There were three recent court cases that tested the extent to which commercial establishments could refuse to serve certain customers because of their religious beliefs. The cases involved florists, bakers, and photographers who declined to provide their services to the weddings of same-sex couples because they disapproved of such marriages on religious grounds. All these cases are at various stages of litigation, though so far the rulings have tended to go against the businesses.
Now comes along another case that seems to be the flip side of those. Marjorie Silva, the owner of Azucar Bakery in Denver, refused to make a Bible-shaped cake for a customer who wanted it to have a gay slur written on the icing.
The customer came into Silva’s shop in March of 2014, just months after the conclusion of a very similar incident that took place inside a Lakewood bakery in December of 2013.
In a decision that was eventually upheld by the Colorado Civil Rights Commission, a judge ruled that Masterpiece Cakeshop owner Jack Phillips broke discrimination laws when he refused to make a cake for Dave Mullins and Charlie Craig, a gay Colorado couple who had attempted to purchase the baked good for their Massachusetts wedding in July of 2012.
Flash forward almost two years, and Silva found herself dealing with a man she described as “very pushy and disruptive,” asking her to bake a cake with an anti-gay message she won’t fully repeat to this day.
Silva said she told the customer she would make the cake with a blank Bible page so that he could write whatever he wanted inside. She said she even offered to give the man an instrument to write the words himself.
He declined, Silva said, and instead told the baker she “needed to talk to an attorney about this.”
It seems clear that the person who asked for the cake was a provocateur, less concerned with getting his cake that in trying to make a point that if businesses were legally required to serve gay people, then they should also be required to serve anti-gay people. Subsequently Silva was served with a notice from the Colorado Department of Regulatory Agencies (DORA) that a discrimination complaint had been lodged against her and asking for a letter describing her version of events.
Silva, who herself is a Christian, explained her actions this way. “The customer wanted us to draw two males holding hands with a big ‘X’ on them. We never refuse service. But we did feel it was not right for us to present hateful words or images about human beings.”
But leaving the customer’s motivations aside and looking at this issue strictly from a legal perspective, are the two types of cases equivalent, except coming from opposite poles? Jonathan Turley seems to think so and that this is an issue of free speech because the merchant was objecting to putting a specific message on the cake. A cursory examination would seem to support him.
But I think there is a crucial difference. The earlier cases involved people refusing to serve customers based on who they were. They were willing to sell the identical product or service to people as long as they were not gay. Here we have a request that a business make a specific product for a customer. The merchant is not objecting to providing a service because of who the customer is, she was saying that the service requested was not something she was willing to provide to anyone.
There seems to me to be a fundamental difference between saying “We don’t serve your kind”, which is offensive and was the basis for the civil rights struggle to eliminate Jim Crow laws, and “We don’t provide this particular service”.
In the earlier cases of the florist, baker, and photographers, they too would have the right (I think) to refuse to provide some service if they denied it to everyone.
Is what Silva did a violation of the free speech rights of the customer as Turley seems to imply? Suppose I run a printing press. Am I obliged to print anything that a customer requests or do I have the right to refuse to print materials that I object to on whatever grounds (religious or otherwise) such as because it is racist or sexist or otherwise bigoted?