Baker's Bias: Gay Weddings And Cake Refusals

The refusal of bakers to bake cakes for gay weddings has been a contentious issue in the United States, with several legal cases emerging in recent years. The most prominent case involves Christian baker Jack Phillips, who refused to make a cake celebrating a gender transition and also refused to make a wedding cake for a gay couple, citing his religious beliefs. In both cases, Phillips was sued for violating state anti-discrimination laws, and the cases sparked debates about the intersection of religious freedom and freedom of expression with anti-discrimination protections for LGBTQ+ individuals. While Phillips won a partial victory at the U.S. Supreme Court in 2018, lower courts have since ruled against him, finding that his refusal to serve LGBTQ+ customers constituted unlawful discrimination. The issue remains divisive, with ongoing legal challenges and concerns about the implications for freedom of speech and religious expression.

Religious beliefs

Some bakers who refuse to create cakes for same-sex weddings believe that doing so would violate their First Amendment right to freedom of speech and freedom of religion. They argue that creating a cake for a same-sex wedding would be a form of expression that endorses same-sex marriage, which conflicts with their religious beliefs. On the other hand, LGBTQ+ couples argue that denying them service based on their sexual orientation is a form of discrimination prohibited by law.

The legal battles surrounding this issue have resulted in mixed rulings. In 2018, the U.S. Supreme Court ruled in favor of a Christian baker who refused to make a wedding cake for a gay couple, citing religious freedom. However, in a separate case, the Colorado Court of Appeals sided with a transgender woman who was denied a cake by the same baker, stating that the cake was not a form of speech and that the baker's religious freedom did not exempt him from anti-discrimination laws.

The debate over religious beliefs and LGBTQ+ rights continues to be a contentious issue in the United States, with strong opinions on both sides. While some bakers feel that their religious beliefs prevent them from creating cakes for same-sex weddings, others argue that discrimination against LGBTQ+ couples is unacceptable and illegal. The legal system is still navigating the balance between religious freedom and anti-discrimination laws, with court rulings setting precedents for future cases.

Freedom of speech

One notable case involves Jack Phillips, a Colorado baker who initially won a partial victory at the US Supreme Court in 2018 after refusing to make a wedding cake for a gay couple. However, he later faced another lawsuit filed by Autumn Scardina, a transgender woman who requested a pink cake with blue frosting for her birthday to celebrate her transition from male to female. Phillips refused to make the cake, and the case went to the Colorado Court of Appeals, which ruled that the cake was not a form of speech and that the state's anti-discrimination law, which prohibits refusing services based on protected characteristics like race, religion, or sexual orientation, did not violate business owners' right to practice their religion. The court found that creating a pink cake with blue frosting is not inherently expressive, and any message or symbolism would not be attributed to the baker. Phillips' lawyers argued that he refused service based on his sincere Christian beliefs and that forcing him to make the cake would violate his free speech rights. However, the court rejected these arguments and found that Phillips' refusal constituted discrimination.

Another case involves Aaron and Melissa Klein, owners of a bakery in Oregon, who were ordered to pay $135,000 in damages after they declined to make a custom cake for a lesbian wedding. The lesbian couple sued, claiming that the incident caused weight gain and was akin to being "mentally raped." The Kleins closed their custom cake business due to the financial burden of the penalty and argued that their religious beliefs should allow them to refuse service without facing legal consequences. Their attorney, Michael Berry, from the First Liberty Institute, stated, "Punishing people for their religious beliefs is wrong, it's un-American... What about what's happened to Aaron and Melissa Klein and their family? The fact that this $135,000 penalty has forced them to close their business... That's harmful, not only to Aaron and Melissa Klein, but really to all Americans. Because that means the government can now force us, under threat of massive penalties, to say things that go against our religious beliefs. And that's just wrong."

These cases highlight the complex interplay between freedom of speech, freedom of religion, and anti-discrimination laws. While some argue that business owners should have the right to refuse service based on their religious beliefs, others counter that refusing service to certain groups, such as the LGBTQ+ community, constitutes discrimination and harms individuals' rights. The courts have been grappling with these conflicting rights and seeking to balance them in a way that upholds the values of freedom and equality.

Anti-discrimination laws

Federal Level:

The US federal government does not explicitly include protections against discrimination based on sexual orientation or gender identity in its laws. However, in June 2020, the US Supreme Court ruled that sexual orientation and gender identity are included under the Civil Rights Act of 1964, prohibiting employment discrimination against LGBTQ+ individuals. This ruling may also impact other federal civil rights laws that ban sex discrimination in areas such as education, healthcare, housing, and financial credit.

State Level:

As of 2025, 23 states, Washington, D.C., Guam, and Puerto Rico outlaw discrimination based on sexual orientation, while 22 states, Washington, D.C., and Guam outlaw discrimination based on gender identity or expression. These laws vary in their scope and enforcement, and some states have additional protections or restrictions at the municipal level.

Housing and Public Accommodations:

The Fair Housing Act and the Equal Access Act of 2020 prohibit discrimination in housing based on sexual orientation and gender identity, respectively. Additionally, over 20 states and some municipalities have enacted laws that explicitly prohibit discrimination in housing and public accommodations, such as access to public restrooms, on the basis of sexual orientation and gender identity.

Education:

The Every Student Succeeds Act of 2015 includes provisions to protect LGBTQ+ students from discrimination and ensure their access to equal educational opportunities. However, some states have introduced legislation that restricts the discussion of LGBTQ+ topics in schools, with at least seven states enacting laws that censor school curriculum or prohibit certain diversity and inclusion programs.

