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So… this is apparently happening:
Two legal rivals that duke out religious freedom cases are in unusual positions after a Denver bakery refused to make a cake decorated with the words “God hates gays” and an “X” over two men holding hands.
The case involves Azucar Bakery owner Marjorie Silva, who told KUSA-TV that making such a cake would be “just very discriminatory and hateful.” In response, Bill Jack, a Christian, complained he was the victim of religious discrimination. Colorado officials have since launched a formal investigation.
The case inverts an increasingly common narrative in which Christian business owners have used religious objections as the basis to refuse service to LGBT customers. This turning of the tables also reverses the roles of advocacy groups — for example, one group that typically defends Christians in religious liberty cases is supporting the LGBT-friendly baker.
While I love the irony here — major kudos to whatever lawyer dreamed up this test case — I’m not sure that this is going to work.
First, the content of the two cakes in question may not be equivalent. The defense will almost certainly argue that a wedding cake does not carry a specific meaning in the way the “God hates gays” cake does. I don’t know enough law to know if this argument will carry water or not, but common sense would indicate that a plain wedding cake — even with two little plastic men or two little plastic women sitting on the top tier — doesn’t quite rise to the same level of forced expression that icing “God hates gays” does. Perhaps the judge will do us all a solid and nix such nitpicking in favor of a clear general rule.
Second, I’m not sure what the desired outcome here is.
On the one hand, the judge might rule that what’s good for the goose is good for the gander, and so the LGBT-friendly baker is forced to pay a fine or create the “God hates gays” cake. But who wins in that scenario? Not bakers, certainly. All that will have been established is that all proprietors — regardless of view — will be compelled to create things that they find personally hateful. Perhaps some folks particularly brimming with schadenfreude will find that soothing, but it doesn’t seem all that useful.
On the other, the court might rule that no, business-owners have a right to refuse commissions they find personally distasteful. That wouldn’t automatically give relief to Christian bakers who don’t want to bake wedding cakes for gay couples, as it seems it would be fairly easy for a motivated lawyer or court to draw distinctions between the two cases. Still, there lies here the faint possibility of libertarian hope. It is odd, however, that devout anti-SSM Christians may find themselves rooting along with the ACLU in this case.
What say you all? What do you think?Published in