The Supreme Court will hear oral argument in one of the most contentious cases of the term, Masterpiece Cakeshop v. Colorado Civil Rights Commission. In advance of the argument, the Cato Institute put on a debate between Ilya Shapiro and John Paul Schnapper-Casteras, Special Counsel for Appellate and Supreme Court Advocacy, NAACP Legal Defense Fund. It was not only a great debate, but more importantly, demonstrated that we can have thoughtful discussion about contentious issues. Some of us, at least.
To many, the issue on the table is one of conscience. Can Jack Phillips, because of his sincerely held beliefs, refuse to bake a cake for a same-sex wedding? This is certainly the issue that most people have in mind when arguing the point. Remember when USA Today twitted that this would re-open the same-sex wedding debate? Remember when a Colorado state senator tried to change the law to create such a right?
There is no doubt that a great many people refuse to accept the Supreme Court’s ruling in Obergefell v. Hodges, and see Masterpiece Cakeshop as their way around the law. Why doesn’t the First Amendment’s Free Exercise Clause protect their belief that same-sex marriage is wrong? As strongly as these people may want to believe, this just isn’t the law.
[M]ore than 50 years ago, John W. Mungin, a black Baptist minister, was threatened with deadly force and told to leave a famous South Carolina barbecue restaurant—all because its owner held to the belief that the races should be kept strictly separated.
As Cristian Farias explains, the 1968 decision in Piggie Park puts the question to rest. No matter how sincerely your deeply held religious belief may be, it does not provide cover for unlawful discrimination. And that’s why the Free Exercise argument in Masterpiece is going nowhere. But that’s hardly the end of the issue, despite the fact that people antagonistic to gay marriage really, really believe this to be the real point of the case.
This time, there’s a tiny wrinkle: Jack Phillips, the religious baker at the center of the Masterpiece Cakeshop case, is claiming that that both his freedom to exercise his Christian faith and his right to free speech prevent him from creating a custom-made wedding cake for a married gay couple. He insists he harbors no animus toward LGBTQ people.
Recognizing that the Free Exercise argument was a loser, appellants shifted course to Free Expression, that the creation of a cake was a matter of artistic expression, and the state could not compel Phillips to express something he chose not to, even if his medium of expression was a cake.
Can baking a cake be art? There would seem to be plenty of TV shows to say so. And if it’s art, then it’s expression, just as any other piece of art. This isn’t to say all cakes are art. Some cakes are just cakes, a mixture of stuff that comes out of the oven tasting delicious, but otherwise unremarkable as a means of expression.
During the Cato debate, which was largely divided between Shapiro arguing expression while Schnapper-Casteras focused more on religion and the over-arching policy of ending discrimination based on sexual orientation, a fact of some significance emerged.
It seems Phillips, upon learning that he was being asked to make a wedding cake for a same-sex couple, refused to do so, and the couple then left. There was no discussion of design. There was merely the combination of words, “cake” and “wedding,” and that was sufficient for Phillips to decide that he didn’t want to do it.
If accurate, this blows a huge hole in the Free Expression argument. If Phillips’ refusal was to the mere idea of baking a cake for a gay couple because it would be eaten during their wedding reception, prior to any discussion of what they wanted, and thus prior to any basis to believe that artistic expression was involved at all, then the fact pattern doesn’t bear out the contention. What if the couple wanted a nice wedding bobka? It could happen.
But there is another view, reflected in the amicus brief submitted by Dale Carpenter and Eugene Volokh, no enemies of Free Expression they.
We argue, in essence, that the Free Speech Clause does not protect a baker’s right to refuse their request because baking cakes is conduct that is neither historically nor inherently a form of protected speech. Furthermore, contrary to what the Justice Department argues, requiring a baker simply to make a cake for a wedding is not tantamount to requiring him to participate in the wedding celebration. “Such theories,” we argue, “would convert the First Amendment into a broad anti-complicity principle punching a hole through the center of the Nation’s anti-discrimination laws.”
Note the “anti-complicity” reference, which has become a very popular argument of late when seeking to impose, or relieve a person from some duty which is then used to implicate moral culpability. If someone fails to act against discrimination, they are complicit in it. If someone acts, they are complicit as well. Would Phillips’ baking a cake make him complicit in supporting gay marriage, or would it just make him a baker?
The heated rhetoric surrounding arguments over discrimination has devolved to a point of absurdity. As the fuzzy line of meaning is crossed with abandon, the law is left to ponder ridiculous questions. It’s not that they can’t be framed as real or sincere questions. Indeed, they are exceptionally sincere, the closer we come to the edge of the line.
Who cares that a couple of guys want to marry? Who cares whether you buy your cake from Phillips or the bakery down the street? Who cares if a baker uses food coloring to turn a white cake into a rainbow cake? A lot of people, apparently. What’s unfortunate is that “live and let live” doesn’t answer these questions before having to get the Supreme Court involved.
Gay people exist and marry. It’s time to move on. And as long as they pay for their cake, just bake it. That America spends its time figuring out ways to make gay people’s lives miserable means we must not have enough real problems to occupy our time. Except we do.
Update: Remarkably, it appears the justices found the Free Exercise argument more persuasive than the Free Expression. Unsurprisingly, it looks like Justice Anthony Kennedy will be the deciding vote. At oral argument, Justice Kennedy said to Colorado’s attorney:
It seems to me the state in its position has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.