Let us, gentle readers, for the duration of this article, acknowledge three types of rights:
1) Express–AKA enumerated–rights. These are the rights actually spelled out in the Constitution. For example, the Second Amendment acknowledges the right of the people to “keep and bear arms.” This is, of course, also a fundamental, natural right.
2) Implied rights. These are the rights that, while not specifically written in the text of the Constitution, necessarily and logically follow from the enumerated text. These rights were so clearly understood to the Founders they did not think it necessary to try to cover every possible permutation. The Second Amendment does not specify every type of arm one might “bear,” or explain what “bear” means, but if one cannot carry, in a useful condition, a variety of common arms wherever they might be, the right scarcely exists.
3) Judge-made rights. These are the emanations of penumbras, “rights” based on feelings and abstractions, unearthed by progressive judicial slight of hand. Such rights are neither express nor implied rights, at least not implied by rational application of law or logic.
As regular readers know, I’ve been covering the gay cake wars for years. The basic issue is simplicity itself: gay couples and their political supporters seek to force Christian bakers to violate their religious convictions, and/or force them out of business. It is not enough that such Christians bake cakes and provide other goods as gays demand, they must also be forced to demonstrate contrition for their non-progressive beliefs, to undergo reeducation, and to praise the superior morality and enlightened social consciousness of their gay/progressive betters.
“Oh no!” gays and their backers cry: “we only want to be free of discrimination. We have civil rights!” The hypocrisy involved is, well, hypocritical, as the invaluable Steven Crowder proved in a 2015 video. Crowder visited several Muslim bakeries and asked for gay themed wedding goods. Unsurprisingly, he was turned down, yet there was no outcry against the Muslim bakers. Apparently some bakers are more discriminatory than others when they refuse to do the same things.
Let us also remember that governments–and their functionaries–have powers, but individuals have rights, as I noted in 2017 in Gay Wedding Cakes And Liberty:
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.
I refer to the Masterpiece Cake Shop case from Colorado. It’s proprietor, Jack Phillips, in 2012, declined to produce a specific wedding cake for a gay couple. He offered them a variety of other cakes, but would not violate his Christian principles by much more directly supporting their marriage. Interestingly, in 2012, Colorado did not recognize gay marriage, and businesses had statutory latitude in such matters, but the gay couple went to the Colorado Civil Rights Commission, who promptly sought to teach Phillips, and his employees, a lesson. Scotusblog explains:
In this case, Kennedy suggested, Phillips found himself on the horns of a dilemma: Because he regarded his craft as one in which he uses ‘his artistic skills to make an expressive statement,’ making a cake for a same-sex couple would require him to convey a message that is inconsistent with his religious beliefs. This dilemma was further complicated, Kennedy noted, by the ‘background of legal principles and administration of the law in Colorado at that time’: Colorado did not recognize same-sex marriages, and state law also gave Phillips ‘some latitude to decline to create specific messages the storekeeper considered offensive.’
But the critical question of when and how Phillips’ right to exercise his religion can be limited had to be determined, Kennedy emphasized, in a proceeding that was not tainted by hostility to religion. Here, Kennedy observed, the ‘neutral and respectful consideration to which Phillips was entitled was compromised’ by comments by members of the Colorado Civil Rights Commission. At one hearing, Kennedy stressed, commissioners repeatedly ‘endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.’ And at a later meeting, Kennedy pointed out, one commissioner ‘even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.’ ‘This sentiment,’ Kennedy admonished, ‘is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.’ Moreover, Kennedy added, the commission’s treatment of Phillips’ religious objections was at odds with its rulings in the cases of bakers who refused to create cakes ‘with images that conveyed disapproval of same-sex marriage.
Civil rights commissions are seldom, if ever, established to ensure the equal administration of justice. They are, instead, established to ensure social justice for progressively favored victim groups, and so it was in Colorado. The Commission also required reeducation for Phillips’ Employees, and regular reporting, supposedly to ensure any possible gay customers got exactly what they demanded of Phillips. Kennedy’s invocation of slavery is particularly ironic in that gay couples enlisting the coercive power of the state against a baker are, in essence, enslaving them. From Justice Kennedy’s decision:
Indeed, while the instant enforcement proceedings were pending, the State Civil Rights Division concluded in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. Phillips too was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case.
That consideration was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. [skip]
The inference here is thus that Phillips’ religious objection was not considered with the neutrality required by the Free Exercise Clause. The State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. But the official expressions of hostility to religion in some of the commissioners’ comments were inconsistent with that requirement, and the Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. Pp. 16–18.
370 P. 3d 272, reversed.
Jack Phillips won, and it was only a financial resources of a public interest law organization that made that very small, narrow victory, possible. Most bakers, such as a couple in Oregon, would have been driven out of business when bludgeoned by the state on behalf of progressive activists.
The scope of the decision was very narrow. Phillips won, basically, because the Colorado Civil Rights Commission, in the arrogance so commonly displayed by such cruel and self-righteous people, demonstrated their true political desires and lack of humanity on the record. Justice Kennedy’s decision dances around the central issues without resolving them. He sounds more like a politician trying to please every possible voter than a Justice of the Supreme Court. There is no bright line to guide bakers, and other businessmen, in the future. The Supreme Court declined to say that the express, enumerated right to freedom of religion of the First Amendment is of greater consequence than, and must prevail over, a judge-made right. Phillips won, not because the Constitution, as a general principal, actually protects freedom of religion, but because state level bureaucrats were too blatant in their gleeful crushing of Jack Phillip’s religious liberty–in this particular case.
The case ends with no real protection for Jack Phillips, or anyone in his position, in the future. I would be surprised if gay couples, accompanied by camera crews, Colorado Civil Rights Commission complaint forms already filled out, are not waiting in line outside Phillips’ shop. All the Colorado Civil Rights Commission–or any similar body in other states–need do to win is be stealthier in the expression of their anti-Christian prejudices. Kennedy’s opinion makes much of the virtue of tolerance–“can’t we all just get along?”–but reduces the First Amendment to merely one consideration in such cases, and an inferior one at that.
Jack Phillips treated the gay couple with tolerance. He did not refuse to serve them, nor did he kick them out of his shop. He merely held to an inherently reasonable and constitutional principle: the First Amendment does not require people to violate their religious convictions to please others. My rights–and particularly judge-made rights–do not obligate anyone else to give of their talent, resources, time or even verbal affirmation, to express them. Just as we do not force doctors with religious objections to perform abortions, why should we force bakers with religious objections to enable gay weddings?
In this case, and all such cases, any lack of tolerance comes from progressive/gay ideology, which demands not only absolute obedience, but no thought or word crime. Actual tolerance would ask only that a gay couple say: “I understand and respect your sincere religious convictions. I’ll get a cake down the street, thanks!”
The Supreme Court could have simply said: “No one shall be required to provide any product or service that violates their sincere religious convictions.” But won’t that allow some bigots to refuse to serve people? Won’t they just be able to claim a religious exemption? Won’t that send us back to the days of segregation? It’s possible some such people could exist, but the cure is the free market, not the coercive power of the state attempting to read minds and divine the depth of one’s sincerity and faith. It’s not the business of the state to determine who, in the marketplace, has greater morality. Gay couples are finding no lack of cake makers willing to serve them, and poor customer service tends to regulate the market with speed and finality.
The gay couple had no difficulty in securing a cake to their satisfaction. This wasn’t about forcing Phillips to bake a specific cake in time for their wedding. This was about political domination, revenge, another battle in the culture wars. The Supreme Court has ensured there will be more to come.