State Ordinances vs. Federal Law (CO Baker)

There was a story recently about a Colorado baker who refused service for a gay couple requesting a wedding cake. To the best of my knowledge, no charges have been filed.

Apparently Colorado passed some legislation that would penalize the baker for his actions: PDF

However, federal law does not currently protect the LGBT community, although court rulings leave the situation pretty murky.

So I have two basic questions:

  1. If this went to the highest court possible (Supreme, I presume), would federal law trump the CO legislation?

  2. In general, would this type of omission in a federal law trump a state’s attempt to expand the protections (That’s what I see going on here: not a specific contradiction of the law)?

I’m sure there are some historical examples out there, but the only one I can think of is interracial marriage, and that’s outside of the federal government’s scope…

States can generally make laws protecting certain groups that are broader than federal law without a problem. They can’t pass a law that contradicts or restricts a federal protection.

The highest court in this case wouldn’t be the U.S. Supreme Court for such cases. It would be the Colorado Supreme Court because it is their law.

States are sovereign entities too. State laws aren’t usually called ‘ordinances’. That term is generally used for town and city level laws. You seem to have some confusion about how U.S. federalism works implied in your question. We can clear that up further if you want.

  1. Federal law, provided that it is constitutional, always trumps state law.

  2. It’s not unusual for state law to offer broader rights than federal law. State law is pre-empted when it conflicts with federal law.

  3. The highest court in such a case might be the Colorado Supreme Court. The federal court system would not necessarily have jurisdiction over the case unless there is some kind of federal question at stake (for example, an argument that the Colorado law conflicts with federal law).

Well, couldn’t the baker argue countersue in federal court by saying that he is protected by his Federal right to refuse service? He doesn’t make gay wedding cakes and no state in this Union should be able to make him! (I don’t actually care about the politics of this statement, btw -just curious as to the legal ground in this situation.)

Maybe but I doubt it would get very far in federal court let alone to the U.S. Supreme Court. States have the right to pass laws protecting classes that aren’t protected by federal law. This of only one example of many of these types of state laws and the rest of them stand so I assume this one would too.

There is no such federal right.

Click on the 3rd link in my first post. Courts have upheld that in certain situations, it is perfectly lawful to refuse service. Think “no shirt, no shoes, no service”. I couldn’t even enter the arcade at Dave & Busters as a kid because I didn’t have my shirt tucked in.

I did. I don’t see anything that establishes a “federal right to refuse service.” I see a bunch of examples in which the law can require you to serve people you might rather not. Perhaps I’m missing something. Would you care to direct me to the specific text that you had in mind?

Indeed, so far as I know, a state could pass a law that says a business may not refuse service to any paying customer. Taxi cabs are often subject to laws saying that once they stop and start talking to a potential fare, they are not allowed to refuse service (within certain limits).

That’s because there is no federal or state protection for customers with untucked shirts. If Colorado passed a law protecting consumers who wear untucked shirts, then it could be enforced. Just because the federal government hasn’t acted doesn’t mean there is an affirmative right to refuse service for that particular reason. States have the power to enhance those laws.

What if the baker argues that it isn’t the actual orientation of the clients, but the fact that he only deals in heterosexual wedding cakes? He can’t be ordered to make erotic cakes or bake pies, can he? So if he can show in court that it is a different product, does he have a defense?

It’s an interesting question and one that will likely play out in the courts (maybe not in this case but in others). Can a baker refuse to make cakes for Islamic weddings because his own religious beliefs forbid it, but still serve Islamic customers in every other way? (when they buy a dozen doughnuts)

I would personally answer yes. Civil rights laws serve a noble purpose, but surely courts can’t be ordering people to provide goods and services that they otherwise wouldn’t provide because a protected group demands it.

Kind of the bulk of the article:

Nope, none of what you quoted states or implies that there is a “federal right to refuse service.” All it says is that what happened in those cases did not violate discrimination law. The law could be changed to cover that too.

