First Amendment vs. Anti-Discrimination

cakeColorado has made national news again, this time not with its dope-smoking agenda but its bigotry. Oh good. We’re moving up in the world.

A Lakewood-based cake shop refused to make a wedding cake for a gay couple. Gay marriage is still illegal in Colorado. But the couple had apparently been married in Massachusetts and was ordering a cake for a reception ceremony they were going to have here in Denver. However, our illustrious Cake Blocker in question is a devout Christian and believes homosexuality to be a sin, so he evoked his right to religious freedom under the First Amendment as his defense. Well, he was ruled out by Colorado Civil Rights Commission in violation of Anti-Discrimination Laws, that his religious views do not trump Civil Rights laws. The shop’s attorney is considering an appeal still based on the grounds of his First Amendment rights.

Dickish? Yes. But does he have a defense based on our Bill or Rights? Turns out…maybe.

First of all, believe me when I tell you I am loathe to defend this asshole. If I were the judge in this ruling, I’d have forced him to bake a cake in the shape of the word “BIGOT” and make him eat it in public display of humiliation, literally forcing him to eat his own words. Then again, that’s probably why I’m not a judge. Let that also disclaim unto you that I am not a legal counselor in any way. I just really like looking up shit online.


This is not a sign to a Sherwin Williams showroom.

The Civil Rights Act of 1964 is coming up on its 50th birthday–July 2, 2014 in fact, will mark the golden anniversary of one of the most important legal actions of our nation. But it turns out that Anti-discrimination laws vs. First Amendment rights have had quite a litigious arm wrestle in that time. In the 70’s, decisions swayed generally in favor of anti-discrimination, but most cases were urged to settle out of court. But, thanks to the Supreme Court ruling in 2000 to allow the Boy Scouts of America the right to refuse to allow an openly gay leader based on their “right to  expressive association” that homosexuality is immoral, rulings have gone more toward favor of First Amendment since then.

Here’s a 75-page paper written in 2000 that explains in detail the paragraph I just summarized for you. (Confession: I didn’t read the whole thing either.)

Other rulings followed in favor of employers’ rights to expressive association against certain employees, mainly in cases where private companies and institutions fired an employee because something they did violated their company image. However, BSA vs. Dale and those others dealt exclusively with membership and employment, not refusing service. For that, we have to go to the Civil Rights Act.

The Federal Civil Rights Act of 1964 states:

“Full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, without discrimination or segregation on the ground of race, color, religion or national origin.”

Some states, including Colorado, have expanded the definition of protected classes defined by:

“Disability, Race, Color, National Origin, Ancestry, Sexual Orientation, Sex (includes pregnancy), Creed, Religion (employment and housing only), Age (employment only), Marriage to a Co-Worker (employment only), Marital Status (housing and public accommodations only), and Familial Status (housing only).”

You’d think that would do it right there. After all, our legal system is so straightforward. But you’d be wrong.

According to this article the right to refuse service has been contested, and has been granted under certain conditions. Listed in their examples, the ruling was based on whether or not the business had a specific interest in refusing service. Like when a group of bikers tried to enter a sports bar and refused to remove their “colors” signifying their gang membership, the business refused their entry because the bar had an interest in preventing fights between rival members, and therefore won the case.

However, when a restaurant refused to seat a gay couple in a semi-private booth because it violated their dumbass policy of only seating members of the opposite sex in such a booth, a jury ruled there was no valid claim for their argument, so the case ruled in favor of the couple.

In another really weird case that involved a dress made of live rats, a mother of her deceased 17-year old daughter who had died of a drug overdose requested a private funeral service at her burial, and that only family and invited guests were permitted to attend. She further specified that “punk rockers” were not invited…which the funeral service completely failed to mention before the service. That didn’t go over well.”The punk rockers arrived in unconventional dress, wearing makeup and sporting various hair colors. One was wearing a dress decorated with live rats. Others wore leather and chains, some were twirling baton-like weapons, drinking, and using cocaine. The punk rockers made rude comments to family members and were generally disruptive of the service.”

Obviously, it wasn’t the punk rockers who tried to sue–when have punks ever been that organized? It was the funeral home’s counter-attempt at a defense claiming that it is forbidden by law to refuse anyone from attending a service under California’s Unruh Civil Rights Act. California jury ruled that, no, the funeral home had catastrophically fucked up as, “the punk rockers’ presence had deprived the deceased person’s family of the services of the business establishment, which were meant to provide comfort to grieving family members. On that basis, the court stated that the funeral business could have legitimately denied access to the punk rockers.”

Or you know. Called the frikkin’ police on public drunkenness charge, illegal drug possession, probably some kind of animal rights violation, or just general goddamn nuisance.

(Wow…did I just pull the “get off my lawn” defense? I think I did. Time to go pull out the Violent Femmes, Social D, and Ramones playlists! I am not old…I am not old…I am not old…)

Anyway. I can’t see how refusing to bake a cake for a gay couple is in the best interest of the cake shop. It’s not like gay activists have ever done anything publicly embarrassing.


Note: Photo has been artistically manipulated by the author in order to illustrate the suffering of gay Native Americans. And his penis.

But the First Amendment hasn’t been the only right invoked. In a totally ironic case, Heart of Atlanta Motel vs. United States case of 1964, the Atlanta hotel refused to rent rooms to black patrons once the Civil Rights Act passed that same year. The owner—a lawyer—filed a federal suit arguing his Fifth Amendment right had been violated (unfair treatment in legal process) because Congress had no authority to tell him how to run his business to protect the value of his property, known as one of the first cases of the “there goes the neighborhood” defense. As if that wasn’t bad enough, Snidely Whiplash down there further had the soccer-size balls to claim that Congress had “placed him in a position of involuntary servitude” by forcing him to rent rooms to black patrons, violating the Thirteenth Amendment…you know, that little one that fucking abolished slavery?

Moreton Rolleston

If my balls had their own balls, they’d still be bigger than your balls.

Well, the Supreme Court overruled his case in the “rubber versus glue” defense, and now The Heart of Atlanta Motel is apparently now a Hilton.


Come celebrate White History Month with us! (Jan 1 – Dec 31)

So back to our original article. Does our jackass cake maker have any legal claim that his First Amendment right has been violated by forcing to make cakes for the gays? No, probably not. And according to one AP article, he’s not taking orders for any wedding cakes right now anyway, which is totally within his right to offer whatever services he wants within the parameter of the law…and probably some zoning regulations and shit. But it hasn’t been as cut and dry as you’d normally think. If they appeal, and depending on the court, they could rule in favor of his First Amendment right. If so, this may come down to a case that Free Speech does not protect you from paying the consequences of it, as Donald Sterling recently illustrated for us. If the Cake Blocker’s business survives the kind of backlash he’s bound to invite, I’ll be surprised.

Not least of which, being called the Cake Blocker.

About TLS

Motivated by mild insanity, artificial self-hatred, and confused curiosity.
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