Much ado has been made in the past year about the bakery in Colorado that refused to make a cake for a same-sex couple celebrating their marriage. The baker argued that he exercised his religious freedom in refusing to bake a cake celebrating an act he considered counter to his religious beliefs. This argument makes a mockery of our Constitutional rights by hiding bigotry behind the right to religious freedom.
Here are the salient points:
- The baker argued that he feels no hatred of homosexuals, and would willingly provide other types of baked goods to gay customers. He would refuse to provide a wedding cake to a heterosexual customer if it was for a same-sex wedding. But this argument is a distinction without a difference. The primary 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.
- The baker candidly acknowledged that he 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 state law. Because his objection goes beyond just the act of “marriage,” and extends to any union of a same-sex couple, it is apparent that his real objection is to the couple’s sexual orientation and not simply their marriage.
- The baker argued that preparing a wedding cake is an expression amounting to protected speech, and that compelling him to treat same-sex and heterosexual couples equally is the equivalent of forcing him to adhere to “an ideological point of view.” But the baker categorically refused to prepare the cake before there was any discussion about what the cake would look like. He 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. The mere act of preparing a cake is simply not speech warranting First Amendment protection.
- 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 (which is the law in Colorado). To say otherwise trivializes the right to free speech.
- The baker’s refusal is distinctly the type of discrimination that the Supreme Court has repeatedly found illegal. It adversely affects the rights of buyers to be free from discrimination in the marketplace; and the impact upon sellers is incidental to the state’s legitimate regulation of commercial activity. Conceptually, his 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 — an argument that was struck down long ago in Bob Jones Univ. v. United States.