A baker won't make a gay
A human rights complaint was filed.
Lawsuit appealed to U.S. Supreme Court!
Part 1 of two parts.
Why is this case unique?
There have been perhaps dozens of news items similar to this one in the recent past. However, this one may eventually have a major impact on U.S. culture and human rights, starting in mid-2018.
All of them started off the same way: a same-sex couple who planned to get married approached a baker, a wedding photographer, or the owner of a venue for meetings, and asked them to deliver specific goods or services associated with their wedding. The store or company refused the request on the basis that the owner is a religious conservative who disapproves of such marriages on religious grounds. All cases that we have seen in the media involved an evangelical Christian who regards the Bible to be God's word, and interprets the six or so Bible's "clobber passages" as condemning same-gender sexual behavior and thus disapproves of same-sex weddings. The couples later filed a complaint with their state or city human rights tribunal which has a law or ordinance protecting people from discrimination on grounds of their sexual orientation. Typically, an administrative-law judge would rule on the case.
In most cases, this would result in a news item of brief interest, and a fine levied on the store owner. This case is different.
This case was appealed to the Colorado Civil Rights Commission, where the couple won. The case was then appealed to the Colorado Court of Appeals, to the Colorado Supreme Court, and finally to the U.S. Supreme Court. The high court agreed to accept the appeal. What started as a simple item in the news, similar to many previous disputes, may become an important High Court ruling. It may not have the impact of the 2003 ruling that legalized same-sex behavior by adults in private, or the 2015 ruling that made marriages available to interracial couples across the U.S., etc. But, it will still be a very significant case affecting:
- the LGBT community, because it should decide whether a state or city can pass a law or ordinance that restricts a public accommodation from discriminating against sexual minorities on religious grounds.
- other groups which some public accommodations might want to discriminate against on religious grounds because of the customer's religion, sex, race, national origin, skin color, marital status, gender identity, etc.
The Colorado case may finally resolve a legal conflict found in in many human rights cases across the U.S.:
- Most states have a human rights law; many cities have human rights ordinances. Most of these prohibit public accommodations from discriminating against customers on the basis of their gender, race, skin color, religion, and national origin. 2 Some of these laws and ordinances go further and include sexual orientation and/or gender identity, etc. as protected classes.
- Meanwhile, the First Amendment to the U.S. Constitution guarantees religious freedom. This guarantee covers religious belief, speech, writing, assembly, and proselytizing, Many conservative Christians and others believe that the First Amendment also guarantees public accommodations the religious freedom to ignore state human rights laws & city ordinances and freely discriminate against potential customers.
News items like the Colorado baker's case continue to proliferate throughout the U.S. If the High Court decides in favor of the religious freedom to discriminate, then states' human rights laws and municipalities' human rights ordinances will automatically be given a religious escape clause. For example, store owners might be able to argue from their religious beliefs that God created different races of humans, placed them in different areas of the world -- blacks in Africa, whites in Europe, etc. Further, God intended them to remain separate forever, and never mingle socially or enter into interracial marriages. This religious belief was very widespread during the late 19th century and could be resurrected today. We might see "whites only" signs appearing once more in public washrooms, on water fountains, and in restaurants. Bus companies might dust of their long abandoned "blacks sit at the back of the bus" signs and place them on their busses.
A firm decision by the U.S. Supreme Court is needed to resolve this conflict. Whatever the court decides will have a significant effect on the U.S. culture. It will decide whether people will be able to go to stores and feel confident that they will be accepted as customers. It will decide whether the First Amendment of the U.S. Constitution protects not only individuals' religious beliefs, speech, assembly, and proselytizing, but their right to discriminate against others on religious grounds.
The conflict in Colorado:
In 2012-JUL, David Mullins and Charlie Craig, a same-sex couple from Colorado, decided to marry. Colorado did not permit such marriages at that time. The U.S. Supreme Court ruling in Obergefell v. Hodges would not legalize same-sex marriage across the country for another three years. Same-sex couples could only be married in seven states and the District of Columbia at the time; Colorado was not one of the states. The engaged couple decided to be married in Massachusetts where gay marriages had been available since 2004. They would then return to Colorado and hold a wedding reception so their families could celebrate their marriage.
The couple needed a wedding cake. They and Craig's mother approached Jack Phillips, a co-owner of Masterpiece Cakeshop in Lakewood, CO. They asked him to bake them a custom wedding cake. In a discussion which lasted only about 20 or 30 seconds, he refused on religious grounds saying: "Sorry guys, I don’t make cakes for same-sex weddings." 3,9 He said that he would be pleased to bake them a cake for other types of celebrations. Alternately, he would sell them any pre-made cake for sale in his store. However, his religious beliefs prevented him from creating a custom-made cake for a same-sex marriage. He apparently interpreted the various "clobber passages" in the Bible that may refer to same-gender sexual activity as condemning such behavior, and by extension, as also condemning gay marriages.
