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.”Nettie ]