Why Masterpiece Cakeshop Deserves to Win

In any nation that aspires to be free, freedoms will clash, and there will be winners and losers. Speeding laws limit the freedom to drive fast in favor of the freedom to drive safely. Theft laws limit the freedom to take things we want in favor of the freedom to keep what’s ours. In the retail setting, antidiscrimination laws limit the freedom to sell selectively in favor of the freedom to buy what we want without being turned away because the seller doesn’t like “our kind of people.”

Soon, the Supreme Court will rule in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (if it hasn’t already by the time this post appears). When it does, it’s likely that one set of freedoms will be protected or expanded, and another set will be limited. Which freedoms should prevail?

Though I’m not a lawyer, several features of the case are clear to me, and they point toward the conclusion that the Court ought to rule in favor of Masterpiece Cakeshop.

1. The case is not about hating anybody; it’s about loving something.

On the social left, it’s now a given that conservative Christians are just using their religion as an excuse to hate gays. Many imply that opposing homosexual conduct, and upholding traditional marriage, are some kind of extremism, as though these haven’t been part of the Christian faith – and all of Western civilization – for hundreds of years (reminds me of “I reject your reality and substitute my own!”).

Yes, some who claim to be Christians do hate homosexuals. The faith itself, though, is distinct from the character of it’s worst claimants. What makes our faith Christian is the Christ who became flesh for love of sinners, in order to forgive and transform them. Hate is inherently anti-Christian.

The Masterpiece case is actually about one believer’s conviction that he must not dishonor the institution of marriage through his work.

2. The case is not about turning away customers; it’s about turning away state compulsion.

Does Masterpiece’s Jack Phillips want the freedom to turn away certain customers or does he want the freedom to reject a newly-invented social institution? His case claims it’s the latter: the right to free speech. The facts of the case support that claim.

Conservative lawyer David French provides helpful perspective.

How does [NY Times contributor Jennifer Finney] distort the case? Let us count the ways. She begins of course by comparing Phillips to the owner of a restaurant who claimed a religious justification for denying service to African Americans. Then she compares him to a doctor who wouldn’t care for a lesbian couple’s baby. She talks about landlords, clinics, and other businesses — all of which could deny services to people “because of who they are.”

… . Phillips isn’t discriminating against a protected class. I’ll repeat this until I’m blue in the face. He serves gay customers.

If a black baker refuses a white customer’s request to design a Confederate-flag cake, he’s not discriminating on the basis of race. He’s refusing to advance a message.

If a police officer’s wife refuses a black customer’s request to design a cake celebrating Assata Shakur, a convicted cop-killer and one of the FBI’s most-wanted terrorists, she’s not discriminating on the basis of race. She’s refusing to advance a message. I could go on all day. (National Review. Stop Misrepresenting Masterpiece Cakeshop.”)

I believe he could go on all day.

Last week’s oral arguments before the court may not have done justice to Masterpiece’s case on this point, but it’s likely that its legal briefs do. Jeff Shafer, of the Alliance Defending Freedom, which represents Phillips in the case, is incisive on what’s truly at issue.

While the existence of social forms and practices that symbolically communicate are human constants, many of the particulars conveying those messages are historically contingent—and at times intensely contextual.

Burning a flag would be just one more kind of fire, in a society without flags in its repertoire of political meaning-markers. But in modern American constitutional jurisprudence, burning a flag can qualify as protected expression under the First Amendment’s speech clause. If the context indicates, so can wearing an armband. Or silently walking in a parade. Or playing the violin. So can refusing to do any of those things: The Supreme Court has found the First Amendment’s protection for individual freedom of mind to shield not only one’s speech, but also refusal to speak. The state may not compel an individual “to utter what’s not in his mind.” (“Masterpiece Wedding Cakes: The Context-Dependence of Meaning,” Jurist.)

Later, he makes the connection to wedding cakes, and raises an important question:

The wedding cake is an institution. It has long been the centerpiece of receptions celebrating the joining of husband and wife… . . It is the object of a symbolic unity ritual that marks and orients the wedding reception. Its image represents and honors new nuptial union.

