About That Bakery Sting in Colorado

Much is being made of an ostensibly clever sting operation by a Christian right operative in Colorado, wherein he went to a bakery and demanded that they make him a cake with a bigoted anti-gay message on it. When the bakery refused, he filed a civil rights complaint in an attempt to turn the tables on the anti-discrimination laws. Eugene Volokh, one of the foremost First Amendment scholars in the country, says he’s wasting his time:

But while Jack has succeeded in getting publicity for his cause, he doesn’t have a legal leg to stand on. Colorado law bans discrimination by a wide range of businesses, but only when the discrimination is based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” This means that a store may not specifically refuse to sell cakes to gays, or sell them to (say) Baptists. It may well mean that it may not specifically refuse to sell cakes for use in same-sex marriages, or in Baptist events. It may even mean that it may not specifically refuse to inscribe messages that identify buyers as gay (e.g., “John and Bill’s marriage”), or as Baptist (e.g., “Baptist Church Picnic”).

But nothing in the law bans discrimination based on ideology more broadly. A store can refuse to sell to someone because he’s a Nazi, or a Communist, or pro-life, or pro-choice, or pro-gay-rights, or anti-gay-rights. A store can likewise refuse to inscribe cakes with Nazi, Communist, pro-life, pro-choice, pro-gay-rights, or anti-gay-rights messages, if it’s discriminating based on the ideology of the message, rather than the religiosity of the buyer.

Here, there’s no reason to think that Azucar Bakery discriminated against Jack because of his religion, or even because of the religiosity of his message (though I don’t think discrimination based on religiosity of message is barred by the law in any event). I suspect that if the message had read “Gay is unnatural” or “Gay is disgusting” — with no reference to religion — Azucar would have refused to write that message, too. To win on a religious discrimination claim, Jack would have to prove that he would have been served based on his religion, and he can’t do that if the Azucar people credibly testify that they would have rejected such an anti-gay message regardless of whether or not it was religious. (Nor can Jack argue that this was “creed” discrimination; in such statutes, “creed” simply means “religion.”)

It should be noted that Volokh has argued that opposite situation, where bakers have refused to provide cakes for same-sex weddings, also potentially violates the First Amendment. He’s hardly a liberal ideologue on this. In fact, he’s pretty conservative.

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  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    About That Bakery Sting in Colorado

    Back when I was a cop, I was in the Bakery Crimes Unit. Lots of stings. No convictions, though, on account of the evidence being delicious.

  • eric

    But nothing in the law bans discrimination based on ideology more broadly. A store can refuse to sell to someone because he’s a Nazi, or a Communist, or pro-life, or pro-choice, or pro-gay-rights, or anti-gay-rights.

    If those things were legal, that would surprise me. It would also upset me if Volokh’s position on legal discrimination is law or becomes law, because it would be trivially simple for someone opposed to SSM to say “hey, I didn’t refuse to bake them a cake because they are gay, I refused because I (almost certainly correctly) inferred they are pro-gay-rights, and I don’t serve pro-gay-rights ideologues.” Volokh’s solution is only going to save the patient by killing them. Congratulations dude, you’ve just taken us a giant step backwards. Now southern stores won’t refuse to serve blacks, they’ll just refuse to serve people they expect believe in civil rights….and if the latter encompasses the former, well, how is that the bigot’s fault?

    I think a much stronger and better civil rights stance is that you don’t have a right to refuse any customer, so long as the request they are asking for is standard. Anyone, literally anyone can order a cake, and you must bake it. The message on the cake might be a legal reason to refuse to write the message on it, but the plain cake itself? No, you can’t refuse to sell that to anyone. Not a nazi. Not a gay couple. Not a religious kook.

    A store can likewise refuse to inscribe cakes with Nazi, Communist, pro-life, pro-choice, pro-gay-rights, or anti-gay-rights messages, if it’s discriminating based on the ideology of the message, rather than the religiosity of the buyer.

    While I agree with that in principle, I frankly think that the store owner here is being disingenuous. I suspect that if someone had come in before the sting and ordered a cake that said “We hate war: bring our sons and daughters home,” she would’ve baked it without a thought and happily written the inscription. Her “I don’t bake hate messages” line is, IMO, a post-hoc invention. But it’ll stand up in court for now. The fundagelical in this case was an idiot, but I suspect more well-designed stings will, in the future, turn over left-leaning store owners who are just as personally selective in what ‘messaging goods’ they provide as the fundies.

  • beergoggles

    IIRC, the bakery did not refuse to bake a cake for the bigot. They said they would bake the bible cake but would not write the message he wanted on it but offered him the needed tools for him to do so himself. They were beyond accommodating. I would have kicked him out of the store for being a bigoted hatemonger.

