Baking Cakes and Religious Liberty

Image via NYTimes

Would you force Muslim bakers to make cakes trashing the Koran or a black baker to make a cake promoting white supremacy?

The Supreme Court will soon hear a case that’s been making national headlines and testing the reasonable interpretation of our nation’s anti-discrimination laws.

The Court granted certiorari in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, which centers around Jack Phillips, the Christian owner of the cake shop who refused to make a wedding cake for the gay wedding of Charlie Craig and David Mullins in Colorado.

Phillips claims that he was within his First Amendment rights in refusing to participate in the wedding ceremony by creating “art” that violates his view that marriage is only between a man and a woman. He has said that he would be happy to make any other cake for the couple for any other occasion, just not the wedding.

Colorado and its courts ruled against Phillips on two essential points: 1) That Phillips’ cakes – his art – were “mere conduct, not pure speech,” and thus were not subject to a First Amendment exemption from the Colorado Anti-Discrimination Act (CADA), and 2) Since there is a law forcing Phillips to make the cake to which he objects on sincere religious grounds, it is acceptable to force Phillips to create this speech. According to the Colorado Court of Appeals, he could just say, “the government made me do it,” and absolve himself of any connection to the message on the cake.

Phillips filed a petition for a writ of certiorari on July 22 of last year, which the court put off granting, likely because the late justice Antonin Scalia’s seat was not yet filled.

The court is taking the case at an opportune time for an issue of this magnitude, as Neil Gorsuch is now confirmed in Scalia’s place. Possible retirement rumors are also swirling around aging justice Anthony Kennedy.

Where do one person’s rights end and another’s begin?

Our nation’s anti-discrimination laws, like CADA, prevent discrimination against race, gender, sexuality, religion, etc… in employment, public accommodation, education, voting, housing, and more.

But when taken too far, these laws can start to infringe on the legitimate rights of others.

There’s strong precedent supporting Phillips’ claim that his artistic expression through his cakes is protected as pure speech. Courts have ruled that everything from music without words to stained-glass windows are pure speech subject to the strongest possible First Amendment protections. As pure speech, the state has no right to compel Phillips to create cakes that promote ideas he finds morally objectionable.

To not serve a gay person a burger at a lunch counter is to refuse to participate in lunchtime, conduct which is rightly illegal. To not make a gay wedding cake is to refuse to engage in speech that violates sincerely held religious beliefs, and a totally different situation.

William Eskridge Jr. of Yale Law School, a gay man himself, laid out the quagmire facing individuals like Phillips, who own small businesses across this country. “Fundamentalist Protestants, Catholics, Orthodox Jews, Muslims, Mormons—it’s a big chunk of America,” he told the New Yorker. “Decent people. They feel they are under siege by government. Many have no problem with gay customers. They just don’t want to participate in the choreography of gay weddings.”

Which is their constitutional right under both the Free Speech and Free Exercise clauses of the First Amendment.

It’s clear that SCOTUS should favor Phillips on the first point that his cakes are his personal speech. The second point – the circular argument that forcing him to create speech he objects to is justifiable because the government mandates it – is so absurd it barely deserves to be addressed.

The Colorado Court of Appeals said that for artists like Phillips, “compliance with the law is not a reflection on [their] own beliefs.” The petition filed by Phillips points out the contrary precedent in the Supreme Court. “Where the government is freely able to compel corporate speakers to propound messages with which they disagree,” Phillips’ petition quotes from the case Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., “[free speech] protection would be empty, for the government could require speakers to affirm in one breath that which they deny in the next.”

The overwhelming legal evidence here should lead SCOTUS to find in favor of Phillips and his cake shop, but that evidence shouldn’t even be necessary. Phillips’ case is one of common sense.

Would you force a mosque to hold a Jewish wedding or a synagogue to hold a Muslim wedding? Of course not. Would you force a political strategist to provide services to a candidate with whom she vehemently disagrees? Of course not.

Would you force Muslim bakers to make cakes trashing the Koran or a black baker to make a cake promoting white supremacy? Of course not.

And in these specific cake-based hypotheticals, the state of Colorado explicitly stated that CADA would allow these theoretical bakers to refuse to make the aforementioned imaginary cakes.

In fact, while Masterpiece Cakeshop was being litigated, some secular Colorado cake artists refused create cakes that were critical of gay marriage, and they won. The state (correctly) ruled that those bakers had the right refuse to make cakes with messages they objected to.

So why the double standard for the Christian Phillips’ objection to gay marriage?

The case for discrimination?

While I do not go so far as some in the libertarian wing of the Republican Party to say there should be no anti-discrimination laws at all, those libertarians do have a point that the rest of us would do well to consider.

In response to the North Carolina law last year that removed, “legal protections against sexual orientation discrimination at private firms,” and required people to use bathrooms corresponding to their birth certificates, Johnathan Newman, a fellow at the Mises Institute wrote a thought-provoking piece on how the world might just be a better place if we let everyone’s discrimination run wild. Here’s a bit of it:

“Suppose some musician is considering two venues in Atlanta, but one venue has a history of discrimination based on sexual orientation and binary restrooms with armed guards that enforce a very traditional bathroom policy. The other venue does not discriminate and has no bathroom policy except that visitors must at least use a bathroom when they need to go.

“The musician would then be able to discriminate between the venues and choose the one that most closely aligns with the musician’s preferences for a concert venue. In an unhampered market, discrimination punishes those that discriminate for what most would consider wrong reasons, and rewards those that align their hiring policies and facility policies with what most consider appropriate. Laws restricting discrimination are therefore irrelevant at best, but have great potential to be harmful and contrary to people’s preferences.”

It’s amazing how the free market seems to be the answer to so many problems that the government thinks it can solve with more rules.

If you don’t agree with Phillips’ stance on gay marriage, use the free market to your advantage. Don’t patronize his business. Call for a boycott. Start your own progressive cake shop to compete and run him out of town. But don’t try to use the government to force someone else to promote your own worldview against their conscience.

Tyler Olson is a student at the Pennsylvania State University studying broadcast journalism and political science. He has written for The Daily Collegian.

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