Can the owner of a bakery refuse to sell a cake with a celebratory message on it to a gay couple seeking to wed, based on the baker’s religious objections to gay marriages? Yes – but.
Can a photographer refuse to be the official photographer for the same situation above? Yes, but.
Can a public employee refuse to issue a license to a gay couple that applies for a municipal or state marriage license? Maybe.
Let’s take a closer look.
There is ample case law from the United States Supreme Court that says individuals cannot discriminate against other citizens in a place of public accommodation based on various criteria. Discrimination is wrong, especially in a place like a bakery, a movie theater, or in providing a public services, like a wedding photographer.
The same case law, however, makes some important distinctions. For example, While you cannot discriminate in providing services in a place of public accommodation, the same case law says that the state cannot force an individual to make a statement with which he or she disagrees.
The fact is, a bakery sells cakes, etc. The owners of the bakery cannot discriminate. The message the customer wishes to put on the cake, however, is not a messages the owner must share. The place is separate from the message conveyed. And the owner should be able to reject the message while selling the cake.
A baker, for example, cannot be compelled to put a congratulatory message on a cake if he fears that that message will be attributed to him or his business, especially in a situation where the baker makes it known that he or she disagrees with the message conveyed. Forcing a baker to do otherwise would be like the state grabbing the bakers hands and forcing the objectionable message to be written against the baker’s wishes. This would be outrageous.
The state can say to the baker: you have to sell the cake. It can’t say: write the following words on it — especially if one has strong religious objections to the message conveyed. The message is neither public nor a place of pubic accommodation.
The same applies to a private photographer. The state cannot compel a private photographer to attend a gay wedding with which he or she objects. A photographer is a key component of a wedding and is expected to join in the occasion at all levels. I suppose he or she could hang a sign on his or her back that says: “I object to this wedding on religious grounds and am forced to be here by the state,” but that would be somewhat counterproductive and add a rather sour note to the occasion.
Now as for the case of a county clerk who refuses to issue a license, that may present us with a slightly different and complicated issue. The state argues that the county clerk is not endorsing the wedding, but simply acting in place of the state in issuing a license. But the signature on the license is the signature of the individual clerk.
Look at this situation another way: would a gay clerk be required to sign off on a marriage license for a member of the Westboro Baptist Church? I seriously doubt it. This is one of those situations where strongly held religious and personal beliefs should be given special consideration. How?
The state, unlike an individual baker who owns a private shop, has access to numerous clerks, many of whom may not have such strongly held beliefs and who will gladly perform the same function without offending anyone. In cases like this a reasonable accommodation moves the license forward while preserving the strongly held religious beliefs of clerks who work for the state. In other words, the least restrictive imposition on speech is the preferred approach, one which the courts should take, and one which offends neither set of rights.
As for those state agencies that have ruled against the Bakery owners. They should be ashamed of their own obvious biases — and those individuals involved in writing those decisions should be removed. The law seems to be pretty clear on this subject and state actors should know better than fine the owners of the bakery or punish them in any way.