Is Refusal to Write Anti-Gay Cake Message a Violation of Religious Freedom?

Denver, Colorado can feel like an alternate universe for a lot of reasons, but now we can add a new one to the list. Because in the first such case of which I’m aware, a bakery in Denver has been sued for refusing to bake a homophobic cake. According to the reports, the plaintiff in the suit requested that the baker bake him a cake that said “God hates gays” along with a picture of two men holding hands with an X over them. When the baker—who identifies as Christian herself—refused, the plaintiff filed a complaint with the Colorado Civil Rights Division, accusing her of religious discrimination.

It’s a snappy inversion of the now-classic example of bakers who refuse to provide wedding cakes for gay marriage or commitment ceremonies (or florists who refuse to provide flowers, photographers who refuse to photograph the ceremony, etc.). And that’s probably not an accident; if I were a betting woman, I’d bet heavily that a pro-religious-exemption think tank or law firm, like the Becket Fund, had come up with this plan and recruited a plaintiff to set it in motion.

The involvement of the local politicians mentioned in the story is likely strategic as well: Talking Points Memo quotes an “anti-gay” state lawmaker who says he supports the baker’s right to not print messages she finds offensive on her cakes. Now perhaps he’s just a stringent supporter of free speech, but it’s entirely possible that he supports this principle because he knows it’s more likely to come up the other way around, with religious conservatives refusing to provide goods or services associated with practices to which they object (like gay marriage, abortion, contraception, etc.).

So as a piece of political theater and strategy, it’s a clever move. As a legal matter, it’s also an interesting case. The fact that the plaintiff requested actual words on the cake makes it more complicated, because it implicates the baker’s free speech rights. It’s one thing to request that a baker furnish a cake that might be used to celebrate something to which the baker objects—that’s a kind of second-degree complicity argument. But requiring a baker to actually perform a speech act—writing on the cake and selling it—might be more problematic from a free speech point of view.

But what if there was no speech involved, or even no image at all? Just a customer who comes in and says “I want to order a cake to be used at my Church prayer group, where we plan to pray that God will smite anyone in a same-sex marriage or who has had an abortion. We will bless the cake and serve it in celebration of this holy purpose.” That’s a reasonable analogy to the gay couple that requests a cake for their wedding ceremony, I think, for the purposes of separating out identity from action, although it’s an imperfect one given the social and spiritual and legal significant of a marriage. But still, it’s a worthwhile foil for thinking through the argument. So does the fact that I find the prayer service purpose hateful or objectionable, or in conflict with my own principles, change its legal implications?

One argument might be that the baker’s rejection of the cake is not about religion, it’s about a secular value or politics: the baker won’t bake any homophobic cakes, no matter whether a religious person or a secular person asks. This is an interesting argument, one that Professor Caroline Corbin made in a twitter conversation we had about the case.

But if the customer tells the baker they want the (undecorated) cake for religious reasons or a religious event, like the hypothetical Church prayer group in my example above, I’m not sure that the fact that the baker has a political objection to the customer’s religious beliefs means that refusing to bake the cake isn’t arguably religious discrimination.

There’s an ongoing question in other areas of discrimination law, like Title VII’s employment discrimination protections, about whether religious discrimination means discriminating against someone because they are a member of a given religion or because they take or don’t take actions that are aligned with a given religion’s beliefs, and this situation seems to me to implicate that question.

Another interesting thought experiment is to imagine that you have an anti-marriage equality baker who is willing to bake cakes for gay customers in general, even knowing they are gay, but is not willing to bake one for a gay marriage. If that is discrimination on the basis of sexual orientation, then how do we think about a baker who would be willing to bake a cake for religious Christians in general, but just not if it is to be used at an anti-abortion or anti-marriage equality prayer service?

I’m not sure what the answer is here. But one of the things I find really interesting about this example is the way it highlights the blurry boundaries between politics and religious values. In this case the baker herself actually identifies as Christian, so in some sense it’s a conflict between two types of Christianity (the baker might be in better shape if she filed suit for an injunction from a court protecting her from the Colorado administrative process on the grounds that NOT baking a homophobic cake is part of her religious exercise).

But lets say the baker was irreligious. To her, homophobia might be a political or moral issue—but to the customer, it’s (allegedly) a religious one. People generally don’t hold religious and political views that conflict, and when people have political views about topics that religion also highlights, or vice versa, it gets pretty messy to try to distinguish between them.

To me, this is an example of why we need more thinking around the question of dignitary harms and the value of different forms of religious expression. Is a same-sex wedding the same as an anti-same-sex prayer meeting? Should it have the same legal status? The same moral weight? Does rejection of that purpose produce the same kinds of symbolic or dignitary harms? These are hard questions. We should probably have some cake.

  • DKeane123

    I was hoping RD would pick this up.

