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.
I will state up front that I am confident that this decision will get to the U.S. Supreme Court, and that if and when it does, it will be reversed.
The 10th U.S. Circuit Court of Appeals at Denver ruled 2-1 that website designer Lorie Smith and her company, 303 Creative, violated a Colorado law by refusing to create a website celebrating a same sex union. She was represented by Alliance Defending Freedom, a conservative Christian nonprofit, who also represented Christian baker Jack Phillips, who refused to bake a cake for a same-sex wedding. There is a material difference, however, between a cake and a website. A cake is not generally thought of as expression, and there is a colorable argument that a bakery is a public accommodation. But Smith, whose company designs wedding websites, argues that forcing her to make one that supports a same-sex marriage violates her religious beliefs. It isn’t frosting and cake shades at issue, it’s words.
A Colorado public accommodation law bars public accommodations from refusing to provide equal access to services because of sexual orientation. The law’s communication clause also says public accommodations cannot publish any communication indicating that full access to services will not be provided because of sexual orientation. The appeals court majority decreed that neither provision violates Smith’s free speech and free exercise rights under the First Amendment, even though it acknowledged that Smith’s websites are pure speech that involve her unique creative talents. But, the Court claims, indulging in an “it isn’t what it is” rationalization, Colorado “has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace…We agree with the dissent that a diversity of faiths and religious exercise, including appellants’, ‘enriches’ our society…Yet a faith that enriches society in one way might also damage society in other ways, particularly when that faith would exclude others from unique goods or services.”
This opinion is way, way over the traditional judicially-drawn line between compelling public accommodations to be equally accessible to all and compelling artistic expression. Under this theory, a singer who performs at weddings would have to warble at a same-sex ceremony, even if her faith held that such a ceremony was a sin.
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,
If you are old enough, you may remember the long-running comic in Mad Magazine called “Spy vs Spy.” It was kind of a wordless Roadrunner cartoon with a Cold War vibe, and not especially funny, but I just thought of it for the first time in decades. (Incredibly, it is apparently still running in Mad, though the magazine itself is sinking fast.) I was considering this ridiculous story…
…It started small, but disputes over a Kansas man’s alleged violations of his homeowner association’s rules has led to a complex legal battle that is now the most expensive of its kind. Owner Jim Hildenbrand, has been locked in conflict with the HOA of Avignon Villa Homes since he moved there in 2012…
What began with a disagreement over the placement of a satellite dish and a decorative wall has escalated into a legal back-and-forth that has cost both parties at least a combined $1 million. It is the most expensive HOA dispute in the country.
It is also yet another example of the increasingly common societal phenomenon of “Asshole vs. Asshole.” These are ethics breakdowns where two parties in disagreement decide that making the other side pay for daring to have an adverse position overwhelms whatever the original objectives of the two parties were. It is reminiscent of the kinds of disputes parents—the good ones, anyway–arbitrate between siblings. “You’re both right,” Mom or Dad will say, “And you’re both wrong. You have reached the point where the escalation of anger and retaliation is the problem, not what you think you are arguing about.. Work it out. Compromise. See it from the other one’s perspective. And if you don’t, we’re going to punish both of you.”
In the case of Mr. Hildebrand and his fascist Home Owner Association, both sides say it’s the principle of the thing. As any reader hear know, I am a believer in and a practitioner of taking stands for principle, but knowing when this is essential (Do NOT apologize for speaking the truth or bucking the mob) and destructive is a critical life skill. The trick is keeping emotion out of it, and engaging in ethics problem solving. Asshole vs Asshole occurs when hate, and anger, and the desire to teach that jerk a lesson blinds both parties to common sense, the Golden Rule, and the human duty to seek peace, not war. Continue reading →
How refreshing it is, while at least half the pundits and journalists are misrepresenting the Masterpiece Bakery decision to the public, to read an Ethics Alarms comment that both clarifies Justice Kennedy’s majority opinion’s flaws and also highlights an important issue that only the routinely-derided Justice Thomas focused on.
