It is a basic life skill: quit while you’re ahead.
In 2018, the U.S. Supreme Court ruled that the Colorado Civil Rights Commission acted in the grip of anti-religious bias when it enforced an anti-discrimination law against baker Jack Phillips. He had famously refused to bake a wedding cake celebrating the wedding of same sex couple Charlie Craig and Dave Mullins in 2012. But that was just a technical victory for Baker; SCOTUS chose not to rule did not rule on the macro-controversies over whether a business can invoke religious objections to deny service to LGBTQ people, whether a cake is art or just a product offered by a public accommodation, or whether forcing a baker to create a cake for a gay wedding is compelled speech.
Sadly, annoyingly, unethically and stupidly, neither Baker nor the activists who are determined to bend him to their will had the sense to declare a truce.
Autumn Scardina asked Phillips and Masterpiece Cakeshop for a cake with pink with blue frosting. Jack was happy to bake that cake, too, until Scardina revealed that the cake would be part of her “rebirth” celebration as she transitioned from male to female. Then he launched Round 2 of the legal battle, and again, at least in Colorado, he lost.
The Colorado Court of Appeals ruled :
- A pink cake with blue frosting is not a form of speech.
- The Colorado law declaring it illegal to refuse to provide services to people based on protected characteristics like race, religion or sexual orientation does not violate business owners’ right to practice or express their religion.
- Creating a pink cake with blue frosting is “not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker,”
I agree, and I am confident that the Supreme Court will agree as well. The previous case was much better for Phillips on the facts. He didn’t design same-sex wedding cakes, period. In this case, however, his position is that he’ll sell a pink cake with blue frosting to anyone unless he or she is intending to become a she or he. “I’ll sell X to him, but not to Y, because I don’t like Y’s kind.” That’s bigotry. That’s illegal. That’s unethical.
Agreeing to sell the cake and then refusing because of how it will be used and by whom is a step past religious freedom into meddling with the lives of strangers. If my 7-11 asked me, “Gee, what are these pretzekls for?” and I said, “I’m having some people over to watch the Red Sox game!,” the store owner can’t ethically say, “Sorry, I worship the New York Yankees, and sacrifice a goat in pinstripes every summer to please the Great God Ruth. Get your pretzels someplace else.” And if my gathering was to celebrate my first bra, the 7-11 reaction wouldn’t just be unethical, it would be illegal.
It is obvious to me that Phillips isn’t just following his religion; He’s actively hostile to LGBTQ individuals, and a bigot. John McHugh, one of the lawyers representing Scardina, said that teh baker and his shop “…just object to the idea of Ms. Scardina wanting a birthday cake that reflects her status as a transgender woman because they object to the existence of transgender people.” That’s harsh but fair.
And Jack doesn’t have the sense to quit while he’s ahead.
Ethics Alarms 
Sadly, annoyingly, unethically and stupidly, neither Baker nor the activists who are determined to bend him to their will had the sense to declare a truce.
Well, “truces” are a thing of the past when it comes to both sides. Every battle must be fought to the last child.
That’s unethical and evil. In 50 years, the United States might fight the civil war that renders it a giant, smoking crater.
I am once again reminded that Star Trek TOS episode “Let that be your last battlefield” was intended as a warning, not a how-to.
Oh, and I agree with you. Phillips has shown his true self, and it isn’t a pretty sight.
Zealotry is a problem.
Disagree only for the following – it’s an “in” for the LGBTlmnopqrstuv movement to secure additional legal grounds/ precedent to force everyone else to bend the knee at their alter. You can’t tell me the timing of the “customers comment” wasn’t on purpose. They could’ve kept their pie (well, cake…) hole shut and gotten the cake.
Phillips isn’t trying to force his views on anyone. In not one thing have I read has he told his customers they must have a bible verse on any and every product he sells.
The homosexual community in question here IS trying to force it’s views on everyone. We all know there are bakers who can bake and decorate as well or better than he can. And more than likely one owned by LGBT proprietors, especially if we lean on the stereotype that gay people are more creative and artistic. They could’ve gotten the cake they wanted, a better cake, in theory, AND been fully supported in “who they are” by going elsewhere.
They’re looking to make him choke and die on his religious views.
It’s the same thing with Yeshiva University out of New York.
I notice they aren’t seeking out a Muslim baker or university. Only the “intolerant” Judeo/Christian outfits.
It’s a blatant power play.
If the trans person kept it only in the public sphere, facebook, news outlets, whatever, that would be one thing, and, frankly, enough.
Phillips could do the same in his social circles, and it would a spirited public debate, as it should be.