When that iconic cake is relocated to celebrate a same-sex relationship, the expressive alteration is severe.

… . These messages Jack Phillips knows to be sacrilege, and his participation in the custom design of the sculpture that represents and ratifies those claims is morally forbidden him. Yet his adversaries assert that he faces no such predicament. The ACLU (representing the male couple joining the state in suing Jack in this case) dully describes the government coercion of his artistry on behalf of a celebration representing the renovation of marriage and family as merely requiring he sell “the very same product” he would design for husband-wife ceremonies. The very same?

They are not the same: “Messages — be they symbolic, spoken, written — yield their meaning through complex engagement with the features of spatial, cultural, and narrative environments.”

In the oral arguments, Colorado’s Frederick Yarger labored mightily to keep the issue framed in terms of turning away customers rather than affirming a message. At times, he faltered.

MR. YARGER: Well, Your Honor, again, it — it — the decision by this bakery was it wouldn’t sell any product -­

JUSTICE ALITO: No -­

MR. YARGER: — of any kind, not even when the same -­

JUSTICE ALITO: — that’s not right, Mr. Yarger. It’s a disturbing feature of your brief because this case was decided on summary judgment, and, therefore, you have to view the facts in the light most favorable to Mr. Phillips. And the only thing he admitted and what was said in the undisputed — the list of undisputed facts was he would not create — he was very careful to use the word “create.” Is that wrong?

MR. YARGER: That’s not incorrect, Your Honor. What — what he has said is that all of his wedding cakes are custom-made. And so what he said is that he would have a right to refuse that service to anyone whose identity in his view means that the message has changed. And he does not want to sell it to them.

It would be akin to a -­

JUSTICE ALITO: And we have a history of — in the questioning by — of Petitioners’ counsel, we explored the line between speech and non-speech, but as I understand your position, it would be the same if what was involved here were words. Am I wrong? If he would put a particular form of words on a wedding cake, on a cake for one customer, he has to put the same form of words, the same exact words, on a wedding cake for any other customer, regardless of the context?

MR. YARGER: That’s — that’s right … (Official Transcript, pp. 68-70)

We all know that context determines meaning, and with this admission, Yarger revealed that his case depends largely on a denial of the obvious.

3. The case is not about what Christians ought to do; it’s about what the government ought not to be permitted to do.

Shouldn’t Christian retailers just let buyers have what they want, regardless? Shouldn’t we accept them as they are as we try to reach them for Christ? Shouldn’t we stop trying to litigate these conflicts?

This perspective is flawed on three counts.

First, believers are called to a comprehensively Christian way of life, not just to reaching people. How our public policy efforts are perceived by the unbelieving is important, but we’re not free to tie off a portion of our lives and put it outside the Lordship of Christ. Since marriage is God’s invention, and His word attaches great importance to it, we can’t casually disregard it. A compelling case would have to be made to justify doing work that affirms an anti-Christian view of marriage.

Second, the question of what’s wrong is distinct from the question of what ought to be illegal. It’s wrong to covet, but should covetousness be illegal? People shouldn’t lie, but should the government regulate all forms of dishonesty? Examples could be multiplied. Regardless of whether Phillips ought to refrain from making cakes for gay weddings, the government ought not to require him to do so.

Finally, God has instituted “the governing authorities” (Rom. 13:1) precisely because He cares what the citizens of nations are allowed and not allowed to do (1 Pet. 2:13-14). Conduct matters, even for the lost, and public policy is neither unimportant nor neutral for Christians. Further, in a republic, the “governing authority” is the law, and the government itself is subject to it. So God also cares what government is allowed and not allowed to do.

It ought not to allowed to force anyone to create a symbol that affirms what the maker doesn’t truly believe.