But none of those speak of a Federal right to refuse service. The fact that Federal law doesn’t prohibit discrimination based on sexual orientation doesn’t mean you have a Federal right to discriminate based on sexual orientation. It simply means Federal law doesn’t prohibit it - but California or New York can still prohibit it under its own laws. Most of the article discusses various situations in which a business has no right to refuse service.

In fact, the sections of the article about the punk rockers and the motorcycle club were in a section describing California's *Unruh Civil Rights Act* , which was characterized as being broader than Federal law.  It doesn't say that the bar or the funeral home had a Federal right to refuse service- it says the refusals of service wouldn't violate California law.

The bar was within their rights to refuse service to the patrons. I don’t understand how that is different than an explicit law stating that they can refuse the service. Many of our rights are implied, not explicitly stated.

I never said there was a federal right to refuse service based on sexual orientation. Read what I wrote:

And in relation to the Unruh Civil Rights Act, the funeral home’s defense failed because the Act did not protect them. And again, not all of our rights are explicitly spelled out -that’s why we have 9 Supreme Court justices and not a computer program. If the courts uphold a business’s ability to refuse service, I don’t see how that’s any different than a right.

Read what I wrote. I didn’t say you said that . It was an example,

It wasn’t a Federal court upholding the business’s right to refuse service- it was a California court stating that the businesses did not violate California law by refusing service. You might say the business had a right to refuse service under California law (although I wouldn’t word it that way) but rights under Federal law had nothing to do with it

I’m not quite understanding what you are saying. At common law a private property owner can tell anyone to piss off for any reason. In 1964, the federal government modified the common law by saying that you may NOT tell someone to piss of at a publicly opened business because of X, Y, or Z.

You seem to argue that because the feds have only said X, Y, and Z, that a state may not add Q to the list. There’s nothing in the law to suggest that the feds meant to occupy the entire field of preventing discrimination to the extent to prohibit a state from supplementing the list. Why do you think that might be the case?

IOW, a state has just as much right to alter the common law property right of a business owner as the feds. I would argue MORE so. States have general police powers, but the feds have to bend and twist the commerce clause to do so.

That is not the same as saying that there is a “federal right to refuse service.” It is a common law presumption, and common law can be altered by any state statute and by many federal statutes.

Then you don’t really understand how our legal system works. A “federal right to refuse service” would mean that there would be a high bar to restricting that right. Indeed, it might be impossible to restrict that right. But it isn’t. It’s a simple common law presumption that can be restricted by the plenary power of the state.

Basically, as I understand it, the concept in law is that you are allowed to do anything that is not forbidden. (The “common law” principle mentioned above).

For example - You may shoot mugwumps if you are not violating any federal law about migratory mugwumps, or state law about hunting seasons, etc. You may play the Theme from The Bodyguardover and over provided you are not violating state public nuisance law, city noise laws (cities get their right to prohibt noise from the state) etc. You may punch your neighbour in the nose unless state or federal law makes that illegal. You may serve or not serve whoever you feel like.

A federal or state law may prohibit you from acting on - you will not serve someone because they are X. (or if that appears to be the obvious reason) If the fed forbids it you cannot do it. If the state forbids it, you cannot do it. The only argument in the cases is whether you refused service for reason of X. You refuse service to lesbians, but serve straight women. (Or, not for gays but yes for straight men). If the feds forbid discrimination on the basis of sex - you are not using that as a criteria, you are safe. If the state forbids discrimination by sexual orientation, you are violating their law. You cannot argue that the feds allow it. There are a lot of things that are only forbidden by one level of government.

As for the excuse you dont make cakes for gays, say, or muslims - the state cant force you to decorate a cake with There Is No God But Allah or In Steve We Trust if it offends you… but if the fellow says theyll take a plain cake like the one in the window, oh, an two packages of Bride and Groom caketoppers so they can redecorate later themselves, then you must serve them too. If the only reason you said no to something is the customers orientation (or religion) then you ARE discriminating. If your pastor could walk in and buy two sets of caketoppers, the happy couple can do so too. Thats the law.