Colorado Baker Won't Make a Wedding Cake
for Gays. Golden Rule. Justice Dept. favors
baker's religious freedom to discriminate.
2017-DEC: U.S. Supreme Court hearing.

Part 3 of six parts.

marriage 1

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This topic is continued here from the previous essay

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Few media outlets seem to discuss the Golden Rule when covering cases similar to the Masterpiece Cakeshop's refusal:

The Golden Rule -- formally called the Ethic of Reciprocity -- is a core belief of Christianity as well as all other main religions. It basically says that a person should treat others as she or he would wish to be treated by others.

The Christian Scriptures (New Testament) contain two quotations attributed to Jesus of Nazareth, that require obedience by Christians to this rule. They appear to have direct application in this case. From the King James Version of the Bible:

  • Matthew 7:12 states: "Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets."
  • Luke 6:31 states: "And as ye would that men should do to you, do ye also to them likewise."

This website has quotations from more than 20 other world religions and secular ethical systems that also promote the Golden Rule.

Nobody, who is planning a wedding, wants to be refused service when they try to purchase a custom wedding cake for their reception, or to rent a venue, or obtain the services of a professional photographer, etc. Refusing service to customers was common place decades ago when Blacks were frequently refused service, or had to drink out of special public water fountains, or sit at the back of the bus. However, such discrimination was largely abolished in the late 20th century.

The Golden Rule appears to indicate very directly that if the owner of a public accommodation belongs to the Jewish, Christian, Muslim or any other major faith, then they should try to accommodate the wishes of all of their customers and sell then the goods or services that they are requesting. Such a policy would be helpful financially to the store owner, because it would tend to increase company sales and avoid fines. It is also helpful at reducing anxieties among the general public who may wonder if they will be refused service when they approach a store to buy something.

Curiously, the Golden Rule does not seem to be a major factor in media accounts of this type of discrimination by public accommodations. A brief Google search turned up no references in at least the first pages of its results.

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2017-SEP-07: The federal Department of Justice filed a brief supporting Colorado baker's freedom to discriminate:

Entering the epic battle before the U.S. Supreme Court between individual human rights and the religious freedom to discriminate, the federal Department of Justice filed a brief before the Court in favor of the right of individuals' -- including store owners' -- rights to discriminate on the basis of their sincerely held religious beliefs.

The government agreed with the owner of the bakery, Jack Phillips, that his custom cakes are a form of artistic expression, and that he cannot be compelled to use his talents to create something that he opposes on religious grounds. In essence, creating a cake design is a matter of his freedom of speech. In the brief, Acting Solicitor General Jeffrey B. Wall wrote:

"Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights." 2

Actually, he was only asked to bake a cake which the married couple would take to the ceremony; he was not asked to participate in the ceremony itself.

A brief video by the Washington Post discusses the fundamental aspects of the Masterpiece Cakeshop v. Colorado Civil Rights Commission lawsuit:


Steven Petro of the Washington Post interviewed Jim Obergefell, the main plaintiff in the landmark Supreme Court case, Obergefell v. Hodges, which legalized gay marriages in mid-2015:


Louise Melling, the deputy legal counsel of the American Civil Liberties Union, which is representing the plaintiff couple, said that the Trump Administration is trying to create a:

"... constitutional right to discriminate. This Justice Department has already made its hostility to the rights of LGBT people and so many others crystal clear. But this brief was shocking, even for this administration. We are confident that the Supreme Court will rule on the side of equal rights just as the lower courts have." 3

The article in the Washington Post from which the above quote was extracted, averaged over 1,200 written comments each day from readers during the first three days!

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Webmaster's comment before the Supreme Court ruling:

I have confidence that the High Court will issue a ruling with a 5 to 4 vote. This is common among cases involving human rights for the LGBT community. It could go either way. If President Trump is able to replace:

  • one of the Justices on the court who interprets the U.S. Constitution as a living document whose meaning changes with evolving public opinion,
  • a strict constructionist or originalist who interprets the Constitution using the mind-set and belief systems of its authors centuries ago, then

I suspect that Court will adopt the belief that the First Amendment to the Constitution guarantees individuals, like bakers, the religious freedom to freely discriminate against others .

All of the occurrences in recent years of discrimination by store owners of which we are aware have been involved conservative Christian owners and gay or lesbian customers. If this continues, I suspect that some church goers will become increasingly embarrased at the actions of their fellow members. This may cause Christian affiliation by the general population to continue to drop, perhaps even acellerate faster than the current rate of decline of one percentage point per year.

Adam Liptak, writing for the New York Times, discussed Floyd Abrams:

"... the nation’s most prominent First Amendment lawyer. ... He almost always argues in favor of free speech. But he has struggled with the case of a Colorado baker ...

