Colorado judge: Cake baker discriminated against gay couple

‘To excuse all religiously motivated conduct from state control would “permit every citizen to become a law unto himself”‘

Colorado judge: Cake baker discriminated against gay couple

 
DENVER — Administrative Law Judge Robert Spencer ruled today that Lakewood baker Jack Phillips discriminated against a gay couple when he refused to bake them a wedding cake. Phillips’ lawyer told the Colorado Independent on Wednesday that they planned to appeal should the ruling today go against them.

“Longstanding Colorado state law prohibits… businesses to refuse service based on factors such as race, sex, marital status or sexual orientation,” wrote the ACLU, who represented the couple, David Mullins and Charlie Craig. “Earlier this year, the Colorado Civil Rights Division found that Phillips illegally discriminated… and today’s decision affirms that finding.”

Phillips said baking a wedding cake for the couple would go against his Christian faith and violate his rights to religious freedom and free expression. His lawyer, Nicolle Martin, argued that forcing Phillips to bake a cake intended to celebrate gay marriage would be forcing him to speak on a subject on which he’d prefer to remain silent.

Judge Spencer disagreed.

“The act of preparing a cake is simply not ‘speech’ warranting First Amendment protection. Even if Respondents could make a legitimate claim that [the anti-discrimination law] impacts their right to free speech, such impact is plainly incidental to the state’s legitimate regulation of discriminatory conduct and thus permissible.”

He explained that the courts have consistently regulated religious freedom.

“State and federal constitutions guarantee broad protection for the free exercise of religion… The question presented by this case, however, does not involve an effort by the government to regulate what Respondents believe. Rather, it involves the state’s regulation of conduct

“The types of conduct the Unites States Supreme Court has found to be beyond government control typically involve activities fundamental to the individual’s religious belief that do not adversely affect the rights of others… The Supreme Court has held that ‘activities of individuals, even when religiously based, are often subject to regulation by the state in the exercise of their undoubted power to promote the health, safety and general welfare’…

“To excuse all religiously motivated conduct from state control would ‘permit every citizen to become a law unto himself.’”

Rulings in similar cases around the country this past year pitting gay civil rights against the right to religious freedom have largely fallen on the side of the right not to be discriminated against. Private bakeries in Oregon that refused service to gay couples have closed.

“At first blush, it may seem reasonable that a private business should be able to refuse service to anyone it chooses,” Spencer wrote. “This view, however, fails to take into account the cost to society and the hurt caused to persons who are denied service simply because of who they are.”

Spencer added that Colorado has prohibited discrimination by businesses open to the public for more than 100 years and that the most recent incarnation of the law in 2008 includes sexual orientation as a protected class.

Phillips lawyers argued he did not discriminate against the couple’s sexuality. They said he didn’t oppose their being gay; he opposed gay marriage.

It’s the same thing, wrote Spencer.

“The objection to same-sex marriage… is inextricably tied to the sexual orientation of the parties involved.”

Decision Cake Case No CR 2013-0008Decision Cake Case No CR 2013-0008

[ Image via Nettie ]

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About the Author

Shelby Kinney-Lang

Has worked for media nonprofit Free Press and interned at The Nation. He studied at UMass Amherst and at Oxford. He's from Laramie, Wyoming.
skinneylang@coloradoindependent.com | @ShelbKL

16 Comments

  1. JH on said:

    I am not to judge, Matthew 7: 1 &2, however, it is written that homosexuality is against God in the ‘highest order’ and for those who know the Creator of all things, we are to follow Jesus for eternal salvation and also in our daily living as the perfect example…. but we are not to judge as we are not the ones that are offended, it is the one and only living God who is offended, as He alone knows all things. But it is also written that the way is narrow and many will stand before our LORD and claim that they do know Him and He will reply that He does not. In Matthew 7: 32-33 it is written that we confess Christ before all men…. ALL men… so in closing, my own personal opinion on this whole matter is to serve all men… make the cake, however, confess who is Christ, you should have the right to speak your mind to all that enter your shop… whether it is talking about the weather or quoting the living word, which I believe is His breath. Play Christian music, promote Christian art on the walls and have Christian conversations. Do not be mean, do not deny your brother water, but confess the Truth in all things, everyday and do not ever forget the great commission.

  2. Will Morrison on said:

    For the love of God, it’s a freaking CAKE. They aren’t asking you to show up and preside over their wedding, it’s just a blasted cake! Why not just grow up and realize that people do things that you don’t like. SO WHAT???

    This is NOT how you have a society, when did people refuse to accept that? This USED to be county that at least TRIED to get along with each other. Since Reagan, it’s all been nothing but divide and conquer. Everyone does NOT get to decide which laws they deign to be worthy of their following, especially over something that doesn’t affect them one bit. And Christ didn’t say a single word about homosexuality, according to the gospels, so how does one justify hating them for who they are?

