Do free speech protections still apply if the words are written in frosting?
Two years after a judge determined that a Lakewood, Colo., bakery had discriminated against a gay couple by refusing to sell them a wedding cake, another Colorado bakery is now facing accusations of religious discrimination – this time for refusing to make a cake with an anti-gay message.
When Bill Jack arrived at the Azucar bakery in Denver in March 2014 and ordered two Bible-shaped cakes, Marjorie Silva said she was happy to oblige. But when she saw the messages that Mr. Jack wanted written on the cake, she quickly decided not to go through with it.
According to Ms. Silva, Jack pulled out a piece of paper with the phrase “God hates gays” and anti-gay passages he said were from the Bible. Silva also said that Jack wanted her to draw two men holding hands with an “X” crossing them out.
"After I read it, I was like 'No way.' " Silva told USA Today. " ‘We're not doing this. This is just very discriminatory and hateful.’ ”
Instead, Silva said she told Jack that she would make a cake with a blank Bible page so that he could draw the messages himself. She even claims she offered him frosting and a pastry bag to do so.
“I told him, ‘I’ll make you a cake any flavor and shape that you like and then I’ll give you the icing and you can write the message yourself,’” Silva told the Daily News.
But according to Silva’s account, Jack became “very pushy and disruptive,” refused to write the message himself, and said he needed to talk to an attorney.
In a statement to 9NEWS.com, a Colorado state news site, Jack said that he believed that the bakery had discriminated against him based on his creed.
He is a founder of Worldview Academy, which is a "non-denominational organization dedicated to helping Christians think and live in accord with a Biblical worldview," according to the organization's website.
Jack has filed a complaint with the Civil Rights division of the Department of Regulatory Agencies. The bakery is now under investigation for religious discrimination, and if the agency feels discriminatory acts were committed, the case could move forward to the Colorado Civil Rights Commission. A decision on the case will not be made for several months.
But Nancy Leong, a University of Denver law professor, said that she does not believe that Silva violated any laws.
"This is not a situation where a business owner denied service to somebody," Ms. Leong told USA Today. "She offered to accommodate him to the extent that she could. In fact, requiring her to write that message would infringe on her own free speech rights.”
A bakery might seem like an unlikely focus of an anti-discrimination suit. But as bans on gay marriage have fallen in dozens of states since the Supreme Court overturned the Defense of Marriage Act in 2013, purveyors of cakes in several Western states have become swept up in the same-sex marriage debate.
Colorado state law prohibits public accommodations, including businesses, from refusing service based on factors such as race, sex, marital status, or sexual orientation.
The implications of this law became apparent in 2012 when David Mullins and Charlie Craig visited the Masterpiece Cakeshop to order a wedding cake for their upcoming wedding reception. Bakery owner Jack Phillips informed the couple that due to his religious beliefs it was the store’s policy to deny service to customers who ordered baked goods to celebrate the weddings of same-sex couples. The judge ruled that Mr. Phillips had violated Colorado’s anti-discrimination law.
“While we all agree that religious freedom is important, no one’s religious beliefs make it acceptable to break the law by discriminating against prospective customers,” Amanda Goad, a staff attorney with the American Civil Liberties Union's (ACLU) Lesbian Gay Bisexual and Transgender Project, stated on the ACLU of Colorado's website.
For its part, a prominent Christian group that lobbies for traditional marriage has said it supports Silva.
"This is a free speech issue, and we support freedom of speech. It's also a religious or conscience issue — the government should not force people to violate their core beliefs," Jeff Johnston, issues analyst with the Colorado Springs-based Focus on the Family, told The Christian Post. "Just as a Christian baker should not be required to create a cake for a same-sex ceremony, this baker should not be required to create a cake with a message that goes against her conscience."
Now it remains to be seen how the state of Colorado will rule on a claim of religious discrimination by a bakery.
Meanwhile, Silva says she believes it is unfair that she is being accused of discrimination.
“I just want to make cake for happy people." Silva told Fox CT. "I’m Christian. I support Christians. We make a lot of Christian cakes. But this just wasn’t right.”