comscore Can't have your cake, gays are told, and a rights battle rises

Can’t have your cake, gays are told, and a rights battle rises

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LAKEWOOD, Colo. » Jack Phillips is a baker whose evangelical Protestant faith informs his business. There are no Halloween treats in his bakery — he does not see devils and witches as a laughing matter. He will not make erotic-themed pastries — they offend his sense of morality. And he declines cake orders for same-sex weddings because he believes Christianity teaches that homosexuality is wrong.

Phillips, whose refusal two years ago to make a cake for a gay male couple has led to a court battle getting underway, is one of a small number of wedding vendors across the country who are emerging as the unlikely face of faith-based resistance to same-sex marriage.

The refusals by the religious merchants — bakers, florists and photographers, for example — have been taking place for several years. But now local governments are taking an increasingly hard line on the issue, as legislative debates over whether to protect religious shop owners are overtaken by administrative efforts to punish them.

In Colorado, where Phillips, 58, owns and operates a small bakery called Masterpiece Cakeshop, the state civil rights commission determined Phillips had violated a state law banning discrimination on the basis of sexual orientation in places of public accommodation. The commission ordered Phillips to retrain all of his employees, who include his 87-year-old mother, and to produce a quarterly report detailing any refusals-to-bake; in response, he has stopped accepting orders for any wedding cakes while he appeals the ruling to the state courts.

"I do like doing the wedding cakes," he said. "But I don’t like having the government tell me which ones I can make and which ones I can’t make, and trying to control that part of my life."

In New York, an administrative law judge fined Cynthia and Robert Gifford $13,000 for declining to rent their upstate farmhouse, which they often rent out for heterosexual weddings, for the wedding of two women. The couple paid the fine but, in an action similar to that taken by Phillips, has stopped accepting reservations for any weddings while appealing.

There have been more than a half-dozen other instances of business owners, most citing their understanding of Christian faith, declining to provide services for same-sex weddings. They include a photographer in New Mexico, a florist in Washington state, a bakery in Oregon, an inn in Vermont and wedding chapels in Idaho and in Nevada. And new cases continue to arise — during the past few weeks, a wedding planner in Arizona declined to work with a lesbian couple, and a business in California refused to photograph the wedding of a gay male couple (and then closed its doors after an outcry).

The cases are largely being fought, and some say fueled, by two legal advocacy organizations: the American Civil Liberties Union, which supports same-sex marriage; and the Alliance Defending Freedom, which opposes it. Each side cites bedrock American principles: First Amendment rights of religion and speech versus prohibitions in 21 states against discrimination in public accommodations on the basis of sexual orientation.

"It’s a clear, well-settled proposition that businesses who open the door to the public must serve the public," said Evan Wolfson, the president of Freedom to Marry, an organization advocating same-sex marriage. "We don’t want Americans walking into businesses and being turned away because of who they are — that’s what nondiscrimination principles mean."

But the defenders of the shop owners argue that creating an artistically involved or personalized service for a same-sex wedding is a form of expression that should not be compelled by the government. They reject the discrimination charge, noting that many of the businesses have gay and lesbian customers, and, in some cases, employees.

"Anyone who would suggest this is not about freedom of religion doesn’t know or understand what religious liberty is about, which is the freedom to do what your conscience directs," said Alan Sears, the president of the Alliance Defending Freedom.

Sears says he has experienced his own form of bias: He says that a photographer in Southern California declined to shoot a portrait of his family for a Christmas card after discovering that Sears heads an organization that opposes same-sex marriage. Sears said he supported the photographer’s right to refuse service, just as he would support a gay baker’s right to refuse to make a cake with an anti-gay message.

Vendors thus far have accumulated a losing streak in wedding and similar cases. In Kentucky, for example, a hearing officer recently ruled against a print shop owner who refused to make T-shirts for a gay pride group.

Advocates for the vendors hope the court system will prove more sympathetic to their constitutional claims than civil rights agencies have been, even though the Supreme Court this year refused to hear an appeal from the New Mexico photographer. They are also pursuing legislation; in Michigan, the state House this month approved a measure that would protect business owners, while in South Carolina and in North Carolina, lawmakers are proposing measures allowing local officials to opt out of issuing same-sex marriage licenses.

Like many of the religious business owners, Phillips, who attends a Southern Baptist church, says his faith guides not only his personal behavior but also the way he runs his business. So while he says he welcomes all customers — and happily sells cookies and brownies to gays and lesbians — he says he is not comfortable pouring creative energy into confectionary centerpieces for celebrations he believes to be at odds with God’s will.

But for Charlie Craig and David Mullins, the couple he turned away, the incident was a form of bias. They married in Massachusetts — same-sex marriage was not legal in Colorado at the time — but were holding their party in Denver, where they live.

"We were really shocked, because neither of us had ever been denied service before, and it was mortifying and embarrassing," Mullins said. "I believe everyone has the right to believe whatever they want in their own heart and practice what they want in their own church, but in the ’60s, people used religious arguments to argue against interracial marriage, and I don’t think there’s any difference."

On a recent day, as Phillips decorated what he expected would be his final wedding cake until the issue was resolved — an elegant assemblage of gray and white tiers decorated with hydrangea, calla lilies and gerbera daisies — he reflected on his unexpected role in the debate. He has been baking for a living since he got a job in a doughnut shop after high school.

Phillips said he had politely declined to bake five or six same-sex wedding cakes before the dispute with Mullin and Craig. Since then, he has received thousands of emails, some threatening and some supportive. Protesters showed up, but so did a busload of tourists who purchased pastries as a sign of support and two young women from Kansas who asked if they could pray for him.

Of course, many religious business owners are serving same-sex weddings without incident. But there are also refusals that go unreported because the couples turned away by vendors simply move on.

"It really ticked me off," said Natalie Watson, a New Jersey lawyer who chose not to file a complaint in that state after the florist she first selected for her same-sex civil union voiced opposition to the event. "But at the end of the day, I wanted the focus to be on us, and not to go down some side street, so I didn’t do anything."

Michael Paulson, New York Times

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