The US Department of Justice is backing regligious freedom in the case to be heard by the Supreme Court on a Denver baker who, in 2012, refused to make a wedding cake for a Gay couple and this is a case civil rights activists will lose.
The baker, Jack Phillips, says his religious beliefs prevent him prevent him from celebrating or endorsing same-sex marriage.
“Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held beliefs invades his First Amendment rights,” Acting Solicitor General Jeffrey B. Wall wrote in a brief last week.
The key-word which progressives seem to miss here is “expression.”
Although the Trump administration has been trying to roll back many positions favorable to gay rights, this is not about a cake, but, rather about the message the cake conveys and a person’s right to refuse to endorse such a message under the First Amendment.
Leftists would be hard put to defend a Nazi who entered a Jewish bakery and asked for a birthday cake with a Swastika and an effigy of Hitler on it to celebrate the Führer’s birthday. The law does not distinguish between Nazis and Gays when it comes to Freedom of Speech. The baker will win this case.
And what of the artistic values of the creator? Suppose someone asked the baker to make a cake in the form of a penis? Could he refuse because it goes against his idea of what his art is and his power to determine what he creates?
In the US cultural context, is a cake just a cake, a utilitarian object? Or is it an artistic expression by its creator? I would be forced to argue that both are expressions protected by the First Amendment.
The DOJ wrote in its brief that “In the view of the United States, a … First Amendment intrusion occurs where a public accommodations law compels someone to create expression for a particular person or entity and to participate, literally or figuratively, in a ceremony or other expressive event.”
So far, as pointed out in the Washington Post, the courts have ruled that, “businesses serving the public must comply with state anti-discrimination laws.” But here we are not dealing with a bouquet of flowers. Whether Phillips was discriminating or not is beside the point as he will argue the message on the cake made it not a cake.
I believe the Supreme Court will over-rule the Colorado Civil Rights Commission and Court which rejected Phillips’ argument that baking a cake did not violate his First Amendment rights. The court said the baker “does not convey a message supporting same-sex marriages merely by abiding by the law.” Tell that to the Jewish baker who is asked to put Swastika and “Jews will not replace us!” on Hitler’s birthday cake.
Louise Melling of the American Civil Liberties Union told the Huffington Post that the DOJ brief is “shocking.” She added The Trump administration “is advocating for nothing short of a constitutional right to discriminate.”
This case, along with that of a Georgia nurse who claims she was fired because of her sexual orientation and “nonconformity with gender normes,” will make this the most important gay rights case since the justices ruled 5 to 4 in 2015 that same-sex couples have a Constitutional Right to marry.
Unfortunately, much of what is a Freedom of Speech case is going to be lost in the fog of religious rights and the decision may open a Pandora’s Box of other forms of ‘discrimination’ hidden behind the veil of religious and political beliefs. Of course, SCOTUS could try to say that at the time Philipps refused to bake the cake, in 2012, Colorado did not recognize same-sex marriages. But I doubt they will skirt the issue. Jewish bakers will not be forced to make Nazi cakes any time soon.