  • dingojack

    MO (#1) – did those ‘busts’ involve a shit load of doughnuts? I bet it did!

    :) Dingo

  • eric

    @3: you are correct AFAIK. So if the court finds for the owner, I guess in the future we’ll see anti-SSM bakers selling wedding cakes, but the couple will have to put the figurines on top themselves. That’s an annoying bit of spite, but I guess its better than the alternatives.

  • vmanis1

    The bakery should have told the customer that they would be donating the entire proceeds of the sale to the local LGBT community center.

  • Sastra

    But nothing in the law bans discrimination based on ideology more broadly. A store can refuse to sell to someone because he’s a Nazi, or a Communist, or pro-life, or pro-choice, or pro-gay-rights, or anti-gay-rights. A store can likewise refuse to inscribe cakes with Nazi, Communist, pro-life, pro-choice, pro-gay-rights, or anti-gay-rights messages, if it’s discriminating based on the ideology of the message, rather than the religiosity of the buyer.

    This was the reasoning used by 2 local print shops which refused to print my posters for an atheist event. They said that the implied ideological message that “it’s okay to not believe in God” was abhorrent to them as an ideology. One of them even explained that she’d once turned down the Klu Klux Klan for the same reason. She said that very sweetly, too.

  • marcus

    M O @ 1 You know something else we have in Colorado…pot bakeries! And umm.. we used to uh… go in and …

    wait..

    What was I saying? Oh yeah, they were delicious!

  • Jackson

    This means that a store may not specifically refuse to sell cakes to gays, or sell them to (say) Baptists.

    I have to disagree with the legal analysis here. Stores can sell cakes to Baptists without running afoul of the constitution. [/s]

  • Akira MacKenzie

    But nothing in the law bans discrimination based on ideology more broadly.

    Of course, the Bible-Humpers will claim that their ideology IS part of their religion.

  • eric

    @7 – IANAL or judge, but I would side with you on that one so long as the content was just standard informational stuff.

  • wscott

    @ eric #2: I read Volokh “ideology” as referring to the specific message on the cake, not whatever’s going on in the buyer’s head. And yes, the bakery not only offerred to sell him the cake without the message, but went so far as to offer to show him how to write the message himself. But of course he wasn’t interested in that. It’s almost like he wanted the publicity more than he actually wanted the cake…

    @ sastra #7: That’s the problem with the whole concept of “hate speech” IMO. I recognize the need for the legal concept, but it’s very nature makes it highly subjective and dependant onsocial norms. Still…unless your poster specifically said something like “Let’s talk about how theists are all idiots” it’s hard to see how “atheist exist” would qualify legally.

  • paul

    @3: you are correct AFAIK. So if the court finds for the owner, I guess in the future we’ll see anti-SSM bakers selling wedding cakes, but the couple will have to put the figurines on top themselves. That’s an annoying bit of spite, but I guess its better than the alternatives.

    Did the earlier cases of bakeries refusing to sell cakes for same-sex weddings involve refusing to put same-sex specific decorations on the cake, or refusing to sell a cake at all once they found out it was going to be used for a same-sex wedding?

    So far as I can tell, it would be legal for a store to stock a limited selection of toppers.

  • eric

    @13 – the past case was about selling a cake, but its not clear to me whether it was plain or decorated with some SSM message. Doesn’t matter, I wasn’t describing a past case but rather making a prediction: if this baker wins her case using her curent defense, Christian anti-SSM bakers will respond by selling (to gays) basic cakes and spitefully shifting onto the buyers as much of the detail work as they think they can legally shift.

  • Chiroptera

    I think people are missing the point. I don’t think it’s terribly relevant that the baker in this case was willing to bake a “blank” cake and allowing the customer to finish it himself.

    In the case of the SSM wedding cake, local law prohibited discrimination based on sexual orientation. If a baker in that jurisdiction bakes a cake for heterosexual couples but not for same sex couples, that’s discrimination according to the law. If the baker bakes a cake but is unwilling to put two little men on top or two little women on top when she’s willing to put a little man and a little woman on top, she’s discriminating based on sexual orientation because she’s denying to some people the same service she’s willing to perform for others. If she’s willing to bake a cake but won’t write “Congratulations to Bob and Doug” or “Congratulations to Carol and Anne”, even when she’s willing to write “Congratulations to Bob and Carol,” then she’s discriminating based on sexual orientation because she’s denying to some people the same service she’s willing to perform to others.

    The case here is, is this baker in violation of Colorado’s anti-discrimination laws? The baker denied a customer a service; was that denial discrimination based on, say, religion or based on some other prohibited category?

