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2017-8: CO Baker Violates State Law by
Refusing to Make a Wedding Cake for
a Gay Couple. Human Rights Complaint.
U.S. Supreme Court rules in the baker's favor!

Part 1 of four parts.

Gay wedding cake 1

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Why is this case unique?

At first glance, this conflict at the Masterpiece Cakeshop in Lakewood, CO. started out like many similar cases in the past. There have been perhaps dozens of news items similar to this one during the past few years. However, this case is unique because it went all the way to the U.S. Supreme Court and may ultimately have a major impact on U.S. culture and human rights, starting in 2018-JUN.

All of these cases started off the same way:

  • Two babies of the same sex were born in separate families. In this case, they were born during the late 20th century and were both boys.
  • As with all embryos and fetuses, their DNA developed an epigeneic layer. This layer turns selected genes in the DNA on or off.
  • At birth, their epigeneic layers programmed them to be sexually attracted only to other males later in life. That is, they had a homosexual orientation. This occurrs randomly in about 5% of all births.
  • The two met, fell in love, developed a committed relationship, and decided to marry.

Colorado did not permit same-sex marriages at the time, so they decided to visit Massachusetts where gay marriages had been available since 2004. They would marry there and then return to Colorado and hold a wedding reception so their families could celebrate their loving relationship, commitment, and marriage. For that, they needed a wedding cake.

Like most same-sex couples celebrating a marriage, they approached a "public accommodation:" -- a company that sells and delivers goods and services to the general public. In their case it was baker; other similar cases involved a wedding photographer, florist, or the owner of a venue for marriages, etc. The couple asked the owner to deliver specific goods or services associated with their wedding. In this case, it was a wedding cake. The store or company refused the request on the basis that the owner is a religious conservative who disapproves of this type of sexual relationship and marriage on personal religious grounds.

All of the cases that we have seen in the media involved an evangelical Christian who:

  • Regards the Bible to be God's word;

  • Interprets at least some of the six or so Bible's "clobber passages" as condemning all same-gender sexual behavior, whether they are a casual sexual act between two persons who just met, or between a loving, committed, married couple, etc.;

  • Disapproves of same-sex weddings because they believe that God created marriage to be restricted to opposite-sex couples;

  • Is the subject of a complaint by the couple filed 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 lead to the store owner being found guilty. It would result in a news item of brief interest, and a fine levied on the store owner.

This case is unique in that it went much further than most other conflicts. It was appealed to the Colorado Civil Rights Commission. The case was then appealed to the Colorado Court of Appeals, and to the Colorado Supreme Court. The couple won at each stage. Finally it was appealed to the U.S. Supreme Court. . The high court agreed to accept the appeal -- the first of this type.

What started as a simple item in the news, similar to many previous disputes, became an important High Court ruling on 2018-JUN-04. 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 most of the U.S., etc. But, it it may 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 them on religious grounds.

  • other groups which some public accommodations might want to discriminate against on religious grounds because of the religion, sex, race, national origin, skin color, marital status, gender identity, sexual history, divorce history, etc. of the customer or customers.

Depending on how the Colorado case is interpreted, it 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 groups.

  • Meanwhile, the First Amendment to the U.S. Constitution guarantees religious freedom. This guarantee has traditionally covered religious belief, speech, writing, assembly, and proselytizing. However, 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 on religious grounds, as long as the discrimination is based on the owner's sincere religious beliefs.

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 may 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, and placed them in seperate 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. Transit companies might dust of their long abandoned "blacks must sit at the back of the bus" signs and reinstall them on 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.

It is well known that the sucide rate among sexual minorities is significantly higher than average. When the U.S. Supreme Court legalized gay marriages across the U.S., this rate dropped, presumably because more sexual minorities felt more accepted. Suicides would probably increase if the High Court legalized discrimination.

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The conflict at Masterpiece Cakeshop in Colorado:

In 2012-JUL, David Mullins and Charlie Craig, a same-sex couple from Colorado, decided to marry. Colorado did not permit gay marriages in 2012. Such couples could only be married in seven states and the District of Columbia at the time. The U.S. Supreme Court ruling in Obergefell v. Hodges would not legalize same-sex marriage across the country for almost another three years. The engaged couple decided to be married in Massachusetts where gay marriages had been available since 2004. They then returned to Colorado and arranged to hold a wedding reception so their families could celebrate their loving relationship, commitment, and union. They needed a wedding cake.

The couple 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." 4

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 some people believe prohibit same-gender sexual activity as condemning such behavior. By extension, they would also condemning gay marriages.

Mullins discussed their experience on Facebook, concluding with an appeal to their Internet 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."

That the store policy is discriminatory is not a matter of debate; it is a fact. Rather, the core conflict is whether the government of the state or city has the constitutional right to pass a law or ordinance that bans discrimination against customers and punishes such discrimination by a fine.

Mullins continued:

"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." 4

Another local bakery heard of the baker's rejection and provided the couple with a free cake.

An existing Human Rights law in Colorado required 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.]

Craig and Mullins felt humiliated by Mr. Phillps refusal. During 2012-SEP, they filed a discrimination charge with Colorado's Civil Rights Commission and won. The subsequently launched a lawsuit against Phillips and the bakery. It is called: "Masterpiece Cakeshop v. Colorado Civil Rights Commission." Daniel M. Taubman, director of the Colorado Coalition of Legal Services Programs 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." 4

There have been a series of similar conflicts across the U.S. caused by the refusal of store owners or their employees to bake a wedding cake, take photographs, supply flowers, rent a venue, or supply other goods or services that are involved with same-sex weddings. Generally:

  • The defendants in these cases 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 to discriminate on the basis of their freedom of religion, which they believe is very broadly 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. This is an activity which may be based on religious beliefs, or simple bigotry, or both. 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 promote, gay marriages. It would only show that they are law-abiding citizens.

David Mullins said:

"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."

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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.

Also, the marriage laws in Israel in Biblical times allowed marriages between one man and multilple women. Solomon holds the record with 700 wives and 300 concubines. Whether Phillips would also refuse to bake a wedding cake for a man marrying another wife is unknown.

According to "The Slowly Boiled Frog" web site, Jack 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."

and

"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."

and

"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."

and

"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." 5

Webmaster's comment [bias alert]:

Actually, Jesus' beliefs about same-gender sexual behavior and gay marriages are not mentioned in the Bible.

Mullins, Craig and Phillips do agree on one point: the case is not a personal conflict:

  • 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." 6

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Image of a wedding cake for a lesbian couple unrelated to the Colorado case. Downloaded from Pixabay. Status: CC0 Public Domain.
  2. "24-34-601. Discrimination in places of public accommodation - definition," Colorado, at: http://www.lpdirect.net/
  3. Adam Liptak, "Justices to Hear Case on Religious Objections to Same-Sex Marriage," New York Times, 2017-JUN-26, at: https://www.nytimes.com/
  4. 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/
  5. "Questions that Jack Phillips should have been asked," The Slowly Boiled Frog, 2017-JUL-11, at: http://www.slowlyboiledfrog.com/
  6. Robert Barnes, "The spurned couple, the baker and the long wait for the Supreme Court," Washington Post, 2017-AUG-13, at: https://www.washingtonpost.com/

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Copyright Ontario Consultants on Religious Tolerance
Author: B.A. Robinson
Latest update: 2018-JUN-07

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