Stoking Fear Is A Piece of Cake (Updated)

The twit by USA Today was exactly the sort of message designed to make progressive skin crawl:

The Supreme Court has agreed to reopen the national debate over same-sex marriage.

So it’s true, the world is coming to an end now that the Republican’s stole a Supreme Court seat and installed uber-villian Neil Gorsuch to undo Obergefell v.Hodges? No. Not even a little bit. Not that the forces of tolerance will bother to learn anything more about the case of Masterpeice Cake Shop v. Colorado Civil Rights Commission.

The case has nothing to do with the legality of gay marriage, but deals with the sequalae of the Obergefell,  Now that same-sex marriage is lawful, how does that impact the panoply of rights of others? This is what follows, and should follow, a paradigm shift in constitutional law, as some other person’s “right” to do as he pleases commonly impacts with another person’s “right” to do as he pleases. It’s inconvenient when promoting a shift in law to recognize that it has problematic tentacles, but they eventually have to be dealt with. Masterpiece is one such case.

In a way, the Masterpeice Cake case is a silly one, a baker refusing to bake a wedding cake for a same sex wedding. After all, it’s just a friggin’ cake, right? If you bake cakes, who cares who they’re for? Then again, if you need a wedding cake and one baker turns you away, go to another baker. Problem solved.

Yet, the cake case tees up the issues fairly well, making it a relatively painless vehicle to hash out some significant conflicts in constitutional rights. In its petition for cert., Masterpiece argues that the Colorado Anti-Discrimination Act, which covers discrimination based on sexual orientation, violates its First Amendment rights in two ways, by impairing its rights under the Free Exercise Clause, as the owners of Masterpiece have a sincerely-held religious objection to same-sex marriage.

Much as religion isn’t high on any progressive’s list of important rights, unless it involves Islam and jet planes, the Constitution expressly safeguards an individual’s right to practice his religion, which includes not being compelled by the state to perform an act contrary to his religious beliefs. Then again, the act here is baking a cake, which is what a baker does, and who he does it for makes no difference as to the conduct required of him.

The other First Amendment right at issue is free speech, or more narrowly stated, free expression, under the theory that the baker is an artist and the cake is his canvas for expression. Masterpiece argues that a law requiring a baker to bake a cake when he chooses not to do so is compelled speech, a violation of his freedom to create a work of art or not.

The argument in opposition, despite what USA Today has to say about it, is that the CADA merely regulates conduct. Baking a cake is just baking a cake, and if your reason for refusing to do so is discriminatory, in violation of one of the identified protected groups, then you’re in violation.

For decades, this Court has recognized government’s powerful interest in enacting and enforcing anti-discrimination laws, and it has refused to create a gaping loophole in such laws by recognizing the sort of constitutional exemptions that the Company seeks here. Consistent with those rulings, the court below held only that a business cannot avoid the dictates of a generally applicable anti-discrimination law by asserting that it has an ideological or religiously based objection to compliance.

While this may be true, and is in itself a controversial choice to favor equal protection over free exercise such that a claim of religion can be posited to undermine efforts to eliminate racial and sex discrimination, the CADA’s protections here go to sexual orientation. In other words, the precedent that rejects religion as a basis for refuse to engage in one’s occupation due to racial discrimination isn’t the same as sexual orientation.

Why not? The “powerful government interest” to discrimination isn’t as powerful for all discrimination. Had Colorado included in its anti-discrimination law a prohibition against discriminating against fat people, would it be as compelling? What if it was against red-haired people? Or people with bad breath?

We discriminate all the time, and most of it is perfectly lawful, if not absolutely necessary, to make it through the day. Colorado has made a value judgment that sexual orientation should be a form of discrimination that’s no longer permissible, which likely comports with most people’s values. But is it as nefarious as racial discrimination? Is it sufficiently nefarious to trump free speech and free exercise, as racial discrimination has been held to be?

Significantly, this case has no bearing on whether the government can use law to preclude same-sex couples from marrying, which was decided by Obergefell.  Marry all you want. We’ll make more. But does the right to marry carry with it the right to force someone to bake you a cake? Does it include the right to force someone to take your wedding photos?

As equal protection slides down the slope from groups whose protection has been held to be so fundamental as to override other conflicting constitutional rights, the relative balance of values begins to shift. In this case, the conflict is between express rights in the First Amendment and a state statute that includes a prohibition that has yet to be held so significant that it rises above all others.

