Colorado Court Says Baker Can’t Refuse to Make Cakes for Gay Couples (Updated)

UPDATE: Wondering why and how these cake-related disputes keep happening around the country, even after the Supreme Court ruled in favor of gay marriage in the Obergefell v. Hodges case on June 26?

So were we — so we consulted our go-to legal expert, Truthdig columnist Bill Blum, and asked what impact, if any, SCOTUS’ ruling on gay marriage might have on situations like the Colorado cake case. In other words, what’s the relationship between discrimination claims in the realm of business when set against the broader civil rights issues addressed in the Obergefell decision? Here’s what Blum said on Thursday:

Unfortunately, there is still wiggle room here, and the issues have not all been resolved by the Obergefell case. The reason why SCOTUS was able to hold gay-marriage bans unconstitutional was that the bans involved “state action”– action by government — that triggers due process and equal protection rights under the 14th Amendment.

Private discrimination, however, is another matter.

Under federal civil rights statutes, discrimination in places of public accommodation is unlawful on the basis of race, color, religion or national origin — but not with regard to sexual orientation. However, states can enact their own public accommodation laws that protect against private discrimination on the basis of sexual orientation. This is why the New Mexico Supreme Court ruled against Elane Photography — the business that did not want to take photos at a 2006 gay wedding.

The legal picture is also fuzzy because private businesses like the ones featured in the Talking Points Memo post are relying on the federal and state versions of the RFRA to support their decisions to refuse service to gay and lesbian couples. The businesses are also raising First Amendment objections to serving gay and lesbian couples (under a claimed right not to be forced to associate with gays on basis of religious conscience) to the extent to which state statutes like the one in New Mexico compel them.

So, unfortunately, there is still wiggle room, and I don’t see an end to the struggle for LGBT rights ending any time soon.

* * *

Now that gays and lesbians have Supreme Court backing to get married, it’s getting harder for wedding-industry workers like Jack Phillips, owner of the Masterpiece Cakeshop in Denver, to refuse to do business with same-sex couples.

On Thursday, the Colorado Court of Appeals ruled that Phillips couldn’t bow out of baking a wedding cake for a pair of grooms who sought his services three years ago, as The Associated Press reported:

In the Colorado case, Jack Phillips, owner of Masterpiece Cakeshop, declined to make a cake for Charlie Craig and David Mullins in 2012. They were married in Massachusetts but planned to celebrate in Colorado.

After the ruling, Phillips faces fines if he refuses to make wedding cakes for gay couples. Phillips has maintained that he has no problem serving gay people at his store but says that making a wedding cake for a same-sex wedding would violate his Christian beliefs.

His attorneys have said they would consider appealing up to the U.S. Supreme Court. They said there are bound to be more cases where businesses’ religious convictions clash with gay rights.

This isn’t the first time that baked goods have become loaded with socio-cultural significance. This Christian bakery in Oregon recently caught heat for similar reasons, as did this one in Indiana.

Then there was this cake-based controversy that erupted in Florida in April, around the same time that The Washington Post tapped law professor Jonathan Turley to make sense of it all in a dedicated column.

And then there was that time an activist in Ireland took the food fight in a different direction by requesting a cake featuring budding HBO stars Bert and Ernie delivering a pro-gay-marriage message.

Regardless of how all this sorts out, one factor has remained constant: The Marie Antoinette references just won’t quit.

–Posted by Kasia Anderson