As it happens, I disagree with Thomas that a custom wedding cake for a gay wedding is necessarily “compelled speech.” What is it saying? If it can’t be reasonably interpreted to express a position that can be fairly attributed to the baker, then it’s the customer’s speech, not the baker’s. I know there are cases where sign-makers and others have been upheld in their refusal to reproduce messages they personally find offensive. We saw a hint of that in the silly “Summa ___ Laude” cake fiasco. My position is that a business that creates a setting for speech by others should have no right to interfere with that message—hateful messages, obscene messages, it shouldn’t matter. It should be no more acceptable for a sign-maker to say “I won’t make that sign” than for a cabbie to say, “I won’t drive to that address,” or a haberdashery to refuse to let you buy a suit that makes you look fat.
“According to the individual respondents, Colorado can compel Phillips’ speech to prevent him from “‘denigrat[ing] the dignity’” of same-sex couples, “‘assert[ing] [their] inferiority,’” and subjecting them to “‘humiliation, frustration, and embarrassment.’” Brief for Respondents Craig et al. 39 (quoting J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 142 (1994); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 292 (1964) (Goldberg, J., concurring)). These justifications are completely foreign to our free-speech jurisprudence.
States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Johnson, supra, at 414. A contrary rule would allow the government to stamp out virtually any speech at will.”
This is the opinion that should’ve carried the day. In fact, Kennedy’s opinion is a blatant special pleading, fallacious on it’s face when he claimed the CCRC disparaged Phillips’ position. Even if I allow the comments made by some CCRC members do in fact disparage Phillips’ religion, the law makes it clear that religion is inoperative as a defense against its requirements anyway. How, then, can hostility to religion matter one jot or tittle, and isn’t such expression protected in its own right? The CCRC needed not show the least deference to Phillips’ religion, because the law that creates it manifestly doesn’t: Continue reading →
1. Dummies or Liars? In a comment about yesterday’s 7-2 SCOTUS ruling favoring the Christian cake shop in another baker vs. gay couple controversy, Still Spartan wrote, ” I also don’t want to spend the next few months explaining the ruling to non-lawyer liberals who already are beginning to tear their hair out because they don’t understand the opinion.” Unfortunately, that’s exactly what she will have to do, and the rest of us, as there is already a deliberate effort underway to misrepresent the decision and deceive members of the public too lazy to read Supreme Court opinions, or too under-educated to understand them. (It really isn’t that hard.) This is fear-mongering, and also an effort to undermine the Supreme Court, which can be expected to be blocking a number of left-driven totalitarian measures in the not-too-distant future.
For example, on “The Late Show,” where a disturbingly high percentage of millennials get their news commentary, the smug, insufferable Stephen Colbert described the ruling this way:
“It’s a bad day for gay rights in America. And also for cake rights because this morning, the Supreme Court ruled in favor of a Colorado baker who refused to bake a cake to celebrate the marriage of a same-sex couple. That is tough news. But to lighten the blow the Supreme Court did send the gay couple a lovely cake” which was a cake in the shape of the middle finger.
Hilarious! And a complete misrepresentation of the opinion. The question is, did Colbert and his writers really not understand the ruling? What are the odds that any of them read it? If they didn’t know what the ruling was, isn’t it irresponsible to pass along false information? Or did they know that the opinion in no way undermined the rights of gays to be served in public accommodations like everyone else, but found, and correctly so, that the process was rigged against the baker because of open hostility to religious freedom? If so, the “joke” was deliberate misrepresentation.
The fact that the lie would have been in service of a joke is not a justification. Spreading falsity in public is harmful, and it does not matter who does it, or why.
2. From the “Stop making me defend the New York Yankees!” files: This is an integrity vs. cash test for Major League Baseball. ESPN announced that it was picking up the Yankees’ one 1 o’clock Sunday, July 8 game with the Blue Jays in Toronto for its 8 p.m. Sunday night Game of the Week. This decision, however, was announced after the Yankees and Orioles players agreed to make up last week’s rained out game as part of a doubleheader on July 9. As now scheduled, the Yankees will have to play three games in a 24 hour period. The Yankees would probably not leave the ballpark in Toronto until midnight, then have to go through customs, getting into Baltimore at 4 or 5 a.m., into their hotel rooms around 7, and be due at Camden Yards in a few hours.
