Colorado Court Rules Against Wedding Baker’s Religion Claim

WASHINGTON - Aug. 13, 2015 - PRLog -- WASHINGTON, D.C.  (August 13, 2015) - An appellate court has just ruled that a Colorado bakery can be liable under Colorado’s anti-discrimination law for refusing to bake a same-sex wedding cake, despite uncontradicted claims by the baker that to do so would violate his deeply-held religious beliefs.

        But there is a simple way to protect both important interests, even without a Religious Freedom Restoration Act [RFRA}, says a public interest law professor who has won over 100 legal actions fighting illegal discrimination against women, Blacks, Jews, the deaf, and others.

        His novel answer is to simply follow the clear language of the statute, and punish denials of services when they are based upon the status of the requester (e.g., gay, Black, female), but not when the denial is based solely upon the message - in this case the speech embodied in the cake - which the merchant would be required to send.

        Banzhaf notes that religious Christians who do not wish to sell wedding cakes for gay weddings - like religious Jews who do not want to bake swastika-shaped cakes for the KKK - may be able to do so legally by having a uniform business policy which applies equally to all prospective purchasers, regardless of their individual sexual orientation, religious beliefs, etc.

        In states which have laws prohibiting discrimination against people based upon their sexual orientation, it would be illegal for a baker to refuse to sell any kind of cake to a person simply because he is gay, regardless of the type of cake or the message it may convey.

        But, refusing to sell a wedding cake with a same-sex statue or inscription on top to anyone at all, regardless of their sexual orientation, would not violate such a prohibition since nobody is being discriminated against because of their own sexual orientation.

        So, if a baker would refuse to prepare and sell such a cake to a gay person, but would do the same if the request for the same cake came from a best man who is straight, or from the heterosexual mother of one of the celebrants, the letter of the law wouldn't be broken because the refusal is not based upon a protected characteristic, but rather upon the message being sent - the speech the baker is forced to utter.

        Similarly, a Jewish bakery might have a policy against baking a cake in the shape of a swastika, whether it is ordered by a German Nazi sympathizer, a racist fraternity, a Jewish student seeking to "take back" the hated symbol (similar to a recent situation at GWU), a stupid friend who wants it as a joke, etc.

        In each case, there is no discrimination based upon sexual orientation because the baker is treating all prospective purchasers the same, regardless of sexual orientation, gender, religion, etc.

        There is no inherent conflict between religious freedom and a freedom from discrimination, argues Banzhaf.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf