Let Them Bake Cake (Part 1/4): Pastries, Supreme Courts, And Same-Sex Marriage

The Supreme Court ruled 7-2 this week in favor of Jack Phillips of Masterpiece Bakeshop in Colorado, who declined to craft a customized wedding cake for a same-sex wedding ceremony. It was a "narrow" ruling that really sets no precedent, as it focuses on the process rather than the position. Mark Goldfeder gives a good summary for CNN:

"The Colorado Civil Rights Commission removed all nuance from the case: It literally and openly compared Phillips to those who would use religion to justify slavery or the Holocaust. In the words of one commissioner, "it is one of the most despicable pieces of rhetoric that people can use to -- to use their religion to hurt others."As Justice Kennedy explained: 

"To describe a man's faith as 'one of the most despicable pieces of rhetoric that people can use' is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical --something insubstantial and even insincere....This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado's antidiscrimination law -- a law that protects discrimination on the basis of religion as well as sexual orientation...[t]he government, if it is to respect the Constitution's guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices." 

And so, for this reason, among others, the court found on fairly narrow grounds that the Colorado Civil Rights Commission violated the baker's First Amendment free exercise rights. The government officials were required to give his claim religiously neutral consideration, and instead of being tolerant and respectful even while they may have disagreed with his position, they were overtly hostile to, and even questioning of, his sincere religious faith.

In addition, "the state law at the time afforded storekeepers some latitude to decline creating specific messages they considered offensive, and the Colorado commission had previously allowed three different bakers to refuse to put an anti-gay message on a cake."

What it left unresolved was "whether business owners have a free speech right to refuse to sell goods and services to same-sex couples." This doesn't address "'bakers, florists, photographers, videographers, calligraphers' and other businesses, 'where the government says, look, we don't much care about your religiosity. We just think you have to provide these services for same-sex weddings.'"

So this was about process, not principle. This issue is far from resolved. The Supremes basically made it clear that if someone wants to bring a religious discrimination case, they must do so dispassionately and fairly in order to get a hearing.

Worth noting: On Thursday, June 7, Think Progress posted an article covering Arizona's citation of the Masterpiece Bakeshop ruling to stop a calligraphy shop from declining to write wedding invitations for a same-sex ceremony. Though the judges quoted from Obergefell and the MB ruling to argue that this was not about "expressive conduct," the bottom line is this:

"According to the Arizona judges, the ordinance regulates conduct, not speech. And while the decision observes that “words” — as would be written by calligraphers on wedding invitations — would generally be considered speech, “the case before us is one of a blanket refusal of service to the LGBTQ community and not a First Amendment challenge to a specific message requested by a specific customer.”

If actual words are not protected religious speech, it's hard to see how a cake will be. This raises questions about the protection of a variety of conscientious actions from some remarkably different viewpoints.

[A ruling for the cakeshop] also vindicate the Jewish florist who believes it is religiously transgressive to participate in creating floral arrangements for a ceremony in which a Jew was converting to another religion, or for a wedding between a Jew and a member of another religion. Such a ruling would also protect the Muslim website designer who refuses to create sites for pornography; the atheist who refuses to create signs proclaiming “Jesus Christ is Lord and King”; and the cake maker who refuses to express white supremacist and anti-Muslim messages.

If that's truly what a ruling for the cake shop does, one assumes that a ruling against the shop is a ruling against all of these scenarios.

In the posts to follow, I plan to address three unresolved questions, then offer some thoughts about the Christian community's response to this issue.

• First unresolved question: is there a cogent argument that separates discrimination against people vs. discrimination against events or actions? Is it possible to separate participating in certain events or moments in a person's life from rejecting that person in general?
• Second unresolved question (with a bunch of subcategories): Is art speech? Is baking a form of art, and therefore speech? (A group of bakers with a neutral position on the case itself filed an amicus brief claiming it is) If baking a cake is speech, is forcing bakers to bake a cake they believe communicates a message they don't wish to communicate the same as forcing someone to say something not only against their will but in opposition to their conscience? 
• Third unresolved question: Is the argument of those who decline to participate for religious reasons cogent (at least within their worldview)? Are they actually complicit by offering material aid to an event which they believe promotes and celebrates a moral ethic to which they are opposed, or are the Arizona judges correct - selling a good or service is not "expressive conduct" even if the good or service carries an actual message?

Here is the link to Part Two: First Unresolved Question.
Here is a link to Part Three: Second Unresolved Question
Here is the link to Part Four: Third Unresolved Question