Once again, David French:

There is no slippery slope between Masterpiece Cakeshop and segregated lunch counters. There is no ambiguity as to whether the design of the cake in this case communicated a message. The Supreme Court can, in fact, rule in favor of Jack Phillips without doing the slightest bit of harm to generations of civil-rights case law. In fact, it can explicitly reaffirm its rulings in those cases at the same time that it defends free speech. It’s that simple. It cannot, however, rule against Phillips without committing an act of judicial violence against both the First Amendment and common sense. (“George Will Is Wrong about Masterpiece Cakeshop,” National Review.)

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There are 12 Comments

TylerR's picture

Editor

Ideally, Aaron, what do you think ought to be done, to recognize and enforce the principle of soul liberty for all faiths and all people while, at the same time, drawing a legitimate line in the sand against wickedness and evil? It seems to me we cannot do this, unless we have a self-conscious moral foundation. In our secular age, that presupposition isn't allowed to stand in public, so what on earth should we do? This is why, I believe, Justice Breyer said he "can't think of a way to do it" during oral arguments last week.

In my article yesterday, I briefly mentioned Os Guinness' book The Global Public Square, where he argued for soul liberty as the the key for freedom in the 21st century. I plan to red the book soon. I've pondered and puzzled over this for a while.

Tyler is a pastor in Olympia, WA and an Investigations Manager with a Washington State agency. He's the author of the book What's It Mean to Be a Baptist?

Bert Perry's picture

...is the old libertarian saw that my right to swing my arm around ends where your nose begins.  I believe, though, that I'm a hopeless Polyanna to think that our country might once again be so sensible, sad to say.

Aspiring to be a stick in the mud.

Aaron Blumer's picture

EditorAdmin

TylerR wrote:

Ideally, Aaron, what do you think ought to be done, to recognize and enforce the principle of soul liberty for all faiths and all people while, at the same time, drawing a legitimate line in the sand against wickedness and evil? It seems to me we cannot do this, unless we have a self-conscious moral foundation. In our secular age, that presupposition isn't allowed to stand in public, so what on earth should we do? This is why, I believe, Justice Breyer said he "can't think of a way to do it" during oral arguments last week.

In my article yesterday, I briefly mentioned Os Guinness' book The Global Public Square, where he argued for soul liberty as the the key for freedom in the 21st century. I plan to red the book soon. I've pondered and puzzled over this for a while.

I'm not sure how to answer your question, mostly because I don't know what you mean by soul liberty. Is this different from just plain old liberty?

Maybe this is in the right neighborhood: A society can't ultimately restrain evil adequately from the outside and preserve freedom. Without inner constraints, people push boundaries so much that external authority ends up taking away all their freedom. This is what happens in an individual level when we lock people in jail. I've said before that I think what we're seeing in our times is gradual erosion of inner constraints (what the founding fathers called virtue) with the result that more and more external enforcement is necessary, resulting in less and less freedom. But that's an oversimplification. We actually have less crime than in the 1990's and way less than in the 70's. But we also have far more efficient law enforcement. Hard to say what crime rates would be like with prevention efforts at the same level they were in the 70's.

Anyway, I'm convinced that there can't be enduring freedom unless people have strong moral convictions that result in self restraint... otherwise, there has to be external restraint.

Is that in the ballpark of what you're talking about?

As for identity and protected classes vs. freedom of speech, these are going to keep clashing, but in this particular case I don't think there should be any mystery about which should prevail. To me, avoiding government-compelled expression should win against extended complex applications of civil rights law, hands down.

TylerR's picture

Editor

No, I'm talking about the freedom of conscience to do what you believe is right (i.e. the Baptist distinctive), whoever you are.

Tyler is a pastor in Olympia, WA and an Investigations Manager with a Washington State agency. He's the author of the book What's It Mean to Be a Baptist?

Aaron Blumer's picture

EditorAdmin

The way you're defining it, all liberty is soul liberty -- in the sense of not being prevented from doing what you choose. But all liberty of action is limited because agendas and desires clash. To put it in terms of conscience, what my conscience tells me is right may violate the freedom of someone else to do what they believe is right. This happens for a lot of reasons, but one of the biggest is that the conscience is often wrong.