    If you want to follow your own laws, then start your own country. In this one, we are SUPPOSED to treat everyone the same. Why do those who proclaim to follow the “prince of peace” insist on destroying it with their hatred? Christ said NOT to hate others, why do you people INSIST on doing so against HIS command?

    Good on this judge. He realizes that we are NOT a country of just white authoritarian Christian claiming haters. We are better than that, IF we want to be. Since Reagan, it’s all been “hate whoever you want”. And THAT, folks, is why this society is going down the toilet. You can’t play divide and conquer on yourself and expect to stay a country. And that is EXACTLY what our “leaders” have been doing for the last generation.

  3. fedup on said:

    Re-call this judge. How dare he think he can mandatorily make a business do what he says. Unbelievable. Hey, gay boys I’m sure there’s a baker in denver who would love to “make your cake”.

  4. Troy on said:

    Power to him. It’s his business, he decides who sell and not to drool to. Just like people should be allowed to put “whites only” or “no shirt no service” or “Christians only” or “Visa/Mastercard accepted” sign on the door.

  5. Blaine DeJong on said:

    Just like these gay people demand equal rights, this business owner has the right to serve whom ever he wishes for whatever reason. It is his Business and it is HIS Constitutional Rights Period!!!

  6. Will Morrison on said:

    Unbelievable. So you people STILL think, even after 50 YEARS of the civil rights act being in place, that it’s acceptable to be nothing but a goddamned bigot in business. Sorry, folks, but “whites only” is ILLEGAL, and so should “straights only”. Good God, what is it about being part of a SOCIETY that you just refuse to accept?

    So you’re all upset that the judge stuck to the law, like we have done for the last 50 freaking YEARS? What a bunch of tea party LOSERS! You don’t want a society, you want the “right” to be a bunch of complete JERKS to the rest of the citizens of the country and feel good about it. NO!

    Sorry, folks, but every one of you is on the WRONG side of this. You want the right to be able to discriminate against people? NOT IN THIS COUNTRY!

    I suggest that you all GROW THE HELL UP and learn that there are thing that YOU do that disgust others, too. Should we all be able to discriminate against YOU because of those things? Or we might not like how you look. Do we all get to ostracize YOU because we don’t like your face? Get over your BS, you might just find that people aren’t as horrible as the republicans keep telling you they are. Until you GROW UP, you are all a bunch of pathetic BIGOTS, nothing more.

  7. Tamphus Messer on said:

    I am a Christian, but putting that aside and looking at this in a different light of our founding fathers.
    I believe, if you own a business, unless it is the only business in the area, that you should be able to turn away any business that you see fit. Hence it is your business, if your practices are not acceptable then you will lose business and have to close. I also believe that no one, let me repeat NO ONE, should be able to make someone go against their morals no matter what their ranking in our society including the president.

  8. Pingback: Colorado judge: Cake baker discriminated against gay couple | Red State Dems Colorado

  9. pat martinez on said:

    What is wrong with freedom? Why should the law compel the cake maker to celebrate in his artistic way something that he is opposed to? Why do the homosexuals want to force him to do so? Why not just be magnanimous and leave him alone? It is horrid. Leave the cake maker alone.

  10. wnkinc on said:

    I Pledge Allegiance to the flag
    of the United States of America
    and to the Republic
    for which it stands,
    one Nation under God,
    indivisible,
    with liberty and justice for all. !!

  11. Rod on said:

    When I first heard a media bit on this, I favored the baker. However, having read the article and the Judges rationale, I now believe the Judge is correct in his ruling.

  12. Godslayer on said:

    Typical Xtian ignoramuses want to have it both ways. They want to have a business open to the public, but then want to claim that their “religion” can restrict which members of the public they have to do business with. The same BS arguments about having the right not to serve blacks were made during the Jim Crow era but the Supreme Court knocked them down. If your business requires you to violate your alleged religious beliefs, then you have no business being in that business. Does a gay baker have the right to refuse to serve fundamentalist Xtian? no. If you are in a business open to the public, then you must be open to the public–even those members of the public you may be bigoted against. It’s the law.

  13. Pingback: Let Them Eat Cake, NOM Marriage News | NOM Blog

  14. Mary Jane on said:

    Throw that judge out – he has made himself above God — he has done wrong in this. This is a free country and no body should have to make a wedding cake for a “same-sex” couple’s “wedding.” Disgusting.

  15. mikep3 on said:

    If I’m a bartender, and your an alcoholic, but I believe in responsible drinking, then I am not going to keep serving you after you have gotten drunk. That’s discrimination of someone with a mental illness because of my own belief system. And, before you tell me one kills and the other doesn’t, check the CDC website. The vast majority of AIDS cases are still being contracted by male-on-male queers.

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