The “asshole” moniker here is squarely on the militant LGBT group. And it’s glaringly obvious.
BB
I think the point about being an ethics dunce is that he played right into the trap laid. The LGBTxyz community activists know exactly what they are doing and provoking more litigation. I wonder when some moron will go and demand a feminist bake a misogyny themed cake for his cisgender hetero-patriarchy club.
The point is don’t give them the rope to hang you if you are open for business. Personal biases need to be left at home.
Bingo, Chris.
Agreed, Chris. But, I do believe that the LGBT . . . activists are the bigger jerks.
jvb
JB
I agree. I have just learned to control my emotions so I am not goaded into fulfilling their prescribed narrative
Chris, you’re exactly right, and I’ll add a couple of things. The easiest way to prevent the LGBT community from getting in the baker’s face is for the baker to sell them a cake. They’re looking for a legal fight in order to assert what they believe is “their power over you”, so take away their power. Christian business owners should put the Christian fish in their windows (or whatever other symbols they want), proud as can be, and when LGBT folks walk in and advertise themselves, sell them a cake. They’ll likely buy the cake, walk out, and never come back.
Fight over.
The militant gays won’t bother with a store that actually sells them product, and those that don’t advertise their sexual preferences have probably already purchased from the baker without his knowledge.
I feel differently about pastors that won’t perform same-sex marriages, but business owners?…they can advertise their Christianity to others – and likely be far better witnesses for their faith – without denying them the right to buy something.
What’s the difference between a personal bias and a deeply held religious belief?
Agree!
We used to live in a free country. Now we have ‘civil rights’.
Then it isn’t a useless lawsuit to fight. Not if it establishes the upper bound of his protection while the first case established the lower bound of his protection.
He doesn’t have a legal leg to stand on, and he might end up prompting the Court to do what it didn’t do in the first case: rule that cakes are a commodity, not art.
That makes no sense. Anything that involves significant customization, at a minimum, is art. I would take it even more extremely, anything anyone produces, is art.
Haircuts?
Baking a pink cake and putting blue frosting on it isn’t art. That slippery slope leads to allowing high-end restaurants to discriminate.
Why not?
Not sure how it would allow a restaurant to discriminate. Cooking a meal isn’t celebrating someone’s life choices you may disagree with. Just like the first Jack Phillips ruling addresses. Which we’re discussing it at risk of being reversed if the next one goes through.
A group orders the chef’s specialty and then confides that they are celebrating a “transition.” The chef says this violates his religion, and while he’ll make his acclaimed crown roast for anyone, he won’t to celebrate THAT. I see no distinction.
Your comment was that this case could lead to a reversal of the first ruling- except the first ruling actually makes sense. In defense of the first case being an upper bound on his protections, none of what I said is wrong.
If the second case holds that the plain cake isn’t taking part in the celebration and also leaves the 1st ruling untouched, none of what I said is wrong.
Not over-ruling: the first case ruling didn’t deal with the real issue. It just held that the Commission was biased and thus couldn’t make a fair decision. The Court avoided dealing with the underlying issue itself—which often means that the petitioner wouldn’t like what would happen if it did.
I forgot his defense against lawsuit was never decided. Meaning he was to be perennially harassed for the rest of his life despite there being twenty dozen other cake bakers in a 10 mile radius.
A commercial supplier has no business objecting to how a product will be used by a customer. The special design in Case #1 was expression; a generic cake with specified colored cake and frosting isn’t, if he didn’t care how it was used until he knew who he was selling it to—that’s discrimination, per se.
You’re a pet shop owner and someone comes in to buy a Jack Russell puppy. He mentions that he’s a member of the Church of Satan, Indonesia, and that the puppy will be slaughtered (as quickly and humanely as any processed livestock) as part of their ritual honoring Satan, and then be used to make Fido a la Obama, a dish popular in his culture/heritage/ethnic group, for the meal following the ceremony.
Do you sell him the puppy?
That’s illegal. End of issue. On the other hand, if a Korean or Chinese customer wants to buy a puppy, and I refuse because I’ve heard that those cultures eat dogs, that’s discrimination, and also illegal.
