The case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. (2018) demonstrates that in certain circumstances, a person in Colorado can refuse to provide goods and services to same sex couples on the basis that their religious beliefs oppose same sex marriage.
A same-sex couple approached the owner of a cake shop in Colarado asking them to make their wedding cake.
The owner said that he would not make a cake for their wedding because he had a religious opposition to same-sex marriage. However, he stated that he would supply them with other items from the bakery, including birthday cakes.
The couple filed a Charge under the Colarado Anti-Discrimination act on the basis that they were discriminated against based on their sexual orientation by a “place of business engaged in any sales to the public.”
The couple were successful at first instance and the decision was affirmed by the Colarado Court of Appeal. Then the baker appealed to the Supreme Court.
The Supreme Court needed to determine whether or not the operation of Colorado’s anti-discrimination legislation meant that the owner was unable to refuse to make the cake for the couple.
The Supreme Court found in favour of the owner and in his circumstances it was determined that he was permitted to refuse to make the wedding cake, despite the operation of anti-discrimination legislation.
It was determined that whilst legislation is in place to protect people from discrimination, the law must be applied in a way that is neutral towards religion.
The reasons for the decision also referred to the imposition on the owner’s First Amendment rights (Congress is prohibited from making laws prohibiting the free exercise of religion) in the event that the couple was successful.
Other similar cases are apparently waiting to be adjudicated, with other providers of wedding services such as video producers and florists who have refused to provide goods and / or services to same-sex couples wanting to be married.
Could this happen in Australia?
The Sex Discrimination Act 1984 (Cth) provides that it is unlawful for a person to discriminate against another person on the ground of their sexual orientation by refusing to provide them with goods or services.
Religious ministers can refuse to conduct wedding for same-sex couples, however this does not extend to providers of goods and services.