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As Long as We Remember...

June 6, 2018

The Baker v. Colorado Civil Rights Commission

Patricia A. Kelly

The Supreme Court issued an opinion this week in favor of the Colorado baker who refused – on religious grounds – to make a wedding cake for a gay couple.


The ruling focused solely on demonstrated bias on the part of members of the Colorado Civil Rights Commission against people who hold religious beliefs like Jack Phillips, owner of Masterpiece Bakery. This was found to be a violation of Phillips’ right to an impartial ruling, and rightly so.


Mr. Phillips, owner of a bakery that served the public, refused to provide a specific service, a custom wedding cake, claiming making it would violate his own First Amendment right not to speak out in favor of gay marriage. He maintained such a statement would violate his religious beliefs.


He served gay people in his business and would have sold the couple a regular cake, as he did not discriminate against them or other protected classes in his bakery. He claimed that his custom cakes are works of art, protected under his First Amendment rights.


The case dragged on for years. The primary question posed by the suit was not answered by the justices.


It was a good call on the part of the court, but maybe not enough.


The specific issue of the case was whether a person can be forced to create, or design something, to support an event that violates his religious beliefs. For example, related to another case, should a florist be required to not only sell someone flowers for an event that goes against his beliefs, but deliver them and set them up, appearing thus to support the event with his art.


Should a graphic artist be required to create a Gay Pride poster or a Ku Klux Klan poster, if it violates his closely held religious views?


Although it doesn’t fall into the category of art, should a pharmacist be required to personally fill a prescription for the morning after pill if he considers giving that pill to be facilitating an abortion, again, in opposition to his religious beliefs?


Businesses do have the legal right to refuse service to individuals under certain circumstances. They may enforce a dress code. They may refuse service to someone who has, during a past visit, become violent and damaged the business. That pharmacist may pass the prescription on to another pharmacist, but may not interfere with the customer’s right to fill a legal prescription.


Interestingly, businesses may not discriminate against members of a protected class. Protected classes include race, color, religion or creed, national origin or ancestry, sex, age, physical or mental disability, veteran status, height, weight, marital status, gender identity, or genetic information. In recent years, diversity has been emphasized over unity in American society. What diversity currently means, in practice, in the United States is “not a white, native born, healthy white male.”


Is it legal to have a singles club, a young adults’ club, an old people’s club, a women’s club, an Asian-American Club, and not include all the rest of the people who might want to join?


Should it be legal for you to choose not to rent your extra living space to a person of a different color or religion? It is now, but not if you rent multiple spaces.


My experience with the latter was to be accused of discrimination by a gay couple, whom I did not accept as tenants because of their bad credit report. They didn’t accept that reason because their credit history was from another state. Go figure.


This question alone causes me to sympathize with the Supreme Court, and their focus on the easy and clear aspect of their decision in this case.


The real questions are: Do native born, white, healthy, male, Christian citizens have the same rights as other people, or should they be the standard against which diversity is measured?


Is custom cake baking, or the decorating of an event space, or poster making art, protected under the First Amendment?


Maybe we’ll see, as the Supreme Court, with its’ limited though correct ruling, will certainly have another chance after taking a pass on the real question in this case.


Stay tuned.


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