What’s an evangelical Christian baker to do when asked to design and decorate a custom cake for a gay wedding? If he complies, he violates his religious objections to same-sex marriage. If he refuses, he’s prosecuted for violating the public accommodation laws. So his mom-and-pop bakeshop has to stop making wedding cakes altogether, at the expense of nearly half their business.
Phillips explained in his deposition, “I do not create wedding cakes for same-sex weddings because of my religious beliefs, and also stated that Colorado does not allow same-sex marriages [as was the case in 2012].
“As a follower of Jesus, and as a man who desires to be obedient to the teachings of the Bible, I believe that to create a wedding cake for an event that celebrates something that goes directly against the teachings of the Bible would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.
“I would be pleased to create any other cakes or baked goods for Charlie and David, or any other same-sex couples.”
Charlie and Dave’s deposition states that they left the store and cried. A campaign of hostile phone calls and picketing followed.
The couple filed a complaint with the Colorado Civil Rights Commission, which found that Phillips had violated the public accommodation laws that prohibit withholding goods and services based on sexual orientation. “Freedom of religion used to justify discrimination is a despicable piece of rhetoric,” said one of the Commissioners.
The Colorado federal court upheld the ruling, holding that opposition to same-sex marriage “is tantamount to discrimination on the basis of sexual orientation.” The case went to the U.S. Supreme Court, which heard oral argument on December 5th.
The ACLU, representing Dave and Charlie, says this is a straightforward case of a retail business unlawfully refusing to sell a product to persons based on their sexual orientation. They argue that if exceptions to the public accommodation laws are allowed for expressive goods or religious objections, bakeries will deny birthday cakes to black children, architects will refuse to remodel Latino homes and hair salons will “refuse to style the hair of a girl born in Mexico for her quinceañera,” if they oppose Mexican immigration.
But the First Amendment frowns on forcing people to express messages they disagree with, no matter how worthy the message or “despicable” the disagreement. Whether it’s a Jehovah’s Witness compelled to display a license plate saying “Live Free or Die;” a newspaper compelled to give a “right of reply” to political candidates it opposes; a gas company compelled to include a third party’s literature in its gas bills; or a St. Patrick’s Day parade compelled to include the banner of an LGBT advocacy group (Hurley v. Irish-American Gay, Lesbian and Bisexual Group [“GLIB”]), the principle is that the First Amendment prohibits the state from forcing a person to convey a message he objects to. And that objecting to a protected group’s message isn’t the same as discriminating against that group.
In Hurley the Supreme Court unanimously rejected the argument that a parade is merely a recreational activity, so that refusing to include GLIB was the same as a restaurant refusing service because of race. The Court agreed that the parade was subject to the public accommodation law, but also found it to be a form of symbolic expression whose message would be altered against the organizers’ will if they were compelled to include the GLIB message. The First Amendment makes no judgments about the worthiness of the message: no matter how enlightened it is, a speaker can’t be compelled to endorse it.
The ACLU insisted in their brief and at oral argument that Phillips is guilty of refusing to “sell” “baked goods” to Dave and Charlie. As if he were a cashier at the local 7-11 forbidding them to buy an Entenmann’s cake.
But not even Dave and Charlie would deny that a wedding cake isn’t just a baked good, but a traditional symbol of a marriage celebration. Cutting the cake together, feeding it to each other and distributing it to the guests is the couple’s first joint public act as newlyweds, proclaiming their status as a union. Couples often save a piece of their wedding cake for years afterwards, making it a kind of secular relic. Which is why people may pay hundreds or even thousands of dollars for a custom-made wedding cake instead of getting it from the 7-11.
Nor is it accurate to call Phillips’s objection a refusal to “sell.” Given his personal involvement in designing and creating his custom wedding cakes in consultation with the nuptial couple, the cake can reasonably be perceived as expressing his “personal endorsement and participation in the ceremony and relationship that [the couple] is entering into.” That message is completely altered if the ceremony is a same-sex marriage that violates his beliefs. He’s not like a cable company that merely provides a venue for numerous viewpoints and can easily disclaim endorsement of any of them. (Needless to say, the cake with the disclaimer footnote pictured above is imaginary).
So he’s not the same, as Justice Kagan suggested at oral argument, as a hairdresser creating “a wonderful hairdo.” A hairdo, however wonderful, isn’t intended or viewed as conveying a message. Nor is a custom-made wedding cake just something to eat, as Justice Sotomayor opined, asking, “when have we ever given [First Amendment] protection to a food?”
In Obergefell v. Hodges, where the Supreme Court recognized same-sex marriage as a fundamental right, the Court also expressly recognized the First Amendment right not to “condone” it on religious or other grounds. Just as objectors can’t bar same-sex couples from getting married, the advocates of same-sex marriage can’t invoke the power of the State to penalize people who express objections, wrongheaded though they may be.
Discrimination against persons is terrible, but that’s not what this case is about. Phillips, like the Jehovah’s Witness who went to jail rather than drive with a license plate saying “Live Free or Die,” is upholding the right of all of us, of whatever gender, color or religion, not to be compelled to express a message we oppose.
Here’s Phillips’s account: Youtube video
The briefs (including the Cake Artists’ amicus) and oral argument can be found on Scotusblog.