This Baker Refused To Bake An Anti-Gay Cake. Here’s Why That’s Not Discrimination.

Marjorie Silva, owner of Azucar Bakery CREDIT: AP PHOTO/IVAN MORENO
Marjorie Silva, owner of Azucar Bakery CREDIT: AP PHOTO/IVAN MORENO

The Colorado Civil Rights Division recently ruled that Azucar Bakery in Denver did not engage in illegal discrimination when it refused to make cakes with anti-gay messages on them.

In March of 2014, Marjorie Silva, owner of Azucar, refused to make cakes that included two Bible verses: “God hates sin. Psalm 45:7” and “Homosexuality is a detestable sin. Leviticus 18:2[2].” The cake design was also to include a portrayal of two grooms holding hands in front of a cross with a red “X” over them. The man who made the request, one William Jack, proceeded to file a complaint against her for discriminating against him based on his “creed” as defined by Colorado law.

A decision letter from the Division ruled in Silva’s favor. She did not discriminate against Jack because of his religious identity, but because his request included “derogatory language and imagery.” Her standard against such language is consistent across protected classes. “In the same manner [she] would not accept [an order from] anyone wanting to make a discriminatory cake against Christians, [she] will not make one that discriminates against gays,” the decision reads. “The evidence demonstrates that [Silva] would deny such requests to any customer, regardless of creed.”

As UCLA Law Professor Eugene Volokh predicted, Colorado law protects discrimination against people based on their belonging to certain classes, not based on their ideas and messages.

Consistency is a factor to assessing this, which is why Silva won, but another Colorado baker, Jack Phillips, lost his case when he refused to bake a wedding cake for a same-sex couple. Phillips never even gave the couple a chance to discuss the artistry of the cake; despite selling wedding cakes to different-sex couples, he refused to sell the same product to same-sex couples. Though he argued that his religious beliefs simply forbade him from “participating” in a same-sex wedding, Administrative Law Judge Robert Spencer found that this was just a pretext for anti-gay discrimination. “Only same-sex couples engage in same-sex weddings,” he wrote. “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.”

Phillips is appealing his case, and conservatives seem to reject the distinction between the two. Over the weekend, pundit Michelle Malkin stoked the idea that Silva’s victory reflected a double standard against Christians, which several other pundits seemed to agree with, including Tammy Bruce, who previously chaired the gay conservative group GOProud. Other conservative groups have yet to respond to the outcome, but when Jack first filed his complaint, they positioned themselves in support of Silva, attempting to conflate the legitimacy of her “discrimination” with Phillips’ discrimination.

Jack told ABC7 that he found it “offensive” the Bible verses were considered “discriminatory” or “obscenities,” suggesting that the Bible had been “censored from the public arena.” He plans to appeal.