This is potentially dangerous to the players (baseball is hard to play while asleep), and also undermines the team: the Yankees are expected to be in a neck-and-neck race with the Boston Red Sox for primacy in the American League East, and a single game could be crucial. If the Yankees are forced to play Sunday night on July 8, the Yankee management and players are threatening to retaliate against ESPN by refusing all interviews with ESPN broadcasters. Of course, killing those in-game interviews will only improve the broadcast.
Then the Yankees will claim that the Red Sox were colluding with ESPN, and there will have to be an investigation… Continue reading →
The Supreme Court ruled today in favor of Jack Phillips, the Christian baker in Colorado who refused to bake a custom wedding cake for a same-sex couple. The Court found that the Colorado Civil Rights Commission infringed on Phillips’s rights in ruling that he violated the Colorado anti-discrimination law barring merchants from refusing service based on race, sex, marital status, or sexual orientation. The ruling is narrow; it does not empower merchants to deny service based on sexual orientation. It is based entirely on the Colorado Civil Rights Commission’s hostility toward Phillips’s religious views in ruling against him.
Observations:
1. Justices Ruth Bader Ginsburg and Sonia Sotomayor were the only dissenting votes, meaning that the decision was 7-2, and not a “conservative vs liberal” outcome. Even the dissent is based on narrow legal and factual distinctions rather than ideological ones.
2. Read the opinion, and the dissent. Also, if you really want to impress your friends, access the resources available here.
3. These statements from Justice Kennedy’s majority opinion, cited by Justice Ginsberg, help clarify matters in the right legal and ethical direction:
“[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
“Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”
“[P]urveyors of goods and services who object to gay marriages for moral and religious reasons [may not] put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’ ”
The ruling could have hardly been less of a ringing endorsement of either “side.”
4. To which I say, “Good.” As I wrote the last time this case was discussed here, Continue reading →
I’m not exaggerating: I have at least four Comments of the Day stacked up on the Ethics alarms runway after this one, and there are usually COTDs arriving on Saturdays. I can’t promise to get all of them up today, especially since I’m hacking away at the 2017 Ethics Alarms Awards, and this is a long working weekend at ProEthics. Still, I will get a lot of them to you, and it’s a provocative group, as you will soon see.
But first, a prelude and some context.
An Oregon appellate court this week upheld a ruling against the owners of the since-closed Sweetcakes by Melissa, Aaron and Melissa Klein, forcing them to pay emotional-distress damages of $135,000 to Rachel and Laurel Bowman-Cryer, a lesbian couple for whom they refused to design and sell a wedding cake almost five years ago. The Klein’s argued that state Labor Commissioner Brad Avakian violated state and federal laws and their rights as artists to free speech, their rights to religious freedom and their rights as defendants to due process.
The Oregon court ruled that the Kleins’ argument that their cakes entail an artistic expression is “entitled to be taken seriously,” but it’s not enough for the couple to assert their cakes are pieces of art:
“Although we accept that the Kleins imbue each wedding cake with their own aesthetic choices, they have made no showing that other people will necessarily experience any wedding cake that the Kleins create predominantly as ‘expression’ rather than as food.”
This mess commenced when Rachel Bowman-Cryer went to the suburban Portland bakery with her mother in January of 2013. When Aaron Klein was told that the wedding did not involve a male partner, he said that the bakery did not make cakes for same-sex weddings. They left, but soon the mother returned to argue with Klein as Rachel sat in the car, weeping. her mother went in to speak with Klein. The mother told Klein she had once thought like him, but having two gay children forced her to see the error of her ways. Klein retorted with Leviticus: “You shall not lie with a male as one lies with a female; it is an abomination.”
The complaint and action by Oregon’s Bureau of Labor and Industries followed. You can read the opinion here.
