A Case of A Slur or Slander? Whole Foods Countersues Texas Pastor Who Claimed Store Wrote Anti-Gay Slur On Cake

imrs.phpThere is a rather bizarre case out of Texas where Whole Foods was sued by Pastor Jordan Brown of Austin’s Church of Open Doors. Brown said he ordered a cake from Whole Foods meant to read “Love Wins” — a slogan associated with the movement to legalize same-sex marriage — but the store instead wrote “Love Wins. Fag.” The very notion of Whole Foods, an iconic brand for liberals, producing an anti-gay cake is news in itself. Indeed, Whole Food was initially apologetic and shocked by the news. That soon turned to a more confrontational and angry reaction after the store reviewed the security tape. The store has countersued and suggested that Brown added the offensive language.


Skeptics have asked how anyone picking up a cake would not see the slur before he left the store. Additionally, any employee would have to know that such a slur would result in the cake being immediately returned with a likely loss of employment.

However, Brown insists that the box has not been opened and he noticed the slur when he got to the car. He specifically notes that the content and pricing UPC label is unbroken — showing that the box had not been opened.

He states: “My question is: Who could have done this? . . . It’s still inside of a sealed box . . . This is discrimination.”

The store however insists that it has the answer and that Brown did it. The store stated

“The team member wrote ‘Love Wins’ at the top of the cake as requested by the guest and that’s exactly how the cake was packaged and sold at the store . . . Our team members do not accept or design bakery orders that include language or images that are offensive. Whole Foods Market has a zero tolerance policy for discrimination. We stand behind our bakery team member, who is part of the LGBTQ community, and the additional team members from the store, who confirmed the cake was decorated with only the message ‘Love Wins.’”

In its countersuit against both Jordan and his lawyer, the store says that Brown “intentionally, knowingly and falsely accused Whole Foods and its employees of writing the homophobic slur … on a custom made cake that he ordered from WFM’s Lamar Store in Austin.”

The store notes that Brown insists that he was in the sole possession and control of the cake until his posting of the video but that “after reviewing our security footage of Mr. Brown, it’s clear that the UPC label was in fact on top of the cake box, not on the side of the package. This is evident as the cashier scans the UPC code on top of the box.” The tape is not entirely clear in my view though it does seem like the employee is pointing at the top of the box. Here is the videotape:

This makes for an interesting case. What strikes me as interesting is the forensic aspect. The question (for which I cannot seem to get an answer) is where is the cake? If Brown did write the word “Fag” there should be a measurable difference in either the width or composition of the icing. Not to turn this into CSI: Whole Foods, but getting the icing identical on a cake is not that easy. Moreover if the UPC label was moved, there should be glue residue on the top of the cake.

The suing of the lawyer is also a rare and risky step. Absent strong proof of collusion or conspiracy on a false claim, such lawsuits are met with skepticism by the courts. Attacking an opponent’s lawyer is a common temptation but, absent strong evidence, can be an invitation for a motion for sanctions for a frivolous claim. It also creates conflicts for lawyers continuing in litigation if they are also a defendant and can be done for tactical reasons that courts try to deter. Assuming that his client gave him the same account that he has given publicly, there is no reason for the lawyer to assume that the client is lying. Either account could be true at this point. Of course, if a lawyer discovers that his client is lying, he cannot put that client on the stand and usually must sever representation if he would facilitate a fraud upon the court.

The website of the church states that Pastor Brown is a Pittsburgh native raised in a family of preachers. The site quotes Brown as saying “We’ve taken tradition and religious doctrine and thrown them out the window.” The church states:

We’re a non-denominational, non-traditional, Christ-centered, welcoming, LGBT-friendly, worshiping church! Our mission is to build people’s lives through the teaching and preaching of the gospel of Jesus Christ. Church Of Open Doors stands to tear down racial and denominational walls, destroying the spirit of poverty, providing unity within the community, giving encouragement and strength for families, and providing a place for Spirit-filled and anointed worship.

https://www.washingtonpost.com/news/morning-mix/wp/2016/04/20/whole-foods-countersues-gay-pastor-saying-he-faked-homophobic-slur-on-cake-it-sold-him/?tid=sm_fb

38 thoughts on “A Case of A Slur or Slander? Whole Foods Countersues Texas Pastor Who Claimed Store Wrote Anti-Gay Slur On Cake

  1. The bakery employee who decorated the cake is, according to Whole Foods, a member of the LGBT community. What saddens me is that if the employee was straight, there would be more impetus for a rush to judgement against him or her.

