The answer to the title question is plainly obvious to nearly everyone I see commenting on the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. What’s more confusing is that there are three entirely different answers, all of them equally strongly embraced. If you check in on the liberal wing of the audience, the answer is, neither. It’s about discrimination, oppression and homophobia. But on the starboard side of the commentariat aisle there are two camps. One arguing that it’s a religious freedom question and the other calling it free speech.
In the latter camp – at least to some extent – is Marc Thiessen, writing at the Washington Post in a column titled, The Supreme Court must protect a baker’s unpopular speech. Like any good title these days, it doesn’t really tell the entire story of where Thiessen is going, but certainly generates enough of a hot-button response to get people reading, so well done on that score.
In fact, Thiessen gives a nod to both sides when he describes the importance of this case, saying that the outcome will determine whether the government can, “compel a U.S. citizen to violate his conscience and participate in speech with which he fundamentally disagrees and that violates his sincerely held religious beliefs.” But later, he keeps spinning back to the speech issue.
Even if you disagree with Phillips, you have an interest in seeing him prevail. The First Amendment protects unpopular speech. Speaking out in favor of same-sex marriage was once unpopular. And views that are popular today may be unpopular in the future. To maintain a free society, we must have the freedom to disagree — and tolerance for those who disagree with us.
But instead of going to one of dozens of other bakers in the Lakewood, Colo., area who had no religious objections to same-sex marriage, this couple decided to compel Phillips to violate his conscience through the coercive power of government.
Referring to the concept of voicing one’s opposition to gay marriage as not only speech, but unpopular speech to boot, is sure to tweak a few noses. But what we’re really talking about in the case of Jack Phillips (the baker in question) is art. The entire concept of “art” is one which the courts have always winced at and danced around. When does art cross over into something else? When it came to pornography, the best Supreme Court Justice Potter Stewart was able to manage was, “I know it when I see it.”
Many of us would likely agree with that sentiment, but much like the meaning of Masterpiece Cakeshop in the grand scheme of things, many of us will “know” something quite different from the next person after we’ve seen it. Baking a cake is a trade. Decorating a cake may be art, but not always. It also could be speech, but not necessarily. If I bake you a cake, frost it and, at your request, write “Happy Birthday” on it, is that speech? Could I refuse to write it if I truly and wholeheartedly wanted you to have an awful birthday?
Phillips didn’t refuse to sell the couple bringing the lawsuit a cake. He refused to decorate it with a particular message. Plaintiffs claim that he needs to not only bake, but decorate a cake however the client requests if he is open for business. That’s a patently false statement of course. No bakery could be forced, for example, to put pornographic images on a cake for you if they objected. But now we’re back to that question of when art ceases being art.
With all that in mind, I don’t believe that Phillips is engaging in “speech” in the constitutional sense when he creates one of his cakes. But what he is being asked to do is participate in a ritual which runs afoul of his religious beliefs. Regular readers know that I reluctantly accept the idea of legalized gay marriage only as an inferior solution to a bigger problem. I object to the idea that the government can “legalize” the private behavior of any individuals participating in such a ceremony as well as the idea that government possesses the power to ban such actions. But if we’re going to have Big Brother regulating every aspect of life then the rules need to be applied evenly all the way around.
Phillips feels that creating and delivering such a case makes him a de facto participant in the wedding… a sentiment I can sympathize with. As such, his religious freedom should entitle him to refuse, particularly when the service the customer is seeking is likely available from any number of other vendors within a stone’s throw. But are the customers attempting to force him to engage in speech? I’m not seeing it.