Top Stories
comments 36

Cakeshop Conflicts: Let Them Eat Rights

In her essential 1993 book Rights Talk, Mary Ann Glendon worried that the language of legal rights was displacing the pleasantries of everyday social interactions. Glendon wrote that “the highly colored language of advocacy flows out to the larger society through the lips of orators, statesmen, and flamboyant courtroom performers.” Since the language of legal rights is often absolutist, Glendon predicted that its adoption for everyday use increases “the likelihood of conflict and inhibits the sort of dialogue that is increasingly necessary in a pluralist society.”

Glendon wasn’t the first to observe this phenomenon. In his journeys through the United States, Tocqueville wrote that the discourse of lawyers seems to “infiltrate through society right down to the lowest rank.”

A quick glance at this year’s Supreme Court docket – and the accompanying legal and cultural commentary – makes it hard to dispute Glendon’s and Tocqueville’s observations. Exhibit A is Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The case involves a baker who refused to bake a cake for a same-sex wedding.

A conflict between customer and provider could be about any number of things: poor customer service, religious disagreements, simple rudeness, etc. But in our society of inflated rights talk, the incident became a legal matter from the very beginning. Not only that, but it became a legal matter worthy of the highest court in the land and hotly debated in the media between the Left (who accuse the Right of weaponizing the First Amendment) and the Right (who accuse the Left of weaponizing anti-discrimination laws).

Insofar as a disagreement in a bakery is a real constitutional matter, the case is harder than partisans of either side seem willing to admit. Still, there are some truths, both legal and not, that should be obvious. And since we insist on discussing everything in the language of legalese, it’s worth trying to translate the legalese as accurately as we can.

The facts of the case are fairly straightforward and demonstrate that this is a case that could have easily avoided court – especially the highest court – with a degree of charity from the parties involved.

First, there is Jack Phillips, the owner of Masterpiece Cakeshop, who refused to create a cake for Charlie Craig and David Mullins for their wedding. Phillips believes gay marriage to be sinful and he doesn’t want to use his artistic talents as part of their ceremony. Fair enough, and the record shows that Phillips is consistent in refusing to compromise his beliefs in the course of his work. He also refuses to create cakes for Halloween and “divorce parties.” But the facts also show that Phillips refused to make the cake before even getting to a discussion of how customized the cake would be. For all he knew they just wanted whatever came out of the oven next.

Second, there is the litigious Craig and Mullins, who, to their discredit, couldn’t simply acknowledge that there are people in the world who operate with different motives and beliefs. Instead, they reported Phillips to the Colorado Civil Rights Division, which found him to be in violation of the law and ordered him to create wedding cakes for everyone or not at all. Phillips chose his conscience and had to lay off six of his ten employees.

Finally, there is the state of Colorado. In crafting its Civil Rights laws, the state apparently gave no thought to religious exemptions of small businesses. As Jonathan Rauch observed in National Affairs, the idea of absolutist civil rights legislation is a recent invention. Landmark civil rights legislation of the past often included accommodations and exemptions for small business owners and religious objectors. Yet Colorado brought the hammer down on Jack Phillips. There was no compromise. No recognition that their action might endanger other rights at stake.

Deciding which of these parties is responsible for the gravest moral failure is difficult to say. And that is perhaps another reason this case is before the highest court in the land. Another insight of Mary Ann Glendon’s was that when moral consensus breaks down, people turn to the only language they have left in common: law. Legalese – rights talk – becomes the lingua franca of our most trying moral problems in the absence of common social mores.

But what does the legalese, at least in this case, really mean?

Craig and Mullins allege that Phillips is claiming a First Amendment right to disobey neutral laws of general applicability. Specifically, Phillips wants to disobey the laws that give Craig and Mullins the right to full and equal enjoyment of places of public accommodation. Phillips believes that these public accommodation laws infringe on his First Amendment rights to free speech and free religion. Every cultural commentator under the sun casts the parties as weaponizing their claimed rights.

