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.
Here are some of the arguments from ADJ Spencer’s ruling as to why “religious freedom” did not justify Phillips’ violation of Colorado’s nondiscrimination law protecting sexual orientation:
It Doesn’t Matter If The Bakery Otherwise Serves Gay People
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. The ALJ rejects Respondents’ argument as a distinction without a difference.
The salient feature distinguishing same-sex weddings from heterosexual ones is the sexual orientation of its participants. Only same-sex couples engage in same-sex weddings. Therefore, 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.
This Case Has Nothing To Do With Whether Same-Sex Marriage Is Legal
Conservatives often argue that cases like these that allegedly impose on “religious liberty” are the consequence of marriage equality passing, but Colorado doesn’t have marriage equality. The judge notes that this actually proves that the discrimination is based on the couple’s identity:
Nor is the ALJ persuaded by Respondents’ argument that they should be compelled to recognize same-sex marriages because Colorado does not do so. Although Respondents are correct that Colorado does not recognize same-sex marriage, that fact does not excuse discrimination based upon sexual orientation. At oral argument, Respondents candidly acknowledged that they would also refuse to provide a cake to a same-sex couple for a commitment ceremony or a civil union, neither of which is forbidden by Colorado law. 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.
Cakes Do Not Constitute “Speech”
Though the judge was sympathetic that cakes require artistry, he dismissed the idea that they constituted speech. In this case, the bakery refused to provide the cake before the couple could even specify what would or would not be on the cake, thus there is not even any speech to consider:
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.
The undisputed evidence is that Phillips categorically refused to prepare a cake for Complainants’ same-sex wedding before there was any discussion about what the cake would look like. Phillips was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage. After being refused, Complainants immediately left the shop. For all Phillips knew at the time, Complainants might have wanted a nondescript cake that would have been suitable for consumption at any wedding. Therefore, Respondents’ claim that they refused to provide a cake because it would convey a message supporting same-sex marriage is specious. The act of preparing a cake is simply not “speech” warranting First Amendment protection.
In a footnote, the judge notes that the couple did eventually obtain a cake that had “a filling with rainbow colors,” but expressed doubt that it would have justified Phillips’ “categorical refusal” to bake a cake for them.
The Act Of Selling Cakes Also Does Not Constitute “Speech”
Regardless of what the cake itself might communicate or not, the act of selling cakes is also not a form of speech; thus, forcing a bakery to sell to a same-sex couple is not compelled speech:
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.
Spencer went on to dismiss other offensive hypothetical situations, noting that they don’t apply since a cake was refused based on identity, not on content:
Respondents argue that if they are compelled to make a cake for a same-sex wedding, then a black baker could not refuse to make a cake bearing a white-supremacist message for a member of the Aryan Nation; and an Islamic baker could not refuse to make a cake denigrating the Koran for the Westboro Baptist Church. However, neither of these fanciful hypothetical situations proves Respondents’ point. In both cases, it is the explicit, unmistakable, offensive message that the bakers are asked to put on the cake that gives rise to the bakers’ free speech right to refuse. That, however, is not the case here, where Respodnents refused to bake any cake for Complainants regardless of what was written on it or what it looked like. Respondents have no free speech right to refuse because they were only asked to bake a cake, not make a speech.
Baking Cakes Is Not Religious Conduct
Though Phillips objected to providing the cake on religious grounds, the ALJ pointed out that baking a cake is not actually conduct that is part of his religion. Thus, it does not qualify for exemption from regulation:
Respondents’ refusal to provide a cake for Complainants’ same-sex wedding is distinctly the type of conduct that the Supreme Court has repeatedly found subject to legitimate regulation. Such discrimination is against the law; it adversely affects the rights of Complainants to be free from discrimination in the marketplace; and the impact upon Respondents is incidental to the state’s legitimate regulation of commercial activity. Respondents therefore have no valid claim that barring them from discriminating against same-sex customers violates their right to free exercise of religion. 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.
This case could have implications for similar cases playing out in other states, such as another bakery in Oregon, a florist in Washington, and a photographer in New Mexico, whose case has now been appealed to the U.S. Supreme Court.