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Written by Don Byrd

[UPDATE 4/26: The Colorado Supreme Court has declined to take up the appeal in this case, leaving the decision described below in place.]

A Colorado law prohibiting businesses from discriminating on the basis of sexual orientation does not violate the religious freedom rights under the First Amendment of a baker who objects to same-sex marriage, according to a judge’s ruling late last week. Masterpiece Cake Shop and its owner Jack Phillips argued that federal and state constitutional free exercise guarantees protect them from the state’s public accommodation law. The judge disagreed.

Here is an excerpt from the opinion:

CADA [the Colorado Anti-Discrimination Act] does not compel Masterpiece to support or endorse any particular religious views. The law merely prohibits Masterpiece from discriminating against potential customers on account of their sexual orientation. . . Masterpiece remains free to continue espousing its religious beliefs, including its opposition to same-sex marriage. However, if it wishes to operate as a public accommodation and conduct business within the State of Colorado, CADA prohibits it from picking and choosing customers based on their sexual orientation.

The Supreme Court has consistently recognized that states have a compelling interest in eliminating such discrimination and that statutes like CADA further that interest.

. . .CADA creates a hospitable environment for all consumers by preventing discrimination on the basis of certain characteristics, including sexual orientation. In doing so, it prevents the economic and social balkanization prevalent when businesses decide to serve only their own “kind,” and ensures that the goods and services provided by public accommodations are available to all of the state’s citizens.

A few details are worth keeping in mind to distinguish these types of cases (which seem sure to keep coming). You may recall, for example, that earlier this year, a Kentucky court found in favor of a printing company that refused to print gay pride messages on festival t-shirts, despite a city ordinance prohibiting discrimination on the basis of sexual orientation.

First, the Kentucky court ruled that enforcing the provision against the t-shirt company violated Free Speech protections by compelling objectionable speech in support of gay pride. In this case, the Colorado court found that because Masterpiece refused to provide a cake before a design was even discussed, the objection was not to the *message* of the cake, but to providing the service at all to same-sex couples.

Second, though it likely did not make the difference, Colorado has not enacted a Religious Freedom Restoration Act (RFRA), while Kentucky has (although the Kentucky court’s t-shirt decision focused on the Free Speech argument, leaving many questions regarding its RFRA analysis unanswered.). I say it didn’t make the difference because the Colorado court found the state has a compelling interest in prohibiting discrimination. The outcome may likely have been the same even using the RFRA standard.

See the Baptist Joint Committee’s resource page on religious liberty and same-sex marriage.