Yesterday the Supreme Court ruled, in a surprising 7-2 decision, that the Colorado Civil Rights Commission had displayed anti-religious bias when it ruled against baker Jack Phillips.
The Court, notably, did not issue a ruling that would set a precedent on the issue of whether religious business-people can deny certain services to homosexual couples. All they did was say that, in Jack Phillips specific case, the lower court screwed up. So, they saved Masterpiece Cakeshop’s butt.
But they didn’t make a definitive statement on whether Jack Phillips had a legal right to do what he did in that case.
In other words, the gay cakes debate is back on, folks! And it’s as flamin’ hot as you’d expect.
As you may or may not remember, Jack Phillips is the owner of Masterpiece Cakeshop. He was one of several American bakers who, because of firmly-held Christian beliefs, declined to bake a custom wedding cake for a gay wedding. As a result of his decision, Phillips was sued by his erstwhile customers.
It’s crucial to understand the details of this case as well. At no point in his exchange with the two men who wanted a custom cake did Phillips use any slurs. He never showed them any hostility. In fact, he even offered to design custom cakes for other occasions, and offered to sell them any other pre-made item in his shop. But, he politely refused to bake a custom cake to celebrate their same-sex marriage.
Afterwards, Jack Phillips started receiving threatening phone calls, usually involving verbal harassment. The couple who had tried to buy a cake from him filed a complaint with the Colorado Civil Rights Commission, claiming sexual orientation discrimination.
Phillips was represented by lawyers from the Alliance Defending Freedom, and he and his lawyers fought the complaint before the commission. They said that Phillips had no problem with the people themselves, but that he didn’t want to make the cake because it would send a message about marriage that he could not condone.
In effect, Phillips and his lawyers argued that cake-making is a form of speech, and even protected speech, under the First Amendment.
An administrative law judge on the Colorado Civil Rights Commission ruled against Phillips in December of 2013, saying that designing and creating cakes is not a form of speech protected by the First Amendment (which is probably true, for what it’s worth, but largely beside the point).
The commission ordered Jack Phillips and his staff to choose between designing wedding cakes for gay marriages as well as straight ones, or otherwise stop designing wedding cakes at all.
As anyone who has ever worked in a custom bakery knows, wedding cakes are a major part of a cake-making business. Wedding cakes were, in fact, about 40% of Jack Phillips’ business. Refraining from making wedding cakes would probably have forced Masterpiece Cakeshop out of business.
In addition to being forced by the government to choose between staying in business or sticking to the principles of his faith, Phillips and his staff were ordered to undergo a “re-education” program and file quarterly “compliance reports” with the government. These reports were supposed to detail every instance in which Masterpiece Cakeshop declined a custom cake request, and explaining why.
That ought to horrify you, whether you agree with Jack Phillips’ beliefs or not. The idea of the government requiring a check in every few months from a business to ensure that their arbitrary idea of social justice is being met, ought to terrify you.
And it ought to terrify you because the government’s idea about what is “right” can change, a lot, depending on the political trends of the moment. This is why giving the government the ability to compel people to do things is bad. Because, yeah, you might agree that the government should be compelling people to be nice, and tolerate others, and bake the damn cake. But you might not think that, who knows.
And the fact is that in ten years, people who believe the opposite are probably going to be in power. And they’re going to have the same toolkit available to them with which to force their ideas of “good behavior” onto you.
The speech issue aside (because it’s patently ridiculous, baking a cake is not “free speech” no matter what the ADF says), there’s a real problem here with what the government is allowed to force people to do. That’s the real issue at stake; can Uncle Sam make you do something which goes against your most deeply held beliefs.
Historically, the answer is “it depends”.
To talk about when and how and why would require a much longer article, and a discourse on individual rights that would probably bore you to death.
So suffice it to say, in general, on the topic of religious beliefs, the government has usually allowed people to refrain from doing things that go against their beliefs when those things are of little consequence, or a part of a widely held and “legitimate” religion.
So, you don’t have to say the Pledge if you’re a Jehova’s Witness. You don’t have to register for the draft if you’re a Mennonite, though you must do some other form of work for the state to serve your time instead. You can smoke peyote if you’re a Native American who follows a religion which requires it in certain ceremonies, but you can’t sell it for non-religious uses.
But what if your religion says its a sin to pay taxes? What if your religion demands you exercise violent revolt against the principalities of man? In cases like those, the government usually has a compelling interest to disallow you from fully following your religion.
Although it’s obvious why the Supreme Court wanted to avoid making a definitive judgment on compelled behavior like that in the Masterpiece Cakeshop case, such a judgment needs to be made.
The question still hovers in the air in America. Will people of faith be forced to meet advances in homosexual rights not only with acceptance, but with celebration? Will American Christians be forced by the state to choose between abandoning their long-held views on sexuality and the family, or facing legal and financial ruin?
Or will the right to keep one’s conscience clean be allowed to remain in America? What about the right to run and own a business, and contract as you wish with customers of all creeds, genders, races, and sexualities according to your own beliefs?
The Supreme Court has left that crucial question unanswered. One can only hope they remedy that situation soon. Americans must know whether they still live in America as it ought to be, or in a reverse-theocracy where compulsory “re-education” and “compliance reports” will soon become the norm.