Magazine article Reason

Battlefield: Cake - the Rapidly Evolving Fight over Gay Marriage, Anti-Discrimination Laws, and Free Speech

Magazine article Reason

Battlefield: Cake - the Rapidly Evolving Fight over Gay Marriage, Anti-Discrimination Laws, and Free Speech

Article excerpt

GAY COUPLES across America are planning their nuptials, ordering wedding invitations, renting out reception halls, choosing color schemes, arguing over seating charts, and deciding how many tiers their wedding cakes should have. Some, though, have encountered a barrier: Not every wedding-focused business is interested in celebrating their love.

The photogenic wedding cake, with its instantly recognizable toppers in the shapes of brides and grooms, has become the go-to symbol for this latest front in the culture war, though florists, photographers, and wedding venues have also turned same-sex couples away and wound up embroiled in legal battles as a result. Some people, often for religious reasons, do not want to provide their wedding services to gay couples and believe doing so is the equivalent of expressing approval for these relationships. They argue that their rights to free speech and practice of their religion would be compromised if ordered to do so.

Long ago, it was commonplace to see signs that declared, "We reserve the right to refuse business to anybody" in retail businesses. But the days when those placards actually meant anything are long gone. States have anti-discrimination laws and public accommodation regulations that tell businesses when they're allowed to turn customers away--or, more accurately, when they are not.

In Colorado, where it is actually against the law to post one of those signs these days, Jack Phillips, the owner of Masterpiece Bakeshop in Lakewood, declined to offer his services to a gay couple due to his religious objections to same-sex marriage. The couple filed a complaint and Colorado's Human Rights Commission declared in 2014 that Phillips violated the state's anti-discrimination policies. Not only was he ordered to change his ways, but the commission demanded he submit quarterly reports to show how he had altered his practices and trained his employees for the next two years to make sure he complied.

In Gresham, Oregon, Sweet Cakes by Melissa declined to prepare a wedding cake for a lesbian couple. Like Phillips, the bakery's owners, Melissa and Aaron Klein, felt that participating in a same-sex wedding would go against their religious beliefs. The Oregon Bureau of Labor and Industries ruled in February that the owners had engaged in discrimination in violation of state law. In April it further recommended the Kleins be fined $135,000 for the emotional damages caused by failing to serve the couple. The owners closed Sweet Cakes at the end of 2013 amid the battle and now operate out of their home. (All this transpired, incidentally, before the state itself started legally recognizing gay marriages.)

In March 2014, a Christian named Bill Jack attempted to flip the script by trying--and failing--to order a cake from a Colorado bakery highlighting his position that homosexuality is a sin. His protest illustrates the tangled interactions between speech, belief, commerce, and anti-discrimination laws.

Helping untangle the mess is Eugene Volokh, a law professor at the University of California, Los Angeles and legal blogger at The Washington Post. Volokh explains that a cake, in and of itself, has not typically been seen by the law as an expression of speech. …

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