Posted by: JanF | December 8, 2013

Baking a cake is NOT “protected speech” …

… nor is being required to sell a cake to same-sex couples (or their friends and family) “trampling” a baker’s religious freedom.

During my morning news reading, I came across this story in ThinkProgress reporting on a Colorado judge’s ruling against the baker who refused to bake a cake for a same-sex couple.

Colorado Judge: Bakery That Refused Wedding Cake To Same-Sex Couple Broke The Law

In July of 2012, the Masterpiece Cakeshop in Colorado refused to sell a wedding cake to a same-sex couple who were planning to celebrate with friends and family the marriage they had received in Massachusetts. The couple, Dave Mullins and Charlie Craig, filed a complaint, and the Colorado Attorney General proceeded to do the same, and Friday, Administrative Law Judge (ALJ) Robert Spencer ruled against Jack Phillips, the owner of the bakery.

The complaint had been filed on behalf of the couple by the ACLU who had this to say about the ruling:

“Masterpiece Cakeshop has willfully and repeatedly considered itself above the law when it comes to discriminating against customers, and the state has rightly determined otherwise,” said Sara R. Neel, staff attorney with the ACLU of Colorado. “It’s important for all Coloradans to be treated fairly by every business that is open to the public – that’s good for business and good for the community.”

The ThinkProgress article included quotes from the judge (PDF)) that highlighted some of the “flaws” in the cake shop’s “reasoning”. What struck me was that the cake shop owner was actually making these claims, apparently with the expectation that the constitution protected him from “things which made him uncomfortable”.

Here is some of what was thrown up against the wall to see if it would stick and the judge’s rebuttal:

One of the bakery’s arguments was that it still served gay clients — the owner only objected to a wedding cake that would celebrate a same-sex marriage. Spencer argued that since only gay couples would participate in same-sex marriage, it’s a “distinction without a difference”:

Respondents deny that they hold any animus toward homosexuals or gay couples, and would willingly provide other types of baked goods to Complainants or any other gay customer. On the other hand, Respondents would refuse to provide a wedding cake to a heterosexual customer if it was for a same-sex wedding.

… it makes little sense to argue that refusal to provide a cake to a same-sex couple for use at their wedding is not “because of” their sexual orientation.

The cake shop owner further claimed that baking the cake would have compelled him to recognize same-sex marriage, something that is illegal in Colorado. However, during the oral arguments, apparently he admitted that he would not sell a cake for a “commitment ceremony or civil union” neither of which was illegal. Ooops!!

From the judge:

Because Respondents’ objection goes beyond just the act of “marriage,” and extends to any union of a same-sex couple, it is apparent that Respondents’ real objection is to the couple’s sexual orientation and not simply their marriage.

Next up: creating a cake is “free speech”!!

The judge suggests otherwise :

The ALJ, however, rejects Respondents’ argument that preparing a wedding cake is necessarily a medium of expression amounting to protected “speech,” or that compelling Respondents to treat same-sex and heterosexual couples equally is the equivalent of forcing Respondents to adhere to “an ideological point of view.” There is no doubt that decorating a wedding cake involves considerable skill and artistry. However, the finished product does not necessarily qualify as “speech,” as would saluting a flag, marching in a parade, or displaying a motto.

What’s left? Religion!! “They are trampling on my religious freedoms”, which apparently now includes the right to refuse to obey any laws if you don’t like them .

Er, no:

Conceptually, Respondents’ refusal to serve a same-sex couple due to religious objection to same-sex weddings is no different from refusing to serve a biracial couple because of religious objection to biracial marriage. However, that argument was struck down long ago in Bob Jones Univ. v. United States.

Thank you, Administrative Law Judge Robert Spencer! As the right-wing’s perversion of the first amendment continues unabated, it is good to know that there are still judges who understand this (from the judge’s ruling):

Compelling a bakery that sells wedding cakes to heterosexual couples to also sell wedding cakes to same-sex couples is incidental to the state’s right to prohibit discrimination on the basis of sexual orientation, and is not the same as forcing a person to pledge allegiance to the government or to display a motto with which they disagree. To say otherwise trivializes the right to free speech.

I am sure that some organization (“Colorado Citizens Against Reading The First Amendment Properly” … or maybe “Colorado Citizens Against Reading”?) will file an appeal to take this to the next level.

Let’s hope that there are more judges who, like Judge Spencer, refuse to trivialize the right to free speech.


Categories