Wedding Cakes

The Supreme Court case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ___ (2018), was decided on June 4th in favor of the cakeshop, by a 7-2 vote, 2 of the 4 liberal judges dissenting.

Here are the essential details:

In July 2012, Charlie Craig and Dave Mullins, a gay couple who were planning to wed, entered Masterpiece Cakeshop in Lakewood, Colorado to order a wedding cake. At the time, Colorado law did not honor gay marriages; so, the couple had planned to travel to Massachusetts – where gay marriages were legal – get married there, fly home and celebrate their union with their family and friends; it was for this after-party that the couple wanted a special cake. Jack Phillips, the owner of the bakery, was a man of “sincerely held (Christian) religious beliefs,” and he refused to make the couple a cake, based on his religious belief that marriage was between a man and a woman. There was no discussion of a message or customization or even any decoration of the cake; the discussion never went beyond a gay couple wanting the cakeshop to make a wedding cake for them and the owner refusing.

“While another bakery provided a cake to the couple, Craig and Mullins filed a complaint to the Colorado Civil Rights Commission under the state's public accommodations law, the Colorado Anti-Discrimination Act, which prohibits businesses open to the public from discriminating against their customers on the basis of race, religion, gender, or sexual orientation” (from wikipedia). The couple prevailed. Phillips appealed the decision to the state’s Court of Appeals where the original decision was upheld. He then appealed to Colorado’s Supreme Court where they refused to hear the case (letting stand the verdict of the Court of Appeals).  Phillips finally asked the Supreme Court to weigh in.

Before I say what I intend to say, let me declare my personal biases. I am unequivocally in favor of 100% equal treatment of everyone regardless of sexual orientation, period. So, in favor of gay rights, and in favor of gay marriages (even though I'd have preferred the high Court to have abstained from Obergefell v. Hodges, 576 U.S. ___ (2015) (which held that gay marriages were legal everywhere) and let the states choose, forcing a slow but sure exodus of brilliant and productive gay men and women from those states too damned stupid to do the right thing).  And I believe that no real Christian worthy of the name discriminates against gays. Jesus would not have approved.  The Old Testament, maybe.  But Jesus, never.  But that is just my opinion.

On the other hand, I quite firmly believe that it is my right to love or hate whom I choose, and it is your right to do the same. I am not suggesting that hate is a good thing, merely that it is a constitutionally protected RIGHT. I may hate black folk, I may hate Jews, I may hate the non-religious, I may hate dwarfs or very tall people, I may hate vegetarians, I may even hate God-fearing white Christian men who devour copious quantities of red meat at every meal, and I may hate everyone who believes in God, I may hate all women, and I may surely hate gay persons. All these are protected rights. You may have to be a real jerk or worse to automatically hate anyone who belongs to any of these groups, but it is your RIGHT. It is your right even without God’s blessing. It is your right, even without the First Amendment's religious freedom clause. Am I wrong? I don’t think so. I hope not. Heaven forbid that we give our government the power to punish us for our inner thoughts and beliefs, dark as they may be, foolish as they may be, evil as they may be.

Having said that, I believe that the state (AKA the government) has no business interfering with two parties who desire to enter into a relationship, be it marriage or ordering a one-of-a-kind wedding cake. And I further believe that the state has no business interfering with two parties when one of the parties does NOT want to enter into a relationship, be it marriage or ordering a one-of-a-kind wedding cake. If one party wants to marry another but the other is not interested, the other party's wishes rule, the refusal to enter into a relationship rules.

And I care not if the party not wanting a relationship has religious grounds for refusal, or no grounds at all.  Free Americans are entitled to their bigotry, as long as it is person to person, and up to a point.

Let's go a little further. Imagine a pharmacist with a religious conviction against abortion being asked to fill a Rx for a day-after pill, an abortion pill. Does he have the right to refuse to fill and deliver the Rx? It depends. If the pharmacist works independently of an employer, he may indeed have that right of refusal. On the other hand, if he is a pharmacist who works for Walmart (a large corporation), Walmart does not have the right to refuse to fill a doctor-issued Rx, but they can have another pharmacist fill the Rx. It also does seem to me that Walmart would have the right to terminate its religious employee, not on religious grounds, but on the grounds of non-performance of a legal duty. Employers have the right, after all, to tell their employees what is expected of them and to enforce those expectations.

So, if one of the parties involved in relationship creation or non-creation is a corporation, the individual's claim may trump the corporation's claim, because corporations do not have rights (yes, I realize 100% that SCOTUS disagrees with me on this issue right now, but they are WRONG; and the near future will bear me out or we are done as a free democratic society).

But the baker who refused to make a custom cake was not an employee, he was the bakery's owner. He was like our independent pharmacist. Or like a man being offered a job and refusing to take it. But he was also a corporation – an LLC, a limited liability corporation. Indeed, it was a corporation, Masterpiece Cakeshop, Ltd. – not an individual, not Jack Phillips – that took the Civil Rights Commission to court.

Even so, though the Court treated the bakery as though it was an individual with rights, it is still never as simple as protecting the rights of a bigoted Christian vs protecting a gay couple's rights. The majority SCOTUS decision was based on the Colorado Civil Rights Commission treating the baker's religious beliefs with open hostility, not something a government agency may legally get away with (please note that the respondent in the case is the Colorado Civil Rights Commission, not the gay couple).

On the other hand, I believe that a ruling in favor of the baker that respected his "sincerely-held religious beliefs" (Justice Clarence Thomas) is misguided, as it protects those with bigoted religious views but it would not protect an atheist's misguided religious views; the government ought not to be in the business of protecting anyone's religious views in conflict with another person's needs; the 1st Amendment mandates that government should not be in the business of religion, not that it may judge in religious controversies between private individuals.

But this was NOT a controversy between private individuals, was it? It was a conflict between a corporation (the bakery) and Colorado’s Anti-Discrimination Act, which forbade discrimination against any protected individuals. Phillips did indeed challenge the legality of Colorado’s Anti-Discrimination Act, but the Court did not declare that act null and void, they ruled rather in favor of a religious individual because the Civil Rights Commission – an arm of the state (government) – had treated him and his religious convictions with disrespect. A thin argument if there ever was one (the Court loves to avoid answering big questions). But proper.

Jack Phillips won the case, but not really, as his “sincerely held religious beliefs” were not judged to trump the gay couple’s right against discrimination; he prevailed because his religious scruples were treated with disrespect by an agent of the law (the Civil Rights Commission). And the gay couple did not lose the case, the Civil Rights Commission lost the case. The Anti-Discrimination Act that protected the couple was, and is, in force. Indeed, the next time a gay couple wanders into Masterpiece Cakeshop asking for a wedding cake, the owner will stomp into his back room, curse a blue streak, and then return and take the order. Had the bakery owner been acting as a private individual, his religious biases might have been protected, probably would have been protected; but his bakery is a corporation and therefore subject to public accommodations law. As I said above, corporations have privileges granted by law, but they don't have Constitutional RIGHTS.

Justice Anthony Kennedy wrote the (7-2) majority Supreme Court opinion. Its last words are these:

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

In other words, the next time a gay couple orders a wedding cake in a bakery that is covered by public accommodations law (and only five Southern states do not have such a law), they will be served.