Wedding Cakes

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?

Jerusalem

As the whole world knows, the United States has recognized Jerusalem as Israel’s capital and announced plans to move the embassy there. I know the proposed site of the new embassy quite well—it is only three blocks from our apartment in the Jerusalem neighborhood known as Arnona, and roughly twice that far from the existing consulate. (Why we would need a consulate and an embassy that close to each other has yet to be revealed, at least to me. Presumably there’s a concept here!) But the specific site of the proposed new embassy is hardly the issue—other than with respect to its location on the Israeli side—barely—of the so-called Green Line that separates the land that was part of the State of Israel before 1967 both from land that belonged to Jordan and territory that was formally designated as no-man’s-land back then and which belonged neither to Israel nor to Jordan. Far more important is the decision itself…and the implications and ramifications such a decision will inevitably entail.

In his remarks, the President played down the decision as a mere recognition of facts on the ground. And although there is something to be said for analyzing things that way, Jerusalem not being the theoretical or hypothetical capital of Israel but a fully functioning seat of government with all the buildings and bureaucracy that such a designation entails, it is also just a bit glib and fails to take into account all the myriad reasons any rational observer could easily martial against making such a move at this time. Nonetheless, I believe the President did the right thing. And I’d like to use this space this week to explain why I think that.

First of all, it’s hard to fault the President for obeying the law. I am thinking specifically of the Jerusalem Embassy Act of 1995, which passed the Senate by a 93-5 vote and the House of Representatives by a 374-37 margin, and which called upon our government formally to do both things President Trump did this week: recognize Jerusalem as Israel’s capital and grant teeth to that recognition by locating our embassy there. That being the case, it would be entirely legitimate to wonder how to we here at all, twenty-two years after the passage of that bill into law by overwhelming majorities in both houses of the legislature. It’s an excellent question, one that apparently occurred to our nation’s senators as well—who voted unanimously (90-0) last June to adopt a resolution calling on the President to abide by the Jerusalem Embassy Act.

Formally, the answer has to do with the fact that the Constitution reserves the conduct of foreign policy to the President, for which reason Section 7 of the bill formally permits the sitting President to suspend the implementation of the bill’s provisions for a six-month period if the President reports to Congress that such a suspension is necessary to protect our nation’s security. And that is exactly what has happened for each six-month period since the law went into effect in 1998: Presidents Clinton, Bush, and Obama, all of whom openly derided the bill as unwarranted interference by Congress with the President’s right to conduct foreign policy, also—I’m sure entirely coincidentally—concluded that moving our embassy to Jerusalem would somehow adversely affect our nation’s security. Since it’s hard to imagine in what specific sense our nation’s security depends on the specific address of our embassy in Israel, President Trump correctly chose to obey the law of the land and not to flout the will of the people with reference to some threat to national safety that no preceding president even bothered to try actually to identify. So there’s that.

And then there’s the reality on the ground to consider. Even looking past the fact that Jerusalem is the capital of Israel in every meaningful sense, denying Israel the right to determine all on its own where its capital city should be located—a right not even questioned with respect to any other country of the world—implies that the Jewish claim to Jerusalem is somehow spurious or bogus, a view mostly put forward (other than by crackpots who revel in their ignorance of history) by the kind of haters who also question Israel’s right to exist as a Jewish state in the Jewish homeland. To insist that, alone among the nations of the world, Israel does not have the right to establish its capital wherever it wishes is tantamount to saying that Israel is not an autonomous country in the sense that the other countries of the world are, that for some reason it alone among the nations of the world needs the permission of others to conduct its own business as it sees fit.

And then there is the history issue to deal with as well. Part of the Palestinian propaganda campaign intended to make people question the right of Israel to exist has taken the form of ongoing disinformation regarding the history of Jerusalem itself. There have been, by universal scholarly consensus, Jews living in Jerusalem since around the tenth century BCE. Jerusalem was the capital of David’s kingdom and Solomon’s, and was then the capital of the Kingdom of Judah for as long as it existed. Later, it was the capital of the Maccabees’ kingdom, and it has been universally acknowledged, both by Jews in the Land of Israel and throughout the diaspora, as the spiritual center of all Jewish life ever since. Indeed, the fact that Jews who take prayer seriously pray for the well-being and security of the city three times a day is not irrelevant to this discussion. Nor is the fact that every observant Jew prays for the peace of Jerusalem when reciting the Grace after Meals over the course of a lifetime’s worth of meals. The Burial Kaddish we recite at graveside even includes a prayer for the peace of Jerusalem so that the last words an individual’s spirit might possibly hear before setting forth for the Next World are infused with a people’s love for its holy city. Jerusalem is so deeply woven into the warp and woof of Jewishness that it simply cannot be excised, without Judaism suffering the same fate any heart patient would meet if his or her cardiologist decided to solve the problem simply and efficiently by removing the patient’s heart and hoping for the best.

To question the historical relationship of the Jewish people to Jerusalem—which is the only real reason to question the right of Israel to declare Jerusalem as its capital city—is to deny the legitimacy of the Jewish faith itself. This is not a position anyone who does not wish to be perceived as the walking embodiment of anti-Judaism and anti-Semitism should ever feel comfortable being associated with, let alone espousing openly.

And then, on top of all that, there is the question of the Palestinians, who also wish to designate Jerusalem as the capital city of their state.  If this week’s decision does any real good, it will lie in convincing the Palestinians once and for all that they can have the state they claim so ardently to desire, and they can have it almost instantly and with Jerusalem as its capital. That, of course, will require sitting down with the Israelis and hammering out a final agreement that will suit all parties to it…and it is precisely that that the Palestinians seem unwilling actually to do. When I hear people castigating Israel for denying the Palestinians a state, I can’t quite understand the argument—it seems to me that the Palestinians could declare the independence of their state tomorrow with the almost full approval of the entire Arab and Western worlds, work out the details, and move forward from there with Jerusalem as their capital as well. If the Israelis can have their capital in West Jerusalem, why can’t the Palestinians have theirs in East Jerusalem? (The President specifically noted that this week’s decision does not move away from our commitment to the notion of Israel and the future state of Palestine negotiating its borders as part of an overall peace agreement.) But the world has appeared all too willing to let the Palestinians go on and on for years about the unfair way they are being deprived a state of their own when the reality is precisely the opposite. It’s the Catalonians and the Chechens (and, yes, the Navajo and the Cherokees) who can’t have their own country, not the Palestinians…who can have one simply by declaring their independence, negotiating the border, and getting to work building their nation. Who would say no? Haven’t 135 of the world’s nations already recognized such a state even without it actually existing? If moving our embassy to Jerusalem prods the Palestinians into meaningful action (and not into the kind of senseless violence that will ultimately lead nowhere at all), it will have been worth the ruckus the President’s announcement is sure to provoke in an already hostile world and its already hostile media.

We—we who stand with Israel and who believe in Israel’s inalienable right to exist and to flourish—we have been expected to look on without choking as the United Nations and its various affiliates, most notably UNESCO, approve more and more poisonous, deeply anti-Semitic, ahistorical, amoral, and profoundly offensive resolutions calling into question the ancient, ongoing, and permanent Jewish ties to Jerusalem.  So now, for once, a formidable power in the world—the United States government—has decided to act forcefully and meaningfully on behalf of the Jewish claim to Jerusalem as Israel’s capital city. I have to say that it’s good to feel marginally less alone than we usually do.  More than that, actually. A lot more.