In 1913 and 1917, Wesley N. Hohfeld wrote his classic essays on the question of rights in the Yale Law Journal. Hohfeld devised a way to describe what form rights may take and what rights do for those who hold them. According to Hohfeld, rights can take four different forms.

  1. The Right As Privilege: You have a privilege to do anything so long as you have no duty requiring you not to.
  2. The Right As A Claim: You have a claim over the behavior of others if they have a duty to you.
  3. The Right As A Power: You have a power if you can alter the rights and obligations of yourself or others.
  4. The Right As An Immunity: You have an immunity if others lack the power to alter your rights and obligations.

It helps to place these in a real world scenario to understand just how practical they are. If you purchase a general admission ticket to a movie theater, the ticket gives you the privilege of sitting in any seat that has not yet been claimed by another ticket holder. Your only limiting duty is the duty to not take an already claimed seat. However, if you purchased a ticket with an assigned seat, you then have a claim against all other theatergoers for the seat you purchased. Everyone else has a duty to sit in their own seat. But if you read the fine print on your ticket, you will likely find a clause saying that the ticket is rescindable at the sole discretion of the proprietor (in the case of overbooking, etc.). Thus the theater retains the power to alter your rights and obligations. The only thing that could save you from such a power is an immunity, which you likely won’t have.

This framework is useful for examining the arguments in Masterpiece Cakeshop. It would seem that both litigants in the case have arguments that directly mirror each other. They argue that their own rights are claim rights while their adversaries’ rights are mere privileges. Phillips argues Craig and Mullins have a privilege to shop for cakes that is limited by their duty to respect his claim to First Amendment rights. Likewise, Craig and Mullins argue that Phillips has a privilege to bring his faith into the public square that is limited by his duty to recognize their claim to be free of discrimination. The state of Colorado, predictably, argues it has the power to alter the rights and duties of each of the parties through absolutist civil rights legislation. This is an argument that Craig and Mullins support, and against which Phillips has a claim or immunity under the First Amendment.

So who is correct? It’s not an easy question. What is clear is that it must be dangerous to start giving citizens claim rights – not against the government – but against each other. Yet that seems to be exactly what is happening.

On the one hand, legal minds will know that commercial speech is not subject to the same protections as political and religious speech. The government regulating the process of baking cakes and operating hotels is not the same as the regulation of political or religious speech. Commercial speech is the sort of thing that we can regulate to ensure citizens of a diverse society are getting along.

On the other hand, we broadly recognize the First Amendment as providing a claim against government power. And surely it seems contrary to the principles of the First Amendment to suggest that artists and religious people cannot bring their beliefs with them when they enter the marketplace. To say the First Amendment protects less than full enjoyment of public life is to suggest that the First Amendment protects only a theologically stunted view of religious man. Under this view, civil rights legislation becomes a claim right against any appearance of religious man in his real form – such as a bakery owner who wants to work according to his own beliefs.

And that, perhaps, brings us the heart of the matter. More interesting than the question of who is technically legally correct is the question about what this case reveals about our culture and understanding of rights. What we are witnessing is not really a conflict of rights, but a conflict of conceptions of the good. Both parties are claiming the protection of neutral rights, but these rights really do act like claims and trumps and weapons. And through all the smoke and mirrors of our rights talk, we can see differing articulations of the good life. Under neutral anti-discrimination laws, Craig and Mullins claim their marriage must be recognized and celebrated by any bakery they choose. And under the neutral First Amendment, Phillips argues for the right to live according to a different conception of the good and true. The stilts supporting the nonsense of rights talk have come been broken in a bakery in the Denver suburbs.

What this seems to prove is that rights can indeed be weapons. (Though it is worth pointing out that, despite what many may say, in this instance it is hard to dispute that the First Amendment is a shield to the sword of absolutist anti-discrimination laws.) And in our increasingly polarized climate, where lack of trust between citizens is at an all-time low, this should be concerning for both those who care about the First Amendment and those who care about civil protections for gay couples. If rights are continually seen – and used – as weapons to be wielded against political and religious opponents, then it will not be surprising if more people turn to the illiberal solutions on offer from the Right or the Left.

