Colorado orders Christian to participate in gay wedding

This is the epilogue to the conflict that ensued when a Colorado baker refused to participate in a gay wedding in 2012. The baker is a Christian, and he is not opposed to serving gays or baking cakes for them. He simply feels that he cannot participate in a gay wedding in good conscience. As a result, the Colorado Civil Rights Commission has ordered him to bake cakes for gay weddings and to undergo mandatory “anti-discrimination” training. Watch the report above or read it here.

Again, he is not opposed to serving gay people. He simply doesn’t want to participate in their weddings. Now the coercive power of the state is coming down on him to force him to violate his conscience. This is a violation of religious liberty and a portent of things to come.

51 Responses to Colorado orders Christian to participate in gay wedding

  1. Steve Foster June 5, 2014 at 9:29 pm #

    Peaceful resistance is the correct recipe for any rights movement. Let the ugly power of the state show itself.

  2. James Bradshaw June 5, 2014 at 9:58 pm #

    In the highly unlikely event that a Christian baker tried to deny service to an interfaith couple or a heterosexual couple on their eighth marriage or even an interracial couple, would they be able to do so without fear of legal repercussions?

    Why doesn’t someone try and see what happens?

    Look, I’m all for freedom of conscience, and as I’ve said repeatedly, I would never sue a small business owner for refusing service. Perhaps if our nation had not experienced the ugliness of segregation and Jim Crow laws, we would be more prone to giving more freedoms to small business owners to deny their services as they see fit. The cultural awareness of this in our history is still there, so this could be influencing these sorts of decisions. It’s as if we’re over compensating, if you will.

    As the Bible says, “the sins of the fathers are visited upon their children.” Indeed. Sometimes in unexpected ways …

    • buddyglass June 6, 2014 at 9:13 am #

      “In the highly unlikely event that a Christian baker tried to deny service to an interfaith couple or a heterosexual couple on their eighth marriage or even an interracial couple, would they be able to do so without fear of legal repercussions?”

      No, they would not. It would almost surely be considered discrimination on the basis of religion or race and hence actionable.

      The difference between that hypothetical scenario and this guy in Colorado is that the baker who refuses to bake a wedding cake for an interfaith or interracial couple is not basing his decision on any reasonable tenet of Christianity whereas the Colorado guy is.

      From what I gather Denny et. al. don’t argue that refusing to bake a cake for a same-sex wedding isn’t discriminatory against homosexuals, because it is. They argue that the baker’s first amendment rights trump applicable anti-discrimination law.

      At least, that’s what I understand them to be arguing.

      • Ian Shaw June 6, 2014 at 11:27 am #

        There’s another piece of logic with this story I don’t quite understand. The two men in the story said they were going to Massechusets and then have the reception in Colorado.

        Here’s where it get convoluted. The state of Colorado has a ban on SSM, though it is currently being challenged. So on the books, Colorado does not recognize SSM, but did pass a non-discrimination law that included orientation, which is why the two men felt the need to pursue legal challenges against the business.

        How can the state of Colorado claim a business violated the non-discrimination law with something that the state does not legally recognize (ie-SSM)? The business was not discriminating against the two men for their sexual orientation, but for the wedding celebration? How can you discriminate against something that is non-existent? (in a legal viewpoint for the state)

        • buddyglass June 6, 2014 at 8:58 pm #

          Colorado doesn’t recognize same-sex marriages, but you can have a party for whatever you want. Including the decision to call yourself “married”. I could try to buy a wedding cake for a wedding reception celebrating my marriage to my left shoe, even though the state where I live doesn’t recognize marriage between humans and inanimate objects.

          In this case, while Colorado doesn’t recognize same-sex marriage, it recognizes the right of same-sex couples to not face discrimination when purchasing items to be used in the celebration of their marriage outside Colorado. Or, presumably, anything else they might want to celebrate.

          • buddyglass June 6, 2014 at 9:00 pm #

            Actually I misspoke in that last sentence. Being gay doesn’t earn you a free pass to get a cake for whatever you might want a cake for. If a gay couple asked the baker to make a cake for them celebrating Hitler’s birthday then the baker could refuse and it wouldn’t be considered discrimination against homosexuals. That’s because “Hitler cakes” have nothing to do with homosexuality. A blanket ban on cakes celebrating Hitler affects gays and straights equally. A ban on cakes celebrating same-sex marriages, however, has a disparate impact on homosexuals.