Mullins discussed their experience on Facebook, concluding with an appeal to visitors:
"If you feel like the treatment we received is wrong, please contact Masterpiece Cakeshop and let them know you feel their policy is discriminatory."
"Pretty soon news organizations are calling and the snowball is screaming down the hill. It all happened very fast and we weren't’t really prepared for it." 9
Another local bakery heard of the rejection and provided the couple with a free cake.
There is a Human Rights law in Colorado that requires public accommodations to not discriminate against potential customers on many grounds: "... disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry..." [Emphasis by us.]
During 2012-SEP, Craig and Mullins filed a discrimination charge with the state and won. The Civil Rights Commission subsequently launched a lawsuit against Phillips and the bakery, which is called: "Masterpiece Cakeshop v. Colorado Civil Rights Commission." Judge Daniel Taubman ruled:
"Masterpiece remains free to continue espousing its religious beliefs, including its opposition to same-sex marriage. However, if it wishes to operate as a public accommodation and conduct business within the State of Colorado, [the law] prohibits it from picking and choosing customers based on their sexual orientation." 9
(Public Accommodation include businesses that provide goods and services to the general public. Bakers and most other retail stores meet this definition.)
There have been a series of similar conflicts across the U.S. caused by the refusal of store owners or employees to bake cakes, take photographs, or supply other goods or services that are involved with same-sex weddings. Generally:
- The defendants have claimed that their state's anti-discrimination laws are unconstitutional when applied to their situation. They feel that the laws violate their religious beliefs, by forcing them to honor/celebrate/participate in a same-sex marriage. They believe that this infringes on their rights of freedom of religion as guaranteed by the First Amendment to the U.S. Constitution.
- The plaintiffs have generally argued that the human rights laws and ordinances in the state do not violate the First Amendment. The laws don't relate to personal religious beliefs, speech, writing, assembly, or proselytizing. They only involve discriminatory personal conduct which may be based on religious beliefs, or many be based on simple bigotry. If this business was to obey the state human rights law and bake a cake, no reasonable person would interpret that action as showing that the owner or employees are in favor of, or promotes, gay marriages. It would only show that they are law-abiding.
"This has always been about more than a cake. Businesses should not be allowed to violate the law and discriminate against us because of who we are and who we love."
Phillips, who describes himself as a "cake artist," said that the U.S. Constitution and his sincerely held religious beliefs permit him to refuse to create a custom wedding cake for a same-sex couple. He has been represented at court by the Alliance Defending Freedom (ADF; formerly the Alliance Defense Fund). This is a conservative Christian non-profit group that is frequently involved in court cases involving individuals' personal freedom to discriminate against others on religious grounds. The group filed a brief in this case that said, in part:
"Phillips believes that God ordained marriage as the sacred union between one woman and one man, a union that exemplifies the relationship of Christ and His Church. ..."
Webmaster's comment [bias alert]:
I understand the concept of Jesus Christ having a spiritual relationship with the members of his church. But those members are both female and male. Since Jesus is described in the Bible as male, His spiritual relationships are both male-female and male-male. The former has analogies to a marriage of a woman and a man, while the latter has similarities to a gay marriage. So, I am unable to understand the ADF's position.
According to "The Slowly Boiled Frog" web site, Phillips has said:
"I serve everybody all the time but I don't make every cake for every event that's required. It's a difficult thing to be in my position and know that somebody is requesting something that I can't in good conscience do."
"I believe the Bible clearly teaches marriage is between one man and one woman. I'm not judging these two gay men who came in. I'm just trying to preserve my right as an artist to decide which artistic endeavors I'm going to do and which one's I'm not."
"Would Jesus have made the cake? I don't believe he would have because that would have contradicted the rest of the biblical teaching. I don't believe that Jesus would have made the cake if He had been a baker."
"These two gentlemen are welcome in my store today, they're welcome in my store every day -- I welcome everybody that comes in. [However] I don't make every cake for every event." 4
Mullins, Craig and Phillips do agree on one point: the case has nothing personal involved in the case:
- Phillips has said:
"It has nothing to do with David and Charlie, it has everything to do with my faith in Jesus Christ and my following the teachings of the Bible."
