Freedom From? Or Freedom TO?

The lyrics from an old song keep running through my head. “If I knew you were coming, I’d have baked a cake, baked a cake…”

Unless you’re gay, of course.

Today, the Supreme Court will hear oral arguments in a case that will determine which version of that song we’ll sing.

Masterpiece Cakeshop insists that its cakes are “art,” and that the Constitution protects the refusal of the “artist”–aka the guy who bakes the cakes– to bake them for LGBTQ folks. According to the baker, forcing him to sell his “art” to anyone with the money to purchase it compels him to express approval of something his religion condemns–in this case, same-sex marriage.

Those of us who are old enough to remember when “sincere” religious belief was the argument advanced by retailers refusing service to African-Americans tend to frame the issue differently: Does either clause of the First Amendment operate to exempt people from complying with laws of “general application”?

The word “theocrat” gets thrown around a lot these days, and for perfectly understandable reasons, but the question the Court will address is the inverse of what we usually mean when we use that term. Theocracy implies the imposition of one group’s religious beliefs on the nation as a whole through law–using the power of the state to enforce conformity with the religious precepts of a dominant sect.

Here, the question is whether and when respect for an individual’s (presumably sincere) religious belief should exempt that individual from compliance with rules that everyone else must follow. Under what conditions–if ever– should the law allow such exemptions? During prohibition, I’m pretty sure that most Americans–even ardent prohibitionists– would distinguish between Catholics sipping wine during Mass and party-goers imbibing bathtub gin. When the Supreme Court decided the Smith case, ruling that the use of peyote in an Indian religious ceremony was a violation of state drug laws (laws of “general application”) the resulting uproar was a sign that most people considered the decision to be an overly-zealous application of the principle.

When someone is asking to be exempted from a law that wasn’t originally intended to constrain their particular behavior, it may or may not be appropriate to grant the request. When someone wants to be excused from complying with a law that was expressly intended to protect other people from harm or discrimination, however, the calculus changes.

My religion might teach me that I have an obligation to sacrifice my first-born; my entirely sincere belief that I should do so will not exempt me from a law against infanticide. I might sincerely believe that my particular God has no problem with my stealing from people who don’t share my religious beliefs, but that sincere belief won’t keep me out of jail.

In short, my “religious liberty” defense fails when I invoke it to excuse noncompliance with  laws protecting others. Neither my right to “artistic expression/free speech” nor my liberty to believe in a religion of my choice gives me permission to mistreat or disadvantage others. As my friend Steve Sanders pointed out in a wonderful op-ed for the New York Times  on Sunday, anti-discrimination laws regulate conduct, not expression. As he wrote, “if our baker/artist decided that he could not be true to his muse without the use of banned coloring agents, would the food safety laws have to yield? Of course not.”

It’s worth noting that the foregoing analysis generously assumes a sincere belief on the part of the objecting merchant, although it’s glaringly obvious that most people claiming religious or “artistic” exemptions are simply attempting to justify personal bigotries. Evidence of their lack of integrity makes the analysis easier, but it’s important to note that it doesn’t change the result–the claim fails either way.

If he’d known you were coming, gay couple,  Masterpiece Cakeshop should still have to bake you a cake…


  1. Just a thought with no legal expertise to offer. In practice, it depends on who is enforcing existing statutes in the local communities involved. At least that is how it appears, especially in small, close knit villages and towns. Lots of inconveniences get overlooked if the officials in power want to stay that way.
    I also wonder about groups like the Amish, Mennonites, etc., who withdraw into themselves and use their elders as the arbiters of disputes and compliance with community norms regardless of existing laws. I suspect local law enforcement and judiciary have to deal with the compliance issues in those areas on a much more personal and practical basis depending on the law, who is involved and who it affects.

  2. Although I know little of ‘law’, I am aware that repeated rulings have concluded that one may believe anything one wants to, but may not act on it if the laws prohibit it.
    We’ll see if this still holds.

  3. While living in southern Illinois I often shopped at a country Amish store. It was a wonder, and the people who ran it so kind and helpful. Most customers were not Amish. The mix of cultures was most noted in the summer time when some non-Amish (English) women and girls would show up wearing shorts and/or halter tops. The Amish wisely put up a sign asking POLITELY that women and girls wear more covering clothing. They did not refuse service. They did not go to court. They simply posted a sign and asked nicely. The vast majority of customers complied; the Amish kept good business, and life went on.

