The last time (in July) I dealt with the apparently thornier-than-I-thought issue of the Colorado baker who refused to sell a wedding cake to a gay couple, I assumed that the Supreme Court would treat this as a pure public accommodations case, and side with Colorado and the couple. I was wrong. Now it is beginning to look like baker Jack Phillips may even prevail, based on the justices’ comments during oral argument.
Then I wrote, quoting my post when this case first surfaced…
“The court’s conclusion is impossible to rebut. The cake the baker was asked to bake for the gay wedding differed not at all from one he would normally sell a straight couple. In truth, this had nothing to do with expression. He was just refusing to serve a gay couple because of their sexual orientation. Selling them a standard cake would neither constitute, nor would it be recognized as a “message” in support of gay marriage.
The Court agreed that a wedding cake with a customized message celebrating a same-sex marriage as such might implicate First Amendment speech issues, but “we need not reach this issue,” the court said. “We note, again, that Phillips denied Craig’s and Mullins’ request without any discussion regarding the wedding cake’s design or any possible written inscriptions.”
In other words, Phillips was gratuitously and unnecessarily being a cruel jerk. An alleged Christian who is unable to detect the basic Golden Rule application in treating fellow citizens with the minimal level of respect inherent in allowing them to buy a standard wedding cake requiring no “Yay Gay!” or “Charlie and David Forever!” messages in pink frosting deserves no sympathy or quarter from the law. Could the couple have just shrugged and found another bakery? Sure, they could have. Linda Brown could also have just shrugged and found an all-black school to attend, too.
The gay couple are not the villains here. Jack Phillips broke the social contract, as well as the law.”
Recent articles about the SCOTUS appeal have added some facts that I had missed, or not given sufficient weight. For example,
- The baker told the couple that he would sell them—even give them–any other cake in the store, birthday cakes, dessert cakes, anything but wedding cakes. “I’ll make you birthday cakes, shower cakes, cookies, brownies,” Phillips recalls saying. “I just can’t make a cake for a same-sex wedding.”
So this was not a case of general prejudice against gays. It was prejudice against gays marrying each other, and the wedding itself.
- The couple had not discussed the cake’s design before Phillips turned them down. Thus the claim that the cake was going to embody baker’s endorsement of the union with a forced message seems, well, forced.
Unless the cake itself is expression…
- “I have no problem serving anybody — gay, straight, Muslim, Hindu,” he said. “Everybody that comes in my door is welcome here, and any of the products I normally sell I’m glad to sell to anybody,” said the baker to the New York Times:
“Because of my faith, I believe the Bible teaches clearly that it’s a man and a woman.Making a cake to celebrate something different, he said, “causes me to use the talents that I have to create an artistic expression that violates that faith.”
- The Art or Public Business question is closer than I originally thought. The couple did want a customized design, and had chosen the bakery because of its reputation for making beautiful as well as yummy cakes. Phillips calls his bakery Masterpiece Cakeshop, and said he chose the name to emphasize the creativity that informs his craft “It says ‘masterpiece,’” he says “which hopefully indicates painting and art.
Artists, as many court cases have affirmed, cannot be forced to create, and for the government to compel artistic expression is a First Amendment violation.
- On the other hand, I found this passage in Adam Liptak’s article worth a ponder:
If a bakery has a free speech right to discriminate, gay groups contend, then so do all businesses that may be said to engage in expression, including florists, photographers, tailors, choreographers, hair salons, restaurants, jewelers, architects and lawyers. A ruling for Mr. Phillips, they say, would amount to a broad mandate for discrimination.
Art is notoriously difficult to define. To that list, I could argue for the addition of gardeners, landscapers, bathroom floor tilers, interior designers, architects, website designers, marketing consultants, and on and on. Is a sign-maker an artist? A printer?
I have a hard time disagreeing with the last sentence of that paragraph.
- Ann Althouse exhaustively analyzed the oral argument, and did a terrific job. I recommend reading it; indeed, I question whether anyone is informed enough to opine about the case without reading it. She thinks Justice Kennedy will decide the case, and she summarized what she saw as his thinking this way, in part:
1. Empathy for the human beings on both sides of this controversy. Kennedy showed empathy for the gay people who face discrimination: If the cake-maker wins this case, he could put “put a sign in his window: we do not bake cakes for gay weddings,” and that would be “an affront to the gay community.” …But Kennedy also showed empathy for the cake-maker as he criticized the state for its lack of tolerance and respect for the cake-maker’s religious beliefs. Kennedy seemed troubled not only about compelling the cake-maker to make cakes for same-sex weddings but also about requiring him to teach his employees that his religion is subordinate to the dictates of worldly government….
2. Government hostility toward religious people. Not only did Kennedy chide the government’s lawyer for the state’s lack of tolerance and respect for religion (as noted in #1), he seemed willing to look into the subjective attitude of individual members of the 7-person commission that made the original decision that the cake-maker had illegally discriminated….
Government is, especially progressive government, increasingly hostile and even contemptuous of religion and people of faith. This is a valid concern.
3. Judicial expertise in crafting a principled, limited exception to the state’s anti-discrimination law. A big issue, throughout the oral argument was: How can the Court define a principled narrow exception to the state’s law against discrimination against gay people, an exception that would allow the cake-maker with a religious compunction to refuse to make a cake for a same-sex wedding? Justice Kennedy became involved in some of this discussion about where to draw the lines — the ready-made/custom cake distinction, the speech/conduct distinction, and the distinction between selling a cake in a shop and supervising the cutting of a cake at a ceremony…
- Althouse concludes, “These 3 points, in that order, suggest that Justice Kennedy is likely to provide the 5th vote for the cake-maker’s religious exception.”
I still hope she’s wrong. Either side’s victory creates a slippery slope, but the real harm of discrimination and reducing classes of citizens into those with lesser or greater rights is far worse than the symbolic harm of having to sell a gay couple a wedding cake that nobody would regard as the baker’s endorsement of the marriage, including God, since God is presumably not an idiot.
This, however, is the kind of case that spawned the old saying “Hard cases make bad law.” This one will, no matter how it comes out.
That’s why it should have been resolved ethically, with compromise, responsible conduct, kindness, and respect.