    My thoughts on this story are still only half-baked (pun intended), but I agree with the initial thought that there might be a false equivalency here. Remove homosexuality from this this story and put in Jew or African-American. Is there a legal difference between not baking a cake to be used in a Jewish wedding ceremony and one that has God Hates Jews with possibly a swastika on it? Seems like there should be a distinction here. Being forced by the government to write something you disagree with seems a bit 1984.

    This reminds a bit of the florist that refused to deliver flowers to Jessica Ahlquist, who sued to remove a prayer banner from her school auditorium. Was the refusal political or religious? Would it have mattered if the order had the card say something derogatory about those that wanted to leave the banner up?

  • Jim Reed

    Maybe religious problems are just impossible to solve.

  • fiona64

    The problem here is that the same public accommodation law applies — but I wholeheartedly concur with the assertion that this was staged. Just sayin’.

  • Jeffrey Samuels

    I do not know the finer distinctions of law, but logically if the pastor who ordered this cake believes that the baker is being discriminatory in not filling his order, then he must also feel the same way about the baker not baking a cake for the gay couple. Conversely, if he feels that the baker who didn’t bake the cake for the gay couple was within her rights, then he must also agree that the baker who didn’t want to write the hate speech was also within her rights, therefore, why is he suing?

    Did that make sense? I had a hard time putting that thought into words.

  • Marian L Shatto

    Several days ago I read an article (not sure where; I really should bookmark more articles when i think I may want to cite them later) that raised two additional points: (a) had the baker complied, she could have been subject to a Colorado law or regulation barring the dissemination of hate speech; and (b) the baker offered to bake and sell to the plaintiff an undecorated cake along with the materials to write on it whatever he wanted, but he declined the offer. If these points are true, then it seems to me that this is clearly more of a free speech issue than a religious freedom issue.

  • cranefly

    1. He was not denied service because of what kind of person he was, but because of what kind of service he wanted. It has never been required, or possible to require of cake bakers that they be willing and able to make absolutely any imaginable cake.

    2. The most coherent supporters of a wedding service provider’s right to deny service to gay couples are usually careful to ground their arguments in concerns over creative license and free expression on the part of artistic service providers, the nature of whose work (e.g. photography) has a quality of representing them personally. In this case, the customer was demanding a particular creative expression in clear violation of that loophole.

    So I can’t see that supporting the baker in this case requires me to rethink anything at all. I support the right of a cake baker to say “I won’t provide that kind of cake.” I do not support the right to say, “I won’t serve that kind of customer.”

  • cranefly

    It makes sense. I got the impression that he was suing out of mean-spirited irony and an ill-conceived “me too” victim complex, but that could be my prejudice talking.

  • Jim Reed

    I think religion won this round. They have proved a rational based society will never be able to satisfy their demands. The best we can do would be to have a series of supreme court cases to decide what limits can be placed on religious hate.

  • cranefly

    Religion only won this round if the courts refuse to employ basic reasoning, but instead see the vague outlines of a “gotcha” challenge and throw their cards in the air.

    You might be right. If so, I blame the student debt industry, which is engaged in a decades-long conspiracy to devalue degrees in the Humanities. We’re doomed without Humanities.

  • golden_valley

    What is the analysis if the baker were asked to write “Congrats on your divorce” on the cake?

  • cgosling

    Freedom of speech works within limited boundaries. Laws define those boundaries. Acts of discrimination are different, and should be made illegal. There should be a distinction between the two.

  • lorasinger

    Why not compare it to things in the past? Supposing Joe goes into a baker shop and asks for a cake that says “God hates Jews”. How do you suppose that would be handled?. Here is roughly the same thing since Jews can mean a race, not a religion, and gays is a group –

  • lorasinger

    I would think that the fact this is hate speech would change that.

  • lorasinger

    There might be a problem if it was a wedding cake.

  • spigott

    You may have seen (as I did) the story at http//www.patheos.com/blogs/friendlyatheist/2015/01/22/christian-files-religious-discrimination-complaint-after-baker-refuses-to-write-god-hates-gays-on-cake, which specified that the baker *did* offer to bake the cake & provide the client with materials to decorate it himself. The baker also said, “But I wouldn’t write an anti-Christian message, either.” Seems to me she provides an excellent model of accomodating the client, despite her objection to his requested language.

  • Marian L Shatto

    Thank you, yes, that must have been the story that I remembered reading. And I agree that her offer was good modeling of accommodating the client to the extent possible. That he refused her offer is good indication, I believe, that it was a planned set-up rather than an honest request.

  • RexTIII

    This Customer Experience was most certainly, and is now known to be a planned exercise, with the well intended goal of creating a perceived ‘reverse’ attack.

    There is nothing about this conversation which is remotely similar to the refusal to bake or create a wedding cake for a marriage a baker finds an offense to his/her religion. The Baker did not refuse to bake this mans cake, with the ‘Bible’ on the Cake – and provide him with the items necessary to write his desired message on the cake. There is no ‘advertising’ of the Baker being willing to write messages on her Baked Cakes and obviously, other than Slogans for Celebrated events with a name or two is about the most which is written.