  4. I wonder if the baker in the Supreme Court case ever refused service to someone he knew was an adulterer.

  5. Due to divine coincidence, I’m sure, I just sent off a letter to the editor of the Indianapolis Star on this very issue before coming to the blog this morning.

    To quote the “artist”, Jack Phillips, at Masterpiece Cakeshop as Guest Columnist this morning regarding the two men who brought the law suit and honoring one’s beliefs (he stated he honors theirs) but they did not honor his. “They did not. And considering all of the hate mail, obscene calls and death threats my family has received since I was sued, a lot of other people don’t see tolerance as a two-way street either.” The two men who filed the law suit have lived with these same conditions for years; as have hundreds of thousands of LGBTQs here and around the world. I posed the question to Jack Phillips, would he have sold other of his products, undecorated, to the two men had he known their sexual orientation. I also asked if he has considered the possibility that he has been unaware of selling products to unidentified LGBTQs during his business years. That is where the law comes into play, isn’t it, the special artistic request? Along with the alleged threats, his Masterpiece Cakeshop has also received valuable free advertisement.

    My lesbian and gay friends are also Christians in the true meaning of the belief. Here in Indianapolis, if you are of LGBTQ orientation and want to celebrate marriage or commitment ceremonies, go to Ruth’s Chris Steakhouse. My lesbian friends held their wedding ceremony there April 28th, with a woman minister, in a beautiful setting with approximately 70 friends and family to applaud their legal union after 20 years of partnership.

    “Freedom From? Or Freedom To?” In my letter to the editor of the Star I also made reference to the fact that we currently are not required to provide proof of sexual orientation, religious or political affiliation as identification but under the current Trump/Pence presidency and administration, that is possible future requirement. Hmm; just remembering the Jews throughout most of Europe being required to always wear the yellow identification and carry “papers” with them at all times. The different colored triangles in concentration and death camps to identify specific “enemies” of the Nazis also came to mind. The specter of Adolph Hitler is a constant shadow over our heads today…more dangerous than that hovering anvil in “Roadrunner” cartoons. Do not let the Trump cartoon character daily display lull you into complacency; he is as dangerous as Hitler ever was and all of our freedoms are currently in jeopardy.

  6. This should not be a difficult case. If the cake artist has a religious belief against interracial marriages, should he be allowed to refuse to bake a wedding cake for them? If the cake artist has a religious belief that Jews are “mud people,” should he be allowed to refuse to bake a cake for a bar mitzvah?

    Replace the word “gay” or the term “same-sex” with any other descriptor, and see how well the argument holds up.

    Here’s one: Should a Muslim baker who believes Christians are infidels be permitted to refuse to bake a cake for a child’s baptism?

    That we have to even have this damn debate in 2017 is appalling.

  7. If we are going to live under and benefit from the constitution, then I think we are all obligated to obey the constitution. If it says no discrimination, then it means no discrimination.

    I would personally be happy if religions of all kinds were checked at the door of America.

  8. Theoretically it should be simple.

    1) You can refuse service to “a person” but not “a people”. IE – Yes, you can enforce the no shoes, no shirt, no service. You can ban a rude customer. You cannot ban all Chinese people.
    2) You can refuse to do something that your business does not do. IE – If you are a baker, you don’t need to provide steaks or suitcases. If you don’t make cookies for anyone, you don’t need to make cookies.
    3) You cannot refuse, specifically, protected classes. You can be a Jewish baker and refuse to make a Holocaust celebration cake for a Nazi – Nazis are not a protected class. Nazism is not an immutable characteristic (i’d like to think). You can’t reuse to bake for gay people, because being gay isn’t a choice.

    If they had a choice, so do you. If they didn’t, you don’t. How is this so freaking complicated for people?

  9. All of this is just ridiculous as it has been all along. Meanwhile, all the much bigger fish that we really need to fry are lying there rotting away while we spend our time on these extraneous and manufactured issues wholly designed to either distract us or bog us down in very bogus theology. Meanwhile, Vladimir Putin is at risk of breaking his face from laughing so hard at what he’s been able to do to us. Meanwhile, Donald Trump continues on his merry way wrecking this country day by day, week by week, month by month.

