Personally, I would bake the cake and dance at the wedding, too.
But I don’t see that the state has the right to force Colorado baker Jack Phillips to express something he does not believe by making him design wedding cakes for same-sex couples.
To force Phillips to do that anyway is to compel speech, and the First Amendment we all love until we don’t prohibits that, as the Supreme Court seems likely to rule in the the Masterpiece Cakeshop case it heard on Tuesday.
The proof that even Colorado recognizes that, on some days, anyway, is that in three different instances, it has upheld the right of three other bakers to refuse to bake wedding cakes for Christian couples who wanted “marriage is between a man and a woman” messages on them.
Who’d want a cake like that, you ask? Someone trying to prove a point. Which is that if you think gay bakers should have the right to refuse to bake an “I prayed the gay away” gateau for a Christian celebrating his conversion therapy, or that orthodox Jewish bakers have every right to turn down an order for a “Christ is Risen” Easter cake, well then Phillips also has the right to decline to bake one with a message that violates his beliefs.
Justice Samuel Alito asked lawyers arguing otherwise whether a baker has to sell the same cake that proclaims Nov. 9 the greatest day in history to someone celebrating his anniversary on that day as to someone commemorating Kristallnacht. Justice Neil Gorsuch wondered whether a baker who sells a cake with a Red Cross on it to someone celebrating a great humanitarian organization has to sell the same cake to someone celebrating the KKK.
No and no, right? And as a lawyer for Phillips put it, “This law protects the lesbian graphic designer who doesn’t want to design for the Westboro Baptist as much as it protects Mr. Phillips.”
The popular criticism of this wildly unpopular view is that turning down a custom cake order from a same-sex couple is no different from turning African-Americans away from the lunch counter under Jim Crow.
But Phillips does not and cannot turn anyone away. He does sell brownies and tortes and anything else in his pastry case to gay customers and creates special-order cakes for them, too, for birthdays and other non-nuptial occasions.
Yet in those three cases of the bakers who wouldn’t bake wedding cakes with Christian messages on them, the Colorado Civil Rights Commission found that since they had served Christians in other contexts, they hadn’t discriminated, but that Phillips, who likewise serves gay couples in other contexts, had.
A lawyer for Phillips argued that his “friends on the other side...would compel an African-American sculptor to sculpt a cross for a Klan service or force a gay opera singer to perform at Westboro Baptist” because he’d also done so at the National Cathedral.
And the case does hinge in part on whether a baker is enough of an artist to be entitled to creative expression. Or is he instead a merchant, who like any hotelier or restaurant owner has to rent a room or prepare a table for all comers? Phillips, who also draws and paints, creates his cakes based on his sketches and then hand paints them. He definitely sees himself as a designer whose raw materials happen to be flour and sugar.
His critics all argue that if he prevailed, then anyone claiming that their racist beliefs were Bible-based could refuse to serve black or brown customers. But would any court in the country uphold such a thing? “Race is different,’’ a lawyer for Phillips argued. For starters, because in such cases, “we know the objection would be based on who the person is, rather than what the message is.”
Both sides argue that minority rights are at stake.
But the perceived swing vote, Justice Anthony Kennedy, told those arguing for Colorado that as he saw it, “the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.” And as he also said, “tolerance is most meaningful when it’s mutual.”