The solution is to remind people that while rights can be weapons, they don’t have to be. Like everything that can be used as a weapon, rights should be wielded responsibly. Progressives need to learn both that religious man is more than the Rawlsian caricature of him and that they have nothing to fear from him. Conservatives need to learn that they have nothing to fear from anti-discrimination laws when properly executed (and that they won’t drop into hell for baking a cake). And everyone needs to learn that rights talk should not be our first recourse in confronting social problems and cultural disagreements.

Perhaps Masterpiece Cakeshop will be an instrument in that last lesson. In a 1966 case where an argument turned into a property dispute, trial judge Daniel Fitzpatrick sent both parties away with his holding that “They are all nice people and a little mutual forbearance and understanding of each other’s problems should resolve the issues to everyone’s satisfaction.”

It is too much to hope that the Supreme Court will reach a similar conclusion in Masterpiece Cakeshop, telling the parties to sort out their problems without reference to rights talk. And what a tragedy that is. Now everyone else – all 300 million of us – will have to remember on all future trips to the bakery what is said by the nine men and women in robes.

 

Brian K. Miller is the Director of Legal and Public Affairs at the Center for Individual Rights, an opinion contributor to Forbes Magazine, and a researcher at the Antonin Scalia Law School at George Mason University. He can be found on Twitter @BrianKenMiller

Filed under: Top Stories

by

Brian K. Miller is the Director of Legal and Public Affairs at the Center for Individual Rights, an opinion contributor to Forbes Magazine, and a researcher at the Antonin Scalia Law School at George Mason University.

36 Comments

  1. At what point does an action by a business cross over from something we can ‘just discuss’ to full blown discrimination? Can a grocery store prohibit sales to members of a class that the store owner has an objection to; say people of color? Can a hotel run by devout Muslims choose not to allow women to rent rooms without the express consent of a man? Is this behavior acceptable as long as there is of establishments that do accept the discriminated class?
    I’m not one who uses the ‘slippery slope’ argument but I think it applies in this case.

    • yandoodan says

      A grocery store owner who prohibits sales to members of a class is not an artist being compelled to create an expression. Same thing with the hotel owner. The cake dispute, to the extent it deals with the First Amendment, deals with compelling compelling expression. This is exactly the same as compelling a liberal-minded cake baker to decorate a cake with a swastika for a neo-Nazi couple.

      • Taupe Pope says

        Yando, I think Doug is getting at something more fundamental. Does anyone have a right to compel another person to provide a good/service? I would say no because people are free to associate or not with whomever they please. Admittedly this would allow bad people to discriminate against others on the basis of their race, sex, religion etc. However, answering ‘yes’ could lead to a scenario where liberal were forced to serve neo-nazis. Alternatively, the State could determine who can be discriminated against which is an abandonment of equality before the law and a path towards the suppression of unpopular groups (including racial minorities) by the State and its agents.

      • Cateschism says

        This is a false analogy. A gay couple =/= a neo-Nazi couple. Gay identity is inborn and protected under anti-discrimination laws (in Colorado, at least). Nazis are neither born Nazis, nor (thank god) are they protected on account of their being Nazis.

        • Debbie says

          Not necessarily so, Cateschism: some would say gender and, accordingly, gender-indexed sexual preference are themselves social constructs.

          Whatever. Consider that your business sells completed cakes, or paintings, or music, etc. You have complete artistic control over your product — the government can no more prevent you from selling a wedding cake featuring Jesus kicking a rainbow out of the sky than it could have told NWA not to rap about cop killing. Yet you still have to sell it to whomever wants to buy it. Even to Craig and Mullins (who, of course, would not have come to your store for the cake in the first place if your cakes featured anti-gay expression). U.S. public accommodation law is well established that you cannot discriminate (based on race, sex, national origin, and also, ostensibly, sexual preference) with respect to the persons who want what you offer to the public.