    The exact same legal issues apply if she just flat out refused to bake any cake at all unless and until the customer on his own initiative changed his order. The baker is claiming, I think, that her offer to bake a blank cake is evidence that she’s not discrimination — perhaps bad evidence — not that willingness to bake a cake gets around some technicality in the law.

  • http://www.paulhutch.com/wordpress paulhutch

    A quote from the CRAIG and MULLINS vs. MASTERPIECE CAKESHOP ruling (bottom of page 8 to top of page 9) that seems directly applicable in this case.

    Finally, Respondents argue that if they are compelled to make a cake for a same-sex wedding, then a black baker could not refuse to make a cake bearing a white-supremacist message for a member of the Aryan Nation; and an Islamic baker could not refuse to make a cake denigrating the Koran for the Westboro Baptist Church. However, neither of these fanciful hypothetical situations proves Respondents’ point. In both cases, it is the explicit, unmistakable, offensive message that the bakers are asked to put on the cake that gives rise to the bakers’ free speech right to refuse. That, however, is not the case here,

  • http://www.paulhutch.com/wordpress paulhutch

    Oops forgot to link the actual ruling for anyone who wants to see it: https://www.aclu.org/sites/default/files/assets/initial_decision_case_no._cr_2013-0008.pdf

  • http://artk.typepad.com ArtK

    The question comes down to whether the bigoted message is an essential component of their religious observance. Since you can find bigots of all religious, and non-relgious, stripes, as well as non-bigoted people in same situation, that would be a difficult argument to make.

  • Vicki, duly vaccinated tool of the feminist conspiracy

    As I read Volokh’s post, he’s not talking about what he thinks Colorado law should be, but how he reads the law as it exists. In this case, he thinks both that the bakery shouldn’t have to write that message, and that the law agrees with him and won’t compel them to do so.

    A less contentious analogy: suppose you wanted to keep a moose as a pet. You might ask “am I allowed to keep a pet moose in New York City?” A person can easily look up the answer to that question, and tell you “no you’re not, and what makes you think that’s a good idea?” or “no you’re not, but they should let you!” Someone who said “sure, why not, the climate’s fine” would be doing neither you nor the hypothetical moose a favor.

  • EnlightenmentLiberal

    It should be noted that Volokh has argued that opposite situation, where bakers have refused to provide cakes for same-sex weddings, also potentially violates the First Amendment. He’s hardly a liberal ideologue on this. In fact, he’s pretty conservative.

    I understand the part about cake-message-content based discrimination (I understand, but I’m not entirely sold on the idea). I don’t get this thing about the first amendment. How would that violate the first amendment? Not seeing it.

  • eric

    Chiroptera:

    The baker is claiming, I think, that her offer to bake a blank cake is evidence that she’s not discrimination — perhaps bad evidence — not that willingness to bake a cake gets around some technicality in the law.

    AIUI, this baker is claiming that she would never inscribe a ‘hate’ message of any type on a cake, no matter what the subject of the hate, and so she’s not discriminating against Christian beliefs or anti-SSM messages. Its basically a variant of the profanity exclusion: I won’t write that word on my cakes.

    I don’t buy it. Like I said in @2, I think if someone had previously come up with a request where the word ‘hate’ was used to support some nice liberal cause (‘we hate intolerance,’ or ‘we hate war’), I’m guessing she would have inscribed it. But (a) that’s speculation on my part, and (b) without evidence of that being true, the court will probably take her claim at face value.

    My second point was that Volokh’s reading of the law could lead to illegal discrimination in practice if not in law, because it is trivially easy in most cases to take a hated group or message and turn it into a “discrimination based on ideology,” which he says is currently legal.

  • http://marniemaclean.com MissMarnie

    @eric #21

    I don’t buy it. Like I said in @2, I think if someone had previously come up with a request where the word ‘hate’ was used to support some nice liberal cause (‘we hate intolerance,’ or ‘we hate war’), I’m guessing she would have inscribed it. But (a) that’s speculation on my part, and (b) without evidence of that being true, the court will probably take her claim at face value.

    You seem to be conflating the use of the word “hate” with the concept the baker is calling a “hate message”. Saying “I hate bad things” is not really a hate message in the sense she seems to mean. Nor would “I hate to see you go” on a cake for someone moving to another country. You can’t simply assume that the mere presence of the word “hate” makes a sentence a “hate message”. Obviously, this is a vague term that isn’t in any way legally defined, but I think you are being disingenuous in your interpretation of it.

  • Kermit Sansoo

    MissMarnie: You can’t simply assume that the mere presence of the word “hate” makes a sentence a “hate message”.

    .

    Yes. The difference between “We hate war” and “We hate soldiers.”.