King & Greisen, LLP Blog

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Is all this about gay rights? Or is it about religious rights and free speech? Whatever the answer, it is most certainly not about cake.

Over time, our country has embraced the value of a diverse community and individual freedoms. We abolished slavery. We granted the right to vote to all people regardless of color. We granted women the right to vote. We passed the Fourteenth Amendment to guarantee the equal treatment of all our citizens by the government.

Less than a decade ago, the Pew Research Center reported that a majority of Americans opposed gay marriage. Now, a majority support the rights of this community. Simply put, our values as a nation continue to change -- as they should.

As these changes occur, there is conflict. In the Masterpiece Cakeshop case pending before the U.S. Supreme Court, a private business owner is asserting the right to refuse service to a gay couple, arguing that providing wedding-related services to this couple would violate his right to free speech because his religion opposes gay marriage. He argues that his cakes are “art” and thus “creative expressions” entitled to First Amendment protections.

We have debated this issue before. For instance, in 1964, a restaurant owner argued that he should not have to serve a black customer in his restaurant because his religion opposed the intermingling of the races. In that case, the Supreme Court simply called the argument “patently frivolous.” There is little argument now that a person’s religious beliefs cannot be used to justify racial discrimination. But the changing of attitudes didn’t come without a fight. Our country went to war against itself over the question of slavery, and the violence during the fight for civil rights for blacks in our country was marred by horrific violence.

There are many parallels between the violence inflicted during the struggle for racial equality and that is suffered by the LGTBQ community today. We all heard about the college student, Matthew Shepard, who was tortured because he was gay and tied to a rural fence where he was left to die five days later.

Sure, everyone agrees that this type of violence is horrific. But what message is sent if we allow discrimination against the LGTBQ community? Refusing to recognize the civil rights of this community equates with saying that these individuals are simply second-class – legitimizing their degradation and humiliation. We would not tolerate a photographer refusing to provide a family portrait to an interracial couple on the basis of religion. Similarly, a website developer should not be allowed to deny service to an all-women owned business because the photographer’s religion teaches that a woman’s place is in the home. Such services are no doubt “creative expressions.” Yet the country seems to be hesitating about advancing these same protections to the LGTBQ community. Is it because we still harbor the belief that these individuals are making a “choice” about their identity and thus cannot be equated to race and gender equality? But isn’t religion a choice?

I believe the business owner in this case has strong religious convictions that marriage should be only between a man and a woman. We have never derided his belief nor have we doubted its sincerity. But over the years since I first began to represent Charlie and David, the plaintiffs in the case, I have seen the facts of what really happened that day get twisted. And twisted in a way to suggest this case is about “free speech.” I get it. Lawyers do that.

But facts matter. On the day that Charlie and David walked into that bakery and asked for a wedding cake, there was no discussion about what kind of cake the couple wanted. The owner did not offer to sell them other baked goods for their wedding. The record is clear that the owner would not sell this couple anything to celebrate their wedding and had also refused to sell cupcakes to a different same-sex couple for their wedding. In this case, the owner’s position was simply “no” – I won’t serve any of my products to celebrate gay marriage. And then Charlie and David, along with Charlie’s mom, left the store.

Many have asked – why didn’t they just go to another bakery? How big of an inconvenience would that have been for Charlie and David to go someplace else – and why would they want a cake from someone who is opposed to their marriage? Can’t we respect the baker’s rights too?

All fair questions. But is convenience the issue? Does anyone believe that it would have been a big “inconvenience” for Rosa Parks to just move back one row on that bus to make room for the white patrons? George Will, in an editorial in the Washington Post, claimed that Charlie and David were “bullying” the baker and that they acted “abominably” by demanding their rights in this case. Really? Would anyone characterize Rosa Park’s refusal on that bus in the same manner?

Is it “intolerant” or “disrespectful” to business owners to require them to serve people with whom they disagree? In our pluralist society, we often have to sit side by side on “the bus” with people with whom we do not agree. Allowing businesses to have a “No Cakes for Gays” or “No Gays Allowed” policy is simply no different than the “Whites Only” banners that littered American storefronts decades ago.

So this is not about a “cake.” This case is about whether a business owner can refuse to serve people because of who they are – or who they love. Simply put, it is about the right of our citizens to be free from discrimination when they seek services from businesses that are open to the public.

We all know the adage that courage is not the absence of fear, but the ability to push through that fear – and make the right decision. Now is the time for courage in this new frontier of civil rights.

Constitution Center Debate Regarding a Wedding Cak...

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