Are these cases legally equivalent?


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?

Comments

  1. Chiroptera says

    Huh. So if I had a business that printed signs, I couldn’t refuse an order for “God Hates ****” signs for Westboro Baptist Church? If I owned a printing shop, i couldn’t refuse to reprint the Protocols of the Elders of Zion for the local Neo-Nazis to distribute? That doesn’t sound right.

    Like Mano, I see a clear difference between baking wedding cakes for some people but not for others vs. having to put any message at all on a cake just because someone asks me to. I’m pretty sure that anti-discrimination laws and legal precedent allows business owners to put reasonable limits on the speech that they facilliate as part of their business. On the other hand, I haven’t yet read Turley’s article to see how I may be wrong.

  2. says

    Could I force a baker to make a cake that says I Hate N****rs if I was a white supremacist?

    Could you get a refund if they misspelled it so it read “I hate McNuggets”?

  3. Pierce R. Butler says

    Some years ago, a friend of mine was fired from a job at a copy shop for refusing to to print some materials for the local Ku Klux Klan.

    No litigation or legal charges ensued, but this case reminds me somewhat of hers. If, say, she had owned or managed the shop and thus been able to make her refusal stick, and this had gone to court, would it have made a difference whether the job involved material with derogatory or inflammatory wording, or had just been a “potluck at Jimmy Ray’s place” announcement?

  4. says

    Jonathan Turley seems to have wandered astray lately what with the various stances he’s taken on some issues. This case is not like the others in that there was no refusal to serve, merely a refusal to follow a customer demand that was clearly outside the spirit and purpose of the business. I assume there were no cakes in the window with toppings that said “Fuck the Pope!” or “We hate …!”. Clearly the main thrust of the bakery was to create cakes with a positive, even festive message. They might even have gone so far as to create one that said, “Happy 40th Westboro!” (or whatever). And the bakery made no stipulation that the customer could not further decorate the cake in any way he chose. I’m sure that many of their customers do that on a regular basis. If this guy is too inept to put his own red X over the gay couple I see no reason that the bakery should be forced to help him in sending a message they disagree with.
    Tom

  5. Kengi says

    One issue to remember is we are dealing with anti-discrimination laws which were designed to protect certain historically discriminated-against people. That’s why it’s legal in some places to refuse to serve LGBT people, while being illegal in others. Some places have added LGBT people to their list of protected classes while others have not.

    No place in the USA that I’m aware of has put white supremacists on the list of protected classes, so it’s always legal to refuse to print (or make cakes for) KKK events. It’s the same as refusing to serve shoe-less or shirtless people. Unless someone is a member of a protected class against discrimination, your business (pretty much) has the right of free association and ability to refuse service. You can, as far as I know, legally refuse service to left-handed people.

    While Christians aren’t generally considered part of a historically discriminated against group, they get a bit of a free pass under non discrimination on the basis of religion clauses of the various civil rights laws.

    In the case of the bakery refusing to put an anti-gay slur on a cake, the complainant would need to demonstrate the refusal of service was based upon the religion of the customer.

    We saw this in the defenses of several businesses that discriminated against gay people as well. Most of those businesses said they were willing to serve gay customers, but wouldn’t sell them a wedding cake.

    As Mano pointed out, however, if you serve wedding cakes to some people, but not others, that’s obvious discrimination. If it’s a protected class you discriminate against, it’s illegal.

    I’d be interested in seeing how this particular case pans out. It really does seem to be a case of refusing to put a slur on a cake rather than refusing customers based upon their religion. However, I’m sure the customer’s lawyers will argue that being an outspoken bigot is somehow a core part of what it means to be Christian … and they may have a point there.

    If the baker advertises they will make custom cakes with custom messages, could they refuse objectionable Bible quotes? That would be an even trickier problem I would think.

  6. says

    I used to sell duck eggs. The duck eggs happened to be fertile, since I had male ducks as well.

    Once someone tried to get me to sell them balut. I refused. They could buy the eggs, certainly, and do whatever they liked with them, but I wasn’t going to make balut.

    This case strikes me as similar to that. It wasn’t that they were refusing the customer service. They were refusing him a particular product. It strikes me that this isn’t any more discrimination than going to Burger King and demanding McNuggets.

  7. Alverant says

    They were willing to sell the identical product or service to people as long as they were not gay.

    Wrong. It’s not an identical product, it’s a product with a cosmetic difference (two people of the same gender up top). Writing on the cake is also a cosmetic difference. Unless the customer was calling for violence against homosexuals, the baker should have taken the troll’s money and giving him what he asked for (but not what he REALLY wanted).

    #2 This isn’t a case about obscenity. It’s about someone objecting for religious reasons. If the baker said, “Sorry we don’t print offensive language.” and kept that policy consistent (meaning they didn’t make any exceptions) then this wouldn’t be an issue. But she said she wouldn’t do it because she didn’t feel like it and that’s where the problem comes in.

    Sometimes you got to grit your teeth and do your job.

  8. gshelley says

    Assuming they can convince a court that being a bigot is an integral part of their Christian identity, they might be able to argue that if the baker would provide an equivalent cake to someone else, then there is discrimination. This might depend on the text. To say “I will write congratulations on your marriage” for a straight couple but not a gay couple is clear discrimination, but if it is more a case of “I will not write anti gay slurs” that seems more to go to freedom of the baker
    Then if they were simply refusing to make the picture with the cross through it, that could also be a different issue – would she bake a “congratulations on your divorce” cake with a similar image?

  9. samgardner says

    I believe in the Christian baker cases the baker may have also offered to bake the cake and then allow the purchaser to decorate the top with whatever figurines they chose, so this might not be the best comparison to make.

  10. Crimson Clupeidae says

    The guy was clearly trolling. I think that as long as the baker didn’t explicitly refuse for religious reasons, or because of the customer’s religion, in this case, they would be justified in refusing to add the decoration. Assuming the story is mostly true as written, if the baker offered to make the cake blank, and even offered to let the customer write the words themselves, then I think the baker should prevail in this case.

  11. EnlightenmentLiberal says

    @Mano
    I think you have a point. The line is very thin, but I think it’s valid legal and moral reasoning. The business is not refusing to serve Christians. The business is not refusing to produce cakes in accordance with festivities and celebrations of Christians. The business is simply not interesting in making hateful art. As long as the business applied this standard of hate fairly and also refused to bake a cake for gay people who wanted “fuck Christians”, I think it’s ok. In other words, they’re selling celebration cakes, not hate cakes. Again, very fine line. I feel a little uncertain on this still.

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