Threading the Needle with Cake Shop Ruling
The Supreme Court has ruled in the Masterpiece Cakeshop case, saying Colorado’s Civil Rights Commission violated the First Amendment rights…
The Supreme Court has ruled in the Masterpiece Cakeshop case, saying Colorado’s Civil Rights Commission violated the First Amendment rights of the shop’s baker and proprietor, Jack Phillips. Phillips, the court said, was using his “artistic skills,” creating cakes for patrons, and not just providing baked goods. Colorado, the court said, failed to ensure that its laws or regulations were not “based on hostility to a religion or religious viewpoint,” because it treated other refusals by bakers differently.
Luckily, that’s as far as the ruling goes. It is narrowly tailored, focused solely on the details of this case and lacking the broad strokes many anticipated. It appears to have been written to bring liberals Elena Kagan and Stephen Breyer on board, and to put off larger questions, as Kennedy’s majority opinion makes clear.
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.
Comments like these in the decision are why German Lopez at Vox describes the court as having “punted on the broader issues involved,” and why this ruling “should not be interpreted as giving other businesses carte blanche to do what Jack Phillips, owner of Masterpiece Cakeshop, did.”
Ultimately, the 7–2 ruling hinges on a) the flawed process used by the Colorado Civil Rights Commission in which it apparently showed a hostility toward religion, and b) the court’s the definitions of speech, art, and symbolism, and to whom we attribute the speech in question. These definitional issues matter, and we need to be as consistent as we can or risk it coming back to bite us later.
We have three important rights in conflict — religion, speech, and equal treatment, and we have to take care in finding the right balance. That’s what these cases are always about: balance. It is rare when the exercise of one’s rights does not cross into the free exercise of another’s. Some of these conflicts are small — a zoning dispute, for instance, pits the property rights of two property owners against each other.
Other times, the rights in play are ones we view as paramount. When that happens, the state needs to demonstrate that it has a compelling reason to intervene and override an individual’s religion and speech freedoms, or to allow discrimination to remain in place.
In this case, I think we have to start by taking Jack Phillips at his word that he has a sincerely held religious opposition to same-sex marriage, and we probably should allow that he views his work as art and as his expression. His religious beliefs, he says, govern what he can produce, which would mean that the state has to meet a higher threshold to prove it can intervene.
The art issue is a bit different. At various times through out history, elites have tried to define art to their benefit — rock music, cartoon work, various low-brow entertainments have all been dismissed in the past but are now seen as art. This raises a difficult question: Is it the artist or some other entity that gets to determine if something is art or not?
At the same time, we have to consider the extent to which this is discriminatory behavior and what harm it may have caused. The court acknowledges it is discriminatory, but seems to think it is an acceptable trade-off to protect Phillips’ First Amendment rights.
Is this the correct balance? I honestly am not sure. The harm to Charlie Craig and Dave Mullins, the same-sex couple, was real if not concrete. There were other bakers they could have approached, to be sure, but the emotional scars caused by being told your relationship lacks standing. I’m also sensitive — as a writer who dabbles in other artistic pursuits — to Phillip’s claims that his work is art. So, I’m ambivalent, unsure, still trying to sort out my thinking.
Here are some of the questions the ruling raises::
1: What role does a wedding cake hold in a wedding ceremony and celebration? Is there a symbolism to it? I would think yes, given that it holds a prominent place on hat day.
2: If it is symbolic, it therefore would hold that it serves some expressive purpose. Is this correct?
3: If the cake is speech, who is the speaker? Is it the couple who commissions the cake, or the baker and designer of the cake? Is this analogous to the erection of a statue? A headstone? A wedding photographer?
4: Can the baker claim to be an artist? Is the cake, in this circumstance, a work of art? Who gets to say?
5: Does the existence of other cake cases in which the bakers were allowed to refuse service matter? Does it come down to the individual details of this case? Or should we be focused on broader principles?
6: Does it matter if the baker was refusing only to create a wedding cake, but was apparently willing to sell more generic baked goods to the couple?
Keep in mind that my first reaction when this case was filed was to dismiss the baker’s arguments as frivolous and lacking substance. But I now wonder if my own biases against religious arguments may have colored this view, and whether I would be as ambivalent were this case to have created precedent that could undercut non-discrimination law.
I want to know where others come down on this case. Make your cases in the comments.