Supreme Court justices were reportedly split in arguments this morning concerning the religious baker case.
However, the Court, rather than ruling in favor of religious liberty, or alternatively in favor of gay rights, might reach a compromise result similar to the recent ones in Kentucky and in Colorado which balanced the two apparently competing interests, says public interest law professor John Banzhaf.
The Kentucky court recently struck an interesting balance between the free speech and religious freedom rights of businesses which oppose messages based upon their content, and gay people who insist upon being served by a business regardless of their sexual orientation. It follows a legal analysis similar to that originally proposed by Banzhaf, who suggested that anti-discrimination statutes prevent discrimination based upon the characteristics of a potential customer (e.g., being gay), but not upon a refusal to send a message related to that characteristic (e.g., preparing a same-sex wedding cake).
Kentucky’s Court of Appeals held that a t-shirt firm which refused to print t-shirts promoting a gay pride festival did not discriminate against gays, drawing a distinction between refusing to serve customers who are gay, and refusing to print shirts which support gay activities: “the ‘service’ [defendant] HOO offers is the promotion of messages. The ‘conduct’ HOO chose not to promote was pure speech.”
This simple distinction is also illustrated by two decisions involving bakeries. In the first, which the Supreme Court considered this morning, the Colorado Civil Rights Division ruled that a cake shop could not refuse to make a wedding cake for a gay couple, calling it discriminatory, because its refusal was based upon the sexual orientation of the customers. However, when a man ordered cakes with writing a Denver bakery considered derogatory towards gays, its refusal to provide the cakes was upheld because the bakery would refuse to provide a cake with that language to any potential customer – gay or straight, Christian or atheist, etc., and for any purpose. Although the customer claimed that the refusal to provide a cake with this message was “demeaning to his beliefs,” the agency said the owner could refuse to put a message on cakes which included “derogatory language and imagery,” provided it would do so for all customers.
In the Kentucky case, although the business accepts and serves all customers, the messages the company is willing to print are “limited by the moral compass of its owners,” and it refuses “any order that would endorse positions that conflict with the convictions of the ownership.” This is a clear and simple distinction between the customer and the message he wishes to send. To refuse to sell any t-shirt to a person simply because he is gay would violate the statute, whereas refusing to print a t-shirt which promote a gay lifestyle or activities, for anyone regardless of sexual orientation, is not illegal discrimination.
The court noted that agency’s analysis (which it reversed) – which asks whether the message was discriminatory – would lead to “absurd” results: for example, “a man who requests t-shirts stating, ‘I support equal treatment for women,’ could complain of gender discrimination if HOO refused to print the t-shirts because it disagreed with that message.”
Similarly, Banzhaf’s published analysis had suggested that a baker who refused to bake a swastika-shaped cake for a white supremacist group would not be guilty of illegally discriminating on the basis of race if he had 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), an insensitive person who wanted it as a joke, etc.
