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Colo. judge: Bakery owner discriminated against gay couple

- The Washington Times - Friday, December 6, 2013

LAKEWOOD, Colo. | Jack Phillips serves any number of gay customers at the Masterpiece Cakeshop, and he'll sell them just about anything they want: cookies, brownies, birthday cakes, you name it.

But when Charlie Craig and David Mullins asked him in June to make them a wedding cake for their same-sex marriage reception, he declined, citing his religious beliefs. For that, Mr. Phillips may soon be out of business.

State administrative law judge Robert N. Spencer issued a ruling Friday in favor of the gay couple, ordering Mr. Phillips to "cease and desist discriminating against complainants and other same-sex couples by refusing to sell them wedding cakes or any other product [he] would provide to heterosexual couples."

The decision was hailed by gay-rights advocates, including Mr. Mullins, who said that the episode was "offensive and dehumanizing especially in the midst of arranging what should be a joyful family celebration."

"No one should fear being turned away from a public business because of who they are," said Mr. Mullins in a statement posted on the ACLU of Colorado website.

Alliance Defending Freedom attorneys representing Mr. Phillips argue that the ruling misses the point. They say it's not a question of whether Mr. Phillips discriminated against a gay couple, but whether the government can force him to say something he doesn't want to say.

"He can't violate his conscience in order to collect a paycheck," attorney Nicolle Martin told The Associated Press. "If Jack can't make wedding cakes, he can't continue to support his family. And in order to make wedding cakes, Jack must violate his belief system."

Creating a wedding cake isn't the same as baking a cookie: It's a creative endeavor that communicates a message from the artist, like taking a photograph or designing a gown, she said.

"If the service or the product is expressive, if it sends a message, and the government says you have to make it, create it, and carry it for someone else, that is forced speech," Ms. Martin told KNUS-AM talk-show host Peter Boyles.

Ms. Martin also warned that "this is just the first step."

"If they can make Jack speak someone else's message when they want it spoken and where they want it spoken, that is a government that we should all fear," she said.

The judge disagreed, saying, "Respondents have no free speech right to refuse because they were only asked to bake a cake, not make a speech."

Mr. Boyles, who has championed the bakery's cause even though he supports gay marriage, said the case should alarm anyone concerned about government's ability to control expression.

"It's about the government telling you what you're supposed to feel and believe. It doesn't have anything to do with gay or straight," said Mr. Boyles on Thursday's program. "This is about this man's right to say no, and what comes from that. This is what political correctness, authoritarianism is all about."

The judge ruled that the bakery had violated the state's public-accommodations statute, which forbids discrimination based on sexual orientation. Ms. Martin argued that the First Amendment should trump a state law.

"Just because you open a business doesn't mean you set up a First Amendment-free zone," Ms. Martin said. "There's just no law or Supreme Court precedent that says when you engage in a commercial activity, you lose your free-speech rights."

The ADF, which is considering filing an appeal, has a similar case in the pipeline. In August, the New Mexico Supreme Court ruled against Elane Photography, whose owners had refused to take photos at a same-sex commitment ceremony. Their attorneys have asked the U.S. Supreme Court to hear the case.

Neither Colorado nor New Mexico recognizes same-sex marriage. The Colorado men filing the complaint were married in Massachusetts, one of 16 states that, along with the District of Columbia, perform same-sex marriages.

Amanda C. Goad, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project, said that while "religious freedom is important, no one's religious beliefs make it acceptable to break the law by discriminating against prospective customers."

"No one is asking Masterpiece's owner to change his beliefs, but treating gay people differently because of who they are is discrimination plain and simple," she said in a statement.

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