The False Equivalence of Anti-Gay Cakes

The Christian right thought they had this brilliant idea. They should show how ridiculous it is to force bakers to make wedding cakes by asking them to make cakes with a vile anti-gay message on them and when they refused, they’d cackle and crow and pretend they’d made a point. Turns out, not so much.

Last week, the Colorado Civil Rights Division ruled that Denver’s Azucar Bakery did not discriminate against William Jack, a Christian from Castle Rock, by refusing to make two cakes with anti-gay messages and imagery that he requested last year.

The dispute began March 13, 2014 when Jack went to the bakery at 1886 S. Broadway and requested two cakes shaped like bibles. He asked that one cake have the image of two groomsmen holding hands in front of a cross with a red “X” over them. He asked that the cake be decorated with the biblical verses, “God hates sin. Psalm 45:7” and “Homosexuality is a detestable sin. Leviticus 18:2”, according to the Civil Rights Divisions’ decision…

Marjorie Silva, the owner of the bakery, told Jack that she would make him the bible-shaped cakes, but would not decorate them with the biblical verses and the image of the groomsmen that he requested. Instead, she offered to provide him with icing and a pastry bag so he could write or draw whatever messages he wished on the cakes.

Silva told the civil rights agency that she also told Jack her bakery “does not discriminate” and “accept[s] all humans.”

Jack told the civil rights agency the bakery treated him unequally and denied him goods or services based on his religious creed, Christianity. He said he found this “demeaning to his beliefs.”…

The agency’s decision found that the baker did not discriminate against Jack based on his creed. Instead, officials state the evidence shows Silva refused to make the cakes because the customer’s requests included “derogatory language and imagery.”

The baker said “in the same manner [she] would not accept [an order from] anyone wanting to make a discriminatory cake against Christians, [she] will not make one that discriminates against gays,” according to the decision.

“The evidence demonstrates that [Silva] would deny such requests to any customer, regardless of creed,” the civil rights agency’s decision stated.

“We were not morally right but also legally right,” Silva told 7NEWS on Saturday. “It’s been a roller coaster. I had so much support and I’m so thankful.”

The decision noted that Silva is Catholic and her six employees include three Catholics and three who are “non-Catholic Christian.” It also stated that Azucar Bakery’s website states that it makes cakes “for every season of the year,” including the Christian holidays of Christmas and Easter. Photographs on the website include cakes decorated with Christian symbols and writing, including cakes with cross decorations and the words “God Bless.” One cake was decorated with “Mi Bautizo,” Spanish for “my baptism.”

This is the first such case to reach the point of getting any kind of legal ruling, but there are a few more than might be headed that way. This outcome was predicted by Eugene Volokh, one of the top First Amendment and religion law experts in the country, who actually supports RFRA laws and is relatively conservative himself. In a blog post a few weeks ago, he explained why the refusal to bake a cake with an anti-gay message on it is not illegal discrimination:

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.”)

Another “brilliant” idea for a gotcha moment foiled.

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What Are Your Thoughts?leave a comment
  • http://artk.typepad.com ArtK

    Hmmmm…. Sounds like a job for the Boy Blunder: James O’Keefe! I’m sure that he could set up a better “sting.”

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

    What? This is an outrage! Everybody knows cake tastes better when it’s covered in the bitter frosting of resentment!

  • John Pieret

    I’m not sure I agree with Volokh’s analysis … at least on a practical level. If a store can discriminate based on someone being pro-gay-rights, then it’s obvious that it could refuse to bake a cake for a SSM. After all, who could be more pro-gay-rights than someone getting gay married? Way too much pretense would be allowed/allowable under such a rule.

  • Doc Bill

    I’m amused to see this “argument” get boiled down to wedding photographers, bakers and florists! They’re the backbone of America, I tell you!

  • themadtapper

    These guys seem completely lost on the difference between refusing to do business with someone because you don’t like what they’re going to do with it once they buy it and refusing to put on a custom message that the seller finds offensive. If a gay couple asked for a wedding cake topped with miniature candy dicks and writing on the side that said “I LOVE DICKS”, it wouldn’t be discrimination to refuse. If they come in and ask for a wedding cake no different from any other, it’s discrimination to refuse to sell it just because the couple is gay. This is not a particularly difficult concept for anyone not drunk on Jesus.

  • eric

    @3: Yeah I forsee problems with Volokh’s position too. Specifically, refusing a customer seems to me quite different from refusing a message, but he seems to be saying that some customers can be refused. IANAL but I would bet he is wrong about that; and if *I* am wrong and he is right, then I would say that we really should change the law so that no customers can be refused based on their ideology.

    Wedding cakes are a far more trivial issue than other scenarios I can think of. We don’t really want to live in Volokh’s world, where a pharmacist can deny medicine because someone is a Democrat or Republican or Libertarian, do we?

