A baker can refuse explicit expression of a certain viewpoint but not alleged implicit expression of a viewpoint.
The so-called “gay wedding cake” lawsuit raises some interesting questions.
- If a baker can refuse to bake a wedding cake for a gay couple then can a baker refuse to bake a cake for an interracial couple if the baker’s religion says miscegenation is wrong?
It would be hard to support a baker’s religious rights in one case but not the other. But a widespread religious exemption—especially if it applies to corporations as well—would rip a huge hole in the Civil Rights Act of 1964.
On the other hand,
- If a baker cannot refuse to bake a wedding cake for a gay couple then must a baker also bake a cake for an anti-gay evangelical?
Again, consistency would seem to imply that discrimination against evangelicals is also wrong.
In the end I think this calls for a legislative solution. Courts can interpret the law or strike down unconstitutional legislation, but creating new laws is tricky. Federal civil rights legislation does not include sexual orientation or gender identity, so it would be plausible for a Supreme Court justice to say they personally support civil rights for LGBTQ individuals while also saying that the baker isn’t violating federal law. Of course, the state of Colorado does have a civil rights law covering sexual orientation, so adding a large exemption to state law in favor of the baker would be judicial activism—which conservatives claim to oppose.
I’ve previously written in favor of adding sexual orientation and gender identity to federal civil rights legislation. But the issue of compelled speech can’t be ignored. For the government to force you to say something you disagree with does violate your free speech rights, and in some cases your religious freedom.
Here’s the distinction I draw: In most circumstances baking a cake as a business endeavor does not involve the baker’s personal expression. A wedding cake used in a same-sex wedding is usually indistinguishable from a wedding cake for a heterosexual wedding (except for the bride-and-bride or bride-and-groom on top of the cake, which the baker doesn’t usually manufacture anyway).
However, baking a cake that includes a meaningful symbol or words that convey a particular viewpoint could violate the baker’s religious or freedom of expression rights. If the same-sex couple requests the equality symbol on the cake then I think the baker should be permitted to refuse inclusion of the symbol. But the baker cannot refuse to provide a generic wedding cake. Likewise, a baker could not refuse to bake a generic cake for an anti-gay preacher, but a baker could refuse to put Romans 1:26-27 on it.