Colorado Baker: Religious Liberty or Bigotry?

Last week, a Colorado Administrative Law Judge found that a Colorado bakery named Masterpiece Cake Shop, owned by Jack Phillips, violated Colorado Public Accommodations Law by refusing to bake them a cake to celebrate their same sex marriage, which took place in Massachusetts. This case, like the case in New Mexico involving Elane Photography, has become the new battleground between proponents of same sex marriage and individuals who are claiming religious liberty should protect them from “endorsing” same sex marriage through their businesses.

Administrative law judge Robert N. Spence found Friday that Jack Phillips of Masterpiece Cakeshop in Denver, Colo. violated the law when he turned away David Mullins, 29, and Charlie Craig, 33, from his shop last year.

In his written decision, Spence ordered that Phillips “cease and desist from discriminating” against gay couples, or face financial penalties, and cited Colorado state law that prohibits businesses from refusing service based on race, sex, marital status or sexual orientation.

“At first blush, it may seem reasonable that a private business should be able to refuse service to anyone it chooses,” Spence wrote. “This view, however, fails to take into account the cost to society and the hurt caused to persons who are denied service simply because of who they are.”

Mullins and Craig married in Massachusetts and had originally gone to Masterpiece in July 2012 because they wanted to a cake for their wedding reception in Colorado. When Phillips refused, the pair went to the American Civil Liberties Union, which filed a complaint with the Colorado Civil Rights Commission (CCRC) on their behalf.

According to the complaint, Phillips told the couple that the store policy was to deny service to customers who wished to order baked goods for a same-sex wedding, based on his religious beliefs.

Phillips told the men, “I’ll make you birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.”

At the outset, let me say that I am not an expert in Colorado law, but I imagine that this decision will be (and should be) appealed to a Court of law, rather than just letting it stay resolved by an ALJ, which is the equivalent of a civil servant and not necessarily a jurist. The opinion is well-written and, without knowing if the ALJ has a legal background, I suggest that much of it was cribbed from the many briefs filed in support of the couple. This is particularly a possibility because the opinion was issued two days after oral argument, on December 6.

These type of cases bring to mind the following important (and difficult) question:

Where is the line between civil liberties and anti-discrimination law drawn?

Many folks will point to the Hobby Lobby line of cases and see the Masterpiece Cake Shop case as another extension of the religious liberty of Hobby Lobby. In fact, to his credit, the ALJ notes that corporations have First Amendment rights (citing the Hobby Lobby case). As Mitt Romney might have said, “corporations owned by religious folks are people, my friend.” This is, of course, true. Corporations are merely voluntary associations of people that organize into a separate legal entity under state law. Individuals still should maintain most–if not all–of their rights. In other words, you should not lose your rights when you incorporate.

Indeed, many on the left, including the Obama Administration, have suggested that once you enter the for-profit sphere, you lose your constitutional rights. This is ridiculous and such an argument should be rejected by the Supreme Court.

An individuals rights are not conditional on that person always acting in his or her individual capacity, or in a non-profit setting.

On the other hand, at the same time, there is genuine concern that under the banner of “religious liberty,” more nefarious folks could discriminate against people based on their race, gender, sexual orientation, or other status. Unfortunately, we cannot simply disregard these possibilities either.

So, where do we stand on this issue? Should a cake baker be prohibited from declining to bake a cake for a same sex wedding reception, based on bona fide religious belief that marriage is only a sacrament and commitment which can be entered into between one man and one woman?

Here are my thoughts on this difficult matter:

1. Freedom of contract and freedom of religion should prevail.

Yes, I do not think that a cake baker should be compelled to enter into a contract which he does not want to. I realize that this can be problematic. However, imagine what the state is requiring these people to do: they are being compelled to perform a service (i.e., to enter into commerce) with another party. This sounds like the Administration’s argument (which failed) with respect to the Individual Mandate of Obamacare: that the government can force an individual to enter into commerce. Justice Roberts, to his (very, very limited) credit, rejected this approach.

A contract should be between two willing parties. This was clearly not the case.

On the flip side, the problems which I see with this approach include “religion” being used to deny services to people based on their personal biases, as opposed to bona fide religious beliefs. Once you get courts involved in determining what is a bona fide religious belief (or religion), it might get messy.

2. Masterpiece Cake Shop’s arguments are intriguing.

An interesting distinction that Masterpiece Cake Shop attempted to draw is that (1) Phillips offered to make different baked goods, but not a wedding cake, for the reception; and (2) Phillips did not discriminate based on the couple’s sexual orientation, but by the fact that the service sought was a wedding cake for a same sex marriage.

Personally, I think that offering other baked goods truly is a “distinction without a difference,” to use an overused legal term. A wedding usually has a wedding cake. To offer cookies as an “acceptable substitute” fails.

At the same time though, I think that the ALJ simply brushed off the argument that Masterpiece Cake Shop’s denial of service was not based on the couples’ orientation, but based on the fact that it was for a same sex wedding. Would this case have turned out differently if the couple asked for a birthday cake instead of a wedding cake? It may have. Masterpiece Cake Shop’s owner said that he would make a birthday cake–but not a wedding cake.

On the other hand, one could argue that it is unreasonable for a couple to engage in “don’t ask, don’t tell” when it comes to baked goods shopping.

Finally, I also think that the ALJ dismissed the argument that baking a cake is not “speech” by relying on a comparison to

    United States v. O’Brien

, 391 U.S. 367, 376 (1968) (“We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea,”). I think that there is a difference between an expressive endeavor such as a wedding cake, and burning one’s draft care (which was the crime which O’Brien was convicted of). This may get some attention from courts in the near future as well.

3. This is 2013, not 1963 (or 1903)

Colorado’s public accommodations law goes back over a century. States passed these laws to ensure that people could get access to services being offered by businesses to the public when such businesses were much more rare than they are today. In 1902, there probably weren’t all that many hotels, barber shops, or restaurants in a given town. In 2013, there are millions of businesses who are competing for our hard earned dollars. Is it better to force a business that is unwilling to perform a certain service for one’s same sex marriage, or to patronize a gay friendly business? Would you really want a business owner to be compelled to make you a cake when he really doesn’t want to? I’d rather have someone who wants to provide the best service for me performing said service.

Perhaps there’s a parallel which can be drawn to the Voting Rights Act. Congress drafted the act to combat the institutional racism of the Democrats in the South during the 1960s so that minorities could vote and their districts are gerrymandered unfairly to minimize their representation in Congress. Congress, however, failed to update the law to reflect the changing times. Indeed, times have changed. Should public accommodations laws also change?

4. Social Media and Viral Posts are game changers.

Personally, I think that a more effective way to convey one’s point of view is through social media. Bringing attention to one’s cause, especially in the age of social media, can be more effective than knee-jerk litigation. A lot of change can be made without litigation and governmental coercion, simply by bringing awareness to a certain issue.

This issue is certainly going to be a hot button one over the next several years. Personally, I see a distinction between making the cake for a same sex wedding and officiating over it. But that is my belief. I would not presume to force my belief on others.

As always, free markets are better markets.