As an example, a woman sincerely believes that the baby she has conceived as a result of a rape will have a horrible life because the circumstances, and so she thinks it's right to abort the baby. But the baby's freedom to live is erased by that.

Joseph Fletcher, back in the 60's tried to argue that loving ends justify means -- including many means most of us would see as wrong. The kernel of truth, or one of them, is that when people do what they believe is loving, they are also doing what they believe is right. There's alot to be said for that, but they can actually do harm that way and violate the rights of others. (And some things are wrong regardless of outcomes.)

So I'm not seeing how the soul liberty concept helps in general or in this particular case.

TylerR's picture

Editor

This is the great trap. We must appeal to an objective moral standard to draw lines in the sand. But, a secular society like ours is unwilling and unable to appeal to such a standard. Thus, we have a morass of subjectivism. This is the problem the Court is facing. It doesn't know how to legislate with a secular worldview, because there is no objective truth, and it isn't "proper" to appeal to a Christian one for guidance. 

Basically, there is no solution, from their point of view. This case is unwinnable.  

Tyler is a pastor in Olympia, WA and an Investigations Manager with a Washington State agency. He's the author of the book What's It Mean to Be a Baptist?

Aaron Blumer's picture

EditorAdmin

No, for the Court it's just one more of the many places where one liberty bumps up against another. If they do their jobs right, what they have to work with is the Constitution and legal precedent and try to get those in harmony and decide what has to yield to what -- what should be priority.

On your larger point, though, I more agree than disagree. We are a culture that has lost its center. The argument has been made that enlightened self-interest is sufficient basis for a reasonably good moral code. I don't know if common grace goes that far or not. But pre-Christian cultures found ways to form relatively just societies without authoritative revelation to draw from. In the end, all our human governments/societies/cultures are only more or less just, but the Christian worldview served the West well for several centuries. Whether we'll just slowly fall apart now remains to be seen.

What seems to be happening in the West now is that a new cultural center is indeed forming, but it has two problems from our point of view: (1) It is increasingly hostile toward Christian sexual morality and (2) it seems to derive mostly from the mood of the masses. It's a very mushy center. But our society definitely strongly believes in some things and they're not all bad, though they seem untethered to anything solid. The recent movement to out anybody and everybody who has ever been accused of any kind of sexual misconduct in a professional setting is a recent example. As a society we continue to believe in non-violence, though selectively in the case of abortion.

So, Bork was undoubtedly right that we are "slouching towards Gomorrah," but mercifully, we are not quite there yet. Sodom and Gomorrah were both sexually libertine and oppressively violent societies.

TylerR's picture

Editor

I'm about 60% finished with Os Guinness' The Global Public Square. It's excellent, and speaks directly to this issue. I'll write a review of it in a few weeks.

Tyler is a pastor in Olympia, WA and an Investigations Manager with a Washington State agency. He's the author of the book What's It Mean to Be a Baptist?

Jay's picture

Al Mohler has released a new eBook on this topic as well, called "The Gathering Storm".  You can download it for free from his website (on the right hand side - registration is required).  I got my copy this evening and want to start reading it this week.

"Our task today is to tell people — who no longer know what sin is...no longer see themselves as sinners, and no longer have room for these categories — that Christ died for sins of which they do not think they’re guilty." - David Wells

Aaron Blumer's picture

EditorAdmin

Colorado’s “Half-baked” Decision: The Masterpiece Cakeshop Case

Masterpiece Cakeshop: The Slope Is, in Fact, Slippery

The second one makes the argument against Colorado's case, not on the grounds of freedom of speech vs. freedom from discrimination, but on the grounds of public vs. private. Excerpt:

It is not the case that discrimination is discrimination is discrimination. Telling a black man that he may not work in your bank because he is black is in reality a very different thing from telling a gay couple that you’d be happy to sell them cupcakes or cookies or pecan pies but you do not bake cakes for same-sex weddings — however much the principle of the thing may seem superficially similar. If the public sphere is infinite, then the private sphere does not exist, and neither does private life.

