Friday, August 14, 2015

Five important take-aways from the Masterpiece Cakes case

Masterpiece Cakeshop

You probably know that an appellate court found that ADF's Colorado “cake artist,” Jack Phillips and Masterpiece Cakeshop discriminated against a gay couple by refusing to serve them with a wedding cake. Such discrimination was in violation of the Colorado Anti-Discrimination Act. The Court was careful to write a dispassionate opinion but one can sense eyes rolling while thinking “oh please” and “cake artist my ass.” In any event here are what I thought were the five most important findings by the Court.

This matter has two implications. The first is not to discriminate. The second is that Phillips will become the poster child for attempts to pass laws that permit, and even encourage, this kind of discrimination.

1. We have seen this movie before. Somewhat buried in the opinion, the appellate court cites a 1966 decision by US District Court Judge Charles Earl Simons in Newman v. Piggie Park. It's worth noting that Simons was ultimately sustained by the Supreme Court.He wrote:
Undoubtedly defendant Bessinger has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs.
2. Same-sex marriage is inseparable from sexual orientation. The refusal to serve customers wishing to celebrate their same-sex marriage is tantamount to discrimination based upon sexual orientation which is prohibited by Colorado law.
But for their sexual orientation, Craig and Mullins would not have sought to enter into a same-sex marriage, and but for their intent to do so, Masterpiece would not have denied them its services.
3. The fact that they would provide other products to a gay couple is irrelevant:
We reject Masterpiece's related argument that its willingness to sell birthday cakes, cookies, and other non-wedding cake products to gay and lesbian customers establishes that it did not violate CADA. Masterpiece's potential compliance with CADA in this respect does not permit it to refuse services to Craig and Mullins that it otherwise offers to the general public.
4. Putting the customer's message on the cake is not compelled speech which would violate the First Amendment. The Court noted that there would be no confusion that the message on the cake was that of the couple and not that of the baker.

5. This case has no relevance to the state Civil Rights Division findings that Azucar Bakery, Le Bakery Sensual, and Gateaux, Ltd., in Denver did not discriminate against a Christian patron on the basis of his creed when it refused his requests to create two bible-shaped cakes inscribed with derogatory messages about gays, including “Homosexuality is a detestable sin. Leviticus 18:2.”
The Division found that the bakeries did not refuse the patron’s request because of his creed, but rather because of the offensive nature of the requested message. Importantly, there was no evidence that the bakeries based their decisions on the patron’s religion, and evidence had established that all three regularly created cakes with Christian themes. Conversely, Masterpiece admits that its decision to refuse Craig’s and Mullins’ requested wedding cake was because of its opposition to same-sex marriage which, based on Supreme Court precedent, we conclude is tantamount to discrimination on the basis of sexual orientation.
ADF keeps losing these cases. One of them Elane Photography was rejected for consideration by the Supreme Court. It's Christian calculus. ADF raises more money off these high profile cases than it expends to defend them.

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