    • Johnny Mason June 6, 2014 at 12:28 pm #

      Jim Crow and segregation were the direct result of government intervention. It was the law to segregate and businesses which did not comply would be punished. I am not claiming that absent Jim Crow laws, businesses would not have discriminated. Many would have done so freely. But many businesses actively opposed those laws. Streetcar and railroad companies actively opposed segregation laws because it cost them in lost revenue through fewer customers and was less economical to have separate facilities for whites and blacks.

      Ultimately, If businesses in the South were so willing and able to segregate and discriminate based on race, then there would have been no need for Jim Crow in the first place.

      • Jane Dunn June 7, 2014 at 12:17 pm #

        Johnny — That’s revisionist history. Right after the end of the Civil War, during Reconstruction, blacks gained some degree of political power and Congress passed the Civil Rights Act prohibiting discrimination in public accommodations. After several years, however, the Supreme Court overturned that law, holding that separate public accommodations were permissible.

        When Reconstruction ended, the Jim Crow segregation laws, and the laws making it nearly impossible for blacks to vote, were passed in order to take away any black power that had been organized and to make sure that none could get organized in the future. This is especially true where blacks compromised a significant percentage of the population and could thus be a significant force in elector politics.

        It wasn’t just about service at lunch counters. And it didn’t cost southern restaurants anything to require black customers to come to the back door to buy their food or to prohibit a is from using the white restrooms or white water fountains.

        • Johnny Mason June 7, 2014 at 4:53 pm #

          Jane – nothing you said in your first two paragraphs refuted my point, which is that Jim Crow laws were the result of tyrannical state governments, not the result of businesses discriminating against people of color. The Supreme Court ruled that States could pass laws that mandated separate accommodations.

          Many businesses opposed these laws. In the landmark case, Plessy v Ferguson, the railroad company, which opposed the Separate Car Act that mandated separate accommodations for blacks and whites, including separate railroad cars, was involved in ensuring Plessy was arrested with the explicit desire to get a court to overturn the law.

          I only mention this issue because many people believe, wrongly, that Jim Crow was somehow related to businesses actively discriminating against blacks, when in fact they were mandated to by the government. And that somehow we should thank our government oppressors for freeing us from the tyrannical businesses.

          Also, businesses providing separate accommodations were affected financially because a) they had to provide these accommodations at extra expense and b) it reduced their business from the black community. Would you spend your money at a business that required you to come to the back door to buy their goods?

          • Jane Dunn June 7, 2014 at 5:19 pm #

            Johnny — Who do you think was running the “tyrannical state governments”? It’s not like it was some occupying foreign power. The people who served in the state governments were elected by and from the local community leaders.

            As to the “separate accommodations,” do you realize that many businesses just skipped that part entirely and didn’t provide **any** accommodations for blacks. Watch the movie Driving Miss Daisy, especially the road trip scenes to get some insight into the problems faced by African Americans in the lack of accessible public accommodations.

            Blacks were forced to spend money at the back door of many businesses when those businesses were the only one of their kind in the area. Are you really doubting that happened?

            Please, please read some eyewitness accounts or talk to some actual black people who grew up in the Jim Crow south.

            • Johnny Mason June 7, 2014 at 7:00 pm #

              Jane – In my original post I said this: ” I am not claiming that absent Jim Crow laws, businesses would not have discriminated. Many would have done so freely. ”

              I do not deny that businesses refused to serve black people simply because of their color, I am simply stating that if all of the South’s business owners had been eager to segregate their employees and customers by race, there would have been no reason for white racists to resort to government power to force the issue.

              • Jane Dunn June 7, 2014 at 8:03 pm #

                Johnny — You’re missunderstanding the history. Reconstruction gave the southern white business establishment an idea of what it might be like if blacks were able to fully participate in the life of a community and the white business community didn’t so much like it. So, after Reconstruction the White Citizens’ Councils (business and churcheaders) wanted laws making sure that blacks would not be able to participate in civil society any longer. Without the Jim Crow laws, large numbers of black voters, with the help of a very few white allies, might have been able to pass state or local anti discrimination/segregation laws. The white southern business establishment had to get and **keep** blacks out of power — unable to vote, unable to take part in white civil society, mostly stuck in poverty, and essentially unable to get or keep any power going forward — to preserve the southern “way of life.” Or, at least that was their argument.