          But, you say, Phillips bakes custom cakes — the expressive products of his creativity. Nonetheless, I think Taupe’s analogy still fails for much the same reason it fails in the context of completed cakes. If you offer to practice your creativity as an article of commerce itself (i.e., art for hire), then you have abandoned your “associational” right to select the persons for whom you choose to work. Can a caricature artist at the state fair refuse to draw Asians? So assuming that sexual preference is a legally protected class, Phillips shouldn’t be able to say no simply on that basis. On the other hand, if Craig and Mullins hired Phillips for his creativity, they couldn’t reasonably protest if he showed up at the reception with a two-penis caduceus cake.

          • 3jack says

            So, to sum up your position: Customers have near unfettered choice with whom they chose to do business. Sellers, on the other hand, have almost no choice to decide with whom they do business. As such, by providing a service or good for a fee, abracadabra, you forfeit your moral (and legal) right to associate only with those you choose (even if you explicitly put a conspicuous sign up that says “I reserve the right to refuse to do business with anyone”).

            What an abominable, tyrannical, and ultimately myopic view.

            What, exactly, is the moral basis for it? Show your work. What is it about selling things that is so disagreeable that to do so requires one to surrender his/her fundamental right of self determination? Is it because you think businesses are a kind of “oppressor”, while consumers are the “oppressed”? Please explain why, morally, does opening a storefront strip the owner of the very rights that his potential customers are able to enjoy?

            Keep in mind that this is TRADE, we’re talking about. Don’t get caught up in the fact that cash/money is involved; money is nothing more than a medium of exchange that makes TRADE of goods and services more convenient and efficient. It is no less correct to say that customers are “selling” money, and sellers are “paying” for it with, for example, baked goods. So can a shop owner compel the person on the street to buy his cupcakes, since such person on the street is in the business of “selling” his money on a daily basis for all sorts of goods and services? If you work for a wage, you are in the business of selling your labor. Are you telling me that an employer has a right to compel you to sell your labor to them, and you don’t have a right to refuse to sell it to them for any dang reason of your choice?

            What if, rather than using money, I, a farmer, pay a baker in chickens, in exchange for some of his cupcakes, if he so agrees? Who’s the “buyer”? Who’s the “seller”? Which one of us would have been allowed to refuse to engage in the trade? Which one of us wouldn’t have been allowed to refuse? Does it matter if the underlying reason for one or the other’s refusal is on account of some sort of politically unpopular or ugly viewpoint? Do your rights depend upon the “correctness” of your opinions and motives? Do your rights depend upon whether you have a storefront or not? If so, WHY?

          • Debbie says

            That’s quite an impressive tirade @3jack, but my point was more legal than moral. If you choose to insert something into the stream of commerce, you forfeit some control over it. Sure, you can refuse to trade pies for cow pies if you don’t want any poop, but the law (in the US anyway) does not allow you to refuse based on certain protected characteristics of your customer. That’s all, really.

  2. Give me a break. The problem with allowing religious objections to trump otherwise neutral laws is that literally any act can be justified on religious grounds. That means the government has to either get in the business of deciding which religious beliefs count when someone uses theology or personally received divine revelation as a defense against charges of trafficking in narcotics, or it has to simply say that one has produce reasons which are material rather than supernatural.

    The same thing was tried after racial segregation was banned. Christians sued claiming that being forced to serve blacks violated their religious beliefs. It didn’t work then, and it shouldn’t work now.

  3. Jeff Ray says

    Hello Joe, please excuse my ignorance and please note I am not arguing with you. However, I have never heard that “Christians” sued on the basis that serving blacks violated their religious beliefs after segregation was banned. I would like to read about that, could you provide a link or reference? Was this religious organizations (Baptists, Methodists, etc.) or individuals?

  4. In the U.K. Muslims in some supermarket chains are allowed to refuse to serve alcohol even though their colleagues are obliged to do so. The questions I’d like to ask both sides in the cake debate are:

    (a) Should Christians be obliged to bake cakes for gay weddings?

    (b) Should Muslims be obliged to serve alcohol?

    (c) Should Muslims be obliged to bake cakes for gay weddings?

    The answer to all three questions should either be yes or no. If someone gives a different answer to these questions they aren’t being consistent.