Whether same-sex marriage deserves to be elevated to the status of racial discrimination is a question of values. That you think it does, while someone else thinks religion or free expression is more important, doesn’t matter. That’s just a reflection of what you care more about, and constitutional rights aren’t subject to popular vote. But the more fundamental issues raised in Masterpiece is the tipping point between the relative values of equality, as new identity groups demand their own protection from discrimination, and the old-school rights expressly stated in the Constitution.

As anti-discrimination laws slide down the trendy slope, it will eventually hit a nerve where it hurts. This case hit Masterpiece’s nerve, even if not yours. Your turn will come eventually. When it does, deciding whether the law can compel you to give up your right for someone else’s feelz will be anything but a piece of cake.

Update: Having smacked the ACLU around a bit lately for their rank hypocrisy and conflicted positions on civil liberties and social justice, I tried to avoid raising the question of where they positioned themselves on this issue, but the comments in this WaPo story compel notice:

The American Civil Liberties Union represents Mullins and Craig. “The law is squarely on David and Charlie’s side because when businesses are open to the public, they’re supposed to be open to everyone,” said James Esseks, director of the ACLU’s LGBT Project.

Craig said in a statement: “While we’re disappointed that the courts continue debating the simple question of whether LGBT people deserve to be treated like everyone else, we hope that our case helps ensure that no one has to experience being turned away simply because of who they are.”

Who cares about that mean old First Amendment when there’s a Menckian solution that makes the most shallow among us feel all warm and fuzzy?

16 thoughts on “Stoking Fear Is A Piece of Cake (Updated)

  1. Billy Bob

    You couldn’t resist delivering a/the coup de grace in that last sentence. Let them eat cake, Marie Antoinette-breath!

  2. Quinn Martindale

    Reading the Colorado lower court appellate decision and the briefs, this case is much more about whether baking the cake is expressive conduct than any balancing test. If it’s compelled speech, respondents will lose before even getting to the free exercise issue. In fact, the free exercise claim is wholly based on the idea that baking a cake for a gay wedding is analogous to writing messages on the cake.

    1. SHG Post author

      That’s true, but the Supreme Court’s decision isn’t limited to the focus of the Colorado court. Both issues are raised in the petition for cert, and the Supremes can rule based on one, the other or both.

  3. Patrick Maupin

    Marry all you want.

    Despite Scalia’s predictions and protestations, polygamy is still off the table at the moment.

    In any case, the thought police are at it again. First they squelch honest expression. They they attempt to squelch any statement that might possibly have been made in lieu of the direct expression. The new purported dog-whistle will be “I’m sorry, we’re very busy that weekend.”

  4. Richard Kopf


    Once, I suggested the Court should refrain from touching hot button issues whenever possible. I used an acronym that will not be repeated despite the potent power of the vernacular. That said, why the Court refuses to realize the virtue of passivity continues to confound me. Ultimately, the market and the culture will resolve the issue presented in the cake case. But, having opened the can, the Court evidently feelz compelled to deal with the worms.

    In sort of a sick way, I could be persuaded that the best thing for the Court and the country would be if Trump got a two (or more) more picks for the Court–say, through the retirement (or passing) of Kennedy and Ginsburg. At least then perhaps there would be predictability. Of course, there would still be a Court populated with demi-gods eager to tell us how to live our lives.

    All the best.


    1. SHG Post author

      Remember what happened with CJ Warren? Nothing in life or the Court is guaranteed. Some might even urge them to just STFU, vulgar though that might be, and let the forces of nature sort things out. I, however, think they should decide all conflicts and controversies as quickly as possible so I have something to write about. After all, it’s all about me.

      1. Richard Kopf


        My bad. But, the Court should never be too fast. If they dribble cases out like Apprendi, Booker, et al, or “leave for another day” issues like retroactivity and the like, your plate will be endlessly restocked with bacon.

        All the best.


  5. Jim Tyre

    Baking a cake is just baking a cake

    “Someone left the cake out in the rain
    I don’t think that I can take it
    ‘Cause it took so long to bake it
    And I’ll never have that recipe again
    Oh no!”

      1. Richard Kopf


        Thank you, thank you, thank you. With this song, Harris almost made me like the Irish. His rendition was that damn good.

        All the best.


  6. DaveL

    Does that mean that, for instance, graphic artists, publishers, and ad agencies owned and run by persons of color would be required to accept commissioned expressive work celebrating neo-Odinism, a religious movement often identified with white supremacist groups?

    1. el profesor presente

      The Mizzou Compromise: they are compelled to perform the service, but then they get to burn down their own business.

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