    They claim the UPC was moved, which proves it was tampered with. Also, did Whole Foods used prepared colored icing, that is also sold in the store?

    We cannot assume that the employee is guilty of writing a gay slur until it is proven. It sounds like Whole Foods has enough evidence to have their day in court, and the possible vindication of a counter suit.

    We will have to see how this plays out. I can’t watch the video, but was wondering if any of the contributors from law enforcement could say whether or not they can enlarge and enhance the video to see the decoration on the cake before they leave the store.

    I can be pretty absentminded, but it seems strange that the bakery employee, the customer, and the checker all missed the word “fag” written in cheery sky blue icing on the top of a cake. When you buy a decorated cake, from any bakery, they usually show it to you to ensure it was correct. I guess it’s possible, but for this to be real a whole lot of people had to be oblivious.

    No matter how this plays out, I am glad that Whole Foods investigated this internally before automatically firing their employee. Many businesses would not have the funds for a protracted court battle, or the banked good will of so many customers who have faith in their viewpoint. If this had been Chick-fil-A, would the population have allowed the company to investigate and defend itself, or would there be automatic boycotts, marches, and crying?

    • Karen – I have posited a rogue employee getting back at the company or at the gay community. Personally, I have picked up cakes and never looked at what was inside. They said it was my cake and I took their word for it.

      The cashier is only looking for for the UPC. They are not checking the cake.

  2. Paul – this box had a transparent lid. So you don’t have to open it to see what’s written on it. That’s what makes me wonder why no one noticed it.

  3. Whole Foods: “We stand behind our bakery team member, who is part of the LGBTQ community, and we appreciate the team members and shoppers who recognize that this claim is completely false and directly contradicts Whole Foods Market’s inclusive culture, which celebrates diversity.”

  4. Looking closely at the photo of the cake, the words “LOVE WINS” are written in icing that appears to be almost cylindrical, placed on top of the cake. The icing in the letters is also very consistent in its diameter.

    The letters spelling out “FAG” are different. They look much flatter and are almost pressed into the surface of the frosting.

    That said, what’s interesting to me is that the “LOVE WINS” lettering is around the edge of the top of the cake, leaving the rest of it blank. That doesn’t seem to make aesthetic sense. Wouldn’t a decorator put the letters in the middle of the top surface (unless specifically requested otherwise)?

  5. Paul Schulte: “davep – I am one of those who would not have looked in the box until I got home, esp. if I was in a hurry.”

    That’s dubious. It’s no effort to look at it. You’d almost have to look at it to pick it up.

    And you are talking about two rather unlikely things happening: the label and not looking.

    • davep – I have only one thing to consider, whether to check the box or not. I do not open the mail at home, that is my wife’s problem.

  6. wonderer: “That said, what’s interesting to me is that the “LOVE WINS” lettering is around the edge of the top of the cake, leaving the rest of it blank. That doesn’t seem to make aesthetic sense. ”

    I noticed that too. It’s another unlikely thing stacked on other unlikely things.

    If the Whole Food employee did it, it’s kind of dumb to put the offensive word where it would be very easy to notice. That is, it would make sense to put the offensive words where they could not be seen until the box was opened.

    • It does make aesthetic sense to do it the way it appears, however it doesn’t make sense to do it the way it ended up.

  7. Since the employee is a member of the LGBTQ community, maybe the word was his signature.

    Seriously it is incredibly offensive that yet another hoax is being attempted. I sincerely hope Whole Foods wins their counter suit. I would especially like to see the employee sue for defamation as well as Whole Foods filing their own suit

  8. I was thinking the UPC and writing difference etc was because he had a separate cake and wrote it himself. Not an impressive cake to begin with. And, if they did not show the customer the cake before he took it, that will probably be the last time that happens. And what does an employee being part of the queer community have anything to do with it?

    • DF – you brought up another possibility. There could be animosity between the cake decorator and the minister. They may know each other.

  9. I don’t understand the monetary damages here even if a rogue employee was responsible. Seems to me that the store should be responsible only to refund him the price of the cake because the customer was not satisfied with it, or provide a cake that met with the customer’s satisfaction. Would we even be talking about this if the cake used more generic offensive curse words like Fuc***?

    • david – we might be talking about this if the guy bought the cake and “Fuc***” was on it. I wonder if the response from Whole Foods would have been the same. Would have made their defense more interesting.

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