By David French
Thursday, November 30, 2017
Forgive me for starting a piece with the oldest cliché in
the practice of law. As the saying goes, “If the law is on your side, pound on
the law. If the facts are on your side, pound on the facts. If neither are on
your side, pound on the table.” In the run-up to the oral arguments in Masterpiece Cakeshop v. Colorado Civil
Rights Commission on December 5, we’re seeing a lot of table-pounding from
the Left. In fact, I’ve never seen a case more mischaracterized in my entire
legal career.
The actual facts of the case are crystal clear. Jack
Phillips, owner of Masterpiece Cakeshop, refused to custom-design a cake to
help celebrate a gay wedding. As a Christian, he finds same-sex unions to be
unbiblical and immoral, and he wasn’t willing to use his artistic talents to
advance a message he holds to be
wrong. In fact, he’d frequently declined to design cakes that advanced messages
he found to be offensive. But he never, ever — not once — discriminated against
any customers on the basis of their identity. He baked cakes for people of all
races, creeds, colors, and sexual orientations.
So why do so many on the left compare him to
segregationists? Why do they use hypotheticals that have nothing to do with the
facts of this case? Today the New York
Times published a perfect example of pound-on-the-table misrepresentations.
It’s by Barnard College professor and Times
contributor Jennifer Finney Boylan. How does she distort the case? Let us count
the ways.
She begins of course by comparing Phillips to the owner
of a restaurant who claimed a religious justification for denying service to
African Americans. Then she compares him to a doctor who wouldn’t care for a
lesbian couple’s baby. She talks about landlords, clinics, and other businesses
— all of which could deny services to people “because of who they are.”
She quotes a law professor (because of course law
professors aren’t above misrepresenting cases) as saying, “We’ve never allowed
a commercial business to justify discrimination against a protected class based
on the First Amendment. We shouldn’t start now.”
Here’s the thing — if the court rules for Phillips, it
wouldn’t be starting now. Phillips isn’t discriminating against a protected
class. I’ll repeat this until I’m blue in the face. He serves gay customers.
If a black baker refuses a white customer’s request to
design a Confederate-flag cake, he’s not discriminating on the basis of race.
He’s refusing to advance a message.
If a police officer’s wife refuses a black customer’s
request to design a cake celebrating Assata Shakur, a convicted cop-killer and
one of the FBI’s most-wanted terrorists, she’s not discriminating on the basis
of race. She’s refusing to advance a message.
I could go on all day. If progressive designers refuse to
design dresses for the Trump women, they’re not discriminating on the basis of
sex. They’re refusing to elevate and help honor a political family they
dislike.
To the extent that Boylan engages with Phillips’s actual
argument, she waves it away with a paragraph so specious that one has to read
it to believe it:
Mr. Phillips certainly makes
nice-looking cakes. But I’m not sure I’d call them artistic expressions, at
least not in the same sense as, say, Joyce’s “Ulysses.” That argument demands
that the court get into the business of defining art itself, a door the
justices open at their peril. Is a well-manicured lawn a form of art by this
definition? How about a lean corned beef sandwich? What would not be art if the
court rules to protect icing and buttercream?
In this case, the complaining gay couple ultimately
decided on a rainbow cake. Can Boylan not see that the cake clearly and
unmistakably sent a specific message? There is a substantial difference between
a rainbow symbol at an event celebrating a same-sex wedding and a corned-beef
sandwich. Phillips isn’t comparing himself to Joyce, he’s making the painfully
obvious point that there’s a viewpoint inherent in the expression his customers
asked him to create — a viewpoint that a well-manicured lawn lacks.
Here’s the problem. If a writer squarely addresses the
argument that Phillips actually makes, then she will soon run head-on to a
sobering constitutional reality. Sexual revolutionaries are asking the Court to
overturn generations of constitutional precedent to allow the state to compel American citizens to advance
ideas they find reprehensible.
Boylan claims that Phillips is seeking special religious
exemptions. To the contrary, sexual revolutionaries are seeking exemptions from
the Constitution. They believe that same-sex marriage is so precious that even
artists can be conscripted into the ceremony — despite their deeply held
beliefs. They believe that the cost of entering the marketplace is not just the
loss of your distinct artistic voice but the commandeering of that voice by
your ideological foes to advance their
ideological interests.
It’s worth noting that Boylan is at odds with Justice
Kennedy, the likely swing vote in the case. Two years ago, in the Obergefell opinion, he wrote this:
Finally, it must be emphasized that
religions, and those who adhere to religious doctrines, may continue to
advocate with utmost, sincere conviction that, by divine precepts, same-sex
marriage should not be condoned. The First Amendment ensures that religious
organizations and persons are given proper protection as they seek to teach the
principles that are so fulfilling and so central to their lives and faiths, and
to their own deep aspirations to continue the family structure they have long
revered.
If Justice Kennedy holds to this view, then not only does
the First Amendment win, nondiscrimination laws won’t lose. Phillips isn’t discriminating on the basis of sexual
orientation. If Kennedy changes his mind, then he’ll erode vital American
constitutional traditions and doctrines. The sexual revolution, not the
Constitution, will be the supreme law of the land.
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