A follow-up to the story of the New Mexico photographer who lost her court battle after refusing to take a job at a gay wedding. Different state and a different trade this time but a similar result potentially: The business owners in this case said no when a lesbian couple came into the shop looking for a wedding cake. The latter filed a complaint with the state under the relevant antidiscrimination law and an investigation, which could have taken up to a year, was launched. The bakers, having already been targeted for a boycott by opponents and likely fearing the expense and aggravation of a long court battle themselves, decided to close the shop and move operations into their home, which presumably renders the business “distinctly private” and therefore beyond the reach of the state’s public accommodations law. (Does it?)
Watch the extended interview with them about what they’ve gone through, paying special attention to the bit in the middle about “mafia tactics” by some gay-rights supporters. Two interesting wrinkles to this case vis-a-vis the New Mexico one. First, remember that Dale Carpenter and Eugene Volokh argued on the photographer’s behalf that, because photography is an art and inherently expressive, forcing her to cover an event to which she’s morally opposed necessarily violates her right of free expression. The same isn’t true, wrote Carpenter, of “more mundane and generic services (like cake-baking).” Presumably he’d agree with the gay couple, then, that the bakers have no right to refuse service. I’m not sure I grasp the distinction, though: In both cases, the business owners are being asked to celebrate an act to which they conscientiously object by producing a beautiful product in its honor. What’s more expressive, framing a shot of a married couple posing or crafting an elaborate cake to glorify the occasion? I’m not sure that there’s more artistry in photography in this case.
Second, note what the guy says in the clip about how they’ve made cakes for this couple before. They don’t refuse to serve gay customers, they refuse to serve gay weddings specifically. The same is true, I assume, of the New Mexico photographer. That’s a potential line of attack for social-conservative pols as they start to push back against cases like this — this isn’t a categorical refusal to serve a minority group, it’s a religious objection to serving at one particular type of event in which that group participates. That may not help them legally but it’ll help in the court of public opinion, where the majority in support of religious exemptions in situations like this is already overwhelming. I’d be surprised if we don’t start seeing legislative hearings about it, whether in Congress or at the state level, sometime next year.