Charlie Craig, David Cole, David Mullins, Frederick Yarger, Jack Philips, John Rogers, Kristen Waggoner, Masterpiece Cake Shop, Neil Gorsuch, Samuel Alito, Sonia Sotomayor, Supreme Court, The Constitution
The story is relatively well known by now. A gay couple–Charlie Craig and David Mullins–asked baker Jack Phillips of the Denver-area Masterpiece Cake Shop to produce a custom cake for their wedding. Phillips, a Christian, declined, citing his religious convictions. He offered to sell them any cake in the shop off the shelf, but would not lend his considerable artistic talents to their wedding. Enraged, they left and immediately notified Colorado’s diversity police, who not only fined Phillips, but mandated diversity training for him and his employees, and required Phillips to profess appreciation for gay marriage to his employees. One presumes, if the diversity police had the power, Philips would have been executed as an example to others. The case has finally worked its way to the Supreme Court, as Scotus Blog reports:
Phillips, who describes himself as a ‘cake artist,’ is also a Christian who closes his business on Sundays and refuses to design custom cakes that conflict with his religious beliefs – for example, cakes that contain alcohol, have Halloween themes or celebrate a divorce or same-sex marriage. The Colorado agencies responsible for enforcing the state’s anti-discrimination laws ruled that Phillips’ refusal to provide the custom cake violated those laws and that he had ‘no free speech right’ to turn down Craig and Mullins’ request. They told Phillips that, if he decided to create cakes for opposite-sex weddings, he would also have to create them for same-sex weddings.
An appeals court in Colorado rejected Phillips’ argument that forcing him to make a cake for a same-sex couple would violate his right to free speech and to practice his religion freely, but his argument found more traction at the Supreme Court today…
Chief Justice John Roberts seemed to be squarely in Phillips’ corner. He asked Colorado Solicitor General Frederick Yarger, representing the state, whether Catholic Legal Services, which provides legal services to all different faiths, could refuse to take on a case involving same-sex marriage on the ground that it violated the group’s religious beliefs. Under Colorado law, Roberts suggested, the group would face an unpalatable set of choices: It could either stop providing any legal services at all or it could provide services that include same-sex marriage. And he reminded David Cole, representing Craig and Mullins, that, in its 2015 decision establishing a right to same-sex marriage, the court went ‘out of its way’ to note that ‘decent and honorable people’ may oppose same-sex marriage.
Justice Samuel Alito also seemed to be on board with Phillips’ arguments. He was concerned that, according to the state, another baker could decline to create cakes opposing same-sex marriage, but Phillips could not refuse to make a cake celebrating a same-sex marriage. Later he suggested that it was ‘very odd’ that, in 2012, Craig and Mullins could not have gotten married in Colorado or had their Massachusetts wedding recognized by the state, but Phillips could get in trouble for refusing to make them a cake to celebrate their same-sex marriage.
Justice Neil Gorsuch, who until recently lived in Colorado, seemed to object to part of the state’s order in Phillips’ case, which required him to provide ‘comprehensive training’ to his employees. Why wouldn’t the training be compelled speech, Gorsuch asked, when it would require Phillips to tell his staff that his Christian beliefs are discriminatory?
Why indeed. As one would expect, the usual suspects were more concerned with the feelings of gay men than the First Amendment:
For their part, the court’s four more liberal justices mostly seemed to side with the couple. Responding to the argument by Kristen Waggoner, who represented Masterpiece and Phillips, that the First Amendment bars the government from forcing people to express messages that violate their religious beliefs, Justice Sonia Sotomayor asked Waggoner dubiously when the Supreme Court has ever ‘given protection to food?’ ‘Food is there to be eaten,’ she said. Moreover, she added, when people look at a wedding cake, they associate it with the couple being married; if that’s the case, how can Phillips say that a cake is a medium for his expression?
If food is food, “there to be eaten”, why wasn’t the gay couple satisfied with any of the lovely cakes Philips already prepared? Why did they demand he make them a particular cake in the rainbow colors with which gays identify? Other liberal justices worried about the chaos that would result if cake makers were allowed to express their religious beliefs, and gay couples were not allowed to force others to do their bidding. While I’m not a constitutional scholar with the benefit of many years of progressive indoctrination, I do have an appreciation for the Bill of Rights.
Sotomayor, the “wise Latina,” ignored the actual constitutional issues. Phillips did not refuse to sell the gay couple a cake. He offered them many. He merely refused to lend his talents for a custom cake, which created no hardship or chaos. They admitted they simply went down the street to another baker whose religious convictions, whatever they may or may not have been, were not invoked. For them, clearly, their actions against Phillips were not a reflection of any inability to obtain exactly what they wanted, except revenge for their momentary inconvenience, to force Phillips not only to violate his sincere religious convictions, but to force him to express support for their sexual choices. They wanted gay politics to trump the First Amendment. The Colorado bureaucracy agreed.
