Having Your Cake

The simplest way to view the Supreme Court’s decision in the Masterpiece Bakeshop case as a victory for religious liberty is to consider the reaction had the court ruled against Jack Phillips and the assertion of his religious principles. The celebrations over the marginalization of religion in America would still be going on and the glee would have been unrestrained over successfully ramming down the throats of Americans a coerced acceptance of relationships construed by the Bible as immoral. That Phillips won is – or might be – a turning point in the cultural decline of America or at least a momentary halt to the moral slide.

How did he win? Much has been made of the narrowness of the Court’s ruling, basing itself on the meanness of the Colorado Human Rights Commission towards religious faith. That implies, many have noted, that had the Commission been less hostile – e.g., had it told Phillips “you have a beautiful faith that we love and respect but alas we must rule against you” – Phillips would have lost. That seems a flimsy reed on which to resolve a legal dispute, not just regarding the future but particularly for this case.

It is as if the Court realized that there was something just a little off, a little un-American, about forcing an individual to violate his conscience by coercing a personal performance that celebrates a lifestyle he considers abhorrent but the Court did not know how to worm its way out of the legal morass it had created with its decisions over the last decade. Having long abandoned the pretense that its decisions reflect “law,” “precedent” or even “constitutional jurisprudence” and is nothing more than the articulation of the personal sensibilities of its members (and often just one member, Justice Kennedy), the Court had to find a way to justify Phillips and at the same time not antagonize the cultural elites in the American media industry that have no use for religion or respect for its adherents.

So the Court crafted a convoluted decision that vindicated Phillips – justice for one person – while the real substantive arguments and future battlegrounds were fleshed out in the concurrences and dissent. It is hard to escape the conclusion that America on these issues has moved past the tolerance of “live and let live” (itself an achievement) to the recriminations and nastiness of “my way or the highway” (or fines, sanctions, imprisonment and the like). After all, the case did not involve the denial of emergency medical care but the baking of a cake (and, down the road, flowers, caterers, photographers and other personal services).

That Phillips was sincere in his religious belief meant little to the “liberal” justices who insisted, in one way or another, that his rejection of same sex marriage was too similar to racism (and to one Commission member, Nazism). It deserves to be underscored that what is so scorned now is rooted in the Bible and was considered normal, unremarkable morality for several millennia. And note Phillips’ earnestness, from Justice Gorsuch’s concurrence:

“Phillips routinely sacrifices profits to ensure that Masterpiece operates in a way that represents his Christian faith. He is not open on Sundays, he pays his employees a higher-than-average wage, and he loans them money in times of need. Phillips also refuses to bake cakes containing alcohol, cakes with racist or homophobic messages, cakes criticizing God, and cakes celebrating Halloween—even though Halloween is one of the most lucrative seasons for bakeries. These efforts to exercise control over the messages that Master­piece sends are still more evidence that Phillips’ conduct is expressive.”

And for that he was reviled as a bigot.

Kennedy’s meandering decision sidestepped the fundamental freedoms that Phillips has, at least in theory: freedom of speech and religion. Kennedy’s musings in his Obergefell decision – that “the First Amendment ensures that religious organizations and persons (emphasis mine) are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives” – would be a nullity but for the ruling (not the reasoning) here. He even averred there that there can be heartfelt objections to same sex marriage that should be protected. Again, from the concurrence:
“States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
“The First Amendment gives individ­uals the right to disagree about the correctness of Obergefell and the morality of same sex marriage. Obergefell itself emphasized that the traditional understanding of marriage long has been held—and continues to be held— in good faith by reasonable and sincere people here and throughout the world.”

The remaining question is how these rights can be protected in a commercial context. Much was made of the following conundrum: the same Commission that penalized Phillips for refusing to create a cake celebrating an event that violated his religious beliefs dismissed complaints against three bakers who refused (in Gorsuch’s language) because of their “secular principles” to bake cakes that contained biblical inscriptions opposing same sex marriage.

The Conservative concurrences saw the hypocrisy, at the same time recognizing that if freedom of speech is to have any meaning here, a baker should be able to refuse to service any customer through his personal creativity and energy for purposes he considers offensive. The Liberal concurrences distinguished the two cases with unconvincing logic, opining that Phillips would bake cakes for everyone but not same-sex couples, while the other bakers would not bake cakes they considered repugnant for anyone. But such is really a distinction without a difference; if freedom of speech is limited, then the baker should not be able to approve one message and reject another. And Phillips would not bake a cake celebrating same-sex marriage even if a band of heterosexuals requested it.

The shame of this whole area is not one of the Jewish justices seems to have spent much time over a daf Gemara because a halachic formula that could resolve these disputes easily presents itself. A merchant who serves the public must accommodate that public but there is a difference between the gavra and the cheftza¸ the person and the object. No merchant should have the right to refuse to sell an object to any customer (aside from totally neutral criteria such as a dress code and the like). If the parties herein wished to purchase a wedding cake off the shelf, well, even Phillips had no objection to that and would have sold them the cake.

Phillips objected to the demands on the gavra – the individual – the requirement that he devote his time and energy to a project that he considered sinful. Any merchant or service provider should have the right to decline to provide that service if he or she so chooses.

But, one might ask, won’t that allow a racist merchant to refuse to serve an ice cream cone to a same sex couple because he personally prepares the cone? The answer to that is no, and here’s why. A reasonable objection can only occur in the context of the furtherance or promotion of the objectionable conduct. A homosexual who buys an ice cream cone is not really a homosexual buying an ice cream cone but a person buying an ice cream cone. His sexual preferences are unrelated and irrelevant to the purchase. This is not so when the purchase or service in question – cakes, flowers, etc. – is intended to advocate or celebrate the lifestyle, such as a wedding or engagement party.

Thus, my formula is this: any action that requires the personal services of an individual in furtherance of some objective, cause or lifestyle that he disdains cannot be mandatory in a free society. Then we say to the aggrieved consumer “go elsewhere.” Just like you wish to celebrate your freedoms unimpeded, so too you must allow others to celebrate their freedoms unimpeded.

With this formula, we respect the right of the religious baker not to be forced to create a cake for a same-sex wedding, the Jewish baker not to be forced to create a cake celebrating Hitler’s birthday, or any provider of a personal service to abstain from doing any act that advances or endorses a particular cause he finds distasteful. Nor does it justify a merchant refusing to serve a black customer on racist grounds – there is no cause there that is being furthered and especially where what is being sought is a product and not a service.

That is the hallmark of a free society.

It all seems so simple, except when we recognize that what antagonizes the new left here is the Mordechai who refuses to bow, i.e., the “Americans who are unwilling to assent to the new orthodoxy.”

I still remember the days when liberals were the tolerant, open ones and conservatives were always lambasted for their reactionary intolerance and narrow-mindedness. Things have changed dramatically! Perhaps this issue, if approached with good will and broadmindedness, will lead to a welcome phenomenon in today’s America: mutual respect. We will know that day has come when these matters cease to be litigated and people patronize the bakers, florists, photographers, caterers and others who sympathize with their causes, and leave the others in peace.