                • Johnny Mason June 7, 2014 at 8:51 pm #

                  The White Citizens’ Council didnt get formed until the 1950s. Were you thinking of something else?

                  • Jane Dunn June 7, 2014 at 9:03 pm #

                    No, mangled editing error on my part since I’m on an iphone. Sorry.

                    The sentence should have read:

                    “So, after Reconstruction the business and church leaders (whose successors later formed the White Citizens’ Councils) …”

  3. Gus Nelson June 5, 2014 at 11:21 pm #

    So we now know that in at least two states, Colorado and New Mexico, when “human rights” laws and religious liberty intersect, religious liberty loses. This is happening despite the First and Fourteenth Amendments of the Constitution which prevent the federal and state governments from making any “law respecting an establishment of religion, or prohibiting the free exercise thereof.” The prohibiting the free exercise part seems to fall on deaf ears. It will be very interesting to see what the Supreme Court does with the Hobby Lobby case because it will have an impact on these situations, as well. If the Court sides with Hobby Lobby, then there is a good argument that these “human rights” laws violate the First Amendment as well. Given Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) which the Supreme Court decided a number of years ago (a case involving animal sacrifice by Santeria believers), it appears the Supreme Court, at least, takes the First Amendment very seriously. We’ll see.

    In the meantime, it seems to me this is a real opportunity for Christians to stand up for the Gospel regardless of the cost. Ultimately, maybe we will have the chance, like Shadrach, Meshach and Abednego and Daniel, to quietly and confidently proclaim that we will stand by our Lord and Savior no matter what.

    • Ian Shaw June 6, 2014 at 9:30 am #

      I’d agree. But gee, nothing about the shooting at Seattle Pacific on today’s blog?

      I guess I don’t see how the state has a compelling interest in forcing a baker to provide services, as he’s the only baker in the state. If he was, then the state might have interest to do so.

      • Ian Shaw June 6, 2014 at 9:38 am #

        *as he’s not the only baker in the state*

    • Jane Dunn June 7, 2014 at 12:25 pm #

      Gus — In the Lukumi Babalu Aye case, the Supreme Court held that the law prohibiting the slaughter of animals under certain circumstances was targeted at the Santeria religious group. Neither antidiscrimination or human rights laws nor the mandate at issue in Hobby Lobby were targeted at any religious group. They are laws of general application. It’s a separate question whether and to what extent the First Amendment or the RFRA requires the exception that Hobby Lobby and other businesses seek.

      • Gus Nelson June 8, 2014 at 11:14 pm #

        Jane: I wasn’t comparing the underlying facts of these cases, only making the point the Supreme Court takes First Amendment right to practice religion cases very seriously. And, yes, while the human rights laws and PPACA certainly have been written broadly, and from a purely legal standpoint do not appear to target specific groups, those who write such laws are not ignorant of the potential practical effect when the laws get written and put into place. Those who wrote PPACA, for instance, knew that folks like Hobby Lobby and the many others who have filed lawsuits were going to have serious problems with the contraception mandates.

        • Jane Dunn June 8, 2014 at 11:37 pm #

          It isn’t a matter of the Supreme Court taking the First Amendment seriously and the New Mexico and Colorado courts not. It’s that the different results arose because the laws being challenged were very different in what, if anything, they have to do with religious practice. Most of the antidiscrimination or human rights laws were written before marriage equality was even thought to be a possibility so they couldn’t have been targeted at Christians who oppose gay marriage. Plus, in the Lukumi case, the law interfered with an actual religious sacrament. Not so for the bakers and the human rights laws.

          What you’re arguing, essentially, is that the marriage equality or human rights laws and the contraceptive mandate (which is a regulation and not written into the ACA) have a disparate impact on some religious groups. That’s interesting because, when minorities assert that laws such as the new rash of voter ID laws have a disparate impact on minorities, conservatives generally reject such claims. So, be careful where you go with your argument.

  4. Roy Fuller June 6, 2014 at 8:49 am #

    How about this? Instead of standing up for the rights of Christians (where exactly is that command found in scripture?), why not serve all persons, in any and whatever capacity you find yourself, doing so with humbleness, humility, and love? I am well aware that there are various ways in which one might be a witness to one’s faith, but to continue to assert a right not to have certain kinds of contact with sinners, all in the name of Christ, seems not to be the best approach. Certainly does not seem to be a winning strategy in the culture wars.

