Yes: It’s not about baking a cake, it’s about serving the public
“It’s not just about the cake.”
If there is one point on which the parties in the Masterpiece Bakeshop appeal can agree, it is that baker Jack C. Phillips’ refusal to take a wedding cake order from Charlie Craig and David Mullins engendered concerns far beyond the culinary.
The baker made clear his religious objection to same-sex unions; in fact, he had once declined to sell cupcakes to a lesbian couple for a commitment ceremony.
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Craig and Mullins filed a complaint with the state civil rights commission under its public accommodations law, the Colorado Anti-Discrimination Act.
The act prohibits businesses such as the Masterpiece Bakeshop from discriminating against their customers on the basis of multiple categories: “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”
The act aims to protect “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.”
The Colorado Civil Rights Commission ruled that Phillips’ denial of the couple’s request was discrimination on the basis of sexual orientation.
Phillips and the Masterpiece Bakeshop appealed unsuccessfully to the Colorado Supreme Court, arguing that his rights to freedom of speech and religion should require an exemption from the act’s reach.
On Dec. 5, the U.S. Supreme Court will hear arguments in this high-profile case. The court should rule against Phillips and the Masterpiece Bakeshop. Here are a few thoughts about why the free speech and religion claims fail to persuade based on these facts.
First, it is helpful to take a close look at the language above from the Colorado law, for it is structured in a way quite similar to public accommodations laws on both the federal and state levels.
The concept of public accommodations laws emerged over a half-century ago to address pervasive and degrading exclusion on the basis of race and ethnicity; their purpose is to require fair treatment by entities that hold themselves out to the public for business.
These laws are not identical in their protections; for example, many states omit disability, age and sexual orientation from specific coverage.
However, when a state law such as Colorado’s specifies that businesses may not discriminate on the basis of sexual orientation, that law is underscoring the compelling nature of the government’s interest in forbidding biased conduct.
The Colorado commission and state Supreme Court held that refusing to provide a wedding cake to a couple based on their same-sex marital choice is indeed biased conduct prohibited by state law.
Second, while it is true that Phillips is as entitled to freedom of speech and religion as any of us, he fails to explain why this conduct-based civil rights law should allow individuals to create an exception for themselves in providing “goods, services, facilities...” on an equal basis to their customers.
Phillips is still free to speak his mind and exercise his religious beliefs; the state is not coercing him to change his beliefs or his expression.
Moreover, this is not a case in which Phillips was compelled or even asked to provide a message or endorsement of same-sex marriage. Commercially sold wedding cakes, however artistically designed or expressively baked, are not generally assumed to convey religious or other approval of a couple. If that were the case, the wedding cake industry might drop precipitously.
Phillips contends that his position is not discriminatory because he is willing to provide other goods to his LGBT customers, just not their wedding cakes. But civil rights history and Supreme Court precedent have emphasized that selective and discretionary enforcement of civil rights laws is basically non-enforcement.
Finally, to those who are wondering, “It’s just a cake. Why would you want someone who is against same-sex marriage to make an LGBT couple's wedding cake?” — I reiterate the point on which both sides agree: “It’s not just about the cake.”
Margaret M. Russell has been a member of the Santa Clara University School of Law faculty since 1990, and is affiliated with the University’s Center for Social Justice & Public Service, the Markkula Center for Applied Ethics, and the Center for Multicultural Learning. Readers may write her at Santa Clara Law, 500 El Camino Real, Santa Clara, CA 95053
No: LGBT advocates seek to scuttle a vital Constitutional right
As the Dec. 5 oral argument date for his case grows near, the drumbeat proclaiming Jack Phillips must be forced to create a same-sex wedding cake against his conscience grows louder.
The most important consideration in Masterpiece Cakeshop v. Colorado Civil Rights Commission, we are told, is eliminating discrimination on the basis of sexual orientation.
Finally, the state and its defenders claim, the emotional harm felt by prospective customers upon hearing someone disagrees with their actions for religious reasons cannot be tolerated either.
Yet none of what we are being told here is true. First, no “discrimination on the basis of sexual orientation” has occurred in this case at all.
Jack, who owns and operates Masterpiece, is not opposed to serving people who identify as homosexual; he simply objects to the celebration for which he is asked to create a cake — the same-sex wedding.
This becomes even clearer when we understand that Jack will not create a wedding cake for two men even if they claim a heterosexual orientation, but will create a cake for a wedding between a man and a woman despite them identifying as homosexual.
Thus, Jack is not acting based on the sexual orientation of his prospective customers; he’s only opposed to what they are celebrating, and asking to not be forced to be a part of it.
This is a reasonable stance, and indeed, most people agree with Jack Phillips: 68 percent of Americans recently surveyed said a baker should not be required to create a custom wedding cake for a same-sex ceremony.
The reason for this is simple: The cost of protecting this freedom is minimal, only entailing some offense on the part of the prospective customers, who will now have to go elsewhere to find a cake — most couples inquire with multiple shops anyway — for their wedding ceremony.
The two men who initiated the legal case against Jack could have visited any one of 67 other bakeries in the Denver area willing to create their cake, including one only a tenth of a mile from Masterpiece.
Instead, they filed complaints against Jack with the state, which followed up by suing him. But in light of all these providers happy to create the cake, is it really necessary to force Jack Phillips to be the one to do so?
The would-be customers, after getting over their offense at Jack’s beliefs, could have traveled 500 feet down the street to obtain their cake from someone happy to provide it.
Instead, they want to force Jack Phillips to create it — meanwhile, they had already obtained one free of charge from another bakery by the time they filed charges against Jack.
Unfortunately, this coercion comes with the heavy price of forcing Jack to violate his conscience or shutting down wedding cake operations and possibly going out of business.
At a recent practice oral argument, the American Civil Liberties Union claimed that this case is about “full and equal participation in civic life,” and if Jack wants to say “God blesses this union” for any wedding, he must be forced to say it for all weddings.
Yet if those who want the government to punish Masterpiece get their way, Jack and many like him around the country will themselves be excluded from full and equal participation in civic life.
Allowing religious business owners to continue to operate their businesses according to their deeply held religious beliefs will not push those identifying as homosexual out of society. However, forcing business owners to violate their beliefs could force many religious individuals out of the marketplace.
The Supreme Court should keep this in mind as it decides this case in the upcoming months.
Travis Weber is Director of The Center for Religious Liberty at the Family Research Council. A graduate of the U.S. Naval Academy, he was a two-time sailing All-American. He earned a law degree with distinction from Georgetown University. Readers may write him at FRC, 801 G St NW, Washington, DC 20001.