    She was willing to bake the cake for a Customer who intended to use the cake (supposedly, while not the case at all, there was no event, there was only the ‘setup of the case’), and I can’t imagine anyone refusing to bake a cake for a customer – even knowing the cake was going to be the center piece of the most horrific hate group known to all. Fine – have fun, who cares why or what the cakes for?

    Unwilling to write hateful messages on a cake – whether it be hateful towards any group – religious or non religious – is not a failure to provide equal treatment to any customer. Offering to provide the ‘tools’ to the customer to write their own message, certainly a willingness to ensure the Customer is Served.

  • In this specific case I would think a business could be liable for providing a product that displayed hate speech and could refuse on those grounds.

    Regarding the rest, refusing to be hateful is not equal to being hateful itself.

  • The Court has already decided that misogyny is legally protected so long as it is backed by “sincerely held” irrational personal opinion so long as said opinion involves a deity.

  • I just wish they’d bring back the Critical Thinking (aka formal logic) as a freshmen requirement…

  • Jim Reed

    But when religion is involved there is always the question of if hate is love.

  • Jim Reed

    And corporations are also people who are entitled to irrational personal opinions, as long as those opinions involve economic advantage.

  • Well, sure. Otherwise we’d be Communists. Or something…

  • Yes, the “I’m going this for your own good” argument. A favorite of the Catholic bishops when it comes to women’s health decisions…except they admit it was actually for thier own good (ie a decision maker has an obligation to stop a sinner or the decision maker gets a negative mark on their soul).

  • Just wait until that “economic advantage” is tied to the “greater good” a la eminent domain…me, I figure it’s only a matter of time before Corporate People demand the right to vote. They figure one vote per paid employee or intern ought to just about be right…

  • That’s why in Ohio you can’t be charged with beating your child to death if it was done for religious reasons.

  • Andrea

    So I’m stuck on this: Man asks a bakery to produce a cake that reads, and I quote literally word for word: “God hates gays.”

    That is the message of Fred Phelps and the Westboro Baptist Church cult.

    I’m trying to see how this makes this “plaintiff” anything other than an enormous douchebag. Can’t. Go ahead, cut yourself a figure looking like Fred Phelps. Amazing what a sick dirtbag most Americans think he is. Want to look just like him? Be this “plaintiff.”

    What the equivalence is, is a gay couple coming in and asking for a “Gays hate God” cake. That’s equivalent. And gays are not asking for that. We are saying “we love each other.”

    The level of utter, animal stupidity that is coming out of this discussion shocks me. People who perceive the acceptance of gay marriage and queer people in general as an attack on their religion need to GET OVER IT. If you were being attacked, you’d know it. Trust me.

  • Andrea

    I’d say it’s more of a loudmouth crank issue personally.

    No one’s speech was unfree. Someone other than the plaintiff decided to be a decent, non-jerky human being, and the plaintiff is suing someone for not participating in his being of a humongous jerk.

    I’d like to hope this jackass gets laughed out of court. It’s all he deserves.

  • Andrea

    Again, what was he wanting her to do?

    Write “God hates Gays” on a cake, not for a wedding.

    It’s a spiteful, little, petulant jerk move, that is all.

  • Andrea

    How many angels can dance on the head of a pin?

    Who gives a shit? Nobody’s “free speech” was impinged in any way.

  • fiona64

    Yep. It’s some right-wing whackjob trying to create a problem.

  • Reb_Scott

    I object to the phrase, “since Jews can mean a race, not a religion…” If what you meant to write was, “Jews can mean group, not a religion…” to match up with “…and gays is (sic) a group,” please clarify. Given the astonishing racial diversity of Jews from every corner of the world, Jews cannot and should not be defined as a race. We have never been and never will be a race as we understand that word.

  • lorasinger

    There is the noun “Jew” and the verb “Jew”. Generally the two go hand in hand but a Jew or Hebrew (noun) converted to Christianity becomes a Christian of Jewish or Hebrew extraction, just as an Italian who converts to Judaism becomes a Jew of Italian extraction. Messianic Christians for instance are fundamentalist Christians of Jewish extraction. This is how Outreach Judaism explained it to me.
    .
    Of course, it would be clearer if it was written as you suggest since both, as groups, have had to deal with unacceptable amounts of hate.

  • Reb_Scott

    The verb “Jew”…what does the verb “to Jew” mean?

  • lorasinger

    I know what the SLANG “to Jew” means but that isn’t what I mean. The verb “Jew” to me, as per Outreach Judaism, refers to the practice of the Jewish faith, as in practicing Jew?

    What exactly are you trying to clarify?

  • Sam Oranger

    “hate speech” is protected free speech. So they could not be held liable