Ugh.
This case is even worse than the one currently before the Supreme Court, discussed here.Continue reading →
A recent episode at Fordham illustrates quite effectively the way American society could unravel as a result of a Supreme Court decision supporting the Masterpeice Cakeshop’s claim that its faith-based objection to same sex marriage should justify restricting service to some customers.
Rodrigue’s Coffee House is an off-campus coffee shop run by a student club at Fordham University.
The shop has a “Safer Space Policy” that reads…
“Rodrigue’s strives to be a safer space on Fordham’s campus. For these reasons, consider the following:
Do not make assumptions about someone’s gender, sexuality, race, class, or experiences. Be aware of your own identity, while being considerate of the personhood of your peers. Be mindful of the ways in which your words and actions impact others. Be aware of the boundaries of other’s space, physical or otherwise, and respect their consent. No racism – No sexism – No homophobia. If you feel that someone has transgressed this policy, we want you to feel comfortable confronting them or approaching a member behind the counter, who is available as a resource to assist you.”
This is Authentic Frontier Gibberish and first degree virtue signalling, and could be fairly translated as “We are pompous and oppressive social justice warriors who are intolerant of the views, statements, or opinions of anyone who does not share our rigid and undeniably correct ideology. We hereby declare our right to ostracize such non-conforming individuals on the basis of what we, in our sole discretion, consider hate speech. Fear us.”
Fordham College Republicans visited the coffee shop wearing MAGA hats. Sure, they did this to provoke a response, knowing what the likely reaction would be, much like a gay couple deliberately asking for a wedding cake at a Christian bakery. Memorialized in the video above, the president of the club didn’t disappoint, and angrily ordered the College Republicans to leave the premises.
“This is a community standard—you are wearing hats that completely violate safe space policy. You have to take it off or you have to go…I am protecting my customers,” the president said. Note that she was “protecting” his customers from exposure to the thrice-removed (initials, the phrase “Make America Great Again” which is benign on its face, and its association with the Trump campaign) message on a cap.
“We are your customers, we bought something,” one of the young Republicans replied.
“I don’t want people like you supporting this club… no one here wants people like you supporting our club,” the president answered. “I am giving you five minutes….You are threatening the integrity of our club. This is a community standard—you are wearing hats that completely violate safe space policy. You have to take it off or you have to go.”
When one of the students then asked her to explain what she thinks the MAGA hat stands for, to which she shouted, “Fascism, Nazis! You have three minutes.”
Legally, of course, this conduct is distinguishable from the conduct of the same-sex marriage decrying cakeshop owner. There is no law prohibiting a proprietor from behaving like a vile, intolerant, rude, bigoted asshole, just basic standards of decency. Nor is there a law protecting conservatives from invidious discrimination in public accommodations based on passively displayed political beliefs, although if this kind of thing starts proliferating, there will be.
However, the toxic effects on the culture by the two examples of intolerance and disdain for other citizens and human beings is exactly the same. Each is similarly mean-spirited, each is based on excessive self-righteousness, and each equally harms society, and the nation by elevating tribalism to standard practice. The theory of the coffee shop proprietor, I suppose—that the mere presence of a hat with initials on it is “unsafe” —-is marginally more outrageous and idiotic than the baker’s claim that selling a cake for a wedding he will not attend, is not invited to, that will never impose on his consciousness once the customers walk out the door unless his cake turns out to be poisoned, and that will take place whether he provides the cake or not, is a burden on his religious faith. Marginally. They both constitute unethical mistreatment of other human beings who deserve better, and breaches of the Golden Rule. That in both cases the victims of the unethical conduct may have intentionally presented themselves to be abused does not mitigate the abuse.
I might as well state the obvious, that the members of the intolerant club operating the shop are 100% behind the cause of forcing the cakemaker to sell the gay couple a wedding cake, but believe it is fair and just to refuse to sell Republicans a muffin.
Sometimes I am embarrassed that I even have to write a post. This is one of those times.
