Three reasons why baking a cake is NOT a free speech issue

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Bakers and photographers are at the center of the debate over same-sex marriage. First, it was a few conservative Christians who were sued and investigated for refusing to providing cakes or photography services to same-sex couples. And now, a baker in Colorado is facing a civil rights complaint for not making Bible-shaped cakes featuring anti-gay words and images.

Can bakers and photographer refuse to serve someone because they don’t want to endorse their marriage? Or because they don’t agree with their religious views?

Baseball wedding topNope.

Like it or not, the courts have ruled that bakers, photographers, and other businesses are exactly that — businesses. Their business decisions are not speech, they’re commercial transactions that are open to the public, the entire public regardless of race, gender, religion, and (in many states) sexual orientation.

Here’s three reasons why the courts have consistently ruled that free speech rights don’t trump civil rights laws.

1. They are public accommodations, not private individuals

Bakers and photographers aren’t individuals who spend their lives expressing their own views. They’re businesses who serve the general public. There is no difference between a baker and a bank. Businesses that do creative work must follow the same laws as everyone else.

Businesses can’t decide against some clients and not others — at least not those protected by civil rights laws. A baker who normally offers to make cakes for the general public can’t decide not to make a cake simply because of the client’s race, religion, and (in many states) sexual orientation. Either the business offers its services to everyone, or it doesn’t.

2. They are in the business of making products for clients, not expressing their own views

A baker is not in the business of spreading his or her own views. When he makes a cake that says “Happy Birthday Bob!”, he is not expressing his views on Bob or his birthday. Instead, a cake is given to a client only. Wedding photographs are bought by a couple. This is not like a newspaper being told what to write. People know that bakers and other businesses’ services are not endorsements. They are hired in an economic exchange. A cake that says “Congratulations to Bob and Mary!” doesn’t need to know who Bob or Mary are, let alone approve of their marriage.

3. They can express their own views through words, not by denying services

Bakers and photographers do have one free speech right. If they disapprove of a message, that business is free to express that disagreement. They can announce their disapproval both to the client and to the public. What they can’t do, however, is deny a service that they would normally provide to the public.

A conservative Christian can tell a client that he doesn’t approve of their nuptials. He can make public statements expressing his disdain for same-sex marriage. A baker can tell a client that she finds his views on God disdainful, even as she gives him the cake.

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