Latest liberty cake wreck

by Walter Olson on September 5, 2013

In Gresham, Oregon, it’s anti-discrimination law 1, free association 0 as a family business that cited religious beliefs in declining to make a wedding cake for a lesbian couple, and was hit by an enforcement action as a result, shutters its retail shop in favor of baking from home. Oregon does not recognize same-sex marriage, which (as in the parallel New Mexico wedding photographer case) makes clear that the intrusion on individual liberty here arises from anti-discrimination law as applied to so-called public accommodations, not from marriage law. [Shackford, Reason] Related: “Religious liberty depends on right-of-center gay marriage advocates” [Stephen Richer, Daily Caller]

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My letter in the WSJ: antidiscrimination law and religious liberty - Overlawyered
09.26.13 at 12:45 am

{ 11 comments }

1 Canvasback 09.05.13 at 1:29 am

No big deal. It’s just Oregon. They don’t know what to think up there and they’re 20 years behind the rest of us. Last week a federal judge had to tell them it’s OK for a U.S. Marine to get on an airplane even if he’s named Ibraheim Mashal.
This cake tantrum is so Old Testament. Jesus’ words in Luke 6:37 and Matthew 7:1-6, about judging people, would be appropriate here.
My uncle moved to Coos Bay in the ’60s and I don’t think my Dad ever forgave him.

2 Shtetl G 09.05.13 at 10:09 am

The next wave of discrimination lawsuits will come from Gay/Lesbian/Transgender advocates who feel they were discriminated against when their cakes(or pictures) are not “good” enough. First you sue people to force them to go against their beliefs and then you sue them for discrimination when you don’t like results. That’s my prediction. We’ll see if it makes to Overlawyered in the future.

3 wfjag 09.05.13 at 11:38 am

@Canvasback:
The Gospels of Luke and Matthew are in the New Testament (unless you’re Church of the Jedi, in which case the Book of Luke follows the Book of Obi Wan).

4 jesse spurway 09.05.13 at 2:42 pm

not a lawyer. don’t know Oregon law. The First Amendment is not a pass-Go-free ticket. You can’t do whatever you want and say it is freedom of religion.
So a business out of a house doesn’t have to follow the law?

5 Xmas 09.05.13 at 4:49 pm

Jesse,

They’re being punished on public accommodation laws. It certainly puts this conversation into a new light though…

6 Canvasback 09.05.13 at 10:35 pm

Dear wfjag,
You begin to fit the profile of an Oregonian. Jesus’ message is that judgment is up to God, not cake decorators. You’ll note in my post how judgmental my father was against his own brother. I’m more of a New Testament guy – my own faults are burden aplenty. But I’ll never cease praying for you.

7 Robert 09.06.13 at 3:54 pm

Please don’t call the Hebrew Bible the “Old Testament.” It’s offensive.

And, as someone who is gay-married in California, I wish the GLBTQI Grievance Industry would chose its battles better. (I baked my own cake for my wedding.)

8 MF 09.06.13 at 7:29 pm

Robert, calling the Hebrew Bible the “Old Testament” should not be considered offensive. Old does not necessarily mean outdated, or inferior, or anything else. It’s a matter of fact that each of those books were written prior to the books of what Christians refer to as the “New Testament.” The first 39 books are just as relevant as the last 27. The Old was not in any way replaced by the New. (Those who think that follow Replacement Theology, which is abhorrent.)

Bottom line: Do not take offense where none is intended. We should all apply that in all areas of our lives.

9 gitarcarver 09.07.13 at 2:50 pm

Canvasback,

While this may be a less than ideal forum to discuss “judgement” as used in the Bible, your point is not correct.

As F. F. Bruce said, “Judgment is an ambiguous word, in Greek as in English: it may mean sitting in judgment on people (or even condemning them), or it may mean exercising a proper discrimination. In the former sense judgment is depreciated; in the latter sense it is recommended.”

Study notes in the NIV expound further: The Christian is not to judge hypocritically or self-righteously, as can be seen from the context. [But] Scripture repeatedly exhorts believers to evaluate carefully and choose between good and bad people and things. The Christian is to “test everything.”

1 Thes 5:21 (Phi) “By all means use your judgment, and hold on to whatever is good.”

Luke 12:57 (NIV) “Why don’t you judge for yourselves what is right?”

As far as the Oregon baker is concerned, I have yet to see any evidence or statements where the baker condemed, pronounced a judgement, or did anything that would fall into the type of “judgement” which Christians should not do. What the baker did say was she would not participate in, support, or help promote an activity which is sinful in her eyes. That type of “judgement” or discerment is what Christians should do.

The correct conclusion is that the baker acted correctly within her beliefs.

However, the question is really a clash of “rights.” To what degree does a person give up their rights as a member of society and as someone operating a business within the public sector? The Founding Fathers knew that rights were not “absolute.” We have all heard the statement “your rights end at my nose.”

But the Founding Fathers had one major exception to the curtailment or limiting of rights by the government. They believed that absent of real harm to another party, restricting religious freedom or freedom of conscience was wrong legally and morally.

Is there real harm to the gay couple if the baker does not make a cake? I would argue no. Is there real harm to a person demanding they act against their conscience or religious beliefs? I believe there is.

If we allow the government to say they can force people to act against their will, conscience, or religious beliefs, the concept of “freedom” is dead.

10 Melvin H. 09.07.13 at 8:40 pm

I still wonder in cases like this, would a freedom-of-association legal argument have any traction in cases like this?

11 Canvasback 09.07.13 at 9:12 pm

Mighty good stuff, gitarcarver. I could debate your theology, but like you say, this isn’t the place. Your paragraphs about the intersection of law and religion are excellent. Especially the 2nd to last about the comparative harms. From a Constitutional standpoint that could be where the rubber meets the road in this argument.

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