    • @Speaker to Animals
      1.no 2.no 3. No
      The gay couple in this case was petty as hell and could go to literally any other bakery in the area.
      The government shouldnt be meddling in these sorrs of intimate matters.

    • Debbie says

      Actually, the answer should be:
      1. Yes, if they’re in the business of baking wedding cakes.
      2. Yes, if they’re in the business of selling alcohol.
      3. Yes, if they’re in the business of baking wedding cakes.
      –or–
      1. No, if they’re not in the business of baking wedding cakes.
      2. No, if they’re not in the business of selling alcohol.
      3. No, if they’re not in the business of baking wedding cakes.

  5. If you asked those questions separately so people don’t realise you are trying to call out their inconsistencies m I suspect there are many onbghe Left who would answer

    (a) yes,

    (b) no,

    (c) oh, er – look over there! Trump!/Brexit! (delete according to which side of the Atlantic they are on).

  6. Carl Sageman says

    It’s an excellent observation that legal terminology has infiltrated every day language.

    Most of the article is well reasoned. However, the right to be free from anything is absurd. It’s a positive right and there are some excellent discussions on why positive rights do not work, fundamentally. Here are two random links of unknown quality,
    http://importanceofphilosophy.com/Bloody_PositiveRights.html
    https://fee.org/articles/the-perils-of-positive-rights/

    There is also the argument that the first amendment applies to governments, not businesses or individuals. It’s a contract between the government and the people, not between two non-governmental parties.

    There’s also the argument about the right to associate. I specifically saw this used against the Daily Storm (or Stormer) because people didn’t want to associate with Nazis (I’m assuming the label of Nazi is correct based on progressive news sources who call anyone they dislike a Nazi). Would this not apply here? Do businesses have the right to association? There are many businesses who specifically target one sex, ethnicity, age group, religion, etc.

    There are other more meaningful examples that can be used too. Should cancer fund raising be sex based (eg. Breast cancer vs prostrate cancer … or simply cancer fund raising, with funds allocated based on need). Should society allow girls only groups and boys only groups? Should we have the freedom of choice or should these answers be mandated?

    The cake is an excellent example. Much of it is well reasoned in this article (sans positive rights). However, many people have flagged the pitfalls of positive rights. I would suggest this is a significant oversight in this analysis, leading to a flawed conclusion.

    As for everybody getting along and not using “positive rights” as a weapon, that will never happen. As long as somebody can benefit from enforcing their will on another, some will exploit that force of will.

    I’ve given a lot of thought to our intersectional society and whether it’s possible to turn back the divisiveness. If we eliminated positive rights, shunned equality of outcomes, mandated equal rights and opportunities for everybody, would that restore our fractured society to being unified again? I suspect not. The concept of affirmative action is an effective weapon when combined with statistics (especially carefully crafted statistics: aka lies, damned lies and statistics). Our society shuns any differences between groups (eg. Male vs female career choice: people vs things). Our focus on intersectionality is so ingrained that unifying the people will take something drastic.

    In summary: the article skipped over positive rights. It’s fundamental to this discussion and it’s absence undermines the conclusion of this debate. The article recognises weaponising of positive rights, but, hopes that they won’t be weaponised in a society that’s obsessed with intersectionality. Probability of an intersectional society weaponising positive rights: approximately 100%.

  7. yandoodan says

    Commercial speech is a slope that’s even slipperier that religious speech.

    1. I am (let’s say) a professional artist and make my living painting pictures. I hang a painting in a gallery, and they sell it. Am I engaged in commercial speech? Could the government restrict what I paint — or require me to paint something I don’t want to? What about the gallery?

    2. I write an editorial for Quillette, and they pay me $20 for it. (I am a lawyer and make a cool quarter mill’ a year.) Is my editorial commercial speech? Could the government restrict it if they determine that I’ve engaged in promoting discriminatory content? Can a government agency be the sole determiner of this?

    3. I own a newspaper, say the New York Times, that’s filled with news and opinions that the Trump Administration doesn’t like. I sell papers and advertising, and make a considerable profit doing so. This is obviously commercial speech. Could Congress pass a law regulating it? Could the Trump Administration put a censor in my newsroom to enforce this law?