C’mon man, as our friend Joe would say. I assume “That’s illegal.’ is referring to the dog meat issue, but that’s not the point. Say pet rabbit or goat, instead, then, or that the customer is a native American (exception to the 2018 dog & cat meat law). And the refusal isn’t because of some supposition based on ethnicity/culture (I probably should have left that part out, just threw it in as an extra question of whose “status” might trump), but because he was informed of the intended use. He couldn’t un-know that and pretend he’s not enabling acts abhorrent to him because of his religious beliefs (and revulsion at the idea of his pets being eaten). So, let’s clean it up:
Native American comes in and wants the dog (or rabbit or goat) to sacrifice for the glory of Satan (or his chosen pagan god), and tells the pet shop owner that. Christian owner doesn’t want to play a part in enabling the worship of Satan, and refuses the sale. Presumably, his response would be the same if a white Christian came in as a proxy and spilled the beans on the ultimate intended use of the animal by some unknown other. Alternately, the Indian comes in and says he wants the animal as a pet for his children. Maybe he’s even the owner’s neighbor, and the owner knows he’s a Satanist, ate dogs on the res, etc.(again, that last part doesn’t really matter unless tied to the ritual), but also knows the guy loves his children, and believes him. The owner sells him the animal. It’s not who or what the customer is, but being a knowing enabler in what will be done that’s the problem for the shopkeeper. Whether we share his views or not, he considers being forced to be part of that act an infringement on his religion.
Like you, I’m not particularly religious, although I have a surprising number of fairly close social ties to people who are. Many on the left (and seemingly fewer on the right) appear to think that the limit of religious freedom is being allowed to attend a church or belong to a religious organization of your choice. It’s not. Many devout persons aspire to make their everyday life a practice of their religion. Some of them are at times annoying jerks; some are the best people you would ever want to know.
You would bake the guy a cake; I would bake the guy a cake (if for no other reason than to cut him off. as has been suggested). I don’t know what part of the baker’s religious convictions compel him to not want to facilitate celebrating a sexual “transition”. You say he’s just being an asshole. Maybe he is, but you don’t really know that or know his mind. I’d be inclined to give his claimed status at least as much credence as a biological male who asserts he’s turned himself into a woman.
Animal cruelty laws and butchering laws are relevant. If a merchant knows an item is being purchased to commit a crime, then there is a legal and ethical obligation to withhold it. Absent that, there is none. X violating Y’s religious beliefs isn’t illegal or unethical. If Y is in business, he has no say over how his merchandise is used.
That reminds me of a story I once heard. A young lady was working at a pet shop and noticed a young man who came in every couple of months or so to buy a puppy. She was rather taken by him, so one day she struck up a conversation by saying, “you must really like dogs, you buy so many puppies”, to which he replied, “no, pythons”.
He’s being asked to perform labor in contravention of his religious views. How far apart is it from people who work in a hospital being “forced” to perform an abortion in terms of one’s labor being co-opted for purposes they don’t believe in?
In the extreme, if abortion is legal in a state, is a Catholic hospital required to provide those services?
I mean, it’s just a service, like getting a cake, right?
You’re not arguing the facts, BB. The law doesn’t allow people to discriminate based on gender for religious reasons. He sells cakes, advertises as such, and was willing to make and sell the EXACT cake sought by this customer, but not to this customer because of the customer’s sexual orientation, and because he doesn’t like the kinds of people who will eat his cake. None of his business. Can’t do it. Simple as that.
Let’s take this to its logical conclusion. The issue seems to be the creation of a cake for a problematic purpose. In other words, this conflict was created to bend the cake maker’s efforts to the will of the customer. What would be the result if the baker tells the customer, “I have a pink and blue cake right here, for sale to you if you want it.” I would bet that the customer would reject that premade cake and instead order a blue and pink cake because the point here is not to get a cake, but to force a person to do something that the customer knows is abhorrent to them. This looks like barratry to me rather than an exercise of civil rights.
Perhaps a reasonable end result would be for the baker to make a cake so distasteful (though not harmful) that the customer couldn’t eat it. But I think, in terms of any ethical balance, the scale tips in favor of the person who is not seeking to force a person to violate their religious norms.
What would be the result if the baker tells the customer, “I have a pink and blue cake right here, for sale to you if you want it.”
The point is that Phillips wouldn’t do that. If he did, there would be no basis for complaint.
So, I am wondering what Phillips is not exercising his “duty to confront” or its corollary, the “duty not to capitulate” to the mob? I get an argument can be made that a cake is just a cake and he should bake a cake, but if he, like my wife, frets over the minute details of her cakes, it becomes his artistic expression. Why isn’t he entitled to tell these people who deliberately provoke him (bearing in mind Chris’ argument above to avoid being goaded into a reaction and boxed into to a corner) “bite me”. He hasn’t backed down to forces compelling conformity. Isn’t that an ethical stance? Is this, as Chris pointed out, a case of “pick your battle” and not necessarily a hill to die on? If so, where does one draw the line?
Again, I think the bigger ethics villains are the LGTBQadinfinitum bullies who target him and his business. They are going to destroy him at all costs. I bet others in the LGTBQadinfinitum community would avoid his bakery like the plague, choosing another bakery.