    • Esther O'Reilly June 6, 2014 at 9:35 am #

      I guess you missed the part where Denny said (twice) that the baker doesn’t refuse to “have contact with” gays or serve gays in general, only that he can’t in good conscience lend his services to the celebration of something he believes to be a sin. Better luck next time.

    • Ian Shaw June 6, 2014 at 9:36 am #

      Roy, “The baker is a Christian, and he is not opposed to serving gays or baking cakes for them. He simply feels that he cannot participate in a gay wedding in good conscience. ”

      It never said he doesn’t want to have specific contact with sinners. He does not want to “participate” in a gay wedding. He clearly feels providing his services specifically for a gay wedding goes against his faith. It is clear that the state of Colorado does not care for his 1st Amendment rights.

      • Roy Fuller June 6, 2014 at 9:55 am #

        Esther and Ian, I won’t assume you missed my point, but let me clarify. By refusing to “participate” in an activity, persons are excluding themselves from certain types of “contact” with sinners. (And yes, the baker does not want to have certain types of contact/relationship with sinners, though he is open to other types of contact/relationship.) We will certainly disagree about the definition of “participate” as well as what such participation means, but that is my point. My larger point, is that why do we believe that Christians should be asserting their 1st Amendment rights in order to avoid participation with sinners? I am not suggesting to surrender one’s witness, I am merely suggesting that there are other ways, and that “asserting one’s rights” will probably not win too many persons over. To suggest, as Esther does, that there is some type of categorical distinction between baking a cake for those deemed sinners, and serving a cake at the wedding of sinners, is I believe a distinction without a difference. I am suggesting a fundamental shift away from the assertion of rights, valid though it may be, to a different mentality and approach. Don’t worry, I don’t think that evangelical cultural warriors are going to embrace a different approach, though they are becoming increasingly shrill as their loss of privileged status grows.

        • Esther O'Reilly June 6, 2014 at 10:07 am #

          A wedding cake for a “gay wedding” is specifically being used to celebrate sin, a cake in general usually isn’t. Why is this so hard? The baker feels that in providing for the ceremony, he’s legitimizing the union, which he deems to be sinful. He’s helping to create an atmosphere of normalcy for the fiction of “marriage” between anyone other than a man and a woman.

          If a Ku Klux Klan member demanded a swastika tattoo festooned with racial epithets from the black owner of a tattoo parlor, should the owner be forced to comply?

          • Jane Dunn June 7, 2014 at 10:34 am #

            Esther — “KKK Member” is not a protected status, meaning it’s perfectly legal to discriminate against them. Please read some of the antidiscrimination and human rights statutes.

        • Ian Shaw June 6, 2014 at 10:18 am #

          If you are invited to a wedding is that participating? If you are asked to be in the wedding party, is that also participating? But there’s a distinction and a difference for them both, right?

          I don’t often default to the rights given by the state, however, when the state decides to unilaterally usurp the those rights given for protection from the state/federal government and under penatly of imprisonment, loss of business or levy fines, force an individual to act in a way that restricts his “free exercise therof” faith, there is a massive problem there.

          I understand your point of view. Who cares what activity they are involved in (whether it is sin or whatever), just bake the cake anyway. It’s not loving to discriminate against any person for any reason. For some, they may not have a problem providing a service, even if it is to celebrate what they consider a sinful behavior. Others may feel that providing a service would make them complicit in that individuals sin. To say that one is right and one is wrong is to assume you know the motive and the heart of the individual that is refusing and believe the refusal is rooted in hatred or ignorance. When in fact, it may very well be heartfelt conviction that while they may love the person/people, they can’t go through with prodiving the product.

          • James Bradshaw June 6, 2014 at 12:06 pm #

            So when does religious liberty trump anti-discrimination laws? What are the criteria? If you want to make exceptions for his baker, why not a civil clerk who doesn’t want to provide a license to a Jewish man marrying a Christian woman or a baker not wanting to cater a bar mitzvah?

            Just because you might not take issue with these doesn’t mean someone else may not have religious objections. Who are you to judge their motives?

