And I’ll never have that recipe again

Having just returned from Ireland, I can’t help but note Irish actor and occasional crooner Richard Harris’ incredibly horrible performance of MacArthur Park as I introduce this column. It was such an abysmal song it was good, reaching #2 on the American charts. The chorus went thusly:

MacArthur’s Park is melting in the dark

All the sweet, green icing flowing down

Someone left the cake out in the rain

I don’t think that I can take it

‘Cause it took so long to bake it

And I’ll never have that recipe again.

That song leads me to this week’s story about a cake baker, you know the one, the Colorado baker who didn’t want to decorate a cake for a gay couple. The Supremes came down on the side of the baker, not surprising to yours truly based on the facts of that case, but some disagree. The Supremes ruled that the Colorado Civil Rights Commission had not given the baker’s “sincerely held” religious beliefs deference, in fact the Commission demonstrated a hostility toward religion in its treatment of the baker. The Court sent the case back for reconsideration in light of the Court’s reasoning.

In ruling for the baker, Justice Kennedy pointed out the the Commission did not penalize a baker who refused to put anti-gay slogans on a wedding cake, yet did penalize this baker for not decorating a cake to suit the gay couple. A commissioner said “freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust.” The justices found fault with that statement. When you have bureaucrats making decisions about who should be forced to do something, you get human prejudices involved.

Some examples that came up during this litigation: Would a Catholic legal services organization be able to refuse services to a same sex couple? Could a Muslim charity be overwhelmed  by applications from non-Muslims for services? Could an African-American sculptor be forced to make a statute for the KKK? Could a gay singer be made to perform for Westboro Baptist Church? At the time the baker refused to make the cake, Colorado banned gay marriage, so the local Clerk of Court was okay not to issue a wedding license, but the baker had to bake a cake? Can the wedding’s hair stylist, singers, tailors, jewelers, chefs and photographers be forced to work a wedding? Can a gay rights preacher be forced to perform a wedding for a straight couple that is openly hostile to gays?

The Supremes didn’t give us much guidance, but they did send the case back to Colorado requiring the Commission to reconsider the case. “The neutral and respectful consideration to which Phillips was entitled was compromised here,” Justice Kennedy wrote. “The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”

So the case by case analysis will continue in the courts. Here’s one to consider: Can San Francisco, openly hostile to the NRA, be court ordered to bid for a NRA conference with the same terms and conditions as they give a LGBTQ conference? Why or why not?

Kelly Burke, master attorney, former district attorney and magistrate judge, is engaged in private practice. He writes about the law, rock’n’roll and politics or anything that strikes him. These articles are not designed to give legal advice, but are designed to inform the public about how the law affects their daily lives. Contact Kelly at kelly@burkelasseterllc.com to comment on this article or suggest articles that you’d like to see and visit his website www.kellyburke.com to view prior columns.

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