Healthcare:

The Affordable Care Act (ACA) and its interpretation by the Biden administration in May 2022 affirm that gay and transgender people's access to healthcare is protected under the law. This includes a prohibition on denying healthcare services or coverage based on gender identity. However, some states have introduced laws that restrict access to gender-affirming healthcare for transgender youth, with at least 15 states enacting such bans as of 2023.

Military Service:

As of 2021, LGBTQ+ individuals are allowed to serve openly in the US military, and transgender people are specifically protected from discrimination. However, there have been recent attempts to restrict the participation of transgender individuals in the military, with policies varying depending on the current administration.

Hate Crimes:

Hate crimes based on sexual orientation or gender identity are punishable by federal law under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act. However, many states lack laws that specifically cover sexual orientation and gender identity as protected categories.

Conversion Therapy:

Conversion therapy, which aims to change an individual's sexual orientation or gender identity, is banned for minors in over 20 states and some municipalities. However, there are ongoing efforts to restrict this practice further, with proposed legislation seeking to ban it entirely or prohibit its coverage by health insurance.

Passport Gender Marker:

Since April 11, 2022, US passports offer the options of male, female, and "X" for individuals who do not identify as male or female. This self-determination of gender is a significant step towards recognizing the rights of non-binary and intersex individuals.

Other Areas:

Other areas where anti-discrimination laws may apply include family law, adoption, and access to government benefits. Additionally, there are ongoing efforts to address issues such as LGBTQ+ homelessness, aging, and intersectional discrimination, as well as the unique challenges faced by LGBTQ+ individuals of color and those with disabilities.

Public accommodation laws

In the United States, federal non-discrimination laws do not prohibit discrimination in public accommodations on the basis of gender identity, sexual orientation, or sex. They only specify that race, colour, national origin, religion, and disability are protected characteristics. However, most states and the District of Columbia outlaw discrimination on the basis of sex, and some courts interpret the category of "sex" to include gender identity.

In 2020, the Supreme Court held in Bostock v. Clayton County that discrimination on the basis of sexual orientation and gender identity is sex discrimination. This means that the federal Fair Housing Act, which prohibits sex discrimination by most landlords, also prohibits discrimination on the basis of sexual orientation and gender identity.

In 2018, the U.S. Supreme Court ruled that the Colorado Civil Rights Commission had acted with anti-religious bias in enforcing the anti-discrimination law against a baker who refused to bake a cake celebrating a same-sex wedding. The justices called the commission unfairly dismissive of the baker's religious beliefs. However, the high court did not rule on the larger issue of whether a business can invoke religious objections to refuse service to LGBTQ+ people.

In 2023, the Colorado Court of Appeals ruled that the state law that makes it illegal to refuse to provide services to people based on protected characteristics like race, religion, or sexual orientation does not violate business owners' right to practice or express their religion. The court also found that creating a pink cake with blue frosting is not a form of speech and thus the baker's refusal to make such a cake for a customer celebrating their gender transition was unlawful discrimination.

Rights of the LGBTQ+ community

The rights of the LGBTQ+ community have been a contentious issue in the United States, with legal battles fought over whether businesses can refuse to serve gay customers on the basis of religious freedom. While the First Amendment protects the freedom of speech and religion, it does not give individuals the right to discriminate against others based on their sexual orientation or gender identity. The Fourteenth Amendment also guarantees equal protection under the law, which means that LGBTQ+ individuals have the right to be free from discrimination and receive equal treatment.

In recent years, there have been several high-profile cases involving Christian bakers who have refused to make cakes for same-sex weddings or celebrations of gender transitions. These cases have sparked debates about the extent to which religious beliefs can be used to justify discrimination against LGBTQ+ individuals. While some argue that businesses should have the right to refuse service to anyone they choose, others argue that allowing such discrimination would be a violation of the civil rights of LGBTQ+ individuals.

In the United States, the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex, and national origin in places of public accommodation. However, sexual orientation and gender identity are not explicitly included as protected characteristics under federal law. As a result, there is no consistent legal protection for LGBTQ+ individuals against discrimination in areas such as housing, employment, and public accommodations. While some states have enacted laws prohibiting discrimination on the basis of sexual orientation and gender identity, many others have not, leading to a patchwork of legal protections across the country.

The lack of explicit legal protections for LGBTQ+ individuals at the federal level has resulted in ongoing legal battles and uncertainty for both businesses and LGBTQ+ individuals. While some courts have ruled that refusing to serve LGBTQ+ customers violates anti-discrimination laws, other courts have sided with business owners who claim that providing services for same-sex weddings or gender transitions would violate their religious beliefs.

To protect the rights of LGBTQ+ individuals and ensure equal treatment under the law, it is necessary to enact comprehensive anti-discrimination legislation at the federal level that explicitly includes sexual orientation and gender identity as protected characteristics. This would provide clear and consistent legal protections for LGBTQ+ individuals across the country and help to prevent businesses from using religious beliefs as a justification for discrimination.

Furthermore, it is important to recognize that refusing to serve LGBTQ+ customers is not just a matter of religious freedom, but also has a significant impact on the lives of LGBTQ+ individuals. Denying services to LGBTQ+ individuals reinforces a history of discrimination and exclusion, contributing to a culture in which LGBTQ+ individuals are made to feel like second-class citizens. It is essential that businesses understand that providing services to LGBTQ+ customers does not constitute an endorsement of their sexual orientation or gender identity, but simply treats them with the same dignity and respect as any other customer.

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