Have you heard the one about the Colorado baker who’s facing a jail stay for his refusal to make a wedding cake for two men who were married in Massachusetts? It’s all over YouTube and Facebook.
OK, so it’s not their marriage that created the legal issue but the fact that Colorado -- which has a constitutional ban on same-sex marriage -- prohibits discrimination by businesses. And in fact the potential for criminal sanctions has been stripped from the state’s anti-discrimination statute.
And it turns out it’s not so much a lawsuit as a Civil Rights Commission complaint that’s more than a year old. And the baker in question didn’t just turn down one couple but several, opining that making a cake for them would be like making one for a pedophile celebration. (Although he is at peace making cakes for dog weddings, apparently.)
Other than that, the newest tale of LGBT persecution of a shopkeeper exercising his First Amendment right to religious freedom is for real. And, with same-sex weddings slated to take place here next week, local bakers, too, should fear persecution.
Welcome, Minnesota, not just to the ranks of states that recognize LGBT marriage rights, but to the murkier plane of the Internet meme that resists fact-checking.
In the run-up to the 2008 vote on Prop 8, California’s now-overturned constitutional amendment, foes of same-sex marriage realized they had a problem. Popular opinion might not have yet swung in favor of LGBT marriage rights, but many people did not see how someone else’s marriage was any of their business.
So the strategists behind the successful Prop 8 campaign set out to create negative consequences for married heterosexuals, albeit hypothetical consequences that might occur in the future. Chief among these: Churches and people of faith would be persecuted if they disapproved of same-sex unions.
The tactic turned out to be so powerful that the resulting “argument from consequence” campaign messaging carried the day for four years and in 31 states. Never mind that virtually all of the cases mentioned in the breathless ads involved laws that had nothing to do with marriage.
Groups issue warnings
The groups are now warning that Minnesota officials have targeted those who oppose the new law.
“MN Makes Clear: Individuals, Businesses, Nonprofits All Face Lawsuits From SSM,” is the headline on an entry on the National Organization for Marriage’s blog. “The Minnesota Department of Human Rights today released rules listing all of the individuals who now face lawsuits for not recognizing redefined marriage.”
Minnesota for Marriage’s Facebook page contains similar posts. “We know we (and many of YOU!) have been accused of ‘fear-mongering’ by letting people know that businessmen and businesswomen of faith stand to be fined for their belief that marriage is only between 1 man and 1 woman under the gay ‘marriage’ law,” one states.
“Turns out that our fears were indeed based in fact. The MN Dept. of Human Rights has now issued their memo on the gay ‘marriage’ law that outlines how the religious convictions of our MN business owners have no place in the public square anymore.”
Unless one clicks through to the rules from either post, it’s completely unclear that the item in question doesn’t name a single person or business, much less threaten consequences. The web pages on the other end of the link contain guidance from the state agency on compliance with the state’s 20-year-old anti-discrimination statute.
They also contain plain-English explanations of the religious-freedom exemptions in state law that say churches and other faith communities are not obligated to perform any wedding that violates their beliefs.
“The new law provides specific exemptions for religious entities from taking part in the solemnization of same-sex marriages,” the site explains. “Therefore, a religious entity may choose not to marry a same sex couple as it has exclusive control over its own theological doctrine, policy, teachings and beliefs regarding who may marry within that faith.”
“We view it as a violation of the constitution to dictate to a church who it should or should not marry,” said Minnesota Human Rights Commissioner Kevin Lindsey.
Difference in laws
While his department has not heard much concern about the new marriage law, Lindsey said he did spend time explaining the difference between it and existing human rights statutes before last fall’s vote on a proposed state LGBT marriage ban. Minnesota has prohibited discrimination on the basis of sexual orientation since 1993.
“The law does not exempt individuals, businesses, nonprofits, or the secular business activities of religious entities from non-discrimination laws based on religious beliefs regarding same-sex marriage,” the Human Rights Department website further explains.
“Therefore, a business that provides wedding services such as cake decorating, wedding planning or catering services may not deny services to a same-sex couple who is planning a wedding based on their sexual orientation.”
Indeed, Minnesota’s existing human rights laws go further than any other state’s in terms of insuring religious freedoms. Religious organizations such as Catholic Charities and parochial schools are exempt from complying with the laws in realms like the provision of adoption or social services so long as they do not use public funds.
“What we’re really trying to convey is that if you are a business on Main Street and people look at you and think of you as a flower shop or a bakery, and they don’t really think of you as a mosque or a synagogue, you don’t have the right to discriminate,” said Lindsey.
Nor is there evidence that an avalanche of lawsuits is to be expected. University of Minnesota Law School Professor Dale Carpenter has written that in those states where gay marriage has been legal very few discrimination complaints have been filed.
“And the number of these conflicts in which the state's formal legal recognition of the gay couple determined the outcome is ... zero,” he noted in a commentary published by the St. Paul Pioneer Press. “The number of cases in which a gay couple's marriage provided them a cause of action they wouldn't have previously had is ... zero.
“The number of cases in which the existence of a gay marriage or civil union defeated an otherwise meritorious religious-exemption claim is ... zero. In short, after 10 years of same-sex marriage in the U.S., there is not a single case whose outcome turned on whether the complaining person or couple was married.”
Does Lindsey expect Minnesota to be an exception? “I was only 2 years old when Loving v. Virginia came down,” he said. “My sense is that while there were certainly some businesses that threw their arms open to interracial couples, there were many that didn’t.”
Times seem to have changed, he continued. “I do think it’s significant that you have the mayor of Minneapolis offering to officiate at weddings and there are businesses offering to give their space away for free.”