Listening to the oral argument before the Supreme Court in the wedding cake case, it struck me how artificial the discussion was. Much of it centered on whether and under what circumstances cakes are speech. Bizarre. [skip]
‘But the wedding cake case, isn’t really about free speech. It is about free exercise of religious conscience. After all, the Colorado baker refused to create a custom cake for the gay couple because doing is incompatible with the dictates of his religion.
To be more specific, I think the case is about balancing freedom of religious conscience against the rights of gays who want the kind of marriage ceremonies non-gay couples frequently enjoy. I suggested so in this post from a couple of years ago. Ross Douthat made basically the same argument in yesterday’s New York Times.
In my view, the best way to perform this balancing is through the concept of reasonable accommodation. The concept comes from Title VII of the Civil Rights Act of 1964, which makes it unlawful discrimination not to accommodate the sincerely held religious beliefs and practices of employees unless accommodating them would result in ‘undue hardship’ to the employer.
Unlike what some would prefer, this is not a free speech issue. It’s about freedom of religion.
An absolute requirement that bakers create custom made wedding cakes for gay couples in violation of their religious conscience violates the principle of reasonable accommodation. It requires the baker (or photographer or caterer) to choose between adhering to his religious belief and making a living in his chosen profession. [skip]
In most cases, no undue hardship will attach if a gay couple has to use a baker or a wedding photographer who doesn’t think the ceremony violates God’s will. Freedom of religious conscience will be accommodated and the couple will get cakes and photographs of the same or better quality.
If the Bill of Rights means anything, if it applies to all, it must be understood that the exercise of my rights does not compel anyone else to use their talents or resources for my benefit. Unless we’re willing to argue “rights” not clearly expressed in the Constitution trump those that are, there are few legal guidelines. This is, of course, the way the gay couple in this case and those that support them, including at least four of the Supreme Court justices, want things to be.
Obviously, not every right is expressed in writing. In fact, many of the Founders didn’t want a Bill of Rights, because they feared future demagogues would argue the people had only those rights written in the Constitution.
In order to buy the gay argument in this case, one must believe not only that gay marriage is a right of equal force and importance with the others in the Bill of Rights, but it trumps the religious freedom clause of the First Amendment, forcing those with religious objections to gay marriage not only to contribute their time and talents to support gay marriages, but to give lip service to its wonder and glory. Such a right also apparently mandates the state-forced provision of food, clothing, photography, flowers, perhaps even makeup, hair styling, manicures, pedicures, etc.
Those making an anti-discrimination argument must also believe their “right” to convenience in their consumer desires trumps the express, faith-based religious convictions of others, and also trumps their right to run a business. After all, what is the survival of a businessman’s family, and the families of his employees, compared to the tender sensibilities, and the progressive politics, of any gay couple that choses to make an example of them?
Remember, in this case, Phillips did not kick the gay couple out of his store. He did not refuse to serve them. He did not abuse them in any way. He offered them many suitable alternatives, but that was not the substance of their objection. They demanded Phillips do more than make them a cake that would have satisfied most of his customers. They demanded he lend his unique artistic talents, the very talents they specifically sought, to create a gay work of art above and beyond what any other customer might ever want. Would the gay couple have used the mechanism of the state to persecute Phillips if he told them he couldn’t make a cake because he was overwhelmed with business and couldn’t accommodate them in time? No. They were making a point: his stupid religion with its antiquated, non-progressive beliefs wasn’t as important and valid as their contemporary, highly politicized choices, and must be crushed for the common good. To argue this case is not about artistic expression, and particularly, religious conviction, is disingenuous at best. As the “Wise Latina” argued, it’s just about food, except the gay couple could have had an unlimited choice of food. That’s not what they wanted.
If Phillips loses, we all lose. The precedent that one must choose between their livelihood and their religious convictions will become the law of the land, and the whims of political activists, which will of necessity virtually always be progressive whims, will rule. In a very real sense, this is a case about feelings—eternally aggrieved, easily provoked, progressive feelings—in opposition to the Constitution and the rule of law.
This case also shines new light on the importance of care in judicial nominations. The media speaks of “conservative” and “liberal” judges as though both were dedicated to the rule of law, people whose differences were merely in narrow interpretation of the same republican principles. Unfortunately, to be a “liberal” judge is, by definition, to ignore the Constitution and precedent in favor of vindicating whatever progressive political goal is involved—feelings over the rule of law. That’s why progressive Senators fight tooth and nail to deny Supreme Court seats to unquestionably qualified judges that take seriously an oath to uphold and defend the Constitution. That’s not what they want; they demand the opposite.
Will America remain a nation of individual rights and the rule of law, or a progressive people’s paradise where individual whims dictate the actions of others? We’ll find out by summer.