    4. Does selling your speech make it commercial? Are dilettantes the only people with First Amendment rights?

  8. ADM64 says

    This is in fact much simpler than the author makes out. An individual right, an inalienable individual right, is legal recognition and protection of one’s freedom to think, and to act on one’s thoughts in a non-violent, non-fraudulent way. Civil and political rights derive from this basic definition (and it’s interesting that we never actually define rights in many of these discussions – but that’s another subject). No one has a right to the property, labor, time or good opinion of anyone else. The right of property implies the rights of contract, as does the right of association. The rights to life and liberty mean nothing if one can be compelled to act against one’s better judgement in any context, commercial or personal. Religious freedom is thus but one aspect of other individual rights. More simply, no one, gay or straight, has a right to any sort of cake that someone else’s labor must provide if they don’t want to provide it.

    The Civil Rights Act – which principled conservatives like Barry Goldwater opposed because they (correctly) saw it would lead to exactly this type of situation, despite a long history of supporting civil rights legislation – opened this can of worms with the false public accommodation concept, to say nothing of “discrimination” becoming synonymous with “violation of someone’s rights.” The Act thus created false positive rights to the service and labor and judgment of other people, which the state then had to guarantee. Meanwhile, real individual rights are set aside.

    The fact is that everyone has the right to discriminate because “to discriminate” means “to select.” If Mr. Jones’ judgements are not those of Mr. Smith, it does not matter. And it does not matter how many people agree with one or the other. No one has the right to be compelled to serve others. What everyone seems to overlook is that the principle on which Masterpiece Cakes was almost put out of business is the notion of “community standards” trumping actual individual rights. That was exactly the same principle behind the Jim Crow legislation in the south: a legal system by which public authorities compelled people to act in a particular way. Now, in 1964-65, Jim Crow was so entrenched, and so backed by violence to which the authorities turned a blind eye, that one could fairly argue that without the public accommodation concept and without anti-discrimination laws, dismantling Jim Crow would have been much harder. It’s clear now, though, that false rights are being used to destroy actual individual rights. Worse still, the notion that rights are inherently in conflict and must be balanced or reconciled makes a mockery of the very concept of rights. Private discrimination lacking the threat of violence or otherwise backed by the police power of the state has never been sustainable in the long run.

    Mr. Craig and Mr. Mullins entered Mr. Phillips bakery with money in their pocket and of sound mind and body. They left with exactly those things. That they were offended is irrelevant. Phillips neither broke their legs nor picked their pockets. Now, however, courtesy of the so-called Commission of Human Rights, any business owner dealing with any customer can face bankruptcy, in a kangaroo court proceeding if the customer dislikes them. That is a very different type of relationship. It is involuntary servitude under the threat of violence politely disguised.

    Finally, any so-called Human Rights Commission or tribunal is not a court of law and should not be treated as such. Due process was denied. And “human rights” are not individual rights. They are false rights to positive goods that entail the violation of actual individual rights. The reason why this is not clearer is because, over the last century, we have accepted the notion that actual individual rights, as recognized throughout the constitution and in the Declaration of Independence, are somehow problematic and, as we’ve voted ourselves goodies from government and accepted that government must do things for us, we’ve created a legal-intellectual contradiction that we can’t easily resolve. That’s why these types of cases appear to be complicated.

    • A business can exist, and make a living for the owner, because of the rule of law of the society. There is limited demand within a local economy, and therefore few outlets of any service: hotel, gas station, laundrette, cake shop. If you choose to run one of those businesses for your living, you have to accept that you cannot discriminate. The consequence can be clearly seen in the example of a dominant culture, say a religious one that doesn’t believe in gay or interracial marriage, which would result in severe consequences for the minorities. In less clear circumstances the principal remains, since the consequence is only less clear and perhaps less consequential. e.g. the cake shop example is good; the service being refused was the baker’s creative craft in a frivolous application. But the principal has to be maintained. The baker should make the cake, and still be able to say they don’t believe in Gary marriage. Forcing them to make the cake is not forcing them to support gay marriage.

