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Dec 10 2013

Judge Rejects Baker’s Religious Freedom Arguments

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.

25 comments

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  1. 1
    eric

    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.

    I’m a little uncomfortable with this, as it seems to leave the door open for bakers to refuse other gay couples who do ask for messages on their cakes. I’m sure there’s some religious folk who would take real offense at having to write out “Bob and Tom Forever,” ust as there are going to be some bakers who take offense at having to write out “KKK Forever.” Are those messages explicit? Offensive? Is there a right to refusal there?

  2. 2
    alanb

    What would those who think that bakers have the right not to have their religious sensibilities offended say about the rights of a Muslim cab driver to refuse rides to anyone carrying alcohol or pork products?

  3. 3
    Chiroptera

    If you have a right to violate anti-discrimination laws because you think your religion demands it, all discrimination laws are gone.

    I used to be in favor of allowing exemptions to some laws based on religious beliefs. But as this case shows, or as the pharmacists who don’t want to sell “morning after” contraception demonstrate (and the US Catholic bishops opposition to the contraception mandate in “Obamacare”), a certain portion of evangelical Protestants are abusing this idea to excuse themselves from the ordinary laws that the rest of us see as necessary for a free society. Basically, they want to set up their own laws to govern themselves while taking advantage of living in the free society that the rest of us are doing the hard lifting of maintaining.

    Way to go, fundies. You have basically turned against the whole idea of religious exemptions completely.

  4. 4
    John Pieret

    I’m sure there’s some religious folk who would take real offense at having to write out “Bob and Tom Forever,” ust as there are going to be some bakers who take offense at having to write out “KKK Forever.” Are those messages explicit? Offensive? Is there a right to refusal there?

    It will depend on how the anti-discrimination law is written … whether it has applicable exceptions for those sorts of situations. There is no constitutional right to be free of discrimination by private persons. All such rights are creatures of local, state or Federal statutes.

  5. 5
    brianwestley

    I would also argue that to put a message that someone else comes up with is not free speech on the part of the cake maker, so the cake maker could not claim that their first amendment rights were at stake.

  6. 6
    erikjensen

    Most theocrats I talk to do not take the argument of religious exemption from laws to its logical conclusion. Their reasoning is that acting gay is a sin and a choice (and really icky) while being black or a Christian or a woman is not. Basically, they distinguish between “good” reasons to discriminate and “bad” reasons.

    I think Eric brings up an interesting question of when compelling someone to bake a cake constitutes compelled speech. I suspect that we have not heard the end of these types of court cases.

  7. 7
    iknklast

    Taking the religious exemption to its obvious conclusion, if you could be exempt from that law on religious grounds, what’s to stop a Protestant baker from refusing a cake for a Catholic wedding? It hasn’t been that long ago that such things would be recognizable to people.

  8. 8
    Modusoperandi

    Now, look, Ed Brayton, the Founding Fathers didn’t come over here on the Mayflower just to be forced to bake cakes for homos.

    (Query: Would you eat a cake made by a baker who’s legally forced to?)

  9. 9
    Scr... Archivist

    Modusoperandi @8:

    Would you eat a cake made by a baker who’s legally forced to?

    In a case like this one, the tears make the cake sweeter.

  10. 10
    freehand

    Yeah, we went through all this silliness 50 years ago with “mixed” marriages. The Fundies mostly got over it pretty quickly.

    Next up: Would you let your daughter marry a machine? Outlaw cyborg marriage rights before they get out of hand!*

    After that: marriage rights for:
    1. virtual people
    2. genetically modified pets
    3. post-humans

    *Yes, I know cyborgs are human. But I am putting words in the mouths of Fundies, here.

  11. 11
    dogfightwithdogma

    Just more christian privilege masquerading as religious liberty. I’m sick of it!

  12. 12
    Scr... Archivist

    freehand @10,

    More seriously, I think the Right’s next few social/sexual challenges will be much more immediate and likely. For example, allowing their daughters to marry trans*men will probably emerge as a new issue for them, and an ironic one considering their recent insistence on one-woman-one-man marriage.

