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.