As noted above, on at least three other occasions theCivil Rights Division considered the refusal of bakers tocreate cakes with images that conveyed disapproval ofsame-sex marriage, along with religious text. Each time,the Division found that the baker acted lawfully in refusingservice. It made these determinations because, in thewords of the Division, the requested cake included “wordingand images [the baker] deemed derogatory,” Jack v.Gateaux, Ltd., Charge No. P20140071X, at 4; featured“language and images [the baker] deemed hateful,” Jack v.Le Bakery Sensual, Inc., Charge No. P20140070X, at 4; ordisplayed a message the baker “deemed as discriminatory,Jack v. Azucar Bakery, Charge No. P20140069X, at 4.The treatment of the conscience-based objections atissue in these three cases contrasts with the Commission’streatment of Phillips’ objection. The Commission ruledagainst Phillips in part on the theory that any messagethe requested wedding cake would carry would be attributedto the customer, not to the baker. Yet the Divisiondid not address this point in any of the other caseswith respect to the cakes depicting anti-gay marriagesymbolism. Additionally, the Division found no violationof CADA in the other cases in part because each bakerywas willing to sell other products, including those depictingChristian themes, to the prospective customers. Butthe Commission dismissed Phillips’ willingness to sell“birthday cakes, shower cakes, [and] cookies and brownies,”App. 152, to gay and lesbian customers as irrelevant.The treatment of the other cases and Phillips’ case couldreasonably be interpreted as being inconsistent as to thequestion of whether speech is involved, quite apart fromwhether the cases should ultimately be distinguished. Inshort, the Commission’s consideration of Phillips’ religiousobjection did not accord with its treatment of these otherobjections.