    Another issue that might already be happening is how to deal with their adult children (especially daughters) being openly polyamorous. How will Mom and Dad handle it when Cindy Lou brings both of her boyfriends to the family Christmas party?

  13. 13
    Michael Heath

    Ed writes:

    . . . a state judge has rejected the bakery’s claim that state law forbidding such discrimination violates their . . . religious freedom rights.

    Well no. What you quote here doesn’t have the judge rejecting the bakery’s claim that their religious freedom rights were violated.

    Instead the judge found a competing rights controversy and ruled that the gay couple’s rights were: superior to the baker’s, worthy of protection, and protected under current anti-discriminatory laws (though not asserted in my order). The ruling judge from Ed’s quote of him/her:

    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.

    People whose rights are infringed upon sometimes lose in court. To understand why this justly happens, when it justly happens, requires us to acknowledge everyone’s inalienable rights where the crux of the matter is instead: Does the government have an obligation to protect this right (if no competing rights are argued)? Does the government have numerated or implied powers to infringe upon the right within the context of this case? Does the court have obligation to protect one party’s rights even though such protections infringe upon the protected rights of others?

    In this case we can see how the court ruled for both parties:
    1) The plaintiff’s right to be free from discrimination is worthy of protection.
    1.a) The court didn’t really go into whether the defendants have a protected religious freedom right not to bake cakes for gays because of the other three factors. (The ‘incidental’ quip has him dipping his toe in the water.)
    2) The government has statutory powers to protect the marketplace access rights of the gay couple (in the face of discrimination).
    3) The gay couple’s right is superior to that of the bigoted baker and therefore to be protected at the baker’s expense:

    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 . . .

    I don’t agree with this judge’s assessment regarding “incidental” since I doubt the court even weighed the degree to which this baker’s religious freedom rights will be infringed upon.

  14. 14
    cptdoom

    There is another big difference between the white supremacist cake example and the baker’s action – the baker categorically refused to make any cake for any same-sex marriage ceremony, regardless of message. Even under anti-discrimination laws, businesses have the right to refuse service to individuals as long as their decision is based on a specific individual’s actions and not their membership in a suspect class. So a gay bar in Colorado cannot refuse to serve straight people, but can refuse service to an anti-gay preacher who comes into the establishment and begins loudly preaching about what an abomination homosexuality is (this actually happened at a bar in DC when I was there, except it was an anti-gay bridesmaid who had come into the bar with a bachelorette party who began lecturing us on her religious views).

    The baker, of course, is continuing to embrace his martyrdom. He has set up a petition on his business’ web site – http://masterpiececakes.com/religious-liberty-petition/ – to pressure the attorney general to stop the case against him, and he went on Faux News to declare he would rather do jail time (which isn’t even an issue in the case) rather than serve gays and lesbians on an equal basis with straights. Not surprisingly, that brilliant journalist Elizabeth Hasselbeck grilled him with questions like “do you feel like your faith is being attacked” as she once again made even dumb blondes look bad. Oh, and the baker is now claiming he is justified because

    …same-sex weddings are illegal, unconstitutional and against the repeatedly stated public policy of the state of Colorado.

    Of course, there is nothing illegal at all about the celebration the two gentlemen were having, but it does point out another tactic the right can use to argue this case is not similar to, say, racial discrimination.

  15. 15
    eric

    Chiroptera:

    Way to go, fundies. You have basically turned [me] against the whole idea of religious exemptions completely.

    One issue is that such religious exemptions would probably be tolerable to most people in very small doses. Their impact on our rights, however, increases with the number who take the exemption. One fundie pharmacist in (all of) New York City isn’t a big problem for women seeking contraception; it’s when you’re in the midwest and there is no contraception available for 20 miles in any direction because 2 out of 2 local pharmacists are fundies that it really becomes a serious harm. The US legal system deals very poorly with situations like this; we tend to like all-or-none solutions. (Refusing) vaccination and hard drug use would be two other examples of similar issues: society is probably robust enough to tolerate some, but not a huge amount of either. And in both cases, we have a problem finding a balance (or in the case of drug use, we don’t even try).

