The Volokh Conspiracy

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Legal for Colorado bakery to refuse to write anti-gay message on cake


Bakery owner Marjorie Silva, inside her Denver store, faced a discrimination complaint with Colorado's Civil Rights Division after she refused to write hateful words about gays on a cake for a customer last year. (Ivan Moreno/AP)

The Colorado Civil Rights Division has held that Azucar Bakery didn't discriminate based on religion when it refused to bake a cake with an anti-homosexuality message, reports the Denver Post (Anthony Cotton). I haven't seen a copy of the decision, but it sounds quite correct, for reasons I gave when the complaint first hit the news—it looks like the bakery discriminated based on the ideological character of the message (something that's not forbidden by state law) and not based on the customer's religion (something that is forbidden by state law) or based on the intended religious use of the cake (something that might be forbidden by state law).

According to ABC 7 News Denver,

[William] Jack went to the bakery … and requested two cakes shaped like bibles. He asked that one cake have the image of two groomsmen holding hands in front of a cross with a red "X" over them. He asked that the cake be decorated with the biblical verses, "God hates sin. Psalm 45:7" and "Homosexuality is a detestable sin. Leviticus 18:2", according to the Civil Rights Divisions' decision.

On the second bible-shaped cake, Jack also requested the image of the two groomsmen with the red "X". He wanted it decorated with the words "God loves sinners" and "While we were yet sinners Christ died for us. Romans 5:8." …

The agency's decision found that the baker did not discriminate against Jack based on his creed. Instead, officials state the evidence shows Silva refused to make the cakes because the customer's requests included "derogatory language and imagery."

And indeed Colorado law bans discrimination only when it 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. (The ban on "creed" discrimination in such laws is simply another way of banning discrimination based on religion, as courts have held.) A store can refuse to sell to someone because he's a Nazi, or a Communist, or against abortion rights, or pro-abortion rights, or pro-gay-rights, or anti-gay-rights. A store can likewise refuse to inscribe cakes with Nazi, Communist, antiabortion, pro-abortion, pro-gay-rights, or anti-gay-rights messages, if it's discriminating based on the ideology of the message, rather than the religion of the buyer.

Here, the agency found—plausibly, I suspect—that the baker was upset by the anti-gay message, and would have objected to it regardless of whether the customer or the message was religious. (I read the "derogatory language and imagery" quote from the agency as descriptive, and not legally necessary; the store would have been equally free to reject messages that it saw as unpatriotic, or supportive of the wrong sports team, or anything else.) No discrimination based on religion, no violation of the law.

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 doesn't even purport to prohibit refusals to write messages on cakes based on the messages' ideology.

For more on the story, see this Washington Post article (Morning Mix, Peter Holley).