- Mullins said:
"This case isn’t about Jack Phillips and it isn’t about us. It’s about the principle that gay people should be able to receive equal service at businesses open to the public." 9
Conflicting briefs filed by Alliance Defending Freedom (ADF) and the American Civil Liberties Union (ACLU):
Phillips' ADF lawyers also describe him as a "cake artist." In their brief to the U.S. Supreme Court they argued that a wedding cake:
"... forms the centerpiece of a ritual in which the couple celebrates their marriage. ... [It] communicates this special celebratory message." 5
They described two freedoms that are at stake in this case:
- The freedom to operate freely a business according to your religious beliefs.
- The freedom to express yourself artistically without endorsing a view with which you disagree. 6
Professor William Eskridge, Jr. at Yale Law School, who is himself openly gay, commented:
"It’s a very hard question. Doctrinally, it could go either way. ... Fundamentalist Protestants, Catholics, Orthodox Jews, Muslims, Mormons -- it’s a big chunk of America. Decent people. They feel they are under siege by government. Many have no problem with gay customers. They just don’t want to participate in the choreography of gay weddings. ..."
"Most Protestant churches in the South [once] believed slavery and, later, [that American] apartheid and anti-miscegenation laws were ordained by God. Presbyterians, Methodists, Southern Baptists -- [followers of] respectable religions. Maybe several million people still believe that."
The plaintiffs' lawyer is James Esseks, the director of the American Civil Liberties Union's LGBT rights project. He said that the state law is:
"... not forcing you to say anything. You can say to whomever, ‘I think gay people shouldn’t be able to get married. It’s a sin.’ [As an owner of -- or a worker at -- a retail outlet] you just can’t turn people away [as customers] because of who they are." 5
Roger Parloff, writing for the New Yorker, said:
"For all Phillips knew at the time," an administrative-law judge ruled, in 2013 -- in a decision later adopted by the Colorado Civil Rights Commission and upheld by the state appeals court -- Craig and Mullins 'may have wanted a nondescript cake suitable for consumption at any wedding.' The commission has conceded that Phillips could have lawfully declined to write messages that he disagreed with on the cake, and it has previously allowed bakers to refuse to adorn cakes with white-supremacist and anti-Muslim messages.
Phillips’s attorneys argue that the couple was asking him to 'design and create' a unique cake, and that, even if they weren't, any cake would convey the 'unconscionable' message 'that a wedding has occurred, a marriage has begun, and the couple should be celebrated'." 5
The case was appealed to the Colorado Court of Appeals, which also ruled against the baker. The court ruled that he:
"... does not convey a message supporting same-sex marriages merely by abiding by the law." 7
It was further appealed to the Colorado Supreme Court which refused to take the case. Finally, it was appealed to the Justices of the U.S. Supreme Court during 2016-JUL.
Robert Barnes, writing for the Denver Post, said:
"Phillips’s petition to the high court, Masterpiece Cakeshop v. Colorado Civil Rights Commission, lingered for months. It was re-listed 14 times on the court’s private conference schedule, where the justices consider whether to accept a case. Four of the nine justices must vote to accept a case, and when a case is listed so many times, it usually means that requirement has not been met, and some justice is working on a dissent.
On 2017-JUN-26, they accepted the appeal. 6,8 The hearing will probably be held in early 2018, and the High Courts ruling should be issued during 2018-JUN.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Image of a wedding cake for a lesbian couple unrelated to the Colorado case. Downloaded from Pixabay. Status: CC0 Public Domain.
- "24-34-601. Discrimination in places of public accommodation - definition," Colorado, at: http://www.lpdirect.net/
- Adam Liptak, "Justices to Hear Case on Religious Objections to Same-Sex Marriage," New York Times, 2017-JUN-26, at: https://www.nytimes.com/
- "Questions that Jack Phillips should have been asked," The Slowly Boiled Frog, 2017-JUL-11, at: http://www.slowlyboiledfrog.com/
- Roger Parloff, "Christian Bakers, Gay Weddings, and a Question for the Supreme Court ," The New Yorker, 2017-MAR-06, at: http://www.newyorker.com/
- "Masterpiece Cakeshop v. Colorado Civil Rights Commission," Alliance Defending Freedom, 2017, at: https://www.adflegal.org/
- Robert Barnes, "In major Supreme Court case, Justice Dept. sides with baker who refused to make wedding cake for gay couple," 2017-SEP-07, at: https://www.washingtonpost.com/
- "Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission," SCOTUSblog, as on 2017-JUN-27, at: http://www.scotusblog.com/
- Robert Barnes, "The spurned gay couple, the Colorado baker and the years spent waiting for the Supreme Court," The Denver Post, 2017-AUG-14, at: http://www.denverpost.com/
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Copyright © Ontario Consultants on Religious Tolerance
Author: B.A. Robinson
Latest update: 2017-SEP-10