Of Cakes And Cases

Recall the case of the Colorado baker who refused to make a wedding cake for a gay couple but ultimately narrowly won the case at the US Supreme Court in May?

I guess we do.

Well, the baker, Jack Phillips of Masterpiece Cakeshop, is back in court in very similar case. This time he is up against a transgender lawyer, Autumn Scardina, whom he refused to bake a cake for the celebration of the seventh anniversary of her transitioning sometime in mid-last year.  I cannot state exactly when this particular issue began, but it seems to have been ongoing at the same time the previous case was yet to be finally decided by the Supreme Court. This is because, from my research, it takes some processes for a case to reach and be decided by the Colorado Civil Rights Commission. The commission however gave its ruling shortly after the Supreme Court decided; basically, that the baker and the trans woman should find a “mediated solution” to their differences out of court, a decision much lenient than it did in the gay couple’s case earlier. The baker has refused this solution and is now suing the commission and the state governor for embarking on a “crusade to crush” him and his religious beliefs.

I state these above partly in response to social media claims that the baker is being targeted. At any rate, I believe even if targeting him is a crime or a relevant part of this discussion, it has to be proven in some form.

This type of case is just one out of many that are ongoing in US courts. This is expected, given the varied nuances of the fundamental question at hand here; discrimination and the right of refusal to render service. Even the attorneys for the baker in the previous case went to great lengths, ridiculously at times, to argue that their position is not a sweeping call for discrimination, as some funny conservative free market enthusiasts in Nigeria will have you believe. Aside arguing that the baker would sell other cakes off his shelf – even for a gay wedding – to the gay couple, during oral arguments in court, they further argued that their arguments will not apply to the chef, the make-up artiste, the hairstylist, and the tailor for the gay wedding because those were not as “expressive”, “artistic”, or a “center-piece” of the event like the wedding cake.

One wonders who really gets to determine what is expressive or artistic to them here.

The baker’s argument is as follows:

I am entitled to my religious beliefs which regard same-sex marriage as ungodly.

I am entitled to my freedom to speak and not be compelled to speak.

My wedding cakes are a form of me speaking because they are expressive even when nondescript.

Thus, if I make a wedding cake for a gay couple, I am ultimately speaking in support of that marriage against my religious beliefs. And I shouldn’t be forced to do so against my freedom of speech.

Simply put, he cannot render services to events that commemorate or celebrate anything he objects to as a religious person. Or perhaps, just a business owner? Because that seems to be what lies at the end of this road. After all, the Supreme Court, in its ruling, said it was not in the place of the government to define what passes for good or bad religion; that is, to define what constitutes religion or religious orthodoxy at all. So, who knows, if he objects to a cake for an interracial marriage, what happens? Will a restaurant owner have the right to deny a gay couple its service when on a date? Will a florist be able to refuse service to an interreligious wedding? How many religions can I come up with to deny service to whomever I want since it is not the role of government to tell me what my religion should entail?

Contrary to what is widely believed, the gay couple made no specific demands of the cake let alone demands that would indicate the cake in itself was for a gay wedding. Neither was this the bone of contention on the side of the baker; he simply would not make a cake for a gay wedding irrespective of the nature of the cake. He objected to the use of the cake, not its looks. He would not sell a cake for a gay wedding even if a straight person/couple demanded it, and he would sell to a wedding between persons of different genders even if they were gay and lesbian.

Yet the argument that a cake is speech even when it makes no clear statements and references is absurd. Like one of the Justices asked during oral hearing; If a man approaches a baker to make him a cake to apologize to his wife with the inscription “I’m sorry, Diane”, is the baker automatically a part of that apology?

But this is difficult terrain. I do not want to be forced to say what I don’t want to say when I do my work, I don’t know about you. That seems understandable even while debatable. Yet this baker is on shaky grounds with his position. He has only objected to endorsing a message that is the result of his imagination and is not clearly stated anywhere. Someone said the fact that he was willing to sell other products to the gay couple made him have a case. That is fine. But the fact that the couple had demanded no clear messages that would indicate his endorsement of their union made them have a case. Nonetheless, he won the last case, not because the court found that his cake, as plain or artistic as it may be, was his speech, but more because the Commission was found to have unduly attacked his religious beliefs (whatever that meant) and had applied different rules in deciding earlier cases where homophobic messages were demanded on cakes (the nuances are different as the homophobes were not denied service based on any immutable, legitimate or protected attributes they had). It therefore set no precedent for the broader question with its ruling.

This new case would have been slightly weaker if the baker was concerned with such weakness, but he is not. The trans woman demanded for a cake with a pink interior and a blue exterior. Whether those colors are a symbol for transitioning, I don’t know. If they were, he could argue he wouldn’t make a cake carrying those symbols. But that, once again, is not his grouse. He objects to the use of the cake and not the nature of the cake; a trans woman celebrating her transition anniversary is against his religious beliefs. I wonder, if I was a fundamentalist Christian who was asked to bake a cake for a Muslim couple, can I argue that my cake amounted to an endorsement of Islamic marriage which is against my religious views? Would I have my day in court and would the subject be just as controversial? Think of any event and replace with these two.

This new case is however doomed to fail like the first. This is because we are dealing with the same commission that was just ruled to not have the credibility to decide on this subject. The case would also likely not go far up to the Supreme Court, as they seem bent on pushing the question down to lower courts because of its complexity, divisiveness, and the far-reaching implications for any decision they make. The US Supreme Court is already conservative-leaning as it stands and will only get more so as Trump appoints more justices to the bench.

Written by Dark Henrie