Refusing service based on sexual orientation

Question

LegalZoom wrote an article about whether businesses can refuse service here: https://www.legalzoom.com/articles/the-right-to-refuse-service-can-a-business-refuse-service-to-someone-because-of-appearance

They wrote that "a baker refused to create a wedding cake for a same-sex couple, saying that it violated his religious beliefs. The court held the baker liable, saying that his reason was just a pretext for discriminating against gays."

But in the same article they state "the federal law does not prohibit discrimination based on sexual orientation, so gays are not a protected group under the federal law."

So "the pretext for discrimiating against gays" is a non sequitur because it doesn't exist.

But they wouldn't give the details about what case it was. If they were talking about Masterpiece Cake Shop v. Colorado Civil Rights Commission they got it totally wrong...

Is LegalZoom wrong?

Answer 1

LegalZoom did not get it wrong. The case Masterpiece Cakeshop v. Colorado Civil Rights Commission was under Colorado law (hence it was against the Colorado Civil Rights Commission), not federal law. LZ stated that 20 states have enacted laws against discrimination based on sexual orientation, and Colorado is one of those states. The issue was heard by SCOTUS because the plaintiff raised claims under the Free Speech and Free Exercise Clauses of the First Amendment, hence he could make a federal case of it.

A prior case (Azucar Bakery) cited by LZ was about refusing to make a cake with anti-gay slogans, and was decided by the commission. Here is a brief filed by that plaintiff in that and two related cases, arguing a pattern of religious discrmination. LZ got it mildly wrong in saying "the court ruled that this was not discrimination because...", because the case did not go to court, it ended at the Colorado Civil Rights Commission.

The second case appears to refer to Charge No. CP2018011310 a complaint filed against Masterpiece, where the same commission found probable cause for an anti-discrimination proceeding. In that proceeding, the Colorado Civil Rights Division finds that complainant Scardina "adequately shows that the Respondent's reason is pretext". This led to a complaint against the commission in US District Court (Civil Action No. 18-cv-02074-WYD-STV). There was a motion to dismiss which had partial success, but which was not about the substance of the case (it had to do with immunity, standing, abstention doctrines). The case was later dismissed, because the parties settled. So at no point did a court rule on the substance of the "pretext" issue – on this point, I think LZ overstated the significance of the commission's decision.

Answer 2

That article is dated 2015, and there have been some changes since then in this still developing field of law. The case referred to was probably Masterpiece Cake Shop, after on;y the first round of proceedings in it. Note that the Federal ruling in Masterpiece did not reach the merits of the issue, holding that the Colorado proceedings were biased and must be overturned. No decision was made as to whether state law could or did require Masterpiece to provide service to a gay couple, as the original plaintiffs contended. If a case was brought on similar facts but handled with different attitudes by the Commission, ther is no telling what the ultimate result would be.

"the federal law does not prohibit discrimination based on sexual orientation, so gays are not a protected group under the federal law."

This is under debate. Appeals courts in two circuits and the EEOC have held that discrimination on the grounds of sexual orientation is a form of discrimination on the basis of sex, which federal law prohibits. Several other circuit courts have held that it is not, and the current DoJ agrees. Until there is a Supreme Court ruling, or until Congress amends this law one way or another, this issuse will not be clear.