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.