Marriage, rights, and cake

From the NYT on the 8th, “States Weigh Gay Marriage, Rights and Cake” by Jack Healy:

Denver — The case before the court on Tuesday grappled with issues of equal rights, religious objections to same-sex marriage and wedding cake.

At issue was whether Jack Phillips, a Colorado bakery owner, had broken state antidiscrimination laws when he refused to make a cake for a gay couple’s wedding reception, citing his religious beliefs. With same-sex marriage now legal everywhere nationally in the wake of the United States Supreme Court ruling in June, his case is being closely watched as a test of the boundary between personal religious objections and legal discrimination.

… “This case is simply not about cake,” said Ria Mar, a staff lawyer for the American Civil Liberties Union, which represented the couple, Charlie Craig and David Mullins. “Businesses open to the public must be open to all, on the same terms.”

Unless Ria Mar is using “open to all” and “on the same terms” in an exceptionally careful way, this can’t be right.

Here’s the problem. For public accommodations (goods or services open to all), the businesses in question are in fact free to accept or turn away anyone they wish — so long as the people are not in a protected class for some relevant legally stipulated purpose. Eating places are entitled to declare NO SHIRT NO SHOES NO SERVICE, and fancier eating places are entitled to require, for instance, that male customers wear a coat and tie. That’s because there’s no law protecting diners from discrimination on the basis of their dress.

You can conjure up any number of other cases. Some are tricky — mothers nursing infants in public, for instance. Others are straightforward: US law bars refusing service in your restaurant to Jews or blacks. (Of course these laws have to be enforced; the Cracker Barrel restaurants brazenly discriminated against black customers and employees for many years, until the law finally came down heavily on them.)

That brings us to legally protected classes. You might recall the confrontation (back in March) between Indiana Gov. Mike Pence and ABC’s George Stephanopoulos. From PoliticusUSA at the time:

Pence dodged a question about whether or not he believes in discrimination against gays and lesbians. Stephanopoulos asked for a second time if Pence supported legalized discrimination against gays and lesbians, and Pence basically accused the This Week of being an Internet troll.

Indiana has no state law protecting gays and lesbians for any purpose at all (in particular, in public accomodation, housing, or employment), and Pence was adamant in his refusal to consider any such thing (by looking at his history and the history of his close advisers, you can see that this refusal was based on fundangelist religious opposition to homosexuality), but he was also unwilling (for political purposes) to make public his opposition, so he was reduced, for the most part, to impotent silence or dithering.

Now to Colorado and its cakes. This looks straightforward, since (as the ACLU’s useful website tells us),

Colorado state law bars discrimination based on sexual orientation and gender identity in employment, housing and public accommodations.

The religiously anti-gay have taken some inventive tacks to pull their beliefs into the story — maintaining, for example, that supplying a wedding cake is an endorsement of the marriage, or even that it constitutes participation in the marriage ceremony. We’ll see how the story develops.

(Ah, I see now, from a different NYT story, from June 27th, that religiously anti-gay groups are demanding (among other things) “clear religious exemptions from discrimination laws”. That is, they assert that the protection of religious belief trumps other protections.)

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