Masterpiece Cakeshop – Sheila Kennedy

The Proof Of The Pudding…Er, Cake

What was that line from Jaws? He’s baaaack….

Remember the Colorado baker who refused to bake a wedding cake for a same-sex wedding, and took his case all the way to the Supreme Court? Although headlines suggested he’d won his case, the Court actually punted, because it found that the initial consideration of his argument by the Colorado Civil Rights Commission had denied him “the neutral and respectful consideration” to which he was entitled.

That case thus failed to set a precedent or resolve the issue. So guess what–Mr. “sincere religious belief” is back, this time for refusing to bake a cake for a transgender customer.

Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colo., on Tuesday filed another federal lawsuit against the state alleging religious discrimination.

This time, the cake at the center of the controversy was not for a wedding. In June 2017, Colorado lawyer Autumn Scardina called Masterpiece Cakeshop to request a custom cake that was blue on the outside and pink on the inside.

The occasion, Scardina told the bakery’s employees, was to celebrate her birthday, as well as the seventh anniversary of the day she had come out as transgender.

Masterpiece Cakeshop ultimately refused Scardina’s order on religious grounds.

The Colorado Civil Rights Commission once again found Phillips guilty of discrimination, and once again, he has filed a federal lawsuit claiming religious discrimination.

I have no idea whether the transgender customer was part of an effort to test Phillips’ assertion–in the context of the original case–that he served everyone, and only objected to using his cake-baking “art” to celebrate occasions he “sincerely” believed to be sinful. I wouldn’t be surprised.

Leaving aside the (strong) legal justification for civil rights laws, here’s what strikes me about Masterpiece Cakeshop, the sequel.

As I’ve previously noted, if I owned a bakery, and I sincerely didn’t want to bake a cake for a customer (for any reason–maybe the customer has just been a pain in the derriere), I would simply say something like, “Gee, Mrs. Smith, I am so backed up with orders that I can’t take any more until after the date you need the cake,” or “I’m so sorry, Mr. Jones, but I’m short-handed right now…”

In other words, there are lots of ways you can refrain from “participating in sin” without issuing a self-righteous sermon to justify the abstention.

People in business who want to stay in business avoid unnecessarily pissing people off–especially people who are part of communities that are likely to take offense and stop patronizing your store. (A couple of years ago, a bakery not far from my house did refuse to bake a cake for a gay couple, and told them the refusal was based upon the owners’ religious beliefs. This is a gay-friendly neighborhood, the couple shared their experience, and six months later the bakery was no longer in business.)

Even if the religious belief that requires you to refuse baking a cake is sincere, I know of no religious doctrine that requires you to be a horse’s ass about the refusal. If your religious beliefs require you to turn away business by lecturing your hapless would-be customers about the wages of sin, you have no business being in business. (And you probably won’t be for long.)

Forgive my cynicism, but Mr. Phillips sounds far more interested in theatrically demeaning LGBTQ folks and being a tool for right-wing legal activists than in running a bakery.

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A Decision That Isn’t

Well, the United States Supreme Court just emulated Solomon.

Remember the biblical story in which two women claimed to be the mother of a baby, and demanded that Solomon decide between them? He proposed to cut the baby in two, knowing that the real mother would withdraw her claim in order to protect the baby. The lesson from that parable? Solomon was a smart guy.

So is Justice Kennedy.

The case before the Supreme Court was poised to add lots of fuel to America’s already raging culture war. In 2012, a Colorado baker had refused to create a wedding cake for a same-sex couple, citing his religious beliefs. (This wasn’t a refusal to sell a cake that already existed; the baker had evidently been asked to create one especially for the couple. He argued that doing so would amount to compelling his speech in favor of same-sex marriage, which he opposed.) At the time, Colorado did not recognize same-sex marriages, but the state had a civil rights law that included protections for LGBTQ citizens, and the state’s Civil Rights Commission ruled that the baker had violated that law, and intermediate courts upheld the Commission.

The Supreme Court reversed, ruling 7-2 for the baker. Sort of.

Although it is hard to fault the logic of the dissent by Ruth Bader Ginsberg and Sonia Sotomayor, who argued that baking a cake is not the expression of an opinion, the majority decision in the Masterpiece Cake case was a masterpiece. (Okay, terrible pun.) As USA Today reported,

the long-awaited decision did not resolve whether other opponents of same-sex marriage, including bakers, florists, photographers and videographers, can refuse commercial wedding services to gay couples. In fact, the court on Monday scheduled a similar case involving a Washington State florist for consideration at their private conference Thursday.

The decision reiterated the rule that business owners generally cannot deny equal access to goods and services under a neutral public accommodations law. The result in Masterpiece turned instead on the Court’s finding that the baker had been treated prejudicially by Colorado’s Civil Rights Commission– that the Commission had demonstrated a hostility to religion in its treatment of the case.

Kennedy reasoned that Phillips, in refusing to create a same-sex wedding cake, had good reason to believe he was within his rights. State law at the time allowed merchants some latitude to decline specific messages, such as those demeaning gay people and gay marriages.

The government cannot impose regulations hostile to citizens’ religious beliefs, the ruling said. But it was limited to Colorado’s treatment of Phillips; had the process been fair, Kagan and Breyer likely would have been on the other side, and Kennedy would have had a tougher decision to make.

“A vendor can choose the products he sells, but not the customers he serves — no matter the reason,” Kagan wrote, joined by Breyer. “Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples.”

The plaintiff won. He gets a new hearing. However, the ruling is unlikely to affect other claims of discrimination by same-sex couples.

The Court’s decision deprives the Religious Right of a grievance that would have been useful for fundraising and political organizing, it does no damage to gay civil rights generally, and it is too narrowly tailored to be used as a precedent by others claiming a religious right to discriminate. If you are going to “lose” a case, this is clearly the way you’d want to lose it.

Well done, Supremes.

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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…

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