WEST HOLLYWOOD, CA - JULY 01: A wedding cake for same-sex couples at a wedding celebration at The Abbey on July 1, 2013 in West Hollywood, California. The U.S. Ninth Circuit Court of Appeals lifted California's ban on same-sex marriages just three days after the Supreme Court ruled that supporters of the ban, Proposition 8, could not defend it before the high court. California Gov. Jerry Brown ordered all counties in the state to begin issuing licenses immediately. (Photo by Kevork Djansezian/Getty Images)
Photograph by Kevork Djansezian — Getty Images
By Danielle Weatherby
July 15, 2015

While large companies like Coca-Cola (KO), Tide, American Airlines (AAL), and Kellogg Company (K) hailed last month’s Supreme Court’s pro-marriage equality verdict, posting heart-infused Tweets and rainbow-laden ads on the Internet, not all have been celebrating. Small businesses, particularly in the wedding industry, are likely to lament the landmark decision in the name of religion. Think the baker. The florist. The photographer. The stationery maker. The wedding singer. Because the products they sell are arguably expressive and an artistic creation that communicates a message, the law may be on their side.

This goes back to a now-infamous 2006 case in which a New Mexico husband-and-wife photography duo cited the artistic nature of their work as justification for their refusal to photograph a same-sex commitment ceremony. Relying on the premise that photography is inherently expression-laden deserving First Amendment protection, Elane Photography claimed that New Mexico’s law requiring them to serve all clients regardless of sexual orientation improperly compelled the company to express messages with which it disagreed.

The company also invoked its religious beliefs in seeking an exemption from the New Mexico public accommodations law. While the same-sex plaintiffs ultimately won in the courtroom, the case is indicative of an inherent tension between a business owner’s religious views and laws that allegedly force the business to express or endorse ideas that are contrary to the owner’s deeply-held religious beliefs.

The Elane Photography case foreshadowed a tension that continues to play out in the small business world. Since the Supreme Court released its historic same-sex marriage decision less than a month ago, the clash between religious freedom and LGBT rights has intensified, especially in the wedding industry.

Some recent examples: In Colorado and Oregon, bakers were fined for refusing to make cakes for same-sex weddings. In Upstate New York, a family-owned farm that serves as an event venue faced civil penalties for refusing to host a same-sex wedding on their property. And a Washington florist was fined for refusing to provide the flowers at a gay couple’s wedding.

Complicating the matter is last year’s Supreme Court’s Hobby Lobby ruling that allows corporations that claim religious affiliations to seek exemptions from laws that are allegedly inconsistent with their religious beliefs.

In light of that decision, just last Friday, the Obama administration announced new rules that would allow religious nonprofits and some for-profit companies a religious-based opt-out of the Affordable Care Act’s HHS Mandate. On the surface, these rules seem to strengthen and empower a business’s argument that servicing a same-sex couple violates its religious freedom. But the new rules are narrow, applying only to employers that object to providing health insurance coverage for abortifacients, and they overlook the pushed-under-the-rug “attenuation” argument more specific to the same-sex marriage controversy.

So, how do we anticipate the Supreme Court will reconcile these decisions? And how does this precedent affect the small wedding vendors, which are more likely to face what they perceive as a commercial Catch-22: serve the same-sex consumer or assert their religiously-based objections and face potential fines?

The fact is that most wedding-related vendors are local struggle-‘til-they-make-it start-ups, built from the ground up with hard work, personal investments, and significant risks. Many times, there is no obvious schism between the small business and the individual. The baker works out of her own kitchen; the wedding singer practices in her home studio; the stationary maker prints in her garage. The small business owner – especially those that make a living on serving engaged couples – consider their product an art – an extension of themselves.

But when an artist sells a piece, she no longer has a voice in how or by whom it is experienced. An architect certainly does not condone all conduct that occurs inside the buildings she designs. A painter does not endorse the beliefs or actions of the owners that purchase her paintings. And a baker, whose culinary art is available for public consumption, no more participates in the wedding of a same-sex couple she serves than in a child’s birthday, a retirement party, or anniversary.

Wedding vendors beware. Your cake, while beautiful, undoubtedly delicious, and conceivably artistic, is a commercial product sold from business owner to consumer. So, let the same-sex couple have their cake and eat it too.

Danielle Weatherby is an assistant professor at the University of Arkansas School of Law.

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