            • Ian Shaw June 6, 2014 at 3:17 pm #

              James,

              I could ask you the same question. When does anti-discrimination laws trump the 1st Amendment? And if so, how often or in what cases? It appears that in all these bakers/florists cases, anti-discrimination trumps religious liberty every time. What would stop it, in either direction from going too far? In these baker/florist situation, has there been 1 judge or state AG that has taken the side of the proprietor? I’d love to see that reference if there is one.

              I wasn’t judging motives James. My comment about motives was to Roy in reference that Christian’s are hiding behind the 1st Amendment to not have to be in contact with sinners”. My thought was, many are not hiding behind the law, just merely stating that it goes against their convictions to provide services for a wedding cake for a SSM, not deny services outright to homosexuals.

              • Jane Dunn June 7, 2014 at 10:30 am #

                Ian — Antidiscrimination laws have been held for decades to trump First Amendment rights in racial and gender discrimination cases. Yes, I understand many evangelicals don’t think sexual orientation should be treated in the same way as race or gender, but when folks start making what seem like blanket statements that First Amendment rights should trump antidiscrimination laws, it sounds like they mean that to apply to ALL anti discrimination laws.

                • buddyglass June 7, 2014 at 2:27 pm #

                  “it sounds like they mean that to apply to ALL anti discrimination laws”

                  That may very well be the intended meaning. Opposition to anti-discrimination laws is not altogether uncommon among the evangelical right.

                  Also, the legal landscape may have shifted after BSA v. Dale w.r.t. whether anti-discrimination laws trump first amendment religion protections. At least, with respect to public accommodations with an “expressive message” (e.g., the Boy Scouts).

                  http://en.wikipedia.org/wiki/Boy_Scouts_of_America_v._Dale

                  More discussion here:

                  http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3473&context=mlr

                  Not being an attorney I can’t vouch for the accuracy of that law review article, but it seems reasonable.

                  Of course the above wouldn’t apply to most bakeries since most of them lack an explicit “expressive message”. A bakery that’s overtly religious (Christian) and that focuses solely on wedding cakes for orthodox Christian weddings might qualify, but that business model might preclude profitability in many parts of the country. (But not all.)

                  • Jane Dunn June 7, 2014 at 6:35 pm #

                    I should have said “ALL antidiscrimination laws in ALL situations.” I think you’re right that a not insignificant part of the evangelical community (the libertarian/conservative wing) objects to all antidiscrimination laws.

                    I read the first several pages of that law review article (intro/summary part). Don’t have time now to get to the rest. IIRC, that prof is part of the group that blogs at the Volokh Conspiracy, a group of very smart conservative law profs. The article is coming from a quite conservative view.

                    My first reaction would be to say that he lumps together a lot of different types of discrimination in very different contexts and so some of his alarm at the state of first amendment jurisprudence is misplaced, but I don’t have time to really do that argument justice nor is this really the place.

                    First Amendment rights (in the cases we’re talking about) can be of speech, religion, or association. But they don’t all arise in the same way for every different type of “public accommodation” and the government’s interest in enforcing antidiscrimination laws can be different in different contexts. For instance, the Boy Scouts were found to have a right to “expressive association,” but a bakery would not have that kind of right because it’s not an “association” of people. It’s a single entity. Likewise, a private religious school can lose its tax exempt status for refusing to admit black students or for prohibiting interracial dating even if those things are done as part of the schools’ religious doctrine because the government’s interest in eliminating segregation and discrimination in education is compelling. See the two Bob Jones University cases.

        • Johnny Mason June 6, 2014 at 1:01 pm #

          @Roy – ” My larger point, is that why do we believe that Christians should be asserting their 1st Amendment rights in order to avoid participation with sinners? I am not suggesting to surrender one’s witness, I am merely suggesting that there are other ways.”

          I am generally interested in what you would regard as another way. Can you be more specific?

          • Jane Dunn June 7, 2014 at 10:40 am #

            The New Mexico Supreme Court, in the Elane Photography opinion’s discussion of the photographer’s free speech rights, specifically noted that the shop could put up signs in the shop and on their website setting out their religious views, including that they thought homosexuality and same sex weddings were sinful, but noting that they would still do the wedding photography for LGBT weddings.

