The Sweet Cakes by Melissa case, about the refusal of a religious baker to produce a same-sex wedding cake, may go on until it becomes a dispute over a same-sex anniversary cake.
Last month, the Oregon Bureau of Labor and Industry confirmed a ruling by an administrative law judge that the bakery’s proprietors pay $135,000 in damages to the couple; over recent months, crowdfunding efforts on behalf of the bakers raised a record $450,000.
It seems an ideal outcome for a high-profile American legal dispute; both sides get paid. But this is not, of course, the end; the bakers say they will contest the ruling in the Oregon Court of Appeals on grounds of religious freedom. Given judicial pace and process, this cake will still be a long time baking.
But last week, the Colorado Court of Appeals ruled on a case with virtually the same recipe. Writing for a unanimous three-judge panel, Judge Daniel Marc Taubman declared that Masterpiece Cakeshop of Lakewood had violated the Colorado Anti-Discrimination Act by refusing to bake a wedding cake for Charlie Craig and David Mullins, rejecting Masterpiece’s arguments of religious liberty and freedom of expression.
The Colorado case did not include financial damages, but the court ordered Masterpiece to provide same-sex wedding cakes in future, to retrain its staff and to file quarterly reports on its compliance – possibly accompanied by some nice baked goods for the judges.
Taubman agreed with the administrative law judge that refusing to produce a same-sex wedding cake was not a matter pf pastry choice, but of illegal discrimination: “But for their sexual orientation, Craig and Mullins would not have sought to enter into a same-sex marriage, and but for their intent to do so, Masterpiece would not have denied them services.”
He then dismissed what might be called the “cookie defense” in same-sex wedding cake cases: “We reject Masterpiece’s related argument that its willingness to sell birthday cakes, cookies and other non-wedding cake related products to gay and lesbian couples establishes that it did not violate CADA. Masterpiece’s potential compliance with CADA in this respect does not permit it to refuse services to Craig and Mullins that it otherwise offers to the general public.”
In other words, if you’re asked for a wedding cake, you can’t legally offer an éclair. That would be “bake and switch.”
On the freedom of expression issue, “We conclude that the act of designing and selling a wedding cake to all customers free of discrimination does not convey a celebratory message about same-sex weddings likely to be understood by those who view it. We further conclude that, to the extent that the public infers from a Masterpiece wedding cake a message celebrating same-sex marriage, that message is more likely to be attributed to the customer than to Masterpiece.”
So you would consider a same-sex wedding cake to reflect the bakery’s beliefs only if you think the bakery really cares whether Ashley has a happy birthday. Considering how few birthday-cake bakers get invited to birthday parties, that seems implausible.
Because, points out the court, the bakery is a business: “The fact that an entity charges for its goods and services reduces the likelihood that a reasonable observer will believe that it supports the message expressed in its finished product.”
In the Sweet Cakes case, Oregon labor commissioner Brad Avakian last month issued orders on what positions the business could and couldn’t take on same-sex marriage, which the Sweet Cakes proprietors called a violation of their First Amendment rights. On just that issue, the Colorado court ruled that the law “does not prevent Masterpiece from expressing its views on same-sex marriage – including its religious opposition to it – and the bakery remains free to disassociate itself from its customers’ viewpoints. … CADA prohibits Masterpiece from displaying or disseminating a notice saying it will refuse to provide its services based on a customer’s desire to engage in same-sex marriage or indicating that those wishing to engage in same-sex marriage are unwelcome at the bakery.”
A baker – or a florist or a photographer – can explicitly declare his or her opposition to same-sex marriage. What he can’t do is announce that he will refuse to provide a service to someone the law says he has to serve.
That doesn’t seem too tricky a recipe.
The Masterpiece ruling applies, of course, only to Colorado. But Oregon, like about half the states, has its own anti-gay discrimination law.
And despite all the cake mix notices warning that baking may work differently in the Rockies, the recipe may apply here as well.
NOTE: This column appeared in The Oregonian, 8/19/15.