      • Taupe Pope says

        I could see your rationale for necessities being required not to discriminate if I’m being generous. However, cakes, hotels, laundry and most consumer goods and services aren’t necessities.

        “The baker should make the cake, and still be able to say they don’t believe in Gary marriage. Forcing them to make the cake is not forcing them to support gay marriage.”

        You lost me. Action is just belief realised.

        • The ability to live a satisfying life (without being dictated to, by those who claim to know better, about what a satisfying life is) is predicated upon many, many things that you wouldn’t classify as a necessity. And if you think laundry is not a necessity I suspect you’re someone who thinks laundry is just for getting your suit pressed, that you live in a nice neighbourhood, and that you think people can just go out and buy a washing machine out of whatever money they have to hand.

          “Action is just belief realised”. Oh come on. What is that about apart from sophistry? I could say that “I know (a belief) that it is against the law for me to discriminate whilst operating my business, therefore I will not discriminate (an act to not discriminate), but I still believe it is wrong for me to operate my business in a non-discriminating way based upon my religious beliefs, and I will continue to argue (an act) against that enforcement”. But that’s just getting sucked into the silly sophistry.

  9. Bob Axlegrove says

    Doug and Joe: your objections are ill-founded. Phillips was not refusing to bake the people a cake because the people were homosexual. This is made clear by the fact that he happily sold anyone and everyone cookies, bog-standard cakes and everything else in the shop.

    Phillips was refusing to use his artistic expression for a cause that he didn’t believe in. To argue that Phillips should have baked the cake is to argue than an artist is legally required to accept patronage and paint any painting that a respective patron requests. It is easy to think of examples of this (Forcing Hindus to depict slain cows, forcing a Buddhist to paint a portrait of an obese drunkard etc.).

    The extent to which the State and Federal laws allow such a defence, now that is out of my league.

  10. Matthew says

    You left out the fact that Philips offered to sell the Craig and Mullins a cake off of the shelf. Literally the only thing he had a problem with was using his artistic expression to provide a customized service for an event with a moral message with which he deeply disagreed. He was the one going the extra mile to try to be reasonable and charitable without compromising his deepest beliefs, and he didn’t discriminate based on sexual orientation–only on event celebrated. There’s no evidence that if the same couple had come in asking for a birthday cake that he would have refused if he knew their orientation–IIRC he *explicitly* stated he’d make them a cake for another occasion.

    I think that, to anyone who values integrity and living by the truth as one understands it–even if there’s disagreement with Phillips’ conclusions about what ‘the truth’ is–this case is a no-brainer. Phillips is in the right, and the suing couple are in the wrong.

    Overall this article is a good attempt at a neutral presentation of the case, but this case really isn’t neutral, as far as I understand it (not an expert but been interested in it since the beginning). It’s blatant anti-religious discrimination in service of the neomarxist anti-oppression paradigm that’s becoming all the rage among the radical right and the (increasingly less-radical) left. It’s that paradigm that’s fueling this new iteration of the weaponization of rights, and if the Supreme Court rules against Phillips that’ll be a serious blow to the protection of conscience in America.

    • James says

      My immediate thoughts were pretty much in tune with yours Matthew,^ but I’ve changed my mind on this particular case.
      That Phillip blokey was being as backwards as a cakemaker from the 60s refusing to design a wedding cake for a black couple, or perhaps an interracial couple. Such a situation isn’t difficult to imagine, at all. And that would have certainly been racism, and this is certainly homophobia – and both are discriminatory ideologies (or ‘truths’ or whatever you want to call them) in this instance derived from (orthodox) religion. Now why should such an ideology be given credence simply because it has a religious origin?
      I think this is just a classic example of good old-fashioned liberal criticism having to pussy-foot around the lingering grip of orthodox religion, (again!).
      If Phillips was an atheist neo-nazi, with exactly the same views, this would be a no-brainer for everyone. The problem here is the blanket of security that religions have managed to drape over its members. Ultimately I see no distinction between bigotry founded in religious belief or otherwise. Think of the hundreds of years people have spent try to fight the injustices caused by deep systemic religious influence.
      Now. I also believe people are still rather soft on homophobes, since gay rights are a fairly new addition to our society, and gay marriage is very new. Just as people/the courts were lenient to racists even following the civil rights act. And personally, I don’t particularly want to live in a society where homophobes or racists get a free-pass for deriving their beliefs from religion. <— that's what's really going on under the surface here, I think.

