Chanukah is behind us, but the issue of religious freedom that animates the festival remains fixed on our American agenda as something fully embraced but somehow not quite fully defined. That strange duality surfaced just recently in a particularly challenging and interesting way in the Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission case in which regard the Supreme Court heard arguments just the week before last.The backstory is simple enough to recount. In 2012, Jack Phillips, the owner of the Masterpiece Cakeshop in Lakewood, Colorado, declined to bake a custom wedding cake for a same-sex couple on the grounds that doing so would require him to betray his own religious principles—thus in effect violating his civil rights by denying him the freedom of religion promised to him and to us all by the First Amendment to the Constitution. The couple, David Mullins and Charlie Craig, went to the Colorado Civil Rights Division, arguing that their civil rights had been violated when the baker refused them service and asking that Phillips be ordered to serve them just as he would any other affianced couple who wished to purchase a custom-made wedding cake. In response to the investigation which then ensued, Phillips informed the Civil Rights Division that he did not refuse to sell them a cake due to their sexual orientation, but rather because he could not create a cake that would celebrate their marriage. The Civil Rights Division stated that Phillips’ response was a difference without a distinction, and that he did not have a free speech right to turn down the couple’s request. The Colorado Civil Rights Commission, upholding that decision, noted that if Phillips was willing to create cakes for opposite-sex weddings, he had to do so for same-sex couples too. And then, in December 2013, an administrative law judge determined that Phillips had indeed violated the Colorado law that prohibits discrimination based on sexual orientation, in effect ruling that no Coloradan may violate another’s civil rights even if he or she is being motivated to do so by religious principles…and that the sincerity with which those principles may well be held is not consequential in a case like this: citizens of our free land are fully free to believe what they wish and to join whatever church they prefer and to practice whatever faith they wish, but bakers still cannot deny service to a gay couple any more than they could to black people or Jewish people or any recognizable group within society. The matter appeared to be resolved.
Masterpiece Cakeshop appealed the decision, but lost again, in May 2015, when the Colorado Court of Appeals upheld the determination by the administrative law judge, ruling that businesspeople cannot justify otherwise illegal discrimination with reference to even genuinely and earnestly held religious principles. Then, the following April, the Colorado Supreme Court declined to hear an appeal of the lower court’s ruling. The matter again appeared to be resolved.But nothing is ever that simple. Jumping into the mix, a conservative legal nonprofit, the Alliance Defending Freedom, petitioned the U.S. Supreme Court to hear the case and, just this last June, the court agreed and scheduled oral argument for the first week in December. And that is how we got to this particular place in our nation’s apparently never-ending effort to reconcile the right of individuals to be guided by their religious beliefs and spiritual principles with the right of other individuals not to be discriminated against by people being guided by their religious beliefs and spiritual principles.
One interesting feature of the debate as it has unfolded in the blogosphere and on the op-ed pages of the nation’s newspapers is how simple the issue appears to seem to at least some people on both of its sides. For at least some of the people supporting the baker, there’s hardly a matter worth debating here: what could possibly be less complex than a case featuring an individual who does not wish to be forced to act in a manner contrary to his own religious principles, a right guaranteed by the part of the First Amendment to the Constitution that guarantees religious freedom? But on the other side the matter appears—at least to some—to be a no-brainer as well: what could possibly be more obvious than the right of individuals not to be discriminated against by bigoted individuals who are specifically barred by law from translating their prejudices from malign, but ultimately protected, feelings into actual workplace policies?