    I key this in no way denigrating Sheila’s post or the importance of this issue but to hopefully contribute to all of the various efforts underway to keep all of us on track as to what the real threats are and they have nothing to do with cakes, who bakes them or who gets to eat them.

  10. This is a simple case. An artist, working on commission, can select his costumer. That same artist cannot open a retail gallery and then refuse to sell to a costumer because of a religious belief. Imagine if this were a strait up art purchase from a gallery and the artist said, “I can’t have my art hanging in a black family’s house because my Bible says bad things about black people! NO SALE FOR YOU!” That said, I don’t understand how this gets to the supreme court in the first place… so I may be the completely stupid person in this situation.

  11. The specter of Hobby Lobby as well as that of Hitler is lurking in this cake case. Apparently non-public owned corporations have souls, though that is not the in this bake case. Sheila has analyzed the legal issues brilliantly and I have only commentary to add to her efforts.

    We are on a slippery slope when slicing and dicing the Constitution’s protections to classes of people, be they black, gay, straight, (or lately) corporations etc. It seems to me that there is little left to slice and dice when the issue becomes one’s private right to practice his or her views of religion versus rights, privileges and immunities granted by the Constitution’s Amendments to the total population. What’s next? Will one be denied a cake because he or she is a Baptist? Straight? Professor? Hedge fund manager? What’s next after what’s next? Will insurers refuse to sell policies to Muslims? Truck drivers? Women? Has commerce fallen into a religious strait jacket (as our political and educational edifices seem to be heading)? That is not what Thomas Jefferson and James Madison had in mind when crafting our organic law – quite the contrary.

    The Constitution is a secular instrument, so cakes and rights are oil and water never to be successfully mixed through some theological lens and, frankly, I am dismayed that we are even having this discussion. We have more pressing issues to consider and determine. Bake the cake. . .

  12. I’m going with my fall back response; sorry for the duplication:

    I didn’t mean to shout but this response is getting really old.

  13. typo – I inadvertently omitted the word issue in the second sentence of this essay. It should have in pertinent part read > though that is not the issue in this bake case. Mea culpa.

  14. Gerald; your second paragraph brought to mind a medical discrimination problem I encountered a few years ago. I apologize for the references to my personal body parts but…that was and is where the problems exist. After extensive testing at one of the two urology clinics where the few specialized surgeons are available for Marion County and all surrounding counties, I was denied needed surgery for bladder and vaginal wall reconstructive surgery because I am deaf…yes, you read that correctly. I then tried the second clinic and a third surgeon. It didn’t come to mind till now; could this be construed as sexual discrimination as well as against my disability or possibly my age? One doctor stated writing notes is too much trouble, the second stated writing notes is too time consuming and the third stated, if she couldn’t communicate with me verbally she refused to accept me as a patient. In all three cases I had informed them of my deafness, my age, the fact that I do not sign or read lips; I even apologized for needing to have them write to communicate with me. I was given appointments; repeated appointments in the clinic where the two were located who didn’t want to write notes and I paid my $50 co-pay at each appointment (4 in total). I had an initial interview with the PA at the 3rd doctor’s location. They opted for payment after appointments but I left screaming “I’m not paying you people on f#*king dime!”

    I filed a complaint of discrimination against my handicaps through the Indiana Attorney General’s Office, Medical Licensing Board; wanting only letters in their personnel files with the state. My complaint included copies of all E-mails back and forth with all three doctors. Months later received the response that the doctors declared they had no notice I was deaf. Contacting Health and Human Services, Civil Rights Office with all documents took four years to get a response. They apologized for the two doctors and stated they would send #3 information on treating the handicapped and IF they received another complaint the would CONSIDER an investigation.

    Yes; I know this is another of my long comments but…this issue not only concerns me but all handicapped in this country and is more important than an effing decorated cake. Probably everyone who reads and comments here daily has had issues when hiring an attorney has come to mind but the realization that it is cost prohibitive stops us. Doubting the outcome of the Masterpiece Cakeshop case will be on “our” side; I question the laws that allow Jack Phillips the legal and religious right to refuse service and Hobby Lobby and their ilk to deny women in their employ the right to birth control.

  15. As a business owner, I started a business to generate an income and a livelihood “out in the world”. My business serves everyone. This is a basic foundation for any business.