If higher education is manufacturing future citizens who think and act like the club president running the coffee shop, then higher education is doing the nation more harm than good.
Ryan Harkins’ Comment of the Day, the fourth on the post about the Great Cake Controversy ,responds to #3, by Extradimensional Cephalopod.
The four COTD’s cover a great deal of legal and ethical territory and if not the full spectrum of positions on this difficult topic. Ryan’s three predecessors can be read here:
I hate to answer for the baker, so I hope you don’ mind if I respond with how I would answer.
What if I walked into the shop and asked for a wedding cake for no reason at all? Nobody’s getting married; I just want the cake. Is it against his religion to make that style of cake for anything other than weddings?
It would not be against my religion, no.
One thing I want to point out about your line of inquiry here is that you are divorcing the mechanical action of making a cake from the purpose of making a cake. A cake is a cake, and apart from any purpose, it remains a cake with no further meaning than a configuration of confectionery molecules. But the purpose for making the cake defines the context. If you wanted me to bake you a cake so you could bury it in your backyard, I wouldn’t have any religious objections to that, but I would certainly object to having the fruits of my labor just thrown away. Just as I would object if you wanted me to write you a book so could use the pages of the book as toilet paper.
The purpose of making a wedding cake is for it to be displayed and consumed at a wedding. If you aren’t going to use the cake for a wedding, ontologically speaking, could it even be a wedding cake?
Do I have to show him a marriage license?
I wouldn’t require that. My general standpoint would be to take people at their word. That being said, if I knew you and you were known for pranks, were opposed to marriage in general, and nothing I knew about your recent activities hinted at a wedding, I might want some actual proof that a wedding was occurring.
I’m an atheist; will he refuse to acknowledge my marriage because you can’t have marriage without a god? Does only the Christian deity count for a “real” marriage?
Since I’m Catholic, I’ll just toss out what the Catholic Church teaches about marriage. Marriage is universal. Historically, marriage permeates pretty much every culture. Marriage is an institution that has, for the most part, united a man and his wife to the children they bear together. Marriage does not require a profession of faith, because it is a foundational institution of mankind. That is why eating, drinking, and shelter don’t require a profession of faith. They are also foundational aspects of the human condition. So, there is no objection to two atheists marrying.
Where the religious context comes into view is with the nature of that marriage. Catholics profess that Jesus elevated the institution of marriage to a sacrament. This means that a valid marriage between baptized individuals cannot be dissolved save by the death of one of the two parties. But that does not mean every marriage is sacramental. If one of the two parties is not baptized, the marriage is still a valid marriage, but it is not a sacramental marriage. Thus it could be dissolved, and either party would be free to re-marry.
A funny oddity of terminology crops up in Catholic teaching. Since a valid, sacramental marriage cannot be dissolved, but since parties can licitly separate for serious reasons (abuse, abandonment, adultery, addiction), a Catholic can be married and divorced at the same time…
I would argue that the artistic quality of the cake has nothing to do with who is getting married, or if there’s even a marriage at all–at least, as far as religion is concerned.
I agree with you to a certain extent, here. The artistic quality is its own concern. It is the teleological purpose of the cake that is the true contention. So that raises a question: if I bake a cake that I do not intend to be used at a wedding, but looks just like a cake that I do intend to be used at a wedding, is it a wedding cake? To use some technical terms, there is the essence of a thing, and there are the accidents of a thing. The essence of a thing is what is essential to a thing being that thing; accidents are just features that particular thing has that are not essential to a thing being that thing. The essence of a chair is something to sit on. Accidents of a chair are having one leg, or three, or four, having a back, not having a back, etc. So what is the essence of a wedding cake, and what are the accidents of a wedding cake? I think the only essential difference between a wedding cake and a non-wedding cake is the intent for which the cake is made. The only part I waffle on is the cake-topper…
On a separate note, I assert that religion ultimately must be subordinate to the law of the land.
I’m uncomfortable with how you phrase this, so let me toss out what I think about this, and let me know if it does or doesn’t conform with what you’re thinking. Continue reading →
Ethics Alarms 