Jay's picture

One from Ross Dauthat at the NYT:

As a conservative Catholic who works in a liberal milieu, I watched this happen after Obergefell v. Hodges. For its opponents, the same-sex marriage ruling was less frightening for what it did than for what they feared might follow: not just legal same-sex nuptials, but a sweeping legal campaign against the sexual revolution’s dissidents, in which conservative believers would be prodded out of various occupations, while their schools and hospitals and charities would be fined and taxed and regulated and de-accredited to death.

And liberals who felt ascendant in the Obama years simply couldn’t accept this fear as something to be managed and assuaged; to them, it was either ridiculous alarmism or a cloak for bigotry. So while the Obama White House was requiring nuns to pay for abortifacients and the A.C.L.U. was suing Catholic hospitals for not performing sterilizations and state bureaucrats were trying to punish a handful of Christians in the wedding industry, what Rod Dreher called “the law of merited impossibility” dominated the liberal mind: Religious conservatives were worrying about attacks on their institutions that would never arrive, and when the attacks did arrive they obviously deserved it.

Which in turn encouraged religious conservatives to vote rather desperately for a celebrity strongman named Donald Trump. 

And one from Andrew Sullivan, a pro-gay marriage proponent, in New York Magazine:

Which is why I think it was a prudential mistake to sue the baker. Live and let live would have been a far better response. The baker’s religious convictions are not trivial or obviously in bad faith, which means to say he is not just suddenly citing them solely when it comes to catering to gays. His fundamentalism makes him refuse to make even Halloween cakes, for Pete’s sake. More to the point, he has said he would provide any form of custom-designed cakes for gay couples — a birthday cake, for example — except for one designed for a specific celebration that he has religious objections to. And those religious convictions cannot be dismissed as arbitrary (even if you find them absurd). Opposition to same-sex marriage has been an uncontested pillar of every major world religion for aeons.

And so, if there are alternative solutions, like finding another baker, why force the point? Why take up arms to coerce someone when you can easily let him be — and still celebrate your wedding? That is particularly the case when much of the argument for marriage equality was that it would not force anyone outside that marriage to approve or disapprove of it. One reason we won that debate is because many straight people simply said to themselves, “How does someone else’s marriage affect me?” and decided on those grounds to support or acquiesce to such a deep social change. It seems grotesquely disingenuous now for the marriage-equality movement to bait and switch on that core “live and let live” argument. And it seems deeply insensitive and intolerant to force the clear losers in a culture war into not just defeat but personal humiliation.

Nonetheless, here we are. And it is a hard case constitutionally. It pits religious and artistic freedom against civil equality and nondiscrimination. Anyone on either side who claims this is an easy call are fanatics of one kind or other. I’m deeply conflicted. I worry that a decision that endorses religious freedom could effectively nullify a large swathe of antidiscrimination legislation — and have a feeling that Scalia, for example, would have backed the gays in this case on those grounds alone. Equally, I worry that a ruling that backs the right of the state to coerce someone into doing something that violates their religious conscience will also have terrible consequences. A law that controls an individual’s conscience violates a core liberal idea. It smacks of authoritarianism and of a contempt for religious faith. It feels downright anti-American to me.

"Our task today is to tell people — who no longer know what sin is...no longer see themselves as sinners, and no longer have room for these categories — that Christ died for sins of which they do not think they’re guilty." - David Wells

Jim's picture

https://www.bloomberg.com/view/articles/2017-12-29/13-things-to-look-for...

By a vote of 6-3, the U.S. Supreme Court will decide the Masterpiece Cakeshop case against the baker who is violating Colorado law by refusing on religious grounds to custom design a cake for a same-sex wedding. Justice Anthony Kennedy, writing for the majority, will quote liberally from the late Justice Antonin Scalia’s opinion in Employment Division v. Smith(1990), which denied a request for a religious exemption to drug laws -- a decision that President Bill Clinton and Vice President Al Gore tried hard to overturn. Justice Neil Gorsuch will author the principal dissent.

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