Both those approaches are simplistic, because the issue at hand is not really whether we should permit discrimination or curtail freedom (both of which really are constitutional no-brainers), but rather how to imagine a society in which people do not feel obliged by law to abandon their principles and in which no individual or group within society has to deal with prejudice, subtle or overt. No one, after all, is asking the baker to abandon his principles or his opinions, only to create a custom-made cake for customers who do not share them. (In fairness, I should note that Phillips was prepared to sell them a wedding cake, just not to create a custom-made one.) But, of course, his contention is specifically not that his he is somehow being enjoined from practicing his faith, but rather that, by forcing him to sell the gay couple a custom cake, the government is obliging him to behave in a way that suggests acquiescence to beliefs that he does not hold. The issue, therefore, is whether religious freedom does or should involve non-verbal expressions of opinion that are made outside the sphere of religious activity or worship. When put that way, the question becomes very interesting indeed…and not at all simple.There are several different issues here to unravel. The first, probably the most important, has to do with the nature of speech itself. The baker is arguing that serving a cake custom-made by him—and thus imbued with his creativity, artistry, and artisanal skill—at a same-sex wedding reception is in effect forcing him to “say” something that he is not comfortable “saying” in public, and that that is true even despite the fact that he has sold the cake to someone else and thus no longer owns it personally. But is that really true? I go to a lot of weddings, but I don’t believe it has ever struck me to imagine that the baker has created the wedding cake as a kind of formal endorsement of the union being celebrated. So to argue that selling a wedding cake to someone is the equivalent of making a public statement regarding the worthiness of the nuptials being celebrated is just not true. No one thinks that! The day of my daughter’s wedding was one of the highpoints of my entire life. I had a fabulous time. We had a lovely cake. I may even have eaten a piece (who can remember?), but where it came from I have no idea. The caterer provided it, but I’m sure she didn’t bake it herself! So she bought it…but from whom, and whether that individual him or herself actually baked it personally, I also have no idea. I’d be amazed to learn that the baker even knew my daughter or son-in-law’s name…or anything at all about them. But what is certain is that there was not a single person at the wedding who imagined that the baker, whoever it was, was attempting to speak to us through the medium of his or her cake, much less formally to endorse Lucy and Shuki’s union. Nor do I have any idea if it was or wasn’t “custom-made” for our wedding. Indeed, I’m not even exactly sure what that means with respect to wedding cakes.
For me personally, the far more interesting question to ponder has to do with the question of whether, or how, non-verbal speech should be protected by law. The issue is only ridiculously applied to people who supply cakes to weddings. (What if we had commissioned a special kind of floral displays for the tables—would the florist also be “speaking” to our guests and to us through his or her floral arrangements?) But what about someone whose work is recognizable and easily attributable, someone like an haute-couture fashion designer. Does such a person have the right to decline to sell a dress to someone of whom he does not approve on spiritual or ethnical grounds for fear that the public, seeing that dress on that person, will conclude that that designer was saying something supportive by selling the dress in question to specific person who purchased it to wear in public? If I know the name of the designer who made the gown Mrs. Kennedy wore to the Inaugural Ball in 1961—which detail amazes even myself—then I’m sure half of America must know who made Mrs. Obama’s dress or Mrs. Trump’s. So those designer’s names really do inhere in their work—should they then have the right to decline to sell their dresses to people they do not wish to be seen wearing them in public?When put that way the issue seems less simple, but the crucial detail is that it is specifically not forbidden by law for bakers and dressmakers to turn away customers because of political affiliation or the identity of a potential customer’s spouse. But the law does prohibit discrimination based on race, religion, or national origin. And, at least in Colorado, based on sexual orientation as well. And that is why the baker did not win in either Colorado court: not because he didn’t wish to create a cake for someone’s wedding, but because he was choosing to decline that sale based on an illegal factor.
I suppose the baker could argue that he was not discriminating against the gay couple because they were gay…but merely because they wished to serve the cake they wished him to create for him at their same-sex wedding. That’s an interesting argument, but it still ends up in the same place: the baker sincerely believes that same-sex marriage is wrong…and that belief led him to decline to serve—by doing what bakers do for their clients—two specific would-be clients. He will argue that he was ready to sell them a non-custom-made cake, just not one suffused with his confectionary artistry. Can the law tolerate that specific distinction? We’ll find out soon enough!In my opinion, the right to subscribe to whatever articles of faith one chooses cannot justify trampling on the civil rights of others. You are entitled to your beliefs. But you cannot use them to justify discriminatory practices in the workplace or the marketplace. Or anywhere. Freedom of religion grants us all the right to seek God along whatever pathway our consciences dictate, not the right to use our spiritual principles to behave in a prejudicial manner towards others.
The Supreme Court should uphold both earlier Colorado decisions and find that the baker violated the couple’s civil rights by declining to serve them…and that the sincerity of his beliefs should not be considered a mitigating factor. Nor does the distinction between selling them just a cake and creating a special wedding cake for them seem too meaningful to me. Isn’t that what bakers do, sell the cakes they bake to people who wish to buy them?