DENVER — The battle over the redefinition of marriage has been carried into the bakery, where allocation of wedding cake has become so contentious that some expect a final resolution at the Supreme Court of the United States.
At issue is whether bakers have a First Amendment right to refuse to make cakes for same-sex couples and/or for those who want them decorated with statements opposing homosexuality on a scriptural basis.
Colorado became the site of the latest skirmish this month after a man filed suit with the Colorado Civil Rights Commission in the state’s second cake conflict in the past year.
His complaint, and another involving a related dispute, has led state Rep. Gordon Klingenschmitt, R-Colorado Springs, to craft legislation protecting bakers, wedding photographers and other service providers from mandates to participate with artistic statements in same-sex “marriages” or other celebrations of homosexuality.
The fracas began after Bill Jack, of Castle Rock, Colo., asked the owner of Denver’s Azucar Bakery to make a Bible-shaped cake with a message opposing homosexuality. Media reports say Jack wanted two men on the cake with an X over the image. A separate cake was to include a biblical verse opposing homosexuality, Klingenschmitt told the Register.
Baker Marjorie Silva refused, instead offering the man blank frosted cakes and supplies to decorate the cakes himself outside of the store. Jack, perhaps in an orchestrated act of provocation, filed a complaint that claims Silva discriminated against him on a basis of his religious beliefs — a form of discrimination he believes Colorado law forbids.
“I believe I was discriminated against by the bakery based on my creed,” said Jack in a prepared statement. “As a result, I filed a complaint with the Colorado Civil Rights Division. Out of respect for the process, I will wait for the director to release his findings before making further comments.”
Jack is a co-founder of Worldview Academy, in Castle Rock, which is described by the organization’s website as a “nondenominational organization dedicated to helping Christians think and live in accord with a biblical worldview.”
Masterpiece Cake Shop
Jack’s case is seen by some legal analysts as the counterbalance to a high-profile case involving Lakewood, Colo., baker Jack Phillips — owner of Masterpiece Cake Shop — who refused to bake a cake for the celebration of two men who said they had recently “married” in another state. At the time they placed their order, same-sex “marriage” was prohibited by the Colorado Constitution.
Though the law remains on the books, a series of federal court rulings have led county officials throughout the state to issue same-sex “marriage” licenses until the Supreme Court of the United States upholds state laws forbidding same-sex “marriages.”
The same-sex couple filed a complaint with the Colorado Civil Rights Division commission against Phillips and Masterpiece Cake Shop. The commission ruled in favor of the couple. Phillips was ordered to bake wedding cakes for all same-sex couples who request them and was forced to “re-educate his staff that Colorado’s Anti-Discrimination Act means that artists must endorse all views.”
The commission ordered Phillips to file quarterly compliance reports for two years, proving he bakes cakes for same-sex couples. Phillips has stopped making wedding cakes while his case awaits a hearing by the Colorado Court of Appeals.
Jeremy Tedesco, senior legal counsel with the Alliance Defending Freedom, an Arizona nonprofit representing Phillips, said his client and the alliance fully support Silva and the Azucar Bakery in refusing to make the anti-homosexual cake.
“This baker is in no different position than our client,” Tedesco told the Register. “She does not want to use her artistic expression in a way that contradicts her convictions, and neither does Jack Phillips. Each is exercising a fundamental right of free speech.”
Former Colorado Attorney General John Suthers, who represented the Civil Rights Division commission in the case against Phillips, disagrees.
Suthers, a practicing Catholic, said the courts are unlikely to accept anti-“gay rights” sentiment as a religious conviction protected by law from discrimination. Therefore, he doesn’t think the complainant who filed against Silva and Azucar Bakery has much of a case.
“There is a law, a Colorado state statute, protecting sexual orientation in accommodation,” explained Suthers, who left office in February and is running for mayor of Colorado Springs. “If she felt the message was hateful, she did not have to put it on the cake.”
Suthers does not believe the case against Phillips mirrors the case against Silva. He said the law prohibits discrimination against homosexual couples who want wedding cakes but does not prohibit discrimination against those who want anti-homosexual messages on cake.
