Sauce for the Goose

My Big Fat Anti-Gay Wedding Cake

Is it discrimination when a baker refuses to bake a cake saying ‘God Hates Gays’? No—but the opponents of LGBT equality are still likely to win.

Photo Illustration by The Daily Beast

Well, this was bound to happen.

You may have heard of the Christian baker who refused to bake a cake for a same-sex wedding. In December 2013, he was found to have violated Colorado’s antidiscrimination law. The Christian right was outraged.

And now, a good Christian named Bill Jack has demanded that the Azucar Bakery, outside of Denver, bake a Bible-shaped cake with the words “God Hates Gays” and an image of two men holding hands with a big X over them. The bakery refused. He filed a complaint, alleging discrimination “based on my creed.”

On the face of it, this is ridiculous. Digging deeper, though, it’s a close case—one that, ultimately, the Christian right is likely to win.

As a matter of law, Bill Jack will lose on a technicality. Technically, he was not discriminated against for being a Christian. He may have a religious belief that God hates gays, but none of us has a right to have anything we want proclaimed on a cake. I could be turned away for wanting profanity on a cake, for example. As long as it’s not based on a protected status (race, religion, sexual orientation, gender), the refusal is not against the law.

Indeed, the owner of Azucar Bakery says she is a Christian and has baked “lots of Christian cakes.”

By contrast, David Mullins and Charlie Craig were turned away from Masterpiece Cakeshop in 2013 because they were a same-sex couple. There was no cake that they could purchase; they were told to shop somewhere else.

The problem, the court said, was that Masterpiece “refused to bake any cake for [Mullins and Craig] regardless of what was written on it or what it looked like.”

So there’s an important legal difference here: Mullins and Craig were turned away because of who they are. Jack was turned away because of his bad taste in confectionary.

But while Bill Jack will lose this battle, the Bill Jacks of the world are ultimately going to win the war.

These cases—bakers, photographers—are the poster children of the Christian right, because they involve individuals and their expressive arts. Most business services are not so personal. I go to the hot-dog stand, I buy a hot dog, and the vendor doesn’t say anything other than “Have a nice day.”

But when I go to the baker, she’s baking the cake, writing the words; the photographer is taking the picture. These are commercial services, and while they are regulated by the laws of the market, they are also artistic and expressive in nature. These cases are much more difficult to decide.

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Moreover, these are individuals. If Mullins and Craig had gone to Carvel, anyone could ice their Cookie Puss for them. If one employee were horribly offended, another could be found.

But Masterpiece Cakeshop is basically a one-man show. And while many of us may find its owner’s religious views distasteful, they are sincerely held, and constitutionally protected. Technically, it’s Masterpiece the corporation that is guilty of discrimination—but the line is fuzzy in solo shops like this, as with individual photographers and florists.

For these reasons, it’s almost certain that many states across the country, including Colorado, will carve out religious exemptions to civil-rights laws for small businesses like these. The question will be one of scope. At one extreme, such exemptions might just cover small, family-owned, expressive businesses like these. At another, they might cover any corporation that professes a religious belief—like Hobby Lobby, for example.

Hobby Lobby, remember, is also a somewhat “close case.” It’s family-owned, and proudly operated based on Christian values, but it’s a long way from a small Colorado bakery. Hobby Lobby has 13,000 employees and over 500 stores. It’s not your typical “closely held” corporation.

In other words, the devil will be in the details. Some (though not all) LGBT activists might be OK with a narrow exemption for sole proprietorships practicing expressive arts. Not hotels, not restaurants—but maybe a photographer and baker would be exempted from federal nondiscrimination laws for religious reasons. But the difference between that kind of exemption and one that would let hotels keep gays off their premises is a matter of fine print.

Ironically, a narrow exemption could be a loss for the Christian right, rather than a win. It would take away their most photogenic plaintiffs, while not giving them what they really want: the right to engage in widespread discrimination against LGBT people. The debate would be about huge hospital chains, gigantic “charities” that mostly subsist on government contracts, and corporations that profess to have consciences, rather than these cases involving individual-owned businesses.

I doubt that the LGBT movement will see it that way, though. Emboldened by the “Turn the Gays Away” victory in Arizona (even though a similar bill passed just weeks later in Mississippi), they’re not in the mood for compromise.

So, the two sides are digging in. The Christian right is drawing specious parallels between the anti-gay Masterpiece Cakeshop and the more welcoming Azucar Bakery.

Legislation to protect all the bakeries “equally” has been put forward by State Rep. Gordon Klingenschmitt, who stated during his campaign that Colorado’s (gay) congressman Jared Polis wanted to “join ISIS in beheading Christians, not just in Syria, (but) right here in America.”

And what of Bill Jack? Turns out, he works as a freelance Christian educator and speaker, and has gotten a nice publicity boost from the controversy. He may not get a cake with a message of hate, but I’m sure he’ll get some more speaking gigs.