by Diane Robertson
A Christian man asked 13 gay bakers to decorate a cake with the words “Gay Marriage Is Wrong.” All thirteen bakers turned him down, many using obscenities while streaming insults. Although the man had no intention of suing the bakers, as homosexual couples have done to Christian bakers for politely refusing service, what would happen if he did?
Prosecutors for lawsuits against Christian bakers who refused to service gay weddings had legal advantage through city and state anti-discrimination laws. Through these laws, prosecutors have been winning these cases in almost every circumstance.
Anti-discrimination laws protect the right of the people to be treated equally. Anti-discrimination laws have become an extension of the equal protection clause of the 14th amendment, which says, “nor deny to any person within its jurisdiction the equal protection of the laws.” Anti-discrimination laws extend that “equal protection” to employment, housing, and consumer transactions. Bakeries, photographers, florists, bed and breakfast owners, farms and homes that host weddings, lawyers, and doctors would all be considered consumer transactions. These consumer transactions are generally and legally referred to as “public accommodations.”
When a baker refuses to make a wedding cake for a gay couple but will make a wedding cake for a heterosexual couple, that baker would then be considered to be treating the couples unequally according to the law. When sued, the law would side with the person being treated “unequally.” Given that, one would think that when a baker refuses to make a cake that says, “Gay Marriage Is Wrong” but then makes a similar cake for another customer that says “Support Gay Marriage” that baker would be treating the customer who thinks gay marriage is wrong “unequally.”
However, that is not how anti-discrimination laws work.
Anti-discrimination laws include categories of people who cannot be discriminated against. These categories historically included, race, gender, age, disability, and sometimes religion. In more recent years, laws have been amended to include sexual orientation and gender identity. Everyone else is not protected under these laws.
The Christian man who was refused by 13 bakers to make a cake that said, “Support Gay Marriage” would have a very hard time proving that anti-discrimination laws protect him, even if he was treated unequally. If such a case could even make it to the court, a judge would more than likely throw it out. In fact, most media outlooks would likely treat these bakers as heroes peacefully paving the way for gay rights by refusing services to a “bigoted” man.
In the end, anti-discrimination laws do not protect all people. State and city laws that include the words “sexual orientation and gender identity” don’t exactly provide equal protection under the law. If anything, they provide special protection under the law. Special protection is not equal protection. With anti-discrimination laws someone will ultimately be discriminated against.
**Most federal anti-discrimination laws do not yet include the terms “sexual orientation” and “gender Identity.” This may change and these laws ought to be closely monitored to guard against those changes. They include: Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), Consolidated Omnibus Reconciliation Act of 1985 (COBRA), Equal Pay Act, Employee Retirement Income Security Act (ERISA), Family Medical Leave Act (FMLA), Fair Labor Standards Act (FLSA), and Title VII of the Civil Rights Act of 1964.