Thursday, September 30, 2010

City Threatens Bakery in City Market With Religious Discrimination: City Exposes Taxpayers to Expensive Litigation if Lease is Cancelled

Let me get this out of the way first. I don't support discrimination because of sexual orientation. I have written on this blog that I don't have a problem with same sex marriage and that committed relationships resulting in marriage is something we should be encouraging regardless of sexual orientation. (I don't get how same sex marriage in anyway threatens traditional marriage.) I also strongly support the end of the military's "don't ask, don't tell" policy.

Having said that, the Indianapolis Star reports (with a terribly misleading headline on the online version of the article) that the City is threatening to terminate "Just Cookies" lease because the bakery refused to fill a special order for rainbow cupcakes for use at a "Coming Out" event. The owner David Stockton said he had moral objections to the cause and passed on filling the order. Stockton's wife, Lily, also pointed out Just Cookies don't bake cupcakes or fill special orders. But it was the Stockton's comments that the City has zeroed in on ... and that's the legal problem.

When talking about constitutional provisions relating to religion, everyone thinks of the Establishment Clause. People overlook the fact though that the First Amendment actually contains TWO religion clauses...the other one being the Free Exercise of Religion Clause.

The Free Exercise Clause has been interpreted to mean that government must accommodate religious beliefs and activities even on publicly-owned property. If the City terminates the lease because of Mr. Stockton's religious beliefs then it will quite likely be found to have violated Mr. Stockton's free exercise rights. In short, the City would be sanctioning Just Cookies for alleged sexual orientation discrimiantion by discriminating against Just Cookies based on the religious beliefs of at least one of those owners. The problem for the City is that religious discrimination is prohibited by the United States Constitution.

In looking at cases interpreting the religous clauses, you get into a lot of gray area. In this case, though we're not talking about Just Cookies turning away a homosexual customer who simply wanted to buy a cookie. Instead this situation involves the City taking the position that "Just Cookies" was required to fill a special order, for a product that they don't even produce, for a cause the owner of the business doesn't morally agree with. It is not a close question. It's flat out religious discrimination, prohibited by the Free Exercise Clause.

Robert Vane, the City's spokesman pointed out that the City has an ordinance that prohibits sexual orientation discrimination. Well, an ordinance doesn't trump the U.S. Constitution. Nonetheless, there is reasonable middle ground to read the ordinance and constitutional provision harmoniously...that "Just Cookies" is required to serve customers regardless of sexual orientation, but that the company can't be required to fill a special order, for a product they don't produce, for an event that an owner of the company doesn't morally believe in.

The silliness of the City's position is illustrated by looking at an analogy. What about a Catholic pro-life owner of a City Market business that is approached by a pro-abortion rights group to cater an event in support of that cause? Is the City going to make that business owner cater the event despite his moral belief against abortion? It is exactly the same principle.

Mr. Stockton's views are not above criticism. That's the beauty of our political system - we can criticize and boycott businesses when we don't agree with the positions that those business owners take. And I don't at all agree with Mr. Stockton's views regarding "coming out." (I think we need to be more tolerant and to encourage people to fell free to come out regarding their sexuality.) But Mr. Stockton has every right to hold his own moral views and to refuse to fill an order for a cause he doesn't believe in. That right is protected by the Constitution and it would behoove the City to get some good legal advice before it cancels the lease and quite likely immerses the City in expensive litigation.

Standing up for Mr. Stockton on this issue isn't standing up for what he believes in. Rather it is standing up against religious discrimination and religious intolerance that seeks to use the power of government to force one to hold the "correct" beliefs about a political and moral issue. The City thinks it is attacking discrimination by targeting Just Cookies. But what is being suggested is that moral views that result in discrimination be attacked by imposing another form of discrimination, religious in nature, a discrimination forbidden by the United States Constitution. People need to speak out against this sort of discrimination, because next time it will be other moral beliefs that are the target.

Finally, I would point out that this is once again an example of a Republican Mayor who doesn't understand or care about the views of traditional Republican constituencies. The Mayor has taken aim at gunowners with repeated statements and positions against gun rights. He has alienated the tea party fiscally conservative constituency who helped him get elected with his continued support of tax and fee increases (which now apparently total over 100) and his ceaseless corporate welfare schemes.. Now the Mayor is targeting religious conservatives who, with the exception of gun rights activists, is the most loyal Republican group out there. Do these people advising the Mayor have any understanding of political strategy whatsoever? Constantly alienating your political bases is a politically fatal strategy.


Indy Student said...

I don't know the legalities that you refer to, Paul, but I think Just Cookies is just running a bad business practice. I've worked in several jobs where I'm behind a counter serving those that come to a bakery/cafe. In working there for several years, people said some repugnant things, not necessarily to me or my co-workers (though that did happen), but just something that I disagree with or find morally objectionable. Or people would come in looking homeless, or smell bad, or just flat out annoying with those dumb blue tooth ear pieces, and so on.

And you know what we did? We complained about customers after our shift was over or after they were all out of the store.

From what I gather, Just Cookies does no type of special orders. And that's fine. And I don't know why JC didn't just tell that to the customers instead of supposedly adding the "morally objectionable" sentence to it.

As far as lease termination, if there is a part of the lease they sign that says no discrimination, I think that settles it. The lease would be terminated on the actual ACTION of discrimination, rather than any believes that supposedly motivate said action.

That being said, if the lease does not spell out an anti-discrimination clause, I think, from this non-lawyer perspective, the city doesn't have a leg to stand on.

