When the Supreme Court takes up marriage equality again this term, one of the questions it will consider is whether the Constitution’s Equal Protection amendment requires that same-sex couples be treated equally under marriage laws. At the heart of this question, however, could be the recognition of sexual orientation as a protected class — a basic acknowledgement that gay, lesbian, and bisexual people exist and have unique experiences as a group in society, including a history of discrimination. Even if the Court recognizes that discrimination on the basis of sexual orientation is always constitutionally suspect, however, anti-gay groups have a backup plan, blurring the lines between religious discrimination and halting anti-gay animus. A topsy-turvy controversy at a bakery in Colorado is demonstrating just why this is such an important question for the advancement of LGBT equality.
As a matter of law, discrimination by the government is different than discrimination by private businesses. Governments must comply with the Constitution’s guarantee that no one is denied “the equal protection of the laws.” Private businesses, by contrast, are not bound by the Constitution — although they are bound by federal or state anti-discrimination laws. Nevertheless, the Colorado bakery case offers a clear window in the line-blurring strategy advanced by the anti-gay right.
Some of the high-profile cases of discrimination against same-sex couples over the past few years have been wedding vendors, like florists, photographers, planners, and bakers, who refuse to have their product associated with a same-sex wedding. Vendors in these high-profile cases have been consistently losing their cases, as their refusals of service have been repeatedly found to be in violation of state and local nondiscrimination ordinances that prohibit discrimination on the basis of sexual orientation. But Bill Jack, a Christian educator associated with a creationist youth ministry, tried to flip the narrative, asking Azucar Bakery in Denver to produce a Bible-shaped cake with the words “God hates gays” and an image of an “X” over two men holding hands. When owner Marjorie Silva refused to write that hateful message, Jack filed a complaint claiming he had experienced discrimination.
The Colorado Department of Regulatory Agencies keeps complaints confidential until they’re investigated, but Jack has told local media that he believes he was “discriminated against by the bakery based on my creed.” But while his complaint seems like some kind of campaign of vengeance on behalf of anti-gay bakeries, conservatives who oppose LGBT protections are actually trying to side with the pro-gay bakery to make their point.
For example, the Alliance Defending Freedom, a conservative legal juggernaut that defends many of these discriminating vendors, sides with Silva. Senior legal counsel Jeremy Tedesco told BuzzFeed, “It was clearly Ms. Silva’s right to decline to promote a message with which she so clearly disagreed… Ms. Silva should not be forced to use her artistic abilities to further a message with which she sincerely disagrees.”
The Family Research Council, an anti-LGBT hate group, also aligned itself with Silva, comparing her to Jack Phillips, a Christian Colorado baker who was penalized for refusing to sell a cake for a same-sex couple’s wedding. “Marjorie was appalled, as most people would be,” FRC’s Tony Perkins wrote. “Like Jack [Phillips], Marjorie is refusing to promote a message she morally opposes. The reality under the First Amendment is this: no small business owner should be coerced by the government to violate their conscience or religious beliefs — whether it’s an abortion coverage mandate or a two-tiered wedding cake.”
But it’s a false conflation to compare Silva’s objection based on the content of the message to the discrimination exercised by those who refused service based on the identity of the customer. UCLA Law Professor Eugene Volokh is certainly skeptical of the impact of LGBT protections on free speech rights, but he explained in the Washington Post that “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.”
Colorado’s nondiscrimination protections do protect “creed,” as Jack alluded to, but Volokh points out that this simply means religion, and Silva did not discriminate against Jack’s religion. In fact, she had no problem selling a Bible-shaped cake; she only refused to produce the hateful message. “Nothing in the law bans discrimination based on ideology more broadly,” Volokh explained. “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.” (Despite her strong case, Silva still has to win it, and she is asking for assistance with her legal fees.)
But that’s the fundamental difference between Silva’s actions and the other vendors’ discrimination. When Jack Phillips refused the cake for the same-sex wedding, the couple never even got as far as talking about what the cake would look like. He refused to make any cake for their wedding because they were a same-sex couple. The same was true of Barronelle Stutzman and her flowers, Melissa Klein and her cakes, and Elaine Huguenin and her photography. Though they all claimed they made a decision inspired by their religious beliefs, which may well be true, they discriminated on the basis of their would-be customers’ sexual orientation — their actual identity. A same-sex couple who marries is simply exercising what a vast majority of federal courts have concluded is the same “fundamental right” to marry that all citizens enjoy, not making some sort of political statement. The Supreme Court might soon make that same determination.
The stunt pulled in a Colorado bakery, combined with efforts to pass laws outright licensing discrimination against the LGBT community, demonstrates conservatives’ commitment to erasing an entire group of people, denying the validity and salience of their innate identities. As a legal matter, it also blurs the lines between real discrimination and the kinds of decisions that all business owners can make about how they conduct their operations.