The False Equivalence of Anti-Gay Cakes

The False Equivalence of Anti-Gay Cakes April 7, 2015

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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