Don’t tolerate discrimination, even from “artistic” businesses
By Steve Kilar, November 2018 Issue.
My husband and I had a small wedding –just us and six other people. We didn’t put a lot of thought or money into most aspects of the event, but we did put quite a bit of planning into the food.
Following the ceremony, which we had in our living room, the eight of us went to Pizzeria Bianco in Heritage Square. Back at home after dinner, my husband made a special punch that we served from a crystal bowl with a ladle, as if we were at the kind of middle school dance you’d see on TV.
And, of course, we ordered a fancy cake. The team at Kick Ass Kakes in central Phoenix made us a simple, but beautiful, three-tiered carrot cake with white frosting and silver fondant bands at the base of each layer. It was an edible work of art.
I hesitate to use that word, “art,” and not because of the kitschy porcelain grooms that stood on top of the cake. I am cautious about using that word because a self-described “Christian” legal organization based in Scottsdale is trying to weaponize “art” against same-sex couples and people who are not cisgender.
What Does Art Have to Do with Discrimination?
The Alliance Defending Freedom (ADF) has argued in many court cases that some businesses employing artistic skills should be able to turn away customers despite nondiscrimination laws intended to protect the whole public’s access to goods and services.
They argued that a florist in Washington state should not have to supply flowers for a gay couple’s wedding and they told a court in Phoenix that an Arizona-based calligraphy company should be able to deny requests for wedding invitations from same-sex couples, among other cases.
In a lawsuit that the U.S. Supreme Court decided earlier this year, the ADF argued that Masterpiece Cakeshop, a Colorado bakery, should be able to turn away same-sex couples’ wedding cake orders because the artistic skill that goes into producing a cake means it is expressing a message from the baker.
The U.S. Constitution gives a high level of free speech protection to artists who produce unique works and do not offer their services broadly to the public. The government typically cannot censor their work, tell them what their work must look or sound like, or mandate the message their work conveys.
The ADF is trying to group skilled businesses in with artists because of the significant free speech protection our laws provide artistry. But when a business opens its doors to the general public, no matter how much artistry goes into its product, the owner does not get to pick and choose which customers to serve.
The Masterpiece Cakeshop baker won at the U.S. Supreme Court because a majority of the justices believed his case did not get a fair hearing from the Colorado Civil Rights Commission. The justices did not decide, however, the underlying question of whether a wedding vendor’s freedom of speech authorizes them to deny some customers service in spite of a nondiscrimination law.
In fact, although the baker won this round, the Arizona Court of Appeals recently cited the U.S. Supreme Court’s opinion as support for the rights of customers who may want calligraphy on their wedding invitations.
If You Face Discrimination, Report It
Unlike Colorado, Washington and many other states, Arizona does not (yet) have a law that protects customers from sexual orientation and gender identity discrimination.
Nevertheless, several Arizona cities—Phoenix, Tucson, Tempe, Flagstaff and Sedona—prohibit businesses from discriminating against customers because of these personal characteristics. In these five places, the local government will investigate complaints about sexual orientation and gender identity discrimination.
If you ever feel like you are mistreated by a business because of your sexual orientation or gender identity, you should report it. Do not let the ADF’s attempts to complicate this issue dissuade you. A business that is open to the public, even a business that uses artistry to make its products, should not deny a customer service because of that customer’s sexual orientation or gender identity.
Requiring a business that is open to the public to treat all customers equally, no matter how much skill goes into the product, does not mean the business is expressing any particular message.
The cake my husband and I requested reflected our intimate, modest wedding. It was exactly what we had in mind. Even though Kick Ass Kakes baked it, and used great skill to decorate it, the cake reflected what we wanted our wedding to say about us, not what the Kick Ass bakers wanted to say about our wedding.