The Lakewood baker who refused to bake a wedding cake for a gay couple in 2012 is not the victim in a case that this week was accepted by the U.S. Supreme Court for consideration.
Charlie Craig and David Mullins were planning for the happiest day of their lives when, unbeknownst to them, they walked into a bakery owned by a person harboring such prejudice against same-sex couples he refused to bake them a cake. They are the victims who suffered the real harm of discrimination, not the other way around.
We hope the U.S. Supreme Court — including its newest justice, Neil Gorsuch — can weigh the facts in this case to find that a cake shop that sells wedding cakes must sell those cakes to everyone. To do otherwise would be to weaken public accommodation and employment laws across the nation that protect people daily from the possible discriminatory practices of the owners of businesses, renters of apartments, sellers of homes, and employers.
Regardless of Masterpiece Cakeshop owner Jack Phillips’ justification for his prejudice — he says same-sex marriage conflicts with his religious beliefs — it is still discrimination. Phillips is seeking protection for his discriminatory practices based in large part on First Amendment protections to speech. He’s saying his cakes are expressive and therefore he cannot be compelled by the state to express something with which he disagrees on a religious basis, in this case a celebration of a gay marriage.
Here’s where that argument falls apart.
Phillips must argue it is the cake itself — not the decorations or words written in icing — that is his expression. Phillips denied the couple service before a conversation was ever held about what they would want their wedding cake to look like. It’s the combining of flour, sugar and eggs that must be the expression, and Phillips said he cannot in good Christian conscience allow his cake to express itself at a gay wedding.
In a similar vein, one would expect Phillips then to be equally as unwilling to provide chocolate chip cookies to a gay couple’s anniversary party because it was an expression of celebration against his religious beliefs.
Let’s look at a related, though hypothetical, scenario.
Say an artist who advertised his services to the public as a painter of commissioned works refused his services to an interracial couple because interracial marriages violated his religious beliefs. Say he denied the services before discussing what the painting would be of, but only that it would be a gift for the couple’s anniversary.
In both cases it seems clear to us that the product for sale is far less expression than it is a tangible good — paint on canvas and icing on a cake. Neither product is for public display beyond the wedding venue or a private home, nor do the products necessarily contain an overt expression of opinion or belief that the maker would be forced to participate in. Refusal of service would be based on who the customers are, not the content of the expression they wish to acquire, and that is discrimination.
Should the high court rule in Phillips’ favor, the justices will have opened an ungodly Pandora’s box of adverse consequences across the land.
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