    If one wants to engage in discriminate offerings, then one can do so as a private service. When one opens their door as a business operating to the public, for the public, then the laws of equal treatment and service come into play. You know what you’re getting into as a business. Owning/operating as an artist or as a business out in the world is a choice. There are many responsibilities and accountabilities associated with such a choice. One is to operate with integrity on the choice one makes.

  16. We all know the one rule of business. Make more money regardless of the impact on others. The baker is therefore an inept business owner. As we are selling America to businesses the new owners have power to make this decision. Being an inept business owner is now a treasonous offense. The baker is sentenced to 10 years of hard labor as a bell hop at the nearest Trump Tower (all of which now have the status of National Monuments).

  17. BSH; thanks so much for that web site, it is referred to “reasonable accommodations”, an issue I fought with the City of Indianapolis when my hearing loss accelerated. The section manager and supervisor over me knew nothing about ADA or “reasonable accommodations” so refused to change anything; I simply wanted to be required to answer my own job phone calls (2 separate city divisions, record secretary for the Metropolitan Development Commission and 2 individual “bosses”). I had also been assigned as the only secretary to answer all phones when other secretaries were away from their desks for any reason. I got the necessary information (in my spare time) managed to set up the appointment with the head of City Legal, Barbara Gole. We settled into our seats; Ms.Gole looked through my documents and asked the manager and supervisor “What the hell is wrong with you two?” That ended the problem.

  18. Masterpiece Cakeshop is suffering from delusions of grandeur. The baker’s art is equivalent to the painting of a car, the design of a potato chip bag, the art on a paper cup, or the layout of flowers in a garden. People buy the cake to eat. The “art” is an enhancement to promote sales or to meet a customer demand – it is not the product. The time has arrived to deny religious zealots the right to practice their bigotry to circumvent discrimination laws. This is a nation of laws, not airheads. If this guy and Hobby Lobby get away with their thinly veiled subterfuge, they will go on to demand that the Bible replace the Constitution. Roy Moore will replace Donald Trump, Burkas will follow, and we will spend each Sunday on a hilltop waiting for a spaceship to beam us up to their imaginary Valhalla where discrimination against anyone they despise is protected by the Old Testament.

  19. Well stated, Terry. Kudos! And if there is a Valhalla, who would want to spend eternity with that bunch of bigoted kooks?

  20. I have a strong objection to having even one dollar of my property taxes being funneled to vouchers to fund religious education. Can I sue to state to be exempted from being forced to financially support a business that I strongly disagree with?

    Should those whom are being discriminated against be able to deduct from their sales/income/property taxes the amount of money that the governing entity spends to supply sidewalks and roads to benefit those businesses that want to refuse to offer their services to them?

  21. Great comments today! My own protest of current religio-political mumbo jumbo is avoidance of Hobby Lobby, Chick-fil-A, and Papa John’s Pizza right here in my town. There are other hobby shops, too many chicken places, and pizza shops which are on any corner.

    Masterpiece Cakes can sit there letting their masterpieces go stale! Or they can bake the cake, sell it, and the two gents can go elsewhere for the appropriate cake-topper, stick it on the cake and get on with the reception. Done! Congrats, gentlemen!

  22. China takes a hit because it has prohibited religion for a number of generations. I am thinking maybe China got that one right. Imagine making all sorts of decisions, especially in government, free of the irrationality, free of the taboos and free of the rage of religion.

  23. Gerald, “The specter of Hobby Lobby as well as that of Hitler is lurking in this cake case.”

    Tom, “Meanwhile, Donald Trump continues on his merry way wrecking this country day by day, week by week, month by month.”

    Let’s get to the point. The first thing you learn in law school is the importance of finding out…. What is the issue? The issue isn’t FAKE NEWS; It’s FAKE LEADERSHIP.

    Adolph Hitler was no fake, neither was Paul Joseph Goebbels. Hitler was a decorated war hero; Goebbels was a propaganda genius. In the beginning Germany surged ahead.

    How would you describe Donald Trump and Steve Bannon? They’re both FAKES. They’re nothing but a couple of copy cats who are destroying the nation day by day.

    We better wise-up before it’s too late. It’s going to take more than BRAINS to win this war against nothing but UN ADULTERATED BRAWN.

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