- - Monday, December 9, 2013

A Colorado court is making it a crime to refuse to cater to militant homosexual activists. Judge Robert N. Spencer held on Friday that a bakery owner who, citing his Christian religious beliefs, wouldn’t bake a wedding cake for a homosexual couple must “cease and desist from discriminating” or pay fines so large that he’d go out of business.

In this clash of values, the religiously observant are relegated to the back of the legal bus. In Judge Spencer’s view, the First Amendment’s protection of freedom of religion must give way to a state anti-discrimination law, even though the Colorado Constitution clearly states, “Only a union of one man and one woman shall be valid or recognized as marriage in this state.” The plaintiffs, Charlie Craig and David Mullins, were “married” in Massachusetts, where another court declared such unions to be legal. The couple had demanded that Jack Phillips, owner of the Masterpiece Cakeshop in Lakewood, produce a cake for a July 2012 reception in Colorado.

It’s not as though Mr. Phillips was unwilling to serve the groom or the other groom. “I’ll make you birthday cakes, shower cakes, sell you cookies and brownies,” Mr. Phillips told the men. “I just don’t make cakes for same-sex weddings.”

Judge Spencer leaves no room for such discretion. At first blush, “it may seem reasonable that a private business should be able to refuse service to anyone it chooses,” he ruled. “This view, however, fails to take into account the cost to society and the hurt caused to persons who are denied service simply because of who they are.”

The activists here could easily have taken their business elsewhere (rather than to the ACLU), but they wanted to force Mr. Phillips to endorse their conduct, regardless of his deeply held values. Unlike, say, cookies and brownies, a wedding cake is a creative endeavor that communicates a message from the artist, Mr. Phillips‘ Alliance Defending Freedom attorney explains. “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,” ADF lawyer Nicolle Martin said on a Denver talk-radio show, “that is forced speech.”

The owners of a photography service in New Mexico find themselves caught in similar legal pincers for having refused to photograph a lesbian couple’s commitment ceremony. The state Supreme Court’s ruling in August in favor of the lesbians was equally dismissive of the photographers’ rights and heedless of the state’s refusal to recognize homosexual marriage.

Jonathan and Elaine Huguenin, owners of Elane Photography, “are free to … pray to the God of their choice,” Justice Richard Bosson wrote in a concurring and condescending opinion, ” … but there is a price, one that we all have to pay somewhere in our civic life.” In order to “accommodate the contrasting values of others,” he added, that price is “the price of citizenship” — the First Amendment notwithstanding.

The Huguenins, also represented by the Alliance Defending Freedom, last month petitioned the U.S. Supreme Court to hear their appeal and to reverse the New Mexico court. Mr. Phillips will no doubt be watching that case as his own appeal proceeds. As these cases make their way through the judicial system, the U.S. Supreme Court must step up and remind the proselytizing secularists of the primacy of the free exercise of religion set forth in the First Amendment.