti-discrimination laws because you think your religion demands it, all discrimination laws are gone. You could just as easily claim a religious basis for discriminating on the basis of race, gender or religion. But very few people arguing for such an exemption for discrimination against gays would go that far, at least in their public statements (they may well believe that they should be able to discriminate against blacks, women, Muslims or atheists, but they certainly don’t want to say that).
The Christian right is in a real bind here. They can admit that the arguments they’re making would gut all anti-discrimination laws, which are supported by massive majorities of people (like 90% or more), or admit that they are engaged in special pleading by arguing that their reasoning only applies to gay people.