WASHINGTON, D.C. (June 29, 2015) – Now that the U.S. Supreme Court has ruled that all states must permit Same Sex Marriage, some devout business people worry that they will be required to participate by providing either products (e.g., he-and-he wedding cakes) and/or services (e.g., video recording), even if their participation in a same sex marriage event or support for same sex marriage services violates deeply held religions views.
This is especially true in those states where statutes prohibit discrimination in “public accommodations” (which include most businesses) based upon sexual orientation. Some states also have a Religious Freedom Restoration Act [RFRA] which some argue must override anti-discrimination laws to protect basic religious freedoms. In some situations, these two may appear to conflict.
But there is a simple way to protect both important interests, says a public interest law professor who has won over 100 legal actions fighting illegal discrimination against women, blacks, Jews, the deaf, and others. He points to a pair of recent legal decisions which illustrate this principle in action.
same sex marriage and religion solution
His novel answer to same sex marriage and other cases is to simply follow the clear language of the anti-discrimination statutes, and punish denials of services where they are based upon the status of the requester (e.g., gay, female, black), but not when the denial is based solely upon the message – the “speech” for First Amendment purposes – which the merchant would be required to send by his support of the same sex marriage ceremony.
Banzhaf notes that religious Christians who do not wish to sell he-and-he wedding cakes for same sex marriage weddings – like religious Jews who do not want to bake swastika-shaped cakes for the KKK, or Muslims who do not wish to cater weddings at which alcohol will be served (even if requested by the wedding party for religious reasons) – may be able to do so legally by having a uniform business policy which applies equally to all prospective purchasers, regardless of their individual sexual orientation, religious beliefs, etc.
In states which have laws prohibiting discrimination against people based upon their sexual orientation, it would be illegal for a baker to refuse to sell any kind of cake to a person simply because he is gay, regardless of the type of cake or the message it may convey. But refusing to sell a wedding cake with a same-sex statue or inscription on top to anyone at all, regardless of sexual orientation, would not violate the words of the statute since nobody is being discriminated against because of their own sexual orientation.
So, if a baker would refuse to prepare and sell such a cake to a gay person, but would do the same if the request for the same cake came from a best man who is straight, or from the heterosexual mother of one of the celebrants, the letter of the law wouldn’t be broken because the refusal is not based upon a protected characteristic, but rather upon the message being sent – i.e., the speech the baker would be forced to utter.
Not only same sex marriage
Similarly, a Jewish bakery might have 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), a crude friend who wants it as a joke, etc.
In each case, there is no discrimination based upon a protected factor because the baker is treating all prospective purchasers the same, regardless of sexual orientation, gender, religion, etc.
Same sex marriage solution – advantages
One advantage of limiting anti-discrimination statutes to protection against refusals to serve customers based upon the customers’ sexual orientation, but permitting businesses and others not to utter messages (including cake decoration, figurines, etc.) of which they disapprove means the government (either a bureaucrat or a judge) doesn’t have to engage in a subjective balancing act regarding how compelling is the government’s interest, are their other feasible approaches, etc. – a weighing required by RFRA.
It also does not unfairly elevate religious freedom above similar desires not to participate – to “speak” for First Amendment purposes – based upon ethical/moral grounds rather than religious ones.
For example, says Professor Banzhaf, there are many bakers – including those who are agnostics or even atheists – who have very strong objections to what the Nazi swastika stands for, and would refuse as a matter of conscience not to bake such a cake, regardless of who ordered it and for what purpose.
The problem with using religious freedom laws to protect people such as these bakers put into such situations is that it would protect bakers who refuse to make such cakes based upon their own religious beliefs, but not those who do it for simple moral or ethical considerations, he says.
Doing what he recommends – permitting merchants to refuse to provide services based upon the message conveyed by their actions, but not permitting them to deny services solely based upon the characteristics of those requesting the service – would eliminate this unnecessary disparity.
Most people would probably agree that no baker should be required to prepare a cake with a symbol to which he is strongly opposed, for religious or for other ethical or moral reasons. No baker should be forced to bake a cake encouraging (or opposing) abortion (depending on his point of view), supporting or opposing gun control, depicting sexual activity or witchcraft, etc. against their wishes.
same sex marriage case in point
This simple distinction is illustrated by two recent decisions involving bakeries. Last year, the Colorado Civil Rights Division ruled that a cake shop could not refuse to make a wedding cake for a same sex marriage, calling it discriminatory, because its refusal was based upon the sexual orientation of the customers.
However, when a Christian ordered cakes with writing which Denver’s Azucar Bakery considered derogatory towards gays, its refusal to provide the cake 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 was within his rights to refuse to put a message on cakes which included “derogatory language and imagery,” provided it would do so for all customers.
These two decisions illustrate how such an approach can work in practice. No bakery can refuse to provide services to customers, just because they happen to be Christian, gay, black, female, etc.
However, every bakery is free not to be forced to put statements onto cakes which they find offensive – whether or grounds of religion, or for reasons of ethics, morals, or good taste. No civil rights official or judge has to make any decision about whether the religious motive is sincere, whether the state’s interest is sufficiently compelling, or whether religious views give a business more leeway to refuse service.
To the question of how can the government tell whether the refusal to provide a particular service is based upon the sexual orientation of the customer, or simply the message conveyed by the cake, Banzhaf says the government can use the same technique utilized in traditional civil rights cases.
If a real estate broker refuses to show or sell a house to a black couple, but does the same when confronted with a similarly situated white test couple, the refusal to provide service was not based upon race.
Similarly, if a baker refuses to sell a same-sex wedding cake not only to a gay couple, but also to straight (even test) customers, there is no discrimination based upon sexual orientation
There is no inherent conflict between religious freedom and a freedom from discrimination, argues Banzhaf, if anti-discrimination statutes are simply interpreted this way.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
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