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.

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