The Volokh Conspiracy

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Volokh Conspiracy

No, bakeries don't have to take orders for cakes that say 'God Hates Gays'


Several readers have e-mailed me about the Bill Jack / Azucar Bakery incident in Denver (I quote from an article here at The Post, by Abby Ohlheiser):

A Denver bakery has found itself at the center of an LGBT rights controversy. But this isn't about another bakery refusing to fulfill an order for a same-sex wedding. Instead, Azucar Bakery in Denver is the subject of a Colorado civil rights investigation for declining to decorate a cake with an anti-gay message.

A customer, identified as Bill Jack, told reporters this week that he believes Azucar Bakery "discriminated" against him "based on my creed," which is Christian. He filed a complaint with the Colorado Civil Rights Division some time last year, though according to his statement to reporters, Jack isn't commenting on the specifics of the complaint. But the baker in question is.

Jack walked into Azucar Bakery last March and asked for two cakes, both in the shape of Bibles. That wasn't a problem for Marjorie Silva, the bakery's owner. It was what Jack wanted her to write on the cake: Anti-gay phrases including "God hates gays" and an image of two men holding hands, covered in a big, red "X."

But while Jack has succeeded in getting publicity for his cause, he doesn't have a legal leg to stand on. Colorado law bans discrimination by a wide range of businesses, but only when the discrimination is based on "disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry." This means that a store may not specifically refuse to sell cakes to gays, or sell them to (say) Baptists. It may well mean that it may not specifically refuse to sell cakes for use in same-sex marriages, or in Baptist events. It may even mean that it may not specifically refuse to inscribe messages that identify buyers as gay (e.g., "John and Bill's marriage"), or as Baptist (e.g., "Baptist Church Picnic").

But nothing in the law bans discrimination based on ideology more broadly. A store can refuse to sell to someone because he's a Nazi, or a Communist, or pro-life, or pro-choice, or pro-gay-rights, or anti-gay-rights. A store can likewise refuse to inscribe cakes with Nazi, Communist, pro-life, pro-choice, pro-gay-rights, or anti-gay-rights messages, if it's discriminating based on the ideology of the message, rather than the religiosity of the buyer.

Here, there's no reason to think that Azucar Bakery discriminated against Jack because of his religion, or even because of the religiosity of his message (though I don't think discrimination based on religiosity of message is barred by the law in any event). I suspect that if the message had read "Gay is unnatural" or "Gay is disgusting"—with no reference to religion—Azucar would have refused to write that message, too. To win on a religious discrimination claim, Jack would have to prove that he would have been served based on his religion, and he can't do that if the Azucar people credibly testify that they would have rejected such an anti-gay message regardless of whether or not it was religious. (Nor can Jack argue that this was "creed" discrimination; in such statutes, "creed" simply means "religion.")

I do think there are serious Free Speech Clause problems with some application of public accommodation discrimination laws, such as to wedding photographers; but that is a separate matter. Here, the law simply doesn't even purport to prohibit refusals to write messages on cakes based on the messages' ideology.