    • Gus Nelson June 6, 2014 at 9:54 am #

      Roy: You are right that we are to serve others and I tend to agree with much of what you are saying. It seems to me, though, there comes a point where Christians have to say “I can’t do that.” It’s not an issue of having contact with sinners – the baker in this case, like the florist in Washington, had never denied service to homosexuals, except in the case of homosexual weddings. Peter told the Sanhedrin the apostles “must obey God rather than men.” Acts 5:29. Daniel prayed despite Darius’ decree and got thrown into the lion’s den. Daniel 6. So there is some Biblical precedent for standing firm in the face of ungodliness. The question then becomes at what point do Christians take a stand?

  5. Roy Fuller June 6, 2014 at 10:40 am #

    Ian, thanks for your reply. I specifically did not get into the motivation issue, because that is difficult to know. I do know that persons like this baker are grappling with a conscience issue, and I do not assume that persons who might refuse services are bigots or ignorant. There are really three issues in my approach. One is the question of whether or not such participation by Christians is right or wrong. People of faith can and clearly will disagree, and we should do so without assuming bigotry or unqualified support for sin by those with whom we differ. There is a rights issue here, and I would argue that generally speaking, no rights are absolute, and we as a society are constantly having to balance rights. Such struggles will continue. Third, and this was my primary intent with my post, is the question of whether or not asserting one’s rights in these types of cases, is the best cultural strategy. For some, it is not a strategy, but rather is a following of conscience. But for many others, these cases become fodder in the broader cultural conflicts, where IMO, defending these rights will continue to be portrayed by the broader culture as being bigoted and ignorant, whether they are or not. That may or not matter, depending on which question is most important to a particular person. Some persons must follow conscience, some persons must take a prophetic stand, still others a pastoral response, etc. My plea is simply to consider that some believers might take different approaches, which is where I think we agree.

    • Ian Shaw June 6, 2014 at 3:29 pm #

      I would agree with that. There is not a “1 perfect approach” for all to use. To be honest, if I can be, I think Christians are losing/have lost this issue from a cultural perspective. Granted, I don’t think we should have been as invested the way we were tackling that issue. It seems that we lost the culture war on this and as a “hail mary” pass, we’re now trying to use what legal leverage we may/may not have left while retreating but still trying to circle the wagons, so to speak.

      I am a firm believer that we have a far greater chance for Christ to change people’s hearts by sharing the Gospel with them, then legislating morality (as noble as that might be in some instances). I understand we are not a theistic monarchy and we shouldn’t assume so or act like it. We should accept and understand that as Christians, we are truly exiled and living in pagan land, to be blunt about it.

      I do not seek persecution. That’s not what I would want for any believer. That is not my heart. But, that being said, when have american Christians in this country had their faith cost them somthing? I would wager that 90% of all other Christians living outside this country would say their faith is costly. Some may disagree with me but I think it will be good for our faith to cost us something for once.

  6. Ian Shaw June 6, 2014 at 11:17 am #

    From the story-“The commission also ordered the baker to submit quarterly reports about the customers he refuses to serve and retrain employees to serve everyone.

    For the couple, they said they always believed they were in the right and it was important to pursue the case for future customers.

    “We’ve already been discriminated there,” Mullins said. “We’ve already been treated badly.

    “The next time a gay couple wanders in there asking for a wedding cake, they won’t have the experience we had.

    “They will have a responsible experience and leave feeling respected.”

    Translation- Even though we were going out of state to get married (the story mentioned it), you will legitimize who we are and what we do, or we will take you to court. He has to document the customers he refuses and has to brainwash, er, “retrain” his employees? Now that’s a great way to support your cause.

    The baker has stopped making wedding cakes. His faith has become costly. Just as scripture tells us it will. Good for him.

    We will all at some point will have to get in line with the vox populi or stand up for our faith regardless of the consequences. Salvation is a free gift, but it is costly. We should start to see it cost american Christians, as we’ve never really had to deal with costly faith before.

  7. Nathan Cesal June 6, 2014 at 12:08 pm #

    Thank you, Roy Fuller, for adding sanity to the conversation – unfortunately you probably won’t get anywhere. Why cast your pearls before these swine?

    • Esther O'Reilly June 6, 2014 at 1:48 pm #

      Maybe then you’d like to answer my question Nathan, since Roy appears to be uninterested: If a Ku Klux Klan member demanded a swastika tattoo festooned with racial epithets from the black owner of a tattoo parlor, should the owner be forced, by the state, to comply?