  • http://motherwell.livejournal.com/ Raging Bee

    Another “brilliant” idea for a gotcha moment foiled.

    Don’t declare victory yet, Ed, they’re still fumbling about for the best analogy. One of these days they’ll finally learn how to do analogy, and then we’ll all be on the run.

  • http://motherwell.livejournal.com/ Raging Bee

    …Eugene Volokh, one of the top First Amendment and religion law experts in the country, who actually supports RFRA laws…

    That doesn’t exactly describe Volokh as a credible source. RFRA laws are clearly intended to enshrine and establish (some) religions with the ability to avoid compliance with the law.

  • http://motherwell.livejournal.com/ Raging Bee

    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.

    Not sure about the validity of this argument. He seems to be taking two very forms of discrimination, and kinda-sorta-implicitly equating them with the word “likewise.”

  • http://motherwell.livejournal.com/ Raging Bee

    Sorry, I deleted the wrong word — the last sentence should read: “He seems to be taking two different forms of discrimination…”

  • scienceavenger

    it’s discriminating based on the ideology of the message, rather than the religiosity of the buyer.

    This sort of distinction seems completely beyond the abilities of the anti-SSM crowd to grasp. Hell, they are still struggling with the fact that gay is what you are, not what you do. If they can’t get the latter, the former will be forever beyond them.

  • grumpyoldfart

    Has William Jack declared victory yet?

  • loren

    That doesn’t exactly describe Volokh as a credible source. RFRA laws are clearly intended to enshrine and establish (some) religions with the ability to avoid compliance with the law.

    For the record, Volokh himself is an atheist.

  • U Frood

    If the Christian baker got an order for a cake for Chris and Pat, assuming it’s for a lovely couple named Christina and Patrick, and only found out after delivery that it was ACTUALLY Cristina and Patricia, would they feel religiously violated?

  • marcus

    I read the article concerning this finding at WhirledNutsDaily. They were, of course, gnashing their teeth and screaming “discrimination”, ” evil” and “persecution”.

    I couldn’t help but troll a little bit (by pointing out the obvious as presented above), It was delightful!

    @ 14 Oh, I hope so!

  • Pierce R. Butler

    Florida Bakery Says It Got Threats After Refusing To Make Anti-Gay Cake.

    After a former pastor identified a bakery that refused to accept his challenge to make a cake saying “we do not support gay marriage,” the shop reported they had received death threats.

    “We started getting some hundreds of phone calls and making very nasty and negative gestures towards our business, towards us,” said owner Sharon Haller …

    Like the pizza shop, the Florida bakery has collected money from sympathetic people with a GoFundMe page that has taken in about $4,000 at the time of this writing. (The pizza shop, meanwhile, closed in on nearly $1 million on Saturday.)

    Seminole County, for all you Floridaficianados.

  • http://saltycurrent.blogspot.com SC (Salty Current)

    The decision noted that Silva is Catholic and her six employees include three Catholics and three who are “non-Catholic Christian.” It also stated that Azucar Bakery’s website states that it makes cakes “for every season of the year,” including the Christian holidays of Christmas and Easter. Photographs on the website include cakes decorated with Christian symbols and writing, including cakes with cross decorations and the words “God Bless.” One cake was decorated with “Mi Bautizo,” Spanish for “my baptism.”

    So their stunt also served to highlight that they don’t speak for all religious people and that other Christians are kind and nondiscriminatory. Well done!

  • http://motherwell.livejournal.com/ Raging Bee

    For the record, Volokh himself is an atheist.

    For the record, so what? How does that affect the validity of RFRA or whatever rationale he uses to support it?

    The decision noted that Silva is Catholic and her six employees include three Catholics and three who are “non-Catholic Christian.”

    Why does the decision “note” this? That wording kind of implies that a party’s religious affiliation is relevant to the validity of their case.

  • http://saltycurrent.blogspot.com SC (Salty Current)

    Why does the decision “note” this? That wording kind of implies that a party’s religious affiliation is relevant to the validity of their case.

    Hmm. The part that follows – about their making cakes for Christian events – would certainly seem relevant. The part about the owner and all of the employees being Christian might not be legally relevant. But it does in general terms make the plaintiff’s claim sound less plausible (especially given that Catholicism is traditionally anti-gay). Imagine a case brought by an atheist Islamophobe who wanted the cake to, I don’t know, quote some bigoted remark by Pat Condell, and the bakery refused, and it turned out everyone working at the bakery was an atheist. To me, that would make the argument about discrimination against atheists, all else being equal, seem less plausible. But it wouldn’t be the same as evidence of their having regularly made atheist-themed cakes, since it would necessarily involve an assumption about atheists being unlikely (or at least less likely) to discriminate against other atheists that might not hold true in this or any particular case. So I’m not sure if it’s appropriate in a legal decision, but I am glad it’s been mentioned publicly for the reasons I mentioned above.