      • The attempts to equate this with segregation in the 1960s is a strawman. During that period the GOVERNMENT licensed businesses specifically in a way that captured the market. The result was the majority could discriminate against serving the minority. That hasn’t been the case for 50 years. While there may be a small town or two out there with but a single cake decorator which fits this hypothetical argument, that is the exception and not the rule as shown QUITE SIMPLY by the FACT that in all of these cake decorator or florist cases the “injured party” went to the next shop and was able to received the services they desired. In none of these cases was service withheld due to sexual orientation but instead for custom messaging. This is no different than forcing an LGBT bakery to decorate a cake depicting a gay man being thrown from a rooftop or asking a minority owned bakery to decorate a cake with a swastika or depicting a lynching. In those examples, the same shock-troopers who are demanding punitive actions by the government against the baker would be standing up for the “heroic bakers” who reject customers who have beliefs that THEY find offensive.

        These bakers and florists never refused to “sell to gays.” In the one case, the gay couple had been long time customers. They simply refused to decorate a cake a certain way. The one case (seattle?) they offered to make/decorate the entire thing just simply not put the “bride/groom” plastic pieces on top — leaving that to the couple to do after delivery.

        In none of these cases did the couple suffer an injury. In all of the cases, it is the government mandating speech which is why SCOTUS is reviewing it. It parallels with the CA law requiring religious-charities to inform patients about abortion even though that is against the tenants of the religion running the operation. Does this mean the State can mandate that anti-gun financed domestic abuse victim service providers inform their customers that they have a right to own a firearm and how to go about getting a carry permit in their state? I can imagine there are some gun-friendly states who could/would pass a law like that were it the case.

  11. Andrew Roddy says

    There was a very similar case in Belfast, Northern Ireland. It differed slightly, though more or less signifigantly, in that the cake in question was not a wedding cake per se but a cake for a political event. It was requested that the cake be decorated with graphics and slogans expressing support for gay marriage which was, and remains, illegal in that jurisdiction. As might be imagined the case generated a hotly contested debate very similar to the one here (this page). The high court ruled against the baker on an equality of service argument which, it seemed to me, tended to ignore the competing claims of the defendants. I am no legal expert but I felt the judgement was a little simplistic and possibly expedient. I don’t know.

    I was interested to read the views of Peter Tatchell, a British parliamentarian and well-known gay-rights activist. He wrote a piece in the Guardian declaring he had changed his mind (always refreshing) and felt that the Bakers in the case had been hard done by.

    ‘In my view, it is an infringement of freedom to require businesses to aid the promotion of ideas to which they conscientiously object. Discrimination against people should be unlawful, but not against ideas.’

    For any one interested, full article here – https://www.theguardian.com/commentisfree/2016/feb/01/gay-cake-row-i-changed-my-mind-ashers-bakery-freedom-of-conscience-religion

  12. Pingback: Lawyers Planet | Tuesday round-up

  13. Pingback: Vancouver Law Firm | Tuesday round-up

  14. Pingback: Employment Law Advocates | Tuesday round-up

  15. Pingback: People Law | Tuesday round-up

  16. Pingback: Marshall Geisser Law | Tuesday round-up

  17. Religion is not relevant to the question being considered by the court. A non-religious person can have strong moral convictions, and those convictions should be accorded the same degree of respect as religiously-held convictions. Plenty of non-religious people would refuse to create a swastika cake for a KKK celebration. A person shouldn’t have to be affiliated with a church in order to have the right of refusal.

Leave a Reply to JJ Cancel reply