      • James Bradshaw June 6, 2014 at 4:39 pm #

        Esther: your analogy would be more accurate if the black owner was *already* producing swastika tattoos but simply denying that service to some people.

        Of course, businesses have the right to reject being compelled to provide specific products or services they do not already provide. For example, a baker could not be forced to make a sexually suggestive cake against their wishes if they’re only in the business of making wedding cakes. A photographer cannot be compelled to take nude photos if they only take portraits.

        The difference is in the “what”.

        These sound like trivial distinctions, but in the eyes of the law, they are not.

        • Esther O'Reilly June 6, 2014 at 11:51 pm #

          Okay, but what if the baker typically includes a wedding day message and figurines on the cake, and this couple demands those same services, except with same-sex figurines. Should the state be allowed to force him to affirm the wedding with the frosted message and decorations in that way?

          • James Bradshaw June 7, 2014 at 7:27 am #

            Esther, my personal opinion is … no.

            My perspective is this:
            Say a business makes widgets. I don’t think they can pick or choose who they will sell widgets to. However, I also don’t think the state can step in and say that they must modify their widgets so that they are no longer widgets but … something else entirely.

            This becomes a bit tricky, legally speaking, depending on the service. I’ve seen dating services that cater to African-Americans or Christians or heterosexuals. Is it “discrimination” to not allow whites or non-Christians? The nature of the service provided is tailored to the unique characteristics of each population. That is their product and I don’t see an issue with it. Why should they be sued merely to change the very nature of that product? Yet, would a “whites only” dating service be legally permissible? I don’t know.

          • Jane Dunn June 7, 2014 at 11:36 am #

            It’s not an affirmation of anything. No one thinks the “Congratulations” on a birthday or retirement cake is coming from the baker. It’s obviously the message of the cake’s purchaser. Same with wedding cakes. See the discussion of “compelled speech” issues in the Elane Photography case, especially at paragraph 47. http://www.nmcompcomm.us/nmcases/nmsc/slips/SC33,687.pdf

          • Jane Dunn June 7, 2014 at 11:39 am #

            It’s not an affirmation of anything. No one thinks the “Congratulations” on a birthday or retirement cake is coming from the baker. It’s obviously the message of the cake’s purchaser. Same with wedding cakes. See the discussion of “compelled speech” issues in the Elane Photography case, especially at paragraph 47. nmcompcomm.us/nmcases/nmsc/slips/SC33,687.pdf

          • Jane Dunn June 7, 2014 at 11:48 am #

            It’s not an affirmation of anything. No one thinks the “Congratulations” on a birthday or retirement cake is coming from the baker. It’s obviously the message of the cake’s purchaser. Same with wedding cakes. See the discussion of “compelled speech” issues in the Elane Photography case, especially at paragraph 47. (Even if you don’t agree with the holding the opinion has a good discussion of both sides’ arguments and the relevant case law.)

            I tried to post the link to the NM opinion, but it didn’t make it through moderation. The opinion is easily found through Google.

  8. Johnny Mason June 6, 2014 at 12:30 pm #

    The irony of this decision is that gay marriage is still illegal in Colorado.

    • Ian Shaw June 6, 2014 at 12:48 pm #

      That’s exactly why I made the point above. How can you discriminate against something the state does not legally recognize?

      • Jane Dunn June 7, 2014 at 11:44 am #

        Ian — Because LGBT marriages are an inherent part of being LGBT. That’s what the New Mexico Supreme Court held in the Elane Photography case because same sex marriage was not legal in NM at the time. The plaintiff couple in that case were actually having a commitment ceremony and not a wedding.

  9. Robert Karl June 6, 2014 at 6:06 pm #

    dENNY:

    Denny:

    First, it is the baker then the religious establishments. many protestant churches have folded into accepting homosexual marriages so it will only be a matter of time that the state in its full power forces clergy to marry them. A Catholic Bishop has recently stated that he expects to be imprisoned for resisting however, he expects his successor to die in this resistance. Are we willing to die for your faith because the time is coming. That is the the proof in the pudding …or cake.

    • buddyglass June 6, 2014 at 9:11 pm #

      Question for you: have you heard of the state forcing churches to marry interracial couples?

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