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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.”


8 thoughts on “Wedding Cakes and Same-Sex Marriage: Does the Right to Not Be Upset Trump Free Speech?”

  1. Charles Manning says:

    “Why must a private bake shop be forced to make a cake celebrating same-sex marriage, in direct contravention of the owners’ beliefs?”

    No one says the owner has to say he/she supports same-sex marriage. The law simply forbids government, which enforces laws like criminal trespass laws, acting in contravention of a civil right. It’s the same as the practices which led to sit-ins in the 1960’s. There were plenty of other places to go, but for the cops to keep blacks out of restaurants open to the public would constitute state support of discrimination. So if you have a business open to the public, and therefore you’re invoking the protection of the state for such things as forbidding people to enter the premises who might not be welcome for legitimate reasons (such as shoplifters being forbidden access to stores where they do their crimes), or arresting people for, say, going nude in your restaurant, you have to honor the civil rights of your customers, even though you have the right to deny entry by same-sex couples to your house or other private property, and can say what you believe about same-sex marriage in letters to newspapers, or Irregular Times.

    1. Jim Cook says:

      Thanks for writing, Charles. By your standard, it seems to me it would be acceptable for a cake shop to sell to same-sex individuals but to refuse to sell cakes celebrating same-sex marriages, which is what the cake shop did. Am I misinterpreting you in that regard?

      1. Charles Manning says:

        If a bakery owner or employee refused to make cakes for Blacks or Hispanics or Jews or Muslims, that would be discriminatory against those groups and I think illegal because of civil rights laws related to public accommodations. Now that same sex couples have a legal right to marry, it seems to me the same principal would apply if service was refused to same-sex couples. This would extend to messages that might be prepared for customers. The messages would be from the customers, not the business owner or employees. It would be discriminatory for the owner to prepare messages on behalf of whites or Christians but refuse to prepare messages on behalf of Blacks or Jews. The same reasoning applies to same-sex couples. I don’t think a business could be accused of illegal discrimination for refusing to prepare messages advocating or condoning crimes.

      2. Charles Manning says:

        Evan Wolfson, President and Founder of Freedom to Marry, was on Fox News Sunday today. He explained the Oregon case very clearly. I recommend watching the segment if you can.

  2. frank says:

    Nowhere in the Constitution is written that marriage is a “right” or a “civil right”, first of all. Secondly, it is given that you can live and date whomever you want. The Government simply should stay out of “marriages” altogether. Third, I do hope that after this Constitutional mess that the Supreme Court created, Christian couples will start asking gay bakeries to make Christian marriages cakes, we’ll see how that will play out (as usual with double ya what you want folks). No one denies anyone access to anything based on race, gender or sexual orientation but your religious beliefs count when they want you to “take part” into a ceremony or event, in this case gay wedding. If you come to my store and buy a cake i will sell it to you, whomever you are, but if you ask me to make a cake with a gay marriage celebration, or a nazi inscription, or black power..or other bs I HAVE the right to refuse to do so. Liberal judges, some of them appointed because.., made up a new non-existent Constitutional right. Plenty of lawsuits coming up, guaranteed. We’ll see how liberal idiocy plays out in the next future..we are seeing some of this nonsense with the confederate flag issue.Progressivism is becoming a mental disease. Can’t wait…

    1. J Clifford says:

      You’re right, Frank. It isn’t written in the Constitution that people have the right to get married. What is written in the Constitution, in the Fourteenth Amendment, is that state governments can’t treat different groups of people unequally under the law.

      It’s because marriage is a legal status that discrimination which excludes homosexual couples from marriage status is unconstitutional.

      On cakes, the important distinction is that business owners have the right to determine the standards for their own work, and adhere to those standards. Intelligent business owners can find ways to uphold their own standards without discriminating against customers. Discrimination isn’t a good marketing practice, after all.

      It’s nasty for business owners to say that they’re not going to serve customers because of their race, gender, religion or sexual orientation. However, business owners can say that they’re going to work within certain parameters, no matter who their customers are. The important thing, as a business practice, legality aside, is to set those parameters clearly so that conflict with customers is avoided.

      1. Charles Manning says:

        J Clifford, I agree with you. But Frank raises some interesting questions. For example, can a bakery refuse to “take part” in a gay wedding. Evidently that means more than just preparing written expressions that the gay customers want to use. I do think if it’s not an activity sold to the general public, the bakery can participate, or not, as individuals who happen to work for the bakery. But I think it’s crossing a line if the bakery advertises, as a business, that it’s unwilling to sell its services involving taking part in weddings of identified protected groups, such as gays, Jews, Muslims, or Christians.

        Frank also thinks “gay bakeries” will refuse to make Christian marriage cakes. I think that would violate the Oregon law.

        To digress a bit, I’ve been following the ideas the conservative opponents to the Supreme Court ruling have for opposing the ruling. What these conservatives really want is to prevent gays from having homosexual relations. Recently officials of Saudi Arabia made it clear that homosexuality won’t be tolerated in that country. That makes gay marriage a moot issue in Saudi Arabia. Why aren’t people like Ted Cruz and Bill O’Reilly advocating a constitutional amendment to outlaw homosexual conduct? Are they afraid to say what they really want?

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