What’s at Stake in the Cake Case

A very important religious liberty and free speech case will be argued before the United States Supreme Court tomorrow. It involves a wedding cake artist, Jack Phillips, who does business in Colorado under the name Masterpiece Cakes. This decision will go a long way to determining how much freedom we will have to dissent from the current cultural orthodoxy — and not just on issues of “gay rights”.

A few years ago, before same-sex “marriage” was legalized in Colorado, Mr. Phillips was approached by two men who were planning a “wedding” in another state, and wanted to have a reception in Colorado. They asked him to bake and decorate a custom wedding cake for them. Mr. Phillips declined, citing his Christian faith and his beliefs about the true nature of marriage, and said that he could not use his artistic talent to promote an event that was contrary to his faith. The State of Colorado, acting through its Civil Rights Commission, took a dim view of Mr. Phillips’ religious objection and ruled that the state’s “public accommodation” law prohibited him from discriminating against a customer on the basis of sexual orientation.

The case has now been appealed through the courts and has now reached the Supreme Court. Mr. Phillips has two main arguments. First, he is arguing that being forced to decorate the wedding cake violates his First Amendment rights to free exercise of religion by requiring him to participate in an event that is contrary to his faith (the “wedding” reception). His second argument is based on the premise that his artistic cake decorations are a form of speech, so he should not be coerced into saying something that he does not wish to say (that this relationship is in fact a “marriage”).  Colorado is countering by denying that cake decorating is a form of speech or expressive conduct, and by contending that the state’s interest in eliminating discrimination outweighs Mr. Phillips’ right to free exercise of religion.

Our mainstream culture has adopted the notion that gay rights should trump all other legal interests. It holds that “error has no rights” when it comes to the newly-minted notion of same-sex “marriage”, and any dissident is a bigot with no rights bound to be respected by enlightened folk. The advocates for these views have been very busy whipping up fear and loathing and  predicting all sorts of deplorable consequences if Mr. Phillips wins. They have also been misrepresenting what the law actually is, and substituting their “wishful thinking” theory of what they want the law to be.

The Supreme Court’s prior rulings on the Free Exercise and Free Speech Clauses of the First Amendment make it clear that the government cannot easily impose laws upon people when they pose a serious conflict with the person’s religious beliefs or when they suppress their speech.  In other words, when a person claims a religious exemption or a free speech protection they are not breaking the law — they are merely asserting their basic human and constitutional rights.  If the government or a private party fails to recognize those rights, they are the ones who are breaking the law, not the religious believer.

Examples abound in both speech and religion cases, such as the Supreme Court ruling that upheld the right of Jehovah Witnesses to refuse to recite the Pledge of Allegiance. In that case, the Court made a famous statement of principle: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” In another case involving the right to say things that people found offensive, the Court said, “the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense”.

Cases happen all the time that involve conflicts between free speech and religious freedom rights against other legal interests of the government or private parties. Every state and the federal government has a law that requires employers to give reasonable accommodations to employees if their work conditions violate their religious beliefs. The recent Supreme Court decisions in the challenges to the HHS Mandate (principally the Hobby Lobby case in 2014) affirmed the idea that burdens on a person’s religious belief can warrant an exemption from the law. In recent years the Supreme Court has also upheld a church’s ability to hire and fire its ministers, the right of a prisoner to grow a beard required by his faith, and the right of a prospective employee to wear a head covering mandated by her faith. In the lower courts, there have been hundreds of lawsuits where employers are required to recognize religious holidays or clothing, cities are banned from restricting street-corner evangelists, schools are prevented from closing religious clubs or newspapers, etc. There have been numerous free speech cases that carefully protected people’s right to express themselves without government censorship.

The current law has certain characteristics that we need to understand if we are to appreciate the Cake Case and to separate the wheat from the chaff in the opinions of pundits and commentators:

  • The law requires judges to actually judge, and make fact-based case-by-case evaluations.There’s no blanket rule favoring anyone. So the claim by advocates that a ruling for Mr. Phillips will create a universal “get out of the law free card” for religious believers shows a complete lack of faith in our court system to do its job. It’s also not supported by any evidence that religious liberty or free speech claims win every case — in fact, the studies show quite the contrary.
  • It rejects the “tough luck” approach under which the religious person automatically always loses. Enemies of religion may wish it were otherwise, but the law has long recognized that there actually is some legitimacy to religious beliefs and that they occasionally have to be protected. In fact, studies show that in recent years that religious liberty plaintiffs win about half of the cases that are brought claiming a violation of the Religious Freedom Restoration Act and three-quarters of free speech cases. Legislatures also routinely grant religious exemptions. The sky has not yet fallen.
  • It protects against slippery slopes. Back to our original principle — our current law relies on judges being judges and making sensible distinctions between cases and to apply the rules sensibly. There has been no outpouring of religious liberty cases or massive instances of nullification of generally applicable laws. The study noted above found that there has been no significant change in the way the law is applied since the Hobby Lobby case in 2014, which upheld the religious freedom of a family business to refuse to comply with the HHS Mandate.
  • It does not require you give up your religious freedom by engaging in business. This has been settled law for decades. The Supreme Court in Hobby Lobby implicitly recognized it just a couple of years ago. In an earlier case, the court said: “It is well settled that a speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.” Being in business doesn’t mean that Mr. Phillips suddenly became a second-class citizen.
  • It recognizes and protects against objections based on insincere religious beliefs. Such claims will inevitably happen. But again, the law trusts that judges will actually judge and discern which claims are legitimate and which are frivolous. Judges have been doing this for many years, and there’s no reason to believe that they will suddenly lose that ability if Mr. Phillips prevails.
  • It will not silence people’s speech just because somebody else is offended or it hurts their dignity. This is also well-established law. Our right to free speech does not stop when others’ sensibilities come into play. The Supreme Court has consistently upheld the right to “offensive speech”, including the right of Nazis to march in a Jewish neighborhood, the KKK to burn a cross, and a fringe anti-gay group to protest at soldiers’ funerals. The risk of hurt feelings is a price of freedom. Plus, why does the dignity of the gay couple have more legal weight than Mr. Phillips’ dignity and integrity?

Our nation was built on the notion of the inherent rights of individuals to live free from undue government control. That freedom applies to all sorts of people, including and especially those whose opinions are not favored by the majority and powerful. Mr. Phillips is defending his ability to make his cakes and decorate them as he pleases. Even those who disagree with him should defend that right.

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