'But the more I thought about it,' Mr. Abrams said, 'the more I thought of other possibilities. Could a painter invite the public to his gallery at which he painted portraits of them for a fee but refused to paint black people? Could a musician invite the world to his studio where he wrote songs about them for a fee but refused to do so for Jews or Muslims? The First Amendment protects a lot, but not that conduct.'

In the end, Mr. Abrams submitted a brief to the Court that supported the gay couple: David Mullins and Charlie Craig. It was one of almost 100 friend-of-the-court briefs filed in the case, an extraordinarily high number. Among the most interesting ones are from deeply committed First Amendment experts who have struggled to find the right balance between protected expression and unlawful discrimination." 4

The texts of the almost 100 friend-of-the-court briefs can be viewed and downloaded from SCOTUSblog. 5

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Other similar cases:

There have been about a dozen cases similar to the "Masterpiece Cakeshop v. Colorado Civil Rights Commission" case discussed in the media. Most involved selling goods or services for gay marriages. However, this was the first case to be accepted by the U.S. Supreme Court. Their ruling was expected to have a profound effect on the scope of religious freedom and legal discrimination in the United States. It was expected to decide whether companies can violate human rights laws and ordinances by discriminating against customers on religious grounds. The key question is whether the First Amendment to the U.S. Constitution guarantees only the freedom of religious belief, speech, assembly, and proselytizing. Or does it also include the religious freedom to violate human rights laws and ordinances, and to discriminate against others.

In essence, the case may determine which part of the U.S. Constitution rules in these cases: the First Amendment that generates religious freedom, or the 14th Amendment that guarantees equal treatment.

The High Court's decision was expected to have a major impact on U.S. culture, and the treatment of people of different races, genders, skin colors, national origins, marital statuses, sexual orientations, gender identities, sexual behaviors, etc.

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2017-DEC: Hearing before the U.S. Supreme Court:

The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, was heard on DEC-05:


Adam Liptak, writing for the New York Times referred to the Masterpiece Cakeshop case as:

"... the latest battleground in the culture wars ... a hard-fought clash between gay rights and claims of religious freedom that was a sort of sequel to the court’s 2015 decision establishing a constitutional right to same-sex marriage. ... some justices worried that a ruling in [the owner's] ... favor would undermine the 2015 decision’s promise of equality. But other justices said that a tolerant society must leave room for good-faith dissent based on religious principles."

That is, a tolerant society should allow discrimination against others if it is based on sincere religious beliefs.

Some Justices questioned whether the making of a cake wound be considered a form of speech, and how the court could differentiate among various business owners producing a variety of goods or services like a jeweler, hairstylist, makeup artist, chef, or wedding dress tailor.

Justice Anthony M. Kennedy has been the deciding vote in two past High Court rulings which passed by a 5 to 4 vote, involving the LGBT community:

  • The 2003 ruling in Lawrence v. Texas that legalized same-sex sexual behavior among consenting adults in private, and

  • The 2015 ruling in Obergefell v. Hodges that legalized gay marriage across the U.S. except for the territory of American Samoa.

The Masterpiece Cakeshop might be a third major case.

Liptak asked whether a baker should be free to post a sign at his businesses saying: "We do not bake cakes for gay weddings."

  • A Trump Administration lawyer said that he should be able to post such a sign as long as the cakes were custom made. This implies that such cakes are works of artistic expression that are thus forms of religious speech in which religious freedom to discriminate is guaranteed.

  • Justice Kennedy appeared concerned and asked: "You would not think that [is] an affront to the gay community?" 6

Later in the hearing, he commented that "

"Tolerance is essential in a free society, and tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’s religious beliefs."

David Cole, the National Legal Director for the American Civil Liberties Union, who was representing the gay couple as plaintiffs, said that the conflict did not involve the couple's speech. He said:

"The only thing the baker knew about these customers was that they were gay. There was no request for a design. There was no request for message. He refused to sell any wedding cake. And that’s identity-based discrimination."

Webmaster's comment:

Actually, Cole is wrong. At the time, the owner of the shop offered to sell the couple any ready-make cake on display in his shop. He refused only the creation of a custom cake for the customers.

At the time of the hearing, demonstrators gathered in front of the Supreme Court building carrying signs reading:

"Free the Cake Baker."

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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 by Zipnon. CC0 Creative Commons, downloaded from
  2. 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:
  3. David G. Savage, "Trump lawyers urge Supreme Court to rule for Colorado cake maker who turned away gay couple," Chicago Tribune, 2017-SEP-10, at:
  4. Adam Liptak., "Where to Draw Line on Free Speech? Wedding Cake Case Vexes Lawyers," New York Times, 2017-NOV-06, at:
  5. "Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission," SCOTUSblog, 2017-DEC-05, at:
  6. David G. Savage, "Supreme Court sounds skeptical of Colorado baker's refusal to make a wedding cake for gay couple," Los Angeles Times, 2017-DEC-05, at:

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

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