As the Religious Right freaks out about their rights to freedom of speech and religion being trampled, an odd proving ground has emerged: bakeries.

As joyous same-sex couples began to plan their nuptials over the past several years, they’ve found themselves running into unmitigated bigotry during their attempts to procure extravagant confections, with bakers denying them service over opposition to their “sinful” ways.

One such case has played out in Oregon, where it’s illegal to discriminate on the basis of sexual orientation.

When Sweet Cakes by Melissa refused to make a wedding cake for a lesbian couple, the courts found in favor of the lovers, ordering restitution. The owner, Melissa Klein, attempted to have the case thrown out by several means, but has been denied at every turn. The most recent development has the Religious Right blowing a gasket, insisting they’ve found proof positive that their rights have gone out the window in the wake of marriage equality.

For context, here’s Breitbart’s take:

Not content with trampling freedom of religion, Oregon authorities have now turned to freedom of speech, issuing a gag order to the Christian owners of Sweet Cakes by Melissa forbidding them from speaking or writing about their Christian beliefs regarding same-sex marriage. On Thursday, Oregon Labor Commissioner Brad Avakian upheld a preliminary finding that sentenced Aaron and Melissa Klein, the Christian bakers who refused to make a cake for a same-sex wedding, to a fine of $135,000 in emotional damages to the homosexual couple they denied service, but also added a new provision forbidding them to speak about their unwillingness to serve a gay marriage.

But that’s not the only angle in the Right’s argument. No, they’ll also point to a little experiment they’ve been conducting that “proves” the discrimination is leveled at them and them alone. Full of bluster and righteous indignation, religious folk marched right on into bakeries not run by bigots and demanded they whip up some treats broadcasting hate. When the owners refused to comply, the Religious Right rocked back in smug satisfaction. See? They won’t respect our freedom of expression but want us to respect theirs!

But true to form, Breitbart & Co. could not be more wrong on this issue. Let’s break it down.

First off, it’s not a form of discrimination to refuse service as long as the reason for denial of service is not related to membership in a protected class. In a world where a bakery owner said, “I won’t make this cake because I don’t serve Christians,” the fundamentalists might have a leg to stand on, but that’s not what’s happened over the course of their experiments.

Take, for example, one of the recent cases in Denver. As reported in the Denver Post:

In a decision letter to William Jack sent on March 24, the Agency’s Civil Rights Division said Azucar Bakery, 1886 S. Broadway, was within its rights when, in March 2014, it refused to bake him a Bible-shaped cake with hateful words about gays that he wanted written on the cake. According to the bakery, Jack also wanted the cake to have two men holding hands and an X on top of them. According to the Associated Press, Marjorie Silva, the owner of the bakery, said she would make the cake, but declined to write Jack’s suggested messages on the cake, telling him she would give him icing and a pastry bag so he could write the words himself. Silva said the customer didn’t want that. An investigation was launched after Jack filed his claim of discrimination, which said he was denied service because he’s a Christian. In the letter to Jack, the Civil Rights Division said there was “insufficient evidence to support (Jack’s) claims.”

Why was there insufficient evidence? The Washington Post makes that abundantly clear:

While Jack argued that he had been discriminated against for being Christian, the department’s decision said evidence showed Silva refused to bake the cakes because the customer’s requests included “derogatory language and imagery,” according to 7 News Denver: The baker said “in the same manner [she] would not accept [an order from] anyone wanting to make a discriminatory cake against Christians, [she] will not make one that discriminates against gays,” according to the decision. “The evidence demonstrates that [Silva] would deny such requests to any customer, regardless of creed.” The decision, according to 7 News Denver, noted that Silva is Catholic and employs multiple Christian and non-Christian employees. The decision also noted that the bakery Web site includes multiple examples of cakes decorated with Christian symbols and language, including the words “God Bless” and “Mi Bautizo,” which is Spanish for “my baptism.”

In other words, service is not being denied to any of these would-be champions of the Religious Right based on their faith. The bakeries in question cater to the faithful on a regular basis — many of them are believers themselves. They simply refuse to engage in what they view as hate speech, which is a decision they’re more than able to make under the law.

But what about that case in Oregon? The distinction there is that service was explicitly denied because of the couple’s membership in a protected class. This is why the behavior was ruled a form of discrimination.

To be clear, that doesn’t make it a violation of the First Amendment. When religion comes into conflict with the rights of a different protected class, the latter has historically won. It’s a function of the separation of church and state. If the State were to prioritize the religious belief over the rights of the protected class in question, they would essentially be codifying a religious belief into the legal system, violating a tenet that actually protects freedom of religion. We already saw this battle waged over desegregation; the Religious Right is once again on the losing side.

The gag order is really the only part of that decision that might raise an eyebrow, but even that is a legally sound choice. The crux of the ruling was that the bakery could not discriminate on the basis of sexual orientation; the injunction is a means of preventing them from advertising an illegal business practice (which they shouldn’t be using to begin with). It says nothing about their right to articulate the beliefs that would form the foundation of those practices if they were allowed. The language of the order reads:

The Commissioner of the Bureau of Labor and Industries hereby orders [Aaron and Melissa Klein] to cease and desist from publishing, circulating, issuing or displaying, or causing to be published … any communication to the effect that any of the accommodations … will be refused, withheld from or denied to, or that any discrimination be made against, any person on account of their sexual orientation.

In other words, Melissa Klein can tell any gay or lesbian couple that walks through her doors that she thinks they are an abomination. She just can’t deny them service. Her freedom of speech is in no way, shape, or form being denied. She’s simply required to comply with the state’s anti-discrimination laws.

So it’s not a violation of First Amendment rights to say a business may not deny service to individuals on the basis of their protected class status. And it’s not a violation of First Amendment rights to say that a business may choose not to provide service that mandates participation in hate speech, as long as it is an ubiquitous refusal. That, ladies and gentlemen, is how bakeries are serving up a master class in Constitutional law to the Religious Right.

(Image via Shutterstock)



