June 7, 2018

SCOTUS Cake Case

Because I hate using all my decent material at an away game, here's a reply I posted on the Book of Faces:

In the SCOTUS case recently decided, the issue is NOT about discrimination against same sex couples. And, as you well know, I'm as big an advocate for same sex marriage as there is... I've supported it going back at LEAST 10 years.

The issue is really about two things: Can the government compel speech, and does the government treat all citizens fairly and with regard for their religious beliefs.

This case is one where the facts often get lost in the rhetoric and emotion, and that's a pity, because facts are really important here.

Fact: The baker did not refuse to sell the couple a cake. He refused to use his artistic ability to write "Congrats, Dave and Joe" on the cake. This is important to note, because we have long held that the written word is protected by freedom of speech.

Thus, the question (that SCOTUS left unanswered) is this: Can the government compel a citizen to write or speak or express words/sentiments the citizen does not believe? Can the government force you to say something you don't want to say? Can they force you to write something you don't want to write? Can they force you to create art you don't want to create?

Can a Jewish baker be compelled to make a cake with "Happy Birthday, Adolf Hitler!"? Can a gay baker be forced to write "Kill the Gays!" on a cake?

I would hope that all freedom loving people would answer that with a resounding "Hell NO!"

The second part, about "does the government treat all citizens fairly and with regard for their religious beliefs" is where the SCOTUS decision focused.

In the majority opinion, Justice Kennedy (who also wrote the majority opinion in Obergefell v Hodges that recognized the legitimacy of same sex marriage) wrote "some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.
No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case."

In other words, the Colorado Commission were openly hostile to the baker's religious beliefs, while at the same time not applying the same standard to other cases brought before it -- the Commission sided with other businesses who refused based on their morals. See, for example, this story:

"...a gentleman named Bill Jack went to another Colorado bakery to demand a cake that was decorated with text opposing same-sex marriage. When the bakery refused, he also filed a complaint. His was rejected, with the CRCC concluding that a bakery couldn't be forced to write messages that it found offensive or objectionable."


So, this isn't about discrimination, but more about the government treating everyone fairly and the compulsion of speech. SCOTUS didn't address the compulsion of speech in this ruling. Only the first part.

Finally, that the baker didn't want to make a custom cake with a message that he does not agree with brings no direct and measurable harm to the two men who wanted the cake (the two men live in the Downing and 17th street area, the cake shop is in Lakewood, some 12 miles away...) In stark contrast, if a surgeon refuses to operate on a patient, it is easy to show direct and proximate harm caused by the surgeon's lack of action.

Personally, I'd like the baker and anyone else who wishes to run their business the same way to be up front and open about it. Put a big sign on the front door: "We don't make same sex wedding cakes." That makes it easier for me to know where to NOT spend my money. That old "May those who love us love us, and those that don't love us, may God turn their ankles so we know them by their limp" thing, ya know?

In the end, however, the CO Civil Rights Commission was openly hostile to the baker because of his religious beliefs. And government can't do that in this country. Nor should they.

1 comment:

Old NFO said...

Well said, and yes, religious freedom IS the bottom line!