Last week the U.S. Supreme Court heard oral arguments in the case known as Masterpiece Cakeshop, Ltd., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins. Phillips is the Lakewood, Colorado, baker who, citing religious reasons, refused in 2012 to make a wedding cake for Craig and Mullins, a same-sex couple.
So far, Craig and Mullins have been winning. When they took their case to the Colorado Civil Rights Commission, it ruled that when a baker refuses to sell a wedding cake to a couple because they’re gay, it amounts to an illegal refusal of service by a public accommodation on the basis of sexual orientation. Phillips, an evangelical Christian, took the case to the Colorado Court of Appeals, which in 2015 unanimously affirmed the commission’s ruling. This June, after the Colorado Supreme Court chose not to review the case, the U.S. Supreme Court agreed to hear it, apparently because of one detail of Phillip’s defense: he said that his refusal was not an act of discrimination – he would’ve been glad to bake, say, a birthday cake for the couple – but he didn’t want to bake a wedding cake for them, because that would have felt to him like an implicit endorsement of something he found morally objectionable.
The most commonly heard argument for Phillips is that the First Amendment, by guaranteeing his freedom of religion, also guarantees his right to turn down any job that would involve him in an activity that is at odds with his religious beliefs. This argument doesn’t work for me, because my first reaction to it is to picture a devout Muslim doctor presented with the case of a gay or Jew or Muslim apostate who’s on the verge of death and whose life he, the doctor, is in a position to save. Let’s say the doctor, aware that Islam commands him to kill such people, not save them, allows the patient to die. Does he have First Amendment religious protections on his side?
Twenty-one years ago I edited an influential book of essays entitled Beyond Queer: Challenging Gay Left Orthodoxy, which sought to stake out alternatives to the lockstep far-left positions on various subjects – marriage, religion, family, etc. – that dominated the gay-rights movement at the time. Many of the conservatives, moderates, libertarians, and classical liberals who contributed to Beyond Queer were early proponents of same-sex marriage at a time when the queer left regarded the very idea as a vile capitulation to straight, conservative values. Only later, when they realized that most gays wanted the right to marry, did the gay left change its tune. Now it’s the same gay left, which once despised gay marriage, that is out gunning for those, like Jack Phillips, who have moral misgivings about it.
Several of my old BQ confrères have weighed in on the cake case. They’re split. BQ contributor Dale Carpenter, who teaches law at SMU, has joined with Eugene Volokh (a heterosexual UCLA prof whom I know only by reputation) in writing a brief supporting Craig and Mullins. While acknowledging that a “freelance writer cannot be punished for refusing to write press releases for the Church of Scientology” and “a photographer…should not be punished for choosing not to create photographs celebrating a same-sex wedding,” Carpenter and Volokh distinguish between these actions and cake-making. Writing a press release, they contend, is a speech act; making a cake is not. “A chef, however brilliant, cannot claim a Free Speech clause right not to serve certain people at his restaurant, even if his dishes look stunning,” they write. “The same is true for bakers.”
