Can a religious baker refuse service to an underage couple-to-be, in accordance with his deeply-held religious beliefs?

Question

As previously asked, bakers in certain US states can legally refuse service on the basis of sexual orientation. For the purposes of this question, assume that the state is Colorado.

Child marriage is legal in 48 states (all except New Jersey and Delaware) - in 48 states, minors under 18 can marry with parental consent, even in the absence of their own consent, and irrespective of the age of their spouse-to-be.

As an example, I am not a baker, but I personally belong to a religion in which you generally need to be 21 to marry, and our leadership won't even consider it unless both partners are at least 18. Marriage before 21, and definitely before 18, is fundamentally against my deeply-held religious beliefs.

Now let's suppose that I own a bakery. A couple comes in to my bakery to order a custom wedding cake, similar to the Masterpiece situation. One or both members of the couple are under the age of 18. Can I call on my religious freedom to refuse service to this couple?

Answer 1

As cited by @xuhdev, discrimination on the basis of marital status is prohibited in Colorado. And, even though age is not on the list, the couple could claim that you discriminate them based on their marital status, whether current or would-be, and whether related to their age or not.

Note that the reason why you discriminate is irrelevant: whether you do it by calling on your religious freedom or without giving any reasons at all does not make any difference. Holding religious beliefs is by no means a lawful excuse for discrimination, no matter how deeply they are held.

Answer 2

In your hypothetical situation, I'm not aware of any law that prohibits denial of service merely because of age. (But as other answers show, marital status discrimination might and might not be relevant here. If there is martial status discrimination, then the discrimination would be illegal.)

Age for places of public accommodation is not a protected class under Colorado anti-discrimination law (CO Rev Stat § 24-34-601 (2016)):

(a) It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or, directly or indirectly, to publish, circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or advertisement that indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused, withheld from, or denied an individual or that an individual's patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.

Neither is age a protected class under the federal Civil Rights Act Title II:

(a) Equal access

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

Answer 3

Just to be clear, the initial linked Q&A does not show that bakers in certain US states can legally refuse service on the basis of sexual orientation, is concludes that federal law does not prohibit discrimination based on sexual orientation. Colorado law does.

So in Colorado, you would be open to a discrimination lawsuit, if you specifically refuse to make cakes for weddings involving one or more minors. You can refuse to make cakes for minors (age discrimination is not forbidden), but you cannot refuse to make cakes for minors getting married. Then you would have to appeal the ruling up to the Supreme Court. The basis for your appeal would be the Free Exercise Clause: government may not prohibit you from freely exercising your religious beliefs.

As demonstrated in Masterpiece, the legal proceeding against you by the government cannot evince "clear and impermissible hostility toward [] sincere religious beliefs". That ruling is distinct from saying "must always roll over in the face of an alleged belief". The first paragraph of the holdings allows that "religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression", and grant's that the artist's decisions about how to use his expressive skills "has a significant First Amendment speech component and implicates [] deep and sincere religious beliefs". But there was no specific holding that the Free Exercise Clause provides an escape from anti-discrimination laws.

There is no bright line yet drawn by SCOTUS on this topic. One thing that seems clear is that the courts will take a second look at compelled speech, and especially compelled speech that forces a person to repudiate their fundamental beliefs.

Reynolds v. United States, 98 U.S. 145 (polygamy is against the law) provides a limit on the Free Exercise Clause as an absolute: "A party's religious belief cannot be accepted as a justification for his committing an overt act, made criminal by the law of the land". The court there state that

we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

See also Davis v. Beason, 133 U.S. 333, for the same conclusion about the subordination of religious beliefs to the law of the land. However, the reasoning cited there:

It was never intended that the first Article of Amendment to the Constitution, that "Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof," should be a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society

probably would not fly in the current court (the question would be, what does the text say?).

Answer 4

Based on the answers and comments above, there is absolutely no consensus that this action is legal, or consensus that it is illegal. There is a majority for "this question is tricky".

If it ended up in court, then different judges or the same judge on different dates could rule different. Normally we also say "ask a lawyer" for tricky questions; for this one I wouldn't be surprised if a lawyer told you 'this depends on the judge" as well.