Tedesco respectfully disagrees, saying state and federal laws protect religious expression — which sometimes requires saying “No” to even the most popular and accepted expressions that contradict a person’s moral convictions.
Tedesco says Phillips does not make wedding cakes as if they are commodities. To Phillips, each is a unique creation that makes a statement about holy matrimony. Each is designed only after the cake “artist” spends time getting to know a couple and what the man and woman would like their cake to represent.
“To make a distinction between these two cases is to say only those who have popular beliefs can exercise their First Amendment rights,” Tedesco said. “Only those with the prevailing orthodoxy are protected. I’m as surprised as anyone that Christians have suddenly found themselves with the minority view on sexual morality. But it doesn’t matter. The First Amendment protects minority views.”
Rep. Klingenschmitt’s Bill
Klingenschmitt, a former Navy chaplain and graduate of the U.S. Air Force Academy, was elected in a Colorado Springs district by nearly 70% of the vote in November. He generated international headlines during the campaign by saying state Rep. Jared Polis, D-Colo., who is openly homosexual, “wants to bankrupt Christians who refuse to worship and endorse his sodomy. Next, he’ll join ISIS in beheading Christians, but not just in Syria — right here in America.”
Klingenschmitt later apologized for his comments, made in response to a bill Polis introduced that would force employers to hire homosexuals with no exemption for religious objections.
Klingenschmitt told the Register his new bill would bolster the Colorado Constitution and the First Amendment in empowering Colorado bakers, photographers and other service providers to avoid any forms of artistic expression that violate their religious beliefs. Like Phillips and the Alliance Defending Freedom, Klingenschmitt fully supports Silva in her decision to decline the customer’s order.
Klingenschmitt visited Silva at her bakery to personally express support. Though the two have differing views about the morality of homosexuality, he said they agree about free speech and the First Amendment and have struck up an immediate friendship. Silva did not return a message from the Register seeking comment.
“I believe the Bible, but I also believe the First Amendment and Supreme Court case law protects every person’s right to disagree and not be compelled by government to make statements they don’t agree with,” Klingenschmitt said.
He cites the Colorado Constitution’s Bill of Rights, which says: “No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent.”
“She [Silva] was asked to support a religious conviction against her consent,” Klingenschmitt said. “So the state’s civil-rights statute and the state’s bill of rights are in conflict. The Constitution should trump a state statute.”
Klingenschmitt said the Supreme Court of the United States made clear government’s inability to compel speech with its ruling in Wolley v. Maynard. The 1977 ruling said the New Hampshire state government could not compel drivers to use license plates that conveyed the state’s motto “Live free or die” if it countered their moral convictions.
Colorado’s cake conflicts are similar to a case involving Elane Photography in Albuquerque, N.M. When asked several years ago to photograph a same-sex “marriage,” Elaine and Jonathan Huguenin declined. The same-sex couple sued, claiming the New Mexico Human Rights Act should force the Huguenins to do business with them. The case worked its way to the Arizona Supreme Court, which ruled against the Huguenins in 2013.
In addition, Oregon couple Aaron and Melissa Klein, as owners of Sweet Cakes by Melissa, in Gresham, Ore., refused to bake a cake for a same-sex couple’s “marriage” and also found themselves the subjects of a civil-rights complaint that’s working through the legal system.
Tedesco believes one of several photography or bakery conflicts may ultimately make its way to the Supreme Court of the United States. The outcome will determine the boundaries of religious liberty and free speech in places of public accommodation.
According to Tedesco, these cases are kin to Burwell v. Hobby Lobby, where the Supreme Court upheld the right of closely held for-profit corporations to exempt themselves from laws the owners religiously object to if there is a less restrictive means of furthering the law’s interest. At issue was the mandate under the Affordable Care and Patient Protection Act that forces companies to provide contraceptives to employees.
Said Tedesco, “Any one of these cases squarely raises the question: Do private business owners have the right to run their businesses according to their beliefs? The Supreme Court needs to answer that, just as they did in the Hobby Lobby case.”
Wayne Laugesen writes from Colorado.