Oral argument has started on the Masterpiece Cake Shop Supreme Court Case, widely viewed as the most important LGBTQ rights case since Obergefell, or a fundamentally important religious rights cases, or even as purely a case about freedom of expression, all depending on who you ask. The case is centered around the refusal of a Colorado baker to supply the wedding cake for a same sex wedding in 2012 due to religious objections, leading to penalties from the state of Colorado and a series of appeals up the ladder to the Supreme Court.
He maintains he has a right to refuse to participate and offer the use of his craft in the event, just as he would to refuse to cater to a fundraiser for the Communist Party
The position of Jack Phillips, the baker, is interestingly enough not centrally one of religious liberty, but one of compelled speech. Phillips contends that he does not discriminate against individuals based on any criteria, simply that he cannot in good conscience lend his art to a ceremony to which he deeply objects. He finds the order of the Colorado Civil Rights Commission, forbidding discrimination based on sexual orientation, unjust and claims it is unlawful in this specific instance, not because he finds it necessary to discriminate against individuals to fulfill his religious beliefs, but because he maintains he has a right to refuse to participate and offer the use of his craft in the event, just as he would to refuse to cater to a fundraiser for the Communist Party or bake a penis shaped cake; Phillips argues that an order by the government forcing him to participate in the event constitutes compelled speech.
A wedding is not a political statement
In this light the issue is no longer about whether an individual is allowed to discriminate based on sexual orientation or whether the government can outlaw such discrimination, similarly to prohibitions against racial and gender discrimination, but whether or not the behavior of Jack Phillips can be defined as discrimination at all. After all the cake shop claims to serve all who enter regardless of identity, and there would be no issue at all if, for example, they had simply declined to bake a rainbow cake while offering any other choice, just like they are allowed to refuse to bake a cake with a swastika or for a Planned Parenthood fundraiser. An interesting comparison would be if two Black Lives Matter activists had requested the shop lend its services to their event: while racial discrimination is not allowed under federal law, it would almost certainly be legal for the bakery to refuse to make the political statement that BLM represents if they objected to it. Of course, a wedding is not a political statement, and herein lies the problem with Jack Phillips’ case.
The issue arises when the event in question has been consistently suppressed and the participants oppressed politically, culturally and violently for centuries, as it is undeniable that same sex weddings and LGBTQ people have. A better comparison than the BLM event would be a Civil Rights gathering or, closer still, an interracial marriage: a baker would likely not deny service to the black groom or the white bride individually, but may hold a deeply held objection to their union, be it religious, political, or a deep rooted hatred for checkers; whatever the reason may be, to refuse to be involved in their wedding based on racial objections is prohibited, not because the couple would have no alternatives to receive the same service in Colorado, but because such attitudes have been so prevalent and destructive in the past that to truly overcome their consequences in the long term, we must be willing and able to prevent them in the short term. If Klansmen want to march in the street they are constitutionally free to do so, and we should celebrate this fact, but they also must serve a black client at their diner and sell flowers to the gay groom on his wedding day at their flower shop.
I strongly believe that losers have a right to complain, but…
I sympathize with Jack Phillips in this case: I strongly believe that losers, as he and all opponents of gay marriage became after June 2015, have a right to complain and to protest, but he has the necessity to repair a long history of violent oppression working against him.
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