Jack Phillips, the stubborn Christian baker who owns Masterpiece Cakeshop in Lakewood, Colorado, is being sued again, this time because he refused to make a custom cake celebrating a clients’ gender transition. In 2012, the baker refused to bake a custom cake for a same-sex wedding and was accused of unlawful discrimination on the basis of sexual orientation.
In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Supreme Court ruled 7-2 for Phillips overturning the decision of the Commission on the grounds that it was obviously biased against him as well as devout Christians. One commissioner even compared Phillips’s invocation of his Christian beliefs to justify rejecting the cake design to defenses of slavery and the Holocaust. Yeah, I remember that the Nazis were really unreasonable about cakes. SCOTUS never reached the constitutional question of whether the government can compel people to create speech or artistic expressions they object to on religious grounds or otherwise.
If a custom cake design is art, then I think the answer to this is easy: no. Similarly wedding photographs, though if you used what we got from our wedding photographer, calling them “art” is a stretch.
With a conservative Supreme Court, the baker wins. And yet…
The first time around, after finally getting all the facts, I held that both Phillips and the gay couple who obviously targeted him to bend him to their will were being jerks. My position hasn’t changed a bit. I wrote here,
“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.”
Nah. Ethics Shmethics! We want to win! We want to rub those assholes’ noses in their bigotry! Courts have nothing better to do than to resolve contrived disputes over cake designs that could be settled with just a bit of kindness and mutual consideration!
This time, even more than last, it is clear that the baker is being targeted. Phillips won’t even make custom wedding cakes anymore, and his principles (Stubbornness?) have reportedly cost him 40% of his business. But transitioned (or transitioning) Autumn Scardina wanted a cake with blue icing on a pink cake “for the celebration of my transition from male to female.” When that was turned down she asked for a design showing Satan smoking a joint. When THAT was rejected, she complained to the good ol’ reliable Colorado Civil Rights Commission.
I wonder if Autumn was always an asshole, or if she transitioned to one…
As for Jack, would he have refused if Autumn had said a red velvet cake with pink frosting would celebrate her new gender? Purple frosting? If another client asked for pink on blue frosting because she liked the combination, would Jack have objected to that? Now he’s not just refusing to assist a client in sending a message the baker doesn’t believe in, he’s refusing to make a cake based on what the client wants it to mean, whether an objective person would see it that way or not. Jack doesn’t get jerk points for refusing to depict Satan: that’s clearly intended as a slap at his religious beliefs. But pink on blue frosting?
In a sign of hope, Colorado Attorney General Phil Weiser and attorneys representing Phillips announced that they had mutually agreed to end two legal actions, including a federal lawsuit Phillips filed accusing the state of waging a “crusade to crush” him by pursuing a civil rights complaint over the gender transition cake.
But Autumn still may file a lawsuit.
Just make the damn cake, Jack.