Finally, I think lease termination is a bit much. If the city could serve as a middleman to produce something positive out of this incident, that'd be a much more preferable option.

Paul K. Ogden said...

No, IS, we're talking about rights protected by the Constitution. A City can't say, "okay if you want to have your store here at the City Market, you have to agree to waive all your constitutional rights." It doesn't work like that.

Or another example, let's say that in order to get a driver's license the state says you have to agree to waive your protection against unreasonable searches and seizures.

If the government could do that then your rights would be pretty much meaningless.

We need to be very careful when we start discriminating against someone because they have unpopular views, especially religious views. What's next? Next are they coming after Catholics? Jews? Muslims?

I should also add that there could be a free speech violation as well. Government can't sanction people for the expression of unpopular ideas. Either way, the City would be foolish to take action against Just Cookies beyond public criticism.

Hoosier in the Heartland said...

the City would be foolish to take action against Just Cookies beyond public criticism.

I agree. If stupidity were actionable (and Just Cookies was surely stupid), the courts would be overwhelmed.

Stockton should have said thanks but no thanks 'cause we don't do special orders and avoided the gratuitous slap at purpose of the IUPUI event. (Or, maybe, Stockton has something against IUPUI?)

That said, there's no lease to terminate. Just Cookies is on month-to-month -- they can be booted at any time by the landlord.

However, if they're paying their rent, that would be a stupid move by the city, eh?

Indy Student said...

There is no right to discriminate, Paul. There's a right to "free exercise" of religion. The owner of JC exercised his religious beliefs (though why he decided to invoke them is beyond my comprehension), and the city is arguing that discrimination (regardless of the REASON for discrimination) is something they can boot tenants out for.

I've always thought that just because you can do anything, it doesn't protect you from facing the consequences of your actions.

Paul K. Ogden said...


If there is a pattern of auatomatically renewing the monthly lease and then they suddenly decide not to,it can easily be tied to this particular issue. That is the problem.

Paul K. Ogden said...


If you allow someone to be punished for the exercise of their constittional rights, that has what is called a "chilling effect" on those rights. That is also a violation.

That's like the City saying, okay you are allowed to speak out at the Circle for a political candidate, but we'll punish you for loitering if you do.

Paul K. Ogden said...

IS, another example. Klan holds a rally at the Circle. The City can be required to provide police protection to ensure the Klan are allowed to exercise their free speech rights. The City can't just say the Klan has free speech but has to deal with the consequences of that free speech, i.e. people beating the crap out of them for exercising their free speech rights. It might seem crazy but taxpayers can end up footing the bill for police protection.

Indy Student said...

People who would choose to lash out violently can also live with the consequences of doing so, which would be prosecution under appropriate criminal charges.

I still don't think it matters why Dave was discriminatory against gays, it's just that he is. It could be a proud tradition from his home country, it could be his religion, it might've been due to the day of the week. The motive of him to refuse service is meaingless. The fact that he refused service, based on sexual orientation (which is against the lease agreement and the HRO, according to Gary Welsh's latest post), is what's relevant.

I've had cases where I've been discriminated against, Paul, and it's a horrible feeling. I've even had it where the owner of a business yelled at me and threatened to call the cops for the audacity of walking in with my service dog. This is, at best, a bad practice of business, and at worst, a violation of their lease and the city's HRO.

It just seems what you're saying, Paul, means people could say and do the most ridiculous crazy bullshit (while on publicly owned property) and as long as they say "it's my religious belief", it'll be a get-out-of-jail-free card. Could a business in the City Market refuse to serve an elderly person, Paul, due to religious belief? Some religions and societies used to see being old as a curse. Would a member of the Nation of Islam be able to refuse service to followers of Judaism and get away with it?

Downtown Indy said...

Claiming 'discrimination' is way off in this case. It's just a case of 'hurt feelings.'

No customer has any right to demand a product be made especially for them and no one else.

They can certainly ask.

They can certainly be mad for being refused a special request.

They can certainly take their business elsewhere.

And the proprietot can suffer loss of business if they choose the wrong business model.

Until and unless they were refused service for something being readily and immediately offered for sale, made to leave the store or verbally attacked or abused -- there was no discrimination.

If I took my Ford to Chevy and insisted they make a fender that fits is, they would refuse and I could not claim discrimination against Ford owners. If they happen to utter 'piss on Ford' during the discussion it is irrelevant. Even if it hurts my feelings.

Hoosier in the Heartland said...

National Coming Out Day is Thursday, October 7th, 2010 from 11:30 am - 1:30 pm in the Campus Center Atrium. Join the IUPUI community in empowering our GLBT community to live openly, honestly, and without fear. Between 12:00 pm - 1:00 pm, listen to proclamations and statements of support by Chancellor Charles R. Bantz, Interim Vice Chancellor of Student Affairs, Dr. Norleen Pomerantz, and many more. Celebration activities will include a resource fair and cupcakes provided by The Flying Cupcake. See you there.

Nicolas Martin said...

I’m of roughly the same mind. They are bigots, but they have the right to withhold their goods from whomever they please. Not because the constitution says so, but because they are born with the freedom to do so.

Wilson46201 said...

I'm born with the freedom to put an axe to the pinky finger of Nicholas Martin but the Constitution provides laws which will punish me for doing so...

FOXP2 said...


I am very late to this thread. So we can assume that Indianapolis does not have city ordinance prohibiting discrimination based upon sexual preference?