Re: Colorado bakery case - No violation of non-discimination laws for refusal to bake cake with anti-gay message
Sandy,
Thanks for your thoughts. Out of curiosity, what would your proposed
protection look like in this case? Stated another way, would it be:
(a) A judicially created exception under the Free Speech clause? or
(b) A legislative exemption built into non-discrimination laws (e.g. No
provider of public goods or services shall be required to engage in any oral or
written speech with which they disagree, and the refusal to engage in such
speech as part of the provision of public goods or services shall not
constitute a violation of applicable non-discrimination laws.)
I'm not familiar with any legislatively enacted speech exceptions to
non-discrimination laws (but perhaps other members of the list are).
Will
Will Esser
Charlotte, North Carolina From: Levinson, Sanford V
slevin...@law.utexas.edu
To: 'Will Esser' willes...@yahoo.com; religionlaw@lists.ucla.edu
religionlaw@lists.ucla.edu
Sent: Wednesday, April 8, 2015 4:09 PM
Subject: RE: Colorado bakery case - No violation of non-discimination laws for
refusal to bake cake with anti-gay message
#yiv4046931561 #yiv4046931561 -- _filtered #yiv4046931561
{font-family:Helvetica;panose-1:2 11 6 4 2 2 2 2 2 4;} _filtered #yiv4046931561
{panose-1:2 4 5 3 5 4 6 3 2 4;} _filtered #yiv4046931561
{font-family:Calibri;panose-1:2 15 5 2 2 2 4 3 2 4;}#yiv4046931561
#yiv4046931561 p.yiv4046931561MsoNormal, #yiv4046931561
li.yiv4046931561MsoNormal, #yiv4046931561 div.yiv4046931561MsoNormal
{margin:0in;margin-bottom:.0001pt;font-size:12.0pt;}#yiv4046931561 a:link,
#yiv4046931561 span.yiv4046931561MsoHyperlink
{color:blue;text-decoration:underline;}#yiv4046931561 a:visited, #yiv4046931561
span.yiv4046931561MsoHyperlinkFollowed
{color:purple;text-decoration:underline;}#yiv4046931561
span.yiv4046931561EmailStyle19 {color:#1F497D;}#yiv4046931561
.yiv4046931561MsoChpDefault {font-size:10.0pt;} _filtered #yiv4046931561
{margin:1.0in 1.0in 1.0in 1.0in;}#yiv4046931561 div.yiv4046931561WordSection1
{}#yiv4046931561 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
Re: Colorado bakery case - No violation of non-discimination laws for refusal to bake cake with anti-gay message
If the state requires you to bake a cake, bake two. Matthew 5:41 It is verses like this that make it hard for me to credit the complicity with evil argument underlying all of these religious objections. But I know the first amendment does not protect actual Christianity because there is no such thing — it protects an individual’s particular take on it. But the first amendment freedom of religion, as long ago as Reynolds v. United States, 98 U.S. 45 (1878) distinguished belief from practice and permitted regulation of practice. Since RFRA was a restoration, the court should not have interpreted it as it did in Hobby Lobby. But that is another story. Steve -- Prof. Steven D. Jamar Assoc. Dir. of International Programs Institute for Intellectual Property and Social Justice http://iipsj.org http://sdjlaw.org “Great people are those who make others feel that they, too, can become great.” Mark Twain ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Colorado bakery case - No violation of non-discimination laws for refusal to bake cake with anti-gay message
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 sinhttp://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