    I offer this more as satire than serious thought, but maybe the way to address the religious exemption problem is the same way we address (refusal of) vaccination: allow it, but make it costly. Want your business to be religiously exempt from having to write “Bob and Tom Forever” on your cakes? That’ll be 200 pages of paperwork and a $5,000 licensing fee, please. Per year. Due at lesat 6 months before the exemption kicks in. Maybe we’ll even use that money to fund tax breaks for the bakeries that don’t take the exemption…

  16. 16
    Steve Morrison

    Wasn’t there an incident a few years ago where a store refused to bake a cake saying “Happy Birthday Adolf Hitler”? [checks] Yes, here it is. AFAIK it never went to court; in any case, it isn’t directly analogous.

  17. 17
    Michael Heath

    Ed concludes:

    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.

    I don’t think they’re in a logical bind here, merely a legal one. That’s because the media allows them and their political leaders to make convenient arguments inconsistent with other arguments they also make. E.g., they’re the self-declared defenders of the Constitution and liberty while they avoid their anti-gay marriage position contradicts the clear unambiguous language of the equal protection clause of the 14th Amendment.

  18. 18
    Michael Heath

    brianwestley writes:

    I would also argue that to put a message that someone else comes up with is not free speech on the part of the cake maker, so the cake maker could not claim that their first amendment rights were at stake.

    Well at some point I would think a baker’s going to argue in court their speech rights were infringed upon where there will be speech to consider, which wasn’t the case here – there was no speech. brian’s determination seems to be the most logical.

  19. 19
    khms

    I don’t agree with this judge’s assessment regarding “incidental” since I doubt the court even weighed the degree to which this baker’s religious freedom rights will be infringed upon.

    I don’t think incidental is meant to address that degree. From previous discussions, I seem to recall that it means that this is a consequence but not the goal of the law. That is, you can’t have a law aiming to reduce people’s religious freedom, but you can have a law aiming to prevent discrimination that just so happens to reduce your religious freedom when that collides with the goal of preventing discrimination … presumably so long as the law takes a sort of minimal approach to do so (which it seems it does in this case – the only behavior it prevents is what is actively discriminatory). The reduction of religious freedom is incidental to the law (not necessarily to the people affected).

    For other examples, see religions calling for consumption of prohibited drugs, or for human sacrifice. The laws against that are legitimate because they were not written for those specific situations (and not because there’s not much of an impact on those religions: there certainly is).

    Also compare recent discussions about religiously-motivated circumcision.

  20. 20
    Michael Heath

    khms writes:

    The reduction of religious freedom is incidental to the law (not necessarily to the people affected).

    Thanks, that makes sense.

    I don’t necessarily like it because I think the court needs to apply more scrutiny when anyone’s rights are infringed upon. Including that of a bigoted baker looking to limit people’s access to goods and services. However I understand this is proper given this is a trial judge constrained by both law and precedent.

  21. 21
    R Johnston

    I have a religious obligation to engage in human sacrifice. I therefore have a constitutionally mandated exemption from murder laws.

    I wish I could say that even the religious bigot can see the ridiculousness of their religious exemption argument when taken to its not-so-distant logical conclusion, but given the case of Tamesha Means I can’t actually say that.

  22. 22
    colnago80

    Re Michael Heath @ #17

    Many teabaggers maintain that the 14th Amendment was illegally adopted and that therefore it is inoperative. Most of the Southern States that ratified it were Reconstructionist governments appointed by the federal government which Southerners consider unconstitutional.

  23. 23
    Kimpatsu

    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…
    You know, Ed, Peter Hitchens (less bright brother of the late Christopher) called me stupid for making that very argument.

  24. 24
    marcus

    I could see an instance where a baker might refuse to inscribe a particular message on a cake if they found it offensive. I mean you probably couldn’t require anyone to write “Fuck You!” on a cake either as prank or insult, I think the same would be true of “KKK Rules”. “Bob and Ted Forever” IMNSHFO would not carry the same weight, but it would be an interesting test case. However refusing to even bake the cake because of how the customers might use it is obviously (as the judge pointed out) discriminatory.

  25. 25
    Sansgawd

    This ruling is fucking awesome!

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