Most of us no long bother to differentiate “freedom of speech” from “freedom of expression,” but I think this is an excellent occasion to do so. I inclined to believe that customers should not have the right to force bakers to engage in what ordinary language would define as “speech” that offends them. Thus I’d protect the baker who, while grudgingly conceding the duty to bake a cake for a reception after a same-sex wedding, refused to write the word “Congratulations” on top of it. So for me it’s an easy case that the baker need not write out a repugnant message for the bigot in the Colorado case. But if the bigot introduced himself as a member of one of the egregious Identity sects in Idaho who wanted a cake to consume at the monthly meeting, and did not request that the baker write out the offensive message, then I would have no difficulty saying that the Identity bigot is entitled to the cake and that the baker would be liable under a relevantly worded anti-discrimination law. If, on the other hand, we (extravagantly) view the cake sans wordage as itself protected “expression,” the analysis might become more difficult and we have to start balancing, perhaps. But I see no need to balance anything with regard to an otherwise valid Civil Rights Act that prevents businesses from engaging in discriminatory business practices. As Freud might put, sometimes a cake is just a cake.
sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Will Esser Sent: Wednesday, April 08, 2015 12:31 PM To: religionlaw@lists.ucla.edu Subject: Colorado bakery case - No violation of non-discimination laws for refusal to bake cake with anti-gay message There was a reported story yesterday which begins: "The Colorado Civil Rights Division has ruled that a baker who refused to make cakes with anti-gay messages did not discriminate." https://www.yahoo.com/politics/azucar-bakery-did-not-discriminate-by-refusing-to-115703680320.html It goes on to discuss the following from the ACLU Colorado legal director: "Mark Silverstein, legal director of the ACLU in Colorado, says Jack cited the same legislation, which forbids discrimination based on race, sexual orientation, religion or sex, to rail against Azucar Bakery. “This man tried to claim he also experienced a violation of the public accommodations statute but he was not discriminated against because he’s Christian,” he said in an interview with Yahoo News. “They had a policy that they apply across the board; they are not going to make a cake with such offensive, over-the-top language or images.” Two points: (1) Does anyone have a copy of the actual ruling (by letter or opinion) from the Colorado Civil Rights Division? I did a quick search and could not locate. (2) Part of the recent discussion about the Indiana RFRA has caused me to think hard about the way in which categories are being drawn, for instance what is included within the various categories of protected classes in non-discrimination statutes. For instance, in the Elane Photography case, the court rejected the photographer's argument that she was not discriminating on the basis of sexual orientation but just on the basis of conduct (i.e. she was fine taking pictures of gay customers, but did not want to participate in a wedding ceremony). The NM Supreme Court rejected that distinction and said that the category of discrimination based on sexual orientation included same-sex weddings. In particular the court stated: "The difficulty in distinguishing between status and conduct in the context of sexual orientation discrimination is that people may base their judgment about an individual's sexual orientation on the individual's conduct. To allow discrimination based on conduct so closely correlated with sexual orientation would severely undermine the purpose of the NMHRA." How would that same reasoning apply to the Colorado bakery case? The story describes the particular Colorado message as follows: "In March 2014, Jack asked Silva to make him a Bible-shaped cake with anti-gay messages, such as “Homosexuality is a detestable sin<http://www.thedenverchannel.com/news/local-news/denvers-azucar-bakery-wins-right-to-refuse-to-make-anti-gay-cake>. Leviticus 18:22.” He also wanted the cake to include two men holding hands with a large X over them. She agreed to make the dessert in the shape of a book but declined to include the hateful content." What result is reached if we substitute the word "religion for sexual orientation and apply the same rationale from Elane Photography (i.e. "The difficulty in distinguishing between status and conduct in the context of [religion] is that people may base their judgment about an individual's [religion] on the individual's conduct.")? (Example: I don't discriminate against Jews, just against people who wear yarmulkes. Or I don't discriminate against Catholics, just against people who attend Mass on Sundays). How is a distinction drawn between this ruling and Elane Photography? Does a court have to make a finding regarding how "closely correlated" particular conduct is to a protected class in order to find that they are essentially synonymous? And if so, how would a court even determine "close correlation"? Some of this is just initial thoughts and questions on reading the story. I welcome any thoughts or comments. [Note: For discussion sake, let's put aside the issue of whether the person seeking the cake really wanted the cake or just wanted to force the baker to convey a message which the baker did not want to convey. I don't believe the motivation of the person seeking the public good or service is relevant to the inquiry of whether the non-discrimination law was violated, regardless of which side of the aisle the person seeking the cake sits on.] Will Will Esser Charlotte, North Carolina
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