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?

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    Just to be clear, the specific service in Masterpiece Cakeshop was the decoration of the cake, which would have required the baker to "speak" (in the form of cake decorations) a point of view which they disagreed with. If the gay couple had merely wished to purchase an undecorated or generically decorated cake then the 1st Amendment issue would not have existed. Commented Dec 24, 2019 at 11:59
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    Krishna this doesn't seem to be a case of "refusing service to the couple" because you'd also refuse to let the bride's mother place the order, correct? The issue is what is being ordered (a cake celebrating child marriage) and not who places the order.
    – Ben Voigt
    Commented Dec 24, 2019 at 17:09
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    You said that minors can marry "even in the absence of their own consent". What US state allows marriage in the absence of consent of one of the persons being married?
    – Ross Ridge
    Commented Dec 24, 2019 at 19:01
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    @Kirshna: just to make it clear: "age of consent" is the age at which a person is deemed to be legally competent to consent to sexual acts. This has little to do with "consent to marry another person", although if you agree to marry another person "sexual acts" are an implied part of marriage. Commented Dec 24, 2019 at 19:56
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    @Krishna Just because the parent needs to consent to the marriage doesn't mean that the child doesn't also need to consent. The Wikipedia article you linked does not support your assertion that a child's willingness to get married is legally irrelevant.
    – Ross Ridge
    Commented Dec 25, 2019 at 1:51

4 Answers 4


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.

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    I assume that the baker in question would be absolutely fine selling them two birthday cakes, so the refusal isn't due to age. Of course the baker could say "I'm not selling to people under 18, not ever", so if that is the truth, it would be legal discrimination.
    – gnasher729
    Commented Dec 24, 2019 at 12:42
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    @gnasher729 Correct, I'd be glad to sell birthday cakes to minors, it's the marriage that's the issue, just like masterpiece.
    – Krishna
    Commented Dec 25, 2019 at 1:13
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    @xuhdev "the couple could claim.." is the answer. Then it depends on the court.
    – Greendrake
    Commented Dec 25, 2019 at 3:02
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    @Greendrake I agree. That's what exactly I wanted to say because the comments seem to think otherwise.
    – xuhdev
    Commented Dec 25, 2019 at 3:05
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    @zaen I remember a rather old court case in the UK before discrimination against gay people was illegal. The jeaulous wife of a male business owner forced the husband to fire his male gay secretary because she feared an affair could happen. First court ruled that discrimination against gay people was (at the time) not illegal. Higher court ruled that the secretary was fired for being male, since a gay female secretary would not start an affair with her male boss. So age is quite possibly not the final reason. It's a case that a judge will enjoy.
    – gnasher729
    Commented Dec 25, 2019 at 23:51

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.

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    Careful with the argument. For example, if a young couple is allowed to get married at young age by their religion A, but would not allowed to get married at that age by another religion B, then we can very well argue that the refusal was due to religion, not due to age.
    – gnasher729
    Commented Dec 24, 2019 at 12:37
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    I could see this going either way. Marital status and religion could be theoretical hooks, but neither is obviously mandated in this case by the existing case law. A fact rich analysis would be required.
    – ohwilleke
    Commented Dec 24, 2019 at 22:31

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?).

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    WHAT?!? Are you saying that I can't go out and shoot John Doe, and then get off by pointing out that my religion requires that I shoot John Doe?!? Well, then I'll be danged if I'll be dropping that $5 in the collection plate on Sunday at the Holy Church Of St. We-Hate-John-Doe-Die-Ewe-Barstud-Die, Inc.! Commented Dec 24, 2019 at 20:02
  • Mostly ITA. But, while Colorado prohibits discrimination based on sexual orientation, it does not expressly prohibit discrimination against couples who marry under the age of 18 or 21, and it does have a statute providing that a private business may refuse service on any ground not expressly prohibited. The operative question under Colorado law would be whether discrimination against being married under age 21 would be a discrimination based upon marital status which doesn't have an obvious answer and is the subject of very little case law. I could see the case going either way.
    – ohwilleke
    Commented Dec 24, 2019 at 22:29

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.

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    Fundamentally, court cases only happen in two circumstances: (a) one or both lawyers don't know what the outcome will be; (b) the clients overrule their lawyers, but not so outrageously that their lawyer has to refuse to represent them in a pointless case. (a) is pretty common even in cases without a jury. If the lawyers both know what the judge will rule, and the clients listen to the lawyers, you don't go to court. Commented Dec 26, 2019 at 1:37

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