Cakes, Discrimination, and First Amendment Rights

Cakes, Discrimination, and First Amendment Rights

“Baker, baker baking a cake make me a day … Maybe we could change his mind …There must be something here …”

Tori Amos (“Baker baker”)

 

The United States Supreme Court in a 7 to 2 decision reversed a penalty imposed on a baker who refused to make a cake for a same sex marriage.  Though he offered to sell them anything already in his store, the Colorado baker refused, based on his faith, to custom-make a wedding cake for a same-sex couple.  The baker argued that he is an artist and his cakes are art, and should not be compelled to create a cake in contradiction of his religious views.  The couple argued that same sex-couples are entitled to equal treatment, and Colorado authorities agreed.

The Court’s ruling was narrow and specific to the facts of the case.  The Supreme Court did not resolve the clash between the baker’s First Amendment claims of freedom of speech and conscience and the anti-discrimination claims presented by the couple.  However, the Court hinted that the anti-discrimination principles may provide a basis for compelling people participating in the marketplace to sell to all customers, regardless of their beliefs.  Specifically, Justice Kennedy wrote in the majority opinion:  “These disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”  Justice Kennedy’s statement suggests that in future cases the Court may not uphold religious-based claims of a right to discriminate in the market.

But the ruling turned on a narrower issue: the anti-religious bias of the Colorado Civil Rights Commission, that the Supreme Court found had shown hostility to the baker’s religious views, depriving him of a right to a unbiased tribunal.  The take-away is that any administrative decisions akin to the one in this case should be construed with “neutral and respectful considerations” and without “clear and impermissible hostility [to one’s] religious beliefs,” even if they do overrule those beliefs as a basis for discrimination.

Evelina Gentry

Evelina Gentry

Evelina Gentry is an associate with Brown White & Osborn LLP.She specializes in both federal and state civil litigation with focus on civil rights, bankruptcy, employment law, and First Amendment issues.
Evelina Gentry