Wedding Cakes and Same-Sex Marriage: Does the Right to Not Be Upset Trump Free Speech?
Yesterday, the Oregon Bureau of Labor and Industries ruled that a bakery in Gresham, Oregon must pay $135,000 to a lesbian couple for refusing to make them a wedding cake. You can read the ruling for yourself right here. Some salient facts:
- Gresham, Oregon is a city of more than 100,000 people (a fifth of the population of Wyoming), and is also a part of the Portland, Oregon metropolitan area with 2.4 million people. The couple looking for a wedding cake had many options, and indeed when their case was publicized they had many offers.
- The owners of the privately owned cake shop that refused to make a cake with both brides’ names on it explicitly referred to their religious beliefs when making their refusal.
- The body of the ruling focuses on Oregon state law 659A.409, which declares that “it is an unlawful practice for any person acting on behalf of any place of public accommodation as defined in ORS 659A.400 (Place of public accommodation defined) to publish, circulate, issue or display, or cause to be published, circulated, issued or displayed, any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of the place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older.”
- The body of the ruling also focuses on the emotional upset experienced by members of the couple as they considered their religious, family and relationship history in light of this interaction and their subsequent decision to file a complaint.
I’m not a lawyer, so I’m not going to try to evaluate whether the Gresham bakery violated Oregon law. But the 1st Amendment to the U.S. Constitution is a higher law supporting freedom of speech. As the Supreme Court has affirmed, it is the right of same-sex couples to enter into a marriage regardless of whether it upsets anyone else. There is, after all, no right for Americans to not experience emotional upset. When the shoe is on the other foot, why must a private bake shop be forced to make a cake celebrating same-sex marriage, in direct contravention of the owners’ beliefs?
So long as Americans in same-sex couples were discriminated against in law, forbidden from marrying, such discrimination remained the primary point. Now that same-sex couples have a universal right to marry across the United States, it is important to protect the right of dissenters to refrain from participation in the nationwide group cheer. I support same-sex marriage freedom. I support freedom of speech, too, and I hope that the Gresham wedding cake decision is decisively overturned.
P.S. The decision by government clerks in Kentucky to refuse to issue marriage licenses to same-sex couples is a very different case. Instead of private actors, these are government employees acting on behalf of the government who swore when hired to uphold the law and who, through their inaction, prevent same-sex couples from exercising their full legal rights. A lemon-custard legal tort should be launched firmly and at high speed toward the faces of these recalcitrant clerks who use their positions of power in government to enforce illegal bigotry.
P.P.S. Who said law has to be boring? Never before in the history of the universe, and possibly never again, will we be treated to this particular sentence: “Just prior to the ceremony, Duff Goldman’s free cake was delivered by an incognito motorcyclist.”