There will be Hell to pay . . .

Aaron and Melissa Klein baked up a storm of controversy when they refused to bake a wedding cake for Laurel and Rachel Bowman-Cryer and ended up liable for $135,000 in damages for the unlawful denial of service as well as for emotional distress. 99 Their refusal to bake the wedding cake violated a state statute in Oregon that prohibited discrimination based upon sexual orientation. 100

Many states over the past few decades have struggled with the issues of discrimination based on sexual orientation and same-sex marriage. According to the American Civil Liberties Union, 23 states provide at least some protections against discrimination based on sexual orientation. Additionally, 37 states passed laws providing express legal sanction to same-sex marriages while the remaining 13 outlawed them—some states even added a state constitutional definition of marriage as a union between one man and one woman. 101

The United States Supreme Court recently reviewed the many disparate state laws on same-sex marriage in the case of Obergefell v. Hodges 102 and determined that denying same-sex couples the right to marry violates the Due Process and Equal Protection clauses of the Fourteenth Amendment to the U.S. Constitution. Thus, there now exists a federally recognized Constitutional right to legal marriage equality for same-sex couples. 103 The right to marry, however, does not equate to the full host of legal protections that many anti-discrimination laws provide, and the states, therefore, still have authority to pass laws for or against discrimination based on sexual orientation.

Presuming the laws protecting homosexual and transgender rights continue to expand, the federal branches of government may take some unique methods to enforce such equality. For instance, the U.S. Supreme Court justified the federal Civil Rights Act of 1964’s ban on discrimination in public accommodations under Congress’s right to regulate interstate commerce, which some find to be an overreach of Congressional authority; 104 the IRS also famously threatened withdrawal of the tax exempt status of Bob Jones University and Goldsboro Christian School to encourage these institutions to end racially discriminatory policies and integrate their student bodies. 105

And as these newfound protections for the LGBT community gain ground, individuals, businesses, and state and local governments struggle to reconcile apparent conflicts between federally protected rights, as is the case with the Oregonian bakers. The Kleins’ greatest complaint appears to be that the state laws preventing discrimination based on sexual orientation pit their right to free speech and exercise of religion against others’ rights to equal protection under the laws. 106 And the Kleins are not alone in their struggle—Jack Phillips is facing liability under a similar Colorado statute that prohibited him from refusing to bake a wedding cake for Charlie Craig and David Mullins, 107 and Barronelle Stutzman was fined $1,000 and prohibited from further violating the Washington anti-discrimination statute after she refused to provide flowers for Robert Ingersoll and Curt Freed’s wedding. 108

In attempts to balance the rights of each side of these debates, over nineteen (19) states have passed laws providing small business owners protections to act or refuse to act on the basis of “religious freedom.” 109 The first such law was enacted in 1993, and they are often titled “Religious Freedom Restoration Acts” (or RFRAs). Such laws aim at, for instance, protecting a Christian baker’s right to refuse to bake a wedding cake for a gay couple, or Jewish baker’s right to refuse an order for a cake that bears a swastika. Many states with RFRAs also maintain anti-discrimination laws which protect individuals against discrimination based upon sexual orientation. 110 Some claim the RFRAs help ensures that one party’s right to live and work free from discrimination is balanced against another party’s right to free speech and exercise of religion. 111

99 Travis Gettys, “Oregon bakers forced to pay $135,000 after sharing lesbian couple’s home address,” Raw Story, July 10, 2015, http://www.washingtonpost.com/blogs/govbeat/wp/2015/04/03/heres-how-to-….

100 See Or. Stat. § 659A.400, 659A.403, and 659A.409, http://www.oregonlegislature.gov/bills_laws/lawsstatutes/2013ors659A.ht…

101 “State Same-Sex Marriage State Laws Map,” Governing: The States and Localities, retrieved July 11, 2015, http://www.governing.com/gov-data/same-sex-marriage-civil-unions-doma-l…; “Same-Sex Marriage Laws,” National Conference of State Laws, June 26, 2015, http://www.ncsl.org/research/human-services/same-sex-marriage-laws.aspx.

102 Obergefell v. Hodges, --- S.Ct. ---, 2015 WL 2473451 (2015), at http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf.

103 While some may argue the holding extends to individuals of “all sexual orientations,” “sexual orientation” might be interpreted to include polyamory or polygamy, and it remains unclear whether the holding will extend to polyamorous or polygamous unions.

104 “Commerce Clause,” Wex Legal Dictionary, Legal Information Institute, Cornell University Law School, http://www.law.cornell.edu/wex/commerce_clause; “Key Supreme Court Cases, Heart of Atlanta Motel v. U.S. (379 U.S. 241, 1964),” American Bar Association Division for Public Education, http://www.americanbar.org/groups/public_education/initiatives_awards/s…

105 Peter J. Reilly, “Will IRS Force Gay Marriage On Conservative Churches?” Forbes, July 9, 2015, http://www.forbes.com/sites/peterjreilly/2015/07/09/will-irs-force-gay-….

106 William J. Cadigan, “Christian cake shops vs. same-sex marriage,” CNN, July 11, 2015, http://www.cnn.com/2015/07/10/us/oregon-colorado-same-sex-wedding-cake-….

107 See id. See also, Jack Healy, “States Weigh Gay Marriage, Rights and Cake,” The New York Times, July 7, 2015, http://www.nytimes.com/2015/07/08/us/states-weigh-gay-marriage-rights-a….

108 Zack Ford, “Anti-Gay Florist Fine $1,000 And Ordered Not To Discriminate,” ThinkProgress, March 30, 2015, http://thinkprogress.org/lgbt/2015/03/30/3640391/florist-pays-price-for…; Zack Ford, “Judge To Anti-Gay Florist: Religion Is Not An Excuse To Defy Anti-Discrimination Law,” ThinkProgress, Feb. 19, 2015, http://thinkprogress.org/lgbt/2015/02/19/3624626/washington-florist-los….

109 Kelsey Harkness, “These 19 States Have Religious Freedom Laws Similar to Indiana’s. Here’s What That Means,” The Daily Signal, March 31, 2015, http://www.ncsl.org/research/human-services/same-sex-marriage-laws.aspx.

110 Id. See also, “Non-Discrimination Laws,” Movement Advancement Project, retrieved July 11, 2015, http://www.lgbtmap.org/equality-maps/non_discrimination_laws; “Maps of State Laws & Policies,” Human Rights Campaign, retrieved July 11, 2015, http://www.hrc.org/state_maps.

111 Jeff Guo, “Here’s how to use religious freedom laws to fend off a gay discrimination suit,” The Washington Post, April 3, 2015, http://www.washingtonpost.com/blogs/govbeat/wp/2015/04/03/heres-how-to-….

REGIONAL ETHICS BOWL CASES FALL 2015

Prepared by:
Gretchen Adel Myers, Chair
Michael Funke
Susanna Flavia Boxall
Rhiannon Dodds Funke
Adam Potthast
© Association for Practical and Professional Ethics 2015