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Littwin: if Tolerance is the Issue in the Masterpiece Case, How Could the Same-sex Couple Lose?
A man and a woman walk into a bakery and ask the baker to make them a wedding cake.
The baker asks the couple if they’ve had premarital sex.
The man and woman tell him it’s none of his business.
The baker says his religious beliefs prevent him from using his artistry to make a wedding cake for people who have had sex outside marriage. They can buy brownies or cupcakes or upside down cakes, but unless he knows they haven’t had sex outside marriage, he won’t bake them a wedding cake.
Farfetched? Of course, it’s farfetched. It’s absurd.
A mother and her 13-year-old son walk into a bakery and ask the baker to make them a cake for a bar mitzvah.
The baker says that his religion teaches him that Jews killed Christ. He can’t, therefore, use his artistry to make a cake for them celebrating a Jewish rite, even if the mother and son just want him to do a Rockies-themed cake showing Nolan Arenado making a play at third base. He said he can sell them brownies or cupcakes or upside down cakes.
Farfetched? In my long-ago youth, the whole Christ-killing belief was a thing, and it wouldn’t have been farfetched at all.
Two women walk into a bakery and ask the baker to make them a cake celebrating their daughter’s adoption.
The baker says he’s sorry but his religious beliefs prevent him from using his artistry to bake a cake for same-sex couples who adopt. But he’s happy for the little girl to have a cupcake. Heck, he’ll even give her one on the house.
Farfetched? Not so much. Still absurd, though.
A black man and a white woman walk into a bakery and ask the baker to make them a wedding cake.
The baker says his religion teaches him that miscegenation is a sin and so he can’t use his artistry to make them a wedding cake. He is not a racist, he tells them. He has nothing against anyone from any race or religion, but beliefs are beliefs, and his must be respected. He’s happy to sell them brownies or cupcakes or, hey, how about one of those black-and-white cookies.
Farfetched? Not really. Fifty years ago it was illegal in 16 states for mixed-race couples to marry, just as a few years ago, it was illegal in most states for same-sex couples to marry.
If it sounds like I’m pounding you on the head with this, I apologize. But I just don’t see where the Masterpiece cake case argued today before the Supreme Court is much different from any of the other examples. I’m not an expert on the law, but I know discrimination, like pornography, when I see it. And I understand the concept of public accommodation. It’s the concept that changed the Jim Crow laws in the South.
In the Masterpiece case, baker Jack Phillips refused to make a wedding reception cake for Charlie Craig and David Mullins. This was 2012. Same-sex marriage was not yet legal in Colorado, so they were going to Massachusetts to get married — a marriage that wouldn’t be recognized in Colorado — and come home for the reception. In Colorado, importantly, LGBTQ was a protected class against discrimination.
Mullins and Craig and Craig’s mother walked into Masterpiece Cakeshop with a book of potential designs for the cake. But after 20 seconds — everyone agrees to the timeline — Phillips told them he didn’t make cakes for same-sex weddings. He also doesn’t sell cakes for Halloween or, for that matter, for divorce celebrations, which may or may not be a major issue.
They didn’t discuss a design. It wasn’t about what message would be on the cake. There could have been no message on the cake. It was simply that Phillips wouldn’t make any cake, with any design, for a same-sex wedding because he was religiously opposed. And his artistry, his lawyers would argue, made it a free-speech issue. By making a cake for a reception — regardless of the cake’s message — he would be forced to use his artistic talents to endorse same-sex marriage.
Mullins and Craig took the case to the Colorado Civil Rights Commission, which ruled in their favor. And Phillips, standing up for principle, chose not to make any wedding cakes if it meant he had to make them for same-sex weddings.
I read the transcript of the oral arguments, which seemed to rest on two things. The first was whether making a cake is speech, even a cake with no message on it. The second was the always difficult question of when and how to make exceptions for religious beliefs in the public square.
Phillips says he is an artist, like, say, Picasso. And therefore his freedom of expression is protected. In my view, baking a cake is, well, baking a cake. I’m sure it’s hard. I once made a cake for my wife’s birthday from scratch, and it was a disaster, and I only tried two layers. But artistry? Let’s just say in most museums, the only place to find a cake is in the cafeteria.
As the argument went before the justices, Elena Kagan asked how the artistry in baking a cake differed from the artistry in hair styling or flower arranging or a chef preparing a wedding meal. The list goes on, of course. It’s hard to see how bakers are unique in this instance and why a ruling for Phillips wouldn’t open dozens, maybe hundreds, of similar cases for butchers, bakers and certainly candlestick makers. The question isn’t whether Phillips is a bigot, but whether this case would enable bigotry.
As Stephen Breyer put, it would almost be impossible to write a ruling in favor of Phillips that didn’t “undermine every civil rights law since Year Two.”
From reading the transcript and from reading court observers, it looks like the usual 4-4, liberal-conservative split with Anthony Kennedy set to cast the deciding vote, just as he did in making same-sex marriage legal. Kennedy seemed first to lean toward the gay couple and then toward the baker. Kennedy and others on the court were worried that the Colorado Civil Rights Commission hadn’t been sufficiently tolerant of religious beliefs in its ruling against Phillips.
Is that really where we are? If the issue is tolerance, I just don’t know how the court could rule against a gay couple that wanted nothing more than a cake to celebrate their love.
Photo byTed Eytan via Flickr: Creative Commons
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