Same-Sex Marriage & Wedding Cakes
It's really very simple ...
(I must disclose I'm not a Constitutional scholar nor a lawyer, and this is all gleaned from my own research.)
"The Colorado Civil Rights Division has ruled that a baker who refused to make cakes with anti-gay messages did not discriminate." - Yahoo News, 4/6/15
Some people may be shaking their heads on this. How could one baker be guilty of discrimination for refusing to bake a cake for a gay wedding, but this one isn't for not putting an anti-gay message on a cake? It's really pretty simple, when you look at it. There are many differences in these cases.
Let's start with what a protected class is (discrimination can only occur to a protected class). Being gay is a protected class (in quite a few states, including Colorado). Being black is a protected class. Bring a woman is a protected class. Being an anti-gay bigot is not. Thus, no discrimination.
Okay, you don't like that simple reasoning. Try this:
There is a commerce clause in the Constitution. It states, in laymen's terms, that when a business opens to the public, they must serve the public. In the case with the baker refusing to provide a wedding cake, the baker refused to serve the public.
There is an implied contract between a customer and a business once the business has opened and the customer walks through the door. This implied contract means that whatever products or services the business provides, they must provide it to the customer.
(For the rest of this blog, I need to define who the parties are; Azucar Bakery is the one who refused to put an anti-gay message on a cake shaped like a bible; Masterpiece Cakeshop is the bakery that refused to make a cake for a gay wedding.)
Masterpiece is in the business of baking cakes, including wedding cakes. Once a customer (regardless of sex, race, religion, orientation, etc.) walks in the door, Masterpiece must provide that cake. They don't have to write anything on it (see next paragraph) but if they are in the business of providing wedding cakes, they have to provide the service. The only way they can get around it is if they form a co-op or private club where only members can take advantage of Masterpiece's products.
Private members clubs have a right to deny service. They are not serving the public, they are serving their members. (Which is why we still have men-only clubs and white-only clubs - it's true, we do. They are privately-owned and the members have to pay a usually hefty fee to join.)
Azucar is in the business of baking cakes, including bible cakes. But in this instance, she offered to bake the cake, but refused to put the hateful words on it. She is in the business of baking cakes, even bible cakes, but not the business of writing hateful messages on cakes. She did not refuse the product to the customer, thus she fulfilled her duty for being open to the public.
In Azucar's case, think of it this way; you go to a printer to have him/her print off your manuscript on how to be the biggest bigot, Neo-Nazi KKK hater in the world. The printer would print it out, thus providing the service, that is his/her duty for being open to the public. But if you ask the printer to WRITE the manuscript (or even tweak it), they can refuse. That's not their business.
But what about religious freedom you ask? Being a business open to the public trumps religious freedom. Try this on for size:
A Muslim opens a grocery story. A Hasidic Jew comes in, wanting a soda. The Muslim CANNOT force the Jew out onto the street, he has to sell him the soda. The grocery store is open to the public. Religion has to take a back seat.
And it works for everyone. A black person owns the bakery; a KKK member comes in and wants a donut. The KKK member is all tatted up with the most vile depictions of lynchings and name calling of black people. The owner still has to serve the KKK member. (Why a KKK member would go into a black-owned business, I'll never know, but I guess it could happen.)
I hope I've opened your eyes to the issues here. To look at these cases any other way opens up a whole can of worms and will lead to a very slippery slope indeed.