By Rich Lowry
Tuesday, June 05, 2018
In the closely watched Masterpiece Cakeshop case, the
Supreme Court dealt a blow against the small-mindedness that so often
characterizes the self-appointed minders of social justice in America.
The case involved a Christian baker in Colorado named
Jack Phillips, who refused to create a wedding cake for a same-sex couple in
2012. The couple, Charlie Craig and David Mullins, reacted in characteristic
21st-century American style — they filed charges. They took their complaint to
the Colorado Civil Rights Commission under a Colorado law forbidding
discrimination on the basis of sexual orientation.
Jack Phillips lost before the commission, lost before an
administrative law judge, and lost before the Colorado Court of Appeals. It
fell to the Supreme Court to vindicate him, and none other than Justice Anthony
Kennedy, who previously authored the national right to gay marriage, did it.
In his majority opinion, Kennedy homed in on the blatant
bias of Colorado’s bias police, who apparently blanch at anything that doesn’t
accord with their blinkered, thoughtless progressivism. Phillips was on the
wrong side of history, and so his rights could be disregarded and trampled. The
arc of the moral universe bends toward crushing all resistance.
Phillips is an unlikely totem of hate. He’s happy to
serve gay couples. As he told Craig and Mullins, “I’ll make your birthday
cakes, shower cakes, sell you cookies and brownies; I just don’t make cakes for
same-sex weddings.”
Yet, once Phillips was thrown before the Civil Rights
Commission, he didn’t have a chance. Commissioners opined that he was welcome
to his religious beliefs, just not to bring them into his business. One
commissioner said that “freedom of religion has been used to justify all kinds
of discrimination throughout history, whether it be slavery, whether it be the
Holocaust.” Yes, religious freedom has much to answer for.
At the same time that the commission said Phillips
couldn’t decline to bake a cake that violated his conscience, it upheld the
right of bakers to refuse to bake cakes bearing anti-gay-marriage messages. The
Colorado Civil Rights Commission is all in favor of conscience rights — so long
as it agrees with their conscience.
Kennedy ruled for Phillips on fairness grounds but
avoided the more fundamental question of whether he had a First Amendment right
to refuse to bake the cake. The answer to this seems simple: Yes, of course.
As Clarence Thomas pointed out in a concurring decision
going further than Kennedy, making a wedding cake is a considerable creative
undertaking for Phillips. It involves “sketching the design out on paper,
choosing the color scheme, creating the frosting and decorations, baking and
sculpting the cake, decorating it, and delivering it to the wedding.” If nude
dancing is considered expressive conduct, surely this should be.
Working with Phillips isn’t like picking a cake out of a
freezer at Carvel. Thomas again: “He sits down with each couple for a
consultation before he creates their custom wedding cake. He discusses their
preferences, their personalities, and the details of their wedding to ensure
that each cake reflects the couple who ordered it.” After he delivers it, he
sometimes stays to mingle.
Other Christian bakers don’t draw the line on gay
weddings the same place that Phillips does, but there’s no doubt that he is sincere:
He also refuses to bake Halloween cakes or cakes containing alcohol.
As Thomas points out, it would be very odd for the
Supreme Court to protect the right of members of the Westboro Baptist church to
carry signs saying, “God hates fags,” and the right of the Ku Klux Klan to burn
25-foot crosses, and yet rule that Phillips can’t politely decline to bake a
cake.
The Court will eventually have to return to this topic.
But for now, it’s done the right thing — any day that officious bureaucrats who
want to chase religion from the public square are slapped down is a good day
for America.
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