Another commenter suggested Phillips should make the cake but make it as unacceptable as possible. “Oh, you want a cake? Here’s your cake” and it looks like that lizard guy in one of the other posts. That to me is even more unethical from a business standpoint. It would destroy his reputation.
jvb
He’s being a bigoted asshole. If he has no objection to making the exact same cake for anyone else—and that’s what the facts say—then he can’t legally or ethically say, “I’ll make one for them, but not YOU, because I don’t approve of you.” No religion in the world would find he had “sinned” by selling someone a cake.
I’m very consistent on this: a pharmacist can’t ethically refuse to serve a gay or unmarried woman who wants to fill a superscription or buy something anyone else can buy. And the pharmacist is on stronger ground than the baker. Sure, the customer was putting him on the spot, but he’s put that target on his back himself. He’s in business to sell cakes to the public. His stance is that LGBTQ people aren’t acceptable members of the public, and I don’t blame them for getting in his face. They have a duty to confront HIM, and with this case, he has shown that he’s using religion as a cover for pure bigotry.
Sell the damn cakes to everyone, or do something else. I’m sick of this guy.
I see your point.
jvb
Whew!
Apparently he also doesn’t sell Halloween cakes, should he be forced to? A LOT of people celebrate Halloween as something very important and special to them, several of them in my family.
So it is really bigotry, or is he consistently holding to his religious beliefs, as distasteful as you find that to be?
Come on. That’s not even close to relevant. He doesn’t sell Fords either. If he doesn’t sell them, nobody can make him sell them. But he DOES sell pink cakes with blue frosting….the facts here say so. He just won’t sell them to those icky trans people. That’s bigotry and discrimination, not religion.
Show me any religion that has a stated belief that someone transitioning genders is committing a sin or any other breach of a religious tenet. Where is that in the 10 Commandments, for example? This is sincere bigotry using religion as a cover. The baker’s first dispute was at least plausibly sincere. This one causes me to doubt the sincerity of the first. He’s like illegal immigrants claiming to be “refugees”—picking a legal justification that isn’t the real reason he’s trying to do what he’s doing.
Actually, the record here shows that he had lots of premade cakes to sell, to anyone who wanted one. So the hypothetical holds, I think. He only objected to making a cake for a specific purpose that was contra to his personal beliefs. The whole point of this exercise was not to get a cake, it was to force him to make one.
That’s a warped description. He makes cakes and sells them. He was asked for a kind of cake with a kind of frosting, as he is every day. He said sure, and then when he found out what the cake would be used to celebrate, he said, “I won’t sell to you, dogs, or Irishmen.” The pink and blue cake conveys no “message” at all. This isn’t a refusal to send a message, it’s refusal to accommodate someone the baker disapproves of. Why is this so hard to grasp? It’s indisputable on the facts. How his cake is used after he sells it is none of his damn business. He’s not selling guns or drugs. I already gave one analogy (in the restaurant), I could come up with a thousand. A registered Democrat baker is asked to sell a black forest cake, and is ready to pay for it when he says, “This will be a hit at my MAGA party,” and the Democratic baker says, “You people are Nazis, and I won’t sell you a cake!” Asshole. And 100% in the wrong, even if the cake-seeker went to that bakery explicitly because he was an anti-Trump nutcase, and selling a cake for that purpose would annoy him. The cake-seeker may be needlessly provocative, but the baker in that situation is no different from a store owner visited by polite black customers specifically because he’s known to be a bigot. His only ethics choice is to treat them like he would any other customer.
This isn’t even a close call for me. And I guarantee if Phillips goes to the mat, he will lose—because he’s wrong.
“How his cake is used after he sells it is none of his damn business”
Cake purchaser could just as easily have said nothing, and it wouldn’t have been.
But the cake purchaser was an attorney, so I’ll refer back to my original post on that. If you can make the assumption that Phillips is being a bigoted jerk, as opposed to a devoutly religious man, we can make the assumption that it’s exactly what 77Zoomie and I say it is.
Jack, I posted a comment in here yesterday (in response to Chris Marschner), but I’m guessing WordPress spammed it. It’s way after-the-fact and I’m sure my thoughts are more than covered in the responses…but if you happen across it and can rescue it…
Many thanks in advance!!
Got, and it’s up. I have no idea what Word Press is up to lately….sorry!
Thanks so much!!
Thanks for posting this Jack. I’d read about the case a wee bit, but I either assumed or the stuff I read said that the transgender person was requesting a specific message on the cake, not what is more or less a generic cake.
Facts do make a difference.