The Newest Argument For Wedding Cake Discrimination


Wedding cake is back in the news with developments in both the Oregon and Colorado bakery cases involving discrimination on the basis of sexual orientation. In Oregon, judgment has been finalized against Sweet Cakes by Melissa, requiring Aaron and Melissa Klein to pay a $135,000 fine for refusing service to a same-sex couple. Meanwhile, in Colorado, Jack Phillips of Masterpiece Cakeshop, is appealing the ruling against him for refusing to serve a same-sex couple. The Alliance Defending Freedom (ADF) is representing both bakeries.

In the wake of the Supreme Court’s ruling in Obergefell v. Hodges, conservatives are eager to highlight Phillips and the Kleins as evidence that religious freedom is under attack. In fact, they have actually invented a new claim about how these bakers’ “free speech” is under attack and how they’re thus the real victims.


Along with the fine, the Kleins were also ordered to “cease and desist” from advertising that their business discriminates against same-sex couples. Specifically, they are banned from distributing any communication “to the effect that any of the accommodations, advantages, facilities, services or privileges of a place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of sexual orientation.” It’s illegal to discriminate as such in Oregon, so it’s also illegal to promise discrimination, because telling people not to even bother coming in the door is de facto discrimination.

This was interpreted by the Kleins’ advocates as a “gag order,” including the Heritage Foundation’s Daily Signal and the Family Research Council (FRC). As the Kleins wrote on their own Facebook page, “This effectively strips us of all our first amendment rights. According to the state of Oregon we neither have freedom of religion or freedom of speech.”

Promising to violate the cease and desist order — if not effectively violating it — they added, “We will NOT give up this fight, and we will NOT be silenced. We stand for God’s truth, God’s word and freedom for ALL americans. We are here to obey God not man, and we will not conform to this world. If we were to lose everything it would be totally worth it for our Lord who gave his one and only son, Jesus, for us! God will win this fight!”

Both Slate and Media Matters countered the “gag order” narrative, pointing out that the Kleins are free to discuss the decision as much as they want and even disagree with it; what they can’t do is telegraph an intention to continue discriminating in their business.


But conservatives doubled down, with FRC claiming that according to ADF’s reading of the decision, “anything Aaron and Melissa said about their case could be declared an act of ‘discrimination.’” At Heritage, Hans von Spakovsky attempted to distinguish between the Kleins’ commitment to not changing any of their behaviors and any intention to discriminate. He framed their responses to suggest that they were merely talking about their beliefs about same-sex marriage and their intent to continue to ‘stay strong’ and fight this unfair, unjustified financial penalty and “gag order,” arguing it was unfair to conclude that meant they would continue to refuse service to same-sex couples.

There’s an easy test to determine the extent of the cease and desist, which is to break down conservatives’ tactic of conflation. They conflate the selling of goods and services with “participating” in a same-sex wedding, and more importantly, they conflate having a position against same-sex marriage with actively discriminating against a same-sex couple. The Kleins’ right to advocate against same-sex marriage is in no way impacted by the cease and desist so long as they don’t communicate to potential gay customers that they will not be served. If they either stop selling wedding cakes altogether (like Phillips did), or honor a commitment to sell wedding cakes to all couples that order one regardless of their sexual orientation, then their general political advocacy against same-sex marriage would not violate the order.

But of course, conservatives would prefer to capitalize on what they believe is new evidence that these bakers’ freedom of speech and “religious liberty” is on the line. In the same post attacking the Slate and Media Matters rebuttals, FRC pivoted to Phillips’ case, citing ADF’s argument that Colorado’s nondiscrimination ordinance constituted “compelled speech.” During the hearing this week, ACLU attorney Ria Mar, who represents the same-sex couple Phillips discriminated against, argued that the case is actually about requiring vendors to sell the same service — and the same message — that they already sell. “If the bakery makes cakes that say ‘Congratulations Dave and Charlotte,’” she explained, “it must make cakes that say ‘Congratulations Dave and Charlie.’” According to Mar, “Mr. Phillips is free to advocate and teach his beliefs, but when he opens a business that is open to the public, he is not free to use those beliefs to discriminate.”

It’s that distinction — between a position on an issue and a business practice — that conservatives reject as they continue to fight and lose these cases. Now, they are unsuccessfully advocating for two unlawful practices, the right to discriminate and the right to tell people that they will discriminate. At the same time, their claims of persecution aren’t very convincing either. The Kleins face a fine of $135,000 for their violation, but they’ve already raised well over $250,000 online.